P L D 2017 Federal Shariat Court 8 (PLP)

ALLAMA DR. F1DA MUHAMMAD KHAN, J.

The Petitioner Syeda Viquar-un-Nisa Hashmi, Advocate has challenged sections 306(b)(c), 307(1)(b)(c), 309(1) and 310(1). She has prayed that these Sections, relating to Qisas and Diyat being against the Injunctions of Islam be declared as such. The impugned Sections read as under:- "306(b)(c) Qatl-i-amd not liable to qisas: Qatl-i-amd shall not be liable to qisas in the following cases, namely:- (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(1)(b)(c) 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:- (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. 309(1) 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. 310(1) 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 giving a female in marriage shall not be a valid badal-i-sulh .

2. In addition to the above provisions, the Petitioner also assailed sections 313 and 338 of P.P.C. along with section 345(1) and (2A), Cr.P.C. on the same grounds.

3. This Petition was admitted to regular hearing on 21.01.2013. Comments were called from the Federal as well as the Provincial Governments. The Governments of Punjab and KPK have filed their comments. Both the Governments in their comments have opposed the Petition and relied on several judgments of Supreme Court reported as 1997 SCMR 1307 (Sheikh Muhammad Aslam and another v. Shauakat Ali alias Shauka), 2004 SCMR 236 (Bashir Ahmed v. The State) and 2005 SCMR 599 (Khan Muhammad v. The State).

4. We heard the learned Petitioner. The learned standing counsel for the Federal Government as well as the representatives of Provincial Governments were also heard. In addition to opposing the Petition and defending the impugned provisions, they contended that section 345, Cr.P.C. is according to the Injunctions of Islam. They also placed reliance on the judgments reported as PLD 1996 SC 1 (Abdul Haque v. The State and another), 2000 SCMR 338 (Abdus Salam v. The State), PLD 2005 SC 252 (Muhammad Abdullah Yousaf and others v. Miss Nadia Ayub and others) and PLD 2015 SC 77 (Zahid Rehman v. The State).

5. Before proceeding further we would like to briefly refer to the history of judicial background of the issues under discussion in Petitions regarding compoundability. First of all a question was raised before the honourable High Court Peshawar to consider and decide whether the provisions with regard to section 302, P.P.C., showing the same to be uncompoundable (at that time) and the then section 345 of the Cr.P.C. were part and parcel of the substantive law and therefore had to be amended accordingly. The Hon'ble High Court directed those laws to be amended. Thereafter in case "Muhammad Riaz v. Federal Government", section 302, P.P.C. and sections 345 and 381, Cr.P.C. etc. were challenged in several Shariat Petitions on the ground that these were repugnant to the Injunctions of the Holy Quran and Sunnah. This Court vide judgment "Muhammad Riaz v. Federal Government reported as PLD 1980 FSC page 1", allowed seven Petitions questioning the vires of sections 302, P.P.C. and 345, Cr.P.C. (as these were before amendment) and directed that amendment in sections 302, 304, P.P.C. and 345, Cr.P.C. etc. be made by 1st April, 1981. Appeal against the said judgments was preferred before the Shariat Appellate Bench of honourable Supreme Court of Pakistan. That appeal was dismissed vide judgment reported as "PLD 1989 SC Page 633" and it was held that the offence of Qatl-i-Amd under section 302 was compoundable and as such was to be amended along with section 345, Cr.P.C. etc. as well. In compliance with the said judgment the relevant sections of P.P.C. and Cr.P.C. were initially amended by promulgation of an Ordinance which consequently substituted the old law and converted the same into its present form, including the Sections impugned now before this Court.

6. We have also given our anxious consideration to the submissions made by the Petitioner in her Petition as well as vehemently contended during her arguments before the Court. She dwelt at large on the said provisions as well as on section 311, P.P.C. and terming the honour killing as "Fasad Fil Arz" contended that there should be no compoundability in granting waiver to or compounding the offence of Qisas with an accused who takes law in his hands and commits a heinous offence of murder without adopting recourse to the judicial process. In reply to a Court question, however, she conceded that the State is empowered to legislate and enact laws for maintaining law and order and protecting life, honour and property of its citizens. Actually the answer is undoubtedly in affirmative. In our view, the Islamic State is bound to exercise its power and authority within the limits prescribed by the Injunctions of Islam, through the chosen representatives of the people.

7. Before discussing the point of view advanced by the learned Petitioner, we deem it appropriate to refer to section 311, P.P.C. (as amended) which reads as under:- "311, P.P.C. 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 [but shall not be less than ten years] as ta'zir."(underlining done by us). It is very clear from a bare reading of the impugned Section that it already provides for the relief sought by the learned Petitioner. It starts with the word "notwithstanding anything contained in Section 309 or 310" pertaining to waiver of Qisas in Qatl-i-amd and compounding of Qisas in Qatl-i-amd and by authorizing the court to award, inter alia, even death sentence to such a culprit despite the waiver of or compounding the right of Qisas by the adult sane Wali. This amendment which was made in section 311, P.P.C. by virtue of "Law Amendment Act 2004 Act. 1 of 2005" clearly envisages the gravity of the offence, as highlighted by the learned Petitioner, and regards the same as "fasad-fil-arz". Probably the said amendment has escaped the sight of the learned Petitioner.

8. The learned Petitioner placed reliance on the following Verse: "And (remember the Day of Judgment) when the girl-child buried alive shall be asked: for what offence was she killed." (81: 8-9)

9. We may point out that the above Verses, relied upon by the learned Petitioner, do not directly or indirectly pertain in any way to the question raised by her in the Petition, even if a holistic view is taken, because the new-born female baby who was usually buried alive, soon after her birth, was obviously not being killed on account of any violation of some specific crime related to honour nor such brutal action was ever termed as "honour killing". The learned Petitioner could not make reference to any other Nass of Holy Quran or Sunnah of the Holy Prophet as is required for deciding a Petition filed under Article 203-D of the Constitution of Pakistan.

10. In this view of the matter, this Petition being misconceived and without force is dismissed accordingly. MWA/7/FSC Petition dismissed.