1. ' ABDUL HAREEM KHAN, C J.-Gul Hassan son of Sarfaraz Khan who has been convicted and sentenced to death for murder under section 302, P. P. C. Has moved Shariat Petition No, 7/1979 and thereby he seeks declaration that the provisions of :-
(1) Section 302, P. P. C.,
(2) Schedule of Criminal Procedure with regard to section 302, P. P. C.,
(3) Sections 401, 402, 403 of the Code of Criminal Procedure,
(2) Laws relating to mercy be declared repugnant to the Injunctions of Islam as 'Qur'an and Hadis both provide that `Qisas' can be remitted completely or waived on payment of `Diyat'. Furthermore section 302 of the Pakistan Penal Code is also violative of the Injunctions of Islam for the reason that it exacts Qisas from a minor as well while it is not so under the Injunctions. Needless to say that some documents have been placed on the record to show that the petitioner was minor at the time when the offence was committed and again there has been a compromise between the heirs of the murdered man and they have granted pardon to the petitioner.
(3) There is another petition, namely, 13/1979 which has been moved by Noor Alam Khan another person condemned to death for murder. He claims that he has been pardoned and relies upon a compromise between the two rival parties which is certified by a Magistrate. He also asserts that sections 54, 55 and 302 of the Pakistan Penal Code ; Schedule to the Code of Criminal Procedure and also section 345 thereof ; sections 401, 402 and 403 of the Code of Criminal Procedure ; Article 45 of the Constitution and other mercy laws are repugnant to the Injunctions of Islam.
2. ' We propose to decide both the petitions by this order for the abstract propositions of law which call for opinion of this Bench in both the petitions appear to be :-
(1) Whether penalty prescribed by the Pakistan Penal Code for the murder is repugnant to the Injunctions of Islam ?
(2) Whether a person who was minor at the time of commission of murder, can be subjected to `Qisas' ?
(3) Whether the provisions of sections 54, 55 of the Pakistan Penal Code as also sections 401 and 402 of the Criminal Procedure Code are repugnant to the Injunctions of Islam ?
(4) Whether the provisions of the Schedule of the Criminal Procedure Code with regard to section 302, P. P. C. Showing the same to be uncompoundable and those of section 345 of the same Code are part and parcel of the substantive law and can be questioned before a Shariat Bench despite the Explanation to Article 203-B of the Constitution that a law relating to the procedure of a Court or tribunal cannot be so questioned ?
3. We have heard the learned counsel for the petitioners, namely Messrs Saeed Baig and Abdus Samad Khan Advocates as also the learned Advocate-General and entertain no doubt whatsoever that the Holy Qur'an, all the authentic compilations of the `Hadis', the great Imams and the jurists who followed them to date are unanimous on the point that an offence affecting human body can be disposed of on the basis of a pardon or on payment of `Diyar by the person affected, if he is alive, and in case he be dead, by his heirs. In support of the above conclusion reference with advantage can be made to the following verses of the Holy Qur'an :- {{URDU TEXT}} hereinafter respectively called First citation, Second citation and Third citation.
4. ' The first citation reads :- {{ARABIC TEXT}} ' The text of the second citation is :- {{ARABIC TEXT}} ' The third citation recites :- {{ARABIC TEXT}} ' The translation of the first by Shah Rafi-ud-Din Mohadis Dehlvi is as follows:- {{URDU TEXT}} ' The side notes of the said translation by Shah Abdul Qadar Sahib Mohadis Dehlvi, a scholar of great distinction would show that in the `Jahilia' period, i,e, before the advent of the Holy Prophet, the custom was that if a person from a noble and respectable family was killed, thirst of the family would not be quenched by killing the murderer but they would avenge themselves by killing their opponents in twenties and hundreds. They would demand the life of free man for a slave and of male for female. To restrict this practice, God ordained that if a free man has murdered someone, then revenge shall be taken from that one alone and if the murderer was a slave, that slave would be put to death. In case a female was the perpetrator of a crime, `Qisas' was to be exacted from her also. Furthermore if the heirs of the deceased were going to be indulgent in the exaction of `Qisas' or `Diyat' that should be in accordance with custom. In any case whatever decision is arrived at. It should be in a good way and should be accepted without demur. Again by permitting the waiver of blood money, God reduced the burden further. After this, parties shall not commit excesses or take revenge and nor should the murderer delay the payment of the blood money.
5. ' The translation of the second citation is :- {{URDU TEXT}} {{URDU TEXT}} ' So far as the note of Shah Abdul Qadar is concerned, its gist is as follows :- ' This relates to accidental murder. At times it happened that while attacking an enemy tribe, a `Musalman' was also killed. `Kafara' {{URDU TEXT}} was payable in such cases by freeing a slave or paying blood money to the heirs of the deceased except where they were to forego it. If payment of Diyar was not possible due to the financial position of the murderer he was to fast for two consecutive months.
6. ' The translation of the Third Citation by the same author reads :- {{URDU TEXT}} ' The explanatory note of Shah Abdul Qadar Sahib mentions some tribes used to get fixed different rates. Bani Nazeer used to get double `Diyat' from Bani Quraiza and would pay them at half rates It was, therefore, that this verse was revealed that the order of God was, a life for life, eye for eye etc. And if the heirs of the deceased were to forego `Qisas' they will get the sins of the deceased mitigated.
7. ' The translation of the above mentioned verses by Maulana Mohammad Ashraf Ali Thanvi reads :- ' First Citation : {{URDU TEXT}} ' Second Citation {{URDU TEXT}} ' Third Citation : {{URDU TEXT}} ' The explanatory note Ly Maulana Mohammad Ashraf Ali Thanvi to the first citation shows that God has ordained `Qisas' in case of intentional murder, that is to say, for every free man murdered, the life of the free man should be taken, for very slave murdered the life of the slave should be taken and for every female murder, the life of female should be taken regardless of the status of the murderer and the murdered man. The life of every man should be treated equally so to speak the murderer would be murdered by way of punishment except in a case where there is a pardon (even if not total) in which case the murderer's life will not be taken but he will have to pay 'Diyat'.
8. The heirs should not be unreasonable and the person charged shall also pay 'Diyat' in an honourable way. The explanatory note to the second citation is by and large identical to explanatory note of Maulana Shah Abdul Qadar Sahib. As far as the third citation is concerned, the note of Maulana Muhammad Ashraf Ali Thanvi recites that it was ordained in `Taurat' that in the case of intentional murder and injury, life shall be taken for life and eye for an eye and for every injury there was `Qisas' and if `Qisas' was waived off and pardon was given, the pardon will have the effect of expatiating the sins of the murdered man or injured person. The translation of the three citations in `Tafheem-ul-Quran' by Maulana Abul A'ala Maudoodi Sahib reads :- ' First Citation : {{URDU TEXT}} ' Second Citation : {{URDU TEXT}} ' Third Citation : {{URDU TEXT}} ' His explanatory notes of the first citation show that during 'Jahilia' the tribes used to fix the count in view of the life taken from their side arbitrarily and they were not content with taking life of the murderer alone. Rather they would take hundreds of lives of their opponents in case their respectable man was killed by less powerful enemies. They did not consider it sufficient to kill the real murderer but to kill a respectable person like him (even though innocent) or to take the lives of many. Conversely if the murdered man was of small status and the murderer was of a respectable status they would not like that the murderer's life should be taken. Again by using the words `his brother' (4.1). God has recommended a more human approach and this further demonstrates that in Islamic penal law even the murder is compoundable. The heirs of the deceased have got a right to pardon the murderer and in that case it is not appropriate for the Court that it should insist on the taking of the life of the murderer. However, it has been added that in the case of murder, the murderer shall have to pay blood money according to the common law. Furthermore Islam denounced the practice of `Jahilia' which even exists today in advanced polities. Some people want to go to the extreme extent while others have laid stress on pardon to such an extent that they advocate the repeal of death penalty.
9. ' The note of the Maulana Sahib as far as second citation is concerned need not be reproduced.
10. However, as far as the note on third citation, he says that if a person pardons and waives `Qisas' by way or `Sadqa' it will expiate his sins.
11. ' He quotes the 'Hadis' {{ARABIC TEXT}} ' Translation : ' The fellow who got injured in his body and then pardoned it, his sins shall stand remitted to the extent he waived those.
12. ' As far as `Marif-ul-Quran' by Maulana Muhammad Shafi is concerned, the translation of the three citations is as follows : ' First Citation : {{URDU TEXT}} ' Second Citation : {{URDU TEXT}} ' Under the caption 'Ma'arif-o-Massail'{{URDU TEXT}} on pages 435 to 437 of the first Vol. Maulana gives us ample background and concludes that the aim of the verse was that only that person shall be murdered who has committed murder whether he was a female or slave. For a female offender and slave, an innocent free person shall not be put to death. The verse does not intend to lay down that in the case of a murder of female by a male or of a slave by a free man, the person murdering or female or the free male shall be immune from 'Qisas'.
13. ' The explanatory note of the second citation on page 514 to 516 of the 2nd Volume ; captioned `Ma'arif-o-Massair explains that murders are of three types, namely, `Aamad' {{URDU TEXT}} Shuba-i-Aamad {{URDU TEXT}} and `Khata' {{URDU TEXT}} and that `Diyat' in the case of `Khata' is half and if the person cannot fast for two months, he should offer `Tuba' {{URDU TEXT}}. 'Ma'arif-o- Massail' as respects third citation are on pages 159 to 163 of the 3rd Vol. And in, there the views of Maulana Mohammad Ashraf Ali Thanvi Sahib have been repeated.
14. ' In his commentary of the Holy Qur'an A. Yousaf Ali translates the citations and notes as follows :- ' First.-O ye who believe ' The law of equality 182 ' Is prescribed to you ' In cases of murder ; 183 ' The free for the free, ' The slave for the sale, ' The woman for the woman.
15. ' But if any remission ' Is made by the brother 184 ' Of the slain, then grant ' Any reasonable demand, 185 ' And compensate him ' With handsome gratitude ; ' This is a concession ' And a Mercy ' From your Lord.
16. ' After this whoever ' Exceeds the limits ' Shall be in grave penalty.
17. ' In the Law of Equality ' There is (saving of) Life ' To you, 0 ye men of understanding ' That ye may ' Restrain yourselves.
18. ' Notes :-
182. Note first that this verse and the next make it clear that Islam has much mitigated the horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of justice, equality is prescribed, with a strong recommendation for mercy and forgiveness. To translate `qisas', therefore, by retaliation is, I think, incorrect. The Latin legal term Lex Talionis may come near it, but even that is modified here. In any case it is best to avoid technical terms for things that are very different. "Retaliation" in English has a wider meaning, equivalent almost to returning evil for evil, and would more fitly apply to the blood-feuds of the Days of Ignorance. Islam says : if you must take a life for a life, at least there should be some measure of equality in it ; the killing of the slave of a tribe should not involve a blood-feud where many free men would be killed ; but the law of mercy, where it can be obtained by consent, with reasonable compensation, would be better.
19. ' Our law of equality only takes account of three conditions in civil society ; free for free, slave for slave, woman for woman. Among free men or women, all are equal ; You cannot ask that because a wealthy, or highborn, or influential man is killed, his life is equal to two or three lives among the poor or the lowly. Nor, in cases of murder, can you go into the value or abilities of a slave. A woman is mentioned separately because her position as a mother or an economic worker is different. She does not form a third class, but a division in the other two classes. One life having been lost, do not waste many lives in retaliation ; at most, let the Law take one life under strictly prescribed conditions, and shut the door to private vengeance or tribal retaliation. But if the aggrieved party consents (and this condition of consent is laid down to prevent worse evils), forgiveness and brotherly love is better, and the door of Mercy is kept open. In Western law, no felony can be compounded.
183. The jurists have carefully laid down that the law of `qisas' refers to murder only. Qisas is not applicable to manslaughter, due to a mistake or an accident. Then, there would be no capital punishment.
184. The brother : the term is perfectly general ; all men are brothers in Islam. In this, and in all questions of inheritance females have rights similar to males, and therefore the masculine gender imports both sexes. Here we are considering the rights of the heirs in the light of the larger brotherhood. In ii. 178-179 we have the rights of the heirs to life (as it were) in II : 180-182 we proceed to the heirs to property.
185. The demand should be such as can be met by the party concerned, i,e, with his means, and reasonable according to justice and good conscience.
20. ' For example, demand could not be made affecting the honour of a woman or a man. The whole penalty can be remitted if the aggrieved party agrees, out of brotherly love. In meeting that demand the culprit or his friends should equally be generous and recognise the goodwill of the other side. There should be no subterfuges, no bribes, no unseemly by-play ; otherwise the whole intention of mercy and peace is lost.
21. ' Second : ' Never should a Believer ' Kill a Believer ; but ' (if it so happens) by mistake, 611 ' (Compensation is due) : ' If one (so) kills a Believer, ' It is ordained that he ' Should free a believing slave, ' And pay compensation ' To the deceased's family, ' Unless they remit it freely.
22. ' If the deceased belonged ' To a people at war with you, ' And he was a Believer, ' The freeing of a believing slave ' (Is enough). If he belonged ' To a people with whom ' Ye have a treaty of mutual ' Alliance, compensation should ' Be paid to his family, ' And a believing slave be freed.
23. ' For those who find this ' Beyond their means (is prescribed)
24. ' A fast for two months ' Running : by way of repentance To Allah : for Allah hath ' All knowledge and all wisdom. Notes :
611. Life is absolutely sacred in the Islamic Brotherhood. But mistakes will sometimes happen as did happen to the melee at Uhad, when some Muslims were killed (being mistaken for the enemy) by Muslims. There was no guilty intention, therefore, there was no murder. But all the same the family of the deceased was entitled to compensation unless they freely remitted it, and in addition it was provided that the unfortunate man who made the mistake should free a believing slave. Thus a deplorable mistake was made the occasion for winning the liberty of a slave who was a Believer, for Islam discountenances slavery, The compensation could only be paid if the deceased belonged to a Muslim society or to some people at peace with the Muslim society. Obviously it could not be paid if, though the deceased was a Believer, his people were at war with the Muslim society ; even if his people could be reached, it is not fair to increase the resources of the enemy. If the deceased was himself an enemy at war, obviously the laws of war justify his being killed in warfare unless he surrendered. If the man who took life unintentionally has no means from which to free a believing slave or to give compensation, he must still by an act of strict self-denial (fasting for two whole months running) show that he is cognizant of the grave nature of the deed he has done and sincerely repentant. I take this to apply to all three cases mentioned 1 that is, where a Believer killed a Believer unintentionally and the deceased (1) belonged to the same community as you, or (2) belonged to a community at war with you, or (3) belonged to a community in alliance with you.
25. ' Third :- ' We ordained therein for them 754 "Life for life, eye for eye, ' Nose for nose, ear for ear, ' Tooth for tooth, and wounds ' Equal for equal". But if ' Any one remits the retaliation ' By way of charity, it is ' An act of atonement for himself, 755 ' And if any fail to judge ' By (the light of) what Allah ' Hath revealed, they are (No better than) wrong-doers.
26. 756.
27. ' Notes :-
754. The retaliation is prescribed in three places in the Pentateuch, viz., Exod., XXI: 23-25 ; Leviticus, XXIV: 18-21, and Deut., XIX:
21. The wording in the three quotations is different, but in none of them is found the additional rider for mercy, as here. Note that in Matt. v. 38 Jesus quotes the Old Law "eye for eye", etc., and modifies it in the direction of forgiveness, but the Qur'anic injunction is more practical. This appeal for mercy is as between man and man in the spiritual world. Even where the injured one forgives, the State or Ruler is competent to take such action as is necessary for the person injured : the Community is affected {{URDU TEXT}}.
755. This is not part of the Mosaic Law, but the teaching of Jesus and of Mohammad. Notice how the teaching of Jesus is gradually introduced as leading up to the Qur'an.
756. The seeming repetitions at the end of verses 47, 48 and 50 are not real repetitions. The significant words in the three cases are : Unbelievers, wrong-doers, and rebellious ; and each fits the context. If the jews tamper with their books they are Unbelievers ; if they give false judgments, they are wrong-doers. If the Christians follow not their light, they are rebellious.
28. ' As far as `Ahadis' are concerned `Bukhari Sharif', 'Muslim Sharif', Sunan Abu Daud, and 'Sunan Ibne Maja' have discused `Qisas' and Diyat under separate chapters. `Kitab-ud-Diyat' in Bukhari Sharif 3rd Vol. Published by Deeni Kutab Khana, Lahore is on pages 650 to 671. In Sahih Muslim Sharif, Vol. II, published by Qur'an Mahal Karachi there is a chapter entitled, {{ARABIC TEXT}} ' On pages 747 to 775. In Sunan Abu-Daud published by Qur'an Mahal Karachi `Ahadis' regarding `Diyat' appear on pages from 408 to 447. The Abwab-ud-Diyat, Vol. II of Ibne Maja published by Deeni Kutab, Khana, Lahore covers pages 122 to 145. In Mishqat Sharif, Vol. II published by Deeni Kutab Khana, Urdu Bazar Lahore Nitabul Qisas appears on pages 176 to 203. It will follow that in accordance with the Injunctions of Islam for all offences affecting human body both `Diyat' and pardon have been indicated and though `Qisas' has been ordained in some cases for example murder, in such ases also the same can be waived and the perpetrator of the crime pardoned completely or released on payment of `Diyat'. Even the amount of `Diyat' can be reduced if the injured person or the heirs of the deceased so agree. Again in a case where one of the heirs of the deceased waives `Qisas' the murderer's life shall not be taken and the heirs who have not waived would only be entitled to `Diyat' in proportion to their share in the inheritance of the murdered man.
29. ' Again it stands concluded by authority that `Qisas' cannot be exacted from a murderer if he has not attained the age of puberty. In this connection reference may be made to the following 'Hadis' reported in Nissai, Abu Daud, Ibe Maja as corrected by Ab-Hakim {{ARABIC TEXT}} ' Translation.-Three persons are immune (from Qisas) (one being) a child till he gets night discharge (i,e, attains puberty).
30. ' The tenor of the report : ' Translation.-From Ali bin Abi Talib murder by child and made as also accidental (are immune from Qisas), which has also been narrated in Alzuhri and Qatada as appearing on page 70 of Vol. 10 by Abdul Razaq (vide Fatwa of Darul Ifta Haqania Akore Khattak Exh. H. I) will also confirm our conclusion in which we are further fortified by the observations in the three compilations of repute, namely, {{ARABIC TEXT}} ' Translation :- ' Those which bring guilt home to a murderer are five. First he should be sound in mind. Second he should be major. If he is of unsound mind or child (has not attained puberty) it (Qisas) is not exacted. The reason is that `Qisas' is a penalty and both are not subjected to a penalty. Penalty is imposed for a crime and the action of the two can not be described as crime.
31. ' Alamgiria {{URDU TEXT}} ' (Page 4, Vol. VI) {{ARABIC TEXT}} ' Translation: ' In our view intentional action of non-pubert and his accidental action are equal. In both the cases `Diyat' is payable.
32. ' Kamelia {{URDU TEXT}} {{ARABIC TEXT}} ' Translation : ' I have been asked what is the penalty for the intentional murder if committed by minor.
33. ' Murder by him makes `Diyat' payable by his {{URDU TEXT}} (kinsmen). It is in Al-Natuf that when a non-pubert murders someone there is no `Qisas'.
34. ' Before we proceed further, we should like to advert to the objection which has been raised regarding our jurisdiction in the matter. The learned Advocate-General has invited our attention to the explanation added to article 203-B of Constitution which provides that the repugnancy of a law relating to the procedure of any Court or Tribunal, to the Injunctions of Islam can not be determind by a Shariat Bench and the fact of the matter was that so far as the compound ability and commutation of sentences are concerned, in respect thereof provisions have been made by the Code of Criminal Procedure. Our attention was invited to Col. 6 of the schedule against section 302, as also sections 345(7), 40!, 402, 402-A and 402-B of the Code of Criminal Procedure. It may be stated at once that as far as the powers of the President to grant pardon etc. Under Article 45 of the Constitution are concerned we are in no manner of doubt that we can not question those for the explanation to Article 203-B of the Constitution excludes 'the Constitution' from the purview of the expression law' and, therefore, we cannot give a declaration against such powers even though position under Shariat is clear that President has got no such powers in the case of offences affecting human body. But so far as the provisions in the Cr. P. C. Regarding compound ability and commutation of punishment are concerned, we cannot persuade ourselves to agree with the learned Advocate-General that these provisions in the Code of Criminal Procedure relate to the procedure of any Court or Tribunal. The powers given in sections 401 and 402 are the powers of the Provincial Government and Central Government and ex facie not related in any way to the procedure of a Court or Tribunal. As far as section 345(7) and Col. 6 of the Schedule against section 302, P. P. C. Are concerned, we are firmly of the opinion that these are the provisions of substantive law inasmuch as no powers to allow composition rests with the Courts in cases where section 345(7) ibid is applicable one such case being that which is covered by section 302, P. P. C.
35. We reiterate no question of procedure appears to be involved. More so when we see that 'Afu' pardon and `Diyat' have been indicated in the Holy Qur'an and thereby `Qisas', i,e, prescribed punishment in the case can be waived. A reference to the three citations of the Holy Quran given in the earlier part of the judgment would show that `Qisas' and `Diyat' are the punishments prescribed by Allah Himself and that He has also commended pardon.
36. ' It was also argued that section 302 of the Pakistan Penal Code was not repugnant to the Injunctions of Islam rather it gave effect to the `Qisas' part of the Islamic penalogy in so far as murder is concerned. It was said that by not making any provision for `Diyat' or 'Afu' all that can be said is that section 302 was deficient in certain respects. This argument has, however, has not impressed us. First reference to section 2 of the Pakistan Penal Code which reads :- "Every person shall be liable to punishment under this code and not otherwise for every act or omission contrary to the provisions thereof of which he shall be guilty within Pakistan," will show that every person shall be liable to punishment under the Pakistan Penal Code and not otherwise for every act contrary to its provisions. When we consider section 302, P. P. C. Which reads :- "Whoever commit murder shall be punished with death or imprisonment for life and shall also be liable to fine" the conclusion becomes inevitable that it shall not be possible to visit murder with `Diyat' much less to pardon the same. The absence of any provision regarding pardon by the heirs in the P. P. C. Will show that section 302, P. P. C. Does not reproduce all the requirements of the Injunctions of Islam. It will also appear that imposition of imprisonment for a murder is also not indicated by the Injunctions of Islam. `Qisas' or `Diyat' or pardon are the only three options which are available for disposal of a murder case by a Court. In this connection a reference to `Mishkat page 302 Vol. II where the following narrated by Darmi is going to be helpful :- ' He said :- {{ARABIC TEXT}} ' The Urdu translation of the above in chapter 811 on pages 357 and 358 of `Sunan Darmi Sharif Urdu'
37. Qur'an Mahal Karachi reads :- {{URDU TEXT}} ' Again section 302 does not provide that a person who was not pubert at the time of the commission of the offence should not be punished with death. It is certainly against the Injunctions of Islam when it makes an accused person liable to fine. The Injunctions of Islam which have been already quoted would show the liability extends to `Qisas' and `Diyat' and that both can be waived by the heirs of the murdered man.
38. ' In this context we should, however, like to place on record that though the general law regarding murder is as already noticed earlier there are exceptions as well. If in a grave crime 'Had' or `Qisas' cannot be exacted-for extraneous reasons the Court can exact Tazir even if it extends to death penalty provided public interest so required. In such a case minor can also be punished with death.
39. Reliance in this respect is being placed on the following `Ahadis' in Abu-Daud. {{ARABIC TEXT}} ' Translation reads :- {{URDU TEXT}} {{ARABIC TEXT}} ' Translations : {{URDU TEXT}} ' It will be seen that this was a case of {{URDU TEXT}}and `Qisas' was, not duo but it was exacted as Tazir.
40. ' The proposition is also re-in forced by{{URDU TEXT}} when it is said :- {{ARABIC TEXT}} Translation {{URDU TEXT}} ' in Shami, pages 245 and 247, Vol. III will clinch the matter.
41. ' In support of the observations that President as also the Federal and Provincial Governments have no powers to grant pardon or commute sentences awarded in offences affecting human body in addition to 'Hadis' narrated by Darmi quoted on page 24 supra. There is another Hadis' in the treatise of Abdul Raziq page 14 Vol. 10 which reads :- {{ARABIC TEXT}} Translation : {{URDU TEXT}} ' In the view that punishment and compound ability are provisions of substantive law and not matters of procedure we are fortified by the observations of the Supreme Court of Pakistan reported in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan Lahore and 4 others (1).
42. ' We should however like to elaborate that the mere fact that a particular provision is available in the Criminal Procedure Code would not make it a law relating to the procedure of a Court. In this context reference of the following quotation from Jurisprudence by Salmond Tenth Edn. (page 475) would be helpful :- "It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure (a), and
(1) PLD 1969 S 599 ' it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the fact that the Administration of justice in its typical form consists in the application of remedies to the violation of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between jus and remedium is inadmissible. For, in the first place, there are many rights (in the wide sense) which belong to the sphere of procedure, for example, a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself. No one would call the abolition of capital punishment, for instance. a change in the law of criminal procedure. The substantive part of the criminal law deals, not with crimes alone, but with punishment also. So in the civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable ; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.
43. ' What, then, is the true nature of the distinction. The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions jus quod and actiones pertinetcausing the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks ; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of Courts, and litigants in respect of the litigation itself ; the former determines their conduct and relations in respect of the matters litigated.
44. ' A glance at the actual contents of the law of procedure will enable us to judge the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice ; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfil their functions. What facts constitute a wrong is determined by the substantive law ; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally, it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of the administration of justice, while imprisonment for debt was merely an instrument for enforcing payment.
45. ' So far as the administration of justice is concerned with the application of remedies to violated rights we may say what the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other."
46. (Underlined* supplied)
47. ' The learned Advocate-General also invited our attention to the observations of the Supreme Court of Pakistan in Zulfiqar Ali Bhutto v. State (1) in support of his contention that proceedings concluded before the decision of this Bench would not be affected but we cannot be unmindful of the fact that the observations of the Supreme Court on which he places reliance were made in a Review petition and not in the exercise of its Appellate Jurisdiction under Article 203-C of the Constitution.
48. Needless to say that all that Article 203-D of the Constitution lays down is that pending proceedings in a Court or tribunal immediately before the amendments are instituted, thereafter are to continue and require to be decided under the law for the time being in force. Such proceedings were not to be adjourned or stayed on the ground that relevant point for decision was before a Shariat Bench. It will be seen that in the instant case we have not been called upon to stay or adjourn a case pending in any Court and we are also not issuing any direction to stay a pending proceedings. As a matter of fact cases which might be affected by our decision have already been decided or may be decided thereafter. It will, therefore, follow that Article 203-D is not at all attracted. If as a result of our decision the Legislature makes a law that pardon or `Diyat' will also be effective in the case of person already convicted that is going to be an altogether different question. There is nothing in the Constitution which can prevent the Legislature from making a law which benefits persons already convicted provided it is in accordance with the Injunctions of Islam.
49. ' For the reasons we will hold that sections 54 and 55 of the Pakistan Penal Code as also sections 345(7), 401, 402, 402-A and 402-B of the Code of Criminal Procedure and relevant parts of its Schedule are repugnant to the Injunctions of Islam in so far as offences affecting human body listen under Chapter XVI of the Pakistan Penal Code are concerned. We are no unmindful of the limited scope of the petition wherein the challenge is confined to section 302 of the Pakistan Penal Code but cannot overlook that the Government in its anxiety to expedite Islamization of the Penal Code would appreciate if such amendments are suggested as will cover Chapter XVI of the Pakistan Penal Code in its entirety. Such a recourse will in any case forestall numerous petitions that are likely to be made before this Bench no sooner our views regarding section 302 of the Pakistan Penal Code are published. We also feel that the Government may like to provide in the' legislation to be made in pursuance of this decision that petition for pardon or `Diyat' in respect of persons awaiting execution or serving terms of imprisonment will have to be disposed off in accordance with the Injunctions of Islam in as much as `Qisas' is not exacted even if one of the heirs pardons or accepts `Diyat' at the last moment of the sentenced persons life. We will add that such petitions shall be disposed of by the High Court if it involves life imprisonment or death and by the Sessions Court in all other cases. This legislation giving effect to this decision as from today shall be made within two months.
(1) PLD 1979 SC 74i ' It may be clarified that the Draftman is to improve the language an' form of the amendments suggested by us. He may also find appropriate place for them. All that we propose to declare is
(i) The penalties prescribed in the chapter XVI of the Pakistan Penal Code with respect to offences against human body particularly section 302 are in accordance with the Injunctions of Islam inasmuch such offences can be condoned by pardon or on payment of `Diyat' and particularly a non-pubert can not be subjected to `Qisas'.
(ii) Neither a Provincial Government nor the Federal Government can remit, reduce or commute any sentence-such powers can only be exercised by a Court in accordance with the Injunctions of Islam.
(iii) There is not going to be any violation of the Injunctions of Islam if law provides Tazir (e.g. Imprisonment or death) in the case of recidivist including the one accused of theft or a murder other than accidental even if there is pardon by the heirs of the deceased on payment of blood money.
(iv) There can be no `Qisas' or 'Had' when the accused is non-pubert but he can be awarded any other punishment by way of Ta'azir.