1983 PCr (PLP)

‑‑‑S. 302‑Azad Jammu & Kashmir Islamic Penal Laws Enforcement o Act (IX of 1974), Ss. 3 & 24 (2)‑‑Compromise‑Pardon‑Competency to‑enter upon‑Legal heirs entitled to inherit estate left by deceased held, competent to enter into compromise or pardon‑Forgiveness by sister of deceased alone not one of legal heirs, not sufficient for commutation of sentence of death‑Compromise can be given effect to in pending cases at trial or even at appellate stage in relation to offence under S. 302, Penal Code, after enforcement of Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act, 1974‑Accused`s.;cikieivolq decided before coming into force of Islamic Penal Laws Enforcement Act ‑‑ Provision of compromise or pardon not applicable. (e) Penal Code (XLV of 1860)‑

‑‑S. 302‑Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss. 3 & 74 (2)‑Repugnancy to Injunctions‑ of Islam‑Provision of S. 302 Penal Code taken as a provision for 'Tazeer' read with Ss. 3 & 24 (2) of Islamic Penal Laws EnforcemaCsa‑iola9 Act, 1974; held, not contrary to Injunctions of Islam. (g) Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)

S. 32 2 Criminal Procedure Code (V of 1898) Ss. 368 & 381

Repugnancy to Injunction of Islam

‑ Execution of sentence of death by hanging held not repugnant injunction of Islam. Fazal Din v. Taj Din P L D 1983 F S C 133‑134 ref. Kh. Muhammad Saeed for Petitioner. Karamat Hussain Gilani for the State. SADAR MUHAMMAD ASHRAF KHAN J

Eid Wali petitioner stood condemned to death under section 302, by, the Sessions. Judge, Rawalakote. Two cold‑blooded murders were committed by him prior to the enforcement of Islaami Tazeerati Act, 1974 under which offence of murder has been made compoundable. His appeal to the High Court was dismissed thereby confirming the capital punishment, however, the fine imposed in relation to the murder was remitted. Ultimately, the Supreme Court also agreed with the findings of the High Court vide its 'Judgment dated 4th November, 1978. The petitioner being dissatisfied with the decision of the Supreme Court filed an appeal in the High Court Shariat Bench. Obviously, no appeal could lie against the decision of the Supreme Court. No judgment of the Supreme Court or the High Court could be challenged in a Shariat Bench established by law. The function of the Shariat Bench was only to determine whether a certain law or provision of law was repugnant to the injunctions of Islam or not. Thus having failed in appeal before the Shariat Bench, a petition was moved in the Shariat Bench that as some of the heirs of the deceased have forgiven the culprit his sentence of death may be reduced to a lesser penalty which sentence awarded to him was termed as Qisas. The declaration was also sought to be made to the effect that section 302, P. C. and section 32 (2) of the 11slami Tazeerati Act, are against the provisions laid down in the Qur'an and Sunnah. After hearing the counsel and on perusal of the record we find as under:‑ On introduction of Islaami Tazeerati Act , the offence of murder has been made subject to the provisions of Islamic Law, but the case of peti tioner could not be dealt with under the provisions of Islami Tazeerati Act' as the offences of murders were committed by him prior to the e enforcement of the 'Islami Tezeerati Act' After the enforcement of 11slami Tazeerati Act', section 302, P. C. shall have to be deemed done in accordance with the provisions of Islamic Penal Law, that is to say, that section 302, P. C. has already been brought into conformity with the pro visions of Islamic Penal Laws and so a declaration sought to this effect by the Shariat Court may be meaningless. Section 302, P. C. shall be cons trued as a 'Tazeeri' offence when sentence of Qisas' cannot be awarded by the Court for non‑availability of the evidence as per standard prescrib ed. Here in this case we find that the case of the petitioner was not that of `Qisas' because the prescribed standard of evidence according to Shariat Law was not available and so he cannot say as claimed by him that he was sentenced to Qisas by the Court as it is generally understood under the provisions of Islamic Law. It is provided by the Islamic Penal Law that if in a grave offence, sentence of 'Hadd' or Qisas cannot be exacted for extraneous reasons, inter alia, on the ground of non‑availability of the required number of witnesses vis‑a‑vis the prescribed standard, the Court is allowed by law to exact 'Tazeer' even if it extends to death provided public interest so warrants, and in that case even the compromise in the concomi tant circumstances, may be ignored as is the instant case before us. Two innocent persons were done to death by using a deadly weapon a heavy axe to cut. Not only this but a murderous attempt was also made on the life of Mst. Shah Jhan who was found dangerously injured. Allah saved her. Intentionally, she was to be killed. The legal heirs of a deceased person competent to enter into a com promise or pardon, as the case may be, are the only heirs to be considered D legally who inherit the estate left by the deceased. Here Mst. Zooni the widow and mother of the deceased persons who were brutally killed by the petitioner, has forgiven the petitioner. But Mst. Shah Jhan, daughter of, Ghaffara deceased and sister of Mst. Fatima deceased on whose life, a murderous attempt was also made by the culprit has not forgiven. Besides, there are minor children of Ghaffara Sheikh deceased who are incompe tent to enter into a state of forgiveness. And so it cannot be held in light of the concomitant circumstances stated above, that section 302, P. C. which may be taken as a provision for 'Tazeer' read with sections 3 and F. 24 (2) of the 11slami Tazeerati Act', 1974, is contrary to the injunctions of Islam. After the enforcement of 'Islaami Tazeerati Act', the Courts in the pending cases in trial or even at appellate stage in relation to the offence of murder under section 302, P. C. have been giving effect to the compromise but the case of the petitioner was not pending anywhere before any Court when one of the legal heirs entered into a compromise with him and pardon was partially given to him thereof. The sisters of Ghaffara Sheikh, deceased may not be the legal heirs as they do not inherit the estate left by him in presence of male and female issues of the deceased whose property reverts to his sons, daughters and widow. It will be beyond our jurisdiction to F hold whether forgiveness by Mst. Zooni alone to the petitioner is sufficient in the ordinary course of event to commute his sentence of death to a lesser penalty which was awarded to him by way of 'Tazeer' under the provisions of Penal Code Section 32 (2) of the Islami Tazeerati Act was also challenged by the counsel of the petitioner but there is nothing in it to indicate with regard to its repugnance to the in functions of Islam and nothing as such could be pointed out by the learned counsel for the peti tioner. This section 'in context of the Act is to be applied to the mode of sentence and its execution thereof by issuance of a death‑warrant respec tively, under sections 368 and 381, Cr. P. C. This is process of the Court. A matter of procedure cannot be looked into by us under the very law empowering us to deal with certain matters whether or not, repugnant to the injunctions of Islam. A procedural matter is excepted from being taken into consideration as such. Most probably, the executing Courts may be able to look into this aspect of the case. Again, the execution of the sentence of death by hanging is questioned by the petitioner. This question could not be materialized by the counsel for the petitioner so as to show how this mode of execution of sentence is contrary to the Injunctions of Islam. There is nothing in it against the injunctions of Islam. The Federal Shariat Court vide its judgment titled Fazal Din v. Taj Din (P L D 1983 F S C 133) has adopted this very mode and the sentence of death was ordered to be executed by hanging the culprit who was to be hanged by the neck until he be dead. That being so, the instant proceedings stand disposed of accordingly. A copy of this order shall be sent to the culprit in jail for his information. Order accordingly