2004 PLP 1944 (MLD)

In this case, the occurrence of the murders of three persons i.e. Saidul Haq, Inamullah and Lali as well as fire-arm injuries to Habibullah, Jan Muhammad, Bacha Zarin and Bacha Muhammad had taken place on 20-12-2000 as a result of the firing made by two unknown accused on a Datsun going from Mayar to Sakeeni, in which the accused themselves were also sitting as a passengers besides the victims. The report was lodged by injured Habibullah, in which he narrated the events of the occurrence and stated that he had no enmity with anyone.

2. The local police later on during the course of investigation came to know that one of the deceased Lali was resident of Afghanistan. He was bad-named with the wife of one Kotay. The said Kotay had killed his wife there but Lali deceased then came to Pakistan and started living in the jurisdiction of Police Station. Samarbagh. Therefore, the said Kotay in order to take revenge committed the occurrence through hired assassins and although the family of the deceased Lali as well as the other people present on the spot knows the culprits but they are intentionally not charging them. The police therefore, recommended that the case should be decided on 'Qasama'.

3. When the case was put in Court the learned trial Judge straight away appointed a local commission for spot inspection, which reported that the occurrence had taken place on a Government thoroughfare, hence mod of 'Qasama' was kept aside and the Government was directed to pay Diyat amount to the legal heirs of the deceased and also compensation to the injured victims.

4. The impugned order dated 17-7-2001 of the learned trial Court is challenged by the State through this appeal. 5. "Qasama" is the third mode to be adopted in a criminal case under the Sharia when no direct or circumstantial evidence in available. Under Sharia when the State is burdened with payment of Diyat amount in an un-traced case of murder there are certain essential conditions which are to be fulfilled by the trial Court before passing an order of such like nature. Such conditions are as to whether the place where the dead body was found was a thoroughfare and whether in such conditions the voice of the deceased could not be heard/could be heard by the B residents of the nearby area and whether the place where the dead body was found has got some beneficiary value to the local residents. Except the fact that the alleged occurrence took place on a general thoroughfare, no other condition has been satisfied by the trial Court,

6. As is evident from the aforesaid conditions, each and every case, which is either untraced or in which the legal heirs of the deceased do not intentionally charge an assailant could not be treated a case in which the Diyat amount should be paid by the State. The circumstances of this case are that according to the police the offence was committed by one Kotay but the legal heirs of deceased Lali were reluctant to charge him for the same. Similarly, the people present on the spot according to the police report were also not disclosing the identity of the accused, which they knew. Hence it cannot be said that it was an untraced case. Had Kotay been arrested by the police, his arrest would have led the police to the arrest of the alleged hired assassins and in case of their arrest; the injured P.Ws. Could easily identify them to be the persons responsible for the commission of the offence. The prosecution however, did not bother to bring the real culprits into the clutches of law and simply threw it on the Court to adopt the mode of 'Qasama'. The learned trial Court on its turn also did not fulfil the required steps to be taken towards proper decision of the case and only on the report of the local Commissioner that the occurrence has taken place on a general thoroughfare, the legal heirs of the deceased and the injured themselves are therefore, entitled to receive Diyat/compensation amount from the Baitul-Mal. On the face of it, the occurrence had taken place in a broad-daylight in presence of so many people, the injured witnesses had seen the occurrence with their own eyes, they could identify the culprits if brought before them, then how the Government could be directed in such lc a situation to pay Diyat amount.

7. Another aspect already decided by the Lahore High Court in the case of Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others (PLD 2002 Lahore 482) also leads me to the conclusion that the decision of the learned trial Court in the instant case is not in conformity with the relevant provisions of law. It is held in the aforesaid authority that, "It is true that the definitions of words Diyat, Arsh and Daman contained in section 299, P.P.C. Describe them as 'compensation' but the fact remains that section 53, P.P.C. Clearly provides that Qisas, Diyat, Arsh and Daman besides Tazir, death, imprisonment for life, imprisonments both rigorous and simple, forfeiture of property and fine are 'punishment' to which offenders are liable under the provisions of the Pakistan Penal Code. Diyat is in fact an alternate punishment to Qisas and the provisions of section 308, P.P.C. Confirm the same. Likewise Daman and Arsh are independent punishments in their own right. Diyat, Arsh and Daman may, however, be correctly described as punishments which are compensatory in nature but nonetheless they remain substantive punishments. Thus, to portray these punishments as merely compensation may not be apt and the argument that such compensation is another form of a debt attracting various provisions of the civil law for its recovery may also not be acceptable. A substantive 'punishment' provided for a penal offence has to be undergone by the convict in the manner provided by the criminal law and there is no escape from it other than any provided by the criminal law itself".

8. For the aforesaid reasons, this Criminal Revision filed by the State through Advocate-General N.-W.F.P. Is accepted and the impugned judgment of the learned trial Court dated 17-7-2001 is hereby set aside being not sustainable in the eye of law. H.B.T./211/P Revision accepted.