1982 P Cr (PLP)

RAJA MUHAMMAD KHURSHID KHAN, ACTG. C.J.‑

AS identical questions of law and fact are involved in both the appeals we propose to dispose them of by a single order.

2. In the first appeal (Criminal No. 13 of 1979) a learned single Judge in the High Court, vide order recorded on 8th , January, 1979, disallowed the appeal and maintained the sentence of 40 stripes recorded against Nisar Ahmed, appellant to this appeal, under section 5 of the Azad Jammu & Kashmir Prohibition of the use of Intoxicants (Khamar) Act, 1973 (hereinafter to be referred as the Khamar Act, 1973), by the Additional District Magistrate, Muzaffarabad, which sentence also remained unimpeached on first appeal before the learned Sessions Judge, Muzaffarabad. The prosecution case as disclosed in the judgment of the High Court is :‑- " . that the appellant was found making noise in an intoxicated state of mind in Muzaffarabad Bazar Adalat Khan, T. H. C. Police Station Muzaffarabad was patrolling Bazar alongwith other constables when he saw the appellant in the intoxicated state of mind. The appellant was apprehended and a case was registered against him under section 5 of the Khamar Act. The appellant was examined by C. M. C., Dr. Shabbir Ahmed who opined vide Exh. `P. B.' that in his opinion the appellant bad drunk alcohol."

3. The second appeal (Criminal Appeal No. 1 of 1982) is directed against the judgment recorded by a learned single Judge of the High Court on 16th January, 1981. By this order the learned Judge dismissed the appeal moved by Khurshid, appellant herein, and declined to acquit him or alter the sentence of 40 stripes awarded by the trial Magistrate under section 5 of the Khamar Act, 1973. This sentence was upheld by r the learned Sessions Judge, Muzaffarabad, on first appeal moved by the appellant. In this case, as put forth in the judgment of the High Court, the prosecution case is :‑ " ..that Abdur Rashid and Mir Zaman, two .Police Constables, were on routine round of Muzaffarabad City on 26th November, 1978 when they found the accused, at about 8‑45 p. m. near Neelum Cinema Muzaffarabad in an intoxicated state of mind who was also making noise and was emitting smell of alcohol. He was taken to Police Station, Muzaffarabad and then to Medical Officer who opined that the petitioner was drunk. Consequently, after investigation, challan was filed with the learned Magistrate who returned verdict of guilty against the appellant .."

4. In the first appeal "Nisar Ahmad v. State" leave was granted to consider the following:‑ "Since important legal points are involved in this case relating to the procedure to be adhered in such offences and what weight to be given to a subsequent confession at late stage of the trial and also whether it is necessary under the Khamar Act to carry the purgation of the witnesses or not and the effect of the evidence given up by the prosecution."

5. In the second appeal "Muhammad Khurshid v. The State" leave to appeal was granted to consider the following :‑ "(1) Whether the stipulation under section 3 of the Azad Jammu & Kashmir Prohibition of the use of Intoxicants (Khamar) Act, 1973, that the fact of use of intoxicants must be proved by the testimony of not less than two male Muslim witnesses, is in accor dance with the tenets of Holy Quran and Sunnah which stipulate that such Muslim witnesses should be Adil ? (2) If the answer to No. 1 is in affirmative what is its effect on the conviction recorded against the petitioner? (3) Whether a person who only breathes smell of intoxicant as visualized under section 3 explanation (ii) of the Khamar Act, can be deemed to have used intoxicant in terms of Islamic Penal Law and if the answer is in negative how does it affect the petitioner's conviction ? (4) Whether the preamble of Khamar Act, 1973 which reads :‑‑ "Whereas it is expedient to prohibit the use of intoxicants (Khamar) and bring the law in conformity with the basic tenets of Islam as provided in Azad Jammu & Kashmir Government (Amendment) Act, 1971 ; ". makes it obligatory for the prosecution to examine two `Adil' witnesses and whether an inquiry (TAZKIAH) is necessarily to be con-conducted in this respect ? (5) Whether the petitioner had made a confession before the trial Magistrate and whether the retraction made later on exonerates him under the Quranic Law from the sentence of Hadd ? "

6. We have heard the learned counsel for the parties. The basic and the most important point which requires determination in both the appeals is regarding the vires of the Khamar Act, 1973, vis‑a‑vis section 34, of the Azad Jammu & Kashmir Government (Amendment) Act, 1971 (hereinafter to be referred as Government Act, 1971). Section 34, of the Government Act, 1971, reads :‑ "

34. No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah. Law shall be framed prescribing punishment or penalty for bringing into contempt the basic tenets of Islam."

7. On the point the arguments advanced on behalf of both ,the appellants ate that the offence of‑ drinking wine in the first instance is to .be met with the sentence of 'Hadd' ; in proof of which two just (Adil) wit nesses are necessarily be insisted upon and to adjudge the justness of the witnesses it is imperative to conduct their purgation. As section 5, of the Khamar Act, 1973, does not require the evidence of two Adil witnesses it was contended that the Act, being in conflict with the provisions of section 34 of the Government Act, 1971 and violative of Quran‑ and Sunnah, has to be ignored and struck down.

8. The learned Advocate General does not controvert the broader principles of the proposition put forth but in his view the sentence of 40 stripes awarded to Khurshid appellant and identical sentence to Nisar Ahmed appellant under the Khamar Act, 1973, is neither in conflict with section 34, of the Government Act. 1971, nor it violates the tenets of Holy Quran or Sunnah. Elaborating his case he submitted that the sentence of 40 stripes is to construed as a sentence of `Tazeer' and not 'Hadd' and for `Tazeer' the evidence of two just (Adil) witnesses is not necessarily to be insisted upon. As both the appellants have been sentenced to 'Tazeer', to him, there is no need for insisting upon two just (Adil) wit nesses. Evidence of two witnesses (Muslims), in his estimation (as this case is), is sufficient to convict a person. We have given our considered thought to the arguments advanced at the bar and feel unable to agree with the learned Advocate‑General. Let us determine as to how an Act is to be interpreted. It is well settled law that the object or purpose of all constructions of interpretation of statutes is to ascertain the intention of the law‑makers and to make i, effective. The basic principle has been announced time and again that if the statute is plain, certain and free from ambiguity a bare reading suffices and interpretation is unnecessary. Conversely, if the statute is ambiguous or its meaning uncertain, interpretation is required in order to ascertain what the legislators meant. The object of construction is to be ascertained from intent and to give it effect. If the Courts were permitted to ignore the expressed intent of the legislature they would invade the province of the legislature and violate the tri‑part theory of Government. The Legislature thus would become a non‑entity and his powers would, in fact, be wielded by the judiciary Theoretically anti legally the Courts are bound by the intention. Where the Courts follow the principle that the true object of construction is to ascertain the legisla tive intent, that intent defines the scope and extent of the law. In discover ing the intent the Courts are not exercising the legislative powers and naturally they would not rewrite a statute but only ascertain the legislative intent through the application or use of rules of common sense.

10. It should be remembered that while construing a statute the reasons for its enactment should be kept in mind and the statute should be construed with reference to its intended scope and purpose. The Court should seek to carry out its purpose rather than to defeat it. If the statute's meanings are clear it must be accorded the express meaning without deviation ; since such departure would be treated as an invasion in the province of the legislature by the judiciary.

11. It is thus clear that we have to interpret a statute on the afore said view of the matter. Let us now determine as to what do we mean by "intent". The word "intent" includes two concepts that of purpose and that of meaning. The Courts should try to find both the purposes C in an Act. It is also possible that the legislative intent may be the legislative purpose. Truly speaking the legislative purpose, in fact, is the reason why a particular enactment was passed by the Legislature.

12. Coming to the present case let us locate the intention of the law‑makers in enacting the Khamar Act, 1973. The preamble of Khamar Act, 1973, provides :‑ "Whereas it is expedient to prohibit the use of intoxicants (Khamar) and bring the law in conformity "with the basic tenets of Islam, as provided in Azad Jammu & Kashmir (Amendment) Act, 1971." The plain reading of the preamble manifests the intention of law‑makers that this law is enacted to bring it in conformity with the tenets of Holy Quran and Sunnah as is required under section 34 of the Government Act, 1971 (this Act was .the Constitution of the Azad Jammu & Kashmir). `Preamble' has always been considered as a part of the Act, meant to explain its purpose. It in fact provides a key‑note to the Act, which fixes the intention of the law‑makers and also fixes the goal to be attained by the legislature. Here the preamble of Khamar Act, 1973, manifest the intention of the law‑makers, i. e. the law relating to the use of Khamar was required to be made to bring it in conformity with the tenets of Holy Qur'an and Sunnah. We are confident that the reason for the enactment of Khamar Act, 1973 was to re‑enact the existing law regarding Khamar as the same was not in accordance with the tenets of Holy Quran and Sunnah.

13. The second question which falls for determination is as to whether the offence of taking wine carries with it the penalty of `Hadd' ? Hazrat Umar (God may bless him) fixed 80 stripes of sentence for drinking wine due to the changed circumstances when evil had much vent in the society. Reference may be made to (ISLAM KA NIZAM TAAZIRAAT) by Abdul Rehman bin‑Abdul Aziz‑ul‑Dawood. The author at page 130 of the book with reference to (FATH-UL-BARI) states :‑ It is also being said that Hazrat Umar (God may bless him), about the sentence to be met by a person who is proved to be guilty of taking wine, also sought advice from Hazrat Abdul Rehman‑bin‑Ouf, a 'Sahabi' (a companion of Holy Prophet, peace be upon him) who, in turn, opined that a person who takes wine, loses his sense and talks non‑sense becomes guilty of 'kazif' and when 'kazif' is to be met with sentence of `Hadd' there is no reason as to why a person who takes wine and thus talks `kazif' is not to be met with sentence of 'Hadd'. Reference may be made to (FATH-UL-BARI) by Ahmed‑bin‑Ali‑bin Hajar‑ul‑Askalani, page 69, in which it is stated : ‑ It would thus appear that for the offence of taking wine consensus of opinion of 'Khulafa‑e‑Rashidin' is that 80 stripes should be awarded to a person charged with the offence of taking wine.

14. Eighty stripes, no doubt, as a sentence for taking wine is not mentioned in the Holy Quran, but after the decision of Hazrat Umar it has consistently been followed and considered as 'Hadd' sentence. This decision of Hazrat Umar (God may bless him) has consistently been followed and acted upon.

15. The Prophet, Muhammad (peace be upon him) had once said that the actions of 'Khulafa‑e‑Rashidin' are his Sunnali. Reference may be made to (i) Umdat‑ul‑Qari, Edition 23, page 266, and (ii), ASOOL-E-FIQAH by Shah Wali Ullah page

297. In the first book it is stated :‑ In the second book it is stated :‑

16. The Holy Prophet, it is our faith and conviction, had never said anything unless he was inspired by God and his statements had the sanctity of law. Both the Qur'an and Sunnah have the Divine origin. In other words, the laws in the Qur'anic or an authentic traditionary text are revealed. Hence the basic sources of Sharia are the Holy Qur'an and the Sunnah. The tradition of the Prophet says (Muwatta : Imam Malik) :‑

17. The other source of Islamic Law is Ijma. Unlike the Quran and Sunnah, Ijma is non‑revealed. But if Ijma is done strictly in the light of the Holy Qur'an and Sunnah, the law laid down by this source will be authoritative and binding. Muhammad Hamidullah, in his book "The Muslim Conduct of State page 6" says : "Thus law originated from the direct commands of God ; but the power retained by man to inter pret and expand Divine Commands by means of analogical deductions, and other processes, provided all that was required by the Muslims. In this way a dual need was served : that of sanctity to inspire awe in the minds of those who were intended to observe it, and that of elasticity or capability of development to meet the needs of times and circum stances". In fact, this source is subordinate to the primary sources. It has the backing of the Quran and Sunnah. In his book "The Early Develop ment of Islamic Jurisprudence page 42 (1970)" Mr. Ahmad Hasan says "The Quran, the Sunnah, Qiyas and Ijma are interlinked ; the same spirit pervades these sources for which the final authority is the Quran. The basic material sources of Islamic Law are the Quran and the Sunnah. Their authority is unchanged in all times and circumstances. Qiyas and Ijma are, in fact, instruments or agencies for legislation on new problems for whose solution a direct guidance from the Quran and the Sunnah is not available. It is, therefore, obvious that Qiyas and Ijma are considered to be authoritative sources of law being‑ sub6ervient to the Quran and Sunnah. The authenticity of these auxiliary sources shall be determined only by the degree of their consonance with the other two original and unchallenged sources of law." It is very much available in Islam. It would thus appear that in Khamar cases the sentence of 'Hadd' i. e. 80 stripes is prescribed through Ijma'.

18. It should be noted that in. Islam, in every offence, a standard evidence is required in proof of an offence and that sentence cannot be dispensed with unless, of course; in alternate such a standard is not insisted for a punishment of `Tazeer'.

19. The judiciary is empowered to construe and apply the law subject of course that a judiciary cannot make law. There is distinction between the powers of iuterpretation which is inherent in the judiciary. Chief Justice Marshal has rightly said that the Legislature makes, the executive executes and the judiciary construes the law. About the judicial powers of the superior Courts it has been observen in 'The State v. Zia-ur-Rehman and others (P L D 1973 S C 49) "In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it, declares a legislative measure unconstitutional and void, it does not do so, because the judicial power is superior in degree or dignity to the legislative power; but because the constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces .the constitution as a paramount law whenever a legisla tive enactment comes into conflict with it because, it is its duty to see that the constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits , the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task which has to be performed with great circumspection but it has neverthess to be performed as a sacred Constitutional duty when other state functionaries disregard the limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them."

20. In the present case the very preamble belies the arguments of the Advocate General that where the sentence of Tazeer is provided it is not necessary to insist upon to have two just witnesses. No laboured argument is required on this point because the Khamar Act, as the preamble itself speaks, is enacted to make the law compatible with the Holy Quran and Sunnah. An offence for use of intoxicants is to be met by the sentence of 'Hadd' and to support such a charge the evidence of two just Muslim witnesses in this case are indispenseable. It is unfortunate that the Legislature, in the Khamar Act, while enacting the standard of proof had ignored their intention and provided such a standard of proof which is, in absence recognized by Islam. Naturally, such legislation is not known under Section 34 of the Government Act, 1971. If the legislature, however, still embarks upon to legislate such an act in depar ture to Section 34 of the Act; it has to be struck down when brought to the notice of the superior Courts. While dealing with the issue the Supreme Court, in Azad Government v. Kashmir Timber Corporation (P L D 1979 S C (AJ&K)139) held. "Therefore, there is a Constitutional bar for the council or the Assembly to make any law which may be repugnant to the teach ings and requirements of Islam. If law made by them, which is hit by any of these restrictions, is repugnant to the teachings and requirements of the Holy Quran and Sunnah it will be unconstitu tional and hence no law. We do not find any force in the conten tion of Mr. S. M. Zaffar that the responsibility to see that the laws are not repugnant to the teachings and requirements of Islam is of the Legislature. The Legislature is to make law and if they make a law which is repugnant to the Holy Quran and Sunnah then whose responsibility will it be to declare the law as void and unconstitutional. The judicial power vests in the Courts and they alone are competent to declare what the law is."

21. We ace, therefore, of the view that any law not in conformity with the Holy Quran and Sunnah, in view of Section 34 of the Government Act, 1971, which makes it obligatory for the legislature to make all the laws in future in accordance with the Holy Qur'an and Sunnah, shall have to be contrued as illegal and thus ignored.

22. It is significant that Khamar Act, 1973. was later on repealed and replaced by the prohibition (enforcement of Hadd) Ordinance, 1979. This Ordinance also is a pointer to the fact that the ealier law on the subject, i. e., Khamar Act, 1973, was not in accordance with the Holy Quran and Sunnah.

23. Section 3 of the Khamar Act, 1973, provides :‑. "Use of Intoxicants.‑Notwithstanding anything contained in any law for the time being in force, no Muslim shall use any quantity of intoxicant. Explanation.‑Subject to the exceptions given below, a person is said to use the intoxicants. (i) if he drinks takes by mouth or smokes or otherwise uses the intoxicants or; (ii) if he breathes, smells of intoxicants; or (iii) if he himself confesses to having used the intoxicant; or (iv) if he is found in a state of intoxication. the use of intoxicant mentioned in, (i). (ii) and (iv) above must be proved by the testimoney of not less than two male Muslim witnesses." This section does not make it necessary that witness should be 'Adil' nor it is obligatory for the Court to conduct purgation of the witnesses whereas under the later Ordinance (1979 Ordinance), under Section 9, two Muslim adult male 'witnesses about whom the Court is satisfied after conducting purgation that they are truthful persons and abstain from major sins (Kabira) are competent witnesses. This would clealy show that Khamar Act, 1973, was repealed because its provisions were not enacted in accordance with the tenets of Holy Quran and Sunnah.

24. The provisions of the Khamar Act, 1973, in our view, do not, as stated earlier, stipulate the standard of evidence as required in Islam. In cases of taking wine which carry the sentence of `Hadd', the witnesses should be `Adil' and the Court should also conduct their purgation to confirm their trustworthiness.

25. There is another important point in Khurshid's case which renders the orders passed by the Additional District Magistrate liable to quash. The appellant (Khurshid) was convicted by the Additional District Magistrate on 29th November, 1979, when already an amendment in the Code of Criminal Procedure was made, which empowered Tehsil Court or District Court of Criminal jurisdiction to try all those offences which carry a punishment of three years and upwards but not exceeding seven years or with whipping not exceeding 80 stripes with or without imprisonment and if the punishment was less than three years but above one year or with whipping not exceeding 40 stripes by the Tehsil Adalat. This amendment was made on 22nd February 1979 and published in official Gazette on 24th February, 1979. The Additional District Magistrate, after the afforesaid amendment was divested of the powers to bear and dispose of the case and as such his order being without jurisdiction has to by recalled.

25. It is correct that ‑substantive right cannot be taken by repeal or by amendment either expressly or by necessary implication. But the procedural matters are not vested rights and a procedure exists at a time when his commences can be taken away by the Legislature providing a different procedure. How a matter is to be heard is merely a matter of procedure and a person has no vested right to say that he is to be heard by a particular forum or particular Court.

26. As we have struck down the Khamar Act, 1973, on the ground that it is unconstitutional and not in conformity with the Holy Quran and Sunnah the points Nos. 3 and 4 reflected in our order granting petition for leave to appeal in case of Khurshid appellant need not be decided here. We leave these points unattended to be decided in a case where their decision is absolutely necessary. For the above stated reasons it would appear that Khamar Act, 1973, was enacted in utter disregard of section 34 of the Azad Jummu & Kashmir Government Act, 1971, which makes it imperative to make laws in strict conformity with the Holy Quran and Sunnah. Such an C illegal law has to be struck down and any conviction recorded under such an Act automatically fades. Both the appellants, for the reasons stated above, are acquitted. The appellants also stand discharged of their bail bonds. Appeal allowed.