P L D 2017 Federal Shariat Court 12 (PLP)

ALLAMA DR. FIDA MUHAMMAD KHAN, J.

The Director and Members of Al-Qur'an Research Academy Peshawar, the Petitioners-- through Abdullah Sani, Advocate, have filed this Petition whereby sections 54, 55, 55A, 309, 310, 312, 313, P.P.C. as well as section 345, Cr.P.C. have been challenged on the ground that these provisions of law are repugnant to the Injunctions of the Holy Qur'an.

2. This Petition was admitted to regular hearing on 28.03.2007. Comments were called from Federal Government as well as Provincial Governments. The Governments of Pakistan and Punjab have filed their comments. Both the Governments in their comments have opposed the Petition.

3. On account of illness the learned Petitioner who had been regularly coming to the Court, however, could not attend the Court today.

4. As is apparent from the contents of the Petition, the Petitioners have vehemently contended that, according to the Holy Qur'an, the punishment of Qatl-i-amd is only death and it is not at all compoundable. Reliance has been placed on Verse No.99 of Sura Al-Nisa and Verses Nos.178 and 179 of Sura Al-Baqra with a further explanation of Verse No.33 of Sura Bani Israeel. The Petitioners have also referred to the harmful effects of compoundability/leniency provided in these Sections which have resulted in enormous increase in commission of offences like murder, abduction, dacoity and heinous social crimes.

5. Before proceeding further we would like to briefly refer to the history of judicial background of the issues regarding non compoundability of the offence of . Initially, all the relevant Sections of law relating to non-compoundability of Qatl-i-Amd and section 302, P.P.C. (showing the same to be uncompoundable at that time) and section 345 of the Cr.P.C. (as it was then before amendment) were challenged before the honourable High Court Peshawar. The honourable High Court Peshawar held those Sections to be repugnant to the Injunctions of Islam and directed the same to amended accordingly. Thereafter, section 302, P.P.C. and sections 345 and 381, Cr.P.C. were challenged in several Shariat Petitions before Federal Shariat Court on the ground that these were repugnant to the Injunctions of the Holy Quran and Sunnah. This Court vide its judgment "Muhammad Riaz v. Federal Government" reported as PLD 1980 FSC page 1, also allowed seven Petitions questioning the vires of sections 302, P.P.C. and 345, Cr.P.C. etc. and directed that amendment in sections 302 and 304, P.P.C. etc. be made accordingly 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, therefore, ordered that the relevant provisions of law be amended. 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. In this background, it is obvious that these Sections which have been impugned before us have the blessings of Hon'ble Shariah Appellate Bench who after long and due deliberations had delivered the above judgment containing detailed reasons based on the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet .

6. We may also point out that the point of view advanced by the learned Petitioners while explaining the Verses relied upon by them is not at all supported by any commentator of the Holy Qur'an throughout the last 14 centuries. Verse No. 33 of Surah Bani Israeel is reproduced herein under:- "Do not kill any person whom Allah has forbidden to kill, except with justice. We have granted the heir of deceased who has been wrongfully killed, the authority (to claim retribution); so let him not exceed in slaying. He shall be helped." The "authority" in this Verse refers to the right of the victim to claim Qisas (equal retribution) or Diyat (blood money) from the murderer. He is also vested with the "authority" (right to forgive, to waive or compound his right of Qisas). Thereafter, the State is bound to honour his right, in any form he wants. Despite his right to do so, however, he is warned that he must not cross the limits prescribed by Allah. It is pertinent to point out that there is a lot of wisdom contained in the aforementioned "authority" granted to the heir/heirs of the victim (deceased). If he/they willingly agree to bury the hatchet, genuinely patch up the dispute with the accused, put an end to the animosity and restart an amicable life, it will not only add to the public peace and tranquility but will definitely save their present and successive generations from consistent tensions, persistent apprehensions, continuous unending chain-reactions of bloodshed by one or the other side. Thus it is in the larger public interest to grant legal sanctity to compoundability only in the cases of Qisas which primarily pertain to the right of citizens as compared to the cases of "Taazir" which pertain to the right of State which, in order to stop crimes altogether, reserves the right and usually do not allow its compoundability. Both these types of Injunctions aim at maintaining and ensuring peace and law and order in the society at large, by one way or the other.

7. Here we deem it pertinent to add that Islamic law is divine in its original sources. As such it necessitates great caution and meticulous care in dealing with the issue of interpretation of Verses or in changing its universally accepted meanings to suit varying times, places and needs. Therefore interpretation or meaning of a Quranic Verse must have full support by the Sunnah of the Holy Prophet .

8. We have no hesitation to point out that like several other Arabic words, the word mentioned in the above Verse has also several meanings including heir/heirs. In the context of above Verse, however, it clearly refers to the heir of the deceased victim and none else, as has been consistently, continuously, and unanimously held by all schools of Islamic law and jurisprudence. Regarding the grant of , we would like to refer to Verses Nos.178 and 179 of Surah Al-Baqra, which are reproduced hereinunder:- "Believers! Retribution is prescribed for you in cases of killing: if a freeman is guilty then the freeman: if a slave is guilty then the slave; if a female is guilty, then the female. But if something of murderer's guilt is forgiven/remitted by his brother this should be adhered to in fairness, and payment be made in a goodly manner. This is an alleviation and a mercy from your Lord; and for him who commits excess after that there is a painful chastisement. People of understanding, there is life for you in retribution that you may guard yourselves against violating the Law." A bare reading of the above Verses clarifies the meaning to show that the right to forgive granted to the heir of a victim, killed or grievously injured, is only in cases of . It is worth mentioning that the word (i.e. has been mentioned twice in the said Verses. The learned petitioners have mixed up the same with in their petition but it is not so. In cases of the Holy Qur'an does not impose the penalty of death but prescribes, inter alia, payment of " " to the heirs. (Al-Nisa: 92)

9. So far as the translation and explanation of "Wali" (17:31) and "Afw" (4: 178, 179) as given by the learned Petitioner is concerned, it finds no support from any source of law, right from the period of Holy Prophet till date.

10. While considering the question raised in the Petition, it seems pertinent to briefly mention something about the sources of Islamic law. Undoubtedly the Glorious Qur'an is the first source of Islamic law and jurisprudence. It is the fundamental source wherein there is absolutely no doubt (2:2) as it is from the Lord of the worlds (32 : 2). It has been sent down for administration of justice between mankind (4:105). Legislation in the Holy Qur'an was revealed gradually and intermittently to meet the requirements of events in Islamic State and society.

11. The Sunnah (i.e. sayings, deeds or tacit approvals) of the Holy Prophet is the second most important source after the Glorious Qur'an and is unanimously considered supplementary to, and explanatory of Glorious Qur'an, as ordained therein in the following words: "Obey Allah and obey the Messenger of Allah" (5: 92) "Who obeys the Messenger of Allah, in fact obeys Allah" (4: 80) "And whatsoever the Messenger of Allah gives you, take it and whatsoever he forbids abstain from it" (59:7) Various other Verses similar in wording or in meaning confirms that adherence to Sunnah is obligatory and, therefore, held in principle as such by all the Islamic schools, subject to verification of its authenticity. The major reason as mentioned in the Glorious Qur'an for this was the fact that as a duty of mission the Messenger of Allah was bound to teach (2:129), (3:164) explain (16:44) setting practical manifestation and providing a role model of implementation (33: 21) to show how to obey and implement the civil, criminal, personal, fiscal, international and other laws ordained by Almighty Allah in the Glorious Qur'an. That is why Injunctions of Islam refer to the Injunctions as laid down in the Holy Qur'an and Sunnah of the Holy Prophet , as mentioned in Article 203D.

12. In this view of the matter this Petition, being misconceived, is dismissed accordingly. MWA/9/FSC Petition dismissed.