' Mst. Nazran Bibi was arrested alongwith Ghulam Ahmed and Shabbir Ahmad, co-accused, by local Police Mirpur while busy in 'Zina in room No, 3, P. W. D. Rest House, Mirpur. It was alleged that Ghulam Ahmed, in collaboration with Shabbir Ahmed accused, engaged Mg. Nazran Bibi for Zina' and brought her to the Rest House, Mirpur. The accused pretended as guests of a local Magistrate and .On that pretence, availed a room. Mahmood, an attendant or the Rest House, apprehending objectionable beaaviour of accused persons, informed the local police on telephone. Muhammad Naseem Kban, S. H. O. Mirpur accompanied by six constables, raided the room and found Mst.
Nazran Bibi and Ghulam Ahmed busy in `Zina.', while Shabbir Ahmed was waiting for his turn. The accused were led to medical examination the same night. The plea for bail was denied to all the accused persons by 'the District Criminal Court, Mirpur.
2. The first contention made in support of bail is that the restriction imposed on the powers of the Court under section 497(1), Cr. P. C. I not applicable to present case as the accused being a woman, her case fall within exceptions listed in oroviso to subsection (1) of section 497, Cr. P. C.
Section 497(1) limits the discretion of the Court t grant bail to an accused if there appear reasonable grounds for believing that be is guilty of an offence punishable with death or life imprisonment. The proviso introduced in subsection (1), nevertheless, relaxes restriction by laying down than Court may direct any person under the age of 16 years, or any woman o sick or infirm person accused of such an offence, to be released on bail. The proviso does not make it mandatory that any one of the person listed therein shall be released on bail as a right. It only relaxes the restriction imposed on the power of the Court to grant bail. In other words, Court is vested with discretion to grant bail to a person covered by proviso provided it is satisfied that circumstances of a particular ca justify the exercise of discretion in favour of such an accused. The use o word "may" clearly reflects that law left the question of bail to th discretion of the Court and that proposition of grant or refusal of bail is to bc considered on merits of each case. The accused, on this premises, cannot claim bail as a matter of right unless, of course, it is satisfied that] there are apparent reasons for granting concession of bail to accused in the light of merits of the case.
3. Ordinarily, offence of 'Zina' ascribed to accused is punishable by 'Hadd'. The prosecution disclosed that the alleged offence of 'Zina' was witnessed by S. H.
0. Alongwith six constables and 2 attendants of the Rest House. Even if it is accepted for argument sake that the requisite evidence for imposing punishment of `riadd' is not available in the case and the accused is liable to `Tazeer', in that case also the offence continues to be non-bailable. The sentence of `Tazeee for an offence of 'Zina' is punishment with rigorous imprisonment for a term which may extend to 10 years. On this count as well, the accused cannot claim bail as a matter of right.
4. At this stage, it is of interest to mention that Ch. Muhammad Taj, the learned counsel for the accused, argued that in absence of 'Tazkiyah', accused cannot be denied bail. He elaborated his contention by pointing out that the police officers, the alleged eye-witnesses, cannot be considered as just witnesses required to testify in support of allegation of 'Zina'. Reference was made to Naseer Hussain's case (1). I have carefully examined the reasons advanced by the learned Chief Justice who decided Naseer Hussain's case and with due respect to the learned Judge, I am not convinced that `Tazkiyalf is a prerequisite for arrest of an accused of offence punishable by 'Hadd'.
5. It is accepted that an offence of 'Zina' is cognizable. The powers of investigation conferred on police officer under the Code of Criminal Procedure clearly show that a police officer, during investigation of a cognizable offence, in presence of evidence constituting prima fade cognizable offence, is competent to arrest such an accused. On the other hand, the Hadood Ordinance postulates that under section 8, proof of 'Zino.' or Zina-bil-jabar', liable to 'Hadd', shall be :-
(a) when an accused makes confession of offence ; or
(b) when at least four Muslim adult male witnesses to the satisfaction of the Court by making `Tazkiya-al-Shahood', testify as eye-witnesses of the act of 'Zina'.
The condition of `Tazkiya' provided under law is a condition precedent for imposing punishment of 'fiadd' and not `Tazeer'. The condition of `Tazkiya', therefore, cannot be stretched to the stage of arrest of an accused which obviously precedes the trial of an accused of offence of 'Zina'. The proposition of `Tackiyah' received attention of superior Courts in many cases. The first case decided by this Court and Supreme Court of Azad Jammu and Kashmir, was Amir Zaman Hanfi's case (2), in which proposition was deeply analysed in the light of injunctions of Islam. Recently, the Supreme Court re-examined the proposition in Punnu Khan's case (3). The relevant part is reproduced :- "Tazkia presupposes statements of witnesses and is not same thing as cross-examination -Tazkia must be conducted when statement of concerned witnesses stands concluded as such Tazkia before recording evidence is exercise in futility-Question of Tazkia arises only when accused throws reproach on witness-Accused accepting testimony
(1) PLD 1984 Lab. 67 (2) PLD 1979 SC (A 3 & K) 78 (3) P D 1984 SC (A J & K) 1 of witness or confessing guilt saying that witnesses were Aadil and correct to involve him in cases- Court may not conduct Tazkia in such cases."
' The other part of the argument is that the police officer cannot be considered "just witness" to impose punishment of `Hadd'. At this stage, it is not conducive to deeply appreciate the point raised by the learned counsel of the accused, in order to avoid the likelihood of prejudice to the case of parties at trial. The law examined above postulates that the sentence of `Hadd' shall be enforceable against an accused of offence of `Zina' when at least 4 adult male Muslim witnesses whose credentials are found satisfactory by `Tazkiyah-al-Shahood, testify as eyewitnesses of the offence of `Zina'. The conditions conceived by law for offence of `Zina' punishable with `Hadd', are :-
(1) that number of witnesses should at least be four ; (ii) that the witnesses must be adult male Muslims ; and ((ii) that the credentials of the witnesses must be found satisfactory by `Tazkiah-al-Shahood' made by the Court.
The law does not conceive of status of a witness. On this view of the matter, it is not permissible to attack the credibility of a witness who happens to be a public servant (Police Officer). If this is allowed, the rule shall be stretched even to social conditions prevailing in the societ and the people having average or low social status who otherwise are very upright and honest, shall not be accepted as credible witnesses. The law has, therefore, rightly determined the status of a witness for the credibility of his evidence for an offence punishable by `Hadd' or `Qissas' and confined the qualifications to his being' an adult male Muslim and to be an `Aadil'. If the rule of bail, enunciated in Naseer Hussain's case, is allowed to prevail, then culprits in offences of Hudood and Qissas shall enjoy liberty till the commencement of trial and making of Tazkiya by Trial Court. 1 am unable to subscribe to this view. The contention is, therefore, repelled.
6. Next, the learned counsel for the accused argued that the liability for `Zina' ascribed to the accused necessitated further inquiry as it has yet to be determined whether the accused was willing party to `Zina' or not ' The relevant law applicable to the objection raised by the learned counsel is covered by subsection (2) of section 497, Cr. P. C. Subsection (2) provides that if it appears to police officer or Court at any stage of investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into the guilt, the accused shall, pending such inquiry, be released on bail at the discretion of officer or Court. In order to appreciate the conditions provided under subsection (2), Court has to fall upon the material placed before it whether it is stage of investigation, inquiry or trial. It is only in the light of evidence available on record that the Court has to determine whether there exist any reasonable grounds to believe that the accused is guilty of alleged offence. If such grounds do exist, under subsection (2), an accused cannot ask for biil. Conversely, when the Court is satisfied that no sufficient grounds exist and that further inquiry into the guilt of accused is necessary, the accused, of course, is free to seek his bail on that count.
7. It is a settled rule that question of grant or refusal of bail is to be determined on the basis of material collected during investigation consisting of evidence proposed to be produced by prosecution, defence version, if any, and report of tae police under section 173, Cr. P. C. When bail is desired at the stage of trial, then in that case, evidence recorded by that time is equally to be considered for the purpose of bail. This view finds support from Khalid Saigol's care (1). Mr. Justice Late Hamoodur Rehman who spoke for the Court, deeply analysed the scheme of law relating to bail under various provisions of the Code. On the relevant point under consideration, the learned Judge observed :- "Subsection (1) of section 497, evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists.
' Subsection (2) of the said section, on the other hand, comes into application where the investigation, inquiry or trial has already commenced and in the course thereof the accused has come to be in a position to satisfy the Court that there are no reasonable grounds for believing that he has committed the offence alleged and if he so succeeds in satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined thereunder that the Court shall enlarge him on bail even if it is of the view that there still are sufficient grounds for further inquiry into his guilt."
' The proposition of bail was re-examined in Nadata's case (2), Mr. Justice Muhammad Yaqoob Ali, J., who delivered the observations of the Court, was of the view "The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on the accusation levelled against him, the report under section 173, Cr. P. C. And the evidence which the prosecution proposes to examine, the plea of defence, if any, raised during the investigation or any other special circumstances appearing in favour of the accused or against the prosecution."
The consensus is that the question of grant or refusal of bail, at the stage of investigation or prior to trial, is to be settled in the light of evidence proposed to be produced by prosecution against the accused, defence version, if any, and the police report under section 173, Cr. P. C. Alongwith attending circumstances appearing from the investigation.
8. The scope of further inquiry has to be determined from the afore-listed factors. The Court has to satisfy itself from total evidence collected in investigation and it has to rest its finding on genuine, bona fide and tangible grounds. The term "further inquiry" cannot be stretched to
(1) PLD 1962 SC 495 (2) P D 1968 SC 310 include fictitious, artificial and conjectural grounds. Likewise, the proposed defence likely to be raised at trial, cannot be given weight at an earlier stage of investigation unless such a defence is clearly disclosed. This is so as a hypothetical or arbitrary position cannot be allowed to prevail upon the reasonable grounds available on the record. The objection raised on this behalf is not found sustainable.
9. The learned counsel in support of his contention referred to Miss Farah Naz's case (I) and argued that on identical ground the petitioner was entitled to bail. Miss Farah Naz, a college student, was charged with offence of murder. The learned Judges in the High Court allowed bail to the accused on the ground of juvenile offender accompanied by her ailment and apparent loss in studies. The case of the accused-appellant is obviously, distinguishable from that case. The accused-appellant is a woman of major age. She is mother of three grown-up children. It appears that she was divorced on account of ill-reputation. Thereafter, she adopted foul trait for her living. The other two precedents relied by the learned counsel for the accused are not helpful to the appellant.
19. The superior Courts of this part of the country have generally discouraged bail in cases of kidnapping, 'Zina' and sodomy. This was quite in spirit with tenets of Islam. In Karam Hussain's case, bail was denied to him for an offence of attempt to rape: In ,41i Hussain's case, bail granted by Shariat Court was cancelled by the Supreme Court for the following considerations :- "Offences like kidnapping and Zina from their very nature tend to destroy the very fabric of a just and civilised society, moreso of Islamic society which we all claim to belong to. We are not oblivious of the principle that mere heinousness of alleged offence would seldom be made basis for declining bail to the accused petitioners. To refuse bail there must exist evidence on record clearly connecting the accused with the crime. There must, so to say, exist a prima facie case against the accused. Viewing the proposition in this perspective we find that accused- respondents, as have expressly been stated in the F. I. R., have effected forcible entry into the house of complainant and after inflicting injuries on the person of complainant and other inmates of the house forcibly lifted the unmarried minor daughter of the complainant with the intention to commit Zina."
In present case, accused is a woman. Her case is different in kind from the case of a male accused.
It is noticed that accused is permanently resident of Jhelum and she came to Mirpur a month earlier to the incident with a view to carrying foul business, to earn her livelihood. She has no Mehram' in Mirpur. Ch. Muhammad Taj was unable to disclose identity or particulars of any relations of her in this area. In this view of the matter, it does not appear just and expedient to release her on bail, particularly to avoid likelihood of repetition of alleged offence. She will be safe in the lock-up for the time being. The petition is rejected. However, she will be free to renew her prayer for bail before the trial Court after recording evidence of one of the prosecution witnesses.
Bail refused.
(1) P L 13 1979 Lab, 477 P D 1986 Sh. C (A J & K) 119 Before Abdul Majeed Mallick, C J TARIQ HUSSAIN AND 3 OTHERS-Petitioners versus TALIB HUSSAIN--Respondent Criminal Revision No, 13 of 1986, decided on 8th April, 1986. Criminal Procedure Code (V of 1898)- -- Ss. 526 & 561-A----Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 32(2) -Penal Code (XLV of 1860), S. 307/326/447/426/148/149 - Cross-cases - Transfer of criminal case-One losing life on complainant's side while persons on other side suffering injuries in a common incident-District Criminal Court proceeding with trial of both counter and complaint case but by a subsequent amendment jurisdiction for trial of offence under S. 307, P. P. C. Taken away from District Criminal Court and such offence made triable by Tehsil Criminal Court--Private complaint under S. 307, P. P. C., held, to be heard and disposed. Of alongwith counterchallan cast but trial in both cases to be held separately by recording evidence in each cast distinctly. Under the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974 no specific provision is available to settle the controversy as the law provides a schedule containing various offences triable by particular Courts, namely, Tehsil and District Criminal Courts. At the same time, it prescribes no prohibition that District Criminal Court shall not try an offence triable by Tehsil Criminal Court. Section 32(2) of the Act postulates that the provisions of the Criminal Procedure Code shall apply to all such matters which are not described in the Act. Under this provision, in absence of an express provision relating to jurisdiction in respect of trial, one has to revert to the provisions of the Criminal Procedure Code. A study of the Criminal Procedure Code again reflects that no specific provision relating to trial of cross-cases has been prescribed in the Code. In such a situation, various superior Courts of the sub-continent felt advised to lay down a rule that keeping in view the interest of justice, it was more reasonable and fair that cross-cases arising out of common incident, where both the contending parties are accused. Should be heard and disposed of simultaneously by one Court. This was done in order to avoid disastrous result in the shape of conflicting decisions. The rule was not considered inflexible to meet unique situation arising in a particular case. Moreover, it has been laid down that trial in both cases should be separate and the final judgments should also be recorded separately. The rules of evidence are also adhered to strictly as each case is to be decided in the light of its own evidence, uninfluenced by the evidence recorded in the counter-case. [p. 1211/1 Moreover, it is to be kept in view that the appellate Court, unless otherwise expressly provided, has all powers to do what the lower or subordinate Court can do. It is undeniable that appellate Court is not divested of its inherent jurisdiction to try a case which is otherwise triable by its subordinate Court. It is agreed that under section 25, subsection (4) of the Act, all orders and decisions of Tehsil Criminal Court are appealable and revisable by District Criminal Court. In presence of the revisional and appellate jurisdiction vested in District Criminal Court under the Act, it cannot be assumed, even for arguments' sake, that District Criminal Court is precluded from taking cognizance of an offence triable by Tehsil Criminal Court. [p. 12218 The power of transfer of a case from a subordinate Court neither vests in the LAstrict Criminal Court nor in the Shariat Court under the Act. In absence of such specific provisions, High Cotn t has to revert to the provisions of the Code of Criminal Procedure as suggested under section 32(2) of the Act, to transfer a case, on its satisfaction of one of the conditions under subsection (i) of section 526, Cr. P. C. Section 526, subsection (i), clause (e), Cr. P. C., lays down that whenever it is made to appear to the High Court that an order of transfer is expedient in the interests of justice, it may, under sub-clause (ii) of clause (e), order that any case or appeal be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction.
The requirement or condition precedent to an order of transfer of the case from a subordinate Court to another Court of equal or superior jurisdiction, is that a High Cout or Shariat Court, as the case may be, is satisfied that transfer of the case or appeal is expendient in the inteiests of justice.
The High Court or Shariat Court, therefore, must be satisfied that transfer of a case or appeal, as the case may be, pending in a subordinate Court, is essential to meet the ends of justice. In absence of such condition, the provisions of section 526(1), clause (e)(ii) cannot be invoked. [p.
122]C State v. Mushtaq and others and Muhammad lqbal v. .Mushtaq, decided on 28th June, 1981 ; Muhammad Sadiq's case PLD 1971 SC 713 ; Bostan and others' case, decided on 9th October, 1974; Shahid qli's case PLD 1962 Dacca 576 ; Krishna Pannadi v. Emperor AIR 1930 Mad. 190; Banappa Kallappas Aja wan and others v. Emperor AIR 1944 Bon]. 146 ; Lakshminarayana v. Suryanarayana AIR 1932 Mad. 502 and Ujagar Singh v. Emperor AIR 1936 Lah. 356 ref. Basharat Ahmad Shaikh for Petitioners. Abdul Khaliq Ansari for Respondent.
Date of institution : 20th February, 1986.
' The petition is moved for quashment of proceedings, for want of jurisdiction, undertaken by the District Criminal Court, Mirpur, in a private complaint of Talib Hussain against Tariq Hussain and others, under sections 14 and 15 of the Islamic Penal Laws Act read with sections 307, 326, 447, 426, 148 and 149 of the Penal Code.
2. The petition has arisen in the circumstances as an incident occurred on March 19, 1979, in Village Sandoa, Tehsil Bhimber, in a dispute over land, wherein one person belonging to the peritioners' party was killed and Muhammad Fazil, uncle of Talib Hussain, also received injuries on vital part of body. The local police registered a case against Talib Hussain and his associates on various charges including murder, and submitted challan in the District Criminal Court, Mirpur. After considerable interval, a private complaint was made by Talib Hussain in the said Court on October 13, 1980, in which process was issued to the accused (present petitioners) on November 12, 1980.
Proceedings in cross cases were undertaken simultaneously but the challan case preceded as progress was made by recording evidence of prosecution. The private complaint remained on the file of District Criminal Court without progress as despite presence of witnesses, their evidence was not recorded and it still occupied that position. It appears that evidence of prosecution in the challan case is at its tail as statement of last formal witness only remains to be recorded.
3. Mr. Basharat Ahmad Sheikh, the learned counsel for the petitioners contended that the District Criminal Court was incompetent to take cognizance of offence ascribed to the accused in private complaint as under law Tehsil Criminal Court alone was competent to do so. It was emphasised that in view of the sentence prescribed under law, the offences described in the private complaint were exclusively triable by Tehsil Criminal Court, as such the proceedings undertaken by the District Criminal Court were a nullity. It is undeniable that at the time when cognizance in the case was taken by the District Criminal Court, offence of attempt to murder under section 307, Penal Code, was triable exclusively by District Criminal Court but by a subsepent amendment, it was made triable by Tehsil Criminal Court. Thus, when cognizance was taken by the District Criminal Court, it had the jurisdiction to try it. It is noticed from the record that no progress is shown to have been made in the complaint proceedings except recording of statements of the accused under section 242, Cr. P. C , and the evidence of ,prosecution is yet to be recorded. The statements of the accused persons were equally recorded at a time when the Court enjoyed its jurisdiction. , Therefore, the proceedings, as they are, still confine to the stage when jurisdiction vested in the Court.
4. It is accepted that ordinarily the alleged offences described in complaint are triable by Tehsil Criminal Court. This proposition is unquestionable. The controversy, however, has arisen as in a common incident both parties received injuries and made counter accusations ascribing each other aggressor. In this context it is to be settled whether it would be fair, reasonable and in the interest of justice to allow the proceedings to continue at different forums having ordinary jurisdiction ,under law or both cases should be tried simultaneously in one Court. Under the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974 (hereinafter referred to as the Act), no specific provision is available to settle the controversy as the law provides a schedule containing various offences triable by particular Courts, namely, Tehsil and District Criminal Courts. At the same time, it prescribes no prohibition that District Criminal Court shall not try an offence triable by Tehsil Criminal Court. Section 32(2) of the Act postulates that the provisions of the Criminal Procedure Code shall apply to all such matters which are not described in the Act. Under this provision, in absence of an express provision relating to jurisdiction in respect of trial, one has to revert to the provisionsof the Criminal Procedure Code. A study of the Criminal Procedure Code again reflects that no specific provision relating to trial of cross-cases has been prescribed in the Code. In such a situation, various superior Courts of the sub-continent felt advised to lay down a rule that keeping in view the interest of justice, it was more reasonable and fair that cross-cases arising out of common incident, where both the contending parties are accused, should be heard and disposed of simultaneously by one Court. This was done in order to avoid disastrous result in the shape of conflicting decisions. The rule was not considered inflexible to meet unique situation arising in a particular case. Moreover, it has been laid down that trial in both cases should be separate and the final judgments should also be recorded separately. The rules of evidence are also adhered to strictly as each case is to be decided in the light of its own evidence, uninfluenced by the evidence recorded in the counter-case. Mr. Basharat Ahmad Sheikh, the learned counsel for the petitioners, agreed to this position of law but strived to distinguish his case on the sole ground of jurisdiction. It was elaborated that the aforesaid test in respect of cross-cases cannot be a yardstick for snatching jurisdiction of Tehsil Criminal Court or, in other words, investing jurisdiction in District Criminal Court which it does not enjoy under law. This aspect of the proposition is equally untenable as it was deeply considered while laying down the aforesaid rule. Moreover, it is to be kept in view that the appellate Court, unless otherwise expressly provided, has all powers to do what the lower or subordinate Court can do. It is undeniable that appellate Court is not divested of its inherent jurisdiction to try a case which is otherwise triable by its subordinate Court. B It is agreed that under section 25, sub-section (4) of the Act, all orders and decisions of Tehsil Criminal Court are-appealable and revisable by District Criminal Court. In presence of the revisional and appellate jurisdiction vested in District Criminial Court under the Act, it cannot be assumed, even for arguments' sake, that District Criminal Court is precluded from taking cognizance of an offence triable by Tehsil Criminal Court. This, of course, is to be considered in totality of the oposition raised in the present case and not in any other case as by allowrig this rule to prevail in ordinary cases, would result in overlapping of jurisdiction.
5. Mr. Abdul Khaliq Ansari, the learned counsel for the opposite side, argued that if it is accepted that District Criminal Court cannot take cognizance, in that case this Court is empowered to transfer the case from subordinate Court to District Criminal Court for its simultaneous trial with the counter-case and simultaneous decision in both cases by that Court, in exercise of its powers under section 526 of the Criminal Procedure Code. In support of this contention, reference was made to various authqities to be dealt with herein next. The argument was repelled by Mr. Basharat Ahmad Sheikh, who invited my attention to section 25(3) of the Act by pointing out that in presence of a specific provision for transfer of cases under the Act, in view of the provisions of section 32, subsection (2), this Court cannot fall back to the provisions of section 526, Criminal Procedure'',, Code, to transfer a case from one Court to another. I do not agree with Mr. Basharat Ahmad Sheikh that in present case section 526, Cr. P. C. Is not attracted totally as a specific provision relating to transfer of cases existe in the Act. Section 25(3) of the Act empowers this Court to transfer any case, for sufficient reasons, from one District Criminal Court to another District Criminal Court. But it is noticed that the Act contains no provision for transfer of a case from Tehsil Criminal Court to any other Court of competent jurisdiction. The power of transfer of a case from a subordinate Court neither vests in the District Criminal Court nor in the Shariat Court, under the Act. In absence of such specific provisions, High Court has to revert to the provisions of the Code of Criminal Procedure as suggested under section 32(2) of the Act, to transfer a case, on its satisfaction of one of the conditions under subsection (I) of section 526, Cr. P. C. Section 526, subsection (1), clause (e), Cr. P. C., lays down that whenever it is made to appear to the High Court that an order of transfer is expedient in the interests of justice, it may, under sub clause (ii) of clause (e), order that any case or appeal be transferred from a criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction. The requirement or condition precedent to an order of transfer of the case from a subordinate Court to another Court of equal or superior jurisdiction, is that a High Court or Shariat Court, as the case may be, is satisfied that transfer of the case or appeal is expedient in the interests of justice. The High Court or Shariat Court, therefore, must be satisfied that transfer of a case or appeal, as the case may be, pending in a subordinate Court, is essential to meet the end of justice. In absence of such condition, the provisions of section 526(1) clause (e) (ii) cannot be invoked. The proposition raised in the present case is squarely covered by the aforesaid test as it is even accepted by the learned counsel for the petitioners that it is quite fair, reasonable and in the interest of justice that both cases should be heard simultaneously and be decided by one Court to avoid conflicting decisions. In State v. Mushtaq and others and Muhammad Iqbal v. Mushtaq', decided by me on June 28, 1981, an identical situation was brought to my notice. In that case, both the parties received injuries in the fight but Shukkur Muhammad belonging to group of Mushtaq and others was killed. Both parties made report at the Police Station. The police presented challan against both the parties but challan in murder case was submitted in the District Criminal Court, whereas the counter-challan under sections 147, 148 and 149, Penal Code, read with sections 14 and 15, Islamic Penal Laws Act, was submitted in the Tehsil Criminal Court. In addition to the counter-challan, Muhammad Iqbal made a private complaint under sections 14 and 15 of the Islamic Penal Laws Act, in the Tehsil Criminal Court. Mr. Abdul Khaliq Ansari, who represented Muhammad Iqbal in that case, moved for transfer of case from Tehsil Criminal Court to District Criminal Court. The prayer was opposed by the oppostite side but in view of the dictum of the Supreme Court in Muhammad Sadiq's case (1), the challan and private complaint were transferred from Tehsil Criminal Court to District Criminal Court, with the direction that the challan in the murder case and the private complaint under sections 14 and 15 of the Islamic Penal Laws Act be tried simultaneously but separately and be decided by the District Criminal Court in the light of merits of each case. Khawaja Muhammad Yusuf Saraf, J. (as he then was), in Bostan and others' case, decided on October 9, 1974, also ordered transfer of a case from the Court of A. D. M. To the Sessions Judge so that both the cases arising out of a common occurrence, be disposed of simultaneously by one Court.
6. Mr. Abdul Khaliq Ansari the learned counsel for the respondent, invited my attention to various authorities of the Supreme Court and High Court in support of his view. In Shahid Ali's case (2), Mr. Justice Murshed, J. Recorded his view that whenever there was a case and a counter-case in respect of the same occurrence, it was desirable that they should be tried simultaneously by the same Judge. It was further held that the record of each case should be kept distinct and separate, the evidence on record of one case should not be used in connection with the other case and each case must be decided on its own evidence and record. The learned Judge came to the aforesaid conclusion by availing guidance from Krishna Pannadi v. Emperor (3), Banappa Kallappas Ajawan and others v. Emperor (4), Lakshminarayano v. Suryanarayana (5) and Ujagar Singh v. Emperor (6).
(1) PLD 1971 SC 713 (2) PLD 1962 Dacca 576
(3) AIR 1930 Mad. 190 (4) AIR 1944 Born. 146
(5) AIR 1932 Mad. 502 (6) AIR 1936 Lah. 356
7. The reasons listed above lead to the conclusion that the District Criminal Court having jurisdiction at the relevant time rightly took cognizance of offences described in the private complaint and proceeded with the trial in the counter-case, but at this stage when the jurisdiction of the Court has been taken away by amendment, this Court in exercise of powers under section 32(2) of the Act coupled with the provisions of sections 526 and 561-A, Criminal Procedure Code, directs that the private complaint should be heard and disposed of alongwith the counter-challan case. The trial in both cases shall be separate and the evidence recorded in each case shall confine to its decision and the judgment in both cases shall be pronounced simultaneously.
Moreover, as the proceedings in the challan case are nearing completion, the proceedings in the complaint case shall be completed by day-to-day hearing, so that decision in the challan case is not hampered by unnecessary delay in completion of the proceedings in the complaint case. The petition is disposed of accordingly.
PLD 1986 Shariat Court (A J & K) 124 prI : rt4 - 2-6-1986 33/1986 J. 01 csil-k".;
(a) Islamic Jurisprudence-- Benefit of doubt- alg Lrl yKY,i .5-1 ,A3 S.Fi )1/41 p.t. Lrl _pi (Sal u tt )I) - rat _ jsr our c.:44 er jSzz, .A4 1,1 v,31,fliT 1 L [p. 131]A [Benefit of doubt] - Ji4 1981 cO. j-11- 508 JAI 1983 - J4.1- L.4 157 Ji-t4 1982 a/ J.41 - L,4 19242-1'.), djlj 1983 - Jl - Ls0 251 c.6.4..a 1983 ref 300 jj.e 1956 al - -
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--S. 12- S vy..Tk, 144 )11-S.A.41), S.L.TA -- rx,4 91 01 C.11; '54 )11/44 34.F47 S r)L ct".11 [p. 132]B S
(c) Islamic Jurispundence-- Void and voidable acts- {{URDU TEXT}}
(d) Islamic Jurispundence- {{URDU TEXT}} {{URDU TEXT}}
(e) Islamic Jurisprundance-- Punishment, theory of- {{URDU TEXT}}
(f) Criminal Procedure Code (V of 1898)--S. 378-- {{URDU TEXT}} Do it whenever you find any loophole ; because it is better for the Imam (Judge) to err in acquittal than in conviction Tirmizi). {{URDU TEXT}} (If there is any possible way of doing it, save God's creatures from conviction and purishment.
(Ibni-Maja) {{ARBI TEXT}} (Ward off punishment with doubts. Masuad Abin Hanifa)
In a long letter to Malik Ashtar, the Governor of Egypt, Ali, the then Caliph of Islam wrote : "Keep at a distance him who pass into the weakness of others. After all, the masses are not free from weakness. It is the duty of the ruler to shield them. Do not bring to light that which is hidden, but try to remove those weaknesses which have been brought to light. God is watchful of everything that is hidden from you and He alone will deal with it. To the best of your ability, cover the weaknesses of the public, and God will cover the weaknesses in you which you are anxious to keep away from their eye select for your Chief Justice .................. One who will not decide before kning full facts, one who will weigh with care every attendant doubt and pronounce a clear verdict after taking everything into full consideration." {{URDU TEXT}}
(h) Islamic Jurisprudence- -Witness- {{URDU TEXT}}
(i) Islamic Jurisprudence---Witness- {{URDU TEXT}} r
(j) Islamic Jurisprudence----Evidence-- {{URDU TEXT}} [p. 201]Q
(k) Islamic Jurisprudence--Tazkia Ashahood- {{URDU TEXT}}
(f) Qamm-e-Shahadat Order (10 of 1984)- --Art. 17(2)(9)- {{URDU TEXT}}
(g) Islamic Jurisprudence--Qazi, appointment of - {{URDU TEXT}} {{URDU TEXT}}
(b) Islamic Jurisprudence- --Zina {{URDU TEXT}}
(c) Islamic Jurisprudence---Witness- {{URDU TEXT}}
(d) Islamic Jurisprudence- - -Witness- {{URDU TEXT}}
(e) Islamic Jurisprudence---Witness- {{URDU TEXT}} {{URDU TEXT}} ALL PAKISTAN LEGAL DECISIONS HIGH COURT OF AZAD JAMMU AND KASHMIR