P L D 2026 Supreme Court (AJ&K) 12 (PLP)

KHAWAJA MUHAMMAD NASIM, J.

The captioned appeal has been directed against the judgment of the Azad Jammu and Kashmir Shariat Court, dated 05.09.2002, passed in Criminal Appeal No.8/2000.

2. The prosecution's case in brief, as stated in the FIR, is that Mian Muhammad Hassan son of Mian Fazal Illahi, filed a written report at Police Station Kahori, against the convict-appellant, herein, on 30.07.1997, at 6:30 p.m. narrating, therein that his father, Mian Fazal Ellahi, who originally hailed form Bankald Balakot, had married in village Sarian, Constituency No.2, Muzaffarabad and had been visiting the village in connection with Peeri/Mureedi for last 20 years. It was stated that Aurangzeb Siddiqui had been preventing him from visiting the area for the said purpose and had developed animosity against the father of the complainant i.e. Mian Fazal Illahi. It was further stated that Mian Fazal Illahi was sitting at the residence of Haji Miskeen on 30.07.1997, at 2:30 p.m. when the convict, Aurangzeb Siddiqui, fired at him with 12-bore Shotgun which hit him at the left side of his neck and he died on the spot. The occurrence was alleged to have been witnessed by Haji Muhammad Miskeen son of Faqeer Muhammad, Nazeer Ahmed son of Said Ahmed and Gul Zaman son of Alam Din, residents of Seri Bheri. The motive behind the occurrence was stated that the convict, Aurangzeb Siddiqui, had been preventing the deceased (Mian Fazal Illahi) from visiting the area in connection with Peeri/Mureedi.

3. On this report, FIR No.23/97, in the offence under section 302, A.P.C., was registered at Police Station, Kahori, on the same day, at 06:30 p.m. After registration of the case, the Police went on the spot, recovered/collected some clay soaked with blood and empties, in its possession. The convict was arrested by the Police on 31.07.1997 and 12-bore Gun was recovered from him on his pointation. After necessary investigation, challan was presented in the District Criminal Court, Muzaffarabad, on 26.09.1997, in the offences under sections 302, APC, and 13 of the Arms Act, 1965. The statement of the convict under section 242, Cr.P.C. was recorded on 13.11.1997. The accused pleaded not guilty, whereupon, the prosecution was asked to lead evidence in support of the charge. Except, Mian Shafique-ur-Rehman, the statements of all the other witnesses were recorded. Thereafter, the statement of the convict under section 342, Cr.P.C. was recorded on 30.04.1999. He again pleaded not guilty and did not produce any evidence in defense. At the conclusion of the trial, the learned District Criminal Court, Muzaffarabad, vide judgment dated 28.07.1999, found the convict guilty for the murder of Mian Fazal Illahi and awarded him death sentence as Qisas under section 302, A.P.C., however, he was acquitted of the charge in the offence under section 13 of the Arms Act, 1965. Feeling aggrieved from the judgment dated 28.07.1999, passed by the District Criminal Court, Muzaffarabad, the convict filed an appeal before the Azad Jammu and Kashmir Shariat Court. A reference was also sent by the trial Court for confirmation of the death sentence awarded to the convict. The learned Shariat Court, after necessary proceedings, maintained the judgment of the trial Court and dismissed the appeal filed by the convict. The reference sent by the trial Court for confirmation of the death sentence awarded to the convict was answered in affirmative, vide impugned judgment dated 05.09.2002. The legality and correctness of the said judgment passed by the Shariat Court was challenged before this Court by way of appeal. The appeal was pending adjudication, when during the earthquake of 2005, the convict was absconded from Central Jail, Muzaffarabad and the case was adjourned sine die on 04.12.2012, till the convict's arrest. Thereafter, on 23.09.2024, the police produced the convict-appellant before the Court. The Police was ordered to lodge the convict in Jail and the office was directed to fix the case for arguments.

4. Today, the arguments of the learned counsel for the parties have been heard at some length. During the Course of arguments, when the learned Advocates representing the parties were confronted with the legal proposition that, as to whether, single Judge of the Shariat Court could upheld/confirm the death sentence as Qisas awarded by the trial Court or it was required to be done by at least two members' bench, they submitted that this proposition has been settled by this Court in a number of judgments, however, the learned Advocate representing the complainant-respondent, raised a preliminary objection that legal heirs of the deceased have not been impleaded in the Shariat Court as well as this Court, thus, the appeal filed by the convict is not maintainable.

5. First of all, we would like to attend the preliminary objection raised by the learned counsel for the complainant-respondent. It is transpired from the record that the District Criminal Court, Muzaffarabad, awarded death sentence as Qisas to the convict, vide judgment dated 28.07.1999. On appeal filed by the convict, the learned Shariat Court maintained the judgment of the trial Court. The legal heirs were neither party before the trial Court nor there was any complaint on behalf of the legal heirs, on which the conviction order was passed, therefore, they were not necessary party and in their absence the appeal before Shariat Court as well as this Court cannot be considered incompetent. Reference may be made to the case reported as Tasawar Hussain v. The State and 9 others [2016 SCR 373] wherein, this Court has observed as under:- "

12. We would like firstly to deal with the preliminary objection raised by the complainant and the heirs of the deceased. According to the learned counsel, the convict-appellant has not arrayed the heirs of the deceased as party in appeal before the Shariat Court, thus, in the light of the principle of law laid down by this Court in the case reported as Muhammad Riaz and 2 others v. The State [PLD 2006 SC (AJ&K) 75] appeal before the Shariat Court was hot competent meaning thereby it will be deemed that no appeal against the conviction order of the trial Court has been filed before the Shariat Court. Consequently, the instant appeal of the convict before this Court is also not maintainable. We have considered this argument in the light of the facts of the case. As in the trial Court the conviction order has been passed in the case filed by the State. Neither, the legal heirs were party before the trial Court nor there was any private complaint of the legal heirs upon which conviction order has been passed. Whereas the accused in their appeals have arrayed apart from the State, Saghir Ahmed, complainant, as respondent. Although, the arraying of complainant, Saghir Ahmed in presence of State is superfluous, however, be that as it may, as mentioned hereinabove, the legal heirs were neither party before the trial Court nor on their behalf there was any complaint on which conviction order was passed, therefore, they were not necessary and due to their absence the appeal before Shariat Court could not be deemed as incompetent. As the legal heirs filed separate appeals before the Shariat Court and through the impugned consolidated judgment their appeals have also been disposed off and the convict-appellant in appeal before this Court has arrayed them as party, thus, the objection being baseless, has no substance. So far as the principle of law laid down in the judgment reported as Muhammad Riaz and 2 others v. The State [2006 SCR 170] is concerned, according to the peculiar facts of the case, has no application as in that case, the conviction order was passed on appeal filed by the complainant/legal heirs of the victim and they were party before the lower Court whereas no such situation exists in this appeal hence, the argument stands repelled." In the light of the rule of law laid down in the judgment (supra), the argument of the learned counsel for the complainant-respondent carries no weight, hence, the same is hereby repelled.

6. A perusal of the record reveals that FIR No.23/97 was registered against the convict at Police Station, Kahori, in the offence under section 302, A.P.C., Later on, the challan was presented in the District Criminal Court, Muzaffarabad, in the offences under sections 302, APC, and 13 of the Arms Act, 1965. At the conclusion of the trial, the learned District Criminal Court, Muzaffarabad, vide judgment dated 28.07.1999, found the convict, guilty for the murder of Mian Fazal Illahi and awarded him death sentence as Qisas. The convict filed an appeal before the Shariat Court. A reference was also sent by the trial Court for confirmation of death sentence awarded to the convict. The bench comprising the learned Chief Justice (the then) of the Shariat Court dismissed the appeal filed by the convict and the reference sent by the trial Court for confirmation of death sentence awarded to the convict was answered in affirmative, vide impugned judgment dated 05.09.2002. While dealing with such like proposition, this Court in the case reported as Jawad Ayub v. Sadaqat Hussain and another [2011 SCR 263], has held in para 6 as under:- "

6. The manifestation of the above referred statutory provisions is that only in case of imposition of sentences of death, Qisas and Hadood by the Courts of District Criminal Jurisdiction, the case has to be submitted to the Shariat Court for confirmation. The phraseology of section 377 of Criminal Procedure Code is clear and comprehensive that only in a reference submitted for confirmation of a sentence of death, Qisas or Hadood or in a case if the Shariat Court passes one of these sentences as a new sentence, the hearing of case and signing of the judgment by the at least two Judges of the Shariat Court is mandatory, whereas in all other cases hearing by two Judges of the Shariat Court is not the requirement of law. Therefore, the flaws in the judgment handed down in Appeals Nos. 15, 16/2005 and 2, 3/2007 titled Muhammad Alam and another v. The State reported as 2009 SCR 458, stand removed and clarified in the above stated terms. The appeals shall be heard on merit." As through the impugned judgment, the learned Chief Justice (the then) of the Shariat Court, being a single member of the bench, has confirmed the death sentence awarded to the convict-appellant, hence, the same is not sustainable in the eye of law, therefore, without going into the merits of the case, the impugned judgment dated 05.09.2002, is hereby set aside. The appeal shall be deemed pending before the Shariat Appellate Bench of the High Court. The learned Chief Justice, Shariat Appellate Bench of the High Court, is directed to constitute at least two Members' bench for hearing of the appeal filed by the convict-appellant. This appeal stands disposed of in the manner indicated above. SA/25/SC (AJ&K) Order accordingly.