ICHALIL-UZ-ZAMAN vs SUPREME APPELLATE COURT, LAHORE And 4 Other:

MUHAMMAD MUNIR KHAN, J.---Through this petition, Khalil-uz-Zaman, petitioner has invoked the original jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, against the judgment dated 14-3-1993 of the Supreme Appellate Court, Lahore, whereby the conviction recorded under section 302, P.P.C. For the murder of Mst. Aasia Parveen (wife of the petitioner) and sentence of death awarded to the petitioner by Judge, Special Court for Speedy Trials No.lI, Lahore, was maintained.

2. The prosecution case, briefly stated, was that the petitioner was married to the deceased for years before the occurrence. She gave birth to Mst. Amina who was of two years age at the time of occurrence. On the eventful day, at about i1-00 a.m., the deceased went to the house of her father Faqir Ullah situate in Mohallah Harni Shah, Gali Lasoori WA Sharaqpur, for stitching a fir a for her daughter as Eid was appearing. The petitioner came saying - to Why she hued creme to the house of her parents. The same day at 9-00 p.m., Faqir Ullah, father of the deceased accompanied by Muhammad Saeed came to the house of the petitioner for giving Eidi to the deceased and also to counsel the petitioner. They found the petitioner and his co-accused namely, Jamil-uz-Zaman and Asif-uz-Zaman quarrelling with the . Deceased on account of her visit to the house of the parents.

Jamil-uz-Zaman andAsif-uz-Zaman, within their view, caught hold of the decease, while Khalf-uz- Zaman (petitioner) fired shot from pistol hitting left side of her chest resulting in her death at the spot.

3. The petitioner along with his two co-accused was tried by Special Court for Speedy Trials NO.II, Lahore. The learned Court acquitted. The two co-accused and convicted the petitioner under sections 302, 324, 337-F of P.P.C. And sentenced him to death as Ta'zir under section 302,, P.P.C., to rigorous imprisonment for ten years under section 324, P.P.C. And to rigorous imprisonment for one year under section 337-F of P.P.C. The petitioner filed an appeal against his conviction and sentence before the learned Supreme Appellate Court, Lahore which set aside the conviction under section 337-F of P.P.C. But upheld the conviction and sentence of death awarded to him under section 302, P.P.C. The learned appellate Court was of the view that-- "In the circumstances, the appellant is liable for Qatl-e-Amd under section 302(a) of the P.P.C.

Punishable with death as Qisas."

4. As stated by the learned counsel, the petitioner had filed Review Application before the Supreme Appellate Court which was not entertained on account of lack of jurisdiction. The petitioner then filed writ petition against the judgment of the trial Court and of the Supreme Appellate Court, in the Lahore High Court, Lahore which was subsequently withdrawn in order to invoke the jurisdiction of this Court under Article 184 of the Constitution. Hence this petition.

5. Mr. War Pasha Chaudhry, Advocate, the learned counsel for the petitioner relied on the provisions of sections 306(c) and 308, P.P.C. To contend that the offence committed by the petitioner was not punishable under section 302, P.P.C. At all. Therefore, the conviction of the petitioner under section 302, P.P.C. And sentence of death awarded to him by the trial Court and maintained by the Appellate Court are coram non judice. He explained that Mst. Amina, the daughter of the petitioner from the deceased is admittedly the wall of the victim, so Qatl-e Amd committed by the petitioner is not liable to Qisas and as such the trial Court and the Appellate Court both had no legal authority to convict the petitioner under section 302, P.P.C. Andaward him sentence of death. In the circumstances of the case, the offence allegedly committed by the petitioner falls within the purview of section 306, P.P.C. Punishable under section 308, P.P.C. With Diyat and in no case for Innricnament exceeding fourteen verse. Reference to the enforcement of Fundamental Rights conferred by the Constitution was very much involved, therefore, Supreme Court in exercise of its jurisdiction under Article 184(3) of the Constitution, came to the rescue of the accused to save his life. Accordingly, Supreme Court accepted the petition, set aside the judgment of the Supreme Appellate Court and remitted the case to the Court for fresh decision in accordance with law in the light of observations made. [p. 892) D Supreme Court, also, observed that the question of convicting the accused under appropriate section of the Code/law and awarding him legal sentence required utmost care on the part of the Courts. Requisite care had not been exercised in the case. It was the duty of a Court to administer justice within the for corners of the Code according to the canons of law regardless of the lack of proper assistance by the counsel for the parties. The Courts ought to punish the accused strictly in accordance with law. [p. 8921 E & F

(c) Administration of justice--- ----Criminal trial---Sentence---Duty of Court. [p. 892] E & F

(d) Islamic Jurisprudence--- ---- Duty of Qazi. [p. 892] F War Pasha Chaudhry, Advocate instructed by Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Ch. Iftikhar Ahmad, Deputy Attorney-General for Pakistan and Farooq Bedar, Additional Advocate- General, Punjab for Respondents.

Date of hearing: 3rd August, 1994. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.