Summary: (a) Pakistan Penal Code, 1860----Ss. 302(a), 302(b), 302(c), 304, 306, 307 & 308---Qatl-i-amd (intentional murder)---Distinction between Qisas and Ta’zir---Scope and applicability of Section 308, P.P.C.---Authoritative interpretation---Supreme Court clarified that Qisas and Ta’zir are two distinct and mutually exclusive legal regimes under Islamic criminal jurisprudence---Section 308, P.P.C., providing alternate punishment where Qisas is not liable or enforceable, is applicable only in cases where Qisas is otherwise attracted but barred due to specific exceptions under Ss. 306 or 307, P.P.C.---Where murder is proved without fulfilling the evidentiary requirements of S. 304, P.P.C., such case falls within the Ta’zir domain under S. 302(b), P.P.C., and Ss. 306–308, P.P.C., have no application---Confusion arose due to earlier judgments applying S. 308, P.P.C., to Ta’zir cases without assessing whether Qisas was applicable---Court categorically held that benefit under S. 308, P.P.C., is not available in cases where conviction is under S. 302(b), P.P.C. as Ta’zir.(b) Penal Code (XLV of 1860)----S. 306---Qatl-i-amd not liable to Qisas---Categories defined---Provision does not create a distinct offence but provides exceptions to the enforcement of Qisas in cases where the offender is a minor, insane, parent, or where Wali is a direct descendant---Offenders falling under this provision may be exempt from Qisas but may still face punishment under S. 308, P.P.C., provided the case otherwise qualifies as Qisas.(c) Penal Code (XLV of 1860)----S. 308---Punishment in Qatl-i-amd not liable to Qisas---Limited application---Provision operates only where Qisas is applicable but not enforceable due to exceptions in Ss. 306 or 307, P.P.C.---Does not apply to cases where punishment is awarded as Ta’zir under S. 302(b), P.P.C.(d) Case Law---Conflicting Precedents---Resolution by Larger BenchCourt reviewed case law spanning over two decades and resolved the long-standing judicial divergence regarding the applicability of Ss. 306–308, P.P.C.---Judgments in cases such as Khalil-uz-Zaman v. Supreme Appellate Court (PLD 1994 SC 885) and its reversal in Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) revisited---Court held that the latter judgment by a five-member bench holds greater authoritative value and correctly laid down the law---All subsequent decisions granting benefit of S. 308, P.P.C., in Ta’zir cases were held per incuriam to the extent they ignored or misapplied Faqir Ullah’s ratio.(e) Qanun-e-Shahadat Order, 1984----Art. 17---Tazkiyah-tul-shahood---Precondition for Qisas punishment---Qatl-i-amd punishable as Qisas can only be awarded if confession or competent eyewitness testimony (in accordance with Islamic standards) is provided---Failure to meet these requirements shifts the case to Ta’zir regime under S. 302(b), P.P.C.(f) Constitution of Pakistan, 1973----Art. 203G---Interpretation of Islamic injunctions---Scope of judicial review---Supreme Court clarified that interpretation of Islamic injunctions for the purposes of testing repugnancy lies with the Federal Shariat Court and not with the Supreme Court or High Courts.Disposition:Court conclusively held that provisions of Ss. 306, 307, and 308, P.P.C. apply exclusively to cases of Qisas and are inapplicable to Ta’zir convictions under S. 302(b), P.P.C.---Judicial clarity reaffirmed on the doctrinal separation of Qisas and Ta’zir frameworks in Islamic criminal law.Cited Cases:• Faqir Ullah v. Khalil-uz-Zaman, 1999 SCMR 2203• Iftikhar-ul-Hassan v. Israr Bashir, PLD 2007 SC 111• Muhammad Akram v. The State, 2003 SCMR 855• Ghulam Murtaza v. The State, 2004 SCMR 4• Tauqeer Ahmad Khan v. Zaheer Ahmad, 2009 SCMR 420

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302(b)/34 & 308-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted to accused by Supreme Court to reappraise the evidence to ensure that the conviction and punishments of both the accused had been validly recorded and that death sentence had been rightly awarded to the female accused in view of the provisions of S.308, P.P.C.-Delay in filing the petitions was condoned. (b) Penal Code (XLV of 1860)- -S. 302(b)/34-Appraisal of evidence-Sentence, reduction in-Ocular testimony of the two child witnesses, aged 12 years and 10 years, as to the events and occurrence having taken place in the house before their eyes, had inspired confidence-Trial Court had taken all possible and due steps to judge the level of intelligence and maturity of the child witnesses before recording their statements, who had given consistent account of occurrence and participation of their mother and her paramour in killing their father and they had no reason whatsoever for falsely implicating their mother-Ocular evidence had derived strength and corroboration from other evidence including the post-mortem report-Cause of death of the deceased had tallied with the statements of the eyewitnesses-Some minor discrepancies or even contradictions having no material bearing, did not vitiate the findings recorded by the two Courts on proper application of evidence-Conviction of accused was consequently upheld-As a result of the said episode five children, eldest being 12 years old, had lost their father, whereas their mother had been sentenced to death and they had become orphans, and in such a situation death sentence of their mother really deserved consideration-In a case of Qisas Court had no discretion in the matter of sentence, whereas in a case of Tazir Court might award either of the sentence provided under S.302(b), P.P.C. and exercise the discretion depending upon the facts and circumstances of the case-Keeping in view the welfare of the five minor bereaved children, death sentence of their mother (female accused) was converted into imprisonment for life with benefit of S.382-B, Cr.P.C.-However, death sentence awarded to male accused was affirmed in circumstances. Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref. Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302(b) & 308-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted by Supreme Court to consider; whether observation of High Court to the effect that accused, at the time of occurrence was less than 18 years of age and judgment based thereon was sustainable. (b) Penal Code (XLV of 1860)- -S. 308-Qatl-e-Amd not liable to Qisas-Scope-Provision of S.308 P.P.C. is attracted only in case liable to Qisas in which by virtue of provisions of Ss.306 and 307 P.P.C., the punishment of Qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as Tazir. (c) Penal Code (XLV of 1860)- -Ss. 302 & 308-Re-appraisal of evidence-Age of accused-Determination of-Onus to prove-Accused was convicted by Trial Court and sentenced to imprisonment for life-High Court held the accused to be less than 18 years of age and by exercising powers under the provisions of S.308 P.P.C., reduced the sentence from life imprisonment to seven years of imprisonment as "Tazir"-Validity-Inquiry was conducted by Trial Court regarding age of accused and had found that accused was not minor at the time of commission of offence-Such inquiry conducted by Trial Court culminating into a proper order which was not challenged during trial by accused, was conclusive and final for the determination of age-Plea of minor age of accused was nothing but an after-thought, onus to prove such plea was heavily placed on the shoulders of accused but he failed to discharge the same by producing cogent and convincing evidence-Evidence produced by accused was discrepant and fell short of required standard-Mere assertion of accused that at the time of occurrence he was below the age of 18 years and was entitled to benefit under S.308 P.P.C., without positive attempt on his part to substantiate the same, was of no consequence-Judgment passed by High Court was set aside and that of Trial-Court was restored-Appeal was allowed. Ch. Munir Sadiq, D.P.-G., Punjab for the State.

Summary: (a) Penal Code (XLV of 1860)- -S. 308/34-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted by Supreme Court to consider; whether High Court reversed judgment passed by Trial Court whereby accused were convicted/sentenced under S.308/34 P.P.C., without taking into consideration the incriminating evidence available on record, contrary to the principles laid down by Supreme Court in its judgments. Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel. (b) Penal Code (XLV of 1860)- -S. 308/34-Re-appraisal of evidence-Dying declaration, non-signing of-Effect-Motive-Circumstantial evidence-Benefit of doubt-Principles-Trial Court convicted two accused under S.308 P.P.C. for causing Qatl-e-Amd of deceased lady and sentenced them to ten years of imprisonment, while two co-accused were acquitted by High Court in appeal-Validity-Case of prosecution was duly supported by dying declaration in which deceased lady narrated entire story about incident-Fact of burning the deceased lady was duly supported by medical evidence which was furnished by doctor and deceased lady was kept in hospital for six days-Specific motive in case existed, as husband of deceased lady had contracted second marriage as a consequence whereof she was not enjoying cordial relations with him-Husband of deceased took her deceitfully to his house where he poured kerosene oil upon her and set her on fire due to which she died later on-Motive coupled with circumstantial evidence was established by prosecution against accused persons-Deceased lady suffered severe burns on her body including her arms, thus question of her holding a pen did not arise, therefore, her inability to sign statement could not be made ground for acquittal-Judgment based on evidence could not be set aside on mere hypothetical assumption as to her putting thumb mark on complaint and failure to inscribe her signatures-Accused were entitled to benefit of doubt but such doubt had to be reasonable and rational and not hypothetical and whimsical in utter disregard to facts of case, positive evidence available on record and principles laid down by Supreme Court-Judgment passed by High Court resulted in serious miscarriage of criminal justice thus the same was set aside and that of Trial Court was restored-Appeal was allowed. (c) Administration of justice- -Judicious decision-Principle-To arrive at judicious decision, it is necessary to consider and appreciate evidence in its true perspective-Evidence available on record cannot be ignored and disregarded.

Summary: Penal Code (XLV of 1860)- -Ss. 302(b), 307-O & 308-Diyat amount-Entitlement of grandfather of deceased to share of Diyat amount-Father had committed murder of his Minor daughter aged about four years and was found guilty under S.302(b), P.P.C.-Conviction of accused was altered to S.308, P.P.C. and he was sentenced to twelve years' R.I. and was also directed to pay Diyat amount to heirs of deceased, excluding accused who had murdered deceased-Diyat amount having been deposited by brother of accused, father of accused filed application before the Trial Court for payment of Diyat amount to extent of 2/3rd share to him as according to him he was entitled to the same-At the time of direction to accused/father of deceased to pay Diyat amount to legal heirs of deceased, accused was specifically excluded to receive share from Diyat amount, which would mean that Diyat amount was to be paid to other existing legal heirs and as mother of deceased remained the only legal heir in absence of accused father of deceased, she was entitled to receive whole amount of Diyat-Father of accused, otherwise was not entitled to legacy of deceased in ordinary course as father of deceased being alive, would have excluded grandfather of deceased from inheritance-Murderer or any person claiming through him would not be entitled or succeed to the estate of victim in view of principles of justice, equity and good conscience-Section 307-O, P.P.C., was applicable only in the cases of hurt and not for Qatl-e-Amd-Grandfather of deceased having claimed inheritance through his murderer son, would not be entitled to the Diyat amount, because he could succeed to 2/3rd share in Diyat in absence of his son, whereas his murderer son was alive as he was not awarded death sentence, but was awarded twelve years' R.I. imprisonment of Tazir-Application of grandfather of deceased for grant of 2/3rd share of Diyat amount, was rightly dismissed by the Trial Court, in circumstances. AIR 1924 PC 209; AIR 1940 Lah. 172 and PLD 1964 (W.P.) Lah. 451 ref. Amanullah Tareen Addl. A.-G. for the State.

Summary: Penal Code (XLV of 1860)- -S. 302(b)/34-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted by Supreme Court in the petitions to reappraise the evidence to ensure that the conviction and punishments of death recorded against the two accused had been validly recorded and that the imposition of death penalty on female accused required examination in view of the provisions of S.308, P.P.C.-Delay in filing the petitions was condoned.

Summary: (a) Penal Code (XLV of 1860)- -Ss. 308 & 302(b)-Appraisal of evidence-Complainant who was the natural witness of the occurrence and knew the accused being her son-in-law as well as her tenant had charged the accused in the promptly lodged F.I.R. for the murder of her daughter-False implication or mistaken identity of accused, therefore, was not possible as the complainant could easily identify him at the spot in the street light and the light of the motor car in which he ran away after the commission of offence-Accused had killed his wife from whom he had a daughter who was Wali of the deceased and also direct descendant of the accused-Accused had committed "Qatl-i-Amd" and he was liable to be convicted and sentenced under S.302(b), P.P.C. by way of Tazir-Conviction of accused under S.308, P.P.C. was consequently altered to S.302(b), P.P.C. and his sentence of 14 years' R.I. was enhanced to imprisonment for life with the direction to pay Rs.50,000 as compensation under S.544-A, Cr.P.C. to the legal heirs of the deceased excluding himself. Faqirullah v. Khaliluzzaman 1999 SCMR 2203 ref. (b) Penal Code (XLV of 1860)- -S.302(b)-Sentence-Motive-Where motive as - alleged by the prosecution is not satisfactorily proved on record, such factor may be considered while deciding the quantum of sentence.

Summary: (a) Penal Code (XLV of 1860)- -S. 302(b)-Constitution of Pakistan (1973), Art. 185(3)-Presence of witnesses including the complainant in the house of occurrence at the relevant time was quite natural and beyond doubt-Accused had neither denied his presence in his house on the day of occurrence nor offered any explanation as to how and under what circumstances his deceased wife while sleeping with him in a room of his house had sustained injuries with the sharp-edged weapon on the sensitive part of her body-Bare denial of accused of knowledge of occurrence and not offering the required explanation had provided a strong corroboration to the eye-witness account to prove his guilt-Ocular testimony was further corroborated by medical evidence and the recovery of Chhuri at the instance of accused which was found stained with human blood-No direct or circumstantial evidence was available on record to suggest that the accused had acted under sudden provocation-Possibility of exchange of words between the deceased and accused as husband and wife on family affairs would not permit the accused to take such a cruel step of killing his wife-Accused had not even taken any such plea in his defence-No leniency could be given to accused in matter of sentence who on a very petty dispute had committed the murder of an innocent and helpless woman-Leave to appeal, was declined to accused in circumstances. (b) Penal Code (XLV of 1860)- -Ss. 306, 307 & 308-Application and scope-Provisions of Ss.306, 307 & 308, P.P.C. would only attract in the cases of Qatl-i-Amd liable to Qisas under S.302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd had been awarded as Tazir under S.302(b) & (c), P.P.C.

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302, 306 & 308-Constitution of Pakistan (1973), Art. 185(3)-Leave to appeal was granted by Supreme Court to accused to examine the question as to whether the accused being not liable to Qisas in view of the provisions contained in S.306 read with S.308, P.P.C., could have been punished under S.302, P.P.C. or otherwise. (b) Penal Code (XLV of 1860)- -Ss. 302, 306 & 308-Appraisal of evidence-Deceased was survived by a two years' old daughter who was admittedly the Wali of the deceased and descendant of the accused-Accused, therefore, was not liable to Qisas in view of the provision as enumerated in S.306, P.P.C. and he could only be convicted under S. 308(2), P.P.C. which did not provide the sentence of death or imprisonment for life-Conviction of accused under S.302, P.P.C. was consequently set aside and instead he was convicted under S.308(2), P.P.C. to undergo 14 years' R.I. and to pay Diyat-Appeal was accordingly dismissed with the said modification. Khalil-uz-Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885 ref.

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302 & 308-Constitution of Pakistan (1973), Art. 185(3)' -Leave to appeal was granted by Supreme Court to consider whether charge against accused could be altered from S. 302, P.P.C. to S. 308, P.P.C. (b) Penal Code (XLV of 1860)- -Ss. 308, 306, 307(c) & 302-Applicability of S. 308, P.P.C.-Section 308, P.P.C. can only be invoked when accused is found to be guilty of Qatl-i-Amd but he is not liable to Qisas under S. 306, P.P.C. or the Qisas is not enforceable under cl. (c) of S. 307, P.P.C.-Section 308, P.P.C., even if applicable, cannot be applied until first the accused is found guilty of Qatl-e-Amd, under S.30%P.P.C.-Provisions of S. 308, P.P.C. are to apply through their own force when the case falls under the provisions of S. 306, P.P.C,, or S. 307(c) P.P.C., which are to be read together with S. 302, P.P.C, and not in isolation. (c) Penal Code (XLV of 1860)- -Ss. 302 & 308-Application of S.308, P.P.C.-Accused must first be charged for Qatl-e-Amd under S. 302, P.P.C. and only when such charge 118`i been established, provisions of S. 308, P.P.C. could be applied to the case' Sessions Court had substituted the charge framed under S. 302, P.P.C. with that under S. 308, P.P.C., which was not warranted by law-Case was, consequently, remanded to Sessions Court for taking further action in accordance with law. Altaf Ilahi Sheikh, Deputy Attorney-General for the State.