Constitutional Vacuum In The Law Relating To Offences Against Human Body

CONSTITUTIONAL VACUUM IN THE LAW RELATING TO OFFENCES AGAINST HUMAN BODY CONSTITUTIONAL VACUUM IN THE LAW RELATING TO OFFENCES AGAINST HUMAN BODY By Asif Saeed Khan Khosa, Barrister‑at‑Law, Advocate, Supreme Court of Pakistan In the case of Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan PLD 1989 Supreme Court 633 the Shariat Appellate Bench of the Supreme Court of Pakistan, while deciding different appeals against a consolidated judgment of the Federal Shariat Court, had held that: "The Court, for reasons separately recorded, has unanimously decided that: (1) Sections 299 to 338 of the Pakistan Penal Code, 1860 which deal with offences against human body are repugnant to the Injunctions of Islam as they‑‑ (a) do not provide for the Qisas in cases of Qatl‑al‑amd (deliberate murder) and Jurooh‑al‑amd (deliberately causing hurt) as is prescribed in the Holy Qur'an and Sunnah; (b) do not provide for Diyat in cases of Shibh‑ul‑amd and Khata of both Qatl (murder) and Jurh (hurt) as prescribed in the Holy Qur'an and Sunnah; (c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qatl and Jurh; (d) do not provide that the offender may be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases Qatl (murder) whereby the Court can only award him a sentence of imprisonment by way of Ta'zir which may not extend to imprisonment for life. (e) do not exempt a non‑pubert and an insane offender from the sentence of death in cases of murder; and (f) do not define the different kinds of Qatl and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah. (2) Section 109 of Pakistan Penal Code, 1860 is repugnant to the Injunctions of Islam in so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment. (3) Section 54 of Pakistan Penal Code and sections 401, 402, 402‑A and 402‑B of the Code of Criminal Procedure are repugnant to the Injunctions of Islam in so far as they empower the Central Government or a Provincial Government to commute the sentence of death in a case of Qatl‑al‑amd or Jurh‑ul‑amd or in any other offence violating the Huqooq‑ul‑Ibad. (4) Section 345 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far as it does not include some of the offences against human body in the table of compoundable offences. (5) Section 381 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far as it does not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place. (6) No declaration in 'respect of section 133 of the Evidence Act is called for as it already stands repealed by the Qanun‑e‑Shahadat, 1984. (7) Sections 337 to 339‑A of the Code of Criminal Procedure are declared to be repugnant to the Injunctions of Islam in so far as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Qatl. (8) Accordingly, it is held that this decision shall take effect from 23rd of March, 1990 whereby the provisions referred to above, to the extent they have been held to be repugnant to the Injunctions of Islam, shall cease to have effect." The Federation of Pakistan filed a Review Petition before the Shariat Appellate Bench of the Supreme Court of Pakistan seeking extension of the time fixed by the Court for the decision of the Court to take effect whereupon the relevant legal provisions were to cease to have effect. While accepting that Review Petition and extending the time already fixed for the purpose the Shariat Appellate Bench of the Supreme Court of Pakistan was pleased to hold in the case of Federation of Pakistan and another v. N.‑W.F.P. Government and others PLD 1990 Supreme Court 1172 that: "The learned Attorney‑General has made a statement before us that the Ordinance relating to enforcement of the provisions of Qisas and Diyat has been drafted and is at present in the process of final scrutiny which should be completed within a couple of days and the necessary Ordinance promulgated by 5th September, 1990. He has further stated that to familiarise the enforcement agencies with the new provisions and to ensure their proper implementation the provisions of the proposed Ordinance shall be enforced by 12th Rabi‑ul‑Awwal, 1411 A.H. He has prayed that the Review Petition may be disposed of in the light of his above statement, as it has become infructuous. We consider that in view of the importance of the subject and to prevent any chaos and disruption in the administration of criminal justice some time should be allowed to educate and familiarise the enforcement agencies with the new provisions. We, therefore, accept the submission of the learned Attorney‑General. The new Ordinance incorporating the provisions relating to Qisas and Diyat shall be promulgated by 5th September, 1990 and all the provisions thereof shall be enforced at the latest by 12th Rabi‑ul Awwal, 1411 A.H. Accordingly, it is ordered that the decision of this Court dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this Review Petition, shall take effect on 12th day of Rabi‑ul‑Awwal, 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect. It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi‑ul‑Awwal, 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi‑ul -Awwal. In such state of vacuum, vis‑a‑vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutates mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi‑ul‑Awwal and the same lapses or otherwise becomes unenforceable due to any other reason, creating a 'similar vacuum in the statute law on the subject. In the aforevisualized situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. All these matters stand disposed of. Order accordingly." In the wake of that decision of the Federation of Pakistan's Review Petition by the Shariat Appellate Bench of the Supreme Court of Pakistan the President of Pakistan was pleased to promulgate Criminal Law (Amendment) Ordinance, 1990 (Ordinance IV of 1990) and Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) whereby the provisions of the Code of Criminal Procedure and the Pakistan Penal Code declared by the Shariat Appellate Bench of the Supreme Court of Pakistan to be repugnant to the Injunctions of Islam, were substituted by other provisions statedly to be in conformity with the Islamic Injunctions. It is unfortunate that so far the Parliament has failed to enact any Act of Parliament in that respect and the law relating to offences against human body continues to be governed by Presidential Ordinances which have been promulgated successively after every four months for the last four years. It is the constitutionality or otherwise of the substituted law in this field that is the subject of the present study. While commenting on the constitutionality of repeated promulgation of an expired or repealed Ordinance by the President in the absence of any legislative action in that area by the parliament and on continuing this practice over a long period of time the Supreme Court of Pakistan has recently held in the landmark case of The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others PLD 1994 Supreme Court 363 that: "It may be observed that Article 89 of the Constitution does not expressly prohibit against the re‑enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months ... ... ... ... ... ... ... ... However, it will suffice to observe that the underlying idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a Province while the Assembly exists ...........I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly . ... ... ... ....in my humble view, it runs counter to the spirit/scheme of the Constitution. " The above‑quoted judgment of Mr. Justice Ajmal Mian in that case was concurred with by Mr. Justice Sajjad Ali Shah (the present Honourable Chief Justice of Pakistan) and even Mr. Justice Saleem Akhtar (who was pleased to record his dissenting note in respect of one of the conclusions arrived. at by the other two learned Judges of that Bench) had agreed with his other colleagues on the Bench in this particular respect by observing that: "I agree with the first conclusion that the President under the Constitution while exercising power under Article 89 has no power to re‑enact the same Ordinance. So far the second conclusion is concerned, with utmost respect to my learned brother I am unable to agree with it. As will be discussed hereunder, Article 89 does not permit re enactment, therefore, such a power can be available if there is an exception expressly or impliedly provided by the Constitution. There is none under the Constitution. Secondly, if any emergent situation has arisen and the Constitution provides for its solution, then the functionaries have to act as provided by the Constitution and should not achieve indirectly which cannot be done directly . ... ... ... ... ... Therefore, the President does not enjoy unfettered power to promulgate the Ordinance. The period of four months provided in Article 89(2)(a)(i) and (ii) has great significance in the scheme of the Constitution. The life of an Ordinance has been limited to a maximum period of four months inter alia to maintain the democratic federal character of the Constitution, the supremacy of the legislature through the National Assembly the Senate or the Provincial Assemblies and to avoid legislation by Ordinance. In case the President is empowered to re‑anact Ordinances which lapse on expiry of four months and are not placed before the Assembly, it will amount to giving a vast power to the President to bypass the Assemblies and to rule by Ordinances: It is the scheme and intention of the Constitution that limitation has to be placed on the power of the President and the life of the Ordinance is limited to a maximum' period of four months. If one accepts the contention that re‑enactment is permissible under the Constitution, then the restraint placed by the Constitution will be meaningless and the period of four months mentioned in Article 89 will merely become illusory." On the question of repeated promulgation of same Ordinance the Supreme Court of India, in the famous case of Dr. D.C. Wadhwa and others v. State of Bihar and others AIR 1987 Supreme Court 579, had held that: "The only question is whether the Governor has power to re‑promulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, re‑promulgated any Ordinance after this expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the role of the Legislature in making laws, not for a limited period, but for years together in disregard of the Constitutional limitations. This is clearly contrary to the Constitutional scheme and it must be held to be improper and invalid. " After quoting from the judgments of the Supreme Courts of Pakistan and India there does not remain any room for further discussion as to the unconstitutionality of the successive Ordinances issued by the President of Pakistan which have purportedly tried to fill the vacuum vis‑a‑vis offences against human body created after the erstwhile provisions of the Pakistan Penal Code ceased to have effect as a consequence of the abovementioned judgment of .the Shariat Appellate Bench of the Supreme Court of Pakistan. This necessarily entails that, due to failure of the Legislature in Pakistan to act with required promptitude or due to unconstitutional "usurpation" of the legislative power by the Executive there has legally been a vacuum in the area of offences against human body and the cases registered, trials conducted and decisions rendered in that field in the last about four years did not have the" backing of properly enacted laws! Unfortunately this unconstitutional predicament still persists and the legal community is holding its breath in horror and uncertainty lest an accused person or a convict comes up with an appropriate challenge in that respect before a Court of law. Here, in defence of the Presidential action of repeated and successive promulgation of these Ordinances, one may invoke Article 203‑D(3)(a) of the Constitution which provides as follows: "(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,‑‑ (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a Law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam." Relying on this peculiar provision of the Constitution it may be argued that any inaction by the Legislature in filling of a vacuum in laws brought about by a decision of the Federal Shariat Court or the Shariat Appellate Bench of the Supreme Court of Pakistan cannot stop the President from performing his Constitutional obligation mandated by Article 203‑D(3)(a) to see to it that there is no vacuum created in the relevant field and to fill that vacuum with an amended law even if he has to resort to promulgation of an Ordinance or successive Ordinances in that, respect. This argument, on its surface, may have something to commend itself but the same cannot sustain a deeper analysis based on the Constitutional spirit and scheme of things. It is important to note that this' provision was added to the Constitution at a time when the Parliament was non existent due to the country being under Martial Law and the Chief Martial Law Administrator was also occupying the office of the President of Pakistan. At that time the President was himself the law‑maker and, in that context, he could himself "take steps to amend the law" (as provided by the newly‑added Article 203‑D(3)(a)). Fortunately, after lifting of the Martial Law and restoration of the Constitution that is no longer the position and the President, acting on his own, is now in no position to amend the law. Now he can do so by issuing an Ordinance or by giving assent to an Act of Parliament only under the advice of the Cabinet. As seen above, even in case of promulgation of an Ordinance under the advice of the Cabinet the President can promulgate an Ordinance only once and cannot repeat it. In case of an in‑action by the Parliament beyond the life of that Ordinance the President can only address the Parliament under Article 56(1) or send a message to the Parliament under Article 56(2) of the Constitution reminding it of the actual or threatened vacuum in a legal field and requiring it to consider the matter. The President may even require the Prime Minister to submit the matter before the Cabinet for its consideration under (a stretched interpretation of) Article 46 of the Constitution. In this way, according to the Constitutional scheme of things, the President cannot now "take steps to amend the law" and all that he can do now in that respect is to take steps trying to get the law amended and in case of his failure to get the law amended by the Parliament he cannot assume unto himself the powers of the Legislature and cannot keep on amending the law through successive Ordinances. I may respectfully salute the far‑sightedness of the members of the Shariat Appellate Bench of the Supreme Court of Pakistan who had decided the Review Petition of the Federation of Pakistan in the above‑referred case of Federation of Pakistan and another v. N.‑W.F.P. Government and others PLD 1990 Supreme Court 1172. Those Honourable Judges had foreseen and they appeared to be conscious that the proposed Ordinance to be issued by the President of Pakistan may lapse after completing its Constitutional life or the same may become unenforceable and the Parliament may still fail to enact appropriate law in the field to fill the vacuum thus to be created. Therefore, the threatened vacuum was sought to be filled and the anticipated gap was sought to be plugged by that Honourable Bench' by adding the following directions in its order: "In such state of vacuum, vis‑a‑vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi‑ul‑Awwal and the same lapses or otherwise becomes unenforceable due to any other reason, creating a similar vacuum in the statute law on the subject. In the aforevisualized situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable." As apprehended by those Honourable Judges of the Shariat Appellate Bench of the Supreme Court of Pakistan the first Ordinance issued by the President of Pakistan in that respect in the year 1990 lapsed after completing its Constitutional life of four months and during that period the Legislature did not enact an Act of Parliament in that field. Subsequent exercise of successive promulgation of the same Ordinance was and is, as seen above, unconstitutional and, as apprehended by the Honourable Judges, unenforceable. The "aforevisualized" vacuum had, thus, materialized at the lapsing of the first Ordinance on January 4, 1991 and by virtue of the said order of the Shariat Appellate Bench of the Supreme Court of Pakistan the said vacuum was to be filled automatically by "the common Islamic law/the Injunctions of Islam as contained in the Qur',an and Sunnah relating to the offence of Qatl and Jurh (hurt)". Realizing that, in that situation, the Court may face some difficulty in identifying or understanding the exact common Islamic law/the Injunctions of Islam the Shariat Appellate Bench of the Supreme Court had observed in that order that "the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable". It is this part of the order passed by the Shariat Appellate Bench of the Supreme Court of Pakistan which has, submitting with profound respect, been agitating my mind for some time. Article 175(2) of the Constitution provides that: "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." It is not clear under what jurisdiction the Shariat Appellate Bench of the Supreme Court of Pakistan had passed the order that the apprehended vacuum in the law relating to offences against human body was to be filled automatically by "the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt)" and that "the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. " The jurisdiction of the Federal Shariat Court has been specified by Article 203‑D(1) and (2) of the Constitution in the following terms: "The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.), hereinafter referred to as the Injunctions of Islam. (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision‑‑ (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect. " The jurisdiction of the Shariat Appellate Bench of the Supreme Court is specified in Article 203‑F of the Constitution which is limited to hearing appeals against final decisions of the Federal Shariat Court. While hearing an appeal the Shariat Appellate Bench of the Supreme Court of Pakistan has the same powers and jurisdiction as are enjoyed by the Federal Shariat Court and nothing more. In this view of the Constitutional position the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, while adjudicating upon repugnancy or otherwise of any law or a provision of law to the Injunctions of Islam; do not appear to have any jurisdiction to either suggest as to what should be the law or to enforce a suggestion as law. If the spirit and scheme of the Constitution does not permit the Executive to "usurp" the functions of the Legislature then the same applies with equal force to the Judiciary as well. Therefore, if successive Ordinances by the Executive are unconstitutional and cannot fill a vacuum then a suggestion or a command by the Judiciary that "common Islamic law/the Injunction of Islam" shall be the law in case of a vacuum is also equally devoid of any constitutional authority. In such a situation even the provisions of Article 187(1) of the Constitution cannot be pressed into service as the power of the Supreme Court contained therein to "issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it" has been expressly made to be "Subject to clause (2) of Article 175" of the Constitution. That clearly means that the Supreme Court's power of issuing "such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it" does not extend to travelling beyond the Court's own Constitutional and legal jurisdiction itself. Another exception that can, respectfully, be taken to the said order of the Shariat Appellate Bench of the Supreme Court of Pakistan is that the Court had gone on to hold that "the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable" at a time when "the aforementioned Ordinance" had not even been promulgated by the President. The provisions, of Articles 203‑D and 203‑F of the Constitution clearly show that the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court have jurisdiction to determine repugnancy or otherwise to the Injunctions of Islam of only an existing law or provision of an existing law and not of any law or provision of law which is yet to be enacted or promulgated. Examining a proposed law qua such repugnancy is the exclusive domain of the Council of Islamic Ideology under Article 230(1)(b) read with Article 227(2) of the Constitution. Even otherwise, the Shariat Appellate Bench of the Supreme Court of Pakistan can only hear appeals against the decisions of the Federal Shariat Court and, it goes without saying, it cannot give any opinion about repugnancy or otherwise of any law or provision of law to the Injunctions of Islam if the said law or provision of law was not under challenge before the Federal Shariat Court in the first place. In the present case not only that "the aforementioned Ordinance" was not under challenge before the Federal Shariat Court but also the same had not even been promulgated till the final decision of the Federation of Pakistan's Review Petition before the Shariat Appellate Bench of the Supreme Court of Pakistan! Thus, the premature blessing of the aforementioned Ordinance" qua its conformity with the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan was itself, submitting in utmost humility and respect, without jurisdiction. The net result distilled from the above discussion is that the lapsing of the first Ordinance in respect of the laws relating to offences against human body promulgated by the President of Pakistan in 1990 created a vacuum in the said field; the successive Ordinances promulgated by the President of Pakistan for filling that vacuum are unconstitutional and unenforceable; the order of the Shariat Appellate Bench of the Supreme Court of Pakistan regarding filling of such a vacuum by the common Islamic law/Injunctions of Islam was without Constitutional sanction and the direction by the Shariat Appellate Bench of the Supreme Court of Pakistan to the Courts to seek guidance, for the purposes of understanding and applying common Islamic law/Injunctions of Islam, from the first Ordinance to be promulgated by the President of Pakistan on the subject was without Constitutional support. What it all comes to is that the much apprehended and dreaded vacuum in the field of laws relating to offences against human body has been in actual existence for the last almost four years and we have, in a willing suspension of disbelief, only been trying to turn a blind eye towards it. The Executive has been trying all this while to fill that vacuum with promulgation of successive Ordinances and the Judiciary had made available an alternative system to cater for the said vacuum but both of these measures have been without any Constitutional backing. Now it is about time that the Legislature in our country should wake up and fulfil its Constitutional duty by introducing appropriate legislation in this critically important area of criminal law at the earliest possible. I wonder what the reaction of a member of our Parliament would be if today, God forbid, he is caused some bodily hurt (Jurh) by somebody who then turns around and claims that he has committed no offence at all!