LAW OF QISAS--A STUDY IN ITS GENESIS WITH DIFFERENT PHASES OF ITS EVOLUTIONARY MARCH

LAW OF QISAS--A STUDY IN ITS GENESIS WITH DIFFERENT PHASES OF ITS EVOLUTIONARY MARCH <!--[if gte mso 10]> LAW OF QISAS--A STUDY IN ITS GENESIS WITH DIFFERENT PHASES OF ITS EVOLUTIONARY MARCH By Talaat Mahmood Kakezai, Advocate High Court, Bahawalnagar Hazrat Ali (Razi Allah-Ho-Taala Anho) said "Don't bother who said anything but think what is being said". Who can deny that culpable homicide amounting to murder is the worst crime against humanity. That is why in every civilized society strongest measures are undertaken to prevent it and, if committed, the culprit must not go unpunished and the trial and judgment must correspond the deterrent theory of punishment, Islam however, believes more in retribution and reformative theory than deterrent one except in cases of Hudood. The murder/Qatl-e-Amd is not covered by Hudood for one of the reasons that it has been made compoundable where the Wali/Legal Heir may receive compensation as Badle Sulah, or forgive the culprit. Before year 1990 the law relating to murder was based upon Anglo-Saxon principles wherein it was not compoundable and was punishable with death or imprisonment for life under section 302, P.P.C. Special exceptions were also provided under section 300, P.P.C. when the culpable homicide did not amount to murder and was punishable under section 304, P.P.C. General exceptions enumerated in Chapter IV were also available. The case-law spread over more than hundred years had also provided adequate guiding principles for the Courts and law of the land was successfully meeting with the requirements of all the four theories of punishment i.e. preventive, deterrent, retributive and reformative theories. In year 1979 four Hudood Laws were introduced which included Prohibition Order, Offences against Properly, Offence of Zina and Qazaf Ordinance, Law relating to murder/Qatl-e-Amd was, however, not amended lest, reportedly, it should benefit Zulfiqar Ali Bhutto who was facing charge of murder. But in any case the offence of' murder/Qatl-e-Amd did not fall in Hudood although the punishment for Qatl-e-Amd was ordained in Holy Qur'an. Another reasons was that number and competence of witnesses was not provided in Holy Qur'an and Sunnah and the proof' was also not prescribed unlike the above mentioned four Hudood Laws in which the required mode of proof, number and competence of witnesses was prescribed. In year 1990 the law relating to Hurt and murder was amended through an Ordinance so as to bring it in conformity with Injunctions of Islam and the principles of Qisas and Diyat. THIS EFFORT AND DISCUSSION IS MAINLY IN RESPECT OF MURDER/QATL-E-AMD. There is no denial that the judgments and pronouncements of Courts have far-reaching effects on society in general and the concerned parties in particular. Therefore, the trial and judgments must be in accordance with the enactment strictly. Now there does not exist the earlier sections 300 and 302, P.P.C. which have been substituted. Section 302, P.P.C. has been broken up in three parts i.e. sections 302(a), 302(b) and 302(c), which read:-‑ 302(a) whoever commits Qatl-e-Amd shall, subject to the provisions of this chapter be 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. Section 304, P.P.C. deals with proof' of Qatl-e-Amd liable to Qisas etc. and reads:-‑ (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). Liability, executability and enforceability of Qisas or otherwise have also been provided in succeeding sections of the present Chapter XVI of P.P.C. But, surprisingly, the applicability or otherwise of Qisas does not find mention in the whole Chapter XVI. Still section 302(c) deals with the cases in which the punishment of Qisas is not applicable. A big question is wherefrom the trial Courts of the level of Additional and Sessions Judges of subordinate Courts would discover that in what cases and circumstances the punishment of Qisas is not applicable. The present section 302(a), P.P.C. requires that whoever is found guilty of Qatl-e-Amd shall be punished with death alone as Qisas. The required proof for this punishment is given in section 304, P.P.C. i.e. voluntary confession or evidence as specified in Article 17 of the Qanun-e-Shahadat Order, 1984 which reads as under:-‑ 17. Competence and number of witnesses:-‑ (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, (a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and (b) In all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. As discussed above, the offence of Qatl-e-Amd is not included in Hudood and it is also not a part of a special law rather it is included in Pakistan Penal Code and no special provision regarding its mode of proof in terms of evidence is given in P.P.C. Even the term Tazkia-tul-Shahood is not defined in P.P.C. and Cr.P.C. or Qanun-e-Shahadat, 1984. An other reasons for excluding the offence of Qatl-e-Amd from Hudood is that appeal against judgment of trial Court is not preferred in Federal Shariat Court unlike the judgments in four Hudood Laws. Second part of Article 17 deals with financial and future obligations and is irrelevant in respect of cases of Qatl-e-Amd/Murder. The third part of Article 17 covers all matters (including Qatl-e-Amd/Murder liable to Qisas) and as such the required proof for 302(a), P.P.C. is the same as required for any other offence where the trial Court may accept or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. Obviously when any trial Court .passes a judgment of conviction it acts upon prosecution evidence so how can the trial Court come down to section 302(b), P.P.C. from 302(a), P.P.C. Sentence under section 302(b), P.P.C. can only be given if the proof in either of the forms specified in section 304, P.P.C. is not available. Even otherwise the section 302(b), P.P.C. in its. present form appears to be foolish and ridiculous because it empowers a Court to pass a sentence of death or imprisonment for life despite when there is absolutely no evidence against the accused. The present provision of section 302(c), P.P.C. is also absurd for the simple reason that applicability or otherwise of Qisas has not been defined any where in the law which is basic condition for award of punishment under this section. To my mind the legislature was under influence of the earlier sections 300, 302 and 304, P.P.C. when it amended the P.P.C. and re-framed the sections in present form. They were, perhaps, in two minds and wanted to enforce Islamic concept of visas and Diyat without clarity of mind and courage. There are serious flaws in law, practice and procedure which, I suppose, must be cured. I am mindful of the cases Ghulam Ali v. The State report as PLD 1986 SC 741, Sanaullah v. The State PLD 1991 Federal Shariat Court 186, Manzoor v. The State 1992 SCMR 2037 and the case of Abdul Salam v. The State 2000 SCMR 338. Out of the above referred judgments the main case is that of Manzoor v. The State 1992 SCMR 2037 (inadvertently printed as 2307 in 2000 SCMR 338). In this case the above discussed proposition was not answered as a real issue and the honourable Supreme Court rules that in case of Qatl-e-Amd liable to death by Qisas the witnesses must stand the test of Tazquia-tul-Shahood. Be that, it is time to review the earlier judgments and discuss the above submitted position of law as a real issue. The apex Court has in past, reviewed the dictum laid down in PLD 1994 SC 885 through 1999 SCMR 2203. I therefore, urge that the provisions of sections 300, 302(a), 302(b), 302(c), 304 of P.P.C. and Article 17 of Qanun-e-Shahadat, 1984 be given detailed reading and appreciation so that the law could be applied and enforced in correct perspective. It would also discourage the ever increasing crime of murder when the culprits would be punished with death alone in case of conviction which is spirit of Islamic law of Qisas and Diyat. It will also resolve, forever, the confusion in terms of waiver of right of Qisas by one of the Walis and many other related important issues and questions.