[Ordinance VII of 1990]
[Wef. 12 Rabiul-Awwal 1411 Hijri = 12-10-1990]
(AMENDMENT OF P.P.C.)
Qisas, Qatl, Tazir, Qatli Amd, Wali defined. Case in which Qisas for Qatli Amd is not enforceable. Punishment not liable to Qisas principles. Waver principles. Compounding of Qisas, principles. Sec. 338-F PPC interpretation of Chapt. XVI Penal Code, Sec 309 & 310 PPC etc. 1997 SCMR 1307. Sh. Muhammad Aslam v. Shaukat Ali etc.
Without taking the exercise of Tazkiya-al-Shuhood sentence of death for Qatl-i-Amd could not be awarded as Qisas. Sentence reduced to life imprisonment. Sentence was also reduced because the accused was smarting under grievance to average the murder of his father when the accused was only 7/8 years old. (DB) PLD 1998 Pesh. 101 Sambali Khan.
Prosecution is to prove whether Qatl-i-Amd is liable to Qisas, Qatl-i-Amd not liable to Qisas or Qatl-i-Amd is liable to Taazir 1992 SCMR 2047, State v. Muhammad Hanif etc.
Qatl-i-Amd is liable to Qisas only when the person murdered is not liable to be murdered or is Maasoom-ud-Dam. 1992 SCMR 2047, State v. Muhammad Hanif.
Qatl-i-Amd committed by husband of his wife leaving behind child/children was not liable to Qisas. Held, Court had no lawful authority to convict the accused u/S. 302 PPC. or impose penalty of death on him. In such a case the punishment could be awarded u/S. 308 PPC.
When no intention to kill and not even knowledge that the injury caused would be fatal, held, accused was not liable for "Qatl-a-Amd" punishable with death as Qisas. Conviction u/S. 302 (a) PPC altered to u/S. 302(c) PPC and sentence reduced to 10 years' R.I. (DB) PLD 1994 Lah. 43, Talib Hussain.
Accused had no animus against the persons killed and injured. Even on seeing and encountering the person against whom the accused had animus, they in spite of being armed did not react violently and immediately. Sentence of death awarded by way of Qisas altered to life imprisonment with fine of Rs. 25,000 u/S. 544-A Cr.P.C. 1992 SCMR 2037, Manzoor etc.
Where requirements of sec. 304 (1) PPC have not been complied with sentence of death as Qisas cannot be awarded. Appellant awarded death sentence as tazeer punishable under clause (b) of Sec. 302 PPC. PLJ 1993 Cr.C. (SAC) 242, Mehmood.
Qatle Amd u/S. 302 PPC and sections 304 and 306 PPC. Section 304 PPC plays pivotal role in determining fate of persons found guilty u/S. 302 PPC. Where evidence as evisaged u/S. 304 PPC is proved the accused shall be punished for offence u/S. 302, Part (a) and sentenced to Qisas, where evidence as required u/S. 304 PPC is brought on the record but sentence of Qisas cannot be applied because of bar imposed u/S. 306 PPC, but where the evidence is available but it does not fulfil the condition laid down u/S. 304 PPC the person may be convicted and sentenced for Ta'zir u/S. 302 (b) PPC to death or imprisonment for life. 1996 SCMR 3, Muddassar.
Children of victim being direct descendents of appellant, held, punishment awarded could only be Diyat and not Qisas. Offence u/S. 306 PPC as amended which envisages that Qatl-i-Amd shall not be liable to Qisas if any wali of victim is direct descendent of offender. Death sentence awarded to appellant not confirmed. PLJ 1993 Cr.C. (SAC) 373, Muhammad Rafiq etc.
Extra-judicial confession is no evidence in a case punishable with death as Qisas. 1992 SCMR 398, Khubab Ahmed.
Sentence of death and fine u/S. 544-A Cr.P.C. In case of punishment of death by way of Qisas, punishment u/S. 544-A Cr.P.C. cannot be awarded because such compensation or payment is due only under compromise by way of Arsh, Daman etc. Enhancement of punishment by such additions is contrary to injunctions of Islam. 1992 SCMR 2037, Manzur.
Qatl committed for ghairat is not Qatl-i-Amd. In view of Sec. 338-F PPC. Sentence of 25 years R.I. u/S. 302(c)/34 PPC reduced to 5 years R.I. No compensation to be paid to the heirs of such deceased. PLD 1994 Lah. 392, Ghulam Yasin etc. = PLJ 1994 Cr.C. (Lah.) 341.
Qatl committed under "IKRAH-I-TAM" u/S. 303 (a) PPC read with sec. 299(g), PPC; 3 requirements are high lighted:
(1) Putting any person or his sponse or any of his blood relations within prohibited degree of marriage in fear of instant death or,
(2) Instant permanent impairment of any organ of body,
(3) Instant fear of being subjected to sodomy or zina-bil-jabr. PLD 1997 Lah 110, Ahmed Yar.
Qatl-i-Khata, Diyat amount vide notification of Govt. of Pakistan No. SRO 619(1) 1991 dated 1-7-1991 Finance Division was Rs. 106, 967.50. The Court released the convict on bail for the same amount on the condition that the amount shall be paid within 3 years. 1994 P.Cr.LJ 934, Muhammad Afzal.
Compounding of offences; (Waiver Afw; Badl-i-Sulah etc.)
Where one of the Walis waives his right of Qisas to the satisfaction of the Court, Qisas for Qatl-i-Amd cannot be enforced, held further, Wali who did not waive his right of Qisas was entitled to share of Diyat. After the payment of Diyyat the appellant could not be let off but could be punished with imprisonment by way of Tazeer. PLJ 1993 Cr.C. (Lah.) 60, (DB) Ghulam Hussain and another.
Waiver and compounding of Qisas, difference; Waiver (Afq) is completely different from compounding right of Qisas (Sulh)" in the former the Wali waives the right of Qisas without any compensation while in the latter the right of Qisas is compounded on receipt of compensation Badal-i-Sulh. Where Government is Wali or where right of Qisas vests in a minor or insane person no waiver (Afw) can be offered by the Government or the Wali of the minor or insane person, but they can compound right of Qisas. 1993 SCMR 1574, Javaid Masih.
Minor daughter who w as wali and direct descendent moved application for pardoning the accused father who had murdered his wife, held, accused was liable to pay "Diyat" and was not liable to Qisas. As the murder was brutal the accused was ordered to suffer R.I. for 14 years. 1999 SCMR 403, Muhammad Iqbal.
As right of waiver under Qisas and Diyat is personal right of a minor it cannot be compromised by the guardian of a minor. Held, the Court was not justified in acquitting the respondent. Retrial ordered. (Author's note. It appears that the Court did not take note of Sec. 345(4) Cr.P.C. where a case can be compromised on behalf of a minor) PLJ 1993 Cr.C. (Quetta) 216, State v. Abdul Aziz.
Mother of the deceased pardoned the accused and waived here right of Qisas and Diyat in the Trial Court but it escaped the notice of the trial Court and the High Court, S. 309(1), PPC permits any adult wali of the deceased to waive right of Qisas without any compensation hence the offence was punishable u/S. 311, PPC. Death sentence reduced to 14 years imprisonment with benefit u/S. 382-B, Cr.P.C. Accused also ordered to pay Diayat amount to mother of the deceased. 1999 SCMR 933, Khalid Nawaz.
Compromise; filling up of proforma prescribed by Supreme Court is to be seriously taken. No compromise is to be accepted without satisfaction of the Court, for which 3 stages have been prescribed by the Supreme Court.
(1) Supreme Court office shall carefully scrutinise the proforma. It shall reuse to entertain the application for compromise in which the proforma is not correctly filled with reference to the circumstances of each case.
(2) Secondly one of the Judges of the Supreme Court shall process the application in the chamber. If there are any shortcomings those may be rectified in the chamber hearing. After the learned (Judge is satisfied in chamber the office shall put up the case in the Court.
(3) Only that compromise shall be accepted by the Court in which case in which there is no dispute or doubt left anymore.
Warning. It is the accused party which has to satisfy the other party that the compromise is genuine, that is it is without any pressure or coercion and by free will of the aggrieved party. The appellant can argue the case on merits after the compromise is rejected. 1992 SCMR 1218, Abdul Ghafoor etc. = PLJ 1992 SC 215.
Compromise in murder cases. Where any doubt arises regarding compromise by free will it shall entail rejection of the compromise. Proforma prescribed by the Supreme Court for compromise to be filled carefully, and filed with the compromise application. PLJ 1992 S.C. 215, Abdul Ghafoor = 1992 SCMR 1218.
Father and mother compromised with the accused waiving their right of Qisas regarding the murder of their child. Petitioner acquitted. 1997 SCMR 951, Muhammad Irshad.
Father and mother compromised with the accused waiving their right of Qisas regarding the murder of their child. Petitioner acquitted. 1997 SCMR 951, Muhammad Irshad.
Offence of murder committed before 1990 amendment came into force, the murder case could be compounded u/Ss. 338-E read with 338-H PPC. PLD 1991 S.C. 202, Safdar Ali etc.
Payment of "Badli Sulah" On payment of the value of Diyat, which is the value of 30,630 grams of silver, that is Rs. 1,71,000 the Supreme Court granted permission to compound the offence. (Ss. 310 and 323 PPC ref.) The entire amount of Rs. 1,71,000 was brought in the Court and paid to the heirs of the deceased. PLD 1991 S.C. 202, Safdar Ali etc. = PLJ 1991 S.C. 256.
The number of accused is of no consequence when the heirs of the victim were satisfied with the amount of diyat paid to them. Rs. 1,71,000 was held to be fair badli sulah for compounding the offence keeping in view the financial position of the accused and also of the heirs of the victim. PLD 1991 S.C. 202, Safdar Ali = PLJ 1991 S.C. 256.
In pending appeals where offence is compounded the appellant is to be acquitted u/S. 345(2) and (5) Cr.P.C. PLD 1991 Lah. 347, Muhammad Ashraf.
"Fasad-fil-Arz" compromise in second murder case, accepted, and the accused sentenced by way of `Taazir' u/S. 311 PPC and sentenced to 14 years R.I. 1996 SCMR 906, Muhammad Ramzan.
Compromise by one heir of the deceased death sentence reduced to life imprisonment. PLJ 1991 Cr.C. (Lah.) 272, Manzoor Ahmed.
When appeal is pending, u/S. 345 Cr.P.C. the offences u/Ss. 302, 307 PPC can be compounded by leave of the Court and such composition shall have the effect of acquittal. When the judgment has attained finality the Courts cannot give effect to the compromise. Punishment by way of taazir cannot be awarded by the Courts when the offence has been pardoned. (F.B.) PLD 1991 Lah. 347, Muhammad Ashraf.
Compounding of offence u/S. 302/34 PPC when appeal disposed of by High Court on 20-5-1990 maintaining the conviction and reducing the sentence to life imprisonment. No appeal to Supreme Court made by the convict from the High Court judgment. On application made u/S. 345 and 561-A Cr.P.C. to the High Court on 29-5-1993 when the case was not pending in any Court, the High Court after satisfying itself that the compromise was genuine and that the heirs of the deceased had received Rs. 1,75,000 as Badle Sulah acquitted the accused. (DB) PLJ 1994 Cr.C. (Lah.) 207, Atta Muhammad.
Compounding of murder case when accused sentenced to life imprisonment, question of the heirs of victim compounded their right of qisas would not arise and such a case would fall u/S. 345(2) Cr.P.C. as amended by Cr. Law Amendment Ord. 1991. PLD 1991 S.C. 202, Safdar Ali etc. = PLJ 1991 S.C. 256.
While compounding the offence the right of minors can be guarded by the payment of the amount to the natural guardian, in this case the mother of the minors. PLD 1991 S.C. 202, Safdar Ali etc. = PLJ 1991 S.C. 256.
"Badl-e-Sulah" the amount of Rs. 2,25,000 admitted to have been received from the accused and were forgiven. Supreme Court after verification of compromise accepted the appeal and acquitted the accused. 1993 SCMR 1989, Muhammad Ishaq alias Kali.
Badle Sulah u/S. 310 and 302 PPC. Only giving a female in marriage is not valid badle sulah for offence u/S. 302 PPC. However, District Magistrate had reported that the convict had been pardoned in lieu of marriage of his two daughters and Rs. 2 lac as cash compensation. Held, compromise being genuine and requirement of law being satisfied Supreme Court accepted the compromise and acquitted the accused. 1992 SCMR 1283, Yara.
Badle Sulah for offence u/S. 302 PPC was not valid when two females were given in marriage to the sons of the deceased. A fresh application for compromise was made and on inquiry by the Supreme Court the heirs of the deceased acknowledged to have received Rs. 200,000 as compensation in addition to two girls in marriage, the appellants were acquitted. 1992 SCMR 1283, Yara.
Compromise, Rs. 100,000, acknowledged to have been received by the heirs of the deceased by way of compensation. Petition for leave to appeal was converted into appeal and accused acquitted of the charge u/S. 302/34 PPC. No compromise between parties for offence u/S. 307/34 PPC held, order of acquittal for offence u/S. 302/34 PPC does not affect conviction u/S. 307/34 PPC. 1993 SCMR 1990 Muhammad Rafiq.
Diyat amount of Rs. 200,000 ordered to be paid and accused to remain in prison until amount is paid, order set aside. The appellant released on bail in the amount of diyat and directed to pay the amount in 3 years and not in a lump sum, for an offence of Qatli Khatta. PLJ 1994 Cr.C. (Lah.) 202, Muhammad Afzal.
Badli Sulah of Rs. 1,72,000 ordered to be paid to the heirs of the deceased when High Court found that the deceased had minor sisters and brothers in addition to his parents who had forgiven the petitioners. The trial Court had acquitted the petitioners because of the compromise between the parents of the deceased and the accused. The Supreme Court refused leave to appeal. 1994 SCMR 1211, Muhammad Tufail etc.
Compromise for offence u/S. 302 PPC for double murder. Major legal heirs of deceased and the injured had waived their right to claim any compensation and had forgiven the deceased. Shares of minor legal heirs of Diyat money was deposited in the bank. Supreme Court accepted the compromise and the appellants were ordered to be released forthwith. 1995 SCMR 1296. Ibrahim etc.
Only one legal heir out of two of the deceased forgiving the accused as the other legal heir was not available and no compromise could be effected in respect of the other deceased. Application for accepting compromise in the matter and acquittal of accused was dismissed. 1993 SCMR 1574, Javaid Masih.
Composition of offence of murder does not automatically entitle a convict/accused to clean acquittal, it is for the Court to see that the accused convict does not fall within the purview of Sec. 311 PPC. The convicts in this case were sentenced to 5 years' R.I. Sentence of life imprisonment and death was set aside. (DB) PLD 1992 Lah. 75, Tariq Mahmood.
Compromise u/Ss. 309, 310, 338-E and 338-H PPC. The accused were sentenced to life imprisonment. Heirs of the deceased, pending appeal in the Supreme Court made an application for compromise in the Supreme Court. The Supreme Court directed the District Magistrate to inquiry whether the compromise was genuine and voluntary and also whether the interests of the minors had been ensured. Report to be submitted to the Supreme Court through the Registrar of the Supreme Court within one month. 1992 SCMR 694, Muhammad Azam.
Despite compromise (Secs. 309, 310 and 311 PPC) Court has discretion to punish the accused notwithstanding compounding of Taazir and waiver of Qisas. Court has discretion to punish the accused if he is a previous convict, habitual or professional criminal or had brutally committed the offence. PLD 1997 Q 17, Niaz Muhammad.
Compromise in case u/S. 302 PPC and punishment by way of Taazir u/S. 311 PPC by Supreme Court. The Supreme Court accepted the compromise and set aside the death sentence. As the accused had committed a murder earlier and had been forgiven by the heirs of the deceased of that case. The Supreme Court keeping in view the principle of "Fisad-fil-Arz" awarded 14 years R.I. to the accused with benefit u/S. 382 3/4B Cr.P.C. PLJ 1996 S.C. 1099 Muhammad Ramzan @ Ramzani.
Where Qisas is not applicable and compromise is made u/S. 345 Cr.P.C. the legal guardian can on behalf of minors compound the offence Compromise accepted as sections 309 and 310 PPC were not applicable PLJ 1993 Cr. C. (SAC) 75, Muhammad Hanif.
When case is compounded u/S. 345 Cr.P.C. for offence u/S. 302 PPC the question of Tazir u/S. 311 PPC does not arise, the accused is to be acquitted. PLD 1992 Pesh. 176 Nazar Ali etc.
When the offence of murder is compounded u/S. 345 Cr.P.C. for offence u/S. 302 PPC the appellant is to be acquitted. He cannot be convicted u/S. 311 PPC, as u/S. 345 Cr.P.C. there is compromise as a whole and not that the right of Qisas is waived u/S. 309 or 310 PPC. PLJ 1992 Cr.C. (Kar.) 342, Usman etc. PLJ 1992 Cr.C. (Kar.) 345, Moula Bux.
Accused forgiven u/S. 435, Cr.P.C. the accused cannot be sentenced to imprisonment as Tazir as well. The accused was forgiven u/S. 345, Cr.P.C. and was directed by trial Court to pay Diyyat amount to the heirs of the deceased. Held, once accused was forgiven and Trial Court directed to pay Diyyat to the heirs o the deceased in that case the accused could not be sentenced to imprisonment under tazir because that would amount to additional punishment for the same offence. PLJ 1999 Cr.C. (Pesh.) 667 Mst. Taj Mahal v. Shams-ur-Rehman etc.
Legal heirs of the deceased had forgiven the accused in the name of Allah Almighty. Father of the deceased confirmed the fact in the Court. The Supreme Court acquitted the petitioners. 1994 SCMR 1262, Sarwar Khan etc.
When the offence of murder is compounded u/S. 345 Cr.P.C. the appellant is to be acquitted. He cannot be convicted u/S. 311 PPC, as u/S. 345 there is compromise as a whole and not the right of Qisas is waived u/S. 309 or 310 PPC. PLJ 1992 Cr.C. (Kar.) 342, Usman etc. PLJ 1992 Cr.C. (Kar.) 345 Moula Baksh. PLD 1992 Pesh. 176, Nazar Ali.
Compromise u/S. 345 Cr.P.C. in Supreme Court. No compromise can be accepted without satisfaction of the Court for which 3 stages have been prescribed. Application for compromise and filling of the proforma prescribed by the Supreme Court to be taken seriously. The offece to entertain compromise application only when the proforma is properly filled. Secondly the parties must satisfy the judge in chamber that each entry in proforma is correct. Thirdly in the Court only that compromise shall be accepted wherein there is no doubt or dispute left. Price of 30,630 grams of silver is to be mentioned in the proforma. 1992 SCMR 1218, Abdul Ghafoor and three others.
Compounding of offence u/S. 345 Cr.P.C. where death sentence is not passed but lesser sentence u/S. 302 PPC has been imposed. Since compounding right of Qisas can be effected by Wali of the deceased, care has to be taken to ascertain his correct identity and also to see that the interest of the minor, if involved, is not prejudiced. 1993 SCMR 1574, Javaid Masih.
Composition of offence can only be done after the accused is proved guilty. Offender u/S. 311 PPC shall mean a person who has committed an offence. Question of waiver of compounding of the right of "Qisas" would only arise after the accused is proved guilty. PLD 1992 Pesh. 189, Muhammad Ishaq.
Compromise in case for offence u/Ss. 304(1) and 307 PPC. Legal heirs of deceased as well as the injured prosecution witness had forgiven the accused without receiving any compensation in the name of God. Compromise accepted and the accused acquitted. 1994 P.Cr.LJ 891, Muhammad Kabir.
Offences u/Ss. 324 to 338-C PPC are not tribal by Magistrate as u/S. 32 Cr.P.C. the Magistrate cannot award punishments of Qisas, Diyat, Arsh and Daman. PLD 1993 Pesh. 22, Muhammad Ashraf.
Offence u/S. 337-A (II) PPC, Sajjah-i-Mudhihah (Exposure of the bone of the victim without causing fracture) did not fall under the prohibition clause. Bail allowed. 1993 SCMR 1194, Allah Rakha.
When hurt is caused for offence u/S. 324 PPC, the punishment is according to the nature of the hurt. There is logic behind new section 324 PPC when compared with old section 307 PPC as the intention of the person can better be judged from physical consequence of his act rather than looking at various means which are not tangible. NLR 1994 Cr. 395, Muhammad Zahoor v. Gul Muhammad etc.
Compounding of offence u/Ss. 302, 307, 309 PPC. Guidelines provided in PLD 1996 S.C. 178. Appeal by accused not pending in High Court, application for copounding an offence could not be entertained by High Court , which lay before the Trial Court. PLJ 1996 Cr. C. (Pesh) 1964, Ghulam Hazrat.