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Petitioner: THE STATE through Advocate-General VS Respondent: HAKAM DEEN and 15 others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s):Khawaja Muhammad Saeed, Syed Manzoor Hussain Gillani, Khawaja
Shahad Ahmed Title: THE STATE through Advocate-General vs HAKAM DEEN and 15 others Case No.: Criminal Review Petition No,3 of 2005 Date of Judgment:2005-06-20 Reported As: PLD 2006 Supreme Court (AJ&K) 28 Result: Petition dismissed Judgment ORDER ' SYED MANZOOR HUSSAIN GILANI, J.---This petition for review of the order of this Court dated 21-4- 2005 passed in Criminal Appeal No, 29 of 2004, is filed under section 42-D of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLVI, Rule 1, of the Supreme Court Rules, 1978. Through the order under review, this Court was pleased to order and declare as follows in paras .60 and 61:-- "60. In view of above, we are constrained to declare the trial as vitiated and set aside the order passed by the Shariat Court and District Criminal Court Muzaffarabad on 3-12-2004 and 5-10-2004 respectively. The case is remanded to the District Criminal Court Muzaffarabad for afresh trial in accordance with law as discussed above, it is brought to our notice that accused was on bail during trial, if so, he will remain as such subject to same terms and conditions. 61. In view of legal position emerging from above discussion, we feel it expedient to direct as follows for observance by all the Courts in Azad Jammu and Kashmir that:- (1) The cases shall be taken up for trial, hearing and decision in order to pendency, however, if it is otherwise inevitable, reasons shall be recorded for it: (2) Trial in criminal cases shall be completed within reasonable. Time by strictly following the procedure laid down in Chapters XX and XXII-A of the Code of Criminal Procedure, as the case may be irrespective of any direction otherwise; (3) Witnesses in criminal cases shall be called after the accused is charge-sheeted, and trial shall continue till the entire evidence is recorded, unless reasonable circumstances duly recorded otherwise warrant;
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(4) In the cases of Qisas, Diyat or Tazir, if the parties seek adjournments of or negotiating compromise, Court shall allow reasonable time for it, failing which trial shall be concluded and case decided within a reasonable time from the date of conclusion of trial; and (5) The trial for the purpose of this order shall be deemed to have commenced from the date when the trial starts after taking cognizance." 2. The only ground for review as stated in para. 6 of the review petition is as follows:-- "6. The above said judgment of the apex Court dated 21-4-2005 merits review and reconsideration by the apex Court among others on the following grounds:-- (i) That under section 173 subsection (5) it is mandatory that the officer incharge of the Police Station while forwarding report under section 1 subsection (1) shall along with report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial. While deciding the case this provision of law has fallen short of the eye of the apex Court and the apex Court held in para. No,61 sub-para (3) of the judgment that witnesses in criminal cases shall be called after the accused is charge-sheeted, which is not warranted by law on the subject. (ii) That the point agitated above amounts to legal error apparent on the face of the record justifying a review of the judgment of the apex Court." 3. We have heard the learned Advocate-General and considered the points agitated before hte Court. We are sorry to observe that the jurisprudence of procedural law and sub-para (3) of para. 61 of the judgment under review is either not comprehended or misunderstood. 4. The provisions of section 173 subsection (5) on the basis of which the review of above sub-para. (3) is sought, finds place in Chapter XIV of the Code of Criminal Procedure which relates to "information to the police, and their powers to investigate." It begins with section 154 under which information in cognizable cases.Is given to the incharge of the police station and ends with ,"the inquiry by Magistrate into cause of death". All the sections in between relate to inquiry, investigation, recording of statement by the police, police officers powers to require the attendance and examination of witnesses, powers to record confessional statement, search, arrest and release of accused, diary of proceedings in investigation, report of police officer to the Court, report in suicide cases and inquiry by Magistrate into cause of death. No provision under this chapter relates to procedure of trial of cases by the Court. 5. While deciding the case under review, the Court has thoroughly dilated upon the power and authority of the trial Court in trial of cases, not the powers or duties of the investigating authority in investigating or filing the report before the Court. It is surprising that the distinction between the investigation by police and trial by Court is not understood. Former relates to the pre-trial procedure by Investigating Officer or Magistrate, as the case may be, while the later relates to trial of the case on the basis of the report after investigation or inquiry as the case may be. This Court was requested to decide the procedural irregularities during trial, not pre-trial procedures. The Court has confined to that, and directions also emanate from that alone. 6. Although this reasons alone is sufficient for dismissal of this review petition, however, to make the matter clearer for the law and the judicial officers, who are caught in the quagmire of miscomprehension in distinguishing between the investigation and trial, we deem it necessary to explain the position so that jurisprudence of procedural law is understood. 7. When a report under subsection (1) of section 173 is filed by the police officer before the competent Court, the police officer, besides completing and complying with other formalities provided by this section, is obliged under subsection (5) of section 173 (introduced in 1992 in the Code of Criminal Procedure) to produce the witnesses of the case before the Magistrate who shall bind such witnesses for appearance before him or some other Court on the date of fixed for trial. This obligation is on the police officer who is incharge of the police station where the case is
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registered and relates to investigation. The trial Court has nothing to do with it and it does not relate to trial procedure. The purpose is to satisfy and ensure that the officer incharge of the police station does have the witnesses in support of the report he is filing in the Court and Magistrate can bind them for their appearance at the time of trial of the case by the Court and nothing beyond that. This provision is analogous to section 217, Cr.P.C. Relating to committal proceedings which stands abolished. The provision was:-- "217. (1) Complainants and witnesses for the prosecution and defence, whose attendance before the Court of Session or High Court is necessary and who appear before the Magistrate, shall execute before him bonds binding themselves to be in attendance when called upon at the Court of Session or High Court to prosecute or to give evidence, as the case may be. (2) If any complainant or witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the Magistrate may detain him in custody until he executes such bond, or until his attendance at the Court of Session or High Court is required, when the Magistrate shall send him in custody to the Court of Session or High Court, as the case may be." After abolition of committal proceedings, a difficulty was felt that witnesses do not appear at trial as used to be during committal proceedings. So this provision was introduced, however, without making necessary amendments in the other corresponding provisions of the Code. It caused practical difficulties, causing more harm to parties particularly to witnesses. The witnesses were subjected to the agony of being dragged thrice. Once before the Investigating Officer to state under section 161, then before the Magistrate at the time of report under section 173(1), and then appearing for evidence before the trial Court. It deterred the witnesses to forthcome. Hence its application became practically impossible, thus it was never acted upon and in spite of being on the statute book, it is practically a redundant provision. 8. The provision in the committal proceedings, was nicely acted upon as all other provisions spreading from sections 206 to 220 were compatible with it. The statements of the witnesses were recorded by the Magistrate. If a case triable by Sessions Judge was made out, the accused was charged and committed, and if not, he was discharged. In case of charge, the Magistrate used to get bond executed only from those witnesses whom he deemed necessary, not everyone. 9. In the provision i,e, 173(5), the Magistrate is not authorized to record the statement of any such witness. He is to bind him. Whether binding authorises him to take personal or surety bond is not visualized by the provision. In the absence of a binding nature of action, how can the failure to appear be punished, is also not visualized. 10. It appears that all that was intended to achieve keeping in view the old experience of committal proceedings, it could not be spelled in the words of law, thus the practical application of provision became redundant. 11. It was in this background that we ordered that after the accused is charged, the trial shall continue till entire evidence is recorded. 12. Its redundancy is otherwise apparent as the witnesses are to be produced before the trial Court "when the accused does not plead guilty or the Court in its discretion does not convict him on his plea," under sections 244 or 265-F of the Code of Criminal Procedures, as the case may be, irrespective of the fact whether the witnesses are produced before the Magistrate and he binds them or not under section 173(5), Cr.P.C. Moreover, if the accused is not charged, question of production of witnesses does not arise whether Magistrate binds them or not. 13. Notwithstanding the duty of prosecutor to produce the evidence in support of the case, the trial Curt is also duty bound to summon any person likely to be acquainted with the facts of the case to give evidence for the prosecution under subsection (2) of section 265-F, whether he is cited by the police as a witness or not.
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14. We have consciously used the word redundant in relation to subsection (5) of section 173, Cr.P.C. Although it is on the statute book, for the reason that it is superseded by the provisions of sections 244 and 265-F of the Code of Criminal Procedure. In case of inconsistency and conflict between the two, the later which directly relates to the matter, overrides the earlier. This is a settled principle of jurisprudence which is accepted in the civilized world of jurisprudence. 15. The Courts have to harmonize the provisions of law in case any repugnancy or inconsistency is found in different provisions of law, and it shall adopt such view, which is in consonance with the spirit of the law and purpose for which it is enacted. The Courts are obliged to apply and interpret the law in a manner that it advances the cause of justice at the least inconvenience and expenses of the parties or State. That is why this provision is not adhered and is deemed by the Courts to be redundant. 16. The Courts are authorized to compel the attendance of all the witnesses as soon as the charge is denied by the accused and trial is begun. It is from this stage onwords that the Court can bind down the prosecutor and officer incharge of the police station to keep available all the witnesses for recording their statements, and as held in para. 61, the trial shall continue till the entire evidence is recorded, unless reasonable circumstances duly recorded otherwise warrant. Chapters XX and XXII-A deal with the production of prosecution evidence before the trial Court, hence these override all other provisions. 17. We have noticed that there are expressed and implied inconsistencies between different clauses of section 173 and sections regulating the trial under the Code of Criminal Procedure, besides different provisions of the Islamic Penal Laws Act, 1974,. Dealing with the procedure. Besides implied repugnancies, the expressed repugnance is manifest between subsection (4) of section 173, Cr.P.C., sections 241-A and 265-C of the Code of Criminal Procedure. 18. Under subsection (4) of section 173 the copy of the report forwarded by the police officer under subsection (1) of section 173 ran be furnished to the accused on his application and subject to payment, unless the Magistrate for some special reasons thinks fit to furnish it free of cost. While under sections 241-A and 265-C of Cr.P.C., the documents mentioned therein shall be supplied free of cost to the accused not later than 7 days before the commencement of the trial. Similar are the rules of the criminal trial, 1948. This Court in the case titled State through Ehtesab Bureau v. Khalique-ur-Rehman and 3 others 2001 YLR 2936 held these rules to be binding. These repugnancies have to be kept in mind by the Courts while trying and deciding the cases. 19. All the cases, which arose out of offences provided by the Islamic Penal Laws Act, 1974, stand incorporated in the Penal Code, through amendment in the Code of Criminal Procedure (Amendment) Act, 1995. A few sections, of only procedural nature, have remained in the Islamic' Penal Laws Act, 1974. A special section 6-A is added in the Code of Criminal Procedure through the amendment whereby the Courts provided in the Islamic Penal Laws Act are established in the Criminal Procedure Code. The Courts visualized by the Islamic Penal Laws Act, are now a part of the Criminal Procedure Code, not of the Islamic Penal Laws Act. 20. A general provision under section 8 was incorporated in the Azad Jammu and Kashmir Shariat Court Act, 1993, substituting Courts provided by the Code of Criminal Procedure by the Courts mentioned in Islamic Penal Laws Act (which are now under section 6-A of the Code). It may be reproduced as "8. Application of Code of Criminal Procedure,. 1898 (Act V of 1898) and amendment.-The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply, mutatis mutandis, in respect of cases under this Act: ' Provided that in the said Code the words High Court, Sessions Court, and Magistrate First Class wherever occurring, shall be construed to mean the Azad Jammu and Kashmir Shariat Court, District Criminal Court and Tehsil Criminal-Court, as the case may be for the purposes of this Act."
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21. This amendment overrides the provisions of the Code of Criminal Procedure and wherever the word High Court, Sessions Court, and Magistrate First Class is used, it is to be read as Shariat Court, District Criminal Court and Tehsil Criminal Court. So is held by the Supreme Court of Azad Jammu, and Kashmir in the case reported as Muhammad Bashir v. The State [1992 SCR 33], when it was confronted with this proposition in a bail matter. It was held that "The scheme of the Code of Criminal Procedure, in respect of bail matters, is contained in sections 497 and 498. The trial Curt can release a person on bail but cannot accept pre-arrest bail. The High Court and the Sessions Court have been authorized to grant bail in any case. The powers granted to these Courts can be exercised co-extensively. No such scheme is incorporated in the Islami Tazeerati Quaneen Nifaz Act. This Act does not lay down that the Shariat Court or the. District Criminal Court shall have the power of granting pre-arrest bail or that these Courts would be authorized to grant bail in any case which may not be pending with it. Section 32 of the Act does lay down that where a specific provision is not made in respect of any matter in that Act then in respect of the matter Code of Criminal Procedure would apply but Code does not make any mention of the Shariat Court or the District Criminal Court. It is for this purpose that section 8 of the Shariat Court Act, reproduced above, has been enacted. This section adequately meets the requirement of providing the necessary linkage. It is clear that the scheme of the Code of Criminal Procedure in respect of bail natters is thus fully applicable to the cases of Islami Tazeerati Quaneen Nifaz Act."(Underlining is ours). 22. A new dimension is given to the Criminal Procedure Code in Azad Jammu and Kashmir by the Criminal Procedure Amendment Adaptation Act, 2002. In the new Code, besides Chapter XX of the Cr.P.C. Visualized by section 28 of the Islamic Penal Laws Act, which is still on the Statute Book, Chapter XXII-A is added providing procedure to be adhered by the High Court and Court of Session in trial of the cases before it. In view of section 8 of the Shariat Court Act, referred above, the word High Court and Court of Session occurring in Chapter XXII-A shall be construed to mean the Shariat Court and the District Criminal Court. Hence, the chapter operates for trial of the cases by the Shariat Court and District Criminal Court. As far section 28 of the Islamic Penal Laws Act is concerned, it shall be operative to the extent of Chapter XX, for trial before Tehsil Criminal Court only. 23. As almost all the procedure of the Evidence Act and the Penal. Sections relating to Hadood, Qisas, Tazeer and Diyat enacted through special law in Islamic Penal Laws Act, also stand incorporated and adopted in Azad Jammu and Kahmir through Qanun-e--Shahadat Order, the Code of Criminal Procedure and Penal Code, as well, hence all these laws have to be construed and interpreted conjointly, so as to avoid contradictions, inconsistencies and repugnancy. 24. The provisions of law are not to be applied in isolation of each other, but simultaneously in juxtaposition to each other, Syed Saad Bin Zarif v. The State 1993 PCr.LJ 223. When there are two conflicting and inconsistent provisions, one which advances the cause of justice and of the law, that has to be preferred over the other. When there are different provisions susceptible to different meanings, these shall be so comprehended and applied, that the purpose of law is carried into effect with least or minimum inconvenience and expense to the parties. 25. This Court after due deliberation and full assistance of the learned Advocates has passed the judgment under review. The Court has thoroughly gone through all the relevant provisions of law and has formed the view, which in its estimation, is most befitting and practicable given the scheme of Constitution and law. Once the Supreme Court arrives at a conclusion on a point of law and issues any direction, all the executive and judicial authorities throughout Azad Jammu and Kashmir are bound to enforce the same and act in aid of the Supreme Court under section 42-A of the Interim Constitution Act. The scope of review on a point of law unless it is prima facie in violation of any provision of Constitution or law, is negligible. Consistent with this Court's earlier view
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on the point of review that the points finally resolved one way or the other cannot be reopened, unless there is a mistake apparent on the fact of record. Even incorrectness of a decision on a particular issue or question falling for determination in a case can never be a ground for review nor can the review be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision. It is the prerogative of the Court to pronounce what the law is or what does it mean, not for a party to expect in the way it wants. We may refer the following cases of this Court on this point:-- (1) Alam Din v. Mayor Municipal Corporation Mirpur and 4 others 2000 YLR 1891. (2) Ch.Mehmood Ahmed v. Haji Muhammad Idrees and another 2001 YLR 3237. (3) Allah Ditta and others v. Mehrban and others 1992 SCR 145; (4) Arshad Mehmood Shah and 2 others v. Chairman AKLASC and 10 others 2003 SCR 306; and (5) Azad Government v. Muhammad Suleman and 6 others 2003 SCR 423. 26. Before parting with it, we observe, without directing, that if the State feels so concerned, it can amend the law so as to create harmony and compatibility in different provisions of the Code. ' In view of above, no legal error being involved in the judgment under review this application does not warrant admission, which is hereby dismissed. (Sd.) KHAWAJA MUHAMMAD SAEED, C.J. (Sd.) SYED MANZOOR HUSSAIN GILANI, J ' KHAWAJA SHAHAD AHMED, J.---This petition for review against the order of this Court dated 21-4- 2005 passed in Criminal Appeal No,29 of 2004 is filed under section 42-D of the Azad Jammu and Kashmir interim Constitution Act, 1974 read with Order XLVI, Rule 1 of the Supreme Court Rules, 1978. 2. I have gone through the proposed order recorded by my learned brother Mr. Justice Manzoor Hussian Gillani in Review Petition No,3 of 2005 filed on 21-5-2005.With utmost respect I find myself unable to agree with the proposed judgment on the ground enumerated in the later part of this order. 3. The review petition has been filed only on one point which is reproduced below:-- "(i) That under section 173 subsection(5) it is mandatory that the Officer Incharge of the Police Station while forwarding report under section 1 subsection (1) shall along with report produce the witnesses in the case, except the public servants and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial. While deciding the case, this provision of law has fallen short of the eye of the apex Court and the apex Court held in para. No,61 sub-para (3) of the judgment that witnesses in criminal cases shall be called after the accused is charge-sheeted which is not warranted by law on the subject. (ii) That the point agitated above amounts to legal error apparent on the face of the record justifying a review of the judgment of the apex Court." Before proceedings any further or recording any finding it appears appropriate to discuss the scope of review under law and the case-law pronounced by the superior Courts of Sub-Continent from time to time. The scope and nature of review proceedings in a criminal case in the apex Court are definitely limited to error apparent on the face of record which must be so manifest and so clear that no Court could permit such an error to remain on record. It may be an error of fact or law but it must be an error which is self-evident and flouting on the surface of the judgment and does not require any elaborate discussion or process of ratiocination. In the present case the codified law i,e, Islamic Penal Laws Act and its different provisions particularly the one relating to procedure to be followed by Tehsil Criminal Court and District Criminal Court appears to have escaped the attention of the Court. Therefore, review on the point raised in the review petition needs detailed consideration in view of the reasons mentioned hereinafter.
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4. Section 173 subsection (5) of the Code of Criminal Procedure was introduced in Pakistan through amended Act No,XXV of 1992 with effect from 12-12-1992 and in view of Act XIII of 2001 [which up to this time stands repealed by Act VII of 2002 known as Criminal Procedure (Amendment) (Adaptation Act, 2002) and certain other orders issued from time to time has been made applicable in Azad Jammu and Kashmir. Before this amendment, section 173, Cr.P.C. Had only four subsections which provided procedure for filing final report by the police to the Court or the Magistrate for commencement of trial. Newly-inserted subsection (5) provided another duty of the Investigating Officer to produce witnesses of the case before the Magistrate and entrusted the power to the Magistrate to bind the witnesses for appearance before him or some other Court on the date fixed for trial. Section 173 although falls under Chapter XIV which relates to process to be adopted during investigation or the inquiry by police, yet from the very language of this section, it is clear that it closes the process of investigation and provides first step towards trial. It does not need any further detail that the report under section 173 becomes final only when it is placed before the Court or the Magistrate. This section also provides procedure for filing of interim report if the investigation has not been completed but subsection (5) does not apply to interim report which specifically provides a reference to subsection 1(a) of section 173, Cr.P.C. Therefore, the legal position on the point is that the police officer has to produce the witnesses before the Magistrate or the Court only when he files…
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