MUHAMMAD SARWAR Versus THE STATE
SARDAR SAID MUHAMMAD KHAN, C.J.‑‑ As the above- entitled appeals have arisen out of a consolidated judgment of the Shariat Court, we propose to dispose of the same by this single judgment.
2.. The facts of appeal entitled Muhammad Sarwar and another v The State and another (Criminal Appeal No.5 of 2000) are that one Sardar Ahmad lodged a complaint at Police Station Afzalpur under sections 302 and 34, A.P.C. read with sections 13 and 20 of the West Pakistan Arms Ordinance, 1965, against Muhammad Sarwar and Salamat Ali who were related as brother. They were tried and convicted by the District Criminal Court, Mirpur, on the charge of committing 'Qatl‑e‑Amd' of Muhammad Gulzar son of Shah Muhammad, the accused Muhammad Sarwar, was convicted and sentenced to life imprisonment under section 302, A.P.C., and two years' simple imprisonment under sections 13 and 20 of the West Pakistan Arms Ordinance, 1965, Salamat Ali .was convicted and sentenced under section 302, A.P.C. read with section 34, A.P.C. for the period during which he remained confined to judicial lock‑up. Both the accused appellants preferred appeal to the Shariat Court challenging the legality of their conviction and sentence, whereas Mst. Nasreen Begum, the widow of deceased, and Sardar Ahmad, complainant, the brbther of deceased, Muhammad Gulzar, filed cross appeals seeking enhancement of the sentences which were awarded to the accused‑appellants; the Advocate‑General also filed appeal on behalf of the State for the enhancement of the sentences awarded to the accused‑appellants. In the case two female witnesses, namely, Mst. Nasreen Begum and Mst. Farzand Begum, were also cited as prosecution witnesses. Both of them appeared before the District Criminal Court for their evidence on 19‑3‑1997. The statement of Mst. Nasreen Begum, P. W. was recorded on oath in presence of her mother‑in‑law, Mst. Farzand Begum, the other eye‑witness. However, in the end both of them affixed their thumb‑impressions on the statement and owned the statement which was mainly the statement of Mst. Nasreen Begum only. The name of both of these prosecution witnesses are recorded in the beginning of the statement but it is mentioned that the statement of Mst. Nasreen Begum was being recorded in‑ presence of other , witness, Mst. Farzand Begu Vin. thereafter, at various stages of the statement of Mst. Nasreen Begum, Mst. Farzand Begum also answered the questions which were asked to Mst. Nasreen Begum so as to correct her, statement or to refresh her memory. The position continued as is evident from the relevant record. In other words, the statement of Mst. Nasreen Begum cannot be regarded to be her exclusive statement but in fact is the mixture of the statements of both of them; sometimes it was recorded as their joint testimony while sometimes as the testimony of one or the other. It appears that this, mode of recording statements which was alien to 'Qanun‑e‑Shahadat' or Criminal Procedure Code was followed in Azad Jammu and Kashmir in view of the dictum given in cases reported as State v. Basharat Ahmad PLD 1984 Sh. C. (AJ&K) 16 and State v. Nazir PLD 1986 Sh. C. (AJ&K) 143, wherein it has been opined that according to Verse 282 of Surah Al‑Baqara of the Holy Qur'an. In case of female witnesses, their statements should be recorded jointly so that if one of them makes a mistake due to slip of memory, the other may correct her.
3. The facts of the appeal entitled Ghulam Hussain and another v. The State and another Criminal Appeal No.7 of 2000, are that Ghulam Hussain and others were challaned before the District Criminal Court under sections 5/15 of the Islamic Penal Laws Act, 1974, read with sections 307, 458, 459, 460, 148, 149 and 109, A.P.C. after the trial, Ghulam Hussain and Ghulam Ahmad, accused‑appellants, were convicted and sentenced to 14 years' rigorous imprisonment each while Abdul Haq, Muhammad Riaz and Mushtaq accused, were acquitted. The accused‑convict, Ghulam Hussain and another preferred appeal against their conviction and sentence to the Shariat Court. In this case, there were two lady witnesses, namely Mst. Hakam Bi, and Mst. Ruqiya Begum, appeared before the trial Court for their evidence on 20‑7‑1996. The statement of Mst. Ruqiya Begum was recorded on oath in presence of Mst. Hakam Bi. However, the thumb‑impression of Mst. Hakam Bi was also affixed on the statement purported to have been given by Mst. Ruqiya Begum alone.. This statement also suffers from the same defects which have been pointed out in the other case (Criminal Appeal No.5 of 2000) in which Mst. Farzand Begum and Mst. Nasreen Begum were the witnesses. The statement of these lady witnesses is also composite in the nature, during the examination of Mst. Ruqiya Begum, Mst. Hakam Bi, the other witness, not only remained present in the Court but also continued correcting Mst. Ruqiya Begum, the statement was also owned by Mst. Hakam Bi who affixed her thumb‑impression on the statement of Mst. Ruqiya Begum both.
4. While the appeals were pending before the Shariat Court, the question which fell for determination by the Shariat Court was as to whether the joint recording of the statements of the aforesaid prosecution witnesses in the aforesaid two cases was in consonance with the principle of recording evidence in a criminal case and as to whether in view of Verse 282 of Surah Al‑Baqara, the dictum earlier given by the Shariat Court of Azad Jammu and Kashmir in its two reported cases, referred to earlier, was rightly .followed by the trial Court. The Shariat Court, after hearing arguments, held that in view of the dictum of the Full Bench of the Shariat Court given in an unreported case entitled Mujahid Shah v. State (Criminal Revision No.70 of 1995 decided on .21‑6‑1999, the law laid down by it previously whereby women witnesses were examined together stood overruled. Consequently, the Shariat Court kept the appeals pending before it and directed the trial Court to record the statements of those lady witnesses in the above‑entitled cases whose statements were not in fact recorded and submit the same to the Shariat Court so that the appeals pending before it could be disposed of on merits. The present appeals have been preferred contending that the Shariat Court should have set aside the convictions and sentences of the concerned accused persons in both the cases and thereafter should have remanded the cases to the trial Court for recording the statement of the lady witnesses and deciding the same afresh according to law. It may be observed that the appellants have no grievance so far as the dictum of the Shariat Court that joint recording of the statements of the lady witnesses was a violation of law and, thus, illegalities were committed which prejudiced the accused persons. It may also be observed that the complainant parties have also not come up in appeals challenging the view taken by the Shariat Court so far as the question of re‑recording of the statements by the trial Court was concerned. However, Mr. Abdul Khaliq Ansari, who represented the complainant in Appeal No.5, titled. above, has tried, to persuade us that the view taken by the Shariat Court that the joint recording of 'the statements of lady witnesses was not derogatory to the principle laid down in 'Fiqah' on the interpretation of Verse 282 of Surah All-Baqara was not correct. However, as the complainant did not file appeal against the aforesaid finding of the Shariat Court, he was not permitted to agitate the point.
5. Mr. Sher Zaman Chaudhry, Advocate, the learned counsel for the appellants in Appeal No.5 of 2000, has contended That the Shariat Court should have set aside the convictions and sentences of the concerned appellants under section 423, Cr.P.C. and thereafter should have remanded the case for recording of the statements of the concerned female witnesses and afresh decision of the case. According to him as under section 428, Cr.P.C. only 'additional evidence' can be recorded by the trial Court, but in the present cases as the statements of female witnesses were previously recorded, though jointly, the case did not fall within the purview of 'additional evidence'. According to the learned counsel, the only other provision available to the Shariat Court was section 423, Cr.P.C. under which the Court could remand the case and that could be done only after setting aside the judgment of the trial Court. The learned counsel has taken pains to take us through the statement sof Mst. Nasreen Begum to persuade us that the said statement cannot be regarded to be a statement of Mst. Nasreen Begum or Mst. Farzand Begum neither the statement can be regarded as a joint statement of both of these witnesses. According to the learned counsel, the Shariat Court was correct in holding that there was no alternative but to record the statement of said witnesses afresh according to law: The only grievance of the learned counsel for the appellants, Muhammad Sarwar and another, was that the case should have been remanded after setting aside the conviction and sentence passed by the trial Court.
6. Ch. Muhammad Azam Khan, Advocate, the learned counsel for Ghulam Hussain and another, has owned the arguments advanced by Mr. Sher Zaman Chaudhary, the learned counsel for Muhammad Sarwar and another, and has also taken us through the statement of Mst. Ruqiya Begum to persuade us that there is no material difference between the illegalities committed by 'the trial Court in the case which is . subject of Appeal No. 5 and the illegalities committed in the case filed against Ghulam Hussain and another. He has also taken us through the statement of Mst. Ruqiya Begum and has contended that, more or less the same illegalities have been committed while recording the statement of Mst. Ruqiya Begum which was also owned by Mst. Hakam Bi. The learned counsel has cited the following authorities in support of his contentions that the case should have been remanded after setting aside the judgment of the High Court.
In a case reported as Emperor v. Lakshmari Ramshet Alwe AIR 1929 Bombay 309, the Magistrate did not afford opportunity to the accused person by adjourning the case for cross‑examination of the prosecution witnesses after framing the charge as envisaged under section 256, Cr.P.C. On the ground that in view of the practice of the Court the case could not be adjourned and accused or his counsel, if so desired, might cross‑examine the said witnesses on the date when the charge was framed. The accused was convicted after the completion of trial. An appeal was preferred to the Sessions Judge who directed the trial Magistrate under section 428, Cr.P.C. to afford an opportunity to the accused person to cross‑examine the prosecution witnesses and after recording further defence evidence, if any, submit the record to him for the disposal of appeal. On revision to the High Court it was observed that proper course for the Sessions Judge was to remand the case after setting aside the conviction and sentence of the accused person and not to act under section 428, Cr.P.C. in view of the nature of order passed by him. As already stated this authority was considered in case reported as Munshi v. Muzaffar AIR 1938 Cal. 781 but, was not followed for reasons recorded therein.
In a case reported as Mahommed Abdus Samad v. Emperor AIR 1925 Cal. 172, the facts were that it was found by the Appellate C6ui‑t that examination of accused persons, under section 342, Cr.P.C. was defective and prejudice was caused to them. Thus, the Appellate Court proceeded under section 428, Cr.P.C. and directed the trial Court to re‑examine all the accused persons afresh under section 342, Cr. P. C. and provide opportunity to them to adduce defence evidence, if they so choose, and thereafter, submit the record to Appellate Court. It was held that in view of the nature of the order passed by the Sessions Judge, the remand could not be made without setting aside the conviction and sentence of the accused persons. Obviously this authority is distinguishable because the Sessions Judge directed the re examination of accused persons under section 342, Cr. P. C. and thereafter to record .the additional evidence in defence, this could not be made without setting aside the conviction and sentence of the concerned accused persons.
In a case reported as Jabbar Ahmed v. State 1996 PCr.LJ 1264, it was found that the trial Court copied the statement of prosecution witness recorded in some other case. It was held that this was not an irregularity curable under section 537, Cr.P.C. rather was an illegality because under section 356(1), Cr.P.C. taking of evidence means taking down of statement in full in each case, the question of recording of the evidence in a criminal trial is matter of basic and fundamental character and strict adherence to ~it was necessary as prescribed under law. Therefore, the conviction and sentence of the concerned accused person was set aside and they were acquitted. .
7. In reply, Mr. Muhammad Abdul Khaliq Ansari, Advocate, the learned counsel for the complainant in Appeal No.5, submitted that in fact the view taken by the Shariat Court that the joint recording of statement was not justified in a crinunal case on the interpretation of Verse 282 of Surah al‑Baqara is not correct, however, as no appeal was filed by the concerned complainant challenging the said finding of the Shariat Court, he was not permitted to dilate upon the point before this Court. The learned counsel has. further argued that the objection was not raised by the concerned accused persons in the trial Court that the joint recording of the statement was in violation of law they could not legally raise such an objection for the first time in the appeal pending before, the Shariat Court. It may be observed that no such stand was taken by the respondent, herein, before the Shariat Court thus, the same cannot be entertained for the first time in this Court. Even otherwise, we are of the opinion that the mere failure to raise an objection to the illegalities committed in the present cases would not debar the concerned appellants to raise an objection in the Shariat Court, especially so when the illegalities were the result of earlier view taken by the Shariat Court. The leashed counsel has also controverted the argument advanced on behalf of Muhammad Sarwar and another accused that the Shariat Court has committed an error to direct the trial Court to record the evidence of the concerned female witnesses and submit the record to the Shariat Court. The learned counsel has argued that the Shariat Court has rightly acted under section 428, Cr.P.C. and directed the trial Court to submit the record of the statements of the concerned lady witnesses to it.
8. Mr. Riaz Alam, Advocate, the learned counsel for the complainant in Appeal No.7, has owned the arguments advanced by Mr. Muhammad Abdul Khaliq Ansari, Advocate in Appeal No.5 and has also stressed that as the said objection was not raised by Ghulam Hussain and others in the trial Court, the same was not entertainable in appeal before the Shariat Court. The learned counsel has referred to the following authorities in support of his contentions:‑‑
In a case reported as Muhammad Amin and another v. The State 1987 PCr.LJ 1922, it has been held that every error, omission or irregularity in mode of trial does not vitiate the trial and if no prejudice appears to have been caused to the accused person, such irregularity would be deemed to have been cured under section 537, Cr.P.C. specially so when the objection was not raised by accused persons or their counsel at the time of recording of the evidence or before the Appellate Court. Thus, it was held that non compliance of section 342, Cr.P.C. in the circumstances of the case did not vitiate the trial on the ground that examination under section 342, Cr.P.C. was not in conformity with the requirements of law.
9. We have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether the Shariat Court has committed an error in exercising the powers under section 428, Cr.P.C. because this was not a case of recording 'additional evidence' within the meaning of section 428, Cr.P.C. and that the case should have been remanded as a whole after setting aside the conviction and sentence of the accused persons. It may be observed that after giving due consideration, we have come to the conclusion that even if the statements of female witnesses were recorded in both the cases, referred to above, the fact remains that as the mode adopted by the trial Court was not legally justified, the recording of their statements would fall within the purview of 'additional evidence'. There is no authority in support of the view that if the statement of a witness is recorded but same is not admissible into evidence due to some illegality, the same, if recorded again, is not 'additional evidence' within the meaning of section 428, Cr.P.C. Such a narrow construction cannot be placed on the expression 'additional evidence' appearing in section 428, Cr.P.C. There is ample authority in support of the proposition that where the statement of a witness was recorded but the same was found deficient due to failure of cross‑examining or for some other reason, the case was treated to be that of 'additional evidence' under section 428, Cr.P.C. and the trial Court was directed to re‑examine such a witness and submit the statement so recorded to the Appellate Court so as to enable it to dispose of the appeal. A reference may be made to the following authorities:
In a case reported as Ukha Kolhe v. The State of Maharashtra AIR 1963 SC 1531, while discussing the scope of sections 423 and 428, Cr.P.C. it was observed that the retrial of a case under section 423, Cr.P.C., should be ordered in exceptional cases, unless the Appellate Court is satisfied that the Court trying the case had no jurisdiction to try it or that the trial was vitiated by some serious illegalities or irregularities and there has been no trial in substance at. all. It was further observed that if the evidence led in the trial was deficient in some important aspects; it would not be a sufficient ground for order of retrial and if the Appellate Court was of the opinion that additional evidence was necessary it should act under section 428(1), Cr.P.C., instead of directing the retrial under section 423, Cr.P.C.
In a case reported as Latif v. The State 1992 PCr.LJ 116, it was found that prosecution witnesses were not cross‑examined due to some misunderstanding by one of the accused persons. Thus, the High Court held that the proper course was to act under section 428, Cr.P.C. and direct the trial Court to allow the concerned accused to cross‑examine the prosecution witnesses and thereafter submit the record of the case to the Appellate Court for disposal of appeal.
In a case reported as Munshi v. Muzaffar AIR 1938 Cal. 781, it has been held that as the prosecution witnesses were not cross‑examined at the trial after the framing of charge, the Appellate Court had the jurisdiction to exercise power, under section 428, Cr.P.C., to send the case to the trial Court with the direction that after the completion of the cross‑examination on the prosecution witnesses it should submit the record of evidence to the Appellate Court for the disposal of the appeal. The learned Judges also dissented from the view taken in a case reported as Emperor v. Lakshman Ramshet Alwe AIR 1929 Bombay 309, which has been also relied upon in present appeal by Ch. Muhammad Azarn Khan, the counsel for Ghulam. Hussain and another appellants.
In a case reported as In re: Donald Dixon AIR 1938 Madras 900, it has been held that if Court comes to the conclusion that some prosecution witnesses were not examined because they were likely to turn hostile to the prosecution the High Court should invoke its power conferred upon it under section 428, Cr.P.C.
10. The authority reported as Emperor v. Lakshman Ramshet Alwe AIR 1929 Bombay 309, referred to by Ch.Muhammad Azam, the learned counsel for Ghulam Hussain and another is distinguishable because in that case, the illegality was of such a nature that bulk of prosecution evidence could not be admitted into evidence due to failure of cross‑examination on the concerned witness after framing of the charges. It may also be observed that that case was also dissented from in case reported as Munshi v. Muzaffar AIR 1938 Cal. 781. Thus we hold that the Shariat Court has rightly exercised the power available to it under section 428, Cr.P.C., and that it was not bound to remand the case after setting aside the sentence and conviction of the concerned accused, because the remand under section 423, Cr.P.C. for de novo trial must be avoided as far as possible.
11. Although no appeal was filed by the respondents against the finding of the Shariat Court that the principle laid down in Verse 282 of Surah Al Baqara is only attracted to the cases of civil liabilities and not to criminal cases yet for our own satisfaction, we have considered the said question and have come to the conclusion that the Shariat Court has rightly held in Mujahid Shah's case, referred to above that the principle laid down in the aforesaid Surah is not applicable to the criminal cases and is attracted only in cases of civil liabilities. To elucidate the point, a reference may be trade to the translation of Verse 282 of Surah Al‑Baqara by Maulana Abul A'ala Maudoodi in his commentary on Holy Qur'an know as 'Tathim‑ul‑Qur'an at pages 219 and 220 which is as under:‑‑
A reference may also be made to English Translation and Commentaries by Allama Yusuf Ali known as 'The Holy. Qur'an, Text Translation and Commenary', page 113:‑‑
"282. O ye who believe! when ye deal with each other in transactions involving future obligations in a fixed period of time reduce them to writing. Let a scribe write down faithfully as between the parties, let not the scribe refuse to write as Allah has taught him so let him write. Let him who incurs the liability dictate but let him fear his Lord Allah and not diminish aught of what he owes. If the party liable is mentally deficient or weak or unable himself to dictate let his guardian dictate faithfully. And get two witnesses out of your own men and if there are not two men then a man and two women such as ye choose for witnesses so that if one of them errs the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract) for a future period whether it be small or big, it is juster in the sight of Allah more suitable as evidence and more convenient to prevent doubts among yourselves, but if it be a transaction which ye carry out on the spot among yourselves there is no blame on you if ye reduce it not to writing. But take witnesses whenever ye make a commercial contract, and let neither scribe nor witness suffer harm. If ye do (such harm) it would be wickedness in you. So fear Allah; for it is Allah that teaches you. And Allah is well acquainted with all things."
Commentaries/Footnotes :
329. The first part of the verse deals with transactions involving future payment or future consideration, and the second part with transactions .in which payment and delivery are made on the spot. Examples of the former are if goods are bought now and payment is promised at a fixed time and place in the future, or if cash is paid now and delivery is contracted for at a fixed time and place in the future. In such cases a written document is recommended, but it is held that the words later on in this verse, that is it "juster ... ... ...more suitable as evidence, and more convenient to prevent doubts, on the spot‑‑‑require no evidence in writing, but apparently oral witnesses to such transactions are recommended.
330. The scribe in such matters assumes a fiduciary capacity he should therefore remember to act as in the presence of God, with full justice to both parties. The art of writing he should look upon as a gift from God, and he should use it as in His service. In an illiterate population the scribe's position is still more responsible.
331. Possibly the person 'mentally deficient or weak, or unable to dictate' may also be incapable of making a valid contract, and the whole duty would be on his guardian, who again must act in perfect good faith, not only protecting but vigilantly promoting the interests of his ward.
332. It is desirable that the men (or women) who are chosen as witness should be from the circle to which the parties belong, as they would best be able to understand the transaction, and be most easily available if their evidence is required in future.
333. Commercial morality is here taught on the highest plane and yet in the most practical manner, both as regards the bargains to be made, the evidence to be provided, the doubts to be avoided, and the duties and rights of scribes and witnesses. Probity even in worldly matters is to be, not a mere matter of convenience or policy, but a matter of conscience and religious duty. Even our everyday transactions are to be carried out as in the presence of God. "
12. It is evident from the above‑cited translation and commentaries that Verse 282 of Surah Al‑Baqara pertains to civil liabilities and obligations and is not attracted in a criminal case as has been held by the Shariat Court. Even if it is assumed for, the sake of argument that the principle laid down in Verse 282 is applicable in a criminal case, the same cannot be followed till it is enforced through legislation as has been held by this Court in a number of cases, including the one reported as Faqir Ali v. The Standard Bank PLD 1984 SC(AJ&K) 62 and President's Reference No. l of 1998 (1998 CLC 1331).
13. It may also be pointed out that in view of the provisions contained in sections 356 and 360, Cr.P.C., the statements of witnesses in a criminal case are to be recorded separately and there is no concept in law to record joint statements as has been done by the trial Court in the present cases. The contrary view taken by the Shariat Court of Azad Jammu and Kashmir in the aforesaid two cases appears to be based on section 26 of the Islamic Penal Laws Act, 1974, which is reproduced as under:
Evidently the expression occurring in the abovementioned provision refers to the number of male and female witnesses in the cases of Hudood and Qisas and not to the mode of recording the evidence of female witnesses.
14. There is yet another aspect of matter. It may be observed that "Qanun‑e‑Shahadat" was compiled on the recommendations of the Council of Islamic Ideology of Pakistan and was adapted in Azad Kashmir in the year 1988. Article 17 of "Qanun‑e‑Shahadat" deals with the competence and number of witnesses. The relevant provision is reproduced as under:‑‑
"17. Competence and number of witnesses. ‑‑(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law‑‑‑
(a) in matters pertaining to financial or future obligations if reduced to writing the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly ; and
(b) in all other matters, the Court may accept or act on the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant. "
(Underlining is ours).
In view of above provisions of Article 17(2)(a) the production of two female witnesses jointly is also only necessary in case of financial matters or future obligations and not in criminal cases. It may be pointed out here that when Islamic Penal Laws Act, 1974 was enforced in Azad Kashmir, Article 17 of "Qanun‑e‑Shahadat" was not on the statute book of Azad Kashmir, i.e. the same was adapted in the year 1988. Thus, section 26 of the Islamic Penal Laws Act cannot be interpreted to mean that the principle that statements of two female witnesses should be examined jointly is applicable to a criminal case.
15. It follows from what has been stated above that it is neither provided in Criminal Procedure Code nor in "Qanun‑e‑Shahadat" or in any other law for the time being in force that the female witnesses in a criminal case should be examined jointly. Thus, we are of the opinion that the Shariat Court has rightly held that the two female witnesses in a criminal case are to be, examined as has been laid down in "Qanun‑e‑Shahadat" and the Criminal Procedure Code which is the law governing the trials in criminal cases.
16. So far as the argument on behalf of the respondent that as the objections by the accused‑appellants were not raised at the time of recording of the statements of female witnesses the same cannot be raised in appeal is concerned, it may be observed that we cannot lose sight of the fact that the view taken by the Shariat Court previous to the judgment in Mujahid Shah's case, referred to above, in cases reported as State v. Basharat Ahmad PLD 1984 Sh.C. (AJ&K) 16 and State v. Nazir PLD 1986 Sh.C. (AJ&K) 143 was that statements of female witnesses are to be recorded more or less in the same manner as was done in the present cases. The statements of Mst. Nasreen Begum and Farzand Begum were recorded on 19‑3‑1997 and that of Mst. Ruqiya Begum and Hakam Bi on 20‑7‑1996 whereas the view was changed in Mujahid Shah's case on 21‑6‑1999. Therefore, we are not inclined to hold that accused persons were debarred to raise the objection in appeal with regard to the illegalities committed by the trial Court.
17. The next question arises as to whether the only statement of one of the female witnesses in each of the cases, referred to above, is to be recorded or statements of both the two witnesses in each of the cases are to be re recorded. After thoroughly going through the statements of the aforesaid four female witnesses, two in each of the appeals, referred to above, we have come to the conclusion that the statements of the concerned female witnesses in the relevant cases cannot be regarded to be the statements of one witness or the other, i.e. in Appeal No.5, it cannot be said that the statement recorded was either of Mst.Nasreen Begum or Mst.Farzand Begum and similarly, in Appeal No.7 the statement purported to be the statement of Mst.Ruqiya Begum was her exclusive statement. Thus, we are of the opinion that the statements of both the female witnesses in the concerned cases should be recorded by the trial Court. Therefore the judgment of the Shariat Court. wherein the statement of one of the female witnesses in each of the challans was directed to be recorded has been amended in terms that the statements of the concerned witnesses in both of the said cases shall be recorded by the trial Court as is required by the relevant law.
In the light of what has been stated above, except the modification in the impugned judgment of the Shariat Court, the appeals are hereby dismissed.
N.H.Q./M.A.K./95/SC(AJ&K)
Order accordingly.