1995 PLP 595 (MLD)

Prior to the promulgation of the Hudood Ordinances in 1979 and the Qisas and Diyat Ordinance, 1991 (hereinafter referred to as the Ordinance), the crime of murder was punishable under section 302, P.P.C. and it was neither bailable nor compoundable but after the promulgation of the Ordinance in 1991 it became "compoundable" with several important consequences including the following:‑‑‑ (i) The rights of legal heirs of the deceased got supremacy over the rights of the State in all murder cases punishable under section 302 of the Ordinance after its promulgation. (ii) Every murder case can come to an end if the legal heirs of the deceased accept blood money (Diyat) or pardon the accused. (iii) If the nature of murder affects the society at large, and not the individuals, then the case may not fall under section 302, Qisas and Diyat Ordinance, 1991 but may be punishable under section 17(4) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 or under the concerned laws of P.P.C. as "Tazeer" because such kind of murder crosses those boundaries which encircle a crime punishable under section 302 of the Ordinance. This difference can be explained with the help of following example: "If a thief enters into a house with intention to commit theft but before the commission of that offence, the members of the house become aware of his presence and try to apprehend him. The accused fires upon the inmates of the house to save himself from being apprehended due to which some one is killed in the house. This type of murder would not be dealt in accordance to the principles of Qisas and Diyat Ordinance, 1991. In such cases, even if the legal heirs of any deceased pardon the murderer thief, the State would not spare such an accused because releasing such persons means to encourage him to commit the same crime again and again."

5. This point had been raised before the Ist Full Bench of Federal Shariat Court but none of the five Judges of the Federal Shariat Court touched the same for the reasons best known to them. Mr. Aftab Hussain, J. (also the main author of judgment against Prime Minister Mr. Zulfiqar Ali Bhutto reported in PLD 1978 Lah. 523) was expected to discuss that point but he too quoted the arguments only, in the following words: "Culpable homicide amounting to murder (Qatl‑e‑`amd) may be of two types; one involving rights of God (Haqooq‑Allah) and the other involving rights of men (Haqooq‑ul‑Ebad). Some disputes resulting in the death directly affect only the accused and the family of the deceased as in the case of a dispute over water or trespass by the cattle in the field of either party or tribal vengeance. Such matters would entail the rights of man (Haqooq‑ul‑Ebad) and permission to compose the difference by grant of pardon to the accused would help in the patching up of difference, in diminishing the sense of vengefulness or vindictiveness and in cultivating amicable harmonious 'relations between the parties. In such cases Diyat will be an apt alternative to retaliation (Qasis). But if the murder directly involves or affects the society as in the case of unjustified murder (Qatl‑e‑nahaq) by a person who on account of the depravity or immorality of his character is persons to take the law in his own hand and thus creates or develops corruption in the society, and composition of the offence would not make him repent his misdeeds, the offence would entail the rights of God (Haqooq‑Allah). In such a case the State can provide in law for sending the accused to the gallows notwithstanding pardon by the heirs of the deceased or in the alternative can sentence him imprisonment for life and fine. In this connection he referred to the principle and also Verse No.33 of Chapter 5 which is as follows:‑‑‑ `The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom'." (PLD 1980 FSC 1/18)

6. If the Federal Shariat Court had commented upon the said point at that time, General Zia‑ul‑Haq would not have been able to assassinate the first elected Prime Minister of Pakistan, in spite of possession all anti‑Islamic blind forces of Martial Law and their uncivilized allies although his intentions were clear when the murder case against Mr. Zulfiqar Ali Bhutto was transferred to the High Court of Lahore instead of keeping the same in the Sessions Court and then Shariat Benches of Superior Courts, established by the said General with effect from February 7, 1979, were abolished and replaced by Federal Shariat Courts on May 16, 1980 because the Shariat Bench of Superior Court established in the High Court of Sindh, before its abolition, had admitted certain petitions which were affecting the validity of the death sentence on the strength of the Holy Qur'an and the sayings of the Holy Prophet (peace be upon him). Be that as it may, the points raised before the Federal Shariat Court remained un-rebutted, unchallenged and un-discussed from 1979 to 1991 till the decision of case reported in PLD 1991 FSC

139. It is, therefore, necessary for the Courts to keep this difference before their eyes between different types of murders at the time of passing any order on any application for compromise, bail applications etc. On account of these points, when the application of the present accused was put before me on 23‑10‑1994, I was seized by their importance as well as the effects of the Qisas and Diyat Ordinance, 1991, after its promulgation. In the light of the above discussion, it is obvious that the rights of legal heirs of a deceased in murder cases under section 302 of the Ordinance have prevailed over the rights of the State. Therefore, it would be proper to hear the legal heirs of the deceased first, if they so choose, instead of hearing the State Counsel who has now secondary position as compared to the position of legal heirs of the deceased. On account of this reason I issued notice to the legal heirs of the deceased as a result of which complainant Ghulam Mustafa, who is the son of the deceased, appeared before the Court alongwith his uncle Muhammad Ayub and requested for an adjournment as they wanted to engage some Advocate on their behalf. However, on 2‑11‑1994, they appeared and stated mat they could not engage any Advocate on account of their economical Counsel. condition and preferred to depend upon the arguments advanced by the State 7‑ The contentions of the learned Advocates highlighted the following facts‑‑‑ (i) The murder was a result of dispute between the known parties having dispute over the ownership of a ply and it was a cams exclusively fig within the ambit of Qisas and Diyat ordinance, 1991. (ii) No post‑mortem of the deceased body was done by any door, hence the cause of death could not be ascertained with certainty. (iii) The role of the present applicant/accused is stated to have caused fist blows to the deceased in the F.I.R. or kicks and fist blows in the direct complaint. (iv) Main allegation had been levelled against Yousuf Gujar in the direct complaint (but not in the F.I.R.) that‑ he gave one Lathi blow to the did on his temple. (v) incident the present applicant was empty‑handed at the time of (vi) As per opinion of the medical officer, death of the deceased might be the result of heart failure. It is notable that the incident had taken place on 4‑5‑1992, therefore, it seems apparently impossible to find out the cause of death in 1994 after about 2‑1/2 years, Although the complainant and his uncle has alleged verbally in the Court that the doctor had intentionally avoided to do post‑mortem yet nothing can be said about this allegation at this stage because the case‑record is mum or has been mummed on this point.

8. In the light of abovementioned factual position I believe that there are sufficient grounds for further inquiry into the guilt of the applicant. Therefore, granting bail to the applicant would neither be a favour nor any concession but his right under section 497(2), Cr.P.C. If the applicant had been the only accused, I would have ordered his release on bail on furnishing surety not less than the amount of Diyat in the Ordinance. As three accused were named in this murder case, therefore, I had ordered to release the accused vide my short order dated 6‑11‑1994 oft furnishing surety in the sum of Rs. one lac and P R. bond in the like amount to the satisfaction of the trial Court provided he was not required in any other cognizable offence. Above are the reasons for passing the short order. N.H.Q./S‑1112/K Bail allowed.