1999 P Cr (PLP)

The trial Court framed the following points for determination; (1) Whether the deceased Sultan Ahmed son of Abdul Bari was killed? (2) Whether on 19‑7‑1991 at about sunrise time near the house of P.W. Muneer Ahmed accused Shah Nawaz, Jaman, Ali Nawaz and Morzado being armed with rifle, gun and Lathies in furtherance of their common intention, intentionally committed Qatl‑e‑Amd of Sultan Ahmed by firing at him with rifle and also caused Lathi injuries on the hand of P,W. Mansoor Ahmed, as alleged by the prosecution? After hearing the learned counsel for the parties and assessing the evidence, the appellants and deceased accused Shah Nawaz were found guilty and were convicted and sentenced as stated above. Appellant Shah Nawaz expired in Central Prison, Sukkur on 7th August, 1997 and in proof whereof such medical certificate was produced and consequent to that his appeal was disposed of as having been abated on 28‑4‑1998. We have heard Mr. A.Q. Halepota on behalf of appellants and Messrs Abdul Haleem Pirzada and Habib Ahmed for complainant and State at length and have also gone through the record of the case available before us. At the very out set all the learned counsel present state that the case before the trial Court has not proceeded in accordance with the newly amended P.P.C. i.e. Qisas and Diyat Ordinance, 1990 as such they are of the view that this is a fit case which is to be remanded for fresh trial in accordance with the above law. We have gone through the record and proceedings of the case as well as impugned judgment. This case was registered on 19th July, 1991 whereas Qisas and Diyat Ordinance for the first time came into existence on 2nd September 1990 as such on the date of incident the above provision of law was well in the field. Though charge was framed under this provision of law but the trial had not proceeded in accordance with that law. Again from the statement under section 342, Cr.P.C. of the appellant it reveals that the question had been asked, in line with newly amended law. The judgment again has been written and delivered under old section 302, P.P.C. For proper appraisal reference is made to sections 302 and 304, P.P.C.:‑‑ "

302. Punishment of Oatl‑e‑Amad.‑‑‑ Whoever commits Qatal‑e‑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 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." "

304. Proof of Oatl‑i‑Amd liable to Qisas etc.‑‑‑ (1) Proof of Qatl‑i‑Amd liable to Qisas shall be in any of the following forms, namely:‑‑ (a) The accused makes before a Court competent to try the offence of 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.4 of 1984). (2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas." Section 304, P.P.C. stipulates the conditions of proof of Qatl‑i‑Amd liable to Qisas. Where the case is proved under this provision‑of law accused shall be punished with death as Qisas only but where it is not proved then the punishment would be death or imprisonment for life as Ta'zir. In case the above two punishments are not possible then the case would fall under sub‑clause (c) of section 302 and the conviction would be awarded up to 25 years. Accordingly when the punishment of Hadd as ordained by Islam is not proved then the offender would be punished under Ta'zir. From the above discussion, it becomes crystal clear that since the above provision of law was in existence as such the appellants would have been tried in accordance with Injunction of Islam as laid down under section 304, P.P.C., as such the illegality in the trial is one which is not curable under section 537, Cr.P.C. Accordingly and as suggested by the learned counsel for the parties, we set aside the judgment and remand the case to the trial Court for proceeding strictly in accordance with the newly amended provisions of Pakistan Penal Code. As such conviction and sentence are set aside. The appellants who are in custody since 1991, are granted bail. They shall be released on their furnishing surety each in the sum of Rs.1,00,000 with P.R. Bond in the like sum to the satisfaction of the trial Court. As a consequence of the above order, the revision application stands dismissed. N.H.Q./S‑180/K Case remanded.