OF THE COURT ' The Court for reasons separately recorded, has unanimously decided that: ' Sections 299 to 338 of the Pakistan Penal Code, 1860 which deal with offences againat human body are repugnant to the Injunctions of Islam, as they--
(a) do not provide for the Qisas in cases of Qatl-al-amd (deliberate murder) and iurooh-al-amd (deliberately causing hurt) as is prescribed in the Holy Qur'an and Sunnah;
(b) do not provide for Diyat in cases of Shihh-ul-amd and Khata of both Qatl (murder) and Jurh
(hurt) as prescribed in the Holy Qur'an and Sunnah;
(c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qatl and Jurh;
(d) do not provide that the offender may be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases of Qatl (murder) whereby the Court can only award him a sentence of imprisonment by Way of Ta'zir which may not extend to imprisonment for life;
(e) do not exempt a non-pubert and an insane offender from the sentence of death in cases of murder; and
(f) do not define the different kinds of Qatl and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy . Qur'an and Sunnah.
2. Section 109 of Pakistan Penal Code, 1860 is repugnant to the Injunctions of Islam in so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment.
3. Section 54 of Pakistan Penal Code and sections 401, 402, 402-A and 402-B of the Code of Criminal Procedure are repugnant to the Injunctions of Islam in so far as they empower the Central Government or a Provincial Government to commute the sentence of death in a case of Qatl-al- amd or Jurhul-amd or in any other offence violating the Huqooq-ul-lbad.
4. Section 345 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so fat as it does not include sonic of the offences against human body in the table of compoundable offences.
5. Section 381 of the Code of Criminal Procedure, 1898 is repugnant to the injunctions of Islam in so far as it dots not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place.
6. No declaration in respect of section 133 of the Evidence Act is called for as it already stands repealed by the Oanun-c-Shahadat, 1984.
7. Sections 337 to 339-A of the Code of Criminal Procedure are-declared to be repugnant to the Injunctions of Islam in so far as they permit tender of pardon to an 'offender Without reference to and without permission of the victim wherever this is required under the' injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Qatl.
8. Accordingly, it is held that this decision shall take effect Trom 23rd of March, 1990 whereby the provisions referred to above, to the extent they have been held to be repugnant to the Injunctions of Islam shall cease to have effect.
9. In the light what is stated above, Shariat Appeal No, I of 1980 and Shariat Appeal No, 13 of 1981 are dismissed. Appeal No, 19-K of 1980 is partly allowed. All other appeals are of personal nature. They are allowed to the extent that section 381 of the Code of Criminal Procedure, 1898 has been declared to be repugnant to the Injunctions of Islam.
10. As for the prayers of personal reliefs, the parties should seek remedy before other forums, in accordance with law. {{URDU TEXT}} ' Retaliation being the right of person injured or of his heirs, they can compound with offender for money or if they choose pardon him.
(Commentary of Holy Qur'an by Maulana Abdul Majid Daryabadi Volume I, page 28-B).
' JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-I agree with the reasoning of my learned brother Pir Muhammad Karam Shah with all that reasoning with consequential orders, which has been incorporated in the Unanimous Court order.
' JUSTICE NASIM HASAN SHAH, MEMBER.--I agree with my learned, brother Pir Muhammad Karam, Shah J. On the same terms as Mr. Justice M. A. Zullah.
' SHAFIUR RAHMAN, J.--I have had benefit and the, privilege of perusing with great care the detailed draft judgment prepared by my learned brother Mr. Justice Pir Muhammad Karam Shah. I have the following observations to make:--
(1) Section 133 of the Evidence Act and sections 337 to 339 of the Code of Criminal Procedure prescribe' the conditions and the offences for which an offender can be made an approver and the extent and the manner in which his testimony may be utilized at the trial. The situations, the conditions, the offences and the requirements justifying reception of approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisions of the Evidence Act with which its section 133 is to be read, establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon an evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of approver where alongwith other evidence is found to be satisfactory, it should be sufficient to convict and sentence an offender under Ta'zir, for which according to my learned brother, ample scope exists even where. Injunctions of Islam provide for the punishment.
(2) At present, and after the impugned judgment of the Federal Shariat Court, the whole of the Evidence Act stands repealed and has been reenacted as 'Qanun-e-Shahadat, 1984'. Article 166 of this Order repeals the whole of the Evidence Act. There is, therefore, now left no occasion at present to strike down Section 133 of the Evidence Act which, has ceased to be on the land. The re-enacted provision about an accomplice is Article 16 of Qanun-e-Shahadat which is differently worded. This Article can be struck down only after the proper procedure with regard to it has been followed, as provided in the Constitution.
(3) As regards the rigidity in respect of admissibility of evidence and its quality, I have not been able to find any injunction of the Holy Qur'an and the Sunnah of the Holy Prophet and the one reproduced in the judgment of my learned brother relates to infliction of punishment of Hadd and can on that score be distinguished. In the absence of any such injunction of Islam the test of repugnancy cannot be applied on the basis t of what the jurists have evolved as the rule of evidence for convicting a person. My knowledge on the subject indicates that in the matter of Ta'zir, the rules for receiving, appreciating and rejecting evidence can all be controlled by law adjusted to the situation, to the crime, to the offender and to the social atmosphere in which the laws have to be applied.
(4) Under the Anglo-Saxon Jurisprudence, Society represented by State, holds a direct control over serious offences concerning person and property. The launching of the prosecution, the withdrawal of the prosecution, reprieve and pardon after conviction and sentence by the State and its functionaries are all manifestations of this feature. The victim of the crime or his heirs have no say in the matter. Under the injunctions of Islam this is not so at least in respect of offences against person. In Islam the individual victim or' his heirs retain from the beginning to the end entire control over the matter including the crime and the criminal. They may not report it. They may not prosecute the offender. They may abandon prosecution of their free-will. They may pardon the criminal at any stage before the execution of the sentence. They may accept monetary or other compensation to purge the crime and the criminal. They may compromise. They 'may accept Qisas from the criminal. The State cannot impede, but must to its best, assist them in achieving their object and in appropriately exercising their rights. To that extent section 345 of the Code of Criminal Procedure is deficient, as composition of offences is restricted to a few specified offences and not to all others concerning the person. Section 302, P.P.C. And other similar provisions of Penal Law taken note of so far as they ordain the infliction of the sentence, even in those cases where valid compromises have been entered into or the compensation has been received or the accused have been pardoned is clearly repugnant to the Injunctions of Islam.