' S. Z. CHOUDRI, J.--On completion of investigation accused appelllant due to nonavailability of number of eye-witnesses as required under Section 26(1) of the Islamic Penal Laws (Enforcement)
Act (hereinafter referred to as an Act) was forwarded to stand his trial for the offence under Section 302, P.C. In the Court of Sessions Judge, Mirpur. During the pendency of the trial evidence of majority of the prosecution witnesses had been recorded when through an amending Ordinance dated 8-4-1987 subsection (2) of section 24 of the Act stood deleted. The controversy then arose as to whether, in view of the new amendment, the case was still triable in the Court of Sessions Judge or that it was to be tried by the District Criminal Court Mirpur. After hearing the parties, the learned Sessions Judge vide his order dated 16-6-1987 transferred the case to the District Court of Criminal Jurisdiction for trial as the Court of Sessions Judge, Mirpur, in his estimation, had no jurisdictional competence to continue with the trial after the amendment. After the case had been transferred, an application was moved on behalf of the accused-appellant on 11-7-1987 claiming therein that the case be tried afresh as according to him all the proceedings taken in it by the learned Sessions Judge stood vitiated and the accused was to be examined afresh under section 342, Cr.P.C. By the District Criminal Court. The District Criminal Court, Mirpur after hearing the counsel for the accused-appellant held that the trial was to continue from the point left of by the learned Sessions Judge. The Court therefore dismissed the application on 28-11-1987.
2. Feeling dissatisfied by the order of dismissal passed on his application by the District Criminal Court on 28-11-1987, the accused-appellant has now challenged the validity of this order by way of appeal. Mr. A.K.Ansari, learned counsel for the accused-appellant argued that since the amendment effected in section 24 of the Act was merely procedural, it had retrospective operational effect. Since the District Criminal Court is composed of two members, one the Sessions Judge while the other is the learned District Qazi, the proceedings taken thus in the case by the learned Sessions Judge alone, were therefore a nullity in the eye of law and the trial had to start de novo in the case before the District Criminal Court which means from the stage of examination of the accused-appellant under section 342, Cr.P.C. The impugned order for having been passed contrary to law and being violative to the Rules relating to interpretation of statute was therefore not maintainable, contended the learned counsel. In support of his arguments the learned counsel placed reliance on 1983 P Cr. L J 276, PLD AJ&K (Shariat Court) 16, PLD 1983 AJ&K (Shariat Court) 3 and PLD 1987 AJ&K (Shariat Court) 106).
3. As against this, Mr. B.A. Sheikh, the learned counsel for the complainant argued that the amendment under consideration was not merely procedural but also affected the substantive provisions of law. It could not therefore be taken as having retrospective operational effect. Any amendment affecting substantive provisions of law unless expressly providing otherwise would he taken as prospective in operation. Neither the order passed by the learned Sessions Judge transferring the case to the District Criminal Court was in accordance with law nor the arguments relating to the proceedings advanced on behalf of the accused-appellant had any substance. The appeal having no substance was, according to the learned counsel, therefore not maintainable.
4. We have heard the learned Counsel for the parties and have given our careful thought to the points canvassed on their behalf. The amendment brought about in section 24 of the Act, from the very nature of it, is not merely procedural but affects the substantive provisions of law. The case due to non-availability of the number of eye-witnesses as required under section 26(1) of the Act, was put up for trial before the Court established under the Code of Criminal Procedure for an offence under the Penal Code as required under subsection (2) of section 24 of the Act. The trial in a murder case under the Act however is, to be conducted by a Court set up under the Act consisting of two members, one the Sessions Judge and the other District Qazi. The punishments and the penalties prescribed in case of conviction for the offence of murder under section 5 of the Act were altogether different than those which could be awarded by the Sessions Juge in a trial conducted in the Sessions Court. Besides, there is a difference in respect of rules of evidence and right to compromise etc. It is thus clear that the case if transferred from the Court of Sessions Judge to the District Criminal Court, not only the forum of trial would be different but the law relating to the offence and the kinds of punishment that could be awarded in case of conviction by the District Criminal Court would be wholly different. In this view of the matter, it cannot therefore be said that the amendment in section 24 of the Act being merely procedural had the retrospective effect. It is, in our view, a change which affects substantive provisions of law. This being so, the proceedings already initiated prior to and still pending at the time of amendment would not therefore be affected by the new development in the shape of amendment. Section 6 of the General Clauses Act is a provision applicable in the case. Besides the amendment, as already stated in the earlier part of this judgment, from the very nature of it effects substantive provisions of law could not be regarded as having retrospective operational effect. The proposition came to be considered in State v. Sahib Dad, PI,D 1981 (Azad J&K) 88 and it was held that subsection (2) of section 24 of the Act was not only procedural in nature but found to be affecting substantive provisions of law. It was therefore held to have prospective operation. It was a case wherein accused was facing trial in a murder case before the District Criminal Court. During the pendency of the trial through an amendment subsection (2) of section 24 of the Act was substituted. The newly substituted subsection provided that during the investigation in a murder case if number of eye-witnesses as required under section 26(1) of the Act was not available, the accused was to be challaned under section 302, P.C. And to be tried in the Court of Sessions Judge. The controversy between the learned members constituting the District Criminal Court arose on the point whether the trial was to be continued by the Court or that the case after the newly amended subsection (2) was triable in the Court of Sessions Judge. On a reference made to the High Court, it was held that the new amendment was not only procedural but affected substantive provisions of law. It was therefore to operate prospectively. The reference was answered by the High Court in the terms that the District Criminal Court was to continue with the trial as the new amendment would not affect the proceedings initiated prior to the amendment and pending at the time.
5. We have carefully gone through the reports of the cases referred to by the learned counsel for the accused-appellant. In 'Abrar Hussain Shah v. State' PLD 1987 Sh.C. (AJ&K) 106 the proposition came to be considered in the following circumstances. The accused-appellants in that ease were forwarded to stand their trial for the offence of murder in the District Criminal Court Mirpur. The challan required to be presented before the District Criminal Court in that case was found to have been entertained by the learned Sessions Judge alone. Again, examination of the accused under section 342, Cr.P.C. Was found to have been conducted by a Single Member i.e, the learned Sessions Judge alone. Rest of the trial i.e, recording of the evidence and examination of the accused under section 342, Cr.P.C. Was found to be in accordance with law. After hearing the arguments, the District Criminal Court realized that some of the proceedings referred to above were conducted by the learned Sessions Judge alone. On reference made by the trial Court, the defects or lacuna in the conduct of the trial, in the estimation of the learned Chief Justice of the Shariat Court being of a technical nature, was an irregularity curable under section 537, Cr.P.C. And it did not affect the trial. This finding was then challenged by the accused by way of appeal before the Supreme Court. It was held that the examination of the accused by a Single Member vitiated the whole trial and such a defect was not merely an irregularity curable under section 537, Cr.P.C.
The District Criminal Court is constituted by two Members, one the Sessions Judge and the other the District Qazi. Anyone of them sitting alone was held would not constitute the District Criminal Court. It was in the light of this judgment of the Supreme Court of Azad Jammu and Kashmir that the learned counsel for the accused appellant contended while arguing the case that the trial was to start afresh from the point of examination of the accused under section 342, Cr.P.C. By the District Criminal Court. Same was the principle enunciated in PLD 1984 (Shariat Court) AJ&K 16, PLD 1983 (Shariat Court) AJ&K 3 and PLD 1986 Sh.C.(AJ&K)
143. According to the learned counsel for the accused-appellant, in a case where there are women witnesses, the rules for recording their evidence under the Act in a trial conducted by the District Criminal Court are entirely different than those applicable in a trial before a Court set up under the Code of Criminal Procedure.
6. We have given our deep thought to the principle enunciated in all these cases referred by the learned counsel for the accused-appellant. We have no quarrel with the principle enunciated in those cases as such. The question however that needs to be taken note of is that the lapse in the conduct of the trial was committed during the proceedings by one of the Members constituting the Court. There was no dispute as regards the jurisdictional competence of the District Criminal Court.
The point in dispute rather was that the proceedings taken in the case by the learned Sessions Judge alone were of no legal effect because acting alone he did not constitute the District Criminal Court. The principle therefore would only have the relevancy in the case now under consideration if the competency of the forum holding trial is not. Under challenge. In the instant case, as already stated in the earlier part of this judgment, the amendment had no retrospective operational effect.
The proceedings in the case pending in the Court of the Sessions Judge were therefore not affected and the trial was to continue in the Court of Sessions Judge. Since, the order of transfer passed by the learned Sessions Judge has been held contrary to law, the District Criminal Court had no jurisdictional competence to proceed with the case. In this view of the matter, the authorities referred to and relied upon by the learned counsel for the accused-appellant are found to be of no assistance and have no application in the present case. The arguments on the point addressed by Mr. A.K.Ansari, learned counsel for the accused-appellant having no substance, therefore stand rejected.
7. For the foretasted reasons, we find no force in the appeal, it therefore stands dismissed.
AZAD J & K HIGH COURT