1. ' SARDAR 'MUHAMMAD ASHRAF KHAN, J.-- The reference made by the District Criminal Court, Mirpur in a case of bail application entitled above, a question arose for determination as to whether the case against the petitioner under section 15, Islamic Penal Laws Act read with section 307, A.P.C. Is triable by the District Criminal Court or by the Tehsil Criminal Court and since a decision of an ad hoc Judge of this Court in a case entitled Subhan v. State to the effect that a case under section 14/15, of the Islamic Penal Laws Act read with section 307, A .P.C. Is only triable by the District Court require further consideration, the learned Chief Justice was requested. To constitute a larger bench for deciding the aforesaid point of law who has constituted the present bench for the purpose.
2. We have heard the learned counsel for the parties and have also gone through the relevant law. In our considered view, a case under section 14/15 Islamic Penal Laws Act read with section 307, A.P.C.
3. Is cognizable by the Tehsil Criminal Court and not by the District Criminal Court as held earlier in the aforementioned case. The President of Azad Jammu and Kashmir had promulgated an Ordinance known as Code of Criminal. Procedure (Amendment) Ordinance, 1984 (Ordinance XLI of 1984) and (hereinafter referred to as Ordinance) under section 7 of the Ordinance, the Second Schedule of the Code, of Criminal Procedure, 1898 as it pertains tb'the offences against other law has been substituted by a Schedule attached with the Ordinance. It appears pertinent to reproduce the above section of the Ordinance which reads as under:- "7. Amendment of Second Schedule, Act V of 1898.- In the Code of Criminal Procedure, 1898 (Act V of 1898), in the Second Schedule, for the heading 'Offences Against other Laws' and the entries thereunder the heading and entries as per schedule attached shall be substituted."
4. According to the column-8 of Item 5 of the aforesaid new Schedule replacing old one under section 7 of.. The Ordinance only those offences Against Islamic Penal Laws which are punishable with death, imprisonment for life, amputation of hand or foot or both hand and foot or with whipping exceeding 80 stripes with or without any other of the said punishment', have been made triable by the District Criminal Court while under items 6 to 8 of the said Schedule all other offences against Islamic Penal Laws in which the punishment prescribed is not any of the one enumerated in the above item No, 5 of the Schedule are cognizable only by the Tehsil Criminal Court and since the punishment either under section 14 or 15 of the Islamic' Penal Laws Act is not any one prescribed under item 5 of the Second Schedule of the Criminal Procedure Code under consideration, they are triable by the Tehsil Criminal Court.
5. ' The Courts constituted under Islamic Penal Laws Act are conferred powers to try offences under other law by virtue of section 23 (1)(a) of the said Act which reads as follow:- {{URDU TEXT}} The plain reading of the above provisions of law would show that if a criminal act of a person constitutes offences both under Islamic Penal Laws Act as well as under any other law then the Court having jurisdiction to try the offences committed by him under Islamic Penal Law shall only be competent to try an offence committed by him under' any other law during the course of the same transaction. Thus, if an Act of a person amounts to an offence either under section 14 or 15 of Islamic Penal laws Act and also an offence under section 307, A.P.C. Then in view of the provisions of clause (a) to subsection (1) of section 23 of the Islamic Penal Laws Act read with item 6 of the Schedule attached with the Ordinance, the case against him under the aforesaid sections of the Islamic Penal Laws Act and A.P.C. Shall be triable by the Tehsil Criminal Court notwithstanding the fact that punishment under section 307, A.P.C. Is also imprisonment for life, if the hurt is caused to a person who was victim of an attempt to murder. Provisions of item No,5 to the aforesaid Schedule shall not be applicable in such a case because under above provisions only an offence under Islamic Law in which imprisonment for life is prescribed has been made cognizable by the District Criminal Court and obviously an offence under section 307, A.P.C. Is not an offence under Islamic Penal Laws Act but is an offence under A.P.C.
6. The challan against the petitioner under section 5, Islamic Pena Laws Act and under section 307, A.P.C. Is exclusively triable by the Tehsil Criminal Court, Mirpur and consequently the point of law referred to us is disposed of accordingly.
7. ' In this reference, a point of law as to whether the case against Tariq Mehmood, accused- petitioner is triable by the District Criminal Court or the Tehsil Criminal Court, was referred for decision by the learned Chief Justice to the Bench of this Court, comprising Mr.Justice Qazi Abdul Ghafoor and myself. The bench has returned the verdict that only the Tehsil Criminal Court, Mirpur is competent to take cognizance of the challan under section 15 of the Islamic Penal Laws Act read with section 307, A.P.C. Against the said accused-petitioner.
8. ' Now I proceed to decide the reference in the light of the verdict of the Division Bench of this Court referred to above.
9. ' The facts forming background to the making of this reference by the District Criminal Court, Mirpur, briefly stated, are that Haji Khadim Hussain lodged a written F.I.R. With the S.H.O., Police Station Mirpur on 22-2-1984 at about 1-30 p.m. To the effect that while he was sitting in his office known as "London Travel Service" situated on the Allama lqbal Road, Mirpur, his son Tariq Mehmood at about 1-00 p.m. On the same day made an attempt on his life by firing three pistol shots at him after being enraged on account of his (complainant) giving him some instructions on family affairs and that he saved his life by hiding himself under the table.
10. ' It was further alleged that his said son after committing the crime ran away on a car.
11. ' The police registered a case under section 307, A.P.C. On receipt of the above report. During the investigation of the case, the accused was granted bail by the learned Sessions Judge vide his order, dated 2-4-1984. The police after completing the investigation put up a challan under section 15, Islamic Penal Laws Act read with section 307, A.P.C. In the Tehsil Criminal Court, Mirpur which ordered the accused to furnish fresh bail bond in the sum of Rs,5,000. The accused complied with the above order of the Court which also accepted the bail and surety bonds furnished by him.
12. Meanwhile, the complainant had moved an application before the High Court for cancellation of bail granted by the Sessions Judge for an offence under section 307, A.P.C. To the accused which was accepted by Mr.Justice Muhammad Akram Khan, Judge vide his order, dated 3-5-1984 and ordered the arrest of the accused. The learned Judge in his order cancelling the said bail of the accused-petitioner, also observed that the bail granted by the Tehsil Criminal Court to the petitioner in a challan case presented before it was unlawful because the said Court had no jurisdiction to grant the same as an offence under section 15 of the Islamic Penal Laws Act read with section 307, A.P.C. Is cognizable only by the District Criminal Court in view of the imprisonment of life prescribed for an offence under section 307, A.P.C.
13. ' On the cancellation of his bail granted to him by the Sessions Judge, the petitioner applied for bail before arrest to the District Criminal Court, Mirpur but was not successful as his prayer for bail was rejected by the said Court vide his order, dated 9-4-1984. After rejection of his bail application, he was arrested and sent to the judicial lock-up. The accused-petitioner then moved another application before the District Criminal Court for the grant of his bail on 9-6-1984 which was rejected by one of the Members of the said Court namely; the Sessions Judge while it was accepted by the other Member i,e, District Qazi. Due to the difference of opinion between the Members of the District Criminal Court on the question of grant of bail to the accused-petitioner, the said Court made this reference to this Court for decision.
14. ' I have heard the learned counsel for the parties on the merits of the case but I need not discuss them as this reference is being disposed of on a law point. As stated earlier, the Division Bench of this Court in a reference made to it has given the decision that a case under section 14/15, Islamic Penal Laws Act read with section 307, A.P.C. Is triable by the Tehsil Criminal Court only and therefore, the Tehsil Criminal Court is only competent to entertain and hear the case of the accused-petitioner under section 15 of the Islamic Penal Laws Act and section 307, A.P.C.
15. In view of the above ruling of the Division Bench of this Court the challan against the accused- petitioner for the offence under sectio 15 of the Islamic Penal Laws Act and section 307, A.P.C. Has rightl been put up before the Tehsil Criminal Court. The said Court bein the Court of competent jurisdiction had power to allow bail to th petitioner which, as stated earlier, has been granted to him. The sai bail is still intact and has not been cancelled so far by any competent Court with the result that the petitioner's bail subsists and legally speaking, he is still on bail competently granted to him. As along as bail allowed to him by the trial Court is not cancelled by the Court o competent jurisdiction, the petitioner cannot be arrested and detained in connection with the case pending before the Tehsil Criminal Court.
16. In this view of the matter, the arrest and detention of the' accused-petitioner in the Judicial Lock- up in connection with the case against him under section 15 of the Islamic Penal Laws Act and section 307, A.P.C. Is unlawful, for which reasons the order of his release from the illegal detention is required to be made in exercise of the inherent powers of this Court vested in it under section 561- A, Cr.P.C. As such a course appears to be necessary in the ends of justice in order to undo a wrong done to the petitioner by arresting and detaining him in the judicial lock-up without legal sanction behind it.
17. The Superintendent of Jail, Mirpur is ordered to release Tariq Mehmood accused-petitioner who is detained in Mirpur Jail as undertria prisoner in a case under section 15 of the Islamic Penal Laws Act and section 307, A.P.C. Forthwith. The said accused shall be considered t G be on bail granted to him by the Tehsil Criminal Court in a case pending in the said Court against him and his bail and surety bonds furnished in the trial Court shall stand restored.
18. ' As the accused-petitioner has been ordered to be released having been considered to be on bail allowed to him by the Tehsil Criminal Court, the present reference by the District Criminal Court for resolving difference of opinion between the Members of the said Court on the question of granting bail to him does not require determination as the same has become infructuous.
19. ' The copies of this order shall be sent both to the District Criminal Court and the Tehsil Criminal Court, Mirpur, for information and necessary action.