KHALIL-UR-REHMAN KHAN, J.---This appeal, by leave of the Court, is directed against the judgment, dated 10-4-1995 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the appeal filed by the appellant was dismissed and the death sentence awarded to him by the learned Additional Sessions Judge-II, Bahawalnagar vide judgment, dated 3-3-1993 was confirmed.
2. The prosecution case, briefly stated, is that on 24-11-1991 at about 4-00 p.m. Muhammad Sharif complainant and Allah Ditta, on hearing the cries of Muhammad Siddique deceased, went out of their house and saw that on Katcha road leading to Chak No,42/Fateh, Muhammad Hanif, the father of the appellant had caught hold of the deceased while the appellant was inflicting Churri blows on his chest and abdomen. The deceased fell down on the ground and both the accused ran away. The motive stated in the F.I.R. Was that Mst. Naziran Bibi, niece of Muhammad Sharif and daughter of Bashir Ahmed was married to one Muhammad Ayub, but her Rukhsati had not taken place. Thereafter, Bashir Ahmed married Mst. Naziran with one Mureed Kharal. As relations between Mureed Kharal and Mst. Naziran became strained, she came to the house of her father. Two months prior to the occurrence, she again eloped with Muhammad Ayub, Bashir Ahmed and Muhammad Hanif suspected that the complainant and his deceased son had facilitated elopement of Mst. Naziran with Ayub. A day earlier there had been an altercation.
3. At the trial, prosecution relied on the ocular account of Muhammad Sharif P.W.2 and Sultan P.W.3, the eye-witnesses, evidence of recovery of Chhuri--the weapon with which the injuries were allegedly caused to the deceased, medical evidence and the motive. Riaz Ahmed appellant in his statement under section, 342, Cr.P.C. Took the plea that on the day of occurrence his wife had gone out to ease herself in the cotton fields. He was also in the fields to cut Datan (Maswak) with a knife/Churri, and on hearing the cries of his wife he was attracted to the spot and found that the deceased was attempting to outrage the modesty of his wife. He, under grave and sudden provocation, grappled with the deceased and during grappling the deceased sustained injuries from the knife/Chhurri which was with him for the purpose of cutting Maswak. He added that he had no intention to cause the death of the deceased. It all had happened under grave and sudden provocation. He stated that his father was not present in the village on the day of occurrence, as he had gone to Chak No,2/Fateh to construct the Chapper of Rana Khan Muhammad and Jan Muhammad Sasi. According to him, the occurrence took place in the cotton fields and none of the Prosecution Witnesses had seen the occurrence.
4. Learned Trial Court after appraisal of the evidence recorded the conclusion that Riaz Ahmed appellant herein had given Chhurri blows to the deceased to kill him and that the stab wound shows how brutally and mercilessly he had committed the murder. It, however, acquitted Muhammad Hanif accused, father of the appellant, giving him benefit of doubt. It was observed that Muhammad Hanif accused was either not present at the time of occurrence or at least he had not grappled with the deceased as is apparent from the statement of Prosecution Witnesses wherein they have stated that Muhammad Hanif at the time of occurrence was catching hold of the hair of the deceased. These findings were confirmed by the learned Judges of the High Court and the death sentence was confirmed and the appeal of the appellant was dismissed vide judgment, dated 10-4-1995.
5. The contentions for consideration of which leave to appeal was granted were that section, 302, P.P.C. Enforced by Ordinance No,XXX of 1991, Criminal Law (Amendment) Ordinance, 1991) was not a valid law as earlier three identical Ordinances, viz., Ordinance VII of 1990, Ordinance I of 1991 and Ordinance XVIII of 1991 were promulgated and stood repealed without being approved by the National Assembly/Parliament; and that as an Ordinance cannot be repeated, . All identical Criminal Law (Amendment) Ordinances repeated from time to time with mere cosmetic changes were ultra vires the Constitution. Reliance was placed on the Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Ltd. And 59 others (PLD 1994 SC 363) to contend further that there being no law for punishment for a person who commits murder in existence in the country, the appellant could neither be tried nor convicted or sentenced. Second contention urged was that in the absence of any valid criminal law to govern the case, Islamic Common Law should have been applied but the same was not even invoked or referred. Leave was granted vide order, dated 8-4-1996 to consider these two contentions, (See: PLD 1996 SC 589).
6. Since the question involved in this case is as to whether an Ordinance can be repeated, and as it involves interpretation of Article 89 of the Constitution, notice was issued as required under Order XXVII-A of the C.P.C., to the learned Attorney-General.
7. Learned counsel for the appellant at the time of hearing of appeal sought to raise other contentions such as---
(a) The general principles of Islam or the Injunctions prescribing punishment as embodied in Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) cannot be applied as law, as the said principles do not fall within the meaning of the term "Law" as defined in the Constitution. It was added that no instrument which is not made under the authority of the Parliament could be treated as law and applied in any case.
(b) The observations of the Shariat Appellate Bench of this Court in Review Petition, Federation of Pakistan and another v. N.-W.F.P. Government and others (PLD 1990 SC 1172) to the effect that "even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi-ul-Awwal. In such state of vaccuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi-ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vaccuum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qati and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable" could legally be made while deciding a case under Chapter 3-A of the Constitution. The plea was that such a declaration amounts to making the law and enforcing it which is exclusive prerogative of the Parliament; and that according to Article 12 of the Constitution no person can be deprived of his life except in accordance with law, which mandate stands re-enforced by Article 4 of the Constitution. Hence the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) being not the law made by or _under the authority of the Parliament as envisaged under Article 260 of the Constitution, could not be applied to the present case unless they were enforced through Act of Parliament.
8. In order to appreciate the submissions it is necessary to notice the historical background of the enforcement of Qisas and Diyat Laws in the country. The Shariat Appellate Bench of this Court in the case of Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD 1989 SC 633) declared the provisions of P.P.C. Relating to offences against human body including section 302, P.P.C. Repugnant to Injunctions of Islam as enshrined in the Holy Qur'an and Sunnah and fixed 23-3-1990 to be the date from which the decision of the Court was to take effect and said provisions were cease to have effect.
Two Review Petitions and Miscellaneous Petitions were filed which were disposed of on the basis of the statement of learned Attorney-General to the effect that the Ordinance relating to enforcement of the provisions of Qisas and Diyat has been drafted and is at present in the process of final scrutiny which should be completed within a couple of days and the necessary Ordinance will be promulgated by 5th September, 1990, and that of familiarise the enforcement agencies with the new provisions and to ensure their proper implementation the provisions of the proposed Ordinance shall be enforced by 12th Rabi-ul-Awwal 1411 A.H., and prayed that the Review Petitions may be disposed of in the light of his above statement, as these have become infructuous. The operative part of the order passed in Federation of Pakistan and another v. N.-W.F.P. Government and others (PLD 1990 SC 1172) i.e,, the case wherein the above statement was made reads as under:--- "The new Ordinance incorporating the provisions relating to Qisas and Diyat shall be promulgated by 5th September, 1990 and all the provisions thereof shall be enforced at the latest by 12th Rabi- ul-Awwal 1411 A.H.
Accordingly, it is ordered that the decision of this Court, dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this Review Petition, shall take effect on 12th day of Rabi-ul-Awwal 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect.
It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect in 12th Rabi- ulAwwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi- ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the afore visualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. All these matters stand disposed of."
9. The Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance No, VII of 1990) was then promulgated on 5th September, 1990 and was enforced from 12th Rabi-ul-Awwal 1411 Hijri. This Ordinance enforced the provisions relating to Qisas and Diyat by amending and substituting the provisions of sections 53, 55, 109 and 299 to 338, P.P.C. Certain provisions of Code of Criminal Procedure were also amended to bring them in line with the amended provisions of Pakistan Penal Code. The Ordinances containing these provisions with some changes introduced in pursuant to the observations made in the case of Muhammad Ashraf v. The State (PLD 1991 Lahore 347) were promulgated and enforced from time to time as listed below:--- Sr.No, Ordinance No, Date
1. VII of 1990 5-9-1990
2. I of 1991 4-1-1991
3. XVII of 1991 27-4-1991
4. XXX of 1991 24-8-1991
5. XLII of 1991 23-12-1991
6. IV of 1992 22-4-1992
7. X of 1992 30-7-1992
8. XVII of 1992 19-11-1992
9. IV of 1993 17-3-1993
10. XII of 1993 15-7-1993
11. XXXIX of 1993 10-11-1993
12. XVII of 1994 8-3-1994
13. XLI of 1994 7-7-1994
14. LXXIII of 1994 25-10-1994
15. XV of 1995 21-2-1995
16. LVI of 1995 31-5-1995
17. XCIX of 1995 12-9-1995
18. V of 1996 11-1-1996
19. LII of 1996 2-5-1996
20. LXXX of 1996 12-8-1996
21. CXIII of 1996 11-12-1996 The legislature ultimately accorded the approval and Qisas and Diyat provisions contained in the Ordinance No,CXIII of 1996 were approved by the Parliament on 11-4-1997 as Act H of 1997 called the Criminal Law (Amendment) Act, 1997.
10. The occurrence, subject-matter of this case took place on 24-11-1991 and then Ordinance No,XXX of 1991 having been promulgated on 24-8-1991 held the field and was fourth in the series of the Ordinances on the subject. According to learned counsel an Ordinance promulgated by the President by virtue of Article 89 of the Constitution lapses on the expiry of four months, if it is not approved by the Assembly and an expired Ordinance cannot be re-enacted. Learned counsel relied particularly on the observations of Mr. Justice Saleem Akhtar in the case of Collector of Customs, (supra), as under:--- "These provisions clearly indicate that life of an Ordinance cannot be extended and for its continuance approval of the Assembly or both the Houses, as the case may be, is necessary. Then how could re-enactment which is another form of extension of the same Ordinance can be permitted. This amounts to doing indirectly which is not permitted directly. It, therefore, follows that the President under Article 89 and the Governor under Article 128 do not have a power to repeat or promulgate the same Ordinance. If this practice is adopted, then there may be cases and circumstances in which Ordinances may be issued and allowed to expire without being laid before the Assembly and then may be re-issued. In such a way the Assembly will be deprived of the opportunity to consider the Ordinance and all actions and steps taken under such Ordinance will remain valid without any approval or consideration by the Assembly. This will, thus, perpetuate a rule by Ordinance completely ignoring and by passing the Assemblies which have the power to legislate."
It was argued that even according to majority view, the Ordinance in question is to be treated void and of no legal effect as Mr. Justice Ajmal Mian (now the Chief Justice) in his judgment with which the other learned Judge concurred has held that though Article 89 of the Constitution does not expressly prohibit against the re-enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months. This was the main plea urged by the learned counsel for the appellant as the other pleas are basically premised on this very plea.
12. Learned Attorney-General in reply submitted that all these Ordinances were laid before the National Assembly as well as Senate for approval as required by Article 89 of the Constitution and as neither of the two Houses disapproved any Ordinance which otherwise remained under consideration of either of the Houses or its Committees, President had to promulgate the law from time to time as law pertaining to bodily injuries, hurt and murder had to be made and enforced to prevent chaos and disruption in the administration of criminal justice and state of vacuum had to be filled and provided for and as a matter of necessity Ordinances had to be promulgated from time to time to take the place of those provisions of P.P.C. And Cr.P.C. Which on account of declaration of the Shariat Appellate Bench had ceased to be effective. The following table giving the particulars as to laying of the Ordinance before the two Houses was placed on record:--- Sr.No,No, of OrdinanceDate of PromulgationDate of laying in National AssemblyDate of laying in the Senate
1. VII of 1990 5-9-1990 17-12-1990 8-11-1990
2. I of 1991 4-1-1991 4-3-1991 17-1-1991
3. XVII of 1991 27-4-1991 12-5-1991 11-5-1991
4. XXX of 1991 28-8-1991 13-10-1991 4-11-1991
5. XLII of 1991 23-12-1991 9-2-1992 4-12-1992
6. IV of 1992 22-4-1992 4-5-1992 18-6-1992
7. X of 1992 22-7-1992 15-8-1992 15-8-1992
8. XVII of 1992 19-11-1992 31-12-1992 20-12-1993
9. IV of 1993 17-3-1993 9-6-1993 9-5-1993
10. XII of 1993 15-7-1993 11-11-1993 26-8-1993
11. XXXIX of 1993 10-11-1993 28-11-1993 30-12-1993
12. XVII of 1994 8-3-1994 10-4-1994 2-5-1994
13. XLI of 1994 7-7-1994 15-8-1994 1-8-1994
14. LXXIII of 1994 25-10-1994 24-11-1994 19-11-1994
15. XV of 1995 21-2-1995 19-4-1995 20-3-1995
16. LVI of 1995 31-5-1995 12-6-1995 10-7-1995
17. XCVI of 1995 12-9-1995 21-9-1995 2-10-1995
18. IV of 1996 11-1-1996 24-1-1996 -
12. Learned Attorney-General argued that as pointed out in the majority judgment in the case of Collector of Customs (supra), the underlined idea or philosophy of Article 89 of the Constitution is that the legislative power vests in an Assembly, this power cannot be usurped by a Head of the State or a Province while the Assembly exists but the executive in the instant case complied with the mandate of the Constitution by laying all the Ordinance before both the Houses and as either of the Houses did not disapprove the Ordinance, rather took time to complete its deliberations, the Ordinances had to be re-enacted as the vacuum could not be allowed to exist. He argued that even otherwise judgment of the Shariat Appellate Bench in re: Federation of Pakistan and another v. N.-.W.F.P. Government and others (PLD 1990 SC 1172) provides sufficient and valid basis for keeping the provisions of Ordinance VII of 1990, operative and effective to punish the offender of the offences provided for in the said Ordinance.
13. Having given the factual background of the case, the history of legislation and the respective contentions, it is pertinent to refer to Article 89 of the Constitution, which reads as follows:- "89. Power of President to promulgate Ordinances.--(1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis-e- Shoora (Parliament) to make law, but every such Ordinance---
(a) shall be laid---
(i) before the National Assembly if it contains provisions dealing with all or any of the matters.
Specified in clause (2) of Article 73, and shall stand repealed at the expiration Of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;
(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly."
It will be noticed that clause (2) of Article 89 of the Constitution makes it mandatory that every Ordinance shall be laid before the National Assembly. (If it relates to the matters specified in clause
(2) of Article 73 i.e,, financial matters), and it shall stand repealed at the expiration of four months from its promulgation or if before expiration of that period a resolution disapproving is passed by the Assembly upon passing of that resolution. The Ordinance which does not contain matters referred to in clause (2) of Article 73 of the Constitution, is required to be placed before both the Houses and it shall stand repealed as above or is otherwise withdrawn by the President.
14. This Article as well as the case-law on the subject were gone into and analysed by Mr. Justice Ajmal Mian (now the Chief Justice) in the case of Collector of Customs (supra) which was relied upon by both the parties. In this case of Collector of Customs (supra), Finance Ordinance II of 1988 expired on 25-10-1988 and Finance (Revised) Ordinance XXII of 1988 containing identical provisions was enacted on 26-10-1988 when the National Assembly stood dissolved, it was contended that insertion of section 25-B of the Customs Act, 1969 pursuant to such Ordinance and Notification issued pursuant to expired Ordinance ceased to remain operative upon expiry of four months time from the date of promulgation as President has no power to re-enact an expired Ordinance. The reasoning and the conclusion recorded by Mr. Justice Ajmal Mian, with which Mr. Justice Sajjad Ali Shah agreed reads as under:--- "It may be observed that Article 89 of the Constitution does not expressly prohibit against the re- enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months as pointed out by Mr. Kaikaus, J., in the case of Tirathmal and others v. The State (supra) while construing more or less an identical provision of 1956 Constitution. In spite of absence of an express prohibition in some of the above cases, it has been held that the President or the Governor cannot re-enact an expired Ordinance. In the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra), I speaking on behalf of the Full Bench (comprising five Judges), highlighted the rationale for holding so, the relevant portion of the above judgment has been reproduced hereinabove in para. 12 and need not be repeated. However, it will suffice to observe that the underlined idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a Province while the Assembly exists. The above reason will not hold good if an Assembly stands dissolved and for a justifiable reason, it has not been reconstituted within the period specified in the relevant Article of the Constitution.
I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly. Kaikaus, J. Though has given weighty reasons in the case of Tirathmal (supra) for taking a contrary view, but in my humble view, it runs counter to the spirit/scheme of the Constitution as pointed out by. Me in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra). But if the National Assembly stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rehman, J. In his above-quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the reconstitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. The observations of Shafiur Rehman, J. In the above-quoted portion of his opinion, namely, 'However, it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a)are to be viewed in the context of the facts of the above case i.e, the elections were to be held on 16-11-1988 and 19-11-1988 and the above opinion was rendered on 24-10-1988 and, therefore, by the time new Assemblies would have been re-constituted, the Ordinance could have been placed before the National and Provincial Assemblies within a period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second Ordinance.
The case in hand stands on stronger footing in view of the following peculiar features:---
(i) That this Court though maintained the finding of the Lahore High Court that the order of dissolving the National Assembly was without jurisdiction but it declined to restore the same, and when the then Speaker of the National Assembly attempted to summon the Assembly, he was prohibited from doing so by this Court. If the National Assembly would have been restored on 5-10- 1988, Ordinance II of 1988 could have been converted into an Act as three weeks would have still be available before the expiry of the above Ordinance and there would not have been any need to issue Ordinance No,XXII of 1988.
(ii) That this Court in its order, dated 5-10-1988 held that in view of the exceptional situation the elections scheduled on 16-11-1988 and 19-11-1988 would be valid under the Constitution.
(iii) That Ordinance II of 1988, which was to expire on 26-10-1988 was a Finance Ordinance, and therefore, it was a matter of State necessity to have a legal cover for the recovery of State revenues.
(iv) That the elections could not be held within the stipulated period on account of lapse inter alia on the part of the Parliament, in not complying with the provisions of Articles 222(2) read with 51(3) of the Constitution as pointed out in the above President Reference No,I of 1988.
In my view, the Constitution is to be construed as organic whole and its various provisions are to be read as a part of one integrated scheme. The widest possible interpretation is to be given to the provisions of the Constitution with the object to meet all eventualities. The efforts should be made to construe Constitutional provisions in such a way, that it may avert chaos and uncertainty in the Country and may foster the smooth functioning. The view, which I am inclined to take, is in line with the above principles of construction of a Constitutional document.
I may reinforce my above view by giving an example. Suppose the National Assembly completes its Constitutional tenure, but elections could not take place within constitutional mandate on account of an act of God for nearly one year. Can it be said that after the expiry of a Finance Ordinance upon expiry of four months, the President cannot reenact the same by invoking reserve power contained in Article 89 of the Constitution.
I may observe that the case of Indian Supreme Court, namely, Dr. D.C. Wadhwa and others v. State of Bihar and others (supra) is an extreme case, wherein as pointed out hereinabove, the Governor of State of Bihar repeated the same Ordinance from one year to 14 years and thereby deprived the Provincial Legislative from legislating on the subjects of various Ordinances for considerable long period. The above case has no relevance to the facts of the present case."
15. The instant case stands on much strong footing as every Ordinance promulgated from time to time was laid before both the Houses, thus, the mandate and the scheme of the Article of not allowing the Executive to usurp the power and function of the Legislature was duly complied with but both the Houses took time rather years to make up its mind to approve the law. Either of the House did not disapprove the legislation. In this situation, the vacuum had to be filled and provided for to prevent chaos and disruption of administration of criminal justice. There was no other mechanism to fill the vacuum provided for by the Constitution. The President had to act and as matter of State necessity to provide for the legal cover and bringing to book the violators of rights of citizens in person, body and property. The criteria laid down and condition necessary for re- enactment of the Ordinance as noted in the abovenoted precedent existed, as such in our view the Ordinance XXX of 1991 promulgated on 28-8-1991 validly held the field and was operative in law and the appellant was rightly tried for the offence of murder as defined and made punishable under the said Ordinance.
16. We may add that in the contrary judgment of Mr. Justice Saleem Akhtar, as he then was, the emphasis is on mandate of Article 89 regarding laying of the Ordinance before the Assembly and the possibility of misusing the power to promulgate the Ordinance, or to make mala fide and arbitrary legislation which should be discouraged and curbed. The application of doctrine of State necessity was ruled out in the case observing that alternative provisions of the Constitution could be used for providing for the situation rather than employing the power of legislation through Ordinance. Learned Judge, however, contemplated a situation in which re-enactment may be considered valid. The observationsins are contained in paragraph 11 of his judgment which reads as under:--- "Before concluding it may be pointed out that Article 89 has fixed the maximum life of an Ordinance as four months without any provision for its extension and that it should be placed before the Assembly or both the Houses which would decide whether in the situation and circumstances it should be continued and made into an Act. The power to promulgate an Ordinance is for a transitory period not exceeding four months (and three months in the case of a Governor under Article 128). If it is not laid before the Assembly or not approved and the circumstances which had existed at the time of promulgation of the Ordinance continue, then even if the Assembly is not in session, the same Ordinance cannot be re-promulgated. The will of the Legislature is supreme. If it was not laid before the Assembly, executive is to be blamed as it avoided to have the approval of the Assembly. But if the Assembly disapproved it, the matter ends.
It is only on existence of fresh circumstances as distinguished from the continued circumstances for which Ordinance has been issued that an Ordinance can be promulgated."
17. No doubt, the will of the legislature is supreme. In the present case the legislature could disapprove the Ordinances as these were being laid before it. Either of the Houses did neither approve nor disapprove them. These remained pending before the Houses or its Committees. The life of the citizens had to be secured; administration of criminal justice could not be allowed to be disrupted; the vacuum created on ceasing of the provisions of Pakistan Penal Code to be effective had to be provided for; the mandate and the scheme of securing supremacy of legislation was being complied with and fulfilled; the inaction or failure to meet with the time or the period given in Article 89 of the Constitution cannot be construed in a manner which will lead to chaos, anarchy and lawlessness in the society. The very fact that one such situation, which, will provide justification for re-enactment has been conceded by Saleem Akhtar, J. Shows that while keeping the will of legislature supreme, the well being of the society and the citizens provides sufficient justification for legislative measure taken by the executive, i.e, the President of Pakistan in safeguarding the life, liberty and rights of citizens. The legislature also exists to achieve ultimate good and welfare of the citizens.
18. The two contentions of the learned counsel for the appellant noted in paragraph 7 above, in view of the conclusion that the Ordinances containing the provisions of Qisas and Diyat were validly promulgated from time to time and are not ultra vires the Constitution and are validly in force, remain no longer available as the very premises on which these pleas rested have become extinct. Even otherwise the plea that the Shariat Appellate Bench has no authority or power to make the declaration and issue the direction as has been made and issued in the review petition titled Federation of Pakistan and another v. N.-W.F.P. Government and others (supra) is misconceived. A similar contention was dealt with by the Shariat Appellate Bench of the Supreme Court in Suo Motu Shariat Review Petition No,1-R of 1989 (PLD 1990 SC 865) and Ajmal Mian, J. Made the observation, to which other members of the Bench also concurred, that the Shariat Appellate Bench can declare either a provision of law or the law as a whole as repugnant to the Injunctions of Islam; It can also declare that if certain basic ingredients of a particular Islamic law are missing in a Statute, it would be against the Injunctions of Islam to enforce such a Statute without having such basic ingredients therein. It was further held that the Shariat Appellate Bench can take upon itself exercise of clarifying the effects of its judgment, and or to supply any obvious omission in any part thereof, and that the Shariat Appellate Bench can additionally press into service any recognized principle of Islamic jurisprudence which is not in conflict with the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) by virtue of Articles 2A and 227 (2) of the Constitution. The declaration made, the clarification issued and direction given by the Shariat Appellate Bench in the Review jurisdiction, therefore, cannot be dubbed as illegal, incompetent or in excess or beyond the power or jurisdiction vesting in the Bench.
19. Now the second contention, which in fact is the alternative plea that Islamic common law should have been applied but the same was neither invoked nor referred to, may be taken up.
Learned counsel elaborated this plea by submitting that the learned Trial Court did not comply with the mandatory requirement of Tazkiya-al-Shahood of witnesses and such conviction of the appellant is illegal. Requirement of Tazkiya-a-Shahood (certification of probity of witness) is no doubt obligatory in cases punishable with Hadd and/or Qisas but where an accused is tried and is to be awarded punishment in Tazir, Tazkiya of witnesses is not necessary requirement of the trial.
The provisions of law relevant in this context are Articles 3 and 17 of the Qanun-e-Shahadat, 1984.
Relevant extract of Article 3 reads as under:--- "All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind: Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence: Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter, and mended his ways: Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available."
Article 17 reads as under:--- "17. Competence and number of witnesses.---(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law---
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
20. The laws relating to enforcement of Hudood, for instance, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) and Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) respectively, in sections 7 and 8 thereof, provide for Tazkiya of the witnesses as a mandatory requirement of the trial. Hence, Tazkiya-al-Shahood is compulsory in cases of Hudood and Qisas because doubts cause removal of Hudood punishment. Therefore, it is necessary for a Qazi/Court to go deep in matters of Hudood and even if the competency of a witness is not challenged by party concerned, the evidence of the witness cannot be acted upon without subjecting the said testimony to Tazkiya. It is stated in Ibn Nujaim's Bahr al-Ra'iq that "if the credibility and integrity of the witness is known to Qazi, then it is not necessary to conduct an enquiry about his character and probity; Qazi shall deliver his judgment on the basis of the available evidence on record. If the viciousness of the witness is known to Qazi, then Qazi shall reject his evidence, while in case the Qazi knows nothing about the witness and the opposite party proves that the witness has committed such a crime as a result of which, his evidence shall be rejectable. If the defendant raises no objection, the Court shall declare the witness as credible or otherwise, by conducting open and secret enquiry." In cases other than Hudood and Qisas, the Islamic Injunctions insist on producing Adil witnesses i.e,, men of probity and rectitude. The saying of the Holy Prophet Muhammad (p.b.u.h.), according to a tradition related by Omar, is that "All Muslims are just with respect to evidence, excepting such as have been punished for slander".
Imam Abu Hanifah has said that for Qazi, suffice it to rely on the apparent probity of the witnesses and he will not enquire about their credibility or otherwise, unless the defendant raises objection about their truthfulness. In Mu'inul Hukkam it is opined that if impiety and falsehood become common and credible witnesses are rarely available, in such circumstance, as a matter of necessity, the evidence of the uncredible witnesses may also be acceptable, so that the rights of the people should not be lost. It is for this reason that in Article 17 of the Qanun-eShahadat, 1984 it is provided that in all other matters i.e, matters other than Hudood or fiscal matters, or matters falling under special law, the Court may accept the evidence or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. Thus, in the criminal cases, where accused is being proceeded against for awarding Tazir punishment, the Court can legitimately act on evidence which, to the satisfaction of the Court, establishes the guilt of the accused beyond reasonable doubt.
21. Tazkiya-al-Shahood, its meaning and/or scope, analysis and discussion was made by the Shariat Appellate Bench of this Court, Federal Shariat Court of Pakistan, Lahore High Court, Peshawar High Court, Supreme Court of Azad Jammu and Kashmir and Shariat Court of Azad Jammu and Kashmir in the following cases holding that the Tazkiya-al-Shahood is a mandatory requirement in cases of Hudood and Qisas:---
(1) Sanaullah v. The State (PLD 1991 FSC 186);
(2) State v. Punnu Khan (PLD 1984 SC (AJ&K) 1);
(3) State v. Nazir (PLD 1986 Sh.C. (AJ&K) 143);
(4) Ghulam Ali v. The State (PLD 1986 SC 741);
(5) Nadir Khan v. The State (PLD 1992 FSC 390);
(6) Arshad Ali v. The State (1993 PCr.LJ 2540);
(7) Mumtaz Ahmad and another v. The State (PLD 1990 FSC 38;
(8) Danial Boyd (Muslim name Saifullah) v. State (1992 SCMR 196);
(9) Hassan Muhammad v. State (PLD 1989 SC (AJ&K) 5);
(10) Masood Aziz v. The State (1989 PCr.LJ 1462);
(11) Abdul Razaq and another v. The State (PLD 1988 SC (AJ&K) 190);
(12) Niaz Khan v. State (PLD Sh.C. (AJ&K) 9);
(13) Ghulam Ali v. The State (PLD 1986 SC 741);
(14) Naseer Hussain v. The State (PLD 1984 Lah.67);
(15) Home Secretary N.-W.F.P. v. Muhammad Ayaz Khan etc. (PLD 1996 Pesh. 76);
(16) Manzoor etc. v. The State (1992 SCMR 2037).
22. In the case of Home Secretary N.-W.F.P. v. Muhammad Ayaz Khan PLD 1996 Pesh. 76, parties had participated in the proceedings without raising any objection to the conduct of the trial on the conclusion of which death penalty was awarded, appeal of the convict was dismissed by the Peshawar High Court and the penalty of death was confirmed, and the petition for leave to appeal filed before the Supreme Court was dismissed; ultimately black warrant was issued to carry out execution of the death sentence by causing death of the convict to be shot dead by wali of the deceased. A Constitution Petition was then filed raising the objection that the black warrant issued for execution of the death sentence by means of Qisas is illegal as he was awarded the death sentence by way of Tazir and such a death sentence is to be executed in accordance with law as provided under section 368, Cr.P.C. Learned Judges of the Peshawar High Court, after going through the record of the case found that in the said case principles of Tazkiya-al-Shahood were not followed as envisaged in the law of Islam and as the Trial Court had proceeded with the trial of the accused under Tazir and awarded the death penalty to the accused by way of Tazir and as a matter of record, at no stage there was any objection raised against the conduct of the trial under the law of Qisas up to the last forum of the Supreme Court, the death penalty awarded to the accused by the Trial Judge shall be covered by clause (b) of section 302, P.P.C. As Tazir. The execution of the death sentence by way of Qisas was declared to be illegal.
23. Reference may also be made to State v. Amir Zaman Hanafi and 4 others (PLD 1979 SC - (AJ&K)
78) wherein the Supreme Court of Azad Jammu and Kashmir took the view that Tazkia in Hudood and Qisas cases in invariably adhered to as a matter of abundant caution to remove all doubts about the competency of the witness and to avoid imposing punishment upon a Muslim as far as possible. In cases where Hudood or Qisas is not involved, the Qazi need not hold Tazkia-al- Shahood.
24. In the instant case, the appellant was awarded punishment of death by way of Tazir. As such there was no need to resort to Tazkiya-al-Shahood. This plea in fact is not available to him.
25. Learned counsel further argued that Muhammad Hanif, father of the co-accused/appellant having been acquitted by the learned Courts below, the same evidence could not have been relied upon for basing conviction of the appellant. He contended that the two eye-witnesses namely, Muhammad Sharif P.W.2 and Sultan P.W.3 were not believed as regards participation of Muhammad Hanif co-accused and according to the Injunctions of Islam if a witness is held as untrustworthy in respect of one accused, his evidence cannot be relied upon for convicting the co- accused. He added that the word "Chhurri" was substituted through interpolation in the F.I.R. For the word "Chaakoo/knife" which was originally written. This would show that the Police as well as the prosecution had acted mala fide and in these circumstances the conviction of the appellant was unwarranted. Lastly, it was submitted that the death penalty should not have been exacted as the appellant, if found to be guilty, had acted on grave and sudden provocation. In this connection he referred to the plea of the appellant taken in his statement under section 342, Cr.P.C., which plea was also suggested to the eye-witnesses while cross-examining them though the said suggestions were controverted and denied by them.
26. It is pertinent to note that it is not open to the learned counsel for the appellant to urge these pleas at this stage as while seeking leave to appeal these pleas appear not to have been argued as there was no mention of the same in the leave granting order, and leave to appeal was granted on only two questions noted in paragraph 5 above. However, with a view to do complete justice and to satisfy our conscience we have gone through the evidence on record and the judgments of the learned Courts below and find that the abovenoted contentions of the learned counsel for the appellant are without merit. Muhammad Hanif, co-accused, father of the appellant was acquitted as a matter of abundant caution and it would not be correct to assert that the evidence of the two eye-witnesses in respect of Muhammad Hanif co-accused was disbelieved. Muhammad Hanif was acquitted as only an insignificant role was attributed to him by the eyewitnesses. Moreover, in order to reach the truth, the grain has to be sifted from the chaff in each case in the light of its own particular facts and we are satisfied that the appraisal of evidence by the learned Courts below suffered from no legal infirmity and the conclusion that Riaz Ahmad had caused the murder by giving Chhurri blows to the deceased is well-founded. He, however, in his statement under section 342, Cr.P.C. Took the plea of grave and sudden provocation but from the very plea that he has taken the case of grave and sudden provocation is not made out. Firstly, he did not even pick up the courage to make a statement on oath and secondly, the statement that he made is to the effect that on the day of occurrence his wife had gone in the field to ease herself and Muhammad Siddique deceased went there and tried to outrage her modesty and he (Riaz Ahmed, accused) incidentally went there and for the purpose of saving his wife, grappled with Muhammad Siddique and some injuries were inflicted on the person of Muhammad Siddique with a knife which was kept for the purpose of cutting Datan. It would be noted that no details, as to how and in what manner attempt to outrage the modesty of his wife was made, were given. Moieover, nothing was brought on record to even prima facie establish the said plea. In these circumstances, the Courts below were right to observe that such a plea cannot furnish a mitigating circumstances for awarding lesser punishment. This aspect of the matter was dilated upon by the learned Judges in the impugned judgment and after analysing the injunctions from precepts of the Holy Prophet (p.b.u.h.) and the decided cases they rightly came to the conclusion that such a plea cannot be accepted. The plea of mala fide of the Police on account of alleged substitution of the word "knife/Chaakoo" also remained unsubstantiated. Moreover, learned Trial Court was right in observing that the factum of "knife" or "Churri" makes no difference. The stab wound could be of a "Chhurri" or a "knife". Be that as it may, the appellant in his Jail Petition has himself averred that he had given the repeated Chhurri blows to the deceased on seeing that the deceased had caught hold of his wife who was raising hue and cry and on seeing this he could not withstand the scene and caused repeated blows to the deceased.
27. For the reasons given above we find no merit in this appeal and the same is dismissed.