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Petitioner: ABDUL RASHID ALIAS SHIDA GADI VS Respondent: THE STATE
1992 M L D 1845
1992 M L D 1845
[Lahore]
Before Riaz Ahmad; J
ABDUL RASHID alias SHIDA GADI‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Crl. Appeal No.1289 of 1991, heard on 18th March, 1992.
(a) West Pakistan Arms Ordinance (JOC of 1965)‑‑‑
‑‑‑‑S.13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.163‑‑‑Recovery witnesses had proved the recovery against accused by taking special oath on Holy Quran‑‑ Provision of special oath, being not attracted to criminal cases conviction and sentence of accused were consequently set aside and the case was sent back to Trial Court for retrial in accordance with law.
Emperor v. Juman Sajan Otho AIR 1947 Sind 66; Mst. Bashiran Bibi v. Ghulam Muhyud Din and others PLD 1990 SC 83 and Elahi Bux v. The State 1991 MLD 226 rel.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art.163‑‑‑Special oath‑‑‑Provisions of special oath are alien to criminal proceedings and the same cannot be administered in criminal cases.
Emperor v. Juman Sajan Otho AIR 1947 Sind 66; Mst. Bashiran Bibi v. Ghulam Muhyud Din and others PLD 1990 SC 83 and Elahi Bux v.‑ The State 1991 MLD 226 rel.
Rana Abdul Hamid for Appellant.
Shabbir Hussain Qureshi for the State.
M. Iqbal Cheema for the Complainant.
Date of hearing: 18th March, 1992.
JUDGMENT
Appellant Abdur Rashid alias Shida Gadi was tried by a Court constituted under the Suppression of Terrorist Activities Act, 1975 under section 13 of the Arms Ordinance XX of 1965.
Vide judgment, dated 9‑12‑1991, the learned Judge found the appellant guilty on the aforesaid charge and accordingly, the appellant was convicted and sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs.50,000 in default to undergo one year R.I.
Aggrieved by his conviction, the appellant has preferred this appeal which shall be disposed of through this judgment.
This appeal can be disposed of by the short question without going into the details as to the facts of the case. The examination of the record reveals that when the recovery witness A.S.I. Sajwar Tariq was being examined, the appellant asked him if he was willing to take a special oath on Holy Quran about the truth of his assertion, in response thereof, the A.S.I. replied is affirmative and took oath on Holy Quran, ‑ ‑ ‑ ‑ ‑ _The recovery was also proved similarly by the other recovery witnesses who took special oath and asserted that the recovery was effected from the appellant.
It has also been contended before this Court that provision of special oath is provided in Article 163 of the Oanun‑e‑Shahadat but it is vehemently argued that this provision is not attracted to the criminal cases. In support of his contention the learned counsel has placed reliance upon the judgments reported as AIR 1947 Sindh 66 Emperor v. Juman Sajan Otho, PLD 1990 SC 83 Mst. Bashiran Bibi v. Ghulam Muhy ud Din and others and 1991 MLD 226, Elahi Bux v. The State. In all these judgments reported, it has been categorically laid down that the provision of special oath is alien to the criminal proceedings and the same cannot be administered.
In view of the enunciation of law laid down in these judgments, we are of the view that the contention of the learned counsel has substance. Accordingly, this appeal is allowed and the conviction and sentence of the appellant is set aside and it is further directed that the case shall be retired the Court concerned in accordance with law. .
N.H.Q./A‑106/L Case remanded.