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Criminal Appal No. 19/Mzd. of 1979, decided on 16th September, 1982.

(On appeal from the judgment of the High Court dated 5th July, 1979 in Criminal Appeal No. 19 of 1978 and Criminal Revision No. 64 of 1978).

‑‑Ss. 5 & 24 (2) read with Penal Code (XLV of 1860). S. 302/ 376‑Trial of offences, under Islamic Penal Laws Act, jurisdic tion of‑Two just male eye‑witnesses not available with investigating agency‑ Challan under. S. 302; 376, A. P. C., held, rightly put in Court of Sessions Judge, in circumstances.‑[Witness]

----S. 16‑Cbram non judice‑Contention that District Court of Criminal jurisdiction irrespective of fact that challan was submitted to Sessions Judge had on direction of High Court assumed jurisdiction to hear and dispose of case‑‑Contention, held, having no substance because S. 16 of Laws Code Act empowers High Court to transfer case from a competent Court to another Court equally competent to hear same‑Cases under S. 302/376, A.P.C. being exclusively triable by Sessions Judge its trial by District Court of criminal jurisdiction, held further, coram non judice‑Conviction and sentence set aside, in circumstances. ‑[Jurisdiction]‑[Bail].

The accepted principle of law is that if a Court does not suffer from inherent want of jurisdiction but only the procedure or the mode of hearing is defective or irregular and a party joins issues and participates in the hearing without raising any objection about such a defect touching the jurisdiction, it cannot, later on, be allowed to turn round and challenge the jurisdiction of the Court when the case goes against it. But where there is a total lack of jurisdiction no amount of consent or participation in the proceedings, even without objection to jurisdiction can invest the Court with the jurisdiction which it never had and consequently the question of waiver or estoppel, would not arise.

A I R 1935 Sind 221 ; AIR 1941 Sind 36 ; Rumball v. Schmidt (1882) 8 Q B D 603, and Llewellyvi v. Vale of Glamorgan Ry. (1898) 1 Q B 473 ref.

‑‑S. 42‑A (1) read with Azad Jammu & Kashmir Supreme Court Rules, 1978, O. XLIII r. 5‑Inherent powers of Supreme Court Bail grant of‑Words "for doing complete justice in any case or matter pending before it" in S. 42‑A (I) of Interim Constitution, held, wide enough to clothe Supreme Court with powers to enlarge an accused sun mote on bail, if circumstances warranting such a cause‑Since arrest for over 6 years accused in jail, facing trial before an incompetent Court for no fault on his part and fresh trial further to consume time creating hardships for such accused ‑Accused allowed bail pending trial, in circumstances‑[Bail].

Sh. Abdul Aziz : Amicus curiae for Appellant.

Raja Muhammad Akram Khan, A.‑G. for the State

‑One spinster Ust. Saja Begum daughter of Muhammad Ayub, aged about 50/52 years, who lived all alone in the village of Chatra, Tehsil Havely, District Poonch, was done to death on the night falling between 19th and 20th of April, 1976.

2. It is claimed by the prosecution that Mst. Saja Begum, after committing rape on her person, was murdered by Muhammad Sadiq, appellant herein, who also hails from the same vicinity.

3. The case against the appellant originally was presented by the prosecuting agency in the Court of Sessions. Judge, Poonch (Rawalakot), under section 302/376, A. P. C. on 24th June, 1976. At a later stage when statements of some of the prosecution witnesses had already been recorded by the Sessions Judge, the case, on the direction of the High Court made on 7th June, 1977, was tried afresh and disposed of by the District Court of Criminal Jurisdiction, Poonch, which finding the appellant guilty of the offences charged with, vide judgment dated 31st October, 1978. proceeded to convict him under section 5 of the Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as the Islamic Act) and the appellant was sentenced to pay Diyyat' amount to the tune of Rs. 23,000. For committing rape he was, under section 376, A: P. C., also sentenced to five years' rigorous imprisonment and a fine of Rs. 500.

4. The appellant moved an appeal before the High Court which, vide order dated 5th July, 1979, ended in rejection. However, the High Court in accepting the revision petition, moved by the State, felt advised to enhance the sentence to life imprisonment. This appeal seeks to call up and quash the said judgment of the High Court.

5. Before going to the merits of the case the most important question, in the first instance, which falls for determination is as to whether the District Court of Criminal Jurisdiction had the jurisdiction to hear and dispose of the case under section 302/376, Penal Code. It may be stated here that these offences are triable by the Sessions Judge and the District Court of Criminal Jurisdiction ordinarily is not competent to lay its hands on such like cases unless, of course, the evidence required under the Islamic Act two just male eye‑witnesses) is available. Such situation also lacks in this case.

6. To understand the point with clarity it would be profitable to reproduce subsection (2) of section 24 of the Islamic Act. Subsection (2) of section 24 reads :‑

It would appear that under the provisions of aforesaid section the investigating agency is clothed with the powers to send an accused for trial under ordinary law, i. e. under the provisions of Penal Code, if it comes to the conclusion that any of the penal provisions of Islamic Act are not attracted to the facts of a case. In the instant case the requisite evidence under the Islamic Act, i. e., two just male eye‑witnesses, was not available with the investigating agency and, therefore, the challan, under section 302/376, Penal Code, had very rightly been put up in the Court of Sessions Judge, Poonch.

7. The next question, therefore, which requires consideration is as to whether despite the challan being submitted before the Sessions Judge the District Court of Criminal Jurisdiction in the circumstances of the case was still, on the orders of the High Court, competent to hear and dispose it of and if the answer is in negative, how it affects the disposal of the case

Sh. Abdul Aziz, the learned counsel for the appellant, contended that the District Court of Criminal Jurisdiction irrespective of the fact that the challan was submitted before the Sessions Judge had, on the direction of the High Court, the jurisdiction to hear and dispose of the case. To support him he had referred us to section 16 of the Courts and Laws Code Act, 1949. The section says :‑

"The High Court shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise 'competent to investigate and try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court."

8. According to the learned counsel, under the aforesaid provision of the Courts and Laws Code Act the High Court had competently transferred the case from the file of the Sessions Judge to that of the District Court of Criminal Jurisdiction and this transfer order also gives competence to the Court to decide the case. The argument to us has no substance. The reading of the above section makes us to believe that it only gives power to the High Court to transfer, the case from a competent Court to another Court which is also equally competent to hear the same. Here in this case the District Court of Criminal Jurisdiction, as stated earlier, constituted under the provisions of the Islamic Act, could not take cognizance of the case under section 302/376, Penal Code which was presented by the police before the Sessions Judge. The High Court cannot make law ; rather it is only to interpret it, and the High Court, therefore, was incompetent to transfer the case to a Court who had no legal control over it. The order of the High Court, therefore, is to be treated as a nullity.

9. The learned counsel has relied on A I R 1935 Sind 221 and A I R 1941 Sind 36 Both. the cases have very small bearing on the facts of the present case. These cases hold that where the Legislature has provided that the offence is to be tried by a certain Court that is to be tried by that Court only and no other Court unless specially empowered to do so.

10. The accepted principle of law is that if a Court does not suffer from inherent want of jurisdiction but only the procedure or the mode of hearing is defective or irregular and a party joins issues and participates in the hearing without raising any objection about such a defect touching the jurisdiction, it cannot, later on, be allowed to turn round and challenge the jurisdiction of the Court when the case goes against it, But where there is a total lack of jurisdiction (as the case is before us) no .amount of consent or participation in the proceedings, even without B objection to jurisdiction can invest the Court with the jurisdiction which it never had and consequently the question of waiver or estoppel, as contended by the learned Advocate General would not arise. The decision of the Court in such a case will be a nullity in the eyes of law; but not so when the Court had the initial jurisdiction but adopts a defective procedure or mode of hearing without any objection from the party concern ed. In the instant case, the District Court of Criminal Jurisdiction suffers from total lack of jurisdiction. The case was only triable by the Sessions Judge and not by the District Court of Criminal Jurisdiction. The District Court of Criminal Jurisdiction is only competent to hear a case which is triable under any of the penal provisions of Islamic Act. Since the District Court of Criminal Jurisdiction, which decided the case, lacked the jurisdiction to hear it, the decision is illegal and without jurisdiction. When a Court has no inherent jurisdiction over the subject‑matter of a suit or cause the parties cannot, as hinted earlier, by their mutual consent convert it into a proper judicial process.

11. The position being so, the trial of the case by the District Court of Criminal Jurisdiction is coram non judice. In other words the District Court of Criminal Jurisdiction had no jurisdiction to try the case and had wrongly punished the appellant. The order of the High Court, as contended by the learned counsel for the appellant, we are afraid, cannot vest jurisdiction in the District Court of Criminal Jurisdiction as law does not give such a jurisdiction to it.

12. Our considered view thus is that the District Court of Criminal Jurisdiction, Poonch, was not competent to hear and dispose of the case under section 302/376, Penal Code ; and such a decision being a nullity is necessarily to be recalled. We may refer here to an earlier case Rumball v. Schmidt' ((1982) 8 Q B D 603) Huddleston B. This case owns our view. It has been observed in that case :‑

"Where there is an enactment which may entail penal consequences, you ought not to do violence to the language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it by express language."

Similarly it has been said by A. L. Smith L. J. in "Llewellyn v. Vale of Glamorgan Ry" ((1898) 1 Q B 473).

"When an Act (imposing a penalty) is open to two constructions, that construction ought to be adopted which is the more reasonable and the better calculated to give effect to the expressed intention. which in this case is that the penalty shall be paid."

13. We are alive to the fact that the accused had to face protracted trial for no fault on his part but unfortunately we are unable to decide the case ourselves and thus rectify the wrong done to the appellant. Here, another point which though not raised calls for consideration is as to whether this Court, in view of the circumstances of this case, is com petent to release the appellant on bail. For this we have considered section 42‑A (1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (as amended) and rule 5 of Order XL1I1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Section 42‑A (1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, reads :‑

"The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document."

14. This is similar to Article 181 of Pakistan Constitution. The powers of the Supreme Court under this section "for doing complete justice in any case or matter pending before it", it appears to us, are wide enough to clothe this Court with the powers to enlarge an appellant suo motu on bail if it finds that circumstances warrant such a course. The consideration of rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, reinforces our view that the Supreme Court C has got inherent powers to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

15. In this case after a careful and exhaustive review of the circumstances, we are satisfied that if at all there is a case fit enough for allowing bail to an appellant it is one of them. The appellant was arrested on 23rd April, 1976. Since his arrest spreading over the period of more than six years he remained either in the judicial lock‑up or in jail. He had to face the trial before an incompetent forum. He bad in no way contributed towards it and the trial afresh would consume further time creating hardships for the appellant. Our judicial conscience, in these circumstances, advises us not to keep the appellant in Jail judicial lock up any more and allow him bail pending trial.

We, therefore, in exercise of the powers conferred under section 42‑A (1) of the Azad Jammu and Kashmir Interim Constitution, Act, 1974, read with rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, allow bail to the appellant pending decision of the case. The appellant shall be set at liberty on his executing the bail bond in the amount of Rs. 30,000 and the personal surety in the same amount to the satisfaction of any Magistrate first class functioning in Poonch District.

16. The upshot of the whole discussion is that we accept this appeal set aside the conviction recorded against the appellant by the High Court and District Criminal Court and remand the case to the Sessions Judge, Muzaffarabad, who is also Additional Sessions Judge, Poonch, to proceed with the trial of the case afresh frog the initial stage.

We have sent the case to the Sessions Judge, Muzaffarabad (Additional Sessions Judge Poonch), for disposal as kh. Aziz‑ud‑Din, Sessions Judge. Poonch, had already expressed his inability to hear the case on the ground that the appellant, at the relevant time of occurrence, was the personal servant of Kh. Said Ullah, a close relative of the Sessions Judge. For this reason the case was transferred to another Sessions Judge from the file of Kh Aziz‑ud‑Din,

Order accordingly.

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