1. ' KHAWAJA MUHAMMAD SAEED, C.J.---This revision petition has arisen out of the following facts:--- ' On the complaint lodged by Wazir Hussain Shah complainant on 26-5-1987 at. Police Station, Dodyal, District Mirpur a case under section 5 of the Islamic Penal Laws (Enforcement) Act read with section 307/34, A.P.C., was registered against six accused-persons. After necessary investigation, all the accused-persons were sent to face trial before the District Court of Criminal Jurisdiction, Mirpur. In support of the charge, the prosecution has cited 18 witnesses including three female witnesses namely: Mst. Zarone Fatima, Mst. Kouser Perveen and Mst. Shehzad Wazir.
2. ' On 3-4-1995. Mst. Kouser Parveen and Mst. Shehzad Bi appeared in the Court for the purpose of their evidence. The trial Court recorded examination-in-chief of Mst. Kouser Parveen in the presence of Mst. Shehzad Bi, P.W. But cross-examination of the witnesses could not be recorded as the Court time was over. The case was adjourned for the purpose of cross-examination of these witnesses, to 15-5-1995. On this date, Mst. Shehzad Bi, other female witness on account of her illness could not appear before the Court as such the case was fixed for recording evidence of these witnesses on 22-6-1995. On this date, an application was moved before the trial Court by the learned counsel appearing for the accused-persons stating therein that the statements of these lady witnesses be recorded separately. The prayer was declined by the trial Court vide impugned order, dated 22-6-1995. Hence the present revision petition.
3. ' Whether in a criminal case, the lady witnesses are required to be examined together or their statements are to be recorded separately, is a question which in past came for decision of this Court in three cases.
4. ' First time in a murder case titled Muhammad Manzoor v. The State, PLD 1983 Shariat Court (AJ&K) 1, a revision petition was taken to the Azad Jammu and Kashmir Shariat Court by the accused- petitioner as in that case, the trial Court had held that under the Shariat Law, the statements of two women witnesses shall be recorded together in the presence of one another as is laid down in Verse No,282 of Surah-al-Baqarah' of the Holy Qur'an. The learned Chief Justice of the time in that case set aside the order of the trial Court in revision and directed the Sessions Judge Rawalkote to record the statement of women witnesses separately.
5. ' Second time, a reference was made by the District Court of Criminal Jurisdiction Mirpur in a case titled 'State v. Basharat Ahmad and others', PLD 1984 Shariat Court (AJ&K) 16 in which two women witnesses were included in the Calendar of Evidence. Both these women witnesses were present in the trial Court on 22-1-1984. The learned public prosecutor produced one of them for the purpose of recording her evidence. The learned defence counsel raised an objection that under the Islamic Law, the statements of both the women witnesses must be recorded together. The point was mooted before the trial Court by the learned counsel for the parties. The learned Sessions Judge agreed that. The view expressed by the learned public prosecutor that the statements of the female witnesses may be recorded separately whereas the learned District Qazi was of the view that the statements of the female witnesses shall be recorded together.
6. ' On account of the difference of opinion on the question of recording of evidence of two female witnesses, a reference was made to the Shariat Court for its opinion. The learned Judge of the Shariat Court returned the reference with the following observation: "At the time of recording the statement, both of the women witnesses shall remain present before the Court and their statements shall be recorded one by one, according to the law and practice in vogue for recording statements of witnesses. If during the course of the statements one woman witness, making the statement, states something which according to the other woman witness hearing such statement, is not the true account of the matter in dispute, she (the other woman) will be at liberty to help her remember the correct version."
7. ' Third time, the dispute arose in a case titled "State v. Nazir and others", PLD 1986 Shariat Court (AJ&K) 143, before the District Court of Criminal Jurisdiction, Mirpur. In that case two women were cited as prosecution witnesses. In the light of the above referred two previous judgments, the learned Members of the trial Court could not decide that what mode be adopted for recording their statements as such the matter was referred to the Shariat Court through a reference for its final opinion.
8. ' The Division Bench of the Shariat Court while interpreting the Verse No,282 of 'Surah-al-Baqarah' of the Holy Quran, draw the conclusion that both the lady witnesses shall appear in the Court together for the purpose of evidence. One of them shall make statement whereas the other one shall help her remember the correct facts, in case she is of the view that the lady making statement is not giving correct statement due to her forgetfulness.
9. ' In view of above referred conflicting views expressed previously by this Court, it was felt proper to constitute the Full Bench of the Shariat Court to resolve the controversy once for all. As legal question of great public importance requiring interpretation of the codified law and guidance from the Verse No,282 of 'Surah-al-Baqrah' of the Holy Qur'an was involved, the Bench felt it appropriate to sought the assistance of M/s. Choudhri Abdul Majid Malik, A.K. Ansari, M.S. Tariq, Ch. Lal Hussain, Ch. Abdul Aziz and Ch. Liaqat Ali Khan, Advocates from the Local Bar, Mirpur besides the learned counsel for the parties.
10. ' The learned counsel for the petitioner argued that the evidence of the women witnesses under the provision of the Criminal Procedure Code which has been made applicable in Azad Kashmir, is required to be recorded like male witnesses separately because this is the only method for testing the veracity of their evidence. According to him, there are three female witnesses in this case. If the prosecution shall tender two out of them in evidence together, how the statement of third female witness shall be recorded. According to the learned counsel, the Quranic Verse No,282 is in respect of financial and future obligations and it has no application in the criminal matters where the parties have got no choice of keeping the witnesses. He in support of his contention relied on the translation of the Verse No,282 of 'Surah-alBararah' of the Holy Qur'an. His view point was supported almost by all the Advocates except Mr. A.K. Ansari who appeared on the notice of the Court.
11. ' According to the learned counsel for the petitioner, this Verse deals with the financial matters. The Almighty Allah has provided guidance to its people that whenever they borrow anything from each other, they should get the terms of the contract reduced into writing from somebody who should write it down justly between them. The Almighty Allah has also guided the people that the among themselves should invite two men to witness this deed. If two men are no, available then one man and two women should be cited as marginal witnesses so that if a woman forget something in a case of dispute, the other one will help her remember the correct account. According to him, in the light of the guidance provided by the Almighty Allah in Verse No,282 of 'Surahal-Baqarah', the choice of selection of the witnesses is left on the persons engaged in the contract.
12. ' On the other hand, the learned counsel for the complainant, Additional Advocate-General and Mr. A.K. Ansari, argued that this guidance is absolute and is applicable in all those cases where two or more ladies are cited as witnesses because the forgetfulness attributed to a lady shall be presumed in the light of the above referred Verse of the Holy Qur'an, in every case, irrespective of the fact whether it is criminal or civil.
13. ' We have considered the respective arguments of the learned counsel for the parties as well as of those who appeared and helped us on the notice of the Court.
14. ' The first question which needs resolution, is as to whether Verse No,282 of 'Surah-al-Baqarah' deals with such contracts where the financial interest and future obligations of the parties thereto are involved or the principle laid down in this Verse shall apply to the criminal matters including one at issue before us.
15. ' Moulana Abu-al-Aala Maudoodi, an eminent Muslim Jurist has interpreted the relevant Verse No,282 of Surah-al-Baqarah" of the Holy Qur'an in the following words:--- {{URDU TEXT}} ' Moulana Mufti Muhammad Shafi, another great Muslim Jurist has expressed the same view in the following words: {{URDU TEXT}} ' Moulana Syed Amir Ali, an eminent Muslim Scholar has interpreted the Verse No,282 of the 'Surah- al-Baqarah' of the Holy Qur'an in the following words: {{URDU TEXT}} ' Abdullah Yousuf Ali has written the translation and commentary of the Holy Qur'an in three volumes. In the first Volume, he has translated the Verse No,282 in the following words:--- "Ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Ll.t a scribe write down faithfully as between the parties, let not the scribe refuse to write: as God has taught him, so let him write. Let him who incurs the liability dictate, but let him fear his Lord God, and not diminish ought of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (for evidence) Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is Juster in the sight of God, more suitable as evidence, and more convenient to prevent doubts among yourselves but if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing. But take witnesses whenever ye make a commercial contract; and let neither scribe nor witness suffer harm. If ye do (such harm), it would be wickedness in you. So fear God; for it is God that teaches you. And God is well-acquainted with all things."
16. ' The learned Author has written following commentary about the Verse No,282 of Sura-Al-Baqarah of the Holy Qur'an:--- "The first part of the verse deals with transactions involving future payment or future consideration, and the second part with transactions in which payment and delivery are made on the spot.
17. Example of the former are if goods are bought now and payment is promised at a fixed time and place in the future, or if cash is paid now and delivery is contracted for at a fixed time and place in the future. In such cases a written document is recommended, but it is held that the words later on in this verse, that it is 'jester more suitable as evidence, and more convenient to prevent doubts', etc., imply that it is not obligatory in law. Examples of the latter kind--cash payment and delivery on the spot---require no evidence in writing, but apparently oral witnesses to such transactions are recommended.
18. ' The scribe in such matters assumes a fiduciary capacity; he should, therefore, remember to act as in the presence of God, with full justice to both parties. The art of writing he should look upon as gift from God, and he should use it as in His service. In an illiterate population the scribe's position is still more responsible.
19. ' Possibly the person 'mentally deficient, or weak, or unable to dictate', may also be incapable of making a valid contract, and the whole duty would be on his guardian, who again must act in perfect good faith, not only protecting but vigilantly promoting the interests of his ward.
20. ' It is desirable that the men (or women) who are chosen as witness should be from the circle to which the parties belong, as they would best be able to understand the transaction, and be most easily available if their evidence is required in future.
21. ' Commercial morality is here taught on the highest plane and yet in the most practical manner, both as regards the bargains to be made, the evidence to be provided, the doubts to be avoided, and the duties and rights of scribes and witnesses. Probity even in worldly matters is to be, not a mere matter of convenience or policy, but a matter of conscience and religious duty. Even our every-day transactions are to be carries out as in the presence of God."
22. Keeping in view the interpretation made by the above eminent Muslim Scholars and Jurists, the view point expressed by the learned counsel for the petitioner and supported by the arguments addressed by Mr. Choudri, Mr. Abdul Majid Malik, Mr. M.S. Tariq, Ch. Lal Hussain, Ch. Abdul Aziz and Ch. Liaqat Ali Khan, Advocates, it becomes clear that in fact this verse deals with the financial matters, wherein a guidance has been provided by the Almighty Allah that the parties to the deed of debt should cited two men or one man and two women as its marginal witnesses so that if need arises for their evidence in case of any dispute between them about the same or any condition therein, the evidence of the women witnesses in such case be recorded together in the presence of each other so that if one errs in respect of the disputed facts, the other one will help her to remember the correct account. These women witnesses like male witness are to be selected by the parties through their mutual agreement.
23. ' The learned Division Bench, in the case titled "State v. Nazir", PLD 1986 Supreme Court (AJ&K) 146, has taken into consideration valuable work done by the Muslim Jurists on the interpretation' of this Verse of Holy Qur'an and have themselves translated this verse in the following words:-- {{URDU TEXT}} ' The learned Bench should have taken into consideration all the parts of the verse together because the second part whereby evidence of female witnesses is mentioned that expound the first part which relates to commercial matters relating to future obligations.
24. ' In order to maintain the commercial morality between the Followers of Allah, the guidance has been provided to them in this Verse. It is desirable that they while setting the terms of any transaction involving future payment or future obligation should agree upon at least two male, or one male and two female witnesses, from the circle they belong, and cite them as marginal witnesses of the transaction deed so that in case of any dispute in future, the evidence of the female witnesses may be recorded in the presence of each other. So, that if one while making statement errs due to her forgetfulness, in respect of any matter, the other one would remind her about the true fact.
25. It is our considered view that in the criminal cases, the witnesses cannot be made by the parties through mutual consent. If this principle is adopted in the criminal cases, a sole lady witness of the occurrence cannot appear in the Court for her evidence. Our conclusion finds support from Article 17 of the 'Qanoon-e-Shahadat', 1984. The law relating to evidence was revised and amended in 1984 so as to bring it in conformity with the Injunction of Islam as laid down in the Holy Qur'an and Sunnah. Article 17 being relevant is reproduced for the purpose of guidance:--- "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 matter pertaining to financial or future obligations, if reduced to writing, the instrument shall be 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."
26. ' It, thus becomes clear that only in matters pertaining to financial interest and future obligations of the parties, the Command of the Almighty Allah contained in the 'Verse 282 of the 'Surah-al- Baqarah' of the Holy Qur'an shall apply.
27. In view of above it is held that in criminal cases the evidence of the female witnesses shall be recorded separately. Even otherwise the evidence in criminal cases is to be recorded in the manner provided under sections 356 and 360 of the. Criminal Procedure Code wherein it is laid down that C the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate of Sessions Judge or in his presence and hearing and under his personal direction and superintendence and shall be signed by any other Member of the Court. The procedure prescribed under the codified law is necessarily to be followed uptill and unless the change is affected in it through a C competent legislation.
28. ' In case titled 'Faqir Ali v. Standard Bank Ltd. Muzaffarabad', PLD 1979 SC (AJ&K) 62, a point was raised on behalf of the appellant that the Bank was not justified in demanding the interest from his client because under the Holy Qur'an, the Almighty Allah has prohibited to demand interest on any transaction arising out of a contract. The contention was repelled firstly on the ground that the terms of a contract relating to loan, is not hit by section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 or section 48 of the Courts and Laws Code Act, 1949; and secondly on the ground that till the existing laws are not changed, they shall remained operative.
29. ' The Courts are guided by the codified laws. According to the Criminal Procedure Code, only one person can appear for his/her evidence in the Court. There is no justification that two women cited in the Calendar of Evidence by the prosecution shall appear together in the Court for the purpose of their evidence.
30. ' In view of above, while allowing this petition, the impugned order is set aside. The trial Court shall record evidence of female witnesses one by one in accordance with the law. The challan in this case was presented before the Court on 5-7-1987. We expect that the trial Court shall complete further proceedings in the case expeditiously.