1997 PLP 29 (SCMR)

"The accused has pleaded guilty to the charge and he also admitted the commission of offence in his statement under section 342, Cr. P.C. Further 3 eye‑witnesses have appeared and their statement has not been disputed, therefore the Qatl'e‑Amd is proved as required by section 304, P.P.C. Further none of the case as provided in sections 306, 307 and 308, P.P.C. is attracted whereby punishment of Qisas is not to be enforced hence the accused is found to have committed Qatl‑i‑Amd punishable under section 302 (a), P.P.C. The accused is thus accordingly convicted under section 302 (a), P.P.C. and sentenced to death by hanging by neck till he be dead. The sentence, however shall not be executed till it is confirmed by the High Court of Balochistan, Quetta.

4. The High while confirming the sentence of death observed as follows:- "Learned Sessions Judge on thorough evaluation of available material has rightly found appellant guilty for Qatl‑i‑Amd of his mother. Judgment of learned Sessions Judge does not suffer from any illegality, infirmity."

5. The learned counsel for the petitioner contended that in the facts and circumstances of the case the petitioner could not be punished with death as Qisas. It was further contended that proof of Qatl‑i‑Amd liable to Qisas as required by section 304, P.P.C. was not available on record and, therefore, the death sentence liable to Qisas could not be awarded. The learned counsel has also referred to Constitution Petition No.36 of 1994 (Khaliluz Zaman v. Supreme Appellate Court, Lahore, and others) PLD 1994 SC 885 in which the learned Trial Court had sentenced the petitioner to death as Tazir but the Supreme Appellate Court upheld the conviction and sentence of death with that "In the circumstances, the appellant is liable to Qatl‑i‑Amd 302 (a) of the P.P.C. punishable with death as Qisas". By the judgment referred above, it was set aside and case was remanded for trial mainly on the ground that one of the Wali of the victim was direct descendant of the offender (petitioner)) and therefore, under section 306, P.P.C. Qatl‑i‑Amd was not liable to Qisas. In fact the principle enunciated may not be directly applicable to the present case. However, it is to be noted that in this context the provision of section 302 (b) has to be considered which reads as follows:‑‑ "

302. Punishment of Qatl‑i‑Amd.‑‑‑Whoever commits Qatl‑i‑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."

4. A perusal of section 302, P.P.C. will show that Qatl‑i‑Amd is punishable with death as Qisas as well as 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. In this context it may be noted that clauses (a) and (b) of section 302, P.P.C. are not separated by the word "or" as it appears after clause (b) and before clause (c).

5. The following questions require consideration: (1) Where Qatl‑i‑Amd cannot be punished with death as Qisas under section 302(a), is there any bar in awarding punishment with death as provided by section 302(b), P.P.C.? (2) What is the standard of proof required by section 304, P.P.C. for proving Qatl‑i‑Amd liable to Qisas.? (3) What distinctive standard of proof would be required and guiding principles followed while awarding punishment of death as Ta'zir, in another case.?

6. All these questions are of general importance involving interpretation of afore-stated provisions of law which require consideration by a larger Bench. Leave is granted. N.H.Q./A‑1295/S Leave granted.