THE STATE Versus GHULAM ABBAS

TANZIL‑UR‑REHMAN, C.J.‑ ‑‑This is a criminal reference received from learned Sessions Judge, Mr. Zulfiqar Ali Khan, Bahawalnagar, which we have rejected by our short order of today's date therein below arc reasons for the same:‑‑

2. The facts are that three Criminal Appeals bearing Nos.294/L of 1 989. 424/1, of 1990 and 427/1, of 1990 alongwith Criminal Suo Motu No. 18/L of 1 990 were filed in this Court which came up for regular hearing before this Bench and decided by our order of 3rd February, 1991 whereby the case was remanded to the learned Sessions Judge. The operative part of the order is reproduced as under:‑‑

"For the above discussion, we hold the proceedings in the trial Court as incomplete" on the ground of the failure of the learned trial Judge to call upon the accused to make statement on oath as provided under section 340(2), Cr. P.C. and therefore, without going into merits of the case, we set aside the judgment, and remand the case for retrial from the stage of recording statements of the accused under section 342, Cr.P.C. In the circumstances Suo Motu Notice is discharged."

The above order was communicated to the learned Sessions Judge by this Court vide its letter dated 5‑3‑1991. The learned Sessions Judge sent a reference dated 6‑5‑1991 to the Registrar of this Court which came up for hearing today before us.

3. By this reference the learned Judge has sought an order from this Court "for the retrial of the accused persons since from the stage of after framing of the charge, and thus again recording the statements of the P.Ws. including E Muhammad Amin, complainant and as a result of that to do the needful for the administration of Lian between the complainant husband and wife."

4. The reference is misconceived inasmuch as no reference is maintainable under Rule 25 of the Federal Shariat Court (Procedure) Rules, which reads as under:‑‑

"(1) a reference submitted to the Court by a lower Court for confirmation of punishment awarded to an accused shall be heard as an appeal and the provisions contained in Chapter III of these Rules shall, mutatis mutandis, apply

(2) All reference, received from the lower Court shall be entered in a register given in a Form 4."

Moreover this Court has no power to review its own judgment passed in criminal appeal, as provided under Rule 31‑A of the Federal Shariat Court A (Procedure) Rules, except in the case of a clerical error.

5. The learned trial Judge (Sessions Judge, Bahawalnagar) while passing the judgment, dated 3 rd October, 1989 convicted appellants under section 307, P.P.C. and sentenced each of them to ten years' R.I. with fine of Rs. five thousand each and in default to undergo R.I. for one year each and also convicted under section 452, P.P.C. and sentenced each of them to R.I. for seven years each and fine of Rs. five thousand and in default R.I. for one year each. The sentences of imprisonment were ordered to run concurrently.

6. The learned counsel for the appellants in the aforesaid appeals raised a preliminary objection that failure on the part of the learned trial Judge to put a question to the appellants as to their giving statements on oath under section 340(2), Cr.P.C. has rendered the trial incomplete. It was, therefore, submitted that irrespective of the merits of the case, the conviction and sentences be set aside and the case be remanded for retrial from the stage of examination of the accused. Learned counsel for the State conceded to the said objection.

7. This Court after discussing history of the enactment of sections 340 and 342, Cr.P.C. and discussing the latest amendment in section 340(2), Cr.P.C. in the light of Islamic Injunctions came to the conclusion that:‑‑

"By substituting the provision of section 340(2), Cr.P.C., there seems to have been made a radical departure from the age‑old common law concept, which has been in vogue in this Sub‑Continent for over a century that in criminal administration of justice the entire burden has been on the prosecution to prove and bring home the guilt to the accused. If the prosecution fails to produce requisite evidence, accused goes scot‑free, and in case of civil liability the suit against the defendant stands dismissed. Under the Islamic Law, since every one is the best judge of his conscience and is ultimately answerable before Allah the Almighty, and according to Faith is liable to punishment is the World Hereafter for all his wrongs and misdeeds, an accused/defendant is burdened with taking an oath of denial after the prosecution/plaintiff s evidence is closed. For offences liable to Ta'zir the Qazi shall require the accused to make statement on oath. Let it be noted that under the Islamic Law, as has come down to us through centuries, the oath was to be administered either on the demand of the plaintiff or by the Court itself. In Pakistan under the aforesaid provision of section 340(2), Cr.P.C., looking; to the conditions prevailing in the society, it has been made incumbent on the Court to give oath to the accused in all situations as contained in the books of Fiqh that the oath of denial shall be administered by the Qazi on his own or on the demand of the complainant, for insufficient evidence has been done away with. It is an example of making Ijtihad in the age‑old doctrine of Fiqh by the Legislature in Pakistan:

8. It may be added that the above rule was inserted on the recommendation of Council of Islamic ideology, of which the present Chief Justice of this Court was the Chairman. The above recommendation was based on the Hadith of the Holy Prophet (p.b.u.h.) who said:

(Evidence is on the claimant/ prosecution and the oath is on the defendant/accused who denies it).

9. After studying the entire case‑law on, the subject, of the High Courts in Pakistan as well as this Court, it was held that:‑‑

For the above discussion, we hold the proceedings in the trial Court as `incomplete' on the ground of the failure of the learned trial Judge to call upon the accused to make statement on oath as provided under section 340(2), Cr.P.C. and, therefore, without going into merits of the case, we set aside the judgment impugned in the above appeals, and remand the case for retrial from the stage of recording statements of the accused under section 342, Cr.P.C. In the circumstances Suo Motu Notice is discharged

10. The reference stands rejected. The trial Court is directed to complete the trial within three months from the date of the receipt of this order R & P be sent D back immediately.

M.BA./619/F.S.C. Reference rejected.