PLJ 1996 Peshawar 228
Present: syed ibne ali, C.J.
SECRETARY HOME N.W.F.P.-Petitioner
versus MUHAMMAD AYAZ KHAN etc.--Respondents
W. P. No. 520 of
1995, allowed on 10.6.1996
(i) Constitution of Pakistan, 1973.-
—Art. 199 read with S. 302 Qisas and Diyat Ordinance and Ss. 368 & 381 ofCr. P.C.-Execution of death sentence-Mode of-Challenge to--Whether black warrant already issued was in order and subsequent warrant u/S. 381 Cr.P.C. read with S. 314 PPC as introduced vide Qisas and Diyat Ordinance was illegal-Trial Court proceeded with trial of accused under fa'sir-Parties participated in proceedings and no objection whatsoever was taken against conduct of trial—In conclusion, trial Court awarded death penalty to accused—Convict filed appeal before High Court but It was dismissed and murder reference forwarded to High Court by trial Court, admittedly under Section 374 Cr.P.C. was answered in affirmative-Therefore, petition for special leave to appeal filed before Supreme Court of Pakistan which was dismissed-As matter of record at no stage there was any objection raised against conduct of trial under law(S of Qisas upto last forum i.e. Supreme Court of Pakistan and for thatmatter death penalty awarded to accused by trial Judge shall be covered by clause (b) of Section 302 PPC as to'sir-Convict Jahangir was tried under ta'zir and was awarded eath sentence, Black warrant was issued under ordinary law-Issuance of subsequent Black Warrant dated 23rd April, 1995 for execution of death entence by way of Qisas is nothing but patent error on fact of record-Held : Subsequent black warrant was unlawful and of no legal effect-Petition llowed. [P. 237] B & CPLD 1990 F.S.C. 38 ; PLD 1988 SC (AJ&K) 190 and 1992 SCMR196.
(ii) Tazkiyah-Al-Shuhood-Guide-lines for conduct of Criminal casesunder law of Islam
(i) There must be evidence of victim followed by at least twowitnesses;
(ii) In case of discrepancies on vital aspects between two witnesses both shall be rejected ; (Hi) Tazkiya-Al-Shuhood is a condition precedent to impose the sentence ofHadd;
(iv) There should be one or more 'Muzakki' (a person who testifies about the truthfulness of the witness);
(v) The 'Muzakki' should be present when the witness gives evidence;
(vi) The 'Muzakki' should also be questioned about antecedents, character and dealings;
(vii) It is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both ;
(viii)The Court may frame a questionnaire on which the 'Muzakki' should collect information to supply to the Court;
(ix) The Court should also examine the 'Muzakki' after he submits his report;
(x) The Court should ask searching questions from the witness and cross-examine him, to discover facts which might show his credibility, piety or otherwise."
[P. 234 & 235] A
Mr. Saifoor Rehman, A.G. and Malik Hamid Saeed, AAC, for Petitioner.
Mr. Zahoorul Haq, Bar-at-Law as Amicus Curiae, Mr. Abdul Latif Afridi, Advocate for Complainants.
Date of hearing: 13.5.1996
judgment
This writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 by the Secretary to Government of N.W.F.P., Home and Tribal Affairs Department, Peshawar has arisen in the following circumstances.
Accused Jehangir, resident of Parmooli, District Swabi was tried by the learned Additional Sessions Judge, Swabi for the murder of lady teacher Mst. Farhat Naz by firing three pistol shots at her. In consequence of the trial, the learned trial Judge convicted and sentenced the above-named accused to death under Section 302 Qisas and Diyat Ordinance, vide his judgment dated 5th October, 1992. The appeal of the convict before this Court was dismissed and the murder reference made by the trial Judge for confirmation of death sentence was answered in the affirmative videjudgment dated 16th February, 1994. The convict then went in petition for special leave to appeal to the Supreme Court of Pakistan but leave was refused and the petition was dismissed vide order dated 15th January, 1995. It may be mentioned that while the petition of the convict for the grant of special leave to appeal was pending before the Supreme Court of Pakistan, meanwhile the learned Additional Sessions Judge, Swabi issued the following black-warrant bearing No. 228 dated 29th November, 1994, against the condemned prisoner, under Section 381 Cr.P.C.:
"WARRANT OF EXECUTION ON SENTENCE OF DEATH.
(Section 381 of the Criminal Procedure Code).
In the Court of Addl: Sessions Judge, Swabi.
Session Case No. 27 of 1992
Black Warrant. To,
The Superintendent, Central Jail, Haripur.
Whereas vide judgment dated 16.2.1994 of the High Court, Peshawar in Criminal Appeal No. 149/92 of the convict/appellant Jehangir son of Amirullah, resident of Permmooli, District Swabi, filed by him against the order of this Court (A.S.J., Swabi, dated 5.10.1992 whereby he was convicted and sentenced to death u/S. 302 Qisas & Diyat Ord : in case registered against him vide FIR No. 277 dated 31.5.1992 u/S. 302 Q.D.O. at P.S. Kalu Khan, has been dismissed and death sentence awarded to him has been confrmed. Certified copy of the judgment of the High Court, Peshawar confirming the death sentence of the condemned prisoner Jehangir has been received.
This is to authorize and require you to carry out the said sentence into execution by causing the condemned prisoner Jehangir to be hanged by his neck till he be dead, in Central Jail Haripur, at 5 A.M. on 15th day of December. 1994, and to return this warrant to the Court with an endorsement certifying that the sentence has been executed. (Under lining is ours).
Given under my hand, seal of the Court, this 29th day of November, 1994.Sd/-Addl: Sessions Judge, Swabi."
Subsequently, when the petition of the convict for special leave to appeal was dismissed, as stated above, it was pointed out by an official to the learnedprisoner Jehangir to be shot dead by the Wall of the deceased ladv Mst. Farhat Naz. This warrant is to be returned to this Court with an endorsement certifying that the sentence has been executed, (under lining is ours).Given under my hand and seal of the Court, the 23rd day of April, 1995.
Sd/-
(MUHAMMAD AYAZ KHAN) Add! : Sessions Judge, Swabi."
The Government of N.W.F.P., Home and Tribal Affairs Department, Peshawar is not satisfied with the execution of the death sentence of condemned prisoner Jehangir by means of Qisas in accordance with the above black warrant, Annexure 'F', therefore, it has questioned its legality by way of instant writ petition and has prayed that the said black warrant be set aside and a direction be issued by this Court in exercise of its writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 that the death sentence of the condemned prisoner Jehangir be executed in accordance with the law as provided under S. 368 Cr. P.O.
2. We have heard at great length Mr. Saifur Rehman
Kiyani,Advocate-General for the
petitioner (Government), Mr. Abdul Latif Afridi,
for the complainant and Mr. M.
Zahoor-ul-Haq, Bar-at-Law, who assisted us as amicus curias.
3. In this writ petition two fold question has arisen for consideration, namely :- (i) whether pursuant to the procedure adopted and followed by the learned trial Judge in this case the accused could be convicted and sentenced to death under S. 302, clause (a) P.P.C. as Qisas,
OR
(ii) whether pursuant to the procedure adopted and followed by the learned trial Judge in this case the accused could be convicted and sentenced to death under S. 302 clause (b) P.P.C. as ta'zir.
4. Before proceeding to examine these two questions, clauses (a) and (b) of Section 302 P.P.C. may be reproduced. The same are : "302. Punishment of Qatl-i-amd.--Whoever commits qati-i-amd shall, subject to the provisions of this Chapter be :-- (a) punished with death as Qisas ;otherwise the learned trial Judge failed to look at Section 314 P.P.C. which provides as under :-
"Execution of qisas in qatl-i-amd.--
(1)
Qisas in qatl-i-amd shall be executed by a
functionary of the Government by causing death of the convict as the Court may irect.
(2)
Qisas shall hot be executed until all the wall are
present
at the time of execution, either personally or through their epresentatives authorised by them in writing in this
behalf: Under lining is ours).
Provided that where a wall or his representative fails to present himself on the date, time and place himself on the date, time and place of execution of qisas after having been informed of the date, time and place as certified by the Court, an officer authorised by the Court shall give permission for the execution of qisas and the Government shall cause execution of qisas in the absence of such wali.
(3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of qisas upto a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released she shall be dealt with as if sentenced to simple imprisonment."
A plain reading of the wording of the subsequent black warrant, Annexure 'F', clearly shows that it has not been issued having regards to the provisions of Section 314 P.P.C. reproduced above, which necessitates that all the wali are present at the date time, and place as certified by the Court, therefore, the learned trial Judge was not legally correct to have issued the subsequent black warrant, Annexure 'F', which is an error patent on record.
9. In the case of Mumtaz Ahmad and
another vs. The State (PLD 1990 Federal Shariat Court 38), the trial Court
convicted the accused under Section 17 of the Offences Against Property (Enforcement
of Hudood) Ordinance, 1979, and sentenced them to amputation of their right hand
and left foot from the ankle. The accused filed appeal before the Federal
Shariat Court.
After going through the evidence on record, the learned Judges of the Federal Shariat Court
found that the trial Court had not undertaken the exercise of Tazkiyah-Al-Shahood
(i.e. purgation). It was, however, not considered necessary to remand the
case for that purpose and as otherwise upon the evidence on record the accused was
found guilty of the charge, the learned Judges of the Federal Shariat Court
resorted to ta'zir punishment to
(x) The Court should ask searching questions from the witness and cross-examine him, to discover facts which might show his credibility, piety or otherwise."The record shows that none of the above guidelines has been followed by the learned trial Judge at the time of trial of the convict Jehangir.
11. In another authority reported as Abdul Raziq and another v. The State (PLD 1988 Supreme Court (AJ&K) 190), the learned Chief Justice found that the trial Court had not undertaking the exercise of Tazkiyah-Al- Shuhood properly in conformity to the procedure contemplated by the law of Islam. He, therefore, remanded the case to the trial Court for that purpose.In the present case, there is no question of the process of azkiyah-Al-Shuhood, in that the trial Court conducted the trial of the case in line with the procedure of ta'zir law.
12.
In the case ofDenid Boyd and another v. The State (1992
SCMR, 196),
the learned Judge, Special Court for Speedy Trials, Peshawar ad not conducted the process
of Tazkiyah-Al-Shuhood in
conformity to the procedure
prescribed in the law of Islam. The learned Judge had convicted the accused on the charges of Haraba under
S. 17(3) of the Offences Against Property
(Enforcement of Hadd) Ordinance, 1979 and Sections 506/411/34 PPC and sentenced each one of them to amputation
of their right hands from their
wrists and left feet from their ankles. They were further ntenced
to imprisonments and fines. The learned Special Appellate Court, however, did
not endorse the course of action adopted by the learned Judge, pecial
Court for Speedy Trials with regard to his under-taking the exercise of Tazkiyah-Al-Shuhood,
and as otherwise in the facts and circumstances of he case it was a case to be decided under ta'zir,
the learned Special Appellate Court
proceeded to examine the vidence on
record and finding the accused ot guilty
of the charges acquitted them.
13.
This authority and the authority of the
satisfy the conditions and
requirements laid down under the law of Islam and
otherwise, the facts and circumstances of the case warrant that the case can be decided in the light of the evidence on
record under the ta'zir, the appellate
court in its discretion may decide it accordingly. It will not be out of place to reproduce the following para from the
authority of Special Appellate Court
reported in Deniel Boyd and another v. The State (supra):"Now what the expression Tazkiya-Al-Shuhood
(purgation) signifies and
connotes requires elaborate enquiry into the piety, uprightness and integrity of the witness from the men of same virtues. The
14.
In the present case, the trial Court proceeded with the
trial of the
accused under ta'zir. The parties participated in the proceedings and no
objection
whatsoever was'taken against the conduct
of the trial. In conclusion, the
trial Court awarded death penalty to the accused. The convict
filed an
appeal before this Court but it was dismissed and the murder reference forwarded
to this Court by the trial Court,
admittedly under Section 374 Cr.P.C. or 338-D P.P.C., was answered in the affirmative. Thereafter, he filed
petition for special leave to appeal before the Supreme Court of Pakistan.
Leave was refused and the petition was dismissed. We are to observe here that
as a matter of record at no stage there was any objection
raised against the conduct of
the trial under the law of Qisds upto the last forum of the Supreme Court of Pakistan and for that matter the death
penalty awarded to the accused by the
trial Judge shall-be covered by clause (b)
of Section 302 P.P.C. as ta'zir.
15. The learned trial
Judge himself does not deny that he had conducted the trial proceedings in te present
case in line with the
procedure
under ta'zir. In his comments submitted by him in the present writ petition this is
what he has stated : "Since it was the first case under Qisas which
had attained finality upto the level of Supreme Court and there was no precedent before me,
therefore, I consulted senior members of the Bar and my colleagues. But none of
them could guide me on the matter."
Therefore, we hold that as the convict Jehangir was tried under ta'zir and was awarded death sentence, the black warrant dated 29th November, 1994 was issued under the ordinary law and the issuance of subsequent black warrant dated 23rd April, 1995 for the execution of death sentence of convict Jehangir by way of Qzsas is nothing but a patent error on the face of the record. We, therefore, declare this subsequent black warrant to be unlawful and of no legal effect. Consequently, the convict Jehangir shall be deemed tohave been convicted and sentenced under clause (b) of Section 302 P.P.C. as ta'zir and the black warrant dated 29th Nov. 1994, Annexure 'D' on file, issued earlier by the learned trial Judge is a proper lawful warrant under Section 368 read with S. 381 O.P.C.
16. In the result, this writ petition is allowed as prayed
for.
(B.T.) . Petition allowed.