2016 Y L R 2536
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ
BAKHTIAR ALI and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No. 148 of 2013, decided on 2nd December, 2014.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 304 & 34 ---Criminal Procedure Code (V of 1898), S.367(5) ---Qanun- e-Shahadat
(10 of 1984), Arts.3 & 17--- Qatl-i-amd, qatl -i-amd liable to qisas, common intention ---
Appreciation of evidence ---Sentence, quantum of ---Discr etion of court ---Scope ---Prosecution
having successfully established its case against accused persons beyond any shadow of doubt,
Trial Court convicted and sentenced accused persons to suffer life imprisonment with fine ---Trial
Court, while deciding the question of quantum of sentence, drew a misconception of relevant law
and by adopting the misconstrued interpretation thereof observed that since the requirement of
S.304, P.P.C., were available, qisas could not be enforced---Under S.302(b), P.P.C., though
punishment of Tazir was provided as death or imprisonment for life for qatl -i-amd, but it would
not follow that the court had absolute discretion to award, either of the two sentences ---Normal
sentence for qatl -i-amd as Tazir was death, but the court had the discretion to award the lesser
sentence of life imprisonment in a case there were mitigating circumstances ---Such discretion
was neither uncontrolled, nor it was to be exercised arbitrarily, but judiciously ---Court, after
reaching the conclusion that accused was guilty of qatl -i-amd, could award lesser sentence of life
imprisonment, provided the court would record reasons for awarding such lesser sentence i.e.
mitigating circumstances or basis whereof case was boiled down for not awarding sentence of
death---Once the Trial Court drew the conclusion that accused persons had committed qatl -i-
amd, within the meaning of S.302(b), P.P.C., it was bounden duty of the Trial Court to have
recorded the reasons for awarding the sentence of life imprisonment, instead of penalty of death;
which course would ultimately meet the ends of justice subject to the provisions of S.367(5),
Cr.P.C.---Trial Court had to judiciously exercise the discretion, but, in the present case, said
exercise was not carried out in letter and s pirit---Conditions enumerated in S.304, P.P.C., would
be required only in a case where the penalty of death as qisas was awarded as envisaged under
S.302(a), P.P.C., but in case, if penalty of death or imprisonment for life as Tazir was going to be
awarded , said condition would not be required--- Conclusion drawn by the Trial Court being not
sustainable, High Court observed that it would be appropriate that the case be remanded to the
Trial Court for re -writing of judgment in accordance with the relevant pro visions of law ---
Impugned judgment passed by the Trial Court was set aside accordingly.
Federation of Pakistan through Secretary, Ministry of Law v. Gul Hassan Khan PLD
1989 SC 633; Federation of Pakistan v. N.W. F. P Government PLD 1990 SC 1172; Muhamma d
Ashraf v. The State PLD 1991 Lah. 347; Sanaullah v. The State PLD 1991 FSC 186; State v.
Punnu Khan PLD 1984 SC (AJ& K) 1; State v. Nazir PLD 1986 Sh.C. (AJ& K) 143; Ghulam
Ali v. The State PLD 1986 SC 741; Nadir Khan v. The State PLD 1992 FSC 390; Arsha d Ali v.
The State 1993 PCr.LJ 2540; Mumtaz Ahmad and another v. The State PLD 1990 FSC 38;
Danial Boyd (Muslim name Saifullah) v. State 1992 SCMR 196; Hassan Muhammad v. State
PLD 1989 SC (AJ& K) 5; Masood Aziz v. The State 1989 PCr.LJ 1462; Abdul Razaq a nd
another v. The State PLD 1988 SC (AJ& K) 190; Niaz Khan v. State PLD (sic) Sh.C. (AJ& K) 9;
Naseer Hussain v. The State PLD 1984 Lah.67; Home Secretary N.- W.F.P. v. Muhammad Ayaz
Khan and others PLD 1996 Pesh. 76; Manzoor and others v. The State 1992 SC MR 2037; Abdus
Salam v. The State 2000 SCMR 338; Sarfaraz alias Sappi v. The State 2000 SCMR 1758 and
Muhammad Aslam v. The State PLD 2009 SC 777 ref.
Ali Hassan Bugti for Appellant.
Jameel Akhtar for the State.
Date of hearing: 25th September, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The appellants Bakhtiar Ali
son of Muhammad Murad and Meer Gul son of Muhammad Yousaf, have assailed the validity of
the judgment dated 8th November 2013 (the "impugned judgment") passed by the learned
Additiona l Sessions Judge, Dera Allah Yar (the "trial Court"), whereby they were convicted and
sentenced under Section 302(b) (as amended) read with Section 34 of the Pakistan Penal Code
1860 (P.P.C.), to suffer life imprisonment with fine of Rs.2,00,000/ - (Rupees two lacs only) each
or in default whereof to further undergo six (06) months' simple imprisonment (SI). The benefit
of Section 382- B of the Criminal Procedure Code, 1898 (Cr.P.C.) was also extended in their
favour.
2. The brief facts of the case, as alleged in the FIR, are that on 8th January 2012, PW -1
complainant Muhammad Rehman son of Shams -ur-Rehman lodged the FIR bearing No.09/2012
with Dera Allah Yar Police Station, District Jaffarabad, alleging therein that on the stated date,
time and place, he alon g with his brother and cousins was sitting in his shop, when at about 7:30
p.m., the appellants/convicts along with absconding accused equipped with pistols came on
motorcycle. On pointation of absconding accused the appellants/convicts made firing upon them,
causing severe injuries to the complainant's brother Muhammad Farooq. Meanwhile, the police
also reached to the spot and apprehended the appellants, whilst co- accused Muhammad Qasim
made his escape good. Thereafter, the injured on the way to hospital, succumbed to his injuries.
The motive as stated was the old enmity between the complainant and the absconding accused
Muhammad Qasim. Corollary, the instant case was registered.
3. During trial, the prosecution examined PW -1, complainant of the case, who i dentified his
Fard-e-Bayan as Ex.P/1- A, PW -2 Fazal Rehman, the eye -witness of the occurrence, PW -3 Ali
Murad, head constable, PW -4 Dr. Shaukat Ali, Medical Officer DHQ, Dera Allah Yar, who
issued death certificate of the deceased Muhammad Farooq as Ex.P/4 -A, PW -5 Muhammad
Aslam, Head Constable CIA Staff, Dera Allah Yar, PW -6 Muhammad Ashraf, constable, PW -7
Dil Murad, constable and PW -8 Talib Hussain, SI/investigating officer, who produced FIR
Ex.P/8 -A, memo of map as Ex.P/8- B, death report as Ex.P/8- C, cha llan as Ex.P/8 -D, FSL
examination report Karachi as Ex.P/8 -E, incomplete challan No.18- A/ 2012 as Ex.P/8- F, FSL
report Quetta as Ex.P/8 -G, incomplete challan No.18- B/ 2012, while the case property could not
be produced, which statedly was destroyed in the flood of 2012, however SHO Muhammad Essa
prepared challan No.18- C/2012 and produced as Ex.P/J. On completion of the prosecution's
evidence, the appellants were examined under Section 342 of the Cr.P.C., wherein they once
again claimed their false involveme nt in the case, but did not record their statement on oath as
envisaged under Section 340(2) of the Cr.P.C. nor produced any witness in their defence. The
learned trial Court, on conclusion of the trial by means of impugned judgment, convicted and
sentenced the appellants as mentioned hereinbefore, hence this appeal.
4. We have heard the learned counsel for the parties and have gone through the record with
their valuable assistance. Instead of commenting upon the merits of the case, it would be apt to
repro duce the points of determination formulated by the learned trial court during the trial. As
per the impugned judgment the following points were formulated: --
"1. Whether on 8th January, 2012 at about 07.30 P.M at Quetta road near Old Bus Adda,
the accused persons equipped with fire arms, in furtherance of their common intention
murdered the brother of complainant namely Muhammad Farooq?
2. What offence if any has been committed?"
Question No.1 was resolved by the learned trial court in the affirmative, whereby it
observed that: --
"In view of the above discussion, I am of the view that prosecution has successfully
established its case beyond any shadow of doubt, accordingly my findings on this point
are in affirmative."
Whereas in regard with question No. 2 the following observation was made by the
learned trial court: --
" Thus, the case of both the present accused persons comes within the domain of the
definition of Qatl -i-Amd so they are liable to be convicted under section 302, P.P.C. So,
1st and 2nd poi nts of determination are decided in affirmation and in the above terms.
Since no proof as required under section 304- is available so punishment as Qisas is not
warranted. The accused persons Bakhtiar and Mir Gul are thereby convicted under
section 302(b), P.P.C. and each is punished to suffer imprisonment of life on each count
causing death to deceased Muhammad Farooq in view of the circumstances of the case as
sentence of death is not warranted. Accused persons are further ordered to pay fine of
Rs.200,000/ - (two Lac) each as compensation under section 544- A, Cr.P.C. which after
realization be equally distributed among the legal heirs of deceased. In default of
payment of fine to suffer R.I. of six months. Benefit under section 382- B, Cr.P.C. is
extended i n favour of accused persons. Accused Bekhtiar and Mir Gul are already in Jail
custody and shall remain till the completion of their sentences. The copies of judgment be
supplied to both convicts free of cost. Case file be kept in dormant till the arrest of
absconding accused."
(Underlining is supplied for emphasis).
5. The perusal of referred to concluding para manifests that, while deciding the question of
quantum of sentence the learned trial court drew a misconception of law and by adopting the
misconstrued interpretation thereof, observed that since the requirement of Section 304, P.P.C.
are not available, therefore, Qisas cannot be enforced.
Irrespective of the merits of the case, we have been observing that time and again this
proposition is coming before this court and we have noticed that except a few the learne d
presiding officers of the trial courts are misinterpreting the law by applying wrong notion. The
correct import of Section 302, (a) (b) and (c) and of Section 304, P.P.C. are required to be kept in
mind with historical perspective of enforcement of the Q isas and Diyat law in the country.
6. In order to appreciate the proposition involved in this case, it is necessary to notice the
historical background of the enforcement of Qisas and Diyat laws in the country. The Shariat
appellate bench of the Hon'ble Ap ex Court in the case of Federation of Pakistan through
Secretary, Ministry of Law v. Gul Hassan Khan (PLD 1989 SC 633) declared the provisions of
Pakistan Penal Code, 1860 relating to offences against human body including Section 302,
P.P.C. repugnant to t he injunctions of Islam as enshrined in the Holy Quran and Sunnah and
fixed 23.03.1990 to be the date from which the decision of the Hon'ble Supreme Court was to
take effect and said provisions seized to have effect. The Federation of Pakistan filed review
petitions whereas another petition was also filed seeking the review of the dictum laid down in
judgment supra; however, subsequently on basis of statement of the learned Attorney General
petitions were disposed of on having become infructuous, whereby the learned Attorney General
assured the court that the necessary Ordinance will be promulgated by 5th September 1990 and
the judgment whereof was reported in the case titled as Federation of Pakistan v. N.W. F. P
Government (PLD 1990 SC 1172).
7. Thereafter , the criminal law (2nd Amendment) Ordinance 1990 (Ordinance VII of 1990)
was then promulgated on 5th September 1990 and was enforced from 12th Rabi -ul-Awal 1411
Hijri. This Ordinance enforced the provisions relating to Qisas and Diyat by amending and
substituting the provisions of Sections 53, 55, 109 and 299 to 338, P.P.C. Certain provisions of
Code of Criminal Procedure were also amended to bring them in line with the amended
provision of Pakistan Penal Code, 1860. The Ordinances containing these provisi ons with some
changes introduced in pursuant to the observations made in the case of Muhammad Ashraf v.
The State (PLD 1991 Lahore 347) were promulgated and enforced from time to time. The
legislatures ultimately accorded their approval and Qisas and Diyat provisions contained in the
Ordinance No.CXIII of 1996 were approved by the parliament on 11.04.1997 as Act -II, 1997
called the criminal law (Amendment) Act 1997 and enforced, on having received the assent of
the President of the Islamic Republic of Pakis tan.
8. In the instant case since the provision of Section 302 (a), (b), (c) and Section 304, P.P.C.
i.e. Qatl -i-amd liable to Qisas, the death or imprisonment for life as Ta'zir are to be distinguished
in the light of the dictum laid down by the Hon'ble A pex Court, therefore, it would be
advantageous to reproduce the Section 302 (a), (b) and (c) P.P.C., which run as follows: --
"302. Punishment of qatl -i-amd. Whoever commits qatl -i-amd shall, subject to the
provisions of this Chapter be;
(a) punished with death as Qisas.
(b) Punished with death or imprisonment for life as ta'zir having regard to the facts
and circumstances of the case, if the proof in either of the forms specified in section 304
is not available; or
(c) Punished with imprisonment of either description for a term which may extend to
twenty -five years, where according to the Injunctions of Islam the punishment of Qisas is
not applicable;......"
Whereas section 304, P.P.C. reads as under: --
"304. Proof of qatl -i-amd liable to qisas, etc. ---(1) P roof of qatl -i-amd liable to qisas shall
be in any of the following forms, namely:
(a) the accused makes before a Court competent to try the offence a voluntary and
true confession of the commission of the offence; or
(b) by the evidence as provided in Art icle 17 of the Qanun- e-Shahadat, 1984 (P.O.
No. 10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to
qisas."
9. The provisions of sections 302(a) and 304, P.P.C. postulate that death cannot be enforced
as Qis as, if the conditions contained in section 304, P.P.C. are not available. The clause (a) of
section 304, P.P.C. stipulates the requirement of voluntary and true confession of the accused
before a court of competent jurisdiction, while its clause (b) contem plates that the death as Qisas
can only be enforced if the evidence as provided in Article 17 of the Qanun- e-Shahadat Order,
1984 is available. The language of clause (a), is self -explanatory, while the clause (b) refers to
Article 17 of the Qanun- e-Shahad at Order, 1984, which postulates the requirement of Tazkiya -
ul-shahood (certification of probity of witness) is no doubt obligatory in cases punishable with
Hadd and/or Qisas, but where an accused is tried and is to be awarded punishment in Ta'zir,
Tazkiya of witness is not necessary requirement for recording the conviction and awarding the
sentence thereon. The provisions of law relevant in this context are Articles 3 and 17 of the
Qanun- e-Shahadat Order 1984 and the relevant extract of referred to Articles read as under: --
"3. Who may testify: All persons shall be competent to testify unless the Court
considers that they are prevented from understanding the questions put to them, or from
giving rational mind, or any other cause of the same kind:
Provided t hat a person shall not be competent to testify if he has been convicted by a
Court for perjury or giving false evidence;
Provided further that the provisions of the first proviso shall not apply to a person about
whom the Court is satisfied that he has repented thereafter and mended his ways;
Provided further that the Court shall determine the competence of a witness in
accordance with the qualifications prescribed by the injunctions of Islam as laid down in
the Holy Quran and Sunnah for a witness, and, whe re such witness is not forthcoming the
Court may take the evidence of a witness who may be available.
17. Competence and number of witnesses: ---(1) The competence of a person to testify,
and the number of witnesses required in any case shall be determined in accordance with
the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any
other special law,
(a) in matters pertaining to financial or future obligations, if reduced to writing, the
instrument shall be attested by two men, or one man and two women, so that one may
remind the other, if necessary and evidence shall be led accordingly ; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one
woman or such other evidence as the circumstances of the case may warrant.
Tazkiya -al-Shahood, its meaning and/or scope, analysis and discussion was made by the
Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan, Lahore High Court,
Peshawar High Court, Supreme Court of Azad Jammu and Kashmir and Shariat Court of
Azad Jammu and Kashmir in the following cases holding that the Tazkiya -al-Shahood is
a mandatory requirement in cases of Hudood and Qisas: ---
(1) Sanaullah v. The Sta te (PLD 1991 FSC 186);
(2) State v. Punnu Khan (PLD 1984 SC (AJ& K) 1);
(3) State v. Nazir (PLD 1986 Sh.C. (AJ& K) 143);
(4) Ghulam Ali v. The State (PLD 1986 SC 741);
(5) Nadir Khan v. The State (PLD 1992 FSC 390);
(6) Arshad Ali v. The State (1993 PCr.LJ 2540);
(7) Mumtaz Ahmad and another v. The State (PLD 1990 FSC 38);
(8) Danial Boyd (Muslim name Saifullah) v. State (1992 SCMR 196);
(9) Hassan Muhammad v. State (PLD 1989 SC (AJ& K) 5);
(10) Masood Aziz v. The State (1989 PCr.LJ 1462);
(11) Abdul Razaq and another v. The State (PLD 1988 SC (AJ& K) 190);
(12) Niaz Khan v. State (PLD (sic) Sh.C. (AJ& K) 9);
(13) Naseer Hussain v. The State (PLD 1984 Lah.67) ;
(14) Home Secretary N. -W.F.P. v. Muhammad Ayaz Khan etc. (PLD 1996 Pesh. 76);
(15) Manzoor etc. v. The State (1992 SCMR 2037).
10. The conditions enumerated in Section 304, P.P.C. would be required only in a case where
the penalty of death as Qisas is awarded as envisaged under Section 302(a), P.P.C., but in case if
penalty of death or imprisonment for life as Ta'zir is going to be awarded, the aforesaid condition
would not be required. This proposition came up for hearing before the Hon'ble Supreme Court
in case of Abdus Salam v. The State (2000 SCMR 338) wherein the following principle was laid
down: --
"8. The other question on which leave has been granted is as to what distinctive standard
of proof would be required and guiding principles followed while awarding punishment
of death as Ta'zir.
The basic difference as regards punishments provided in sec tions 302(a) and 302(b) for
Qatl-i-amd is that under section 302(a) there is no discretion with the Court but to award
sentence of death as Qisas as that is the punishment provided, whereas under section
302(b) punishment is death or imprisonment for life as Ta'zir.
It may be observed that though under section 302(b), P.P.C. for Qatl -i-amd punishment
as Ta'zir is provided as death or imprisonment for life but from this it does not follow that
the Court has absolute discretion to award either of the two sent ences. It is now well
settled that normal sentence for Qatl- i-amd as Ta'zir is death. The Court, however, has the
discretion to award the lesser sentence of life imprisonment in case there are mitigating
circumstances. Such discretion is neither uncontroll ed nor it is to be exercised arbitrarily.
It is to be exercised judiciously. The Court, after reaching the conclusion that the accused
is guilty of Qatl- i-amd, can award lesser sentence of life imprisonment provided the
Court records reasons for awarding s uch lesser sentence i.e. mitigating circumstances on
account of which a case is made out for not awarding the normal sentence of death. We
are, therefore, of the view that, though in section 302(b), P.P.C. provision has been made
for awarding death sentenc e or life imprisonment as Ta'zir for Qatl- i-amd, the normal
sentence for committing such offence is death and in case the other punishment, i.e. life
imprisonment is awarded the Court is required to record reasons for such lesser
sentence."
The aforesaid p rinciple was again considered by the Hon'ble Apex Court in case of Sarfaraz alias
Sappi v. The State (2000 SCMR 1758) and it would be instructive to reproduce the relevant
passage therefrom, which reads as under: --
"7 ......... ... This aspect of the case can be examined from another angle i.e. standard of
evidence under Islamic dispensation of justice can only be taken into consideration for
proving the guilt where the accused has to be punished for the offence pertaining to
Hudood or Qisas. But in the cas es pertaining to Tazir standard of Islamic Qanun- e-
Shahadat will not be applied. In this behalf reference to section 304, P.P.C. may be made
which envisages that proof of Qatl -i-Amd liable to Qisas shall be in any of the forms
namely if the accused makes b efore the Court competent to try the offence a voluntary
and true confession of the commission of the offence or by the evidence as provided in
Article 17 of Qanun- e-Shahadat Order, 1984."
11. Another requirement of law has also escaped notice of the learn ed trial court i.e.
provision of section 367(5), Cr.P.C, which provides as under: --
"367. Language of judgment: Contents of judgment. (1).........
(5) If the accused is convicted of an offence punishable with death, and the Court
sentences him to any puni shment other than death, and Court shall in its judgment state
the reason why sentence of death was not passed."
In the peculiar facts and circumstances of this case it can safely be concluded that when
an unimpeachable evidence, inspiring confidence for proving the charge of Qatl -i-amd has been
brought on record but was not fulfilling the conditions laid down under Section 304, P.P.C., the
accused could have been convicted under Section 302(b), P.P.C. and sentenced to either death or
imprisonment for life as Ta'zir. But then the provision of Section 367(5) would come into play
and guidance in this behalf can be solicited from the dictum laid down in Abdus Salam's case
supra. For rendering this view we are fortified by the dictum laid down by the Hon'ble Supreme
Court in case of Muhammad Aslam v. The State (PLD 2009 SC 777).
Therefore, in view of above discussion, though under section 302(b), P.P.C., for Qatl -i-
amd punishment as Ta'zir is provided as death or imprisonment for life but, it does not follow
that the Court has absolute discretion to award either of the two sentences. Normal sentence for
Qatl-i-amd as Ta'zir is death. The Court, however, has the discretion to award the lesser sentence
of life imprisonment in case there are mitigating circumstance s. Such discretion is neither
uncontrolled nor it is to be exercised arbitrarily, but judiciously. The Court, after reaching the
conclusion that the accused is guilty of Qatl -i-amd, can award lesser sentence of life
imprisonment provided the Court records reasons for awarding such lesser sentence i.e.
mitigating circumstances on basis whereof, the case is boiled down for not awarding sentence of
death.
Once the trial court drew the conclusion that the appellants had killed the brother of the
complainant and thereby committed Qatl- i-amd within the meaning of section 302(b), it was
bounden duty of the trial court to have recorded the reasons for awarding the sentence of life
imprisonment instead of penalty of death, which course will ultimately meet the end s of justice
subject to the provisions of Section 367(5), Cr.P.C. As observed above the learned trial Judge
had to judiciously exercise the discretion. It appears that in the instant case the said exercise was
not carried out in letter and spirit, therefor e, we are of the considered view that the trial court has
not been able to record even a single reason or for that matter to discuss the availability of any
grounds for awarding the lesser punishment to the appellants for committing Qatl -i-amd of the
compl ainant's brother.
In view of the dictum laid down by the Hon'ble Apex Court and the discussion made
herein above, we are of the considered opinion that the conclusion drawn by the learned trial
court is not sustainable. It would therefore be appropriate t hat the case be remanded back to the
trial court for re -writing of judgment in accordance with the relevant provisions of P.P.C. and
Cr.P.C.
With the above observations this appeal is partly accepted and the judgment dated 8th
November, 2013 passed by the trial court is hereby set aside. The case is remanded back to the
trial court for re -writing of judgment in view of the discussion made hereinabove.
These are the reasons for our short order announced earlier in open court.
Copy of this judgment be sent to the Inspection Branch of this court for onwards
transmission to all the Sessions Judges, Additional Sessions Judges and Special Judges of the
Anti-Terrorism Courts of the province.
HBT/46/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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