MUHAMMAD SALEEM Versus STATE

SHER ZAMAN CHAUDHRY. ‑--These two appeals by leave are directed against the orders of the High Court passed on 10‑12‑1980 and 9‑12‑1950. A question of law, common to these appeals requires determination. Since these appeals were heard together these will therefore be disposed of by this single judgment.

2. Muhammad Saleem and others are facing trial before the District Criminal Court Mirpur under sections 4/5, 14/15 of Islamic Penal Laws Enforcement Act, (hereinafter called the Act) read with sections 148/149 A.P.C. whereas Fazal Dad and others were sent to face trial in the Tehsil Criminal Court Mirpur under sections 14/15 of Islamic Penal Laws Act read with sections 148/ 149 and section 430 of Penal Code. The case against Muhammad Saleem and others was that they being armed with fire arms attacked the complainant party and started firing with the intention to kill as a result of which one from amongst the complainant party lost his life and others got injured. The charge read over to them was that they, in furtherance of common intention and in prosecution of common object to kill with malice aforethought started firing on the complainant party as a result of which one from amongst the complainant party got killed and others were injured as such they have committed the offence under sections 4/5, 14/15 of the Act read with section 148, 149 Penal Code. Similarly the appellants Fazal Dad and others were accused of attacking and inflicting injuries and charged under sections 14/15 read with sections 148/149, Penal Code.

3. During the pendency of trials appellants accused in both the cases moved applications under section 561‑A, Cr. P.C. in the High Court for the quashment of their trials on the grounds that since offences under sections 148(149, P.C. are not covered under the provisions of the Act, their trials by the District Criminal Court and the Tehsil Criminal Court were therefore illegal and without jurisdiction. Both the petitions were rejected. The petition of Muhammad Saleem and others was rejected on 10‑12‑1980 whereas that of Fazal Dad and others was dismissed on 9‑12‑1980. Except that in the case of Fazal Dad and others the learned High Court, finding that incident giving rise to the offence under section 430, P. C. was separate and independent one, ordered a separate trial by an ordinary Court of Criminal Jurisdiction‑--The correctness of both these orders of rejection is now being challenged by the appellants.

4. Mr. B. A. Sheikh the learned counsel for the appellants argued :‑

(a) that offences under sections 148/149, P. C. being beyond the scope of provisions of Islamic Act, were not triable by the Courts set up under the Act. It is only those offences specifically mentioned in the Act to try which was within the jurisdictional competence of the Courts set up under the Act. Despite the addition of section 23 subsection (1) (a) & (b) by virtue of sec tion 2 of the amending Ordinance of 1980, offences under sec tions 148/149, P. C. still stayed outside the scope of the Act. These offences were neither triable by these Courts before the addition of this newly‑amended section nor could these be brought within the ambit of the Act after the addition. No action amounting to an offence, under Penal Code according to the learned counsel, could be regarded as coming within the scope of amended provisions unless and until such action in the first instance constituted an offence under the Act as well. Since sections 148/149 of Penal Code are not offences under the Act, the trial by the District Criminal Court and the Tehsil Criminal Court under these offences along with sections 4/5 and 1.4/15 of the Act was not competent. The proceedings taken thus far are vitiated ; and

(b) that even if it be assumed that these offences were brought within the ambit of the Act by virtue of this new amendment, this new provision along with its validating clause could not be given effect on account of its being an ex post facto legislation and violative to the fundamental rights guaranteed under the Interim Con stitution Act of 1974. The points involved, it was submitted, were not properly attended to by the learned High Court. Neither the correct rules of interpretation were observed nor were the points raised by the appellants properly considered. The orders under appeals were, therefore, not in accordance with law. Reliance was placed on Ahmad Khan v. Commissioner, Rowal pindi Division and another (P L D 1965 Pesh. 65) Rehmatullah Khan and others v. The State and others (P L D 1965 Pesh. 162), Khizar Hayat and 5 others v. The Commis sioner Sargodha and another (P L D 1965 Lah. 349) and Muhammad v. Muhammad Raza, C. S. P., Commissioner, Sargodha Division and another (P L D 1965 Lah. 692) Syed Shaukat Hussain Rizvi v. The State (P L D 1965 Kar. 362), Hassan and others v. Fancy Foundation (PLD1975SC1) and Azad Government of the State of Jammu and Kashmir and 5 others v. Kashmir Timber Corpora tion, Muzaffarabad and 5 others (P L D 1978 S C (AJ&K) 42).

5. While defending the impugned orders the learned Advocated General submitted that the language employed in the newly‑inducted section was clear and admitted no such interpretation as claimed by the learned counsel for the appellants. The offences under sections 148 and 149 were fully covered under this provision. Validation clause could not be regarded as ex post facto legislation or that it was violative to the fundamental rights. While adopting the reasoning advanced by the learned Advocate General, Mr. Muhammad Taj Chaudhry, the learned counsel for the complainant further submitted that apart from the amended provisions in the Act, the Courts set up under the Act, even otherwise were competent and had the jurisdiction to hold the trial for offences under the Act read with sections 148 and 149 of the Penal Code.

6. Before going into the merits of the points requiring determination and for their better appreciation it may be stated that in pursuance to the constitutional provisions that no law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah, Legislature enacted the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974. Under the terms of section 23 (1) of the Act all the offences provided for in the Act were exclusively triable by the Courts constituted under the Act. The offence of murder is one of those offences and exclusively triable by the District Criminal Court. Then through an amending ordinance of 1980, an addition to section 23 (1) was made in shape of section 23 (1) (a) and (b) which reads

7. There is no quarrel with the proposition that when the language used in a statute or in any provision of it, is so clear and unambiguous, it ought to be given its plain dictionary meaning. But the point requiring determination is as to whether the language of amended provision of the A Act admits such a conclusion or inference as claimed by the learned counsel. The plain reading of the relevant provision makes it sufficiently clear that from the language employed no such inference or conclusion was possible the accusation against the appellants accused was that after having armed themselves they joined together and in furtherance of common intention and in prosecution of common object, they all opened the attack on the complainant party as a consequence of which one person was killed and others got injured. While acting in preconcert, they attacked and inflicted injuries. This act, apart from being an actus reas was also a clear manifestation of their mans rea. A‑11 the acts of the appellants committed during that single transaction constitute the offences under sections 4/5 and 14/15 of the Act. Besides, these acts also constitu ted offences under sections 148 and 149 P. C. So therefore, it could not be said that offences under sections 148 and 149, P. C. were not within the scope of amended provision of the Act.

8. Besides, it may also be stated that section 149 is only an enabling provision. It does not create or give birth to any substantive and independent offence nor could any one be tried for this offence alone. It merely provides the punishment prescribed for the offence committed. While interpreting a statute or any of its provisions, the Courts, apart from following plain dictionary meaning rule' must also not be oblivious of another equally important rule of construction i.e. to see as to what was p the object, of the legislation and the mischief which was intended to be suppressed. Assuming that the interpretation put forward on behalf of the appellants was also possible even then in case where more than one interpretations are possible then that construction which carries into effect the object of statute ought to be preferred. So therefore on proper construction newly‑added provision would also cover the offences under consideration.

8. Ordinarily where several persons joining together and committing] an offence will be charged and tried together for the offences committed read with section 149 of P. C. by a competent Court of Criminal Jurisdiction. Since the jurisdiction of these ordinary Courts was expressly barred by the Act, in respect of all those offences provided for under the Act, this amendment wa6s effected to prevent an escape of those who were otherwise guilty. So it was rather a legislation which removed an anomally. Surely Legislature could not have intended to provide an escape to those who might otherwise be guilty. The Courts should, of course, short of giving a meaning not warranted by the language used in the statute, observe the rule of beneficial construction which would advance the object of legislation rather than the one which would defeat it. In the view of the matter, newly‑added section 23, sub‑section (1)(a) and (b) in it scope is wide enough to cover the offences under sections 149 and 148, etc. The submissions made on behalf of the appellants on th point are, therefore, without any force.

9 There is yet another aspect of this case of vital importance needing determination. Assuming that the newly‑added section is not wide enough to cover the offences under sections 149 and 148 of the Penal Code than the question would be as to whether the trial for offences under sections 4/ and 14/15 of the Act read with section 149 etc. Penal Code by the District Criminal Court, was still competent. It was urged by Mr. Muhammad Taj Chaudhry; the learned counsel for the complainants that apart from this newly‑added section even otherwise the Courts constituted under the Ac had the jurisdiction to try the accused for offences under consideration the acts committed during the same transaction constituting offences under the Act also amounted to offences under the Penal Code. On careful examination of the proposition we find ourselves in agreement with the learned counsel for the complainant on the points for the following reasons :‑

(a) that section 23 sub‑section 1 is the only jurisdictional provision in the Act conferring the exclusive jurisdiction on the Courts constituted under the Act in respect of offences listed in the Act. The section reads :‑

Notwithstanding anything contrary contained in the Cr. P. C or in any other law in force, the offences and provided under the Act shall only be triable by the District Criminal Court of any other person or persons so authorised specially by the Government i.e. Tehsil Criminal Court.

Section 23(1) of the Act is jurisdictional provision whereas section 32 of the Act is an enabling one salutary in nature. Putting both these provisions i.e. section 23 subsection (1) and section 32, sub‑sections I and 2 of the Act in juxtaposition would provide a complete answer to the proposition at hand.

(b) For the proper appreciation of the point in issue section 32 sub sections (1) and (2) are reproduced as :‑

10. The distinction between these two provisions in the Act, although very subtle, is yet very important as the results ensuing from each distinctly different. So it must clearly be maintained and understood. The failure to do so is bound to lead to erroneous conclusion and in to resulting into the miscarriage of justice. Former confers exclusive jurisdic tion on the Courts set up under the Act to hold trial in respect of offence mentioned in the Act whereas latter clarifies the position with regard to those offences which though arising out of the same incident which cons tituted offences under the Act, bit for the trial of which there is no clarification provided in the Act. In a case where for example several accused armed with deadly weapons, acting in preconcert and in further ance of common intention kill a person, obviously the offence committed would be under sections 4/5 of Islamic Act. The difficulty would however, arise in applying section 34 or section 149 of Penal Code along with sec tion 4/5 of the Act as there being no specific mention in the Act on the subject. It is this sort of difficulty for the solution of which section 32 has been provided for in the Act.

11. For the foretasted reasons we, therefore, find that assuming that the newly, added section 23, subsection 1(a) and (b) does not cover the offences under section 149 etc. (it in fact does cover) still the Courts constituted under the Act had the jurisdiction to hold trial for the offences.

12. We have carefully gone through the case law referred to by the learned counsel for the appellants and have examined the facts of those cases and relevant provisions of law involved. There is marked qualitative difference between the legal proposition evolved in those cases and the one now under consideration e.g :‑

(a) under the Islamic Penal Laws Enforcement Act not only different forums to hold trials have been provided but also the offences triable by these forums have been defined whereas under the West Pakistan Criminal Law Amendment Act of 1963, only a different tribunal was created. The offences were still those as contained in the Penal Code. Only some of the sections of the Penal Code were listed in the schedule in respect of which the Commissioner could refer the case for trial to the tribunal ;

(b) section 23 (1) of the Azad Jammu and Kashmir Act in its amended form has a saving clause as section 23 (I),(b) which expressly validates the proceedings already taken. Whereas no such pro vision was claimed by the learned counsel, to have existed in respect of cases referred to by him ; and

(e) that even otherwise section 32 (1) & (2) was an enabling section ‑in the Act. Under section 23 (1) read with section 32, subsections (1) & (2), actions amounting to offences under the Act if also cons titute a different offence under the Penal Code then all were triable by the Courts constituted under the Act. There existed no such provision of like nature in the West Pakistan Criminal Law Amendment Act, 1963 in respect of offences triable by the tribunal. The facts listed and law laid down in those cases, relied upon by the learned counsel for the appellants are, therefore, quite distingu ishable and have no relevancy with the proposition now under consideration.

13. Lastly on the point of ex post facto legislation which is as to whether section 23, subsection (1) (b) was in the nature of ex post facto legislation and violative to the fundamental rights guaranteed under section 4, subsection (4) (4) of the Interim Constitution. It may be stated that every law that makes an action done before the passing of a legislation and which was innocent when done, criminal and punishes such action, every law that aggravates a crime or makes it greater than it was when committed, every law that changes or increases the punishment from the one previous to the new law would be regarded as an ex post facto legisla tion. In this view of the matter clause (b) of section 23 (1) could not be regarded as offending against the fundamental rights. On the contrary it removes an enomally. The offence under section 149 of Penal Code as already stated in the earlier part of this judgment is not a substantive offence No trial in a regular Court could be based on it alone. The amended section of the Act does not create a new offence. It was already an offence existing on the statute book and triable, along with the offences committed, by an ordinary competent court of criminal jurisdiction. The newly‑added section therefore, could not be regarded as an ex post facto legislation. To hold otherwise, would indeed provide escape to those otherwise guilty, to go free. The fundamental rights enjoyed by a citizen surely do not include such an immunity.

The orders under appeals are well considered and in accordance with law. We do not find any fault in the impugned orders. The appeals, having no force, are therefore, dismissed.

Appeal dismissed.