THE PROVISIONS FORESIGHTED

By:
FAIZ RASOOL KHAN JALBANI

Dissension, if founded upon sound judicial principles, leads us to cast off the aura of status quo. Trodden paths do not compulsorily guarantee towards desired destinations. Nothing is ultimate and every idea, opinion, or even judgment yet needs be refined; Refinement is fraught with ad infinitism.

However, every now and then, under influence of personal predilections or because of avoiding to take pain in thinking through a certain proposition or to scrutinize the same, flowing with the flow, we are in the habit to pigeonhole the things, ideas and propositions.

Sank into oblivion; the Poor propositions; Directly victims of our oversight!

The curiosity gets galvanized into action when such ordinary victims of oversight encounter en route.

When, the law, in its ordinary daily implementation, is viewed upon from this angle, we find a google of different provisions of different laws being victim of routine oversight.

We should take the responsibility not only to point out the oversight but also employ our sagacity to buffer against cock-ups in future, lest this routine oversight should render the different provisions of different laws on a collision course.

I, to stand by my words; venture to point out an issue which may be labeled as consequence of oversight in the course of the judicial enterprise.

Admittedly, there are ten kinds of punishments introduced in the Pakistan Penal Code under Section 53 i.e. Qisas, Diyat, Arsh, Daman Tazir, Death, Imprisonment for Life, the Imprisonment which may be of two descriptions namely Rigorous and Simple, the forfeiture of property and the fine.

I enlimit my analysis only to the extent of awarding of punishments of Qisas, Diyat and Tazir.

Without going into the historical background of the kinds of punishments mentioned immediately hereinbefore, I rush towards Section 299 of the PPC where the word/term "Tazir" has been defined to mean a punishment other than Qisas, Diyat, Arsh or daman. Likewise the term Qisas has been defined to mean punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-e-Amd, in exercise of the right of the victim or a Wall. The term Diyat, according to the provisions of Section 299 (e) PPC means the compensation specified in Section 323 PPC payable to the heirs of the victim.

It is also relevant here to describe the term Tazir by referring the definition of the same as provided in Section 2 (e) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. According to this provision Tazir means any punishment other than Hadd. The term Hadd has also been defined to mean punishment ordained by the Holy Quran or Sunnah.

Admittedly there are punishments or the laws which have been ordained by the Holy Quran or Sunnah and the punishments provided otherwise fall under the definition of Tazir.

A perusal of the definitions of the terms Tazir, Diyat and Qisas makes me to reach irresistible conclusion that the Tazir relates to different category of punishments and, of course, the Courts are to employ different methods to evaluate the evidence while awarding the sentence. Whereas, it is obvious now, that the punishments of Qisas or Diyat belong to the same category i.e. ordained by the Holy Quran or the Sunnah.

It is provided in Section 304 of PPC that the proof of Qatl-e-Amd shall be in any of the forms namely; the accused makes before a Court, competent to try the offence, a voluntary and true confession of the commission of the offence; or by the evidence as provided in Article 17 of the Qanoon-e-Shahadat Order, 1984.

It has been many times held by the Honourable Superior Courts that for the purpose of imposing a Hadd punishment, it is necessary that standards of evidence prescribed in Quran and Sunnah are met and accordingly "Tazkia-al-Shuhood" is determined on the principles introduced by the superior Courts and the "Muzakki" would also have to be examined at the time of putting questions to the witnesses. "Tazkia-al-Shuhood" means the mode of inquiry adopted by a Court to satisfy itself about the credibility of a witness.

Hudood and Qisas have almost the same meanings and both are the punishments prescribed by Allah and an obligation to be implemented by Muslim Rulers. In Islamic System of administration of criminal justice the evidence to be used against every accused person should be the testimony of witnesses whose integrity, piety and uprightness must be aboveboard. Thus, The Court is charged with an inescable duty to satisfy itself about the aforementioned virtues of witnesses by conducting the process of "Tazkia-al-Shuhood". In the absence of such exercise, (of course where the accused has not pleaded guilty) the accused cannot be awarded the punishment of Qisas or Hadd and that is why the punishment of Tazir has been introduced so that the culprit may not go scot-free in case of inevitability of absence of the evidence which is required to award sentence only in cases of Qisas or Hadd.

Now I come straightaway to the proposition which is the subject matter of this essay.

Keeping in view all what has been described in the preceding paras, I feel no reluctance in asserting that the punishment of Diyat does not belong to the category of the punishments falling in the domain of Tazir. So, by coming other way round, it is maintained that the punishment of Diyat belongs to the category of the punishments coming under the domain of the Qisas or the Hadd. Logically, after it is admitted that the punishment of Diyat belongs to the category of punishments which are ordained by the Holy Quran or the Sunnah, it may be held that the Courts are bound to conduct inquiry on the lines as are to be adopted in "Tazkia-al-Shuhood" while awarding the punishment of Diyat. In other wards "Tazkia-al-Shuhood" is a condition precedent to impose the sentence of Diyat.

There are many sections in the Pakistan Penal Code which provide the punishment of Diyat as well as the Tazir. There are sections in the PPC, particularly Sections 319 and 322 PPC, which provide the punishment of Diyat. Specifically it is provided in Section 322 PPC that whoever commits Qatl-e-Sabab shall be liable to Diyat. In this section the Court has no option to award punishment to the accused as Tazir. Meaning thereby, which fact is self-evident, the "Tazkia-al-Shuhood" is a condition precedent in awarding punishment under Section 322 PPC.

Now I conclude my analysis with the humble view that the punishment of Diyat may be awarded only after holding the inquiry of "Tazkia-al-Shuhood" and not otherwise.

Now lastly, the question haunts "what would be the option with the Court to deal with the culprit, accused of committing Qatl-e-Be-Sabab" or "Qatl-e-Khata", if the evidence on the record does not qualify the standards of the process of "Tazkia-al-Shuhood"?

I feel no handicap in answering the abovementioned question and I hereby refer to Section 338-F, PPC which provides that in the interpretation and application of the provisions of this chapter, and in respect of matter ancillary or akin thereto, the Court shall be guided by the injunctions of Islam as laid down in the Holy Quran and Sunnah. Section 338-G of PPC provides that the Government may, in consultation with the Council of Islamic Ideology, by notification in the official gazette, make such rules as it may consider necessary for carrying out the purposes of this chapter.

In the end, I invite the attention of the concerned Authorities to do the needful to avoid any exigency ending in stalemate.