Find a Lawyer

Criminal Reference No. ( ) of 1975, decided on 22nd December 1975.

---S. 26 read with Ss. 5 & 23(3) and Penal Code (XLV of 1860), Ss. 302, 307,148 & 149 read with Ss. 34 & 109‑Witness‑Credibility‑‑ Ascertainment of antecedents of witnesses for determining their credibility (TAZKIAA GAWAHHAN)---‑Held, should precede rather than follow examination of witnesses.‑‑[Witness].

Rafique Mahmood, Addl. A. G. for the State.

Agha Ashiq Hussain for the Accused.

This is a murder case, which is being tried in the District Court, Mirpur, under sections 302, 307, 148 and 149 read with sections 34 and 109 of the Penal Code and section 5 of the Islamic Penal Laws Act of 1974. The Islamic Penal Laws Act of 1974 visualises the trial of cases made punishable by the said Act, which includes a case of murder, by a District Court consisting of the Sessions Judge and the District Qazi. As the accused are also being tried under section 5 of the Islamic Penal Laws Act, which makes murder punish able under the said Act, the case is being tried by the Mirpur Distract Court consisting of the Sessions Judge and the District Mufti.

Recording of evidence has not started as yet.

Section 23, subsection (3) of the said Act, provides that in case of diffe rence of opinion between the members of the District Court, the matter is to referred to a Division Bench of this Court for decision. Section 26 of the said Act provides that the Court will ascertain the antecedents of the witnesses so as to determine their credibility. There has been a difference of opinion between the learned Sessions Judge and the learned District Qazi as to whether this ascertainment of the antecedents of the witnesses, which is called in Muslim law as "TAZKIAA GAWAHHAN" is to be done before the recording of their evidence or after evidence. The learned Sessions Judge is of the opinion that it is to precede while the learned District Qazi holds the opinion that it is to follow the examination of the witnesses. As the learned members of the Court did not agree on the point, the matter has been referred to this Court for decision.

We have heard the learned Counsel for the parties. There is no case‑law in the point nor did the learned Counsel cite any book on the Muslim jurisprudence, which could help us in deciding the issue. We have ourselves peen unable to lay our hands on any relevant published material, may be, perhaps, because we are not proficient in the Arabic language. Therefore, we have to rely merely on what we may call the commonsense.

In our view, the " TAZKIAA GAWAHHAN " should precede rather than follow the examination of the witnesses. The reason is that if on ascertaining the antecedents of a witness, some material damaging to the credibility of the said witness come to the notice and knowledge of the Court there is no guarantee at all, especially in the society and the times we live in, that it must necessarily be true. May be the learned Members of the Court, who have no personal knowledge in the matter and who may be strangers to the locality to which the witness may belong to, by chance happen to enquire only from the enemies of the, witness, or the greater number of those whom they consult are enemies of the said witness, or may be the man who impresses them the most happens to be on inimical terms with the witness or has formed an opinion himself on gossip, rumour or scandal which may not be true; then if the witness is Disbelieved, without having an opportunity of removing the doubt cast on his credibility, it would not only amount to condemning a person unheard but also condemning a case "in which he appeared as a. witness on a basis that is the very negation of justice. On the other hand, if this TAZKIAA GAWAHHAN" takes place before the witness enters the witness‑box, the Court would be in a position to bring to his notice and seek his explanation of matters that may have come to their knowledge daring such enquiry about his credibility and which in their opinion made him unreliable. May be, he is able to dissolve the doubt and thus not only prevent the cause of justice from suffering for no fault of his but also protect his own character, and credibility. Accordingly, upholding the view taken by the learned Sessions Judge we hold that " TAZKIAA GAWAHHAN " by the Court should precede their examination.

Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.