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P L D 1985 Karachi 730
Before Munawar Ali Khan and Muhammad Zahoorul Haq, JJ
MUHAMMAD DAWOOD-Appellant
versus
THE STATE-Respondent
Criminal Appeal No. 72 of 1985, decided on 17tb September, 1985.
Ss. 408 & 477-A-Offences in Respect of Banks (Special Courts) Ordinance (1X of 1984), S. 6 (2)-Criminal breach of trust/misappropriation- Falsification of account -Accused, Manager of a Bank, requisitioning and receiving two amounts of one lac each from another branch of same bank -One amount he distributed amongst agriculturists as agricultural loan in anticipation of sanction from competent authority while other he utilised by paying private loans he had raised for adjusting loans allegedly advanced to agriculturists-Accused made no entries of both these sums he received from other Branch, in account books of his branch for which said sums were actually meant- Investigating team headed by Zonal Head detecting that documents relating to I.B.C.A. in respect of first sum were missing from Strong Room while documents regarding other I.a.C.A. were available there-Accused himself admitting, before Zonal Head, receipt of two amounts Statement of Zsnal Head/Prosecution witness against accused supported by Manager Incharge of that other Branch wherefrom accused requisitioned amounts--Prosecution case further receiving corroboration by Cashier and Second Officer of feeding Branch of Bank-No motive attributed to said witnesses-Evidence produced by prosecution quite trustworthy and reliable and their statements regarding receipt of money by accused admitted by accused himself -Accused stating that he paid money to so-called agriculturists pending receipt of sanction of competent authority which was ultimately refused-Accused had no business to squander away bank money unauthorisedly and no guarantee was available that money was given by him bona fide to genuine agriculturists -Possibility that accused, due to extraneous considerations. might have helped some elements not entitled to facility, not ruled out-Accused as such, held, committed an act of clear misappropriation and charge under section 477-A, Penal Code was therefore proved against him-Conviction upheld.
-- Art. 3, third proviso-Determination by Court competency of a witness in accordance with qualifications prescribed by injunctions of Islam-Intention of legislature, held, not appearing to invoke proviso in case of every witness irrespective of whether his competence was in dispute or not-Question of determining competence of any witness can arise when one proceeds on assumption that it is doubtful that he possesses requisite character qualifying him for giving evidence-To draw such presumption and hold integrity of a witness in doubt in absence of any authentic material was wholly unjustified-Appropriate course would be to presume that witness produced in evidence is competent to give evidence until such presumption rebutted by reliable proof-Main part of Art. 3 declaring all witnesses competent to testify, proviso to Article would have no effect of overriding intent and purpose of section which it seeks to qualify-All persons having been declared under Art. 3 as competent for purpose of giving evidence, Third proviso to said Article which has only qualifying effect could not be construed so as to destroy intention embodied in Art. 3-It is only when competence of witness is challenged that Court is required by Third pro-Viso to determine such competence in accordance with qualifications prescribed by injunctions of Islam as laid down by Holy Qur'an and Sunnah.-[Witness].
-- Art. 3-Competence of witness-No objection raised to competence of any witness in trial Court and such point not raised even casually in trial Court-Attempt made before High Court in appeal to raise such point by counsel for appellant by contending that as required by Third proviso to Art. 3, trial Judge did not determine competence of witnesses before permitting them to give evidence--Argument of counsel, held, devoid of any merit.- [Witness].
-- S. 6 (2)-Penal Code (XLV of 1860), S. 477-A-General Clauses Act (X of 1897), S. 6 (2)-Appeal-Sentence-Power of High Court to curtail sentence of imprisonment below minimum limit given in S. 477-A, Penal Code, before amendment - Accused challaned when S. 477-A stood unamended which provided punishment of imprisonment for a term extending to seven years without prescribing minimum limits of imprisonment-Amendment to S. 477- A, which provided minimum sentence of imprisonment as five years, coming into force thereafter-Accused would be dealt with in matter of punishment in accordance with law in force at time of commission of offence and he was to be punished under S. 477A as if said section had not been amended and he could be visited with lesser imprisonment than five years-High Court, held, was competent to reduce sentence of imprisonment of five years in exercise of discretion vested in it-Sentence of imprisonment of accused reduced to one already undergone in view of grounds urged by his counsel in support of reduction of sentence>--[Sentence).
Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187 ; Sona and another v The State and others P L D 1970 S C 264 ; Srintvasachari v. The Queen I L R 6 Mad. 336 and Sardar Haji Muhammad Khan v. Additional Commissioner and Commissioner F. C. R., Quetta Division, Quetta P L D 1964 Lah. 401 ref.
Per Muhammad Zahoorul Hag, J.- .
-- Art. 3, third proviso-Competence of witness-Determination of--Purpose of third proviso to Art. 3 of Qanun-e-Shahdat Order is simply to empower Court itself and not anyone else to determine competence of a witness in accordance with qualifications prescribed by injunction of Islam as laid down in Holy Quran and Sunnah-Such determination is not required by proviso to be necessarily gone into suo moth without question being raised by any party in respect of competence of a witness-Court may do it itself no doubt,. but it is not a must-It would be an exercise in futility unless some person who had requisite information in respect of unfitness or a witness raises such a question or Court itself has some doubts in respect of competence-Last phrase of third proviso to Art. 3, held, made it clear that if a witness, competent, according to injunctions of Islam, is not forthcoming then in that case any witness who is available can be examined -Emphasis, therefore, is upon deciding controversy after examining available witnesses, because rights of people cannot be allowed to be lost merely on account of non-availability of those persons who do come up to high standards set in Islam--There having been a general decadence in conduct and characters of people as a whole as compared to early Islamic period, provision for examining available witnesses in absence of competent witnesses according to Islamic injunctions, is an expedient provision.
Nooruddin Sarku for Appellant.
Kazi Faiz Essa for Respondent.
Dates of hearing : 22nd August, 2nd and 3rd September, 1985.
MUNAWAR ALI KHAN, J.-The appellant Muhammad Daud was convicted under sections 408 and 477-A, P. P. C. and sentenced to R. I for five years on each count with direction that both the sentences would rut concurrently, vide judgment of Special Court of Sind (Banks), Karachi, dated 31st March 1985. In the same judgment he was also awarded sentence of fine of Rs. 4 lacs or in default R. 1. for six months under section 408, P. P. C. and Rs. 10,000 or in default R. 1. for three months under section 477-A, P. P. C. The present appeal has been filed against the said conviction and sentences.
The prosecution case is best stated in the statement of Mr. Zafarul Haq, the Zonal Head of the U. B. L., Nawabshah, which is reproduced as under :
"In July, 1980 I was Zonal Head of U. B. L. at Nawabshah. On telephone I was informed by Ubedullah Halepota, Manager U. B. L., Sangbar Branch that accused Muhammad Dawood had collected from Sangnar Branch Rs. 1 lac on 6-5-1978 against I. B. C. A. and another Rs. 1 lac on 17th September, 1978 but the said amounts were not credited by him at Tando Mitha Khan Branch where accused Dawood was the Manager. On receiving this information I asked Mr. Shakiluddin, Zonal Chief of Mirpurkhas to reach Sanghar and I alongwith Muhammad Maroof, Shakiluddin and accused Muhammad Dawood Mahar who was called from Sukkur reached Sanghar Branch of the U. B. L. to investigate this alleged fraud. We also visited Tando Mitha Khan Branch in this connection. On checking books at Sanghar Branch, collection of Rs. 2 lacs by accused Dawood was confirmed while at Tando Mitha Khan Branch we found documents relating to I.B.C.A. dated 17th September, 1978 in the Strong room but the documents relating to I. B. C. A., dated 6-5-1978 were missing. However there were no entries regarding both these amounts in any account book of Tando Mitha Khan Branch. Accused admitted receipt of both the amounts. However in respect of the first amount he stated to me, that he had given away by away of loan to agriculturists whose names also he disclosed, in an anticipation of the sanction of the Zonal Office but Zonal Office rejected the loan applications. He collected another sum on 17th September, 1978 from Sanghar Branch and from this amount he adjusted the to ins advanced to the agriculturists who had refused to pay on rejection of their loan applications.
Accused Yasin present in Court was peon at . Sanghar Branch, who stated, that vouchers relating to I. B. C A. dated 6th May, 1978 at the request of accused Muhammad Dawood he had taken out from the Strong room and delivered to accused Dawood who paid hint Rs. 1,000. Bank recovered the entire amount of Rs. 2 lacs from accused Muhammad Dawood."
The prosecution have sought to prove their case by evidence of as many as ten witnesses including the Zonal Head mentioned above. As is clear from the statement of the Zonal Head while the accused Muhammad Daud was posted as Manager, U. B. L., Tando Mitha Khan Branch, he collected two sums of Rs. 1 lac each from the same Bank's Sanghar Branch on 6-5-1978 and 17-9-1978, respectively. His statement further goes to show that on checking of the record of the two Branches, it was confirmed that the said amount of Rs. 2 lacs was actually drawn by the accused but he had made no entries in the account books of Tando Mitha Khan Branch. It was also detected by the investigation team headed by the aforesaid Zonal Head that the documents relating to 1. B. C. A., dated 6-5-1978 were missing from the Strong room, although the documents regarding the other I. B. C. A. dated 17-9-1978 were available there. According to the evidence of the said Zonal Head even the accused himself had admitted to him the receipt of Rs. two lacs in two instalments. However the accused's explanation to the Zonal Head was that he had disbursed the first amount amongst the agriculturists as loan in an anticipation of the sanction of the competent authority and when their applications for loan were turned down, they were called upon to return the loan money and as they were unable to make the repayment he collected another sum of Rs. one lac and adjusted their loans from that amount.
The statement of the Zonal Head finds support from Ubedullah Halepota (P. W. 3) who confirms that on 17-9-1978 he was Manager of Branch when he paid to the accused a sum of Rs. one lac in l cash under the I. B. C. A. executed by the latter, as Sanghar Branch was feeding Branch of the Tando Mitha Khan Branch of which the accused was the Manager. According to him on his coming to know from the letter received from the Reconciliation Department on 15th June, 1980 that the aforesaid I. B. C. A. was still outstanding, he after re-checking the record of his Branch, intimated the factual position to Mr. Zaffarul Haq, the then Zonal Head of ,,4awabshah whereupon the latter alongwith Mr. Shakiluddin the Zonal Chief of Mirpurkhas and Muhammad Maroof visited the Sanghar Branch and checked the relevant record relating to the two I. B. C. A's under which the accused had collected the amount in question from the Sanghar Branch.
Further support is provided by Muhammad Khan Soomro (P. W. 2) who claims to be the Manager incharge of Sanghar Branch on) 6th May, 1978 when on the accused's requisition he too paid him one lac for the Tando Mitha Khan Branch. This is also confirmed by l Malik (P. W. 5) and Nasiruddin (P. W. 6) who were then' respectively cashier and II Officer of the Sanghar Branch.
Apart from above witnesses, Allah Nawaz Laghari (P. W. 4) who succeeded the accused as Manager, Tand'o Mitha Khan Branch has also been examined. His evidence shows that in June, 1980 while he was holding the charge of Tando Mitha Khan Branch, Mr. Zafarul Haq Memon accompanied by others including Mr. Shakiluddin and Muhammad Maroof had visited his Branch and on checking of the record of the said Branch it was found that two sums of Rs. one lac each received by the accused for that Branch were not accounted for and no entries were made by him in respect of both the I. B. C. A's. under which he had received the said amounts. He has also testified to the accused' s admission about the receipt of the said amounts. According to him the accused had disclosed in his presence that earlier amount received by him on 6-5-1978 was distributed by him as loan amongst the agriculturists.
From the above evidence it is proved that the accused misappropriated the total amount of Rs. 2 lacs which be had received from the Sanghar Branch for the purpose of utilizing in connection with Tando Mitha Khan Branch and further that he omitted to account for the said amount in the record of the latter Branch. No motive is attributed to the above witnesses. All that the accused has said about the witnesses is that they being Bank employees have given evidence only to save their own skin. He has not elaborated how in view of the evidence available on record, they can be held liable, so that in order to shield themselves, he has been made scapegoat by them. In our opinion, the evidence discussed above is quite trustworthy and can be safely relied upon.
Moreover the above evidence is corroborated by the accused's own admission that he had actually received the two amounts of Rs. one lac each. The only explanation advanced by him is that be had distributed first one lac of rupees amongst the agriculturists as agricultural loan in an anticipation of the sanction from the competent authority. He has even disclosed the names of the persons to whom he had advanced the alleged loans. Admittedly the accused had neither power nor authority to advance such loans. This is clear from his own stand that the money was paid to the so-called agriculturists pending the receipt of sanction from the competent authority. It seems the sanction was ultimately, refused. Thus he had no business to squander away the Bank's money unauthorizedly. There is also no guarantee that the money was given bona fide to the genuine agriculturists. May be due to extraneous considerations he had helped some elements not entitled to the facility of agricultural loans, under the cloak of agriculturists. This impression finds support from the very rejection of the loan applications of the persons to whom the money was paid. Furthermore they have not been produced in defence of the accused. In these circumstances the money paid to them was clear misappropriation of the said amount on part of toe accused.
So far second sum is concerned it is conceded by the accused that he had utilized that amount by paying the private loans he bad raised for adjusting the loans allegedly advanced to agriculturists. Thus the second amount was also clearly misappropriated by the accused. Furthermore as has been established from the above evidence the accused had made no entries of both the sums he had received from the Sanghar Branch in the record of Tando Mitha Khan Branch for which the said sums were actually meant. Therefore we are in agreement with the learned trial Judge that the charge under section 477-A, P. P. C. was also proved against the accused.
Faced with above position the learned counsel for the appellant made half hearted attempt to point out that owing to non-compliance of section 3 of the Qanoon-e-Shahadat, 1984 by the trial Court, the whole trial was vitiated. He meant to say that as required by the third proviso to the said section the learned trial Judge did not determine the competence of the witnesses before permitting them to give evidence.
For appreciating the above argument, section 3 is reproduced as under :
"(3) Who may testify.-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.
Explanation.--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
It would be noticed that in the main part of the above section all persons have been declared competent for giving evidence excepting those who. in the opinion of the Court, are prevented from understanding the questions put to them on account of age or some illness. However, the third proviso to the said section requires the Court to 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. The question arises whether in view of this proviso, it is incumbent upon the Court to determine the competence of every witness who is produced in evidence. In our opinion it does not appear to be the intention of the Legislature to invoke the proviso in the case of every witness irrespective of whether his competence is in dispute or not. If that had been the intention, it would have been specified to the express terms in the main part of the section. Moreover the question of determining competence of any witness can arise when we proceed on the assumption that it is doubtful that he possesses the requisite character qualifying him for giving evidence. We are of the view that it will be wholly unjustified to draw such presumption and hold the integrity of a witness in doubt in absence of any authentic material. Therefore it will be unfair to the witness to start with the presumption that he is not of desireable character so that it would be necessary to probe into his antecedents before clearing him for giving evidence. The appropriate course would rather be to presume that the witness produced in evidence is competent to give evidence until such presumption is rebutted by reliable proof. This is precisely the reason that the main part of section 3 has declared all witnesses competent to testify.
Even otherwise "proviso" does not have the effect of overriding the intent and purpose of the section which it seeks to qualify. In this connection it may be useful to reproduce the comments on "Construction of provisos" from Maxwell on interpretation of statutes, Twelfth Edition page 189. It reads as under :-
"Difficulties sometimes arise in construing proviso. It will however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken absolutely in their strict sense but that a proviso is of necessity . . . . limited in its operation to the ambit of the section which it qualifies'. And, so far as that section itself is concerned, the proviso again receives a restricted construction : where the section confers powers, 'it would be contrary to the ordinary operation of a proviso to give it an effect which would cut down those powers beyond what. compliance with the proviso renders necessary'."
It is evident from section 3 referred to above that all persons are declared competent for the purpose of giving evidence. Therefore the third proviso to the said section which has only qualifying effect cannot be construed so as to destroy the intention embodied in section. In other words it cannot be held that the said proviso requires that antecedents of every witness produced in evidence have to be investigated before declaring such witness competent for giving evidence. It may be pointed out that it is only when the competence of witness is challenged, that the Court is required by the third proviso to determine such competence in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In the instant case there is nothing to show that any objection was raised to the competence of any witness in the trial Court. In fact this point was not raised even casually in the said Court. Consequently the argument of the learned counsel for the appellant in this regard is devoid of any merit.
As a last resort, the learned counsel for the appellant strongly urged that the substantive sentence of imprisonment awarded to the appellant be reduced inter alia on the following grounds;
(i) That the entire amount of Rs. 2 lacs held to have been misappropriated by the appellant has been repaid.
(ii) That the trial of the appellant protracted for nearly three years and the appellant was subjected to untold sufferings during the said period.
(iii) That the appellant lost his Bank job and thereby he and his family have been deprived of the only source of their livelihood.
(iv) That the appellant has already undergone imprisonment for about five months, which is more than enough punishment for a person of his social standing.
As provided in subsection (2) of section 6 of Offences in respect of Banks (Special Courts) Ordinance 1984, (hereinafter referred to the Ordinance), the provisions of the Pakistan Penal Code specified in the second schedule shall have effect subject to the modifications specified therein. Reference to the second schedule shows that in section 477-A of Pakistan Penal Code for the words "may extend to", the words "shall not be less than five years nor more than" have been substituted. Thus under the ordinance, the discretion of the Court in awarding sentence of imprisonment for offence under section 477-A Pakistan Penal Code has been restricted inasmuch as that not less than five years imprisonment has to be awarded for the said offence. In the instance case in addition to his conviction under section 408, P. P. C. the appellant has been convicted under section 477-A, P. P. C. and sentenced to R. I. for five, years, which is obviously the minimum imprisonment, the Court is required to impose under the Ordinance. The question will therefore arise if this Court in exercise of its appellate jurisdiction can curtail the sentence of imprisonment below the aforesaid minimum limit. It would be noticed that the Ordinance came into force on 23rd February, 1984 and therefore the amendment in section 477-A laying down the minimum limit of imprisonment- became operative from that date. However, the appellant was challaned in respect of the said offence on 20-9-1982 when section 477-A, P. P. C., as it stood in an unamended form, provided punishment of imprisonment for a term extending to seven years without prescribing the minimum and maximum limits of imprisoment.
It was argued on behalf of the appellant that he was entitled to be punished in accordance with the law in force at the time of the commission of the offence by him. In this connection reference was made to section 6 of General Clauses Act, 1897. It reads as under :-
"(6) Eject of repeal.-Where this Act or any Central Act, or Regulation made after commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different
intention appears, the repeal shall not-
(a) . ..
(b) .. . . .
(c) . .
(d) ..
(e) affect any investigation, legal proceeding or remedy in respect of any such right; privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid ; ,
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
No doubt there is no indication in the Ordinance that it has been enforced from any retrospective date nor does it show that any right, privilege or remedy available to the appellant or the punishment or penalty which he was subjected to, at the time of promulgation of the Ordinance has been adversely affected by the amendment thereof. We are therefore clear in our mind that in view of clause (e) of section 6 hereinabove the appellant will have to be dealt with in the matter of punishment in accordance with the law in force at the time of the commission of the offence by him. Since at that time the Court's power to award sentence of imprisonment was not subjected to the minimum limit of five years imprisonment, such limit of imprisonment would not be applicable in the appellant's case. Consequently the imprisonment of five years could be reduced by this Court in exercise of the discretion vested in it.
To re-inforce the argument that the appellant can claim to be punished in accordance with the law in force at the time of the commission of the offence by him, reliance has been placed on Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, wherein it was held;
"The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Ltd. v. Irving 1905 A C 360 is that if the matter in question be a matter of procedure only', the provisions would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the legislation would not operate retrospectively, unless the Legislature had either by express enactment or by necessary intendment' given the legislation retroactive effect."
In the same judgment passage from Book on construction of statutes, 1940 Edition page 581 by Crawford has been reproduced, which is to the following effect;
"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceeding pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."
Proceeding further the Honourable Supreme Court has held in the same judgment;
"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statue, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
Another case relied upon is of Sona arid another v. The State and others P L D 1970 S C 264, wherein it was held;
"Section 6 of the General Clauses Act, 1897 which applies to Central Acts or Regulations is also in the same term and language. One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. It is, therefore, quite clear that all investigations or proceedings which are contemplated are to continue as if the repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed."
In the judgment of above reported case, the cases of Srinivasachari v. The Queen I L R 6 Mad. 336, and Sardar Haji Muhammad Khan v. Additional Commissioner and Commissioner, F. C. R., Quetta Division, Quetta P L D 1964 Lah. 401, were cited to support the view taken in the said reported case.
In view of the above authorities, as provided in section 6(2) of General Clauses Act, notwithstanding the repeal of any law, not only legal proceeding pending under the repealed law shall be continued but also the penalty, forfeiture or punishment shall be imposed as if the said law had not been repealed. In other words the appellant was to be punished under section 477-A, P. P C. as if the said section had not been amended by the Ordinance. Consequently he could be visited with lesser imprisonment than five years. After taking into consideration the grounds urged by the learned counsel for the appellant in support of the reduction in sentence, we reduced the sentences of imprisonment on both counts to the ones already undergone by the appellant and subject to this modification in the sentence the appeal was dismissed by short order dated 4-9-1985.
MUHAMMAD ZAHOORUL HAQ, J. -I am in complete agreement with the judgment of my brother Munawar Ali Khan, J. However, I would merely like to add that the purpose of third proviso under section 3 of Qanoon-e-Shahadat is simply to empower the Court itself and not anyone else, to 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. But such determination is not required by the proviso to be necessarily gone into suo motu without a question being raised by any party in respect of the competence of a witness, of-course the Court may do it itself but it is not a must. If the suo motu determination in respect of competence of a witness had been intended by the legislature then nothing prevented the legislature from providing so in clear terms. 1n fact the main provision of section 3 has made it quite clear that all persons are competent to testify unless the Court comes to the conclusion that they are unfit on account of reasons specified in the section. Therefore, it is obvious that any person who comes into the witness-box shall be presumed to be fit unless his fitness is challenged. Suo mote challenge by the Court into the fitness of a witness is not clearly] stipulated as a must and it is not called for ordinarily and in fact it would be an exercise in futility unless some person who had the requisite Q information in respect of unfitness of a witness raises such a question or the Court itself has some doubts in respect of the competence. No such thing had happened in respect of any witness in the case.
In fact, the last phrase of the third proviso itself makes it clear that if a witness, competent according to the injunctions of Islam, is not forthcoming then in that case any witness who is available can be examined. This again makes it clear that any person, who is not competent strictly according to the standards prescribed by Islam, could be examined and relied upon if competent witness was not available in the case. The emphasis therefore, is upon deciding the controversy after examining the available witnesses, because the rights of people cannot be allowed to be lost merely on account of non-availability of those persons who do come up to the high standards set in Islam. It is quite well-known that there has been a general decadence in the conduct and characters of the people as a whole as compared to the early Islamic period and hence the provision for examining the available witnesses, in the absence of competent witnesses according to Islamic injunctions, is an expedient provision.
M. Y. H. Appeal dismissed.
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