2000 PLP 2072 (YLR)

BASHARAT AHMAD SHAIKH, J.‑‑‑The ,appellant is facing his trial under sections 295‑A, 295‑C, 298‑A and 506 read with section 109 of the Penal Code. The case is triable by the District Criminal Court. The statement of the accused under section 242 of the Criminal Procedure Code was recorded on 24th April, 2000. The appellant filed a revision petition before the Shariat Court to challenge the aforesaid proceeding, inter alia, on the following two reasons:‑‑ (1) That the case was not fixed for recording of statement. (2) The statement was recorded by learned ‑Sessions Judge alone which he was not authorised to do. The revision petition has been rejected by the Shariat Court. The .appellant has filed this appeal as of right.

2. We have heard the learned counsel for the parties. A perusal of the interim order shows that the case was not fixed for recording of statement under section 242 on 24th April, 2000 when the said statement was recorded. The previous order passed on 11th April, 2000 reads as follows: -‑‑ "Public Prosecutor present. Accused person in custody. The learned counsel for the accused has filed a written request in which he has prayed that he has filed a review petition in the Supreme Court, therefore, the statement may be recorded after it. To come up for proper orders on 24th April, 2000." It is thus clear that the case was not fixed for recording of statement on 24th April when it was actually recorded.

3. Admittedly the review petition referred to in the interim order reproduced above had not yet been decided when the case was taken up on 24th April. The order passed on 11th April gives a clear impression that the written request had been accepted and that the recording of statement had been postponed till after the decision of the review petition filed in this Court. It follows that when the appellant appeared before the learned Sessions Judge he was not prepared to make a statement. It may also be observed that even at two previous occasions the appellant had made a request that recording of his statement may be postponed and at both occasions the request had been granted. It follows that the appellant was not prepared to make a statement even at previous occasions. It is therefore, clear that on 24th April, 2000 the appellant was taken by surprise. In our view in peculiar circumstances of the present case the ends of justice demanded that his statement should not have been recorded as was done by the learned Sessions Judge.

4. We now advert to the other point. The offences for which the appellant is being tried are triable by the District Criminal Court under Schedule II of the Code of Criminal Procedure. It was argued by Raja Bashir Ahmad, Attorney for the appellant, that District Criminal Court consists of a Sessions Judge, a District Qazi and it is only these two Judicial Officers who can jointly hold the trial of the offences which the appellant is facing and one member is not competent under law‑ to take any proceedings. He submitted that the Shariat Court wrongly held that one member of the District Criminal Court singly was authorised to record the statement in light of the provisions of subsection (3) of section 23 of the Islami (Ta'zirati) Qawanin Nifaz. Act, 1974. He vehemently contended that the Shariat Court fell in error in laying down that: ‑‑‑ "Therefore, when an offence has been made triable by District Criminal Court then the procedure laid down by Islamic Penal Laws Act will be followed." His submission was that there is no warrant for the view taken by the Shariat Court that in all the offences triable by District Criminal Court the procedure laid down by Islami (Ta'zirati) Qawanin Nifaz Act, 1974 will be followed. Raja Bashir Ahmad vehemently contended that subsection (3) of section 23 of the Islami (Ta'zirati) Qawanin Nifaz Act, 1974 is applicable to cases which are triable under the said Act. He cited Abrar Hussain Shah and another v. State and another (PLD 1987 SC (AJ&K) 65), State v. Khadim Hussain Shah and others (NLR 1980 Criminal (AJ&K) 307) and Sarkar v. Muhammad Yaqub (PLD 1963 Azad J&K 33) but these judgments relate to a period when subsection (3) of section 23 of the Islami Act had not been enacted. Therefore, they are not relevant for the purposes of this appeal.

5. The scheme of the Azad Jammu and Kashmir Islami (Ta'zirati) Qawanin Nifaz Act, 1974, Islami Act for brevity, lays down in section 22(2) as follows: ‑‑ "(2) Notwithstanding the Courts mentioned in Code of Criminal Procedure. 1898 or any other law there will he following Courts for the purposes of this ourt:‑‑ (i) District Criminal Court; (ii) Additional Distfict Criminal Court; (iii) ............................................. (iv) ............................................. [Translated] Section 23 of the Islami Act deals with jurisdiction and procedure. It runs as follows:‑‑ "(1) Notwithstanding anything contained to the contrary in Code of Criminal Procedure, 1898 or in any other law, offences under sections 300 to 337 of the Penal Code shall be triable by the Courts constituted under this Act (2) ............................................. (3) If one member of the District Criminal Court or Tehsil Criminal Court, as the case may be, is absent due to any reason the other member would be competent to exercise all powers, except of deciding he case finally, given in the Code of Criminal Procedure and in any other laws; (4) ............................................. (5) ............................................. (6) .............................................. (7) In cases under this Act if there is difference of opinion in the District Criminal Court the case will be forwarded to the Azad Jammu and Kashmir Shariat Court. Appeal against the judgment of the Shariat Court may be filed before the Supreme Court within 30 days. (8) If during the trial of the case there is difference of opinion between the Judge and Qazi, of the Tehsil Criminal Court it will be referred to the District Criminal Court and the Tehsil Court will act in accordance with the opinion of the said Court and if there is difference of opinion in the District Criminal Court then the matter will be referred to the Azad Jammu and Kashmir Shariat Court which will be decided by a Single Judge of that Court and the relevant Court will act in accordance with opinion of the Shariat Court. (9) If there is difference of opinion during trial of a case in the District Criminal Court the matter will be referred to the Azad Jammu Kashmir Shariat Court and the District Criminal Court will act in accordance with the opinion of the said Court." [Translated].

6. It may be noted that the District Criminal Court, like other Courts set up under the Islami Act, are the creation of the Islami Act. These Courts were created in 1974 and their constitution was subsequently owned in 1995 by the Code of Criminal Procedure by adding the following new subsection. ‑‑ "6‑A. In addition to the Court mentioned to section 6 there shall be the following Courts as provided in the Islami (Ta'zirati) Qawanin Nifaz Act, 1974: ‑‑ (i) District Criminal Court; (ii) Additional District Criminal Court; (iii) Tehsil Criminal Court; and (iv) Additional Tehsil Criminal Court." It is important that the Islami Act is specifically mentioned in section 6A of the Code. The result is that Courts established under the Islami Act can also hear cases mentioned in Schedule II of the Code of Criminal Procedure.

7. The Code does not lay down anything about the functioning of the District Criminal Court. The Code itself does not lay down other details as to how Courts will proceed if there is difference of opinion or what would be done if one of the members of the such Court is absent. All the matters are given in detail in the Islami Act. In our considered view Islami Act and the Code of Criminal Procedure are a group of laws which are interwoven and provisions of both the aforesaid laws have to be given effect to. Even otherwise we find that in subsection (3) of section 23 of the Islami Act it is specifically stated that if one member is absent the other member will exercise all the powers given in the Code of Criminal Procedure. This in itself is sufficient to apply subsection (3) to trial being conducted by District Criminal Court under the Criminal Procedure Code.

8. If we examine the question as to how this appeal has been brought in this Court by appellant Zahid Hussain Mirza the matter will become further clear. In the Code of Criminal Procedure no appeal is provided against the judgment of the Sharait Court to this Court. In the Shariat Court Act appeal is provided against the judgment of the Shariat Court to this Court but that appeal is only in respect of final decision of the Shariat Court under section 6 of the Shariat Court Act and not against a decision or judgment arising out trial of offences under the Code of Criminal Procedure or the Islami Act. The matter will be clear if we reproduce the relevant section. Section 9 makes provision for appeal to the Supreme Court in the following words:‑‑

9. Anneal to the Supreme Court ‑‑‑(1) Any party to any proceedings before the Court under section 6 aggrieved by the final decision of the Court in such proceedings may within sixty days of such decision, prefer an appeal to the Supreme Court." (2) .. (3) .. Section 6 of the Shariat Court Act is as follows:‑‑ "

6. Powers, jurisdiction and functions of the Court.‑‑‑(1) The Court may, on the petition of a citizen of Azad Jammu and Kashmir or the Azad Jammu and Kashmir Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam. (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision,‑‑ (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant and specify the day on which the decision shall take effect. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam‑‑ . (a) the President in the case, of a law with respect to a matter not enumerated in Council List, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam, and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the, day on which the decision of the Court takes effect. "

9. The phraseology of the provision of law clearly. shows that under section 6 the Court has been given tile power to hear Shariat petitions and not appeals arising out of triaI, of offences under the Islami Act and the Code of Criminal Procedure. The appeal arising out of trial cases is provided in section 25 of the Islami Act. Subsection (1) of section 25 lays down as follows:‑‑ "Appeal against the decision of the District Criminal Court may be filed before the Azad Jammu and Kashmir Shariat Court within six months and the same Court shall also have revisional powers for which the limitation is sixty days. Appeal against the judgment of the Shariat Court may be filed before the Supreme Court within sixty days and the said Court will also have the revisional powers for which the limitation will be sixty days."

10. The trial against the appellant is being conducted under the Criminal Procedure Code. There is no mention of Shariat Court in the Criminal Procedure Code but the appellant filed a revision petition before the Shariat Court. Now he has filed this appeal against the judgment of the Shariat Court. The only provision which enables the appellant to avail of these remedies was section 25 of the Islami Act.. If the Islami Act is not pressed into service the present appeal will not be maintainable. It further shows that the Islami Act and the Criminal Procedure Code have to be read together for smooth administration of justice. This is the only interpretation which advances the remedy.

11. The conclusion to which we reach is that subsection (3) of section 23 applicable to all cases triable by the District Criminal Court any other Court initially set up by the Islami Act, whether the offences are triable with reference to the Islami Act or with reference to Schedule‑II of the Code of Criminal Procedure. Therefore, the arguments raised by Raja Bashir Ahmad has no force that single member of the District Criminal Court could not record the statement of the accused. Upshot of the foregoing discussion is that the proceeding conducted on 24th April, 2000 in recording the statement of the appellant is set aside and the District Criminal Court is directed to record the statement of the accused again on a date fixed for that purpose. N.H.Q./90/SC.(AJ&K) Order accordingly.