Director and Members Al-quran Research Academy, Khyber Bazar, Peshawar Vs. Federal government of Pakistan through Secretary Ministry of Law Justice and Parliamentary Affairs, Islamabad

IN T H E FED ERA L SHARIAT COURT

( Original Jurisdiction)

PRESEN T

M R. JU S T IC E R IA Z AHMAD KHAN, C H IE F JU ST IC E

M R. JU ST IC E ALLAM A DR. FID A M UHAM M AD KHAN

M R. JU S T IC E SH E IK H NAJAM UL HASAN

M R. JU S T IC E Z A H O O R AHM ED SHAHW ANI

M RS. JU ST IC E ASHRAF JAHAN

SHARIAT P E T IT IO N NO.Ol/P OF 1997 Director and Members Al-Quran Research Academy, Khyber Bazar, Peshawar

Petitioner

Versus

Federal Government o f Pakistan through Secretary Ministry of Law Justice & Parliamentary Affairs, Islamabad.

Respondent

Counsel for Petitioner Nemo.

Counsel for Federal Govt. Mr. M. Pervez Khan Tanoli, Standing Counsel

Counsel for Balochistan Govt. ... Mr. Muhammad Ayaz Khan Swati, Additional Advocate General

Counsel for Sindh Govt. Mr. Ahsan Hameed Dogar, Advocate

Counsel for Punjab Govt M r Rashid Hafeez, Additional Advocate General

Counsel for KPK Govt Mr. Arshad Ahmad, Assistant Advocate General

Date of Institution 20.12.1997

Date of hearing 22.04.2016

Date o f decision 02.05.2016

Shariat P etition N o. 01/P o f 1997

JU D G M EN T

ALLAMA DR. FIDA MUHAMMAD KHAN. Judge.-

The Director and Members o f Al-Quran Research Academy Peshawar, —the Petitioners —through Abdullah Sani, Advocate, have filed this Petition whereby Sections 54, 55, 55A, 309,310, 312, 313 PPC as well as Section 345 Cr.P.C. have been challenged on the ground that these provisions of law are repugnant to the Injunctions o f the Holy Quran.

2 This Petition was admitted to regular hearing on 28.03.2007. Comments were called from Federal Government as well as Provincial Governments. The Governments o f Pakistan and Punjab have filed their comments. Both the Governments in their comments have opposed the Petition

3.On account o f illness the learned Petitioner who had been regularly coming to the Court, however, could not attend the Court today.

Shariat Petition N o 0 1 /P o f l 9 9 7

4.As is apparent from the contents of the Petition, the Petitioners have vehemently contended that, according to the Holy Quraan, the punishment o f Qatl-i-amd is only death and it is not at all compoundable. Reliance has been placed on Verse No.99 o f Sura Al-Nisa and Verses No 178 and 179 o f Sura Al-Baqra with a further explanation o f Verse No.33 o f Sura Bani Israeel The Petitioners have also referred to the harmful effects o f compoundability/leniency provided in these Sections which have resulted in enormous increase in commission o f offences like murder, abduction, dacoity and heinous social crimes.

5.Before proceeding further we would like to briefly refer to the history o f judicial background of the issues regarding non compoundability o f the offence o f ^ J3. Initially, all the relevant Sections o f law relating to non-compoundability o f Qatle Amad and Section 302 PPC (showing the same to be uncompoundable at that time) and Section 345 of the Cr.P.C. (as it was then before amendment) were challenged before the Honourable High Court

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Peshawar. The Honourable High Court Peshawar held those Sections to be repugnant to the Injunctions o f Islam and directed the same to be amended accordingly. Thereafter, Section 302 PPC and Sections 345 and 381 C rP.C were challenged in several Shariat Petitions before Federal Shariat Court on the ground that these were repugnant to the Injunctions o f the Holy Quran and Sunnah. This Court vide its judgment “Muhammad Riaz versus Federal Government” reported as PLD 1980 FSC page 1, also allowed seven Petitions questioning the vires o f Sections 302 PPC and 345 Cr.P.C.

etc. and directed that amendment in Section 302 and 304 PPC etc. be made accordingly by 1st April, 1981. Appeal agamst the said judgments was preferred before the Shariat Appellate Bench of Honourable Supreme Court o f Pakistan. That appeal was dismissed vide judgment reported as PLD 1989 SC Page 633 and it was held that the offence of Qatle Amd under Section 302 was compoundable and, therefore, ordered that the relevant provisions of law be amended. In compliance with the said judgment the relevant Sections

Shariat Petition N o. 01/P o f 1997

o f PPC and Cr.P.C were initially amended by promulgation o f an Ordinance which consequently substituted the old law and converted the same into its present form, including the Sections impugned now before this Court. In this background, it is obvious that these Sections which have been impugned before us have the blessings of Hon’ble Shariah Appellate Bench who after long and due deliberations had delivered the above judgment containing detailed reasons based on the Injunctions o f Islam as contained in the Holy Quran and Sunnah o f the Holy Prophet

6.We may also point out that the point o f view advanced by the learned Petitioners while explaining the Verses relied upon by them is not at all supported by any commentator o f the Holy Quran throughout the last 14 centuries. Verse No 33 o f Surah Bani Israeel is reproduced herein under’-

Shariat Petition N o 0 1 /P o f l9 9 7

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“Do not kill any person whom Allah has forbidden to kill, except with justice. We have granted the heir o f deceased who has been wrongfully killed, the authority (to claim retribution); so let him not exceed in slaying He shall be helped.”

The “authority” in this Verse refers to the right o f the victim to claim Qisas (equal retribution) or Diyat (blood money) from the murderer He is also vested with the “authority” (right to forgive, to waive or compound his right of Qisas). Thereafter, the State is bound to honour his right, in any form he wants. Despite his right to do so, however, he is warned that he must not cross the limits prescribed by Allah. It is pertinent to point out that there is a lot o f wisdom contained in the aforementioned "authority" granted to the heir/heirs of the victim (deceased). If he/they willingly agree to bury the hatchet, genuinely patch up the dispute with the accused, put an end to the animosity and restart an amicable life, it will not only add to the public peace and tranquility but will definitely save their present

Shariat P etition N o. 01/P o f 1997

and successive generations from consistent tensions, persistent apprehensions, continuous unending chain-reactions o f bloodshed by one or the other side. Thus it is in the larger public interest (^ U Ciai-xa) to grant legal sanctity to compoundability only in the cases o f Qisas (o-aL-as) which primarily pertain to the right o f citizens ( j LaJl as compared to the cases of “Taazir” which pertain to the right o f State which, in order to stop crimes altogether, reserves the right and usually do not allow its compoundability. Both these types o f Injunctions aim at maintaining and ensuring peace and law and order in the society at large, by one way or the other.

7.Here we deem it pertinent to add that Islamic law is divine in its original sources As such it necessitates great caution and meticulous care in dealing with the issue o f interpretation o f Verses or in changing its universally accepted meanings to suit varying times, places and needs. Therefore interpretation or meaning

Shariat P etition N o 0 1 /P o f l9 9 7

of a Quranic Verse must have full support by the Sunnah of the Holy Prophet

8.We have no hesitation to point out that like several other Arabic words, the word ( ^ j ) mentioned in the above Verse has also several meanings including heir/heirs. In the context o f above Verse, however, it clearly refers to the heir o f the deceased victim and none else, as has been consistently, continuously and unanimously held by all schools o f Islamic law and jurisprudence.

Regarding the grant o f j**, we would like to refer to Verses No. 178 and 179 o f Surah Al-Baqra, which are reproduced hereinunder.- “Believers! Retribution is prescribed for you in cases o f killing: if a freeman is guilty then the freeman: if a slave is guilty then the slave; if a female is guilty,

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then the female. But if something o f murderer’s guilt is foreiven/remitted bv his brother this should be adhered to in fairness, and payment be made in a goodly manner. This is an alleviation and a mercy from your Lord; and for him who commits excess after that there is a painful chastisement. People o f understanding, there is life for you in retribution that you may guard yourselves against violating the Law ”

A bare reading of the above Verses clarifies the meaning to show that the right to forgive granted to the heir o f a victim, killed or grievously injured, is only in cases o f It is worth mentionmg that the word ( i.e.o^t^T) has been mentioned twice in the said Verses. The learned petitioners have mixed up the same with 'VUai JS" in their petition but it is not so. In cases o f 'VUaa. JS 1’. the Holy Quraan does not impose the penalty of death but prescribes, interalia, payment o f to the heirs. (Al-Nisa:92)

9.So far as the translation and explanation o f “Wali” (17:31) and “Afw” (4: 178, 179) as given by the learned Petitioner is concerned, it finds no support from any source o f law, right from the period o f Holy Prophet £$& till date.

Shariat P etition N o. 01/P o f 1997

10.While considering the question raised in the Petition, it seems pertinent to briefly mention something about the sources of Islamic law. Undoubtedly the Glorious Quraan is the first source of Islamic law and jurisprudence. It is the fundamental source wherein there is absolutely no doubt (2‘2) as it is from the Lord o f the worlds (32 : 2). It has been sent down for administration o f justice between mankind (4:105). Legislation in the Holy Quraan was revealed gradually and intermittently to meet the requirements o f events in Islamic State and society.

11.The Sunnah (i.e. sayings, deeds or tacit approvals) of the Holy Prophet is the second most important source after the Glorious Quraan and is unanimously considered supplementary to, and explanatory o f Glorious Quraan, as ordained therein in the following words.

“Obey Allah and obey the Messenger of Allah” (5: 92)

Shariat P etition N o. 01/P o f 1997

“Who obeys the Messenger o f Allah, in fact obeys Allah” “And whatsoever the Messenger of Allah gives you, take it and whatsoever he forbids abstain from it” (59 7) Various other verses similar in wording or in meaning confirms that adherence to Sunnah is obligatory and, therefore, held in principle as such by all the Islamic schools, subject to verification o f its authenticity. The major reason as mentioned in the Glorious Quraan for this was the fact that as a duty o f mission the Messenger o f Allah ( A & ) was bound to teach (2: 129), (3.164) explain (16-44) setting practical manifestation and providing a role model of implementation (33- 21) to show how to obey and implement the civil, criminal, personal, fiscal, international and other laws ordained by Almighty Allah in the Glorious Quraan. That is why Injunctions o f Islam refer to the Injunctions as laid down in the Holy Quraan and Sunnah o f the Holy Prophet Xsfe, as mentioned in Article 203D.

Shariat Petition N o. 01/P o f 1997

12.In this view o f the matter this Petition, being misconceived, is dismissed accordingly

MR. JUSTICE ALLAMA DR. FIDA MUHAMMAD KHAN

MR JUSTICE RIAZ AHMAD KHAN

CHIEF JUSTICE

MR. JUSTICE SHEIKH NAJAM UL HASSAN

MR JUSTICE ZAHOOR AHMED SHAHWANI

U f. — — ■

MRS. JUSTICE ASHRAF JAHAN

Announced in open Court on •f-‘>*v6at Islamabad Umar Draz/*