SESSION TWO

HISTORY AND SOURCES OF CRIMINAL LAW IN PAKISTAN

  The Pakistan Penal Code with Commentary, Muhammad Mazhar Hassan Nizami,
(1992) pp. a1 – a4.

  Sources and Fundamental Principles in the Enforcement Context, Pillai

  Mobarik Ali Ahmad v. The State of Bombay, PLD 1958 SC (India) 115

  Muhammad Iqbal v. The State, PLD 1957 (W.P.) Lahore 31

  Islamization of Law in Pakistan by Dr. Nasim Hasan Shah, PLD 1995

  Constitutional Vacuum in the law relating to offences against the human body, Asif
Saeed Khan Khosa, PLD 1994

  Riaz Ahmed v. The State, 1998 SCMR 1729

The Pakistan Penal Code with Commentary, Muhammad Mazhar Hassan Nizami, (1992)
pp. a1 – a4

History of Pakistan’s Criminal Laws

- Befire the penal code, Act XLV of 1869, English Criminal Law was in force in
presidency towns of Calcutta, Bombay and madras. Muhammadan Criminal law in
Moffussil, supplemented and modified by the regfualtions of the local gov.

- In 1827, the system fo administration of justice in Bombay was thoroughly revised,

the law followed by criminal courts was set forth in a regulation. In other two
presidencies the muhammaden law was in force till the penal code came into
operation.

- First Indian law commission, cinstituted in 1837, president was laord macaulay, and
Messrs Macleod, Anderson, and miller were other members and they were called law
commissioners. He drafted the first draft of penal code, submitted it to honourable
George Lord Auckland, G.C.B, GovernorGeneral of India in council in 1837. It was
revised by sir Barnes peacock, chief justice and other puisine judges of the high court
of Calcutta who were members of legislative council of fort st Williams.

- The draft wa completed in 1850, presented to the legislative council in January 1856,
passed on October 6, 1860.

- Brought in force on 1st January 1862.

 - Most important piece of Indian legislation.

- That it requires thoroufh recvision by an expert committee of lawyers is equally

indispensable.

- Code sorely needs rearranging of its many sections which seem to have been
juxtaposed for no reason other than a mere chance.

- Many oprovision of the code overlap one another. Other sections are bald and leave
much to the ingenuity of construction.

- Nature of the legislation- this first law commission remarked that it is not considered
as a body of ethics. Legislature ought to punish acts merely because they are immoral
and that not punished as innocent. Many things which are not punishable are morally
worse than the acts which are punishable. For example:

Pre-Indian penal code; condition of criminal law of british india

- Law commissioners’ remarks
o It may derive their attention only through its intrinsic excellence.
o All were introduced by conquerers differing in race and manners, language
and religion from the great mass of people.
o Muhammadan law replaced the Hindu criminal law. Then it was superseded to
a great extent by the british regulations.
o Systems of penal law in britsh india widely differ from one another. No one
code out of the three recoomended to be furnishing even the rudiments of a
good code.
o Don’t know what this shit is.
 -

Sources of Penal Code

- None of the systems of criminal law in vougue in india were adopted by themas the
basis of the penal code.
- However, they could not divest from the influence of the British criminal law entirely
and based penal code on the English penal law freed from the superfluities,
technicalities and local peculiarities.
- Also took help from French penal code and livingston’s Code of Lousiana
- The law commissioners remarked:
o Did not think desirable to take as geound work any existing system of law in
force on india.
o Compared to those systems, taken suggestion from them, but did not include
any provision because it farmed a part of any of thise systems.
o Compared the work with western jurisprudence
o Assistance from French code and decision of the frech courts of justice on
questions touching the construction of that code.
o Help from code of Lousiana
Ammendments
 - Amended, but the basic principles, fundamentals and divisions very little changed.
Adding new section or chapter or amending some section or other.
- Provinces also made changes but they have force only in the respective provinces.

Pakistan Penal Code

- As the penal code has not been framed yet, the british Indian penal code is followed in
Pakistan as the law of crimes of the land, subsection (3) of section 18.
-
-

General Principles of Criminal Law

Chapter 1 sources and fundamental principles in the Enforcement Context
- Three sources of criminal law:
o Stautes
o Common law
o Judicial decisions interpreting and applying the common law and statutes
- Among the three branches of gov- the legislature, executive and judiciary- legisalatue
and judiciary generate criminal law
- In earlier times was traditional law both under Hindu and Muslim rule.
- 1837, british initiated steps to codify criminal law. In 1860, legislature enacted the
penal code.
- In enacting penal code, lefislature took note of the common law of crime sof England
and the peculiar social customs in India.
- The authors did not ignore the common law moorings of the concepts, so it becomes
necessary to to be aware of the general nature of hthe common law to iinterpret the
various provisions of the penal code.
- Before legfislature, social order depended on obedience to unwritten rules- the lex
non scripta- based on customs and mores
- The unwritten rules, in England, were incorporated into into court decisions which
became a part of the common law.
- Then common law gre to answer and solve the questions that emanated from new
situations.
 - As courts formulated the basic principles, rules and standards base on common law,
judges felt bound to follow these principles and interpreted new cases according to
precedents.
- Being bound to follow these principles id called stare decisis.
- New legislation came to be enacted to meet new situations. Courts interpreted stautes
in light of the common law principles and precedents. This created some problem for
statutory interpretation.
- It is genrally argues that since the common law came to be abolished by the enactme
nt of the penal code, any analysis of the applicability of a penal statute must begin
with a reading of the statue only.
- It is argued that defining acts as crime and prescribing punishment for commission or
omission of an act is the exclusive province of legislature.

PLD 1958 Supreme Court

Mobarik Ali Ahmed v The State of Bombay
- A number of cases have been brought before the court bearing the question now under
consideration.
- Some of these cases support thte view of appellant that ceiminal jurisdiction cannot
extemnd to foriegners outside the state.
- These decisions are rendered at a time when the legislature’s competence was
considered somewhat limited, under the influence of decisions like those in Macleod’s
case in spite of the decision in Quere v Burah.
- However that maybe these concepts are no linger tellable after Undua became a
dominion and after it became an idependant free sovereign republic. Croft v Dunphy
and Governor-General v Raliegh Investment.
- In the later case Spens C.J. indicates that there has been considerable change in the
concept of doctrine of extra-territorial legislation.
- Thora aur ganda print hota to smjh lag jati
 -

Constitutional Vacuum in the law relating to offences against the human body, Asif Saeed
Khan Khosa, PLD 1994

- Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan
Khan PLD 1989 Supreme Court 633 the shariat appellate court while deciding
different appeals against a consolidated judgment had held that:

o Blablablabbalabl

- Federation of Pakistan filed a review petition before the shariat appellate bench of the
SC of Pakistan seeking extension of time fixed by the court for the decision of the
court to take effect.

- While accepting the review petition it was held in the case of Federation of Pakistan
and another v. N.-W.F.P. Government and others PLD 1990 Supreme Court 1172
that:

o The attorney-general stated that the ordinance relating ti the enforcement of

the provisions of Qisas and Diyat are in the final stage of scrutiny and will be
promulgated by 5th September . further stated that to familarise the
enfprcement agencies with the new provisions the proposed ordinance shall be
 enforced by 12th Rabi-ul-Awal 1411 AH. Prayed that the review petition be
disposed of in light of the above statement.

- Court considered that, in view of the importance if the subject, thime should be
allowed to fgamiliarise the enforcement agencies with the new provisions.
Submission of the attorney general was accepted.

- The decision of court date 5th July 1989, whereby the provisons geld as
repugnant,would now, on the disposal of this review petition shall take effect on 12
rabiulawal 1411 instead of 23rd march 1990.

- Held that even if the required law is not enacted on 12 rabiul awal the said provisions
will never theless cease to have effect on 12th rabi ul awal

- In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic
law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the
offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject.

- The ppc and crpc shall then e applied mutates mutandis, only as aforesstated.

- The same will be the position if an Ordinance for the law of Qisas and Diyat is
enforced on or before 12th Rabi-ul-Awwal and the same lapses or otherwise becomes
unenforceable due to any other reason, creating a 'similar vacuum in the statute law on
the subject. In the aforevisualized situations, the Courts, while hearing and deciding
the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions
of Islam as contained in Qur'an and Sunnah may also seek guidance from the
provisions of the aforementioned Ordinance if it, in the meanwhile, having once been
enforced, had lapsed or otherwise had become unenforceable. All these matters stand
disposed of. Order accordingly."

- In the wake of the decision of Federation of Pakistan’s review petion by the shariat
Appellate bench of the supreme court of Pakistan, the president of Pakistan was
pleased to promulgate Criminal Law (Ammendment) Ordinance, 1990 (Ordinance IV
of 1990) and Criminal Law (Second Ammendment) Ordinance, 1990 (Ordinance VII
of 1990), whereby the provisions declared by the Shariat Appellate court to be
repugnant to the Injuctions of Islam were replaced by other provisions in conformity
with the Islamic Injunctions. Unfortunately parliament has failed to enact any Act in
that respect and the laws related to offences against human body are being governed
by successively promulgated ordinances after every 4 months for the last 4 years.

- It is the constitutionality or otherwise of the substituted law in this field that is the
subject of the present study.

- The Collector of Customs, Karachi and ithers v. Messrs New Electronics (Pvt.)
Limited and 59 others PLD 1994 Supreme Court 363:

o Article 89 of the constitution does not expressly prohibit against the re-
enactiment of an expired ordinance, but if the ordinance is not laid before the
 Assembly and approved, it shall lapse on the expiry of four months.. the
underlying idea is that the legislative power vests in an assembly and cannot
be upsurped by a head of state or province by repeating the same ordinance
without submitting it in terms of artice 89 of the constitution.

- Above quoted judgment concurred with by Mr. Justice Sajjad Aki Shah and even Mr.
Justice Saleem Akhtar(desenting note in respect of one of the conclusions arrived):

o Under cinstitution, president does not have the power to re-enact the same
ordinance.

o There is no expemtion under the constitution that allows this

o President does not enjoy unfettered power to promulgate the ordinance

o Period of 4 moths under 89(2)(a)(i) and (ii); to maintain the democratic federal
character of the constitution, supremacy of national assembly, senate or
provincial assemblies.

o Limits the power of president: re-enacting the ordinance without being placed
before the assembly would provide vast power to byoass the assemblies and to
rule by ordinances.

- Supreme court of india Dr. D.C. Wadhwa and other v State of Bihar and others AIR
1987 Supreme Court 579:

o Governor does not have the power to re-promulate the same ordinance without
bringing it before the legislature.

o Strictly defined limits in the constitution or he’ll be unsurping a function that

doesnot belong to him.

o Not a single instance where president has re-promulgated an ordinance after

this expiry.

o Executive in Bihar has almost taken over the role of the legislature for years.

- Unconstitutionality of president issuing successive ordinances vis-à-vis offences

against the human body creted after the repugnant provisions ceased to have effect.

- Failure of legislature and unconstitutional “usurpation” of the legislative power by the

executive there has been a legal vacuum in the are of offences against the body. This
unconstitutional predicament still exists.

- Article 203-D(3)(a):
 o This porovision was added at the time of martial law, the president then was
himself the law maker and in that cotext could “himself take steps to amend
the law”.

o After lifting of the martial law, president, acting on his own, is now in no
position to amend the law.

o Can do so by issuing an ordinace and giving assent to to an Act of Parliament

only under the advice of the cabinet.

 Promulgate an ordinance only once and cannot repeat it.

o In case of inaction of the parliament beyond the life of the ordinance, the
president ca n only address the parliament under article 56(1) or send a
message to the parliament under article 56(2) of the constitution reminding it
of the actrual or threatened vacuum in a legal field and requiring it to cinsider
rthe matter.

o President may even require PM to submit the matter before the cabinetfor its
consideration under (a starched interpretation) of article 46 of the cinstitution.

o He can only try to get the law amended and incase of failure to get the law
amended by the parliament cannot assume upon himself the power of
legislature thorugh successive ordinances.

- In the case if federation of Pakistan v NWFP gov and others, the judges had forseen
that the ordinance may lapse and the parliament may still fail to enact appropriate law.
This anticipated gap was to be filled by:

o the common Islamic Law/injunctions of Islam as contained in Quran and

Sunnah shall be deemed the law in the subject.

o After the ordinance lapses, the courts whjile deciding the cases of Qatl and
Jurh in accordance to Quran and Sunnah may seek guidance from the
provisions of the aforementioned ordinance if it in the meantime having once
been enforced had lapsed ot otherwise had become unenforceable.

- Realizing that After the ordinance lapsed, the courts may face difficulties in
identifying or understanding rhe exacrt common Islamic Law, the court observed that
the courts may seek guidance from the provisions of the aforementioned Ordinance if
it in the meanwhile having once been enforced had lapsed or otherwise had become
unenforceable.

o Article 175(2) of the constitution

it is not clear under what jurisdiction the Shariat Appellate Bench oif the
supreme court of Pakistan had passed the order that apprehended vacuum in
law relating to offences against the human body.
-

- Article 203 F, jurisdiction of Shariat Appellate bench is limited to hearing appeals

against the final decisions of Federal Shariat Court. Same powers and jurisdiction as
federal shariat court.

- While adjudiatinf upon repugnancy or otherwise of any law or a provision of law to

the injunctuons of islam donot have any jurisdiction to suggest as to what should be
the law or to enforce a suggestion as law.

- If the spirit and scheme of the Constitution does not permit the Executive to "usurp"
the functions of the Legislature then the same applies with equal force to the Judiciary
as well. Therefore, if successive Ordinances by the Executive are unconstitutional and
cannot fill a vacuum then a suggestion or a command by the Judiciary that "common
Islamic law/the Injunction of Islam" shall be the law in case of a vacuum is also
equally devoid of any constitutional authority.

- In such a situation even the provisions of Article 187(1) of the Constitution cannot be
pressed into service as the power of the Supreme Court contained therein to "issue
such directions, orders, or decrees as may be necessary for doing complete justice in
any case or matter pending before it" has been expressly made to be "Subject to clause
(2) of Article 175" of the Constitution. That clearly means that the Supreme Court's
power of issuing "such directions, orders, or decrees as may be necessary for doing
complete justice in any case or matter pending before it" does not extend to travelling
beyond the Court's own Constitutional and legal jurisdiction itself.

- The said order of the Shariat Appellete bench of the supreme court of Pakistan was at
a time when the aforementioned ordinance had not even been promulgated by the
president.

- Under article 203-D and 203-F, the jusridiction of sharuat appellate bench is to
determine repugnancy or otherwise of only an existing law or provision.

- Examining a proposed law qua such repugnancy is the exclusive domain of the
Council of Islamic Ideology under Article 230(1)(b) read with Article 227(2) of the
Constitution.
 - Only hear appeals from the federal shariat court

- Cannot give any opinion about repugnancy or otherwise of any law or provision of
law to the injunctions of islam if the said law or provision of law was not under
challemge before the federal shariat court.

- the aforementioned Ordinance" was not under challenge before the Federal Shariat
Court but also the same had not even been promulgated till the final decision of the
Federation of Pakistan's Review Petition before the Shariat Appellate Bench of the
Supreme Court of Pakistan!

- aforementioned Ordinance’s conformity with the Injunctions of Islam by the Shariat

Appellate Bench of the Supreme Court of Pakistan was without jurisdiction.

- The lapsing of the first ordinance created a vacuum in the said field, the successive
ordinances were unconstituitional and unenforceable.

- The order of the shariat appellate bench regarding fillunf of vacuum by Islamic
Law/Injunctions was without constitutional sanction.

- the direction by the Shariat Appellate Bench of the Supreme Court of Pakistan to the
Courts to seek guidance, for the purposes of understanding and applying common
Islamic law/Injunctions of Islam, from the first Ordinance to be promulgated by the
President of Pakistan on the subject was without Constitutional support

- The Executive has been trying all this while to fill that vacuum with promulgation of
successive Ordinances and the Judiciary had made available an alternative system to
cater for the said vacuum but both of these measures have been without any
Constitutional backing.

Riaz Ahmed v The State

- Prosecution case is that Muhammad Sharif complainant and Allah Dita, on heating
the cries of Muhammad Siddique deceased went out of their house and saw that on
Katcha road leading to chak no. 42/Fateh, Muhammad Haneef, the father of the
appellant had caught hold of the deceased while the appellant was inflicting Churri
blows on his chest and abdomen.

- Both the accused ran away.

- Motive stated in FIR was that Mst. Naziran Bibi, niece of Muhammad 8harif and
daughter of Bashir Ahmed was married to one Muhammad Ayub but her Rukhsati
had not taken place. Thereafter, Bashir Ahmed married Mst. Naziran with one
Mureed Kharal. As relations between Mureed Kharal and Mst. Naziran became
strained, she came to the house of her father. Two months prior to the occurrence, she
again eloped with Muhammad Ayub, Bashir Ahmed and Muhammad Hanif suspected
that the complainant and his deceased son had facilitated elopement of Mst. Naziran
with Ayub. A day earlier there had been an altercation.
- At the trial prosecution relied on the ocular account of Muhammad Sharif, the eye-
witnesses, evidence of recovery of churri, medical evidence and the motive.

- Riaz Ahmed appellant in his statemt under section 342 CrPC took plea that on the day
of the occurrence, his wife had gone to cotton fields to ease herself. He was also in the
fields to cut Maswak with a knife.

- On hearing the cries of his wife he was atrracted to the spot and and found that the
deceased was attempting to outrage the modesty if his wife. Under grave and sudden
provocartion he grappled with the deceased and during grappling the deceased
sustained injuries from the knife.

- He added that he had no intention to kill the deceased.

- He stated that his father was not present in the village on the day of occurrence as he
had gone to chak no. 2/Fateh.

- According to him the occurrence took place in the cotton fileds.

- Trial court after the appraisal of the evidence recorded the conclusion that Riaz
Ahmed the appellant had given churri blows to the deceased and stab wound shows
how brutally he had committed the murder. Acquitted Muhammad Hanif, appellant’s
father, giving him benefit of doubt.

- Prosecution witnesses stated that Muhammad Hanif was catching hold of the hair of
the deceased.

- These findings were confirmed by the judges of high court.

- Contentions for consideration of which leave to appeal was granted were:

o section, 302, P.P.C. enforced by Ordinance No.XXX of 1991, Criminal Law

(Amendment) Ordinance, 1991) was not a valid law as earlier three identical
Ordinances, viz., Ordinance VII of 1990, Ordinance I of 1991 and Ordinance
XVIII of 1991 were promulgated and stood repealed without being approved
by the National. Assembly/Parliament; and that as an Ordinance cannot be
repeated,. all identical Criminal Law (Amendment) Ordinances repeated from
time to time with mere cosmetic changes were ultra vires the Constitution.

o Reliance was placed on the Collector of Customs, Karachi and others v.

Messrs New Electronics (Pvt.) Ltd. and 59 others (PLD 1994 SC 363) to
contend further that there being no law for punishment for a person who
commits murder in existence in the country, the appellant could neither be
tried nor convicted or sentenced.

o Second contention urged was that in the absence of any valid criminal law to
govern the case, Islamic Common Law should have been applied but the same
 was not even invoked or referred. Leave was granted vide order, dated 8-4-
1996 to consider these two contentions, (See: PLD 1996 SC 589).

- Since the question involved in this case is whether an Ordinance can be repeated,
article 89 of the constitution, notice was issued as required under Order XXVII-A of
the C.P.C., to the learned Attorney-General.

- Other contentions raised by the counsel for appellant at the time of hearing of appeal:

o The general principles of Islam or the injuntions prescribing punishment

cannot be applied as law, as they donot fall under the meaning of the term law
as defined in the constitution. No instrument not made under the authority of
parliament could be treated as law and applied in any case.

o The observations of the Shariat Appellate bench in Federation of Pakistan v

NWFP Government and others to the effect that ‘in state of vacuum the
common Islamic Law/ Injunctions of Islam would be deemed to be the law on
the subject of qatl and jurh. The courts deciding the law may seek guidance
from the ordinance (which is enforced on or before the 12th Rabi ul Awal) after
it lapses, after being enforced once’ could legally be made while deciding a
case under 3A of the constitution. Plea was that such a declration amounts to
making of law and is the exclusive prerogative of parliament. Article 12, no
person can be deprived of life except in accordance of law, which mandate
stans reenforced by article 4. injunctions of Islam cannot be applied to the
present case because they were not made by or under the authority of the
parliament.

- The Shariat Appellate Bench of this Court in the case of Federation of Pakistan
through Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD 1989 SC
633) declared the provision of PPC relating to offences aganst the human body
repugnant to the injunctions of islam. Set the date of 23-3-1990 for the decision to
take effect.

- The operative part of the order passed in Federation of Pakistan and another v. N.-
W.F.P. Government and others (PLD 1990 SC 1172) i.e., the case wherein the above
statement was made reads as under:---

o The new Ordinance incorporating the provisions relating to Qisas and Diyat
shall be promulgated by 5th September, 1990 and all the provisions thereof
shall be enforced at the latest by 12th Rabi-ul-Awwal 1411 A.H.

o Decision of the court will also take effect on 12th Rabi ul Awal

- The Criminal Law (Second Amendment) Ordinance, 1990: enforced the provisions
relating to Qisas and Diyat by amending the provisions of sections 53, 55, 109 and
299 to 338, P.P.C and certain provisions of Code of Criminal Procedure.
- The legislature ultimately accorded the approval and Qisas and Diyat provisions
contained in the Ordinance No.CXIII of 1996 were approved by the Parliament on 11-
4-1997 as Act II of 1997 called the Criminal Law (Amendment) Act, 1997.

- Observations of Mr. Justce Saleem Akhtar: an ordinance promulgated by President

under article 89 and governor under article 128 does not have the power to re-enact an
ordinance. This will result in perpetuation of a rule by completely ignoring and by
passing the assemblies which have power to legislate.

- Although article 89 doesnot prohibit re-enactment of an expired Ordinance, the same

provides that if an ordinance is not laid before the assembly and approved, it shall
lapse at the expiry of four months. This was the main plea urged by the learned
counsel for appellant.

- The attorny-general submitted that all these ordinances were placed before the
National Assembly as well as Senate for approval as required by article 89, neither of
the two houses disapproved any ordinance which otherwise remained under
consideration of either of the houses or its committees, president had to promulgate
ordinances from time to time to fill the state of vacuum regarding the law relating to
bodily injuroes, hurt and murder.

- Attorney-general pointed out that vacuum had to be filled and Federation of Pakistan
v NWFP Government and others provides sufficient basis for keeping the provisions
of Ordinance VII of 1990, operative and effective to punish the offender of the
offences provided for in the said ordinance.

- Look at article 89 of the constitution ***

- Case of Collector of Customs:

o it will suffice to observe that the underlined idea/philosophy seems to be that

the legislative power vests in an Assembly, which power cannot be usurped by
a Head of the State or a Province while the Assembly exists. The above reason
will not hold good if an Assembly stands dissolved and for a justifiable reason,
it has not been reconstituted within the period specified in the relevant Article
of the Constitution.

o if the National Assembly stands dissolved, and its elections could not take
place within the stipulated period of 90 days as provided in clause (5) of
Article 48 of the Constitution for a reason not attributable to the President and
sue delay is found by the competent Court justifiable, the President will be
competent to re-enact an Ordinance.

o by the time new Assemblies would have been re-constituted, the Ordinance
could have been placed before the National and Provincial Assemblies within
a period of four months and three months as provided for under Articles 89
and 128(2)(x) of the Constitution respectively. The above observations do not
lay down that in no case, there can be a second Ordinance.
- There was no other way of filling the vaccum and the president had to act and as a
matter of state necessity to provide for the legal cover and bringing to book the
violaters of rights of citizens in person, body and property. The ordinance validly held
the field and was operative in law and the appellant was rightly tried for the offence of
murder as defined and made punishable under the said Ordinance.

- While the parliament is supreme, either houses did not approve or disapprove the
ordinance. The vacuum created had to be provided for, and the scheme of securing
parliament’s supremacy was being complied with. The very fact that one such
situation, which will provide justification for re-enactment has been conceded by
Saleem Akhtar, J. shows that while keeping the will of legislature supreme, the well
being of the society and the citizens provides sufficient justification for legislative
measure taken by the executive, i.e., the President of Pakistan in safeguarding the life,
liberty and rights of citizens. The legislature also exists to achieve ultimate good and
welfare of the citizens.

- The view that the Ordinances containing provisions for Qisas and Diyat were validly
promulgated and are not ultra vires to the constitution, the pleas rested on hav become
extinct. The plea that the Shariat Appellate Bench has no authority ti make declaration
and issue the direction as has been made in the review petition titled FoP v NWFP
Gov and others is misconceived. In Suo Motu Shariat Review Petition No. l-R of
1989 (PLD 1990 SC 865) and Ajmal Mian, J. made the observation that the bench can
declare law or provision of law repugnant to Unjunctions of Islam. It can also declare
that if certain basic ingredients of a particular Islamic law are missing in a Statute, it
would be against the Injunctions of Islam to enforce such a Statute without having
such basic ingredients therein. the Shariat Appellate Bench can additionally press into
service any recognized principle of Islamic jurisprudence which is not in conflict with
the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) by virtue of Articles 2A
and 227 (2) of the Constitution. So the first contention cannot sustain.

- Learned counsel elaborated this plea by submitting that the learned Trial Court did not
comply with the mandatory requirement of Tazkiya-al-Shahood (certification of
probity of witness, obligatory in cases punishable with Hadd and/or Qisas) of
witnesses and such conviction of the appellant is illegal. But where an accused is tried
and is to be awarded punishment in Tazir, Tazkiya of witnesses is not necessary
requirement of the trial. Articles 3 and 17 of the Qanun-e-Shahadat, 1984

- Tazkiya-al- Shahood is a mandatory requirement in cases of Hudood and Qisas

- Home Secretary N.-W.F.P. v. Muhammad Ayaz Khan:

o parties had participated in the proceedings without raising any objection to the
conduct of the trial on the conclusion of which death penalty was awarded,
appeal of the convict was dismissed by the Peshawar High Court and the
penalty of death was confirmed, and the petition for leave to appeal filed
before the Supreme Court was dismissed; ultimately black warrant was issued
to carry out execution of the death sentence by causing death of the convict to
be shot dead by wali of the deceased. A Constitution Petition was then filed
raising the objection that the black warrant issued for execution of the death
 sentence by means of Qisas is illegal as he was awarded the death sentence by
way of Tazir and such a death sentence is to be executed in accordance with
law as provided under section 368, Cr.P.C. Learned Judges of the Peshawar
High Court, after going through the record of the case found that in the said
case principles of Tazkiya-al-Shahood were not followed as envisaged in the
law of Islam and as the Trial Court had proceeded with the trial of the accused
under Tazir and awarded the death penalty to the accused by way of Tazir and
as a matter of record, at no stage there was any objection raised against the
conduct of the trial under the law of Qisas up to the last forum of the Supreme
Court, the death penalty awarded to the accused by the Trial Judge shall be
covered by clause (b) of section 302, P.P.C. as Tazir, The execution of the
death sentence by way of ~` Qisas was declared to. be illegal.

- State v. Amir Zaman Hanafi and 4 others. In cases where Hudood or Qisas is not
involved, the Qazi need not hold Tazkia-al-Shahood.

- In the instant case, the appellant was awarded punishment of death by way of Tazir.
As such there was no need to resort to Tazkiya-al-Shahood. This plea in fact is not
available to him.

- Learned counsel further argued according to the Injunctions of Islam if a witness is

held as untrustworthy in respect of one accused, his evidence cannot be relied upon
for convicting the co-accused.

- He added that the word "Chhurri" was substituted through interpolation in the F.I.R.
for the word "Chaakoo/knife" which was originally written. This would show that the
Police as well as the prosecution had acted mala fide and in these circumstances the
conviction of the appellant was unwarranted. Lastly, it was submitted that the death
penalty should not have been exacted as the appellant, if found to be guilty, had acted
on grave and sudden provocation, section 342 Cr.P.C

- Muhammad Hanif was acquitted as only an insignificant role was attributed to him by
the eyewitnesses.

- 26. It is pertinent to note that it is not open to the learned counsel for the appellant to
urge these pleas at this stage as while seeking leave to appeal these pleas appear not to
have been argued as there was no mention of the same in the leave granting order, and
leave to appeal was granted on only two questions noted in paragraph 5 above.
However, with a view to do complete justice and to satisfy our conscience we have
gone through the evidence on record and the judgments of the learned Courts below
and find that the abovenoted contentions of the learned counsel for the appellant are
without merit. Muhammad Hanif, co-accused, father of the appellant was acquitted as
a matter of abundant caution and it would not be correct to assert that the evidence of
the two eye-witnesses in respect of Muhammad Hanif co-accused was disbelieved.
Muhammad Hanif was acquitted as only an insignificant role was attributed to him by
the eyewitnesses. Moreover, in order to reach the truth, the grain has to be sifted from
the chaff in each case in the light of its own particular facts and we are satisfied that
the appraisal of evidence by the learned Courts below suffered from no legal infirmity
and the conclusion that Riaz Ahmad had caused the murder by giving Chhurri blows
 to the deceased is well-founded. He, however, in his statement under section 342,
Cr.P.C. took the plea of grave and sudden provocation but from the very plea that he
has taken the case of grave and sudden provocation is not made out. Firstly, he did not
even pick up the courage to make a statement on oath and secondly, the statement that
he made is to the effect that on the day of occurrence his wife had gone in the field to
ease herself and Muhammad Siddique deceased went there and tried to outrage her
modesty and he (Riaz Ahmed, accused) incidentally went there and for the purpose of
saving his wife, grappled with Muhammad Siddique and some injuries were inflicted
on the person of Muhammad Siddique with a knife which was kept for the purpose of
cutting Datan. It would be noted that no details, as to how and in what manner attempt
to outrage the modesty of his wife was made, were given. Moreover, nothing was
brought on record to even prima facie establish the said plea. In these circumstances,
the Courts below were right to observe that such a plea cannot furnish a mitigating
circumstances for awarding lesser punishment. This aspect of the matter was dilated
upon by the learned Judges in the impugned judgment and after analysing the
injunctions from precepts of the Holy Prophet (p.b.u.h.) and the decided cases they
rightly came to the conclusion that such a plea cannot be accepted. The plea of mala
fide of the Police on account of alleged substitution of the word "knife/Chaakoo" also
remained unsubstantiated. Moreover, learned Trial Court was right in observing that
the factum of "knife" or "Churri" makes no difference. The stab wound could be of a
"Chhurri" or a "knife". Be that as it may, the appellant in his Jail Petition has himself
averred that he had given the repeated Chhurri blows to the deceased on seeing that
the deceased had caught hold of his wife who was raising hue and cry and on seeing
this he could not withstand the scene and caused repeated blows to the deceased.

- For the reasons given above we find no merit in this appeal and the same is dismissed