Muhammad Riaz Vs. Federal Government

2FSC ALL PAJCISTAN LBOAL DECISiONS VoL,XXXII that an offence of murder in the N.-W. F. P., will be dealt with differently from the rest of the provinces. As a successor Court in every sense of the word, though differently constituted, the Federal Shariat Court stands debarred from adjudicating the same issues once again. (p. l0]G Per Zakaallab Lodhl, Member- The Federal Shariat Court is only a successor Court, hence these points cannot be re-examined by this Court. As far as this forum is concerned, it cannot go into them in exercise of parallel jurisdiction. The jurisdiction of a Shariat Bench has no nexus to the Court's territorial jurisdiction. It rather extends to laws, irrespective of the list in the Constitution on which they find place. Once a Jaw was struck down by any Shariat Bench of a High Court being repugnant to the Injunctions of Islam, it became extinct as from the date fixed by the judgment, and such decision was binding on all Courts. Accordingly the question of any complication, also did not arise. The reference to the number of Judges in the Federal Shariat Court vis-a-vis the Shariat Benches is also insignificant in view of the fact that all these Benche.� enjoyed identical jurisdiction as the Federal Court now enjoys. Since the jurisdiction of these Benches had relevance to a law examined by it and not to a particular territory, therefore, the possibility of conflicting judgments by difft;rent Benches, was also out of question. [p. 45]UU & VV Per Karfmallah Durrani; Member. [pp. 52, 53]FFF-lll Per Aftab H11111ln, Member (Contra)- The submission made at the Bar that the Federal Shariat Court being in all respects a successor Court of the Peshawar Shariat Bench, is bound by that decision is not acceptable. Firstly that decision was by a Full Bench of three Judges while the present cases are being heard by a larger Bench of five members of the Federal Shariat Court. Even as a successor Court it has jurisdiction to differ from the Shariat Bench of Peshawar. Secondly the jurisdiction of the Peshawar Bench being limited to its own territories its judgment could not bind any other High Court, This flaw of territorial jurisdiction bas been removed now by the setting-up of the Federal Court which has jurisdiction throughout Pakistan. [p. l4]K Per Salablllldln Ahmed, Chairman, A&ha Ali Hyder, Aftab HU1Saia, ZiakaalJab Lodhi aocl Karimullah Durrani, Member1-

(b)Penal Code (XLV or 1860)---.

- Ss. 302, 304, 304-A, 324, 325, 326, 329, 331, 333, Chap. XVI (other provisions relating to hurt), Ss. 335 & 338 read with Constitution of Pakistan (1973), Art. 203-D-Repugnancy to Injunctions of Islam­ Sections 302, 304, 304-A, 324, 325, 326, 329, 331, 333 & Chap. XV[ (other provisions relating to hurt), Ss. 335 & 338-Held, repugnant to Injunctions of Islam for not providing for composition and compoundability.

[pp. 7, 10, 21, 22, 23, 33, 34, 38, 40, 52]A, /, S, T, U, JJ, KK, LL, 00,

RR & EEE

Per Agha Ali Hyder, Member.....

(c)Criminal Procedure Code (V of 1898)- - S. 544-A-Constitution of Pakistan (1973), Art. 203-D-Repugnancy to Injunctions of Islam-Question of compensation under S. 544-A, whether offender meets supreme penalty under Shariah, is pardoned, or pays Diyat, held, does not arise due to its being in excess of prescribed penalty.-[Compensation]. [p. 10]11

μ.n these

J.

: the �t to >f the 1rachi VOLUMB xxxn 1980 >f the , the THE

ALL PAKISTAN LEGAL DECISIONS

h arc

ed.

FEDERAL SHARIAT COURT

P L D 1980 F S C l Present : Salalmddln Alrmed, Chairman, Agha Ali Hyder, Aflab Hussain, Zakaullah Lodhl and Karimullah Durrani, Members MUHAMMAD RIAZ, ETc.-Petitioners versus FEDERAL GOVERNMENT ETc.-Respondcnts Shariat Petitions Nos. IS, 69 of 1979; 9 of 1980 (Lah.) and 1, 12, 2 and 20 of 1979; 7 and 4 of 1980 (Kar.), decided on 23rd September, 1980... Per Agha All Hydtr, Zakaullah Lodhl and Karlmullah Durrani, Members; (Aft.ab Hassaln, Member not agneioa as to Jud&ment of Shariat Be11cl1 being binding aoll boldlng fleld]-

(a)Coastltutloa or Pakistan (1973)-

-- Arts. 203-B (unamended) & 203-D (amended)-Jurisdiction-Repug­ nancy to Injunctions of I.lam-Federal Shariat Court-A successor to Shariat Bench of High Court-Issues decided by Shariat Bench of High Court-Held, binding and Federal Shariat Court debarred from adjudicating same issues once again, and judgment reported as P L D 1980 Pesh. I declaring Ss. 54, 55, 302, Penal Code, 1860 and Ss. 345(7), 401, 402 & 402-B, Criminal Procedure Code, 1898 read with relevant parts of Schedule repugnant to Injunctions of Islam, binding and holding field.-[Jurisdiction­ Federal Shariat Court].

Per Agha Ali Hyder, Member- The powers, jurisdiction and functions of the Shariat Benches of the High Court were identical even in terms, to the powers of the Federal Shariat Court. The Peshawar Bench in the case reported as P L D 1980 Pesh. 1 had specified a date from which the order was to take effect and the Govern­ ment of Pakistan had preferred an appeal against the said decision, which is pending before the Supreme Court. No stay has rn far been granted and looking to the ot;,ject and the scheme of the Jaw, it cannot be conceived,

4FSG ALL PAKISTAN Ll!0AL OECJS10NS VoL.XXXIl (/) Con1titutloo of Pakistan {1973)- -- Art. 203-D-Repugoaocy to Injunctions of lslam-Islamisation of laws-Points of similarity between Islamic law and law of murder and hurt as laid down in Penal Code, 1860, particularly S. 299. The Qur'anic verses leave no doubt that tbe usual sentence for a person 1:0nvicted of murder is deatb, or "life for life". [p. 18) para. 30 Homicide may be justifiable and culpable. This difference is recogniz.:d by Sbariah which states that there is no culpability inter alia in putting a person to death in execution of legal punishment for any offence committed by him. [p. 34) para. 107 Intention to cause death is the main ingredient of premeditated murder so is that of murder in the Code. The intention may be gathered under Shariat from the weapon used by th.: accused. So it can be gathered under the Code vide Exceptions secondly, thirdly and fourthly to section 300. [p. 35) para. 111 Exceptions to section 300 also do not present any difficulty in respect of reconciliation with Qur'an and Sunnab. The first exception is where death is caused when the offender was deprived of power of self-control by grave or sudden provocation or by mistake or accident. Death caused by accident or mistake is nothing but murder by error (ll&i- J;J). Provocation when grave and sudden would take the matter out of the category of intended or premediated murder. [p. 35] para. 117 If a.person causes death on seeing his wife or other near female relation in a compromising position with a stranger he should be taken to have lost self-control and acted under the influence of sudden and grave provoca­ tion. But if before this event occurs a person makes up his mind to kill if he ever saw the two committing adultery it will be a case of premeditation. • [p. 36] para. 120 Exception II is about exceeding in good faith right of self-defence. The Qur'an recognises the right of self-defence in Verse 2:191 when it declares lawful killing in exercise of such right even in Haram-e-Ka'aba where shedding of blood is otherwise prohibited. [p. 36] para. 120 lt is thus clear that exceeding the right of self-defence if in good faith would not amount to murder but if it is exercised despite knowledge that no case of self-defence is made out it would amount to murder. The Penal Code and Sunnah are, therefore, unanimous on this point. (p. 37] para. 123. There is no tradition of the Prophet (peace be upon him) to the contrary. It is, however, clear that the very fact that there is no intention to carry on unjustified killing would remove his act from the ambit of premeditated murder (� J:i). Exception IV is about the causing of death in li sudden fight, in the beat of passion upon a sudden quarrel and 1⁄4ithout the offender's having taken undue advantage l'f acted in a cruel or unusual manner. Such an exception is available in the Suonah of the Prophet (peace be upon him. (p. 37) paras. 125 to 127.

(z)COIIStibllion of PakJltu {1973)- -- Art. 203-D-Repugnancy to Injunctions of Jslam-Jslamisation of Jaws-Criticism of enforcement of a new law of murder and hurt.

1980 MUHAMMAD RJAZ V. FEDERAL GOVERNMENT FSC3

(Salahuddin Ahmad Chairman) Per Agba Ali Hydei and Mtab Hassal■, Members-

(d)Constitution of Pakistan (1973}- -- Art. 203-D-Jslamisation of laws-Retaliation in cutting a limb­ Limited to c_a�s where limb g6ts cut from joint-Not permissible, hence, to cut or mJure bonc-[Aftab Hussain, Member also enumerating cases where Qisas not permitted].--[Qisas]. [pp. JO, 41)/ & SS Per Aftalt Hus:;ala. Member [Salahaddio Ahmed, Chairman, ZakHllah Lodbl m Karimallab Durrani, Members agreelng]-

(c)Constltutio11 of Pakistan (1973}- - Art. 203-D-Repugnancy to Injunctions of Jslam-lslamisation of laws-Principles of Interpretation under Islamic Law. Islam recognised that not all customs and usages of tbe Arabs were repugnant to Shariah and maintained most of them as good law. Our statute Jaws whether inherited from the British Government or enacted after Independence are based upon the principle of common good and justice, equity and good conscience which is the same as the principles of public good (Masaleh Mursila) of Imam Malik and principle of Istihsan of Imam Abu Hanifa. A fortiori these laws must be more in harmony with Shariah. In some respects the statute law may not fulfil the standard of the law of the Qur'an and may also be repugnant to it but such instances ate few. [p. 16] para. 20 Consequently the first principle to be rnvoked is lo test these laws on the principles of Halal (lawfulness) and Haram (unlawfulness) as laid dow11 in the Divine law. The Holy Qur'an has expressly stated what 1s unlawful and prohibited. The Prophet of God has made additions to this category, but it cannot be doubled that the authority to declare something unlawful or prohibited lies with the Almighty or His Holy Prophet (peact: be upon him) and it is not lawful for any person to render unlawful what is lawful (see66 ;I). (p. 16] paras. 21 &22 The second principle highlights the importance not only of change ut' custom but also change of era and change in society in the context of evolu­ tion dynamism in the field of law, which is taken care or by the principle of Ijtihad. (p. 17] para. 24 The third principle is that concessions and rights if misu�cd by the people can be suspended or withdrawn as \\-as done by the Second Caliph by treating three divorces uttered at the same time as tbree and irrevocable, contrary to Sunnah of the Prophet (peace be upon bim), which healed any number of simultaneous divorces as one. Hazrat Umar introduced this law when he found that the facility or concession was being generally misused. (p. 17] para. 25 A fourth principle is that it is better not to ward off a transgression ir its stoppage leads to the spread of more malignant vices (Elam-11!-Mowa q­ qi'een, Vol. II, page 772). [p. 17] para. 26 Dr. Muhammad Iqbal's Lecture 'The Principle of Movement in the Structure of Islam'; Commentary on Holy Qur'an by A/lama Slwhir Ahmad Urmani, pp. 33, 138, 157, 159 & 363 and Hafiz lbn·e-Qayyum on Elamul Mawaqqi'een, Vol. II, pp. 772, 822. 843 ref.

6FSC .ALL PAKISfAN LEGAL DEc1sioNs Vor.. xxxn interpreted by some as imprisonment. The commentators have confined the applicability of this verse to sedition, dacoity or highway robbery. But there is no justification for thus limiting its scope and extent. The words of the verse are applicable inter alia to situation where the actions of individual or a group amount to creating corruption in the land (�J �I i..t .)W). In fact according to one sense spreading corruption in the land itself amounts to waging war against Allah Who has ordained the rctenlion of a balanced society full of virtues and free of vices. It is for this reason that Allama Shabbir Ahmad Usmani is of the view (�ee his Commentary on 5:33) that there is no justification for curtailing the geneiality of the words used in this verse to spt:eific offences of sedition, robbery or dacoity. The language of the verse should be considered in its wider sense. To be at war with Allah and His Prophet (peace be upon him) or to create corruptions or disorder in the land would cover all such matters as,---{l) offensive by the non-Muslims, (2) the mischief of apostasy, (3) highway robbe1y, (4) dacoity, (5) unjustified murder, (6) plunder, looting or pillage, {7) criminal conspiracy and (8) seditious propaganda. Each of these offences are such for whicn an offender would be liable to at least one of the sentences referred to therein. The reference to qatl-c-nahaq or unjustified murder clarifies the opinion of the worthy commentator. rn fact creation of disorder in society which one wishes to be an ordered society would itself amount to creating corruption or mischief (.)W). Thus a person who is a goonda (arch criminal) takes pride in his-being called a goonda. It is his hobby as well as policy to create terror in the minds of members of his locality who would like to· put an end to his criminal activities. He earns his living by sale of liquor and other intoxicants, prostitution, gambling, blackmail and making people PJY protection money. He masterminds the criminal activities of oth�rs and thus assembles round him other criminals hardened cold-blooded as well as potential and in the advancement of any or all of these activities/ commits or abets murder. Is he not one who creates corruption ( �l-i) in the land ? [p. 26] paras. 75 to 77 Holy Qur'a,1, Verses 4:29. 4:92, 4:93, 5:32, 5:33, 6:152, 17:33, 2:205, 5:45, 2:178, 2:263, 2:134, 4:17, 24:22, 42:43, 45:14, 7:199; Ibn-e-Kather•� Com­ mentary on Holy Qur'an, Verse 17:33 ; Shafi Waliullah on Hujjat-ul-Lah ul Baligha, Translated by Mola11a Abu Muhammad Abdul Haq /-laqani, Vol. II, p. 431 ; Commentaries on Holy Qur'an by Muhammad Ali .!11ll11ndhri, Ma11fa11a Shabbir Ahmad Usmani and Maufa11a Abdid Majid Dariyabadi • Islami Faujdari Qanoon by Salamat Ali Klum, p. 163 ; Kitab-ul-lkhtiyar on • Fathul­ Taqdir; Kitabu! Fiqh by Abdur Reitman Al-Jaziri, Vol. V (Urdu Translation I, p:489 and Anwar Ahmad Qadri on Islamic Jurisprudence in the Modern World, p. 299 ref.

Per Aftab Hussain, Member­

(i)Constitution of Pakistan (1973)- -- Art. 203-D-lslamisation 0f laws-Qisas-Cases where Qisas not permitted by Shariah.-[Qisasj. [p. 41]. para. 151 et seq Per Aftab Hussain, Member {Zakaullab Lodhi and Karlmullah Duuaol, Members (Contra)]- (;) Constitution or Pakistan (1973)- -- Arts. 203-B & 203-D-Law capable of being rendered ineffective without 11,aviug a vacuum-Ceases to have effect after expiry of time

1980 MUHAt.tMAO RIAZ V, Fl!Dl!RAL GOVERNMENT FSC S (Salahuddin Ahmud Chairmad) It is not neces5ary to change the whole structure of the Penal Code in this respect since the Code is a valuable document prepared with utmost care and attention and almost every word of it bas been interpreted by Courts of law during more t_han a century. Any fundamental change in the structure of the Code might reader all those valuable precedents of no use. This will be an irreparable loss in the field of criminal law. It would also create problems for the Courts and the Members of the Bar. The Constitu­ tional requirements will be fulfilled by such amendments in law which may remove its inconsistencies if any with the Qur'an and the Sunnab. tp. 34] para. 106

(h)Coutltutlon of Alkistan (1973}-

-- Art. 203:O-Repugnancy to Injunctions of Islam-Islamisation of laws-Rights of God and Rights of men.

It was contended that culpable homicide amounting to murder lQatl-e­ 'amd) may be of two types; one involving rights of God (Haqooq-Allah) and the other involving rights of men (Haqooq-ul-'ebad). Some disputes resulting in the death directly affect only the accused and the family of the deceased as in the case. of a dispute over water or trespass by the cattle in the field of either party or tribal vengeance. Such matters would entail the rights of man (Haqooq-ul-'ebad) and permission to compose the difference by grant of pardon to the accused would help in the patching-up of differences, in diminishing the sense of vengefulness or vindictiveness and in cultivating amicable harmonious relations between the parties. In such cases Oiyat will be an apt alternative to retaliation (qisas). But if the murder directly involves or affects the society as in the case of unjustified murder (qatl-c- 11ahaq) by a person who on account of the depravity or immorality of his character is prone to take the law in his own band and thus creates or developes corruption in the society, and composition of the offence would not make him repent his misdeeds, the offence would entail the rights or God (Haqooq-Allah). In such a case the State can provide in law for sending the accused to the gallows notwitb!tandin!? pardon by the heirs of the deceased or in the alternative can sentence him to imprisontlleut for life and fine.. [p. 18) para. 33 There is no doubt that contrary to the offences of Hudood which in their entirety deal with violation of rights of God (Haqooq-All.:h), the offence of murder and offences of injuries to the bodies generally violate the right of man. It is for this reason that in 17:33 the power over a killer is given to the heir of the slain, no doubt subject to an admonition that he should not commit excess in wreaking retaliation. [p. 21] para. 44 Verse 5:33 provides the following sentences for waging war against Allah and raising corruption or mischief in the land :- "5:33 : The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hand and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Here-.ifter theirs will be an awful doom."

The sentences are,-( I) death, (2) cructlixiou, (Ji \:Ullrng uf hands and feet from the opposite side, and (4) expulsion out of the land wqich bas been

SFSC ALL P.uisTAN L!OAL Decisiom VoL,XXXlt Vol. V (Urdu Translation), p. 489 : Anwar Ahmad Qadri on Islamic Jurisprud. cnce in tbe Modern World and Shah Wali11llah's Hujjat-ul Lah-ul Baligha, Vol. ll, p. 431 ref.

(11)CotHlltotlon or Pakbtan (1973}- -- Art. 203-D-Islamisation of Laws-Categories of corruption punishable with death. [p. 27] Yet seq Siyasat-e-Sharia by Imam lbn-e-Taimla, p. 225, Translated by M11hammart Ismail Godarvi ref.

Per Aftab Hassalo, Member [Salahuclcllo Ahmed, Cbalrmao ud KarimaUah Durrani, Member agrttlog]-

(o)Constlhllloa of Pakistan (1973)- -- Art. 203-D-Islamisation of Laws-Right of God-Cases having an element of corruption-Governed by principle of Right of God­ Open to Court to sentence culprit· by way of tazir to death or imprisonment. [pp. 28, 54, 7]Z, KKK & A

(p)Coastltutloa or Pakistan {1973)- -- Art, 203-D read with Penal Code (XLV of 1860), S. 302-Jslami­ safion of laws-Cases of murder where right of Allah considered preponderant over right of man-To be visited with taz/r-Evidence insufficient from standard of Islamic Sbariat-Sentence of imprisonment and fine to be maintained. [pp. 29, 54, ?]AA, KKK & A Per Mtab HQISalo, Memller [Salahudclba Ahmed, Chairman, Zakaallab Lodbl and Karlmallab Darrui, Members agreehlg}- {q) Penal Code (XLV or 1860)- -- S. 302-Constitution of Pakistan (1973), Art. 203-O-Islamisa­ tion of Laws--lmprisonment-Islam does recognize imprisonment as ,punishment or for detention-Sentence of imprisonment and fine in S. 302, Penal Code, 1860, leviable by way of tazir and not repugnant to Holy Qur'an and Sunnah-Section 302, however, • requires to be amended so as to include by way of provisos, firstly, provision about persons not to be executed by way of retaliatioo, secondly, mar,ner of compounding of offence by heirs of deceased unless culprit liable for tazir, and thirdly, forum having authority to determine question of gequineness of compromise.-{Sentence]. [p. 30]8B Holy Q11r'.-,,,, Verse 33; Commentary on Holy Qur'an by Maulana Abdul Majid Dariyabadi, Muhammad Ali Jullwidhri ; Balgh-ul Maram by Allama Ibn-e Hajar Askalani, p. 242 and Kitab-ul Asar by Imam Muhammad, p. 265 ref.

(r)Penal Code (XLV or 1860)- -- S. 302 read with Constitution of Pakistan (1973). Art. 203-D­ lslamisation of laws--Compromise-Question of deciding genuineness of a compromise and permitting composition in a case of retaliation­ To be vested in High Court, whether· agreement of composition filed during trial, or during appeal, or after judgment of conviction but before execution of sentence. [p. 30]CC Per Aftab Hassaia, Member [Salahucldlo Ahmed, Chairman, Ag ha Ali Hydtr, Zakaallali Lodhl aod Karimallah DurraDJ, Members agreelq)- {.,) Criminal Procedure Code (V of 1898)- - Ss. 401, 402, 402-A & 402-B and Penal Code (XLV of 1860), Ss. 54 & 55 read with Constitution of Pakistan (1973), Art. 203-D-Suspension, remission, and commutation of sentences­ Federal or Proviocial Government, held, cannot press into servi� jurisdiction conferred by Ss. 401 & 402-B, Cr. P. C. to commute or

1980 MUHAMMAD RIAz V. FEDERAL GOVERNMBNT FSC 1 (Salal111ddin Ahmed, Chairman) fixed by Court-Law requiring amendment, judgment can become effective only after amendment as ordered by Court made by relevant Legislaturc.-((nterpretation of statutes}. (pp. 13, 45, 53}/, VV & HHH Per Aftab H...ln, Member (Salabaddln Ahmed, CbalrlJ!an, Zakaallall Loclbl and Karim ■llah Durrani, Members agreeing}-

(k)Conttlbltlon of Pakbtan (1973)- - Art. 203-D-Repugnancy to Injunctions of Islam-Principles of declaration of law as repugnant to teachings of Islam. [pp. 14, 15 to 17]L et seq, M-R Dr. Tanzi/-ur-Rehman on Majmua Qawaneen-e-lsTam, Vol. I, pp. 18- 19 ; Dr. Muhammad lt.jbal's Lecture on The Principle of Movement in the Structure of Islam ; A/lama Shabir Ahmad Usman;'s Commentary of the Holy Qur'an, pp. 33, 138, 157, 159, 363 and Elam-ul-Mowaqqi'cen by Hafiz Jbn-e-Qayyum, Vol. II, pp. 772, 822 & 843 ref'.

(kl)Con1tlhltloo or Pa.kistan (1973)- -- Art. 203-D-Repugnancy to teachings of Islam-Islamisation of laws-Homicide-Justified culpable homicide-Distinct from culpable homicide amounting to murder-Qur'aoic text provides for two alternatives : punishment of retaliation and in case of life of killer being pardoned punishment of payment of Diyat, portion of which could be pardoned by heirs or successors of deceased.-{Diyat]. [pp. 21, 22, 23]S, T &U Holy Qur'an Verses 4:29, 4: 92, 4:93, 5:32, 6:152, 17:33, 2:205, 5:45, 2:178, 2:179, 2:263, 2:134, 4:17, 24:22, 42:43, 45:14, 7:199; lbn-e-Kather's Com­ mentary on Holy Qur'an, Verse 17:33 ; Shah Waliu/lah on Hujjat-ul-Lah ul Baligha, Translated by Mola11a Abu Muhammad Abdul Haq Haqani, Vol. 11, p. 431 ; Maula11a Maqbool Ahmad's Commentary on Jafri Sect ; Sahib Bukhari, Vol. m, Hadis 1774, 177S ; Balugh-ul Mar'am by A/lama fbn-e Hajar-As-Kalani, Hadis 1204; Mishkat, Vol. II';� 'p. 171; Sunan Abu Daood, Vol. HI, p. 413, Hadis 1091; Sunan lbn-e Maja, Vol. II, Hadis 399, 400, 401 ; Maula11a Maudoodi on Taf himul Qur'an, Vol. II, p. 614; Commentaries on Holy Qur'an by Maulana Abdul Majid Dariyabadi, Maulana Ashraf Ali and Maulana Shabir Ahmad Usman{ ref. (() Criminal Procedure Code (V of 1898)- - S. 345-Declaration-Section 345, Cr. P. C.-Deals with procedure of Courts-Federal Shariat Court, held, debarred from giving a declara­ tion or directions for its amendment-[Per Salahuddin Ahmed, Chairman-Section not procedural to extent of denying heirs of deceased right of pardon or Qisas on payment of Diyat].-{Jurisdiction]. [pp. 24, 31, 8]V, DD, EE & B

(m)Penal Code (XLV of 1860)- - S. 302 read with Constitution of Pakistan (1973), Art. 203-D­ lslamisation of laws-Contention that Qur'anic verse confers right of killing on heirs only-Held, not correct-Verse on other hand gives a right to society or State to arrange for execution of death penalty. [pp. 24, 25]W & X Holy Qur'a11, Verse 17:33. 5:33 ; Commentaries on Holy Qur"an by Muhammad Ali Jullundhri, Ma1Ja11a Shabir Ahmad Usmani and Maulana A�dul Majid Dariyabadi; Jslami Faujdari Qanoon by Salama/ Ali Khan, p. 163; Krt ab-ul-lkhtiyar on Fathul-Taqdir; Kitabul Fiqh by Abdur Rehmcm AI-Jaziri,

SbFSC ALL PAX:ffl'AN U!OAL Dl!ciSIONS VOL. XXXU death executable-Payment if ma4e in Court, money to be distributed amongst heirs of deceased according to his personal law. [p, 38JPP (bb) Pffl81 Code (XLV of 1860)- -- Ss. 302, 304 & 304-A read with Constitution of Pakistan (1973), Art. 203-D-Person insane at time of execution of sentence or killing his own son-Cannot be subjected to Qisas.-{Qisas-Insanity). [p. 39)QQ

(cc)Constitution of Pakistan (1973)- - Art. 203-D-Islamisation of laws-Compensation-Rules about, as lai<l down in Sunnah.-[Compensation). [p. 42)TT et seq Per Zakadab LoAi, Member- ("1) feaJ Code (XLV of 1860)-- -- Ss. 319 to 348 read with Constitution 'of Pakistan (1973), Art. 203-D-Word "Qisas" - Means equalisatio·n - Equalisation· however always considered feasible in other suitable ways-Doctors of Islamic jurisprudence hence substituted mode of punishment of "eye for eye" etc. by imprisonment and flogging etc. and such diversion never considered offensive to dictates and policy of Holy Qur•an.-{Qisas­ Words and phrases). fpp. 46, 48, 41) YY, AAA & SS Per ZakaaJlah Lodlal, Member [Salalladdln Ahmed, Chairman and Aftab H-.ID, Member aot agreeina]-

(tt)Constltutloe of Pakistan (1973}- --.. Art. 203-D-Jslamisation of Laws-Scheme of penology in blam and methodology of its laws in field of crimes. [p. 46]ZZ et seq Holy Qur'an, Verses 5:45 and 42:40 ref.

Per Kui..uab Dllmml, Member.....

(//) Pe11al Code (XLV of 1860}- -- S. 302--Constitution of Pakistan (1973), Art. 203-D-Murder­ Qatlc-'Amd-Heirs of deceased in Qatle-'Amd-Held, entitled to grant total pardon to culprit.-[Qatle-'Amd]. [pp. 54, 58]/JJ & MMM Holy Qur'un, Verses 178, 5:33 and Sahil, Bukhari, Vol, II, published by Quran Mahal, Karachi rel. .

Per Salaha61ha Ahmed, Chairmu-

(gg)eo.tltatfoo of Pakistan (1973}- '-- Art. 203-D-Islamisation of laws-Word "Diyat•-Diyat primarily a matter between aggrieved party and offender-Court, held, steps in to help arrive at a reasonable settlement and hence free to use its discretion in light of relevant circumstances prevail.ing at time and capacity of ol!endcr to pay.-{Diyat]. [p. 8]F Sharfat Petition No. 15 of 1979 lLabore) Nemo for Petitioner.

Saeed A. Shaikh, Deputy Attorney-General for Pakistan and St,. Ria: Ahmad, Advocate-General (Punjab) for Attorney-General for Pakistan. Shariat Petitions Nos. 69 of 1979 and 9 of 1980 (Labore) Mum- Nazir Akhtar, Advocate for Petitioner.

Saeed A, Shaikh, Deputy Attor-r-Oencral for Pakistan for Respondent No. l.

Sh. Rurz Ahmad, Advoca�neral (Punjab) for RcspondcDt No. 2. Dates _0f btariog: 26th.and 21th 1uly 1980.

1980 MUHAMMAD RIAZ V. FeDFJlAL GoVB!tNMl!�T FSC841 (Salahuddin Ahmed, Chairman)

remit sentence of convict in cases wllere right of man is treated to be predofl!inant-State however possesses such right in cases of p reponderance of right of Allah and composition not pcrmissible.­ [Tazir]. [pp. 32, 8, 7, 10, 52, 45]FF, D, E, A, G, UU & EEE fer Aftab Hassaln, Mtmbet [Salahaddia Ahmed, Chairman, Z1kaal.11b Lffhl and Karimallab Durrani, Mem�en 11reefll&)--

(t)Penal Code (XLV of 1860}- - S. 302 read with Constitution of Pakistan (1973). Art. 203-D­ Jslamisation of laws-Sentence-All participants in murder of one person-Held, liable to be put to death irrespective of their number (according to Traditions).-{Sentencc]. [p. 32]GG Balughul Maram by A/lama Ibne Hajar Askalanl, Tradition No. 1203 and Kitab-ul-Fiqh by Abdul 'Rehman Aljazirl• Vol. V, p. 544 ref. Per Aftab ff11911lo, Mtmbtl [Sal1baclclia Ah- Chairman. Zak1allab Lodbi ... Karimallah Durrani, Memben •&retia&)-

(11)Penal Code (XLY 0£ 1860}- - S. 302 read with Constitution of Pakistan (1973), Art. 203-D­ Jslamisation of Laws-Abetment-Sentence - Premeditated homicide committed under coercion by violence-Renders liable not only person exercising coercion but also person allowing himself to be intimidated.­ [Sentence-Abetment]. [pp. 33, 52]HH & DDD Minhaj-ut-Talibin, p. 397 ref.

(v)Peaal Code (XLV of 1166)--,, -- S. 304 read with Constitution of Pakistan (1973), Art. 203-D­ Culpable homicide not amounting to murder-Murder-Kinds of, according to Hanafi Fiqh.-{Culpable homicide not amounting to murder]. [p. 33]//

(x)Penal Code (XLV or 1860}- -- Ss. 302 & 304 read with Constitution of Pakistan (1973), Art. 203-D­ Murder-Islami:;ation of Laws-Intentional or premeditated murder­ Punishable with death or retaliation-Other categories of murder­ Punishable by payment of blood-money and offering Katrara for expiation of sin.-[Sentence-Kaffara]. [p. 33]1/ ()·) Peal CoN (XLV or 1860)- -- S. 299 read with Constitution of Pakistan {1973), Art. 203-0--,. Islarnisation of Laws-Culpable homicide-Kinds and punishments of, according to Shariah.-[Culpable homicide-Punishment]. [p. 34JMM Ho!y Qur'an, Verses 5:32, 6:152, 17:33, 4:92 and Islami Faujdari Qanoon by Salamat Ali Khan, p. 178, para, 513 ref.

(z)P-1 Code (XL\' of 1860}- • - S. 300 read with Constitution of Pakistan (1973), Art. 203-O-Self­ defence, right of-Right of self-defcoce exceeded in exercise-Does not amount to murder-Such right if exercised despite knowledge of no case of ,self-defence being made out-Amounts to murder-{Private defence, right ofl. [p. 31]NN Ainu! Hedaya, Vol. IV, p. 573; Abu Daood, VoL III, Tradition 1114, p. 424 and Durrul Mukhtar, Vol. IV, p. 328 ref. (Ila) P,-J Colle (XLV or 1860}- - Ss. 302, 304 & 304-A read withConstitution of Paki,tan (1973), Art. 203-D-Blood-money, failure to pay....a.Accused convict failing to make required payment of blood-money in Coun-SCntcncc. of

8dFSC ALL PAKISTAN LEGAL DECISIONS Vor.. XXXll Keeping in mind the Injunctions of Islain which permits the heirs the deceased to pardon 'Qisas' on payment of 'Diyat', lam of the opinion that section 345(7), Cr. P.. C. affects their right inasmuch as the righ is denied. The section, therefore, to this extent, is not merely procedur} in character, and J am inclined to agree with the decision of the case o Gui Hassan reported in P L D 1980 Pesh. l on this question. Left to itself, however, section 345 (7) may be procedural.

This is, however, not much material for our present purpose. We arc required to examine the provisions of section 302 etc., P. P. C. to see whether they are repugnant to the Injunctions of Islam, and if so, to what extent. There is no inhibition in considering this question.

As to how and in what manner the decision of the Court will be implemented is for the law-maker to determine. The views expressed by the /c Court excluding of course the decision of the Court are meant for the, consideration and assistance of the law-maker.

As regards the nature of pardon permissible in the case of murder I am of the opinion that pardon of 'Qisas' on payment of 'Diyat' only is permissible. This is evident from S. Il, verse 178 quoted elsewhere. The majority of 'Ahadith' quoted before us also support this view. These Ahadis, which have already been mentioned, say that there are only two courses open to the heirs of the deceased: "Qisas" or "Diyat". These Ahadis are nearest to the said verse of the Holy Qur'an, which is the pertinent lnjunction on the question of •� J:o"'.

Jn providing for punishment in respect of serious hurt when Court finds that, 'Qisas' cannot be ordered, whipping should :�0 prescribed. I say so because infliction of physical pain will not only give some satisfaction to the aggrieved party, bi.t is apt to act as a deterrent, which is the object and purpose of 'Qisas• in Islamic Injunctions. Whitt considering the question of punishment we should not be forgetfu of the reality that we have a society consisting of Muslims anll non-Muslims.�E It is, therefore, desirable that some punishments by way of 'Taazir' should also be retained �r incorporated as punishments, 'Diyat' is a matter primarily between the aggrieved party and th offender. The Court steps in to help them to finaJly arrive at a reasonabl .settleluent. The Court must, therefore, be free to use its discretion in th�F light of the relevant circumstances prevailing at the time and the capacit of the offender to pay. The Court is obviously the trial Court, and finally th Appellate Court.

As regards Petitions 1 and 20 of 1979-Karachi as I have not had the bene­ fit of hearing the parties concerned and the questions raised are of importance I refrain from expressing any opinion at this stage, These two petitions are aocordingly disposed of, I join with the learned Members Qf the Court, and ex:press my appr�ia­ tion of the invaluable assistance rendered to the Court by Mr. Khalid M. Ishaq, an eminent advocate of -Pakistan. At the request of the Court Mr. lshaq readily agreed to act as amicus curiae. We are also thankful to Mr. Habib-ur-Rahtnan Siddiqui Kandhalvi for his. assistance to the Court. He not only took pains to submit bis written opinion but also appeared l;efore the Court and addressed us. Our thank.& are also due to the Islamic Research Council, Jslamab3d. for fwuisbini us witb their opin.ipn oii

1980 MUHAMMAD RiAZ V. F�ERAL GoVBRNMl!NT FS C Sc (Salahuddin Ahmed, Chairman) Shariat Petitions Nos. 1 and 12 of 1979 (Karachi) Muhammad Shafi Muhammadi, Advocate for Petitionet, Saeed A. Shaikh, Deputy Attorney-General for Pakistan for Attorney­ General for Pakistan.

M. I. MeT1Wn, Additional Advocate-General (Sind) for Advocate-General (Sind).

Dates of hearing : 28th and 30th July 1980, Shariat Petition No. 2 of 1979 (Karachi) Petitioner in person.

Saeed A. Shaik/r, Deputy Attorney-General for Pakistan for Attorney- General for Pakistan.

M. I. Memon, Additional Advocate-General (Sind) for Advocate-Genera[ (Sind).

Shariat Petition No. 20 of B79 (Karachi) Allahdlno G. Memon, Advocate for Petitioner.

Saeed A. Shaikh, Deputy Attorney-General for Pakistan. for Attorney- General for Pakistan.

M. /. Memon, Additional Advocate-General (Sind) for Advocate-General (Sind).

Date of hearing : 2nd August 1980.

Shariat Petition No. 7 of 1980 (Karachi) Raja Haq Nawaz Khan, Advocate for Petitioner.

Saeed A. S/raikh, Deputy Attorney-General for Pakist�n for Attorney. General for Pakistan.

M. I. MeT1Wn., Additional Advocate-General (Sind) for Advocate-General (Sind), Dates of hearing : 28th, 29th and 30th July 1980. Shariat Petition No, 4 of 1980 (Karachi) Petitioner in person, Saeed A. Shaikh, Deputy Attorney-General for Pakistan for Attorney- General for PakicAao.

Dates of hearing : 3rd. 9th and 10th August i980. Khalid M. lshaq, Senior Advocate: AmlcUJ curiae (in all Cases). Hablbur Rehman K.andhaM, Jurisconsult (in all Cases). Dates of bearing : 9th and t0ti. August 1960.

JUDOMBNT

SALAHUDDIN AHMED CHAilllAN•....:J have carefully perused the erudit judgment . proposed to be delivered by my learned brother, Aftab HU6Saiol if Judge. I substantially agree with him and his conclusions. I should, howr:vec lik� to make some observations.

tOFS C ALL PAJCisrAN Ll!0At DEcisiom �oc.. XXXll be so repugnant, ceaso to have clfcct on the day on which the decision of the Court takes effect.

(4)A decision of the Court ,hall be e:itpressed in terms of the opinion of the majority of its members and shall be published in the official Gazette.''

4.According to Clause (2) of Article 203-H of the said Order, "all proceedings under Clause (I} of Article 203 of the Constitution that may be pending before any High Court, immediately before the commencement or this Chapter shall stand transferred to the O,urt, and shall be dealt with by the Court from the stage from which they are transferred". It is also to be seen that the appeals from this Court, as from the decision of the Shariat Benches of the High Court are to be presented before the Appellate Shariat Bench of the Supreme Court.

5.The powers, jurisdiction and functions of the Shariat Benches o the High Court were identical even in terms, to the powers of this Court The Pesqawar Bench had specified a date from which the order was to tak effect and we are informed, that the Government of Pakistan had· preferre an appeal against the said decision, which is pending before the Suprem Court. No stay has so far been granted and looking to the object and th scheme of the law, it cannot be conceived, that an offence of murder i the N.-W. F. P., will be dealt with differently from the rest of the provinces As a successor Court in every sense of the word, though different! constituted, to my mind, we stand debarred from adjudicating the same issue.i once again.

6.It has been held by the Peshawar Bench, that an offence of murder "can be condoned by pardon, or on payment of •oiyat', otherwise the convict was to face the penalty of death. The same principle will be attracted in the cases of abettors under ·sections 109 and 114, P. P. C. 4 In support thereof, reliance is plaoed on two Ahadith as to be found on page 70, Vol. II of Mishkat-Al-Masabih, as translated in English, by Jam� Robson ; "lbne Umar reported the Prophet as saying, if a man sci:r.cs a man and another kills him, the man who killed him is to be killed and the one, who seized him is to be imprisoned, Daraqutni transmitted it Said bin AI-Musayyib told that Umar bin Al-Kbattab killed five 01 seven people for one man whom they had killed treacherously Umar saying 'If the people of San•a• had conspired against him, I would have killed them all'. Malik transmitted it, and Bukhar transmitted something similar on the authority of lbne Umar." 7, The question of any compensation, as envisaged under section 544-J of the Code of Criminal Procedure, whether the offender meets the Suprem, penalty under the Sharia Law, is pardoned, or pavs \Diyat' does not arise because it will be in e:itcess of the penalty prescribed.

8.The contentions raised against the provisions of sections 337 to 339 Cr. P. C. and sections 133 and 134 of the Evidence Act were not pressed They are otherwise, devoid of merit, as any law relating to tbe procedur of any Court or Tribunal cannot be assailed until the e:itpiration of thrc years under the Scheme of the President's Order referred to above.

9.As for the intentional bodily hurts as to be found in section ij_ke 325, 326, P. P. C., the punishment as prescribed in the Holy- Qur'an i

1980 MtmAWAD RIAZ V. FEDERAL GOVBRNMt!NT FSC9 (Agl,a Ali Hyder, Member) questions referred to them The opinion is on record. We have also been ably assisted by the learned Advocates appearing on behalf of the various petitions. It has been a pleasant surprise for me to find that the learned Advocates have started familiarising themselves with the Islamic Injunctions, and considering the short time in which they have done so they have acquitted themselves admirably. It is equally creditable for them to accept with grace the change in their role, namely transition from the adversary to the role of a friend of the Court.

AOHA Au HYDBR, MEMBl!R.-There are 9 Shariat Petitions; 7 of them call in question, the sentence prescribed for an offence under section 302 of the Pakistan Penal Code, being repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Suonah. There is further n challenge to the provisions of sections 10} and Ill, P. P. C. and sections 345,381,401 to 402-8 and 544-A, Cr. P. C. Sections 337 to 339, Cr. P. C. and 114-8 and 133 of Evidence Act have been challenged in the next petition and the provisions of sections 325, 3:7.C, 329, 331, 333, 335 and 338 of the Penal Code in the last one. The same will be disposed of by this composite judgment.

2.A preliminary objection was raised, about the competency of this Court to adjudicate on the provisions of section 302, P. P. C., and sections 345(7),401 to 402(8) of the Code of Criminal Procedure, afresh, in view of the decision of the Shariat Bench of the Pesha\\'ar High Court in Shariat Peti\ion No. 7 of 1979 as reported in P L D 1980 Pesh. I. I am of the opinion that the contention must prevail.

3.The Federal Shariat Court was constituted by the Constitution (Amendment) Order, 1980, being President's Order No. l of 1980, which was promulgated on the 27th of May 1980. The powers, jurisdiction and functions of this Court are to be found in Article 203-0 thereof, which reads as under :

"203-D. Powers, jttrisdiction and functions of the Court.-(1) The Court may. on the petition of a citizen of Pakistan or the Federal Government ·or a Pmvincial Government, examine and decide the question _whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.

(2)If the Court decides that any !aw or provision of law is repugnant to the. Injunctions o[ Islam, it shall set out in its decision-

(a)the reasons for its holding that opinion; and

(b)the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect.

(3)If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam-

(a)the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor i n the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and {b) such law or provision shall, to the extent to which it is held to

12 FS C ALL PAKISTAN LEGAL DECISIONS VoL.xxxi based on the evidence of an approver or an unrrliable witnes� is no judgment in the eyes of law and in any case where there is difference of opinion regarding the criminality of an accused person between the jw:lgcs the majority finding against the accused while the minority holding in bis favour the accused should be given the benefit of doubt. Lastly it is urged in that petition that if a person merely abets a murder be cannot be prJnished with death as the punishment of Qisas can be wreaked from the actual murderer only.

4.Petition No. 4/80-Karachi challenges the provisions about sentence in sections 325, 326, 329, 331, 333, 335 and 338, and non-compoundability of some of these offences.

5.The content.ions in these petitions, to be more specific, may be summarised as follows:- (!) Section 302 provides for sentence of death or life imprisonment and fine. The contention is that the sentence of fine and life imprisonment should be substituted by one of blood-money (Diyat) if the legal heirs of the deceased victim pardon the accused.

(2)Alternatively the offence of murder should be made compoundable under section 345, Cr. P. C. read with its &:hedule U.

(3)The punishment-of imprisonment and/or fine for other offences of body viz, sections 325, 326, 329, 331, 333, 335 and 338 should be replaced by tbc punishment of retaliation (Qasas) or in case of pardon by the accused of compensation (ursh) for the injury caused to the victim and all these offences should be made compoundable in the Second Schedule of the Code of Criminal Procedure read with its section 345 (S. P. No. 4/80-Karachi).

(4)No person other than the �ctual. killer, despite being an abettor, can be subjected to the punishment of retaliation (Qisas) S. P. No, 1/79-Karacbi).

(5)In case death of one person is caused by several persons all those persons cannot be ordered to be put to death or executed.

(6)The provisions of s.x:tion 381, Cr. P. C. which renders execution of an accused person obligatory are contrary to Shariat since the offence can be compounded by tbe heirs of tbe accused or of the deceased or the victim himself on the one hand and the accused on the other even after the pronouncement of final judgment by the Court.

(7)Section 544-A which provides for compulsory imposition of fine which may in its turn be payable to the victim or his legal heirs is bad for the reasons that the amount of compensation is not in conformity with the gravity of the offence, it should be equal to the standard diyat or ursh.

(8)The provision, in the Criminal Procedure Code and the Evidence Act about the admissibility of evidence of an approver and grant of pardon to an accomplice (in sections 337, 338 & 339, Cr. P. C. and sections 114(b) and 133 of Evidence Act) cannot stand the test of scrutiny under Shariat since such an accomplice in case of confession is liable to be subjected to punishment, a,1d cannot furnish reliable evidence insisted upon by Shariat.

(9)A judgment based upon the evidence of an approver or an accomplioe should be declared to be no judgment in the eyes of law.

}980 MuuAMMA·D RiAZ v. FEDERAL GOVERNMENT F SC 11 lA/tab Hussain, Member)

. Qisas, (eye for an eye, tooth for a tooth etc.) pardon of the offender by the jojuted person, or the payment of 'Diyat'. There is no Qisas in uninten­ tional hurts. However, in Sharia, Qisas is limited to cease where the limb i& cut from the very joint. The bone can neither be cut or injured therein. /'.J a corollary there is no Qisas, in case of a fracture of a bone, for the cutting of the entire nose, or the tongue or a part of the lip. (The list given b J!IC is not exhaustive). If the injured person, chooses to pardon th offender, or accepts 'Diyat', which i� to be satisfactorily proved, there i 00 further question of any Ta'azir at aJI. This, as to be found in the latte pa rt of S. II, 178 "is a concession from your Lord. After this whoseve exceeds the limits shall be in grave pe nalty". The text of the Qur'an is very • ,Jear. There are only three situations envisaged and the Court cannot interpose, aod·say this is not the end of the matter, and some additional punishment by way of a sentence of imprisonment or fine has still to be reckoned with. The quality of mercy is not strained; the payment of 'Diyat' should provide the requisite satisfaction to the victim. After all, why should an accused agree, to appear the victim, if he is still kept gue ssing about his fate?

10.As a result, I will dismiss, S. P. No. 20/79-Karachi and S P. 1< No. 1/79-Karachi and allow the remaining petitions. The amendments to be made accordingly, in accordance with the laws of Sharia, as the Court's function is only to construe the law, and not to legislate. J 1. Before parting with the Judgment, I would like to express our indebtedness to Mr. Khalid Ishaq, for his very able assistance as an amicus curiae, and at such a short notice indeed.

AFTAB HUSSAIN, MEMBER.-This judgment will dispose of 9 Shariat Petitions bearing the folio wing Nos.-

(1)S. P. No. 13/79-Lahore.

(2)S. P. No. 69/79-Lahore.

(3)S. P. No. 9/80-Lahore.

(4)S. P. No. 2/79-Karachi.

(5)S. P. No. 12/79-Karachi.

(6)S. P. No. 7/80-Karacbi.

(7)S. P. No. 4/80-Karachi.

(8)S. P. No. 1/79-Karachi.

(9)S. P. No. 20/79-Karachi.

2.The main point in the first 6 petitions is the repugnancy of sec­ tion 302, P. P. C. and sections 345 and 381, Cr. P. C. with the holy Qur'an and Sunnah. In addition to this in S. P. No. 12/79-Karachi the provisions of sections 109 and 111, P. P. C. which deal wi\li the sentence of an abettor are also challenged as being repugnant to the Shariat. There also a ch allenge in S. P. 13/79-Karachi to :;cction� 401 to 402-B, 544-A, Cr. P. C. and 134, Evidence Act.

3.In the last mentioned 2 petitions S. P. No. 1/79-Karachi and S. P. No. 20/79-Karachi, the provisions of sections 337, 338 and 339, Cr. P. C. are challenged along with the provision� of sections 114-B and 133, Evidence Act. lt is also urged in S. P. No. 1/79-Karacbi that a judgment of conviction

14 F SC ALL PAKISTAN LEGAL DECISIONS VoL. XXXJ1 exist has not impressed me. They are still on the statute books and nof amendment can be read into them unless they arc amended in the mannct4 directed by the High Court.

1 I. I am also not in agreement with the submission made at the Ba that this Court being in all respects a successor Court of the Peshawa Shariat Bench, is bound by that decision. Firstly that decision was by a Fut Bench of three Judges while the present cases are being heard by a large Bench of five members of this Court. Even as a successor Court it ha jurisdiction to differ from the Shariat Bench of Peshawar. Secondly th jurisdiction of the Peshawar Bench being limited to its own territories i judgment could not bind any other High Court. This flaw of territoria jurisdiction has been removed now by the setting up of this Federal Cou which has jurisdiction throughout Pakistan. For these reasons the preliminar objections is repelled.

12.Before proceeding to consider the questions raised in lhis petition I would like to deal with the extent of jurisdiction of this Court. Article '227 of the Constitution provides that existing laws shall be brought in conformity with the injunctions as laid down in the Holy Qur'an and Sunnah of the Prophet (peace be upon him) and no law in future shall be made which is repugnant to the Holy Qur'an and Sunnah. The jurisdiction of thi'I Court under Article 203-D is, therefore, limited to discovering the repugnance of a law or provision of Jaw to the holy Qur'ao and Sunnah.

13.The principle under which the rc.pugnancc of fl particular law to the Injunctions of Islam has to be judged is thus limited to the consideration of the question whether the laws sought to be challenged before this Court ere in conformity with the Iojuoctions of Islam as laid down in the Holy Qur'an and Sunnah of the Prophet (peace be upon him). It, would. therefore, be clear that the language of the Constitution does not warrant any attempts at harmonizing the laws with any particular jurisprudence (Fiqh) or jurisprudence of any particular school of thought or sect. On the other band it appears that reference to any particular doctrinal approach (fiqh has been eliminated deliberately so as to enable the Courts to test the validit of a law only on the crite1 ia of commendments laid down in the holy Qur'a or the Sunnah of the Prophet (peace be upon him).

14.Looked in this context it would be clear that though doctrina approach (fiqh) of different schools of thought may have a persuasiv value which it undoubtedly has and in many cases full assistance may obtained from it in the interpretation of the texts of the holy Qur'an o traditions yet this Court cannot blindly follow the doctrines (fiqh) of particular sect. If the intention of the Constitution had been to apply sectarian doctrine to matters of public law (as distinguished from persona law) all the difficulty would have been obviated by replacing the preseo public law by Fatawa Alamgiri. But clearly this is n,ot the object of th Constitution to which it appears abhorrent to demolish the existing legal structure in order to raise a new structure of public law. The constitutiona intent is only to repair the existing structure by eliminating from it what i repugnant to the divine law comprised in the holy Qμr'an and the Sunnab o the Prophet (peace be upon him) and amt:nding the law to make it confor to the said divine law.

15.Interpretations of the divine law is a matter which would require \he facility of consultiog opinions of all our renowned jurists. The possibility

1980 MUHAMMAD RiAz v. F'EDBRAL GOVl!RNMJ!NT F SC J� (A/tab Hussain, Member)

(10)The provisions of sections 109 and I I I, P. P. C. which provide for the bame punishment to an abettor as provided for the actual culprit cannot be sustained in regard to Qisas since according to Shariat only the actual killer can be executed.

(11)Any difference of opinion among the Judges in regard to the culpability of an accused person entitles him to benefit of doubt and as such to acquittal, notwithstanding the majority opinion being againrt the accused.

6.A preliminary objection was raised by Mr. Khalid Ishaq that since the matter under discussion has already been the subject-matter of decision in case Gui Hassan Khan v. Government of Pakistan (I), (Shariat Bench), which has become effective, the petitions challenging those matters which have been dealt with by the Peshawar High Court arc, therefore, ineffective. Other learned counsel argued in favour of the above judgment being binding on this Court.

7.The Peshawar High Court held in the above case that sections 54-55 of the Pakistan Penal Code and sections 401, 402, 402-A and 402-B of the Criminal Procedure Code are repugnant to the Injunctions of Islam. It was further held that section 345(7) and relevant parts of the Second Schedule of Cr. P. C. in so far as offences concerning human body lVlde Chapter XVI of the Pakistan Penal Code) are concerned, are repugnant to the Holy Qur'ao and Sunnah. The Court, however, declared that the penalty prescribed in Chapter XVI of the Pakistan Penal Code with respect to offences against human body pa.rticularly section 302 can be made to conform to the Injunc­ tions of Islam by addition of provisions for pardon or penalty of Diyat.

8.Article 203-D of the Constitution provides that if the Federal Shariat Court finds that any provision of law is repugnant to the Injunctions of Islam it shall state the extent to which such law or any of its provision is so repugnant. It further provides that if any law or provision of law is found by the Court to be so repugnant the President with respect to a matter in the ·Federal or Concurrent Legislative List, or the Provincial Government in the case of law with respect to a matter not �numerated in any of these lists shall take steps to amend the law so as to bring it in conformity with the provision of Islam and such law or its provisions as are held to be repugnant shall cease to have effect on the day on which the judgment of the Court takes effect. Similar were the powers of the Shariat Benches of the High Courts.

9.The· above Constitutional provision contemplates that when a law can be rendered ineffective without leaving a vacuum it shall cease to have effect after the expiry of the time fixed by the Court. But in case the law requires amendment, the judgment can become effective. only after the amendment as ordered by the Court is made by the relevant Legislature, 10. Now in the present case the High Court of Peshawar did strik down the provi\ion of sections 401 to 402-B but the same cannot be sai about section 302, P. P. C. and section 34S and II Schedule of the Code o Criminal Procedure. Section 34S and the said Schedule do not provide fo compoundability of an offence of· murder and some other bodily injuries. It would, therefore, require amendment. Siwilarly 302 would requirci amendment by addition of provisions about pardon or payment of coinpensa1 tion. In these circumstances the argument that these laws have ceased to (1) P L D 1980 Pesh. 1

16 FSC ALL PAt:iSTAN L80AL Ol!Cis!ONS VOL.XXXq

(8)In case there be no guidance in the Holy Qur•au and Sunuah aud the opinions of different schools of thoughts also be not acceptable, to resort to Jjtihad.

18.Thus the Council also accepts the principle of choosing from the opinions of our renowned jurists and as a last resort of embarking up on Ijtihad, the object in either case being to reconcile the requirement of the present era with the teaching of the Qur'an and the Sunnah.

19.Now while venturing upon the function constitutionally a ssigned to this Court it is necessary to remove a serious misunderstanding and als� to reiterate the established principles of interpretation of law of the Qur'an. The general view which is not based upon any comparative study, is that our statute law and the law of the Qur'an are poles as under and the twain shall.never meet. The view is obviously fallacious. The shariah has implie dly and sometimes expressly approved the customs and usages of the Arab society save to the extent of their incongruity to the tenets laid down by the Qur'an and the Sunnah particularly what is declared as unlawful (rl.,a) or lawful (JY..). lo this respect the view of Shah Waliullah has been summed up as follows by Dr. Muhammad Iqbal in his lecture 'The Principle of Movement in the Structure of Islam' :

"Shah Waliullah bas a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method or teaching, according to Shah Waliullah, is that, generally speaking, the law revealed by a Prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically scot. The prophet who aims at all embracing principles, however, can neither reveal different principles for different peoples, nor leave them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up or a universal shariat. In doing so he accentuates the principles underly­ ing the s�ial life of all mankind, and applies them to concrete cases in the light of the specific Hadis of the people immediately before him.''

20.Islam tbu� recognised that not all customs and usages of the Arab were repugnant to Sbariah ; and maintained most of them as good law. Our statute laws whether inherited from the British Government or enact after Independence are based upon thi: principle of common good and justice 11 equity and good conscience which is the same as the prindples of public go (Masaleh Mursila) of Imam Malik and principle of Istihsan or Imam Ab Hanifa. A fortiori these laws must be more in harmony with Shariah. I some respects the statute law may not fulfil the standard or the law of th Qur'an and may also be repugnant to it but such instances are few •.

21.Consequently the first principle to be invoked is to test these ta on the principles oi Halal (lawfulness) and Haram (unlawfulness) as laid dow in the divine law.

22.The holy Qur•an has expressly stated what is unlawful and prohibited The Prophet of God has made additions to this category, but it cannot b doubted that the authority to declare something unlawful or prohibited r with the Almighty or His Holy Prophet (peace be upon him) and it is no lawful for any person to render unlawful what is lawful (see 66 : 1). ••o Prophet why baonest thou that which Allah bath made lawful for thee:•

1980 MUHAMMAD RiAz V. FEDERAL GOVERNMl!NT PSC U (Aftab Hussain, Member) cannot be ruled out that the interpretation on a particular point by .i jurist belonging to school of thought different from the one to which I belong may commend itself to me as being more in line with the requirements of the modern Muslim Society in the country. In view of the Compatibility of such view with the requirements of our society it will be logically realistic to adopt it as affording guidance in the task assigned to this Court. Some problems faced by this country may, however, be absolutely new problems for which no jurisprudence may provide any guidance. It is also possible that while differing on a point our old jurists might have taken into considera­ tion different alternative but might have either ignored some alternative or the requirements of the modern society may produce or generate a new option. It may not be possible in such cases to rely upon their view. The elimination from the text of the Constitution of reliance upon a particular sectarian doctrine is not, therefore, without reason.

16.In my view the methodology to remove from our Jaws any incon gruity with the holy Qur'an and Sunnah should be as follows :-.

(1)To find in the first instance the relevant verse or verses in the hol Qur'an regarding the question in issue ;

(2)To fin'd out the relevant Hadis (Tradition, of the Holy Prophet (pea .be upon him.

(3)To discovel' the intent of the Qur'anic verse from the Traditions o the holy Prophet (peace be upon him) ;

t4) To ascertain the opinions of and views adopted by all jurists ol renown on that matter and to examine their reasoning in order t detennine their harmony with the present day requirements, or if pos sible to modulate them to the demand of the modern age ; and (5) To discover and apply as a last resort any other option which shoul no doubt be in harmony with the holy Qur'an and Sunnah.

17.It may be worthwhile mentioning that more or less the same principles are adopted by the Council of Islamic Ideology, es would be clear from pages 18 and 19 of 'Majmua Qawaneen-e-Islam, Vol. I, by Dr. Tanzil-ur­ Rehman (now Justice). Principles followed by the Council are :-

(1)To discover the t:xt of the Holy Qur'an and to refer to it.

(2)If the lnj�nction in the holy Qur'an is clear and does not require any further elucidation or warrant any difference of opinion, to accept it without any hesitation.

(3)If there be any difference of opinion on the interpretation of tho Injunctions in the holy Qur'an, to find out the relevant Hadis, (4) If there be different Traditions aoiif it be difficult to harmonise them, to find out the correct Hadis on the prindples laid down for discovery of such Hadis.

(5)If there be no Injunction either in the Holy Qur•an or in the Tradition but there be 'Isma among the Caliph or different Imams tc. adopt the same.

(6)In case of difference of opinion between different Imams to find out the version which has so far been preferred and to adopt it only in case it is in accordance with the requirement of the present era.

(7)In case it cannot be adjusted to modern conditions, to adopt any of the several views of the jurists.

18 F SC Al.L PAKiSI'AN UOAL DEciSioNS 'VOL. XXXII In vene 179 in the same Chapter the benefits of retaliation are re­ counted:- "And there is life for you in retaliation, 0 men of understanding, that ye may ward off (evil)."

Again in verse 45, Chapter 5 it is ordained as follows :� "And we prescribed for them therein the life for the life." l---

�ese verses leave no doubt that the U'lual sentence for a person convicted of murder is death, or "life for lifo". The objection however, as already stated, is to the sentence of imprisonment and/or fine including the obligatory fine as leviable under section 544-A part or the whole of which is compulsorily payable to the heirs of the deceased victim as compensation. It was urged that it is open to the heirs of the deceased to either completely pardon the accused or pardon him subject to payment of blood-money (Dlyat). For this reliance was placed upon the last portion of verse 178 of Chapter 2 which after referring to the sentence of retaliation in the matter of the murder proceeds to state that :- "And for him who is forgiven somewhat by bis (injured) brother, prosecution according to usage and payment unto him in kindness. This is an alleviation and a mercy from your Lord."

31.Mr. Nazir Akhtar, Raja Haq Nawaz and Mr. Khalid Jshaq laid particular stress upon the right of the heirs of the deceased victim .to pardon the accused completely in which case he should be liable to acquittal, or partially in which case he should pay the amount agreed upon as blood-money (Diyat). They also emphasised that since retaliation (qisas\ is the right of the murdered person to which his heirs succeed on his death, the State or its Legislature cannot provide even for tazlr, which can be provided for only in the unoccupied field. For the same reasons they argued that the provisions in section 401 to section 402-B, Cr. P. C. which empower the Central or the Provincial Government to commute or I remit sentence of a convict cannot be sustained, such right being vested in ---n:- / the heirs of the deceased only.

Mr. Khalid lshaq went to the extent of urging that the sentence of imprisonment is foreign to Islam.

33.On the other hand Mr. Muhammad Shafi Muhammadi submitted that culpable homicide amounting to murder (qatle-e-'amd) may be of two types; one involving rights of God (Haqooq-Allab) and the other involving rights of men (Haqooq-ul-ebad). Some disputes resulting in the death directly affect only the accused and the family of the deceased as in the case of a dispute over water or tccsspass by the cattle in the field of either party or tribal vengeance. Such matters would entail the rights of man (Haqooq-ul-'ebad) and permission to compose the difference by grant of pardon to the accused would help in the patching up of differences, in diminishing the sense of vengefulness or vindictiveness and in cultivating amicable harmonious relations between the parties. In such cues Diyat will be an apt alternative to retaliation (qisas). But if the murder directly involves or affects the society as in the case of unjustified murder (qatl� nahaq) by a person who on account of the depravity or immorality of his character is prone to take the law in his own hand and thus creates or devclopes corruption in the society, and composition of the off'eooe would not make him repent his misdeeds, the offence would entail the ri,tlt• of

J980 MUHAMMAD RiAZ V. f'EDERAr, GOVEI\NMl!NT (A/tab Hasain, Member)

FSC 17

In 10:60 rebuke is administered for this :

"Have you eonsidered what provision Allah bath sent down for you, how have you made of it lawful and unlawful."

. �3. "."lla�a Sbabir Ahmad Usmani bas repeated and developed this pnnc1ple in has commentary of the Holy Qur'an at various places see pages 33, 138, 157, 159 and 363. Any silence about lawfulness or prohibition& about any matter mak� it pardonable (ul ...) which means • that it cannot be categorised as unlawful. Elam-ul-Mowaqieen «>.ai_,.JI r�I by Hafiz Ibne Qayyum, Vol. II, pages 215, 225, 226, 229, 322, 325, 358 and 661 (printed • by Ahle Hadis Acadamy, Lahore),

24.The second principle is that by the change of customs and usage (r ($ 'u.r) the doctrinal opinion (�.,:;) may also change. (See Elamul Maqqieen (�,.,I r�I) by Hafiz Ibne Qayyum, Vol. JI, pages 822 an 843). This principle highlights the importance only of ch�nge of custo i but also change of era and change in society in the context of evolution an dynamism in the field of law, which is taken care of by the principle o Ijtihad.

25.The third principle is that concessions and rights if misused by th people can be suspended or withdrawn as was done by the Second Calip by treating three divorces uttered at the same time as three and irrevocable Q contrary to Sunnah of the Prophet (peace be upon him) which treated an � number of simultaneous divorces as one. Hazrat Umar introduced this la when he found that the facility or concession was being generally misused.

26.A fourth principle is that it is better not to ward off a transgressio if its stoppage leads to the spread of more malignant vices (Elam-ul-Mowaq� qieeo, Vol. II, page 772).

27.The cases about murder were argued by Miao Nazir Akhtar, Raja Haq Nawaz, Mr. Muhammad Shafi Muhammadi and Mr. Ghulam Mujtal)a Saleem, while the case about other sections dealing with body hurt was argued by the last mentioned g entleman. Mr. Khalid Isbaq ably argued the matter on the request of the Court. Maulaoa Habibur Rahman Kandhlavi gave his opinion io writing and also made oral submissions.

28.The primary question for consideration is the repugnancy to the Qur'an and the Sunnab of the provisions of the Pakistan Penal Code regarding punishment in cases of bodily hurt or death.

29.There is no contest that in case of culpable homicide amounting to murder (qatle-e-'amd) the normal sentence prescribed by the Holy Qur'an is death. Verse 178 of Chapter 2 provides :- "O ye who believe ! Retaliation is prescribed for you in the matter of the murdered the freeman for the freeman, and the slave for the slave, and the female for the female. And for him who is forgiven some­ what by bis (injured) brother, prosecution according to usage and payment unto him in kindness. This is an alleviation and a mercy from your Lord. He who traosgrcssetll after this will have a painful doom/�

2C>FSC ALL 1»AUTAN LEGAL O!!CisiONS VOL. XXXti Whoso is slain wrongfully, we have given power unto bis heir, but let him not commit excess in slaying Lo ! he will be helped". 2:205, "And when he turncth away (from thee) his effort in the land is to make mischief therein and to destroy the crops and the cattle ; and Allah loveth not mischief."

37.These verses clarify the distinction between a justified culpable homicide I.e., a homicide with right i.e., slaying with right, "in the course of justice", "man-slaughter or corruption in the earth" and culpable homicide amounting to murder which is one of the wont sins "Gunah-f:• Kabira". The gravity of the offence is brought out by such warning that unlawful killing of a man is tantamount to killing of all mankind and that his reward is hell for ever. Allah's displeasure over an unjustified slaying is repeated several times. According to lbn-c-Kather (sec commentary on 17:33) it is in tradition that the destruction of the entire world is easier in the eye of Allah than an unjustifieda murder of a believer (Momin).

Shah Waliullah writes in Huiiat-ul Lb ul Baligha, Vol. II, translated by Molana Abu Muhammad Abdul Haq Haqani at page 431 "the worst of the tyranny is murder and it is the biggest sin", There is a consensus on this point and the reason is that to murder is to obey the call of indignation(� �t_,;.) and it is the worst manner to spread corruption (.)U) among people."

38, At page 432 he writes that since premeditated murder (.,,.. Ju) is a cause of corruption and impulsive action it became necessary to prescribe for a severe sentenrc in ordct to stop its recurrence. Dealing with the verse about the reward of a murderer being "hell for ever" (4:93), he • writes that it appears from this verse that a murderer shall not be pardoned by God and this is the opinion of lbn-e-Abbas though the majority arc of the view that even such a person shall be pardoned though at a much later stage than a person committing other sins.

39.Keeping in view the enormity of the offence the Holy Qur'an bas prescribed the most severe punishment of death in retaliation. S:45 ..••. "The life for the life, and the eye for the eye, and the nose for the nose, and the car for the ear, and the tooth for the tooth, and for wounds retaliation. But whoso forgocth it (in the way of charity) it shall be expiation for him. Whose judgcth not by that which Allah hath revealed : such are wrongdoers." (See 2:178)

40.The holy Qur'an further stresses in 2: 179 "there is life in retalia• tiou ..... that ye may ward off (evil),"

41.Now on the one hand the holy Qur'an deals with the gravity of the offence and gives warning of eternal damnation to its perpetrators and provides for them punishment of extreme severity, on the other band in order_ to maintain balance in the_ society which is its primary aim, it describes the virtues of clemency and forgiveness. It provides :- 2:263. "A kind word with forgiveness i, better than alms giving followed by injury. Allah is Absolute, Clement."

2:134. "T�ose wh� spend (of that which Allah hath given them) in case and m adversity, those who control their wrath and arc forgivin& to ward mankind : Allah lovcth the good."

t 18 F s c ALL P^risrAN lIcAL DEcisioNt vou )oool t980 MurrA{MAD Rilz v. FEDR.{L GovcRNrrsNT FSC 19 of rctsliatioa aro ro' Itr vcne 179 in tbc samc ChaPter tha benefits (ltlab Huwain, Menbe) -"--iena couotcd :- of undcmtsndins' thrt thcrc is lilb lor you in retaliation' O mco God.(Haqooq-Allab). In such a ca6c the State can provide in taw for yo may ward oS (evil).'' rynape 1t1 acqurcl 19 rhe .gaflows notwitbitandinf pa'ri"iili i'rio tDc occcasqr or tn tic atterDativc cao scDtenoe bim -to imprisoimcnt for [ii^.r ordaincd ac follows :- lifc ASoin in Y€rs.45, Chaptcr 5 it is aod fiac. Io tbis cotrDcctios hc rcfcrrcd to thc priociplc.[ l g. a:l ifill 6a6 thc lifc for thc lifc"' "Ao{y,c erescribed for tbcm thcrcir also Vcrsc No.33 of Chapta 5 whic[ is as follows ;- L "Thc ooly rcward of those who make war upon AIah DossetrsEr aod strivc after corruptiotr. in re iJnJ aod Hir wiu bc kittcd or crucificd. i,iiit it""i tu"v sidca cut ofr, tnjii ranas or will be cxfo .or.rive ilii

ii'ji}"".

'ffiffi,,}hhffifffffi I

rjr,h"ffi ocgraaaiioo'io ir,c wo,ii, doom.'?

;?','f,#'j[.'#],".lill;, *f #,,"f

,il:**'"1:!j["pJ:,i&*d.. jll.fi IrH,*{."#1! $,ithin thc city, he rcferred ro rh ",,]f;li

by bis (iljured) trothcr' "And for him vho istoforgiven somewhat puytcnt- unto him in kindocss' orosccutioo according this is an allcviation aod '*il'"t'a" a mcrcy Iiom your l.oro' #ffi['#i.#til,,i.i-..,d{q$j:fu-#*#$"ti$ffi,ilfli (qatal-c-nabaq).

hh8i hid

31.Mr. Nazir Akhtar, Raja Haq Nawaz and Mr' Khalid. 35. Mr. chula$ Muitaba Sat.am, Adv-ocate, submittcd that "i*+ffil:

puniiii"r'"iio' upon inc' rigu't'{tffioo:'"T" "to"*'ro:fff'f;"'ii;x[ tbo word 'qasas) io 2:178, itsclf carrics the mcaning of compouodability.'--' '-- #fi.,,or&"'*",,Irl?g' "r.rlH.":*b?'f#,I"T?il1:[*3f&;oif# ;ilil:":t ffif [T{,,ttJ,ffi ,t'?{*t}",rffi couchcd throw tisht on tbc sravity of thc ofio;- clcar from thc following vcrics :- iii,To u, 4:29. " . ,. . . and till not oac another.. 4:92, .,lt is rrot for a bclicvcr to. kill a betievcr unlcss t'"fr!fifi i lrisrakc. Hc$ho hath kithd. a be-iiciei 6i--,iir.,"[J,"il"r\,.6t bc) by ;;**l-**g*ffiitriil;r.'ffi :l if rutid U.. istraq wcot to tho cxtont of urging that thc s€Btenc of a belicving slavc and Dav thc blood-mooey d thc uoless thcy rcmit ir sj a'cha"ily.

hostilc # rr* --r-i;iih;""t'"i"t,"i"H'roi'ffiopo famiii oJ tni'rfain, you, E[d he ii.a oetrevcr, rhen (the penance) imprisollmcot is forciSn to IslaE' frec I -unto bclicviog slavc. And is to sct aod vou th.,c is a covenan.. r';#;ff$:r:krolL.baweco whom $:{"i:ii#ii,y[;;1,1,;Hft*;r,i#*fl.'"':::X ffi *}[[$f'ffifi!*}',-ffiflq*1tffi,ffi 4:93. "...., Whoso slaveth a belicrer ofset purpose, Hell for ever. Allah is wioth his rcward is bim and Hc had cursed him and prcparcd for him an awful dool$jtrst It is not for a belicver io kill a belicver unlcss..it be,, by mistake. 5:32. "For -tbat cause we dccreed whosocvcr killcth a buoan I -for the Childrcn of Israel that ffi$*ffi-gl*r+,ffi$,ffi H[']3JiltIi*t""8iiTn"i'[;',;;,-'si-[iia-andthug-cnateor lir:rtUTi*ntrr#::f r.ft [".,,rt.{lil,#:H[itlr,,.:-] all maukind.".

6:152. ",.,.. Andthat !,Estgy not the. Iife wlich Allah hath made sacrcd, savc in thc Coursi of *H"ffi ;"*"t#l,il$*'s';'l.i;i"rs'rllii;l*riff Yd.:'11 rhis hc hath cormanded ;;;&-id;';" iliifr;;;;t"u"'' vou, 17:33 "And ilay Dot rhc lifc whicb Allah hath forbiddet rave with righr.

22FSC ALL PuiSTAN LEGAL DEcisioNS VoL. X"Xlt deceased or the claimants for retaliation should have the right eithe r t() set the culprit to undergo full sentence through the State or if they llfc < so disposed, to relinquish their right of exacting the extreme punishment, they may obtain compensation in money.

45.Maulana Maqbool Ahmad a commentator belonaing to the Jafria Seel states as follows :- "When one (murderer) is �rdoned somewhat (i.e.Qasas) from his brother lMomin), pcnon granting pardon should be aentle in his demand (of Diyat)."

46.Jo Sahib Bukhari, Vol, UJ, Hadis 1775, it is related from Hazrat lbn-c­ Abbas that 'pardon' means that even in premeditated murder blood-mone y may be accepted. He also stated that gJ.,-.Jli t_l:JI means that the demand (blood-money) should be according to custom and should be paid in a aood m�

47.The alternative of Qisas and Diyat is stated in a number of ahadir for example Hadis 1774 in Sahib Bukhari, Vol. Ill, Balugh-ul Maram by Allama lbn-c-Hajar-As-Kalani, Hadis No. 1204, Mishkat, Vol. Il, page 171,, Sunan Abu Daood, Vol. m, page 413, Hadis 1991, Sunan·lbn-e Maja, Vol. II, Hadis Nos.399, 400 and 401,

48.There are some ahadis in which the 3 alternatives arc given but it is difficult to reconcile them not only with the text of the holy Qura'n but also with the similar Hadis related by the same authority. In Balugh-ul Maram, Hadis No. 1204, is from Abu Shuraih Khazai that henceforward if somebody is guilty it will be for the l)lerobctS -= of his family either to accept Diyat or kill him by way of retaliation. -- l 49. It, therefore, requires to be considereu whether the Holy Qura'n provides for three alternatives of retaliation lQisas), pardon or blood-money; or it provides for the dual alternatives of retaliation and blood-money. The arguments of the learned counsel for the petitioners were in favour of the three alternatives but they read traditions in favour of both tho propositions.

50.Verse 2:178 as stated above provides "And for him who is forgiven somewhat .....the treatment according to usage and payment in kindness", The word somewhat which i� underlined• by m.: is significant. It points out that the prescribed forgiveness is not total and the culprit is still bound to pay to the heirs of the deceased the compensation in terms of money for the unjustifiable homicide. This interpretation finds support from the word Takhfif (reduction).

51.The word Takhfif ( �ZJ ) means lightening or reduction of th 'weight', 'extenuation' or 'alleviation' and Takhfif-ul Aquba ("l_,LJI .....� means commutation of sentence which. means 'to exchange for punishment less severe'. It does not have the sense of absolute pardon. A ba reading of verse 178 (2:178) proves that the word rakhfif (reduction) i relatable to reduction in the sentence (��) of retaliation. Its interpretation 1 in the sense of commutation of sentence is amply justified.

52.According to lbn-e Kather blood-money (Diyat) is nothing but fine.

53.In the context of what is stated in this verse retaliation bcin the extreme penalty its reduction would be the liability to pay blood-money, •(Here in italics)

MUHAMMAD RiAZ V, FEDERAL GOVERNMENT PS C 21 (Aftab Hussain, Member) 4:17. "forgiveuess is only incumbent on Allah toward those who do evil in ignorance (and) then turn quickly (iu rcpentan�e) to Allah. These are they toward whom Allah relenteth. Allah is • Ever-Knower, Wise."

24:22. "And Jct not those who possess dignity and ease among you swear not to give to the near of kind and to the needy and to fugitives for the cause of Allah. Let them forgive and show indulcnce. Yearn ye not that Allah may forgive you 1 Allah is forgiving, Merciful".

42:53. "And verily whoso is patient and forgiveth-Lo I that, verily, is (of) the steadfast heart of things."

45:14. "Tell those who believe to forgive those who hope not for the days of Allah ; In order that he may requite folk what they used to earn".

7:199, "Keep to forgiveness (0 Muhammad), and enjoin kindness, and turn away from the ignorant."

This urge to for giv.e is on the principle of 'to err is human and to for• give divine'.

42.It is in this context that the prescribed punishment of retaliation is allowed to be substituted by pardon on payment of blood-money : 2:178. " ..... And for him who is forgiven somewhat by hit (injured) brother, prosecution according to usage and payment unto him in kindness."

43.Thus while providing for the satisfaction of the desire for righteous l vengeance for the worst possible wrong perpetrated on the murdered and his family the: Holy Qur'an takes into account that though retaliation i life yet in some cases the saving of even such ignominious life as that of a murderer may cut at the root of unrighteous and unjustified vengeance and may be helpful in creating goodwill between the families of murderer and the murdered, si nee in some cases to forget a wrong may be the best revenge. Alexander Pope says :

s "An enemy overcome by force is only half overcome." Jn a moment of despair of the enemy when all hope of survival is lost to him, a kind gesture of saving his life by the victims heirs may overcome him completely and may awaken tbc sense of good followship in him aod members of his family, This in some cases may be a better guarantee for maintenance of law and order in the locality.

44.There is therefore, 110. doubt that contrary to the offences of Hadood which in their entirety deal with violation of rights of God (Haqooq Allah), the offence of murder and, as will be seen later, of offence of injuries to the bodies generally violate the right of man. It is for this reason that in 17 :33 the power over a kiJler is given to the heir of the slain, no doubt subject to an admonition that he should not commit excess in wreaking retaliation. In 2:178 the heirs have also been given the power "to forgive somewhat and to prescribe according to usa ge and payment unto him in kindness". lt means that if the heirs and successors of the deceased feel inclined that the murderer may not be sentenced to death but be may be awarded some Lighter punishment, they may agree to give up onJy some portion of the blood-money . . . . .The heirs of the

24 Fse ALL PA°KiSTAN LIOAL DEcisiONS

60.In tl!e view of Maulana Abdul Majid Dariyabadi (sec bi commentary on the Qura'n) saving a life is praiseworthy and requitable i; it i � saved fr<?m a� unjusti�ied murd�r/altack. If the words of the verse are interpreted 10 their generahty and literal sense (an anomaly arises), To save a person from Qisas or from justified homicide would itself amount lb-, !iJl and ean assistance in what is prohibited.:.' In view of this I can not subscrib to tfte argument of Mr. Khalid Ishaq.

61.lt was urged that verse 33 of Chapter 17 : "whosoever is slain wrongf�ll¥ we have giv�n power unto heir",. c�>nfers not only t�e authority o f retaliation on the heirs of the deceased v1ct1m but also vests him with even an unrestricted right to pardon the culprit.

62, This is the view of lbne Kather as also of Maulana Maudoodi vlde Tafhimul Qur'an Vol. II, page 614, note 35. But in the commentary of Qur'an by Maulana Ashraf Ali a different view is taken since the verse is explained as saying that "We authorised his heir to obtain retaliation", 63, Maulana Shabir Ahmad Usmani is of the view that the verse confers upon the heirs of the slain a right to seek from the Government retaliation by killing. But they should not exceed the nmits and arrange for the punishment of an innocent person instead of the murderer or of innocent persons in addition to the murderer or disfigure the murderer by cutting his ears, nose etc.

64.This later view is thus preferable. The words 'but let him not commit excess in slaying' immediately following the words 'whoso is slain wrongfully we have given power unto his heirs' clarify the divine intent of conferment of only the authority of retaliation by this verse on the heirs of the slain,

65.In view of this discussion the utmost that C<\n be said for amendment of the Pakistan Penal Code is that the alternatives sentence of payment of blood-money should be added to section 302.

66.Even if it i'I assumed for the sake of reasoning that complete pardon is also contemplated in 2 : 178 that cannot help the pctitionen since that provision cannot be included in the Penal Code which deals with punishment only (see section .2) and not with compoundability. As is clear from section 2 of the Penal Code it deals with the acts or omissions contrary to the provision of the Code and the liability of the person guilty of those omissions to punishment under this Code. The petitioners' purpose can! be served by the amendment of section 345, Cr. P. C. but as would be seen, later, in my view it is a section dealing with the procedure of the Courts and as such it is not within the jurisdiction of the Federal Shariat Court to givej a declaration or direction for amendment of that section.

67.It was at one stage argued, though half-heartedly, that verse 3 of Chapter 17 confers the rights of killing on the heir only. I canno subscribe to this wide proposition. The last portion of this verse 'Lo I � h will be helped' gives a right to the society or the State to arrange for exocutio 11 of the death penalty. Muhammad Ali in his commentary aays that th words probably indicate "that as the Government is bound to aid him b bringing the murderer within reach of the law, the heir should not take the law in his own hands". This also appears to be the opinion of Maulana Shabbir Ahmad Usmani, since he also insists upon the State aid in bringine the offender to book, Maularuv Abdul Majid Dariyabadi come• to the 11m•

f .^.^ Mua ror^D Ri^z v. FoEn^L Govrf,Nrrrm F s c 23 22FSC Arlp^risr NLEcALDEcisioNs ,"" *J ! l'* (tftob H$sqin, Mcmbei

dcccased or tbc claimaots for retaliatiotr should bavc thc right I --..t or.dooI mcan rcductioo of 8cntcoce uinca it will snroutrt td cithct 10 lt sct the cutprit to underso ful scntcoct rtrrougn itc-Siat .?-if-iiiy I "rnnol Ll'-"uiiicration. is for this rQason that in Tafhim'ul Qura'n Maulanal tj_gi:ryTd, ro relinquish rleir rignt -xicrios iFciirir. -i,rriitri.,ii, u,. , I' iiiaudoooi is of thc opinion that pardor should be on paymcnt of bloodl may obtaro compellEation in mooey. "r i6., | ,noncy'

45.Maulana Maobool Ahmed a commctrtator beloDging to tbc Jafria 54, Maulana Muhammad Ali Julluodhri has.stalcd thc samc principlc Seca statcs ag follows :l -,r,." tl said whilc comEeDting on thi$ versc "thcre tnay bc circumstaocca "Wr.ctr onc (murderer) is pardoocd soaerybat (i.e. easas) from his brothct iiiiitr utt"uirre the 8uilt. In lhat casc the murdcrr may be madc to pay *"",graotios pardou should bc'gcatl-c ir' tli-ieiJana g'inc torhc rclativeC ofthe murdcrcd person- Such money is called Diyat SrXi,.lJ, t"i or blood wiil" 55, Thc English translation of what Maulana Abdul Majid Dariyabadi ... 45,.In-Sahih Bukhari, Vol._Ilt, Hadis 1775, it is rclatcd from Hazrat lbn.c.

ADDas that 'p6rdotr' meaos that cvcn io prrmoditatcd murdcr blood-moocy 6ys in his commrnts on this vcrse is ; "tbc word "s* " (i.e. Eomc' may bc acccptcd. Hc also statcd that drJAJk g!fl means that tbc dcmaod i ,rhat) is sic,nificarlt which means that only a portion of thc s€ntencc (b-lood.money) should be ac:cording to custom 6e abandoncd not that thc whole of it may be pardoaed." way, ani should bc paid io a Sood "'escribod fiowevcr in Abu Daud, Suoan+-Darmi and lbn-e-Maja tbc rhle€ altcrnatives ii retaliaaion, pardon or diyat aI" attributed to Abu Shuraih Xhazai to

47.Thc alrcrnative of ei sas and Diyat is stated in a numbcr of aiadir for example Hadis 1774 in Sabih Bukhari, Vol, IIl, Balugh-ul Maram by Allama ihom is anriSutcd thc statcmcnt of the two altcrnativca in Balughul M8ram (tladis 1204). Thcsc two diffcrcnt statcmcnts from the same comPanion lbr-c-Hqjar-As-Kalani, Hadis No. 12O4, Mishkar, v6t. , page l7t, Sunau Abu Daood, Vol. lll. oasc 4t 3, Hadis I09t, Sunan.tbn-e iuija] Vot. Ii, UaOii cannot bc rGconcilcd. Nos. 399, 400 snd 4dl: - 56. Thc &aditioo ascribed to Anas rhat whcn a mattcr puDishablc with arc somc shadis in which the 3 altcrnatiyc arc given but rdaliation camc beforc the holy Prophct (pcacc bc upon bim) hc would it. is.48-..-Thcre -dificult io rccoocile them trot otrly witf inc icxt o] ttri bo-ly Oura,n aircct trim to bc pardoncd, doca not msan that thc pardon would bc iotal pordon and not a Patdon ilt terms of reduction oflhc sentrocc which but also wjth.thc similar }Iadir rctatcd UV tnc,.rni ii"ti*.ri would'amount to Takhfif as statcd in vcrsc (2:178). Thc ncanirg ofthis Maram,.Hadis No. I2(M, is from Abu Shuraih Khazai that 'hcnctforwird if "uUro;iy.--f" statcme[t would bc clear if it is rcad i! the contcxt of thc erplanalion givcn somcbody .l!. .Sutlty it will trc for the membcn of his family cithcr to acacpt Diyat or lill him by $ay of reralia(ion. by Hszrat Abbas that pardon means pnyment of Diyat.

49.lt, therefore, rcquircs to bc considerett whethcr tbc Holy Oura,n 5?. Simihrly nothing turns upon the argumcnts of Mr. Khalid Ishaq provld€s Ior tbrec altcrnarives of retaliatioD (eisas), psrdon or blood_mioncy; *hich hc addri"scd on rhc basis of Al Jami'al Ahkam'ul Qura'n by or it provides for rhe dual atternarivei-dir-iiii"ii;-il' 6ioJ--oory. Qurtabi, Vol.II, pagc 253, that thc word " s:'' " (somewhat) dcnotcs blood.

Thc arguments of thc learncd couosel frr ttrc friii.reis *o" i"-i""*, of tbc thrcc alternatiles but thcy rcaO traaitioni--in- fu"oui 'ot-Uoit to Tbc Dardon ir no doubt of blood or rclalistion ooly and aot <i[ what folloivs this provision in 2;178 rrgerdiDg payment according to usagc which proposlttolts.

mav be considcrcd to be a rcductioo. It would, thcrcforq nccessarily mcanl

50.Vcrse 2;178 as staled abovc providcs ,,And for him who is forgiveo nairnent of Divat as a contidcration for forgivencss. I am, thcrcforc.l I/ souewhat. . . . . _. ahe treatmcnt according to ,."ei ini';u;.;i'i"'iiiai,k". ikirlv of thc vidw that thc Qur'8oic tcrt Providca for tso alteroativ6 v.?.Jr r ne word somewbat uhich is undcrlincdr by m.:

is sico.ifiLnt. lt Doints out -rtii'iru"A ounislmcnt of rctalistion strd itr cala lifc of thc killcr i! psrdoncd punish-l- ;rcnt of Davmctrt of Diyat by him, portioo of which also ruay bc pordoncdl l!a]-!.b: -forgivencss is not toial ticsfribldolthe tnE"ripiii"i, to pay.to lhe-heirs dcccascd thc coroDcosation ",ia in tros of moncv for by thc hiiri or socrcsror of thc dcccarcd as statcd by. {aulana Abdul Majidl lhe. unJustrhable homicide. Thi3 interpretation finds Dariysbadi.

support from the word Takhfif (rcduction). 58. Mr. Khalid Ishaq rclicd in favour o[ oo[crpt of complctc pardon

51.Thc word Takh6f(.!iil)mqga3 lighteoing or rcduction of on thet mrtion of5r32 in ihicb it is st0tcd thst s&ving lifc of onc i! likc 'wcight', 'exteruation' or .alleviation' and Takhfif-ul Aquba ({aJ&rl ravinr t'hc lifc of all rraokind. Hc srgucd th.t pardoniog thr culprit! meaos colnmutatio[ of sentcnce whictr, means 'to exchaoge comp-htcty by an heir and thut saving hic lifc would amouot to saving thc lcss severe'. lt docs not bave ibe seose of absolutc pardor.

for lifc of maokind.

rcading of versc l?8 (2:l?8) provca lhat thc word ,a,thJd geductiofiA ba 59, Thc tlliaEcc on this ycr8c would rtndcr nugatory 2:179 wbich relstable to reduction in thc scntcncc (+ja) of rctaliatioo. t ordaim :- Its i (And th.rc is lifc for you itr rctalistioo"' in the scosc of commutatio n ol sentcne is amplyjuslified

52.According to lbn-c Kather blood-moncy (Diyal) is nothing but fio.. If thcrc is lifc in Qrlas or rctslirtion, savi[g thc lifa of r pef3on crommitti nt 53. In the c ontext of what is stated in this versc retaliation bci culpabh homicidc smountint to murdcr c8trnol amount to tayitr8 lhc lif, of the extrcme penalty its rerlucl ion *ould be the tiabil y to pay Esokird.

blood-moocy 'tH.r. i! it.li6l

26FSC A.LL PAKiSTAN LEGAL OECisioNS VoL.Xxxn , While commenting on 5:45 (which in his commentary is marked as verse No. 48) Allama Yousuf Ali writes :- "Even where the injured one forgives, the State or Ruler is competent to take such action as is· necessary for the preservation of law and order in society."

71.Maulana Abdul Majid Dariyabadi is also of the same view in his commentary on 2:178. He states that the offence of culpable homicide amounting to murder is not only an attack on the State or the society as a whole but also on the individual meaning thereby that the offence bas a public character as well as private.

72.In Kitabul Fiqh by Abdur Rebman Aljaziri, Vol. V (Urdu translation), page 589, has been discussed the authority of the State (Sultan) in connection with the offence of murder. He writes :- "It will not be correct to say that if those who have a right of retaliation pardon the accused law and order situation may arise ; because, as, has already been stated the person entitled to retaliation will generally insist upon the punishment of death. Assuming that he pardons the accused the judge can still punish him if he is of the view that peace in the locality spall be disturbed and it is necessary to keep him under detention . • . • . till he is convinced that he bas reformed him�lf."

73.At page 490 are given the opinions of different schools of thought. The opinion of Malikis and Hanafis is that withstanding pardon by the heirs of the deceased the State is entitled to award a punishment of one hundred whips or of a year to the murderer and the same view is attributed ✓ to the Second Caliph and Medinites. The view of persons belonging to the Shafc'i and the Hanbli schools is that this is not permissible except when the murderer is notorious for his corruption, moral depravity and mischief. mongering. In that contingency he can be imprisoned or whipped or deported.

I

74.This is supported by Anwar Ahmad Qadri in Islamic Jurisprudence in the Modern World (printed by Sh. Muhammad Ashraf), Lahore, page 299 in which he states that tazir can be given with blood-money (Diyat).

75.This is also laid down in 5:33 which provides the following sentences for waging war against AIJah and raising corruption or mischief in the land:- 5:33 "The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land wilJ be that they will be killed or crucified, or have their hand and feet on alternate sides cut otT, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs wiU be an awful doom."

76.The sentences are,-{1) death, (2) crucifixion, (3) cutting of bands and feet from the opposite side, and (4) expulsion out of the land which has been interpreted by some as imprisonment. The commentat ors have confined the applicability of this verse to sedition, dac�ity or highway robbery. But there is no justification for thus limiting its scope and extent. The words of the verse arc applicable inter a/ia to situation where the actions of individual or a group amount to creating corruption in the land (IJ'J ':JI � �W) In fact according to one sense spreading corruption in the land itself

1980 MUHAMMAD R1Az V, Ft.OERAL O0Yl!RNMENT F S C25 (A/tab Hussain, Members)

conclusion in view of the opening words of 2:178. He explains retaliation (Qisas) in the following manner :- "Qisas is not a synonym of naked vengeance that every individual may take himself from another individual. On the other hand it is the name of an organised, ciyiJiscd and systematised form of punishment in Criminal Law. It is a collective law for the whole ummal,. The duty of its execution falls on the Government or its officers. Words �T .:;�.ill luli. are used to address the Muslims collectively and not in their individual capacity."

68, There is thus nothing in the Qur'an and the Sunnah against the1 State being responsible for execution of the culprit. While carrying out thefz execution it shall be treated as acting on behalf of the heirs of the deceased.

69.The next point is whether the sentence of life imprisonment and fine is repugnant to Islam. I have already dealt with the question of right of the heirs of the deceased to retaliation (17:33) and pardon on payment of blood-money or Diyat (2:178). But murder is an offence which cannot be said to involve only rights of the heirs of the deceased. It also involves the rights of Allah, though in certain cases the rights of the heirs may be given preponderance in the interest of maintenance of peace in the locality by creating goodwill and amity if possible between the heirs of the deceased and the accused or his family.

70.Qur'an describes, as stated above, this sin to be the worst of sin and treats the wrongful, killing of one person as the murder of the entire mankind. For this reason the normal sentence for the offence of murder is of death. According to the tradition of the holy Prophet (peace be upon him) ol.:..i Jii � (we shall kill a person who kills) or u"l.alll .Jil � (Retaliation is Allah's command). The Qur'an emphasises �I ,:,.. /1 41:AJI (insurrection is much graver than murder). It, therefore, points out as stated by Imam Ibn-e-Taimia in Si)'.asat�Sh_aria, page _239, that to murder any person is to involve oneself m m1sch1ef, corruption and moral depravity (;-: J .)t.,.i). It cannot be doubted that mischief, corruption and dep ravity affect the society as much a� an individual. For this reason the punishment of a mischief monger (�.)..,..) who habitually causes injuries to the members of the society is death (see lslami F aujdari Qanoon by Salamat Ali Khan page 163) or detention in prison till he repents . It is for this re�ons that it is stated at page 5 of the above book which is an Urdu translation of Kitab-ul-Ikhtiyar, on the authority of Fathul-Taqdir :- "Two rights are blended in retaliation ; one is the right of God since it frees the world of corruption (.)W) and secondly the right of man, in so far as it is a source of satisfaction to the heirs of the slain." It is further stated on the same page on the autho�ity of Itabia :- "The preponderant right, 'however, is that of man because you have already seen that retaliation comprises of two rights in which the right of the man is preponderant. But it does not mean tQat th�� is no right of God."

28 F SC ALL PAJCiSTAN Ll!GAL Dl!CisiONS VoL.XXXU

(3)In the view of Imam Malik persons belonging to Qudriya sect should) be put to death not because they were apostates but because it was tcj worst corruption (.)W) in the land.

(4)lo the opinion of Hazrat Umar and Hazrat Usman, Hazrat Hafsa and Hazrat A bdullah-bin-Umar the sentence of a person practising magic is death by sword. According to some, such a person is an apostate but some jurists say that he is liable to be killed for creating corruption (.)W) in the land.

(5)According to Imam Abu Hanifa a person repeating the commission of an offence punishable by death is liable to be slain by way of tazir.

(6)A ccording to Imam Abu Hanifa a person who habitually makes other, part with their property by cheating and fraud should be put to death.

(7)If it is proved about a person that the society cannot rid itself of him unless he is killed, he shoul� be put to death. In support of it is cited from Sahib Muslim a tradition related by Arfaja-al-A shja'i who heard the holy Prophet say that if you are unanimous about a particular person and somebody comes to you to create disunity amongst you or to disrupt your society you should put him to death.

(8)About a person habitually taking liquor it is said that if despite punishment he repeats his offence of taking liquor be should be put to death on repetition of the offence a fourth time since he spreads corruption(.)l-f).

(9)Hazrat Umar beard a woman reciting some couplets out of which one couplet expressed a desire to meet Nasar son of Hajaj. Hazrat Umar called Nasar and confirmed that he was an extremely handsome person. He got bis head shaved. This added to his beauty and grace. He, therefore, turned him out of the city and deported him to Basra so that the women-folk of Madina might not be involved in scanda1 (A.cl).

(10)If a person acting as a son to a deceased victim accepts Diyat but despite this kills the culprit the holy Prophet is stated to have said on the authority of Jabai bin A bdullah that such a man should be killed.

81.Accordin� to Raja Haq Nawaz this would still be a case covered by verse 2 : 178 in which the heirs of the murdered culprit have a right to pardon or obtain blood-money. It is true that notwithstanding the authenticity of this tradition the view of Imam Malik and Shafe'i is that this should be treated as a new murder. But Akrama and Kataba are clear that such a person should be put to death and in the opinion of Hassan it is discretionary with the Imam to put him to death or to allow the heirs to obtain blood• money.

82.Precedents are, therefore, not Jacking to show that where there i elem�n� of corruption the mattcr is, governed by the principle of_ right of Go and 1t 1s open to the Court to scnte!ICC a culprit by way of TaZJr to death o} imprisonment. This is further . boine out by. the fact that verse 5 : 33 abou corruption or waging of war against Allah and His Prophet (peace be upon him), immediately follows. VCElC S :32 in which a warning given to the Children

1980 MUHAMMAD RiAZ V. Fl!Dl!llAL GOVBRNMBNT FS C27 (Aftab Hussain, Member)

amounts to waging war against Allah who has ordained the retention of a balanced society full of virtues and free of vices. It is for this reason that Allama Shabbir Ahmad Usmani is of the view (see bis Comentary on 5:33) that there is no justification for curtailing the generality of the words used in this verse to specific offences of sedition, robbery or dacoity. The language of the verse should be considered in its wider sense. To be at war with Allah and His Prophet (peace be upon him) or to create corruptions or disorder in the land would cover all such matters as,-(!) offensive by the non-Muslims (2), the mischief of dpostasy l3) highway robbery, (4) dacoity, (5) unjustified murder, (6) plunder, looting or pillage, (7) criminal conspiracy and (8) seditious propaganda. Each of these offences are such for which an offender would be liable to at least one of the sentences referred to therein.

77.The reference to qatal-e nahaq or unjustified murder clarifies the opinion of the worlhy commentator. In fact creation of disorder in society which one wishes to be an ordered society would itself amount to creating corruption or mischief (.)W). Thus a person who is a goonda (arch criminal) takes pride in his being called a goonda. It is his hobby as well as policy to create terror in the minds of members of his locality who would like to put an end to his criminal activities. He earns his living by sale of liquor and other intollicants, prostitution, gambling, blackmail and making people pay protection money. He masterminds the criminal activities of • others and thus assembles round him other criminals hardened cold-blooded as well as potential. In the advancement of ant or all of these activities/ commits or abets murder. Is he not one who creates corruption (.)LI) in the land ?

78.Similarly a rassageer who abets the commission of theft of cattle and in the attainment of that objective is so unscrupulous that he docs not hesitate in the abetment or commission of offences of murder ought to be considered a terror to the society or as a person creating corruption in the land. Murder committed by such person would, therefore, fall within the verse. In fact this is a verse which if acted upon would eradicate the menace of such arch criminals from the society. The verse provides the best pro­ tection against organised goondaism, terrorism, blackmail, maintenance of dens of vices which attract members who otherwise would have been virtuous and good members of the society. According to Islami Faujdari Qanoon by Salamat Ali Khan, page 163, mischief-mongers can be punished with death or by detention in prison till they are truly repentant.

79.It is interesting to note that Shah Waliullah in Vol. II of Hujjat-ul Lah-ul Baligha, page 431 has held the offence of murder to be the worst form of creating corruption (>W) among the people. He says :- (It is the biggest cause of corruption).

80.Imam Ibn-e Taimia has referred to the opinions of various jurists about categories of corruption punishable with death in bis book Siyasai-e Sharia, page 225 {Translation by Muhammad Ismail Godarvi):

(1)Sentence for espoinage according to Imam Malik and some belongin to the Hambli school of thought is death:

(2)According to Imam Shafe'i and Imam Ahmad and some followers ·o Imam Ahmad and Imam Malik if a person introduces in the la < _\ � anything new which is contrary to the holy Qur'an and Sunnah ,.., should be put to death.

30 F SC ALL PAKISTAN LEGAL DECISioNS

imprisonment (AI-Habs) and most lexicologists accept this. B. A. also accept this interpretation that-they should be kept in the prison. The reason is appa�nt. No one can be banished from the whole of the earth unless be is kept in prison . . . . ".

87.A tradition reported from lbn-e-UmaJ I is reproduced (tradit ion No. 1202) in Balgh-ul-Maram, by Allama-Ibn-e-._.jar Askalani at page 242, that the holy Prophet (peace be upon him) said that if a person seizes another person and a third person kills the person so seized the actual killer will have to be put to death while the man who seizes him would be imprisoned. ; , According to Da�tni this tradition is maosool (J,-J..). According to lbn-c-Qatban it is sahib ( t,""") since th� relators are men of piety but Baihaqi bas preferred this tradition as·faJling in the category o f MursaJJY.,.-. Hazrat Ali decided an analogous case in the same manner and imprisoned the person who bad seized the victim at the time of murder. See p. 566 of Vol. V of Kitab-ul-Fiqb by Abdul Rahman Aljaziri). It is possible that in the above cases the person seizing did not have the intention that the person seized be killed since the view of Imam Malik is as stated in Movatta at page page 672, that if the man has seized the victim with the objective that be should be put to death be would also be subject to retaliation.

88.Yet another instance is of the sentence of a person violentlv killing his slave. According to Ibrahim the killer will be handed over to the heirs of the deceased slave. Imam Muhammad is opposed to this view since according to him there was no retaliation inter owner and slave. On the other hand the owner should be saved from retaliation and should be imprisoned. This is stated to be the view of Imam Abu Hanifa also (for reference see K1tab-ul-Asar by Imam Muhammad, page 265), 89. Mu'avia Bio Abu Sufian on a reference from Murvan bin Hakim directed that an insane person should not be killed in retaliation but should be imprisoned.

90.These instances negative the assertion of Mr. Khalid Ishaq that Islam does not recognize imprisonment as punishment or for detention. It is, therefore, clear that the sentence of imprisonment and fine in section 30 being sentences Jeviable by way of Tazir are not repugnant to the holy Qur'a and Sunaah. The section, however, requires to be amended in order t include in it by way of provisos, the pnvision firstly about persons who wil B not be executed by way of retaliation, secondly about the manner in which B an offence can be compounded by the heirs of the deceased unless the culpri is liable to be punished for Tazir ; and thirdly the forum which should have the authority to determine the question of genuineness of the com­ promise.

91.This last mentioned provision is necessary in view of the circum• stances prevailing in the country in which an accused person uses all tactics including force and blackmail, to tamper with investigation of the offence including the evidence. Sometimes the heirs of the deceased person, who will otherwi se be interested in seeking retaliation may be terrorised into sub­ mission to agree to compounding the offences. I respectfully agree with th suggestion in th_e case of G�l. Hassan given by _the Peshawar Shariat Bene C that _th�_ question. ?f d�c1dmg upon the �e�wneness of a compromise an jC perm1tltng compos11lon m a case of retaliat100 should be vested in th High Court whether the agreement of composition is filed during the trial or

t980 MUHAMMAD RiAZ v. FEDERAL GOVERNMENT F SC29 (A/tab Hussain, Member)

of Isreal (Bani-Israel) was repeated that the unjustified murder of one human being is as if the entire maokind has been killed. This context proves that wherever the killing is the result of or with a view to creating corruption eW) it should be dealt with in the manner provided by verse 5 : 33 and the sentence in a case of unjustified murder from among the four sentences enumerated therein would be the sentence of death or imprison­ ment.

83.Faced with the principle of verse 33 of Chapter 5 some learned counsel submitted that another section could take care of the circumstances in which that verse would be applicable. In this connection reference was made to sections 396, 397, P.P.C. But this objection is without force. The policy of law is to make the legislation as comprehensive as possible, so as to make it applicable to different circumstances. It is for this reason that the Pakistan Penal Code in its section 302, has described two alternative sentence leaving it to the Judge to award the appropriate sentence keeping in view the facts of each case before him. Sections 396 and 397 deal with cases of robbery and dacoity. Similarly Chapter 6 deals with offences· against the State including sedition. The section in which provisions for un­ justified murder should be properly made would be the section relating to murder. It is for this reason that section 302 is the only section in which sentence for murder contemplated by verse 33 of Chapter 5 should be intro• duccd. And this wou!d not be something strange. We have already seen that in the Ordinance relating to punishment of Hadd, provision for tazir bas also been made. As an illustration I may refer to section 10 of the offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), which provides that "subject to the provisions of section 7, whoever commits Zina or Zina• bit Jabar which is not liable to Hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazf liable to Hadd has not been awarded to the complainant, or for which Hadd may not be enforced under this Ordinance, shall be liable to Tazir". Provision for sentence to Tazir is made in subsection (2) of section 10.

84.On the same analogy Tazir must necessarily be provided in sec tion 302 for cases in which the right of Atlah is considered preponderan over right of man. The standard of evidence for Qisas or retaliation is highe � .4 than the standard• of evidence followed by the Court. On the analogy o of Hudood Ordinance where evidence is insufficient from the standard of Islamic Sharia and person may still be convicted for Tazir, it is necessary to maintain the sentence of imprisonment and fine.

85.It was, however arged by Mr. Khalid Ishaq that there is no concept of punishment of imprisonment in the holy Qur'an and Sunnah. The reference to such punishment i& found in the case of Hazrat Yousuf who was put in prison by the then Government of Egypt but it does not have the seal of approval of the holy Qur'an,

86.This argument has not impressed me in view of the words .:,.. _,iI1 IJ°J "yf in verse 33 of Chapter 5. It is true that these words have been interpret­ ed by some commentators as meaning deportation put according to the Hanafi view it means imprisonment. (See commentary by Maulana Abdul Majid Dariyabadi). A reference to this view has also been made by Muhammad Ali in his commentary. He says : ,.;J \II ,:,• _,.iq literally means that they should be banished from the earth, but according the Abu Hanifa the meaning is here

32 f's G ALL PAKISTAN LEGAL DECISIONS VOL. xx,cq of offences including offences compounded with the permission of th Court, it provides that the effect of composition would be the acquittal 0� the accused. Composition is, therefore, a manner in which the trial i to culminate. It is, a provision of law dealing with the procedure 0 Court and not subject to any declaration by this Court abou t it I repugnancy to the holy Qur'an and Sunnah of the Holy Prophet_ (pea be upon him). ✓1

96.I am also of the view that the distinction between a substantive law and procedural law is not of any relevance in t his context since that distinction has been treated to be relevant on the question inter alia of retrospectivity of a law. A law may provide for a substantives right and yet may be procedural in character. Even a right of appeal though a substantive right is a provision relating to procedure in some sense at least. This matter is thus beyond the jurisdiction of this Court.

97.The next question is about the provisions of sections 55, 56 of the Penal Code and sections 401 to 402-B of the Cr. P. C., which ves jurisdiction, in the Central or the Provincial Government to suspend remit or commute the sentence passed by a Court of law. I respectfull agree with the· f indings of the Peshawar High Court in the above case tha the provision l of sections 401, 402-A and 402-� not being provision abou the procedure of the Court are not saved and are subject to the authority o this Court. I am also in respectful agreement with the findings that wher the heirs of the deceased may be in a position to dictate terms to th ,, Court in respect of sentence, the Central or the Provincial Governmen cannot press into service the jurisdiction conferred by the above section to commute or remit the sentence of the convict. But this does not conclud the matter in view of the conclusion arrived at by me that the Cour can award tazir in certain cases where the right of Allah is held t have prepor.derance. It would follow that in such cases the Imam o the State would have the authority to suspend, remit or commute the sentenc already passed.

98.This view of mine is supported by the statement of law in Islami Faujdari Qanoon by Salamat Ali Khan, page 157, that 'tazir' is the right of God and Imam can pardon it'.

99.The learned counsel for the petitioner did not appear iri S . P. No. 20/ 79-Karachi in which provisions of section 337, Cr. P. C. and sections 114 and 130 of the Evidence Act bas been challenged. Mr. Muhammad Shafi Mubammadi is a petitioner in a similar case S. P. No. 1 of 1979-Karacbi, but be did not argue that case. However, I am clear in my mind that these provisions of the Criminal Procedure Code and the Evidence Act relate to the procedure of the Courts and are immune from the jurisdiction of this Court. These petitions are, therefore, liable to be dismi,ssed. But before doing this I would like to me'et an objection taken in S. P. No. 1/79-Karachi by Mr. Mohammad Shafi Muhammadi that in case where several persons have joined to kill one person, all of them cannot be subjected to retaliation and in any case the person abetting the offence cannot be made liable to the same sentence as the actual killer. Nothing is far from the truth. It is a well known fact that on a child being killed Hazrat Umar sentenced five or seven persons to death and stated that even if the entire city of Sanna had been a party to the death he would have executed all the inbabij0 tants of that city. Balughul Maram by Allama Ibn-e-Hajar Askalani <1

t980 MUHAMMAD RiAZ V. Fl!DBRAL GoVBRNMl!NT FSC 31 (A/tab Hussain, Member) duriog appeal or is filed after the judgment of conviction and sentence oti f death has attained finality but before execution of the said sentence.

92.In view of what bas been stated above it is not necessary to deal with the arguments about section 345, Cr. P. C. The Pe shawar High Court in the case of Gui HaJsan (1), bas however taken the view that section 345, er. P. C. is repugnant to the Injunctions of the Holy Qur'an and suonah and has disagreed with the arguments that being a matter of procedure of the Court, it is not within the jurisdiction of the Shariat Court to make such a declaration. Similar e.nbargo on the jurisdiction of the Court bas been continued in relation to this Court vide Articles 203-B and 203-�f the Constitution.

93.The view·of the Peshawar Bench is that section 345, Cr. P. C. is in the nature of a substantive provision of law and not a mere matter of procedure. The learned Chief Justice relied in his leading judgment on Nabi Ahmad and another v. Home Secretary, Government of West PakiJtan, v Lahore and 4 others (�as also on a quotation from Jurisprudence by Salmond, Tenth Edition, pagC475. I have the highest respect for the erudition and knowledge of law of the learned, Chief Justice but I regret that I canno sub scribe to the finding that the Shariat Benches under the provisions then in force or for the matter of that this Court. has any jurisdiction to rnak a declaration about section 345, Cr. P. C, or the Second Schedule of th said Code. ✓/ 94, Under Article 203-D of the Constitut,ion the Court has th jurisdiction to examine or decide whether or not any law or provision o D law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him). 'Law' bas been defined in Art 203-B as not including inter a/ia 'any law relating to the procedure'. There can be no dispute on the question that the Code of Criminal Procedure is a law relating to the procedure of the Court. It provides in its section 5(1) that all offences under the Pakistan Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained. It is not necessary to consider the import of investigation and inquiry since the relevant procedure is that of trial which is undoubtedly governed by the provisions of the Cr. P. C. Now a trial under the ordinary parlance will not only deal with the forum but also with the way in which it is to start in continue and to come to an end in a Court of law. For the trial to start it is necessary that complete facts constituting the offence be presented in Court or a report in writing of such fact be made by any Police Officer or the Court may upon an information received from any person other lhan Police Officer or upon his own knowledge or suspicion that such offence has been committed may proceed to take cognisance of the matter. In a case triable exclusively by a Court of Session the case is to be sent by the Magistrate for trial to that Court. A trial envisages framing of· charge, taking of evidence and ultimately passing a final order of discharge, acquittal or conviction. All these proceedings including the procedure how a trial would come to an end are matters of proce<;lure. �95. Section 345, Cr. P. C. provides for compounding of off'en under the Pakistan Penal Code, with or without permission of the Cou; because certain offences are compoundable with the permission of th 6 Court only. Subsection (6) of section 345 deals with the effect of composition (I} PL D 1980 Pesh. 1 (2) PL D 1969 SC 599

34 f SC Af,L PA'KisTAN Ll!0AL OEciSioNS VOL. XXXU not punishable with death. They are punishable with imprisonment and/ fine. These sentences can be maintained on the principle ofTa'azir with th result that the sentences already provided would not be considered to � contrary to the holy Qur'an. The repugnancy with Qur'an and Sunna can be removed by adding the provision for payment of blood-money to th heirs of the deceased.

105.The next point is whether the provision of sections 324, 32S 326, 328 and 329 etc. require to be changed. Tho principle of Ta'azir woul • equally apply to these provisions but the provision of ret;lliation in som i cases and of ursh in others requires to be introduced in some sections in view of the principle laid down in verse 5:45.

106.Before giving my views on the amendments in the various sections of the Pakistan Penal Code concerning bodily injuries I would like to make certain comments. It is not necessary to change the whole structure of the Code in this respect since the Code is a valuable document prepared with utmost care and attention and almost every word of it bas been mterpreted by Courts of law during more than a century. Any fundamental change in the structure of the Code might render all those valuable precedents of no use. This will be an irreparable loss in the -field of criminal law. It would also create problems for the Courts and the Members of the Bar. The Constitutional requirements will be fulfilled by such amendments in law which may remove its inconsistencies if any with the Qur'an and the Sunnab. It is with this end in view that I proceed to test the various provi• sions of Chapter XVI.

107.Now homicide may be justifiable and culpable. This difference is recognized by Shariah which states that there is no culpability inter alia in putting a person to death in execution of legal punishment for any offence committed by him. The holy Qur'an itself recognises it in 5:32 and 6:152, 17:33. In 5:32 the proposition to kill a human being is subject to the exception "for othet trum manslaughter and corruption in the earth". In 6:152 such exception is 'save in the course of justice'. In 17:33 the prohibition is 'save with right'. It is further emphasised that it should be wrongful slaying in which the heirs of the deceased would have a right of retaliation. It is this wrongful slaying which is 'culpable homicide'. 108, Section 299 defines culpable homicide which in the parlance of Islamic Jurisprudence or Fiqh comprises of premeditated murder (-'- J:.) unpremeditated homicide (� "1⁄2� J:i) acd homicide caused by negligence whether rash or simple (u.;.. IPJ• This last •category includes (Ua.. J!.. Ja) homicide caused by quasi-error and 11.;.. "':-.JI J:J homicide which is the indirect result of error.

109.Culpable homicide which amounts to murder is the same as premeditated murder (-'- J:i) while .-that which does not amount to murder and which is not punishable with death under the Code is other than pre­ meditated murder for which under Qur'anic Injunctions also there is no retaliation (See 4 :92).

"4:92. It is not for a believer to kill a believer unless (it be) by mistake. He who hath killed a believer by mistake must set free a believing

1980 MUHAMMAD RJAz V, fEDBRAL GOVERNMBNT FSC 33 (A/tab Hussain, Member)

Tradition No. 1203, The Hanbali view is contrary to this. But Shafe'i and J{anafis agree that all participants in the murder of one person shall be pu � to death irrespective of their number (See page 544 of Vol. Y of Kitab-ul-Fiqh . by Abdul Rehman Aljaziri).

100.As regards the objection about the sentence of the abettor it wi I be sufficient to quote from Minhaj-ut Talibin, page 397: "premeditate homicide, commited under coercion by violence renders liable under th� : law of talion not only the person who exercised the coercion but also th person who allowed himself to be intimidated for the law regards them as accomplices".

101.There is a concensus of jurists on the sentence of the person who exeroises coercion. The difference of opinion is only about the sentence of actual killer only Hanafis from amongst the four schools being of the opinion that the latter cannot be executed in retaliation. (See pages 537 to 544 of Vol. Y of Kitab-ul Fiqh by Abdul Rahman Aljaziri). This view will hold good about an .ordinary abettor also. In fact it would be highly unreason­ able to hold that a person coerced to kill should be subjected to retaliation while a person who bas actually coerced another person to kill should escape the penalty or the extreme penalty.

102.Before finishing the subject of murder I would deal with the provisions of section 304, P. P. C. also which deals with culpable homicide not amounting to murder. According to Fiqh Hanafi murder is of 5 kinds:-

(1)Qatle-Amd or premeditated murder.

(2)Qatle Shibeh Amd is murder when a person dies as a resu'lt of injur from something which is neither a weapon nor like a weapon e.g. a whip or a small stone. According to Imam Abu Yousuf and Ima Mohammad it is Shibeh Amd when death is caused as a result of hurt by something from which death is not usually caused I.e., whe from the nature of the object from which death is caused, an intention to cause death cannot be inferred.

(3)Qatle Khata (homicide by error) is a result of error for example hunter fires on something considering it to be an animal but whic happens to be a human being and is thereby killed.

(4)Qatle Misle Khata or homicide by quasi-error is when a person whil sleeping falls on another person who is thereby killed or a person falls from a roof on another person who is thereby killed or som brick or piece of wood falling from the hand of a person by mistak drops on another person who is killed or a person riding on an animal trampled and thus killed the deceased.

(5)The illustration of Qatle Bissabab is a person losing his life b falling into a well excavated by the accused on another person's land.

103.According to another view the last two categories are included 1 in Qatle Khata or homicide by error. The distinction however between th different categories is that intentional or premeditated murder is puoishabl by death or retaliation. While the other categories are punishable by paymen� of blood-money and of offering (•JU>) for expiation of the sin. Offerin for expiation is not however, enforceable by Courts.

104.Sections 304 and 304-A, P. P. C. correspond to Qatle Shiba Amad� and Qatle Khata. As in Shariah offences under sections 304 and 304-A are!K

36FS C ALL PAKisrAN LEGAL DBcisioNS Vot.XXXIt respect of reconciliation with Qur'an and Suonah. The first exception is where death is caused when the offender was deprived of power of self. control by grave or sudden provocation or by mistake or accident. Death caused by accident or mistake is nothing but murder by error (Ua:.. J:i). Provocation when grave and sudden would take the matter out of the cate­ gory of intended or premeditated murder.

118.At page 573 of Ainu} Hedaya, Vol. IV, it is stated on the authority of Imam Muhammad that if a person trespasses io a house at night and is found dead in the morning and it is proved that the owner of the house killed him while committing adultery with his wife he cannot be sentenced to Qisas. Another instance is related of a person killing a male and one of his (assailant's) female blood relation, when he finds them committing adultery by consent. It was asserted that he cannot be slain in retaliation.

119.These opinions may be compared to Tradition 1114 from Abu Daood, Vol. Ill, page 424, related on the authority of Abu Huraira, Sa'ad bin Ubada enquired from the Prophet (peace be upon him) whether a person who found a stranger with his wife could kill him. The Prophet (peace be upon him) answered in the negative. In another Tradition No. 1115, Sa'ad bin Ubada is reported to have asked whether in such case he should wait till he collected four witnesses (to depose against them on charge of adultery). The Prophet (peace be upon him) assented to this.

120.The opinion in Ainu! Hedaya and these traditions can be safely reconciled. If a person causes death on seeing his wife or other near female relation in a compromising position with a stranger he should be taken to have lost self-control and acted under the influence of sudden and grave provocation. But if before this even occurs a person makes up bis mind to kill if be ever saw the two committing adultery it will be a case of premeditation. Moreover the traditions of the Prophet (peace be upon him) prove the incorrectness of the opinion of some jurists that it is permis­ sible to kill persons found committing adultery.

121.Exception II is about exceeding in good faith right of self-defence. The Qur'an recognises the right of self-defence in verse 2 : 191 when is declares lawful killing in exercise of such right even in Haram-e-Ka'aba where shedding of blood is otherwise prohibited. Imam Muhammad has related from Ibrahim Nakhai that i.f a person enters another person's house during night and is found dead in the morning, the claim of the owner of the house that he bad fought with him would be put to test and .similarly if it is found that he had entered the house with the intention of committing theft there will be no retaliation only blood-money will be payable.

122.At page 328 of Durrul Mukhtar Vol. IV, is recorded a Hadis from the Holy Prophet that on being question ed about the course to be adopted if a person approached the questioner and snatched away his property from him and it was not possible for him to take recourse to any Officer of the Government the Prophet (peace be upon him) said that he should fight with him till he himself either saved bis property or was kille� and thus attained martydrom. He further said that if the thief was slain hts place would be in Hell. But it is clarified in the above book as a juristic opinion, that the right to kill would accrue only if his property could not_b� recovered otherwise. Jt is further stated there that if notwithstanding the knowledge that if challenged the thic:f would decamp leaving the stolen

J980 MUHAMMAD RIAZ V. FEDERAL GOVBRNMBNl' FS C 35 (Aftab Hussain, Member) slave, and pay the blood-money to the family of the ,lain, unless they remit it by charity .... .''

110.This ve� deals with 'murder by error' (U..:.. J:i) but the same pri nciple has been extended by a tradition of the Prophet (peace be upon biDl) to an unpremeditated murder (.1..- � J:J).

111.Intention to cause death is the main ingredient of premeditated murder so is that of murder in the Code. The intention may be gathered under Shariat from the weapon used by the accused. So it can be gathered under the Codes vide secondly, thirdly and fourthly to section 300.

112.It is reported by lbn-e-Abbas that the Prophet (peace be upon birn) said that if a person kills another by throwing stone, by a whip, or by a staff its blood-mone y will be that of homicide by error (U.... J,i°). Imam Malik was of the �iew that if the staff is heavy and sufficient to cause death the assailant will be guilty of premeditated murder. This view finds support from the tradition reported in all well known books of tradi­ tions, where a Jew was killed in retaliation by two stones under order of the Prophet {peace be upon him) for having similarly caused the death of an innocent girl.

113.The tradition from Ibn-e-Abbas is, therefore, confined to the causing of death by such stone, whip or staff which would not be ordinarily sufficient to cause death and as such from the use of which as a weapon of offence no conclusion of premeditation can be drawn.

114.This tradition which deals with .l.&- 4� J:J unpremeditated murder names only those weapon from which intention to kill cannot be gathered. Where such intention cannot be gathered, the Code also treats the offence as culpable homicide not amounting to murder.

115.This is borne out by para. 513 (p. 178) Islami Faujdari Qanoon by Salamat Ali Khan, which is a translation of Kitab-ul-Ikhtiyar : "Th<! commission of the act causing death may be either with the intention to cause death or without such intention. · An act done with the inten• tfon to cause death would involve the use of weapon or something like a weapon. It would then be a premeditated murder � J:i. If weapon or something like it is not used it is not premeditated murder but an unpremeditated one (.t- y), since the intention isl not to kill.''

116.Although the reference to the use of weapons is merely illustrative but it has been taken by some jurists in a literal sense. They are, therefore, of the view that death caused by drowning, by strangulation, by throwing the victim to snakes or carnivorous animals is not premeditateQ, murder(.\.." J:i) and as such is not liable to Qisas. Such opinions 'Day be found in Fatawa Alamgiri and other books on Fiqh. But such opinions are not shared by others including Jmam Shafe'i, Imam Abu Yousuf and Imam Muhammad. Death caused by drowning is in their opinion subject to retaliation. Their reliance is upon a tradition from the Prophet (peace be upon qim) (p. 34) that whoever drowns will be drowned. Fatawa Alamgiri, Vol. IV, Kitabu-ul­ Janayat (p. 568).

117.Exceptions to section 300 also. do not present any difficulty in

38 FSC ALL PAKiSTAN Ll!GAL DecisioNS VOL. XXXII

Abdul Rahman Aljaziri, page 704, is reproduced the opinion of Hanafi jurista that if it is proved that there was a child in the womb it would not add a separate liability since it is a part of the same body (of pregnant woman). It is for this reason that the fine of a slave is not termed by the jurists as Diyat or blood-money). Thus the statute law is not different from the law of Shariah.

133.The fifth and the last exception is that culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. The framers of the Code bad in mind suttee or duelling (1891) 18 Col. (484) (489) (F. B.) Per Pigot, J. Leaving the question of age aside since in Shariat a person of 15 years of age is presumed to be a major, this provision is in accordance with the opinion of Imam Malik.

134.Section 301 deals with culpable homicide by causing death of a person other than the person whose death was intended. It declares such offence also as murder. There is no tradition about this but it is clear that if intention was to commit murder of a human being and during that attempt some other human being died the offence having been committed in execution of intention and premeditation to kill must amount to p remeditated murder. It cannot be equated with quasi-murder (� � J:i) or homicide by error (u.;. J:iJ because in the first the intention to kill cannot be pre­ sumed from the weapon used and in the other there is ni:ver an intention to kill any human being. The want of intention to kill a human being takell these two categories of cases out of the ambit of premeditated murder. Any opinion to the contrary would be repugnant to analogical reasoning or Qiyas.

135.The only provisions requiring consideration in matters of homicide are sections 303 and last portion of 307 headed 'attempts by life convicts. Section 303 provides for punishment of death for life convicts while the last portion of section 307 provides for the same sentence, for life convicts guilty of an offence of attempt to murder. Provisions for death sentence in either case bas obviously been made for administrative reasons and for maintenance of discipline in prisons. The view of Muslim jurists also is that death sentence will be awarded to the accused for recurrence of the offence of murder or repetition for the fourth time of the offence of taking liquor and this can be done for administrative reasons.

136.The only fault one can find is in sections 302, 304, 304-A andl provisions about hurts and that only to the extent that they do not providclg for Diyat or blood-money or compoundability. For this only neccssar� amendment is required.

137.The amendment in section 302, P. P. C. will be three-fold. The first amendment will be the addition of a paragraph to the effect that in case the Wali of the deceased pardons the accused somewhat and the Court competent to confirm the judgment of conviction and sentence of death if awarded, considers it a fit case for permitting the offence to be compounded and finds that there has been a genuine composition may substitute the sentence of death by the sentence of payment of Diyat quantum of which shall be laid down in the Schedule to be attached to the Code and for payment of which time shall be fixed by the Court.

138.It should be clarified that in case of default of the accused convict!, to make the required payment by deposit in Court the sentence of death shalUI'

1980 MUHAMMAD RJAZ V. FBDl!RAL GOVERNMENT F s C 37 (Aftab Hussain, Member) property there. Anyone killed the thief it would be a case of unjustifiable murder.

123.It is thus clear that exceeding the right of self-defence if in good faith would not amount to murder but if it is exercised despite'X knowledge that no case of self-defence is made out it would amount to murder. The Penal Code and Sunnah are, therefore, unanimous on this point.

124.Exception II[ is about a public servant causing death by exceeding his powers in good faith.and believing bis action to be lawful and necessary for discharge of bis duty.

125.I have not been able to discover any Qur'anic verse or any tradition of the Prophet (peace be upon him) to the contrary. It is, however, clear that the very fact that there is no intention to carry on unjustified killing would remove his act from the ambit of premeditated murder ( ..\oc. J:i).

126.Exception IV is about the causing of death in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

127.Such an exception is available in the Sunnah of the Prophet (peace be upon him). Two women of Muzail tribe fought with one another. One of the m hit the other with a stone which caused the death of that woman as well as the child in her womb. The Prophet (peace be upon him) awarded Diyat for the death of the woman and directed giving of a slave or slave girl for the death of the child.

lt8. Several principles can be deduced from this tradition :

(I)When in a sudden fight between two unarmed women one of them in the heat of passion picks up a stone and throws it on the other, thus causing her death it is not premeditated murder ( .l� J:i ).

(2)The stone not being a weapon es such knowledge could not be brought home to the offender that it must in all probability to cause death or such bodily injury as is likely to cause death (see section 300). The offence could not, therefore, be of premeditated murder.

(3)The causing of the death of a child in the mother's womb is not homicide. If it had been so full Diyat would have been awarded for its death also. This is the same principle as laid down in faplana­ tion Ill to section 299.

129.There are other traditions also about i.e., giving of a slave, or slave girl, horse, mule or 500 Dirhams for death of the child in the womb. I t, therefore, appears that in that case it was a fine for the injury caused to the woman.

130.There are however two traditions in which the pregnant woman was killed. One is the tradition related above and the other is of killing by a staff with the result that the child in the womb was killed.

131.In that case the Prophet (peace be upon him) ordered the assailant to be put to death and also to give a slave or a slave girl to the heirs of the dece ased.

132.But from these instances it cannot be deduced that killing of a child in the womb amounts to commission of homicide. In KitabUI Fiqh by

40P SC ALL PAKffl'AN LEGAL Dl!CisiONS VOLXXXlt

an accused, if he i! a Government servant, may be the members of the s ainc aervie� in his immediate Department. He relies for this proposition upon the decisions of Hazrat Umar who established Government offices and made the members of the respective office liable to pay penalty imposed on an accused for offence committed by him during his tenure of Govern ment service.

143.The adoption of this method could certainly put a check on the criminal tendencies of the members of a homogeneous :society where the rule of majority prevails or ciders and supporters can command obedience but in the present society where heterogeniety is the rule and it is difficult even for parents to claim obedience from their children, it will be almost impossible to obtain that benefit, except probably in a few cases. Such exception may be:-

(I)Injuries or death caused as a result of rash and negligent driving of a public vehicle in which case lthe owner of the vehicle can be made liable for payment.

(2)Injuries or death caused by a member of a group known for its criminal propensities in which case the leader and other members of that group can be made liable for payment.

144.In such exceptional cases specific provision can be made for payment of Diyat by owner of the public vehicle or the member of the criminal group as the case may be. In other cases no specific order for payment by Aqila need be made. They can be made to voluntarily contribute towards the discharge of the liability of the accused by providing for keeping the accused in jail to undergo the Tazir sentence till the blood-money or other compensation is deposited in Court clarifying all the same that such amounts shall be recoverable as arrears of land revenue, even after the accused undergoes full sentence of imprisonment. Those who arc inte.rcsted in his early release may then come to his rescue and make contributions for dis­ charging his liability.

145.It has already been seen that verse 45 of Chapter 5 of Holy Qur•a provides retribution for other injuries also to the human bodies eye for th R eye, and nose for the nose and the ear for the ear and the tooth for thjR tooth. This principle of retribution wil,1 bavc to be incorporated in th Penal Code.

146.Section 319 defines hurts as meaning causing of bodily pain. disease or infirmity to any person. Then certain hurts arc designated as grievous in section 302, P. P. C., they are:- Firstly Emasculation Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either car, Fourthly Privation of any member or joint.

Fifthly Destruction or permanent impairing of the powers of any member or joint.

Sixthly Permanent disfiguration of the head or face. Scventhly Fracture or dislocation of a bone or tooth. Eighthly Any hurt which endangers life, or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordi­ nary pursuit.

1980 MUHAMMAD RiAZ V. FEDERAL GOVERNM£NT FS C 39 (A/tab H11ssain, Member) be eitecuted. In case of payment the blood money shall be distributed, accordioMo personal law of the deceased amongst his heirs.

139.�This shall be followed by a proviso enumerating the persons who cannot be subjected to Qisas. These are :-

Q

(1)A person if Jess than 15 years of age ; Cl

(2)A person who is insane at the time of execution of the sentence ; an!,l

(3)A person killing his son. J The last exception is based upon the tradition "�I I I'.,• c,;,lu .>t./J (father will not be subjected to retaliation for killing bis son). To the same effect and bearing the same meanings are traditions (.All_,Jl .1J_,J� Ja,i')' and .ll_,J� .:tJl_,JI J�.tl�). The jurists have extentled this principle of invalidation of retaliation (Qisas) to cases where the murderer is the mother and grand parent, how high so ever, of the slain. My view is that this is not a fit matter for extension of classes by analogy except in case of a mother. On account of extreme love and affection for the child no parent can be expected to kill bis/her child by premeditation except in most unusual circ umstances. This might itself be a ground for giving him/her benefit of doubt in relation to the murder being absolutely unjustified. But the doubt, on this ground will disappear with the change in the degree of relationship. In the context in which this exemp. tion was made by the Prophet (peace be upon him) the word .lll., can mean father only and cannot include father's father or any higher ascendant, 140. The jurists have also exempted from retaliation a person who becomes the heir of the deceased or of an heir of the deceased. There appears to be no justification for this principle in Qur'an and Sunnah. In any case such a person cannot be allowed to take advantage of bis having become such an heir and to claim the authority to pardon himself since a murderer cannot. be -allowed to succeed the murdered. This category should not be added to the exemption clause.

141.Sections 304 and 30�·A, P. P. C. will confirm to the Holy Qur'an and Sunnab by the addition of sentence of payment of blood-money or Diyat quantum of which as stated above shall be laid down in the Schedule to be added to the Pakistan Penai Code. It should also be provided that after recovery the amount shall be distributed amongst the heirs of the deceased according to his personal law. No doubt time shall be fixed for deposit of the blood-money in Court.

142.In this connection, it is worthwhile noting that according to some traditions the payment of Diyat would directly be made by the helpers, relatives, sympathisers of the accused or by the group to which he belongs (Aqila). The principle for fixing the liability to pay blood-money on persons other than the accused is that those persons being in a position to influence the actions of the accused should be reminded of their duty of keeping the accused as well as other members of their group under control and check their criminal activities. Thi� is a form of collective fine upon the helpers, associates and companions etc. of the accused. The list of supporters or hetpcrs is not prescribed. 'It may very according to circumstances. According to A'bdul Rahman Aljaziri {see Kitabul.Fiqh, Vol. 5, page 716), the Aqila of

42FS C ALL PAX:isTAS LEOAL Dl!CISIONS VoL. XXXII

in such cases but keeping in view the principle of equality and that t cutting of the limb. ought not to involve cutting of bone. Qisas shall al� be provided for Mozaha (��.,..) a wound caused on the head, forchca or face by a cutting or stabbing instrument or weapon which exposes the bone. It should for these reasons be provided that execution of sentence of Qisas should be preceded by medical examination in order to find out whether equality can be maintained without causing an additional injury and to make sure that no bone would be effected during amputation or cutting.

154.Another point which is to be kept in view is that provisions for Qisas will have to be made in sections relating to intentional causing of grievous injury. Such sections are sections 326, 329, 331 and 333. Other sections like 335 and 338 are of causing grievous hurt unintentionally for which the only sentence in Shariah is compensation. In all the sections relating to hurt only the provision for payment of compensation requires to be added.

155.Since the compensation as fixed by the Prophet (peace be upon him), varies with the nature of the injury it would be better if a schedule describing the standard compensation be added in the same manner as it is added to the Workmen's Compensation Act and reference to the Schedule be made in the relevant sections of the Code. The maximum amount of Diyat may be fixed and it may be left to the Judge to award such amow1t as be thinks fit keeping in view the circumstances of each case and the financial position of the accused.

156.The Sunnah of the Prophet (peace be upon him) lays down the following rules about compensation :- Arabic Name of Nature of Injury Compensation Injury.

� J,i Murder whether inten­ tional or unintentional or consequence of a rash or negligent act.

Grievous hurt Full Diyat.

.,r Destruction or amputa- • Full Diyat if the membe tion of any member or of joint is single e.g.

joint in the body. bone, tongue sexua organ.

,.;,; .:::..,.-;.,, ��I I. Permanent impairing of 1/2 Diyat if/the members the powers of any are in pairs and perma­ member or joint. nent damage is caused to one member, e.g. eyes, ears, eye-brows, hands, feet.

2.Privation of sight of 1/2 Diyat if in quadru­ either eye, hearing of plicates e.g., eye lashes.

either ear, ol' of any member or joint.

3.Cutting of one lip J/2 Diyat

4.Uprooting of the hair ofthe bead, eye

1980 MUHAMMAD RiAZ V. f£Dl!RAL GOVBRNMBNT FS C41 (A.flab Hussain, Member)

147.The tradition from Anas th.at the Holy Prophet (peace be upon him) would direct or .re(:ommend pardon in cases punishable by retaliation (Qisas) bas already been referred to. The object clearly was to avoid Qisas as far as possible, This P,Olicy appears to have been followed in cases of grievous hurt too.

148.Qi,as or retaliation for death does not pose any problem since whatever might have been the manner in which the accused killed the deceased the manner of his execution was . by sword. The aim was firstly to fix one method of execution of all criminals sentenced to death and secondly that the execution should be by a simple method causing the least pain or suffering to the convict.

149.But Qisas (retaliation) in 'eye for eye, and the nose for the nose, and the car for the ear, and the tooth for the tooth' presented difficultie s. The term Qisas is considered synonymous with Musawa i.e., to make a thing equal to another thing. Qisas., therefore, mCdns making the punishment equal to the crime Sahib Muslim by Abdul Hameed Siddiqi, Vol. Ill, 895, Note 2125. To cause harm to the assailant equal to the harm i.aused by him to the victim is not possible in many ca�es. Different principles have therefore been evolved to mitigate the probable inequality the ullimate emphasis in most of the cases being on the alternative sentence of payment of com­ pen�tion.

150.Thus Imam Muhammad reports on the authority of Imam Abu Hanifa who reported it from Hamad that Ibrahim said that if the accused cuts another person's foot, the foot of the former should also be cut.· But if it be not possible to obtain retaliation be should pay compensation (Diyat). It, therefore, follows that inability to cause the equal or almost equal injury would entitle the claimant to demand compensation.

. 151. It is for this reason that retaliation in cutting a limb is limited t cases where the limb is cut from the joint. It is not permissible to cut o injure the bone.

152.There is no Qisas :- (I} In fracture of the·bone in yiew of the tradition of the Prophet (peac ,.i be upon him) p-li.JI �t.,.; �

(2)If full nose is cut since it would require cutting the nasal bones.

(3)For the same reason if the cutting of the limb involves cutting of th bone too or cutting of a finger from a place other than the joint.

(4)If the eye is gouged,

(5)In cutting of only a part of the lip.

(6)In cutting of a tongue.

(7)If an additional finger of the victim is cut.

(8)In the cutting of skin of the head or the body or cutti(lg the flesh. o the check, belly or back, or in the cutting of hair.

(9)In causing a WO!Jnd going to the brain; stomach wound or dislocation of bone in view of *e tradition :

d .ill:..JIJ .i.i:11:, J .ii,-.WI ->J; y

153.The sentence in the ver(IC related to above I. e., eye for eye, no for �ose etc.-will apply to cases of permanent privation of the sight of ey� s cu_ttmg of ear, amputation of any limb or organ of the body. Provisions fo�1) Q1sas shall, therefore, pc made subject to the rights of ;he victim to pardo

44FSC ALL PAJtiSTAN LEGAL DEC\5\0NS Vot. XXXII

2.Ohair Jaifa

(a)Damigha Rupture of the skin . Zaman causing bleeding.

(b)Bazia Bone not exposed .,

(c)Mutalahima Lacerating the flesh.

{d) Moziha Exposing the bone "

(e)Hashima Fracture without disloca­ " tion of bone.

(f)Munaqqila Fracture and dislocation 0 of bone.

157.The compe&sation know as 'Zaman' is not fixed. It is compensa­ tion for hurts for which no Diyat or Ursh in the form uf percentage of Diyat is fixed. It should be left to the Judge to fix the amount of Zaman compensation keeping in view the nature of the injury. He should also add to it expenses borne by the complainant and any other loss suffered by him which may be provable as liquidated damages. This will obviate the necessity of his filing a civil suit for damages.

158.While amending the sections about hurt principles laid down for amendment of provisions about murder shall be followed with the difference that cases of Qisas in matter of hurt shall be i:ompvundablc with the permis­ sion of the Sessions Judge.

Ta'azir:

Existing provisions about punishments shall be retained as ta'azir punish­ ment on the principle already discussed and may be pronounced in addition to the sentence of compensation.

159.For the reasons gjven above I dismiss S. P. No. 20/79-Karacbi and S. P. No. 1/79-Karachi and allow the other petitions and direct that the amendments be made in the different sections of the Pakistan Pc:nal Code as suggested in paras. 137, 138,.139, 141, 144, 145, 153 to 158 of this judgment. This decision shall be effective as from the 1st April 1981._ Before parting with this judgment I would like to place on record my appreciation for the manner in �hich the members of the Bar have accepted the challenge of Islamisation of Laws in Pakistan. About the assistance that this Court received from the learned counsel for the petitioners, the least I can say is that it was very satisfactory. My thanks are specially due to Mr. Khalid Ishaq but for whose assistance as amicus curiae, I would not have felt confidept in determining sl.lme difficult points, ZAKAULLAlf LooHI, J.-1 had the advantage of going through the judg• ment proposed to be delivered by my learned brother Mr. JuMice Aftab Hussain. I would, however, like to add a few lines of my own.

2.We h.ad before us four sets of petitions in which repugnancy of some provisions of Criminal Procedure Code and Pakistan Penal Code with the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) (hereinafter reterred to as the Injunctions of Islam), has been challenged:

(i)In Petitions Nos. 13, 69, 2, 12 of 1979 and 9/80 section 302, P. P. C. read with sections 345, 401, 402, 402-A and 402-B of the Criminal Procedure Code {hereinafter described as "the Code") has been

1980 MUHAMMAD RIAZ V. FEDERAL GOVERNMli:-.T F SC 43 (A/tab Hussain, Member)

brows, eye lashes or any other part of the body. Full Diyat

5.Privation of complete •• sight

6.Privation of complete hearing

7.Loss of sexual power

8.Cutting of nose-part or whole-resulting in permanent disfiguring of the face

9.Loss of tooth other

than milk tooth 5% Diyat

10.Loss of milk tooth if amounts to per­ manent lo�s of tooth "

11.Loss of one linger or thumb whether of hand or foot. .,,_ " Injury on head or face other thall of tles1rnctio11, i111pair111e11t a11d privation of a11y member or joint. Sbaijah Khafifa Hurt on head or face in which bone is not exposed. Zaman Shajjah Mozaba Hurt in which bone is exposed 5% Djyat.

Shaiiah Hashima Fracture of the bone without its dislocation. 10% Diyat. Shajjah Munaqqila Dislocation of bone 15% Diyat. Shajjah Amma Fracture of the skull when the wound touches membrane of the brain. 1/3 Diyat. Shajjah Damigha Fracture of the skull when the wound ruptures the membrane of tbe brain, ., Note.-lf the brain injury permanenJ/y reduces the intel/igence quotient of the victim. Full Diyat. Wounds other t,lian of Head or Face 1. Jaifa When the wound enters 1/3 Diyat. the body of the trunk.

Note.-lf the wound pierces through any part of the body the offender shall be �uilty of causing Jaifa for each of the wound separately.

46FSC ALL PAUSTAN LEOAL DlctsloNs voc.xxx11 it \\-as possible to inflict an injury in the same degree or nearest to it upon the person of the aggressor as he had harm caused to his victi rn the principle of retribution should come into play, in its strict senSc' subject to the medical opinion. I would venture to deal with this aspec t or the subject according to my own understanding of the Injunctions of Islam. I may be permitted to add a few words on this point.

We are required to construe the lnjuncti s of the Holy Qur'an and the Sunnah in the light of such conditions aslwere prevalent at a particular juncture of time in the society in which slam was practised first in its true spirit and not to try to apply it by rigidly adhering to the grammatic al meanings of a particular verse and by divorcing the impact and bearing of the general scheme and spirit of Qur'an as well as the goal in view of the Holy Peophet (peace be upon him). The greatest of -exponents of Islamic Laws always adopted this course in their own times and provided a guide­ line for us. • Such other questions, as the examination of the historic al background of our people, their temperameJ\ and the place and position that they occupy in the present day civilisation are other consideration s which shall have to be kept in mind. In the present context it is all th� more necessary because the compliance of the doctrine of "eye for eye" etc. was not stressed even in the early days of Islam. The reason was obvious. The entire scheme of penology in Islam depends upon the intcrprctatio or word Qisas, and there are not too opinions about it that it means •�equalisa tion", and such equalisation was always considered feasible by the doctor· of our jurisprudence in other suitable ways. It was, therefore, that the substituted the mode of punishment of "eye for eye" by imprisonment and flogging etc. This diversion was never considered offensive to the dictates • and policy of the Holy Qur'an. Undoubtedly such departure has not bee � absolute. But the principle that can be deduced for it i!t that such departure was punctuated by the realisation of social conditions and physical impracticability of "Qisas". Before l elaborate the point further I woul refer to the Qur•anic verse which deals with "Qisas•· in exact terms so that th gradual development of Qur•anic laws during the period Holy Qur'an was revealed, may help us in understanding the methodology of its law in the field of crimes.

6.Verse 5:45 (also numbered as No. 48 in some comm�ntarics from which the principle of retaliation is generally deduced may be per first:

0)'yl1 0)°YIJ ..,ii'yl/ ...ii°YI.J �I/ i:,:.JI.J �4 �I 01 lf.; �•μ. �J � ,:,,. J • 4' •JI.& > ,ti •1 c,j.i.,.J � • ifl,.1 c_.J�IJ i:i-J4 i:,-)1.J • i:,_,.U.JI ("" 1!1!)_,U .iii J,;il � �

� ..s- lt; lf>J � J� 1J_,ili ""' c 1:.. �1.,..1 ,.i" � r-" (r,rt,,) . $ y,, c._,� I_;.. S v-1 �.> ,? Ju (Ja- li) _,f" � i.r5" � � ..J.Ai Ii' Su - .:>ts' •l.ll ts' .:>ts' - f5JT 4'.11 ts' ._s::;i . 01⁄2, .u-'l ts' 0� . c.Ji,. 1_;. �.,:-. ,_,,. J:i r.J':' ..;? � . .,;.ii.> 4.1.11 t( .,;.;IJ _ S"li S �1⁄2, �.> I_;..$ v-� � rr:- ,./" l..il vU U,J.? �J _,f" �

J980 MUHAMMAD RlAZ 'V. FEDERAL GOVBRNMENT F SC 45 (Zakaullah Lodhi, Member) challenged. Besides this, some other provisions of the P. P. C. which have relevance with section 302, P. P. C. in it, that they deal with the scheme and operation of the P. P. C., such as sections 54 etc., and some provisions of the Code of similar nature have also been challenged.

(ii)Petition No. 4/80 challenges some of the offences against human body covered by sections 325, 326, 329, 331, 333 and 338, P. P. C.

(iii)Petition No. 12/79 challenges the provisions of sections 337, 338 and 339, P. P. C. read with sections 224-B and 133 of the Evidence Act.

(iv)Petition No. 12/79 assails the maximum penalty prescribed by • P. P. C. to an abettor of offence under section 302, P. P. C. In this petition it has also been challenged that in a case of intentional murder, more than.one accused cannot be awarded capital punishment.

3.Dealing with the first set of petitions, suffice it to say that th points involved in these petitions were subject-matter of Petition No. 7/1979, decided by Shariat Bench of Peshawar High Court, on Jst October 197 �u (P L D 1980 Pesh. I). As this Court is only a successor Court, in my humbl U view, these points cannot be re-examined by us. We have also been informed by the learned Deputy Attorney-General that an appeal has since been filed by the Government against the said judgment which is pending decision.

4.Some questions were raised before us with regard to the existin legal position in the relevant field with pointed reference to some lacunas alleged to be appearing in this judgment. In my opinion it would onl be relevant to raise such points before the Court now ceased of juris diction in the matter. As far as this forum is concerned, it cannot go int them in exercise of parellel jurisdiction. I am also very humbly unabl to contribute to the view taken by my learned brother on the poin of jurisdiction of Peshawar Bench. I am quite clear in my mind that the jurisdiction of a Shariat Bench bas no nexus to the Courrs territorial jurisdiction. It rather extends to laws, irrespective of the list in th Constitution on which they find place. I may also add that once a la V was struck down by any Shariat Bench of a High Court being repugnant V to the Injunctions of Islam, it became extinct as from the dale fixed b the judgment, and such decision was binding on all Courts. According! the question of any complication, as pointed out by my learned brother, also did not arise." The reference to the number of Judges in the Federa I Shariat Court vis-a-vis the Shariat Benches is also insignificant in view of the fact that all these Benches enjoyed identical jurisdiction as the Federal Court now enjoys. Since the jurisdiction of these Benches had relevanc � to a law examined by it and not to a particular territory, therefore, the possibility of conflicting judgments by different Benches, was also out of question, as discussed by my learned brother.

S. Petition No. 4/80 questions the scheme of the penal provision regarding offences against human body, enumerated supra, in It, that they did not provide for "Diyat" and 'Qisas' in terms of the Injunctions of Islam, as they do not provide for inflicting similar injury o the aggresso IJ' i.e. "eye for eye" and "ear for ear" etc. I am in respectful agreement with W the main conclusions arrived at by my learned brother in this context. However I find myself unable to contribute to the observations incorporated in para. 153 of the judgment. These are to the effect that in cases whc

48 F SC ALL PAKisTAN LEGAL DBCISiONS

down the law, while the other part is to �e read with other directions in th book and a law suiting to the needs of the society is to be legislated. Th! gradual �h�nge in the conditions existi�g in the said early period in Arabia brought 1t into th� _fold:1 of a well-kmt, perfectly organised and extreme) homogeneous political state. Henc.,, the demands of the society also changJ tremendou_slyi acco�dingly ali�e the field of in�entioual murders in this field also the principle laid down later on was "pumshment" proportionate to tho gravity of offence. It is evident from verse "42:40:

-1.t�it-�jl� - S.,. � ;l:�1 J:. �_,;Sr� i,;.. Sr.?.'-- (r.H-'-<) Verses 2:194, 10:217, 16:126, 22:60, 40:40 also explain this principle. Word l.,I:.. does not mean physically the same, but connotes that it should be proportionate the methodology adopted in exposing the existing laws and declaration of laws on a point, by Imam Abu Hanifa is exactly in line with this thinking. Then this pactice is not confined t� the sub.iect in hand alone. Directions in some other walks of Jife have also passed through such phases. We.also notice in "Hadith" that the Holy Prophet's decisions on the same subject have been different. For an offence of theft limbs were mutated first and then the offender was killed. In Hazrat Umar'a decisions we find apparent departure from Qur'an, though when judged in the light of spirit of Qur'an, at least I find none. I would however, omit to cite examples. I am also of the view that while pressing a particular ·"Hadith" into service, the particular period and existence of Qur'anic directives u ntil that time should alwass be kept in view. Since we do not have authentic record as to the facts of each case, and the time a nd circumstances. With res�ct to each "Hadith", they should be used with utmost caution, when legislating. Another noticeable feature of verse 42:40 lies in its •• e--'I s:.�I ir .J part" ;. e. ac ulprit can also be forgiven if chances of his correction (c;..,..1) were reasonably possible, Where would be the questio� of (C:.�I) if the principle of "eye for eye" was enforced in the first instance. Visible change of mode and method in the decisions of criminal case,- i., the times of the Holy Prophet (Peace be upon him) is further evidence of the fact that Islamic laws did not stand where they were in the beginaing. They rather showed a marked change with the passage of time and unfolding of new and novel situations and exigencies. It is thus necessary to assess and interpret Islamic Injunctions in these historical and social perspective, before arriving at a final conclusions on any point; for it is in this, that the universality of Islam lies. The guiding rules should however be not to offend the spirit of any of the Injuuctions of Islam. As far as clear directives are concerned, there is, of course nq op.!ning for any .debates or deliberations. As· I have said above, Jurists of the day had to find a via media and provide for alternative punishment by way of imprisonment etc. of the culprit in such cases in which causing of exact harm to the culprit was not possible. Some authorities have been quoted by my learned brother on the point and I need not repeat or reinforce them. . I am thus of the view that inflicting of bodily harm to an offender should be complete! eliminated from consideration and it should be substituted by imprisonment A or any other suitable mode of punishment in addition thereto as th 4 Legislature may consider proper. Even otherwise ''equalisation" as is mean by the term "Qisas" in terms of Shy-locks "Pond of flesh" is never possible. This verse or any other verse on the point also docs not take into account;

l.980 MUHAMMAD RIAZ V, FEDERAL GOVD.NMfNT FS C 47 (Zakau!lah Lodhi, Member)

_ '-:> ;' .;i.... � rr:w .:,,.-;.... f, J.cJ-S .JA J!.::... r� 1.:,. J.,, -: S �� .JA -.,Lif' I> 1_;.. S rJ�P. � i1 Explaining the background of Islamic dictates on the subject of penology, with reference to this verse A. Yusuf Ali, unquestionably an eminent commentator/translator, explains in Side Note No. 554 that "The relation is prescribed in three places in the Pentateuvh, viz., Exond, xxi. 23-25; Leviticus, xxiv. 18-21, and Dent. xix. 21. The wording in the three quotations is different, but in none of them is found the additional nder for mercy, as here. Not e that in Matt. v. 38 Jesus quotes the Old Law "eye for eye" etc., and modif ies it in the direction of forgiveness, but the Qur'aoic Injunctions is more particular." It is obvious that in its earlier part, the verse explains the unflexible law that existed in the days of the Moses and the other part explains the flexibility shown by the Holy Qur'an. The earlier part of the verse is in the nature of "Khabar", whereas the later is law laying. It would hardly need a mention that a "Khabar" falls much too short of a "Hukm" (direction) and its compliance is also not absolutely binding. It will have a binding effect only if nothing else was to be found in the 'Book' or the "Tradition" relevant to the point, The reasons of rigidity in the earlier times have direct relevance to the conditions then existing and the flexibility tater introduced is also directly relevant to the state of things at the time of advent of Isbm. God Almighty in His infinite Wisdom makes this apparent by the scheme of the verse itself. Gradu'al process of revelations on the same subject cannot be tak1m lightly. Hence, the Holy Qur'an and Hadith shall have to the interpreted in the light of evolution of human society and its demands at a particular stage of time of course, such process should not defeat the intent and purpose for which Holy Qur'an stands. Qur'anic laws were systematically revealed over a period of about 23 years and the purpose behind this process was to gradually introduce the change in the existing mode of things. so that by gradual character building of the people, social conditions could be changed. This process continued till the people were psychologically prepared to receive and follow the ultimate or final laws on a particular subject, and no scope for revulsion and thereby defeating the Islamic system of life was left open. Such is the method of evolution as opposed to revolution introduced without preliminaries; and their ultimate results are not rare in the annals of human history.

7.At the time or advent of Islam social system of Arabia (people of which were prepared, to be used as nucleus for the wQole world) was strictly Tribal in all its characteristics. They were accustomed to old system of retribution namely "life for life" and "eye for eye" etc. without this their thirst of vendetta would not be quenched. Initially in the field of intentional murder a change was introduced to restrict indiscriminate killing, and it was directed that a slave, could be killed for a slave, a free man for a free man and woman for a woman (see Peshawar Judgment for further elaboration). Later on the course of criminal liability was diverted to the culprit alone with a provision for "Diyat". See the principle in (t.S_;.I ljj., •Jj lJ JY 'JJ - � ")'I � ,1 � 'lJ) Similarly in case of offences against human body the principle of "Diyat" was introduced so that chances of peace and harmony in the society could be promoted. The 'Qisas' part was given the form of narration of Jaw that existed earlier. It is thus binding to the extent that it lays

50FSG ALL PAKisT AN Ll!GAJ. DBCJSioNS VOL. XX,Cll heirs of the deceased, and l need not repeated the same. Even otherwise I have not directly touched that subject. I may only remark here that Islam condemns destroying of life in strongest ferms when it says (symbolica lly) that killing of an individual is killing of the entire humanity. As said above, various shades of intentional murders in the light of their respecti ve background is a matter which differs from circumstances to circumstances, and it should therefore be dealt with keeping in view tho social condition more than one person could not be killed as against one life is too wid a a proposition: and not free from diffieulty at the same time. But it shal a be in the realm of the law-makers to give it due consideration. Verses 5:101 and 102 arc clear on the State responsibility to enact suitable laws on th subject in the light of the injunctions on the point found in Qur'an. Such legislation is covered by the term "J::.pUJ" or "ol,i..,:--" for which the "v" ':111_,J.,t'• is competent. See verses 5: 101 and 102. . �, Jr ($l t./':t' (hf w�; � .s J,.., � t �.,.. •$� ,, (r.H-�> �:.. vfl � � _$11 � � }'I �.>:f') J�_,. .:... � "J� �� 4J" ;}� � �L.J •., � ;JI $1.'1⁄2lf JI) J.y.. # •.J _Ji Yl ;- • .,,. Jd. u� tr C:,1 i},J'-f.l; 4 v:f.- G.l V:t' ,n.. r c.)__,.-w /t Jl ;1.,.-t '-J�- jj L ISJlt- ..W.. tr U--' J_,J ....-� {( �1⁄2- -$ :u� .,,.

'3⁄4 oJ.,... c.sf!.,., Lf '1,) � �u. 1>.;,

10.The other part of the contention is about the difference of opinion among the Judges and credibility of approver's evidence. No suggestion is to be found in the Holy Qur'an on these points. In fact in the early period of Islam, which ended wih the demise of the worthy Caliph JV, a system of more than one Judge deciding a particular case was not in vogue. Even thereafter in the period of (4_,L.) any example of this kind is not to be found. However, in the early days of Islam a principle in the nature of review or appeal had gained ground; though vague and indefinite; as codification of laws was not in practice. Accordingly, apart from the fact that such questions fall beyond the scope of this Court's jurisdiction being matters of procedure, it may be usefully remarked that suitable laws on the point! can be formulated, keeping in view the principle of "Ada" which is the edifice of Islamic judicial system. Morcso, because the Quranic Injunctions and the "Hadith" and major part of jurisprudence developed later, onl)' appears to be tackling the cases of direct murder. Since the treatment of this subject is directly and substantially dependent upon the law of evidence in Islam, therefore, a few words may be added here. Alike many other matters, in this field, -also we find only the basic principles.

Firstly, Qur'an emphasis oq the duty of a Judge (1,S"li) to be fair and impartial. It was enjoined upon Prophet Daud in his capacity of decision-making authority, to decide litigation fairly and impartially. Verse: 38:26 � ,),.,... c.. "'' • 4 u.;. Jt� (hf ..si. �- L � ,)Jb LI <r.,.,....) � ..,.t JJI ,.;' t3t.. t:. � J:t-i· J:JJ--1 ..Jl.:l.£ cJ./.,J r3 � �

1980- MUHAMMAD RiAZ v. FEDERAL GOVERNMENT F SC 49 (A/tab Hussain, Member) among others, the circumstances in which any injury was caused, such :u grave and sudden provocation, self-defence, and its varying degrees, defence of private property and principles connected therewith. The field has been thu� left wide open by the Holy Book itself for "Jjtehad".

7.Petition No. 12/79 raises the same contentions which have already been dealt with in above-referred petitions. No discussion about the provisions of the Evidence Act, assailed therein is necessary, as I contribute fully to the views of my learned brother that this being a question of procedure falls outside the scope of this Court's jurisdiction.

8.Petition No. 1/79 raises two-fold questions namely (;) that the evidence of an approver is no evidence in the eyes of Islamic laws and that evidence of an unreliable witness is also no evidence upon which conviction can be based, (ii) that in case of difference of opinion among the Judges about the liability or otherwise of an accused, benefit of doubt should be given to the accused, and (iii) that an abettor does not deserve capital punishment.

9.From amongst the issues, bifurcated by me above, I would like to initially dilate upon the set of contentions coming first. Islam bases its entire social structure_ upon "J.1.a" which in common parlance would mean "equity" (JJI�) or "equilibrium" and the scope of this principle extends to aJI walks of life and not to the decision of litigation by a Qazi or Judge alone. As to the question of decision of case of intentional and unintentional murder, we find definite Injunctions in the Holy Qur'an namely in verses 2:178, 179, 5:48, 17:33, 4:92 which have since been referred to by my learned brother. Briefly narrating the import of these verses it would be sufficient to say that verse 2:178 is meant to bring about a change in the society that existed at the time of the advent of Islam, whereunder :for one loss of life on one side more than one lives and that too irrespective of social status or seic could be destroyed. The rule that was laid down first was that a slave should be killed for slave, free man for free man, and woman for woman etc. but it also made an improvement in the existing common law that retaliation could be avoided by payment of "Diyat". This was the state of affairs when the law of land was not yet modified to fix individual responsibility, and there should be no wonder about it; for, in a tribal set­ up, the rule of collective responsibility bas always been in c11rrency all over the world. Verse 2: 179 lays much stress on "Qisas" by saying that there was life in 'Qisas'. Evidently it emphasises upon deterrent punishment so that a citizen could not imagine of acquitting himself cheaply after destroying a life and paying blood-money. Verses 17:33, 4:92 are not relevant for our purposes as they deal with unintentional murders. Apart from these categories of murders another distinct category of laws deals with criminals waging war against an Islamic State and committing highway robbery or dacoity coupled with murder, This is all what we find on the subject of murder. These verses are conspicuously silent as to how different kinds of intentional murders would be dealt with. This field is again left open to the future legislators who would utilise it best according to varying times and situations. However the rule in case of intentional murder is death penalty, while compounding the same was merely a concession. Much has been said about the manner and method in which such compounding was to be given effect and also about the state prerogative to punish the offender despite forgiveness in lieu of "Diyat" by the

52FSC ALL PA&isTAN LEOAL•DJ?cisioNS Vor... XXX\t committed under coercion not only the person committing the crime physically but also such other person who had been guilty of exerting coercion o the offender was responsible for the crime being an accomplice, There is, however, difference of opinion on the point of equal treatment of all o them as to the quantum of punishment. The Hanafi School holds tha] such person shall not be executed in retaliation (pages 533-537), Vol. V o Kitab-ul-Fiqh by Abdul Rehman Aljaziri. This view appears to be mor reasonable. But we also come across cases in which the actual offender was an unwilling party, and the amount of coercion exercised upon him was to such an extent that he had no alternative but to submit to the abettor's will. In such cases rule of prudence should be to judge the nature and extent of coercion. If it was of such a degree that instant death or such instant irrepar.ible loss was feared which could not be repaired at all and there was also no imaginable chance of resorting to law-enforcing agencies, then it should not be the actual offender who should receive maximum penalty but the abettor would deserve such punishment. But in the absence of such circumstance, which occurs rarely, there appears no reason wh law of the Hanafi School should not be followed. I am thus of the vie that an abettor can only be punished with maximum penalty when it w proved beyond any shadow of doubt that the quantum of coercion put upon 0 the assailant placed him in the danger of instant death or something D high as that in terms of losses. Remote and indirect threats and D apprehensions cannot be used for lessening the burden of the actual offender. In such a case the abettor shall be dealt with lightly in the light o the facts of each case. The petition is thus dismissed subject to these observations.

KARIM4LLAH DURRANI, MEMBER.-While I am in agreement with myje learned brother Sheikh Aftab Hussain, Member, in the conclusion that h�f has reached and g'!nerally with the reasoning by which it is supported, I cannot, with profound respect, agree to the effect of the decision in Gui Hassan's case (1) given by the Shariat Bench of the Peshawar High Cou to which I was a party. My learned brother is of the view that th declaration therei11 of repugnancy to the Injunctions of Islam of sec tions 54, 55 and 302 of the Pakistan Penal Code and sections 345(7) 401, 402 and 402-B of the Code of Criminal Procedure ,with the relevan parts of its Schedule cannot have its effect on the state of law beyond th territorial jurisdiction of the said High Court. To my humble opinion thi is not the correct appreciation of the contitutional position on the subject F Articles 203-A, 203-B, 203-C, 203-D and 203-E of the Constitution as incor F porated therein by President's Order No. 3 of 1979, governed the compositio F and jurisdiction of the Shariat Benches of the superior Courts. The position under these articles was that after a Shariat Bench had made a declaration of repugnancy to the Injunctions of Islam of a certain Jaw or provision of law, "such law or provision shall to the extent to which it is held to be s repugnant, cease to have effect on the day the decision of the High Cour takes effect" {clause {b) of sub-Article (4) of Article 20j-B), I am, therefore, of the view that this cessation of effect is not confined to the territoria limits of the jurisdiction of a High Court as would be apparent from clause (a . of the very same sub-Article of the Constitution which reads as under:- "(a) The President in the case of a Jaw with respect to a matter in the Federal Legislative List or the Concurrent Legislative List or the Governor in the ca�e of a law with respect to a matter not enumerated in either of those Lists, shall take ,teps to amend the law so as to (1) P L D 1960· P�sh. 1'

J980 MUHAMMAD RiAZ V. FEDERAL 00VEllNMBNT FSC SI (A/tab Hussain, Member) .:,II "I J ; l,.S- l-.!I L. � ,f I - .J) ,t}J.) Ai �.> Wal _,r' o�� �I .s c:...> ;> .,.,.r -=- •'J s ,.,.. �•f In Verse S:48, the Holy Prophet was directed in these terms: i.,.. • L s JJu .ii.. L � "'l.> "'4 d), tSJ\rf ��C .Jr&-) r μI ..::.�� £. C:,I JJI ,f � cJ1 Ila.., £. yl.S' v-1 ,d:,aJ} � u./_,J • _,1:,- ..:,,. � J:. u_,!.,. lfa There are other verses too, on this point. However on the principles of evidence, verses 5:58 and 70:33 may be referred to, as they deal with wioesses. In the matter of evidence verse 17:36, enjoins upon the Judge first to make all kinds of inquiries to satisfy himself that all the links in a case before him were perfectly available. After so directing the Qazi, the witnesses arc addressed as under:

s "ili .,s- J.\s r .::} £.. ,cl,) O.>l,-..! J� pJ �.,.. �l� "' (r�) .::'I I:! .>lL. ..,..S- � J.JI -J� .JA c:..;&>' .n J.,1 ��• ;} £. � - J� ),U.. S .ill � 4 � ,;}£. J..a'i.. JI� In this connection verses 4 : 135 and 5 : 8, 2 : 282-3 may also be referred to. Verses 5:107 and 108 enjoin upon the Qazis (Judges) to summon oth er set of witnesses in case they did not believe those that were produced before them by anyone of the rival parties. Logical deduction from this wo uld be that if no other witnesses were available and thus that had been produced before the Qazi were not worthy of confidence, benefit of doubt would go to the accused. Holy Qur'an has laid much stress on the point of corroboration of evidence, Verse 5:106 has direct relevance to this principle. There is, however no direct revelation about the use of circumstantial evidence for corroboration of ocular testimony or as independent evidence • to base conviction in a criminal case. Same is the case about the worth or weight to be ·attached to an approver's statement. It is phenomenon which has attracted the modern system of laws. But in the scheme of things as they stand in the Holy Qur'an there is also no reason to put a clog on the use of such evidence, provided it was logically and reasonably helpful in the fair decision of cases. Hence this should also attract law- maker's attention. �

11.NeKt comes the contention that an abettor could Dot be awarded capital punishment.. Qur'anic Injunctions were silent about such criminals ; hence the principle of !'Jjteha<l" should be invoked. The concept of mens rea is of fundamental importance in Islamic legal system. I� � evident from the distinction created by the above-cited verses which dist10guish accidental murder (Jt- J:i) from intentional murder (� J:i)

I

The rule thus is that the physical punishment is for intention and act both �od not for any one of them independent of the other. However, in the light of Qur"anic Injunctions it is often argued, that punishment of crimes in la lam mainly de pends upon the direct act alone. I do not hold this view. � am of the opinion that primarily the punishment is for the att; and the intention behind the actual act serves as an aggravating fact or otherwise c !_ Minhaj-ut-Talibin (p. 397), "premeditated homicide" has been� c ,.;ussed, The view was that in the cases in which murder had bee c

S4FSC ALL PAlCLSTAN LlloAL OEcisioNS Vot. XXXU under referrence as no other Shariat Bench, either before or after the late specified therein i.e. 1-12-1979, has made a contra pronouncement in t his1 regard and therefore the only decision in the f ield, so far, is that of the Gui Hassan Khan's petition. I would not like to further indulge in discussion on the competency of the petitions agitating the same question before us as after having had the benef it of the perusal of the judgment of the learned Chair­ man and in view of the fact that I myself am mainly in agreement with the essentials of that as well as those of the judgment of my learned brother Aftab Hussain, 1. am confident that the decision of the Court on the petitions in hand is not going to differ in any material aspect from that which was pronounced in Gui Hossan's case by the Shariat Bench of the Peshawar High Court.

Also I cannot persuade myself to agree with my said learned brothers on the non-permissibility of complete pardon by the heirs of a victim of 'Qatl-i-'Amd' to the murderer. In my opinion verse 178 of Chapter JI of the Holy Qur'an cannot be read in isolation of the other verses of the Holy Book, It has to be read in conjunction with other verses on the topic, of 'Qisas' and 'Afuw' found in different chapters of the Qur'an. The various 'Ahadith' of the Holy Prophet (Peace be upon him) on these topics arc also to be kept in mind while interpreting the verses under reference in order to see whether total pardon is available to the culprit of the murder mentioned therein.

After a careful study of these verses and the 'Ahadith", I have come t the conclusion that the heirs of the deceased in 'Qatl-i-'Amd' are entitle to grant total pardon to the culprit in the same manner and in the same r,K Qatl-i-Shubh-i-'Amd' and 'Qatl-i-Khata'. They arej fully entitled to c forego the right of realization of the whole or a part of the amount o Diyat in the same manner as they are entitled to forego the right of Qi1as. But it has to be noted that in case of complete pardon by the· heirs of the Maqtool in 'Qatl-i-'Amd', the perpetrator of the offence is not absolved of his liability to Tazeer, as he is not purged of the 'Zulm' which he has committed on the Society by takiag life of a Masoom-ud-Dam I.e. a human being whose life was not legally forfeited to the State in punishment of a crime. I am in full agreement with my learned brother Aftab Hussain, M., when he says that in case of this type of murder, the Right of God is merged with those of J:lis creatures (Hagooq-ul-'Ebad) and that the prescribed J punishment in this offence i.; 'Qisas'. It is only a reduction of sentence on behalf of God Almighty which comes as a blessing from Him to the accused that this punishment gets converted into payment of Diyat to• the heirs of the deceased on partial pardon by them and once JJiyat is paid both of these nmalgamated rights arc expiated. Although pardon in toto b the aggrieved party absolves the culprit of the Rights of man, th . Rights of God which had merged into the Rights of men on the commission of the offence gets, on a complete pardon, separated therefrom and stand revived. This Right of God on account of the clement of 'Zulm' in the offeac will be exacted in this case by the Court, who will have the discretion aftc taking into consideration attending circumstances of each case, either to awar J a suitable Tazeer to or leave the matter to rest with Allah by not awarding an sentence at all. This Tazeer can be to any extent barring the se_!ltcnce of death as to exact 'Qisas' is the right of the heirs of the deceased (l:la.l. '-:1,1 l:J.� �) 17:33 and once an option to not to have 'Qisas' is exercised by them either by way of total or partial 'Afuw �), the sentence of death stands commuted

1980 MUHAMMAD RiAz v. FeoEJt.AL GoVl!llNMENT FS C 53 (Karimullah Durrani, Member) bring such law or provision into conformity with the Injunctions o Islam."

The cumulative effect of these two clauses would be to remove the so.declar Jaw from the Statute Book from the date the relevant decision takes effe ct. It is for this reason that the President, in case of a Federal law and the Governo of the Province in case of laws falling within the Provincial sphere.,, ar enjoined upon to take steps to so amend law as to bring it in conformity wit the decision of the Shariat Bench of a High Court.

Now, this declaration of repugoancy by a Shariat Bench of a law or provision of bw to the Injunctions of Islam can possibly result in two ways. Either it would leave nothing for the authorities mentioned in clause (a) of the sub-Article reproduced above to legislate in order to give effect thereto when no lacuna is left in law with the ipso facto removal of the impugned law or provision from the Statute Book, as was the position created by the decision in Naimatullah Shah v. Govt. of Pakistan, (I) wherein clause (d) of sub-para. (3) of paragraph 25 of Martial Law Regulation No. 115 of 1972, conferring first right of pre-emption on a tenant in land sold by the owner, was declared repugnant to the Injunctions of Islam and the decision was ordered to take effect immediately with the pronouncement thereof. Or, on the other hand, it would necessitate alternate or consequential legislation by the authorities concerned where it is so required to be done in order to fill in the lacuna or to avoid chaos resulting from the removal of th o repugnant law. Nevertheless, the decision will take its effect on the cxistio �o state of law for the whole of Pakistan notwithstanding the territorial limits o G he High Court concerned. In other words such declaration a:1 is under-discus­ sion would have extra-territorii-1 effectiveness. It would not be a situation unknown in the annals of legal history, as many a Federal or Provincial law ceases to be effective in the whole of the country once it is held ultra vires of the legal authority of its legislator. Unless, of course, it is followed by a contradictory decision by another competent Court in which case the appli• cability of the decisions would remain confined to the extent of the territorial limits of the respective High Courts.

An objection was taken to the effectiveness of the' decision of Shariat Bench of the Peshawar High Court on the very same hypothetical reasonina that in case of conflicting declarations by more than one High Court, the declaration of repugnancy by one would not remain capable of implemen• talion outside the territorial limits of its jurisdiction. This objection was very ably countered- by the learned amic11s curiae Mr. Khalid M. Jsbaq, in that lhe refusal of the Shariat Bench of a High Court to declare a law repugnant to the tenets of Islam would only be of the effc:ct that law i question would remain uneffected on the Statute Book till such time as it i� fl subsequently declared repugnant by another Shariat Bench in which event II that particular law would cease to be a valid one. But position could not be the same when a declaration of rcpu'gnancy of a law or a provision of law has already been made by a Shariat Bench of a High Court and thereafter the Shariat Bench of another Hi gh Court is asked to make a contradictory declaration to that already made. In this position the latter would not be com­ petent to enter into examination of the particular law, because that law would not be existing and jurisdiction to declare a law repugnant to Islam vestin in a Shariat Bench is to so declare a law which is valid law at the time.l Be that as it may, this situation does not arise in the case of the decision (l} PL D 1979 Pesh. (Shariat Bench) 104'

56 FSC ALL PAKisTAN LEGAL Dl!CisiONS VOL, XX,Ot The earlier part of this verse is a ,,;. i.e. a statement of Law of .:.IJ_,1 but the later part is an amendmen t brought therein for "4.1-. ..:...I" The whole verse including the � part becomes law of Islam (V" I) b; .­ reading this verse in conjunction with Verses 178, 179 and 194 of Chapter II and Verse No. 126 of Chapter XVI. Many a Jurist of Islam has held 'Afuw' as a form of punishment (Al 'aquba, p. 136). The great Egyptian Scholar, Abdul Qadir Oada in his i.r"J.-'JI �.,�I Jl�JI has held that 'Afuw• (pardon) is provided by the Qur'an, Sunnah and Jjmit' (Urdu translation by �_,l•J.lr �l ...)I -'-!-t.. U':I_,.. , Vol. TI, p. 157). He is also of the opinion that 'Afuw' is better than the punishment.

Needless to say that 'Afuw' is one of the greatest God on the person who practises the same even in case of his deadly enemies or against a person from whose hands he has received the greatest harm. Verse 134 of Chapter Ill may conveniently be quoted in this context. This verse is as follows :- .iiit., J, U"WI � �WI., �I �l;�t, .t,..-JI., .l.i-JI ,j i)� i:,:tjJI o�Jl":-""'i It has been rendered in Urdu by Sheikh-ul-Hind Maulaoa Mahmoodul Hasan in the following manner :- .c':! '1� J-'' � � ,,, v.:.. �.r- IJ:.A :L� E t;,.. (Jr�.,.),-:-" �f $,} L w.L;- .iiil JJI .,.S- u�j i.r.:• 'Lf �L... JJI 4.,a.l> tJ:.A ". .,r IJi'-' The commentary on this verse by Maulana Usmani is as under :- J.)t,j $ u,/.,J 4f' ',! �}- � v-1 • L JW-- IJ1 u• U1⁄2, � _,5' J...,J." 1J:.A LJsr ..;t...4 ..;.,.- 4J JJI IJ.:I'> �.) f ..;L... J04 .,>' u,=l&U '4 "•tJ:.A L..T �.:::. $,} JJI ol-1 4 Again :-,, "o vi�� J+J �·;:� u:1., J."' �y, � J!-1 1_,,;w �!JI i)I.," It has been translated in Urdu by the above-named translator in the following words:� J,t �1⁄2, J!.:,:,i �-

,srpJ J» � J.JJ u'"I .i.l.4/ _,:; ,1 4'A/ f I �I" ". _,, ujl., 1,- L ..r-t: '.! jJ ,� ,,:� /1 The same principle has been laid down in Verse 22 of Chapter Xill :- J 4aJ'j.&. .J 1.,.. �JJ l.... foll, ;1μ1 _,..I.ii J ["ti �., #� 1.,_r,-; l)flJI," "o,1.lJI ���.,I �I u-Jt, oJ-'i Urdu translation of this verse is as under ;-=, � pSli JJI $ YJ �I _,$' u�_;. t,,.S- .r.-1> .:!... IJ� ..5'.,J •.J J,I'' tJ:!t> L..f J,t ;U; JJI e-'t,it_,. � �• �-' �;t.,. l,> [._;.. J,1 Jli "-� I( .::.;.TL .i: £. u./i ol - J,i.., v.:-- �u.. L. Jl.,1

1980 MUHAMMAD RiAZ V. Fl!OBRAL GOVB.RNM'l!NT FS C ss (Karim11/la!z Durrani, Member) on behalf of God and the offender becomes the recipient of His Rahma 7 (�J J � u• �;.; <!Jll->). This, of course, does not include those murders wh ich are committed in furtherance of 'Fasad' and/or 'Fitna'. The moment an offence of murder is found to contain elements of 'Fasad', 'Fitna' and/or of waging of war against the Society it docs not remain a case of(� J.:,) only but also becomes 'Haraba' or some other offence of the like nature. The case then would not be covered by Verse 178 of Chapter II of the Holy Book alone but would become punishable under Verse 33 of Chapter V as well whereunder neither partial nor total 'Afuw' is available to the culprit. Similar are the cases of a recidivist and of a person who kills the murderer afte.r having received Diyat in lieu of 'Qisas'. / I am fo1tified in coming to the conclusion that complete 'Afuw' is available in cases of 'Qatl-i-Amad' as it is available in 1Katl-i-Khata' and 'Qatl-Bil-Shubh-i-Amad' by the commentary of Maulana Shabbir Ahmad Usmani of Verse 178 of Chapter II. The Note appended to the i nterpretation of the phrase (1-J J �J v- � <!JJI.;) in this verse reads as under:- �t...J•'="-" �.> L l:, .,J l.)"l.J .,al:, � .w J:i .s' i:=.j1⁄2-1 "l'' �.h-> J.,:-.. i:,•ti!J JJI JiU.L '-'"w-4 JJI c:J.,,.. � .J_,l. � ..ill J-> .;3 r � JJ• "'.n �.,r� .d Y.".,., II .!,J\..,AlJ,, 1.1'1.,o., u"u.. .A ->.tt.: .. 1;

"• I� J.fa ·,U � �.> As will be seen from the above-quoted note, Maulana Shabir Ahmad Jsmani has read provision for total pardon in the verse under reference in addition to the option to receive Diyat in lieu of 'Qisas' although the word occurring in the verse in respect of Afuw ( .J" ) is which means a thing, a parcelor 'somewhat'. thus the plain meaning of the phrase, inter a/fa, would be that whosoever somewhat pardons his brother he shall receive com­ pensation for the lost life. The questfoa of payment of Diyat would only come when the heirs are not prepared to fully pardon the accused as in case of full pardon there would not be any question of payment of Diyat. As this verse lays down the provision for payment of compensation the word has been used connotes partial pardon, but it does not by intendment exclude total pardon, The above interpretation of the verse finds further support from Verse No. 4S of Chapter V which enjoin 'Qisas' for slaying of a life or for the Joss of eye, nose, ear and tooth or against any injury to the human body. An exception has been made to said rule of exaction of 'Qisas' by incorpora- tion of the following proviso therein ( .iJ o; IA> .,� "-/ oJ..<J u.; ) which was translated by Maulana Mahmoodul Hasan as under :- "- tf Y' J1⁄4 .::;. �ur ,., .,r L.i-> � .,;.;1... L. ir.- � .,r" The persuasion to pardon contained in the words reproduced above is not relative to an y particular cause for 'Qisas' and is general in its import. ffhus it has been laid down that whosoever instead of exacting 'Qisas' pardons the offender gets his sins expiated.

58 F SC AU. PAKISTAN LEGAL Dl!CJSIONS

..,S- t, L Ii->� ti'� Jl�I ,S- .,u N J�I J,-J-> J3 - JL.J at, ,.,, (b3 s � v-1 Needless to say that this Hadith is a commentary on this verse of the Qur'an:

e;'I . • . • .:;.,.J� II" 1, _,;.,JI ;i;,.

In this respect yet lUlother Hadith from the compilation -of .>JI.> J! I may safely be quoted:- �, � ..:iii � .iiil J,-J �� L. Jli IJOL. .:,, _,JI i.,- • • • • 1:.i..,.. ."-.,.W4 ·�· v" 1 'JI """t.,.; � ,.;.,:. ""' <:J

Vol. lII Hadith No. 1084 published by Qur'an Mahal, Karachi) rendered into Urdu it would read as under :- ,.. ..s::ll. cjll �I��. #JJ� i:,11 •I>., fa i:,, ..:iii¥ , J:•l.-1 .:,, i.s-_,.. �., ,r- � J •�1'- .iii J, .iii J_,YJ L.. �.. ,0 •<.fl.' �f .::.,1 J ., �T jS _,. rj'J '-""i.,.;.; � � lJ� \-ii "� r_ �T � J,f" � - (SJ"- ;t_'J., .,;.�,) L� � t> ,u.

�il,,...J I •J�'" contains the following '.:...!""'' from Tirmizi and lbn-i­ Maja : Abu Darda told he heard God's messenger say, "No one will suffer any bodily injury and forgive it without God raising him a degree for if and removing a sin from him".

It was on the basis of the above-quoted verses of the Holy Book aod Ahadith besides many others on the topic under discussion that almost al the leaders of different schools of fiqh in Islam have conceded the right o complete pardon to the heirs of the victim of 'Qatle-'Amd', Tb heirs have, therefore, the option either to exact 'Qisas' through the agency o the Court or the State, or to as for payment of 'Diyat'. They can also forg the whole or a part of the am�unt of the 'Diyat'. The consequences of the pardon in toto on the part of the heirs have been discussed by me in th earlier part of this note.

,IJ

I am also in complete agr�ment with the learned Chairman, Salahuddin Ahmed, J. as I was with Abdul Hakim Khan, C. J., as be then was, of the ( Peshawar High Court, in Gui Hassan Khan v. State (0 that section 345(7) of the Code of Criminal Procedure is not merely procedural as it denies the right of composition to the effcc�e_p parties and is therefore to this extent repugnant to Injunctions of Islam.✓/ With above observations, I would endorse the order p,oposed by the learned Member Sheikh Aftab Hussain, of the dismissal of Shariat Petitions Nos. 20 of 1979 and 1 of 1979 both from Karachi, and of allowina the other petitions.VJ

(1)1> L D 11)20 Pesh. 1

1980 MUHAMMAD RIAz v. FeOEUL GOVERNMINT F SC 51 (Karimullah Durrani, Member) r,,faulana Usmani further elaborates the meaning of tbcae words i n the following manner ·- J},11 1,1•J � 2,u.. L. � -IJ:!' a.�� J"NI "="'.J'!' IS' J� u'-1 Jl.,1 &:::. uil.... �A) � ,2-� f cil.... � L lJ.f' ,.U. J,l • tJ:!' 1.#' ';!.,..� J �:.. I � .;� &:::. �I (.,,. ..; �Ji I °J_� J,rf E.,r rl>' � � c:!fU.. .r_ IYI _,J • L Ii� .,,. rlS" ,.,, J,> /1 JJI The Ahadith narrated by �l)JI c_,lr-"1 and �I t.'.,..:-"1 (apparently two different 'Rawees', one belonging to 41;. i.s.J and otbct to y.->,:, whic;h are included by Dann i, lbn-i-Maja and Abu Daud in their compilations of the Sunna of the Holy Prophet (Peace be upon him) and which are considered by the consensus of the learned as three out of six authentic compilations (A:. e,\,y) are to the effect that the Holy Prophet stated that in (I..JI 4 Jij) any out of three courses of 'Qisas', payment of Diyat or pardon by the heirs of the deceased can be adopted and nothing else is to be acted upon. These Ahadith when examined in the Iigh tof the above-quoted verses of the • Holy Book would not leave any scope of doubt on their authenticity as these do not lay down a rule which is not found in the Holy Boole. There arc also other narrations on the topics of murder in .:. c.'-"' by different narrators in which the messenger of God has been reported to have said that in case of murder one can either exact 'Qisas' or take 'Diyat'. The mention of the 3rd method of composition by the above-named two narrators would not render their narration conflicting to the latter Ahaditb wherein two methods are me:itioned of dealing with a case ')f murder. As long as in addition in one or more of Ahaditb to the rules laid down in the rest <locs not come in conflict with the Qur'aoic principles, the addition will be con­ sidered as an expansion of the rule of law and not a contradiction thereto. These conclusion do find further support from a number of Abadith narrated through djlferent sources on the topics of 'Afuw', Sahib Bukhari published by Qur'an Mahal, Karachi in its Vol. II contains the followina Hadith:

J �I .iii Jj I l.. Jli ,.;i.,-J� II" I., ,.WI A. �j � ..iii¥ � •• • • '-fl} ..:iil .,.. t Jli .,r.:lj i:,,I u- • . . . •l,11 u, ..iii,¥ Jli., v-1:JI J'j.i.l - JIJ tJ,t v-U,11 i.i:;.;,. I 1r # I j. l.! C.:,I � J � ..iii j# lt has been rendered into Urdu in the same publication as under : ef', '&-I � u.nJI , I.J!' �� ..::.11.,J .c. .,.iJ i:,1 ..:ill.i:,- .,.,.. , r� , b5" JUI J'j.i.l (ell •••• ,.WI .l.. �) -=-iT "'I IS'� C.:,IJ L.,.iJ i:,,I •., J.JI •••• I.J!' � 11114 � ..iii�. L l.!l..J JJII u_,lWI rte JJI ,f' .,-is} cl � �W .iii IS' IJ:" � • �.)

fiOFSC ALL PillSTAN UOAL Dl!Cu;IONS VoL. XXXtt

(5)S. P. No, 12/79(K) Mr. Muhammad Shaft versus Federation of Pakistan and another

(6)S. P. No. 20/79(K) Imdadullah Unar versus Federation of Pakistan and another

(7)S. P. No. 7/SO(K) Ghazi and others versus Federation of Pakiatae

(8)S. P. No. 9/80(L) Niu Hussain ,ersus Federal Government of Pakistan and another

(9)S. P. No. 4/80(K) Ghulam Mujtaba Saleem versus Federation of Pak.istan Through inadvertance a typographical error as todate h::s taken place. Instead of "1st of April 1981'• ·namely, the date on which the order shall become effective, "1st of April 1980" has been mentiom:d. The correct date is 1st of April 1981 and the order shall thus stand corrected and the Court's Order shall become effective from this date. S, A, li, Petitions accepted accordingly.

TH.I! END

1980 MUHAMMAD RIAZ V. FBDBllAL GoVBllNMiNT F S C S9 f OllDEll OP THB CouJI.T The Court has by majority arrived at the following decision :

1.That judgment of the Shariat Bench of the Peshawar High Court 1-10-1979 in Gui Hassan Khan v. Government of Pakistan (l) declaring sections 54, 55 and 30� of the Pakistan Penal Code and sections 345(7), 401, 402 and 402-B of Code or Criminal Procedure with the relevant parts of the Schidulc repugnant to Injunctions of Islam is binding and holds the field. 1°

2.It is held by maj1Jrity that section 302, P. P. C. is also repugnant to Injunctions of Islam on the following additional ground :- No exemption of death sentence has been provided for-

(a)an offender who is insane at the time of execution ; and (b) a parent killing his/her son.

3.Sections 304 and 304-A are repugnant because they do not also provide for composition and payment of 'Diyat'.

4.Sections 324, 325, 326, 329, 331 and 333 arc repugnant because they do not also provide for Qisas or payment of compensation tDeeyat, Ursh or Daman).

5.Furthermore sections 326 and 329 arc repugnant because they do not also provide for composition.

6.Sections 335 and 338 are repugnant because they do not also provide for payment of 'Diyat'.

7.Other provisions relating to hurt in Chapter XVI of P. P. C. are repugnant as they do not provide for absolute compoundability and payment of compensation (Diyat, Ursh or Daman).

8.In cases in which .)�I o- (right of man) is treated to be pre­ dominant, the provisions of sections 401, 402-A-and 402-8, Cr. P. C. shall not apply. These sections are repugnant to the Holy Qur'an and the Sunoah of the Holy Prophet (peace be upon him) to this extent.

9.This decision shall take effect from the 1st of April 1980. In the Court's Order dated 23rd September 1980 passed in the followina cases:- (I} S. P. No. 13/79(L) Muhammad Riaz �·ersus Federal Government and aootbor

(2)S. P. No. 69/79(L) Ja vaid and another versus Federal Government and others

(3)S. P. No. l/79(K) In re Muhammad Shafi Muhammadi (4 ) S. P. No. 2/79(K) Ghulam Mujtaba Saleem ver.sw Federation of Pakiataa

(1)P L D 1980 Pcab. 1