' This appeal has been preferred against the order and judgment of the District Criminal Court, Mirpur, dated 24th November, 1997, whereby the appellant was awarded to the sentence of ten (10) years rigorous imprisonment.
2. The facts precisely stated are that an F.I.R. Was lodged alleging that on 9-9-1995 at about 5-30 p.m. Mst. Allah Rakhi, deceased sister of the complainant was coming back from the house of in- laws of her son, Ishfaq. When she reached in a field nearby the house of Mirza Khan, the appellant armed with .30 bore pistol hurriedly came out of the gate of the house of Muhammad Khan who stopped Allah Rakhi and shot a fire upon her head. The blood started oozing and Mst. Allah Rakhi fell down in the field. On hearing the sound of tire complainant, Sajid son of Muhammad Razzaq, Mirza Khan son of Muhammad Ali and Ishtiaq son of Razzaq reached at the spot and witnessed the occurrence. Sajjad tried to catch hold of Muhammad Razzaq who also tried to shot a fire upon him but Mirza Khan forbade him to do so. The accused-appellant fled away from the scene of occurrence. Mst. Allah Rakhi was taken to the District Hospital, Mirpur, whereat she succumbed to her injuries.
3. The motive beyond the occurrence has been stated to be a dispute of marriage of Mst. Noreen Bashir with Sajjad son of accused-appellant. The appellant was not happy with this relationship and wanted to marry Mst. Noreen Bashir with his nephew.
4. On this report, a case under sections 324 and 337-A, A.P.C. Was registered which was later on converted into the offences under sections 302 and 341, A.P.C. Read with section 13/20/65 Arms Act.
The accused-appellant, Muhammad Razzaq, was arrested on 16-9-1995. The inquest report Exh.P.C.
Was prepared by Rab Nawaz Khan, Inspector Police (P.W.12) on 9-9-1995. After the post-mortem report, the blood-stained clothings of the deceased Shalwar P.2, shirt P.3 and Brazier P.4 were also taken into possession by Rab Nawaz Khan, Inspector Police vide recovery memo. Exh.P.E. Attested by Dr. Muhammad Bashir (P.W.l) and Mirza Khan (P.W.2) on 10-9-1995. On the same day Chaudhry Rab Nawaz Khan, Patwari (P.W.7) prepared site plan Exh.P.M. In the presence of the eyewitnesses and the police. The blood-stained clay was recovered from the spot and secured vide recovery memo. Exh.P.D. In the presence of Dr. Muhammad Bashir (P.W.1) and Mirza Khan (P.W.2) and on the same day the passport of the accused with some currency and other articles were recovered by Rab Nawaz Khan, Inspector Police in the presence of the abovementioned witnesses.
5. On 24-9-1995, Muhammad Razzaq, accused, led to the recovery of .30 bore pistol with 4 rounds and an empty from a deserted place near launch stand, which was taken into possession vide recovery memo. Exh.P.BB. And Exh.P.DD. Testified by Ghazi (P.W.5) and Ajaib Khan (P.W.6).
6. It has been reported by the Chemical Examiner vide his report Exh.P.O. That the clay P.1, Shalwar P.2 and brazier P.4 were stained with blood.
7. The autopsy of the dead body of Mst. Allah Rakhi was performed on 10-9-1995 at 9-15 a.m. By Dr. Riasat Ali Khan (P.W.10), Civil Medical Officer, District Headquarter Hospital, Mirpur. He noticed that death of Mst. Allah Rakhi has been caused due to extensive brain damage and due to injuries caused by a fire-arm. Dr. Muhammad Bashir (P.W.1) testified at the trial as a witness to furnish the ocular account of the prosecution case whereas Ch. Rab Nawaz Khan, Patwari (P.W.7), Abdul Qayyum Headconstable No,1767, (P.W.8), Naseer Ahmad Constable No,1933 (P.W.9) and Rab Nawaz, Inspector Police (P.W.12) were produced in support of the prosecution tale.
8. The convict-appellant pleaded that he was innocent and falsely implicated in the case because he had stopped the financial support to Dr. Muhammad Bashir (P.W.1). No evidence was produced by the defence.
9. District Criminal Court after the conclusion of the trial convicted the appellant and sentenced him to ten years rigorous imprisonment vide its judgment, dated 24-11-1997. The aforesaid judgment has been assailed through the instant appeal.
10. I do not want to narrate in detail the arguments addressed at the Bar and the case has to be remanded because the purgation of the witnesses was not conducted by the trial Court.
11. I have carefully perused the trial Court's file but could not find an interim order about any proceedings of Tazkiya of the eye-witnesses, thus, the impugned judgment was recorded without conducting the Tazkiya of the witnesses. For elucidating the matter, it would be expedient to reproduce here section 26(1) of Islamic Penal Laws (Enforcement) Act, 1974, which reads:-- {{URDU TEXT}}
12. The perusal of the above provision of law makes it abundantly clear that in cases of Hudood and Qisas, it is incumbent upon the Court to conduct purgation of the witnesses. In this respect, reference can be made to a case reported as Mehtab Khan v. The State and The State v. Mehtab Khan and 3 others PLD 1979 SC (AJ&K) 23, wherein it was opined that the purpose of purgation of the witnesses is to exclude the possibility of inclusion of tainted testimony especially in the cases of Qisas and Hudood, even if the witness has successfully stood the test of cross-examination in the Court. It was further observed that the purgation of the witnesses has to be done after and not before they have given their evidence as the requisite scrutiny under Sharia, about the witnesses being Adil, arises only after their evidence has been recorded and not before.
13. The same view was followed in Amir Zaman Hanafi's case PLD 1979 SC (AJ&K) 78 as under.
Tazkiya is an obligation on Qazi for ascertaining the competency and righteousness of a witness by himself or through the media of a purgator when the competency of a witness is challenged.
Therefore, in Hudood and Qisas cases the Court, in order to remove all doubts, should get the purgation done even if the probity of the witness is not challenged by the accused. In this case purgation being contrary to the basic principles of Islamic law, the judgment was set aside.
14. The similar proposition came under consideration in Muhammad Rashid Khan's case PLD 1979 SC (AJ&K) 136, wherein it was held that the provisions embodied in a statute make obligatory for the Qazi to conduct purgation of the witnesses because section 26(2) of the Act is mandatory in nature and failure to comply with the same is to be vitiated by the invalidity of the acts done in disobedience to the obligatory provision.
15. The same view was reaffirmed in Abdul Razaq's case PLD 1988 SC (AJ&K) 190, wherein the purgation of the witnesses was not conducted in accordance with the procedure available in Islam, the judgment was vitiated and the case was remanded to the trial Court.
16. The same question arose before the apex Court in a case reported as Hassan Muhammad v.
The State PLD 1989 SC (AJ&K) 5, where the purgation of the witnesses was declined by the District Qazi for the reason that the sentence of Qisas could not be imposed because of unworthy evidence of the prosecution. The Supreme Court of AJ&K after discussing the principle of Tazkiya in detail held that in all cases of Hudood and Qisas it is imperative for the Qazi to conduct Tazkiya of the witnesses. It was observed on page nine (9) of the report in the following manner:-- ' "I have given my dispassionate thought to the arguments advanced at the Bar, I have also studied the case file and the relevant law on the subject. I feel inclined to agree with the learned counsel for the parties that in this case purgation of the witnesses was a must and omission on the part of the Qazi not to do so is violative of section 26(1) of the Act and this fact renders the impugned judgment as an illegal one and needs to be recalled."
17. The survey of the case-law above stated leaves no doubt that the inquiry (Tazkiya) about the competence of witnesses is obligatory upon the Court which must be conducted after the evidence of the concerned witnesses is recorded. Since purgation of the witnesses has not been conducted, the impugned judgment is illegal and cannot sustain.
18. It will be useful to mention here that the practice and procedure followed by the Qazis at various periods of the history and the opinions of eminent Jurists, are being followed by our present judicial system which consists of four tiers of Courts.
19. The analysis of the above discussion is that I accept this appeal, set aside the judgment of District Criminal Court, Mirpur, dated 24-11-1997 with the direction that the purgation of the witnesses shall be conducted in accordance with law and the case thereafter shall be decided afresh. The parties are directed to appear before the trial Court on 23-10-2000.