ABDUS SALAM Versus THE STATE

NASIR ASLAM ZAHID, J. ---Aggrieved by the judgment dated 20-12-1993 of the High Court of Balochistan dismissing his criminal appeal and confirming his conviction under section 302(a), P.P.C., for the murder of his mother and the sentence of death awarded to him by the trial Court, Sessions Judge, Quetta, appellant Abdus Salam son of Baran Khan sent a petition from jail seeking leave to appeal. By order, dated 20-12-1994, leave was granted as follows;-----

"The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court, whereby death sentence awarded to him by the trial Court was confirmed.

2. The brief facts are that Baran Khan, real father of the petitioner, lodged a report in the police station that on 3-7-1991 at about 4-30 p.m. in his presence, his son, the petitioner came to the house armed with an iron rod and demanded from his mother Rehmat Bibi Rs.100 otherwise he would kill her. As she refused to give money, the petitioner hit her with iron rod on her head. On receiving injury, she died instantaneously and the petitioner escaped from the place of occurrence. In his 342, Cr.P.C. statement he admitted, the factum of killing his mother but in the written argument submitted before the Sessions Judge, he took the plea of sudden and grave provocation and alternatively pleaded to have committed the offence under the influence of drug. The learned Sessions Judge convicted the petitioner under section 302 of the Qisas and Diyat Ordinance and awarded death penalty to him. It is note-worthy that the close relations of the petitioner namely his father (P.W.1), sister (P.W.2), and sister-in-law (P.W.3) had deposed against the petitioner.

3. The learned Sessions Judge on appraisal of evidence convicted and sentenced the petitioner to death with the following observation:--

"The accused has pleaded guilty to the charge and he also admitted the commission of offence in his statement under section 342, Cr.P.C. Further 3 eye-witnesses have appeared and their statement has not been disputed, therefore, the Qatl-i-amd is proved as required by section 304, P.P.C. Further none of the cases as provided in sections 306, 307 and 308, P.P.C. is attracted whereby punishment of Qisas is not to be enforced hence the accused is found to have committed Qatl-i-amd punishable under section 302(a), P.P.C. the accused is thus accordingly convicted under section 302(a), P.P.C. and sentenced to death by hanging by neck till he be dead. The sentence, however, shall not be executed till it is confirmed by the High Court of Balochistan, Quetta. "

4. The High Court confirming the sentence of death observed as follows:

"Learned Sessions Judge on thorough evaluation of available material has rightly found appellant guilty for Qatl-i-amd, of his mother. Judgment of learned Sessions Judge does not suffer from any illegality, infirmity."

5. The learned counsel for the petitioner contended that in the facts and circumstances of the case the petitioner could not be punished with death as Qisas. It was further contended that proof of Qatl-i-amd liable to Qisas as required by section 304, P.P.C., was not available on record and, therefore, the death sentence liable to Qisas could not be awarded. The learned counsel has also referred to Constitution Petition No.36 of 1994 (Khaliluz Zaman v. Supreme Appellate Court, Lahore and others) PLD 1994 SC 885 in which the learned trial Court had sentenced the petitioner to death as Ta'zir but the Supreme Appellate Court upheld the conviction and sentence of death with observation that ' In the circumstances, the appellant is liable to Qatl-i-amd under section 302(a) of the P.P.C. punishable with death as Qisas'. By the judgment referred above, it was set aside and case was remanded for trial mainly on the ground that one of the Wali of the victim was direct descendant of the offender (petitioner) and therefore, under section 306, P.P.C. Qatl-i-amd was not liable to Qisas. In fact the principle enunciated may not be directly applicable to the present case. However, it is to be noted that in this context the provision of section 302(b) has to be considered which reads as follows:--

"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 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".

4. A perusal of section 302, P.P.C. will show that Qatl-i-amd is punishable with death as Qisas as well as 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. In this context it may be noted that clauses (a) and (b) of section 302, P.P.C. are not separated by the word "or" as it appears after clause (b) and before clause (c).

5. The following questions require consideration:--

(1) Where Qatl-i-amd cannot be punished with death as Qisas under section 302(x), is there any bar in awarding punishment with death as provided by section 302(b), P.P.C.?,.

(2) What is the standard of proof required by section 304, P.P.C. for proving Qatl-i-amd liable to Qisas.

(3) What distinctive standard of proof would be required and guiding principles followed while awarding punishment of death as Ta'zir, in another case.?

6. All these questions are of general importance involving interpretation of aforestated provisions of law which require consideration by a larger Bench. Leave is granted."

2. We have heard the arguments of Mr. Arshad Ali Choudhary, Advocate Supreme Court for the appellant, and Mr. Raja A. Ghafoor, Advocate Supreme Court who has appeared for Advocate-General, Balochistan for the State. With the assistance of the learned counsel w have gone through the record.

3. Relevant facts have been "recited in sufficient detail in the leave granting Order. Appellant did not deny murdering his mother, deceased Mst. Rahmat Bibi. On the commencement of the trial, when the charge was framed, appellant pleaded guilty and stated that he had killed his mother as she refused to make payment of Rs:100 on his demand. At the trial, three eye-witnesses, namely, father, sister and sister-in-law of the appellant deposed against the appellant that he had killed the deceased. In his statement recorded under section 342, Cr.P.C., he admitted killing his mother and did not take any plea that, when he killed his mother, he was under the influence of any drug or that he did not know what he was doing. In answer to the last question as to whether he had anything further to say, he replied as follows:------

I may be pardoned.

Appellant did not appear in the witness-box to give his statement on oath under section 340(2), Cr.P.C. No defence evidence was examined.

4. On merits, prosecution had established beyond any doubt its case against the appellant for the cold-blooded murder of his mother. As noted, appellant admitted murdering his mother pleading guilty to the charge and he also admitted his guilt while his statement was being recorded under section 342, Cr.P.C. Even otherwise the eye-witness account furnished by his father, sister and sister-in-law, who had no motive at all to implicate the appellant falsely, independently established the case of the prosecution against the appellant beyond any doubt. Mr. Arsahd Ali Choudhary learned counsel for the appellant also did not challenge their conviction on merits but pleaded for reduction of sentence from death to life imprisonment.

5. In this case, the trial Court recorded conviction of the appellant under section 302(a), P.P.C. i.e. Qatl-i-amd, punished with death as Qisas and such conviction was confirmed by the High Court. We are, however, of the view that this was a case for conviction under section 302(b) as proof in this case against the appellant was not available in either of the forms specified in section 304, P.P.C. under section 304(1), P.P.C., proof of Qatl i-amd is required to be in one 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.

Reply to the charge and his statement under section 342, Cr.P.C. by the appellant did not amount to confession as required under section 304(1)(a). Evidence of the three witnesses also did not satisfy the test provided in Article 17 of Qanun-e-Shahadat, 1984, as the said witnesses had not been subjected to the test of Tazkiya-tul-Shahood. Reference can be made to the judgment of this Court in Manzoor v. State (1992 SCMR 2307) where it was held as follows:------

"As regards it being a case of Qatl-i-amd liable to death by Qisas the requirement of the Islamic Law is that the witnesses must stand the test of Tazkiya-tul-Shahood and the importance of it has been emphasized in Sanaullah v. The State PLD 1991 Federal Shariat Court 186, in the following words:--

"Tazkiya-tul-Shahood is obligatory in cases punishable with Hadd and Qisas,-even if the competency of a witness is not challenged by the Mashood Alaih.

In the case of Ghulam Ali v. The State PLD 1986 SC 741 it was held that where proper Tazkiya-tul-Shahood was not done of an eye-witness, the conviction under Islamic Law could not be sustained. In the present case, this requirement having not been satisfied, the conviction under Injunctions of Islam could not be awarded."

We are accordingly of the view that, in this matter where the prosecution had established its case against the appellant for the Qatl-i-amd of his mother, conviction was required to be recorded under section 302(b), P.P.C. and not under section 302(a), P.P.C.

6. Coming now to the questions on which leave has been granted in this case, it may be observed that where Qatl-i-amd cannot be punished with death as Qisas under section 302(a) as proof in either of the forms specified in section 304, P.P.C. is not available, punishment as Ta'zir can be awarded under section 302(b), P.P.C. which provides for sentence of death or imprisonment for life. Either of these two punishments can be awarded as Ta'zir for Qatl-i-amd and there is no bar or restraint in awarding punishment of death under section 302(b), P.P.C.

7. The second question on which leave was granted in this case is about the standard of proof required by section 304, P.P.C. for establishing the charge of Qatl-i-amd liable to Qisas. As we are of the view that in this case conviction of the appellant should have been recorded under section 302(b), P.P.C. and not under section 302(c), P.P.C., it is not necessary to give any decision on this issue. However, it may be observed that section 304(1) provides two forms in which proof of Qatl-i-amd is required to be given i.e. voluntary and true confession of the commission of offence by the accused before the Court competent to try the offence or by evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984. As observed earlier, requirement of the Islamic Law in this regard is that witnesses must stand to test of Tazkiya-tul-Shahood: reference Manzoor v. State (supra).

8. The other question on which leave has been granted is as to what distinctive standard of proof would be required and guiding principles followed while awarding punishment of death as Ta'zir.

The basic difference as regards punishments provided in sections 302(a) and 302(b) for Qatl-i-amd is that under section 302(a) there is no discretion with the Court but to award sentence of death as Qisas as that is the punishment provided, whereas under section 302(b) punishment is death or imprisonment for life as Ta'zir.

It may be observed that though under section 302(b), P.P.C. for Qatl-i-amd punishment as Ta'zir is provided as death or imprisonment for life but from this it does not follow that the Court has absolute discretion to award either of the two sentences. It is now well settled that normal sentence for Qatl-i-amd as Ta'zir is death. The Court, however, has the discretion to award the lesser sentence of life imprisonment in case there are mitigating circumstances. Such discretion is neither uncontrolled nor it is to be exercised arbitrarily. It is to be exercised judiciously. The Court, after reaching the conclusion that the accused is guilty of Qatl-i-amd, can award lesser sentence of life imprisonment provided the Court records reasons for awarding such lesser sentence i.e. mitigating circumstances on account of which a case is made out for not awarding the normal sentence of death. We are, therefore, of the view that, though in section 302(b), P.P.C. provision has been made for awarding death sentence or life imprisonment as Ta'zir for Qatl-i-amd, the normal sentence for committing such offence is death and in case the other punishment, i.e. life imprisonment is awarded the Court is required to record reasons for such lesser sentence.

9. As observed earlier, learned counsel for the appellant has only pressed this appeal on the question of sentence. According to the learned counsel, in the evidence of witnesses, mention has been made about appellant previously taking drugs. It was argued that on this account sentence is liable to be reduced.

We find no substance in the contention of learned counsel that in this case appellant should have been awarded lessser sentence. As observed, prosecution evidence comprising the testimony of appellant's father, sister and sister-in-law established the prosecution case against the appellant for committing the cold-blooded murder of his mother. The appellant had come duly armed with an iron rod and, on the mere refusal of the deceased to pay him Rs.100, appellant attacked the deceased with the iron rod which resulted in the death of the deceased. He pleaded guilty to the charge and, even in his statement recorded under section 342, Cr.P.C., he admitted that he had murdered his mother. No plea was taken by him at the time that he was under the influence of drugs or was not in his senses. This was also not stated by the witnesses. In these circumstances, the trial Court rightly awarded the death sentence which has been confirmed by the High Court. Normal sentence of death has been awarded under section 302(b), P.P.C. There are no mitigating circumstances requiring commutation of the death sentence to life imprisonment.

10. As a result while converting the conviction of appellant under section 302(a), P.P.C. to one under section 302(b), P.P.C., Criminal Appeal No.22-Q of 1994 is dismissed.

M.B.A./A-206/5 Appeal dismissed.