' SYED IBNE ALI, C J.---This writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 by the Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar has arisen in the following circumstances: ' Accused Jehangir, resident of Parmooli, District Swabi was tried by the learned Additional Sessions Judge, Swabi for the murder of a Lady Teacher Mst. Farhat Naz by firing three pistol shots at her. In consequence of the trial, the learned trial Judge convicted and sentenced the above-named accused to death under section 302, Qisas and Diyat Ordinance, vide his judgment, dated 5th October, 1992. The appeal of the convict before this Court was dismissed and the murder reference made by the trial Judge for confirmation of death sentence was answered in the affirmative vide judgment dated 16th February, 1994. The convict then went in petition for special leave to appeal to the Supreme Court of Pakistan but leave was refused and the petition was dismissed vide order, dated 15th January, 1995. It may be mentioned that while the petition of the convict for the grant of special leave to appeal was pending before the Supreme Court of Pakistan, meanwhile the learned Additional Sessions Judge, Swabi issued the following black-warrant bearing No,228, dated 29th November, 1994, against the condemned prisoner, under section 381, Cr.P.C.
"WARRANT OF EXECUTION ON SENTENCE OF DEATH.
(Section 381 of the Criminal Procedure Code).
' In the Court of Additional Sessions Judge, Swabi Session Case No,27 of 1992 ' BLACK WARRANT ' To ' The Superintendent, Central Jail, ' Haripur.
' Whereas vide Judgment dated 16-2-1994 of the High Court, Peshawar in Criminal Appeal No,149/92 of the convict/appellant Jehangir son of Amirullah, resident of Permooli, District Swabi, filed by him against the order of this Court (A.S.J., Swabi), dated 5-10-1992 whereby he was convicted and sentenced to death under section 302, Qisas and Diayt Ordinance; in case registered against him vide F.I.R. No,277 dated 31-5-1992 under section 302, Q.D.O. At P.S. Kalu Khan, has been dismissed and death sentence awarded to him has been confirmed. Certified copy of the judgment of the High Court, Peshawar confirming the death sentence of the condemned prisoner Jehangir has been received.
' This is to authorize and require you to carry out the said sentence into execution by causing the condemned prisoner Jehangir to be hanged by his neck till he be dead, in Central Jail, Haripur, at 5-00 a.m. On 15th day of December, 1994, and to return this warrant to the Court with an endorsement certifying that the sentence has been executed. (Underlining is ours).
' Given under my hand, seal of the Court, this 29th day of November, 1994.
(Sd.)
Additional Sessions Judge, Swabi."
' Subsequently, when the petition of the convict for special leave to appeal was dismissed, as stated above, it was pointed out by an official to the learned Additional Sessions Judge that the punishment awarded to the convict was by way of Qisas and as the above black-warrant issued against the convict was not in conformity to the procedure laid down in the law of Islam. The black- warrant was to be amended accordingly. In view of this, the learned Additional Sessions Judge, Swabi, therefore, issued the following amended black-warrant bearing No,107, dated 23rd April, 1995, against the convict: "WARRANT OF EXECUTION OF SENTENCE OF DEATH (Section 381 of the Cr.P.C. Read with section 314, P.P.C., as introduced vide Qisas and Diyat Ordinance)
IN THE COURT OF MUHAMMAD AYAZ KHAN, ADDITIONAL SESSIONS JUDGE, SWA cif BLACK WARRANT Session Case No,27 of 1992 ' To ' The Superintendent, ' Central Jail, Haripur.
' Whereas vide judgment dated 15-1-1995, of the august Supreme Court of Pakistan, in Jail Petition No,77 of 1994, filed by convict/appellant Jehangir son of Amirullah, resident of village Permooli, District Swabi, against the judgment dated 16-2-1994, of the Peshawar High Court dated 5-10-1992, confirming death sentence awarded under section 302, Q.D.O., by way of Qisas, to the appellant Jehangir in case registered vide F.I.R. No,277, dated 31-5-1992 of Police Station Kalu Khan under section 302, Q.D.O. Has been dismissed and the judgment of this Court dated 5-10-1992 as well as that of the Honourable High Court, Peshawar, dated 16-2-1994, have been maintained. Attested copy of the judgment, dated 15-1-1995 of the august Supreme Court of Pakistan has been received.
' Whereas on 29-11-1994 this Court has issued black warrant for executing the sentence by causing the condemned prisoner Jehangir to be hanged by his neck in Central Jail, Haripur.
Since this Court has awarded death penalty to the condemned prisoner Jehangir under section 302, Q.D.O., by way of Qisas, therefore, it is now directed and required you to bring the condemned prisoner Jehangir to playground of Government Boys High School, Swabi, under full escort on 8th of May, 1995, at 9-00 a.m. For carrying out the said sentence into execution by causing the death of condemned prisoner Jehangir to be shot dead by the Wali of the deceased lady Mst. Farhat Naz.
This warrant is to be returned to this Court with an endorsement certifying that the sentence has been executed. (Underlining is ours).
' Given under my hand and seal of the Court, this 23rd day of April, 1995.
(Sd.)
Muhammad Ayaz Khan, Additional Sessions Judge, Swabi."
' The Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar is not satisfied with the execution of the death sentence of condemned prisoner Jehangir by means of Qisas in accordance with the above black-warrant, Annexure 'F', therefore, it has questioned its legality by way of instant writ petition and has prayed that the said black-warrant be set aside and a direction be issued by this Court in exercise of its writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 that the death sentence of the condemned prisoner Jehangir be executed in accordance with the law as provided under section 368, Cr.P.C.
2. We have heard at great length Mr. Saint'. Rahman Kiyani, Advocate-General for the petitioner (Government), Mr. Abdul Latif Afridi, for the complainant ,and Mr. M. Zahoor-uI-Haq, Bar-at-Law, who assisted us as amicus curiae.
3. In this writ petition two-fold question has arisen for consideration, namely:--
(i) Whether pursuant to the procedure adopted and followed by the learned trial Judge in this case the accused could be convicted and sentenced to death under section.302, clause (a) P.P.C. As Qisas, OR
(ii) Whether pursuant to the procedure adopted and followed by the learned trial Judge in this case the accused could be convicted and sentenced to death under section 302, clause (b), P.P.C.
As Ta'zir.
4. Before proceeding to examine these two questions, clauses (a) and (b) of section 302, P.P.C. May be reproduced. The same are: "302. Punishment of QatI-i-Amd.--Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be-
(a) punished with death as Qisas,
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available, or (c)
5. The burden of arguments was addressed before us by Mr. M. Zahoorul-tlaq. He contended that the learned trial Judge while awarding the death penalty by way of Qisas to condemned prisoner Jehangir in this case has failed to comply with and follow the procedure laid down in the law of Qisas. He, therefore, urged that it is not a fit case in which the condemned prisoner Jehangir be awarded the punishment of death by way of Qisas. He drew our attention to the proceedings in the trial Court to show that the learned trial Judge had all along adopted and followed the procedure under the law of Ta'zir. The submission of the learned counsel, therefore, is that the learned trial Judge should have, on conviction, sentenced the accused to death as Ta'zir under section 302, clause (b), P.P.C. With a direction that he shall be hanged by the neck till he be dead, as provided in section 368, Cr.P.C. The learned counsel criticised the black-warrant, dated 23rd April, 1995 Annexure 'F'. He submitted that there was no occasion for the learned trial Judge to issue this warrant when he awarded death penalty to the accused pursuant to the procedure followed by him under the law of Ta'zir. Concluding his arguments, Mr. M. Zahoor-ul-Haq contended that in view of the trial proceedings conducted by the trial Court under the law of Ta'zir in the present case, the black-warrant, dated 29th November, 1994, Annexure 'D', issued earlier by the learned trial Judge under section 368 read with section 381, Cr.P.C. In the proper legal warrant. He therefore, submitted that the learned trial Judge was wrong, to terminate its operation and replace it with the subsequent black-warrant, Annexure 'F', the operation of which, according to the learned counsel, cannot be sustained in law in a case of this nature.
6. The learned Advocate-General very naturally adopted the arguments of Mr. M. Zahoor-ul-Haq, Bar-at-Law. Mr. Abdul Latif Afridi, the learned counsel for the complainant submitted that he would not oppose the arguments of the learned counsel.
7. In the light of the record of this case, we subscribe to the contentions of Mr. M. Zahoor-ul-Haq, who assisted us as amicus curiae. There can be no question that in the present case the trial Court has proceeded With the trial of the accused in line with the procedure prescribed in the law of Ta'zir at no stage up to the Supreme Court of Pakistan this course of action was ever questioned. We pause here to observe that even otherwise the learned trial Judge failed to. Look at section 314, P.P:C. Which provides as under:- Exccution of Qisas in Qatl-i-Amd.--(1) Qisas in Qatl-i-Amd shall be executed by a functionary of the Government by causing death of the convict as the Court may direct.
(2) Qisas shall not be executed until all the Wali are present at the time of execution, either personally or through their representatives authorised by them writing in this behalf. (Underlining is ours).
' Provided that where a Wali or his representative fails to present himself on the date, time and place of execution of Qisas after having been informed of the date, time and place as certified by the Court. An officer authorised by the Court shall give permission for the execution of Qisas and the Government shall cause execution of Qisas in the absence of such Wali.
(3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of Qisas up to a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released she shall be dealt with as if sentenced to simple imprisonment."
8. A plain reading of the wording of the subsequent black-warrant, Annexure 'F', clearly shows that it has not been issued having regard to the provisions of section 314, P.P.C. Reproduced above which necessitates that all the Wali are present on the date time, and place as certified by the Court.
Therefore, the learned trial Judge was not legally correct to have issued the subsequent black- warrant; Annexure 'F', which is an error patent on record.
9. In the case of Mumtaz Ahmad and another v. The State PLD 1990 Federal Shariat Court 38, the trial Court convicted the accused under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and sentenced them to amputation of their right hand and left foot from the ankle. The accused filed appeal before the Federal Shariat Court. After going through the evidence on record, the learned Judges of the Federal Shariat Court found that the trial Court had not undertaken the exercise of Tazkiyah-AlShuhood (i,e, purgation). It was, however, not considered necessary to remand the case for that purpose and as otherwise up to the evidence on record the accused was found guilty of the charge, the learned Judges of the Federal Shariat Court resorted to Ta'zir punishment to the accused. Accordingly, the accused were convicted under section 20 of the aforesaid Ordinance and sentenced each one of them to 10 years' R.I. And a fine of rupees two lacs. While discarding the necessity of Tazkiyah-Al-Shuhood, it was observed: ' The character of none of the witnesses was assailed in the cross-examination and so no exercise of Tazkiyah-Al-Shuhood is required on that count either."
' The ratio decidendi of this authority would squarely apply to the present case. By going through the cross-examination there is nothing to show that the character of the prosecution witnesses was questioned before the trial Court, the more so as this was not even the case before this Court in appeal and before the Supreme Court of Pakistan in the petition for special leave to appeal.
10. In the above-cited authority the Federal Shariat Court has elaborately examined and discussed the procedure under the Hudood law and the procedure under Ta'zir to distinguish between these two sets of procedure. With regard to the process of Tazkiyah-Al-Shuhood the following guidelines for the conduct of criminal cases under the law of Islam have been incorporated in the authority for the guidance of the Courts:
(i) There must be evidence of victim followed by at least two witnesses;
(ii) in case of discrepancies on vital aspects between two witnesses both shall be rejected;
(iii) Tazkiya-Al-Shuhood is a condition precedent to impose the sentence of Hadd;
(iv) there should be one or more ' Muzakki' (a person who testifies about the truthfulness of the witness);
(v) the Muzakki' should be present when the witness gives evidence;
(vi) The Muzaldci' should also be questioned about antecedents, character and dealings;
(vii) it is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both; (viii)the Court may frame a questionnaire on which the 'Muzakki' should collect information to supply to the Court;
(ix) the Court should also examine the ' Muzakki' after he submits his report;
(x) the Court should ask searching questions from the witness and cross- examine him, to discover facts which might show his credibility, piety or otherwise."
' The record shows that none of the above guidelines has been followed by the learned trial Judge at the time of trial of the convict Jehangir.
11. In another authority reported as Abdul Raziq and another v. The State PLD 1988 Supreme Court (AJ&K) 190, the learned Chief Justice found that the trial Court had not undertaken the exercise of Tazkiyah-Al-Shuhood properly in conformity to the procedure contemplated by the law of Islam.
He, therefore, remanded the case to the trial Court for that purpose.
' In the present case, there is no question of the process of Tazkiyah-Al-Shuhood, in that the trial Court conducted the trial of the case in line with the procedure of Ta'zir law.
12. In the case of Deniel Boyd and another v. The State (1992 SCM R 196), the learned Judge, Special Court for Speedy Trials, Peshawar had not conducted the process of Tazkiyah-Al-Shuhood in conformity to the procedure prescribed in the law of Islam. The learned Judge had convicted the accused on the charges of Haraba under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 506/411/34, P.P.C. And sentenced each one of them to amputation of their right hands from their wrists and left feet from the ankles. They were further sentenced to imprisonments and fines. The learned Special Appellate Court, however, did not endorse the course of action adopted by the learned Judge, Special Court for Speedy Trials with regard to his undertaking the exercise of Tazkiyah-Al-Shuhood, and as otherwise in the facts and circumstances of the case it was a case to be decided under Ta'zir, the learned Special Appellate Court proceeded to examine the evidence on record and finding the accused not guilty of the charges acquitted them.
13. This authority and the authority of the Federal Shariat Court in the case of Mumtaz Ahmad and another v. The State (supra) would show that if it found by the Appellate Court that the exercise of Tazkiyah-Al-Shuhood undertaken by the trial Court in a criminal case does not meet and satisfy the conditions and requirements laid down under the law of Islam and otherwise, the facts and circumstances of the case warrant that the case can be decided in the light of the evidence on record under the Ta'zir, the Appellate Court in its discretion may decide it accordingly. It will not be out of place to reproduce the following para. From the authority of Special Appellate Court reported in Deniel Boyd and another v. The State (supra): "Now what the expression Tazkiyah-Al-Shuhood (purgation) signifies and contest requires elaborate enquiry into the piety, uprightness and integrity of the witness from the men of same virtues. The Special Court just depends his conclusion upon the inquiry conducted by him through police. I am of the opinion that while making inquiry about the antecedents of a witness, the Court ought to satisfy itself that the Muzakki' (purgator) is a man of antecedents blessed with the above virtues. As this prerequisite escaped the notice of the learned Judge, Special Court, the enquiry conducted by him through police was just a formality and no sanctity can be attached to it. We, however, do not have the occasion to re-open this issue in view of the fact that we have found, upon examination of the evidence, the eye-witnesses brazen faced liars of major sin."
' Thus, in this case the principles of Tazkiyah-Al-Shuhood essential in the like cases were not followed, as envisaged in the law of Islam.
14. In the present case, the trial Court proceeded with the trial of the accused under Ta'zir. The parties participated in the proceedings and no objection whatsoever was taken against the conduct of the trial. In conclusion, the trial Court awarded death penalty to the accused. The convict filed an appeal before this Court but it was dismissed and the murder reference forwarded to this Court by the trial Court, admittedly under section 374, Cr.P.C. Or 338-D, P.P.C., was answered in the affirmative. Thereafter, he filed petition for special leave to appeal before the Supreme Court of Pakistan. Leave was refused and the petition was dismissed. We are to observe here that as a matter of record at no stage there was any objection raised against the conduct of the trial under the law of Qisas up to the last forum of the Supreme Court of Pakistan and for that matter the death penalty awarded to the accused by the trial Judge shall be overed by clause (b) of section 302, P.P.C. As Ta'zir.
15. The learned trial Judge himself does not deny that he had conducted the trial proceedings in the present case in line with the procedure under Ta'zir. In his comments submitted by him in the present writ petition this is what he has stated:-- "Since it was the first case under Qisas which had attained finality up to the level of Supreme Court and there was no precedent before me, therefore, I consulted senior members of the Bar and my colleagues. But none of them could guide me on the matter."
Therefore, we hold that as the convict Jehangir was tried under Ta'zir and was awarded death sentence, the black-warrant, dated 29th November, 1994 was issued under the ordinary law and the issuance of subsequent black-warrant dated 23rd April, 1995 for the execution of death sentence of convict Jehangir by way of Qisas is nothing but a patent error on the face of the record. We, therefore, declare this subsequent black-warrant to be unlawful and of no legal effect.
Consequently, the convict Jehangir shall be deemed to have been convicted and sentenced under clause (b) of section 302, P.P.C. As Ta'zir and the black-warrant, dated 29th November, 1994, Annexure 'D' on file, issued earlier by the learned trial Judge is a proper lawful warrant under section 368 read with section 381, Cr.P.C.
16. In the result, this writ petition is allowed as prayed for.