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P L D 1994 Supreme Court 885

Present: Muhammad Munir Khan and Mir Hazar Khan Khoso, JJ

ICHALIL-UZ-ZAMAN---Petitioner

versus

SUPREME APPELLATE COURT, LAHORE and 4 others---Respondent:

Constitutional Petition No. 36 of 1994, heard on 3rd August, 1994.

(On appeal from the judgment of Supreme Appellate Court, Laho dated 14-3-1993 passed in
Criminal Appeal No.91/SAC/L/1992).

(a) Penal Code (RLV of 1860).--

----Ss. 302(a), 306(c), 307 & 308---Qatl-i-amd committed by the husband of b wife leaving behind
child/children was not liable to Qisas---Courts had r lawful authority/jurisdiction/power whatsoever to
convict the accused undi 5.302, P.P.C. or impose penalty of death on him.

In the present case the F.I.R. and the prosecution evidence reveals that the deceased was the wife of the
offender. A daughter was born wedlock. Daughter was alive. She was a -Wall of the deceased and was also
the direct descendant of the offender/petitioner. Both the trial and appellant Courts were fully aware of this
aspect of the case. Yet, the offender had bet sentenced to death as Qisas under section 302(a) of P.P.C.,
whereas provision of section 306(c), P.P.C. clearly lay down that Qatl-i-amd committed by it has
specifically provided punishment for Qatl-i-amd not liable to Qisas, under section 308, P.P.C., which does
not provide death penalty, so the trial Court and also the Appellate Court had no lawful
authority/jurisdiction/power whatsoever to convict the accused under section 302, P.P.C. or to impose penalty
of death on him, and had acted in gross violation of law. The Courts derive authority to punish the accused
from the statute. If the statute does not provide death penalty for the offence then obviously the Court would
have no jurisdiction to award the same, and, as such, the conviction and sentence of the accused recorded
under section 302, P.P.C. was coram non judice.

It was apparent on the face of record that Wali (daughter) of the deceased was direct descendant of the
offender. Language of sections 306 and 308, P.P.C. was plain enough to show that Qatl-i-amd committed by
the accused was not liable to Qisas and Oatl-i-amd not liable to Qisas was specifically punishable under
section 308, P.P.C. only. So, the accused could be convicted under section 308, P.P.C. and not under section
302, P.P.C. to death as Qisas or Ta'zir. Had the Courts taken the notice of three sections of the Pakistan Penal
Code i.e., section 306, section 307 and section 308, they would not have sentenced the accused to death
under section 302, P.P.C. The error committed by the Courts in convicting the accused under section 302,
P.P.C. and sentencing him to death, was so serious that had the accused eventually been hanged to death, it
would have amounted to murder through judicial process. Pleas, of good faith/bona fide/ignorance of
law/incompetency are not available in such like cases. In Islam, Holy Prophet Muhammad (peace be upon
him) has the following views/remarks as quoted from well-known Ahadis of the Holy Prophet:--

Supreme Court struck a note of warning to all the Courts in the country to exercise utmost care and caution
while dealing with the life and liberty of citizens because slight carelessness on their part may deprive an
accused person/citizen of his life and may cause irreparable hardship and damage to his family.
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(b) Constitution of Pakistan (1973)-

----Arts.184(3), 4(1)(2)(a) &. 9---Penal Code (XLV of 1860), Ss.302(a), 306(c) & 308---Special Courts
for Speedy Trials Act (IX of 1992), Ss.8 & 13---Human rights case---Both Special Court for Speedy
Trials and.Supreme Appellate Court had ordered death sentence for the accused although he was not liable to
death in law for the offence allegedly committed by him---Relevant law had not provided any remedy by
way of appeal/petition for leave to appeal/review/revision against the said order of the Supreme Appellate
Court---Case, thus, was fit and proper for interference in exercise of original jurisdiction of Supreme Court
under Art.184(3) of the Constitution, for question involved was of public importance with reference to the
enforcement of fundamental rights conferred by the Constitution---Supreme Court while accepting the
petition under Art.184(3) of the Constitution set aside the judgment of the Supreme Appellate Court and
remitted the case to the relevant Court for fresh decision in accordance with law---Supreme Court,
however, while quoting Ahadis of Holy Prophet, struck a note of caution to all the Courts in the country to
exercise utmost care while dealing with the life and liberty of citizens, for slight carelessness on their part
could deprive an accused person/citizen of his life and may cause irreparable hardship and damage to his
family.

In the present case the law had not provided any remedy by way of appeal/petition for leave to
appeal/review/revision against the judgment or order of the Supreme Appellate Court. If the impugned
judgments were allowed to stand then the accused would be deprived of his life obviously in pursuance of
the orders which suffered from lack of jurisdiction and authority, gross carelessness, illegality and were
violative of Fundamental Rights guaranteed by the Constitution.

Constitution of Pakistan gave protection to the citizens of Pakistan against illegal treatment in the
matter of life, liberty and body and had also conferred original jurisdiction on Supreme Court under Article
184(3) for providing complete justice to the aggrieved persons in the matters involving Fundamental Rights
conferred by Chapter I of Part II of the Constitution.

The Courts had ordered the accused to be hanged to death although he was not liable to death in. law for the
offence allegedly committed by him. There could be no case more fit and proper than the present one for
interference in exercise of original jurisdiction of Supreme Court under Article 184(3) of the Constitution.
Question of public importance with reference to the enforcement of Fundamental Rights conferred by the
Constitution was very much involved, therefore, Supreme Court in exercise of its jurisdiction under Article
184(3) of the? constitution, came to the rescue of the accused to save his life. Accordingly, Supreme Court
accepted the petition, set aside the judgment of the Supreme Appellate Court and remitted the case to the
Court for fresh decision in accordance with law in the light of observations made.

Supreme Court, also; observed that the question of convicting the accused under appropriate section
of the Code/law and. awarding him legal sentence required utmost care on the part of the Courts. Requisite
care had not been exercised in the case. It was the duty of a Court to administer justice within the four
corners of the Code according to the canons of law regardless of the lack of proper assistance by the counsel
for the parties. The Courts ought to punish the accused strictly in accordance with law.
(c) Administration of justice---

----Criminal trial---Sentence---Duty of Court.

(d) Islamic Jurisprudence---

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---- Duty of Qazi.

Zafar Pasha Chaudhry, Advocate instructed by Mahmood A. Qureshi, Advocate-on-Record for
Petitioner.
Ch. Iftikhar Ahmad, Deputy Attorney-General for Pakistan and Farooq Bedar, Additional
Advocate-General, Punjab for Respondents.

Date of hearing: 3rd August, 1994.

JUDGMENT

MUHAMMAD MUNIR KHAN, J.---Through this petition, Khalil-uz-Zaman, petitioner has

invoked the original jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, against the judgment dated 14-3-1993 of the Supreme Appellate Court, Lahore,
whereby the conviction recorded under section 302, P.P.C. for the murder of Mst. Aasia Parveen (wife of the
petitioner) and sentence of death awarded to the petitioner by Judge, Special Court for Speedy Trials No.lI,
Lahore, was maintained.

2. The prosecution case, briefly stated, was that the petitioner was married to the deceased four years before
the occurrence. She gave birth to Mst. Amina who was of two years age at the time of occurrence. On the
eventful day, at about i1-00 a.m., the deceased went to the house of her father Faqir Ullah situate in
Mohallah Harni Shah, Gali Lasoori WA Sharaqpur, for stitching a fir a for her daughter as Eid was appearing.
The petitioner came saying - to Why she hued creme to the house of her parents. The same day at 9-00
p.m., Faqir Ullah, father of the deceased accompanied by Muhammad Saeed came to the house of the
petitioner for giving Eidi to the deceased and also to counsel the petitioner. They found the petitioner and his
co-accused namely, Jamil-uz-Zaman and Asif-uz-Zaman quarrelling with the . deceased on account of her
visit to the house of the parents. Jamil-uz-Zaman and? Asif-uz-Zaman, within their view, caught hold of
the decease, while Khalf-uz-Zaman (petitioner) fired shot from pistol hitting left side of her chest resulting
in her death at the spot.

3. The petitioner alongwith his two co-accused was tried by Special Court for Speedy Trials NO.II,
Lahore. The learned Court acquitted. the two co-accused and convicted the petitioner under sections 302,
324, 337-F of P.P.C. and sentenced him to death as Ta'zir under section 302,, P.P.C., to rigorous
imprisonment for ten years under section 324, P.P.C. and to rigorous imprisonment for one year under section
337-F of P.P.C. The petitioner filed an appeal against his conviction and sentence before the learned
Supreme Appellate Court, Lahore which set aside the conviction under section 337-F of P.P.C. but upheld
the conviction and sentence of death awarded to him under section 302, P.P.C. The learned appellate Court
was of the view that--

"In the circumstances, the appellant is liable for Qatl-e-Amd under section 302(a) of the P.P.C. punishable
with death as Qisas."

4. As stated by the learned counsel, the petitioner had filed Review Application before the Supreme
Appellate Court which was not entertained on account of lack of jurisdiction. The petitioner then filed writ
petition against the judgment of the trial Court and of the Supreme Appellate Court, in the Lahore High
Court, Lahore which was subsequently withdrawn in order to invoke the jurisdiction of this Court under
Article 184 of the Constitution. Hence this petition.

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???? 5. Mr. War Pasha Chaudhry, Advocate, the learned counsel for the petitioner relied on the provisions of
sections 306(c) and 308, P.P.C. to contend that the offence committed by the petitioner was not punishable
under section 302, P.P.C. at all. Therefore, the conviction of the petitioner under section 302, P.P.C. and
sentence of death awarded to him by the trial Court and maintained by the Appellate Court are coram non
judice. He explained that Mst. Amina, the daughter of the petitioner from the deceased is admittedly the wall
of the victim, so Qatl-e Amd committed by the petitioner is not liable to Qisas and as such the trial Court
and the Appellate Court both had no legal authority to convict the petitioner under section 302, P.P.C.
and? award him sentence of death. In the???ircumstances of the case, the offence allegedly committed by the
petitioner falls within the purview of section 306, P.P.C. punishable under section 308, P.P.C. with Diyat and
in no case forInnricnament exceeding fourteen verse.? reference to the enforcement of Fundamental Rights
conferred by the Constitution was very much involved, therefore, Supreme Court in exercise of its
jurisdiction under Article 184(3) of the Constitution, came to the rescue of the accused to save his life.
Accordingly, Supreme Court accepted the petition, set aside the judgment of the Supreme Appellate Court
and remitted the case to the Court for fresh decision in accordance with law in the light of observations made.
[p. 892) D

Supreme Court, also, observed that the question of convicting the accused under appropriate section
of the Code/law and awarding him legal sentence required utmost care on the part of the Courts. Requisite
care had not been exercised in the case. It was the duty of a Court to administer justice within the four
corners of the Code according to the canons of law regardless of the lack of proper assistance by the counsel
for the parties. The Courts ought to punish the accused strictly in accordance with law. [p. 8921 E & F

(c) Administration of justice---

----Criminal trial---Sentence---Duty of Court. [p. 892] E & F

(d) Islamic Jurisprudence---

---- Duty of Qazi. [p. 892] F

War Pasha Chaudhry, Advocate instructed by Mahmood A. Qureshi, Advocate-on-Record for
Petitioner.
Ch. Iftikhar Ahmad, Deputy Attorney-General for Pakistan and Farooq Bedar, Additional
Advocate-General, Punjab for Respondents.

Date of hearing: 3rd August, 1994.

JUDGMENT

MUHAMMAD MUNIR KHAN, J: --Through this petition, Khahl-uz-Zaman, petitioner has

invoked the original jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, against the judgment dated 14-3-1993 of the Supreme Appellate Court, Lahore,
whereby the conviction recorded under section 302, P.P.C. for the murder of Mst. Aasia Parveen (wife of the
petitioner) and sentence of death awarded to the petitioner by Judge, Special Court for Speedy Trials No.II,
Lahore, was maintained.

2. The prosecution case, briefly stated, was that the petitioner was married to the deceased four years
before the occurrence. She gave birth to Mst. Amina who was of two years age at the time of occurrence. On
the eventful day, at about 11-00 a.m., the deceased went to the house of her father Faqir Ullah situate in

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Mohallah Harni Shah, Gali Lasoori Wall, Sharaqpur, for stitching a firaaa for her daughter as Eid was
appearing. The petitioner came house of her parents. The same day at 9-00 pm., Faqir Ullah, father of the
deceased accompanied by Muhammad Saeed came to the house of the petitioner for giving Eidi to the
deceased and also to counsel the petitioner. They found the petitioner and his co-accused namely,
Jamil-uz-Zaman and Asif-uz-Zaman quarrelling with the deceased on account of her visit to the house of
the parents. Jamil-uz-Zaman and Asif-uz-Zaman, within their view, caught hold of the decease, while
Khalil-uz-Zaman (petitioner) fired shot from pistol hitting left side of her chest resulting in her death at the
spot.

3. The petitioner alongwith his two co-accused was tried by Special Court for Speedy Trials No.II,
Lahore. The learned Court acquitted. the two co-accused and convicted the petitioner under sections 302,
324, 337-F of P.P.C. and sentenced him to death as Ta'zir under section 302,. P.P.C., to rigorous
imprisonment for ten years under section 324, P.P.C. and to rigorous imprisonment for one year under section
337-F of P.P.C. The petitioner filed an appeal against his conviction and sentence before the learned
Supreme Appellate Court, Lahore which set aside the conviction under section 337-F of P.P.C. but upheld
the conviction and sentence of death awarded to him under section 302, P.P.C. The learned appellate Court
was of the view that--

"In the circumstances, the appellant is liable for Oatl-e-Amd under section 302(a) of the P.P.C. punishable
with death as Qisas."

4. As stated by the learned counsel, the petitioner had filed Review Application before the Supreme
Appellate Court which was not entertained on account of lack of jurisdiction. The petitioner then filed writ
petition against the judgment of the trial Court and of the Supreme Appellate Court, in the Lahore High
Court, Lahore which was subsequently withdrawn in order to invoke the jurisdiction of this 'court under
Article 184 of the Constitution. Hence this petition.

???? 5. Mr. War Pasha Chaudhry, Advocate, the learned counsel for the petitioner relied on the provisions of
sections 306(c) and 308, P.P.C. to contend?? that the offence committed by the petitioner was not punishable
under section 302, P.P.C. at all. Therefore, the conviction of the petitioner under section 302, P.P.C. and
sentence of death awarded to him by the trial Court and maintained by the Appellate Court are coram non
judice. He explained that Mst. Amina, the daughter of the petitioner from the deceased is admittedly
the wall of the victim, so Qatl-e Amd committed by the petitioner is not liable to Qisas and as such the trial
Court and the Appellate Court both had no legal authority to convict the petitioner under section 302, P.P.C.
and award him sentence of death. In the circumstances of the case, the offence allegedly committed by the
petitioner falls within the purview of section 306, P.P.C. punishable under section 308, P.P.C. withDiyat and
in no case for section 306 and section 308 of the P.P.C.) may be reproduced advantageously:--

"306. Oatl-i-Amd not liable to Oisas: Qatl-i-Amd shall not be liable to Qisas in the following cases,
namely:--

(a)???????? When an offender is a minor or insane:

Provided that, where a person liable to Qisas associates himself in the commission of the offence with a
person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from
Qisas;

(b)???????? when an offender causes death of his child or grandchild, howlowsoever; and

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(c)????????? when. any Wali of the victim is a direct descendant, howlowsoever, of ??????????? the offender.

308. Punishment in Qatl-i-Amd not liable to Qisas etc?(I) where an offender? of Oatl-i-Amd is not liable
to Oisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to
Diyat:
R,? i:

Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by
such person as may be determined by the Court: Provided further that ,,Where at the time of committing
Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being sane, had a lucid interval,
so as to be able to realise the consequences of his act, he may also be punished with imprisonment? of either
description for a term which may extend to fourteen years as Ta'zir: Provided further that, where the Qisas is
not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali
other than the offender and if there is not Wali other than the offender, he shall be punished with
imprisonment of either description for a term which may extend to fourteen years as Ta'zir.

(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and
circumstances of the case in addition to the punishment of Diyat, may punish the offender with
imprisonment of either description for a term which may extend, to fourteen years, as Ta'zir."

` 6. Ch. `Iftikhar Ahmad, learned Deputy Attorney-General and Mr.Farooq Bedar, learned Additional
Advocate-General have both frankly and rightly conceded contentions of the learned counsel for the
petitioner. They rather supported this petition under Article 184 of the Constitution.

7. On our independent assessment of the facts, circumstances of the case and appreciation of the relevant
provisions of law, we find that the F.I.R. and the prosecution evidence reveal that the deceased was the wife
of the offender. A daughter namely, Mst. Amine was born out of the wedlock. Mst. Amine is alive. She is a
Wali of the deceased and is also the direct descendant of the offender/petitioner. From the judgment of the
trial Court and the appellate Court it is very much obvious that both the learned Courts- were fully aware of
this aspect of the case. Yet, the offender has been sentenced to death as Qisas under section 302(a) of P.P.C.,
whereas provisions of section 306(c); P.P.C. clearly lay down that Qatl-i-Amd committed by the husband of
his wife leaving A behind child/children is not liable to Qisas. Law has specifically provided punishment for
Qatl-i-Amd not liable to Qisas, under section 308, P.P.C., which does not provide death penalty, so we are in
no manner of doubt that the trial Court and also the learned Appellate Court had no lawful
authority/jurisdiction/power whatsoever to convict the petitioner under section 302, P.P.C. or to impose
penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the
accused from the statute. If the statute does not provide death penalty for the offence then obviously the..
Court would have no jurisdiction to award the same, and, as such, the conviction and sentence of the
petitioner recorded under section 302, P.P.C. is coram non judice.

8. The law does not provide any remedy by way of appeal/petition for leave to appeal/review/revision
against the judgment or order of the Supreme Appellate Court. If the impugned judgments are allowed to
stand then the petitioner would be deprived of his life obviously in pursuance of the orders which suffer from
lack of jurisdiction and authority, gross carelessness, illegality and were violative of Fundamental Rights
guaranteed by the Constitution. Fortunately for the petitioner, our Constitution gives protection to the citizens
of Pakistan against illegal treatment in the matter of life, liberty and body and has also conferred original
jurisdiction under Article 184(3) for providing complete justice to the aggrieved persons in the matters
involving Fundamental Rights conferred by Chapter I of Part II of the Constitution. Article 4(1)(2)(a) and
Article 9 of the Constitution read:--

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"4.?? Right of individuals to be dealt with in accordance with law, etc.--(1) To enjoy the protection of law
and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be,
and of every other person for the time being within Pakistan.

(2)??????? In particular--

(a)no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in
accordance with law;

????? (b). .......................................................... ... ,A ,~,

????? (c)? ...... ...... ...... ...... ..... ... ...... ... ...???????? ...???????? ...???????? ...???????? .-

9.????????? Security of person: -No person shall be deprived of life or liberty save
???????????? in accordance with law."
Article 184(3) of the Constitution is as follows:--

"Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of
public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter
I 'of Part II is involved, have the power to make an order of the nature mentioned in the same Article."

In this case, the Courts vide impugned judgments have ordered the petitioner to be hanged to death
although he was/is not liable to death in law for the offence allegedly committed by him. There can be no
case more fit and proper than the present one for interference in exercise of our original jurisdiction under
Article 184(3) of the Constitution. Question of public importance with reference to the enforcement of
Fundamental Rights conferred by the Constitution is very much involved, therefore, we feel that in exercise
of our jurisdiction under Article 184(3) of the Constitution, we must p come to the rescue of the petitioner to
save his life.

9. Accordingly, we accept the petition, set aside the judgment of the Supreme Appellate Court dated
14-3-1993 (which was a Court other than the Supreme Court). Since, by now, Special Courts for Speedy
Trials Act has expired and the appeals pending before the Supreme Appellate Court, Lahore stand transferred
to the Lahore High Court, Lahore, so we remit the case to: the Lahore High Court, Lahore for fresh decision
in accordance with law in the i light of our observations made above.

10. Before parting with the judgment, we would like to observe that the question of convicting the
accused under appropriate section of the Code/law and awarding him legal sentence requires utmost care on
the part of the Courts. Unfortunately, requisite care has not been exercised in this case. It is E the duty of a
Court to administer justice within the four corners of the Code according to the canons of law regardless of
the lack of proper assistance by the learned counsel for the parties. The Courts ought to punish the accused
strictly in accordance with law. It was apparent on-the face of record that
Mst. Amina Wali of the deceased was direct descendant of the offender. Language of sections 306 and 308,
P.P.C. is plain enough to show that Qatl-i? Amd committed by the petitioner was not liable to Qisas and
Qatl-i-Amd not liable to Oisas is specifically punishable under section 308, P.P.C. only. So, the? petitioner
could be convicted under section 308, P.P.C. and not under section 302, P.P.C. to death as Qisas or Ta'zir. Had
the Courts taken the trouble of reading three sections of the Pakistan Penal Code Le, section 306,
1994? section 307 and section 308, we are sure that they would not have sentenced the accused/petitioner to
death under section 302, P.P.C. The error committed by the Courts in convicting the accused/petitioner under

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section 302, P.P.C. and sentencing him to death, is so serious that had the petitioner eventually been hanged
to death, we are afraid it would have amounted to murder through judicial process. Needless to say that plea
of good faith/bona a fide/ignorance of law/incompetency is/are not available in such like cases. In Islam, our
Holy Prophet Muhammad (peace be upon him) has the following views/remarks as quoted from well-known
Ahadis of the Holy Prophet:--

By making these remarks and quoting Ahadis of the Holy Prophet Muhammad (p.b.u.h.) we intend to strike a
note of warning for all the Courts in the country to exercise utmost care and caution while dealing with the
life and liberty of citizens because slight carelessness on their part may deprive an accused person/citizen of
his life and may cause irreparable hardship and damage to his family. .

11. We had allowed this petition vide short order dated 3-8-1994 and these are the reasons therefor.
M.BA./K-255/S???????????????????????????????????????????????????????????????? Petition allowed.

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