GULBAR Versus THE STATE

SHAHZAD AKBAR KHAN, J .‑‑The trial of appellant Gulbar son of Sher Alam on the charge of committing Qatl‑i‑Amd of Saiful Islam conducted by the learned Additional Sessions Judge/Izafi Zillah Qazi, Swat ended into his conviction who was sentenced to death as Qisas under section 302(a), P.P.C. The instant appeal has been filed calling in question the legality and correctness of the conviction and sentence awarded to the appellant.

2. The breviate of the matter is that Muhammad Yousaf complainant (P.W.5) lodged a report on 26‑10‑1990 in Police Post Rahim Abad of Police Station Mingora, Swat in the following manner:‑‑

'That on the eventful day he alongwith his sons Noor‑ul‑Islam, Saif‑ul Islam, Fakhr‑ul‑Islam and Muhammad Islam were present in his house when Gulbar their neighbour started abusing his son Muhammad Islam. He alongwith his sons Noor‑ul‑Islam, Saif‑ul‑Islam and Muhammad Islam came out of their house and wanted to prevent him (appellant) whereupon Gulbar who was equipped with 12‑bore S.B. shotgun fired at his son 'Saif‑ul‑Islam with which he was hit and died on the spot. The occurrence was claimed to have been witnessed besides the complainant by his sons Noor‑ul‑Islam, Fakhr‑ul‑Islam and Muhammad Islam. The motive for the occurrence was stated to be homely dispute (Ghraylo Nachaki).

3. The prosecution at the trial produced eight P.Ws. namely, Mumtaz ud‑Din, D.S.P. (P.W.1), Ali Rehman, Constable (P.W.2), Dr. Bahader Khan (P.W.3), Janat Gul, Constable (P.W.4), Muhammad Yousaf (P.W.5), Farzand Islam (P.W.6), Khaisata Rehman, S.H.O. (P.W.7) and Khan Sherin LH.C. (P.W.8).

4. After concluding the reading of statements of all the P.Ws. the learned counsel for the appellant outrightly submitted that he does not dispute the conviction of the appellant but he seriously assailed the sentence of death by contending that the penalty of death as Qisas inflicted by the learned trial Court is invalid. Elaborating his viewpoint he urged that for the infliction of punishment as Qisas the learned trial Court was essentially required to conduct Tazkiya‑al‑Shuhud (purgation) about the prosecution witnesses. Qisas being a punishment fixed by Allah which transcends human interference (except for grievances by heirs of the deceased) has to be backed by the quality and standard of evidence which qualifies the required mode demanded by the Islamic law i.e. Tazkiya‑al‑Shuhud and the instance case is lacking the same. The second argument of the learned counsel is that, in view of his submissions, if the case of the appellant goes out of the ambit of Qisas then it would be covered by clause (b) of section 30,2, P.P.C. which provides punishment of death or imprisonment for lifg as Ta'zir having regard to the facts and circumstances of the case. Carrying forward his arguments on the question of punishment, the learned counsel explained that the appellant was arrested on the day of occurrence i.e. 26‑10‑1990 and since then he is continuously bearing the plights of trial which uptil now spread over a period of more than 10‑1/2 years, as after his first conviction on 7‑11‑1995 the case of the appellant was remanded by this Court on 10‑12‑1996 for a trial de novo. The instant appeal is against his second time conviction in the same case. Supplementing his arguments on the quantum of punishment, the learned counsel argued that the motive though alleged but was not proved by the prosecution besides the fact that in the scenario of facts, alleged by the complainant, it appears that something happened between the appellant and the deceased immediately prior to the happening of the tragedy which‑ has been concealed by the complainant side. In this view of the matter the learned counsel vociferously argued that extreme penalty of death as Ta'zir is uncall~d for. He argued that in view of the above., circumstances, the punishment of life imprisonment would meet the ends of justice. He relied on PLD 1960 SC (Pak.) 286 and 1994 SCMR 1847.

5. On the contrary, Mr. Khawaja Muhammad Khan, Advocate learned counsel for the complainant and Mr. Abdul Rauf Gandapur, Advocate learned counsel for the State contended that even if the case of the appellant wriggles out of Qisas even then the appellant can be validly punished under section 302(b), P.P.C. to death as Ta'zir and no extenuating circumstances are existing so as to warrant the infliction of lesser punishment of life imprisonment. They contended that motive which ignited the offence was proved by the prosecution and the protracted trial cannot be made basis for giving lesser punishment. No argument on the imperativity of Tazkiya‑al Shuhud was advanced,

6. The appellant stood trial twice on the charge of committing 'Qatl‑i‑ I Amd of Saiful Islam and both the trials ended in his conviction and punishment of death as Qisas was inflicted upon him. Curiously in both the trials the Tazkiya‑al‑Shahud was not conducted which demonstrates that the learned trial Court was oblivious of the significance and imperativism of, such an important feature of a trial on the criminal charge, involving death penalty as Qisas in the Islamic system of Administration of Criminal Elst ce. In the wake of situation obtaining in the instant case, we.feel obliged to make 1 an attempt to highlight the, significance and obligatory character of the process of Tazkiya‑al‑Shuhud in cases of Hudood and Qisas founded on the Islamic Jurisprudence.

7. An epitomised sketch of the historical background which led to the introduction and embodiment of the fundamental principles of Islamic Jurisprudence in the Administration of Criminal Justice in Pakistan is as follows:

Amendments were made in sections 299 to 338 contained in Chapter XVI of the Pakistan Penal Code. The necessity for the amendment of the abovementioned law arose when the Shariat Bench of this Court in the case of Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Pesh. 1) examined in detail section 302 and other sections of Chapter XVI of P.P.C. in connection with the offences relating to human body and held that the penalties prescribed in the said Chapter were not in accordance with Injunctions of Islam. The judgment of this High Court referred above, carrying support of the Federal Shariat Court through judgment reported as PLD 1980 FSC 1, was also challenged before the august Shariat Appellate Bench through Shariat Appeal No. l of 1980 titled as Federation of Pakistan through Secretary, Ministry of Law and another v. Ghulam Hassan Khan alongwith Shariat Appeal No.13 of 1981 and various others. The Appeals Nos. l of 1980 and 13 of 1981 of the Federation were dismissed as per judgment reported in PLD 1989 SC 633, the passage relevant for this judgment appearing at page 667 is quoted below: urdu

Resultantly, amendments were brought in sections 299 to 338 of Chapter XVI, P.P.C. assumed the following form:‑‑

"302. Punishment of Oatl‑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 is neither of the forms specified in section 304 is not available;

(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."

9. Since Qisas and relatedly Tazkia‑al‑Shuhud are the cardinal points which assume pivotal position in the instant case, therefore, a brief' conceptual statement of the same would be significant to grasp the issue. Islam has devised three systems of punishment for all criminal offences to be implemented by an Islamic ruler known as Hudood, Qisas/Diyat and Ta'zir. Hudood is an Islamic Legal Terminology which means "specified punishment imposed by Al‑Mighty Allah." Among offences which are categorized as offences punishable by Hudood are stealing, robbing (latrocination), fornication (Zina), false accusation of unchastity without valid evidence (Kzaf), drinking alcohol and apostasy, the relinquishment of religion (Islam) (Ertad).

10. If anyone of the offences was proved to have been committed and the Court finds the offender guilty, the punishment to be meted out is determination by Qur'anic Ordinance ( Ns-Quran) where man has no right to add, alter or reduce the punishment as Hadd (plural Hudood) which is the right of Allah. Man is only commanded to fully execute and implement it.

Qisas: Literally means "equal" or "balanced". In the book of Tafsir ul‑Qurtabi, Qisas is also explained as "to follow the track of mark" and it comes, therefore, that the treatment of the offender should be the same as his offence. Qisas according to legal terminology, is "specified punishment imposed by Allah as an obligation to be implemented in order to carry out the right of mankind". Thus, it follows that the life of a murderer should be taken as he had taken the life of his fellowman or someone who injures others should in turn be injured identically.

Hudood and Qisas have almost the same meaning whereby both are the punishments prescribed by Allah and as an obligation to be implementea by Muslim Rulers. However, the rights contained in Hudood are different from the rights found in Qisas. In implementing Hudood punishment the right of Allah is stressed whereas in administering Qisas, it is the right of man that is more emphasised. For example the punishment for offences like theft, latrocination, intoxication, fornication and apostasy are imposed by Allah and are to be fully implemented without giving any right to anyone to make any alteration, reduction or addition and definitely not to withhold the punishment of Hudood as it is the right of Allah. Unlike Qisas, which, notwithstanding it is determined by Allah and its implementation is an obligation, remains the right of human being as the final decision of its execution rests with the legal heirs of the deceased. It is also permissible for both parties, the offender and the one demanding the Qisas punishment, to replace Qisas with compensation since Qisas is the right of human being.

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