1997 P Cr (PLP)

The facts culminating into the present revision petition briefly stated are that on September 14, 1996, an application was moved before the Additional Tehsil Criminal Court, Mirpur, on behalf of the accused-respondents for their release on bail in a case registered against them under section 10 of the Offence of Zina (Enforcement of Hudood) Act read with section 347/34, P.C. Prior to the filing of the above application, on August 20, 1996, the service of the Additional Tehsil Qazi who was serving on ad hoc basis, was terminated by the Government. An objection was taken on behalf of the complainant that the Additional Tehsil Criminal Court has seized to exist due to the termination of the service of one Member of the Court. The objection was turned down by the trial Court vide order under revision. Mr. Muhammad Yunus Arvi, learned counsel for the petitioner argued that two Members' Courts were constituted at Tehsil and District level under the Azad Jammu and Kashmir Islamic (Tehzeerati) Laws Enforcement Act, 1974. According to this law, the Additional Criminal Court; constituted at Tehsil level shall consist of a Magistrate and a Tehsil Qazi. According to the learned counsel, the powers of the Court can be exercised by the Additional Tehsil Criminal Court as a whole. Presently the office of the Additional Tehsil Qa2i is vacant. It is, therefore, not a case in which any Member of the Court is absent due to leave or any other cause. The provision, which was enacted later on, whereby a Single Member was made competent in absence of other Member of the Court, to perform certain functions, was not attracted in this case, argued the learned counsel. On the other hand, Choudhary Riaz Alam, learned counsel for the accused-respondents has argued that the Additional Tehsil Criminal Court was established at Mirpur, as early as in 1974. According to the learned counsel, the mere absence of any Member even due to his retirement, shall not be deemed that 'the Court constituted under the Act stood abolished. All those functions which through a subsequent amendment Single Member was competent can be performed by the Single Member available in the Court. I have considered the respective arguments, of the learned counsel for the parties and have also gone through the entire record of the case. There is no dispute that Courts in Azad Jammu and Kashmir at Tehsil and District level consisting of two Members for the adjudication of certain offences, were established under the Azad Jammu and. Kashmir Islami (Tazeerati). Laws Enforcement Act, 1974. Initially due to the absence of one Member, the working of the Courts were affected adversely. Later on, an amendment was carried out in the law whereby a Single Member was allowed to perform certain functions even in absence of the other Member of the Courts. This amendment being relevant is reproduced here for the convenience of reference:-- Later on, vide Act XXI of 1993 even Single Member of the Court was made competent to record evidence of the witness. Under this provision of law, a Single Member present on the seat of the Court is competent to dispose of the bail applications, as was done in the present case by the Single Member of the Additional Tehsil Criminal Court, Mirpur if the other Member has retired or due to some other reasons, is not present that does not mean that due to his absence from the seat on any ground, the Court stood abolished. On account of this misconception, this revision petition has been filed before this Court. The learned Magistrate, as a Single Member of the Court, can effectively and competently adjudicate all those matters, which under the above-referred provision of law, he has been made competent. As said earlier, in the present case the matter before the Court was in respect of the bail of the accused-respondents. The learned Magistrate has rightly held that he had the competence to decide this cause. The revision petition, therefore, is without merits, which stands dismissed. N.H.Q./25/Sh.C.(AJ&K) Revision petition dismissed