1983 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, J.‑Muhammad Farooq appellant has filed this appeal against the judgment of the District Criminal Court, Mirpur dated 17‑8‑1980 whereby he was awarded punishment of `Qisas under section 5 of the Islamic Penal Laws Act of 1974. The District Criminal Court has also made a reference for confirmation of the sentence of `Qisas' passed against the accused‑appellant Muhammad Farooq. This order shall dispose of both the appeal as well as reference. The brief facts of the case alleged by the prosecution are as under‑ One Mst. Sureyya Begum the sister of the appellant was married to one Mehraj Din, the real brother of the complainant and Muhammad Razzaq deceased. She was divorced by Mehraj Din about 4 months prior to the fateful day of the occurrence which took place on 12‑11‑1974. The two children, Rifat Begum aged 7‑8 years and Nasir Mahmood aged about 3 years who were born from the aforesaid wedlock were handed over to Mehraj Din, their father in pursuance of a settlement arrived at between the parties and which was also put in black and white in form of an agreement dated 28‑7‑1974.Mehraj Din who happened to be in England even before when he divorced his wife left Rifat Begum and Nasir Mahmood, the two children in the custody of the complainant Muhammad Iqbal, his brother and his father and returned to England for earning livelihood. On 12‑11‑1974 the two children were found missing from the house of the complainant and deceased Muhammad Razaq. Thus, Muhammad Iqbal complainant and his brother Muhammad Razaq deceased undertook a search for the missing children which ultimately led them to the house of Nizam Din, the father of the appellant and Mst. Sureyya Begum divorcee. The children came out of the house of Nizam Din on the call of Muhammad Iqbal complainant and when the two brothers, Muhammad Iqbal and Muhammad Razaq deceased alongwith children were on their way to their house, and were at a distance of few yards from the house of Nizam Din, the appellant came out of his house shouted abusing and yelling that he would not allow the complainant and his brother to take away the children. He pursued them, attacked Muhammad Razaq with a dagger thrusting it beneath the armpit. On receiving the injury Muhammad Razaq fell down on the ground and expired. Thereafter according to the case of the prosecu tion, appellant also attacked Muhammad Iqbal complainant who in return hurled 2‑3 stones at him and ran away to safety. Apart from complainant, Mahmood Hussain and Muhammad Din have been examined by the prosecution as eye‑witnesses of the occurrence. Previously, the accused‑appellant was found guilty by the District Criminal Court under section 5 of the Islamic Penal Laws Act read with section 302 of the APC and was convicted and sentenced by the Sessions Judge; a member of the District Criminal Court to death, while the District Qazi vide a separate judgment passed sentence of 'Qisas' against the appellant under section 5 of the Islamic Penal Laws Act of 1974. On appeal to the High Court, it was found that purgation of the witnesses was not conducted according to law and accepting the appeal conviction and sentence of the appellant were set aside and case was remanded to the District Criminal Court with‑the direction that after conducting the purgation of the witnesses, the case should be decided afresh according to law. Thus, the District Criminal Court again convicted and sentenced the appellant under section 5 of the Islamic Penal Laws Act of 1974, and ordered that he should be put to death by severing his neck from the body with a sword. It is out of this order of the District Criminal Court that above entitled appeal and reference have arisen. We have heard the arguments and perused the record. It was argued on behalf of the appellant that although the District Criminal Court had recorded in the interim order dated 5‑6‑1979 that purgation of the witnesses had been performed and the same would be brought on the record at the time of the 'decision' of the case, yet no such record of the purgation or the result thereof have been placed on the record to show as to what was the nature and result of the purgation; whether the witnesses were found 'Adil'. The reference was made to cases reported as P L D 1979 S C (A J & K) 1; and P L D 1979 S C (A J & K) 78 and it was argued that it is always desirable to prepare and maintain the record with regard to the purgation of the witnesses for facilitating the appellate Courts to peruse the same if any such need arises. At least, it was argued that some record should have been placed on the file to show as to what was the result of the purgation. It was further urged that mere recording in the judgment that witnesses were found 'Adil' was not sufficient compliance of law. As it has come to our notice frequently that District Qazis, for maintaining secrecy, keep the record of the purgation of the witnesses in their own office, we sent for the record of the purgation of the witnesses pertaining to the instant case from the office of the District Qazi, Mirpur. The record of the purgation of the witnesses was transmitted with a request that the same may be returned to District Qazi after perusal so that secrecy may be maintained because, according to the Qazi, under 'Sharah', it is necessary that record of the purgation of the witnesses is kept secret. A perusal of the said record of the purgation of the witnesses revealed that out of three eye‑witnesses, namely, Muhammad Iqbal complainant, Mahmood Hussain and Muhammad Din, Mahmood Hussain was not found 'Adil' as a result of purgation conducted by the District Qazi. Thus, obviously, it was incorrectly recorded in' the judgment under appeal that all the three eye‑witnesses in the case were found 'Adil'. It may be pointed out here that purgation of the witnesses in the case was conducted by Qazi Maqboolur Rehman while the case was decided by the District Court consisting of Sessions Judge, Khawaja Aziz‑ud‑Din and Qazi Ashraf Shah who happened to be the members of the District Court at the time of the decision of the case. It is evident that somehow or the other, the District Court treated all the three witnesses as 'Adil' whereas in fact, Mahmood Hussain was not found to be an 'Adil' witness as a result of purgation and as such his testimony could not be relied under section 26 of the Islamic Penal Laws Act read with principle of Muslim Law on the subject for awarding punishment of 'Qisas'. Under section 26 of the Islamic Penal Laws Act of 1974, there should be at least two male witnesses conforming to the standard laid down in Muslim Law, for awarding the punishment of 'Qisas' or 'Hadd'. It has been opined by the District Court in the instant case that a brother is competent witness under Muslim Law. But we have come across opinion expressed by some of the Muslim Jurists that when a brother is a complainant in the case or he has chance to inherit from the deceased (murdered person), he does not remain a competent witness for the purposes of awarding punishment of 'Qisas' or Hadd'. The matter that Muhammad Iqbal, the brother of the deceased is also a 'complainant' in this case was not adverted to by the District Court perhaps because the District Court treated all the three witnesses as 'Adil' and as such even if the testimony of Muhammad Iqbal complainant would not have been relied upon, the number of the witnesses necessary for awarding the punishment of 'Qisas' was complete. But as the matter stands now, the proposition as to whether testimony of Muhammad Iqbal complainant can be relied upon for awarding the punishment of 'Qisas' has assumed paramount importance in this case because, after the declaration of Mahmood Hussain P. W. as 'Ghair Adil' if the tesmimony of Muhammad Iqbal complainant is excluded from the consideration for the purposes of awarding the sentence of `Qisas' the number of the witnesses does not remain two as required under section 26 of the Islamic Penal Laws Act and as such, the punishment of 'Qisas' cannot be passed against the appellant. Q In that case, if the offence is otherwise proved, the appellant is liable to any of the other punishments prescribed under section 3 of the Islamic Penal Laws Act. It may be further pointed out here that at the time of hearing the arguments, the aforesaid matter was not made focus of the exhaustive arguments because it was assumed by the Counsel for the parties as well as by the Court that all the three witnesses were found 'Adil' in purgation proceedings as was recorded by the District Court in its judgment. This is one of the reasons that instead of deciding the matter ourselves, we have decided to remand the case to the District Criminal Court. There is yet another aspect of the matter. According to the case of the prosecution, clothes i.e. Shirt, 'Shalwar' and 'Bunyan' some of which were blood‑stained were seized from the body of the appellant at the time of his arrest. But no question was put to the appellant in his examination under section 342, Cr. P. C., with regard to the seizure of the aforesaid blood‑stained C clothes from his body at the time of his arrest. Since we are remanding the case for other reasons recorded above, we feel advised to direct the District Court to put a further question to the appellant under section 342, Cr. P. C. with regard to the seizure of the blood‑stained clothes from his body at the time of his arrest and also to give him an opportunity to lead evidence in defence if he so desires. Before parting with the case, it may be observed here that the learned District Qazi while transmitting the record of the case has made a request that the same may be returned to him after perusal so that it is kept secret. It may be observed that purgation may be conducted either open or secret. The philosophy behind the secret purgation is that persons acquainted with the character of the witnesses may be hesitant to depose against them in public and thus, it may be difficult to conduct purgation satisfactorily as enjoined under Muslim Law. Now‑a‑days, it becomes all the more difficult to persuade pious persons of impartial integrity to express opinion about the character of the witnesses openly and to run a risk of earning displeasure of the witnesses. Therefore, it is desirable that the names of such persons from whom the queries with regard to the character of the witnesses are made are kept secret. Thus, it is desirable that Qazis should prepare the record of purgation in such a manner that its secret part may be kept separate from the non‑secret part, containing the result of the purgation i.e. whether witnesses are 'Adil' so that non‑secret part may be easily made part of the judicial file. The Supreme Court has opined in case reported as P L D 1979 S C (A J & K) 78, that Qazi should maintain the record in writing with relevant dates such as names of the persons, summary of their statements and other facts forming basis of opinion regarding competency or otherwise of the witnesses so as to enable the appellate Courts to satisfy themselves regarding competency or otherwise of the witnesses, if they so desire. It is evident from the observations made by the learned Judges in the aforesaid case that it has not been laid down that all the record pertaining to purgation of the witnesses must be treated non‑secret or that it should necessarily from part of judicial file. The learned Judges of Supreme Court have only impressed the necessity of maintaining a detailed record so that the same could be made available if any of the appellate Courts desires to examine the same. In other words, it has not been held in the aforesaid case that all the data of purgation should form the part of judicial file. In the instant case, the difficulty is that the names of the persons from whom the queries with regard to the character of the witnesses were made are written on the same sheet of paper on which the result of the purgation has been recorded. Therefore, under these circumstances, it is directed that the record of the purgation shall be returned to District Qazi for keeping it secret and in safe custody so that it may be made available for the perusal of any of the appellate Courts, if an occasion arises. The upshot of the above discussion is that we accept the appeal, set aside the conviction and sentence of the trial Court and remand the case to District Criminal Court with the direction that it shall put a further question to the appellant with regard to the seizure of blood‑stained clothes under section 342 of the Cr. P. C. and after giving him an opportunity to lead evidence defence, if any, rehear the arguments and decide the case afresh in the light of the above discussion. Consequently, the reference for confirmation of the sentence of 'Qisas' fails and it is hereby rejected. Appeal dismissed.