1. BASHARAT AHMAD SHAIKH, J.--The two appellants were awarded death sentence under section 5 of the Islami Tazeerati Qawaneen Nafaz Act by the Zilaee Adalat Muzaffarabad on 19th of June, 1979.
2. Their appeals to the High Court and subsequently to this Court were dismissed but the sentences imposed on them have not so far been put into effect. They filed four Shariat petitions under section 6 of the Shariat Court Ordinance in the Azad Jammu and Kashmir Shariat Court on different dates in October, 1983 seeking declarations that certain sections of the Islami Tazeerati Qawaneen Nafaz Act (hereinafter also referred to as the Islami Act), the Criminal Procedure Code and the Evidence Act 1872, the details of which would follow at the appropriate place, were repugnant to injunctions of Islam. For a long time the petitions could not be disposed of by the Shariat Court due to the failure of the Government to appoint a panel of Ulema out of which one Alim could be drawn by the Chief Justice of the Shariat Court to attend the sittings of the Shariat Court. Ultimately the petitions were dismissed, three of them on 16th of August and the 4th on 17th of August, 1988. The appellants filed a single appeal against all the four judgments under section 9 of the Shariat Court Ordinance which provides an appeal as of right to this Court against the decisions of the Shariat Court. In their appeal the appellants have prayed that if any irregularity has been committed in filing a joint appeal the same may be condoned on the ground that all the points agitated in the petition arose out of a single case. The learned Advocate-General appearing for the State did not raise any objection in this regard. In view of the ground that the appellants are condemned prisoners we relax the relevant rules in the interest A of justice. Even otherwise in Shariat Petitions strict compliance of the procedural requirements is not necessary.
3. Since four decisions of the Shariat Court have been challenged in the appeal, the petitions in which these decisions have been recorded will be taken up one by one.
4. SHARIAT PETITION NO,13 OF 1983.
5. It relates to section 29 of the Islami Tazeerati Qawaneen Nafaz Act which reads as follows:-- FOR URDU The petition relating to this section in the Shariat Cort was that mode of execution of sentence of Qasas has not been specified and has been left to be decided by the Jail Authorities. It was pleaded that in accordance with the Quran and Sunnah the sentence of Qasas has to be carried out by use of sword or some other mode which should be similar to the mode by which the offence had been committed. It was prayed in the Shariat petition that section 29 reproduced above may be declared to be repugnant to the inductions of Islam and also that it may further be declared that no other authority except the convicting Court had the power to decide as to what mode should be adopted for carrying into effect the sentence of Qasas. The Shariat Court was of the view that section 29 of the Act clearly provides that the sentences under the Act shall be implemented in accordance with the injunctions of Quran and Sunnah. Therefore the question of this section being repugnant to the injunctions of Islam did not arise. The Court formed the view that it was not within the purview of the Shariat Court to grant a declaration that it was necessary that mode of execution of the sentence be provided for in the section. The Shariat Court was also of the view that the points raised in the petition stood resolved, among others, in a judgment of this Court titled `Mehtab Khan v. State' PLD 1979 SC (AJ&K)
23. Kh. Muhammad Saeed Advocate could not advance a valid reason how the Shariat Court could disregard the dictum of this Court in Mehtab Khan's case in which this question has been specifically decided in the following words:-- "It may also be stated that it is not necessary that the death should be inflicted by chopping off the head of an accused (Mehtab Khan) with a sword as directed by the trial Court because the main purpose in cases of `Qasas' is to take life for life as commented by Maulana Maududi in `Tafheem- ul-Qur'an, Vol. I, Sura II, Ayats Nos. 176, 178, 179, page 167, footnote 176 and not that the murderer should be done to death by chopping off his head with a sword. Therefore, we direct that Mehtab Khan shall suffer punishment in the normal way i,e, by being hanged by neck till he is found dead besides the payment of Ilakoomat-e-Addal' as ordered by the trial Court."
6. We agree with the Shariat Court that section 29, rather than being against the injunctions of Islam, is aimed at ensuring that injunctions of Islam shall be followed while executing sentences awarded under the Islami Act. We are also satisfied that the dictum of Mehtab Khan's case reproduced above should be followed.
(1) Shariat Petition No, 202 of 1983.
(2) Shariat Petition No, 11 of 1983.
7. It is convenient to dispose of these two petitions together because their contents overlap each other. These petitions relate to the following provisions of law:--
(i) Setion 118 of the Evidence Act.
(ii) Section 134 of the Evidence Act.
(iii) Section 26 (2) of the Islami Tazeerati Qawaneen Nafaz Act.
(iv) Section 29 of the Islami Qawaneen Nafaz Act.
(v) Section 368 of the Criminal Procedure Code.
8. The Shariat Court dismised both the petitions as already noted. Among other reasons recorded by the Shariat Court, one of the reasons for dismissal of these two petitions is that the provisions of Islami Tazeerati Oawaneen Nafaz Act cannot be examined by the Shariat Court as the Act forms part of personal law which stands exempted from the operation of the Shariat Ordinance.
9. Kh. Muhammad Saeed Advocate submitted that the Shariat Court was wrong in holding that the Islamic Act is a personal law. He submitted that the aforementioned Act is a penal law which contains the definition of certain offences and also prescribes the punishment thereof. He also attacked the view of the Shariat Court that the points raised by him stood concluded by judgments of this Court mentioned above.
10. So far as sections 118 and 134 of the Evidence Act are concerned the challenge against them has become infructuous because Evidence Act 1872 as enforced in Azad Jammu and Kashmir has since been repealed and its place has been taken by the "Qanun-e-Shahadat", an Act about which it has been claimed that it conforms to the injunctions of Islam. Whether it is so or not we leave it to be decided when this question comes before us. Evidence Act was replaced by `Qanun-e- Shahadat' in Azad Jammu and Kashmir on 4th of January 1988 which is many months before the impugned decision of the Shariat Court was recorded. It will be futile exercise to decide the question whether these provisions of the repealed Evidence Act were repugnant to injunctions of Islam.
11. Section 26(2) of the Islamic Act lays down that the .Qazi would conduct purgation of witnesses. The objection regarding this section is that it does not provide that when the Qazi reaches the conclusion that a witness is `Aadal' this fact should be recorded and acted upon and also that the grounds on which his findings are based be disclosed. The Shariat Court has in its order passed in Shariat application No,11 of 1983 held that matters relating to the procedure of any Court do not fall within the purview of the Shariat Court Ordinance and also that how purgation has to be conducted has been settled in the light of Islamic injunction by this Court in 'Abdul Razzaq v. State'
12. PLD 1988 SC (AJ&K) 191 and 'State v. Punno Khan' PLD 1984 SC (AJ&K)
1. We find that the reason recorded by the Shariat Court is unexceptionable. Purgation of witnesses is part of the procedure of the Courts set up under the Islami Act while the laws relating to the procedure of any Court have been kept out of the operation of the Shariat Court Ordinance. In any case, nothing has been brought to our notice that the procedure laid down by this Court in the two cases just mentioned is not in consonance with the injunctions of Islam.
13. Section 29 of the Islamic Act has already been reproduced above. This section is linked to section 368 of the Criminal Procedure Code which lays down that when any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead. The objection with regard to these provisions of law is that this is not in accordance with the mode prescribed by the Islami Shariah. It is not stated in the application as to how, according to the appellants, sentence of Qasas has to be carried out but it appears that the contention is that it has to be done by chopping off the head by sword. As already noted this question has been settled by this Court in `Mehtab Khan's case' and the relevant part of the judgment has been reproduced in earlier part of this judgment.
14. Before parting with the cases we have to take note of the view taken by the Shariat Court that Islami Tazeerati Qawaneen Nafaz Act is personal law and is therefore outside the purview of the Shariat Court Ordinance. The Shariat Court has only dealt with this point briefly and has not recorded any reason which led it to the conclusion that the aforementioned Act is a part of personal law. Personal law has been defined in Black's Law Dictionary as follows:-- "Personal Law opposed to territorial law is the law applicable to persons not subject to the law of territory in which they reside."
15. In the light of this definition the view taken by the Shariat Court does not seem free from doubt but since the points involved in these cases have already been decided on different grounds it no longer is necessary to decide the question whether Islami Tazeerati Qawaneen Nafaz Act is personal law and we leave this question open to be decided in a case where it may be necessary to decide the question. Meanwhile it shall be deemed as if this point has not been decided by the Shariat Court.
16. Shariat Petition No, 12 of 1983: The learned counsel for the appellant has not pressed the part of the appeal relating to the decision of the Shariat Court in respect of Shariat Petition No, 12 of 1983. This petition relates to sections 118 and 138 of the Evidence Act which stands repealed, as already noted.
17. As a result the appeal fails and is hereby dismissed.