' SARDAR SAID MUHAMMAD KHAN, J.--This appeal has been directed against the judgment of the Shariat Court dated 28-1-1989, whereby the appeal filed by the appellant, herein, against the judgment of the District Criminal Court was dismissed as being incompetent.
2. The brief facts giving rise to the present appeal are that a case was registered against the respondent under sections 10,'11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, (hereinafter shall, be referred as Ordinance) and was subsequently tried by the Tehsil Criminal Court Dudyal. The respondent was acquitted of the charge under section 10 of the Ordinance but was convicted and sentenced for the offences falling under sections 11/16 of the Ordinance and sentenced to rigorous imprisonment; he was awarded 3 rpnths' rigorous imprisonment and was also fined Rs, 500 on each count. Two appeals were preferred to the District Criminal Court against the aforesaid judgment of the trial Court, one by Muhammad Ayub complainant against the order, of acquittal of respondent under section 10 of the Ordinance and enhancement of the punishment awarded to the respondent under section 11/16 of the Ordinance was also sought; the other appeal was filed by Abdul Khaliq respondent against his conviction under sections 10 and 16 of the Ordinance. The District Criminal Court disposed of both the aforesaid appeals by a single order, whereby the appeal filed by respondent, Abdul Khaliq, was accepted and that of Muhammad Ayub was dismissed. Consequently an appeal against the judgment of the District Criminal Court was preferred to the Shariat Court by the appellant. The learned Judges of the Shariat. Court dismissed the appeal on the ground that an appeal against the order of acquittal, in view of the provisions contained in section 25(2) of the Ordinance could be preferred only by the State and not by a private party.
3. We have heard the arguments and perused the file. It has been contended by Mr.Noor-ul-Amin the learned counsel for the appellant that the Shariat Court has taken an erroneous view of the statutory provisions contained in the Islamic Penal Laws Enforcement Act, 1974. He has contended that the aforesaid Islamic Penal Laws Act is a self-contained Code which does not stipulate any restriction that an appeal in case of acquittal is competent only by the State and not by a private party. The learned counsel argued that initially when the Islamic Penal Laws Act was promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court the State may direct the Public Prosecutor to file an appeal but subsequently that provision was dropped through an amendment and the provisions presently contained in section 25 of the Islamic Penal Laws Act do not make any distinction between the right of appeal against an order of acquittal or conviction. He has contended that even before the amendment whereby the provisions regarding the appeal against the order of acquittal by the State was dropped, there was no bar for the complainant or any aggrieved person to prefer an appeal against, an order of acquittal. Thus the doubt, if any, regarding the right of appeal of private person was removed by the Legislature after dropping the said provisions from the statute book. He has argued that the provisions contained in section 32 of the Islamic Penal Laws Act or section 417, Cr.P.C. Would not be attracted in the instant case, because the provisions regarding preferring an appeal against the{{URDU TEXT}} judgment of the District Criminal Court make no distinction between an order of conviction and an order of acquittal. The right of appeal is against the of the Court. He has further contended that when the appeals were preferred against the judgment of Tehsil Criminal Court before the District Criminal Court, the state of law was that even in case of acquittal by the Tehsil Criminal Court, the appeal was competent to the District Criminal Court and not to the Shariat Court as was subsequently envisaged through an amendment. Thus the learned counsel maintained that the appeals one by the complainant and other by the respondent were pending in the District Criminal Court when the law was amended and it was provided that in case of acquittal by the Tehsil Criminal Court the appeal would lie to the Shariat Court and not the District Criminal Court. He has contended that in view of section 6 of the General Clauses Act, the District Criminal Court continued to enjoy the jurisdiction to hear the appeals. The amendment during the pendency of the appeals could not affect the legal proceedings and the District Criminal Court continued to possess the jurisdiction to decide the same in view of the provisions contained in section 6 of the General Clauses Act.
4. The learned counsel further argued that so far as the competency of appeal by the complainant to this Court is concerned, the same is competent in view of the provisions contained under section 42(2) of the Interim Constitution Act of 1974 which envisage that the appellate jurisdiction could also be invested in this Court by any other law. Thus the learned counsel has argued that by virtue of the provisions contained in section 25 of the Islamic Penal Laws Act, an appeal is competent to this Court against the judgment of the Shariat Court, irrespective of the fact that the same was against an order of conviction or acquittal, because the provision of the Code of Criminal Procedure are not applicable to this Court.
5. In reply the learned counsel for the respondent has argued that as section 25 does not specifically visualise that in case of acquittal a private party is competent to prefer an appeal, the provisions of section 417 Cr.P.C. Were rightly resorted to by the Shariat Court under section 32 of the Islamic Penal Laws Act, 1974, which says that if there is no clear provision in the Islamic Penal Laws Act, pertaining to a particular matter, the provisions contained in the Code of Criminal Procedure would apply to cases tried under the Islamic Penal Laws Act.
6. I have given my due consideration to the arguments raised at the Bar. The first point which needs to he resolved is as to whet her the appeals filed by the complainant and the respondent in the Shariat Court were competent. There is no dispute that at the relevant time section 25 of the Islamic Penal Laws Act, 1974, was not amended and appeal against the order of acquittal was competent to the District Criminal Court. The aforesaid appeals were pending in the District Criminal Court when the law was amended and a provision was incorporated that the appeal against the order of acquittal passed by the Tehsil Criminal Court. The question as to whether the amendment in the law regarding the forum had affected the appeals which were pending in the District Criminal Court. It may be observed that the right of appeal is substantive right and the same cannot be regarded as a right of procedural nature. Until and unless such right is taken away retrospectively, it would not affect the jurisdiction of the Court to dispose of an appeal according to law which was on the statute book before the amendment. A reference may be made to the case reported as Ghazi and others v. The State and another PLD 1962 Lah. 662, wherein it was observed that a right of appeal existing on a day on which a proceeding or lis commences or prosecution is lodged, is a vested right and that right is governed by law prevailing on the date of its decision; this vested right can be taken away only by subsequent enactment, which provides expressly that the provisions would operate retrospectively. Identical view Was expressed in cases reported as Jamshed Ahmed Khan v. Aurangzeb Khan' PLD 1964 Pesh. 250 and Hakim Muhammad Zaki v.
Rehabilitation Commissioner, Hyderabad and others PLD 1962 Kar.
285.
7. I am in respectful agreement to the views expressed in the aforesaid authorities and hold that the amendment during the pendency of the appeals in the District Criminal Court did not debar the District Criminal Court to decide the same.
8. The next question which falls for determination is as to whether in view of the provisions contained in. The Islamic Penal Laws Act, 1974, as amended from time to time, an appeal in case of acquittal is competent only by the State to the District Criminal Court, Shariat Court or to this Court or the complainant has also right to file an appeal against the order of acquittal. For appreciating the point involved it would be expedient to reproduce the relevant provisions contained in Islamic Penal Laws Act, 1974, and the amendments made therein from time to time regarding the matter in the controversy. The provisions are as under:-- {{URDU TEXT}} {{URDU TEXT}}
9. Subsequently, the provisions incorporated in section 25 of the Islamic Penal Laws Act were again amended as under:- {{URDU TEXT}}
10. It may be observed here that initially there existed no Tehsil Criminal Courts or the Shariat Court and thus the appeals and revisions etc. Against the judgment of the District Criminal Court were competent to the High Court. However, subsequently, on the establishment of the said Courts, the law was amended from time to time and provisions were made in section 25 of the Islamic Penal Laws Act regarding the appeals and revisions to the District Criminal Courts, Shariat Court and this Court. Subsections (1) and (2) of section 25 were substituted as under:- {{URDU TEXT}} {{URDU TEXT}}
11. A comparative study of the above provisions would reveal that neither in section 25, as originally worded, nor in any subsequent amendment the right of appeal of a private party was non-existent.
No distinction was ever made between the right of appeal in case of an order of conviction and an order of acquittal. There was no provision that the right of appeal against an order of acquittal was only available to the State and not to a private person. Even after making the amendments, as contained in subsection (2) of section 25, it was not laid down that the appeal against an order of acquittal could only be filed by the State and not by the complainant. It may be observed that the phraseology used in subsection (2) of section 25 after the amendment was in the following terms:- {{URDU TEXT}} ' Subsection (2) of section 25 reproduced above does not stipulate that appeal against an order of acquittal passed by the Tehsil Criminal Court could only be preferred by the State. It only envisages that appeal against an order of acquittal would be preferred to the Shariat Court within six months.
No amendment was made in subsection (1) of section 25, because appeal against an order of acquittal of the District Criminal Court already lay to the Shariat Court. In other words amendment made in section 25 of the Islamic Penal Laws Act did not take away the right of a private party to file an appeal against an order of acquittal; only forum of appeal was changed from District Criminal Court to Shariat Court. It may be observed that an amendment in section 25 of the Islamic Penal Laws Act was made whereby the original provision that an appeal against the order of acquittal could be filed by the Public Prosecutor on the direction of the Government was dropped and thus ambiguity, if any, was removed.
12. Had the legislature intended that in case of acquittal by any of the Courts established under the provisions of the Islamic Penal Laws Act the right of appeal would be available only to the State, it would have specifically said so.
13. It follows from what has been stated above that the complainant or any other aggrieved person has right of appeal against an order passed by the Tehsil Criminal Court, the District Criminal Court or the Shariat Court, irrespective of the fact whether the same was an order of 'acquittal' or 'conviction'.
14. It is settled principle of law that while interpreting a statute the words and phrases should be assigned ordinary dictionary meanings unless they are defined in the relevant statute. The plain reading of section 25 of the Islamic Penal Laws Act cannot be interpreted to place an embargo on the right of a private party to file an appeal against an order of acquittal. The argument advanced by the learned counsel for the respondent that as there is no specific provision in section 25 giving right to a private party to file an appeal, provisions contained in section 417 Cr. P.C. Are to be resorted to, is not tenable in view of the fact that section 25 of the Islamic Penal Laws Act is comprehensive enough and gives right of appeal to a private party irrespective of the fact whether the order is that of conviction or acquittal.
15. So far as the appeal against the order of the Shariat Court to this Court by a private party is concerned it may be observed that under section 42 (2) of the Interim Constitution Act, the same can also be conferred by any other law. As has already been stated above that section 25 of the Islamic Penal Laws Act invests this Court to exercise appellate jurisdiction against an order of the Shariat Court irrespective of the fact that the order was that of acquittal or conviction, the provision of the Code of Criminal Procedure does not apply regarding the appellate jurisdiction of this Court and thus any reference to section 417, Cr. P.C. Is not relevant. A reference may be made to a case Siraj Din v.Kala and another PLD 1964 SC 26 wherein it has been held that provisions of Cr. P.C. Do not apply to proceedings in the Supreme Court.
' In the light of what has been stated above, I accept the appeal, set aside the judgment of the Shariat Court and remand the case back to the Shariat Court with the direction that it shall re-hear the arguments on merits and decide the appeal according to law.
' RAJA MUHAMMAD KHURSHID KHAN, C.J.--I have had the advantage of going through the judgment recorded by my learned brother Mr. Justice Sardar Said Muhammad Khan.
' After giving my dispassionate thought to the finding recorded by the learned Judge, despite profound respect which I have for the learned Judge, I could not persuade myself to agree with the learned Judge that the appeal against the judgment of the Tehsil Criminal Court to the District Criminal Court and thereafter to the Shariat Court, to question the acquittal of Abdul Khaliq, respondent herein, for an offence under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance (hereinafter to be referred as the Ordinance), could competently be rolled in by the complainant or a private party under the relevant provisions of Islamic Penal Laws (Enforcement)
Act, 1974.
16. It will be an exercise in futility to narrate the facts of the case which have fairly been recapitulated in the order passed by my learned brother.
17. The important question involved and posed is as to whether under the provisions of section 25(2) read with section 32(2) of the Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter to be referred as the Act), an appeal against the acquittal order recorded by the Tehsil Criminal Court to the District Criminal Court and by the District Criminal Court to the Shariat Court could competently be lodged by the complainant, namely, Muhammad Ayub, appellant herein.
' To have a view of the matter in its true perspective, the provisions in the Act, as amended from time to time, need to be reproduced. The provisions initially enacted are as under:- {{URDU TEXT}} ' Thereafter, section 25 of the Act was amended as under:-- {{URDU TEXT}} {{URDU TEXT}} ' After some time again subsections (1) and (2) of section 25 of the Act were substituted as under:- - {{URDU TEXT}} ' It it obvious that the controversy is to be resolved on the basis of the above provisions of the Act.
18. Mr. Noor-ul-Amin, the learned counsel for the appellant, has contended that the Act is a self- contained Code. Section 25 of the Act admits of no restriction that an appeal in case of acquittal is competent only by the State and not by a private party. The learned counsel also argued that initially when the Act was promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court the State may direct the Public Prosecutor to file an appeal to the High Court but subsequently that provision was changed through an amendment and the relevant provision now contained in section 25 of the Act does not make any distinction in the right of appeal against the order of acquittal or conviction. In his view the provision contains no bar for the complainant to lodge an appeal. In the circumstances, he contended, the provisions contained in section 417 of the Code of Criminal Procedure have no bearing on the facts of the instant case. He further argued that the appeal to this Court is competent in view of the provisions contained under section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which reads:-- " Subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law." and stipulates in clear terms that the appellate jurisdiction could also be invested in this Court by any other law and since an appeal is competent to this Court against the judgment of the Shariat Court irrespective of the fact that the same was against the order of acquittal or conviction, the provisions of the Code of Criminal Procedure cannot be attracted in regard to appeal to the Supreme Court.
' Mr. Muhammad Yunus Surakhvi, the learned counsel appearing on behalf of respondent, has countered the argument advanced on behalf of the appellant and contended that section 25(2) of the Act does not specifically visualise that in case of acquittal, the private party is competent to prefer an appeal, therefore, the provisions of section 417, Cr.P.C., were rightly made applicable by the Shariat Court within the meaning of section 32(2) of the Act which says that if there is no clear provision on a particular matter in the Act, the provisions contained in the Code of Criminal Procedure would apply to cases tried under the Act.
19. I have considered the arguments and am of the view that the argument addressed at the Bar by the learned counsel for the appellant that the appeal before the Supreme Court by the complainant or any other aggrieved party is competent has substance. The Supreme Court, under the provisions of section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is clothed with the jurisdiction as is or may be conferred on it by the Constitution Act or by or under any law. Since an appeal is provided to the Supreme Court against the judgment of the Shariat Court against an order of acquittal and conviction, the provisions of the Code of Criminal Procedure cannot be att cted in regard to the appeals to the Supreme Court. I agree with the learned dge that in view of this statement of law, the appeal under the Interim Constitution Act to the Supreme Court against an acquittal or conviction order is even competent by the complainant or any other aggrieved party.
20. Coming to the question as to whether the complainant or a private person is competent to call in question the acquittal order passed by the Tehsil Ciiminal Court or the District Criminal Court, it may be stated that there is no cavil that at the relevant time when section 25 of the Act was amended, an appeal against the order of acquittal was competent to the District Criminal Court.
The aforesaid appeal was pending in the District Criminal Court when the law was amended to contain the provision that the appeal against the order of acquittal passed by the Tehsil Criminal Court, would be competent before the Shariat Court. I agree with the learned Judge that the right of appeal is a substantive right and the same cannot be regarded as a right of procedural nature.
Until and unless such right is taken away retrospectively, it would not affect the jurisdiction of the Court to dispose of the appeals pending at the time of amendment according to law which was on statute book before the amendment. This view we have in Ghazi v. The State PLD 1962 Lah. 662, Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions PLD 1962 Kar. 285 and Jamshed Ahmad Khan v. Aurangzeb Khan PLD 1964 Pesh.
250.
' I am in complete agreement with the statement of law in the aforesaid authorities and hold that during the pendency of appeal, the amended law did not C debar the District Criminal Court to decide the acquittal appeals which had been lodged on the basis of the unamended law.
21. The important question which still faces us and calls for determination is as to whether in view of the provisions contained in the Act, as amended from time to time, an appeal in case of acquittal order recorded by the Tehsil Criminal Court, District Criminal Court or the Shariat Court is competent only by the State or the complainant or any other aggrieved person is also eligible to move such an appeal.
I have already held that the appeal to this Court, by the complainant, is competent as the provisions of the Code of Criminal Procedure do not apply in regard to appeals to the Supreme Court. I am, however, of the considered view that the appeal by the complainant or any other aggrieved party to the District Criminal Court or the Shariat Court is not competent against the order of acquittal as under the provisions of section 25(2) read with section 32(2) of the Act, it is only the State which can lodge such an appeal. It is, of course, correct that under the amended section 25(2) of the Act referred to above an order of acquittal passed by the Tehsil Criminal Court has been made appealable before the Shariat Court within six months from the date of passing of the order but in my view this provision simply determines the right to and forum of appeal against the acquittal order and it in no way determines the competency of persons to lodge such appeals.
The law under the Code stipulates that when the Act fails to provide for any specific matter, section 32(2) of the Act which reads:- {{URDU TEXT}} comes into play and matter would be governed by the relevant provisions of the Code of Criminal Procedure. It is to be noticed that section 25 of the Act is silent about the persons competent to move an appeal against the order of acquittal. Therefore, we have to fall back upon the provisions of section 32(2) of the Act and switch on to the relevant provisions of the Code of Criminal Procedure for the purpose of determination of the above question.
' To attain clarity in the matter, I may, with advantage, here again reproduce the relevant of provisions of the Act and that of the Code of Criminal Procedure.
Section 25 (2) of the Act reads as under:- {{URDU TEXT}} Section 32(2) of the Act runs as under:- {{URDU TEXT}} ' The combined reading of both the sections of the Act leaves no ambiguity that when a matter is not provided for under any provisions of the Act, the same is to be resolved under section 32(2) of the Act.
' Section 417(1) of the Code of Criminal Procedure enacts as under:-- " Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.; ' It would appear that under section 417(1) of the Code of Criminal Procedure in case of appeal against an order of acquittal not only the forum to which it would lie but also the person who is entitled to file it has been specifically mentioned. Unlike the provisions contained under section 417(1), Cr. P.C., section 25(2) of the Act, as said elsewhere, only determines the right to appeal and forum to which an acquittal appeal is competent. Thus, the person eligible to lodge an appeal not having been determined, is left open. This omission, however, is clarified, cured and governed under the provisions of section 32(2) of the Act which, inter alia, allows application of the provisions of section 417(1), Cr.P.C., under which the Government alone has been conferred the right to move an appeal against the order of acquittal. If section 25(2) of the Act is construed to mean that any person has the right to go in appeal against the order of acquittal, then any person can also file an appeal against the order of conviction under subsection (1) of section 25 of the Act irrespective of the fact whether he is or is not a convicted person in the case. This conclusion would not sound reasonable because no person other than the one who has been convicted in a case has a right to prefer an appeal against such a conviction which is an undisputed legal position under the provisions of sections 407, 408 and 410 of the Code of Criminal Procedure, according to which only a person convicted has been given right to I prefer an appeal to the competent Court.
22. It admits of no doubt that the basic principle of interpretation of law is that words are not to be employed in a statute if there is no ambiguity. No doubt, at times absurdity or anomaly, if any, may be removed by applying some words to fulfil the intention of the law-makers but such a situation is not available here. I agree with the learned Judge that neither under section 25 of the Act, as originally worded nor in any subsequent amendment the right of appeal of a private party is barred by express words. I also agree that there is no distinction between the right of appeal in case of order of conviction and order of acquittal. But the legal position is that the provision [section 32(2) of the Act] is clear on the issue which says that when the right of appeal is not given under any provision I of the Act, the same omission is to be met or cured- under the provisions of section 32(2) of the Act.
23. My learned brother is to the view that initially section 25(2) of the Act only stipulated that State could be directed to file an appeal within six months and the amendment later on made did not take away the right of a private party to file appeal against the order of acquittal, as only forum of appeal was changed from the District Criminal Court to Shariat Court.
' I am afraid, I cannot agree with.The learned Judge. The provision prior to the amendment only stipulated that it was State's prerogative and privilege to lodge an appeal. The State, thus, was at liberty to exercise such a right or decline to do so. The word "may" connotes the discretion and prerogative of the State to exercise the discretion which discretion the State may or may not exercise. But if the State decides to exercise the discretion, then the Public Prosecutor could be directed to lodge an appeal. Thus, this provision can in no way be interpreted to mean that it also conferred powers on a private party to lodge an appeal; it rather excluded the right of a private party to lodge an appeal which right had only been allowed to the State and none else. Therefore, my view is that under the provisions of subsections (1) and (2) of section 25 of the Act, the complainant or any other party has no right of appeal against the order of acquittal or conviction.
24. It is to be remembered that omission in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular word is omitted from there terms of a statute, even though such a word is within the obvious purpose of the statute, the Court cannot include the omitted word by supplying the omission. This is equally true where the omission was due to the failure of the Legislature to foresee a missing case. To permit the Court to supply the omission in a statute would constitute an encroachment upon the field of Legislature and naturally such a recourse is not permissible and should always be avoided.
25. In the instant case since there is nothing in section 25 of the Act that the complainant is competent to lodge an appeal, if we allow the word "complainant" to be employed in section 25, it would positively amount to enact law which would be construed as an encroachment upon the field of Legislature, especially, when such an omission can be rectified under section 32(2) of the Act.
26. I am not oblivious of the fact that in some cases it has been held that it is the intention of the Legislature which constitutes the law and since the primary purpose of construction is to ascertain that intention such intention should be given effect even if it necessitates the supplying of omissions, provided of course, that this effectuates the legislative intention. Some decisions seem to indicate a trend in this direction and allow words omitted by oversight to be supplied if the statute is otherwise meaningless. Turner v. State (40 Ala 21) owns this view. But here, as said earlier, the statute's meaning is clear and explicit in view of the provisions of section 32(2) of the Act which clearly enacts that where something is missing or omitted in the Act on a particular matter, we have to fall back on the provisions of the Code of Criminal Procedure and the Pakistan Penal Code within the meaning of section 32(2) of the Act. Therefore, where the statute's meaning is clear and explicit the words cannot be interpreted. Smith v. State 66 Mad. 215 owns this view.
27. The intention of the Legislature can be ascertained after reading the statute as a whole and this is always a safer rule to follow. To this rule of interpretation all others are subordinate. The Commissioner of Income-Tax v. Messrs Hossen Kasam Dada PLD 1961 SC 375 owns this view. In this case it has been observed:-- " We would have thought that the conventional method of ascertaining the intention of the Legislature after reading the statute as a whole was more likely to lead to the discovery of its true intent and is always a safer rule to follow."
In view of the above state of law, to get at the intention of law-makers, it would be necessary to read section 25(2) along with section 32(2) of the Act. This is important because section 25 does not employ the words "complainant" or "State" and this omission creates an uncertainty in regard to the person's competency to lodge an appeal against acquittal and the omission is fairly treated and resolved under the provisions of section 32(2) of the Act.
One of the important rules of interpretation of statute is that every word used in the statute is intended to have some effect and no word is to be considered as superfluous or redundant. This statement of law we find in MA. Khuhro v. The Federation of Pakistan PLD 1950 Sindh 49. It has been observed in that case:-- "....One of the rules of interpretation of the statute is that every word used in the statute is intended to have some effect and be of some use and no word is to be considered as superfluous or redundant."
28. It is also important that while interpreting a statute the Court should presume that no part of it was intended to be meaningless and that the provisions of a statute could not have been intended to operate against each other. Therefore, the Courts lean against construction which would make some words unnecessary in the statute. Model Industries v. Rambhau Narain Patil AIR 1946 Nag.
152 owns this view. It has been held in this case that "Courts lean against constructions which make words unnecessary in Acts of Parliament".
29. My learned brother Mr. Justice Sardar Said Muhammad Khan has employed the word "complainant" in section 25 of the Act, which is not permissible. The law is that a Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four corners of the Act itself. Our duty is neither to add to nor to take from a statute anything unless there are good grounds for thinking that Legislature intended something which it fails precisely to express. Where no such inference is possible, words cannot be added in the provisions of the statute. It is not permissible to make addition or alteration or restore casua omissus in the statute without a suitable amendment. This view prevailed in Dad Muhammad Khan v. Bassa PLD 1965 (W.P.) Lah. 77 and Khizar Hayat v. The Commissioner, Sargodha Division PLD 1965 (W.P.) Lah.
349.
In Dad Muhammad Khan v. Bassa PLD 1965 (W.P.) Lah. 77 it has been observed:-- "A Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four corners of the Act itself. Its duty is neither to add to, nor to take from a statute anything unless there are good grounds for thinking that the Legislature intended something which it has failed precisely to express."
' In Khizar Hayat v. The Commissioner, Sargodha Division PLD 1965 (W.P.) Lah. 349, it has been held that the Courts cannot extend a statute to meet a case for which provision has clearly and undoubtedly not been made. The Courts have no power to fill the gaps in a statute.
The reason at the back of the rule of casua omissus is found in the principle that if the Court attempts to supply that which the Legislature has omitted, there is considerable danger that it may invade the legislative field. It is not easy to determine whether the omission was intentional or not and where it was inadvertent, an attempt to supply the omission by including the omitted case generally would operate to add to a statute a meaning not intended by the Legislature, for, how can it be said that the law-makers intended to include something omitted. It would seem that the only time the omitted case might be included within the statutes operation, would be when the Legislature intended to include it but actually failed to use language which would, on its face, cover the omitted case. The inclusion would be justified if from the various intrinsic and extrinsic aids, the intent of the Legislature to incorporate the omitted case, could be ascertained with a reasonable degree of certainty but not otherwise. Naturally this case is not visited by such an eventuality.
Besides, since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting the statutes. In the instant case I do not find any good ground to add the word "complainant" in section 25 of the Act in view of the provisions of section 32(2) of the Act.
30. I have discussed some ways by which the meaning of statutes are to be ascertained. The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject-matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the legislative intent is still obscure, it is proper for the Court to consult the several extrinsic matters for further assistance and during the consideration of the various sources of assistance, further help may, of course, be found in the use of the numerous rules of construction.
31. Before I part with the case, I would like to narrate the general principles of interpretation stated by the Supreme Court of Pakistan in a Reference by the President under the defunct Constitution of 1956 PLD 1957 SC 219. The Supreme Court stated the general principles of interpretation and said:- - "(1) The first object of the Court to discover the intention of the author and that such intention is to be gathered from the words used in the statute of document.
(2) The second rule is that the intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to start with some a priori idea of that intention and to try by construction to wedge it into the words of the statute.
(3) The third rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made.
(4) The fourth rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other part of the statute to which it may properly apply.
(5) The fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and the people adopting it.
(6) Another elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the constitution. Hence as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.
(7)The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected, and a constitutional provision or a phrase to a constitutional provision must be read in connection with the context. Nosciture a Sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a constitution must be construed with regard to the remainder of the instrument and to the express intent of the constitutional convention in adopting it.
(8) If there be any apparent repugnancy between different provisions, the Court should harmonize them if possible. The rule of construction of constitutional law requires that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each."
It would appear that one of the cardinal principles of interpretations is that: the law should be interpreted in such manner that it should rather be saved than destroyed. The law including the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the presumption should be that no conflict or repugnancy was intended by the framers. In interpreting the words of an Act actual words used in fact throw light about the intention of the law-makers and the other parts of the statute.
32. In the instant case section 25 of the Act is to be read in relation to the provisions contained under section 32(2) of the Act. Since under section 25, the right of appeal and forum before which the appeal is competent against an order of Tehsil Criminal Court and the District Criminal Court is only created, the persons eligible to move an appeal are to be ascertained under the provisions of section 417, Cr. P.C. In view of the provisions contained under section 32(2) of the Act. The Legislature in its wisdom did not provide for the persons competent to lodge and an appeal under the provisions of section 25 of the Act. It is no lacuna as the situation is fairly dealt with under section 32(2) of the Act. But even if it may be a lacuna, such lacunas are not meant to be removed by the Courts as the duty of the Courts is only to try and harmonize the various provisions of an Act passed by the Legislature. It is certainly not the duty of the Courts to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of the Act. This would amount to make law which is beyond the province of the Courts.
33. It is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. Therefore, to get at the intention of the Legislature, we have to read both the provisions of the Act, i,e,, sections 25 and 32(2) together. We cannot read these sections in isolation. It should be remembered that the language used by the Legislature is the true depository of the legislative intent and the words and phrases occurring in a statute are to be taken not in an insolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and the object of the Act itself.
Identical statement of law we find in Darshan Singh Balwant Singh v. The State of Punjab AIR 1953 SC 83 and Poppatlal Shah v. The State of Madras AIR 1953 SC 274.
' In Darshan Singh Balwant Singh v. The State of Punjab AIR 1953 SC 83 it has been held:-- "The language used by the Legislature is the true depository of the legislative intent, and words and phrases occurring in a statute are to be taken not in an isolated or detached manner disassociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself."
In Poppatlal Shah v. The State of Madras AIR 1953 SC 274, it was observed:-- " It is settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase, or sentence is to be considered in the light of the general purpose and object of the Act itself. The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself."
34. It is, therefore, legitimate to say that in order to prevent conflict between two sections, the two sections must be read together and the language of one interpreted and where necessary modified by that of the other. In this way it may in most cases be found possible to arrive at a reasonable and practical construction of the language of the sections so as to reconcile the respective notion they contain and give effect to all of them. We also find support in Mada Nagaratnam v. Puvvada Seshayya AIR 1939 Mad.
361. It has been observed in this case:-- "In order to avoid a conflict between two sections, they must be read together and the language of one interpreted and where necessary modified by that of the other. In this way it may in most cases be found possible to arrive at a reasonable practical construction of the language of the sections, so as to reconcile the respective powers they contain and give effect to all of them."
35. It may be noted that the Courts are not concerned with the reasons or policy of the Act and they have to give effect to the plain meaning of the section or to its expressed intention. They have no means of finding out its implied intention. So was held in Pratap Singh v. B. Gulzari Lal AIR 1942 All.
50. It was observed in this case:-- "The Court is not concerned with the reason or policy of the Act and it has to give effect to the plain meaning of the section or to its expressed intention and it has no means of finding out its implied intention."
As said earlier the Court has to interpret the law as it has been enacted and not as what it would have been. Harkishan Das v. Emperor AIR 1944 Lah. 33 owns this view. It has been held in this case:-- "The Court has to interpret the law as it has been enacted and not as what it would have been if certain provisions which are complementary to the provision, the constitutionality of which is in question, had not been enacted."
Therefore, in interpreting a statute one is to see whetehr a reasonable meaning can be given after reconciling the various provisions contained in different sections and not to read one section independently of all other sections and give any unreasonable interpretation. So was held in Commissioner of Income-tax v. Messrs Hoosen Kasam Dada PLD 1960 Dacca 506 wherein it was held that one section in a statute should not be read independently of all others and given unreasonable interpretation.
36. It, thus, admits of no doubt that all the sections of an Act or statute are to be read together to know the intention of the law-makers. In the present case if we import the words "complainant" or "aggrieved party" in section 25, then section 32(2) of the Act would become meaningless. Besides, Courts cannot I modify the Legislature's defective phrasing of the Act; they cannot add, amend or by construction make up the deficiencies which are left there. Where an omission in an Act flowed from forgetfulness of the draftsman or was intentional it is no concern of the Courts to make up such deficiency. The Legislature must be intended to mean what it has plainly expressed and consequently there is no room for construction. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notion which may be entertained by the Court as to what is just or expedient.
Sardar Zorawar Singh v. Jasbir Singh AIR 1938 Lah. 606 owns this view wherein it has been observed:-- "The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It matters not in such a case what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is cnactd by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient.".
37. What about the hardship and injustice is the next question to be considered. Hardship and injustice are to be removed in a statute by the Legislature and not the Courts and a law cannot be interpreted in a different way simply on the ground of hardship. Therefore, the consideration of hardship or injustice would never weigh with the Court while interpreting a statute. So was held in Abdul Ghafoor v. The State PLD 1965 Quetta 10.
38. I also cannot subscribe to the view of the learned Judge that in Islam there is no restriction for lodging an appeal by the complainant or any other aggrieved party. The difficulty is that at present we are governed by the codified law. We have to interpret a law as it is and not as it ought to have been. It should be noticed that there is a prima facie presumption that the Legislature did not intend to make substantial alteration in the law beyond what it explicitly declares either in express terms or by clear implication or, in other words, beyond the immediate scope and object of the statute, and an intention to cut down or abolish existing rights must be clear and manifest.
Khudabur v. Panjo AIR 1930 Sindh 265 owns this view. It has been observed in this case:-- " There is a prima facie presumption that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declared either in express terms or by clear implication, or, in other words beyond the immediate scope and object of the statute, and an intention to cut down or abolish existing rights must be clear and manifest, and for this purpose the previous history of the legislation may be looked into."
' For the above stated reason I hold that the appeal before the Shariat Court against the acquittal order passed by the District Criminal Court on 31-1-1987 was incompetently filed by the complainant. Thus, I see no reason to disturb the statement of law in the impugned judgment of the Shariat Court recorded on 28-1-1989. The appeal, thus, stands dismissed.
ORDER OF THE COURT In view of difference of opinion, within the meaning of the provisions of Order XI, Rule 1, proviso four of the Azad Jammu and Kashmir Supreme Court Rules, 1978, the order of the senior Judge (Chief Justice) would form the judgment of the Court. Therefore, the judgment of the Shariat Court passed on 28-1-1989 stands and consequently the appeal is dismissed.