FEDERATION OF PAKISTAN Versus GUL HASAN KHAN

1. SHAFIUR RAHMAN, J.‑‑I have had benefit and the privilege of perusing with great care the detailed draft judgment prepared by my learned brother Mr. Justice Pir Muhammad Karam Shah. I have the following observations to make:‑‑

(1) Section 133 of the Evidence Act and sections 337 to 339 of the Code of Criminal Procedure prescribe the conditions and the offences for which an offender can be made an approver and the extent and the manner in which his testimony may be utilized at the trial. The situations, the conditions, the offences and the requirements justifying reception of ? approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisions of the Evidence Act with which its section 133 is to be read establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of a law that it is unsafe to act upon an evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of approver where alongwith other evidence is found to be satisfactory, it should be sufficient to convict and sentence an offender under Ta'zir, for which according to my learned brother, ample scope exists even where Injunctions of Islam provide for the punishment.

(2) ??????? At present, and after the impugned judgment of the Federal Shariat Court, the whole of the Evidence Act stands repealed and has been re?enacted as `Qanun‑e‑Shahadat, 1984'. Article 166 of this Order repeals the whole of the Evidence Act. There is, therefore, now left no occasion, at present to strike down Section 133 of the Evidence Act which has ceased to be on the land. The re‑enacted provision about an accomplice is Article 16 of Oanun‑e‑Shahadat which is differently worded. This Article can be struck down only after the proper procedure with regard to it has been followed, as provided in the Constitution.

(3) ??????? As regards the rigidity in respect of admissibility of evidence and its quality, I have not been able to rind any injunction of the Holy Qur'an and the Sunnah of the Holy Prophet and the one reproduced in the judgment of my learned brother relates to infliction of punishment of Hadd and can on that score be distinguished. In the absence of any such injunction of Islam the test of repugnancy cannot be applied on the basis of what the jurists have evolved as the rule of evidence for convicting a person. My knowledge on the subject indicates that in the matter of Ta'zir, the rules for receiving, appreciating and rejecting evidence can ail be controlled by law adjusted to the situation, to the crime, to the offender and to the social atmosphere in which the laws have to be applied.

(4) ??????? Under the Anglo‑Saxon Jurisprudence, Society represented by State, holds a direct control over serious offences concerning person and property. The launching of the prosecution, the withdrawal of the prosecution, reprieve and pardon after conviction and sentence by the State and its functionaries are all manifestations of this feature. The victim of the crime or his heirs have no say in the matter. Under the injunctions of Islam this is not so at (cast in respect of offences against person. In Islam the individual victim or his heirs retain from the beginning to the end entire control over the matter including the crime and the criminal. They may not report it. They may not prosecute the offender. They may abandon prosecution of their free‑will. They may pardon the criminal at any stage before the execution of the sentence. They may accept monetary or other compensation to purge the crime and the criminal. They may compromise. They may accept Qisas from the criminal. The State cannot impede, but must to its best, assist them in achieving their object and in appropriately exercising their rights. To that extent section 345 of the Code of Criminal Procedure is deficient, as composition of offences is restricted to a few specified offences and not to all others concerning the person. Section 302, P.P.C. and other similar provisions of Penal Law taken note of so far as they ordain the infliction of the sentence, even in those cases where valid compromises have been entered into or the compensation has been received or the accused have been pardoned is clearly repugnant to the Injunctions of Islam.

2. M.B.A./F‑131/S ???????????????????????????????????????????????????????????? Order accordingly.