2012 PLP 728 (SCMR)

Criminal Petition No. 581 of 2011 ASIF SAEED KHAN KHOSA, J.

It has inter alia been contended by the learned counsel for the petitioner that the case in hand was a case of circumstantial evidence only as no eye-witness of the alleged occurrence had been produced by the prosecution. The learned counsel for the petitioner has maintained that links in the chain of the circumstantial evidence were broken at many places and, thus, it could not be said that the prosecution had succeeded in proving its case against the petitioner beyond reasonable doubt. He has also argued that the motive set up by the prosecution had been discarded by both the learned courts below, the extra-judicial confession allegedly made by the petitioner was not only a weak piece of evidence but the same had not been sufficiently proved before the learned trial court and the gun and the crime-empties had been recovered and sent together diminishing, if not eliminating, the evidentiary value of such recoveries. On the legal plane it has been argued by the learned counsel for the petitioner that even if the case of the prosecution against the petitioner was accepted as correct on the factual side still it was a case attracting the provisions of section 306(b) and (c), P.P.C. and not a case attracting section 302(b), P.P.C. It has been maintained by the learned counsel for the petitioner that in this case attracting the provisions of section 306(b) and (c), P.P.C. the sentence of the petitioner could have been recorded under section 308, P.P.C. which carried a maximum sentence of 14 years' imprisonment at the time of the alleged occurrence. In this context the learned counsel for the petitioner has pointed out that this Court has expressed different opinions in respect of the above mentioned legal issue from time to time and the said issue requires a detailed examination by a Larger Bench of this Court. In this regard the learned counsel for the petitioner has referred to the cases of Naseer Ahmed v. The State (PLD 2000 SC 813), Dil Bagh Hussain v. The State (2001 CMR 232), Muhammad Abdullah Khan v. The State (2001 SCMR 1775), Amanat Ali v. Nazim Ali and another (2003 SCMR 608), Muhammad Ilyas v. The State (2008 SCMR 396) and Khalid Mehmood v. The State (2011 SCMR 1110) wherein it had been held that in a case like the one in hand an accused person found guilty is to be convicted under section 306, P.P.C. and is to be punished under section 303, P.P.C. He has also referred to the cases of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203), Muhammad Afzal alias Seema v. The State (1999 SCMR 2652), Umar Hayat v. Jahangir and another (2002 SCMR 629), Muhammad Akram v. The State (2003 SCMR 855), Ghulam Murtaza v. The State (2004 SCMR 4), Nasir Mehmood and another v. The State (2006 SCMR 204), Abdul Jabbar v. The State and others (2007 SCMR 1496), Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) and Tauqeer Ahmad Khan v. Zaheer Ahmad and others (2009 SCMR 420) wherein this Court had categorically held that the provisions of sections 306 and 308, P.P.C. stand attracted to a case of Qisas only and they do not apply to a case of Ta'zir. Such divergence of opinion expressed by this Court in the above mentioned precedent cases requires an authoritative pronouncement by a Larger Bench of this Court to settle the legal controversy at rest.

2. For what has been noted above this petition is allowed and leave to appeal is granted to consider the factual and legal aspects of this case highlighted by the learned counsel for the petitioner. The Hon'ble Chief Justice may graciously consider constitution of a Larger Bench of this Court to determine the issues involved in the case, if so advised. Criminal Petition No. 568 of 2011

3. Through this petition the petitioner-complainant seeks enhancement of the amount of compensation ordered by the learned trial Court to be paid by respondent No.1. Let this petition be heard along with the appeal of the convict/respondent No.1. M.H./S-5/SC Leave granted.