P L D 1988 Supreme Court (AJ&K) 190 (PLP)

"TAZKIYAH Lit. 'purifying' (1) giving the alms, (2) the purgation of witnesses." "An institution of inquiry into the character of witnesses." The following Ayats of Holy Quran may also be said to have some relevancy on the issue: (i) (a)Al‑Maida Ayat No.11 (V.111) That is most suitable. That they may give the evidence in its true nature and shape

" (b) Al A'raf Ayat No.105 (VII :105): "One for whom it is right. To say nothing but truth about Allah. Now have I come unto you (people); from your Lord with a clear (Sign): So let the Children of Israel Depart alongwith me." The above is an order about 'will' but it cannot be said with certainty as to whether the principle can be extended to cover all cases. (ii) Al Talaq: 2 (LXV: 2): "And take for witness two persons from among you, Endued with justice. And establish the evidence (As) before Allah.' It is thus obvious that in matters of 'will' and 'Talaq' only those witnesses are endued with justice who are found just after their testimony is tested by a 'Model' or 'Muzakki' secretly or publicly may now refer to an Ayat of Holy Quran. (S. XLIII 86):- Maulana Yusuf Ali translates it in the following way: ‑ Only he who bears witness to the Truth, And they know (Him). This Ayat is referred in Ainul Hadaya (Urdu), Vol. 3 (Kitabush Shahadat) page

339. At pages 343 and 344 it is said:‑ It would, thus, appear that 'Tazkiya' of the witnesses is conducted primarily with the object to know their competency and other virtues in order to place implicit faith in their statements to record conviction in cases of 'Hudood' and 'Qissas'. Naturally, the procedure adopted to conduct 'Tazkiya' must satisfy that it is done by persons whose conduct is also above‑board. 'Tazkiya' conducted by any person whose conduct is not shown to be above‑board, cannot be considered to be 'Tazkiya' known in the Islamic law.

9. How secret purgation is to be conducted is the next question to be answered. A secret purgation is made by a Qazi writing a letter, privately, to a 'Muzzaki' or purgator (that is, a person whose business it is to inquire into the character of others), and describing to him the family and countenance of the witnesses, and likewise their place of abode; and the purgator, in like manner, returning his answer privately to the Qazi, lest if it were known to a party, he might attempt to injure him. (Hedaya by Hamilton, second edition, page 356 owns this view). The secret inquiry is called in legal and technical language 'mestureh'. It is conducted by writing. For such an inquiry the judge is to put in writing the names of the parties and the subject‑matter of the action, and the names and generally known names of the witnesses and their trade and conditions, and the places where they live, and the names of their fathers and grandfathers, or if they are well‑known, only their names, and generally known names.

10. The judge should place it in an envelope and seal it and then send the same to those who are chosen to ascertain the character of the witnesses. The persons chosen after opening and reading the 'mestureh', if the witnesses are competent would write under the names that they are competent as regards the evidence, and, if they are not competent, it would be said that they are not competent. They would sign it, and return it to the judge, putting a seal on the envelope, without making known what is written to the person, who brings the envelope, or other persons.

11. Who are the persons competent to make purgation is also an important question to be answered. The examination of the credibility of the witnesses is to be made (publicly or privately) from the people with whom they have been connected, that is to say, if they are pupils, from trustworthy inhabitants, the master of the school where they have lived, and, if they are soldiers, from the officers and clerks of their battalion, and if he is a clerk from his superiors and fellow clerks in his office, and if he is a merchant from trustworthy merchants and if he belongs to an incorporated trade from the warden of the trade and the masters in committee, and if he belongs to other trades from trustworthy inhabitants of the quarter of village. (The Mejelle by C.R. Tyser, 1980 edition page 302 provides this guideline.

12. The above would show that ordinarily more than one trustworthy inhabitants of the quarter of village where the witnesses reside are required to come forward to testify that the witnesses are 'Aadil'. No. 1 doubt one person is also competent to testify that the witnesses are but prudence requires the number as two.

13. Let us now look into the issue in view of the above observations. The document, on the basis of which 'Tazkiya' (purgation) has been conducted, shows that the District Qazi entrusted the job of conducting the purgation to Tehsil Qazi who, it appears, reached the relevant village on 1‑7‑1980 and conducted the purgation on the same day. The 'Muzakki' (Tehsil Qazi), on the oral words of one Muhammad Siddique son of Muhammad Sharif, was satisfied that the witnesses were 'Aadil'. The witnesses, thus, were declared as such. Muhammad Siddique is stated by the 'Muzakki' to be an independent person residing within the vicinity of the litigant parties. According to 'Muzakki Muhammad Siddique is a retired Havaldar and now is working as driver. To have the correct view in the matter, let me quote the 'Muzakki in his own words. He says:‑‑

14. We have on the issue only one person, namely Muhammad Siddique son of Muhammad Sharif who, according to 'Muzzaki' is Haveldar and independent person residing within the vicinity of the parties. No doubt in secret inquiry one person to inquire into the character of the witnesses may be sufficient yet for consideration of prudence there should be two at least. I am supported in my view in Mejjele by C.R. Tyser, 1980 edition page 303.

15. It may be observed that the mere fact, that Muhammad Siddique is Haveldar and independent person would not, per se, be sufficient to say that he is trustworthy man. There is nothing on the record to hold so. Experience tells us that a person may be independent having no relation whatsoever with any of the parties but still he may not be considered a trustworthy man competent to depose about the conduct of the witnesses. It is, therefore, necessary that person or persons who are noble, notable and of unimpeachable character' should inquire into the conduct of the witnesses. Such a person or persons should have the same qualities as are being required of a purgator. Unfortunately there is nothing on the record that Muhammad Siddique had the qualities listed above. How he can be termed to be a person competent to depose about the conduct etc. of 'the witnesses? Besides, Muhammad Siddique, as said by the Qazi, is only a neighbour of the parties and not of the witnesses as is required under law. We are supported in our view from the following extracts of expertise. In 'Fatawa‑e‑Alamgiree, Vol. 5 page 194, the procedure which the purgator is to follow in conducting the purgation is narrated as under: In Ainul Hadaya, Vol. 3, page 346 about purgation it is written:- The above would show that the inquiry with respect to the witnesses is only competent from the persons who are noble, righteous, honest etc. 'Fatawa‑e‑Alamgiree' published by in its note 26 also owns this view. It is maintained in this note:‑ It is further maintained in Note 18 of the same book at page 321: The book further maintains in note 27 at page 325 as follows:‑ Besides, in 'Fatawa‑e‑Alamgiree' Vol. 5, page 193, it is writ ten: ‑ In Sharah Fateh‑ul‑Qadeer, 6:13 it is written:‑

16. The combined reading of the above would show that it is, imperative for the purgator to inquire into the conduct, character and antecedents of the witnesses from those persons whose character is unimpeachable. Therefore, the mere say of the purgator that Muhammad Siddique is an independent person, per se, is not sufficient to hold that he was a competent person to apprise the purgator about the conduct of the witnesses. Besides, since Muhammad Siddique, as per say of the Qazi, is not the neighbour of the witnesses, he is incompetent to conduct purgation of the witnesses. Only such person or persons are competent to conduct the purgation who are neighbours of the witnesses and not of the parties, Ir. these circumstances, I am of the view that the purgation had not been conducted in accordance with the procedure available in Islam. This factor vitiates the judgment and warrants remand.

17. I do feel that remand is very hard for the parties but unfortunately there is no way out for me and I cannot formulate law which may be violative of the Islamic procedure to be followed in conducting the purgation. To avoid remand I have persuaded the parties to compromise the matter but in vain. For the above stated reasons I accept the appeal of Abdul Razaq and Taj Muhammad, appellants, and setting aside the judgment of the District Criminal Court dated 26‑8‑1980 as well as of the High Court dated 12‑2‑1984 remand the case back to the District Criminal Court with the direction that purgation will be conducted afresh in the light of the observation made above and then the case may be decided in accordance with law. Since the other accused, namely, Noor Ahmed Khan and Mahboob Khan (in Criminal Appeal No.1 of 1984), were acquitted even considering the witnesses to be 'Aadil', I think that their acquittal order is to stand. The judgments recorded by the High Court and the District Criminal Court give plausible reasons for their acquittal. The High Court, on the point, maintained the acquittal order passed by the District Criminal Court, inter alia, on the following grounds:‑ "Muhammad Shafait also lodged a revision petition for enhancement of sentence of the two appellants and setting aside the order of acquittal in respect of other respondents. We have examined the injuries of the deceased and Muhammad Shafait. The deceased received one fatal injury and others were in the shape of abrasions, not likely to be caused with any weapon, such as hatchet or sticks. Such injuries were likely from fists and `kicks. As none of such injuries was attributed by fists and kicks, acquitted persons were entitled to the benefit of doubt. Likewise, the simple injuries on the person of Muhammad Shafait were not shown to have been caused with any weapon except the kicks. As Muhammad Shafait also failed to attribute such injuries to any other accused, the acquitted accused were not found connected with the liability of such injuries. The order of the trial Court in that respect was not likely to be disturbed." On the basis of the above finding, the appeal of Muhammad Shafait having become infructuous stands dismissed. The trial Court is at liberty to have its own finding afresh uninfluenced by the finding already recorded by the District Criminal Court or the High Court. Abdul Razaq and Taj Muhammad, appellants (accused), are, however, directed to appear before the District Criminal Court, Bagh, on 2‑6‑88 and the District Criminal Court would see that the case is disposed of within a month after the receipt of the file. M.B.A. /221/S.C.A. Order accordingly.