MIR HAZAR KHAN KHOSO, CJ.--As same point of law is involved in Constitutional Petition No.302 of 1990 and Criminal Revision No. 3 of 1991, we propose to dispose of them by this common judgment.
2. C.P. No. 302/90. Petitioner Mr. Azizullah Memon an Advocate of Supreme Court and High Courts practises at Quetta had filed C.P. No.150/87 before this court challenging vires of the Provisions of Criminal Law (Special Provisions) Ordinance-II of 1968. On 29th of August, 1990, the above-said Ordinance was declared void being inconsistent to provisions of the Constitution of Islamic Republic of Pakistan, 1973. However said judgment has been challenged in the Hon'ble Supreme Court of Pakistan, where Leave to appeal was granted and implementation of judgment is stayed.
3. According to petitioner now altogether a new situation has emerged after promulgation of the Criminal Law (Second Amendment) Ordinance, 1990, the Criminal Law (Fifth Amendment)
Ordinance, 1990 and the Criminal Law (Amendment) Ordinance, 1991, whereby offences affecting human body from sections 299 to 338 in Pakistan Penal Code have been substituted by new sections in order to bring them inconformity with injunctions of Islam as laid down in the Holy Quran and Sunnah. However, for their trial amendments have been made in Cr.P.C, whereby the same have been made triable by court of Sessions and Magistrate 1st Class. It may be pertinent to mention here that in province of Baluchistan except Districts of Jafarabad and Quetta District minus Tehsil Panjpai Criminal cases are tried by forums created under the Provisions of Criminal Law (Special Provisions) Ordinance-II of 1968. Hence question arises whether forums under Ordinance-II of 1968 still continue to enjoy power for trial and dispose of cases covered by Qisas and Diyat Ordinance ? Petitioner has claimed following relief:- "It is humbly prayed that in view of the above-said facts and grounds this Hon'ble Court may be pleased to declare that the offences covered by Qisas and Diyat Ordinance, 1991 arc no more scheduled offences for the purposes of Ordinance, II of 1968 and the forums created under the said Ordinance have no jurisdiction to try the said offences."
4. In the second matter, i.e. Criminal Revision No. 3 of 1991 offence under sections 302/307, PPC R/W 13-A Arms Ordinance was registered at Saddar Police Station Sibi by Hazoor Bux Constable of Police on It November, 1990. During investigation of the case petitioner Kamal Khan was arrested and then sent for trial for offence under sections 302/307, PPC before the court of learned Sessions Judge, Sibi. The petitioner challenged the jurisdiction of the learned Judge on the ground that his case falls within the ambit of provisions of Criminal Law (Special Provisions) Ordinance, II of 1968, hence trial was unlawful. The learned Sessions Judge however, did not agree with his prayer and dismissed his application on 29.4.1991 in the words as under:- "Since the preliminary objection raised on behalf of accused/applicants in both the cases is the same, they will be disposed of together by one order.
2. The objection raised for the applicants, accused is that they are entitled to be governed under the provisions of the Criminal Law (Special Provisions) Ordinance, 1968, by virtue of its subsection
(e) of section 2. In other words the jurisdiction of this Court has been challenged on the contentions
(i) that the offences alleged against the applicants/accused persons are scheduled offences as defined under section 2 (i)(e) of Ordinance, II of 1968 (ii) that the Ordinance, II of 1968 has not yet been repealed, therefore, these offences are yet scheduled offences and exclusively triable under the provisions of last mentioned Ordinance.
3. I have heard Haji Mohammad Sadiq Ghuman, Advocate, learned Counsel for accused persons/applicants and Mr. Zafar Ali Khoso for the State. Mr. Ali Anwar Mithal Advocate learned counsel for the complainant while Mr. Nazir Ahmad Advocate as amicus Curaie.
4. Section 193, Cr.P.C, expressly provides that no Court of Sessions shall take cognizance of any offence as a Court of Original jurisdiction unless the case has been sent to under section 190(3), Cr.P.C. Both the above case have been sent in terms of above section.
5. Since provisions of PPC and Cr.P.C, were repugnant to the injunction of Islam, the Ordinances IV, VII, and VIH of 1990, and I of 1991 (Criminal Law (Amendment) Ordinance, 1991) were promulgated, with a view to bring them in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah; the law relating to Qisas and Diyat (of offences affecting the Human Body) Reference can be made to an authority reported in NLR 1991 S.D. 25.
6. The said Ordinance (Ordinance, VII of 1990, Ordinance I of 1991) which has substituted and amended relevant provisions of PPC and Cr.P.C, being a special law and latest in time exclude the application of the general/other laws on the subject. The provisions of Code of Criminal Procedure, 1898, have been applied "mutatis mutandis" in respect of cases under the said Ordinance.
According to Schedule II Act V of 1898, both these offences i.e. Section 302 Qati-e-and and section 324 Attempt to qatl-i-and are exclusively triable in the Court of Sessions. Section 302, Qati-i-and and 324, Attempt to Qati-e-and are not schedule offences for taking cognizance under the provisions of Ordinance II of 1968. Ordinance II of 1968 has already been declared void by our Hon'ble High Court. Reliance is placed on the authority reported in NLR 1991 page 159 (Quetta). In view of above, I hold that this Court has got the jurisdiction to try these offences and the applications are accordingly dismissed."
5. We have heard Mr. SA.M. Quadri Advocate for the petitioner Azizullah Memon Advocate in C.P. No. 302 of 1990. Mr. Goher Yakab Advocate for petitioner Kamal Khan in Crl. Revision Petition No. 3 of 1991. Raja M. Afsar learned Advocate-General for the Province of Baluchistan and Mr. Mohammad Riaz Ahmad learned Standing Counsel for Federal Government.
6. During the course of arguments Raja M. Afsar learned Advocate- General filed before us a copy of advice sent by him to Law Department, Government of Baluchistan and based his stand on its paragraphs 2, 4, 5 and 6, h are reproduced below for the sake of convenience.
"2. The Criminal Law (Special Provisions) Ordinance, 1968, commonly known as Ordinance II of 1968, is a composite law having its own preventive, penal and procedural provisions. However, for our present purpose, it is neither relevant nor necessary, to dilate upon any of these features of the said statute. It should suffice to mention that all the offences under the Pakistan Penal Code, (with the exception of those only, which are within the cognizance of the Conciliation Courts), have been terms as "Scheduled Offences" and are triable, exclusively under Ordinance II of 1968, through the medium of a Tribunal of four members, presided over, by a Revenue Officer. The President of the Tribunal need not, necessarily, be a Magistrate of 1st Class.
4. As regards the position of Ordinance II of 1968, vis-a-vis the recently promulgated Presidential Ordinance, it is to be noted that the said new Ordinances have re-defined, added to, and amended certain provisions of the PPC, relating to offences against human body (homicide and hurt), for the purpose of bringing them in conformity with the Islamic injunctions as to Qisas and Diyat.
Necessary consequential amendments in the Cr.P.C, have also been made in this behalf and these offences are now triable either by a Sessions Judge or a Magistrate 1st Class.
5. Although the Presidential Ordinances do not say so, yet the fact of the matter is that they have been enacted pursuant to the Judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan, reported as PLD 1989 S.C. 633, whereby the then existing provisions as to murder and hurt were struck down as being un-islamic and the Federal Govt, was directed to enforce the Provisions of Islamic Law relating to Qisas & Diyat.
6. As the offences of the PPC become, by reference, the "Scheduled offences" under the Ordinance II of 1968, one view can be that offences 302, 307 etc., of the PPC, with their new complexion and import, would be drawn into the ambit of the said Ordinance, as a matter falls short of the legal position which emerges as a result of the enactments incorporating provisions with regard to Qisas and Diyat. In this behalf, it is to be noted that on account of its Constitutionally binding force, the aforesaid Judgment of the Supreme Court itself is now law of the land. Further the purpose of the new dispensation is to give effect to the Islamic provisions of Qisas and Diyat. It is a positive step towards the Islamization of our legal system, and we should not only accept it, but welcome it and lend a helping had to it."
7. M/s. Raja M. Afsar the learned Advocate-General and Muhammad Riaz Ahmad Learned Standing Counsel candidly conceded that Criminal Law (Second Amendment) Ordinance, 1991 promulgated by the President of Pakistan has overriding effect on the Provincial Law Criminal Law (Special Provisions) Ordinance II of 1968. To Supplement the arguments they contended that;
(i) Honourable Supreme Court of Pakistan in case Federation of Pakistan Vs. Gul Hassan reported in PLD 1989 S.C. 633 has held that the provisions of Pakistan Penal Code regarding Homicide and hurt in the PPC of 1860 are against the injunctions of Islam.
(ii) the enactments promulgated by the Federal Legislature take precedence over the Provincial Legislation, under Article 143 of the Constitution of Islamic Republic of Pakistan on the same subject covering the same field; and
(iii) the amendments were aimed at Islamization of penal laws for bringing them inconformity with the Islamic Injunctions viz Qisas and Diyat; hence newly-promulgated enactment shall hold the field.
8. However, Mr. Goher Yakab Advocate canvassed that since all offences under the Pakistan Penal Code are scheduled one, hence triable by the forums created under provisions of Criminal Law (Special Provisions) Ordinance II of 1968; thus the amendments in the Schedule in Cr.P.C, do not oust jurisdiction of the forums created therein. Besides he urged that section 3(2) of the Ordinance II of 1968 bars application of the Criminal Procedure Code, therefore, the amendment brought in Cr.P.C, under the new Act will have no overriding effect therein.
9. Indeed Indian Penal Code was brought in force in Sub-continent of India in the year 1860. It met with drastic changes. After Independence it has been named as Pakistan Penal Code.
10. It may be observed that in Province of Baluchistan FCR of 1901 was promulgated for trial of certain offences of the Pakistan Penal Code. In 1963 it was substituted by Criminal Law Amendment Act, 1963 and then in 1965 by the Quetta/Kalat Criminal Law (Special Provisions) Ordinance. Lastly in the year 1968 the Criminal Law (Special Provisions) 1968 was promulgated where by the entire Province of Baluchistan except a sma ll portion; the above-said Ordinance held field for the trial of all cases, falling under the Pakistan Penal Code.
11. However in the year 1979, following enactments were enforced in respect of certain laws for bringing them in conformity with injunctions of Islam:-
(i) Prohibition (Enforcement of Had) Order, 1979.
(ii) Offences against Property (Enforcement of Had) Ordinance, 1979.
(iii) Offence of Zina (Enforcement of Hadood) Ordinance, 1979.
(iv) Offence of Kazaf (Enforcement of Had) Ordinance, 1979.
Whereby the offences covered by aforementioned enactments were made triable by Magistrates and Sessions Judges. It may be seen that in certain parts of the country even separate courts were established with exclusive jurisdiction to try all Hadood cases. The courts have been functioning effectually since then.
12. It may be observed that the new amendments in the Pakistan Penal Code and Code of Criminal Procedure through Qisas and Diyat Ordinance had been made with the intention to bring them in conformity with Injunctions of Islam. The object is reflected from the introduction clause which reads as under:-- "WHEREAS it is expedient further to amend the Pakistan Penal Code (Act XLV of 1860), and the Code of Criminal Procedure, 1898 (Act V of 1898), to bring them in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
(B) These changes indeed in Pakistan Penal Code and Code of Criminal Procedure have been introduced in pursuant to the decision of Federal Shariat Court and Supreme Court in Shariat Appeals. The Head-notes reported in PLD 1989 S.C. 633 for ready reference are reproduced as under:- "(A) Penal Code (XLV of I860)- -Ss.299 to 338-Constitution of Pakistan (1973), Art. 203-F- Repugnancy to Injunctions of Islam- Offences against human body-Provisions of Ss.299 to 338, Penal Code which deal with offences against human body are repugnant to the Injunctions of Islam.
Sections 299 to 338 of the Pakistan Penal Code, 1860 which deal with offences against human body are repugnant to the Injunctions of Islam as they-
(a) do not provide for the Qisas in cases of Qati-e-and (deliberate murder) and Jurooh-al-and (deliberately causing hurt) as is prescribed in the Holy Qur'an and Sunnah;
(b) do not provide for Diyat in cases of Shibh-ul-and and Khata of both qatl (murder and Jurh
(hurt) as prescribed in the Holy Qur'an and Sunnah;
(c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qati and Jurh;
(d) do not provide that the offender may be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases of Qati (murder) whereby the Court can only award him a sentence of imprisonment by way of Tazir which may not extend to imprisonment for life;
(c) do not exempt a non-pubert and an ir. Sance offender from the sentence of death in cases of murder; and
(1) do not define the different kinds of Qati and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah. (PP. 641,642) A & G
(B) Penal Code (XLV of 1860)- -S.109--Constitution of Pakistan (1973), Art. 203-F-Repugnancy to Injunctions of Islam-Provision of S.109, P.P.C, so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment is repugnant to Injunctions of Islam. (P. 642) B & G
(C) Penal Code (XLV of 1860)- -S.54-Criminal Procedure Code (V of 1898, Ss. 401, 402, 402-A & 402-B-Constitution of Pakistan (1973), Art. 203-F Repugnancy to Injunctions of Islam-Provisional of Section 54, P.P.C, and Ss. 401,402, 402-A & 402-B, Cr.P.C, in so far as the empower the Central Government or a Provincial Government to commute the sentence of death in case of Qatal-al-and or Jurh-ul-and or in any other offence violating the Huaquero-ul-Ibad are repugnant to Injunctions of Islam.
(D) Criminal Procedure Code (V of 1898)-- -S. 345--Constitution of Pakistan (1973), Art. 203-F--Repugnancy to Injunctions of Islam-Provision of S.345, Cr.P.C, in so far as it does not include some of the offences against human body in the table of compoundable offences, is repugnant to Injunctions of Islam. (P. 642) D&G
(E) Criminal Procedure Code (V of 1898)-- -S.381-Constitution of Pakistan (1973), Art. 203-F-Repugnancy to Injunctions of Islam-Provision of S.381, Cr.P.C, in so far as it docs not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place, is repugnant to Injunctions of Islam. (P. 642) E & G
(F) Criminal Procedure Code (V of 1898)- Ss. 337 to 339-A-Constitution of Pakistan (1973), Art. 203-F- Repugnancy to Injunctions of Islam- Provisions of Ss. 337 to 339-A, Cr.P.C, in so far as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Qati are repugnant to Injunctions of Islam. (P. 642) F & G".
14. However, to achieve aims and objects of the new enactments, i.e. The Qisas and Diyat Ordinance, 1991 the legislative conferred jurisdiction upon Magistrates and Sessions Judges for trial of the cases.
15. In the Criminal Law (Special Provisions) Ordinance, 1968 provisions for sentence and compensation etc. Are incorporated in sections 12,13 and 15.
16. On the other had Schedule II attached with Criminal Law (Second Amendment) Ordinance, 1991 deals with the subject. Looking to the provisions of Ordinance II of 1968 it would be seen that punishments prescribed therein do not coincide with requirements of Qisas and Diyat Ordinance.
Even otherwise the forums established under Ordinance II of 1968 do not have jurisdiction to award the punishments etc specified under the Amended Law.
17. There is also another aspect that Criminal Law (Special Provisions) Ordinance was promulgated in 1968 and as such the forum created thereby were competent to take cognizance in respect of offences prescribed under Pakistan Penal Code at the relevant time. Subsequent drastic amendments, brought in the shape of the Qisas and Diyat Ordinance thus do not fall within the ambit of forums created by Ordinance II of 1968.
18. Lastly it may be observed that the Central Legislation on the same subject under Article 143 of the Constitution supersedes the Provincial Legislation. The Article reads as under:- "143. If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of (Majlis-e-Shoora (Parliament) which (Majlis-e-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of (Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
19. The above-said discussions lead us to the definite conclusion that enactments of the Federal Legislation relating to Enforcement of Qisas and Diyat Ordinance being in conformity with Injunctions of Islam as laid down in Holy Qur'an and Sunnah supersedes the provisions of the Criminal Law (Special Provisions) Ordinance, 1968.
20. Such view of the fact all offences covered by Qisas and Diyat Ordinance shall be exclusively triable by the forums specified therein in Schedule II attached with the Criminal Law (Amendment)
Ordinance, 1991 but not by forums created under Criminal Law (Special Provisions) Ordinance II of 1968. Thus C.P. No. 302 of 1990 is accepted while Crl. Revision No. 3 of 1991 stands dismissed.
No order as to costs.
This constitutes the reasonings of our short orders dated 31.7.1991.