1. ' RAJA MUHAMMAD KHURSHID KHAN, C.J.--This appeal moved by Eid Wali appellant challenges the judgment of the Azad Jammu and Kashmir Shariat Court, dated 28th of March, 1983, whereby his appeal to the effect that as some of the heirs of the deceased have forgiven him, his sentence of death may be commuted to a lesser penalty, was disallowed on the grounds:-
(i) that the conviction had attained finality after its confirmation by the Supreme Court;
(ii) that offence of murder pertains to the period when it was not compoundable; and
(iii) that the issue is beyond the jurisdiction of the Shariat Court.
2. ' His case is that the sentence under section 302, Azad Penal Code, though termed as death, is in fact a sentence of 'Qissas' as stipulated under the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as the Act of 1974) and when it is compromised by some of the heirs of the deceased, the death sentence cannot legally sustain even after attaining the finality as a result of the decision of the Supreme Court.
2. This appeal has arisen in the following way: Two cold-blooded murders were committed by the appellant, Eid Wan- prior to the enforcement of the Act of 1974, under which the offence of murder has been, for the first time, made compoundable. He was condemned to death under section 302, Azad Penal Code, by the Sessions Judge, Poonch, vide judgment, dated 28-11-1974. His appeal to the High Court was dismissed vide order, dated 30-11-1975. The Supreme Court also, on appeal, confirmed the death sentence with the following observation, vide order, dated 4-11-1978:- " Another point advanced as a mitigating circumstance, is, that the appellant had acted under the extreme frustration and excruciating agony caused by the wife and her parents by denying to him his legitimate right of having access to his legally-wedded wife.
3. ' To us, this fact alone, even if the appellant had suffered the pangs of separation from his wife and the denial of sex life by her, cannot be regarded, in the circumstances of this case, as an extenuating circumstance calling for lesser sentence. Law is no respector of such overblown passions or inflated feelings except when a case falls under exceptions provided in section 300, P.C.
4. Surely this is not the case falling under these exceptions. A normal person is not expected, even if he be a love lorn husband, to let loose his passions and take the extreme step of committing cold blooded murder, simply because he has been denied access to his wife. But even if this fact were a matter for consideration, there is absolutely no element of mitigation in the murder of Ghaffar Sheikh much less in that of Mst. Fatima. In view of this fact, this plea of the learned counsel of the appellant, leaves us unimpressed. In the result, we find no mitigating circumstance for not awarding the normal sentence of death in this double murder case and as such dismiss the appeal."
5. ' The above observations would show that the Supreme Court, for very solid reasons, declined to award him the lesser sentence.
3. After hearing lengthy arguments addressed at the bar by the learned .Counsel for the parties, we have reached the conclusion that this appeal must fail for the following reasons:-
(a) The deceased in this case are two, namely, Ghaffara Sheikh and his daughter Mst. Fatima. The following persons are entitled to inherit their property:-
(1) Mst. Zooni widow of Ghaffara Sheikh (deceased) and mother of Mst. Fatima (deceased).
(2) Muhammad Siddique,
(3) Muhammad Rafique sons of Ghaffara Sheikh and brothers of Mst. Fatima (deceased)
(4) Mst. Shah Jahan,
(5) Mst. Zareena, daughters of Ghaffara Sheikh (deceased) and sisters of Mst. Fatima (deceased).
6. ' Heirs of the deceased listed under Nos. 1, 3, and 5 have forgiven the appellant for the murder of Ghaffara Sheikh and Mst. Fatima. Their statements have also been recorded. Mst. Shahmali and Mst. Arsha sisters of Ghaffara Sheikh have also forgiven the appellant but they are not the heirs of the deceased. It would thus appear that two of the heirs listed under Nos. 2 and 4, namely Muhammad Siddique and Mst. Shah Jahan, despite repeated opportunities have not come forward to forgive the appellant for the murder of Ghaffara Sheikh and Mst. Fatima.
7. ' The question, therefore, naturally arises as to whether when two of the heirs of the deceased have not come forward to forgive the appellant even under the provisions of the Act of 1974, the appellant is entitled to the concession of converting the normal sentence of death to a lesser penalty. The relevant provision of section 5 of the Act of 1974 reads as under:- {{URDU TEXT}} The examination of the above provision of the Act of 1974 unmistakably shows that a person who stands charged of murder under the Act and stands convicted to a sentence of 'Qissas', will be let off only if all the heirs of the deceased forgive him or if they after receipt of some goods by mutual agreement strike a compromise. This provision is hardly attracted in the present case because under this provision it is imperative for all the heirs to forgive the culprit to earn acquittal. But here only three out of five heirs of Ghaffara Sheikh and Mst. Fatima (deceased) have come forward to forgive the appellant and the two, namely, Siddique son of Ghaffara Sheikh and Shah Jahan daughter of Ghaffara Sheikh abstained to forgive him.
(b) This brings us to consider the provisions contained under the explanation to section 5 of the Act of 1974. The explanation referred to above only covers the cases where among heirs of the deceased some insist for 'Qissas' while others demand 'diyyat'. If such a situation is available then only sentence of 'Qissas' can legitimately be commuted to the sentence of 'diyyat'. The present case is distinguishable as none out of the heirs either insists for 'Qissas' or 'diyyat' money. Therefore, there is no escape but to say that section 5 of the Act of 1974 is of no avail to the appellant for the reason that all the heirs of the deceased have not come forward to forgive the appellant. This solitary ground is sufficient to disallow this appeal.
(c) The appellant was convicted under section 302, Azad Penal Code, prior to the enforcement of the Act of 1974. Offence under section 302, Azad Penal Code, was not compoundable and the Act of 1974, has not been made to operate retrospectively. We are not oblivious to the fact that under Islam if any of the heirs of the deceased forgives the accused, the sentence of 'Qissas' cannot be exacted and stands commuted to a lesser sentence but we are bound by codified law and cannot go beyond it.
(d) There can be no question that the Holy Qur'an and the Sunnah contain the supreme divine law for all Muslims in Azad Kashmir as elsewhere but the whole law contained therein has not as yet been enacted as the 'law of the country' since all the commands and prohibitions contained in the Holy Qur'an and the Sunnah have not been codified in Azad Kashmir. 'Codify' means 'A systematic collection or digest of the laws of a country, or of those relating to a particular subject'. The laws enacted by the Parliament or some other competent authority vested with such powers under the Constitution or other machinery are distinguishable from divine laws which cannot be termed as laws of a country unless they are so enacted or codified.
8. ' In The State v. Matloob Hussain Shah 1983 P Cr. L J 745 it was observed:- "The Courts are only governed and guided by the codified laws and unless the whole conception of bails embodied in the Islamic Jurisprudence is not codified, we cannot legally go by them. Till then we have only to get guidance from the Islamic Jurisprudence relating to bails only to the extent of its being compatible with the codified law. If codified law is in departure to the Islamic Law of Bails, naturally the Courts have to follow the codified law even if morally convinced that the Islamic law is to be preferred to the codified law. We would however welcome a complete switch over of all the laws in strict conformity with the tenets of Holy Quran and Sunnah."
9. We, therefore, reiterate our view referred to above and hold that codified law cannot be departed from and is to be followed unless, of course, it is made to conform with the provisions of Holy Qur'an and Sunnah. When it will be done, we do not know.
(e) The contention of the learned counsel for the appellant that the sentence of death to the appellant, awarded by the Sessions Judge, is to be construed as sentence of 'Qissas' is not tenable.
10. Even if it is held to fall under any of the provisions of the Act of 1974, it cannot be considered to be a sentence of 'Qissas' because the prescribed standard of evidence for exacting sentence of 'Qissas' under the Act of 1974 is not available in this case. It is provided under section 24 of the Islamic Penal Laws Enforcement Act that if in an offence sentence of 'Hadd' or 'Qissas' cannot be exacted on the ground of non-availability of prescribed standard of evidence, the Court is competent to exact sentence of 'Tazeer' which may even extend to death provided public interest so warrants. In such cases even the compromise may be ignored. In the case before us, two innocent persons were done to death by using deadly weapon (heavy axe). Not only this but an attempt to commit murder was also made to Shah Jahan who was dangerously injured. However she survived.
(f) After the enforcement of the Act of 1974, this Court, of course, in the pending cases and even in cases where the conviction had attained finality after the judgment of the Supreme Court felt advised to commute the sentence of death in murder cases under section 302, Azad Penal Code, to a lesser sentence while taking into consideration the compromise. But it was only done when all the heirs had compromised the matter and circumstances also made such a demand and not otherwise. Reference may be made to two cases namely Mahmood Ellahi v. The State Criminal Appeal No, 6 of 1981, decided on 13-4-1983 and Fazal Ellahi v. State Criminal Appeal No, 19/M.R. Of 1978. In the first case it has been observed:- "In view of the submissions made by the learned counsel for the parties the question needing determination is as to whether the Constitutional provisions read with Supreme Court Rules confer vast powers on this Court to pass any order in any case or matter in order to do complete and substantial justice.
11. ' We now proceed to examine the relevant constitutional provision on the subject. Section 42-A of the Azad Jammu and Kashmir Interim Constitution (3rd Amendment) Act, 1976, reads as:- ' The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it....'
12. ' Section 4 of Order XLIII of the Supreme Court Rules, 1978 reads:- ' The Court shall have powers to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, ' After careful consideration of the Constitutional provision read with Supreme Court Rules listed above we find ourselves in agreement with the learned counsel for the appellant that these provisions do indeed confer wide powers on this Court. But even then the question which needs consideration is as to whether effect can be given to the pardon 6ranted by the heirs of the deceased under the provisions of Islamic Act, despite the fact that the appellants stood convicted for an offence under the Penal Code.
13. ' For the resolution of the above-listed query we will now, therefore, proceed to examine the merits of the proposition in the light of the submissions made by the learned counsel. The appellant no doubt was tried for the offences under the Penal Code but all the same we cannot be oblivious of the fact that the Islamic Act was promulgated during the pendency of the trial of the appellant. It was a legislation in the nature of a step towards the fulfilment of a long-cherished goal of Islamisation of all the laws. For the transformation of our social system into a true Islamic social order, it is imperative that all the laws made are in conformity with the injunctions of Holy Qur'an and Sunnah. In case of murder the heirs of the man killed, under the Islamic Law have the absolute right either to demand 'Qissas' or to grant total pardon to the offender if they so choose. This is a right, absolute in nature and ordained by God. Verse 178 of 2nd Surah of Holy Qur'an reads:- ' Oh ye who believe the law of equality is prescribed to you in case of murder. The free for the free, the slave for the slave, the woman for the woman but if any remission is made by the brother of the slain--'.
14. ' Again the relevant provision of Islamic Act on the proposition is section 5 of the Act which reads as:- {{URDU TEXT}} ' The provisions of Islamic Act visualising the said concept has necessitated to bring about necessary amendment in the said Act so as to harmonise it with devine law. A harmonious construction of the provisions of the Islamic Penal Laws Act to the dictates of Muslims law as enunciated by Muslim jurists is desirable but this cannot be done in violation of accepted rules of interpretation. We are of the view that despite the sanctity of divine law, it is not possible in this case to commute the death sentence of the applicant either under inherent powers or under any other law for the time being in force.
(g) As all the heirs have not forgiven and pardoned the appellant it will not only be beyond our jurisdiction but also be violative of section 5 of the Act of 1974 to reduce the sentence. A reference has also been made to a case entitled 'Sardar Ali v. State' (Criminal Appeal No, 16 of 1978) which was decided on 4-12-1978, related to the period prior to the enforcement of the Act of 1974. That case is distinguishable in the sense that all the heirs of the deceased Muhammad Yaqub had forgiven Sardar Ali appellant.
(h) We may state here that earlier orders/judgments cannot be reviewed though such a view can be changed in a later case. Rehearing of the order earlier passed is not possible. No doubt all the Courts are bound by the decisions of the Supreme Court under the Constitution but the Supreme Court is not bound by its own judgments. So was held in Anwar v. Crown PLD 1955 FC 185.
15. ' In view of the above, we see no force in this appeal which stands dismissed. A copy of this order shall be sent to the convict in jail