1999 PLP 2203 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

By this Criminal Review Petition filed under Article 188 of the Constitution read with Order XXVI, Rule 1 ' of the Supreme Court Rules, 1980, the petitioner, who is a complainant in a case of the murder of his daughter, seeks review of the judgment of a learned Division Bench of this Court passed in Constitution Petition No.36 of 1994, on 3-8-1994, whereby the judgment of the Supreme Appellate Court, dated 11-3-1993, was set aside and the sentence of death awarded to Khalil-uz-Zaman convict-respondent was annulled and the case was remitted to the Lahore High Court, Lahore, for fresh decision in accordance with law in the light of the observations made therein.

2. In Constitution Petition No.36 of 1994, the relief claimed is reproduced hereunder:

"It is, therefore, most, respectfully prayed that an appropriate writ may kindly be issued declaring the Order, dated 14-3-1994, passed by the Supreme Appellate Court, Lahore, convicting and sentencing the petitioner under section 302, P.P.C. as illegal and not maintainable because the petitioner's case on admitted and proved facts and circumstances is covered by section 306, P.P.C. Conviction and 1120 sentence under section 302 is absolutely without jurisdiction and seer, corum non judice." "It is further prayed that till the decision of this petition, the impugned order may kindly be ordered to be stayed."

3. The judgment in Constitution Petition No.36 of 1994 ante which was announced on 14-3-1994 was reported as Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885).

4. The facts of the case, as narrated in the Constitution Petition No.36 of 1994 are that the convict-respondent was married to Mst. Aasia ' Perveen deceased four years prior to the occurrence which took place on 2-4-1992 at about 11-00 a.m. She had given birth to Mst. Amina who was aged 2 years at the time of occurrence. On eventful day, at about 11-00 a.m., the deceased had gone to the house of her father Faqir Ullah petitioner in Mohallah Harni Shah, Gali Lassori Wali, Sharaqpur, for stitching a Firaaq for her daughter as Eid was approaching. The convict-respondent went there and started abusing the deceased, saying as to why she had gone to the house of her parents. The same day, it was alleged that at about 9-00 p.m. Faqir Ullah petitioner, father of the deceased, accompanied by Khalid Saeed, his son went to the house of the convict-respondent for giving Eidi to the deceased and also to counsel the petitioner. One arrival in the house, they found the convict-respondent and his co-accused, namely, Jamil-uz-Zaman and Asif-uz-Zaman quarrelling and within their view caught hold of the deceased while Khalil-uz-Zaman convict-respondent fired shot from pistol hitting left side of her chest resulting in her death at the spot.

5. The convict-respondent and his co-accused were placed on trial before the Special Court for Speedy Trials No.I1, Lahore.

6. The prosecution had examined 18 witnesses including the three doctors. In support of the prosecution case Faqir Ullah petitioner (P.W.3) and Muhammad Zaheer (P.W.4) furnished the ocular account of occurrence in support of the F.I.R. Exh.P.C. They named the three accused in their statements saying that jamil-uz-Zaman and Asif-uz-Zaman had held the deceased by arms,while Khalil-uz-Zaman convict-respondent fired pistol shot at her. Faqir Ullah petitioner also described the motive for the offence as well. Khalid Saeed (P.W.5) had stated that when he came out of the house on hearing commotion, knocked at the door and shouted, Khalil-uz-Zaman fired at him twice and thereby caused injuries to him. This occurrence was stated to have been witnessed by Umar Hayat and Khalid Ali alias Lalu. The testimony of Khalid Saeed (P.W.5) was accepted by way of res gestae. Master Umar Hayat (P.W.6) when examined in the trial Court corroborated Khalid Saeed (P.W.5) and deposed that the convict-respondent had fired pistol shot at Khalid Saeed and caused him injuries when he had shouted at the convict that he had killed the sister of Khalid Saeed P.W. Muhammad Ashraf (P.W.7) deposed before the Special Court about the recovery of pistol P.3 and licence P.4 which had been produced by Khalil-uz-Zaman from his house on 25-4-1992. The pistol was stated to have been sealed into parcel. The Public Prosecutor had tendered in evidence the reports of Chemical. Examiner, Serologist and Forensic Science Laboratory.

7. In their statements before the trial Court, all the three accused including Khalil-uz-Zaman convict-respondent denied their participation in the occurrence. Nonetheless Khalil-uz-Zaman while examined under section 342, Cr.P.C. admitted to have fired shot at his wife Mst. Aasia Perveen. He also admitted to have fired shot at Khalid Saeed P.W. at the house of the latter. He elaborated in the Court that he had killed his wife Mst. Aasia on account of Ghairat. He maintained that his brother-in-law Khalid Saeed (P.W.5) used to take Mst. Aasia Perveen to the house of his friend and for that reason, he had fired at Khalid Saeed P.W. as well. The convict-respondent denied that he had been demanding cash and possession of shop from Faqir Utlah P.W. The convict-respondent, however, did not produce any evidence in defence nor did he appear to make statement on oath envisaged by section 340 (2) of the Cr.P.C. The learned counsel for the convict-respondent had, inter alia, argued before the Special Court for Speedy Trials that the version of the convict-respondent that he had committed the murder of his wife Mst. Aasia Parveen and caused injuries to Khalid Saeed on account of Ghairat ryas correct and, therefore, the proper sentence in the case was imprisonment for life.

8. The learned Special Judge for Speedy Trials after examining "the statement of Khalil-uz-Zaman accused on oath" did not find any truth in his statement to the effect that the deceased was a girl of easy virtue and of unmoral character and that her brother Khalid Saeed P.W. was playing pimp for her and was taking her to his friend. According to the learned Judge, "it was false, baseless and scandalous accusation". The learned Special Judge was surprised that notwithstanding the vast experience and envious competence of the learned counsel, representing the convict-respondent particularly on criminal side, did not choose to put questions on the aforementioned plea raised by the convict -respondent to the witnesses. In this context, the learned Special Judge noticed that no suggestion was put to Faqir Ullah that Mst. Aasia Parveen deceased was a girl of easy virtue or that she had illicit liaison with a friend of Khalid Saeed P.W. The learned Special Judge, therefore, found this allegation to be totally false inasmuch as the convict respondent "was even unable to give the name of the friend of Khalid Saeed to whom Mst. Aasia Parveen deceased was being supplied". According to the learned Special Judge no suggestion was put to even Khalid Saeed that he was taking Mst.. Aasia Parveen deceased from the house of her husband to his friend. The learned Special Judge, therefore, reached the conclusion that the plea of the convict-respondent was an afterthought and had been raised by him in the Court to make out a case for lesser sentence, therefore, this plea of the convict respondent was out rightly rejected. The learned Special Judge then observed that Khalil-uz-Zaman accused seemed to be a greedy person and when his unreasonable demand to get the shop from his father-in-law was not met, he killed his wife and attempted at the life of Khalid Saeed P.W. After having considered the entire evidence on record and after rejecting the plea of Khalil-uz-Zaman convict-respondent, the learned Special Judge while acquitting the two co-accused, convicted Khalil-uz-Zaman convict-respondent under sections 302, 324 and 337-F of the P.P.C. and sentenced him to death as Ta'zir under section 302, P.P.C., to rigorous imprisonment for ten years under section 324, P.P.C. and to rigorous imprisonment for one year under section 337-F of the P.P.C.

9. The convict-respondent filed his appeal before the learned Supreme Appellate Court, Lahore, which set aside the conviction of the accused -respondent under section 337-F of the P.P.C. but upheld the conviction and sentence of death awarded to him under section 302, P.P.C. for Qatl-e-Amd under section 302(a) of the P.P.C. and sentenced him to death by way of Qisas.

10. The Review Application filed by the convict-respondent before the Supreme Appellate Court, was dismissed on the ground of lack of jurisdiction. The convict-respondent then filed writ petition against the judgment of the trial Court and that of the Supreme Appellate Court in the Lahore High Court, Lahore, which was subsequently withdrawn and the jurisdiction of this Court under Article 184(3) of the Constitution was invoked. Since important question of law and fact have emerged out of the impugned judgment of the learned Division Bench of this Court, it appears worth while to quote hereunder in extenso paragraphs 7, 8 and 9 of the impugned judgment: "On our independent assessment of the facts, circumstances of the case and appreciation of the relevant provisions of law, we find that the F.I.R. and the prosecution evidence reveal that the deceased was the wife of the offender. A daughter namely, Mst. Amina was born out of the wedlock. Mst. Amina is alive, she is a Wali of the deceased and is also direct descendant of the offender/petitioner. From the judgment of the trial Court and the Appellate Court it is very much obvious that both the learned Courts were fully aware of this aspect of the case. Yet, the offender has been sentenced to death as Qisas under section 302(a) of P.P.C., whereas provisions of section 306 (c), P.P.C. clearly lay down that Qatli-i-Amd committed by the husband of his wife leaving behind child/children is not liable to Qisas. Law has specifically provided punishment for Qatl-i-Amd not liable to Qisas, under section 308, P.P.C., which does not provide death penalty so we are in no manner of doubt that the trial Court and also the learned Appellate Court had no lawful authority/jurisdiction/power whatsoever to convict the petitioner under section 302, P.P.C. or to impose penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the accused from the statute. If the statute does not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same, and as such, the conviction and sentence of the petitioner recorded under section 302, P.P.C. is coram non judice. The law does not provide any remedy by way of appeal/petition for leave to appeal/review/revision against the judgment or order of the Supreme Appellate Court. If the impugned judgments are allowed to stand then the petitioner would be deprived of his life obviously in pursuance of the orders which suffer from lack of jurisdiction and authority, gross carelessness, illegality and were violative of Fundamental Rights guaranteed by the Constitution. Fortunately for the petitioner, our Constitution gives protection to the citizens of Pakistan against illegal treatment in the matter of life, liberty and body and has also conferred original jurisdiction under Article 184(3) for providing complete justice to the aggrieved persons in the matters involving Fundamental Right conferred by Chapter 1 of Part II of the Constitution. Article 4(1)(2)(a) and Article 9 of the Constitution read:-- "

4. Right of individuals to be dealt with in accordance with law, etc.

( 1) 'l a enjuy the protection of law and to be treated in accordance with law is the inalienable light of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) ....................................... (c) Security of person.

No person shall be deprived of life or liberty save in accordance with law." Article 184(3) of the Constitution is as follows:-- "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the same Article." In this case, the Courts vide impugned judgments have ordered petitioner to be hanged to death although he was/is not liable to death in law for the offence allegedly committed by him. .There can be no case more fit and proper than the present one for interference in exercise of our original jurisdiction under Article 184(3) of the Constitution. Question of public importance with reference to the enforcement of Fundamental Rights conferred by the Constitution is very much involved, therefore, we feel that in exercise of our jurisdiction under Article 184(3) of the Constitution, we must come to the rescue of the petitioner to save his life.

9. Accordingly, we accept the petition, set aside the judgment of the Supreme Appellate Court dated 14-3-1993 (which was a Court other than the Supreme Court). Since, by now, Special Courts for Speedy Trials Act has expired and the appeals pending before the Supreme Appellate Court, Lahore stand transferred to the Lahore High Court, Lahore, so we remit the case to the Lahore High Court, Lahore for fresh decision in accordance with law in the light of our observations made above. "

11. Mr. Muhammad Ismail Qureshi, learned Senior Advocate Supreme Court, in support of this petition contends that the impugned order of the learned Division Bench passed under Article 184(3) of the Constitution was not only violative of the provisions of section 302 (b) and (c) of the Pakistan Penal Code (XLV of 1860) (the P.P.C.) but it had also the provisions of misconstrued sections 302(a), 306(c) have been misconstrued 307 and 308, P.P.C. The grievance of the learned counsel is that the petitioner, who is father of the deceased and was also complainant in the case of murder of her deceased daughter, was not made a party to the proceedings culminating in the impugned judgment which omission is not only against the Injunctions of Islam but is also violative of Article 25 of the Constitution which guaranteed equality before law of all citizens and equal protection of law to them. The learned counsel submits that it has also offended the principle of natural justice on account of the petitioner being deprived of right of hearing as held by this Court in Pakistan and others v. Public at Large (PLD 1987 SC 304). He went on to urge that the impugned judgment without due notice to the complainant of the proceedings which affected his rights also of the citizens was coram non judice:

12. Adverting to the merits of the case, the learned counsel maintains that the case against the convict-respondent Khalil-uz-Zaman does not fall within the purview of clause (c) of section 306, P.P.C. as there is no Injunction of Qur'an and Sunnah to absolve the offender from the penalty of Qisas if Wali of the victim is descendant of the offender, nor does the case fall. under clauses (a) and (b) of section 304 of the P.P.C. The learned counsel emphasized that according to the juristic rule of interpretation, Qur'anic text in generic term could be supplemented only by an authentic Hadith of the Holy Prophet (p.b.u.h.) but there is neither any Qur'anic text nor Hadith to support clause (c) of section 306, P.P.C., therefore, the case against the convict-respondent would in no way fall in either of the three exceptions enacted into section 306 ibid.

13. The learned counsel lastly urged that - even otherwise it may be an inadvertence to award the sentence of death by way of Qisas to the convict -respondent instead of Ta'azir by .the learned Supreme Appellate Court, which being a technical error, was curable.

14. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court, in support of the impugned order reiterated before us the grounds which had weighed with the learned Division Bench in setting aside the death sentence awarded to the convict-respondent by the learned Supreme Appellate Court.

15. Sh. Anwar-ul-Haq, the learned D.A.-G. and Mrs. Anwar Qizalbash, the learned State Counsel, representing the learned Advocate-General, Punjab resisted the petition on the ground that it was barred by limitation.

16. We find force in .the first contention of the learned Senior Advocate Supreme Court appearing on behalf of the petitioner that the impugned order having been passed without the impleadment of the petitioner who is father of the deceased and had also lodged the F.I.R. and was, thus, the complainant is violative of the Article 25 of the Constitution. Again the maxim: audi alteram parterm (no man shall be condemned unheard)" is not confined to proceedings which are judicial in form but extends to all proceedings, by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute. In the Islamic Law of Crimes, the complainant and Wali in case of murder and hurt to body is a necessary party both in the cases involving Qisas' and ' Tazir' . Faqirullah petitioner was, therefore, entitled to be impleaded as a party to the Constitution Petition No.36 of 1994 and should not have been condemned unheard and therefore, the impugned order would be coram non judice.

17. We are; however, unable to agree with Mr. Muhammad Ismail Qureshi, learned Senior Advocate Supreme Court, that there is no Injunction of Qur' an 8 that absolves an offender from the sentence of death by way of Qisas if Wali of the victim is descendant of the offender. We have been able to lay our handi on at least three commentaries on the Islamic Law of Crimes which support the view adopted by the learned Division Bench of this Court which had passed the impugned order. Reference to Item No.567 at page 196 in the Islamic Qanun-e- Faujdari", an Urdu Translation of "Kitabul Ikhtiar", edited by Maulana Salamat Ali Khan and published by Law Publishing Company, Katcheri Road, Lahore, which is reproduced as under:-- Due to paucity of time we have not been able to make further research in the matter ourselves. The opposite side had also not assisted us on the subject. Nonetheless, the amendments were introduced in the year 1990 in the Pakistan Penal Code including the provisions of clause (c) of section 306 and clauses (a) and (b) of section 304 of the P.P.C. with a view to bringing those provisions in conformity with the Injunctions of C Islam and Sunnah. The presumption, therefore, is that aforementioned provisions are not violative of any Qur'anic text or the Sunnah of the Prophet (p.b.u.h.). The second contention is, therefore, devoid of any force.

18. The first question is whether the confessional statement of the convict was to be accepted in toto or might have been accepted in part. The basic principle of Islamic Law is provided in Majellah-al-Ahkam-al-Adliyyah, (section 78) that the Bayyinah or evidence is a proof whose implications may extend to others while the confession is a proof whose implications are limited to D the one who makes it. Under this principle the confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission. This principle is based on the well-known incident reported by almost all the compilers of the Ahadith in which the Holy Prophet (p.b.u.h.) punished a person with Hadd on the confession of the commission of Zina. But in spite of the fact that he had mentioned a particular woman by name with whom he had admitted to have committed Zina, the Holy Prophet (p.b.u.h.) did not convict the woman on the basis of this confession by the co-accused. He appointed a judicial officer to p investigate and to independently find out whether the woman had committed Zina or not. The Holy Prophet (p.b.u.h.) directed the judicial officer to punish the Woman only, on her own free and independent admission. On the basis of this Hadith and several other Ahadith, Muslim Jurists have developed the principle that the implications of the confession of a person are confined to himself and cannot be extended to some body else. It also means that the confession made by a person may be accepted to the extent to which it affects himself and may be rejected to the extent to which it implicates some body else.

19. In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances.

20. After hearing the learned counsel for the petitioner, the convict- respondent, the learned D.A.G. and the learned State Counsel, we find that the learned Division Bench of this Court which annulled the death sentence awarded to the convict-respondent did not notice as to how the learned Supreme Appellate Court had converted the conviction of the convict-respondent from Tazir to that of Qisas. A bare perusal of the order of the Supreme Appellate Court would reveal that no reasons for alteration of sentence of death by way of Tazir to that of Qisas were furnished. According to Mr. M. Ismail Qureshi, learned Senior Advocate Supreme Court representing the petitioner, it was on account of inadvertence. Another possibility appears to be that the statement of the convict-respondent recorded under section 342, Cr.P.C. by the learned trial Judge confessing his guilt on the ground of ' Ghairat' was taken to be a voluntary and true under section 304 (1) (a) of the P.P.C. This possibility is also not strong enough in that the question is if such a statement is at all a "confession" falling within the ambit of Qanun-e-Shahadat 1984. Again even if it be so, whether it is not a sine qua non for such a confession to be true and voluntary because it has -to be either accepted as a whole or rejected in toto. In this view of the matter, the conversion of death sentence by the learned Supreme Appellate Court awarded by the learned trial Court by way of Tazir into death by way of ' Qisas' was sheerly an inadvertence. The learned Division Bench of this Court ought to have but had not adverted at all to this question and had, therefore, gone wrong in taking it for granted that the convict-respondent had been legally awarded death sentence by way of Qisas. The death sentence was awarded to him by the learned trial Judge by way of ' Tazir' under section 302 (b), P.P.C. It was certainly by inadvertence that it was converted into death sentence by way of Qisas. The question referred to lastly was very vital for the disposal of the Constitutional Petition No.36 and passing of the impugned order. We are of the considered view that there was no ground for conversion of the death sentence by way of Qisas. And this conversion being inadvertent is not sustainable in law.

21. The delay in filing the review petition is condoned in the interest of justice as the proposition of law involved is of public importance and is of far- reaching consequences.

22. The error of omitting to take note by the learned Division Bench of this Court of the impugned order of the learned Supreme Appellate Court was apparent on the face of the record and was related to the impugned order passed by the learned Division Bench. The existence of the error or inadvertence was not disputed before us. The order of this Court dated 3-8-1994 based as it is upon the mistaken view that the convict-respondent had been awarded death sentence by way of Qisas thus needs to be reviewed.

23. Accordingly, we accept this review petition, set aside the impugned order of the Court and restore that of the learned Special Judge who awarded sentence of death to the convict-respondent by way of Tazir. M.B.A./F-57/S Petition accepted.