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Criminal Petition No. 58‑R(S) of 1985, decided on 16th September, 1985.

(On appeal from the judgment of the Federal Shariat Court, Lahore, dated 30‑5‑1985 passed in Criminal Appeal No. 89/L of 1980).

‑‑ Art. 203‑F‑Leave to appeal‑Technical objections could not be given any importance when hearing a petition for leave to appeal.

‑‑‑ Art. 203‑F‑Leave to appeal‑Technical objections‑No benefit, held, could be given to petitioner on basis of technical objections in proceedings for grant of leave to appeal which had to be granted or declined in exercise of discretion of Supreme Court.

‑‑ Art. 203‑F‑Criminal Procedure Code (V of 1898), Ss. 476 & 193‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 20‑Scope of S. 476, Cr. P. C.‑Expression "shall apply mutatis mutandis occurring in S. 20 of Ordinance, 1979‑Meaning and significance‑Scheme of Ordinance, 1979 being that whenever need would arise necessary changes including those in nature of adapta tions vis‑a‑vis Criminal Procedure Code would not only be permis sible but shall be made‑Whenever a reference under S. 476, Cr. P. C. is made to High Court, when the Federal Shariat Court acting under S. 476, Cr. P. C., said reference would therefore have to be read as reference to Federal Shariat Court which by and large in heirarchy of system created under Ordinance, 1979 would be comparable to High Court, except in certain specified matters i.e. that the decisions of Federal Shariat Court were binding on High Court‑Appeal to Supreme Court‑How lies.‑[Interpretation of statutes].

Section 20 of the Ordinance VII of 1979 provides that the provisions of the Code of Criminal Procedure shall apply mutatis mutandis in respect of cases under the said Ordinance provided that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punish ment therefor be convicted and punished for that offence; provided further, that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from the order of the Court of Session shall lie to the Federal Shariat Court. It has also been provided therein that the provisions of the Code relating to the confirmation of the sentence of death shall apply mutatis mutandis, to confirmation of sentences under the said Ordinance. The Scheme of the Ordinance which by reference has interjected Criminal Procedure Code into its own system, is clear that whenever the need would arise the necessary changes including those in the nature of adaptations vis‑a‑vis Code of Criminal Procedure would not only be permissible but shall be made. That is why the phrase "shall apply mutatis mutandis" has specifically been used in section 20. Mutatis mutandis means "with necessary changes".

That being so, under section 476, Cr. P. C. whenever a reference is made to the High Court, when the Federal Shariat Court is acting under the said section the said reference would, therefore, have to be read as reference to the Federal Shariat Court which by and large in the heirarchy of system created under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, would be comparable to the High Court ; except, of course, in certain specified matters including that the decisions of the Federal Shariat Court are binding on the High Court.

Section 476, Cr. P. C. does not lay down that if there is a procedure laid down in the Constitution for such an appeal it would not be observed in cases under section 476. The procedure in Article 203‑F of the Constitution is that appeals therein would lie to the Supreme Court through the procedure provided in sub‑Article (2‑B) of the said Article namely, through grant of leave to appeal.

-------S. 193‑Perjury‑Sentence‑Perjury being one of the most heinous social and moral offences and against injunctions of Quran, Courts, held, should not take light or lenient view of cases of perjury Award of stiffer sentence desired‑Marginal cases‑Caution. [Sentence].

The need for dealing with such like cases very firmly and severely is so obvious that no further observation is necessary in this behalf beyond what was held in Mst. Karim Khatoon v. State P L D 1984 S C 44.

Courts are supposed to take caution regarding marginal cases which are distinguishable from the case wherein the motivation is provided by an urge on the part of the accused himself, who falsely implicated a woman (who was previously his brother's wife) and she as a widow had chosen a husband of her own choice, in all probability against the advice and wishes of the accused. When unsuccessful, instead of giving up, he fabricated nikahnama and perjured himself during the prosecution of his adversaries. The marginal cases referred to above would be of many shades. The Courts will have to be very careful in sifting the realities therein. Examples can be : when with the twisted practices of Police investigation, witnesses and complainants are compelled by the police to make false statements in order to seek what they think is justice, or when they make statements/concessions falsely and treat it justified on account of the extreme family and social pressures. The examples can be multiplied. Thus, no doubt, the offence would be committed but in the circumstances of marginal cases a different view might be taken of sentence though the same would depend upon gravity in each case requiring severe or lenient treatment.

Mst. Karim Khatoon v. State P L D 1984 S C 44 affirmed.

Rana Muhammad Sarwar, Advocate Supreme Court and S. Inayat Hussain Shah, Advocate‑on‑Record (absent) for Appellant.

Abul Qasim Jafri, Advocate Supreme Court for Respondent.

Date of hearing :16th September, 1985.

Petitioner a convict for perjury when acting as a complainant in a case of Zina under the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII of 1979) against several persons, through this petition for leave to appeal (originally filed an appeal but on objection from the Office treated it as a petition for Leave to Appeal), has called in question the judgment of the Federal Shariat Court, dated 30‑5‑1985; whereby he was convicted under section 193, P. P. C. and sentenced to 3 years' R. I.

The accusation against him was that he falsely claimed himself to be the husband of Mst. Janet Bibi and accused her of having committed adultery and performed Nikah with Shabbir Ahmad without obtaining divorce from the petitioner. During the trial of Janat Bibi and Shabbir Ahmad for various offences including Zina under section 10(2) of the Ordinance, he produced and exhibited a pert nikahnama which he had earlier produced before the police Investigating Officer also. The said two accused were tried and convicted on the assumption that the nikahnama produced by the petitioner was genuine. During appeal in the Federal Shariat Court the convicts took up a strong defence plea that the nikahnama was forged and that even the thumb‑impression purported to have been affixed on it by Mst. Janet Bibi was fake and forged.

Federal Shariat Court sent the nikahnama to Director, Technical F. I. A., wherein two experts after examining the disputed document affirmed the defence plea that the thumb‑impression purported to be of Mst. Janet Bibi was not her's. After it was established that the petitioner had prima facie committed perjury and forgery and used a forged document the said two convicts were acquitted and notice was issued to the petitioner to show cause "as to why he could not be punished under section 193, P. P. C. for knowingly making false statement in the trial Court to implicate falsely the appellants (in the other case) who had been acquitted by this Court".

It seems from the record and documents filed with this petition that the petitioner avoided personal appearance before the Federal Shariat Court. He, however, engaged Syed. Ashiq Hussain Advocate, who in pursuance of the said notice after a lapse of considerable time appeared on 9‑5‑1985 when the following order was passed :‑

"Syed Ashiq Hussain, Advocate for respondent Allah Bakhsh. Sardar Nazar Hussain Dogar, Advocate for the State. Syed Ashiq Hussain, Advocate for the respondent who was given notice under section 476, Cr. P. C. to show cause why he should not be convicted and sentenced under section 193, P. P. C., prays for time enabling him to make his submissions before the Court. The Advocate for the State has no objection. To come up for hearing at Islamabad on 23‑5‑1985."

On the next date the counsel for the petitioner despite enough opportunity did not apply for any evidence to be summoned nor asked for cross‑examination of the finger‑prints experts nor did he make any prayer with regard to any matter substantive or procedural and felt satisfied with only advancing arguments; of course, with a view to get his client the petitioner, absolved of the charge. The petitioner was not present even on that date. He was directed by the Court to be present on the next date when the impugned judgment was passed and he was convicted.

Yesterday, when the case was taken up, learned counsel took up the position that the pert nikahnama, another photostat copy of which was produced for our perusal, was not sent to the finger‑prints expert; but, not being confident with regard to this, he sought opportunity to seek further instructions from his client. He having been summoned from Jail is also present in Court today after giving all the instructions to the learned counsel to his satisfaction. Accordingly, when the same question was raised it was not pressed any further by the learned counsel that the same pert nikahnama which he had produced in the trial Court was not sent to the finger‑prints experts. When questioned as to why the learned counsel appearing for the petitioner before the Federal Shariat Court if his client had at all given any instructions to him regarding genuineness of the finger‑prints of Mst. Janet, did not request the federal Shariat Court for examination of the disputed finger‑prints by another finger‑prints expert. And if that would have involved further expense why he did not request the Court for same comparison in Court by the Court and whether such omission on the part of the petitioner's lawyers was not due to the fact that the latter had no intention or he had instructed his counsel not to dispute the opinion of the experts, the present learned counsel did not make any definite reply. But he urged that even if the said counsel had not performed his duty and the petitioner had not acted vigilently to safeguard his own interest it was the duty of the Court to examine the petitioner so as to elicit from him anything that he wanted to say. Despite a notice giving an opportunity to the petitioner to appear in Court and be present during the present proceedings the order sheet shows he was not present. In that situation to compel the attendance of the petitioner through coercive measures was not necessary. He having chosen to be represented by his counsel is bound by his conduct of the case. No such technical objection can be given any importance when hearing a petition for leave to appeal.

Learned counsel then contended that although under section 476 the Federal Shariat Court was empowered not to try the petitioner through a summon's trial and he was to be dealt with in a summary proceedings, certain procedural irregularities were committed by the Federal Shariat Court. When pointed out that section 537 of the Criminal Procedure Code after its amendment would apply to all the objections raised by the learned counsel and that notwithstanding any legal and procedural departures mentioned therein benefit could go to the petitioner only if failure of justice had occurred, the learned counsel did not press the point of irregularities any further except that in this case on account thereof the petitioner had been prejudice. When asked what prejudice he has suffered on account of any procedural violations the learned counsel was unable to point out any. Though a mild attempt was made to shift the blame to the petitioner's lawyer who appeared before the Federal Shariat Court for his own negligence. This supposition also remained unacceptable because if the said lawyer had been instructed by the petitioner not to dispute the opinion of the finger‑prints experts‑as he knew the real facts, the lawyer did not make any mistake in not proceeding with the matter any further. And he if did not file himself any application for availing of the opportunities afforded to the petitioner by the Federal Shariat Court, it can either be his negligence or an intelligent lawyer might have left such questions at that, so as to raise technical pleas in appeal if the petitioner was convicted. In either wav no benefit can be given to the petitioner in these proceedings for grant of leave to appeal which has to be granted or declined in exercise ox discretion of this Court.

Learned counsel next contended that in any case, the Federal Shariat Court was not competent to award sentence of more than one month for offence under section 193, P. P. C. notwithstanding the fact that the said offence is punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. He relied on sub‑clause (c) of subsection (2) of section 476 which provides that a Court other than referred in clauses (a) and (b) notwith standing section 262 (2) be able to award a sentence of simple imprison ment of one month only. Sub‑clause (a) provides that the High Court, Court of Session, the District Court or any Court exercising the power of Session or District Court can pass any sentence under section 476 except that of death, imprisonment for life or imprisonment exceeding 5 years. While clause (b) permits the Court of Magistrate of the First Class, a civil Court other than a High Court, the District Court or a Court exercising the powers of a District Court, or Revenue Court not inferior to the Court of Collector to award a sentence of simple imprisonment of three months on13.

The argument is that the Federal Shariat Court having not been mentioned in section 476 it, notwithstanding its status (according to the Constitution whereby its decisions are binding on the High Court) would be relegated to the lowest Court under clause (c) and would be competent to award only a sentence of one month's simple imprisonment, while, a Court of Session from which it hears appeals in Criminal cases could award a sentence of rigorous imprisonment up to five years.

Obviously, the above could not be the intention of the law. Learned counsel did not contest the power of the Federal Shariat Court to proceed under section 476 read with section 193. That being so, section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance would resolve the confusion created by the argument of the learned counsel. It provides that the provisions of the Code of Criminal Procedure shad apply mutatis mutandis in respect of cases under the said Ordinance provided that if it appears in evidence that the offender has committed different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor be convicted and punished for that offence ; provided further, that an offence punishable' under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from the order of the Court of Session shall lie to the Federal Shariat Court. It has also been provided therein that the provisions of the Code relating to the confirmation of the sentence of death shall apply mutatis mutandis, to confirmation of sentences under the said Ordinance. The Scheme of the Ordinance which by reference has interjected Criminal Procedure Code into its own system, is clear that whenever the need would arise the necessary changes including those in the nature of adaptations vis‑a‑vis Code of Criminal Procedure would not only be permissible but shall be made. That is why the phrase "shall apply mutatis mutandis" has specifically been used in section 20. Mutatis mutandis means "with necessary changes".

That being so, under section 476 whenever a reference is made to the High Court, when the Federal Shariat Court is acting under the said section the said reference would, therefore, have to be read as reference to the Federal Shariat Court which by and large in the heirarchy' of system created under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, would be comparable to the High Court ; except of course, in certain specified matters including the circumstance already referred to that the decisions of the Federal Shariat Court are binding on the High Court. The argument of the learned counsel, however, fails.

Learned counsel also at the end of the arguments urged that if the Federal Shariat Court is to be read in substitution to the High Court under section 476, Cr. P. C. then an appeal would lie from the conviction under section 476 to the Supreme Court. Obviously, it is correct but the said section does not lay down that if there is a procedure laid down in the Constitution for such an appeal it would not be observed in case under section 476. The procedure in Article 203‑F of the Constitution in cases like the present one is that appeals therein would lie to the Supreme Court through the procedure provided in sub‑Article (2‑B) of the said Article namely, through grant of leave to appeal. And that is why the learned counsel has on objection raised by the Office, treated the hearing of this matter as it was a case of leave to appeal.

None of the arguments pressed by the learned counsel has any force, this petition merits to be dismissed.

Although the learned counsel did not seek the reduction of sentence, we have applied our mind to this aspect also. The petitioner has been awarded a sentence of 3 years' R. I. only while the offence under section 193 (First Part) which he has committed is punishable with seven years R, I. Thus, he has not been treated very harshly. And even if it would have been so, subject to the limitation contained in section 476(1) (a) the Federal Shariat Court would have awarded five years' R. I. under the said provision and would have also awarded heavy fine in order to compensate the victim of the perjury committed by the petitioner, it would not have been an excessive punishment though it might have appeared somewhat harsh. The need for dealing with such like cases ‑very firmly and severely is so obvious that no further observation is necessary in this behalf beyond what was held in Mst. Karim Khatoon v. State (PLD 1984 SC 44). We g may, however, put a word of caution regarding marginal cases which are distinguishable from the present case herein. the motivation is provided by an urge on the part of the petitioner himself, who falsely implicated a woman (who it is stated by the learned counsel was preciously leis brother's wife) and she as a widow had chosen a husband of her own choice, in all probability against the advice and wishes of the petitioner. When unsuccessful, instead of giving up, he fabricated nikahnama and perjured himself during the prosecution of his adversaries.

The marginal cases referred to above would be of many shades. The Courts will have to be very careful in sifting the realities therein Examples can be: when with the twisted practices of police investigation. witnesses and complainants are compelled by the police to make false statements in order to seek what they think is justice ; or when they make statements/concessions falsely and treat it justified on account of the extreme family and social pressures. The examples can be multiplied. Thus, no doubt, the offence would be committed ; but in the circumstances of such cases a different view might be taken of sentence though the same would depend upon gravity in each case requiring severe or lenient treatment.

With these observations as already held on merits; as also, it being not a fit case for interference in exercise of discretion by this Court, there is no force in this petition and the same is dismissed.

M. B. A. Petition dismissed.

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