2018 PLP 244 (YLRN)

M. TABASSUM AFTAB ALVI, C.J.

The supra titled Shariat Petition has been filed by calling in question Sections 6, 39, 40, 41, 44, 46(10), 76 and 81 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014, dated 13th October, 2014.

2. The facts leading to the instant Shariat Petition are that respondents enacted a law known as "Azad Jammu and Kashmir Anti Terrorism Act, 2014, on 13th October, 2014, through Act XL of 2014 (hereinafter to be referred as the ATA). The petitioners, who are State Subjects and Practicing Advocates, submitted, through the instant Shariat Petition, that the aforesaid ATA is violative of 'Sharia' as well as constitutional provisions; hence, its aforesaid provisions are liable to be struck down, inter-alia, on the following grounds:- i. That section 3 of the Interim Constitution Act, 1974, speaks that "Islam shall be the State religion of Azad Jammu and Kashmir", and section 31(5) of the aforesaid Constitution Act, speaks that "No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in confirmatory with the Holy Quran and Sunnah". The above provisions make it mandatory that every law is to be enacted in accordance with Islamic Injunctions; however, respondents while enacting the impugned Act, failed to consider and comply with the above referred constitutional provisions. ii. That the definition clause, i.e. section 2, of "Islamic Penal Laws, 1974", (hereinafter to be referred IPL), speaks that 'Tazir' means punishment imposed by the competent Court, which shall not be 'Hadd' and will be discretion of the Court. 'Hadd' means the punishment with regard to rights of Almighty Allah. 'Diyat' means the payment of compensation in lieu of murder, hurt or damaging an organ. 'Qisas' means the punishment in lieu of murder or hurt, which shall be similar to the act. While, as per section 6 of the impugned ATA, punishments have been provided death sentence, imprisonment and fine, but the same does not include 'Qisas', 'Diyat', 'Arsh' and 'Hadd', which means that the offences under Islamic Law would not be able to be dealt in accordance with Islamic Injunctions, if rest of the offences or even the same offence is also covered by the impugned ATA. iii. That section 22 of IPL provides establishment of Islamic Courts of Criminal Jurisdiction, section 23 of the same, provides jurisdiction of the Courts, which says that all the offences mentioned in the Act, shall be triable by the Courts established under the Act, despite the fact that the same are triable under any other law, and provisions of section 23, IPL, also provides that even in an occurrence when any of the act falls under the definition of an offence which is cognizable by the court established under IPL, while remaining acts may not constitute an offence under IPL, the Court established under IPL, shall be competent to try the case. While, as per section 39(3) of the impugned ATA, the cases involving offences covered by it, even if committed prior to the enactment of the impugned ATA, are pending before any other Courts, shall be transferred to the Court established under the impugned ATA; thus, in such state of affairs, the cases involving procedure and punishments recognized by Islamic. Injunctions, if transferred to the Courts established under the impugned ATA, will amount to violation of 'Sharia'. iv. That section 25 of IPL provides that this Court shall have powers to decide Appeals, Revisions and References, filed or made to it against judgments, orders or difference of opinion of the Courts established under IPL, section 26 of IPL provides special rules and procedure with regard to recording of evidence in accordance with Islamic Injunctions, wherein it has specifically been provided that purgation ('Tazkia') of witnesses shall be conducted by Qazi, Section 29 of IPL provides mode of application of punishment in accordance with Islamic Injunctions, and section 31 of IPL postulates that the judgments shall not be applicable in all cases of 'Hudood' and 'Qatl-e-Amd' liable to 'Qisas until the same are confirmed by Shariat Appellate Bench, whereas, as per section 46(10) of the impugned ATA, the trial of offences falling under the impugned Act shall be completed in seven days, while procedure for a fair trial always needs some time, hence, completion of trial within seven days would amount to justice hurried, justice buried, and stages of trial under Islamic Law i.e., prosecution evidence, defense evidence, 'Tazkia' etc. cannot be completed in such short span of time, and under sections 40, 41 and 44 of ATA, accused-persons have been left on the sole discretion of a Judge of ATC, who shall try and decide the fate of an accused-person within only 07 days. v. That sections 76 and 81 of the impugned ATA, give overriding effect of the law to other laws despite the fact that as per the constitutional provisions no law can be given overriding effect upon the legislation made in accordance with Islamic Law. The petitioners prayed that by accepting the instant Shariat Petition, the impugned Act i.e. "Azad Jammu and Kashmir Anti Terrorism Act, 2014," dated 13th October, 2014, specifically its sections 6, 39, 40, 41, 44, 46(10), 74 and 81, may be declared violative of Islamic Law and Constitutional Provisions; hence, same may be struck down with the direction to respondents to bring the law in accordance with Islamic Injunctions.

3. After institution of the aforesaid Shariat Petition, respondents were summoned for filing objections; however, they failed to file the same; hence, their right of defense was closed, vide order dated 15.11.2016.

4. Mr. Saqib Javaid and Muhammad Saghir Javaid, petitioners/Advocates, reiterated the grounds taken in petition and submitted that as per Interim Constitution Act, 1974, Islam is the State's religion and no law can be enacted in violation of Islamic injunctions, whereas several provisions of ATA are in clear violation of the same, for instance, the law known as IPL is in field, according to which, special Courts have been established for trying the offences involving bodily hurts, murder and 'Hudood', and section 23 of IPL provides that even in an occurrence when any of the act falls under the definition of an offence which is cognizable by the Court established under IPL, while remaining acts may not constitute an offence under IPL, the Court established under IPL, shall be competent to try the case, and wisdom behind enactment of said section was that the Islamic law has to prevail and no other law can be given preference over the same, whereas section 39 of the impugned ATA postulates that where a person has committed an offence before the commencement of Act supra, which if committed after the date on which the Act comes into force would constitute a terrorist act, he shall be tried under this Act, in other words the same amounts to bringing a person in ambit of a law which was not in force at the time of doing an act; hence, the aforesaid section impliedly contradicts the provisions of IPL. They submitted that IPL provides establishment of Courts consisting of two members, while no such arrangement has been made in the impugned Act. The aforesaid petitioners further submitted that the right of liberty is a fundamental right guaranteed by the Constitution, which cannot be snatched away in a hasty manner and the intent of legislature while enacting the IPL was that the Court consisting of two members, one of which happens to be Qazi (well verse with Islamic Penal laws) can better dispense justice as both the members do not only co-ordinate, assist each other, rather they may have difference of opinion and ratio of risk is lesser in safer dispensation of justice, whereas according to sections 40, 41 and 44 of ATA, accused-persons have been left on the sole discretion of a Judge, who shall try and decide the fate of an accused-person within 07 days. They also contended that punishments in cases of 'Hudood' and 'Qisas' cannot be implemented without confirmation of the same by this Court; however, in the impugned legislation no such jurisdiction has been given to this Hon'ble Court, despite the fact that offences shall be covered by Islamic Penal Laws. The petitioners further agitated that the impugned ATA has provided 07 days period for trial, whereas under general law as well as principles of natural justice, it is impossible for the accused-persons to properly defend themselves in such a short period. They pointed out that a comprehensive procedure in shape of Cr.P.C. has been provided for trial of offences, while Qanun-e-Shahadat has been enacted for ascertaining the truth, and both the aforesaid enactments are outcome of hundreds of years legislature's pondering, and the intent behind both the laws is to provide a fair trial to the accused-persons, which always requires some time, whereas the impugned legislation would defeat the very purpose of the above referred laws. The petitioners further contended that the impugned ATA, not only restricts the provision of fundamentally guaranteed rights of an accused, but also effects public at large, because IPL provides for monetary compensation to the victim or his heirs, along with punishment, whereas the same lacks in the impugned ATA. They maintained that no doubt there should be a law to curb the terrorism from the society, but at the same time, the legislation should not be in contravention of Islamic and Constitutional provisions, and if any of the offence committed in an occurrence is recognized by the Islamic Penal Laws, the same must be tried and decided by the Courts established under the Islamic Penal Laws. They finally craved that by accepting the instant Shariat Petition, sections 6, 39, 40, 41, 44, 46(10), 74 and 81, of ATA may be declared violative of Islamic Law and Constitutional Provisions, and the same may be struck down with the direction to respondents to bring the law in accordance with Islamic Injunctions.

5. Conversely, Raja Ayyaz Ahmad, the learned Assistant Advocate General, appearing on behalf of respondents, submitted that Allah Almighty has created human beings with great reverence, but human race is being crushed badly through terrorist's activities; therefore, the purpose of promulgation of ATA is to eliminate alarming element of terrorism from the society. He, in reply to argument of petitioners regarding 07 days trial period, submitted that in the Khalafat period of Hazrat Ummar (R.A.), matters of murder cases had been decided within a week time, from one Friday to other Friday; hence, the impugned ATA has been promulgated in accordance with law, which is not against the provisions of IPL and Constitution. He, defending the impugned Act, craved for dismissal of the instant Shariat Petition and placed reliance upon case titled Muhammad Mushtaq v. Muhammad Ashfaq and others [PLD 2002 SC 841].

6. We have given our dispassionate thought to the points raised in the instant Shariat Petition. However, before adverting to the controversy involved in the petition, we intend to examine ATA, in the light of background of its enactment. There has been a wave of terrorism for the last many years in Pakistan and the country has also been victimized by sectarian violence and ferocity. So, in order to meet the situation, it was a necessity of time to enact a law to deal with such kind of cases on priority basis and award exemplary punishments to the persons involved in these activities; hence, while keeping in mind the alarming situation, which was a threat to entire society, the law known as ATA was enacted. Its main object is to control acts of terrorism, sectarian violence and other heinous offences in the society, as is evident from the preamble of law. Thus, keeping in mind background of the enactment of ATA in Pakistan, the same was enacted in Azad Jammu and Kashmir, on 13.10.2014, prior to which, the same remained enforced till July, 2014, in shape of an Ordinance. In the ATA, 2014, the provisions pari-materia to the Anti-Terrorism Act, 1997, have been provided.

7. The first point raised by petitioners/Advocates in the instant Shariat Petition, that section 3 of the Interim Constitution Act, 1974, speaks that "Islam shall be the State religion of Azad Jammu and Kashmir", and section 31(5) of the aforesaid Constitution Act, speaks that "No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in confirmatory with the Holy Quran and Sunnah" and above provisions make it mandatory that every law is to be enacted in accordance with Islamic Injunctions; however, respondents while enacting the impugned Act, failed to consider and comply with the above referred constitutional provisions. Now, it is to be determined whether provisions of ATA, challenged in the instant Shariat Petition, are repugnant to the injunctions of Islam and constitutional provisions?

8. The petitioners' stance that definition clause, i.e. section 2, of "Islamic Penal Laws, 1974", provides punishments; 'Tazir', which is imposed as per discretion of the competent Court, 'Hadd', which is imposed as ordained by Almighty Allah, 'Diyat', which is imposed as a payment of compensation in lieu of murder, hurt or damaging an organ, and 'Qisas', which is in lieu of murder or hurt, whereas, as per section 6 of the impugned ATA, punishments have been provided as death sentence, imprisonment and fine, but the same does not include 'Qisas', 'Diyat', 'Arsh', 'Tazir' and 'Hadd', which means that the offences under Islamic Laws would not be able to be dealt in accordance with Islamic Injunctions, if rest of the offences or even the same offence is also covered by the impugned ATA. It is pertinent to observe here that although the aforesaid punishments have not been included in section 6 of ATA, however, a minute perusal of the impugned Act reveals that Section 2, clause (ee) of the same is relevant to resolve the aforesaid point, which speaks as under:- "(ee) all other terms and expressions used but not defined in the Act, shall have the meanings as are assigned to them in the Azad Penal Code, 1860, or the Code of Criminal Procedure, 1998." A bare reading of the aforesaid clause reveals that all other terms and expressions of Azad Penal Code and Criminal Procedure Code, which have not been defined in the ATA, shall have the meanings as are assigned to them in the Azad Penal Code, 1860, or in the Code of Criminal Procedure, 1898. Now we turn to section 53 of the Azad Penal Code, which postulates punishments of 'Qisas', 'Tazir', 'Diyat', 'Arsh', 'Daman', 'Death', Imprisonment for Life, Rigorous/Simple Imprisonment, forfeiture of property and fine. The grievance of petitioners/ Advocates that punishments of 'Qisas', 'Diyat', 'Arsh', 'Tazir' and 'Hadd', have not been included in ATA; hence, offences under Islamic Laws would not be able to be dealt in accordance with Islamic Injunctions, does not seem to be correct, because a perusal of ATA reveals that Section 44 of the said Act relates to the powers of Anti-Terrorism Court, (hereinafter to be referred as ATC), in respect of other offences. The aforesaid section speaks that "When trying any Scheduled Offence, a Court may also try any offence other than the Scheduled Offence with which the accused may, under the Code, be charged at the same trial". In above Section ATC is empowered to try an offence under the Code of Criminal Procedure, 1898, however, Section 63(2) of ATA empowers Anti-Terrorism Court (ATC) to pass any sentence under other law. For convenience Section 63 is reproduced as follows:-- "Trial:--(1) While trying any offence under this Act, a Court may also try another offence which an accused may, under the Code be charged, at the same trial if the offence is connected with such other offence. (2) If, in the course of any trial under this Act of any offence it is found that the accused person has committed any other offence under this Act or any other law for the time being in force, the Court may convict an accused for such offence and pass any sentence authorized by this Act or, as the case may be, such other law, for the punishment thereof." It, therefore, becomes clear from the reading of above section, that an accused person, who committed any offence under any other law for the time being in force, the ATC may convict him for such offence and pass any sentence under such other law. Therefore, whenever such situation arises before ATC that the offences, involved in a case, do not come within the scheduled offences or have been committed under any other law, then the ATC has been authorized under the aforesaid section to award punishment to an accused, by following the relevant law in respect of those offences. Hence, argument of petitioners that offences under Islamic Laws would not be able to be dealt in accordance with Islamic Injunctions, during proceedings of ATC, is misconceived.

9. The next contention raised by petitioners, that section 22 of IPL provides establishment of Islamic Courts of Criminal Jurisdiction, section 23 of the same, provides jurisdiction of the Courts, which says that all the offences mentioned in the Act, shall be triable by the Courts established under the Act, despite the fact that the same are triable under any other law, and provisions of section 23,IPL, also provides that even in an occurrence when any of the act falls under the definition of an offence which is cognizable by the court established under IPL, while remaining acts may not constitute an offence under IPL, the Court established under IPL, shall be competent to try the case, whereas, as per section 39(3) of the impugned ATA, the cases involving offences covered by it, even if committed prior to the enactment of the impugned ATA, are pending before any other Courts, shall be transferred to the Court established under the impugned ATA; thus, in such state of affairs, the cases involving procedure and punishments recognized by Islamic Injunctions, if transferred to the Courts established under the impugned ATA, will amount to violation of 'Sharia', has been considered. The section 39 of the impugned Act, relates to Jurisdiction of ATC and its sub-section (3) relates to transfer of the cases. For convenience, the same is reproduced as under:-- Jurisdiction of Court:- (1) . (2) . (3) Where a declaration is made in respect of an offence committed in an area in any prosecution in respect of such offence shall be instituted only in the Court established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall stand transferred to such Court and such Court shall proceed with such case from the stage at which it was pending at that time without the necessity of recalling any witnesses." The grievance of petitioners, that the cases involving procedure and punishments recognized by Islamic Injunctions if transferred from Criminal Courts to the Courts established under ATA, will amount to violation of 'Sharia'; hence, section 39 is liable to be struck down. It would not be out of place to observe here that although through the afore-quoted subsection, the cases relating to the offences of ATA, pending before other Courts, stand transferred to ATC; however, a minute perusal of the impugned Act indicates that a protection to accused-persons, whose cases, before enactment of the impugned Act, were sub judice in other Courts, has been provided under section 81 of ATA. For elucidation section 81, ATA, is reproduced as under:-- "

81. Punishment for Terrorist Act Committed before this Act:

Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a Terrorist Act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed." A bare reading of the aforesaid provisions of law reveals that it consists of three parts; firstly, an offence committed by a person before commencement of this Act would be constituted a terrorist act, secondly, he shall be tried under ATC and thirdly, he shall be liable to punishment as authorized by law at the time when offence was committed. As per our estimation, under the first part of the above section, any act/offence of terrorism which was committed prior to enactment of ATA was declared to be Terrorist act, and in second part hearing of such offence was authorized to ATC, whereas in third part it was clearly mentioned that an accused of such offence shall be punished under the law, which was authorized at the time when offence was committed. The retrospective effect was, therefore, given only to the extent of acts of terrorists committed prior to promulgation of ATA and hearing of such cases was authorized to ATC, however, retrospective effect for awarding punishment was not given in the offences committed prior to the enforcement of the said Act. It postulates in clear letters that ATC is bound to award punishment under the law at the time when offence was committed. We are alive that fundamental rights have been guaranteed under section 4 of the Interim Constitution Act, 1974, and Superior Courts of Azad Jammu and Kashmir and Pakistan, have always struck down any law made in violation of fundamental rights. Now it is to be ascertained whether sections 39(3) and 81 of ATA are against Section 4 of the Interim Constitution Act, 1974? The Interim Constitution, under section 4(4), provides protection against retrospective punishment, which is reproduced as under:-- "

4. Protection against retrospective punishment:

No law shall authorize the punishment of a person:- (a) for an act or omission that was not punishable by law at the time of act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed." A study of the aforesaid section of the Interim Constitution makes it clear that no law shall authorize punishment of a person (firstly) for an act or omission that was not punishable by law at the time of act or omission and (secondly) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. As discussed hereinabove, retrospective effect by section 81, ATA for awarding punishment under the impugned Act, was not given in respect of acts/ offences committed prior to the enforcement of ATA, rather letters of law used in the aforesaid section are that "....he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed", which explicitly show that retrospective effect was not given to the extent of punishment for the offences committed prior to enforcement of the said Act, and it was made obligatory for ATC to award punishment to an accused under the law which was prevailing at the time of commission of offence. The aforesaid provisions of ATA in fact provide protection to an accused in shape of not awarding him punishment in the offences committed prior to enforcement of the impugned Act. A perusal of section 81, ATA also indicates that retrospective effect was given only to the extent of acts of terrorists committed prior to promulgation of ATA and trial of such cases was authorized to ATC, which means that retrospective effect pertaining to procedure has been postulated therein and it is well settled principle of law that when matter is of procedural nature, retrospective effect can be given by the legislature. The aforesaid view finds fortified from the case titled Adnan Afza1 v. Capt. Sher Afzal (PLD 1969 SC 187), wherein, it was observed as under:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively." In such state of affairs, the change of forum of trial in offences under ATA, from District Criminal Court to Anti-Terrorism Court, is a matter of procedure only; hence, provisions of section 39(3), ATA, are not violative of 'Sharia'. Thus, argument, that the cases involving procedure and punishments recognized by Islamic Injunctions if transferred from Criminal Courts to the Courts established under ATA, will amount to violation of 'Sharia', is untenable.

10. The next contention, that section 26 of IPL provides special procedure with regard to recording of evidence in accordance with Islamic Injunctions, whereas, as per section 46(10) of the impugned ATA, the trial of offences falling under the impugned ATA shall be completed in seven days, while procedure for a fair trial always needs some time, and completion of trial within seven days would amount to justice hurried, justice buried, and stages of trial under Islamic Law, i.e., prosecution evidence, defense evidence etc, cannot be completed in such short span of time, and under sections 40, 41 and 44 of ATA, accused-persons have been left on the sole discretion of a Judge of ATC, who shall try and decide the fate of an accused-person within only seven days. We have scrutinized the impugned ATA, although under section 46(10) of ATA, seven days time period for deciding a case, has been postulated; however, subsection (19) of Section 46 of the said Act, speaks that:- "Subject to the other provisions of this Act, the Court shall for the purpose of trial of any offence, have all the powers of a Court of Sessions and shall try such offence as if it were a Court of Sessions as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Session." The Section 2, clause (ee) of ATA speaks that:-- "(ee) all other terms and expressions used but not defined in the Act, shall have the meanings as are assigned to them in the Azad Penal Code, 1860, or the Code of Criminal Procedure, 1998." Likewise, section 76, ATA postulates overriding effect of the impugned Act and provides application of Criminal Procedure Code to the proceedings before ATC, which speaks as under:-- "

76. Overriding effect of Act:

(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, same as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before the Court, and for the purpose of the said provisions of the Code, the Court shall be deemed to be a Court of Session." Similarly, section 61 of the impugned ATA provides a way of summary procedure, which postulates as under:-- "

6. Offences triable by way of Summary Procedure:- All offences under the Act punishable with imprisonment for a term of not more than six months with or without fine shall be tried by way of summary procedure." A plain reading of sections 46(19) and 61, ATA, quoted supra, reveals that two procedures have been provided for trial of cases before ATC; one is regular procedure as provided under Chapter XXII-A, of the Code of Criminal Procedure, 1898, and the other as provided under section 61, ATA, whereas under section 46(19), ATA, the ATC has been empowered as a Court of Session for the purpose of trial of cases and the procedure which is adopted by the Court of Session for trial of cases is to be adopted by the ATC for the trial of all offences, except the offences explained under section 61, ATA. As procedure prescribed for the trial of cases before the Court of session, which is known as District Criminal Court in AJ&K, is mentioned in Chapter XXII-A of Cr.P.C; hence, the provisions of Chapter XXII-A, Cr.P.C. are applicable before ATC, but if any provision of the said Chapter is in conflict with the impugned Act, then that provision is to be excluded. Thus, the above procedure is to be adopted by ATC for the trial of cases, which is the regular procedure, whereas another procedure, in shape of summary trial has been provided under section 61, of ATA, for the trial of offences which are punishable for not more than six months with or without fine. As a separate procedure has been provided for the trial of offences punishable upto six months; therefore, the procedure of Chapter XXII-A, Cr.P.C., is not applicable to the cases referred to in section 61, ATA, and all offences which are punishable upto six months with or without fine, are to be tried through summary procedure. It transpires from perusal of the impugned ATA that under section 46 of the said Act, a summary procedure has been provided; however, whenever any difficulty during trial of a case through summary procedure arises, then the same may be resolved by application of Chapter XXII of Cr.P.C, because by virtue of sections 46(19) and 76, ATA, the provisions of Cr.P.C. are applicable. A perusal of Cr.P.C. reveals that for summary trial a separate procedure has been provided, which is contained in Chapter XXII of Cr.P.C.; therefore, the ATC being the Court of Session can also invoke the provisions of Chapter XXII of Cr.P.C., for the trial of class of cases mentioned in section 61,ATA. Thus, it would not be out of place to observe here that when offences relating to punishments of more than six months, are to be tried through regular procedure provided under section 46, ATA or under the provisions of Chapter XXII-A of Cr.P.C., in such a situation, argument of petitioners, that time of seven days for trial of a murder case and procedure for a fair trial, i.e., prosecution evidence, defense evidence etc cannot be completed in such short span of time, and under sections 40, 41 and 44 of ATA, accusedpersons, have been left on the sole discretion of a Judge of ATC, who shall try and decide the fate of an accused-person involved in murder case within only seven days, is totally misconception of law; therefore, the same is repelled.

11. The contention of petitioners, that according to IPL, purgation ('Tazkia') of witnesses shall be conducted specifically by Qazi, whereas ATC, through the impugned ATA, has not been empowered to conduct the same, has been pondered minutely. It would be significant to observe here that through an amendment in section 27(2) of the Islamic Penal Laws Act, 1974, the word 'Qazi' has been substituted to word 'Adalat', on 9th March, 1986. As observed in previous paragraph that ATC has been empowered as a Court of Session; thus, in view of the aforementioned amended provision of IPL, the ATC being a Court of Session is competent to conduct purgation in the cases, which need purgation. Hence, argument of petitioners that purgation ('Tazkia') of witnesses shall be conducted specifically by Qazi, being devoid of force, is repelled. It is, however, pertinent to observe here that when purgation required, is not conducted in accordance with the procedure available in Islam, this factor vitiates the judgment and warrants remand of the case. The aforesaid view is fortified from a judgment of the Apex Court in case titled Abdul Razaq and another v. The State (PLD 1988 SC (AJ&K) 190], wherein, it was opined as under:-- "The combined reading of the above would show that it is imperative for the purgator to inquire into the conduct, character and antecedents of the witnesses from those persons whose character is unimpeachable. Therefore, the mere say of the purgator that Muhammad, Siddique is an independent person, per se, is not sufficient to hold that he was a competent person to apprise the purgator about the conduct of the witnesses. Besides, since Muhammad Siddique, as per say of the Qazi, is not the neighbour of the witnesses, he is incompetent to conduct purgation of the witnesses. Only such person or persons are competent to conduct the purgation who are neighbours of the witnesses and not of the parties. In these circumstances, I am of the view that the purgation had not been conducted in accordance with the procedure available in Islam. This factor vitiates the judgment and warrants remand. I do feel that remand is very hard for the parties but unfortunately there is no way out for me and I cannot formulate law which may be violative of the Islamic procedure to be followed in conducting the purgation."

12. The next argument, that Section 29 of IPL provides mode of application of punishment in accordance with Islamic Injunctions, and section 31 of IPL postulates that the judgments shall not be applicable in all cases of 'Hudood' and 'Qatl-i-Amd' liable to 'Qisas' until the same are confirmed by this Court through a Reference made to it by trial Court, has been taken into consideration. As it has been observed in Paragraph 10, supra, that the provisions of Cr.P.C. would apply to the proceedings of ATC and ATC shall proceed with the cases as a Court of Session, in such state of affairs, by virtue of section 374, Cr.P.C. the matter shall be submitted to the High Court for confirmation of death sentence. The aforesaid section postulates as under:-- "374.Sentence of death to be submitted by Court of Session. When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court." The provision of aforesaid section reveals that in case the Court of Session passes sentence of death, the Court is legally bound to submit the proceedings to the High Court for confirmation and sentence shall not be executable unless it is confirmed by the High Court. Even otherwise the aforesaid controversy has also been resolved through section 74(2), of impugned ATA, which postulates that:- "Sections 374 to 379 of the Code shall apply in relation to a case involving a Scheduled Offence subject to the modification that the reference to a "Court of Session" wherever occurring therein, shall be construed as reference to a "Court and High Court". Thus, the ATC, while exercising powers as a Court of Session, is competent to send a Reference to the High Court for confirmation of death sentence, instead of Shariat Appellate Bench. The aforesaid view is fortified from a case reported as Bashir Ahmad and 2 others v. The State (PLD 2002 SC 775], whereby an objection raised by accused before the Apex Court, was that neither the ATC had jurisdiction to try the offence nor High Court had any right to hear the appeal because for such matters jurisdiction only vested in the Federal Shariat Court. In reply to the aforesaid objection, the Hon'ble Supreme Court of Pakistan, observed as under:- "The Anti-Terrorism Act, 1997, was assented to by the President and was published in the Gazette on 20.8.1997. It is thus clear that if the offence was committed after the said date, jurisdiction to try the offence exclusively vested in the Court constituted under the Anti-Terrorism Act, 1997, and no other Court can take cognizance of the offence. In this case, the offence was committed during the night between 21st and 22nd of December, 1999, therefore, the Court constituted under the Anti-Terrorism Act, 1997, had the jurisdiction to try the offence and obviously the appeal was maintainable before the High Court on a Reference to be made under section 374, Criminal Procedure Code which is applicable to the proceedings by virtue of section 30 of the Anti-Terrorism Act." Hence, the above discussed argument of petitioners, being misconception of law, is turned down.

13. The next argument of petitioners, that the impugned ATA, not only restricts the provision of fundamentally guaranteed rights of an accused, but also effects public at large, because IPL provides for monetary compensation to the victim or his heirs, along with punishment, whereas the same lacks in the impugned ATA, has also been considered. It is important to observe here that according to section 76,ATA, the provisions of the Criminal Procedure Code, 1898, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before the ATC; hence, section 544-A,Cr.P.C., which relates to grant of compensation to heirs of persons killed etc, is available to the aforesaid Court; therefore, finding no force in the aforesaid argument of petitioners, the same is repelled.

14. The crux of above detailed discussion is that the impugned Act, i.e. "Azad Jammu and Kashmir Anti-Terrorism Act, 2014," dated 13th October, 2014, specifically its impugned sections 6, 39, 40, 41, 44, 46(10), 74 and 81, are not violative of 'Sharia' as well as Constitutional Provisions; thus, finding no substance in the instant Shariat Petition, it is hereby dismissed. MWA/7/Sh.C.(AJ&K) Petition dismissed.