P L D 2002 Peshawar 65 (PLP)

11. Besides the taking of human life with intention, Islam equally takes a serious note of causing intentional physical injury to man, Allah says "Ana We prescribe for them therein: The life for the life and the eye for the eye and the nose for the nose and the ear for the ear and the tooth for the tooth and for wound retaliation. But whoso forgoeth it (in the way of charity) it shall be expiation for him. Whoso judgeth not by that which Allah hath revealed: Such are wrongdoers. (Al‑Qur'an, Sura‑e‑Almaida, Verse No.45).

12. Section 304, P.P.C. deals with proof of Qatl‑i‑Amd liable to Qisas which reads as under:‑‑ "

304. Proof of Oatl‑i‑Amd liable to Oisas. etc.‑‑(1) Proof of Qatl‑i Amd liable to Qisas shall be in any of the following forms, namely: (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun‑e‑ Shahadat, 1984 (P.O. No. 10 of 1984). (2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas. "

13. A plain reading of this section provides that the offence of Qatl‑i Amd can be proved either, as per clause (a), when the accused makes before a Court competent to try the offence, a voluntary and true confession of the commission of the offence; or, as per clause (b) by the evidence as provided in Article 17 of Qanun‑e‑Shahadat, 1984 (P.O. No.10 of 1984). Thus, for the requirement of proof of Qatl‑i‑Amd liable to Qisas, in absence of the confession envisaged by clause (a) (ibid) recourse has to be made to Article 17 of Qanun‑e‑Shahadat. In view of the extreme necessity of Article 17 of Qanun‑e‑Shahadat the same is reproduced below:‑‑ "

17. Competence and number of witness.‑‑(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law. (a) in matters pertaining to financial or future obligations, if reduced in writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.,,

14. Thus, in view of Article 17(1) (ibidem) for the purpose of determining the competence and reliability of a person to testify, in a case involving punishment of Qisas, as in the instant case guidance has to be sought from Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (s.a.w.s.).

15. Generally speaking every Muslim is ordained to speak the truth and should give evidence in favour of Allah and no one else. Allah has, in Holy Qur'an, at numerous places emphatically commanded to give the true. urdu ."O ye who believe. Be ye. staunch in justice, witness for Allah evt though it be against yourselves or (your) parents or (your) kindri (the case be of) a rich man or a poor man, for Allah is nearer un both (than ye are). So, follow not passion lest ye lapse (from trut and if ye lapse or fall away then lo! Allah is ever informed of wh ye do. 11 (Al‑Qur'an, Sura‑e‑Nisa; Verse 135). Again Allah says: urdu "O ye who believe! Be steadfast witness for Allah in equity and let not hatred of any people seduce you that ye deal not justly. Deal justly that is nearer to your duty. Observe your duty to Allah. Lo! Allah is informed of what ye do." (Al‑Quran, Sura‑e‑Almaida, Verse No. 8). Yet at another occasion, relevant also to the subject of our discussion, Allah Al‑Mighty, in Sura Hajj, Verse No.30, commands: urdu "So, shun the filth of idols and shun lying speech." In the formerly referred two Suras Allah has positively commanded to give true evidence even if it is opposed to your interest or the interest of your parents and kindred. It mans no favourable disposition' be allowed to operate as a factor averting the course of truth. Similarly animus against someone be also not a motivating factor for giving a false evidence. In the latterly F referred Verse from Sura‑e‑Hajj, Allah has, injunctively interdicted speaking false. Thus both ways, positively and negatively, Allah has emphasised the giving of true evidence, as evidence is the fate formation substance coming before a Court through the mouth of a witness qua'accused or a party to the lis.

16. In view of the above narration if we, with animated enthusiasm, :evoke the spirit of these Qur'anic Verses it esoterically suggest that in Islamic system of administration of criminal justice the evidence to be used against every accused person (more particularly faced with Hudood and Qisas related offences) should be the testimony of witnesses whose integrity, piety and uprightness must be above‑board. Thus, the Court is charged with an inescapable duty to satisfy itself about the aforementioned virtues of witnesses by conducting the process of Tazkiya‑al‑Shuhud (purgation),

17. The concept of Tazkia‑al‑Shuhud has been dealt with by various scholars and jurist amongst whom Dr. Anwarullah in his book Islamic Law of Evidence on page 35 in para.4 says: "Tazkiya‑al‑Shulid means the mode of enquiry adopted by a Court to satisfy itself whether a witness/witnesses is/are a'dil or not. According to Imam Abu Hanifa Tazkiya‑al‑Shuhud is not required except in Hudood and Qisas. But according to Ima'm Al‑Sha'fi Tazkiya‑al‑Shuhud is necessary in every case. However, recording to Imam AI‑Sha'fi if the Court is otherwise satisfied of the witness or witnesses as being a'dil or a'dils then Tazkiya‑al‑Shuhud is not required in any case." The author has made reference to lalal‑al‑Din AI‑Suyuti, Al‑Ashbah wa al‑Naza'ir 208; Al‑Mawsau'ah al Fiqhiyyah (the Kuwait Government), vii 136‑

38. Dr. Tanzeel‑ur‑Rehnian, the renowned scholar and jurist in his book (Islami Quano-nay-Shahdit) deals with Tazkiya‑al‑Shuhud in the relevant Chapter on page 198/2556 in the following manner: urdu

18. Syed Muhammad Mateen Hashmi, Director, Research Cell, Diyal Singh Trust Library, Lahore in his book titled: urdu on page 145 while making reference to al‑Babarqi Akmal‑ud‑Din and Sharah‑al‑Anaya Ala‑al‑Hadaya Ala Haameshata Fathul Qadeer has dealt with the subject in the following manner: urdu In the same book the following Hadith has been quoted which patently signify the importance of true evidence: urdu It means that if you get to know or see anything as visible as sun then give evidence, otherwise leave it.

19. In point of proof Qisas has been equated with Hadd. In this respect ~) reference is profitably made to: urdu Where at page 6 has been quated as follows: urdu

20. In the case of Iftikhar Ali v. The State, decided by this Court and reported in 1998 PCr.LJ 2022 the sentence of death awarded as Qisas to the appellant for triple murder i.e. killing of Bakht Rawan, Habibur Rehman and Siraj Din alias Sakhi by the trial Court without undertaking the exercise of Tazkiya‑al‑Shuhud was altered, for want of mitigating circumstances, to death as Ta'zir. The relevant para. is reproduced as follows: "As to sentence, there is no, mitigating circumstance, therefore, the appellant deserves to be awarded the sentence of death which is the normal sentence for murder. However, the sentence of death as Qisas having been awarded by the learned trial Court without undertaking the exercise of Tazkiya‑al‑Shahud requires alteration to death as Ta'‑zir which too is an Islamic punishment and has been recognised as such by the Qisas and Diyat Ordinances/Act 11 of 1997. No doubt Qisas and Diyat Ordinances/Act 11 of 1997 have not been extended to the Mal*and Division and the criminal cases arising from offences affecting the human body are being tried and decided by the Courts functioning thereunder the common Islamic law but in view of vacuum made in Federation of Pakistan and another v. N.‑W.F.P. Government and others PLD 1990 SC 1172 the Courts functioning in the Malakand Division are required to seek guidance from Qisas and. Diyat Ordinances/Criminal Law (Amendment) Act, 1997 (Act 11 of 1997) in force in rest of the country. The sentence under section 353, P.P.C. does not warrant interference. However, the sentences for attempt to commit Qatl‑i Amad of P.W. Muhammad Islam and Beboor are not sustainable because Muhammad Islam has not charged any one for his plight and Beboor had expired in the hospital. " The non‑affliction of punishment of death as Qisas, in the abovereferred case, for the sole reason that Tazkia‑al‑Shuhud was not carried out by the trial Court is a manifestation of acknowledgement, by the Honourable Judges, of the essentiality of Tazkia‑al‑Shuhud.

21. Considering the question of Tazkiya‑al‑Shuhud in the light of Islamic Jurisprudence it also comes out that according to Hanfi School of thought the efficacy of Tazkiya‑al‑Shuhud, once conducted about a witness, does not effete before the expiration of six Islamic months. It means that if a Judge has carried out Tazkiya‑al‑Shuhud about a witness who is proved as Aadil and gives evidence in a case and such a witness again appears as a witness in another case before the same Judge within a period of six Islamic (Arabic) months then no fresh Tazkiya‑al‑Shuhood of the same witness would be required. The reliability/truthfulness being a virtuous element, if once established to be residing in a person as a mark of his character, would not be amenable to such a quick erosion so as to skint it in a period of time short of six months.. In this regard reference can profitably be made to 'Fath‑ul‑Qadir'. It says: urdu The same subject has elaborately been dealt with in 'Darar‑ul‑Hakam' in the following diction: urdu In Syed Muhammad Mateen Haslimi, Director, Research Cell Dayal Singh Trust Library in para.86 at page 148 states:‑‑ urdu 22.We have surveyed record ever put to the test of purgation during the period of six giving of evidence in this case.

23. We therefore, in view of the above discussion, hold that the punishment of death as Qisas inflicted upon the appellant is not warranted in i law which is not maintained.

24. Now on the point of quantum of punishment, we observe that we l have no inclination to award the punishment of death to the; reasons firstly, that complainant was not specific on the point of motive was it proved with transparency: In the Murasila the motive was described as (homely strainity) in these words: urdu In his statement before the learned trial Court the complainant appearing as P.W.5 moulded the shape of motive casting in the following words: urdu Such a description of motive, in its analysis, neither etymologically nor in spirit and substance conform to the motive given in the F.I.R. This inconformability again becomes more clear when a glance is cast on the application Exh.P.I available at page 26 of the Paper‑Book, addressed to D.S.P., District Swat. Though it contains a variety of charges but the kind of motive introduced in the trial Court's statement by the complainant is not available therein. This visible discordance speaks that the prosecution was lacking fairness in setting up the real motive and something was intentionally being concealed. Secondly we feel that the appellant suffered the agonies of a protracted trial and after setting aside his erstwhile conviction and sentence (of death) by this Court leading to a de novo trial and appellant, though not in equation with the feeling of acquittal, must have to a great extent developed and sustained the feeling and hope of life as the feeling of mortality, on every psychological measure, smothered after the setting aside of his earlier conviction. Thus proceedings on these reasons, we are of the considered view that the punishment of death even as Ta'zir under section 302(b), P.P.C. is not justified. We, therefore, sentence the appellant to imprisonment for life as Ta'zir who shall also pay an amount of Rs.50,000 as compensation under section 544‑A, Cr.P.C. to the legal heirs of the deceased. In default of payment of compensation amount, the same shall be recoverable as arrears of land revenue. Benefit of section 382‑B, Cr.P; C. shall also be extended to the appellant. These are the reasons for our short order of even date. M.B.A./455/P Order accordingly