Applicants Jamaluddin and Gul Muhammad were booked in a case arising out of an F.I.R.
No.14/1994 registered at Police Station Manghopir, District Karachi (West) on 11-2-1994 lodged by S.H.O./S.I. Mukhtar Ahmed on behalf of the State under section 399/402, Pakistan Penal Code (hereinafter referred to as the Code).
2. The prosecution story as narrated in the F:I.R. By the complainant/Investigating Officer can be summarised as under:--
(a) On 11-2-1994 at 19-00 hours, the complainant, during patrolling, received spy information that five suspected persons were sitting in a car in Sultanabad behind/near Mazar Manghopir. After receiving the said information, the S.H.O. Alongwith other officials reached the place of incident, surrounded the accused persons and apprehended them. The' names of the accused persons and arms recovered from them, as disclosed in the F.I.R. And the charge-sheet, were revealed to be as under:--
(i) From Imtiaz Ahmed One T.T. Pistol.
(ii) From Muhammad Hashim One T.T. Pistol.
(iii) From Jamaluddin (present applicant) One revolver.
(iv) From Gul Muhammad (present applicant)One double-edged dagger.
(v) From Muhammad Umar One double-edged dagger.
Magazines and dive cartridges were also recovered alongwith the seized pistols and revolver. The accused could not produce licences for the arms possessed by and recovered from them. On interrogation at the spot they disclosed that they were preparing themselves for committing dacoity. Investigation was completed and the accused persons, including the present applicants were challaned under section 399/402, P.P.C.
(b) On account of recovery of arms they were also booked under section 13(d) of the Arms Ordinance separately.
(c) Charge-sheet of this case was submitted before the trial Judge on 24-2,1991. The contents of the charge-sheet are merely reproduction of the F.I.R. Without any additional detail of least importance. Only three persons namely, (i) Ghulam Nabi, (ii) H.C. Muhammad Siddique and (iii) the S.H.O./Investigating Officer A Mukhtar Ahmed were shown as witnesses in the charge-sheet out of which two seem to be Mashirs of recovery of weapons. Hence there is neither any other witness nor evidence to prove that the accused were preparing for committing dacoity to prove the charges punishable under section 399/402, P.P.C.
3. An application under section 265-K, Cr.P.C. Was moved before the trial Judge (IInd Additional Sessions Judge, Karachi West) but the said application was dismissed by the learned trial Judge vide his order, dated 7th July, 1994. .Hence present application under section 561-A, Cr.P.C. Was moved with prayer that proceedings against the applicants in the abovementioned F.I.R. Be quashed. Reliance was placed on the cases of:--
(i) Shaffaqat A.I Mullan v. The State 1991 PCr.LJ 2395; (ii) Sirajul Haq v. The State 1994 PCr.LJ 285.
(iii) Muhammad Suhail v. The State PLD 1994 Lah. 383
4. It is important to point out that there is no provision of law in the Code according to which assemblage or preparation before commission of any crime be treated as an offence except in the case of dacoity where assemblage and preparation for committing dacoity are punishable under section 399/402, P.P.C. Unfortunately, in most of the cases Investigating Officers do not collect or fail to collect any evidence to prove charges of assemblage and preparation punishable under section 399/402, P.P.C., therefore, result of all such prosecution cases is usually fail to get accused persons .Convicted under these sections. On account of absence of any evidence, Courts are left with no other alternative but to release such accused persons on bail or allow their appeals in cases of conviction or quash the proceedings. Several cases can be referred where bail was granted including the cases reported in 1986 PCr.LJ 2057, 1987 PCr.LJ 1607, 1988 MLD 2194,1990 PCr.LJ 41,1993 PCr.LJ 2254, 1994 PCr.LJ 576, containing references of cases reported 1994 Cr.LJ 849, 1994 PCr.LJ 1216, 1995 MLD 359,1994 PCr.I.J 576,1989 PCr.LJ 2314,1977 PCr.LJ 607.
Similarly there are large number of cases besides the case referred by the learned Advocate where the accused was/were acquitted after conviction or proceedings quashed including the cases reproduced in 1994 PCr.LJ 1218, 1991 PCr.LJ 2277,1989 ,PCr.LJ 1256, 1992 PCr.LJ 2030,1992 PCr.1J 2163 and 1992 PCr.1J 2479.
It is also important to point out that in the connected cases against the accused person under section 13-D of the Arms Ordinance, most of the learned Magistrates go on releasing such accused persons without realizing that their release, in the prevailing circumstances, amounts to sponsor death to kill the peace of society by providing opportunities to such dangerous criminals to establish out-breaking of pillage and carnage. If the accused involved in such heinous crimes, including the cases of snipers firing, are found to be the same persons who were released by certain learned Magistrates by passing routine orders without taking into consideration all other aspects of the connected cases against those accused persons and by ignoring observations of the superior Courts in all such cases, then such Magistrates can be presumed to be equally responsible for the prevailing law and order situation in different cities.
5. So far as the role of certain police officials in such cases concerned, it may also be interesting, rather shocking, to observe that pattern of lodging F.I.Rs. Under section 399/402 by the police has such astonishing resemblance, specially in Karachi, that every sensible person is forced to doubt that:--
(i) Either the concerned Police Officers are not well-conversant with the ingredients of sections 399 and 402, P.P.C.
(ii) Or most of the police officials possess a common proforma with certain blank spaces which are filled by them in all such cases as and when required.
(i) What efforts were made by the Investigating. Officers to collect information about the back history of arrested accused persons?
(ii) From where the weapons were obtained by the accused persons?
(iii) What were the means of living of those accused persons?
(iv) Whether they were previously charged, or arrested or convicted in such crimes?"
There may be several reasons for keeping the investigation mum on these questions but a common citizen can put serious allegations of in competency, lack of knowledge of law or corruption against the concerned police officials. Unless responsible higher police authorities take special steps by issuing instructions to the Investigating Officers, these defects in investigation would go on increasing with the increase of criticism from the public besides sorrowful result of failure to get the accused persons convicted under section 399/402, P.P.C. And increase of crimes by the same accused persons after their release.
6. I would not have taken this matter so seriously and with heavy heart, if the conduct of few Magistrates for releasing accused persons on bail in the cases of Arms Ordinance as a routine and the defective investigation by certain Police Officers in all such cases had not put the respect of superior judiciary at stake by due to a propaganda that police arrests criminals and the superior Courts go on releasing them.
7. It is a matter of common sense for everyone that a gang of criminals equipped with deadly fire- arms, if found assembled in any graveyard, in cars or on roads, etc., might not be discussing any programme of celebrating picnic. And it can be said with certainty that purpose or object of their assemblage----- may be designing to rock the peace of citizens by killing innocents; may be devising for gruesome carnage in that area; may be contriving to attack Mosques or Imambargahs to kill worshippers: may be scheming to terrify public to destabilize any ruling Government; may be planning to kidnap innocents for any purpose; may be arranging to get their politically splintered militants killed; or they may have gathered for committing any offence other than dacoity and it may also be possible that they-might have assembled for committing dacoity as is usually stated in F.I.Rs. Or charge-sheets.
What the purpose of their assemblage may be, it had to be found by the law-enforcing agencies by collecting evidence. It would not be sufficient to say that the accused, at the time of their arrest, had stated so and so. Sorry to C say that investigations done by several Police Officers in most of the cases challaned under section 399/402, P.P.C. Is generally found devoid of evidence which provides opportunities to the accused to get themselves released. Only Allah Almighty or the Investigating Officers of such cases can be aware of this reality whether such opportunities were made available to the accused intentionally by the concerned officials or such conduct was the result of in competency and corruption. But instead of adopting effective measures to cover the defects in future it has become a fashion of certain police officials to defame the superior judiciary to cover their own faults of investigation by saying to their superiors that they had succeeded to arrest dangerous criminals but the Courts released them. Neither they disclose to their superiors nor their superiors take pain to look into this reality that no evidence was collected during investigation specially by those Investigating Officers who are in the habit of spreading false propaganda against judiciary as pointed out in the above lines to hide their own faults.
8. These factors persuaded this bench to deal with the cases challaned under section 399/402, P.P.C. To some extent in detail especially with reference to the case of present applicants which is the one out of several other similar cases.
Needless to point out that the blood-bathed haunted city of Karachi, which was once a city of lights, has witnessed several incidents where innocent worshippers were hacked to death by armed terrorists in mosques and Imambargahs besides killing of common citizens in snipers' firing or by barging in houses and sometimes after kidnapping of splintered militants of spec group. But, unfortunately, whenever any such gang was nabbed by law-- enforcing agencies, the Investigating Officers preferred to book them under section 399/402, P.P.C. Without collecting any evidence against them. Perhaps it is the easiest method to get rid of the headache of proper investigation, with the result that the accused mostly succeed to get themselves released from the trial Courts and on the other hand out of these armed terrorists, several succeed to get them released on bail after their arrest in connected cases registered against them under section 13-D of the Arms Ordinance on the basis of routine orders passed by certain Magistrates and then they immediately get themselves busy to start their criminal activities soon after their release.
Consequences of such release are fully known to police officials, the Magistrates as well as to the politicians but, in spite of observations of the superior Courts in several cases and criticism from the public most of the police officials and several Magistrates pay dead ear to those observations.
Reasons are obvious. The political, magisterial and political hierarchy of influential blue-eyed officials in the third-world countries, including Pakistan, is so deep-rooted that they cannot be expected to change their attitude unless uprooted with iron-hand.
9. Before touching the merits of present application, it may be advantageous to reproduce sections 399 and 402, P.P.C. Which run as under:-- "399. Making preparation to commit dacoity.--- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
402. Assembling for purpose of committing dacoity. -- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
The words "preparation", "assembly" and "dacoity" used in sections 399 and 402, P.P.C. Have their own import and importance with reference to an offence of dacoity if compared with other offences.
As a general rule preparation is no offence unless an attempt is made to commit an offence but, as already pointed out, dacoity is the only offence where punishment is provided even at the stage of preparation under section 399, F.P.C. It shows the seriousness of crime of dacoity with reference to its effects on the Society at large. There are several other crimes of similar nature regarding their effects on the society at large but it can be said with certainty that there is no provision of law to cover the assemblage- or preparation of those crimes as an offence as in the case of dacoity.
10. Sections 399 and 402, P.P.C. Which deal with preparation and assemblage for committing dacoity are included in Chapter XVII of Pakistan Penal Code. This chapter includes offences against property which are classified into theft, extortion, robbery/dacoity, criminal misappropriation of property, criminal breach of trust, receiving stolen property, cheating, fraudulent disposal of property, mischief and criminal trespass but the offence of dacoity has certain distinct features if it is compared with other offences of similar nature such as robbery (means theft or extortion as defined under section 390, P.P.C. Or "Haraabah" as defined in section 15 of Ordinance VI of 1979 i.e. Offences Against Property (Enforcement of Hudood) Ordinance, 1979).
Offence of dacoity as defined in section 391 shows that there is no difference between robbery and dacoity with reference to the nature of the offence but there is difference between the two regarding the number of offenders. Robbery becomes dacoity when it is committed by five or more persons conjointly as is evident from its definition given in section 391 of the Code. The words "conjointly" used in section 391 and the word preparation used in section 399 have not been defined in the Code therefore, they have to be construed in their literal sense. The word conjointly means jointly, in union, or together and the word "preparation" implies the concept of devising, planning or arranging the means or measures for committing an offence.
So far as section 402, P.P.C. Is concerned, it embodies the following three ingredients:--
(i) Assembly of five or more persons;
(ii) Assembly for committing dacoity; and
(iii) Accused must be one of the five or more persons who assembled for the said purpose i.e. Dacoity.
It is, therefore, evident that every one of the five or more members of an assembly of accused persons is guilty of an offence punishable under section 402, P.P.C. If the purpose of assemblage is to commit dacoity. If the purpose of assemblage and preparation was to commit any other offence which may be much more heinous than dacoity, even then it is not treated an offence by the Code and from this reality, fragility of more than 130 years old Code can be easily evidenced.
No one is expected to deny the need of legislation for treating preparation and assemblage as an offence for all those crimes which are similar to dacoity or much more heinous than dacoity with reference to their effects on Society at large.
11. It may not be out of place to view that adherence with old limited interpretation of these sections is one of the causes of failure to get accused persons convicted under sections 399 and 402, P.P.C.
Fragility of interpretation of the Yore, with reference to the limited concept of physical assemblage punishable under section 402, P.P.C. Needs no comments in the present advanced era because master-mind of a criminal gang can monitor, materialize and engineer an offence of dacoity by instructing his/her accomplices from moment to moment with the help of mobile telephones without getting them assembled at any specific place to discuss a plan to commit dacoity. Even, it members of any gang of criminals are living in different areas, their ring leader can convey his/her instructions to them through mobile telephones to reach at different points in an area for getting further instructions on the same telephones to commit dacoity in that area. According to my point of view, although there can be no physical assemblage of offenders in such cases, yet their constructive assemblage would be attracted by section 402, P.P.C. Preparation under section 399, P.P.C. And commission of the offence under section 396, P.P.C. Thus, in the cases of such criminals constructive assemblage of offenders cannot and should not be excluded from section 402, P.P.C.
Even if there is no evidence of their physical assemblage.
Regarding sections 399 and 402, P.P.C., I am of the view, that main stress in these sections is on the purpose for committing dacoity for which assemblage and preparation can be physical as well as constructive to design a plan to commit dacoity. In the present age and prevailing circumstances of law and order Courts are not supposed to ignore the availability of modern means of communications possessed, by the criminals and advanced methodics for, committing different crimes.
12. Keeping in view all what has been discussed above, offences of preparation and assemblage for committing dacoity punishable under sections 399 and 402, P.P.C. Would be attracted only where:--
(i) The number of offenders is five or more than five (section 391).
(ii) The offenders mfg preparation for committing dacoity (section 399).
(iii) The offenders assembled for the purposes of committing dacoity (section 402).
"On 11-2-1994, I, S.H.O./Investigating Officer Mukhtar Ahmed was on patrolling alongwith Atiq Ahmed, H.C. And Muhammad Siddique (142) on official mobile with other officials. During patrolling spy information was received that 5 persons in suspicious condition were sitting in a car No.F-1548 near Sultanabad on the back side of Mazar Manghopir. On this information I S.H.O. Alongwith others at 14-00 hours after procuring witnesses Ghulam Nabi, Sarwar Khan, H.C., Muhammad Siddique (42), Atique Ahmed and other employees reached the spot. The offenders were surrounded and apprehended. Their were searched ... Car .No.F-1548 Charade white colour engine No.l528464 chasiss No.4-110080 2277 was taken into custody ... Keeping unlicensed arms alongwith the car by the offenders attracts offences punishable under section 399/402, P.P.C. Investigation was completed. Statements of witnesses and recovery of arms without licences fully proves the offence which is attracted and punishable under section 399/402, P.P.C."
What evidence was collected by the Investigating Officer? Nil. To whom the car belonged? It is mentioned in the challan that it was case property of crime No.10/94 Police Station Model Colony, Karachi.
Whether owner of the car was called, examined or asked to identify the accused person? The investigation is mum or kept mummed by the Investigating Officer. The Investigating Officer of the case could easily find out the answer of the above questions. Silence of investigation on these points cannot be treated meaningless and this silence is more than sufficient to quash proceedings against the applicants at least in this F.I.R. Lodged under section 399/402, P.P.C. But no under section 13-D of the Arms Ordinance. Hence proceedings were quashed on 24-4-1995, on account of the most defective investigations which coupled with this undisputed reality that no evidence of worth the name in support thereof had been produced by the Investigating Officer in support of reckless allegations especially when the legal position of statement of accused person before the police, if there was any is known to every Police Officer, and which needs no comments.
13. Before parting with this judgment; I consider it necessary to express this view that this case amply illustrates the urging pressing need of legislative measures to meet erupting new types of crimes as hinted in para. 7 above and discussed with the concept of constructive assemblage and preparation of such crimes.
It may or may not be appreciated by certain corners to observe that after failure of freedom fighters in 1857 to get the British Rulers expelled from the sub-continent, Bahadur Shah War, the last Mughal Emperor was imprisoned in the sub-continent, historical diamonds and valuables belonging to the Muslim rulers were plundered by usurpers and within a period of three years people of sub-continent were gifted with the prevailing Penal Code on October 6, 1860. The same still holds field in several countries in this region including Pakistan as memorial of slavery but Zia's Martial Law's sponsored Islamists embraced this Code by treating different offences and their punishments mentioned in it as Islamic "Tazeerats" instead of presenting their own Code of Tazeerat at the time when different Hudood Ordinances were promulgated in 1979 and section 302 of the Code was engaged with Qisas and Diyat Ordinance after getting it divorced from P.P.C. In 1991. Unfortunately, the compilers of Hudood Ordinance of 1979 and the Qisas and Diyat Ordinance did not take into consideration any of the complications arising out of the process of Islamization by not touching the connected provisions of law.
It may be sufficient to hint- for all concerned law-makers to consider whether section 302, P.P.C.
Can be made applicable to all kinds of murders after its divorce from P.P.C. And engagement with the Qisas and Diyat Ordinance, or its application would be limited to cases falling within the definition of Qisas. According to the prevailing laws a murder attracting section 302, Qisas and Diyat Ordinance is undoubtedly different from a murder attracting section 17(4) of Offences Against, Property (Enforcement of Hudood) Ordinance, 1979 because a murder punishable under section 302, Qisas and Diyat Ordinance is compoundable while a murder punishable under section 17(4) of Offences Against Property (Enforcement of Hudodd) Ordinance, 1979 is not compoundable.
14. It may not be disputed by anyone that cases of murder attracting the law of Qisas are usually the result of some known disputes between the parties such as the disputes over possession of land, money disputes, family disputes or tribal vengeance. Such matters would entail the rights of human beings (Haqooq-ul-Ebad) and permission to compromise the differences would help in the patching up of differences, in diminishing the sense of vengefulness or vindictiveness and in cultivating amicable harmonious relations between the parties. Contrary to this type of murder, there are murders which affect the society at large. Besides a murder under section 17(4) of the above--mentioned Hudood Ordinance, they include killing of innocent citizens by snipers firing, gruesome carnage during robbery or dacoity, killing worshippers in mosques and Imambargahs by the armed terrorists on account of their characterless identity to establish peaceless days and nights-in a civilised society by spreading a wave of terror at large. Such matters would be dealt by the State to protect humanity as the Rights of Allah Almighty (Huqooq-ul-Allah ). These offences bring an out-Jawed situation which is termed as "Fitna" or "Farad". Offence of dacoity is also included in the same category. Such offences are not compoundable and offenders have to be punished. According to the Holy Qur'an (as translated by Abdullah Yousuf A.I):- "Tumult and oppression are worse than slaughter (Surah Al-Baqra Verse 191) = (2 : 191)
"Tumult and oppression are worse than slaughter" (Surah Al-Baqra .Verse 217) _ (2 : 217)
It is very important to point out that the words "Fitna" and "Fasad" are treated to be characteristics of unbelievers and the following verse of the Holy Qur'an can be referred in support of this view:--, "The unbelieversare protectors, one of another; unless ye do this (protect each other) there would be tumult and oppression on earth and great mischief." (Surah Anfal Verse 73) = (8 : 73) = (Note).--- The words Aushuddu and Akbaru used in Verses 191 and 217 respectively in Surah "Al- Baqra" as quoted above have been translated by Abdullah Yousuf A.I as "worse". However, with profound respect for the great scholar, I would like to say that the words "Aushuddu" and Akba'ru are related to the words "Shadeed" (.4,.i) and "Kabeer" "Aushuddu" can be translated as "more severe, more heinous, more atrocious and "Akbaru" can be translated as immense. Similarly, the word "Qatl" (Y) has been translated as "slaughter" instead of translating it as "murder". But admittedly murder in "Fitna" or "Farad" (Tumult and oppression). Is a kind of slaughter of innocent people like slaughter of animals.
15. It may not be out of place to mention that difference between two types of murders had been argued before the first full bench of Federal Shariat Court consisting of five famous Judges in the case of Muhammad Riaz v. Federal Government PLD 1980 FSC 1 but none of the learned Judges discussed the said point. (Ref. Para 33 of the said judgment) The point averred before the Federal Shariat Court was based on the following Verse of the Holy Qur'an: "The punishment of those who wage war against Allah and His Apostle, and strive with might and main for mischief through the land is execution, or crucifixion or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter; (Surah Al-Ma'ida Verse 33) = (5 : 33).
This Verse contains the word "Fasad" which is translated by Abdullah Yousuf A.I as "Mischief".
Although the definition of the word "Haraabah" under section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 seems to have been derived from the above Verse yet the same was limited to a specific crime similar to that of robbery, extortion or dacoity. I think that the word "Fasad" used in that Verse can include large number of crimes other than the one limited to the definition of Haraabah as mentioned above because the Verse gives much wider scope of Haraabah in its religious and judicial sense as compared to its limited literal sense embodied in the said definition. The difference can be expressed by using new terms such as "Qatl-fil-Qisas (jLWJJF) and "Qatl-6l-Fasad" (aL.01jJr) or other terms of similar nature.
16. In the forthcoming lines I would deal with the cases which are related to "Fasad" especially with reference to the above quoted Verse 33 of Surah V.
This Verse contains the words; (i), "Fil-Arze-Fasada" means the mischief in land as the nature of crime and four types of sentences. This Verse is totally unambiguous in its sense with reference to the nature of offences and the mode of sentences for these offences. Hence it needs no other interpretation except what is evident from the words of the Verse.
The source of word "Yuhariboon", used in this Verse, and the word "Haraabah" used in section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) is the same i.e. "Harb" which means war. But the definition of Haraabah with reference to its scope in the Ordinance was limited to "taking away the property" of another person by attacking or causing wrongful restrain or putting that person in fear of death or hurt by show of force. This definition, thus, covers only offences of extortion, robbery or dacoity.
No doubt the offence of "Haraabah" as defined in section 15 of the Ordinance as punishable under sections 17(1) to 17(4) of the Ordinance is also included in the concept of Fasad but it can be said with certainty that such limited scope cannot be treated to be the real scope of "Haraabah".
The above Verse can be divided into two parts. The first part contains two portions with reference to the nature of offences which, are as under:-- "Who wage war against Allah and His Apostle" and "Who strive with might and main for mischief through the land."
I have no hesitation to opine that all those persons who are either directly involved as terrorists or indirectly involved as instigators or exploiters in attacking the places of worships of any sect or community and in killing worshippers are attracted by the words contained in the first portion i.e. "who strive war against Allah and His Apostle" because the Holy Religion of Islam preaches to show respect for all other religions.
Similarly second portion of the first part of the Verse can be applied to punish all those offenders who are directly involved in killing as snipers or carnage in the house or massacre at other places as terrorists or indirectly involved to instigate their agents to do all such crime. They are all equally responsible to strive mischief with might and main through the land.
Second part of the Verse consists of four types of sentences for all those persons who are found guilty of any of the offences mentioned above. These sentences run as under:--
(i) Execution;
(ii) Crucifixion;
(iii) Cutting off of hands and feet from opposite sides; and
(iv) Exile from the land.
They are the sentences described by Allah Almighty and unless they are implemented in their true sense and spirit, mischief by the terrorists cannot be expected to come to an end.
17. Certain religious scholars of the Sub-Continent such as Maulana Ashraf A.I Thanvi, Maulana Abdul Majid Daryabadi and their followers have applied the abovementioned four sentences in the cases of robbery/dacoity by saying that:--
(a) Sentence of Execution would be applicable in the cases where not only murder took place but property was also looted.
(b) Sentence of crucifixion would be applicable in the cases when only murder took place but property was saved from being looted.
(c) Sentence of cutting off of hands and feet from opposite side would take place when no murder took place but only property was looted. and
(d) Sentence of -Exile from the land would take place when neither murder takes place nor property was looted in an attempt of dacoity.
It is, however, important to point out that at the time of promulgating the Ordinance only sentence mentioned in (c) above was enforced in section 17(3) of the Ordinance. No separate sentence was mentioned with reference to an offence as mentioned in (a) above. The punishment of exile from the land was kept out of section 17 of the Ordinance. So far as punishment mentioned in section 17(2) of the Ordinance is concerned, it seems to be strange to treat it as "Hadd" if seen in the light of the Verse. It can be called a "Tazeer" in the Ordinance named as "Hudood Ordinance" but not a "Hadd". Notwithstanding to the abovementioned realities, function of judiciary is to implement the law as is introduced by the law-maker but every Muslim Judge can have his/her reservations to believe or disbelieve the sentences mentioned in section 17(1) to 17(4) of the Ordinance to be "Hudood (Plural of Hadd) if they are not in accordance with the sentences mentioned in Verse 33 of Surah V particularly with reference to the difference between execution and crucifixion. On account of these reasons it is believed by several scholars that Zia's Regime's sponsored self-styled Islamisation was devoid of the real spirit of Islam and the same created complications not only for the prevailing judicial system but also ambiguity about Islam instead of solving the problems of this country.
18. In the light of above discussion, I am of the view that, like dacoity there are large number of other crimes which affect a society at large, such as snipers firing, carnage in houses, mosques, Imambargahs or other places of worship etc. They are generally more heinous than dacoity and fall within the definition of "Fitna" and "Farad" (means Tumult, oppression, mischief). The preparation of such crimes, besides their commission, also needs to be treated as an offence. But it needs legislation which is not the function of the Courts but of Parliament.
However, I consider it proper to leave at least one question for consideration of all responsible persons of our judicial system to think whether they can refer any provision of law which could cover crimes involving terrorism amounting to ---Fitna--- or ---Fisad--- in the existing Penal Code promulgated in the middle of 19 Century particularly to meet the requirements of present age and its entry in the 21 Century.