EID WALI Versus STATE

This appeal, preferred by the State, is directed against the order of the District Court of Criminal Jurisdiction, Muzaffarabad passed on 18‑7‑1982 whereby the respondents (accused persons) have been allowed pre‑arrest bail. The complainant Sarfaraz Mir has also applied for quashing tile order of the pre‑arrest bail allowed to the accused by the District Court of Criminal Jurisdiction. This order shall dispose of both the cases.

2. The brief facts as‑ mentioned in the judgment of the High Court, in the writ petition entitled Ghulam Rasul Mir v. The Azad Government and others, decided on 25‑9‑1982, are that,

A criminal case under sections 4/5 of the Islamic Penal Laws Act of 1974 was registered at Police Station, Muzaffarabad city on 22‑6‑1982 at about 9‑30 p.m. on the basis of F. I. R. lodged by one Sarfaraz Mir. According to the F.

1. R., complainant Sarfaraz Mir was informed on 22‑6‑1982 at about 9 p.m. by one Shaukat son of Ghulam Nabi that War Iqbal and Tariq Iqbal, two brothers, had been murdered on the said date at about 8‑30 p.m. The motive for murder as stated in the F. I. R. is that on 20‑6-1982, non‑petitioner Irfan Ashraf and Arshad Durani gave beating, to one Gulzar Mir which subsequently gave rise to the various incidents detailed in the F. I. R. and consequently Javed Durrani and others non‑petitioners became inimical towards the deceased and thus they had a hand in the murder of above‑mention two brothers.

3. The date of occurrence is 22‑6‑1982. A case was registered against the accused under section 4/5 Islami Tazeerati Qawaneen Nafaz Act (here inafter to be called the Act) read with section 302, Penal Code on the complaint of Sarfaraz Mir. The date of F. I. R. is 22‑6‑1982. On 30‑6‑1982 the police came to the conclusion that there were no two male Muslim witnesses in this case, so the investigation was changed from an offence under section 4/5 of the Act to an offence under section 302 of the Penal Code. The police presented an incomplete challan against they following persons before the Sessions Judge, Muzaffarabad on 11‑7‑1982:‑‑

(1) Javid Durrani son of Akbar Durrani;

(2) Amjad Hussain ;

(3) Abdul Majeed son of Muhammad Hussain, and

(4) Dilbauar Awan son of Haji Hidayatullah.

4. No challan has been presented against the accused respondents before the Court of Sessions Judge till now and their criminal liability (involvement in the murder case) is yet to be determined by the Police.

5. Irfan Ashraf moved an application for his pre‑arrest bail under section 498, Cr. P. C. for offences under section 45, Islami Tazeerati Nafaz Act on 4‑7‑1982. The other four accused moved their applications for, pre- arrest bail on 7‑7‑1982. The learned members of the District Court., of Criminal Jurisdiction passed an order of ad interim bail on 7‑7‑1982. his order later on was confirmed by the District Criminal Court on 18‑7‑1982.

6. Raja Mumtaz Hussain Rathore, the learned counsel for the respon dents, raised a preliminary point that this Court has got no jurisdiction to hear and decide this case, as I was not appointed as a Judge of the High Court before my appointment as an Ad hoc Judge of the Shariat Court. He referred to subsection (8‑A) of section 3 of the Azad Jammu & Kashmir Shariat Court Ordinance of 1982 which was incorporated by way of an amendment mad on 28‑2‑1982.

7. Subsection (8‑A) of section 3 of the Ordinance reads as follows

"(8) At any time when the Chairman of the Shariat Court is unable to hear and decide a particular case for any cause the senior member of the Court shall act as Chairman and in case of a member, the Chairman shall request the Chief Justice of High Court to nominate a Judge of High Court to sit and act as a member of the Court."

8. The learned counsel for the respondents contended that according to this amendment, the learned Chief Justice of the Shariat Court has to request the learned Chief Justice of the High Court to nominate a Judge of High Court to sit and act as a member of the Shariat Court. According to him, as the learned Chief Justice of the Shariat Court and the other learned Ad hoc Judge of the Shariat Court were unable to hear this particular case and, therefore, under the subsection (8‑A) only a Judge of the High Court could be appointed as a Judge to hear and decide this case. I want to make it clear that the "Chairman of the Sharlat Court" is now called the "Chief Justice of the Shariat Court" and the two offices, that is, those of Chief Justice of the Shariat Court and the Chief Justice of the High Court are occupied in Azad Jammu & Kashmir by one and the same person i.e. my learned brother Sardar Muhammad Sharif Khan. Khawaja Shahad Ahmed Advocate, on behalf of the complainant, replied that the life of the Ordinance LVIII of 1982 (promulgated on 28‑2‑1982) was only four months and that the expired law is not applicable as it is dead letter now. He produced the Azad Jammu & Kashmir Shariat Court Ordinance of 1982 promulgated on 13‑6‑1982) wherein subsection (8‑A) has not been incorporated or repealed.

9. The section 3 of the Azad Jammu & Kashmir Shariat Court Ordinance of 1982 (hereinafter to be called the Ordinance) as it exists today reads as follows

"3. The Azad Jammu do Kashmir Shariat Court.‑(1) There shall be constituted for the purposes of this Ordinance a Court to be called the Azad Jammu & Kashmir Shariat Court.

(2) The Court shall consist of two Muslim Judges including the Chief Justice to be appointed by the President.

(3) The Chief Justice shall be person who is, or has been or is qualified to be a Judge of the Supreme Court and a Judge shall be a person who is, or has been or is qualified to be a Judge of High Court.

(4) The Chief Justice and a Judge shall hold office for a period not exceeding three years

Provided that a retired Judge appointed as Chief Justice or Judge shall not hold office later than three years from the date of his retirement.

(5) The Chief Justice if he is not a Judge of the Supreme Court and Judge who is not Judge of the High Court, may by writing under his hand addressed to the President; resign his office.

(6) The principal seat of the Court shall be at Muzaffarabad.

(7) Before entering upon office, the Chief Justice and a Judge shall make before the President or a person nominated by‑him oath in the form set out in the Schedule.

(8) At any time when the Chief Justice or a Judge is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as Chief Justice or, as the case may be, the Judge.

(9) At any time when the Court is not complete or it is not possible for want of quorum of Judges of the Court to hold or continue any sitting of the Court or for any other reasons‑if is necessary to increase temporarily the number of Judges of the Court the Chief Justice may in writing with the approval of the President request a person who is duly qualified for appointment as Judge of the Court, to attend the sitting of the Court as an ad hoc Judge for such period or such cases as may be necessary and while so attending an ad hoc Judge shall have the same powers and jurisdiction as are vested in the Judge of the Court.

(10) (i) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of High Court.

(ii) A sitting Judge if appointed as Chief Justice or Judge of the Shariat Court shall be entitled to the same salary, allowances, privileges as are admissible to such Judge, before appointment as Chief Justice or as the case may be, the Judge in the Shariat Court."

10. It is clear, therefore, that subsection (8‑A) of section 3 stands deleted in the Ordinance, which was promulgated on 13th June, 1982, and the B new Ordinance No. CC'XI of 1982 which is the law today also does no contain subsection (8‑A) of section 3.

11. The Azad Jammu & Kashmir Government made "Azad Jammu & Kashmir Procedure Rules of 1982 (hereinafter to be called the Rules) which came into force on l1th July of 1982. Rule 4 is reproduced as under:

Constitution of Benches:

(2) (a) A petition fixed for regular hearing shall be heard by Bench consisting of not less than two members;

(b) An appeal fixed for regular hearing shall ordinarily be heard by a Bench consisting of not less than two Members but it shall be heard by a Single Judge if so directed by the Chief Justice.

(c) A reference shall be heard by a Bench consisting of not less than two Members but it shall be heard by a Single Bench if so directed by the Chief Justice, and

(d) An Application for bail and a revision petition or any other miscellaneous application shall ordinarily be heard by a Single Bench but it shall be beard by a Division Bench if so directed by the Chief Justice.

(3) An application for stay of execution of sentence or for bail shall be laid before the Chief Justice or, in his absence, the Judge of the Court present at the principal seat if the Court, or, as the case may be, at the place other than the principal seat of the Court.

(4) Where a Bench is of the opinion that a petition, appeal or reference should be heard by a larger Bench, it shall record its reasons and refer such petition, appeal or reference, as the case may be, to the Chief Justice for nomination of such Bench.

12. Therefore, this appeal and revision petition can be disposed of by me because subsection (8‑A) of section 3 does not find its place in the new Ordinance.

The present law makes a person qualified to be a Judge of High Court (and not a Judge of High Court necessarily) competent to be appointed as an ad hoc Judge of the Shariat Court by the President of the Azad Jammu & C Kashmir. As an Advocate of twenty‑eight years' standing (besides two years of leadership), I am qualified to be a Judge of High Court. Raja Mumtaz Hussain Rathore Advocate, when confronted with the up‑to date law, that is, section 3 subsections (3) and (9) of the Ordinance and rule 4, 2, (b) and (d) of the Rules, bad no reply and withdrew his objection with regrets.

13. The learned Additional Advocate‑General raised the following 3 points:‑‑

(1) That the District Court of Criminal Jurisdiction, Muzaffarabad has got no jurisdiction to grant pre‑arrest Bail in favour of the respondents as the pre‑arrest bail could be granted by the Sessions Judge alone in this case;

(2) That the District Court of Criminal Jurisdiction has discussed the facts and decided the bail applications on merits at this stage which he could not do under law; and

(3) That an offence in which sentence of death or transportation of life can be awarded, pre‑arrest bail cannot be allowed.

His prayer, therefore, was that the order of the learned members of the District Court of Criminal Jurisdiction, Muzaffarabad passed on 18‑7‑1982 may be vacated. He contended that this was a case under section 302 of the Penal Code and, as such, only the Sessions Judge was authorised under law to grant pie‑arrest bail to the respondents.

14. The point of jurisdiction requires to be decided first, and, therefore, I propose to take up only the first point and would like to leave the other two points untouched.

15. The learned Additional Advocate‑General referred to the several provisions of the Act IX of 1974 (Islami Tazeerati Qwaneen Nafaz Act of 1974 (hereinafter to be called as the Act) and submitted that only the cases of Hudood and Qasas are triable by the District Court of Criminal Jurisdiction.

16. As far as the jurisdiction of the District Court of Criminal Jurisdic tion is concerned, it was submitted that sections 23, 24 and 25 of the Act are relevant. These three sections are reproduced as under:‑

16. The Act gives jurisdiction to the District Court of Criminal Jurisdic tion to hear only the cases of Hudood and Qasas. If during the commission of an offence falling under this category, the accused is also found guilty of some other offences under the Penal Code, those offences shall also be liable by the District Court of Criminal Jurisdiction. Morever, if at the conclusion p of the trial, the Court comes to the conclusion that the accused is not liable to be awarded the sentence of Hadd or Qasas, he may be awarded any other sentence according to the law of the land or the Penal Code. This is clear from the following case:‑

17. Muhammad Imtiaz v. The State (P L D 1979 Azad J&K1 (10‑11)):

This is a case of murder of one Muhammad Zahoor of Chikar Police Station who was murdered by Muhammad Imtiaz. The District Court of Criminal Jurisdiction sentenced him to death by chopping off the head with sword. This sentence was confirmed and his appeal was rejected by the High Court. He went up in appeal to the Supreme Court which maintained the conviction. As this was a clear case of Qasas and there were three male credible eye‑witnesses in support of the charge of murder so the sentence of Qasas was passed. Ch. Rahim Dad Khan, C. J. (as be then was), in his judgment, observed at page 10:‑

"In view of what has been stated above I am of the opinion that when an offence of murder is proved against a person in accordance with the rule of evidence prescribed by Shariah Laws then the only punishment that can be awarded under Islamic Penal Laws Application Act is 'Qisas', i.e. taking life for life and‑not imprisonment. The exceptions contained in section 24 of Islamic Penal Laws Application Act, 1974, have no application in the instant case because there are three male credible eye‑witnesses in support of the charge of murder and there is no other circumstance justifying any leniency or any other sentence than the sentence of 'Qisas'. A sentence of imprisonment can be awarded only in those cases where the quantum of proof in support of the offence falls short of the requisite standard or for any other particular reason the act does not fall within the ambit of the offence of murder the 'Qisas' is dropped down. Besides, as discussed above, there is no reason for a lesser sentence in this case even under normal law."

The other learned Judge, Mallick Muhammad Aslam Khan. (now retired), who wrote his separate judgment, opined that in his view the sentence of transportation for life was the proper sentence. His observations from page 11 are reproduced as under:‑

"For determining the meaning of the term 'Qasas' and the sentence that can be awarded under the Act, we will have to confine ourselves within the compass of the Act. Section 2(9) of the Act defines the term 'Qasas' as 'Qasas' means that punishment for commission of murder and causing injury in which equality and similarity is possible". Section 3 enumerates the penalties that can be passed under the Act, which inter alia, include death sentence, Qasas and all kinds of imprisonments. Section 4 of the Act while defining wilful murder lays that it is subject to the exceptions provided in section 300 of the Pakistan Penal Code. Section 5 of the Act provides punishment of `Qasas' for wilful murder. Section 24, which I think, is very much relevant and applicable to the circumstances of this case, empowers the Court to award any alternate sentence enumerated in section 3 of the

Act where the Court comes to the conclusion that punishment of 'Qasas' cannot be inflicted either due to the number of witnesses falling short of the fixed 'Nisab' or their integrity not coming up to the required standard under 'Sharah' or where the Court, due to the circumstances of the case, does not consider it proper to award the sentence of 'Qasas' due to the other circumstances of the case. In view of these provisions of the Act it is clear that the Court can pass life imprisonment or any other sentence as provided under section 3, if it comes to the conclusion that due to the circumstances of the case it will not be proper to punish with 'Qasas' even in murder case. In my view the present case is the one in which the provisions of sec tion 24(i) read with section 3 of the Act are fully attracted for awarding life imprisonment instead of that of 'Qasas' even though the appellant was challaned and convicted under section 5 of the Act."

18. The learned Additional Advocate‑General submitted that this is not a case of wilful murder falling into the category of Qasas. It is purely a case of murder falling under section 302 of the ‑Penal Code. . He cited a recent ruling of our Supreme Court i. e. Criminal Appeal No. 19/Mzd. of 1979 entitled. Muhammad Sadiq v. The State decided by the Azad Jammu & Kashmir Supreme Court on 16‑9‑1982 and contended that the impugned order of the learned District Court of Criminal Jurisdiction was coram non judice because the said Court was not competent under law to grant pre‑arrest bail to the accused‑respondent, in the case of section 302 of Penal Code.

19. The learned counsel for the respondents, Mr. Raja Mumtaz Hussain Rathore, Advocate raised the following points:‑

(a) That the District Court of Criminal Jurisdiction has got the jurisdic tion to grant pre‑arrest bail under section 23(1) of the Islami Tazeerati Qawaneen Nafaz Act read with section 498 of the Criminal Procedure Code;

(b) That the mere association of the District Qazi does not render the judgment void;

(c) That it is not necessary for the purpose of bail that the Court should have jurisdiction to try the case because the powers of the District Court of Criminal Jurisdiction under section 498, Cr. P. C. are very wide.

(d) That even if the District Court of Criminal Jurisdiction has got no jurisdiction, it is at best an irregularity which is curable under sec tions 529(e) and 537 of the Criminal Procedure Code; and

(e) Lastly, the Shariat Court under its inherent powers which are available to it under section 561‑A, Cr. P. C. may allow pre‑arrest bail to the respondents.

20. 1 do not know as to when the question of jurisdiction first arose in the, legal history but I can confidently say that it is referred to in the, "New Testament". Reference is made to Luke 23:6 and 7:

"Luke 23:6.‑When Pilate heard this, he asked if the man were a Galilean.

7. ---‑‑So when he learned with certainty that he belonged to Herod's jurisdiction, he sent him up to Herod, for he was in Jerusalem at that time."

It was a case of territorial jurisdiction.

21 It is the normal practice that the question of jurisdiction is decided first.

In A I R 1952 Trav.‑Co. 125 it is observed :‑

"Jurisdiction is at the threshold of action and, therefore, must when questioned, ordinarily be first decided and entry into the merits must await a decision in the affirmative. In cases of inherent absence, omission to raise or press want of jurisdiction or even express consent to its exercise cannot confer it, and any act done would be `ultra vires' and of no effect."

In P L D 1970 Azad J & K 15 it is observed:‑

"It is the normal practice that the question of jurisdiction should first be decided by the trial Court."

Both the cases cited above are civil cases but this principle is also applic able to the criminal cases.

22. The meanings of jurisdiction:

The word "Jurisdiction" as it appears in the Encyclopaedia‑Britannica Vol. 13, page 149 means, in general, limits within which governmental authority especially of Courts, may be exercised:

A preliminary question which must be disposed of before the question of jurisdiction over persons and things is reached is whether the Court is authorized by the Government which created it to try the type of case in question. This is sometimes called the: question of jurisdiction 'over the subject‑matter', 'although on account of confusion with the concept of jurisdiction over things, this phrase is yielding to the terms 'competence'. 'Thus an inferior Court, established to decide small claims in contract and tort, would be incompetent to award a divorce.

Jurisdictions means the power to enquire into the facts, to apply the law and to declare the punishment for an offence in a regular course of judicial proceedings: A I R 1955 All. 113(118).

In G. Muhammad Ayyub Khan v. The Custodian, Evacuee Property (P L D 1963 Kar. 551(565)) it has been observed by Qadeeruddin, J.

The expression 'jurisdiction' may be accepted to include 'assumption and exercise of jurisdiction' because no authority can be said to have exercised its jurisdiction if it was prevented from knowing the true facts, if it took for a material fact what was not in law that fact ; if it proceeded to act in grave and obvious disregard of a material provision of law ; if it exercised a discretion without the existence of the situation in which it could be exercised ; if it violated the principles of natural ju3tice when the law had not permitted it to do so, and if it gave reasons for its conclusions which could not in those circumstances, rationally lead to them. This is not an ‑exhaustive list of those instances in which defective exercise of jurisdiction may be successfully pleaded but it is sufficiently elaborate."

In P L D 1968 Dacca 329 the meaning of jurisdiction is given as below:‑

"Well‑laid judicial principle is that a Court is said to have jurisdiction if it can be said that it has the power to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it, in other words, by jurisdiction is meant the authority which is conferred upon a Court to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.

In P L D 1973 S C 49 (69‑70)G: This word has been defined as below:‑

"It may well be asked at this stage as to what is meant by" jurisdiction ? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus, it may provided that the Courts set up will exercise revisional or appellate powers or only act as a court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its writs shall run. It may specify the persons in respect of whom the judicial power to bear and determine will be exercisable. There are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject‑matter‑ over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a, right to adjudicate concerning a particular subject‑matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court."

In PLD1982SC(AJ&K)112(120):

Our Supreme Court has also defined this word. Raja Muhammad Khurshid Khan, Actg. C J. has observed in para. 16

"Firstly, let us see what do we mean by 'jurisdiction'? 'Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. In other words, by 'jurisdiction' it is meant the authority by which a Court has to decide matters that are litigated before it or to take cognizance of makers presented in a formal way for its decision. An examination of the cases discloses numerous attempts to define the term 'jurisdiction', which has been stated to be the power to hear and determine issues of law and fact. Bindra, in his book Inter pretation of Statutes and General Clauses Act, Third Edition 1961 dealing with the word 'jurisdiction' says that the word 'jurisdiction' means‑ "that authority by which the judicial officers take cognizance of and decide causes' ; 'the authority to hear and decide a legal controversy' ; 'the power to bear and determine the subject‑matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them' ; 'the power to hear, determine and pronounce judgment on the issues before the Court' ; 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgment into effect' 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into, execution."

23. Jurisdiction is given to the Court by the statute which creates it.

In Azad Jammu & Kashmir, all cases of Hadood and Qasas are triable by District Court of Criminal Jurisdiction and minor offences falling under the Islami Tazaerati Nafaz Act, 1974 are triable by the Tehsil Court of Criminal Jurisdiction. The District Court of Criminal Jurisdiction is constituted of District Qazi and Sessions Judge while the Teshil Court of Criminal Jurisdiction is constituted by a Tehsil Mufti and Magistrate Ist Class. In Pakistan, the cases of Hudood and Qasas are triable by the Sessions Judge alone. A decision of the Tehsil Court of Criminal Jurisdiction in Azad Kashmir is appealable before the District Court of Criminal Jurisdiction. A revision lies to the Shariat Court against an interlocutory order passed by a Tehsil or District Court of Criminal Jurisdiction to the Shariat Court and a further appeal lies to the Supreme Court from a judgment or an order passed by the Shariat Court. The District Court of Criminal Jurisdiction is competent under law to pass any sentence under section 3 of the Act in case it is found that there are no two Muslim adult and just male witnesses in the case or for some other cause. So the District Court of Criminal Jurisdiction may award the sentence of death try hanging by neck till death, imprisonment for life, or any other proper sentence according to the circumstances and facts of the case. But the cases which fall under the categories of Tazeer or certain offences which axe mentioned in the Penal Code (including section 302, P. C.) are triable by the Court of Session. If a challan is put up before the Sessions Judge under section 302, Penal Code, the District Qazi does not sit with the Sessions Judge. The District Qazi sits with the Sessions Judge only when a case under the category of 'Hudood' and 'Qasas' is brought before the District Court of Criminal Jurisdiction. In the present case, although initially the Police started investigation under section 4/5 of the Act considering it to be a case of 'Qisas' but the Police, soon afterwards, became wise and converted the offence of 'Qisas' into that of murder under section 302, Penal Code because K the required number of two Muslim male witnesses is not available in the instant case. The police presented an incomplete challan against certain accused persons before the Sessions Judge and not before the District Court of Criminal Jurisdiction which fact shows without any shadow of doubt that the. Police is going to present the complete challan under section 302, Penal Code before the Sessions Judge in this case. I have enquired from the police and one of the members of the investigation team, who brought the police diaries before me, informed me that the challan is going to be presented soon under section 302 of the Jammu & Kashmir Penal Code. He has further informed me (and I have checked the Police diaries myself) that even the new investigation team has not been able to find two male eye witnesses in this case. It is, therefore, strange that when the learned members of the District Court of Criminal Jurisdiction called for the police record and examined it, they failed to see that this was a pure case of murder under section 302, Penal Code, and not a case under section 4/5 of Islami Tazeerati Nafaz Act. The learned District Judge, who has written a lengthy judgment of 20 typed pages and has mentioned more than once in it that he examined the police diaries very carefully, failed to see that the police had converted the offence of 'Qasas' into one under section 302, Penal Code. The other learned member of the Court i.e. the District Qazi has only signed the judgment and does not appear to have applied his mind to the case.

24. On the point of jurisdiction, the learned counsel, appearing on behalf of the complainant, Khawaja Shahad Ahmed, has cited the following authorities: ‑

(1) P L D 1972 S C 271.

(2) P L D 1971 S C 124 (197)

(3) 1970 P Cr. L J 1181, 1185 and

(4) 1982 P Cr. L J 1287.

25. It is important to note that there is difference between lack of juris diction, ouster of jurisdiction and illegal or irregular exercise of jurisdiction. Irregularity of jurisdiction or wrong exercise of jurisdiction does not make the order a nullity in the eyes of law. In Raunaq Ali's case (t), it is observed a page 257 : ‑

"Where a Court or tribunal has acted wholly without jurisdiction or taken any action beyond the sphere allotted to the Court or Tribunal by law, and therefore, outside area within which the law recognizes a privilege to err, then such action amounts to a usurpation of power un warranted by law and such an act is a nullity ; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever."

So, there is a distinction between an act wholly without jurisdiction ands, an act done in the wrong exercise of jurisdiction which is given in the following authorities :‑

(1) A I R 1952 Nag. 275 (paras. 18‑19).

(2) A I R 1952 Rai. 184 (para. 9).

(3) A I R 1952 Pepsu. 119 (124).

(4) P L D 1960 Kar. 908.

(5) P L D 1964 S C 97 (101) C & D.

(6) P L D 1973 S C 236.

(7) Muhammad Sadiq v. The State P L D 1983 S C (A J & K) 276, decided on 16‑9‑1982, para. 10.

In A I R 1952 Nag. 275 (paras. 18‑19).

Para. 18 reads :‑

"Whether a Court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by that Court. As was pointed out by their Lordships of the Privy Council in Malkarjun v. Narhart 25 Bom. 337 (P C), there is a difference between want of jurisdiction and a wrong decision given when the Court has jurisdiction. If the Court has no jurisdiction at all, then all its orders are nullities and of no effect whatever; if the Court has jurisdiction, then the Court has jurisdiction to decide wrong as well as right.

If it decides wrong, the wronged party can only take the course prescribed by law for setting matter right; and if that course is not taken the decision, however wrong, cannot be disturbed."

Para. 19 is reproduced below :‑

"This classic distinction between want of jurisdiction and an incorrect order passed with jurisdiction has been recognised also by their Lord ships in subsequent cases to which we need not refer here. The authority to decide a case at all and not the decision given by it in the case is what makes up jurisdiction."

(1) P L D 1973 S C 236

In A I R 1952 Rai. 184 (Jaipur Bench) :‑Para. 9 reads :‑

"It is fundamental rule of law that the judgment of a Court without jurisdiction is a nullity. Want of jurisdiction is however distinguish able from an irregularity in the exercise or assumption of it and where the Court 'has no jurisdiction at all it cannot be conferred by consent. There is however an exception to this that where the Court has no jurisdiction because of the privilege attaching to a party, that party may waive the privilege."

It was also held, inter alia, by Ranawat, J. that the failure of the petitioner to take objection as to jurisdiction before the Custodian did not prevent him from challenging it in the application for a writ before the High Court. (Para. 9).

In A I R 1952 Pepsu 119 (124)

The difference between wrong assumption of jurisdiction and wrong exercise of jurisdiction has been highlighted in para. 7 :‑

"In disputes regarding jurisdiction, the distinction between wrong assump tion of jurisdiction and wrong exercise of jurisdiction must be kept in view. If the case is one of wrong exercise of jurisdiction, the civil Courts would be precluded from correcting the error, for when an authority has jurisdiction to determine a question then the determina tion of that question by it, however wrong to fact it might be, would be final and not liable to be agitated in a Court o general jurisdiction. So long as the jurisdiction of the special authority to determine a question is undoubted, the power of that authority to determine that question rightly or wrongly must also be undoubted. A wrong exercise of jurisdiction cannot, therefore, be set right by a civil suit."

In P L D 1960 Kar. 909 it was observed

"There is a sharp, if sometimes fine, distinction between jurisdiction and exercise of jurisdiction. Jurisdiction is the authority to bear and decided a question. It is sometimes exceeded in its exercise, but so long as a question is decided within the limits of a jurisdiction, it. is immaterial, from jurisdictional point of view, whether the decision is right or wrong. Unless jurisdiction is conferred by a provision of law the Civil Courts can check the errors of usurpation of power made by Revenue Courts or Officers, but not the errors of their judgment. Correction of the errors of their judgment is the obligation of the proper Courts or Officers in the hierarchy of the Courts or officers appointed under the legal system on the revenue side.

In P L D 1963 Kar. 383 (888) G : It was said :‑

"I may add by way of clarification that absence of jurisdiction is different from making a wrong decision in exercise of jurisdiction."

In P L D 1964 S C 97 (101) C & D :‑It was observed :‑

"The difference between a total lack of jurisdiction and an irregularity is sometimes one of degree and is a matter of difficulty. A reference to the provisions of section 115 of the Civil Procedure Code would show that every irregularity or even illegality' in the exercise of jurisdiction does not render the order void and without jurisdiction. The contents of section 115, Cr. P. C. are well‑known, but it would be convenient to reproduce them here.

"115. The High Court may call for the record of any case which has been decided by any Court and in which no appeal lies thereto, and if such subordinate Court appears‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in case as it thinks fit."

An order can under this section be attacked on three grounds and it is the assumption of the third ground that as exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice

In the case of Nawab Syed Raunaq All v. Chief Settlement Commissioner and 2 others (P L D 1973 S C 236). It was observed :‑

"It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then there is jurisdic tion to decide either rightly or wrongly, and merely a wrong decision without jurisdiction. To amount to a nullity, an act must be non existent in the eye of law; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction."

In Muhammad Sadiq v. The State (P L D 1983 S C (A3&K)276) decided on 16‑9‑1982, para. 10 reads :‑

"The accepted principle of law is that if a Court does not suffer from inherent want of jurisdiction but only the procedure or the mode of hearing it defective or irregular and a party joint issues and participates in the hearing without raising any objection about such a defect touch ing the jurisdiction, it cannot, later on, be allowed to turn round and challenge the jurisdiction of the Court when the case goes against it. But where there is a total lack of jurisdictions (as the case is before us) no amount of consent or participation in the proceedings, even without objection to jurisdiction can invest the Court with the jurisdiction which it never bad and consequently the question of waiver or estoppel, as contended by the learned Advocate‑(General would not arise. The decision of the Court in such a case will be a nullity in the eye of law; but not so when the‑ Court had the initial jurisdiction but adopts a defective procedure or mode of hearing without any objection from the party concerned. In the instant case, the District Court of Criminal Jurisdiction suffers from total lack of jurisdiction. The case only triable by the Sessions Judge and not by the District Court of Criminal Jurisdiction is only competent to hear a case which is triable under any of the penal provisions of Islamic Act. Since the District Court of Criminal Jurisdiction which decided the case, lacked the jurisdiction over the subject‑matter of a suit or causes the parties cannot, as hinted earlier, by their mutual consent convert it into a proper judicial process,"

26. The following authorities are helpful in deciding the point of jurisdic tion in this case :‑

(1) PLD1948PC11(16)D.

(2) P L D 1953 F C 125 (127).

(3) P L D 1960 S C 237 (248) G.

(4) 1970 P Cr. L J 1181 (1182 and 1185).

(5) P L D 1972 S C 271 (275).

(6) P L D 1980 Azad J & K 36 (38).

(7) P L D 1972 Lah. 195.

(8) PLD1981 SC(AJ&K)25para.7.

(9) 1981 P Cr. L J 415.

(10) P L D 1982 S C 169 (172) A.

(11) 1982 P Cr. L J 1287.

(12) Muhammad Sadiq v. State P. L D 1983 S C (A J & K) 276, paras. 11, and 12.,

P L D 1948 P C 11 (16) D

This is the case of Gokulchand Dwarkandas Morarka v. King. This was a criminal appeal (by leave) wherein the order of the Bombay High Court was set aside and the appeal was allowed whereby acquittal order passed by the City Magistrate of Sholapur was restored. Sir John Beaumont, who wrote the judgment, observed :‑

"It was argued by Mr. Megaw, though not very strenuously, that even if the sanction was defective the defect could be cured under the provisions of section 537 of the Code of Criminal Procedure which provides, so far as material, that no finding, sentence or order passed by a Court of competent jurisdiction shall be altered or recovered on account of any error, commission or irregularity in any proceedings before or during the trial, unless such error, omission or irregularity has in fact, occasioned a failure of justice. It was not disputed that if the sanction was invalid the Trial Court was not a Court of competent jurisdiction, but Mr. Megaw contends that there was in this case a sanction, and that the failure of the Crown to prove the facts on which the sanction was granted amounted to no more than an irregularity. Their Lord ships are unable to accept this view. For the reasons above expressed, the sanction given was not such a sanction as was required by clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 and was, therefore, not a valid sanction. Defect in the jurisdiction of the Court can never be cured under section 537."

P L D 1953 F C 125 (187):

This is the case of Asir‑ud‑Din Chowdhury v. Crown, in which the Magistrate framed charge against the appellant. It was held in this case :‑

(a) "An offence under section 21.8 of the P. P. C. is triable exclusively by a Court of Session. As soon as the Magistrate had framed a charge against the appellant of an offence under section 213 of the P. P. C. it was his duty to commit the case to the Sessions Court. Instead of doing so, he continued with the case, and after several hearings, convicted the accused under section 420 and sentenced him to 6 months' rigorous imprisonment and a fine of Rs. 200."

(b) It is obvious that the Magistrate had no jurisdiction at all to hear the case after the 7th of April 1949, and that all the proceedings taken by him after that date were void and without jurisdiction. The appellant, after a charge had been framed under section 218 of the P. P. C., was entitled to be tried by a Sessions Judge. The offence took place in Rajshahi District, and we are informed by counsel that in this district all sessions trials are held with the aid of a jury. The appellant has, therefore, been seriously prejudiced by being deprived, of a jury trial in the Court of Sessions.

(c) The fact that no objection as regards jurisdiction was raised by the accused person in the trial Court, before the Sessions Judge, or in the High Court, cannot in any way validate the proceedings in the Court of the Magistrate after the 7th of April, 1949. The failure of the accused to raise such an objection, or even his consent, cannot confer on the Magistrate the jurisdiction which he did not possess."

The case of Muhammad Ayub Khuhro (P L D 1960 S C 237).

"The case was whether the offence charged at all fell under the Hoarding and Black-marketing Order which the Special Judge could try or under Martial Law Regulation No. 20, which he could not try? If it was an offence under Martial Law Regulation No. 20 then only a High Court or a Court of Sessions was competent to try the same and not a Special Judge. The offence charged was under the Regulation. The trial by the Special Judge was, therefore, void, because, he was neither competent to take cognizance of nor to try offence under Martial Law Regulation. The offence took place in Rajshahi District, and we are informed by counsel that in this district all sessions trials are held with the aid of a jury. The appellant has, therefore, been seriously pre judiced by being deprived of a jury trial in the Court of Sessions."

Qari Mushtaq Ahmed v. Muhammad Ramzan and others (1970 P Cr. L J 1191)

This is a case of a Patwari of a Sargodha District who was alleged to have obtained a sum of Rs. 900 as mutation fee from respondent No. 2 in 1966. He filed an application under section 561‑A, Cr. P. C. for the quash ment of the complaint under section 420/406, P. P. C. pending against him in the Court of the Resident Magistrate Joharabad on the ground of incompetency of the learned 'Magistrate to try the case as it was exclusively triable by a Special Judge. His petition was accepted. Para. 2 reads :‑

"There being no dispute about the relevant facts that the petitioner was a public servant; that the offence under section 420/406, P. P. C. alleged to have been committed by him in the discharge of his official duties, is included in the Schedule attached to the said Act; that the learned Magistrate was not notified as a Special Judge, all the pro ceedings taken against the petitioner in this case were without jurisdic tion and void ab initio. It is also stated that no prior sanction had been obtained from the competent authority to prosecute the petitioner under the said charge." P L D 1971 S C 124 (127) C.

This is a case of Mansab All v. Amir. It is a civil appeal but basically a criminal case was subject of discussion in this case. The High Court had accepted the writ petition and held the order of Commissioner as void ab fnitio. An appeal in the Supreme Court failed and it was observed :‑ "it is an elementary principle that if a mandatory condition for the exercise of jurisdiction, by a Court tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and are without jurisdiction. The learned Advocate‑General fully supported this view and asked for dismissal of the appeal."

P L D 1972 Lah. 196.

This is a case of Zabtey Khan v. State. This judgment was written by Mr. Justice Attaullah Sajjad, Judge. Mr. Saeed Jqba1 Sbami who was not a Special Judge under the Criminal Law amendment Act, 1958 had no jurisdic tion whatsoever to proceed with the case, as the offence charged against Zabtey Khan and his co‑accused was an offence mentioned in the Schedule to the above Act. Zabtey Khan was a dispatcher whose appeal was allowed by the High Court. In this case two points were urged :‑

(1) Absence of sanction to prosecute ;

(2) Tribunal convicting accused was not invested with powers to try the case.

The conviction was set aside due to the complete lack of jurisdiction. In this case P L D 1955 F C 125 was relied upon :‑

"An offence under section 218 of the P. P. C. is triable exclusively by a Court of Sessions. As soon as the Magistrate has framed a charge against the appellant of an offence under section 218 of the P. P. C. it was his duty to commit the case to the Sessions Court. Instead of doing so, he continued with the case, and after several hearings, con victed the accused under section 420 and sentenced him to 6 months rigorous imprisonment and a fine of Rs. 200.

It is obvious that the Magistrate had no jurisdiction at all to hear the case after the 7th of April, 1979, and that all the proceedings taken by him after that date were void and without jurisdiction. The appellant, after a charge had been framed under section 218 of the P. P. C. was entitled to be tried by a Sessions Judge. The offence took place in Rajshahi District, and we are informed by counsel that in this district all session trials are held with the aid of a jury. The appellant has, therefore, been seriously prejudiced by being deprived of a jury trial in the Court of Session.

The fact that no objection as regards jurisdiction was raised by the accused person in the trial Court; before the Sessions Judge, or in the High Court, cannot in any way validate the proceedings in the Court of the Magistrate after the 7th of April, 1949. The failure of accused to raise such an objection, or even his consent, cannot confer on the Magistrate the jurisdiction which he did not possess."

Rashid Ahmad v. State (P L D 1972 S C 271 (275)):

In this case, the appellant Muhammad Rashid was Cashier in the office of Cantohment Board Wah and the Special Judge Central Government, Rawal pindi had convicted and sentenced him to six months R. I. . He was also fined. His appeal was dismissed by the High Court. But the Supreme Court accepted his appeal and observed :‑

.if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision actually suffer from illegality and are without juris diction.

It was further held in the case of Chittaranjan Cotton Mills Ltd. v. Staff Union, that question retaling purely to the jurisdiction could be raised at any stage of the proceedings. In this connection, the following observations are relevant: ‑

"So far as the first point is concerned that the objection should have been taken in the trial Court and any subsequent objection raised before the High Court or this Court could not be taken. Abdul Rashid v. The Crown P L D 1951 F C 2 ; S. M. K. Alvi v. The Crown P L D 1953 F C 189; Gokulchand Dwarkadas Moraka v. The King P L D, 1948 P C 11 ; Nirode Chandra Biswas and others v. The State P L D 1958 Dacca 90; Qazi Mushtaq Ahmed v. Muhammad Ramzan and another 1970 P Cr. L J 1181 and Abdul Khaliq v. State 1970 P Cr. L J 1189. The trend of these decisions is that objection of this nature should be taken in the trial Court and an objection raised at the appellate stage is not fatal to the case. It will be noticed that in the present case no objection about the sanction was taken before the trial Court. An objection to this effect was taken before the High Court and before this Court. It my view, the latest view of this Court in the case of Mansab Ali v. Amir and others is a complete answer to these questions. It has been held by this in the above‑mentioned case that if a manda tory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. It was further held in the case of Chittaranjar Cotton Mills Ltd. v. Staff Union that "question relating purely to the jurisdiction of the Court should be raised at any stage of the proceedings." In this connection, the following observation is relevant :‑

"Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non‑existent in the eye of law. There can also be no doubt that in such circum stances "it could never be too late to admit and give effect to the plea that the order was a nullity", it was observed by the Privy Council in the case of Chief Kwome Asante Tredahone v. Chief Kwome 9 D L R 686 (P C)."

State v. Muhammad Yusuf (P L D 1980 Azad J & K 36 (38)):

In this case, Tehsildar/Magistrate Bagh (Poonch District) was not at all empowered under section 190(i), Cr. P. C. to take cognizance of the offence triable by a Magistrate 2nd Class. Tehsildars Magistrates are not empowered to take cognizance of any offence to be tried unless it is made over to them by a competent Magistrate (D. M. or S. D. M.). In this case, the challan was presented to the Court of Tebsildar 2nd Class who was not competent under law to take cognizance of an offence under section 325 of the Penal Code.

The Tehsil Court of Criminal Jurisdiction was competent to take cognizance of the offence of hurt. The challan was not brought to the Tehsil Court of Criminal Jurisdiction and instead it was presented to the Court of Magistrate 2nd Class. Sardar Muhammad Sharif Khan learned Judge, who wrote the judgment held the proceedings taken by Tehsildar as coram non judice and quashed the proceedings. The learned Judge (now C. J.) observed

"Again, an amendment in section 24 of the Act was made on 26‑9‑1979 and its old subsection (2) has been substituted by a new subsection (2) to the effect that if during investigation of a case it is found that evidence as provided by the Act under section 26(i) is not on hand, the challan will be presented before a Court of competent jurisdiction established under the provisions of the Criminal Procedure Code. Evidently, at the time, the instant challan was presented before the Court of Tehsildar/Magistrate 2nd Class, it had no jurisdiction to take cognizance of the offence under section 325 of the Penal Code and so it would be deemed that there was no presentation of the challan before a Court of competent jurisdiction and the proceedings taken by the Tehsildar/Magistrate thereof, before . . . . . . . . . . . were without jurisdiction."

Qurban v. The State (P L D 1981 S C (AJ&K)127)

In this case Qurban a civilian was tried in the absence of an absconding accused who was a Government Servant for a scheduled offence. The Special Judge passed an order of conviction of the accused Qurban whose appeal before the High Court was rejected. The appellant approached the Supreme Court of Azad Jammu & Kashmir by way of appellant and the learned Court allowed his appeal quashing the conviction and sentence imposed upon the appellant. Raja Muhammad Khurshid Khan, J. (now the Actg. C. J.) who wrote the judgment, observed in para. 71 :‑

"Jurisdiction of Special Judges to hear cases are regulated by section 4(1) of the Act. It says that :‑

"(1) A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the Government by notification in official Gazette and may take cognizance of any offence committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer.

It is thus manifest that this provision does not confer jurisdiction on the Special Judge to try or convict an accused of an offence not specified in the schedule and the word `any offence' in this section can bear no interpretation except that it covers only the scheduled offences under the Act."

Muhammad Nazir v. The State (1981 P Cr. LJ 415)

In this case Muhammad Nazir was convicted under section 302, Penal Code and sentenced to death by Sessions Judge Rawalakot for committing the murder of one Abdul Samad. It was held that a murder case was triable by Sessions Court, where prescribed standard of evidence according to Islamic Law of evidence was not available. Sardar Muhammad Sharif Khan, Acting Chief Justice, who wrote the judgment, observed at page 418 :‑‑

"Secondly, it was argued that the case being that of murder was triable by the District Criminal Court consisting of a Sessions Judge and a District Qazi under the provisions of Islami Tazeerati Act and not by the Sessions Judge alone. This contention of the learned counsel would have held water but in view of an amendment of section 24 of the Islami Tazeerati Act, no merit is left in it. Section 24 (Amend ment) of the Islami Tazeerati Act provides that in case the prescribed standard of evidence according to Islamic Law of Evidence is not avail able namely at least two adult male Muslims so as to bring the case of murder within the preview of section 5 of the Islami Tazeerati Act, the same is to be tried under the provisions of Penal Code by a Court of competent jurisdiction as established by the Criminal Procedure Code."

The State v. Muhammad Tariq (P L D 1982 F S C 169 (172))

There were certain criminal appeals before the Federal Shariat Court which were disposed of on the point of jurisdiction. 1t was held that the Federal Shariat Court had no jurisdiction to hear the cases. The relevant portion of the judgment written by learned Aftab Hussain, C. J. is reproduced as under :‑

"The Sessions Judge has however the jurisdiction to pass a sentence in Tazir if a case is not made out for inflicting the sentence of Hadd under section 8. However the jurisdiction of this Court is confined only to the hearing of an appeal from an order passed under Article 8 of the Order and not an order passed by the Sessions Court under any other Article. It, therefore, follows that this Court can take cognizance of an appeal against conviction if an accused is convicted under section 8 and against acquittal if a person is acquitted of the charge under that section and the case of the appellant be that the accused on the evidence or confessions on record ought to have been convicted under that section. It is no doubt true that in an appeal against conviction under section 8 of the Order the jurisdiction of this Court to convict the appellant under Tazir would be identical with the jurisdiction of the Sessions Court. But in the case of acquittal that matter would be different. In such a case the Court was duty bound to see whether there was at all any evidence or confession required for conviction under section 8. It could have the jurisdiction to hear appeal and interfere with the judgment of acquittal if there was evidence of two witnesses who could stand the test of tazkiyatush shahood or in the alternative the confession of the respondent. On the plain language of section 25 produced above it was not possible to extend the jurisdiction of the Court in a case of an appeal against acquittal to consider the question whether in the alternative the accused could be convicted in Tazir. This was a matter on which an appeal could be competent under section 417, Cr. P. C. only before the High Court. It is in this light that we have come to the conclusion that if in a case of acquittal under section 8 the evidence as required by section 9 was not forthcoming, it would not have been possible for us to interfere with an order of acquittal because of lack of jurisdiction."

Muhammad Kharshid v. The State (1982 P Cr. L 11287)

It was a case under Khamer Act 1973 in which the order of the trial Court (Additional District Magistrate) was quashed being passed without jurisdiction. Raja Muhammad Khurshid Khan the learned C. J., who wrote the judgment, observed in paras. 24 and 25 :‑

(24) .The provisions of the Khamar Act, 1973, in our view, do not, as stated earlier, stipulate the standard of evidence as required in Islam. In cases of taking wine which carry the sentence of `Hadd' the witnesses should be `Adil' and the Court should also conduct their purgation to confirm their trustworthiness.

(25) There is another important point in Khurshid's case which renders the order passed by the Additional District Magistrate liable to quash. The appellant (Khurshid) was convicted by the Additional District Magistrate on 29‑11‑1979, when already an amendment in the Code of Criminal Procedure was made, which empowered Tehsil Court or District Court of Criminal jurisdiction to try all those offences which carry a punishment of three years and upwards but not exceeding seven years or with whipping not exceeding 80 stripes with or without imprisonment and if the punishment was less than three years but above one year or with whipping not exceeding 40 stripes by the Tehsil Adalat. This amendment was made on 22‑2‑1979 and published in official Gazette on 24‑2‑1979.

The Additional District Magistrate after the aforesaid amendment was divested of the powers to hear and dispose of the case and as such his order being without jurisdiction has to be recalled."

Muhammad Sadiq v. The State

This is a case which was decided by the Supreme Court of Azad Jammu & Kashmir on 16‑9‑1982 and, therefore, it has not been reported as yet. It is a very important case and applies to this case on all fours. In this case, Muhammad Sadiq appellant was tried by the District Court of Criminal Jurisdiction of Poonch and was convicted under section 5 of the Islami Penal Law Act of 1974. He moved an appeal before the High Court which ended in rejection. His sentence was enhanced on the revision petition moved by the State. Muhammad Sadiq went up before the Supreme Court in an appeal and the learned Judge of the Supreme Court set aside his conviction and remanded the case to the Sessions Judge Muzaffarabad (as Additional Sessions Judge‑Poonch) to proceed with the trial of the case afresh from the initial stage. I reproduce paras. 8, 11 and 12 which are relevant to this case :‑

"(8) According to the learned counsel, under the aforesaid provision of the Courts and Laws Code Act the High Court had competently transferred the case from the file of the Sessions Judge to that of the District Court of Criminal Jurisdiction and this transfer order also gives competence to the Court to decide the case. The argument to us has no substance. The reading of the above section makes us to believe that it only gives power to the High Court to transfer the case from a competent Court to another Court which is also equally competent to hear the same. Here in this case the District Court of Criminal jurisdiction, as stated earlier, constituted under the provisions of the Islamic Act, could not take cognizance of the case under section 302/376 Penal Code which was presented by the Police before the Sessions Judge. The High Court cannot make law ; rather it is only to interpret it, and the High Court, therefore, was incompetent to transfer the case to a Court who had no legal control over it. The order of the High Court, therefore, is to be treated as a nullity.

(11) The position being so, the trial of the case by the District Court of Criminal jurisdiction is coram non judice. In other words the District Court of Criminal jurisdiction had no jurisdiction to try the case and had wrongly punished the appellant. The order of the High Court, as contended by the learned counsel for the appellant, we are afraid, cannot vest jurisdiction in the District Court of Criminal jurisdiction as law does not give such a jurisdiction to it."

(12) Our considered view thus is that District Court of Criminal jurisdic tion, Poonch, was not competent to bear and dispose of the case under section 302/376 Penal Code; and such a decision being a nullity is necessarily to be recalled. We may refer here 'to an earlier case Rumball v. Schidt (1882) 8 Q B D 603, Huddleston B). This case owns our view. It has been observed in that case :‑

"Where there is an enactment which may entail penal consequences, you ought not to do violence to the language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it by express language."

Similarly it has been said by A. L. Smith L. J. in Llewellyn v. Yale of Clamorgan Ry. (1)

"When an Act (imposing a penalty) is open to two constructions, that construction ought to be adopted which is the more reasonable and the better calculated to give effect to the expressed intention, which in this case is that the penalty shall be paid."

27. The authorities mentioned above clearly show that a decision with out jurisdiction is coram non judice and of no legal effect.

28. The impugned order of the pre‑arrest bail passed by the learned Member of the District Court of Criminal jurisdiction is, therefore, void ab initio and needs vacation.

29. There is no force in the contention of Raja Mumtaz Hussain Rathore Advocate when he says that mere association of the District Qazi does not render the judgment void. As this case is to be heard by the Sessions Judge alone hence his association with the District Qazi is bad under law. Raja Mumtaz Hussain Rathore has not been able to cite any authority in support of this point.

30. The main point urged by the learned counsel for the respondents Raja Mumtaz Hussain Rathore on which he has laid grant stress is that it is not necessary for the purpose of bail that the Court should have jurisdiction to try the case because the powers of the District Court of Criminal jurisdic tion under section 498, Cr. P. C. are very wide. He has cited the case of Ch. Zahoor Elahi reported in P L D 1977 S C 273 and some other authorities based upon that ruling of the Supreme Court.

"In Zahoor Elahi v. The State P L D 1977 S C 273, his Lordship Mr. Justice Salabuddin, as he then was, interpreting section 498, Cr. P. C. at page 323 of the said judgment observed this :‑

Section 498 is a code by itself and deals with the powers of the High Court or the Court of Sessions to grant bail."

Again, in the same judgment, at pages 356/360, his Lordship Mr. Justice (1) (1898) 1 Q B 473 (478) Muhammad Gul of the Supreme Court, as he then was, observed as under :‑

"The argument, however, ignores the fact that in matter of bail the powers of the High Court are manifold. On the original side it has the power of the trial Court under section 497, Cr. P. C., under section 498 Old it has powers as a superior Court which are concurrent with those of the subordinate Courts Thus, a High Court under Civil Procedure Code has variety of powers for the relevant purpose. Powers exercise-able under section 498, Cr. P. C. being concurrent with the subordinate Court can be invoked directly.

Some cases had been registered against Ch. Zahoor Elahi under rule 42 (6), (e) read with rule 49 of the Defence of Pakistan Rules 1971. The High Court rejected the bail application summarily on the ground that by virtue of section 13 of the Defence of Pakistan Ordinance it has no jurisdic tion to grant bill. For this proposition the learned Judge relied upon a decision in Muhammad Yasin v. State in which following the decision of the Supreme Court in Muhammad Akram v. The State (1) it was held by the Chief Justice that the bar in section 13 of the Defence of Pakistan Ordinance against the jurisdiction of any other Court was complete. All other Judges comprising the majority did not, however, agree with this. Muhammad Akram, Judge held (pages 342 of 343) that an examination of these provisions the Ordinance shows that the special Tribunal is constituted only for "trial" of the cases entrursted to it and the procedure is also directed towards that end in. view. It does not deal with z6ses in their preparatory stage up to the point when they are made ready for bail. It was held, therefore, that the jurisdiction of the High Court, to grant bail before that stage remained intact. It was observed at page 325 that it is a well‑establish ed principle of interpretation that the jurisdiction of the High Court cannot be abolished or ousted unless this is done by express words or clear intend ment. It was also held that even in cases of bar of jurisdiction the Court acts under Article 199 of the Constitution on an application under section 498, Cr. P. C.

Para. 23 of P L D 1980 Lah. 708 is quoted below :‑

"From the above, it follows that the powers of the High Court under section 498, Cr. P. C. are of fundamental nature and can be exercised at any stage of investigation till the conclusion of the trial."

31. Raja Mumtaz Hussain Rathore has cited the following authorities which are based upon the case of Ch. Zahoor Elahi v. State (P L D 1980 S C 273).

(1) P L D 1980 Lab. 54.

(2) P L D 1980 Lab. 184.

(3) P L D 1980 Lab. 708.

(4) P L D 1980 Lab. 796 (798)‑A.

(5) 1981 P Cr. L J 100.

(6) 1981 P Cr. L J 100 (101)

(7) P L D 1980 Lah. 184.

(8) P L D 1980 Lab. 708.

(9) P L D 1980 Lab. 26.

(1) P L D 1963 S C 373

(10) N L R 1982 Cr. L J 377.

(11)PLD1982 Azad J&K72.

32. In Azad Kashmir, the powers under section 498, Cr. P. C. regarding the pre‑arrest bail, are made available to the District Court of Criminal Jurisdiction and, therefore, to get support from the authorities of P L D 1977 S C 273 and all the cases which are based upon it, is not understand able. The case cited by Mr. Rathore are distinguishable on the following grounds :‑

(a) In the Martial Law Regulations or certain other laws where there is no express or specific provision for pre‑arrest bail, the powers of the Sessions Judge and the High Court remain intact and a pre‑arrest bail may be allowed in proper cases under section 498, Cr. P. C. at the investigation stage. Here in Azad Jammu &‑Kashmir a District Court of Criminal Jurisdiction enjoys powers of pre‑arrest bail under section 498 of the Cr. P. C. ;

(b) the pre‑arrest bail in this case was not allowed by the Sessions Judge or the High Court ; and

(c) the powers of the High Court are manifold and we cannot equate the powers of the District Court of Criminal Jurisdiction with those of High Court.

P L D 1980 Lah. 134 (189) B was discussed at length by the learned Advocate by the respondents. This was a case of bail before arrest. A meeting was held to welcome Pir of Pagara Sharif in which Martial Law Regulation No. 33 was violated. It was held that in cases triable by Military Court the jurisdiction of High Court remains intact under section 498, Cr. P C and nothing in the Martial Law Order ousts the jurisdiction of the High Court. So the case of Ch. Zahoor Elabi and all the other authorities based upon it do not help the learned counsel for the respondents.

33. Raja Mumtaz Hussain Rathore contended that even if the Court of Criminal Jurisdiction has got no jurisdiction, it is at best an irregularity which is curable under sections 529 (e) and 537 of the Cr. P. C. I have) already held that this is a case of total lack of jurisdiction. This question came up before the Supreme Court in P L D 1953 F C 125 and the learned Judges in para. 7 of their judgment held there is complete lack of jurisdic tion, the whole proceedings are vitiated and there is no cure for them.

In A 1 R 1959 S C 8, the Supreme Court of India held that section 529, Cr. P. C. applies to a Magistrate and would not apply to a Special Judge whose jurisdiction arises not on his taking cognizance under section 190, Cr. P. C., but on the case for an offence specified in the schedule being distributed to him by the State Government by notification. The defect of jurisdiction, therefore, could not be cured by section 529 (e) of the Cr. P, C. The Special Judge was consequently not Court of competent jurisdiction and the proceedings before him were null and ineffectual. Para. 12 of the said judgment of the Supreme Court deals with this aspect of the case. The perusal of para. 13 shows that the conviction by a Court which had no jurisdiction to try the case against the appellant was set aside and the whole proceedings in the case were declared null and void. In this case the conviction and sentence was passed under section 165 of the Penal Code. The High Court of West Bengal had rejected the appeal of Shajehari Mondel vide its judgment reported in A I R 1956 Cal. 385 which decision was reversed by the Supreme Court. Reference has already been made in P L D 1948 P C 11 to the judgment of Sir Jhon Beaumont who held that the defect in the jurisdiction of the Court can never be cured under section 529 (c), Cr. P. C. Even in the State v. Muhammaad Yousaf the same view has been taken. Therefore, I am of the opinion that the defect of jurisdiction cannot be cured under section 629(c) or section 537, Cr. P. C. in this case.

34. I have been informed that the challan is ripe for presentation before the Sessions Judge Muzaffarabad. The police has already presented an incomplete challan against certain accused persons under section 302, A.P.C. before the Sessions Judge Muzaffarabad.

35. I enquired from the police as to why a complete challan was not presented before the Sessions Judge. A member of the investigation team who brought the police diaries told me that report of the Serologist was being awaited. In A I R (?) S C (441‑442), an incomplete challan was presen ted before a certain Magistrate. The report of the Imperial Serologist and drawing of the sketch of the map of the occurrence were not presented before the Magistrate. The Supreme Court opined that the challan which they called as incomplete challan showed that it was in fact the complete report of the kind which section 171‑1 (a) of the Cr. P. C. read with section 190 (1) of the Criminal Procedure Code contemplated. The Court held that the Magistrate took proper cognizance and it was not necessary for the Court to wait for the Serologists' report.

36. Now the report of the Serologist has beer received by the police, although it is very strange that therein appear no blood‑stains on the Knife (Khanjer) recovered by the police. I wanted to give a direction to the police to complete the investigation and submit their report to the Sessions Judge immediately when there remains nothing to be done now by the investigation team. But the dictum in the case of Muhammad Zaman v. 1.‑G. P. Punjab (2) did not permit me to issue such a direction. 1, therefore, leave to the good sense of the Superintendent of Police, Muzaffarabad who is to produce the challan before the competent Court as and when he deems proper.

37. The upshot of the whole discussion is that I quash and vacate the order of the learned District Court of Criminal Jurisdiction passed on 18‑7‑1982, and direct the accused‑respondents in this case to approach the learned Sessions Judge Muzaffarabad for the disposal of their applications for pre‑arrest bail. The learned Sessions Judge will be free to use his discretion according to law and according to the facts and circumstances of this case as appear to him after examining the relevant record and applying his mind carefully to the facts and circumstances of this case. I have refrained from discussing the facts in this case so as to enable the learned Sessions Judge to use his discretion freely in a Judicial way.

38. The general principles of the pre‑arrest bail are laid down in:‑

(1) P L D 1970 Lah. 679.

(2) P L D 1966 SC 1003.

(3) P L D 1966 SC 589.

(4) P L D 1953 FC 170.

(5) P L D 1952 Lab. 253.

(6) P L D 1949 Lah. 21.

(1) P L D 1980 Azad J & K 36(38)A

(2)PLD 1978 Lah. 731 (736)

(7) P L D 1974 Lah. 256.

(8) P L D 1980 Lah. 184. and many other rulings of superior Courts. These principles can be summarised as below :‑

Although no exhaustive list is possible as the bail matter is discretionary in mature and much depends upon peculiar circumstances and facts of each case:‑

(1) That there should be a genuine reasonable apprehension of immanent arrest with the effect of virtual restraint of the petitioner;

(2) That the petitioner should physically surrender to the Court;

(3) That on account of ulterior motives, particularly on the part of the Police, there should be apprehension of harassment and undue irrepar able humiliation by means of unjustified arrest ;

(4) That it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in sections 497 and 498, Cr. P. C. would have to be kept in mind;

(5) If in a particular case, even though there is no ulterior motive but the case be of the nature that no offence is made out on the allegation and the arrest might only cause harassment and humiliation, that should also be a ground for bail before arrest; and

(6) The principles of Fiqah as laid down in the various books of Fiqah under the heading may always be kept into considera tion while allowing or disallowing bail in cases of Hudood and Qasas. These principles can be read in various books e. g. Hadaya, Fatawas (especially Fatawas‑Alamgiri), Qaduri, Al‑Mabsoot and other valuable books written by emient Muslim jurists.

39. I, therefore, after applying my 'Mind fully to this case and perusal of record accept this appeal preferred by the State and vacate the order passed by the learned District Court of Criminal Jurisdictions, Muzaffarabad passed on 18‑7‑1982. This order also disposes of the revision petition filed by the complainant (Sarfaraz Mir).

40. The respondents, before me in this case, are allowed seven days from today and they may, if so advised, approach the learned Sessions Judge Muzaffarabad for their pre‑arrest bail.

41. I allow the respondents one week's time to approach the learned Sessions Judge, Muzaffarabad for pre‑arrest bail if so advised instead of handing them over to the police, in the exercise of my inherent powers which are available to the Shariat Court under section 561‑A, Cr. P. C. The respondents shall not be arrested during this interim period. I am passing this order for the ends of justice for following reasons :‑

(1) They have not betrayed their trust;

(2) I do not want to penalize them for the legal mistake of the learned District Court of Criminal Jurisdiction.

(3) Some of them are students ; and.

(4) Their Criminal liability is yet to be established by the Police in the murder case.

47. Before parting with this case, I would like to mention that the bail bond of Mr. Irfan Ashraf, one of the accused‑respondents, is defective as it has not been signed by the respondent accused and his sureties or marginal witnesses and yet it has been attested by the A. D. M., Muzaffarabad. It appears that the learned A. D. M. attested the said bail bond in an unchaste haste and did not bother to scrutinize it. The learned District Court of Criminal Jurisdiction also failed to examine this defective bail bond. However Mr. Irfan Ashraf has been attending this Court and also making himself available to the Police when and where desired by them. I give him seven days from today for the needful and approaching the learned Sessions Judge for the rectification of the bail bond or for producing a new bail bond if he is allowed pre‑arrest bail by the learned Sessions Judge, Muzaffarabad.

Appeal and Petition accepted.