1990 M L D 1293

[Supreme Court (AJ&K)]

Present: Raja Muhammad Khurshid Khan, CJ. and Sardar Said Muhammad Khan, J

MUHAMMAD AYUB--Appellant

versus

ABDUL KHALIQ--Respondent

Criminal Appeal No. 7 of 1989, decided on 22nd January, 1990.

(On appeal from the judgment of the Shariat Court dated 28-1-1989 in Criminal Appeal No. -18
of 1987).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.42(2)---Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974); S.25---
Offence of Zina (Enforcement of Hudood) Ordinance. (VII of 1979), S.10---Appeal to Supreme
Court against acquittal or conviction order is competent even by the complainant or any other
aggrieved party as, provisions of Criminal Procedure Code, 1898 do not apply to appeal to
Supreme Court.

(b) Appeal---

---- Right of appeal is a substantive right and the same cannot be regarded as a right of procedural
nature---Until and unless such right is taken away retrospectively, it would not affect the
jurisdiction of the Court to dispose of the appeal pending at the time of amendment according to
law which was on statute book before the amendment.---[Jurisdiction---Interpretation of statutes].

Ghazi v. The State PLD 1962 Lah. 662; Hakim Muhammad Zaki v. Rehabilitation Commissioner,
Hyderabad and Khairpur Divisions PLD 1962 Kar. 285 and Jamshed Ahmad Khan v. Aurangzeb
Khan PLD 1964 Pesh. 250 ref.

(c) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

---Ss. 25 & 32---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---
Criminal Procedure Code (V of 1898), S.417---Appeal by the complainant or any other aggrieved
party to the District Criminal Court or the Shariat Court is not competent against the order of
acquittal---Only the State can lodge such an appeal.

Per Sardar Said Muhammad Khan, J. [Minority view]--

Ghazi and others v. The State and another PLD 1962 Lah 662; Jamshed Ahmad Khan v. Aurangzeb
Khan PLD 1964 Pesh. 250; Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad
and others PLD 1962 Kar. 285 ref.

Per Raja Muhammad Khurshid Khan, CJ: -

(d) Interpretation of statutes---

---- Words are not to be employed in a statute if there is no ambiguity.

(e) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

---S. 32---Where the right of appeal is not given in the Act, the same omission is to be met or cured
under S. 32 (2) of the Act

(f) Interpretation of statutes---

---- Omission in a statute cannot, as a general rule, be supplied by construction--If a particular

word is omitted from the terms of a statute, even though such a word is within the obvious purpose
of the statute, the Court cannot include the omitted word by supplying the omission and this is
equally true where the omission was due to the failure of the Legislature to foresee a missing word.

(g) Interpretation of statutes---

---- Intention of legislature can be ascertained after reading the statute as a whole.

Turner v. State 40 Ala 21; Smith v. State 66 Mad. 215 and Commissioner of Income-tax v. Messrs
Hossen Kasam Dada P L D 1961 S C 375 ref.

(h) Interpretation of statutes---

---- Each word used in a statute is intended to have some effect and no word is to be considered as
superfluous or redundant.

MA. Khuhro v. The Federation of Pakistan P L D 1950 Sindh 49 ref.

(i) Interpretation of statutes---

--- While interpreting a statute the Court should presume that no part of it was intended to be
meaningless and that the provisions of a statute could not have been intended to operate against
each other---Courts lean against construction which makes words unnecessary in Acts of
Parliament.

Model Industries v. Rambhau Narain Patil A I R 1946 Nag. 152 ref.

(j) Interpretation of statutes---

---- Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is
to be found within the four corners of the Act itself.

Dad Muhammad Khan v. Bassa P L D 1965 (W.P.) Lah. 77 and Khizar Hayat v. The Commissioner
Sargodha Division PLD 1965 (W.P.) Lah. 349 ref.

(k) Interpretation of statutes---

---- Rule of casua omissus, stated.

(l) Interpretation of statutes---

---- General principles of interpretation stated.

Reference by the President under the defunct Constitution of 1956 PLD 1957 SC (Pak.) 219 ref.

(m) Interpretation of statutes---

---- Law should be interpreted in such a manner, that it should rather be saved than destroyed---
Law including the Constitution must be interpreted in a broad and liberal manner giving effect to
all its parts and the presumption should be that no conflict or repugnancy was intended by the
framers---In interpreting the words of an Act actual words used in fact throw light on intention of
the lawmakers and the other parts of the statute.

(n) Interpretation of statutes---

---- Lacunas in a statute are not meant to be removed by the Courts---Duty of Courts is only to try
and harmonize the various provisions of an Act passed by the Legislature and not to fill in gaps or
omissions, in the provisions of the Act by stretching the words.

(o) Interpretation of statutes--

To ascertain the legislative intent all the constituent parts of a statute are to be taken together and
each word, phrase or sentence is to be considered in the light of the general purpose and object of
the Act itself.

(p) Interpretation of statutes---

---- Language used by the Legislature is the true depository of the legislative intent and the words
and phrases occurring in a statute are to be taken not in an isolated or detached manner
disassociated from the context, but are to be read M together and construed in the light of the
purpose and the object of the Act itself.

Darshan Singh Balwant Singh v. The State of Punjab A I R 1953 S C 83 and Poppatlal Shah v.
The State of Madras A I R 1953 S C 274 ref.
(q) Interpretation of statutes---

---- In order to prevent conflict between two sections of a statute, the two section must be read
together and the language of one interpreted and where necessary modified by that of the other.

Mada Nagaratnam v. Puwada Seshayya A I R 1939 Mad. 361 ref.

(r) Interpretation of statutes---

---- Courts are not concerned with the reasons of policy of the Act and they have to give effect to
the plain meaning of the section or to its expressed intention--Courts have no means of finding out
its implied intention.

Partap Singh v. B. Gulzari Lal A I R 1942 All. 50 and Harkishan Das v. Emperor A I R 1944 Lah.
33 ref.

(s) Interpretation of statutes---

---- Court is to see whether a reasonable meaning can be given after reconciling the various
provisions contained in different sections and not to read one section independently of all other
sections and give any unreasonable interpretation.

Commissioner of Income-tax v. Messrs Hoosen Kasam Dada P L D 1960 Dacca 506 ref.

(t) Interpretation of statutes---

---- Legislature's defective phrasing---Duty of Court.

Sardar Zorawar Singh v. Jasbir Singh A I R 1938 Lah. 606 ref,

(u) Interpretation of statutes---

---- Consideration of hardship or injustice would never weigh with the Court while interpreting a
statute.

(v) Interpretation of statutes---

---- Court has to interpret a law as it is and not as it ought to have been--Presumption is that
legislature did not intend to make substantial alteration in the law beyond what it explicitly declares
either in express terms or by clear implication or, in other words, beyond the immediate scope and
object of the statute---Intention to cut down or abolish existing right must be clear and manifest.

Khudabur v. Panjo A I R 1930 Sindh 265 ref.

(w) Azad Jammu and Kashmir Supreme Court Rules, 1978--

--O.XI, R.1.----Difference of opinion between two Judges of Supreme Court one being the Chief
Justice---Order of the senior (Chief Justice) would form the judgment of the Court.

Per Sardar Said Muhammad Khan, J.-

(x) Interpretation of statutes---

---- While interpreting a statute the words and phrases should be assigned ordinary dictionary
meanings unless they are defined in the relevant statute.

Kh. Noor-ul-Amin for Appellant.

Muhammad Younas Surakhvi for Respondent.

Date of hearing: 22nd January, 1990.

JUDGMENT

SARDAR SAID MUHAMMAD KHAN, J.--This appeal has been directed against the judgment
of the Shariat Court dated 2R-1-1989, whereby the appeal filed by the appellant, herein. against
the judgment of the District Criminal Court was dismissed as being incompetent.

2. The brief facts giving rise to the present appeal are that a case was registered against the
respondent under sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, (hereinafter shall be referred as Ordinance) and was subsequently tried by the Tehsil
Criminal Court Dudyal. The respondent was acquitted of the charge under section 10 of the
Ordinance but was convicted and sentenced for the offences falling under sections 11/16 of the
Ordinance and sentenced to rigorous imprisonment; he was awarded 3 months' rigorous
imprisonment and was also fined Rs. 500 on each count. Two appeals were preferred to the District
Criminal Court against the aforesaid judgment of the trial Court, one by Muhammad Ayub
complainant against the order of acquittal of respondent under section 10 of the Ordinance and
enhancement of the punishment awarded to the respondent under section 11/16 of the Ordinance
was also sought; the other appeal was filed by Abdul Khaliq respondent against his conviction
under sections 10 and 16 of the Ordinance. The District Criminal Court disposed of both the
aforesaid appeals by a single order, whereby the appeal filed by respondent, Abdul Khaliq, was
accepted and that of Muhammad Ayub was dismissed. Consequently an appeal against the
judgment of the District Criminal Court was preferred to the Shariat Court by the appellant. The
learned Judges of the Shariat Court dismissed the appeal on the ground that an appeal against the
order of acquittal, in view of the provisions contained in section 25(2) of the Ordinance could be
preferred only by the State and not by a private party.

3. We have heard the arguments and perused the file. It has been contended by Mr. Noor-ul-Amin
the learned counsel for the appellant that the Shariat Court has taken an erroneous view of the
statutory provisions contained in the Islamic Penal Laws Enforcement Act, 1974. He has
contended that the aforesaid Islamic Penal Laws Act is a self-contained code which does not
stipulate any restriction that an appeal in case of acquittal is competent only by the State and not
by a private party. The learned counsel argued that initially when the Islamic Penal Laws Act was
promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court
the State may direct the Public Prosecutor to file an appeal but subsequently that provision was
dropped through an amendment and the provisions presently contained in section 25 of the Islamic
Penal Laws Act do not make any distinction between the right of appeal against an order of
acquittal or conviction. He has contended that even before the amendment whereby the provisions
regarding the appeal against the order of acquittal by the State was dropped, there was no bar for
the complainant or any aggrieved person to prefer an appeal against. an order of acquittal. Thus
the doubt, if any, regarding the right of appeal of private person was removed by the Legislature
after dropping the said provisions from the statute book. He has argued that the provisions
contained in section 32 of the Islamic Penal Laws Act or section 417, Cr.P.C. would not be
attracted in the instant case, because the provisions regarding preferring an appeal against the
judgment of the District Criminal Court make no distinction between an order of conviction and
an order of acquittal. The right of appeal is against the ( FAISLA ) of the Court. He has further
contended that when the appeals were preferred against the judgment of Tehsil Criminal Court
before the District Criminal Court, the state of law was that even in case of acquittal by the Tehsil
Criminal Court, the appeal was competent to the District Criminal Court and not to the Shariat
Court as was subsequently envisaged through an amendment. Thus the learned counsel maintained
that the appeals one by the complainant and other by the respondent were pending in the District
Criminal Court when the law was amended and it was provided that in case of acquittal by the
Tehsil Criminal Court the appeal would lie to the Shariat Court and not the District Criminal Court.
He has contended that in view of section 6 of the General Clauses Act, the District Criminal Court
continued to enjoy the jurisdiction to hear the appeals. The amendment during the pendency of the
appeals could not affect the legal proceedings and the District Criminal Court continued to possess
the jurisdiction to decide the, same in view of the provisions contained in section 6 of the General
Clauses Act.

4. The learned counsel further argued that so far as the competency of appeal by the complainant
to this Court is concerned, the same is competent in view of the provisions contained under section
42(2) of the Interim Constitution Act of 1974 which envisage that the appellate jurisdiction could
also be invested in this Court by any other law. Thus the learned counsel has argued that by virtue
of the provisions contained in section 25 of the Islamic Penal Laws Act, an appeal is competent to
this Court against the judgment of the Shariat Court, irrespective of the fact that the same was
against an order of conviction or acquittal, because the provision of the Code of Criminal
Procedure are not applicable to this Court.

5. In reply the learned counsel for the respondent has argued that as section 25 does not specifically
visualise that in case of acquittal a private party is competent to prefer an appeal, the provisions of
section 417 Cr.P.C. were rightly resorted to by the Shariat Court under section 32 of the Islamic
Penal Laws Act, 1974, which says that if there is no clear provision in the Islamic Penal Laws Act,
pertaining to a particular matter, the provisions contained in the Code of Criminal Procedure would
apply to cases tried under the Islamic Penal Laws Act.

6. I have given my due consideration to the arguments raised at the Bar. The first point which
needs to be resolved is as to whether the appeals filed by the complainant and the respondent in
the Shariat Court were competent. There is no dispute that at the relevant time section 25 of the
Islamic Penal Laws Act, 1974, was not amended and appeal against the order of acquittal was
competent to the District Criminal Court. The aforesaid appeals were pending in the District
Criminal Court when the law was amended and a provision was incorporated that the appeal
against the order of acquittal passed by the Tehsil Criminal Court. The question as to whether the
amendment in the law regarding the forum had affected the appeals which were pending in the
District Criminal Court. It may be observed that the right of appeal is substantive right and the
same cannot be regarded as a right of procedural nature. Until and unless such right is taken away
retrospectively, it would not affect the jurisdiction of the Court to dispose of an appeal according
to law which was on the statute book before the amendment. A reference may be made to the case
reported as Ghazi and others v. The State and another P L D 1962 Lah. 662, wherein it was
observed that a right of appeal existing on a day on which a proceeding or lis commences or
prosecution is lodged, is a vested right and that right is governed by law prevailing on the date of
its decision; this vested right can be taken away only by subsequent enactment, which provides
expressly that the provisions would operate retrospectively. Identical view was expressed in cases
reported as `Jamshed Ahmed Khan v. Aurangzeb Khan' P L D 1964 Pesh. 250 and Hakim
Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and others P L D 1962 Kar. 285.

7. I am in respectful agreement to the views expressed in the aforesaid authorities and hold that
the amendment during the pendency of the appeals in the District Criminal Court did not debar the
District Criminal Court to decide the same.

8. The next question which falls for determination is as to whether in view of the provisions
contained in the Islamic Penal Laws Act, 1974, as amended from time to time, an appeal in case
of acquittal is competent only by the State to the District Criminal Court, Shariat Court or to this
Court or the complainant has also right to file an appeal against the order of acquittal. For
appreciating the point involved it would be expedient to reproduce the relevant provisions
contained in Islamic Penal Laws Act, 1974, and the amendments made therein from time to time
regarding the matter in the controversy. The provisions are as under:--
Subsequently, the provisions incorporated m section 25 of the Islamic Penal Laws Act were again
amended as under:--

10. It may be observed here that initially there existed no Tehsil Criminal Courts or the Shariat
Court and thus the appeals and revisions etc. against the judgment of the District Criminal Court
were competent to the Hit Court. However, subsequently, on the establishment of the said Courts,
the law was amended from time to time and provisions were made in section 25 of the Islamic M&
Penal Laws Act regarding the appeals and revisions to the District Criminal Courts, Shariat Court
and this Court. Subsections (1) and (2) of section 25 were substituted as under:--

11. A comparative study of the above provisions would reveal that neither a section 25, as
originally worded, nor in any subsequent amendment the right of appeal of a private party was
non-existent. No distinction was ever made between the right of appeal in case of an order of
conviction and an order of acquittal. There was no provision that the right of appeal against an
order of acquittal was only available to the State and not to a private person. Even after making
the amendments, as contained in subsection (2) of section 25, it was not laid down that the appeal
against an order of acquittal could only be filed by the State and not by the complainant. It may be
observed that the phraseology used in subsection (2) of section 25 after the amendment was in the
following terms:--

Subsection (2) of section 25 reproduced above does not stipulate that appeal against an order of
acquittal passed by the Tehsil Criminal Court could only be preferred by the State. It only
envisages that appeal against an order of acquittal would be preferred to the Shariat Court within
six months. No amendment was made in subsection (1) of section 25, because appeal against an
order of acquittal of the District Criminal Court already lay to the Shariat Court. In other words
amendment made in section 25 of the Islamic Penal Laws Act did not take away the right of a
private party to file an appeal against an order of acquittal; only forum of appeal was changed from
District Criminal Court to Shariat Court. It may be observed that an amendment in section 25 of
the Islamic Penal Laws Act was made whereby the original provision that an appeal against the
order of acquittal could be filed by the Public Prosecutor on the direction of the Government was
dropped and thus ambiguity, if any, was removed.

12. Had the legislature intended that in case of acquittal by any of the Courts established under the
provisions of the Islamic Penal Laws Act the right of appeal would be available only to the State,
it would have specifically said so.

13. It follows from what has been stated above that the complainant or any other aggrieved person
has right of appeal against an order passed by the Tehsil Criminal Court, the District Criminal
Court or the Shariat Court, irrespective of the fact whether the same was an order of `acquittal' or
`conviction'.

14. It is settled principle of law that while interpreting a statute the words and phrases should be
assigned ordinary dictionary meanings unless they are defined in the relevant statute. The plain
reading of section 25 of the Islamic Penal Laws Act cannot be interpreted to place an embargo on
the right of a private party to file an appeal against an order of acquittal. The argument advanced
by the learned counsel for the respondent that as there is no specific Pp provision in section 25
giving right to a private party to file an appeal, provisions contained in section 417 Cr. P.C. are to
be resorted to, is not tenable in view of the fact that section 25 of the Islamic Penal Laws Act is
comprehensive enough and gives right of appeal to a private party irrespective of the fact whether
the order is that of conviction or acquittal.

15. So far as the appeal against the order of the Shariat Court to this Court by a private party is
concerned it may be observed that under section 42 (2) of the Interim Constitution Act, the same
can also be conferred by any other law. As has already been stated above that section 25 of the
Islamic Penal Laws Act invests this Court to exercise appellate jurisdiction against an order of the
Shariat Court irrespective of the fact that the order was that of acquittal or conviction, the provision
of the Code of Criminal Procedure does not apply regarding the appellate jurisdiction of this Court
and thus any reference to section 417, Cr. P.C. is not relevant. A reference may be made to a case
Siraj Din v. Kala and another P L D 1964 S C 26 wherein it has been held that provisions of Cr.
P.C. do not apply to proceedings in the Supreme Court.
In the light of what has been stated above, I accept the appeal, set aside the judgment of the Shariat
Court and remand the case back to the Shariat Court with the direction that it shall re-hear the
arguments on merits and decide the appeal according to law.

RAJA MUHAMMAD KHURSHID KHAN, C.J.--I have had the advantage of going through
the judgment recorded by my learned brother Mr. Justice Sardar Said Muhammad Khan.

After giving my dispassionate thought to the finding recorded by the learned Judge, despite
profound respect which I have for the learned Judge, I could not persuade myself to agree with the
learned Judge that the appeal against the judgment of the Tehsil Criminal Court to the District
Criminal Court and thereafter to the Shariat Court, to question the acquittal of Abdul Khaliq,
respondent herein, for an offence under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance (hereinafter to be referred as the Ordinance), could competently be rolled in by the
complainant or a private party under the relevant provisions of Islamic Penal Laws (Enforcement)
Act, 1974.

16. It will be an exercise in futility to narrate the facts of the case, which have fairly been
recapitulated in the order passed by my learned brother.

17. The important question involved and posed is as to whether under the provisions of section
25(2) read with section 32(2) of the Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter to
be referred as the Act), an appeal against the acquittal order recorded by the Tehsil Criminal Court
to the District Criminal Court and by the District Criminal Court to the Shariat Court could
competently be lodged by the complainant, namely, Muhammad Ayub, appellant herein.

To have a view-of the matter in its true perspective, the provisions in the Act, as amended from
time to time, need to be reproduced. The provisions initially enacted are as under:--

Thereafter, section 25 of the Act was amended as under:-

After some time again subsections (1) and (2) of section 25 of the Act were substituted as under:-
-

It obvious that the controversy is to be resolved on the basis of the above provisions of the Act.

18. Mr. Noon-ul-Amin, the learned counsel for the appellant, has contended that the Act is a self-
contained Code. Section 25 of the Act admits of no restriction that an appeal in case of acquittal is
competent only by the State and not by a private party. The learned counsel also argued that
initially when the Act was promulgated in 1974, there was a provision that in case of acquittal by
the District Criminal Court the State may direct the Public Prosecutor to file an appeal to the High
Court but subsequently that provision was changed through an amendment and the relevant
provision now contained in section 25 of the Act does not make any distinction in the
right of appeal against the order of acquittal or conviction. In his view the provision contains no
bar for the complainant to lodge an appeal. In the circumstances, he contended, the provisions
contained in section 417 of the Code of Criminal Procedure have no bearing on the facts of the
instant case. He further argued that the appeal to this Court is competent in view of the provisions
contained under section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974,
which reads:--

" Subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have
such jurisdiction as is or may be conferred on it by this Act or by or under any law."

and stipulates in clear terms that the appellate jurisdiction could also be invested in this Court by
any other law and since an appeal is competent to this Court against the judgment of the Shariat
Court irrespective of the fact that the same was against the order of acquittal or conviction, the
provisions of the Code of Criminal Procedure cannot be attracted in regard to appeal to the
Supreme Court.

Mr. Muhammad Younas Surakhvi, the learned counsel appearing on behalf of respondent, has
countered the argument advanced on behalf of the appellant and contended that section 25(2) of
the Act does not specifically visualise that in case of acquittal, the private party is competent to
prefer an appeal, therefore, the provisions of section 417, Cr.P.C., were rightly made applicable
by the Shariat Court within the meaning of section 32(2) of the Act which says that if there is no
clear provision on a particular matter in the Act, the provisions contained in the Code of Criminal
Procedure would apply to cases tried under the Act.

19. I have considered the arguments and am of the view that the argument addressed at the Bar by
the learned counsel for the appellant that the appeal before the Supreme Court by the complainant
or any other aggrieved party is competent has substance. The Supreme Court, under the provisions
of section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is clothed with
the jurisdiction as is or may be conferred on it by the Constitution Act or by or under any law.
Since an appeal is provided to the Supreme Court against the judgment of the Shariat Court against
an order of acquittal and conviction, the provisions of the Code of Criminal Procedure cannot be
attracted in regard to the appeals to the Supreme Court. I agree with the learned Judge that in view
of this statement of law, the appeal under the Interim Constitution Act to the Supreme Court against
an acquittal or conviction order is even competent by the complainant or any other aggrieved party.

20. Coming to the question as to whether the complainant or a private person is competent to call
in question the acquittal order passed by the Tehsil Criminal Court or the District Criminal Court,
it may be stated that there is no cavil that at the relevant time when section 25 of the Act was
amended, an appeal against the order of acquittal was competent to the District Criminal Court.
The aforesaid appeal was pending in the District Criminal Court when the law was amended to
contain the provision that the appeal against the order of acquittal passed by the Tehsil Criminal
Court, would be competent before the Shariat Court. I agree with the learned Judge that the right
of appeal is a substantive right and the same cannot be regarded as a right of procedural nature.
Until and unless such right is taken away retrospectively, it would not affect the jurisdiction of the
Court to dispose of the appeals pending at the time of amendment according to law which was on
statute book before the amendment. This view we F have in Ghazi v. The State P L D 1962 Lah.
662, Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions
P L D 1962 Kar. 285 and Jamshed Ahmad Khan v. Aurangzeb Khan P L D 1964 Pesh. 250.
I am in complete agreement with the statement of law in the aforesaid authorities and hold that
during the pendency of appeal, the amended law did not debar the District Criminal Court to decide
the acquittal appeals which had been lodged on the basis of the unamended law.

21. The important question which still faces us and calls for determination is as to whether in view
of the provisions contained in the Act, as amended from time to time, an appeal in case of acquittal
order recorded by the Tehsil Criminal Court, District Criminal Court or the Shariat Court is
competent only by the State or the complainant or any other aggrieved person is also eligible to
move such an appeal.

I have already held that the appeal to this Court, by the complainant, is competent as the provisions
of the Code of Criminal Procedure do not apply in regard to appeals to the Supreme Court. I am,
however, of the considered view that the appeal by the complainant or any other aggrieved party
to the District Criminal Court or the Shariat Court is not competent against the order of acquittal
as under the provisions of section 25(2) read with section 32(2) of the Act, it is only the State
which can lodge such an appeal. It is, of course, correct that under the amended section 25(2) of
the Act referred to above an order of acquittal passed by the Tehsil Criminal Court has been made
appealable before the Shariat Court within six months from the date of passing of the order but in
my view this provision simply determines the right to and forum of appeal against the acquittal
order and it in no way determines the competency of persons to lodge such appeals. The law under
the Code stipulates that when the Act fails to provide for any specific matter, section 32(2) of the
Act which reads:--

comes into play and matter would be governed by the relevant provisions of the Code of Criminal
Procedure. It is to be noticed that section 25 of the Act is silent about the persons competent to
move an appeal against the order of acquittal. Therefore, we have to fall back upon the provisions
of section 32(2) of the Act and switch on to the relevant provisions of the Code of Criminal
Procedure for the purpose of determination of the above question.

To attain clarity in the matter, I may, with advantage here again reproduce the relevant of
provisions of the Act and that of the Code of Criminal Procedure.

Section 25 (2) of the Act as under:-

Section 32 (2) of the Act runs as under:-

The combined reading of both the sections of the Act leaves no ambiguity that when a matter is
not provided for under any provisions of the Act, the same is to be resolved under section 32(2) of
the Act.

Section 417(1) of the Code of Criminal Procedure enacts as under:--

" Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct
the Public Prosecutor to present an appeal to the High Court from an original or appellate order of
acquittal passed by any Court other than a High Court:'
It would appear that under section 417(1) of the Code of Criminal Procedure in case of appeal
against an order of acquittal not only the forum to which it would lie but also the person who is
entitled to file it has been specifically mentioned. Unlike the provisions contained under section
417(1), Cr. P. C, section 25(2) of the Act, as said elsewhere, only determines the right to appeal
and forum to which an acquittal appeal is competent. Thus, the person eligible to lodge an appeal
not having been determined, is left open. This omission, however, is clarified, cured and governed
under the provisions of section 32(2) of the Act which, inter alia, allows application of the
provisions of section 417(1), Cr.P.C., under which the Government alone has been conferred the
right to move an appeal against the order of acquittal. If section 25(2) of the Act is construed to
mean that any person has the right to go in appeal against the order of acquittal, then any person
can also file an appeal against the order of conviction under subsection (1) of section 25 of the Act
irrespective of the fact whether he is or is not a convicted person in the case. This conclusion would
not sound reasonable because no person other than the one who has been convicted in a case has
a right to prefer an appeal against such a conviction which is an undisputed legal position under
the provisions of sections 407, 408 and 410 of the Code of Criminal Procedure, according to which
only a person convicted has been given right to prefer an appeal to the competent Court.

22. It admits of no doubt that the basic principle of interpretation of law is that words are not to be
employed in a statute if there is no ambiguity. No doubt, at times absurdity or anomaly, if any,
may be removed by applying some words to fulfil the intention of the law-makers but such a
situation is not available here. I agree with the learned Judge that neither under section 25 of the
Act, as originally worded nor in any subsequent amendment the right of appeal of a private party
is barred by express words. I also agree that there is no distinction between the right of appeal in
case of order of conviction and order of acquittal. But the legal position is that the provision
[section 32(2) of the Act] is clear on the issue which says that when the right of appeal is not given
under any provision of the Act, the same omission is to lie met or cured under the provisions of
section 32(2) of the Act.

23. My learned brother is to the view that initially section 25(2) of the Act only stipulated that
State could be directed to file an appeal within six months and the amendment later on made did
not take away the right of a private party to file appeal against the order of acquittal, as only forum
of appeal was changed from the District Criminal Court to Shariat Court.

I am afraid, I cannot agree with the learned Judge. The provision prior to the amendment only
stipulated that it was State's prerogative and privilege to lodge an appeal. The State, thus, was at
liberty to exercise such a right or decline to do so. The word "may" connotes the discretion and
prerogative of the State to exercise the discretion which discretion the State may or may not
exercise. But if the State decides to exercise the discretion, then the Public Prosecutor could be
directed to lodge an appeal. Thus, this provision can in no way be interpreted to mean that it also
conferred powers on a private party to lodge an appeal; it rather excluded the right of a private
party to lodge an appeal which right had ` only been allowed to the State and none else. Therefore,
my view is that under the provisions of subsections (1) and (2) of section 25 of the Act, the
complainant or any other party has no right of appeal against the order of acquittal or conviction.

24. It is to be remembered that omission in a statute cannot, as a general rule, be supplied by

construction. Thus, if a particular word is omitted from there terms of a statute, even though such
a word is within the obvious purpose of the statute, the Court cannot include the omitted word by
supplying the omission. This is equally true where the omission was due to the failure of the
Legislature to foresee a missing case. To permit the Court to supply the omission in a statute would
constitute an encroachment upon the field of Legislature and naturally such a recourse is not
permissible and should always be avoided.

25. In the instant case since there is nothing in section 25 of the Act that the complainant is
competent to lodge an appeal, if we allow the word "complainant" to be employed in section 25,
it would positively amount to enact law which would be construed as an encroachment upon the
field of Legislature, especially, when such an omission can be rectified under section 32(2) of the
Act.

26. I am not oblivious of the fact that in some cases it has been held that it is the intention of the
Legislature which constitutes the law and since the primary purpose of construction is to ascertain
that intention such intention should be given effect even if it necessitates the supplying of
omissions, provided of course, that this effectuates the legislative intention. Some decisions seem
to indicate a trend in this direction and allow words omitted by oversight to be supplied if the
statute is otherwise meaningless. Turner v. State (40 Ala 21) owns this view. But here, as said
earlier, the statute's meaning is clear and explicit in view of the provisions of section 32(2) of the
Act which clearly enacts that where something is missing or omitted in the Act on a particular
matter, we have to fall back on the provisions of the Code of Criminal Procedure and the Pakistan
Penal Code within the meaning of section 32(2) of the Act. Therefore, where the statute's meaning
is clear and explicit the words cannot be interpreted. Smith v. State 66 Mad. 215 owns this
view.

27. The intention of the Legislature can be ascertained after reading the statute as a whole and this
is always a safer rule to follow. To this rule of N interpretation all others are subordinate. The
Commissioner of Income-Tax v. Messrs Hossen Kasam Dada P L D 1961 S C 375 owns this view.
In this case it 1 has been observed:--

" ……We would have thought that the conventional method of ascertaining the intention of the
Legislature after reading the statute as a whole was more likely to lead to the discovery of its true
intent and is always a safer rule to follow."

In view of the above state of law, td get at the intention of law-makers, it would be necessary to
read section 25(2) alongwith section 32(2) of the Act. This I is important because section 25 does
not employ the words "complainant" or "State" and this omission creates an uncertainty in regard
to the person's competency to lodge an appeal against acquittal and the omission is fairly treated
and resolved under the provisions of section 32(2) of the Act.

One of the important rules of interpretation of statute is that every word used in the statute is
intended to have some effect and no word is to be considered as superfluous or redundant. This
statement of law we find in MA. Khuhro v. The Federation of Pakistan P L D 1950 Sindh 49. It
has been observed in that case:--
" ....One of the rules of interpretation of the statute is ,that every word used in the statute is intended
to have some effect and be of some use and no word is to be considered as superfluous or
redundant:'

28. It is also important that while interpreting a statute the Court should presume that no part of it
was intended to be meaningless and that the provisions of a statute could not have been intended
to operate against each other. Therefore, the Courts lean against construction which would make
some words unnecessary in the statute. Model Industries v. Rambhau Narain Patil A I R 1946 Nag.
152 owns this view. It has been held in this case that "Courts lean against constructions which
make words unnecessary in Acts of Parliament".

29. My learned brother Mr. Justice Sardar Said Muhammad Khan has employed the word
"complainant" in section 25 of the Act, which is not permissible. The law is that a Court is not
entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within
the four corners of the Act itself. Our duty is neither to add to nor to take from a statute anything
unless there are good grounds for thinking that Legislature intended something which it fails
precisely to express. Where no such inference is possible, words R cannot be added in the
provisions of the statute. It is not permissible to make addition or alteration or restore casua
omissus in the statute without a suitable amendment. This view prevailed in Dad Muhammad Khan
v. Bassa P L D 1965 (W.P.) Lah. 77 and Khizar Hayat v. The Commissioner, Sargodha Division
PLD 1965 (W.P.) Lah. 349.

In Dad Muhammad Khan v. Bassa P L D 1965 (W.p.) Lah. 77 it has been observed:--

"A Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is
to be found within the four corners of the Act itself. Its duty is neither to add to, nor to take from
a statute anything unless there are good grounds for thinking that the Legislature intended
something which it has failed precisely to express."

In Khizar Hayat v. The Commissioner, Sargodha Division P L D 1965 (W.P.) Lah. 349, it has been
held that the Courts cannot extend a statute to meet a case for which provision has clearly and
undoubtedly not been made. The Courts have no power to fill the gaps in a statute.

The reason at the back of the rule of casua omissus is found in the principle that if the Court
attempts to supply that which the Legislature has omitted, there is considerable danger that it may
invade the legislative field. It is not easy to determine whether the omission was intentional or not
and where it was inadvertent, an attempt to supply the omission by including the omitted case
generally would operate to add to a statute a meaning not intended by the Legislature, for, how
can it be said that the law-makers intended to include something omitted. It would seem that the
only time the omitted case might be S included within the statutes operation, would be when the
Legislature intended to include it but actually failed to use language which would, on its face,
cover the omitted case. The inclusion would be justified if from the various intrinsic and extrinsic
aids, the intent of the Legislature to incorporate the omitted case, could be ascertained with a
reasonable degree of certainty but not otherwise. Naturally this case is not visited by such an
eventuality:
Besides, since the purpose of construction is to ascertain the legislative intent, this constitutes the
major step in the process of interpreting the statutes. In the instant case I do not find any good
ground to add the word "complainant" in section 25 of the Act in view of the provisions of section
32(2) of the Act.

30. I have discussed some ways by which the meaning of statutes are to be ascertained. The first
source from which the legislative intent is to be sought is the words of the statute. Then an
examination should be made of the context, and the subject-matter and purpose of the enactment.
After the exhaustion of all intrinsic aids, if the legislative intent is still obscure, it is proper for the
Court to consult the several extrinsic matters for further assistance and during the consideration of
the various sources of assistance. further help may, of course, be found in the use of the numerous
rules of construction.

31. Before I part with the case, I would like to narrate the general principles of interpretation stated
by the Supreme Court of Pakistan in a Reference by the President under the defunct Constitution
of 1956; P L D 1957 S C 219. The Supreme Court stated the general principles of interpretation
and said;--

"(1) The first object of the Court to discover the intention of the author and that such intention is
to be gathered from the words used in the statute of document.

(2) The second rule is that the intention of the legislature in enacting a statute ought to be derived
from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to
start with some a priori idea of that intention and to try by construction to wedge it into the words
of the statute.

(3) The third rule is that a statute may not be extended to meet a case for which provision has
clearly and undoubtedly not been made.

(4) The fourth rule is that whenever there is a particular enactment and a general enactment in the
same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the
particular enactment must be operative, and the general enactment must be taken to affect only the
other part of the statute to which it may properly apply.

(5) The fundamental principle of constitutional construction has always been to give effect to the
intent of the framers of the organic law and the people adopting it.

(6) Another elementary rule of construction of constitutional instruments is that effect should be
given to every part and every word of the constitution. Hence as a general rule, the Courts should
avoid a construction which renders any provision meaningless or inoperative and must lean in
favour of a construction which will render every word operative rather than one which may make
some words idle and nugatory.

(7) The next rule in construing a constitutional provision is that it is the duty of the Courts to have
recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any
particular provision. The best mode of ascertaining the meaning affixed to any word or sentence
by a deliberative body is by comparing it with the words and sentences with which it stands
connected, and a constitutional provision or a phrase to a constitutional provision must be read in
connection with the context. Nosciture a Sociis is the rule of construction applied to all written
instruments. Therefore, particular phrases of a constitution must be construed with regard to the
remainder of the instrument and to the express intent of the constitutional convention in adopting
it.

(8) If there be any apparent repugnancy between different provisions, the Court should harmonize
them if possible. The rule of construction of constitutional law requires that two sections be so
construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that
effect be given to each."

It would appear that one of the cardinal principles of interpretations is that the law should be
interpreted in such manner that it should rather be saved than destroyed. The law including the
Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the
presumption should be that no conflict or repugnancy was intended by the framers. In interpreting
the words of an Act actual words used in fact throw light about the intention of the law-makers
and the other parts of the statute.

32. In the instant case section 25 of the Act is to be read in relation to the provisions contained
under section 32(2) of the Act. Since under section 25, the right of appeal and forum before which
the appeal is competent against an order of Tehsil Criminal Court and the District Criminal Court
is only created, the persons eligible to move an appeal are to be ascertained under the provisions
of section 417, Cr. P.C. in view of the provisions contained under section 32(2) of the Act. The
Legislature in its wisdom did not provide for the persons competent to lodge and an appeal under
the provisions of section 25 of the Act. It is no lacuna as the situation is fairly dealt with under
section 32(2) of the Act. But even if it may be a lacuna, such lacunas are not meant to be removed
by the Courts as the duty of the Courts is only to try and harmonize the various provisions of an
Act passed by the Legislature. It is certainly not the duty of the Courts to stretch the words used
by the Legislature to rill in gaps or omissions in the provisions of the Act. This would amount to
make law which is beyond the province of the Courts.

33. It is settled rule of construction that to ascertain the legislative intent all the constituent parts
of a statute are to be taken together and each word, phrase or sentence is to be considered in the
light of the general purpose and object of the Act itself. Therefore, to get at the intention of the
Legislature, we have to read both the provisions of the Act, i.e., sections 25 and 32(2) together.
We cannot read these sections in isolation. It should be remembered that the language used by the
Legislature is the true depository of the legislative intent and the words and phrases occurring in a
statute are to be taken not in an insolated or detached manner dissociated from the context, but are
to be read together and construed in the light of the purpose and the object of the Act itself.
Identical statement of law we find in Darshan Singh Balwant Singh v. The State of Punjab AIR
1953 SC 83 and Poppatlal Shah v. The State of Madras AIR 1953 SC 274.

In Darshan Singh Balwant Singh v. The State of Punjab AIR 1953 SC 83 it has been held:--
"The language used by the Legislature is the true depository of the legislative intent, and words
and phrases occurring in a statute are to be taken not in an isolated or detached manner
disassociated from the context, but are to be read together and construed in the light of the purpose
and object of the Act itself."

In Poppatlal Shah v. The State of Madras AIR 1953 SC 274, it was observed:--

" It is settled rule of construction that to ascertain the legislative intent, all the constituent parts of
a statute are to be taken together and each word, phrase, or sentence is to be considered in the light
of the general purpose and object of the Act itself. The title and preamble, whatever their value
might be as aids to the construction of a statute, undoubtedly throw light on the intent and design
of the Legislature and indicate the scope and purpose of the legislation itself."

34. It is, therefore, legitimate to say that in order to prevent conflict between two sections, the two
sections must be read together and the language of one interpreted and where necessary modified
by that of the other. In this way it may in most cases be found possible to arrive at a reasonable
and practical construction of the language of the sections so as to reconcile the respective notion
they contain and give effect to all of them. We also find support in Mada Nagaratnam v. Puwada
Seshayya AIR 1939 Mad. 361. It has been observed in this case:--

"In order to avoid a conflict between two sections, they must be read together and the language of
one interpreted and where necessary modified by that of the other. In this way it may in most cases
be found possible to arrive at a reasonable practical construction of the language of the sections,
so as to reconcile the respective powers they contain and give effect to all of them,"

35. It may be noted that the Courts are not concerned with the reasons or policy of the Act and
they have to give effect to the plain meaning of the section or to its expressed intention. They have
no means of finding out its implied intention. So was held in Pratap Singh v. B. Gulzari Lai AIR
1942 All. 50. It was observed in this case:--

"The Court is not concerned with the reason or policy of the Act and it has to give effect to the
plain meaning of the section or to its expressed intention and it has no means of finding out its
implied intention."

As said earlier the Court has to interpret the law as it has been enacted and not as what it would
have been. Harkishan Das v. Emperor AIR 1944 Lah. 33 owns this view. It has been held in this
case:--

"The Court has to interpret the law as it has been enacted and not as what it would have been if
certain provisions which are complementary to the provision, the constitutionality of which is in
question, had not been enacted."

Therefore, in interpreting a statute one is to see whether a reasonable meaning can be given after
reconciling the various provisions contained in different sections and not to read one section
independently of all other sections and give any unreasonable interpretation. So was held in
Commissioner of Income-tax v. Messrs Hossen Kasam Dada PLD 1960 Dacca 506 wherein it was
held that one section in a statute should not be read independently of all others and given
unreasonable interpretation.

36. It, thus, admits of no doubt that all the sections of an Act or statute are F to be read together to
know the intention of the law-makers. In the present case if we import the words "complainant" or
"aggrieved party" in section 25, then section 32(2) of the Act would become meaningless. Besides,
Courts cannot modify the Legislature's defective phrasing of the Act: they cannot add, amend or
by construction make up the deficiencies which are left there. Where an omission in an Act flowed
from forgetfulness of the draftsman or was intentional it is no concern of the Courts to make up
such deficiency. The Legislature must be intended to mean what it has plainly expressed and
consequently there is no room for construction. The underlying principle is that the meaning and
intention of a statute must be collected from the plain and unambiguous expressions used therein
rather than from any notion which may be entertained by the Court as to what is just or expedient.
Sardar Zorawar Singh v. Jasbir Singh AIR 1938 Lah. 606 owns this view wherein it has been
observed:-- '

"The Legislature must be intended to mean what it has plainly expressed, and consequently there
is no room for construction. It matters not in such a case what the consequences may be. Where,
by the use of clear and unequivocal language capable of only one meaning, anything is enacted by
the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying
principle is that the meaning and intention of a statute must be collected from the plain and
unambiguous expression used therein rather than from any notions which may be entertained by
the Court as to what is just or expedient."

37. What about the hardship and injustice is the next question to be considered. Hardship and
injustice are to be removed in a statute by the H Legislature and not the Courts and a law cannot
be interpreted in a different way sire ply on the ground of hardship. Therefore, the consideration
of hardship or injustice would never weigh with the Court while interpreting a statute. So was held
in Abdul Ghafoor v. The State PLD 1965 Quetta 10.

38. I also cannot subscribe to the view of the learned Judge that in Islam there is no restriction for
lodging an appeal by the complainant or any other aggrieved party. The difficulty is that at present
we are governed by the codified law. We have to interpret a law as it is and not as it ought to have
been. It should be noticed that there is a prima facie presumption that the Legislature did not intend
to make substantial alteration in the law beyond what it explicitly declares either in express terms
or by clear implication or, in other words, beyond the immediate scope and object of the statute,
and an intention to cut down or abolish existing rights must be clear and manifest. Khudabur v.
Panjo AIR 1930 Sindh 265 owns this view. It has been observed in this case:--

" There is a prima facie presumption that the legislature does not intend to make any substantial
alteration in the law beyond what it explicitly declared either in express terms or by clear
implication, or, in other words beyond the immediate scope and object of the statute, and an
intention to cut down or abolish existing rights must be clear and manifest, and for this purpose
the previous history of the legislation may be looked into."
For the above stated reason I hold that the appeal before the Shariat Court against the acquittal
order passed by the District Criminal Court on 31-1-1987 was incompetently filed by the
complainant. Thus, I see no reason to disturb the statement of law in the impugned judgment of
the Shariat Court recorded on 28-1-1989. The appeal, thus, stands dismissed.

ORDER OF THE COURT

In view of difference of opinion, within the meaning of the provisions of order X1, Rule 1, proviso
four of the Azad Jammu and Kashmir Supreme Court Roles. 1978, the order of the senior Judge
(Chief Justice) would form the judgment of the Court. Therefore, the judgment of the Shariat Court
passed on 28- 1-1989 stands and consequently the appeal is dismissed.

M.B.A./269/S.C.A. Appeal dismissed.