1997 P Cr (PLP)

BASHARAT AHMAD SHAIKH, J.

This is an appeal filed by a complainant to seek cancellation of- bail granted to the respondents. On 3rd of December, 1995 the police registered a case against respondents Nos.l to

6. Ibrar Hussain and others, under sections 324, 337-F, 147, .148 and 149 of, the Penal Code on a report lodged by the present appellant. According to the prosecution case Muhammad Rafique was coming towards his house from Chechian by a car. He stopped outside the shop of Raja Rashid where his nephews, Nadeem Akhtar, Baber, Yunus, Zahid and Azhar Akram, were sitting. Accused persons Ibrar, Jawad, Umran, Mahmood, Iftikhar and Saghir reached there. They were armed with iron bars and sticks. They opened attack on Muhammad Rafique on which his nephews intervened. They were also beaten up. Ibrar Hussain inflicted injury on the head of Muhammad Rafique with an iron bar. Mahmood also inflicted injury with a stick on his arm. Rest of the accused persons caused injuries to Nadeem Babar and Zahid Azhar. After the registration of the case the police arrested the accused persons. On being moved, Zilaee Adalat, Mirpur, other accused persons were granted bail but this concession was initially refused to Ibrar Hussain and Mahmood. Subsequently Mahmood was released by the same Court but a fresh bail application moved by Ibrar Hussain was rejected. Ibrar Hussain filed a revision petition in the Shariat Court. The first informant also moved the Shariat Court for cancellation of bail granted to Mahmood by filing a separate revision petition. Yet another revision petition was filed by the first informant to challenge the grant of bail to the other accused persons. All, the three revision petitions were heard and decided together. Bail was granted to Ibrar Hussain while the other two revision petitions were dismissed. The order was passed on 25th of January, 1996. The, order passed by the Shariat Court has been challenged before us by Muhammad Rafique: When the three cases were filed in the Shariat Court tithe learned Chief Justice of the Shariat Court had ceased to hold office due to his superannuation and no fresh appointment had been- made. As the Shariat Court consists of a Chief Justice and one other Judge the-cases' were directly heard- by -the learned Judge of that Court without constitution of Bench. This gave rise to-an objection, which was raised by the learned counsel- appearing for the complainant that no Bench had been constituted and the revision petitions' could not be heard by the learned Judge. The objection was repelled' and the case was then decided on merits. This preliminary objection has now been raised before us. The Shariat Court has been set up under the Azad Jammu and Kashmir Shariat Court Act, 1993. Subsections. (1) and (2) of section 2 lay down that there shall be constituted a Court to be called the Azad Jammu and- Kashmir Shariat Court which shall consist of two Muslim Judges; including the Chief , Justice. Under section 13 of the Act the Shariat Court has been given, the, powers to make Rules for carrying out the purpose of this Act. Section 13 is in the following terms:-- " 13.

(1) The Court may, by notification in the official Gazette make rules for carrying out the purpose of this Act.. . (2) In particular and without prejudice to the generality of the foregoing power, such rules may make provision in respect of all or any of the following matters; namely:-- (a) (b) (c) the powers and functions of the Court being exercised or performed by the Benches consisting of one or more Judges constituted by the Chief Justice; (d) (e) (3) In the exercise of the powers conferred by section 13 the Shariat Court has framed rules, which are known as Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982. Rule 4 provides for constitution of Benches. It runs as follows:-- "4.

(1) The Chief Justice shall constitute Benches (2) (a) A petition fixed for regular hearing shall be heard by a Bench consisting of not less than two members but it shall be heard by a Single Judge if so directed by the Chief Justice; (b) an appeal fixed for regular hearing shall ordinarily be heard by a Bench consisting of not less than two members but it shall be heard by a Single Bench if so directed by the Chief Justice; (c) a reference shall be heard by a Bench consisting of not less than two members but it shall be heard by a Single Bench if so directed by the Chief Justice; and (d) an application for bail and revision petition or any other miscellaneous application shall ordinarily be heard by a Single Bench but it shall. be heard by a Division Bench if so directed by the Chief Justice. (3) An application for stay of execution of sentence or for bail shall be laid before the Chief Justice or, in his absence, the Judge of the Court present at the principal seat of the Court. (4) Where a Bench is of the opinion ' that a petition, appeal or reference should be heard by a larger, Bench, it shall record its reasons and refer such petition, appeal or reference, as the case may be, to the Chief Justice for nomination of such Bench.." In light of these provisions the objection is that the powers of the Shariat Court are vested in the Shariat Court as a whole and there is no provision in the Act itself that any power vesting in the Court may be exercised by one of the Judges of the said Court. It is contended that a case before the Shariat Court can either be heard by the Court as a whole or by a single Bench if it is entrusted with the case by the Chief Justice by constituting a Bench under the provision in the Rules reproduced above. The learned Judge in the Shariat Court formed the view in the judgment under appeal that the situation was covered by sub-rule (3) reproduced above, which lays down that an application for bail shall be laid before Chief Justice or in his absence before the Judge of the Court present at the principal seat of the Court. It was held that since the Chief Justice was absent the learned Judge present at the seat of the Court was competent to hear bail application. We may reproduce the relevant part of the judgment: "On the basis of the aforesaid principle it is quite clear that the basic object of rule 4(3) is to provide the remedy to the people in the absence of the Chief Justice. The basic spirit of the aforesaid provision was to remove the difficulty in urgent matters in the absence of Chief Justice, so that the urgent matters may not remain pending in the absence of the Chief Justice. The basic purpose of the aforesaid rule was to provide the remedy to the people even when the Office of the Chief Justice is vacant or Chief Justice is absent. Therefore, the Single Judge present at the seat of the Court is competent to hear and dispose of the bail application or revision petition even if the same is not laid down before the Chief Justice and the Bench is not constituted by the Chief Justice." The learned Judge also held that even if sub-rule (3) of rule 4 was not in existence a petition, which could still be decided without constitution of a Bench when the office of the Chief Justice is vacant. The reasoning adopted by the learned Judge is that all the rules of the Court are nothing but the provisions intended to secure administration - of justice and it was essential that all rules should be subordinate to that purpose. It was observed that an application for bail cannot be kept pending till the appointment of the Chief Justice because that ' will be against the administration of justice'. It was contended before us by Mr. Liaqat Ali Khan, the learned counsel for the appellant, that sub-rule (3) was inapplicable to the situation with which the Shariat Court was faced when the case was heard and judgment was pronounced. He submitted that the Office of the Chief Justice was vacant at that time and 'it was not a case in which the Chief Justice was absent. He submitted that absence of a Chief Justice presupposes that there is a Chief Justice in office but is absent at a particular time. Another reason advanced by the learned counsel is that in sub-rule (3) bail application can be laid, in the absence of the Chief Justice, before a Judge of the Court present at the principal seat of the Court, 'but the application disposed of by the- judgment under appeal was presented at Mirpur while the principal seat of the Court is at Muzaffarabad, as is laid down in section 3(5) of the --Shariat Court Act. The learned counsel contended that rules framed by the Shariat Court had the force of law and it was mandatory for the Court to follow it. He relied on Aziz-ur-Rehman v. Presiding Officer, Local Council Elections and others 1993 SCR 177 in which this Court stated the settled law that if an act is required to be performed in a specific manner by law or rules it should be performed according to the prescribed manner alone or not at all. Arguments of the learned counsel were opposed by 'Ch. Muhammad Azam Khan, the learned counsel for the respondent. He submitted that powers vesting in the Shariat Court are vested in every Judge of Shariat Court and given if a Bench is not constituted a bail application can be heard by a Judge. Apart from relying on sub-rule (3) of Rule 4 he also relied on Rule 27(2), which lays down that: -- "27.

(1) (2) An application for bail shall be treated as urgent and shall ordinarily be placed before a Bench on the following day after its presentation." He then contended that this Court may not interfere in the matter because it was only a technicality relating to procedure or a defect in method of hearing. In this connection he referred to Muhammad Yasin v. Mst. Hassan Jan and others PLD 1982 SC (A J & K)

85. In our view reliance on sub-rule (2), reproduced above, and on Muhammad Yasin's case-`is not-well-placed. In our view sub-rule (2) has to be read with other provisions, and when we do so it becomes clear that the Bench referred to in it is a Bench constituted by the Chief Justice. In Muhammad Yasin's case .the proposition was entirely different. The High Court decided, without objection, a second -'appeal which -was -not maintainable. However, admittedly a revision was maintainable and the judgment of the High Court was upheld on, the ground that it could have been validly passed in exercise of revisional jurisdiction. In these circumstances it was held that a judgment could not be vacated on the ground of a technicality relating to procedure or a defect in hearing. Although a perusal of the Shariat Court (Procedure) Rules shows that an application for bail and a revision petition or an-order for suspension of a sentence can be heard by a Single Bench our considered view is that the learned Judge of the Shariat Court was not right in placing reliance on sub-rule (3) of Rule

4. In our view if there is vacancy in the office of the Chief Justice it cannot be legally said that the Chief Justice is absent. In our view, the argument advanced by Mr. Liaqat Ali Khan has to be accepted that the absence of the Chief Justice implies that there is a Chief Justice in the office and this terminology cannot be used when the office of the Chief Justice is vacant. We may make a reference to the Constitutional provisions about appointment of Acting Chief Justice of this Court and of the High Court. Subsection (8) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act deals with the appointment of an Acting Chief Justice of the Supreme Court. It lays down that:-- "(8) At any time when the office of Chief Justice of Azad Jammu and Kashmir is vacant, or the Chief Justice, is absent or unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the Judges of the Supreme Court of Azad Jammu and Kashmir to act as Chief Justice of Azad Jammu and Kashmir. " The provision about Acting Chief Justice of the High Court contained in section 43-A is also in verbatim the same. This Constitutional provision makes it clear that vacancy in the office of the Chief Justice is not synonymous with his absence. These are three different situations in which an Acting Chief Justice can be appointed. First situation, when the office is vacant, is separately mentioned and is not the same as absence of a Chief Justice. On the other hand sub-rule (3) of Rule 4 of the Shariat Court Rules deals only with a situation in which the Chief Justice is absent and not a situation in which the office of the Chief Justice is vacant. Thus, this rule had no application to the situation in which the case under appeal was decided. The reasoning adopted by the learned Judge is that basic purpose of the Shariat Court (Procedure) Rules is to provide justice in a better way to the litigant public and a bail application could not be kept pending for the reason that the case was not laid before the Chief Justice because "it will be against the administration of justice". The situation with which we are dealing raises a question of jurisdiction. The superior Courts consist of many Judges and the jurisdiction given to a Court is vested in the Court as a whole. Therefore, the jurisdiction should be exercised by the Court as a whole unless a provision to the contrary has been made. This is the view which has been expressed by this Court in Sub.-Major Fazal Ellahi v. The State PLD 1978 SC (AJ&K) 80 in which the following rule was laid down while relying on a case reported as Baker v. Oakes 2 QBD 171:-- "Prefix 'the' occurring before 'Court' is a definite article to denote a particular Court and not the single Member of the Court when it consists of two or more Judges. In Stroud's Judicial Dictionary (Fourth Edition), page 633(5) a case of Baker v. Okes has been referred wherein it was observed that:-- '. A power appertaining to the High Court and which is exercisable only by 'the Court', must be exercised by the Court in banc, and not by a Judge at chambers'. " We may also usefully reproduce the following passage from Corpus Juris Secundum, Vol.21, page 16:-- "The words 'Judge' and 'Court' are frequently used as convertible terms, but they are not strictly synonymous, and a Judge alone does not necessarily constitute a Court, and has been described as merely an officer or member of the Court, for, while the Judge is an indispensable part, he is only a part of the Court. " The provisions of the Shariat Court Act refer only to the Court as a whole and do not lay down that cases filed before the Shariat Court can be heard by any one member of that Court. Revision against the order of a Zilaee Adalat lies to the Shariat Court under section 25 of the Azad Jammu and Kashmir Islami Tazeerati Qawaneen Nafaz Act, 1974. That Act also does not contain any such provision. However, section 13 of the Shariat Court Act gives power to the Shariat Court to make rules for carrying out the purposes of this Act. Sub-clause (2) lays down that the rules may make provision for exercise of powers of the Shariat Court ' by Benches consisting of one or more Judges constituted by the Chief Justice'. It is in pursuance of this provision that the Shariat Court (Procedure) Rules authorise the Chief Justice to constitute Benches and also lays down that a Bench may consist of one Judge. It follows that a single Bench of the Shariat Court can only hear a case if it has been constituted by a Chief Justice and not otherwise. So far as the bail matter is concerned it is specifically laid down in sub-rule (3) of Rule 4, reproduced and discussed above, that it will be laid before the Chief Justice or in his absence, before the Judge. Our attention has been drawn to two judgments of the Supreme Court of Pakistan to contend that if jurisdiction of a Court could be performed by Single Judge of that Court and also to contend that a rule about constitution of Benches is violated a judgment is not necessarily void. The facts in Shamsuddin v. Capt. Gauhar Ayyub PLD 1965 SC 496 were that Shamsuddin filed a complaint against Capt. Gauhar Ayyub on a number of serious offences. Capt. Gauhar Ayyub filed a petition in the High Court of Pakistan at its principal seat in Lahore for transfer of the case pending against him in the Court of Magistrate at Karachi to a Court of competent jurisdiction in Lahore. The application was accepted and it was ordered that the case be heard at Lahore. Complainant in the case filed appeal to the Supreme Court and, inter alia, raised the plea that the territory of Karachi had been assigned to Karachi Bench of the West Pakistan and the Chief Justice was not authorised to transfer the case to Lahore. This argument was repelled and it was held that the powers vested in the High Court of West Pakistan were also vested in each Judge of the High Court in respect of the whole area of the High Court jurisdiction. While holding this, Cornelius, C.J. speaking for the Court, relied on clause 26 of the Letters Patent of the High Court of Lahore which had been made applicable to the West Pakistan High Court by paragraph 9 of the Order of 1955 by which West Pakistan High Court was created. Clause 26 of the Letters Patent reproduced in the judgment is as follows:-- "any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915." This provision lays down that, powers of the High Court at Lahore may be performed by any Judge or any Division Court appointed or constituted for that purpose in pursuance of section 108 of the Government of India Act, 1915. Section 108 of the Government of India Act, 1915 was as follows:-- " 108.

(1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court. (2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. " The cumulative effect of clause 26 of the Letters Patent and section 108 of the Government of India Act was that a Judge or a Division Court could perform the functions of the High Court if the Bench had been constituted by the Chief Justice. There was no provision for entertaining a case directly without constitution of Bench. The other judgment relied upon is Muhammad Ashfaq v. The State PLD 1973 SC

368. The facts of the case were that appellant before the Supreme Court Muhammad Ashfaq was convicted by the Additional Sessions Judge, Karachi. He went in appeal to the High Court, which was dismissed by a learned Single Judge. A petition for leave to appeal was filed before the Supreme Court of Pakistan but it was also dismissed. Subsequently Muhammad Ashfaq filed another appeal before the High Court at Karachi on the ground that his previous appeal had been dismissed by a Single Judge in violation of Rule 1(19) of the High Court Rules which provided that an appeal against a sentence of death or transportation was "ordinarily to be heard and disposed of by a Division Bench". There were appeals, which fell in the same category. All those appeals were dismissed by holding that 'the appeals stand disposed of in so far as this Court is concerned'. A delayed petition for leave to appeal was lodged before the Supreme Court. Delay was condoned and leave to appeal was granted. In view of the importance of the matter the case was heard by the Full Court. The Supreme Court of Pakistan decided the matter in the following way:-- "There is no doubt that a rule framed by the High Court has the force of law and has ordinarily to be followed, but this does not mean that if by inadvertence or by mistake something is done which is not strictly in accordance with the rules, that must necessarily be void, nor can such a rule take away a jurisdiction given by the substantive provisions of the Statute itself. The rules do not affect the jurisdiction, nor can they curtail or restrict the jurisdiction given by the Statute, but they may only regulate the manner of the exercise of that jurisdiction. Thus, even where the exercise of the jurisdiction is irregular, the jurisdiction itself is not affected, particularly, where the mistake committed can be corrected by an appeal to a higher Court. It is an equally well-settled principle that if a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction. In the present case, the appellant did come up in appeal to this Court and his appeal was dismissed. He could have, if so wished, also raised this question at that time. He did not do so, but went and filed another appeal in the High Court, which had been dismissed on a preliminary point and, in our opinion, rightly dismissed. No second appeal lay in such circumstances. This appeal would normally have failed on this ground alone; but since the appellant has been convicted on a charge of murder and sentenced to transportation for life, we have also re-examined his case on merits, but we find that there is nothing much that can be said in his favour As we see it the operative part of the judgment is in second paragraph reproduced above. It was mentioned in the first paragraph that if a Court acts without jurisdiction, an appeal lies against the judgment and point of lack of jurisdiction can be raised. In the second paragraph it was observed that appellant did not raise this point when his previous appeal was dismissed. He filed another -appeal before the High Court, which was not maintainable. In our view this is the reason for which the Supreme Court of Pakistan dismissed the appeal. The observation that if some thing is done by mistake, which is not strictly in accordance with the rules it is not necessarily void is in the nature of obiter dicta. We may further point out that in the present case there was no inadvertence or mistake because the appellant duly raised the objection before the Shariat Court and made the learned Judge conscious that he could not hear the case without being nominated by the Chief Justice to do so. . Third paragraph reproduced above shows that the Supreme Court saw the merits of the case again. This unmistakably shows that the fact that in the previous round judgment was delivered by a Bench which had not been properly constituted was given due importance by re-examining the merits. It shows the importance attached to the law relating to constitution of Benches. The result, which follows is that the judgment of the Shariat Court cannot be considered to be valid and has to be set aside on that ground. Consequently, the case has to be sent back to the Shariat Court for rehearing by a duly constituted Bench. ! However, respondent Ibrar Hussain was granted bail by the Shariat Court after examining the merits and we do not think it proper to cancel it on the principle that the mistake of the Court should not prejudice any one. We, therefore, order that respondent Ibrar Hussain shall remain on bail till the decision of the case after rehearing by the Shariat Court as a result of this order. This is the course, which was adopted by this Court in Karamat Hussain v. Faraqat Hussain PLD 1987 SC (AJ&K)

27. In that case a judgment of -a learned Judge of the High Court was vacated on the ground that it stood vitiated for the reason that a bail, application had been rejected by a learned Judge of the High Court but a subsequent bail application was heard by another learned Judge in violation of the law laid down by this Court. While vacating the judgment of the High Court the bail bonds of some of the respondents were cancelled but the case of two of them was found to be distinguishable and they were granted bail in exercise of appellate and inherent powers. The appeal is accepted and the order of the Shariat Court is set aside. I All the three revision petitions shall be deemed to be pending before the Shariat, Court and shall be decided afresh after constitution of the Bench. N.H.Q./136/SC(AJ&K) Cases remanded