RIAZ AHMED Versus THE STATE

ORDER

1. SALEEM AKHTAR, J.‑‑The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court whereby the appeal filed by him was dismissed and the death sentence awarded to him was confirmed.

2. Briefly the prosecution case is that on 24‑11‑1991 at about 4‑00 p.m. Muhammad Sharif complainant and 'Allah Ditta, on hearing the cries of Muhammad Siddique deceased, went out of their house and saw that on katcha road leading to Chak No,42/Fateh, Muhammad Hanif, the father of the petitioner had caught hold of the deceased while the petitioner was inflicting Churri blows on his chest and abdomen. The deceased fell down on the ground and both the accused ran away, The motive stated in the F.I.R. was that Mst. Naziran Bibi, niece of Muhammad Sharif and daughter of Bashir Ahmed was married to one Muhammad Ayub, but her Rukhsati had not taken place. Thereafter, Bashir Ahmed married Mst. Naziran with one Mureed Kharal. As relations between Mureed Kharal and Mst, Naziran became strained, she came to the house of her father. Two months prior to the occurrence, she again eloped with Muhammad Ayub. Bashir Ahmed and Muhammad Hanif suspected that the complainant and his deceased son had facilitated elopement of Mst. Naziran with Ayub. A day earlier there had been an altercation. The learned trial Court by judgment dated 3‑3‑1993 held that the prosecution had the case proved beyond reasonable doubt and convicted and sentenced him under section 302/34, P.P.C. to death. However, Muhammad Hanif was acquitted by giving him benefit of doubt. The appeal filed by the petitioner was dismissed by the impugned judgment dated 10‑4‑1995 and the death sentence was confirmed.

3. Mr. Muhammad Ibrahim Sethi, the learned A.S.C. contended that section 302, P.P.C. enforced by Ordinance No.XXX of 1991, (Criminal Law) (Amendment) Ordinance, 1991 was not a valid law as earlier three identical Ordinances, viz., Ordinance VII of 1990, Ordinance I of 1991 and Ordinance 'XVIII of 1991 were promulgated and stood repealed without being approved by the National Assembly. According to the learned counsel as an Ordinance cannot be repeated, all l4entical Criminal Law (Amendment) Ordinances repeated from time to time with mere cosmetic changes were ultra vires the Constitution. Reliance has been placed on Collector of Customs, Karachi and others v. M/s. New Electronics (Pvt.Ltd, and 59 others PLD 1994 SC 363. In support of his contention the learned counsel has filed the following list of Ordinances consisting of the first Ordinance and subsequent Ordinances repeated from time to time: ‑‑

2. S.No.

3. No.of Ordinance

4. Date of promulgation

5. 1

6. 2

7. 3

8. 4

9. 5

10. 6

11. 7

12. 8

13. 9

14. 10

15. 11

16. 12

17. 13

18. 14

19. 15

20. 16

21. 17

22. 18

23. Ordinance VII of 1990

24. Ordinance I of 1991

25. Ordinance XVIII of 1991

26. Ordinance XXX of 1991

27. Ordinance XLII of 1991

28. Ordinance IV of 1992

29. Ordinance X of 1992

30. Ordinance XVII of 1992

31. Ordinance IV of 1993

32. Ordinance XII of 1993

33. Ordinance XXXIX of 1993

34. Ordinance XVII of 1994

35. Ordinance XLI of 1994

36. Ordinance LXXIII of 1994

37. Ordinance XV of 1995

38. Ordinance LVI of 1995

39. Ordinance XCVI of 1995

40. Ordinance IV of 1996

41. 5‑9‑1990

42. 14 ‑1991

43. 27‑4‑1991

44. 24‑8‑1991

45. 23‑12‑1991

46. 22‑4‑1992

47. 30‑7‑1992

48. 19‑11‑1992

49. 17‑3‑1993

50. 15‑7‑1993

51. 10‑ ‑1993

52. 8‑3‑1994

53. 7‑7‑1994

54. 25‑10‑1994

55. 21‑2‑1995

56. 31‑5‑1995

57. 12‑9‑1995

58. 11‑1‑1996

59. The learned counsel further contended that in the absence of any valid criminal law to govern the case, Islamic Common Law should have been applied, but the same was not even invoked or referred.

4. The contentions require consideration, Leave is granted. As the contentions are of general importance likely to affect a large number of cases, ? the hearing may be fixed within two months. Considering the importance of the question raised, the case may be placed before the Hon'ble Chief Justice to constitute a larger Bench consisting of five Judges. ???

60. M.B.A./R‑281/S ?? Leave granted.