1998 P Cr (PLP)

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307. Cases in which Qisas for Qatl‑e‑Amd shall not be enforced‑‑ Qisas for Qatl‑e‑Amd shall not be enforced in the following cases, namely:‑‑ (a) when the offender dies before the enforcement of Qisas; (b) when any wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and (c) when the right of Qisas devolves on the offender as a result of the death of the Wali of the victim, or on the person who has no right of Qisas against the offender. 324 Attempt to commit Oatl‑i‑Amd.‑‑‑ Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl‑i‑Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused. Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years. Distinction in between the two is obvious. Section 324 stipulates an Islamic way of punishment and an offender in addition to the imprisonment for a term which may extend to 10 years is also liable to Arsh as Qisas. Tazkiyat‑tul‑Shahood with regard to the eye‑witnesses is obligatory in the case punishable with Hadd and Qisas. In the case Ghulam Ali v. The State PLD 1992 SC 741, it was held that where proper Tazkiyat‑tul‑Shahood was not done on the eye‑witnesses the conviction under Islamic Law was set aside. The same view has been followed by Honourable Supreme Court in the case of Manzoor Ahmed v. The State 1992 SCMR 2037 at para. 13 which reads as under:‑‑ "

13. As regards it being a case of Qatl‑i‑Amd liable to death by Qisas the requirement of the Islamic Law is that the witnesses must stand the test of Tazkiyat‑tul‑Shahood and the importance of it has been emphasised in Sanaullah v. The State PLD 1992 FSC 186, in the following words‑‑ Tazkiyat‑tul‑Shahood is obligatory in cases punishable with Hadd and Qisas even if competency of a witness is not challenged by the Mashood Alaik. " The competence eat a witness on the touchstone of Tazktyat‑tul‑Shahood has been elaborately defined in section 17 of the Qanun‑e‑Shahadat, 1984. arid section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which reads as under:‑‑ Qanun‑e‑Shahadat "

17. Competence and number of witnesses‑‑‑ (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) to matters pertaining to‑financial or future obligations, if reduced to 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." Offences Against Property (Enforcement of Hudood) Ordinance, 1979. "

7. Proof of theft liable to Hadd.‑‑‑ The proof of theft liable to Hadd shall be in one of the following forms, namely:‑‑ (a) the accused pleads guilty of the commission of theft liable to Hadd; and (b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirement of Tazkiya AI‑Shuhood, that they are truthful persons and abstain from major sins (Kabira), give evidence as eye‑witnesses of the occurrence: The conviction in this case would be not maintainable for the reasons, firstly, that no retrospective effect has been given to this law, secondly, that the above mode of examining the witnesses has not been adopted by the Trial Court during its trial. All the witnesses have been examined on solemn affirmation. In view of the above, I am of the considered opinion that the punishment under section 324 against the appellants is not punishable being beyond the jurisdiction of the Court. The protection has been provided against retrospective punishment by the Constitution of Islamic Republic of Pakistan, 1973 and in its Article 12 it has been mentioned as under:‑‑ "

12. Protection against retrospective punishment. ‑‑‑(I) No law shall authorise the punishment of a person‑‑ (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. " The term (law in force) in column 1 of the above Article relates to the law, factually in operation at the time of commission of a particular offence and does not authorise such sort of punishment, about the offences which were not in existence, at that particular time. The meaning of word "law in force" has been elaborately discussed by the Honourable Supreme Court of India in the case of Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh AIR 1953 SC 394 as under:‑‑ "Constitution of India, Art. 20(1)‑‑‑ 'Law in force', meaning of‑‑ (Words and phrases‑‑"Law in force"). The phrase "law in force" as used in Article 20(1) must be understood in its natural sense as being "the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law 'deemed' to have become operative by virtue of the power of Legislature to pass retrospective laws." It would, even otherwise, be against the fundamental rights if an individual is punished under a law which was not in existence on the day of commission of, offence. On the factual aspect as argued above that complainant in the F. I. R. has suppressed the facts of injuries on appellant Abdul Ghafoor and its filing of counter‑case and the statement of P.W. Rafiuddin that he saw 6/7 persons pushing the door of the appellant Abdul Ghafoor and quarreling with each other cannot be brushed aside. Unexplained injuries sustained by appellant Abdul Ghafoor is another factor which goes in his favour while deciding his case. Irrespective of above the statement of P.W. Muhammad Saleem at trial that he saw from the window of the house that fight was going on to between injured and appellants is also worth consideration. Above all the fact, that appellants have been facing agony of protracted trial for more than 10 years is also a relevant factor to be considered while dealing their case.

10. For the reasons discussed above, the conviction and sentence of the appellants are set aside and their appeal is allowed. Appellants are present on bail, their bail bonds stand cancelled. Above are the detailed reasons for the short order announced in Court on 5‑3‑1998. N.H.Q./M‑305/K Appeal allowed.