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Criminal Appeal No.18 of 1983, decided on 7^thNovember, 1988.

(On appeal from the order of the Shariat Court dated 8 12 1983 in Criminal Appeals Nos. 15 and 16 and Criminal Revision No.56 of 1979).

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974) --

S. 26(1) Purgation of witnesses Necessity of Ordinarily purgation in Hudood and Qisas cases would be necessary Omission on the part of Court not to do so is violative of provisions of 9.26(1) of the Act Judgment pronounced on evidence without purgation of witness renders same to be illegal. [ Witness].

S. 26(1) Court consisting of two members Finding by one Member of Court Effect District Criminal Court, its constitutions Offence of murder is triable by District Criminal Court, consisting of Sessions Judge and District Qazi Finding by one member of Court alone on a particular matter has no binding force and can be ignored.

S. 530(1) Meaning, scope and import of Trial by an incompetent person Effect " Trial" means practically the whole proceedings by a competent Tribunal Trial in civil and criminal matters and in a case of judicial complexion must be by a competent Tribunal or by a Judge having jurisdiction over the matter Where a person who has no jurisdiction over a matter but illegally takes it up, such assumption of jurisdiction being shorn of authority would be construed as a bad one and could never be termed as a valid act Person holding the trial must be a person competent to try the offence Where a trial at any stage has been conducted by an incompetent person, same would be considered as no trial at all and would adversely affect disposal of case Such case could not be covered under provisions of S.530(p), Criminal Procedure Code Proceedings conducted by an incompetent person have to be declared as illegal Defective trial being against the norms of natural justice has to be struck down as illegal.

(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974) --

--- S. 26(1) Purgation (Tazkia) of witness Omission to conduct Effect Where "Tazkia" of witnesses has not been conducted in accordance with law, judgment in that case would be illegal and not sustainable. [Witness].

Ss. 3 & 24 Competent Court consisting of two members Finding awarded by one member of Court Such finding being illegal was not sustainable Case was remanded to District Criminal Court for rehearing and conducting proceedings in accordance with law Order of acquittal of one of the accused was however sustained as evidence against him did not inspire confidence.

Kh. Muhammad Saeed for Appellant.

Manzoor Hussain Gillani for the State.

The appellant Hassan Muhammad herein, has moved this appeal to question the validity of the sentence of "Diyyat" in the sum of Rs.68,000 awarded to him by the Azad Jammu and Kashmir Shariat Court on 8 12 1983, for having committed an offence of murder. The sentence was awarded under section 3 of the Islamic Penal Laws Enforcement Act, 1974, (hereinafter to be called as the Act).

2. The prosecution"s case is: that at the time of incident, Said Muhammad, deceased, alongwith Muhammad Nazir, his son, was cutting grass from the common boundary of land of the parties. Mst. Ali Begum, wife of the deceased, was also standing nearby. Hassan Muhammad and Muhammad Anwar, his son, arrived at the place of incident from Topa Bazar. Hassan Muhammad asked Said Muhammad, deceased, not to cut grass from his land. The deceased denied the allegation but there was exchange of abuses and thereafter, Hassan Muhammad and Muhammad Anwar, both inflicted blows on the head of the deceased. Hassan Muhammad then asked Muhammad Anwar his son to bring revolver or knife from the house. Muhammad Anwar obeyed the order, went to the house and brought a knife and handed it over to his father who, with the knife, caused injuries on the chest, legs and scapula of the deceased. Said Muhammad, on receiving of injuries, fell down and succumbed to the injuries. The accused persons then left for their house. The incident is said to have been witnessed by Mst. Ali Begum, Muhammad Nazir, Nazam Khan and Muhammad Bashir Khan.

3. The immediate cause of the incident, as alleged by the prosecution, was cutting of grass from the common boundary of the land of Said Muhammad, deceased, and Hassan Muhammad. It was claimed that survey No.611 min measuring 30 kanals and 15 marlas was evacuee land. Out of this land Hassan Muhammad acquired allotment of 15 kanals 3 marlas and Said Muhammad 15 kanals 7 marlas. The land was divided between the parties but two years prior to the incident, there arose quarrel between them over the common boundary. It is also the prosecution case that the dispute was settled once by Sher Ali Khan, Musahib Khan and Muhammad Ayub Khan. It is alleged that at the time of previous quarrel, Hassan Muhammad attempted to stab deceased with knife but the attempt was foiled due to the intervention of witnesses. It may be stated that the houses of the parties are in the vicinity of the land in dispute. The house of Hassan Muhammad is shown in the site plan at a distance of 70 feet and the house of deceased is shown to be at a distance of 198 feet from the place of incident.

4. Hassan Muhammad and Muhammad Anwar denied the guilt in their statements under section 242, Cr.P.C. Muhammad Anwar pleaded alibi whereas Hassan Muhammad denied the allegation but pleaded that at the time of incident, the convict and Mst. Shamim Akhtar, his daughter, were present in the house when on accused"s prohibiting the deceased and Mst. Ali Begum, his wife, to cut grass from his land, the deceased and Mst. Ali Begum, both attacked the accused and his daughter, in the vicinity of their house. On receipt of injuries from the deceased, the accused retired in a room and bolted it from inside. He expressed ignorance of injuries found on the person of the deceased.

5. Prosecution story was sought to be proved through direct evidence of Mst. Ali Begum, complainant, Muhammad Nazir, Nazam Khan and Muhammad Bashir. The other material available against the appellant consisted of recovery of blood stained articles and weapon of offence as well as medical evidence.

6. Hassan Muhammad led no evidence in defence, whereas Muhammad Anwar, accused, produced one Muhammad Hayat, his class fellow, in support of the plea of alibi.

7. After the conclusion of the trial, the trial Court found Hassan Muhammad guilty of murder and awarded him sentence of "Diyyat" under section 3 of the Act in the sum of Rs. 68,000 but acquitted Muhammad Anwar, co accused, for want of sufficient proof. A Division Bench of the Shariat Court dismissed the appeals against the conviction and acquittal. Revision petition for enhancement of the sentence was also dismissed. All the matters were disposed of by a single order dated 8 12 1983. This appeal seeks reversal of the said judgment of the Shariat Court.

8. Ordinarily "purgation" in Hadood and Qisas cases under the provisions of the Act is necessary. But while examining the trial Court"s file, I noticed that on 31 7 1979, the interim order enters that in the opinion of the District Qazi, a member of the Court, (the Court consisted of Sessions Judge and District Qazi), there was no need to conduct the "Tazkia" of the eye witnesses and a note to that effect has been kept by the Qazi.

9. To know the reasons, which prompted the Qazi not to conduct the "Tazkia", the record of "Tazkia" maintained by the Qazi was sent for and examined. The record revealed that the Qazi on 31 7 1979, declined to conduct "Tazkia" of the witnesses, inter alia, on the grounds:

10. It may be observed that this case was challaned before the District Criminal Court under the provisions of sections 302/447/34, Penal Code, and section 5 of the Act. The statements under section 242, Cr.P.C. of Hassan Muhammad, accused and Muhammad Anwar, accused, (since acquitted) were also recorded to explain away their position under the provisions of sections 302/34, Penal Code, read with sections 3/15 of the Act.

11. I have heard the learned counsel for the parties on the point as to whether the purgation of the witnesses in the instant case was rightly dispensed with by the Qazi or "Tazkia" of the eye witnesses, namely, Mst. Ali Begum, Muhammad Nazir, Nazam Khan and Muhammad Bashir, was imperative under the provisions of the Act. Both the learned counsel for the parties were in agreement that "Tazkia" of the eye witnesses was imperative and it is a flagrant violation of the Act not to conduct "Tazkia" of the witnesses. The learned counsel maintained that it was only the Court and that too after concluding the trial, and not the Qazi alone, which was competent to record a finding that due to insufficiency of the proof or due to some other details of the case, sentence of "Hadd" or "Qissas" cannot be exacted or it may not be proper to exact the sentence of "Hadd" or "Qissas". In the above circumstances, the Court only and not the Qazi alone under section 24 of the Act was competent to switch over from section 5 to section 3 of the Act. The Qazi alone was nobody to say that "Tazkia" of the witnesses was not necessary. In their view in the absence of purgation of the witnesses, the judgment cannot sustain and the case is to be sent back to the trial Court to decide it afresh after conducting the purgation.

12. 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.

13. In this case the District Criminal Court is the trial Court. It would be proper to know as to what we mean by "District Criminal Court". The District Court of Criminal Jurisdiction;" has been defined under section 2(7) of the Act. According to the aforesaid provision, the "District Criminal Court" means the Sessions Judge and the District Qazi. In view of the definition the verdict of the Qazi alone that the standard of evidence in the case is not available to convict the accused for "Qissas is derogatory to the relevant law and shall be treated as non existent. The Qazi alone has no power to hold so; rather the District Criminal Court is competent to return such a finding.

14. Since the offence of murder in the instant case was triable by" the District Criminal Court; consisting of the Sessions Judge and the District Qazi, Qazi alone was nobody to say that it is not a case of "Qissas". Such a finding naturally is to be ignored.

15. Whether "purgation" of witnesses is a trial and whether the finding that the case of "Qissas" is not made out, constitutes a trial, would also need consideration. If the answer, to the above is in affirmative, how the finding of Qazi that since the standard of evidence for "Qissas" is not available the purgation of witnesses is not necessary would affect the case also reeds attention :

16. "Trial" has nowhere been defined in the Code of Criminal Procedure. Therefore, to know its meaning we may seek guidance from its definition found elsewhere. The "trial" in the Manual of Law Terms and Phrases by K.J. Ayer has been described as "the examination of a case, civil or criminal, by a competent tribunal. Similarly, in Whartons Law Lexicon trial has been explained as the hearing of a case civil or criminal before a Judge who had jurisdiction over it according to the laws of the land. It would, thus, appear that the words tried and trial cannot be given an exact meaning. Their meaning may very from case to case according to the mode of procedure to be adopted in such cases. The Supreme Court of India in The State of Behar v. Ram Naresh Pandey and another A I R 1957 S C 389 observed as follows:---

The words tried and trial appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code the words "tried" and "trial" have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used."

17. The definition of "trial" in Manual of Law Terms and Phrases and Wharton"s Law Lexicon, referred to above, to me, best provides the meaning of the word "trial". It shows that the "trial" means practically the whole proceedings by a competent Tribunal. It further shows that the trial in civil or criminal matters and as a matter of fact in any case of judicial complexion must be by a competent Tribunal or a Judge who has jurisdiction over it. Therefore, if a person who had no jurisdiction over a matter but illegally takes it up (as is done here) his action, for the reasons to be found in the later part of the order, being shorn of authority would be construed as a bad one and can never be termed as a valid act.

18. So it narrows down to this: a thing is "illegal" that is to say not curable because the Code expressly wants it to be done in a different way. Some are struck down by the good sense of the Judges who, whatever expression they may use, do so because those things prejudice and offended their sense of fairplay and justice.

19. Therefore my conclusion is that the trial starts from the very day the challan is produced before a competent Court alongwith the act, or at least from the day the statement of the appellant under 242, Cr.P.C. is recorded. Therefore, the finding as to whether the evidence is sufficient or not to prove an offence of "Qissas against a person is a trial for all practical purposes under the Act and such a finding is to be recorded by the Court. It is imperative that the person holding the trial must be a person competent to try the offence. If the trial at any stage is conducted by an incompetent person (as is done in the present case), it would be considered as no trial at all and would adversely affect the disposal of the case.

20.The instant case is not covered under section 530(p) Cr.P. C. It may be observed that the Qazi"s finding that standard of evidence envisaged under the Act to convict the appellant for "Qissas" is not available is a finding given by an incompetent person and it would be said that it is a trial by a person not competent to do so. The question that had tossed my mind all the time is as to whether after such a long time. I should order retrial. In this wavering state of, mind at times I have thought it better to err to save all the proceedings but as I have to administer justice in accordance with law, there remains no alternative for me but to declare the proceedings of the Qazi, referred to above as illegal. Therefore where there is something so vital as to cut at the root of jurisdiction say violations of the provisions of the Code, trial by an incompetent person, a refusal to give the accused a hearing, refusal to allow him to defend himself a refusal to explain the nature of charge and so forth, the defective proceedings had to be quashed. These all go to the foundation of natural justice and would be struck down as illegal forthwith and one would cot see or look or prejudice in such like cases because prejudice would be presumed in such cases. Such a trial is only a mockery of the trial.

21. Besides, I am of considered view that the reasons given by E the Qazi not to conduct "Tazkia" of the witnesses have no substance, Under section 26(1) of the Act, which reads:

two major Muslim male witnesses are necessary in cases of "Hadood" and "Qissas" and under section 26(2) of the Act in ail cases of "Hadood" and "Qissas", it is imperative for the Qazi to conduct "Tazkia of the witnesses. In the instant case of Qissas, there are four eye witnesses, three male and one female; they are Mst. Ali Begum, Muhammad Nazir, Nazam Khan and Muhammad Bashir. If the evidence of these witnesses inspires confidence and they are just, a sentence of "Qissas" can be exacted against the appellant. Nazam Khan and Muhammad Bashir are independent witnesses and prima facie they have no relation whatsoever with the deceased or accused. The reasons recorded by the Qazi not to conduct the ""Tazkia of Nazam Khan are not only artificial but they are superficial and devoid of any force. Whether these witnesses satisfy the standard required under the Act for awarding the sentence of "Qissas" is a question which falls within the exclusive jurisdiction and function of the Trial Court as stipulated under section 24(1) of the Act and the Qazi alone is nobody to ignore them. Here section 24(1) of the Act may profitably be reproduced. It reads as under:

22. I am satisfied that the Qazi has travelled beyond his jurisdiction to say that "Tazkia" of these witnesses is not necessary. This was the exclusive function of the Court, which has been illegally usurped by the Qazi.

23. Since "Tazkia" of the witnesses has not been conducted in the manner provided under the Act, the judgment is illegal and cannot sustain it is worthwhile to note that even in the judgment recorded by the District Criminal Court, where the Qazi was also a member, nothing has been said that Nazam Khan witness is inimical towards the deceased or has any relation with the accused or Bashir"s evidence is a tainted one. The comments of the Qazi not to conduct "Tazkia", therefore, for the reason that Nazam Khan does not have good relations with the accused, runs counter to the judgment in which the Qazi was also a party. This attitude of the Qazi casts serious doubt about his efficiency etc. The Qazi has created an unfounded trouble for the parties and Courts on no good ground.

24. Unfortunately I am placed in a situation where there remains no alternative for me but to remand the case to the District Criminal Court with the direction that purgation of the witnesses shall be conducted in accordance with law and the case shall thereafter be decided afresh.

25. Since Muhammad Anwar has been acquitted on good ground even if the witnesses are considered just, his acquittal would sustain and needs no interference, The evidence against him does not inspire confidence to show his involvement in the murder.

The upshot of the whole discussion is that I, with a heavy heart, accept this appeal, set aside the judgments of the Shariat Court dated 8 12 1983 and District Criminal Court dated 30 9 1979 and remand the case back to the District Criminal Court to decide it in accordance with the observations made above. The appellant Hassan Muhammad shall execute bail and surety bonds in the sum of Rs. 1,00,000 (Rupees one lac) to the satisfaction of the Registrar Supreme Court for his appearance before the District Criminal Court Poonch at Rawalakot during the trial. In the event the appellant fails to execute the bond he will be committed to judicial lock up. The accused appellant present in the Court is directed to appear before the District Criminal Court, Poonch, at Rawalakot on 27 11 1988.

A.A. /229/S C A

Case remanded.

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