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Petitioner: MUHAMMAD AYUB VS Respondent: ABDUL KHALIQ
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Khurshid Khan, Sardar Said Muhammad Khan Title: MUHAMMAD AYUB vs ABDUL KHALIQ Case No.: Criminal Appeal No, 7 of 1989 Criminal Appeal No, 18 of 1987 Date of Judgment:1990-01-22 Reported As: 1990 MLD 1293 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SARDAR SAID MUHAMMAD KHAN, J.--This appeal has been directed against the judgment of the Shariat Court dated 28-1-1989, whereby the appeal filed by the appellant, herein, against the judgment of the District Criminal Court was dismissed as being incompetent. 2. The brief facts giving rise to the present appeal are that a case was registered against the respondent under sections 10,'11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, (hereinafter shall, be referred as Ordinance) and was subsequently tried by the Tehsil Criminal Court Dudyal. The respondent was acquitted of the charge under section 10 of the Ordinance but was convicted and sentenced for the offences falling under sections 11/16 of the Ordinance and sentenced to rigorous imprisonment; he was awarded 3 rpnths' rigorous imprisonment and was also fined Rs, 500 on each count. Two appeals were preferred to the District Criminal Court against the aforesaid judgment of the trial Court, one by Muhammad Ayub complainant against the order, of acquittal of respondent under section 10 of the Ordinance and enhancement of the punishment awarded to the respondent under section 11/16 of the Ordinance was also sought; the other appeal was filed by Abdul Khaliq respondent against his conviction under sections 10 and 16 of the Ordinance. The District Criminal Court disposed of both the aforesaid appeals by a single order, whereby the appeal filed by respondent, Abdul Khaliq, was accepted and that of Muhammad Ayub was dismissed. Consequently an appeal against the judgment of the District Criminal Court was preferred to the Shariat Court by the appellant. The learned Judges of the Shariat. Court dismissed the appeal on the ground that an appeal against the order of acquittal, in view of the provisions contained in section 25(2) of the Ordinance could be preferred only by the State and not by a private party.
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3. We have heard the arguments and perused the file. It has been contended by Mr.Noor-ul-Amin the learned counsel for the appellant that the Shariat Court has taken an erroneous view of the statutory provisions contained in the Islamic Penal Laws Enforcement Act, 1974. He has contended that the aforesaid Islamic Penal Laws Act is a self-contained Code which does not stipulate any restriction that an appeal in case of acquittal is competent only by the State and not by a private party. The learned counsel argued that initially when the Islamic Penal Laws Act was promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court the State may direct the Public Prosecutor to file an appeal but subsequently that provision was dropped through an amendment and the provisions presently contained in section 25 of the Islamic Penal Laws Act do not make any distinction between the right of appeal against an order of acquittal or conviction. He has contended that even before the amendment whereby the provisions regarding the appeal against the order of acquittal by the State was dropped, there was no bar for the complainant or any aggrieved person to prefer an appeal against, an order of acquittal. Thus the doubt, if any, regarding the right of appeal of private person was removed by the Legislature after dropping the said provisions from the statute book. He has argued that the provisions contained in section 32 of the Islamic Penal Laws Act or section 417, Cr.P.C. Would not be attracted in the instant case, because the provisions regarding preferring an appeal against the{{URDU TEXT}} judgment of the District Criminal Court make no distinction between an order of conviction and an order of acquittal. The right of appeal is against the of the Court. He has further contended that when the appeals were preferred against the judgment of Tehsil Criminal Court before the District Criminal Court, the state of law was that even in case of acquittal by the Tehsil Criminal Court, the appeal was competent to the District Criminal Court and not to the Shariat Court as was subsequently envisaged through an amendment. Thus the learned counsel maintained that the appeals one by the complainant and other by the respondent were pending in the District Criminal Court when the law was amended and it was provided that in case of acquittal by the Tehsil Criminal Court the appeal would lie to the Shariat Court and not the District Criminal Court. He has contended that in view of section 6 of the General Clauses Act, the District Criminal Court continued to enjoy the jurisdiction to hear the appeals. The amendment during the pendency of the appeals could not affect the legal proceedings and the District Criminal Court continued to possess the jurisdiction to decide the same in view of the provisions contained in section 6 of the General Clauses Act. 4. The learned counsel further argued that so far as the competency of appeal by the complainant to this Court is concerned, the same is competent in view of the provisions contained under section 42(2) of the Interim Constitution Act of 1974 which envisage that the appellate jurisdiction could also be invested in this Court by any other law. Thus the learned counsel has argued that by virtue of the provisions contained in section 25 of the Islamic Penal Laws Act, an appeal is competent to this Court against the judgment of the Shariat Court, irrespective of the fact that the same was against an order of conviction or acquittal, because the provision of the Code of Criminal Procedure are not applicable to this Court. 5. In reply the learned counsel for the respondent has argued that as section 25 does not specifically visualise that in case of acquittal a private party is competent to prefer an appeal, the provisions of section 417 Cr.P.C. Were rightly resorted to by the Shariat Court under section 32 of the Islamic Penal Laws Act, 1974, which says that if there is no clear provision in the Islamic Penal Laws Act, pertaining to a particular matter, the provisions contained in the Code of Criminal Procedure would apply to cases tried under the Islamic Penal Laws Act. 6. I have given my due consideration to the arguments raised at the Bar. The first point which needs to he resolved is as to whet her the appeals filed by the complainant and the respondent in the Shariat Court were competent. There is no dispute that at the relevant time section 25 of the Islamic Penal Laws Act, 1974, was not amended and appeal against the order of acquittal was
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competent to the District Criminal Court. The aforesaid appeals were pending in the District Criminal Court when the law was amended and a provision was incorporated that the appeal against the order of acquittal passed by the Tehsil Criminal Court. The question as to whether the amendment in the law regarding the forum had affected the appeals which were pending in the District Criminal Court. It may be observed that the right of appeal is substantive right and the same cannot be regarded as a right of procedural nature. Until and unless such right is taken away retrospectively, it would not affect the jurisdiction of the Court to dispose of an appeal according to law which was on the statute book before the amendment. A reference may be made to the case reported as Ghazi and others v. The State and another PLD 1962 Lah. 662, wherein it was observed that a right of appeal existing on a day on which a proceeding or lis commences or prosecution is lodged, is a vested right and that right is governed by law prevailing on the date of its decision; this vested right can be taken away only by subsequent enactment, which provides expressly that the provisions would operate retrospectively. Identical view Was expressed in cases reported as Jamshed Ahmed Khan v. Aurangzeb Khan' PLD 1964 Pesh. 250 and Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and others PLD 1962 Kar. 285. 7. I am in respectful agreement to the views expressed in the aforesaid authorities and hold that the amendment during the pendency of the appeals in the District Criminal Court did not debar the District Criminal Court to decide the same. 8. The next question which falls for determination is as to whether in view of the provisions contained in. The Islamic Penal Laws Act, 1974, as amended from time to time, an appeal in case of acquittal is competent only by the State to the District Criminal Court, Shariat Court or to this Court or the complainant has also right to file an appeal against the order of acquittal. For appreciating the point involved it would be expedient to reproduce the relevant provisions contained in Islamic Penal Laws Act, 1974, and the amendments made therein from time to time regarding the matter in the controversy. The provisions are as under:-- {{URDU TEXT}} {{URDU TEXT}} 9. Subsequently, the provisions incorporated in section 25 of the Islamic Penal Laws Act were again amended as under:- {{URDU TEXT}} 10. It may be observed here that initially there existed no Tehsil Criminal Courts or the Shariat Court and thus the appeals and revisions etc. Against the judgment of the District Criminal Court were competent to the High Court. However, subsequently, on the establishment of the said Courts, the law was amended from time to time and provisions were made in section 25 of the Islamic Penal Laws Act regarding the appeals and revisions to the District Criminal Courts, Shariat Court and this Court. Subsections (1) and (2) of section 25 were substituted as under:- {{URDU TEXT}} {{URDU TEXT}} 11. A comparative study of the above provisions would reveal that neither in section 25, as originally worded, nor in any subsequent amendment the right of appeal of a private party was non-existent. No distinction was ever made between the right of appeal in case of an order of conviction and an order of acquittal. There was no provision that the right of appeal against an order of acquittal was only available to the State and not to a private person. Even after making the amendments, as contained in subsection (2) of section 25, it was not laid down that the appeal against an order of acquittal could only be filed by the State and not by the complainant. It may be observed that the phraseology used in subsection (2) of section 25 after the amendment was in the following terms:- {{URDU TEXT}}
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' Subsection (2) of section 25 reproduced above does not stipulate that appeal against an order of acquittal passed by the Tehsil Criminal Court could only be preferred by the State. It only envisages that appeal against an order of acquittal would be preferred to the Shariat Court within six months. No amendment was made in subsection (1) of section 25, because appeal against an order of acquittal of the District Criminal Court already lay to the Shariat Court. In other words amendment made in section 25 of the Islamic Penal Laws Act did not take away the right of a private party to file an appeal against an order of acquittal; only forum of appeal was changed from District Criminal Court to Shariat Court. It may be observed that an amendment in section 25 of the Islamic Penal Laws Act was made whereby the original provision that an appeal against the order of acquittal could be filed by the Public Prosecutor on the direction of the Government was dropped and thus ambiguity, if any, was removed. 12. Had the legislature intended that in case of acquittal by any of the Courts established under the provisions of the Islamic Penal Laws Act the right of appeal would be available only to the State, it would have specifically said so. 13. It follows from what has been stated above that the complainant or any other aggrieved person has right of appeal against an order passed by the Tehsil Criminal Court, the District Criminal Court or the Shariat Court, irrespective of the fact whether the same was an order of 'acquittal' or 'conviction'. 14. It is settled principle of law that while interpreting a statute the words and phrases should be assigned ordinary dictionary meanings unless they are defined in the relevant statute. The plain reading of section 25 of the Islamic Penal Laws Act cannot be interpreted to place an embargo on the right of a private party to file an appeal against an order of acquittal. The argument advanced by the learned counsel for the respondent that as there is no specific provision in section 25 giving right to a private party to file an appeal, provisions contained in section 417 Cr. P.C. Are to be resorted to, is not tenable in view of the fact that section 25 of the Islamic Penal Laws Act is comprehensive enough and gives right of appeal to a private party irrespective of the fact whether the order is that of conviction or acquittal. 15. So far as the appeal against the order of the Shariat Court to this Court by a private party is concerned it may be observed that under section 42 (2) of the Interim Constitution Act, the same can also be conferred by any other law. As has already been stated above that section 25 of the Islamic Penal Laws Act invests this Court to exercise appellate jurisdiction against an order of the Shariat Court irrespective of the fact that the order was that of acquittal or conviction, the provision of the Code of Criminal Procedure does not apply regarding the appellate jurisdiction of this Court and thus any reference to section 417, Cr. P.C. Is not relevant. A reference may be made to a case Siraj Din v.Kala and another PLD 1964 SC 26 wherein it has been held that provisions of Cr. P.C. Do not apply to proceedings in the Supreme Court. ' In the light of what has been stated above, I accept the appeal, set aside the judgment of the Shariat Court and remand the case back to the Shariat Court with the direction that it shall re-hear the arguments on merits and decide the appeal according to law. ' RAJA MUHAMMAD KHURSHID KHAN, C.J.--I have had the advantage of going through the judgment recorded by my learned brother Mr. Justice Sardar Said Muhammad Khan. ' After giving my dispassionate thought to the finding recorded by the learned Judge, despite profound respect which I have for the learned Judge, I could not persuade myself to agree with the learned Judge that the appeal against the judgment of the Tehsil Criminal Court to the District Criminal Court and thereafter to the Shariat Court, to question the acquittal of Abdul Khaliq, respondent herein, for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter to be referred as the Ordinance), could competently be rolled in by the
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complainant or a private party under the relevant provisions of Islamic Penal Laws (Enforcement) Act, 1974. 16. It will be an exercise in futility to narrate the facts of the case which have fairly been recapitulated in the order passed by my learned brother. 17. The important question involved and posed is as to whether under the provisions of section 25(2) read with section 32(2) of the Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter to be referred as the Act), an appeal against the acquittal order recorded by the Tehsil Criminal Court to the District Criminal Court and by the District Criminal Court to the Shariat Court could competently be lodged by the complainant, namely, Muhammad Ayub, appellant herein. ' To have a view of the matter in its true perspective, the provisions in the Act, as amended from time to time, need to be reproduced. The provisions initially enacted are as under:- {{URDU TEXT}} ' Thereafter, section 25 of the Act was amended as under:-- {{URDU TEXT}} {{URDU TEXT}} ' After some time again subsections (1) and (2) of section 25 of the Act were substituted as under:- - {{URDU TEXT}} ' It it obvious that the controversy is to be resolved on the basis of the above provisions of the Act. 18. Mr. Noor-ul-Amin, the learned counsel for the appellant, has contended that the Act is a self- contained Code. Section 25 of the Act admits of no restriction that an appeal in case of acquittal is competent only by the State and not by a private party. The learned counsel also argued that initially when the Act was promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court the State may direct the Public Prosecutor to file an appeal to the High Court but subsequently that provision was changed through an amendment and the relevant provision now contained in section 25 of the Act does not make any distinction in the right of appeal against the order of acquittal or conviction. In his view the provision contains no bar for the complainant to lodge an appeal. In the circumstances, he contended, the provisions contained in section 417 of the Code of Criminal Procedure have no bearing on the facts of the instant case. He further argued that the appeal to this Court is competent in view of the provisions contained under section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which reads:-- " Subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law." and stipulates in clear terms that the appellate jurisdiction could also be invested in this Court by any other law and since an appeal is competent to this Court against the judgment of the Shariat Court irrespective of the fact that the same was against the order of acquittal or conviction, the provisions of the Code of Criminal Procedure cannot be attracted in regard to appeal to the Supreme Court. ' Mr. Muhammad Yunus Surakhvi, the learned counsel appearing on behalf of respondent, has countered the argument advanced on behalf of the appellant and contended that section 25(2) of the Act does not specifically visualise that in case of acquittal, the private party is competent to prefer an appeal, therefore, the provisions of section 417, Cr.P.C., were rightly made applicable by the Shariat Court within the meaning of section 32(2) of the Act which says that if there is no clear provision on a particular matter in the Act, the provisions contained in the Code of Criminal Procedure would apply to cases tried under the Act. 19. I have considered the arguments and am of the view that the argument addressed at the Bar by the learned counsel for the appellant that the appeal before the Supreme Court by the complainant or any other aggrieved party is competent has substance. The Supreme Court, under the provisions of section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is
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clothed with the jurisdiction as is or may be conferred on it by the Constitution Act or by or under any law. Since an appeal is provided to the Supreme Court against the judgment of the Shariat Court against an order of acquittal and conviction, the provisions of the Code of Criminal Procedure cannot be att cted in regard to the appeals to the Supreme Court. I agree with the learned dge that in view of this statement of law, the appeal under the Interim Constitution Act to the Supreme Court against an acquittal or conviction order is even competent by the complainant or any other aggrieved party. 20. Coming to the question as to whether the complainant or a private person is competent to call in question the acquittal order passed by the Tehsil Ciiminal Court or the District Criminal Court, it may be stated that there is no cavil that at the relevant time when section 25 of the Act was amended, an appeal against the order of acquittal was competent to the District Criminal Court. The aforesaid appeal was pending in the District Criminal Court when the law was amended to contain the provision that the appeal against the order of acquittal passed by the Tehsil Criminal Court, would be competent before the Shariat Court. I agree with the learned Judge that the right of appeal is a substantive right and the same cannot be regarded as a right of procedural nature. Until and unless such right is taken away retrospectively, it would not affect the jurisdiction of the Court to dispose of the appeals pending at the time of amendment according to law which was on statute book before the amendment. This view we have in Ghazi v. The State PLD 1962 Lah. 662, Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions PLD 1962 Kar. 285 and Jamshed Ahmad Khan v. Aurangzeb Khan PLD 1964 Pesh. 250. ' I am in complete agreement with the statement of law in the aforesaid authorities and hold that during the pendency of appeal, the amended law did not C debar the District Criminal Court to decide the acquittal appeals which had been lodged on the basis of the unamended law. 21. The important question which still faces us and calls for determination is as to whether in view of the provisions contained in the Act, as amended from time to time, an appeal in case of acquittal order recorded by the Tehsil Criminal Court, District Criminal Court or the Shariat Court is competent only by the State or the complainant or any other aggrieved person is also eligible to move such an appeal. I have already held that the appeal to this Court, by the complainant, is competent as the provisions of the Code of Criminal Procedure do not apply in regard to appeals to the Supreme Court. I am, however, of the considered view that the appeal by the complainant or any other aggrieved party to the District Criminal Court or the Shariat Court is not competent against the order of acquittal as under the provisions of section 25(2) read with section 32(2) of the Act, it is only the State which can lodge such an appeal. It is, of course, correct that under the amended section 25(2) of the Act referred to above an order of acquittal passed by the Tehsil Criminal Court has been made appealable before the Shariat Court within six months from the date of passing of the order but in my view this provision simply determines the right to and forum of appeal against the acquittal order and it in no way determines the competency of persons to lodge such appeals. The law under the Code stipulates that when the Act fails to provide for any specific matter, section 32(2) of the Act which reads:- {{URDU TEXT}} comes into play and matter would be governed by the relevant provisions of the Code of Criminal Procedure. It is to be noticed that section 25 of the Act is silent about the persons competent to move an appeal against the order of acquittal. Therefore, we have to fall back upon the provisions of section 32(2) of the Act and switch on to the relevant provisions of the Code of Criminal Procedure for the purpose of determination of the above question.
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' To attain clarity in the matter, I may, with advantage, here again reproduce the relevant of provisions of the Act and that of the Code of Criminal Procedure. Section 25 (2) of the Act reads as under:- {{URDU TEXT}} Section 32(2) of the Act runs as under:- {{URDU TEXT}} ' The combined reading of both the sections of the Act leaves no ambiguity that when a matter is not provided for under any provisions of the Act, the same is to be resolved under section 32(2) of the Act. ' Section 417(1) of the Code of Criminal Procedure enacts as under:-- " Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.; ' It would appear that under section 417(1) of the Code of Criminal Procedure in case of appeal against an order of acquittal not only the forum to which it would lie but also the person who is entitled to file it has been specifically mentioned. Unlike the provisions contained under section 417(1), Cr. P.C., section 25(2) of the Act, as said elsewhere, only determines the right to appeal and forum to which an acquittal appeal is competent. Thus, the person eligible to lodge an appeal not having been determined, is left open. This omission, however, is clarified, cured and governed under the provisions of section 32(2) of the Act which, inter alia, allows application of the provisions of section 417(1), Cr.P.C., under which the Government alone has been conferred the right to move an appeal against the order of acquittal. If section 25(2) of the Act is construed to mean that any person has the right to go in appeal against the order of acquittal, then any person can also file an appeal against the order of conviction under subsection (1) of section 25 of the Act irrespective of the fact whether…
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