1980 P Cr (PLP)

(h) Islamic Penal Laws Act‑

‑‑‑ Ss. 5 & 24‑Sentence‑No eye‑witness in case available Sentence of Qisas, held, cannot be awarded‑Evidence relating to premeditation and ,motive not available‑Sentence of 14 years' R. I. instead held, adequate in circumstances.‑[Sentence]. Manzoor‑ul‑Hassan Gilani : Amicus curiae for Appellant. Rafique Mahmood Khan Addl. A.‑G. for the State. Dates of institution : 24th and 28th December, 1978. ABDUL MAJEED MALLICK, J.‑Muhammad Sadiq, accused‑appellant was convicted by the District Criminal Court, Poonch vide its judgment and order dated 31st October, 1978, under section 5 of the Islamic Penal Laws Act, to `diyyat' to the tune of Rs. 23,000 to be paid in three instal ments within a period of 3 years and also under section 376‑A, P. C. and was sentenced to 5 years' rigorous imprisonment and a fine of Rs.

500. In case of failure to pay the fine, to further undergo 6 months' simple im prisonment. The sentence was to run concurrently. The accused‑appellant has challenged the order of his conviction. The State has also come in revision for enhancement of sentence. As both the matters arise out of the single judgment, they, shall be disposed of together. The facts of the case are that on the 21st of April, 1976, at 4‑45 p.m. case was registered under section 5 of the Islamic Penal Laws Act, on the report of Kh. Said Ullah, complainant at the Police Station, Abbaspur (Poonch). According to the prosecution, Mst. Saja Begum deceased, aged 50‑52 years, was living alone in her house during the occurrelice, as her brother Muhammad Akram had gone to Pakistan for earning livelihood. On 21st April 1976, at about 2‑30 p.m. Muhammad Bashir, house‑servant of the complainant went to the house of the deceased in order to deliver her food. The door was closed from inside. The matter was brought to the notice of the complainant who accompanied Muhammad Bashir to the house and a side‑window was found opened through which Muhammad Bashir entered the room and opened the door. Mst. Saja Begum was found lying dead in her bed. Maqbool Ahmed, Head Constable visited the spot on the same day, prepared the inquest report, sent the dead body for post‑mortem, made recovery of blood stained earth and other articles lying in the room. Ch. Ahmad _Saeed, S. H. O. went at the place of occurrence on 23rd April, 1976, arrested Muhammad Sadiq accused‑appellant and made recovery of hatchet, the alleged weapon of offence, blood‑stained shirt and semen‑stained 'shalwar' of the accused. After the completion of the investigation, the accused was sent to the Judicial Lock‑upon 1st May, 1976. On 2nd "gay, 1976, the Sub‑Judge, Magistrate 1st Class, Haveli was moved for recording the statement of the accused‑appellant under section 164, Cr. P. C. The accused. appellant was summoned from the Judicial Lock up on 2nd May, 1976, and his statement was recorded accordingly. The Prosecution produced Kh. Said Ullah, complainant, Muhammad Shall, Muhammad Bashir, Sher Muhammad, Muhammad Abdullah, Patwari Ghulam Akbar, Kh. Muhammad Hanif, Ch. Muhammad Mumtaz Sub Judge Magistrate Ist Class, Haveli, Ghularn Nabi, Head Constable, Muhammad Aziz, Constable, Dr. Ghazanfar Ahmad, Maqbool Ahmad Head Constable and Ch. Ahmed Saeed, S. H. O. The accused retracted the confession and pleaded not guilty The evidence of the prosecution is based on :‑ (1) Retracted confession ; (2) Recovery of blood‑stained hatchet and clothes of the accused ; and (3) Other circumstances. Mr. Manzoor‑ul‑Hassan Gilani, the learned Counsel for the accused appellant attacked the finding of the trial Court on the ground of failure of District Qazi to conduct the purgation (Tazkia) of witnesses as warranted by section 26(2) of the Islamic Penal Laws Act. According to the learned Counsel, the present case fell under section 5 of the Islamic Penal Laws Act and as such purgation of the witnesses was essential. Mr. Rafique Mahmood Khan, Additional Advocate‑General also pointed out that the proceedings of the trial Court were silent on the point of purgation. On perusal of the record, it was found that District Qazi did not undertake purgation (Tazkia) of the witnesses in the case, as pointed out by the learned counsel for the accused‑appellant. Despite that, it is to be determined as to whether (Tazkia) (purgation) in a case like the present one was mandatory, as argued by the learned counsel for the accused‑appellant or not. Under the scheme of Islamic Penal Laws Act, 1974, the provision of (Tazkia) is incorporated under section 26(2) wherein it is provided that in cases of 'Hadood' and `Qisas' the District Qazi shall undertake purgation of the witnesses. In Part I of the section it is provided that notwithstanding anything contained' in the Evidence Act, 1872 or any other law for the time being in force, in cases of `Hadood' and `Qisas' there shall be two Muslim adult male witnesses and in all other cases, two adult male or one adult male, and two female witnesses, as required under the principles of Evidence in Islamic Law. It was evident from the aforesaid provisions that in cases of `Hadood' and `Qisas', the requisite number of witnesses was two adult male Muslims. On the enforcement of 'Hadood' Ordinance, 1979, the provisions relating to sections 16 to 22 were repealed and as such the cases of `Hadd' were no more covered by the Islamic Penal Laws Act, 1974. Therefore, we are left to deal with the case of 'Qisas'. The standard of evidence envisaged in Islamic Law was that of two adult male Muslims. Therefore, primarily, where the evidence, according to the number of witnesses, was not available, the sentence of 'Qisas' could not be enforced: On the other hand, where the evidence, in requisite quantity, was available but the witnesses or any of them was e not considered as just (Aadil), the accused person could not be subjected to the sentence of `Qisas'. The analysis of the proposition was that the sentence of `Qisas' could be awarded provided :‑ . (a) the requisite number of witnesses, i.e. two male Muslims, was awailable, and (b) the witnesses ware found just add man of integrity (Aadil) by the Qazi. In case of failure of fulfilment of either of the conditions, the sentence of 'Qisas' could not b2 awarded. The fact of the matter was that under section 26(2) of the Tazeerati Act, a Qazi was obliged to make purgation (Tazkia) of the witnesses provided he was apprised that such witnesses were bearing testimony of murder. In other words, unless the witnesses were eye‑witnesses of a murder, it was not incumbent upon the Qazi to enter into the process of purgation (Tazkia). In our view, the provision of purgation (Tazkia) was invokable only in cases of eye‑witnesses in a murder case and no other witness could be subjected to the process of purgation (Tazkia). While analysing this proposition, we are also attracted by the provisions of sec tion 24(1) of the Act wherein it is provided that when the trial Court is satisfied that the charge against the accused is proved but in absence of the requisite number of witnesses or that the testimony of the witnesses was not of the standard provided by Islam the accused person could not be awarded sentence of `Qisas' and the Court was empowered to convict and sen tence the accused to either of sentence or sentences provided under sec tion 3 of the Act. A reference to the number of witnesses and standard of evidence of the witnesses provided under section 24(1) was indicative of the fact that need of purgation (Tazkia) was felt only in a case of `Qisas' and the same was necessary with respect to the testimony of the eye witnesses. Suppose, contrary to the aforesaid proposition, it is held, that the witnesses in addition to eye‑witnesses appearing in a murder case were also !fable to be purgated by a Qazi, the scope of purgation would be enlarged arid in that case, whosoever, proved any evidence of indirect nature, would be liable to purgation so much so that the experts and other skilled witnesses whose testimony had no direct bearing on the occurrence, would also become the subject of purgation. Similarly, the testimony of patwari who prepared the site plan, Police Officers who registered the case, made recoveries, arrested accused and completed the investiga tion, shall have to be purgated. We are not convinced that this could be the intention of law as this will open a door of another inquiry against the witnesses which may ultimately defeat the ends of justice. Therefore, in view of the provision of sections 24(1) and 26(1) of the Act, we feel advised to observe that the purgation was essential only in case of eye witness and none else. Applying the aforesaid principle to the present case, it would become clear that as in the present case there was no eye‑witnesses and the evidence was comprising retracted confession, recoveries and medical evidence etc., the failure of Qazi to carryout the purgation (Tazkia) was not fatal to the case and as such not sufficient to set aide the judgment of the trial Court and remand the case. It was also argued that the accused‑appellant could not be convicted by the trial Court under section 376, P. P. C. as the offence was not convered by the Islamic Penal Laws Act. The District Criminal Court was em bowered to try the cases covered by the Islamic Penal Laws Act and the schedule of the cases triable by the District Criminal Court was given in the Notification issued by the Government. The offence of rape was no covered by the Islamic Penal Laws Act and at the time of commission o offence, Islamic Laws relating to `Zina' were not enforced. Therefore, the offence under section 376 was triable by a Court mentioned in column NP. 8 of schedule No. z of Cr. P. C. According to column 8 of Schedule 2, Cr. P. C. a case of rape was triable by the Court of Sessions. As the Sessions Judge was one of the members of the District Criminal Court, be was competent to held trial in the case of rape. Therefore, this objection could not be upheld on the ground that the District Criminal Court, being creation of special statute, had no jurisdiction to hold trial under section 376, P. P. C. Of course, in case the Sessions Judge was not a member of the District Criminal Court, the objection could be found valid. Therefore, in view of our observation, the objection raised by the learned counsel for the accused‑appellant is repelled. On merits, it was argued that the accused‑appellant could not be convicted on the basis of retracted confession and alleged recovery of hatchet and clothes of the accused‑person. Mst. Saja Begum deceased was stated to be living alone in her house. She was 50/52 years old and there was no reason to think that the story of the prosecution was incom patible with the evidence on record. On finding Mst. Saja Begum dead in her bed, Khawaja Said Ullah complainant immediately sent a report to the Police Station on which the investigation was initiated. On 23rd April, 1976, at the arrival of Ch. Ahmed Saeed S.H.O., the accused appellant was interrogated where he confessed the matter. The accused appellant led the Police to the recoveries of hatchet and clothes on the same date. Blood‑stained shirt and semenstained 'Shalwar' of the accused‑appellant were recovered at his instance from his room. Similarly, blood‑stained hatchet was also recovered from the room of the appellant at his instance. All the aforesaid articles were found blood and semen‑stained by the Chemical Examiner. vide his report, dated the 28th of May, 1976. Pieces and scrapings of the blood and semen‑stained articles were sent to the Serologist for determining the origin and grouping of the blood‑stained semen. The other aspect for consideration, was the conduct and integrity of the witnesses of recoveries. Kh. Said Ullah and Sher Muhammad P. Ws., testified the recovery of the incriminating articles, recovered at the instance of the accused‑appellant. There was nothing on record to impeach the credibility of the witnesses. Both the witnesses were respectable of the locality and there was nothing to show that they were motivated to falsely implicate the accused or to attribute the recoveries to him. Therefore, we are of the view that the evidence pertaining to the recoveries of clothes of the accused and weapon of offence, was independent and impartial and this piece of evidence con nects the accused‑appellant with the commission of offence. On 1st May, 1976, the accused‑appellant was sent to Judicial Lock‑up and on 2nd May, 1976, the investigating officer requested the Sub‑Judge/ Magistrate 1st Class, Haveli to record the statement of the accused appellant under section 164, Cr. P. C. The accused was brought from the Judicial Lock‑up and he made his statement before the Magistrate on 2nd May, 1976. In this statement, the accused‑appellant gave details of the occurrence. When the accused was examined under section 342, Cr. P. C. he denied and disowned the statement relating to the confession. Ch. Mumtaz Ahmed Sub‑Judge/Magistrate 1st Class appeared to testify the retracted confession. The other witness before whom the accused appellant made extra judicial confession, was Muhammad Shafi, who also, appeared and stated that the details of occurrence were narrated to him G by the accused whereby he confessed to have killed the deceased after committing rape. As a rule of prudence, it was not advisable to convict 3n accused solely on the basis of retracted confession, despite the fact that the retracted confession was a strong piece of evidence against the con fessor. In the present case, in addition to the retracted confession, there was evidence relating to recovery of articles connecting the accused with commission of offence. Therefore, there was sufficient evidence to hold that the accused‑appellant committed rape with the deceased and ultimately he murdered her by inflicting injuries with the hatchet. The trial Court found the accused‑appellant guilty for the murder of Mst. Saja deceased and awarded sentence of `Diyyat' for a sum of Rs. 23,

000. Under section 24 of the Act, it was provided that in case of a murder where the requisite number of witnesses was not. available, or the witnesses were available but their evidence was not of the standard provided in Islam, and the Court was satisfied that the offence was proved, it was empowered to convict accused person and impose any sentence or sentences given under section 3 of the Act. As stated earlier, there was no eye‑witness in the case and as such the sentence of 'Qisas' could not be awarded. Evidence relating to the premeditation and motive was also not available, on account of which, we are of the opinion that sentence of Rigorous Imprisonment for a period of 14 years would be adequate, instead of the sentence of 'Diyyat' as awarded by the trial Court. The sentence awarded by the trial Court for the offence of rape is upheld. Both the sentences shall run consecutively. On this view of the matter, the appeal of the accused‑appellant is hereby dismissed and the revision petition filed by the State for enhance ment of sentence is accepted accordingly. A copy of the judgment shall be sent to the accused‑appellant through Superintendent Jail, Pallandari. Order accordingly.