SECTION 302, PAKISTAN PENAL CODE

SECTION 302, PAKISTAN PENAL CODE <!--[if gte mso 10]> SECTION 302, PAKISTAN PENAL CODE By Justice S.A. Rabbani, Former Judge, Sindh High Court & Federal Shariat Court of Pakistan In a democracy, ironically, laws are made by those who are ordinarily laymen to law and their capability of Law making is solely based on their capacity and ability to gather large number of votes in their favour. If, by chance, some persons having knowledge and understanding of Law succeed in managing their presence in Law making bodies, they are, normally, the persons to whom defective legislation and badly drafted Laws are suitable in professional interest. Defective and badly drafted laws are always source of injustice and delay in the proceedings. One significant example of such a bad law is section 302, P.P.C. in its present shape after the last amendment. Present shape of the section is as under: 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 for 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." 2. Clause (b) of this section provides for a sentence of death, or imprisonment for life as Ta'zir, in a case where proof as provided under section 304, P.P.C. is not available. This makes a reference to section 304, P.P.C. for mode of proof viz. the requirement in respect of evidence. Section 304, P.P.C. mentions two forms of evidence in its clauses (a) and (b). Clause (a) mentions a confession and clause (b) again refers to Article 17 of Qanun-e-Shahadat Order, 1984. Thus, if an evidence other than a confession,, is required to prose Qatl-e-Amd liable to Qisas, it shall be the evidence as provided in Article 17 of the Qanun e-Shahadat Order, Article 17 of Qanun-e-Shahadat Order, 1984, in its sub-Article (2), provides two categories of the evidence. Clause (a), which relates to matters pertaining to financial or future obligations, is applicable to civil cases only. The evidence relevant to section 304, P.P.C. would be what is given in clause (b), which says that, in all other cases, 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. It can be seen that this clause does not provide for any specific kind of evidence and, thus for proof of Qatl-e-Amd under section 304, P.P.C., any sort of evidence, warranted in the circumstances, may be accepted for such a proof. There is, therefore, no substantial basis for distinction in clauses (a) and (b) of section 302, P.P.C. 3. Clause (1) of Article 17 of Qanun-e-Shahadat Order, 1984, provides that 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 and laid down in the Holy Qur'an and Sunnah. The number of witnesses to prove a murder for Qisas has neither been prescribed in the Holy Qur'an not by Sunnah of Holy Prophet (SAW). There is no case in history, during the life time of the Holy Prophet (SAW), in which any specific number of witnesses was demanded for proof of Qatl-e-Amd for the purpose of Qisas. 4. Clause (1) of Article 17 of Qanun-e-Shahadat limits the requirement to the Holy Qur'an and Sunnah and there is nothing in the Holy Qur'an and Sunnah about any specific number of witnesses required to prove Qatl-e-Arnd for Qisas. In these two sources of law, the competence of a person to testify is applicable in the case of all crimes and it would not make a difference for proof of a Qatl-e-Amd in the cases where Qisas is applicable and those where a killer is sentenced to death as Ta'zir, and accused may be punished under section 302(b), P.P.C. only when it is proved that he has committed the offence of Qatl-e-Amd and it stands proved that he has killed a person for which he is being punished. There is, therefore, no wisdom in depriving the legal heirs of the person killed of their right of Qisas or Diyat. 5. The condition of Tazkiya-al-Shuhood although does not have its origin in the Holy Qur'an or Sunnah, has been provided in the cases of Hudood laws in Hudood Ordinances but it has nowhere been provided in law for applicability in the cases of proof of Qatl-e-Amd for Qisas. 6. Moreover, whole of the section 302, P.P.C. has been made compoundable under section 345, Cr.P.C. and they are heirs of the victim who may compound, although it can be with the perrni,;;sion of the Court. Thus the offence of Qatl- e-Amd may be compounded by the heirs of the victim in all the three categories in section 302, and, with the permission of the Court, the legal heirs can also compound the offence even it the punishment of death has not been awarded on proof required for Qisas. Under section 345, Cr.P.C. the heirs can even compound a ease where the punishment has been awarded as Ta-zir or even where under the injunctions of Islam punishment of Qisas is not applicable. 7. Section 310, P.P.C. provides for compounding of right of Qisas in Qatl-e-Amd, but even if the right of Qisas is not available in a case, it can be compounded under section 345, Cr.P.C. It can, therefore, be seen that the categorization of punishment in section 302, P.P.C. is without any substantial basis and is inconsequential. 8. Section 302 Pakistan Penal Code was made compoundable in view of the right of Qisas conferred by Holy Qur'an. In case, the categorization in this section has a real basis, the cases under clause (b) or (c) have no justification for making them compoundable, for absence of right of Qisas. The law needs reconsideration for its rectification.