1983 P Cr (PLP)

RAJA MUHAMMAD KHURSHID KHAN, C. J.

‑This appeal by leave directed against the judgment of the High Court dated 2‑11‑1980 ;rises out of the following circumstances :‑ Abdul Majeed appellant was challenged to law his trial under section 4/5 of the Islamic Penal Laws (Enforcement Act) 1974, (hereinafter to be called the Act) read with section 302, A. P. C. for the murder of Hussain Alam son of Buddar Din Jat resident of Chitarpari Tehsil Mirpur put in the District Criminal Court Mirpur. Before any evidence could be recorded in the case the District Qazi expressing his inability to hear the case disassociated himself with the proceedings, leading the Court incomplete The Court was recon situated and Qazi Nazir Hussain was directed by the High Court to sit along with the Sessions Judge, Mirpur and hear the case. No further proceedings could, however, be taken to the case due to irregular appointment of Qazi Nazir Hussain.

2. The Government then, ride its order dated 17‑12‑1977, appointed Habib‑ur‑Rehman Shah who was District Qazi of Koth to hear the case along‑ with the Sessions Judge; Mirpur. The evidence was recorded by the Court partly during the period when the Sessions Judge was the member of the District Criminal Court and partly, on his transfer, by two Additional Sessions Judges, namely, Sardar Mushtaq Ahmed Khan and Sardar Muhammad Anwar Khan. The appellant was finally convicted under section 4 of the Act and sentenced under section 3 read with section 24 of the Act to life imprisonment and a fine of Rs. 87,498 by way of 'Diyyat'. The order of conviction was to fact passed on 30‑6‑1979, but it has inadvertently been stated as 27th of June, 1979 in the judgment under appeal.

3. On appeal the learned High Court vide its judgment dated 2‑11‑1980 (28th November, 1980) quashed the order of conviction recorded by the District Criminal Court on the ground :‑ That only a Bench consisting of Sessions Judge of the District and the District Qazi could constitute a valid District Criminal Court. Association of Additional Sessions Judges, as was done in the present case, was not in keeping with the provisions of section 2(7) of the Act. All the proceedings taken during the period when Additional Sessions Judges Sardar Mushtaq Ahmed Khan and Sardar Muhammad Anwar Khan associated themselves as members of the Court were declared corum non judice. The case was, therefore, remanded back with the direction to start the proceedings afresh from the point where the illegality was committed.

4. Feeling discontented with the judgment of the High Court the appellant now seeks its reversal on the following grounds :‑ (a) that not only the association of Additional Sessions Judges was illegal but the inclusion of a Qazi of another District had also rendered the constitution of Bench invalid. Only the Qazi of the District where the offence was committed and the case was to be tried, could legally associate to constitute the District Criminal Court. So, therefore, the whole trial, according to the learned counsel for the appellant, had become illegal. But this aspect of the case has not been properly appreciated by the learned High Court, and (b) that since purgation was not conducted in accordance with law the order of conviction could not, without proper purgation of P. Ws., be sustained. But this aspect of the case, submitted by the learned counsel, had not been properly considered by the High Court.

5. While allowing the petition for leave to appeal on the points, listed above, this Court also felt that the question as to whether the inclusion of Additional Sessions Judges had rendered the constitution of the Court illegal required deeper consideration. So, therefore, while granting leave on the above listed points, this Court in exercise of powers conferred on it under Order XLIII, rules 4 and 5 of the Supreme Court Rules ordered the issuance of notices to the Advocate‑General and the learned counsel for the appellant to show as to why the judgment of the High Court ply this point also may not be quashed.

6. On the first point formulated for the consideration Kh. Ali Muhammad, the learned counsel for the appellant, argued drat for a valid constitution of the District Criminal Court it was imperative that the Bench be composed of a Sessions Judge and a District Qazi of the District where the case was triable. Since the venue of the trial in the present case was Mirpur, only the District Qazi of Mirpur District could associate himself as member of the Bench in order to constitute the valid District Criminal Court. The inclusion of District Qazi of Kotli District in the Bench alongwith the Sessions Judge Mirpur, being violative to the provisions of section 23 read with section 2 (7) Of the Art had, it was contended, rendered all the proceedings taken by the Bench, so constituted, illegal. Section 2 (2) of the Act, it was further submitted by the learned counsel for the appellant, has been misconstrued and its true import misunderstood by the learned Judges in the High Court. The failure on the part of the learned High Court to appreciate the proposition in its correct perspective has adversely affected the appellant's right. The judgment being contrary to law could not, therefore, be sustained.

7. Controverting the arguments advanced on behalf of the appellant Mr. Muhammad Taj Chaudhry, the learned counsel for the complainant, with the permission of the Advocate‑General submitted that the District Qazi as defined under section 2 (7) of the Act does not mean the Qazi of any particular District. The term has rather been used as a Qazi by virtue of his designation as such. The Government under the terms of subsection (2) of section 2 could authorise and direct any body under law to sot as a member alongwith the Sessions Judge to constitute the District Criminal Court. The language used in the section is clear, precise and unambiguous. It is pen to no such construction as suggested on behalf of the appellant. It was sufficient, submitted the learned counsel, that in order to act as a member of the Bench constituting the District Criminal Court while hearing a case in a particular district, a person must be a District Qazi by virtue of his office, may he be a Qazi of any District. It was no requirement of law that he must be a Qazi of a particular District where the case was going to be the impugned judgment, according to him, therefore, was perfectly, accordance with law.

8. In order to have a correct perception of point involved and for its proper determination reference to the relevant provision of the Act is neces sary. Subsection (7) of section 2 of the Act reads :‑ "The District Court means a Bench consisting of Sessions Judge and a District Qazi." Section 2(2) of the Act reads :‑ "Judge or Qazi means not only a person who is a regular Judge or Qazi appointed by the Government but also every such person shall be a Qazi or a Judge who has been empowered under law to hear and decide any case may it be a civil or a criminal and the judgment it final or if it is appealable and if not appealed against it would become final or it is a judgment if confirmed by the Competent Court it would become final and also number of persons who have been empowered under law to decide the case Again section 23 (1) of the Act reads :‑ Notwithstanding anything contained in the Code of Criminal Procedure or in any other law all the offences will exclusively be triable by the District (Criminal) Court or by a person or persons who have been specially empowered by the Government.

9. On careful study of the provisions listed above it becomes clear that section 23 (1) of the Act is a jurisdictional provision. All the offences under the Act are only triable either by the District (Criminal) Court or by a person or persons who are conferred with such powers by the Government. Every such person so empowered by the Government would also under the provisions of subsection (2) of section 2 of the Act be deemed to be a Judge on Qazi. It would thus follow that a person or number of persons so empowered under section 23 read with section 2 (2) of the Act would obviously be other than the District Criminal Court or the members, it is composed of each has different entity and the distinction between the two must clearly be understood. It would be wrong to consider that such a person so empowered would legally be competent to sit as a member of the District Criminal Court. Section 2(2) of the Act no doubt is not so happily worded, but the language employed in it is all the same capable enough to convey the object and intention of the Legislature. The language used in subsection (2) of section 2 admits no such construction. But then the point to be taken note of is that in than present case Qazi Habib‑ur‑Rehman Shah was not empowered by the Government to act as a forum different to District Criminal Court as visualized under section 23 read with section 2(2) of the Act. The Government Order dated 17‑12‑1977, it appears, has been misunderstood by the learned counsel for the appellant. The argument that Qazi Habib‑ur‑Rehman Shah having been empowered by the Government to hear and decide the case could not legally associate himself as a member of the District Criminal Court is, there fore misconceived.

10. The second part of the argument was that just as the Sessions Judge of a Sessions division will exercise jurisdiction only within the territorial limits of that division and will have no jurisdiction in any other Session division just by virtue of his being a Sessions Judge, similarly only the Qazi, of a District where the trial is to take place, will be competent to sit as a' member alongwith the Sessions Judge and constitute a valid District Court It for hearing of a case. No Qazi of any other District would be competent to sit as a member of the District Criminal Court in any other district. Mr. Habib‑ur‑Rehman Shah being the Qazi of Kotli District could not sit a member of the District (Criminal) Court Mirpur. All the proceedings in the case were, therefore, illegal.

11. We have given our earnest consideration to the point raised on behalf of the appellant. It is no doubt correct that a Qazi of District will only have jurisdiction within the territorial limits of that District, but the it is also true that the appointments and transfers of District Qazies are made by the Government. It is indeed within the competence of the Government to appoint or transfer a District Qazi to any District, may it be for a specific period or for a specific number of cases. This power of the Government could not be. tagged with any limitation or proviso. The learned counsel for the appellant has not been able to refer to any law to the contrary or to show that a District Qazi could not be empowered by the Government to act as such in more than one District. Qazi Habib‑Rehman Shah District Qazi of Kotli was vide Government order dated 17‑12‑1977, appointed to act as District Qazi, Mirpur. This is the only proper and logical construction which could be put to the said order of the Government. He being a District Qazi could legally associate himself as a member of the bench constituting the District Criminal Court. So no valid objection is available to challenge the c constitution of the District Criminal Court on this count. The argument on the point being without any force stands repelled--‑‑We are in agreement with the finding recorded by the learned High Court on the point though for different reasons as listed above.

12. Adverting to the point formulated by this Court with regard to the finding of the High Court on the point of Additional Sessions Judge, the learned counsel for the appellant argued that a District Criminal Court as visualised under Islamic Penal Laws Act 1974, means a Bench consisting of a Sessions Judge and a District Qazi as its member. The Act being penal in nature ought to be construed strictly. The words used in subsection (7) of section 2 of the Act ate clear, definite and plain in meanings. In no way could the word `Sessions Judge' be construed to include Additional Sessions Judge. A Bench consisting of Additional Sessions Judge and a District Qazi would not constitute a valid District Court. From the stage the Additional Sessions Judges Sardar Mushtaq Ahmed Khan and Sardar Muhammad Anwar Khan, associated themselves as members of the Bench, the constitution of the District Criminal Court became illegal and all the proceedings taken in the case during the period they stayed on the Bench were rendered illegal. While defending the Judgment of the High Court on this point the learned counsel submitted that the finding‑of the High Court to the extent of the point already said was perfectly in accordance with law.

13. The learned counsel for the complainant, however, argued that the words used in subsection (7) of section 2 of the Act have been used in a broader sense and it will not be proper to give those words restrictive meanings. The words Sessions Judge includes, submitted the learned counsel, Additional Sessions Judge as well. Since the Additional Sessions Judge is never subordinate to a Sessions Judge and exercises the same powers as those exercised by the Sessions Judge so he would be perfectly competent to sit as a member of the Bench constituting the District Court. Besides, the Addi tional Sessions Judge was competent under section 2, subsection (2) of the Islamic Act. The judgment recorded on the point by the learned Judges in the High Court was, therefore, not legal and could not be sustained.

14. We will now proceed to examine the merits of the submissions made by the learned counsel for the respective parties. The proposition needing determination is :‑ (a) as to whether the Sessions Judge also includes Additional Sessions Judge within the terms of section 2(7) of the Act ? (b) as to whether the Sessions Judge and Additional Sessions Judge enjoy the same jurisdictional powers.

15. Attending to the first part of the proposition reference may be made to section 9 of Code of Criminal Procedure which is relevant to the proposition under consideration. It reads :‑ "9. (1) (The Provincial Government substituted as Azad Kashmir Government) shall establish a Court of Session for every sessions division, and appoint a Judge of such Court. (2) (3) (Azad Government) may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. (4) A Sessions Judge of one sessions division maybe appointed by the (Azad Government) to be also an Additional Sessions Judge of another division." The languaged used in the section if given a careful thought would make it sufficiently clear that the terms Sessions Judge and Additional Sessions Judge are not synonymous, In no way do they mean one and the same. Again reference to section 42 of the Azad Jammu & Kashmir Courts an Laws Code would be relevant. It reads: ‑‑‑ "42.‑(1) The Government may from time to time fix and alter the limits of a Sessions Division, establish a Court of Sessions for every such Sessions Division and appoint as many persons, as it thinks fit, to be Sessions Judges and the High Court shall post one such person to each Sessions Division as Sessions Judge , of that Sessions Division Provided that the same person, if the Government thinks fit, be appointed Sessions Judge of two or more Sessions Divisions. (2) The Government may also Appoint Additional Sessions Judge to exercise jurisdiction in one or more Sessions Divibion." Considering the provisions of section 9 of the Code of Criminal Procedure and section 42, subsections (1) and (2) of the Azad Jammu & Kashmir Courts and Laws Code there remains no doubt that the term `Sessions Judge' neither under the Code of Criminal Procedure nor under the Azad Jammu & Kashmir Courts and Laws Code includes Additional Sessions Judge.

16. The proposition needs to be viewed and examined yet from another angle. It is with reference to the Islamic Penal Laws Act. It is a special enactment providing a special forum for the trial of offences created under the new Act. It is, therefore, substantive as well as procedural in nature. It is important to note that both the Azad Jammu & Kashmir Courts an Laws Code and the Code of Criminal Procedure provide both for Session Judge and Additional Sessions Judge, whereas the Islamic Penal Laws Act, expressly provided that the District (Criminal) Court shall mean a Bench consisting of a Sessions Judge and a District Qazi. There was no mention of a word Additional Sessions Judge anywhere in the Act (this state of law remained up to 1980). The provisions in the Code of Criminal Procedure no doubt are applicable but only to the extent and in respect of those matter not provided for by the Islamic Act itself. The Act has expressly provided that the Bench, in order to constitute a valid District Criminal Court, ought to have a Sessions Judge and a District Qazi as its member. The association of Additional Sessions Judges in the Bench had, therefore, rendered the proceedings from that point onward corum non judice.

17. Coming to the second part of the query with regard to the jurisdic tional powers enjoyed both by the Sessions Judge and Additional Sessions Judge it may be stated that a Sessions Judge of a given sessions division can exercise his jurisdictional powers within the limits of his district or the sessions division, as provided under the Criminal Procedure Code by virtue G of his being a Sessions Judge of that sessions division. Whereas the same is not true in case of Additional Sessions Judge. He can exercise powers in respect of those matters which have been made over to him either by the Sessions Judge or by the Government. Sections 17 and 193 of the Cr. P. C. are relevant in this respect. Section 17 provides that a Sessions Judge may under certain circumstance, make provision for the disposal of any urgent application by an Addition I Sessions Judge. Again under subsection (2) of section 193 of the Cr. P. C., Additional Sessions Judge could try only those cases which either the Government or by general or special order may direct him to try or the Sessions Judge of the division by general or special order may make over to him for trial. So even if it be assumed that the term Sessions Judge included Additional Sessions Judge still the association of Additional Sessions Judges as members of the Bench constituting a District Criminal Court under the Islamic Act, without any express order of the Government, was without jurisdiction. The Act being the expression of the intention and will of the Legislature did not provide for the Additional Sessions Judge. When the Legislature intended to include also the Additional Sessions Judges it expressly legislated to that effect. It was for this reason that in 1980 through an amendment effected in section 2 (7) of the Act, District Criminal Court was red; fined as a Bench consisting of a Sessions Judge or Additional Sessions Judge and a District Qazi or an Additional District Qazi. In ultimate analysis. the finding arrived at by the High Court on the point is based on cogent reasons and we find no fault in it. The submissions made by the learned Advocate‑General and the learned counsel for the complainant are without any substance.

18. Lastly it was argued on behalf of the appellant that Tazkia (purga tion) of witnesses conducted by the learned Qazi in the case was improper. It was conducted its a why contrary to the accepted norms. The learned Qazi, submitted the learned counsel for the appellant, as it appears from the record invited the opinion of the purgators about the correctness of the evidence of P. Ws. about the occurrence which was not permissible. It was, therefore, submitted that in view of the matter there was no legal Tazkia at all.

19. Tazkia or purgation of witnesses is an inquiry conducted either by Qazi himself or through purgators primarily to ascertain if the witnesses were Jute It is in fact a probe into the character and the general reputa tion of the witnesses. It is no substitute for the cross‑examination. We have gone through the statements of the persons referred to by the learned counsel. A part of these statements no doubt is not relevant, but then whole statement of these purgators could not be thrown away for the simple reasons that a part of it is irrelevant. However, to dispel any lurking suspicion that may exists in the mind of the appellant, we hold that the statement referred above could be used only to ascertain the probity of the P. Ws. and have no other purpose. For the foregoing reasons we uphold the judgment recorded by the High Court. The appeal having no force is dismissed. This judgment shall be sent to Deputy Registrar, Supreme Court Branch Registry Mirpur, for announcement in presence of the parties of counsel as the case may be. Appeal dismissed.