YAQOOB Versus STATE
ABDUL HAMEED DOGAR, J.-- By this judgment we propose to dispose of Criminal Appeals Nos. 126, 135 and Criminal Jail Appeals Nos.26 and 69 of 1995, as they arise from a common judgment.
2. Appellants Yaqoob, Qasim, Asghar, Muhammad Imranullah Khan Ghauri and Raees Ahmed have assailed judgment, dated 25-7-1995 of the learned Judge (Special Court) Suppression of Terrorist Activities Act, Sukkur Division at Khairpur, whereby appellants Yaqoob, Qasim and Ashgar in custody whereas Imran, Raees and Usman, the absconding accused, were convicted under sections 302 and 149, P.P.C. and sentenced to death. All of them were directed to pay compensation of Rs.25,000 each under section 544-A, Cr.P.C. to the heirs of deceased Imdad Hussain. They were also convicted under section 4 of Explosive Substances Act, 1908 and sentenced to undergo R.I. for 10 years more. Both sentences were ordered to run concurrently. Appellants Yaqoob, Qasim and Asghar were remanded to judicial custody, whereas absconding accused Imran, Raees and Usman were ordered to serve out their sentences after their arrest. Subsequently, Imran and Raees were arrested and filed the abovementioned appeals, whereas Usman is still absconding.
3. The facts giving rise to the filing of these appeals are that on 5-5-1992 complainant Inspector, Ghulam Shabbir Shahani of Police Station 'C' Section, Sukkur, was assigned duties at Jinnat Building, Old Sukkur. Complainant asked from the Rangers Police about the civilian police, to which they replied that there were no civilian police on the duty that day. Thereafter he informed the above to Munshi Rasheed Ahmed who asked the complainant to wait till the arrival of conveyance, as such he waited at the Rangers point. While complainant was going there, he saw one Government vehicle coming from Dubar Road and also saw '10-12 persons, who attacked that van and put the same on fire. They were also seen throwing explosive substance over the van, as a result of which it caught fire. Thereafter S.H.O. Bakhtiar Hussain arrived in bullet proof vehicle. Police constables of special police, namely, Ghazi Khan and Abid, Hussain also came there, who informed the complainant that while they were coming on foot in the street, they saw appellants Yaqoob Pathan, Qasim Ansari, Asghar Behari, Imran Ghani, Raees Ansari and absconding accused Usman Pathan alongwith six other unidentified persons. Out of them Usman was armed with Kalashnikov and,the rest had pistols and guns in their hands. They further disclosed that the abovementioned culprits directly fired at the driver of the van and threw some explosive substance at it, whereby the van caught fire. Driver, HC, Imdad Hussain was found dead having sustained fire-arm injuries on his face and other parts of body. The van was also burnt. Appellants Yaqoob, Qasim and Ashgar Behari were arrested. On completion of investigation they were sent up alongwith accused, namely, Imran, Raees and Usman.
4. A charge was framed against the appellants as well as the absconding accused, to which the appellants did not plead guilty and claimed trial.
5. At trial the prosecution examined P.W. Rehmatullah, PC, Abid Hussain, PC, Muhammad Ibrahim, PC Ghazi Khan, Inspector/complainant, Ghulam Shabbir Shahani, S.H.O./Inspector Bakhtiar H. Shah, Medical Officer Dr. Iqbal Ahmed and then the prosecution closed its side.
6. Appellants in custody, namely, Yaqoob, Qasim and Asghar in their respective statements under section 342, Cr.P.C. denied the case of prosecution and claimed to be innocent. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led evidence in defence.
The trial Court framed the following points for determination:
(1) Whether HC Imdad Hussain was murdered?
(2) Whether Government vehicle was set at fire by throwing explosive substance at it?
(3) Whether all the accused are responsible for the commission of above offences?
(4) What should the judgment be?
8. On the assessment of evidence abovementioned appellants in custody and the absconding accused, namely, Imran, Raees and Usman were convicted and sentenced as above.
9. We have heard M/s. Sardar Muhammad Ishaque, Syed Nasir Hussain Jafri on behalf of the appellants and Mr. Habib Ahmed, the learned Assistant Advocate-General on behalf of the State at length and have gone through the record and proceedings of the case.
10. The learned counsel for the appellants at the very outset contended that the entire trial in this case has proceeded in accordance with the old provisions of section 302, P.P.C. as was prior to the Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance NoNII of 1990), whereby the provisions relating to Qisas and Diyat were produced and in the Chapter relating to Offences Affecting Human Body, sections 299 to 338, were substituted in Pakistan Penal Code. According to them the charge against the appellants was framed on two counts, viz. under section 302 read with section 149, P.P.C. and under sections 3 and 4 of Explosive Substances Act read- with section 149, P.P.C. The entire evidence of prosecution witnesses has been recorded on solemn affirmation. Above all, all the appellants have been convicted under section 302 read with section 119. P.P.C. to death and under section 4 of Explosive Substances Act with 10 years' R.I. and no reference of whatsoever nature has been made to Qatl-i-Amd as defined under ' section 300, P.P.C. and its punishment as prescribed under section 302, P.P.C., as such the entire trial against the appellants vitiates. They lastly submitted that since the appellants have been convicted under law not in existence, as such it is a fit case to be remanded for fresh trial in accordance with the law presently in field.
11. On the other side, the learned Assistant Advocate-General could not controvert the above contentions of the learned counsel for the appellants. According to him from the entire record it appears that the case has not proceeded in accordance with the above-referred amended provisions of Pakistan Penal Code.
12. In order to appreciate the above contentions, it is essential in our opinion to refer to the background of enforcement of Ordinance, No.VII of 1990, whereby the provisions of Qisas and Diyat were introduced for the first time.
13. Federal Shariat Court in several Shariat Petitions vide judgment, dated 5-10-1986, declared the provisions of sections 299 to 338, P.P.C. dealing with Offences Against Human Body as repugnant to Injunctions of Islam. The provisions of section 109, P.P.C., which make an abettor in case of murder and other offences against human body liable to the same punishment as prescribed for such offences, were also declared to be repugnant to Injunctions of Islam. Section 54, P.P.C. and sections 401, 402, 402-A, 402-B, 345, 81 and 337 to 339, Cr.P.C. were also declared to be repugnant to the Injunctions of Islafn.
14. Appeal was filed before the Hon'ble Supreme Court and Shariat Appellate Bench of the Hon'ble Supreme Court vide judgment, reported in PLD 1989 SC 633, in various Shariat Appeals declared the above provisions of P.P.C. as well as Cr.P.C. repugnant to Injunctions of Islam as enshrined in the Holy Qur'an and Sunnah and fixed 23-3-1990 to be the date from which the decision was made applicable and said provisions were ceased to have effect. Consequently it was undertaken by the Government in Review Petition in the matter of Federation of Pakistan and another v. N.-W.F.P. Government and others, reported in PLD 1990 SC 1172, "that the necessary Ordinance with regard to the enforcement of Qisas and Diyat Laws would be promulgated by 5th September, 1990 and be made effective from 12th Rabi ul-Awwal, 1411 A.H."
15. Accordingly the Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance No.VII of 1990) was promulgated on 5th September, 1990 arid was enforced from 12th Rabi-ul-Awwal, 1411 A.H. which fell on 2nd October, 1990. By this Ordinance, amendment was brought in section 53, P.P.C., whereby the punishments provided thereunder were brought in consonance with the punishment provided by Shariat as under:--
Firstly, Qisas;
Secondly, Diyat;
Thirdly, Arsh;
Fourthly, Daman;
Fifthly, Ta'zir;
Sixthly, Death;
Seventhly, Imprisonment for life;
Eighthly, Imprisonment which is of two descriptions, namely:
(i) Rigorous, i.e: with the hard labour;
(ii) Simple;
Ninthly, Forfeiture of property;
Tenthly, Fine.
16. In Chapter XVI of Offences Affecting the Human Body the old provisions from sections 299 to 338, P.P.C. were deleted and were substituted by newly amended provisions of sections 299 to 338, P.P.C. An amendment was also brought in sections 337 and 338 of Chapter XVI of Cr.P.C., relating to tender of pardon. An amendment was also brought in section 381, relating to execution of sentences provided in Chapter XXVIII of Cr.P.C. At the same time Schedule II, Cr.P.C. was also amended and the figures "302 to 338" occurring in column I and the entries relating thereto in columns 2 to 8 were substituted. A further amendment was brought in P.P.C. and Cr.P.C. by Criminal Law (Third Amendment), 1990 as Ordinance No. VIII of 1990 on 2nd October, 1990 to bring certain provisions thereof in conformity with Injunctions of Islam as laid down in Holy Qur'an and Sunnah. By this amendment sections 54, 55 and 338-E, of P.P.C. were amended. Correspondingly, an amendment was brought in section 345, Cr.P.C. and in a table in the second column, for the figures "302, 303, 304-A, 305, 306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337, 338 and 308 relating to in the first and third columns were substituted and above offences were made compoundable. An amendment was also brought in section 32 and section 402-C, Cr.P.C. Similarly Ordinances were being repeated onwards on the expiry of its period with certain amendments till 11-4-1997, when an Act of 1997 called as Criminal Law (Amendment) Act, 1997 No.II was passed by the Parliament approving the above provisions contained in Ordinance No.CVIII of 1996. .
17. Contention was raised before the Hon'ble Supreme Court in the case of Riaz Ahmed v. The State, reported in 1998 SCMR 1729 that section 302 enforced by Ordinance NOXXX of 1991 as Criminal Law (Amendment) Ordinance, 1991 was not a valid law as earlier three identical Ordinances, viz. Ordinance VII of 1990, Ordinance No.I of 1991 were promulgated and stood repealed without being approved by the Majlis-e-Shoora/Parliament; and that the Ordinances cannot be repeated. The Hon'ble Supreme Court in the said judgment held that the provisions of Article 89 of the Constitution of Islamic Republic of - Pakistan were fully complied with as the Ordinance promulgated from time to time were laid before both Houses of. the Parliament and that either of the House did not disapprove the legislation. As such the Ordinances promulgated from time to time validly held field and were rightly operative in law.
18. We have noted with concern that in many cases, Courts below are not following the new provisions of law and are conducting the trials in accordance with old provisions of law. By doing so not only miscarriage of justice occurs but justice is being delayed and the entire exercise becomes futile. In such circumstances, we have felt it necessary to lay down certain guidelines for conducting trials in accordance with law in force at present:--
(1) While framing charge provisions contained in sections 300 and 302, P. P. C. are to be strictly followed. Section 300, P. P. C. defines as to what is Qatl-i-Amd, whereas section 302, P.P.C. prescribes its punishment.
(2) The mode of conducting trial has been provided under section 304, P.P.C. By this provision of law the proof for Qatl-i Amd liable to Qisas has been defined. The first provision relates to a voluntary and true confession of the commission of offence before a Court of competent jurisdiction to try such offence. The second provision relates to competence of person to testify and number of witnesses required in accordance with Injunctions of Islam as laid down in Holy Qur'an and Sunnah.
19. Proof of Qatl-i-Amd liable to Qisas has been provided in section 304, P.P.C. By its subsection (1)(a) if accused makes voluntary and true confession of commission of offence before the competent Court having jurisdiction to try such offence, he can be convicted with Qisas and by subsection (1)(b) if the standard of evidence recorded falls within the category of evidence to be recorded as provided in Article 17 of Qanun-e Shahadat, accused can also be convicted with Qisas. For proper. appraisal reference is made to Article 17 of Qanun-e-Shahadat, which reads as follows: --
"17. Competence and number of witnesses. ---(I) 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 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."
20. It would be beneficial further to reproduce here section 338-F, P.P.C., which reads as under:--
"338-F. Interpretation. --In. the interpretation and application of the provisions of this Chapter, and in respect of matter ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
21. It may be seen that in Islamic system of administration of justice much strees has been laid on the quality of evidence, competency to testify, veracity, integrity and respectability of the witnesses. Such test of witness is termed as "Tazkiya-e-Shahood" (Purgation of witnesses). The word "purgation" has been defined in Oxford Dictionary as follows:-- "a purging; a clearing away of impurities; act of clearing from suspicion or imputation of guilt; a cleansing."
And in Black's Law Dictionary the word "purgation" is defined as, follows:--
"The act of cleansing or exonerating one's self of a crime, accusation, or suspicion of guilt, by denying the charge on oath by ordeal. "
As per Misbah-ul-Lugh'at, Arabic to Urdu Dictionary, the, word "Tazkiya" has been defined as follows:
TAZKIA plural of ZAKA
ZAKA means to cleanse or purify.
22. Proof of Qatl-i-Amd liable to Qisas (Punishment of Hadd) has been defined in section 304, P.P.C., which reads as follows:--
"304. Proof of Oatl-i-Amd liable to Qisas, 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. 10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas:" .
23. The learned trial Court while recording statements of accused in the cases punishable under Qatl-i-Amd under section 342, Cr.P.C., should keep in mind the provisions of sections 302 and 304, P.P.C. and the evidence of eye-witnesses recorded at trial.
24., Section 302, P.P.C. is divided in three parts with three different kinds of punishments, such as death as Qisas, death or imprisonment for life as Ta'zir and sentence of imprisonment up to 25 years, which is mentioned below:-
"302. Punishment of Qatl-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 in either of the forms specified in section 304 is not available, or
(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."
25. The Court while deciding the case under section 302, P.P.C. should keep all its provisions in mind strictly. It is usually found that in many cases no reference is made to the above provisions of section 302, P.P.C., which results in miscarriage of justice. It is incumbent upon the trial Court. to specify relevant subsection of section 302, P.P.C., whereunder conviction has been awarded with detailed reasons. By not doing so the very purpose of the above Islamic provisions of law becomes frustrated. In this respect we are fortified by the case of Muddassir alias Jimmy v. The State, reported in 1996 SCMR 3. For guidance it would be essential to refer its placita (a) and (b) as under:--
"(a) Penal Code (XLV of 1860)----
S.302. Courts have bounden duty to specify relevant subsection of S.302 whereunder they have convicted/sentenced accused. Mention of subsection of S.302 under which accused is convicted/sentenced would be in accordance with requirement of S.367, Cr.P.C.
(b) Ibid----
S.304. Trial Courts alarmingly ignore S.304 and Art.17, Qanun-e-Shahadat (1984), while recording evidence of witnesses. It not only results in miscarriage of justice but also deters superior Courts in rectifying errors or passing appropriate orders.'S.304 plays pivotal role in determining fate of persons found guilty of Qatl-i-Amd under section 302."
26. By short order, dated 4-3-1999, we had set aside the conviction and sentence and had remanded the case for retrial.
Above are the detailed reasons of the same.
We direct the learned Member Inspection Team to send the copies of this judgment to the concerned Courts in the Province.
Q.M.H./M.A.K./Y-14/K
Case remanded.