P L D 2015 Supreme Court 77

 
Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry,
Dost Muhammad Khan and Qazi Faez Isa, JJ
 
CRIMINAL APPEAL NO. 126 OF 2012
           
(Against the judgment dated 23-11-2011 passed by the Islamabad High Court, Islamabad in
Criminal Appeal No.30 of 2004, Criminal Revision No.19 of 2004 and Murder Reference No.54
of 2005)
 
ZAHID REHMAN---Appellant
 
Versus
 
The STATE---Respondent
 
CRIMINAL PETITION NO.568 OF 2011
           
(Against the judgment dated 23-11-2011 passed by the Islamabad High Court, Islamabad in
Criminal Revision No. 19 of 2004)
 
SHEERIN ZAFAR---Petitioner
 
Versus
 
ZAHID-UR-REHMAN and others---Respondents
 
CRIMINAL APPEAL NO.80 OF 2001
           
(Against the judgment dated 20-4-2000 passed by the Lahore High Court, Rawalpindi Bench,
Rawalpindi in Criminal Appeal No.95 of 1994)
 
AMIR KHAN---Appellant
 
Versus
 
MUHAMMAD ASLAM and others---Respondents
 
Criminal Appeal No.126 of 2012, Criminal Petition No.568 of 2011 and Criminal Appeal No.80
of 2001, decided on 15th January, 2015.
 
Per Asif Saeed Khan Khosa, J; Dost Muhammad Khan and Qazi Faez Isa, JJ, agreeing; Ejaz
Afzal Khan and Ijaz Ahmed Chaudhry, JJ, disagreeing. [Majority view]
 
(a) Penal Code (XLV of 1860)---
 
----Ss. 299(k) & (l)---'Qisas' and 'Ta'zir'---Scope and distinction---Qisas in Islamic terms was
Almighty Allah's law dealing with the offences of murder and bodily hurt and Ta'zir was man-
made law for such offences and the standards of proof and the punishments provided for them
therefore were by and large different---Qisas and Ta'zir were two distinct and separate legal
regimes which were mutually exclusive and not overlapping and they were to be understood and
applied as such.
 
(b) Penal Code (XLV of 1860)---
 
----Ss. 302, 304, 306, 307, 308 & 311---Qatl-i-amd (intentional murder)---Punishment---Qisas or
Ta'zir---Scope and principles---Provisions of S. 304, P.P.C. provided that a conviction for an
intentional murder could entail the punishment of qisas only if the accused person made before a
court competent to try the offence a voluntary and true confession of commission of the offence
or the requisite number of witnesses were produced by the prosecution before the Trial Court and
their competence to testify was established through Tazkiya-tul-shahood (scrutiny of the witness
before trial of the accused person)---Cases of intentional murder other than those fulfilling the
requirements of S. 304, P.P.C. were cases entailing the punishment of ta'zir, as provided in and
declared by S. 302(b), P.P.C., and the provisions relating to the punishment of qisas were to have
no application or relevance to the same---For  all cases of conviction for the offence of
intentional murder the question as to whether the convict was to be punished with qisas or with
ta'zir was dependant upon the fact whether the conviction was brought about on the basis of
proof in either of the forms mentioned in S. 304, P.P.C. or not---When the conviction was based
upon proof as required by S. 304, P.P.C. then the sentencing regime applicable to such convict
was to be that of qisas but if the conviction was based upon proof other than that required by
S.304, P.P.C. then the sentencing regime relevant to such convict was to be that of ta'zir---Only
after determining that the sentencing regime of qisas was applicable to the case of a convict, did
it become relevant to consider as to whether such convict was to be punished with qisas under
the general provisions of S. 302(a), P.P.C. or his case attracted the exceptions to S.302(a), P.P.C
in the shape of Ss. 306 or 307, P.P.C. in which cases punishments different from that under
S.302(a), P.P.C. were provided---General provision regarding an intentional murder being
punishable through qisas was S. 302(a), P.P.C. carrying only the punishment of death but S. 302,
P.P.C. was subject to the other relevant provisions of Chapter XVI of the Pakistan Penal Code,
1860 which provided punishments different from that of death for certain special classes of
murderers mentioned therein despite their cases otherwise attracting a punishment of qisas---
Sections 306, 307 & 308, P.P.C. belonged to such category of cases which cases were exceptions
to the general provisions of S. 302(a), P.P.C. but nonetheless all such cases were to be initially
proved as cases entailing a punishment of qisas which punishment was then to be withheld
because the offender belonged to a special class for which an exception was created in the matter
of his punishment---Plain reading of the provisions of Ss. 306 & 307, P.P.C. showed that the
cases covered by said provisions were primarily cases of qisas but because of certain
considerations the punishment of qisas was not liable or enforceable in such cases---Before
considering the question of his punishment in such a case a convict must have incurred the
liability or enforceability of the punishment of qisas against him which punishment was to be
withheld from him in view of the considerations mentioned in Ss. 306 & 307, P.P.C. and that
was why some alternate punishments for such offenders were provided for in S. 308, P.P.C.; in
other words a conviction for an offence entailing the punishment of qisas must precede a
punishment under S. 308, P.P.C. and such conviction could only be recorded if proof in either of
the forms mentioned in S.304, P.P.C. was available before the Trial Court and not otherwise---
Provisions of S. 311, P.P.C. provided another example in such context showing as to how in a
case otherwise entailing a punishment of qisas the offender may be handed down a punishment
of ta'zir and the said section also fell in Chap. XVI of the Pakistan Penal Code, 1860
specifying  an  exception  to  the  general  provisions  of  S.302(a), P.P.C.---Provisions of and the
punishments provided in S. 308, P.P.C. were relevant only to cases of qisas and had no relevance
to cases of ta'zir as in the latter category of cases a totally different legal regime of proofs and
punishments was applicable.
 
            Abdus Salam v. The State 2000 SCMR 338 ref.
 
(c) Penal Code (XLV of 1860)---
 
----Ss. 302(a), 304, 306, 307 & 308--- Qatl-i-amd (intentional murder) not liable to qisas---Cases
in which qisas for qatl-i-amd shall not be enforced---Scope---Exception to the general provision
regarding punishment of qisas contained in S.302(a), P.P.C.---Section 306, P.P.C. did not
constitute a distinct offence and the same did not entail different punishments under S. 308,
P.P.C.---For a case attracting the provisions of S. 306, P.P.C., S.302 or 304, P.P.C. were very
much relevant---Section 306, P.P.C, only provided that the punishment of qisas shall not be
liable in cases of certain classes of murderers specified therein, which meant that it provided an
exception to the general provision regarding liability to the punishment of qisas contained in S.
302(a), P.P.C. and for such an exceptional case a set
of  different  concessional  punishments  was  provided  in  S.308, P.P.C.---Cases covered by the
provisions of Ss. 306 & 307, P.P.C. were primarily cases of qisas but because of certain
considerations the punishment of qisas was not liable or enforceable in those cases and instead
some alternate punishments for such offenders were provided for in S. 308, P.P.C.---Provisions
of and the punishments provided in S.308, P.P.C. were relevant only to cases of qisas and had no
relevance to cases of ta'zir--- Any latitude or concession in the matter of punishments
contemplated by the provisions of Ss. 306, 307 & 308, P.P.C. and extended to certain special
categories of offenders in cases of qisas mentioned in such provisions ought not to be mistaken
as turning those cases into cases of ta'zir with the same latitude or concession in the punishments.
           
Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muddassar alias Jimmi v.
The State 1996 SCMR 3; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652;
Muhammad Saleem v. The State 2001 SCMR 536; Umar Hayat v. Jahangir and another
2002 SCMR 629; Muhammad Akram v. The State 2003 SCMR 855; Ghulam Murtaza v.
The State 2004 SCMR 4; Nasir Mehmood and another v. The State 2006 SCMR 204;
Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Abdul Jabbar v. The
State and others 2007 SCMR 1496; Tauqeer Ahmed Khan v. Zaheer Ahmad and others
2009 SCMR 420; Samiullah  and  others  v.  Jamil  Ahmed  and  2  others  2008  SCMR
1623 and Ahmad Nawaz and another v. The State 2011 SCMR 593 endorsed.
           
Khalil-uz-Zaman  v.  Supreme  Appellate  Court,  Lahore  and  4 others PLD 1994 SC
885; Muhammad Iqbal v. The State 1999 SCMR 403; Sarfraz alias Sappi and 2 others v.
 The State 2000 SCMR 1758; Naseer Ahmed v. The State PLD 2000 SC 813; Dil Bagh
Hussain v. The State 2001 SCMR 232; Muhammad Abdullah Khan v. The State 2001
SCMR 1775; Amanat Ali v. Nazim Ali and another 2003 SCMR 608 and Muhammad
Ilyas v. The State 2008 SCMR 396 per incuriam.
 
(d) Penal Code (XLV of 1860)---
 
----S. 302(c)---Qatl-i-amd where punishment of qisas not applicable---Scope---Provisions of S.
302(c), P.P.C. were relevant to those acts of murder which were committed in situations and
circumstances which did not attract the sentence of qisas---Section 302(c), P.P.C. related to
certain situations and circumstances wherein a murder was committed and according to the
Injunctions of Islam the punishment of qisas was not applicable to such situations and
circumstances.
           
Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.
 
(e) Constitution of Pakistan---
 
----Arts. 203D & 203G---Penal Code (XLV of 1860), Preamble---Repugnancy to Injunctions of
Islam---Federal Shariat Court---Shariat Appellate Bench of the Supreme Court---Jurisdiction---
Scope---Provisions in Pakistan Penal Code, 1860, relating to Injunctions of Islam---By virtue of
the provisions of Art. 203G of the Constitution, the Supreme Court, or even a High Court, had no
jurisdiction to test repugnancy or contrariety of any existing law or legal provision to the
Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and such jurisdiction vested
exclusively in the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court.
 
(f) Penal Code (XLV of 1860)---
 
----Ss. 302, 309, 310, 311 & 338-E---Criminal Procedure Code (V of 1898), S. 345(2)---
Murder---Compounding of offence---Compromise---'Qisas' and 'Ta'zir'---Principles and
distinction---Section 309, P.P.C. pertaining to waiver (Afw) and S. 310, P.P.C. pertaining to
compounding (Sulh) in cases of murder were relevant only to cases of qisas and not to cases of
ta'zir---For cases of ta'zir the matter of compromise between the parties was governed and
regulated by the provisions of S. 345(2), Cr.P.C. read with S. 338-E, P.P.C.---Partial compromise
may be acceptable in cases of qisas but a partial compromise was not acceptable in cases of
ta'zir---Compounding of an offence falling in Chapter XVI of the Pakistan Penal Code, 1860 was
permissible under some conditions both in cases of qisas as well as ta'zir but at the same time it
was equally true that such compounding was regulated by separate and distinct provisions and
that such limited common ground between the two did not obliterate the clear distinction
otherwise existing between the two separate legal regimes.
           
Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR
1307; Niaz Ahmad v. The State PLD 2003 SC 635; Abdul Jabbar v. The State and others
2007 SCMR 1496; Manzoor Hussain and 4 others v. The State 1994 SCMR 1327;
Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Arshad alias Pappu v.
Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Riaz Ahmad v. The
 State 2003 SCMR 1067; Bashir Ahmed v. The State and another 2004 SCMR 236 and
Khan Muhammad v. The State 2005 SCMR 599 ref.
 
(g) Penal Code (XLV of 1860)---
 
----S. 311---Ta'zir after waiver or compounding of right of Qisas in qatl-i-amd---Scope---
Provisions of S.311, P.P.C. were relevant to and could be pressed into service in cases of qisas
only and not in cases of ta'zir.
           
Manzoor Hussain and 4 others v. The State 1994 SCMR 1327; Khan Muhammad v. The
State 2005 SCMR 599; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111
and Iqrar Hussain and others v. The State and another 2014 SCMR 1155 ref.
 
Per Ejaz Afzal Khan. J; disagreeing with Asif Saeed Khan Khosa, J.
 
(h) Penal Code (XLV of 1860)---
 
----S. 299(k)---"Qisas"---Definition and meaning---Punishment---Scope---Word "qisas" as
defined in S. 299(K), P.P.C. meant punishment by causing similar hurt at same part of the body
of the convict as he had caused to the victim or by causing his death if he had committed qatl-i-
amd, in exercise of the right of the victim or a wali---Word "qisas" meant "return of evil for
evil", and it also meant"retaliation"--- Another word, close in meaning to the word qisas was
retribution which meant a punishment inflicted in return for a wrong and thus distinctively
stressed the operation of strict justice by administering merited punishment.
 
(i) Penal Code (XLV of 1860)---
 
----S. 299(l)---Ta'zir---Definition and meaning---Punishment---Scope---Word "ta'zir" as defined
in S. 299(l), P.P.C. meant punishment other than qisas---Literal meaning of ta'zir was
chastisement---Punishment of ta'zir was not prescribed by the Holy Quran and Sunnah---
Punishment of ta'zir could not be as stern and stringent as that of qisas.
 
(j) Penal Code (XLV of 1860)---
 
----Ss. 306, 307 & 308---Qatl-i-amd not liable to qisas---Cases in which qisas for qatl-i-amd shall
not be enforced---Punishment---Scope---Sections 306, 307 & 308, P.P.C. were equally
applicable to the cases going outside the pail of qisas---Restricting application of said provisions
to cases of qisas only would give rise to an anomaly, which was that if sentence in qatl-i-amd
liable to qisas, despite stern and stringent forms of proof, could be lenient in view of the
circumstances mentioned in Ss. 306 & 308, P.P.C. why could not it be lenient in view of the
same circumstances in the case of ta'zir notwithstanding the forms of proof and sentence
provided thereunder were comparatively less stern and stringent---Restricting the application of
S. 306, P.P.C. to qisas only would amount to reading down its sub-clauses (a), (b) & (c) without
any interpretative justification---Section 307, P.P.C. though also stated the circumstances taking
qatl-i-amd outside the pail of qisas, but they were not the ones existing at the time of commission
of the crime, but as a matter of fact, arose out of the events taking place subsequent thereto---
Distinction thus had to be drawn between the circumstances stated in S. 307, P.P.C. and those
stated in the section preceding it---Provisions contained in Ss. 306 & 308, P.P.C. also applied to
the cases going outside the pail of qisas, with the same force and vigor---Any leniency in
punishment available in the cases of qisas in view of the circumstances mentioned in Ss. 306 &
308, P.P.C. could not be denied to a person guilty of qatl-i-amd liable to ta'zir.
           
Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Afzal alias
Seema v. The State 1999 SCMR 2652; Muhammad Saleem v. The State 2001 SCMR
536; Umar Hayat v. Jahangir and another 2002 SCMR 629; Muhammad Akram v. The
State 2003 SCMR 855; Ghulam Murtaza v. The State 2004 SCMR 4; Nasir Mehmood
and another v. The State 2006 SCMR 204; Iftikhar-ul-Hassan v. Israr Bashir and another
PLD 2007 SC 111; Abdul Jabbar v. The State and others 2007 SCMR 1496; Taqueer
Ahmed Khan v. Zaheer Ahmed and others 2009 SCMR 420; Samiullah and others v.
Jamil Ahmed and 2 others 2008 SCMR 1623; Ahmed Nawaz and another v. The State
2011 SCMR 593; Muhammad Iqbal v. The State 1999 SCMR 403; Sarfraz alias Sappi
and 2 others v. The State 2000 SCMR 1758; Naseer Ahmed v. The State PLD 2000 SC
813; Dil Bagh Hussain v. The State 2001 SCMR 232; Muhammad Abdullah Khan v. The
State 2001 SCMR 1775; Amanat Ali v. Nazim Ali and another 2003 SCMR 608 and
Muhammad Ilyas v. The State 2008 SCMR 396 ref.
 
(k) Penal Code (XLV of 1860)---
 
----Chap. XVI & Ss. 306, 307, 308, 309, 310, 311 & 338-E---Criminal Procedure Code (V of
1898), S. 345---Qatl-i-amd---Compounding of offence---Compromise---"Qisas" and "Ta'zir"---
Principles and distinction---Provision of S. 338-E, P.P.C. showed that all offences under chapter
XVI, P.P.C could be waived or compounded and the provisions of Ss. 309 & 310, P.P.C. shall
mutatis mutandis apply to the waiver or compounding of such offences---Reference to S.345,
Cr.P.C., in S. 338-E, P.P.C., by no means restricted the application of Ss. 306, 307 & 308, P.P.C.
to the cases of qisas only nor did it prevent a wali from waiving or compounding the offence of
qatl-i-amd.
 
Per Dost Muhammad Khan, J; agreeing with Asif Saeed Khan Khosa, J.
 
(l) Interpretation of statutes---
 
----Intention of legislature---Discovery by court---Principles---Where the statute was plainly
understandable and its meaning was conveniently conceivable, court could not put a different
meaning on a statute nor could it stretch the same to cover those matters or to apply to the cases
which were not covered by the same either impliedly or expressly---Supplying omissions;
repairing defects in a statute and changing clear meaning of statute was not the province of the
court.
           
Judges may enter upon in construing and interpreting a statute if it did not convey a clear
meaning or the intention of the law maker. Similarly, judges would strive in search of the intent
of the law maker in case a statute was ambiguous or it conveyed two different meanings. Courts
would give that meaning to a statute which was more reasonable and which furthered the
purpose and object of the enactment intended by the Parliament.
           
Primary and fundamental principle was that the courts/judges had to discover the true intention
of the law maker. In case the statute was plainly understandable and its meaning was
conveniently conceivable then the court could not put a different meaning on a statute nor could
it stretch the same to cover those matters or to apply to the cases which were not covered by the
same, either impliedly or expressly.
           
Courts were duty bound to undertake the exercise of construction and interpretation of a statute
when it did not convey conceivable meaning or if the intention of the law maker was not clearly
flowing therefrom so as to make it workable and beneficial. Again, in such course, the
courts/judges were supposed to give true meaning to the statute keeping in view the objects of
the enactment, the law maker wanted to achieve.
           
During interpretation of statutes courts/judges could not enter into the field of legislation as that
process fell within the province of the Legislature. Of course, there was one exception to such
rigid rule and that was when any statute or enactment had encroached upon the fundamental
rights of the citizens and came in conflict with those fundamental provisions of the Constitution,
which guaranteed fundamental rights.
 
            Reference No.1 of 1957 by President of Pakistan PLD 1957 SC 219 ref.
           
Supplying omissions or repairing defects in a statute was not the province of the courts because
such role and authority was undeniably vested in the law makers. Maxim, "casus omissus" could
in no eventuality be supplied by a court of law as that would amount to make laws. Court was
not entitled to read words into an Act of Parliament unless unavoidable circumstances provided a
clear reason for acting in such manner. It was also not the domain of a court to add to or to take
from a statute anything unless there were very strong grounds for holding that the Legislature
intended something, which it had failed to express however, in the course of such exercise no
undue inference could be drawn to that effect. Similarly, a court had no power to fill up any gap
in any statute as doing so would amount to usurping the function and encroaching upon the
constitutional power of the Legislature. Whether the omission was intentional or inadvertent was
not the concern of the court and a "casus omissus" could not be supplied by a court of law. It was
better to leave the same for the wisdom of the Legislature and the court had to point out the
defect or omission in any statute.
           
Similarly, it was not for the court to change the clear meaning of the statute for the reason that it
would bring about inconvenient consequences. Such considerations were alien to the science of
construction of statute and even in case of such a statute the meaning could not be departed from
by the court on the ground of public policy because it was the exclusive business of the
Legislature and not of the judges to remedy the defects in a particular statute. Court was neither
supposed nor vested with powers to subvert the true meaning of a statute by putting on it a more
liberal construction to cover the cases which were never intended by the Legislature.
           
Equally it was the duty of the courts not to exonerate parties who plainly came within the scope
of an enacted law/statute, on account of a highly technical and forced construction because that
would narrow down and exclude cases fairly falling within and covered by such statute. Mere
verbal nicety or forced construction was never to be resorted to in order to exonerate persons
plainly coming within the scope of a statute.
           
Khizar Hayat v. Commissioner Sargodha Division PLD 1965 Lah. 349 (F.B); Chairman
Evacuee Trust Property v. Muhammad Din PLD 1956 SC 331 and E.A. Evans v.
Muhammad Ashraf PLD 1964 SC 536 ref.
 
(m) Interpretation of statutes---
 
----Penal statute---Penal statutes were to be strictly construed and in case of doubt they were to
be construed in favour of the accused---Courts were not authorized to interpret penal statutes in a
manner so as to emasculate the same when they otherwise conveyed a clear and definite
meaning---Adhering to the strict grammatical meanings of the words used in the statute was a
well settled principle of construction.
 
            Brig. (Rtd.) F.B. Ali v. The State PLD 1975 SC 506 ref.
 
(n) Penal Code (XLV of 1860)---
 
--- Ss. 306, 307, 308, 309, 310, 311 & 312---Qatl-i-amd--- Punishment of qisas---Scope---
Provisions of Ss.306, 307, 308, 309 & 310 in unequivocal and clear terms mentioned the
punishment of "qisas" leaving no room for 'ta'zir' punishment to be read or included therein
by  implication---Same  was  the  position  with  Ss. 311 & 312. P.P.C.
 
(o) Penal Code (XLV of 1860)---
 
----Ss. 299(b), (d), (e) & (k)---Qatl-i-amd---Right to take 'Qisas', 'Diyat', 'Arsh', 'Daman' or 'Badl-
e-Sulah'---Scope---No victim or "wali" of deceased had a right to take 'qisas', 'diyat', 'arsh',
'daman' or 'badl-e-sulah' without due process of law as such right would only accrue after the
accused/offender was booked for such crimes, investigation was carried out by the investigating
agency, inquiry and trial was conducted by the courts and the accused was held guilty for the
offence of 'qisas', 'diyat', 'Arsh', 'daman' etc.
 
(p) Penal Code (XLV of 1860)---
 
----S. 299(l)---Ta'zir---Punishment---Scope---Punishment by way of 'ta'zir' exclusively rested
with the State because such crimes were considered crimes against the society at large.
 
(q) Penal Code (XLV of 1860)---
 
----Ss. 299(b), (d), (e) & (l)---Qatl-i-amd---Fine---'Diyat', 'Arsh', 'Daman' & Ta'zir---Scope---In
case of ta'zir, if fine was imposed then it shall go to the Government Treasury, while in the case
of 'diyat', 'arsh' and 'daman', it was payable to the individuals like the victim or the 'wali' (legal
heirs of the deceased).
 
(r) Penal Code (XLV of 1860)---
 
----Ss. 302, 306, 307, 308, 309, 310, 311 & 338-E & 338-F---Qatl-i-amd---Waiver or
compounding of offence---'Qisas' and 'Ta'zir'---Distinction---Provision of Ss. 338-E & 338-F
could not be pressed into service to enlarge the scope of Ss. 306 to 311, P.P.C  to include therein
ta'zir cases and punishment---Ta'zir cases and punishment could not be read into the said sections
by implication when it had been expressly omitted therefrom.
 
(s) Penal Code (XLV of 1860)---
 
----Ss. 302(b), 304, 306, 307, 308, 309, 310, 311 & 314---Qatl-i-amd---Qisas and Ta'zir---
Punishment---Scope---Supreme Court observed that it was essential for the Government to make
suitable amendments in S.302(b), P.P.C. to the effect that only life imprisonment shall be
awardable when for want of standard of proof as required under S.304, P.P.C., the punishment of
qisas could not be inflicted; that in such situation awarding death sentence was not desirable or
justified because under the provision of S. 314, P.P.C. procedure of execution of "qisas'
punishment was almost one and the same and was executed by a functionary of a government by
causing death of the convict as the court may direct; that the Government was well advised to
bring suitable amendment in S. 302(b) P.P.C. ordinarily providing punishment of life
imprisonment unless the commission of the crime was attended by an element of terrorism,
sectarian revenge or the murder was committed in a ruthless, cruel and brutal manner, which
appeared unconscionable and no mitigating circumstance was there to reduce the gravity of the
crime; that once the punishment of qisas could not be enforced or the offender was not liable to
punishment under qisas in the cases enumerated in Ss. 306 to 311, P.P.C., then ta'zir punishment
shall also not be inflicted or it should be mild in nature [i.e. not  death or life imprisonment]; that
the  proper course was that the courts were vested with a discretion in such regard to award
punishment by way of "ta'zir" but not death sentence or life imprisonment barring the above
exceptions and also compensation to the "Wali" of deceased or victim of hurt crime.
 
Per Qazi Faez Isa, J, agreeing with Asif Saeed Khan Khosa, J
           
"My learned brother Justice Ejaz Afzal Khan, however, was of a different opinion that
appears to be premised on an interpretation of qisas, with which with the greatest of
respect I cannot bring myself to agree. I must, however, at the outset acknowledge my
inadequacy to interpret Almighty Allah's commands with certainty and seek His
protection and mercy for any mistake in my understanding. My distinguished colleague
states that the word qisas means "return of evil for evil" and also "retaliation" or
"retribution". However, Abdullah Yusuf Ali in his commentary on the 178th and 179th
verses of surah Al-Baqarah, wherein the word qisas is mentioned writes:--
           
"Note first that this verse and the next make it clear that Islam has much mitigated the
horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of
justice, equality is prescribed, with a strong recommendation for mercy and forgiveness.
 To translate qisas, therefore, by retaliation, is I think incorrect. The Latin legal term Lex
Talionis may come near it, but even that is modified here. In any case it is best to avoid
technical terms for things that are very different. "Retaliation" in English has a wider
meaning equivalent almost to returning evil for evil, and would more fitly apply to the
blood-feuds of the Days of Ignorance."
           
Moreover, when we examine the said two verses (2:178 and 179) they do not mandate stern and
stringent punishments, but seek to inculcate forgiveness and charity in hardened hearts. "This is a
concession and Mercy from your Lord" (2:178) and "In the law of qisas there is (saving of) life
to you, O ye men of understanding; that ye may restrain yourself (2:179)." In any case there is no
need to translate or interpret the word qisas because we are only concerned with how it has been
used in the P.P.C., i.e. a defined term (section 299(k) of P.P.C.); similarly,
tazir  is  also  required  to  be  considered  as  used  in  section 299(l), P.P.C.
           
My learned colleague also states that, "there are no two opinions on the point that punishment of
tazir cannot be as stern and stringent as that of qisas", but the said statement is not referenced and
I have also not been able to discover its source. I may however question whether a person who
comes forth and makes a voluntary and true confession of murder (qatl-i-amd), thereby coming
within the statutory definition of qisas, should be deserving of a greater punishment than the one
whose crime is painstakingly established through other forms of evidence?
           
This Bench was assembled to consider whether sections 306 and 308, P.P.C. are applicable to
cases of tazir. Section 306 attends to three different categories of cases. The first category is,
"when an offender is a minor or insane" (section 306 (a) P.P.C.), i.e. the offender does not have
full mental capacity on account of age or state of mind. Had this exception not been provided,
then an offender who is a minor or insane would have to be sentenced to death under section
302(a) which prescribes no other exception. The second category is, "when an offender causes
the death of his child or grandchild, how lowsoever" (section 306(b), P.P.C.). And the third
category is, "when any wali of the victim is a direct descendant, how lowsoever, of the offender"
(section 306(c), P.P.C.). In the second and third categories "qatl-i-amd is not liable to qisas"
therefore it has been made liable to tazir. However, if the offender is also not liable to tazir (as
held by my learned brother Justice Ejaz Afzal Khan), then the offender would only "be liable to
diyat" (in terms of subsection (1) of section 308, P.P.C.), which is monetary compensation
(section 323, P.P.C.), subject however to the stated exceptions (the second and third provisos to
subsection (1) of section 308 and subsection (2) of section 308). In Muhammad Akram v. The
State (2003 SCMR 855) this court had held that such an interpretation, "would amount to grant
the licence of killing innocent persons by their Walies." Therefore, this is yet another reason for
me to agree with the opinion of my learned brother Justice Asif Saeed Khosa."
           
Kh. Haris Ahmed, Advocate Supreme Court for Appellant (in Criminal Appeal No. 126
of 2012).
           
Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Appellant (in Criminal Appeal No.
80 of 2001).
           
Nemo for Petitioner (in Criminal Petition No.568 of 2011).
            
Kh. Haris Ahmed, Advocate Supreme Court for Respondent No.1 (in Criminal Petition
No.568 of 2011).
           
Malik Muhammad Kabir, Advocate Supreme Court for Respondent No.1 (in Criminal
Appeal No.80 of 2001).
           
Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State (in Criminal
Petition No.568 of 2011 and Criminal Appeal No.80 of 2001).
           
Nemo for the State (in Criminal Appeal No.126 of 2012).
           
Dates of hearing: 14th and 15th October, 2014.
 
 
JUDGMENT
           
ASIF SAEED KHAN KHOSA, J.---The law regarding Qisas in cases of murder and bodily hurt
had been introduced in the criminal jurisprudence of this country about a quarter of a century ago
but unfortunately the distinction between Qisas and Ta'zir and applicability of the two concepts
to different kinds of cases has confused our courts ever since with the result that even this Court
has rendered conflicting judgments in that respect. One of the reasons why leave to appeal had
been granted in the case of Zahid Rehman convict-appellant was that an authoritative judgment
may be rendered by this Court removing the prevalent confusion in this important field of
criminal law and conclusively setting the controversy at rest. While granting leave to appeal in
that case the following order had been passed by this Court on 9-3-2012:--
 
            "Criminal Petition No. 581 of 2011
 
It has inter alia been contended by the learned counsel for the petitioner that the case in hand was
a case of circumstantial evidence only as no eye-witness of the alleged occurrence had been
produced by the prosecution. The learned counsel for the petitioner has maintained that links in
the chain of the circumstantial evidence were broken at many places and, thus, it could not be
said that the prosecution had succeeded in proving its case against the petitioner beyond
reasonable doubt. He has also argued that the motive set up by the prosecution had been
discarded by both the learned courts below, the extra judicial confession allegedly made by the
petitioner was not only a weak piece of evidence but the same had not been sufficiently proved
before the learned trial court and the gun and the crime-empties had been recovered and sent
together diminishing, if not eliminating, the evidentiary value of such recoveries. On the legal
plane it has been argued by the learned counsel for the petitioner that even if the case of the
prosecution against the petitioner was accepted as correct on the factual side still it was a case
attracting the provisions of section 306(b) and (c), P.P.C. and not a case attracting section 302(b),
P.P.C. It has been maintained by the learned counsel for the petitioner that in this case attracting
the provisions of section 306(b) and (c), P.P.C. the sentence of the petitioner could have been
recorded under section 308, P.P.C. which carried a maximum sentence of 14 years' imprisonment
at the time of the alleged occurrence. In this context the learned counsel for the petitioner has
pointed out that this Court has expressed different opinions in respect of the above mentioned
legal issue from time to time and the said issue requires a detailed examination by a Larger
Bench of this Court. In this regard the learned counsel for the petitioner has referred to the cases
of Naseer Ahmed v. The State (PLD 2000 SC 813), Dil Bagh Hussain v. The State (2001 SCMR
232), Muhammad Abdullah Khan v. The State (2001 SCMR 1775), Amanat Ali v. Nazim Ali
and another (2003 SCMR 608), Muhammad Ilyas v. The State (2008 SCMR 396) and Khalid
Mehmood v. The State (2011 SCMR 1110) wherein it had been held that in a case like the one in
hand an accused person found guilty is to be convicted under section 306, P.P.C. and is to be
punished under section 308, P.P.C. He has also referred to the cases of Faqir Ullah v. Khalil-uz-
Zaman and others (1999 SCMR 2203), Muhammad Afzal alias Seema v. The State (1999 SCMR
2652), Umar Hayat v. Jahangir and another (2002 SCMR 629), Muhammad Akram v. The State
(2003 SCMR 855), Ghulam Murtaza v. The State (2004 SCMR 4), Nasir Mehmood and another
v. The State (2006 SCMR 204), Abdul Jabbar v. The State and others (2007 SCMR 1496),
Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) and Tauqeer Ahmad Khan v.
Zaheer Ahmad and others (2009 SCMR 420) wherein
this  Court  had  categorically  held  that  the  provisions  of sections 306 and 308, P.P.C. stand
attracted to a case of Qisas only and they do not apply to a case of Ta'zir. Such divergence of
opinion expressed by this Court in the above mentioned precedent cases requires an authoritative
pronouncement by a Larger Bench of this Court to settle the legal controversy at rest.
 
(2) For what has been noted above this petition is allowed and leave to appeal is granted to
consider the factual and legal aspects of this case highlighted by the learned counsel for the
petitioner. The Hon'ble Chief Justice may graciously consider constitution of a Larger Bench of
this Court to determine the issues involved in the case, if so advised.
 
            Criminal Petition No. 568 of 2011
 
(3) Through this petition the petitioner-complainant seeks enhancement of the amount of
compensation ordered by the learned trial Court to be paid by respondent No. 1. Let this petition
be heard along with the appeal of the convict/respondent No.1."
           
(reported as Sheerin Zafar and another v. Zahid Rehman and others (2012 SCMR 728)
 
The titled Criminal Appeal No. 126 of 2012 has arisen out of the above mentioned Criminal
Petition No. 581 of 2011 and the connected Criminal Petition No. 568 of 2011 had been ordered
to be heard along with the appeal arising out of Criminal Petition No.581 of 2011. The titled
Criminal Appeal No. 80 of 2001 has stemmed from Criminal Petition No.143 of 2000 in which
leave to appeal had been granted by this Court on 31-1-2001 in the following terms:--
           
"--------------We have heard the learned counsel at length and perused the file.
Contentions of the learned counsel are that if a person in his statement under section 342,
Cr.P.C. claims his age to be less than 18 years and at that stage produces school leaving
certificate should that be relied upon as conclusive proof when the prosecution has not
been given the chance to rebut the same and should the scribe of such certificate be not
produced for  cross-examination?  According  to  the  learned  counsel section 308, P.P.C.
is applicable only to cases which are to be dealt with section 302(a), P.P.C. i.e. Qatl-i-
 amd. In the instant case the conviction was recorded under section 302(b), P.P.C., which
is Tazir, therefore, 308, P.P.C. would not be applicable to such like cases.
           
Points raised by learned counsel need examination, therefore, we grant leave to appeal to
reappraise the evidence and to consider the points noted above. Let bailable warrant of
arrest in the sum of Rs.1,00,000 with two sureties each in the like amount returnable to
Sessions Judge, Attock, be issued against Muhammad Aslam, respondent No. 1."
 
On 12-6-2013 Criminal Appeal No.80 of 2001 was ordered to be heard along with Criminal
Appeal No.126 of 2012 as the issue involved in the said appeal was also as to whether in a case
of Ta'zir an accused person can be convicted and sentenced under section 308, P.P.C. or not.
 
2. In view of the legal controversy involved in these matters we have decided to resolve the legal
issue first and then to leave the present appeals and the connected petition to be decided by
appropriate Benches of this Court on the basis of their respective merits in the light of the legal
position declared through the present judgment.
 
3. Assisting the Court on the legal issue involved Kh. Haris Ahmed, Advocate Supreme Court
appearing for the appellant in Criminal Appeal No.126 of 2012 has taken us through different
provisions of the Pakistan Penal Code, 1860 (hereinafter referred to as P.P.C.) and has also
referred to a large number of precedent cases to which reference shall be made in the later part of
this judgment. His main arguments have been that Qisas and Ta'zir are different kinds of
punishments provided for an offence of Qatl-i-amd (intentional murder); the punishments for
such murder prescribed in section 302, P.P.C. are "subject to the provisions of this Chapter"
(Chapter XVI of P.P.C.); the provisions of sections 306 and 307, P.P.C. are independent
provisions falling in the same Chapter and the same are not controlled or regulated by the
provisions of section 302, P.P.C. and, thus, the punishments provided in section 308, P.P.C. are
not to be looked at through the prism of section 302, P.P.C.; and such punishments can be
awarded in an appropriate case irrespective of the fact whether the relevant case is a case of
Qisas or of Ta'zir. The central theme of his submissions is that section 306, P.P.C. constitutes a
distinct offence and the same entails different punishments under section 308, P.P.C. and,
therefore, in a case attracting the provisions of section 306, P.P.C. there is hardly any
relevance  of  section  302  or  304,  P.P.C.  As  against  that  Hafiz Hifz-ur-Rehman, Advocate
Supreme Court appearing for the appellant in Criminal Appeal No. 80 of 2001 has maintained
that for attracting the provisions of sections 306, 307 and 308, P.P.C. a case has to be a case of
Qisas and that the said provisions have no relevance to a case of Ta'zir. According to him a case
of intentional murder wherein proof in either of the forms specified in section 304, P.P.C. is not
produced or is not available has to be treated as a case of Ta'zir entailing the punishments of
death or imprisonment for life as mandated by the provisions of section 302(b), P.P.C. Malik
Muhammad Kabir, Advocate Supreme Court representing respondent No. 1 in Criminal Appeal
No.80 of 2001 has adopted and supported the above noted arguments advanced by Kh. Haris
Ahmed, Advocate Supreme Court whereas Mr. Ahmed Raza Gillani, Additional Prosecutor-
General, Punjab appearing for the State has argued on the same lines as has been done by Hafiz
Hifz-ur-Rehman, Advocate Supreme Court.
 
4. After hearing the learned counsel for the parties and attending to the legal provisions and the
precedent cases cited by them in support of their respective contentions I may observe at the
outset that, putting it in its broadest terms, Qisas in Islamic terms is Almighty Allah's law dealing
with the offences of murder and bodily hurt and Ta'zir is the manmade law for such offences and
the standards of proof and the punishments provided therefor are by and large different. It is
generally understood that the two concepts are mutually exclusive and they represent separate
legal regimes. Since the year 1990 the concepts of Qisas and Ta'zir have coexisted in our
criminal jurisprudence and for the purposes of the present cases the following provisions of the
Pakistan Penal Code are relevant:--
           
Section 299. Definitions.---In this Chapter, unless there is anything repugnant in the
subject or context,-
           
------------------------------
 
(k) "qisas" means punishment by causing similar hurt at the same part of the body of the
convict as he has caused to the victim or by causing his death if he has committed qatl-i-
amd and in exercise of the right of the victim or a wali;
 
(l) "ta'zir" means punishment other than qisas, diyat, arsh or daman; --------
           
Section 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:
           
Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed
in the name or on the pretext of honour and the same shall fall within the ambit of clause
(a) or clause (b), as the case may be.
           
Section  304.  Proof  of  qatl-i-amd  liable  to  qisas,  etc.---(1) Proof of qatl-i-amd 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 Article 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.
 
Section 305. Wali.---In case of qatl, the wali shall be-
 
(a) the heirs of the victim, according to his personal law but shall not include the accused
or the convict in case of qatl-i-amd if committed in the name or on the pretext of honour;
and
 
(b) the Government, if there is no heir.
 
Section 306. Qatl-i-amd not liable to qisas.---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 with himself in the commission of
the offence 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, how low-so-ever; and
 
(c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender.
 
Section 307. Cases in which qisas for qatl-i-amd shall not be enforced.---(1) Qisas for qatl-i-amd
shall not be enforced in the following cases namely:-
 
(a) when the offender dies before the enforcement of qisas;
 
(b) when any wali, voluntarily and without duress, to the satisfaction of the Court, waives
the right of qisas under section 309 or compounds under section 310; and
 
(c) when the right of qisas devolves on the offender as a result of the death of the wali of
the victim, or on the person who has no right of qisas against the offender.
 
(2) To satisfy itself that the wali has waived the right of qisas under section 309 or compounded
the right of qisas under section 310 voluntarily and without duress the Court shall take down the
statement of the wali and such other persons as it may deem necessary on oath and record an
opinion that it is satisfied that the waiver or, as the case may be, the composition was voluntary
and not the result of any duress.
 
Illustrations
 
(i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A.
D has the right of qisas from A. But if D dies, the right of qisas shall devolve on her son
 B who is also the son of the offender A. B cannot claim qisas against his father.
Therefore, the qisas cannot be enforced.
 
(ii) B kills Z, the brother of her husband A. Z has no heir except A. Here A can claim
qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is
also son of B, the qisas cannot be enforced against B.
 
Section 308. Punishment in qatl-i-amd not liable to qisas, etc.---(1) Where an offender guilty of
qatl-i-amd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c)
of section 307, he shall be liable to diyat:
           
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 qatli-amd the offender being a
minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be
able to realize the consequences of his act, he may also be punished with imprisonment of
either description for a term which may extend to twenty-five 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 offender and if
there is no wali other than the offender, he shall be punished with imprisonment of either
description for a term which may extend to twenty-five 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 twenty-five years as
ta'zir.
           
Section 311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd:---
Notwithstanding anything contained in section 309 or section 310 where all the walis do not
waive or compound the right of qisas, or if the principle of fasad-fil-arz is attracted the Court
may, having regard to the facts and circumstances of the case, punish an offender against whom
the right of qisas has been waived or compounded with death or imprisonment for life or
imprisonment of either description for a term which may extend to fourteen years as ta'zir:
           
Provided that if the offence has been committed in the name or on the pretext of honour,
the imprisonment shall not be less than ten years.
           
Explanation.---For the purpose of this section, the expression fasad-fil-arz shall include the past
conduct of the offender, or whether he has any previous convictions, or the brutal or shocking
manner in which the offence has been committed which is outrageous to the public conscience,
or if the offender is considered a potential danger to the community, or if the offence has been
committed in the name or on the pretext of honour.
 
5. The provisions of section 299, P.P.C. clearly show that in the context of a qatl-i-amd
(intentional murder) Qisas and Ta'zir are simply two different kinds of punishments for such
offence and that they are different from conviction for the said offence. As is evident from the
provisions of section 304, P.P.C. a conviction for an intentional murder can entail the
punishment of Qisas only if the accused person makes before a court competent to try the
offence a voluntary and true confession of commission of the offence or the requisite number of
witnesses are produced by the prosecution before the trial court and their competence to testify is
established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused
person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984 and this was also so
declared by this Court in the case of Abdus Salam v. The State (2000 SCMR 338). The cases of
intentional murder other than those fulfilling the requirements of section 304, P.P.C. are cases
entailing the punishment of Ta'zir, as provided in and declared by section 302(b), P.P.C., and the
provisions relating to the punishment of Qisas are to have no application or relevance to the
same. The relevant statutory provisions reproduced above make it abundantly clear to me that in
all cases of conviction for the offence of intentional murder the question as to whether the
convict is to be punished with Qisas or with Ta'zir is dependant upon the fact whether the
conviction is brought about on the basis of proof in either of the forms mentioned in section 304,
P.P.C. or not. If the conviction is based upon proof as required by section 304, P.P.C. then the
sentencing regime applicable to such convict is to be that of Qisas but if the conviction is based
upon proof other than that required by section 304, P.P.C. then the sentencing regime relevant to
such convict is to be that of Ta'zir. It is only after determining that the sentencing regime of
Qisas is applicable to the case of a convict that a further consideration may become relevant as to
whether such convict is to be punished with Qisas under the general provisions of section 302(a),
P.P.C. or his case attracts the exceptions to section 302(a) in the shape of sections 306 or 307,
P.P.C. in which cases punishments different from that under section 302(a), P.P.C. are provided.
I have entertained no manner of doubt that the general provision regarding an intentional murder
being punishable through Qisas is section 302(a), P.P.C. carrying only the punishment of death
but section 302, P.P.C. is subject to the other relevant provisions of Chapter XVI of the Pakistan
Penal Code which provide punishments different from that of death for certain special classes of
murderers mentioned therein despite their cases otherwise attracting a punishment of Qisas.
Sections 306, 307 and 308, P.P.C. belong to such category of cases which cases are exceptions to
the general provisions of section 302(a), P.P.C. but nonetheless all such cases are to be initially
proved as cases entailing a punishment of Qisas which punishment is then to be withheld
because the offender belongs to a special class for which an exception is created in the matter of
his punishment. A plain reading of the provisions of sections 306 and 307, P.P.C. shows, and
shows quite unmistakably, that the cases covered by those provisions are primarily cases of
Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable
in those cases. It goes without saying that before considering the question of his punishment in
such a case a convict must have incurred the liability or enforceability of the punishment of
Qisas against him which punishment is to be withheld from him in view of the considerations
mentioned in sections 306 and 307, P.P.C. and that is why some alternate punishments for such
offenders are provided for in section 308, P.P.C. In other words a conviction for an offence
entailing the punishment of Qisas must precede a punishment under section 308, P.P.C. and such
conviction can only be recorded if proof in either of the forms mentioned in section 304, P.P.C.
is available before the trial court and not otherwise. The provisions of section 311, P.P.C.
provide another example in this context showing how in a case otherwise entailing a punishment
of Qisas the offender may be handed down a punishment of Ta'zir and the said section also falls
in Chapter XVI of the Pakistan Penal Code specifying an exception to the general provisions of
section 302(a), P.P.C. It, thus, ought not to require much straining of mind to appreciate that the
provisions of and the punishments provided in section 308, P.P.C. are relevant only to cases of
Qisas and that they have no relevance to cases of Ta'zir as in the latter category of cases a totally
different legal regime of proofs and punishments is applicable.
 
6. I have not found Kh. Haris Ahmed, Advocate Supreme Court to be justified in maintaining
that section 306, P.P.C. constitutes a distinct offence and the same entails different punishments
under section 308, P.P.C. and, therefore, in a case attracting the provisions of section 306, P.P.C.
there is hardly any relevance of sections 302 or 304, P.P.C. The general scheme of the Pakistan
Penal Code shows that a section constituting a distinct offence specifies and contains the
essential ingredients of such offence and thereafter either the same section or some following
section prescribes the punishment for such offence. A bare look at section 306, P.P.C., however,
shows that no constituting ingredient of any offence is mentioned therein and the same only
provides that the punishment of Qisas shall not be liable in cases of certain classes of murderers
specified therein. According to my understanding that section provides an exception to the
general provision regarding   liability   to  the   punishment  of   Qisas   contained  in  section
302(a), P.P.C. and for such an exceptional case a set of different concessional punishments is
provided in section 308, P.P.C. A section dealing only with the issue of a punishment cannot be
accepted as a section constituting a distinct offence nor can a section catering for a concession in
the matter of a punishment be allowed to be treated as a provision altering the basis or
foundation of a conviction. Any latitude or concession in the matter of punishments
contemplated by the provisions of sections 306, 307 and 308, P.P.C. and extended to certain
special categories of offenders in cases of Qisas mentioned in such provisions ought not to be
mistaken as turning those cases into cases of Ta'zir with the same latitude or concession in the
punishments. This is the fine point of distinction which needs to be understood with clarity if the
distinction between the provisions of section 302(b), P.P.C. on the one hand and the provisions
of sections 306, 307 and 308, P.P.C. on the other is to be correctly grasped. The discussion about
the relevant case-law to follow
will  highlight  as  to  how  blurring  of  vision  regarding  this  fine distinction had in the past led
to incorrect and confused interpretations and results.
 
7. The first category of the relevant precedent cases is that wherein all the convicts falling in
different categories of persons mentioned in sections 306 and 307, P.P.C. were held to be
punishable only under section 308, P.P.C. without even considering whether the cases in issue
were cases of Qisas or of Ta'zir. As a matter of fact the first reported case dealing with sections
306, 307 and 308, P.P.C. was itself the case which sowed the seeds of all the monumental
confusion which was to follow and that was the case of Khalil-uz-Zaman v. Supreme Appellate
Court, Lahore and 4 others (PLD 1994 SC 885) decided by a 2-member Bench of this Court. It
was a case of a person who had killed his wife and at the relevant time the couple had a living
minor child. Using some strong expressions in the judgment this Court had castigated the learned
court below for not appreciating that such a case did not attract the provisions of section 302,
P.P.C. and that the only provisions relevant to such a case were those of sections 306 and 308,
P.P.C.. The said judgment was, however, reviewed and reversed by a 5-member Bench of this
Court later on in the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) and
the conviction and sentence of the offender recorded by the trial court under section 302(b),
P.P.C. were restored. It was clearly held that the case was not a case of Qisas and, therefore, the
punishment mentioned in section 308, P.P.C. was not attracted or applicable to the case.
 
8. The case of Muhammad Iqbal v. The State (1999 SCMR 403) decided by a 3-member Bench
of this Court was a case of a killer of his wife having a living minor child from the matrimony. It
was held in that case  that  the  case  of  such  a  convict  attracted  the  provisions  of section
308, P.P.C. and for reaching that conclusion a reference was made to the case of Khalil-uz-
Zaman (supra) the judgment wherein had
been  reviewed  and  reversed  in  case  of  Faqir  Ullah  (supra)  by  a 5-member Bench of this
Court.
 
9. In the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758) a 3-member
Bench of this Court had held that a convict  of  murder  who  was  minor  could  be  punished
only under section 308, P.P.C. but in that case also the judgment handed down earlier on by a 5-
member Bench of this Court in the case of Faqir Ullah (supra) was not adverted to.
 
10. The next case in this category of the precedent cases was the case  of  Naseer  Ahmed v. The
State (PLD 2000 SC 813)  decided  by  a 3-member Bench of this Court. In that case no
discussion was made at all about the case being one of Qisas or of Ta'zir and it was held as a
matter of course that the case of a minor convict of murder attracted the
provisions  of  section  308, P.P.C. The earlier judgment rendered by a 5-member Bench of this
Court in the case of Faqir Ullah (supra) had, obviously, escaped notice.
 
11. The case next in line was that of Dil Bagh Hussain v. The State (2001 SCMR 232) decided
by a 3-member Bench of this Court. That was the case of a person who had killed his son-in-law
who was survived by the killer's daughter and her son who were wali of the deceased as well as
of the killer. For holding that such a case attracted sections 306 and 308, P.P.C. and not section
302, P.P.C. this Court had relied upon the case of Khalil-uz-Zaman (supra) without even noticing
that the judgment in the said case had already been reviewed and reversed by a 5-member Bench
of this Court in the case of Faqir Ullah (supra).
 
12. The case to follow was that of Muhammad Abdullah Khan v. The State (2001 SCMR 1775)
decided by a 3-member Bench of this Court and that case was also a case of a killer of his wife
having a living minor child from the wedlock. In that case too applicability of sections 306 and
308, P.P.C. to the case was taken for granted without any discussion while placing exclusive
reliance upon the case of Khalil-uz-Zaman (supra) without having been apprised of the fact that
the judgment in the said case had already been reviewed and reversed by a 5-member Bench of
this Court in the case of Faqir Ullah (supra).
 
13. The next case was that of Amanat Ali v. Nazim Ali and another (2003 SCMR 608) decided
by a 3-member Bench of this Court wherein no discussion was made regarding the case being
one of Qisas or of Ta'zir and it was declared as a matter of course that the case of a minor convict
of murder attracted the provisions of section 308, P.P.C. and not those of section 302(b), P.P.C.
Obviously, the judgment handed down by a 5-member Bench of this Court in the case of Faqir
Ullah (supra) was not brought to the notice of the Court on that occasion.
 
14. The last of this category of cases was the case of Muhammad Ilyas v. The State (2008 SCMR
396) decided by a 3-member Bench of this Court. Alas, in that case too no discussion was made
in respect of the case being one of Qisas or of Ta'zir and it was taken for granted and declared as
a matter of course that the case of a murderer of his minor daughter attracted the provisions of
section 308, P.P.C. and not those of section 302(b), P.P.C. Once again, and unfortunately so, the
judgment handed down by a 5-member Bench of this Court in the case of Faqir Ullah (supra)
was not even adverted to or brought under consideration before reaching the decision that was
reached.
 
15. The second category of the relevant precedent cases is that wherein it had categorically been
concluded and held by this Court that the provisions of sections 306, 307 and 308, P.P.C. are
attracted only to cases of Qisas and that the said provisions have no relevance to a case of Ta'zir.
The first case of this category of cases was the case of Muddassar alias Jimmi v. The State (1996
SCMR 3) wherein a 2-member Bench of this Court had observed as follows:--
 
"(31) Ostensibly section 304, P.P.C. plays pivotal role in determining fate of persons
found guilty for murder "Qatl-i-Amd" under section 302, P.P.C.:--
 
(i) In cases where evidence as envisaged under section 304, P.P.C.
is  proved  an  accused  shall  be  punished  for  offence  under section 302, part (a) and
sentenced to Qisas.
 
(ii) In case where evidence as required under section 304, P.P.C. is brought on the record
but sentence of Qisas cannot be applied because of bar imposed under section 306, P.P.C.
It reads:--
            -------------------------
 
(iii) But where the evidence is available but does not fulfil the condition laid down under
section 304, P.P.C. the person may be convicted and sentenced for Ta'zir under section
302, part (b) to death or imprisonment for life."
 
16. The case to follow was the case of Faqir Ullah v. Khalil-uzZaman and others (1999 SCMR
2203) mentioned above which case was decided by a 5-member Bench of this Court. Khalil-uz-
Zaman convict in that case had killed his wife who was survived by a living minor child from the
marriage and in the earlier round a 2-member Bench of this Court had declared that the convict's
sentence of death was not warranted because his case was covered by the provisions of section
308, P.P.C. and had remanded the case to the High Court (PLD 1994 SC 885). Subsequently
Faqir Ullah complainant's review petition was accepted by a 5-member Bench of this Court, the
judgment in the case of Khalil-uz-Zaman was reviewed and reversed and the conviction and
sentence of Khalil-uz-Zaman recorded by the trial court for an offence under section 302(b),
P.P.C. were restored. It was clearly held that the case was not a case of Qisas and, therefore, the
punishment mentioned in section 308, P.P.C. was not attracted or applicable to the case. It is of
critical importance to mention here that the numerical strength of the said Bench of this Court
was, and still remains to be, greater and larger than that of any other Bench of this Court
deciding all the other cases falling in both the above mentioned categories of the precedent cases
on the subject under consideration. I have already mentioned above that in none of the cases
falling in the first category of cases referred to above this judgment rendered by a 5-member
Bench of this Court had been referred to or discussed which fact had substantially impaired the
probative, persuasive or precedent value of the judgments delivered in those cases.
 
17. The next case in this category of cases was the case of Muhammad Afzal alias Seema v. The
State (1999 SCMR 2652) which had been decided by a 3-member Bench of this Court. In that
case the convict of murder was a minor but after a discussion of the legal position it had been
declared by this Court that the said case was not one of Qisas, sections 306 and 308, P.P.C. did
not stand attracted to a case of Ta'zir and, thus, the convict was liable to be convicted and
sentenced under section 302(b), P.P.C.
 
18. Thereafter in the case of Muhammad Saleem v. The State (2001 SCMR 536) the plea of a
convict of murder regarding reduction of his sentence of death on the ground of his minority and
the case against him attracting  the  provisions  of  section  308,  P.P.C.  was  rejected  by a 3-
member Bench of this Court by observing that "Moreover, even otherwise the said provisions
would not apply as the penalty of death in this case has not been imposed as Qisas but has been
awarded as Ta'zir."
 
19. The case to follow was that of Umar Hayat v. Jahangir and another (2002 SCMR 629) and
the same had been decided by a 3-member Bench of this Court. In that case too the convict of
murder was a minor and after discussing the provisions of section 306, P.P.C. this Court had
gone on to record his conviction and sentence under section 302(b), P.P.C. because the case was
one of Ta'zir and not that of Qisas.
 
20. The later case of Muhammad Akram v. The State (2003 SCMR 855) decided by a 3-member
Bench of this Court was a case of a killer of his wife who was survived by living minor children
from the matrimony. The issue at hand had received particular attention of this Court in that case
and it had been observed in that regard as follows:--
 
"The next contention of the learned counsel for the petitioner related to the quantum of
sentence. According to the learned counsel petitioner being Wali of the deceased would
be entitled to the benefit of section 308, P.P.C., therefore, the conviction and sentence of
the petitioner under section 302(b), P.P.C. was illegal. In the alternative, learned counsel
argued that in any case the immediate cause of occurrence being not known, it would not
be a case of extreme penalty. The first contention of the learned counsel relating to the
application of section 308, P.P.C. by virtue of section 306, P.P.C. is without any
substance, sections 306, 307 and 308, P.P.C. would only attract in the cases of Qatl-i-amd
which are liable to Qisas under section 302(a), P.P.C. and not in the cases in section
302(b) and (c), P.P.C. For the purpose of removing the confusion and misconception of
law on the subject the above provision must be understood in the true spirit. Section 306,
P.P.C. provides that Qatl-i-amd shall not be liable to Qisas in certain cases mentioned
therein and thus it is clear that in such cases the punishment of Qisas will remain
inoperative but there is no such exception in a case of Qatl-i-amd punishable as Tazir.
Under section 307, P.P.C. the sentence of Qisas for Qatl-i-amd cannot be enforced in the
cases referred therein and therefore, the exceptions mentioned in sections 306 and 307,
 P.P.C. are confined only to the cases liable to Qisas and not Tazir. Under section 308,
P.P.C. it is provided that where an offender guilty of Qatl-i-amd is not liable to Qisas in
terms of section 306, P.P.C., the sentence of Qisas will not be enforced against him as
provided under section 307, P.P.C., and he shall be liable to Diyat and may also be
punished with imprisonment which may extend to a term of 14 years as Tazir. The above
provision of law can be made applicable only if the essential conditions contained therein
are available in a case which is liable to Qisas, and not in the cases of Qatl-i-amd
punishable as Tazir. The petitioner  was  tried  for  the  charge  of  Qatl-i-Amd  under
section 302(b), P.P.C. and was convicted and sentenced to death as Tazir,
therefore,  he  would  not  be  entitled  to  the  benefit  of
section  308,  P.P.C.  and  was  rightly  punished  under  section 302(b), P.P.C. It is not
permissible to extend the benefit of provisions of section 308, P.P.C. in the cases of Qatl-
i-amd which are punishable under sections 302(b) and (c), P.P.C. as Tazir and therefore,
the extension of such benefit to cases falling under sections 302(a) and 302(c), P.P.C.
would amount to grant the licence of killing innocent persons by their Walies."
(underlining has been supplied for emphasis)
 
21. In the ensuing case of Ghulam Murtaza v. The State (2004 SCMR 4) the convict of murder
was a minor and a 3-member Bench of this Court had not felt any hesitation in concluding that
section 308, P.P.C. was attracted only to a case of Qisas and not to a case of Ta'zir.
 
22. The subsequent case of Nasir Mehmood and another v. The State (2006 SCMR 204) was a
case of a murderer of his wife who had been survived by living minor children from the wedlock.
A 3-member Bench of this Court was pleased to hold that the said case was a case of Ta'zir and,
therefore, the provisions of section 306, P.P.C. had no application to such a case.
 
23. An elaborate discussion regarding the issue at hand was later on made by a 3-member Bench
of this Court in the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111)
and an effort was made to remove any "ambiguity" or "misconception" in that respect. The case
was of a convict of murder who was a minor and it had been concluded in no uncertain terms
that sections 306, 307 and 308, P.P.C. have no application in cases of Ta'zir. It was observed as
follows:--
 
"(6)      The sole question for determination in the present appeal, relates to the scope of
section 308, P.P.C. and for better appreciation of the proposition, we deem it proper to
examine the relevant provisions in Chapter XVI of P.P.C., along with the definition of
"Adult", "Qatl-i-amd", "Qisas" and "Tazir" to ascertain correct legal position regarding
the application of sections 306 and 307, P.P.C. in respect of the punishment of Qisas and
Tazir for Qatl-i-amd under section 302, P.P.C.
           
"299. (a) "Adult" means a person who has attained the age of eighteen years;
 
            ----------------------------
 
 (k) "Qisas" means punishment by causing similar hurt at the same part of the body of the
convict as he has caused to the victim or by causing his death if he has committed Qatl-i-
amd in exercise of the right of the victim or a Wali.
 
(l) "Tazir" means punishment other than qisas, diyat, arsh or daman."
 
Qatl-i-amd has been defined in section 300, P.P.C. as under:--
           
"300. Qatl-i-amd.---Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary course of nature
is likely to cause death, or with the knowledge that his act is so imminently dangerous
that it must in all probability cause death, causes the death of such person, is said to
commit Qatl-i-amd."
           
The punishment of Qatl-i-amd liable to qisas is provided in section 302(a), P.P.C. whereas Tazir
under section 302(b) and (c), P.P.C. as under:--
           
"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 tazir 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:"
 
(7) In sections 306 and 307, P.P.C. certain exceptions have been created to deal with the cases in
which Qatl-i-amd is not liable to qisas or the punishment of qisas is not enforceable. In the cases
falling within the purview of sections 306 and 307, P.P.C., the offender is liable to the
punishment of diyat under section 308, P.P.C. and having regard to the facts and circumstances
of the case, the Court may in addition to the punishment of diyat, also punish him with
imprisonment of either description which may extend to 14 years as tazir. Sections 306 to 308,
P.P.C. provide as under:--
           
"306. Qatl-i-amd not liable to qisas.---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
 
(c) when any wali of the victim is a direct descendant, howlowsoever, of the offender.
           
307. Cases in which qisas for Qatl-i-amd shall not be enforced.--Qisas for Qatl-i-amd shall
not be enforced in the following cases, namely:--
 
(a) when the offender dies before the enforcement of qisas;
 
(b) when any wali voluntarily and without duress, to the satisfaction of the Court, waives
the right of qisas under section 309 or compounds under section 310; and
 
(c) when the right of qisas devolves on the offender as a result of the death of the wali of
the victim, or on the person who has no right of qisas against the offender.
           
308. Punishment in Qatl-i-amd not liable to qisas, etc.---(1) Where an offender guilty of Qatl-
i-amd is not liable to qisas under  section  306  or  the  qisas  is  not  enforceable under clauses
(c) of section 307, he shall be liable to diyat:
           
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
minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be
able to realize 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 Tazir:
           
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 offender and if
there is no wali other than the offender, he shall be punished with imprisonment of either
description for a term which may extend to fourteen years as tazir.
 
(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 tazir."
           
Section 338-F, P.P.C. provides that in the matter of interpretation and application of provisions
of The Chapter XVI, P.P.C. of the offences relating to the human body and qisas and diyat, the
Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of
Holy Prophet  (p.b.u.h.).
 
(8) The punishment for Qatl-i-amd as qisas in the command of Holy Qur'an is prescribed in
section 302(a), P.P.C. whereas the sentence of death as tazir is provided under section 302(b) and
combined study of the provisions of law referred above, would clearly show that section 308,
P.P.C. has limited scope to the extent of cases falling within the ambit of sections 306, P.P.C.
and 307, P.P.C. in which either an offender of Qatl-i-amd is not liable to qisas or the punishment
of qisas is not enforceable under law. The punishment of qisas is different to the punishment of
tazir and the two kinds of punishments cannot be mixed together for the purpose of sections 306
and 307, P.P.C. to attract the provisions of section 308, P.P.C. The punishment
of  death  for  Qatl-i-amd  liable  to  qisas  as  provided  under section 302(a), P.P.C. can only be
awarded if the evidence in terms of section 304, P.P.C. is available and in a case of Qatl-i-amd in
which such evidence is not available, the Court may, having regard to the facts and
circumstances of the case, convict an offender of Qatl-i-amd under section 302(b), P.P.C. and
award him the sentence of death as tazir. In a case of Qatl-i-amd in which the offender is liable to
qisas but by virtue of prohibition contained in section 306, P.P.C. he cannot be awarded
punishment of death under section 302(a), P.P.C. as
qisas  or  the  punishment  of  qisas  is  not  enforceable  under section 307(c), P.P.C. he shall be
liable to the punishment of diyat under section 308, P.P.C. and may also be awarded the
punishment of imprisonment as provided therein but in a case in which the offender is awarded
punishment under section 302(b), P.P.C. as tazir, the provision of section 308, P.P.C. cannot be
pressed into service for the purpose of punishment. Section 304, P.P.C. provides as under:--
           
"304. Proof of Qatl-i-amd liable to qisas, etc.---(1) Proof 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 Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of
1984).
 
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas."
 
(9) The ambiguity regarding the application of section 308,  P.P.C. in all cases of Qatl-i-amd in
which the offender cannot be  awarded the punishment under section 302(a), P.P.C. is
removed  in the light of above discussion as careful examination of the different provisions of
law referred hereinbefore, would clearly show that in the cases in which the offender is not liable
to qisas for the reasons given in section 306, P.P.C. or the punishment of qisas cannot be
enforced under section A 307(c), P.P.C. section 308, P.P.C. is attracted but in the cases in which
the punishment of death is awarded under section 302(b), P.P.C. as tazir this section is not
applicable. The right of qisas means the right of causing similar hurt on the same part of body
and in case of death, the offender will be done to death in the manner he committed death of his
fellow person and thus the punishment of death as qisas provided under section 302(a), P.P.C.
cannot be awarded unless the evidence in terms of section 304, P.P.C. is available and in a case
of Qatl-i-amd in which the punishment of qisas cannot be awarded, the Court may on proving
charge against the offender, having regard to the facts and circumstances of the case, award him
the punishment of death or life imprisonment as tazir under section 302(b), P.P.C. In view of the
above distinction, a minor offender of Qatl-i-amd may in case  of punishment of tazir, avail the
benefit of minority in the matter  of sentence under section 302(b), P.P.C. but cannot claim the
benefit of section 308, P.P.C.
 
(10) This Court in Sarfraz v. State, referred hereinbefore, has held that a minor accused who has
committed an offence of Qatl-i-amd under influence of others cannot be awarded sentence of
death as qisas under section 302(a), P.P.C. This is settled law that provisions of sections 306 to
308, P.P.C. attract only in the cases of Qatl-i-amd liable to qisas under section 302(a), P.P.C. and
not in the cases in which sentence for Qatl-i-amd has been awarded as tazir under section 302(b),
P.P.C. The difference of punishment for Qatl-i-amd as qisas and tazir provided under sections
302(a) and 302(b), P.P.C. respectively is that in a case of qisas, Court has no discretion in the
matter of sentence whereas in case of tazir Court may award either of the sentence provided
under section 302(b), P.P.C. and exercise of this discretion in the case of sentence of tazir would
depend upon the facts and circumstances of the case. There is no cavil to the proposition that an
offender is absolved from sentence of death by way of qisas if he is minor at the time of
occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd,
keeping in view the circumstances of the case, may award the offender the punishment of death
or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam
Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203, Muhammad
Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338.
 
(11) The careful examination of the provisions referred above, would clearly show that section
308, P.P.C. is attracted only in the cases liable to qisas in which by virtue of the provisions of
sections 306 and 307, P.P.C., the punishment of qisas cannot be imposed or enforced and not in
the cases in which punishment is awarded as tazir. In the light of law laid down by this Court in
the judgments referred above, we are of the considered view that in the facts of the present case,
section 308, P.P.C. is not attracted for the reasons firstly that respondent has not been able to
bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he
was minor and secondly, in absence of the evidence in terms of section 304, P.P.C. to bring the
case within the ambit of section 302(a), P.P.C. for the purpose of punishment of qisas, the
respondent was awarded sentence of death by the trial Court under section 302(b), P.P.C. as
tazir. There is misconception of law that the provision of section 308, P.P.C. is also applicable in
the cases in which punishment of death is awarded as tazir whereas the correct legal position is
that this special provision is invokeable only in the cases in which either offender is not liable to
qisas or qisas is not enforceable. This is against the spirit of law that in all cases of Qatl-i-amd in
which sentence of death is awarded either as qisas under section 302(a) or as tazir under section
302(b), P.P.C., an offender who at the time of committing the offence, was less than 18 years of
age shall be liable to the punishment provided under section 308, P.P.C. rather the true concept is
that section 308, P.P.C. will  operate only in the cases which fall within the ambit of
sections  306 and 307, P.P.C. in which either  offender  is  not  liable  to  qisas  or  Qisas  is  not
enforceable."
(underlining has been supplied for emphasis)
 
24. Thereafter came the case of Abdul Jabbar v. The State and others (2007 SCMR 1496)
wherein a 3-member Bench of this Court concluded in the following terms:--
           
"13. A bare look at the afore-referred provision of law would indicate that Qatl-i-amd is
punishable with death as Qisas if the proof in either of the forms specified in section 304,
P.P.C. is available. In absence of such a proof a Qatl-i-amd can be visited "with
punishment of death or imprisonment for life as Ta'zir having regard to the facts and
 circumstances of the case under section 302(b), P.P.C." In the instant case as admittedly
the evidence  led  did  not  satisfy  the  requirement  of  proof  as required in  section  304,
P.P.C. the  case  fell  within  the  ambit  of  section  302(b), P.P.C.
and  the  respondents  were liable to be 'punished with death or imprisonment for life as
Ta'zir'."
 
25. The case to follow was that of Tauqeer Ahmed Khan v. Zaheer
Ahmad  and  others  (2009  SCMR  420)  which  was  also  decided by a 3-member Bench of this
Court. It was again a case of a convict of murder who was a minor. Explaining "the true concept"
it was held by this Court in categorical terms that the provisions of section 308, P.P.C. are
attracted only in cases of Qisas and not in cases of Ta'zir. It was observed as under:--
           
"10. A careful examination of the different provisions of law would show that section
308, P.P.C. is attracted only in the cases liable to "Qisas" in which by virtue of the
provisions of sections 306 and 307, P.P.C., the punishment of "Qisas" cannot be imposed
or enforced and not in the cases in which punishment is awarded as "Tazir". In the light
of law laid down by this Court, we are of the view that in the facts of the present case,
section 308, P.P.C. is not attracted as respondent has not been able to bring on record any
legal evidence to the satisfaction of the law that at the time of occurrence, he was minor
and liable to punished provided under section 308, P.P.C., rather the true concept is that
section 308, P.P.C. will operate only in the cases which fall within the ambit of sections
306 and 307, P.P.C. in which either offender is not liable to "Qisas" is not enforceable."
(underlining has been supplied for emphasis)
 
26. The next case of Samiullah and others v. Jamil Ahmed and 2 others (2008 SCMR 1623) was
also a case of a convict of murder who was a minor. After some discussion of the legal issue a 3-
member Bench of this Court concluded in that case that the provisions of section 308, P.P.C. did
not stand attracted to the case because it was a case of Ta'zir and not a case of Qisas. The
following observations were made:--
 
"(19) The trial Court has convicted the appellant under section 308, P.P.C. A minute
study of the said section would show that it is attracted only in the cases liable to "Qisas"
in which by virtue of provisions of sections 306 and 307, P.P.C., the punishment of
"Qisas" cannot be imposed or enforced and not in the cases in which punishment is
awarded as "Ta'zir". Reference can be made in this context to the cases of Ghulam
Murtaza v. The State (2004 SCMR 4) and Iftikhar-ul-Hassan v. Israr Bashir (PLD 2007
SC 111). Even otherwise, section 304, P.P.C. contemplated "proof of Qatl-i-amd" liable
to Qisas, which is reproduced as under:--
           
"304. Proof of Qatl-i-amd liable to qisas, etc.:---(1) Proof 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 Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10
of 1984).
 
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas."
 
(20)      The facts of the instant case, when put to the test of "proof of Qatl-i-amd liable to
Qisas" as provided in the above referred provision of law, and the dictum laid down by
this Court not fulfilling the required criteria for the purpose, neither the accused had
made before the Court of competent jurisdiction a voluntary and true confession nor
Article 17 of the "Qanun-e-Shahadat" Order, 1984, applied. The High Court has rightly
observed that the appellant is not liable to conviction under section 302(a), P.P.C., for
want of application of section 304, P.P.C."
 
27. The case of Ahmad Nawaz and another v. The State (2011 SCMR 593) happens to be the last
reported case of the second category of the precedent cases on the subject. In that case too a 3-
member Bench of this Court had unambiguously held that sections 306, 307 and 308, P.P.C.
have no application to cases of Ta'zir and while holding so reference had been made to the earlier
judgments of this Court delivered in the cases of Iftikhar-ul-Hassan, Ghulam Murtaza, Faqir
Ullah, Muhammad Akram and Abdus Salam (supra).
 
28. A survey of all the precedent cases available on the subject so far clearly shows that in the
first category of cases mentioned above the provisions of section 308, P.P.C. had been applied to
the cases of Ta'zir as well without seriously considering the apparent distinction between Qisas
and Ta'zir cases and also that the declaration of law to the contrary made by a 5-member Bench
of this Court in the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) was
never adverted to in those cases. The survey further reveals that the 5-member Bench of this
Court deciding the case of Faqir Ullah (supra) still remains to be the largest Bench of this Court
deciding the legal question involved and, thus, on account of its numerical strength the judgment
passed by that Bench still holds the field overshadowing, if not eclipsing, all the other judgments
rendered on the subject by the other Benches of lesser numerical strength. Another highlight of
the survey conducted above is that on a number of earlier occasions this Court had tried to
remove the "confusion", "ambiguity" and "misconception" engulfing the legal issue under
discussion but unfortunately uncertainty and misunderstanding in this regard still subsists and
this is why we have now been called upon to pronounce upon the matter.
 
29. After hearing the learned counsel for the parties intently, examining all the relevant statutory
provisions minutely and going through all the relevant precedent cases exhaustively I have
found, as already observed above, that in view of the provisions of section 304, P.P.C. a case is
one of Qisas only if the accused person makes before a court competent to try the offence a
voluntary and true confession of commission of the offence or the requisite number of witnesses
are produced by the prosecution before the trial court and their competence to testify is
established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused
person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984. I also find that the cases
not fulfilling the requirements of section 304, P.P.C. are cases of Ta'zir and the provisions
relating to Qisas have no relevance to the same. It is also evident to me that the cases covered by
the provisions of sections 306 and 307, P.P.C. are primarily cases of Qisas but because of certain
considerations the punishment of Qisas is not liable or enforceable in those cases and instead
some alternate punishments for such offenders are provided for in section 308, P.P.C. I, thus, feel
no hesitation in concluding  that  the  provisions  of  and  the  punishments provided in section
308, P.P.C. are relevant only to cases of Qisas and that they have no relevance to cases of Ta'zir
and also that any latitude or concession in
the  matter  of  punishments  contemplated  by  the  provisions  of sections 306, 307 and 308,
P.P.C. and extended to certain categories of offenders in Qisas cases mentioned in such
provisions ought not to be mistaken as turning those cases into cases of Ta'zir with the same
latitude or concession in the punishments. Upon a careful consideration of the legal issue at hand
I endorse the legal position already declared by this Court in the second category of the
precedent cases referred to above as on the basis of my own independent assessment and
appreciation I have also reached the same conclusions as were reached in the said cases. I,
therefore, declare that Qisas and Ta'zir are two distinct and separate legal regimes which are
mutually exclusive and not overlapping and they are to be understood and applied as such. I
expect that with this categorical declaration the controversy at hand shall conclusively be put to
rest.
 
30. It  needs  to  be  mentioned  here  that  the  provisions  of section 302(c), P.P.C. have also
remained problematic in the past and their interpretation has also not been free from controversy.
The interpretation placed upon the said provisions by one Bench of this Court in the case of
Abdul Haq v. State (PLD 1996 SC 1) was disagreed with by another Bench of this Court in the
case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) and later on the
interpretation advanced in the case of Ali Muhammad (supra) was followed by this Court in the
cases of Abdul Karim v. The State (2007 SCMR 1375) and Azmat Ullah v. The State (2014
SCMR 1178). According to my understanding the provisions of section 302(c), P.P.C. are
relevant to those acts of murder which are committed in situations and circumstances which do
not attract the sentence of Qisas and I further understand that sections 306 and 307, P.P.C. are
person specific whereas section 302(c), P.P.C. relates to certain situations and circumstances
wherein a murder is committed and according to the Injunctions of Islam the punishment of
Qisas is not applicable to such situations and circumstances. In the case of Ali Muhammad
(supra) it had been declared by this Court that such situations and circumstances are the same
which were contemplated by the Exceptions to the erstwhile section 300, P.P.C. and I tend to
agree with the said view. It had been observed by this Court in the case of Ali Muhammad that
           
"28. ------------- It seems to me, therefore, that the class of cases to which clause (c) of
section 302 applies is different from the
cases  enumerated  in  section  306  and  punishable  under section 308 and that clause (c)
of section 302 is not limited to cases  enumerated  in  section  306  and  punishable  under
section 308."
 
Without dilating upon the scope and applicability of the provisions of section 302(c), P.P.C. any
further I leave the matter to be discussed in detail in some other appropriate case as while
hearing the present matters this issue has cropped up only incidentally and I have not received
adequate and proper assistance in the present proceedings so as to comfortably resolve the same.
One thing may, however, be clarified here that section 302(c), P.P.C. and section 338-F, P.P.C.,
both falling in Chapter XVI of the Pakistan Penal Code, speak of the Injunctions of Islam and it
must never be lost sight of that by virtue of the provisions of Article 203G of the Constitution of
the Islamic Republic of Pakistan, 1973 this Court, or even a High Court, has no jurisdiction to
test repugnancy or contrariety of any existing law or legal provision to the Injunctions of Islam
as laid down in the Holy Qur'an and Sunnah and such jurisdiction vests exclusively in the
Federal Shariat Court and the Shariat Appellate Bench of this Court. It, thus, may not be
permissible for this Court, in the context of the present set of cases, to compare two or more
provisions falling in Chapter XVI of the Pakistan Penal Code for holding or declaring as to
which provision is in accord with the Injunctions of Islam and which provision is not.
 
31. There are certain other issues relevant to cases of Qisas and Ta'zir and I take this opportunity
to clarify the legal position in respect of such issues as well. The matter of compromise in cases
of murder has also remained subject of some controversy before this Court in the past but the
legal position in that respect has now been settled and I would like to restate the settled legal
position so as to remove all doubts. Sections 309, 310 and 338-E, P.P.C. and section 345, Cr.P.C.
are relevant in this respect and the same are reproduced below:--
           
309. Waiver-Afw of qisas in qatl-i-amd.---(1) In the case of qatl-i-amd an adult sane wali may,
at any time and without any compensation, waive his right of qisas:
 
            Provided that the right of qisas shall not be waived--
 
(a) where the Government is the wali; or
 
(b) where the right of qisas vests in a minor or insane.
 
(2) Where a victim has more than one wali, any one of them may waive his right of qisas:
           
Provided that the wali who does not waive the right of qisas shall be entitled to his share
of diyat.
 
(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one
victim shall not affect the right of qisas of the wali of the other victim.
 
(4) Where there are more than one offenders, the waiver of the right of qisas against one offender
shall not affect the right of qisas against the other offender.
           
310. Compounding of qisas (Sulh) in qatl-i-amd.---(1) In the case of qatl-i-amd, an adult sane
wali may, at any time on accepting badal-i-sulh, compound his right of qisas:
           
Provided that a female shall not be given in marriage or otherwise in badal-i-sulh.
 
(2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound
the right of qisas on behalf of such minor or insane wali:
           
Provided that the value of badal-i-sulh shall not be less than the value of diyat.
 
(3) Where the Government is the wali, it may compound the right of qisas:
 
            Provided that the value of badal-i-sulh shall not be less than the value of diyat.
 
(4) Where the badal-i-sulh is not determined or is a property
or a right the value of which cannot be determined in terms of money under Shariah the right of
qisas shall be deemed to have been compounded and the offender shall be liable to diyat.
 
(5) Badal-i-sulh may be paid or given on demand or on a deferred
date  as  may  be  agreed  upon  between  the  offender  and  the wali.
           
Explanation.---In this section badal-i-sulh means the mutually agreed compensation according
to Shariah to be paid or given by the offender to a wali in cash or in kind or in the form of
movable or immovable property.
           
338-E. Waiver or compounding of offences.---(1) Subject to the provisions of this Chapter and
section 345 of the Code of Criminal Procedure, 1898, all the offences under this Chapter
may  be  waived  or  compounded  and  the  provisions  of sections 309 and 310 shall, mutatis
mutandis, apply to the waiver or compounding of such offences:
           
Provided that, where an offence has been waived or compounded, the Court may, in its
discretion having regard to the facts and circumstances of the case, acquit or award ta'zir
to the offender according to the nature of the offence:
           
Provided further that where an offence under this Chapter has been committed in the
name or on the pretext of honour, such offence may be waived or compounded subject to
such conditions as the Court may deem fit to impose with the consent of the parties
having regard to the facts and circumstances of the case.
 
(2) All questions relating to waiver or compounding of an offence or awarding of punishment
under section 310, whether before or after the passing of any sentence, shall be determined by
trial Court:
           
Provided that where the sentence of qisas or any other sentence is waived or compounded
during the pendency of an appeal, such questions may be determined by the Appellate
Court:
           
Provided further that where qatl-i-amd or any other offence under this Chapter has been
committed as an honour crime, such offence shall not be waived or compounded without
consent of the Court and subject to such conditions as the Court may deem fit having
regard to the facts and circumstances of the case.
           
345. Compounding of offences.-(1) --------------------
 
(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first
two columns of the table next following may, with the permission of the Court before which any
prosecution for such offence is pending, be compounded by the persons mentioned in the third
column of that table:
 
Offence Sections of the Persons by whom offence
s Pakistan Penal may be compounded
Code
applicable
Qatl-i- 302 By the heirs of the victims
amd other than the accused or the
convict if the offence has
been committed by him in
the name or on the pretext of
karo kari, siyah kari or
similar other customs or
practices
 
This Court has already declared that section 309, P.P.C. pertaining to waiver (Afw) and section
310, P.P.C. pertaining to compounding (Sulh) in cases of murder are relevant only to cases of
Qisas and not to cases of Ta'zir and a reference in this respect may be made to the cases of Sh.
Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), Niaz
Ahmad v. The State (PLD 2003 SC 635) and Abdul Jabbar v. The State and others (2007 SCMR
1496). In the said cases it had also been clarified by this Court that in cases of Ta'zir the matter
of compromise between the parties is governed and regulated by the provisions of section
345(2), Cr.P.C. read with section 338-E, P.P.C. In the same cases it had further been explained
and clarified by this Court that a partial compromise may be acceptable in cases of Qisas but a
partial compromise is not acceptable in cases of Ta'zir. The cases of Manzoor Hussain and 4
others v. The State (1994 SCMR 1327), Muhammad Saleem v. The State (PLD 2003 SC 512),
Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others (PLD 2003
SC 547), Niaz Ahmad v. The State (PLD 2003 SC 635), Riaz Ahmad v. The State (2003 SCMR
1067), Bashir Ahmed v. The State and another (2004 SCMR 236) and Khan Muhammad v. The
State (2005 SCMR 599) also throw sufficient light on such aspects relating to the matter of
compromise. It may be true that compounding of an offence falling in Chapter XVI of the
Pakistan Penal Code is permissible under some conditions both in cases of Qisas as well as Ta'zir
but at the same time it is equally true that such compounding is regulated by separate and distinct
provisions and that such limited common ground between the two does not obliterate the clear
distinction otherwise existing between the two separate legal regimes.
 
32. The provisions of section 311, P.P.C. had also posed some difficulty in the past and had
remained a subject of controversy before different courts of the country but that difficulty has
now dissipated and the controversy now stands resolved by this Court. Section 311, P.P.C. is
reproduced below:--
           
Section 311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd:---
Notwithstanding anything contained in section 309 or section 310 where all the walis do not
waive or compound the right of qisas, or if the principle of fasad -fil-arz is attracted the Court
may, having regard to the facts and circumstances of the case, punish an offender against whom
the right of qisas has been waived or compounded with death or imprisonment for life or
imprisonment of either description for a term which may extend to fourteen years as ta'zir:
           
Provided that if the offence has been committed in the name or on the pretext of honour,
the imprisonment shall not be less than ten years.
           
Explanation.---For the purpose of this section, the expression fasad -fil-arz shall include the past
conduct of the offender, or whether he has any previous convictions, or the brutal or shocking
manner in which the offence has been committed which is outrageous to the public conscience,
or if the offender is considered a potential danger to the community, or if the offence has been
committed in the name or on the pretext of honour.
 
In the cases of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327), Khan
Muhammad v. The State (2005 SCMR 599), Iftikhar-ul-Hassan v. Israr Bashir and another (PLD
2007 SC 111) and Iqrar Hussain and others v. The State and another (2014 SCMR 1155) this
Court has already declared that the provisions of section 311, P.P.C. are relevant to and can be
pressed into service in cases of Qisas only and not in cases of Ta'zir.
 
33. Having declared the correct legal position relevant to the cases of Qisas and Ta'zir I direct the
office of this Court to fix the titled appeals and the connected petition for hearing before
appropriate Benches of the Court for their decision on the basis of their respective merits in the
light of the law declared through the present judgment.
 
Sd/-
 
(Asif Saeed Khan Khosa) Judge
           
I have gone through the exhaustive judgment authored by my learned brother Mr. Justice Asif
Saeed Khan Khosa. I, with utmost respect for my brother and his view and for the reasons
recorded separately, don't tend to agree therewith.
 
Sd/-
(Ejaz Afzal Khan) Judge
           
I have the privilege of going through the opinions rendered by my learned Brothers i.e. Hon'ble
Mr. Justice Asif Saeed Khan Khosa and Hon'ble Mr. Justice Ejaz Afzal Khan. Though both are
elaborate, but I respectfully agree with the opinion rendered by Hon'ble Mr. Justice Ejaz Afzal
Khan.
 
Sd/-
(Ijaz Ahmed Chaudhry) Judge
           
I agree with main judgment of my lord brother Mr. Justice Asif Saeed Khan Khosa but with my
own additional reasons.
 
Sd/-
  
(Dost Muhammad Khan) Judge
           
I agree with Hon'ble Justice Asif Saeed Khan Khosa. However, I have also added a separate
note.
 
Sd/-
 
(Qazi Faez Isa) Judge
 
 
JUDGMENT OF THE COURT
           
By a majority of three against two the opinion recorded by Asif Saeed Khan Khosa, J. is declared
to be the judgment of the Court.
 
Sd/-
 
(Asif Saeed Khan Khosa) Judge
 
Sd/-
 
(Ejaz Afzal Khan) Judge
 
Sd/-
 
(Ijaz Ahmed Chaudhry) Judge
 
Sd/-
 
(Dost Muhammad Khan)Judge
 
Sd/-
 
(Qazi Faez Isa) Judge
           
EJAZ AFZAL KHAN, J.--- I have gone through the detailed judgment authored by my brother
Mr. Justice Asif Saeed Khan Khosa. Though the judgment is elaborate, almost exhaustive on
many aspects of the subject but I don't tend to agree therewith because it appears to be against
the letter and spirit of the relevant provisions of the P.P.C. and their legislative scheme. My
reasons in this behalf run as follows:--
 
2. The word "qisas" as defined in section 299(K), P.P.C. means "punishment by causing similar
hurt at same part of the body of the convict as he has caused to the victim or by causing his death
if he has committed qatl-i-amd, in exercise of the right of the victim or a wali. According to
Arabic English Lexicon compiled by Edward William Lane, the word qisas means "return of evil
for evil". It also means retaliation". Another word, close in meaning to the word qisas is
retribution which means a punishment inflicted in return for a wrong and thus distinctively
stresses the operation of strict justice by administering merited punishment. The word "tazir" as
defined in section 299(l), P.P.C. means punishment other than qisas. But literally it means
chastisement. Punishment of tazir is not prescribed by the Holy Quran and Sunnah. What
punishment, in the circumstances of a case, was to be awarded, in the first instance lay with the
discretion of the Court; with the passage of time exercise of such discretion was structured but at
the end of day discretion was replaced by the codified law. However, there are no two opinions
on the point that punishment of tazir cannot be as stern and stringent as that of qisas.
 
3. Section 304, P.P.C. sets out the mode for proof of qatl-i-amd liable to qisas. Section 302(a)
provides punishment for qatl-i-amd liable to qisas. Section 302(b) provides punishment for qatl-
i-amd liable to tazir when proof in either of the forms specified in section 304, P.P.C. is not
available. This is not the end, because it is not the form of proof alone which takes qatl-i-amd
outside the pail of qisas. Section 302(c), P.P.C. deals with qatl-i-amd where according to the
injunctions of Islam punishment of qisas is not applicable. There is another class of cases where
qatl-i-amd shall not be liable to qisas in view of the circumstances mentioned in clauses (a), (b)
and (c) of section 306, P.P.C. There is yet another class of cases where qisas shall not be
enforceable in view of the circumstances mentioned in clauses (a), (b) and (c) of section 307,
P.P.C.
 
4. Section 308 deals with punishments falling within the purview of sections 306 and 307(c),
P.P.C. In case we subscribe to the view that provisions contained in sections 306 and 308, P.P.C.
apply to the cases of qisas only, it is apt to give rise to an anomaly. The anomaly is that if
sentence in qatl-i-amd liable to qisas, despite stern and stringent forms of proof,
can  be  lenient  in  view  of  the  circumstances  mentioned in sections 306 and 308, P.P.C. why
can't it be lenient in view of the same circumstances in the case of tazir notwithstanding the
forms of proof and sentence provided thereunder are comparatively less stern and stringent. At
no stage, I say so with utmost respect, an effort was made to resolve this anomaly in the light of
the relevant provisions of the statute.
 
5. Before appreciating the true import of section 306, P.P.C. and legislative intent behind it, a
look there at would be necessary and useful, which reads as under:--
           
"306. Qatl-i-amd not liable to qisas.---Qatl-i-amd shall not be liable to qisas in the following
cases, namely:
 
(a) when an offender is a minor and insane:
           
Provided that, where a person liable to qisas associates with himself in the commission of
the offence 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 grand child; how low-so-ever; and
 
(c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender."
           
This section when read in its correct perspective leaves little doubt that it is a continuation of
section 302, P.P.C. Clauses (a), (b) and (c) of this section like clauses (b) and (c) of section 302,
P.P.C. state the circumstances taking qatl-i-amd out of the pail of qisas. However, according to
proviso to clause (a) of the section the offender shall not be exempted from qisas if he, with the
intention to save himself from qisas, associates with himself in the commission of an offence a
person not liable to qisas. Legislative intent behind the words used in clauses (a), (b) and (c) of
the section being clear and unambiguous, does not admit of any other interpretation. Restricting
the application of this section to qisas only would, thus, amount to reading down the above
mentioned clauses without any interpretative justification. Above all else what has been ignored
is that qatl-i-amd committed by a minor or insane, father or grandfather of the child or by a direct
descendent of the victim is not liable to qisas from day one. Circumstances stated in clauses (a),
(b) and (c) of the section being inherent in the offender and existent at the time of commission of
the crime are independent of the forms of proof. Such case has to be dealt with independently
without being linked with the forms of proof. It doesn't appeal to mind that qatl-i-amd committed
by a minor or insane, father or grandfather of the child or by a direct descendent of the victim
could be punished under section 308, P.P.C. if it is proved to be one of qisas. This is what was
ignored in the cases of "Faqir Ullah v. Khalil-uz-Zaman and others" (1999 SCMR 2203),
"Muhammad Afzal alias Seema v. The State" (1999 SCMR 2652), "Muhammad Saleem v. The
State" (2001 SCMR 536), "Umar Hayat v. Jahangir and another" (2002 SCMR 629),
"Muhammad Akram v. The State" (2003 SCMR 855), "Ghulam Murtaza v. The State" (2004
SCMR 4), "Nasir Mehmood and another v. The State" (2006 SCMR 204), "Iftikhar-ul-Hassan v.
Israr Bashir and another" (PLD 2007 SC 111), "Abdul Jabbar v. The State and others" (2007
SCMR 1496), "Taqueer Ahmed Khan v. Zaheer Ahmed and others" (2009 SCMR 420),
"Samiullah and others v. Jamil Ahmed and 2 others" (2008 SCMR 1623), "Ahmed Nawaz and
another v. The State" (2011 SCMR 593) and other judgments endorsing the same view.
 
6. Section 307, P.P.C. though also states the circumstances taking qatl-i-amd outside the pail of
qisas, but they are not the ones existing at the time of commission of the crime. They, as a matter
of fact, arise out of the events taking place subsequent thereto. A distinction thus has to be drawn
between the circumstances stated in this section and those stated in the section preceding it.
Qisas, in any event, shall not be enforced in the following cases:--
 
(a) when the offender dies before the enforcement of qisas;
 
(b) when any wali, voluntarily and without duress, to the satisfaction of the Court, waives
the right of qisas under section 309 or compounds under section 310; and
 
(c) when the right of qisas devolves on the offender as a result of the death of the wali of
the victim, or on the person who has no right of qisas against the offender.
           
Right of qisas in view of clause (a) shall not be enforced if the offender dies before its
enforcement. Such right if waived or compounded under clause (b) shall be dealt with under
section 309(2) or 310(4) respectively. Such right if devolved on the offender as a result of death
of the wali of the victim or on the person who has no such right against the offender under clause
(c) may end up in payment of diyat or punishment under tazir or both in view of the provision
contained in section 308, P.P.C.
 
7. Section  308,  P.P.C.,  which  is  also  a  continuation  of sections 302, 306 and 307 elaborately
deals with the cases by providing that where an offender guilty of qatl-i-amd is not liable to qisas
under section 306, P.P.C. or qisas is not enforceable under clause (c) of section 307, P.P.C. he
shall be liable to diyat. In case the offender is minor or insane, such diyat, according to first
proviso to subsection (1), shall be payable from his property or by such person as may be
determined by the Court. But where the offender being a minor has attained sufficient maturity
or being insane had a lucid interval so as to be able to realize the consequences of his act, he
according to the second proviso to subsection (1), may be punished with imprisonment of either
description for a term which may extend to 14 years as tazir. Where qisas is not enforceable
under clause (c) of section 307, P.P.C., the offender, according to third proviso to subsection (1)
shall be liable to diyat only if there is any wali other than the offender, and where there is no wali
other than the offender, he shall be punished with imprisonment of either description which may
extend to 14 years as tazir. The Court, according to subsection (2), 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 25 years as tazir
notwithstanding anything contained in subsection (1) of section 308, P.P.C.
 
8. Even waiver and compounding have been restricted to the cases
of  qisas  by  reading  sections  309  and  310, P.P.C. in  isolation. Section 338-E, which indeed is
a key provision in this behalf inasmuch as it determines the scope and amplitude of sections 309
and 310, P.P.C. has been ignored altogether. The result is that a piecemeal rather than holistic
view of the relevant provisions contained in chapter XVI holds the field. Verbatim reproduction
of section 338-E would not thus be out of place, which reads as under:--
           
"338-E. Waiver or compounding of offences.---(1) Subject to the provisions of this Chapter
and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this
Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis
mutandis, apply to the waiver or compounding of such offences:
           
Provided that, where an offence has been waived or compounded, the Court may in its
discretion having regard to the facts and circumstances of the case, acquit or award tazir
to the offender according to the nature of offence:
           
Provided further that where an offence under this Chapter has been committed in the
name or on the pretext of honour, such offence may be waived or compounded subject to
such conditions as the Court may deem fit to impose with the consent of the parties
having regard to the facts and circumstances of the case.
 
(2) All questions relating to waiver or compounding of an offence or awarding of punishment
under section 310, whether before or after the passing of any sentence, shall be determined by
trial Court:
           
 Provided that where the sentence of qisas or any other sentence is waived or compounded
during the pendency of an appeal, such questions may be determined by the appellate
Court:
           
Provided further that where qatl-i-amd or any other offence under this Chapter has been
committed as an honour crime, such offence shall not be waived or compounded without
permission of the Court and subject to such conditions as the Court may deem fit having
regard to the facts and circumstances of the case."
 
9. The above quoted provision infallibly shows that all offences under chapter XVI can be
waived or compounded and the provisions of sections 309 and 310, P.P.C. shall mutatis mutandis
apply to the waiver or  compounding  of  such  offences. The  words "the  provisions  of sections
309 and 310, P.P.C. shall mutatis mutandis apply to the waiver or compounding of such
offences" used in the above quoted provision not only dilute their rigidity but also widen their
scope and extent. Proviso to subsection (1) of section 338-E which unequivocally provides that
"the Court in its discretion may, having regard to the circumstances of the case, acquit or award
tazir to the offenders according to the nature of offence where it has been waived or
compounded", leaves no doubt about the scheme of the law and legislative intent behind it.
These provisions, thus, cannot be interpreted narrowly as has been done in the past in some of
the judgments cited in the main judgment. Reference to section 345 of Cr.P.C., in the provision
quoted above by no means restricts the application of sections 306, 307 and 308, P.P.C. to the
cases of qisas only. Nor does it prevent a wali from waiving or compounding the offence of qatl-
i-amd.
 
The relevant entry relating to qatl-i-amd also deserves a reference which reads as under:--
 
"(Qatl-i-amd) 302 By the heirs of the victim [other
than the accused or the convict if
the offence has been committed
by him in the name or on the
pretext of karo kari, siyah kari or
similar other customs or
practices].
Qatl under 303 -do-
ikrah-i-tam
Qatl-i-amd 308 -do-"
not liable to
qisas
 
10. It,  therefore,  follows  that  the  provisions  contained  in sections 306 and 308, P.P.C. also
apply to the cases going outside the pail of qisas, with the same force and vigor. Any leniency in
punishment available in the cases of qisas in view of the circumstances mentioned in sections
306 and 308 of the P.P.C. cannot be denied to a person guilty of qatl-i-amd liable to tazir. The
interpretation placed on the provisions of Chapter No. XVI in the cases of "Faqir Ullah v. Khalil-
uz-Zaman and others", "Muhammad Afzal alias Seema v. The State", "Muhammad Saleem v.
The State", "Umar Hayat v. Jahangir and another", "Muhammad Akram v. The State", "Ghulam
Murtaza v. The State", "Nasir Mehmood and another v. The State", "Iftikhar-ul-Hassan v. Israr
Bashir and another", "Abdul Jabbar v. The State and others", "Taqueer Ahmed Khan v. Zaheer
Ahmed and others", "Samiullah and others v. Jamil Ahmed and 2 others" and "Ahmed Nawaz
and another v. The State" (supra) does not appear to be in conformity with their letter and spirit,
the more so when it leads to discrimination and even injustice, notwithstanding the nature of the
crime committed is the same.
 
11. Ratio of the judgments rendered in the cases of "Muhammad Iqbal v. The State" (1999
SCMR 403), "Sarfraz alias Sappi and 2 others v. The State" (2000 SCMR 1758), "Naseer Ahmed
v. The State" (PLD 2000 SC 813), "Dil Bagh Hussain v. The State" (2001 SCMR 232),
"Muhammad Abdullah Khan v. The State" (2001 SCMR 1775), "Amanat Ali v. Nazim Ali and
another" (2003 SCMR 608) and "Muhammad Ilyas v. The State" (2008 SCMR 396) appears to
be correct though it has not been rationalized in the light of the relevant provisions of the P.P.C.
 
12. Judgment rendered by a five member bench of this Court in the case of "Faqir Ullah v.
Khalil-uz-Zaman and others" (supra) appears to be binding on the subsequent benches of same or
less number of Judges in view of the dicta laid down in the cases of "The Province of East
Pakistan v. Dr. Azizul Islam" (PLD 1963 SC 296), "Multiline Associates v. Ardeshir Cowasjee
and 2 others" (PLD 1995 SC 423), "Muhammad Afzal alias Seema v. The State" (1999 SCMR
2652) and "Gulshan Ara v. The State" (2010 SCMR 1162), but since it is against the letter and
spirit of the provisions of chapter XVI of the P.P.C., it being per-incuriam does not have that
binding force.
 
13. The  sum  total  of  what  has  been  discussed  above  is  that sections 306, 307 and 308,
P.P.C. are equally applicable to the cases going outside the pail of qisas.
 
Sd/-
 
Ejaz Afzal Khan, J.
           
DOST MUHAMMAD KHAN, J.---I have carefully gone through the original judgment drawn
by my brother Mr. Justice Asif Saeed Khan Khosa, the earlier Larger Bench's decision and
majority decision of the 3-Members Benches cited therein. In view of well settled principle of
law, the same have a binding effect and any departure therefrom is thus, not permissible.
 
2. The provisions of sections 299, 302, 304, 306, 307, 308, 311, 337-P, 338-E and 338-F, P.P.C.
along with other provisions were added to the Pakistan Penal Code in light of the judgment of
this Court (Appellate Shariat Bench), after the draft bill was routed through and approved by
Islamic Ideology Council.
 
3. All these penal provisions, primarily have been based on the commandment of Almighty Allah
given in different verses of the 'Holy Quran' or the 'Sunnah' of the Holy Prophet (Peace Be Upon
Him). The same were enforced through an Ordinance, which was extended from time to time and
finally it was made an Act of the Parliament (Act II, 1997) thus, it occupied a permanent seat in
P.P.C. as Chapter XVI.
 
4. To understand and to effectively resolve the prevalent controversy it has become essential to
follow the universally acknowledged and accepted principle with regard to the construction and
interpretation of Statute. The power of judicial review to construe and interpret Statute is
invested in the superior courts however, there are some restrictions and limitations and the
Judges are to act within the parameters universally acknowledged and acted upon. In this
process, the Judges may enter upon in construing and interpreting Statute if it does not convey a
clear meaning and the intention of the law maker. Similarly, Judges would strive in search of the
intent of the law maker in case a Statute is ambiguous or it conveys two different meanings and
the Courts would give that meaning to a Statute which is more reasonable and further the
purpose and object of the enactment intended by the Parliament.
           
In exercise of these powers, the primary and fundamental principle is that the Courts/Judges have
to discover the true intention of the law maker. In case the Statute is plainly understandable and
its meaning is conveniently conceivable then it cannot put a different meaning on a Statute nor it
can stretch the same to cover those matters or to apply to the cases which are not covered by the
same, either impliedly or expressly.
 
5. It is the duty of the Courts to undertake the exercise of construction and interpretation of
Statute when it does not convey conceivable meaning or the intention of the law maker is not
clearly flowing therefrom so to make it workable and beneficial one. Again, in the course of that,
the Courts/Judges are supposed to give true meaning to the Statute keeping in view the objects of
the enactment, the law maker wanted to achieve. Undoubtedly, the scope of this exercise is
regulated by well settled principles and in no manner the Courts/Judges can enter into the field of
legislation as that process falls within the province of the Legislature because of the
constitutional command.
 
6. Of course, there is one exception to this rigid rule and that is when any Statute or enactment
has encroached upon the fundamental rights of the citizens and comes inflict or clashing with
those fundamental provisions of the Constitution, guaranteeing fundamental rights being
inviolable in nature to make it in conformity with those fundamental rights.
 
7. I have the benefit of going through the original judgment drawn by my brother Mr. Justice
Asif Saeed Khan Khosa, the judgment rendered by earlier larger Bench of five Judges in the case
of Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) and the elaborate reasoning given in
support of dissenting note of my brother Hon'ble Mr. Justice Ejaz Afzal Khan (J.).
 
8. With utmost respect to the view held by my brother (Mr. Justice Ejaz Afzal Khan, J.) putting a
different construction on the relevant provisions of the Pakistan Penal Code referred to above is
not in conformity with the fundamental principle relating to construction of Statute rather it
amounts to legislation and an attempt has been made to extend the scope of these provisions of
penal law to cover the cases expressly omitted to be covered by the same.
 
9. It is not the province of the Courts to supply the omissions or to repair the defect in the Statute
because that role and authority is undeniably vested in the law makers. The maxim, "A Causus
Omissus" can in no eventuality be supplied by a Court of law as that would amount to make
laws. A Court is not entitled to read words into an Act of Parliament unless unavoidable
circumstances provide a clear reason for acting in that manner. It is also not the domain of a
Court to add to nor to take from, a Statute anything unless there are very strong grounds for
holding that the Legislature intended something, which it has failed to express however, in the
course of such exercise no undue inference could be drawn to that effect. Similarly, a Court has
no power to fill up any gap in any Statute as doing so would amount to usurp the function and to
encroach upon the constitutional power of the Legislature, whether the omission is intentional or
inadvertent is not the concern of the Court and a "Causus Omissus" cannot be supplied by a
Court of law. It is better to leave the same for the wisdom of the Legislature and the Court has to
point out the defect or omission in any Statute. It is not the function of the Court to repair the
blunders found in any Statute enacted by the Parliament rather those must be corrected by the
Legislature itself. There is no reported decision where Court has added words to a Statute to fill
up apparent omissions or lacunas while exercising such jurisdiction.
           
Similarly, it is not for the Court to change the clear meaning of the Statue for the reason that it
would cause hardship to the accused or would bring about inconvenient consequences. Such
considerations are alien to the science of construction of Statute and even in this kind of Statute
the meaning cannot be departed from by the Court on the ground of public policy because it is
the exclusive business of the Legislature and not of the Judges to remedy the defects in a
particular Statute. The Court is neither supposed nor vested with powers to subvert the true
meaning of a Statute by putting on it more liberal construction to cover the cases which were
never intended by the Legislature.
 
10. It is also cardinal principle of law that Legislature cannot be attributed negligence to bring an
evil because legislation is a delicate function and laws are enacted to suppress the evils and not
to nurture the same. It is equally the duty of the Courts not to exonerate parties who plainly come
within the scope of law enacted, on account of highly technical and forced construction because
that would narrow down and exclude cases fairly falling within and covered by the Statute. Mere
verbal nicety or forced construction is never to be resorted to in order to exonerate persons
plainly coming within the scope of a Statute. True that Penal Statutes are to be strictly construed
and in case of doubt in favour of the accused. In that case too, Courts are not authorized to
interpret them in a manner to emasculate the same when they otherwise convey a clear and
definite meaning. Adhering to the strict grammatical meanings of the words used in the Statute is
a well settled principle of construction and has been emphasized time and again by the Superior
Courts.
 
11. Keeping in view the above bedrock principle and cannons of interpretation of Statute, we
have to see whether punishment by way of 'Ta'azir' is expressly included in the provisions of
section 306 where 'Qatl-i-Amd' shall not be liable to 'Qisas' in the category of cases enumerated
in the provisions of sections 306, 307 and 308, P.P.C. and it can also be enforced as provided
therein and whether same treatment is to  be  given  in  the  case  of  sections  309  and  310,
P.P.C. read with section 345, Cr.P.C.
 
12. To further clarify the legal position, it is necessary to refer to the classification of crimes
made by section 299, the definition clause and section 302, P.P.C. On combined reading of these
two provisions in view  of  the  new  dispensation  of  justice,  the  crimes  defined  against the
human body and the punishments provided therefor are as follows:--
 
            "S.299: .......
 
(k) "qisas' means punishment by causing similar hurt at the same part of the body of the
convict as he has caused to the victim or by causing his death if he has committed 'qatl-i-
amd' and in exercise of the right of victim or a 'Wali'.
 
(l) "tazir" means punishment other than qisas, diyat, arsh or daman;
 
(b) "arsh" means the compensation specified in this Chapter to be paid by the victim or
his heirs;
 
(d) "daman" means the compensation determined by the Court to be paid by the offender
to the victim for causing hurt not liable to arsh;
 
(e) "diyat' means the compensation specified in section 323 payable to the heirs of the
victim.
           
Similarly, the provision of section 302, P.P.C. consists of three clauses, providing that, whoever,
commits qatl-i-amd shall, subject to the provision 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 Injunction of Islam the punishment of qisas is
not applicable.
           
A  proviso  was  added  to  clause  (c)  by  Act I  of  2005  on 10-1-2005.
 
13. The provisions of sections 306, 307, 308, 309 and 310 in unequivocal and clear terms
mention the punishment of "Qisas" leaving no room for 'Ta'zir' punishment to be read or
included therein by implication. Same is the position of sections 311 and 312. However, the most
important one is clause (a) of subsection (2) of section 313 where, in case, the deceased/victim
has left behind no 'Wali', then the Government shall have the right of 'Qisas'.
           
In the cases of 'Qisas', 'Diyat', 'Arsh', 'Daman' and Badl-e-Sulah", the victim or the "Wali" (legal
heir of the deceased) has been placed on higher pedestal vis-a-vis the State because of the
injunctions of Islam laid down by the Holy Quran and Sunnah of the Holy Prophet (Peace Be
upon Him) while the State has been relegated to the secondary status. However, after going
through the entire scheme of Chapter XVI of the P.P.C. and the criminal justice system, provided
under the Criminal Procedure Code, the State still holds the overall dominating position because
no victim or "Wali" of deceased has a right to take 'Qisas', 'Diyat', 'Arsh', 'Daman' or 'Badl-e-
Sulah' without due process of law as such right would only accrue after the accused/offender is
booked for such crimes, investigation is carried out by the Investigating Agency, inquiry and trial
is conducted by the Courts and the accused is held guilty for the offence of 'Qisas', 'Diyat', 'Arsh',
'Daman' etc.
 
14. Not only the Anglo-Saxon law but the Islamic Injunctions also acknowledge the supremacy
of the State to prevent crimes or to investigate into the same through its agencies and try the
offenders for the crimes through the established Courts.
           
After brief elaboration of the above legal position the only conclusion is that punishment by way
of 'Ta'zir' exclusively rests with the State because such crimes are considered crimes against the
society at large, while in the other categories of cases beside being crimes against the society, the
victim/Wali has been given a preferential status excluding the State. In this way there is a
marked distinction between the punishments for the two categories of crimes, one relates to the
realm of the State authority and the other is vested in individuals who are victims of such crimes
or Wali/legal heirs of the person killed. In case of Ta'zir, if fine is imposed then it shall go to the
government treasury, while in the case of 'Diyat', 'Arsh' and 'Daman', it is payable to the
individuals like the victim or the 'Wali' (Legal heirs of the deceased).
 
15. hile drawing such distinction between two types of crimes and entirely different kinds of
punishment provided therefor, would lead us to a definite conclusion that the one exclude the
other therefore, both cannot be read together or can be construed a substitute for the other, even
in cases mentioned in the provisions of section .306, 307, 308, 309, 310 and 311, P.P.C. If the
Legislature intended also to exonerate the accused from 'Ta'zir' punishment, in such
eventualities, it would have definitely included 'Ta'zir' punishment as well with 'Qisas' which is
not the case in hand. Rather it is expressly confined to cases falling under "Qisas". Additionally,
after being exonerated from "Qisas" punishment, the accused is still liable to punishment by way
of "Ta'zir".
 
16. In the case of Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466) this Court has held
that the plain language of clause (b) of subsection (1) of section 45, Electoral College Act, 1964
do not seem to be consistent with such an interpretation. There was no reason for reading the
words "marked" and "or written by the voter" disjunctively in this clause. These provisions relate
to the lowest tier of democracy in the country. It was further held that the language used by the
Legislature being different in the Act, from that employed in the corresponding provisions of the
National and Provincial Assemblies (Elections) Act, 1964, the Referendum Act and the
Presidential Election Act, this should, if any, justify a different interpretation rather than an
identical construction.
           
Similarly, in the case of Brig. (Rtd.) F.B. Ali v. The State (PLD 1975 SC 506) it was held that
language of a penal Statute is to be strictly construed and the question of carrying forward any
"legal fiction" does not arise. In another case, a declaratory judgment given by this Court, on a
Reference made by the President of Pakistan (PLD 1957 SC 219), it was held that while
interpreting Statute and provisions of Constitution, the following guidelines must be adhered to:-
 
(i) Discover the intention of Legislature;
  
(ii) The whole enactment must be considered to find the intention;
 
(iii) Statute is not to be extended to meet a case for which a clear and distinct provision
has already been made;
 
(iv) In case of a particular and general enactment in the same Statute, the particular
enactment must be operative and general enactment applies to other part;
 
(v) Same principle applied to the interpretation of the Constitution as to the Statute, effect
is to be given to the intention of the framer of the Constitution;
 
(vi) Effect must be given to every part and every word of the Constitution;
 
(vii) In the case of repugnancy between different provisions, the Court should harmonize
them if possible (PLD 1957 SC 219).
           
Similarly, in the case of Khizar Hayat v. Commissioner Sargodha Division [PLD 1965 Lah. 349
(F.B)] it was held that the Courts cannot extend a Statute or its meaning to meet a case for which
a provision has 'clearly and undoubtedly' not been made and Court has no power to fill gaps in a
Statute. Also in the case of Chairman Evacuee Trust Property v. Muhammad Din (PLD 1956 SC
331) the well known maximum "Expresio Unius Est Exclusio Alterius" was pressed into service
and adopted, which means expressed mention of one thing in a Statute implies the exclusion of
another. Statute limiting a thing to be done in a particular form necessarily excludes the negative
i.e. things shall not be done otherwise nor any thing should be read in it, which has not been
mentioned therein expressly. Similarly, in the case of E.A. Evans v. Muhammad Ashraf (PLD
1964 SC 536) it was held that when there is expressed mention of certain things, then anything
not mentioned is deemed to have been excluded. If doing of a particular thing is made lawful,
doing something in conflict of that will be unlawful.
 
17. If the Legislature intended so then by express words it would have inserted a non obstante
clause in the provision of sections 306 to 311, P.P.C. to the effect that "notwithstanding any
thing contained in sections 299 and 302, P.P.C." and only in that case a different construction
could be placed on these provisions and its scope could be widened to include 'Ta'zir' punishment
with 'Qisas' and 'Diyat' etc. but once the Legislature has omitted the same from the above
provision of law then it stands excluded for all purposes and intents and by no stretch of
imagination Court is invested with powers to include in it and read in the said provision of law
relating to cases/punishments of "Ta'zir" because that would amount to legislation bringing
amendment in the law, which is the exclusive domain and authority of the Legislature.
 
18. Similarly, the provision of 338-E and F cannot be pressed into service to enlarge the scope of
the above provision of law to include therein Ta'zir cases and punishment therefor, because the
former provision has not been given any overriding or superimposing effect over sections 299,
302, 306 to 311, P.P.C., therefore, the said provisions of law have no nexus with the question of
putting a construction and interpretation on the cited provisions of P.P.C. to the contrary nor
Ta'zir cases and punishment could be read into it by implication when it has been expressly
omitted therefrom.
 
19. For the above stated reasons and keeping in view the above cardinal principle with regard to
construction and interpretation of Statutes and also keeping in view the Islamic Injunctions the
cases of Ta'zir and the punishment provided therefor cannot be construed to be at par and to be
read as integral part of the provisions in question, which is meant for cases exclusively for Qisas,
Diyat, Arsh and Daman etc. called the Islamic Ta'zirat and for the said reasons I am unable to
subscribe to the dissenting view held by my brother Hon'ble Mr. Ejaz Afzal Khan, rather I would
agree with the reasonings and view held, the conclusion drawn by my brother Hon'ble Mr.
Justice Asif Saeed Khan Khosa (J.), who has written the main judgment.
 
20. There is another strong reason in support of the above view that once a five members larger
Bench in the case of Faqir Ullah (supra) has held a similar view then, this Bench of equal
strength has no authority to override or annul the same rather in view of the consistent practice
and the principle of law laid down, the proper course was to have suggested to Hon'ble Chief
Justice for constituting a larger Bench of more than five Judges. The above proposition is clearly
laid down in the case of The Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296),
The Province of East Pakistan and others v. Abdul Basher Cohwdhury and others (PLD 1966 SC
854), Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) and Sidheswar
Ganguly v. State of West Bengal [1958 SC (India) 337].
 
21. After having the above view, at this stage, I deem it essential to point out to the Government
to make suitable amendment in clause (b) of section 302, P.P.C. omitting therefrom death
sentence and only life imprisonment shall be awardable when for want of standard of proof as
required under section 304, P.P.C., the punishment of Qisas cannot ssbe inflicted, then awarding
death sentence is not desirable or justified because under the provision of section 314, P.P.C.
procedure of execution of "Qisas' punishment is almost one and the same and is executed by a
functionary of a government by causing death of the convict as the Court may direct. The only
addition made is that it shall be executed in the presence of the "Wali" of the deceased or their
representative. However, when they fail to present themselves, then it shall be executed by the
State functionaries. We should not ignore that till date, the execution of death sentence is carried
out in the old fashion and style by hanging the offender on the gallows through his neck till he is
dead and when no specific harsh method has been provided for execution of 'Qisas' like
beheading the offender by the State functionaries or the "Wali" then there is no difference
between the execution of one or the other sentence therefore, the Government is well advised to
bring suitable amendment in clause (b) of section 302, P.P.C. ordinarily providing punishment of
life imprisonment unless the commission of the crime is attended by an element of terrorism,
sectarian revenge or the murder is committed in a ruthless, cruel and brutal manner, which
appear unconscionable and no mitigating circumstance is there to reduce the gravity of the crime
in particular cases.
 
22. Similarly, once the punishment of Qisas cannot be enforced or the offender is not liable to
punishment under Qisas in the cases enumerated in sections 306 to 311, P.P.C. then Ta'zir
punishment shall also not be inflicted or it should be mild in nature and not like death or life
imprisonment. The proper course is that the courts are vested with a discretion in this regard to
award punishment by way of "Ta'zir" but not death sentence or life R.I. barring the above
exceptions and also compensation to the "Wali" of deceased or victim of hurt crime.
           
The law point in all these appeals/petitions is thus, answered in the above terms.
 
Sd/-
 
Dost Muhammad Khan, J.
           
QAZI FAEZ ISA, J.--- I have had the benefit of reading the judgments of my learned and
distinguished colleagues. Justice Asif Saeed Khosa set out the sections from chapter XVI of the
Pakistan Penal Code ("PPC") which needed examination, including the different
interpretations  made  by  this  court  on  these  provisions  and systematically examined the
same. With lucid precision he analyzed the same and drew certain conclusions and I am in
respectful agreement with him.
 
2. My learned brother Justice Ejaz Afzal Khan, however, was of a different opinion that appears
to be premised on an interpretation of qisas, with which with the greatest of respect I cannot
bring myself to agree. I must, however, at the outset acknowledge my inadequacy to interpret
Almighty Allah's commands with certainty and seek His protection and mercy for any mistake in
my understanding. My distinguished colleague states that the word qisas means "return of evil
for evil" and also "retaliation" or "retribution". However, Abdullah Yusuf Ali in his commentary
on the 178th and 179th verses of surah Al-Baqarah, wherein the word qisas is mentioned
writes:--
           
"Note first that this verse and the next make it clear that Islam has much mitigated the
horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of
justice, equality is prescribed, with a strong recommendation for mercy and forgiveness.
To translate qisas, therefore, by retaliation, is I think incorrect. The Latin legal term Lex
Talionis may come near it, but even that is modified here. In any case it is best to avoid
technical terms for things that are very different. "Retaliation" in English has a wider
meaning equivalent almost to returning evil for evil, and would more fitly apply to the
blood-feuds of the Days of Ignorance."
           
Moreover, when we examine the said two verses (2:178 and 179) they do not mandate stern and
stringent punishments, but seek to inculcate forgiveness and charity in hardened hearts. "This is a
concession and Mercy from your Lord" (2:178) and "In the law of qisas there is (saving of) life
to you, O ye men of understanding; that ye may restrain yourself (2:179)." In any case there is no
need to translate or interpret the word qisas because we are only concerned with how it has been
used in the P.P.C., i.e. a defined term (section 299(k) of P.P.C.);
similarly,  tazir  is  also  required  to  be  considered  as  used  in section 299(l), P.P.C.
 
3. My learned colleague also states that, "there are no two opinions on the point that punishment
of tazir cannot be as stern and stringent as that of qisas", but the said statement is not referenced
and I have also not been able to discover its source. I may however question whether a person
who comes forth and makes a voluntary and true confession of murder (qatl-i-amd), thereby
coming within the statutory definition of qisas, should be deserving of a greater punishment than
the one whose crime is painstakingly established through other forms of evidence?
 
4. This  Bench  was  assembled  to  consider  whether  sections 306 and 308, P.P.C. are
applicable to cases of tazir. Section 306 attends to three different categories of cases. The first
category is, "when an offender is a minor or insane" (section 306 (a) P.P.C.), i.e. the offender
does not have full mental capacity on account of age or state of mind. Had this exception not
been provided, then an offender who is a minor or insane would have to be sentenced to death
under section 302(a) which prescribes no other exception. The second category is, "when an
offender causes the death of his child or grandchild, how lowsoever" (section 306(b), P.P.C.).
And the third category is, "when any wali of the victim is a direct descendant, how lowsoever, of
the offender" (section 306(c), P.P.C.). In the second and third categories "qatl-i-amd is not liable
to qisas" therefore it has been made liable to tazir. However, if the offender is also not liable to
tazir (as held by my learned brother Justice Ejaz Afzal Khan), then the offender would only "be
liable to diyat" (in terms of subsection (1) of section 308, P.P.C.), which is monetary
compensation (section 323, P.P.C.), subject however to the stated exceptions (the second and
third provisos to subsection (1) of section 308 and subsection (2) of section 308). In Muhammad
Akram v. The State (2003 SCMR 855) this court had held that such an interpretation, "would
amount to grant the licence of killing innocent persons by their Walies." Therefore, this is yet
another reason for me to agree with the opinion of my learned brother Justice Asif Saeed Khosa.
 
MWA/Z-2/SC                                                                                     Order accordingly.

 
P L D 2020 Lahore 382
Before Sayyed Mazahar Ali Akbar Naqvi, Muhammad Waheed Khan and
Sardar Ahmed Naeem, JJ
NAVEED HUSSAIN---Petitioner
Versus
The STATE and others---Respondents
Criminal Revision No.20823 of 2019, decided on 29th April, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 528---Jurisdiction of Sessions Judge to transfer cases---Scope---Petitioner who was
taken into custody in a murder case applied for his post-arrest bail before the Additional
Sessions Judge where challan of the said case was already pending adjudication but the
application could not be decided due to transfer of the Presiding Officer---Judicial Officer
who had taken over, was shown distrust by the complainant and subsequently a series of
episodes had erupted in the court proceedings wherein initially allegations of distrust were
levelled against the Judicial Officers while few of the Judicial Officers themselves declined
to hear the matter assigning one reason or the other---Bail application of the petitioner was
transferred to various Judicial Officers by the Sessions Judge for assorted reasons and at least
44 times the proceedings upon the application were postponed---Validity---Judicial powers
of Sessions Judge and Additional Sessions Judge were synonymous to each other leaving no
edge over the powers of the other---Legislature had introduced the word "Assistant Sessions
Judge" in S.528, Cr.P.C., which never meant "Additional Sessions Judge", hence the
authority exercised by the Sessions Judge while withdrawing the cases from Additional
Sessions Judge in the spirit of S.528, Cr.P.C. seemed to be an authority which was not vested
with him---Sessions Judge, therefore, was not vested with the powers to transfer cases from
one court of Additional Sessions Judge to the court of another Additional Sessions Judge---
Revision petition was allowed by the High Court with direction to the Sessions Judge to
entrust the bail application of petitioner to the court where challan of the case was submitted.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 526, 539-A & 528---Penal Code (XLV of 1860), S.21---Transfer application---
Transfer of case of subordinate court or itself try by the High Court---Procedure---Affidavit
in proof of conduct of subordinate court---"Public servant"---Scope---High Court has three-
dimensional powers for the supervision/ superintendence of the courts subordinate to it in the
Province, i.e. constitutional jurisdiction, inherent jurisdiction and jurisdiction under general
law---Any person who is aggrieved by the conduct of any court subordinate to the High
Court can file a petition under S.526, Cr.P.C. if there appears reasonable apprehension of
injustice being done due to the conduct of the subordinate court---Such person has to bring
forth accusations, having substance, supported by an affidavit duly attested by the 'Oath
Commissioner'---However, if during the course of proceedings the accusations so levelled
are found to be false, the applicant must prepare himself for legal consequences---Though the
provisions of S.539-A, Cr.P.C. relate to word 'public servant', however, as envisaged in S.21,
P.P.C., Judicial Officer is a "public servant" in all eventualities---High Court observed that
procedure of appending affidavit along with the petition for transfer of the case in criminal
proceedings is a sine qua non which cannot be ignored by any stretch of imagination---Intent
behind the whole procedure is to provide safeguard and protection to the Judicial Officers
from levelling bold allegations with intent to bring their repute in question, hence it is a tool
to protect them---Power to transfer case from the court of Additional Sessions Judge to the
court of another Additional Sessions Judge lies exclusively with the High Court---High Court
shall entertain and decide transfer application if at all compelling reasons justiciable within
four corners of law are available, in the safe administration of justice
            Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principles---Scope---Bail is a discretionary relief, temporary in nature,
granted to accused till final adjudication of criminal case---Main theme of bail is to hand
over the custody of accused in the hands of the surety---Court exercises power under
S.497(2), Cr.P.C., if comes to the conclusion that the case of accused is one of further
inquiry having room to release him on bail subject to furnishing of bail bond---Liberty of a
person is a precious right which has been guaranteed under the Constitution, hence the courts
of law in normal circumstances construe and apply S.497(2), Cr.P.C. liberally---Exception to
the said principle is embodied in S.497(5), Cr.P.C. which reveals that the same court can
recall the order if the order was procured through mis-representation, fraud, undue influence
and without touching upon the merits of the case---Said provision is also applicable before
the High Court, if the discretionary relief has been granted against the fundamentals of the
law and against the principles enunciated by the superior courts---Sufficient possibility exists
to contest even the discretionary relief in ordinary proceedings before a court of law.
            Syed Farhad Ali Shah for Petitioner.
            Malik Muhammad Asif Ahmad Nissoana, Deputy Attorney General.
            Syed Ihtesham Qadir Shah, Prosecutor General Punjab with Mian Muhammad Awais
Mazhar and Muhammad Naveed Umar Bhatti, Deputy Prosecutors General.
            Asif Afzal Bhatti and Ch. Jawad Yaqoob, Assistant Advocates-General.
            Azam Nazeer Tarar, Usman Naseem, Mian Ali Haider, Ijaz Haider Jaffari, Abdullah
Javed and Ms. Shazia Parveen, Advocates/Amici Curiae.
            Abdul Majeed, Complainant in person.
ORDER
       By  means  of  instant  revision  petition  filed  under Sections 435/439, Cr.P.C. the
petitioner has made prayer as follows:-
       "In view of the above submissions made above, it is most respectfully prayed that the
instant petition may kindly be accepted and impugned order dated 29.03.2019 passed
by the learned Sessions Judge, Lahore, may very kindly be set aside being there is no
provision of regarding reference a case as many times.
       It is further prayed that the pending bail application of the present petitioner may very
kindly be entrusted to the concerned trial court for appropriate decision.
        Any other relief which this Hon'ble Court deems fit and proper may also be granted in
the favour of the petitioner".
2.    The revision petition in hand came up for hearing before this Court on 09.04.2019 in
Single Bench, but keeping in view the peculiar facts and circumstances of the case coupled
with importance of the issue, the matter was sent to the Hon'ble Chief Justice for constitution
of Full Bench with the following observations:-
       "Liberty of a person is a precious right, which has been guaranteed by the
Constitution of the Islamic Republic of Pakistan, 1973. The frequent transfer of bail
applications from one Court to another Court under undue pressure by various
lawyers for decision of a matter as per their own choice has become a compelling
practice before the subordinate courts. This practice has already ruined the judicial
system of our country, which cannot be allowed to continue. In view of such facts and
circumstances, notice is issued to Prosecutor General Punjab to appear in person.
Notice is also issued to the Advocate General-Punjab.
       Keeping in view the importance of the matter, the same is referred to the Hon'ble
Chief Justice of this Court for constitution of Full Bench in this regard..."
In view of the afore-said reference, the Hon'ble Chief Justice vide order dated 12.04.2019
constituted the instant 'Full Bench'.
3.    At the very outset, while opening his arguments, learned counsel for the petitioner
submits that the petitioner is behind the bars in a case bearing FIR No.302, dated 28.08.2017,
offences under Sections 302, 324, 109, 148, 149, P.P.C., read with Section 7 Anti Terrorism
Act, 1997, (subsequently deleted), registered with Police Station, Barki, Lahore, at the
instance of Abdul Majeed, complainant/ respondent No.2. It has been argued that the
petitioner filed post arrest bail application before the learned trial court on 14.01.2019 which
was entrusted to Mr. Nadeem Akhtar Tabassum, Additional Sessions Judge, Lahore and the
complainant got adjournments from the said court on one pretext or the other and the petition
remained pending there till 29.01.2019 when the said Judicial Officer was transferred.
Subsequently, Mr. Fayyaz Ahmad Buttar, Additional Sessions Judge, Lahore, took over the
charge on 04.02.2019, from whom adjournments were being sought by the complainant
party. Thereafter in response to filing of an application by the complainant seeking transfer
of the bail petition, 'reference' was sent by the said learned Court on 19.02.2019 to the
learned District and Sessions Judge, Lahore, as such said bail application was entrusted to
Mr. Sajawal Khan, learned Additional Sessions Judge, Lahore, on 20.02.2019. Learned
counsel submits that on 27.02.2019, learned counsel for the complainant made statement that
"he does not want this petition to be heard by this court", upon which another 'reference' was
sent by the aforesaid court, but the learned District and Sessions Judge, Lahore, declined the
same on 01.03.2019, resultantly bail petition was returned back to the same Court but it kept
on pending/ lingering on till 09.03.2019 when learned counsel for the complainant stated that
"he does not trust this court", due to which again 'reference' was sent to the learned District
and Sessions Judge, Lahore and as such the same was entrusted to Mian Javaid Akram Baitu,
learned Additional Sessions Judge, Lahore on 11.03.2019.   It is submitted that on
25.03.2019, 'reference' was also sent by the said learned court on the statement of learned
counsel for the complainant in the following terms:-
        "he does not want the decision of this bail post-arrest application from this court..."
and as a consequence whereof the bail application was further entrusted to Mr. Muhammad
Nawaz Marth, learned Additional Sessions Judge, Lahore, where the said bail application is
still pending adjudication. Learned counsel for the petitioner further submits that post-arrest
bail application of the petitioner is pending since 14.01.2019 and the same has been placed
for hearing before different courts on as many as forty-four times, during which 'last
opportunity', 'absolute last opportunity' and 'final opportunity' along with undertaking from
the counsel were granted liberally. It is argued that during the aforesaid period, the
complainant has engaged as many as five counsel just to prolong the proceedings with
ulterior motives despite of the fact that according to prosecution own accusations the
petitioner's involvement in the case in hand is only to the extent of offence under Section
109, P.P.C. Learned counsel vigorously argues that trial in this case has already commenced,
hence, the learned District and Sessions Judge has no power to transfer the case, which
undeniably is an ancillary matter and any order to transfer bail application is a complete
departure from the law of the land. It has been finally argued that the whole proceedings
carried out in the adjudication of the bail application is nothing but a mockery in the process
of law.
4.    Mr. Ihtesham Qadir Shah, Prosecutor General, who entered appearance in response to
the Court's notice, vehemently argues that under Articles 202/203 of the Constitution of
Islamic Republic of Pakistan, 1973, this Court, apart from being a Constitutional Court, has
also been vested with the powers of supervision/superintendence over the performance of all
the classes of courts in the Province. While referring Section 528, Cr.P.C. learned Prosecutor
General submits that the learned District and Sessions Judge cannot transfer the cases
pertaining to the courts of Additional Sessions Judges; rather he can only withdraw the same
from the Assistant Sessions Judges (Magistrate Section-30) if certain unavoidable reasons do
exists and mentioned therein, however such powers should be exercised with due care and
caution strictly in accordance with the dictates of justice. He adds that the plain reading of
Section 526, Cr.P.C. clearly reflects that power to transfer cases pertaining to sessions trial is
solely within the domain of High Court. It has been submitted that the bail petition being an
ancillary matter in isolation cannot be transferred by the Sessions Judge; however the High
Court has authority to decide such type of petitions provided there exist genuine compelling
reasons supported by an affidavit. While elaborating this aspect, he submits that the
provisions of filing of an affidavit along with the application in terms of Section 539-A,
Cr.P.C. denotes that sanctity and fairness has been attached to the judicial proceedings
conducted by a Judicial Officer and that cannot be ignored on the basis of bald allegations.
5.    Mr. Asif Afzal Bhatti, Assistant Advocate General representing the Advocate General
Punjab, Mr. Azam Nazeer Tarar and Mian Ali Haider, Advocates, appointed by the Court as
Amici Curiae, also supported the arguments advanced by learned counsel for the petitioner,
as well as, learned Prosecutor General Punjab. So far as transfer of the matters is concerned,
Mr. Azam Nazeer Tarar, Advocate/Amicus curie contends that after the induction of Qisas
and Diyat Ordinance and being part of Pakistan Penal Code, the scope of Section 493,
Cr.P.C. has been widened and though the Public Prosecutor still holds the edge over the
private complainant, but in view of the provisions of Section 417(2-A), Cr.P.C. and right of
filing of private complaint by the complainant has extended the parameters of consultation
with the Public Prosecutor with a slight tilt in favour of the complainant. It is next contended
that the District and Sessions Judge is not empowered to transfer such like cases so
frequently, but in appropriate matters and cases of urgency, it should be within the domain of
the District and Sessions Judge, as it has been legislated and amended under Sections 407
and 408 of the Code of Criminal Procedure, 1973, in India, but frankly concedes that it
requires constitutional amendment in the general law.
6.    We have heard learned counsel for the parties and gone through the submissions made
by learned Law Officers, Prosecutor General and amici curiae.
7.    The matter before us relates to an issue in which the petitioner was taken into custody
in a murder case wherein accusation levelled against the petitioner was subject matter of case
bearing FIR No.302, dated 28.08.2017, offence under Sections 302, 324, 109, 148, 149,
P.P.C., read with Section 7 Anti-Terrorism Act, 1997, (subsequently deleted), registered with
Police Station, Barki, Lahore. He applied for his post-arrest bail before the learned trial court
where challan of the said criminal case was already pending adjudication but the said
application could not be decided due to transfer of the Presiding Officer. Thereafter the
Judicial Officer who had taken over, was shown dis-trust by the complainant and
subsequently a series of episodes had erupted in the court proceedings wherein initially
allegations of distrust were levelled against the Judicial Officers while few of the Judicial
Officers themselves declined to hear the matter assigning one reason or the other. It is a
matter of grave concern for us that we are dealing with such an issue which has emerged
epidemic especially before the District Judiciary. It is observed with pain that if this practice
is allowed to continue, it might hamper the judicial system leaving no room for the pillars of
the state to have any chance to rectify it in future. Perusal of record available on file further
reveals that bail application of the petitioner had been transferred to various Judicial Officers
for assorted reasons beyond the scope of law and atleast 44 times the proceedings upon the
application were postponed. The crux of the issue is that it is being adjourned with an intent
to prolong the matter to keep it pending, hence in all eventualities it is deemed a glaring
example of abuse of process of court.
8.    As far as status of a bail application is concerned, when evaluated on the legal
premises, it is always deemed discretionary relief temporary in nature till the final
adjudication. The main theme of bail is to hand over the custody of the accused in the hands
of the surety. This remains till final adjudication and the same is brainchild of Section 497,
Cr.P.C. The courts exercise powers under Section 497(2), Cr.P.C. if it comes to the
conclusion that the case of accused is one of further inquiry having room to release him on
bail subject to furnishing of bail bonds. Liberty of a person is a precious right which has been
guaranteed under the Constitution, hence the courts of law in normal circumstances construe
and apply aforesaid provision liberally. However, there is an exception to this principle,
which is embodied in Section 497(5), Cr.P.C. Perusal of Section 497(5), Cr.P.C. reveals that
the same court can recall the order if the same has been procured through mis-representation,
fraud, undue influence and without touching upon the merits of the case. This provision is
also applicable before this Court, if the discretionary relief has been granted against the
fundamentals of the law, further against the principles enunciated by the Superior Courts
from time-to-time. Hence there is sufficient possibility to contest even the discretionary
relief in ordinary proceedings before the courts of law. Despite having ample opportunities to
contest, we have observed that in recent past, a tendency has arisen that the parties are
adamant to have adjudication of bail application with an intent to procure the result of their
own choice, which has created a menace before the District Judiciary. The members of legal
fraternity being very nominal against the total strength are showing such a hostile attitude
which has become day to day business before the learned trial courts, which perhaps made it
a matter of serious concern for the Judicial Officers while discharging their duties with an
independent application of mind, rather it had created an intermittent atmosphere not
conducive to perform duties in accordance with law. Due to such unprecedented hostile
atmosphere, which undeniably is being faced by them, as a consequence they have opted to
introduce another vent to avoid any untoward incident while introducing terminology "last
opportunity, absolute last opportunity, final opportunity" and above all initiated a practice of
sending "reference" to the learned Sessions Judge for transfer of the case if at all it becomes
unbearable. We cannot lose sight of the fact that the Judicial Officers are compelled to
discharge their duties in an unethical, hostile and unprecedented atmosphere, hence they
cannot be burdened with any irresponsibility arising out of the prevailing circumstances,
therefore, a strict action is squarely required by the authority against the delinquent while it
is also expected from the senior members of the legal fraternity to come forward to be
instrumental to curb this practice which in other words has virtually been highjacked by a
very nominal strength of lawyers to save this institution with full force without further loss
of time.
9.    We have also scrutinized the practice of sending reference by the learned Additional
Sessions Judge to the Sessions Judge and evaluated on the touchstone of legal premises.
There is no second cavil to this proposition that the judicial powers of the learned Sessions
Judge and Additional Sessions Judge are synonym to each other leaving no edge over the
powers of the other. As far as the authority exercised by the learned Sessions Judge under
Section 528, Cr.P.C. is concerned, the legislature has introduced the word "Assistant
Sessions Judge" which never means "Additional Sessions Judge", hence the authority
exercised by the learned Sessions Judge while withdrawing the cases from Additional
Sessions Judge in the spirit of Section 528, Cr.P.C. seems to an authority which is not vested
with him. Section 528, Cr.P.C. is reproduced as under for ready reference: -
       Section 528. Sessions Judge may withdraw cases from Assistant Sessions Judge. (1)
Any Sessions Judge may withdraw any case from, or recall any case which he has
made over to, any Assistant Sessions Judge subordinate to him.
       (1A) At any time before the trial of the case or the hearing of the appeal has
commenced before the Additional Sessions Judge, any Sessions Judge may recall any
case or appeal which he has made over to any Additional Sessions Judge.
       (1B) Where a Sessions Judge withdraws or recalls a case under subsection (1) or
recalls a case or appeal under subsection (1A), he may either try the case in his own
Court or hear the appeal himself, or make it over in accordance with the provisions of
this Code to another Court for trial or hearing, as the case may be.]
       (1C) Any Sessions Judge may withdraw any case from, or recall any case which he
has made over to, any Magistrate subordinate to him, and may refer it for inquiry or
trial to any other such Magistrate competent to inquire into or try the same.
       Explanation. Omitted by Law Reforms Act 1997 (Act No. XXIII of 1997).
       (2)&(3) [Omitted by Act XXI of 1976. ]
        (4) Any Magistrate may recall any case made over by him under section 192,
subsection (2), to any other Magistrate and may inquire into or try such case himself.
       (5) A Magistrate making an order under [preceding subsection] shall record in writing
his reasons for making the same.
Bare reading of above said provision of law makes it clear that the learned Sessions Judge is
not vested with the powers to transfer cases from one court of Additional Sessions Judge to
the court of another Additional Sessions Judge, hence any exercise of such power by the
learned Sessions Judge qua transferring the case from the court of one Additional Sessions
Judge to another is squarely beyond the mandate of law.
10.  This Court is conscious of the fact that a question may arise that if a person is
aggrieved by the conduct of any court subordinate to High Court, what sort of remedy is
available to him for the redressal of his grievances. To resolve this anomaly, we have seen
that the High Court has three-dimensional powers for the supervision/superintendence of the
courts subordinate to it in the province:-
       (i) Constitutional jurisdiction;
       (ii) Inherent jurisdiction; and
       (iii) Jurisdiction under general law.
Any person who is aggrieved can file a petition before this Court under Section 526, Cr.P.C.
if there appears reasonable apprehension of injustice being done due to the conduct of the
court subordinate to the High Court. The said grievances must be agitated before this Court
but should be supported by legal requirements of law. It would be advantageous to go
through provisions of Section 526, Cr.P. C. which read as follows:-
       Section 526. High Court may transfer case or itself try it. (1) Whenever it is made to
appear to the High Court:-
       (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court
subordinate thereto, or
       (b) that some question of law of unusual difficulty is likely to arise, or
       (c) that a view of the place in or near which any offence has been committed may be
required for the satisfactory inquiry into or trial of the same, or
       (d) that an order under this section will tend to the general convenience of the parties
or witnesses, or
       (e) that such an order is expedient for the ends of justice, or is required by any
provision of this Code; it may order:
       (i) that any offence be inquired into or tried by any Court not empowered under
sections 177 to 184 (both inclusive), but in other respects competent to inquire into or
try such offence.
       (ii) that any particular case or appeal, or class of cases or appeals, be transferred from
a Criminal Court subordinate to its authority to any other such Criminal Court of
equal or superior jurisdiction;
       (iii) that any particular case or appeal be transferred to and tried before itself; or
        (iv) that an accused person be sent for trial to itself or to a Court of Session.
       (2) When the High Court withdraws for trial before itself any case from any Court
[....] it shall observe in such trial the same procedure which that Court would have
observed if the case had not been so withdrawn.
       (3) The High Court may act either on the report of the lower Court, or the application
of a party interested, or on its own initiative.
       (4) Every application for the exercise of the power conferred by this section shall be
made by motion, which shall, except when the applicant is the Advocate-General, be
supported by affidavit or affirmation.
       (5) When an accused person makes an application under this section the High Court
may direct him to execute a bond, with or without sureties, conditioned that he will, if
so ordered, pay any amount which the High Court may under this section award by
way of compensation to the person opposing the application.
       (6) Notice to Public Prosecutor of application under this section. Every accused
person making any such application shall give to the Public Prosecutor notice in
writing of application, together with a copy of the grounds on which it is made; and
no order shall be made on the merits of the application unless at least twenty four
hours have elapsed between the giving of such notice and the hearing of the
application.
       (6A) When any application for the exercise of the power conferred by this section is
dismissed, the High Court may if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any person who has
opposed the application such sum not exceeding [five hundred rupees] as it may
consider proper in the circumstances of the case.
There is no denial to this fact that the powers conferred to the High Court in three
dimensional capacity as mentioned above are overwhelming but these cannot be agitated in a
stereotype fashion rather the same have to be exercised while keeping it within the four
corners of law after fulfilling all the legal requirements. Guidance in this regard is sought
from a salutary judgment of the Apex Court handed down in the case of MUHAMMAD
NAWAZ v. GHULAM KADIR and 3 others (PLD 1973 Supreme Court 327).
11.  Perusal of statute further clarifies that if any person, who is aggrieved by the conduct
of court subordinate to the High Court, if moves an application whatever the averments of
the application are, that should be supported by an affidavit because the same is a legal
requirement. Provision of Section 539-A, Cr.P.C. is reproduced as under:-
       "539-A. Affidavits in proof of conduct of public servant. (1) When any application is
made to any Court in the course of any inquiry, trial or other proceeding under this
Code, and allegations are made therein respecting any public servant, the applicant
may give evidence of the facts alleged in the applications by affidavit, and Court may,
if it thinks fit, order that evidence relating to such facts be so given.
        An affidavit to be used before any Court other than a High Court under this section
may be sworn or affirmed in the manner prescribed in section 539, or before any
Magistrate.
       Affidavits under this section shall be confined to, and shall state separately, such facts
as the deponent is able to prove from his own knowledge and such as he has
reasonable grounds to believe to be true, and in the latter case, the deponent shall
clearly state the grounds of such belief.
       (2) The Court may order any scandalous and irrelevant matter in affidavit to be struck
out or amended."
12.  Plain reading of the above said provisions embodied in the Criminal Procedure Code
i.e. 528, 526, 539-A, when evaluated conjointly it makes it abundantly clear that if any
person is aggrieved by conduct of the court he has to bring forth such accusation which is
having substance supported by an affidavit duly attested by the 'Oath Commissioner'.
However, if during the course of proceedings the accusations so levelled are found to be
false, the applicant must prepare himself for legal consequences. Though the provisions of
Section 539-A, Cr.P.C. relate to word 'Public Servant', however, as envisaged in Section 21
of Pakistan Penal Code Chapter 2 General Explanation, Judicial Officer is a Public Servant in
all eventualities. Hence the procedure of appending affidavit along with the petition for
transfer of the case in criminal proceedings is a sine-qua which cannot be ignored by any
stretch of imagination. The intent behind the whole procedure is to provide safeguard and
protection to the Judicial Officers from levelling bold allegations with intent to bring their
repute in question, hence it is a tool to protect them. It is an admitted fact that post arrest bail
petition in the matter in hand was moved before the learned Additional Sessions Judge on
14.01.2019 and till today the same has not been decided so far. To determine the legality of
the same is exclusively within the domain of the learned trial court, therefore, we are
restrained to make any observation, but the fact remains that this application has not been
decided so far despite the elapse of more than four and half months. Hence, the pendency of
the bail petition before Additional Sessions Judge till today is a glaring example of
withholding of right of liberty, if so accrues, which has been extended by the Constitution of
Islamic Republic of Pakistan, 1973.
13.  In sequel to what has been discussed above, we are of the considered view that the
learned District and Sessions Judge has no authority to transfer the case from one Additional
Sessions Judge to another except entrustment of fresh cases in administrative capacity. Any
subsequent transfer of the case from one court to another exclusively lies with the High
Court to entertain and decide if at all compelling reasons justiciable within four corners of
law are available, in the safe administration of justice.
14.  The instant revision petition is allowed in the above said terms with a direction to the
learned Sessions Judge, Lahore, to immediately entrust the bail application of the petitioner
to the court where challan of the case already stands submitted.
15.  Before parting with the order we have felt persuaded to direct the Registrar of this
Court to circulate this judgment amongst all the District and Sessions Judges in the Province
for its compliance in letter and spirit to follow it in future.
SA/N-38/L                                                                                          Petition allowed.