' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner, a candidate for the election of seat of Nazim Union Council Pindori, Tehsil and District Jhelum, against the acceptance of nomination papers of Mushtaq Ahmad, respondent herein, who is the opposing candidate of the petitioner, by the District Returning Officer as Appellate Authority. The petitioner and the above-named respondent filed the nomination papers for the seat of Nazim from the same Halqa and during the scrutiny of the nomination' papers, the present petitioner raised an objection to the candidature of respondent No,1 on the ground that he was not eligible for being elected or chosen as member of Union Council for the reason that he upon conviction on 15th of July, 1985, for an offence under section 302, P.P.C. Was sentenced to imprisonment for life with a fine of Rs,10,000 by the learned Sessions Judge, Jhelum, and later in appeal, his conviction under section 302, P.P.C. Was converted to under section 304, P.P.C. By the Lahore High Court, Rawalpindi Bench, Rawalpindi.
' In consequence to the compromise of the respondent with the legal heirs of the deceased, the sentence of the respondent was reduced to the period already undergone by him with the dismissal of appeal vide judgment, dated 20-5-1986. The petitioner produced a copy of the abovesaid judgment passed by the High Court in Criminal Appeal No,82 of 198-5 filed by respondent No,1 against his conviction and sentence.
2. The facts of the murder case as reproduced in Paras. Nos.3 and 4 of the judgment dated 20-5- 1986 in Criminal Appeal No,82 of 1985 are as under:-- "The prosecution case as narrated in the F.I.R. Is that the first informant, P.W.9, Mirza Mumtaz Beg, resident of Dhoke Tamma Dakhli Pindori, Tehsil and District Jhelum, was holding the office of the Vice- Chairman, Union Council, Sultanpura.. In the election to the local body prior to the occurrence, he was elected as a Councillor or from his village. The deceased, Abdul Hayee was husband of his sister. One Subedar Fazal Ahmad was the rival candidate of Mirza Mumtaz Beg P.W.9 in the said election. Mushtaq. Ahmad appellant and his Brotheri had supported Fazal Ahmad, the rival candidate. The first informant, Mirza Mumtaz Beg had contested the election with the help of Abdul Hayee, deceased. Muhammad Ayub, father of Mushtaq Ahmad appellant had persuaded the deceased Abdul Hayee on number of times to prevail upon the complainant to withdraw from this election in favour of Subedar Fazal Ahmad but Abdul Hayee did not agree and consequently the complainant was elected. The rival candidate, Subedar Fazal Ahmad was Khaloo of Mushtaq Ahmad, appellant. On account of the election rivalry, the appellant Mushtaq and his Brotheri thus became enemy of the deceased. On the day of occurrence, Muhammad Abbasi P W.11 had informed the complainant that the appellants had injured the deceased, Abdul Hayee with Sariya and stick in the village graveyard where the deceased was lying unconscious P.W.11 Muhammad Abbas further informed the complainant P.W.9 that had he alongwith Riaz Hussain P.W.10 not reached, the appellants would have killed the deceased. On receipt of this information, the complainant, Mirza Mumtaz Beg rushed to the spot and found the deceased lying unconscious. The complainant picked up the deceased and proceeded to Police Station in wagon, when he came across Muhammad Ayaz, P.W.12, Sub-Inspector, Police Station Dina, present at Dina Chowk, who recorded the statement of the complainant and a case under section 307 read with section 34 of the Pakistan Penal Code was registered.
' On 23-10-1984 at about 3-45 p.m. Muhammad Ayaz, Sub-Inspector P.W.12 received the message, that the deceased had expired and thus the registration of the case was converted into one under section 302 read with section 34 of the Pakistan Penal Code."
' The injuries sustained by the deceased in the occurrence as traced out by the doctor in the post- mortem examination of the dead body are described in para.5 of the said judgment as under:--
(1) A lacerated wound 1/4 x 1/8 x 1/2 inch bone deep on the back of the left side of the head, 4 inch away from the left ear.
(2) A swelling 3" x 3" on the right clavicular region.
(3) An abrasion 1" x 1" on the back of the head in its middle.
' A depressed fracture of parietal bone was found at the vertex. There was diamond shape depression in an area of 2-1/2 inch x 1 inch. The bone underneath was broken into three pieces. One fracture line was running anteriorly. Unfortunately two fracture lines were running laterally on left and right side towards the temporal bones. The death in the opinion of the doctor was the result of injury No,1 which resulted in intracranial haemorrhage and shock was opined to be sufficient in the ordinary course of nature to cause death.
4. The conclusion of the Appellate Court in appeal contained in para.10 of the judgment was as under:-- "The story of the volley-ball match and the throwing of the stones is also unbelievable, because no evidence worth the name was brought on the record. It is now well-settled, that if an occurrence can give rise to two probable views, then the one favourable to the defence has to be adopted. It is not known as to what immediately preceded the occurrence. To my mind, it seems to be a sudden flare-up in which both the appellants, one side and the deceased alone fought with each other.
Only injury No,1 on the head of the deceased proved to be fatal. In my view, the incident is unpremeditated and the offence is covered under exception 4 to section 300 of the Pakistan Penal Code. Accordingly, I would allow this appeal to the extent of converting the conviction from section 302 to section 304, Part I of the Pakistan Penal Code. I will, therefore, alter the conviction and sentence and it is, thus, hereby directed that instead of life imprisonment, the appellants shall suffer R.I. For a period of ten years each. However, the sentence of fine shall remain intact."
5. The reasons for the reduction of sentence of the respondent to already undergone were given in paras.11 and 12 of the judgment as under:-- "At this juncture, the heirs of the deceased and the relatives of the complainant have appeared in person and have stated that the parties have compromised with each other. Certain affidavits have also been placed on the record and after examination of the person concerned, I am satisfied, that the parties have sincerely buried their grievances. A serving Brigadier in the Pakistan Army has also appeared and stated that he was responsible to bring about the compromise which fact has been affirmed by the widow and the brother of the deceased.
' In this view of the matter, to bring about amity between the parties. I would hold that the sentence already undergone would be sufficient to meet the ends of justice. As far as the sentence of fine is concerned the same is set aside, because the complainant side has been adequately compensated by the appellants."
6. The objection of the petitioner to the candidature of the respondent was that he being a convict in the murder case was not qualified to be elected or to hold an elective office or membership of a Local Government as provided under clauses (d) and (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000. The Returning Officer vide order, dated 6-6-2001 upholding the objection rejected the nomination papers of respondent No,1 with the following' observations:-- "The relevant portion of section 14(1) reads as under:--- "Qualifications for candidates and elected members.--- A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,--
(j) has not been sentenced to imprisonment for more titan three months for an offence under any law or a period of not less than five years has elapsed since his release."
' The word ' or' appearing in the above provision, underlined by this Court is of great import. This word 'or' separates the two provisions preceding and appearing after it. The preceding sentence to it disqualifies a person who has been sentenced more than three months. The sentence appearing after it connotes that the relaxation of elapse of 5 years after the release will relate to that imprisonment which is less than 3 years. Had it not been so the intention of the Legislature as is interpreted by this Court, there would have been the word ' and' instead of word 'or'. Therefore, a conviction for more than 3 months puts a complete restriction on a person for not being elected as a Member of Local Government. Therefore, the candidate is not found eligible for contesting the election for the seat of Naib-Nazim.
' Apart from what has been found out under the preceding para. And in case the interpretation of word 'or' made by this Court is not accepted, the candidate is otherwise found disqualified under section 14(d). This provision inter alia enjoins that a person shall not qualify to be elected, if he does not abstain from major sins. There must be no cavil with the maxim that there may not be greater sin in the word than the unauthorized killing of human body. In Islam too, the unauthorized killing of a human body is the second most greater sin after the sin of Shirk. The Holy Qur'an has similized an unauthorized killing of a human body to the killing of the entire mankind. It is true that after the promulgation of Qisas and Diyat Ordinance conviction of the candidate shall be considered as his acquittal keeping in view the fact that the legal heirs of the deceased victim pardoned him. But the acquittal and the perpetuation of sin are two different things altogether. The consequence of the forgiveness tendered by the legal heirs of the murdered puts an end to the punishment of the killer.
But it does not wipe out the sin committed by the killer not only against the body of the murdered but also against the mankind. The major sin of murder committed by the candidate Mirza Mushtaq Ahmad has not vanished merely on account of the forgiveness tendered to him by the legal heirs of the murdered, but it will go with him to his grave and then will be accounted for in the Last Day of Deen. Such type of person cannot be considered qualified for being a Member of Local Government, by stretch of any imagination Therefore, the restriction appearing in section 14(d) seems coining in operation against the said candidate."
7. The respondent No,1 being aggrieved of the order of rejection of his nomination papers by the Returning Officer filed an appeal under Rule 18(4) of the Punjab Local Government Election Rules, 2000. The District Returning Officer exercising the powers of the Appellate Authority vide judgment, dated 9-6-2001 allowed the appeal and while overruling the objection accepted the nomination papers of respondent No,1 with the following observation:-- "From the perusal of record, it appears to me that appellant No,2, Zia-ul-Malik Chaudhry is a practising Advocate at Jhelum. During the course of scrutiny his nomination papers have been found in accordance with Rules Nomination papers of Mirza Mushtaq Ahmad Naib-Nazim have been rejected mainly on the ground that he remained involved in a murder case. Copy of the judgment passed in Criminal Appeal No,82 of 1985 from the Honourable Lahore High Court, Rawalpindi Bench, goes to show that ultimately it was held by the Honourable Lahore High Court that it could not be ascertained how the occurrence of murder took place. It appears that it was a sudden flare-up in which both the parties fought with each other. It was unpremeditated murder.
Due to this reason it was held that the case falls within the Exception No,4 of section 300, P.P.C.
Consequently, punishment of section 302, P.P.C. Was converted into section 304, Part I, P.P.C. In this way undoubtedly view of Honourabl High Court was that in murder case wherein Mirza Mushtaq Ahmad was involved was not a premeditated murder. Such a murder cannot be treated to be major sin (Gunah-eKabira). Of course premeditated murder is to be considered Gunah-eKabira.
Besides it since matter was compromised at the stage of appeal and as such punishment was reduced from section 302, P.P.C. To 304, P.P.C. So Mirza Mushtaq Ahmad had not preferred an appeal before the apex Court. Another important aspect of the case is that as per section 14(j) of Local Government Elections Ordinance, 2000, where a person has been sentenced for more than 3 months and a period of 5 years has elapsed then conviction in a criminal case cannot form basis for rejection of nomination papers. In the case in hand basic judgment was given by the Sessions Court on 15-7-1985. Another important aspect of the case is that beside the aforementioned incident of murder nothing has been produced on behalf of the respondent to prove that appellant No,1 is having any sort of criminal history of his involvement in criminal cases, proving him to be a habitual in violating the Injunction of Islam. So I come to this conclusion that learned Returning Officer was not right in reacting the nomination papers of appellant."
8. This petition was fixed for hearing on 12-6-2001 and Mr. Junaid Iqbal Awan, Advocate, while appearing at limine stage accepted notice on behalf of respondent No,1 for 18-6-2001. The learned counsel for the parties argued the case on 20-6-2001 and 22-6-2001. In view of the nature of the dispute and importance of the matter in addition to the learned counsel for the parties, learned Assistant Advocate-General, Dr. Z. Babar Awan and Dr. Muhammad Aslam Khaki, Advocates, of this Court were asked to assist the Court as amicus curiae.
9. The facts relating to the conviction of respondent No,1 for the murder charge under section 302, P.P.C. With punishment of sentence of imprisonment for life to him by the trial Court and ultimately the conversion of conviction under section 302, P.P.C. (old) to under section 304, Part I, P.P.C. (old) are admitted. The main ground urged on behalf of the petitioner in support of this petition was that the District Returning Officer while exercising the powers of Appellate Authority misapplied and misinterpreted the law and on the basis of wrong assumption has rendered a decision contrary to the law. Precisely the argument of the learned counsel for .Getting respondent No,1 declare to be disqualified to contest the election is based on the provisions of clauses (d) and (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000, which lays down disqualification for a person from being elected as and from being member of Union Council if he is of not a good character or if is commonly known as one who violates the Injunctions of Islam and if he does not abstain from major sins. Under clause (j) of the Ordinance if a person has been sentenced for a period more than three months for any offence and a period of not less than five years has elapsed since his release, he is disqualified to be elected or hold membership in the Union Council.
10. The same disqualification is mentioned in Article 62 (d)(e) and (g) and Article 63(h) of the Constitution of Islamic Republic of Pakistan, 1973, for a person to be elected or chosen as Member of Parliament.
11. The learned counsel for the petitioner argued:
(a) That if a person is sentenced for a term less than three months, such person can be qualified to contest the election on the expiry of a period of five years from the date of his release, but in case if he is sentenced to more than three months, he will-not be qualified to contest the election even after the expiry of the period of five years: Learned counsel has submitted that the word 'or' has been used in clause (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000, before the sentence a period of not less than five years which would show that the period of five years is related to the expression ' sentence less than three months' and if the sentence is more than three months, the disqualification is permanent.
' Learned counsel submitted that respondent No,1 served his sentence as a convict for a period more than two years and was later released as a result of compromise.
(b) That under clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, a person who is of a good characte and who is not commonly known as one who violates Islamic Injunctions and abstains from major sins is qualified to contest the election and becomes a member of Local Government but if any of this qualification is lacking in such person, he would be disqualified to contest election and to become member of Local Council.
(c) That admittedly the respondent was convicted and sentenced for the murder charge which in addition to an offence is a major sin and one who commits such an offence (a) he is not a person of good character, (b) he violates the Islamic Injunctions, and (c) he does not abstain from a major sin. The learned counsel for the petitioner argued that the disqualification of a person as mentioned under section 14 of the Punjab Local Government Elections Ordinance, 2000, was known for rejection of his nomination papers during the process of scrutiny but the District Returning Officer in exercise of his powers as Appellate Authority in departure to the law on the subject allowed the appeal of respondent No,1 and accepted his nomination papers.
' The learned counsel while placing reliance on Kitab-ul-Fiqqa (page 839) written by Abdul Rehman Al-Jazeera has contended that the murder of a person in Muslim Society is not excusable in Islam and voluntary killing of a person under any circumstance is a major sin. The learned counsel contended that since the said respondent was found guilty of Qatl of a fellow Muslim, therefore, he committed a major sin and consequently by virtue of clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, was disqualified to contest the election.
12. Learned counsel representing the respondent on the other hand has contended that the conviction of respondent No,1 under section 302, P.P.C. (old) was converted under section 304, Part I, P.P.C. In appeal and thus, the case against him would be covered by Exception (v) to section 300, P.P.C. (old) which would not Qatl-e-Amd as defined under section 300, P.P.C. As amended through Qisas and Diyat Ordinance, 1991, and that if a Qatl is not definable as Qatl-e-Amd it would not fall within the ambit of major sin. The learned counsel in the light of definition of different kind of Qatl and offences affecting the Human Body under Chapter XVI of the Pakistan Penal Code submitted that if Qatl is committed with the intention to cause death, it is Qatl-e-Amd as defined under section 300, P.P.C. And is a major sin but in case of any other kind of Qatl such as Qatl-e-Khata, Qatl-e-ShibahAmd and Qatl-e-Bis-Sabab it is not a major sin.' The learned counsel argued that the respondent was acquitted under section 302, P.P.C. And was convicted under section 304, Part I, P.P.C. (old) in appeal by the High Court, which constituted an offence of Qatl-e- Khata as defined under section 318, P.P.C. And would not fall within the definition of Qatl-e-Amd for want of essential elements of intention to cause death. Learned counsel while concluding has submitted that keeping in view the facts and circumstances under which the murder took place, it can safely be said that it was not a Qatl-e-Amd to bring it within the purview of major sin to attach a disqualification with the respondent under clause (d) of section 14 of the Local Government Elections Ordinance, 2000. In support of the argument, the learned counsel has placed reliance on the following Books:- {{URDU TEXT}} ' In addition, he has also placed on record the leave granting order of the apex Court in C.P. No,744 of 2001 in a case titled "Masood Sarwar v. District Returning Officer and the copy of the judgment, dated 20-5-1986 in Criminal Appeal No,82 of 1985 filed by Mushtaq Ahmad respondent No,1 against his conviction and sentence.
13. The question whether only Qatl-eAmd punishable with death or life imprisonment as Qisas or Ta'zir, as the case may be, is only a major sin or 'Qatl' is a major sin. The intentional murder is 'Qatl- c- A Amd in Islam but it is nowhere said in the Holy Qur'an that only Qatl-e-Amd is a major sin and other kinds of 'Qatl' are not major sin. In plain words in Islam 'Qatl' is a major sin and a Muslim guilty of 'Qatl' of another Muslim despite subsequent acquittal from the Court cannot claim that his responsibility of major sin of killing a Muslim brother was absolved. In the administration of justice a convict of Qatl or Qatl-e-Amd as the case may be, upon conviction has to serve his sentence awarded to him in the manner provided under the law if he is not pardoned by the victim or his legal heirs as the case may be, which is only to the extent of right of a person or body of person but it would not take away the right of Almighty Allah to punish for major sin.
14. Dr. Babar Awan, Advocate, who assisted the Court (sic) has submitted that Qatl' is a major sin in Islam and the acquittal from charge of murder would not remove the stigma of major sin in Islam.
He submitted that according to Sharia good and bad acts are rewarded with Swab and punishment by Almighty Allah and in case of commission of an offence which is also a sin, the punishment for such an offence is different to that of punishment to be awarded by Almighty Allah for the sin committed in consequence to such offence and thus, there is a clear distinction between an offence and a sin. In a case in which sentence is awarded for an offender by the Court, the matter of Magfarat for the sin committed as a result of such offence is exclusively with Almighty Allah which can neither be pre-empted nor can be predicted that after serving sentence for an offence of 'Qatl', the offender after death will not be answerable before Almighty Allah on the Day of Judgment.
15. The learned counsel has referred the following Verses from the Holy Qur'an:--
(1) Sura Al-Baqara (2.217); (2) Sura Al-Nisa (4.92 and 4.93) (3) Sura AlMaida (5.32), (4) Sura Al- Banni Israel (33) and (5) Sura Al-Furqan (68).
' As per Ketab-ul-Iktiar, a prominent Book of Islamic Jurisprudence, "the final dictum which is led is that if an offence of murder is compounded by the legal heirs of the deceased, a person can be acquitted in this world, but he remains Qatil' till eternity and cannot be absolved from the responsibility of murder committed by him just because the matter stood compromised.
' In nutshell learned counsel submitted that if an offence of murder is compounded by the legal heirs of the deceased, a persona can be acquitted in this world, but he would remain Qatil and would not be deemed to have been pardoned by Almighty Allah for the sin he committed.
' In the second Volume of Islamic Encyclopaedia in the Chapter of Murder, the following five types of murders are mentioned.
(i) Qalt-e-Amd, (ii) Qatl-Shibh-eAmd, (iii) Qatl-e-Khata Amd, (iv) Qatl-Jari Majri Khata (v) Qatl- bisSabab.
' In this Chapter it is mentioned that according to Ibn-e-Sina, Zaid bin Sabir and others prominent Muslim Jurists that Tauba of a murderer is never accepted.
' In Saihi Bukhari in Chapter Ketabul Addiat the following Hadees can be quoted in this behalf, which reads as under"--- {{URDU TEXT}} ' In the same Book of Hadees in Chapter Diyat, another saying of Holy Prophet (p.b.u.h.) is quoted at page 651 in the following words:- "A Momin lives always comfortable, unless he commits a murder.'
' Gunah Kabeera has been defined in Bukhari Sharif at page 653 and saying of Holy Prophet is quoted at Serial No,1765 in the following words:-- "Ishaq Bin Mansoor, Samad, Abaidullah Bin Abi-Bukkar, heard from Hazart Uns that the Holy Prophet (p.b.u.h.) declared that the two sins are the biggest in all which are (i) Shirik and (ii) taking the life (Qatl)."
' In Bukhari Sharif in Chapter 1005 instances of Qatl-e-Khata in the words of Hazart Aisha (Razi Allah Ta'ala Unha) has been described. In Gazva-e-Ohad, "Iblees raised' the voice that a man was watching your back upon which confusion was created and one Yamaan was murdered who was father of a Muslim warrior namely Hazefa and said Hazeefa cried that his father be saved but Yamaan was done to death upon which Hazeefa said God forgave you which would show that even in case of Qatl-e-Khata or in any kind of murder, the pardon in the form of Magfirat rests solely and entirely with the Almighty Allah. The compromise between the murderer and legal heirs of the deceased and payment of Diyat or acquittal of a person under the codified law would not absolve him from the responsibility of Gunah Kabeera.
' Dr. Babar Awan has further argued that according to Sunnan Nasai Sharif authenticated collections of Hadees Sharif, in Chapter 218, page 380, the following Hadees is quoted by Hazrat Uns. "The Holy Prophet (p.b.u.h.) while adjudicating in a murder case for Qisas, made reference to Affo without declaring the grant of pardon of Gunah Kabeera" as Wajib and thus it is clear that no one except Almighty Allah can pardon for major sin.
16. In view of the admitted fact relating to the conviction and sentence of respondent No,1 under section 304, P.P.C. (old) and the foregoing discussion in relation to the disqualification of the said respondent as provided under clause (d) of section 14 of the Punjab Local Government Election Ordinance, 2000, the following questions need consideration:--
(a) Whether due to conversion of the conviction and sentence from the charge of murder under section 302, P.P.C. (old) to section 304, Part I, P.P.C. (old), the charge of Qatl-eAmd would be converted into the charge of Qatl-e-Khata and the Gunah Kabira' would be reduced to ' Gunah Sagira'.
(b) That in case of compromise of the offender with the victim or his legal heirs in an offence falling within the ambit of 'Gunah Kabira' or forgiveness of the victim or his legal heirs to such offender, he would automatically be pardoned by Almighty Allah for committing major sin.
(c) That in an offence in which in addition to the right of a person, the right of Allah is also involved, an offender can claim pardon of Allah Almighty as of right if he is pardoned by the victim.
17. For the proper determination of the above-referred questions, it is essential to examine the relevant provisions of section 300, P.P.C-. (old) with its exceptions and section 304, P.P.C. (old) and the provisions relating to the offences affecting the human body under Chapter XVI of the P.P.C.
Sections 300, P.P.C. (old) and 304, P.P.C. (old) provide as under:-- ' Section 300 (old).---Except in the cases hereinafter excepted, culpable homicide is murder if the 'act by which the death is caused is done with the intention of causing death, or ' 2ndly,---if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or ' 3rdly,---if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ' 4thly,---person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
"Section 304 (old).---Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either oescription for a term which may extend to ten years and shall also be liable to fine, ' if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; ' Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death."
18. 'Qatl' is defined in section 299, P.P.C. (Chapter XVI) as under:-- "Qatl means causing death of a person."
' The following four kinds of 'Qatl' have been described in this Chapter:--
(i) Qatl-e-Amd, (ii) Qatl Shibh-eAmd, (iii) Qatl-e-Khata and (iv) Qatl-bis-Sabab.
19. Qatl-e-Amd has been defined in section 300, P.P.C.`as under:-- ' Section 300. Qatl-i-Amad.--- ' Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with knowledge that his act is imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd.
' Section 316. Qatl Shibh-i-Amd.-Whoever commits Qatl Shibh-e-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to 14 years as Ta'zir."
5.322. Qatl-b is-Sal ab .---Whoever commits Qatl-bis-Sabab shall be liable to Diyat."
20. Qatl-e-Khata has been defined in section 318, P.P.C.: "Section 318. Qatl-i-Khata.--- Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit Qatl-e-Khata:
(a) A aims at a deer but misses the target and kills Z who is standing by. A is guilty of Qatl-e-Khata.
(b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of Qatl-e- Khata."
' In case of a voluntary act which causes death and which involves no mistake in its purpose or performance, notwithstanding the quantum of punishment it is Qatl and will constitute a major sin.
The illustration given under section 318, P.P.C. Would show that the offence committed by the respondent despite conviction and sentence under section 304, P.P.C. Part I, (old) and compromise with the legal heirs of the deceased would not be defined as Qatl-eKhata.
21. The sentence for committing Qatl-e-Amd is provided under section 302, P.P.C.:-- "Section 302. Punishment for Qatl-eAmad.--- Whoever commits Qatal-eAmd 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) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
22. Under Chapter XVI of P.P.C. An offence of Qatl of any kind or any other offence of hurt is compoundable. However, under section 311, P.P.C. In a case in which right of Qisas is compounded the offender can still be awarded sentence if he was found to be guilty of Fasad-fil-Arz.
23. The comparison of the old section 300, P.P.C. With the existing section 300, P.P.C. And 302, P.P.C., it is clear that if the murder is caused with intention, it is Qatl-eAmd and if it is due to mistake of act or mistake of fact without an intention to kill, it is Qatl-e-Khata as defined under section 318, P.P.C.
The illustrations (a) and (b) under section 318, P.P.C. Would show that in Qatle-Khata, there is lack of intention but at the same time if the element of causing death by mistake of act or fact is missing, the killing of a person despite being not as such intentional or premeditated would be wilful. It has been laid down in Holy Qur'an that if one kills a believer by mistake, he should free a slave and pay compensation to the deceased family. (Al-Qur'an 4.92). In the above referred Sura, Allah says a Muslim shall not kill a Muslim deliberately. The punishment of wilful Qatl has been ordained in Al-Qur'an (2.179) in the Holy Qur'an. The English translation of Qur'anic Verses relating to the Qatl and its punishment is reproduced hereinafter:--
(1) Sura Al-Baqra (2.217): "They ask you about the sacred month. Say: To fight in this a grave offence; but to debar others from the path of Allah, to deny Him, and to expel His worshippers from the Holy Mosque, is far more grave in His sight. Idolatry is worse than carnage'.
' They will not cease to fight against you until they will not cease to fight against you until they force you to renounce your faith --- if they are able. But whoever of you recants and dies and unbeliever, his works shall come to nothing in this world and in the world to come. Such men shall be the people of Hell, and .There they shall abide for ever.
' Those that have embraced the faith and those that have left their land and fought for the cause of Allah may hope for Allah's mercy. Allah is Forgiving and Merciful."
(2) Sura Al-Visa (4.92 and 4.93): "It is unlawful for a believer to kill another believer except by mistake. He that kills a believer by mistake must free one believing slave and pay blood --- money to the family at the victim, unless they choose to give it away in alms. If the victim be a believer from a hostile tribe, the penalty is the freeing of one believing slave. But if the victim be a member of an allied tribe, then blood money must be paid to his family and a believing slave set free. If a man cannot afford to do this, he must fast two consecutive months. Such is the penance imposed by Allah: He is Knowing, Wise.
' He that kills a believer by design shall burn in Hell for ever. He shall incur the wrath of Allah, who will lay His curse on him and prepare for him woeful scourge."
(3) Sura Al-Maida (5.32)
"That was why We laid down for the Children of Israel that whoever killed a human being, except as a punishment for murder or for sedition in the earth, should be looked upon as though he had killed all mankind; and that whoever saved a human life should be regarded as though he had saved all mankind.
' Our apostles brought them veritable proofs; yet it was not long before many of them committed great evils in the land."
(4) Sura Banni Israel (33): "And slay not the life which Allah hath forbidden save with right. Whoso is slain wrongfully, We have given power unto his heir, but let him not commit excess in slaying. Lo! He will be helped."
(5) Sura Al-Furqan (68): "And those who cry not unto any other god along with Allah, nor take the life which Allah hath forbidden save in (course of) justice, nor commit adultery --- and whose doeth this shall pay the penalty."
24. The element of suddeneness, lack of preparation and deliberations may change the nature of offence for the purpose of punishment but it would not come out of the definition of Qatl. The culpable homicide not amounting to murder falling under any exception to section 300, P.P.C. (old) would not bring the case out of the ambit of Qatl and mere fact that the conviction was altered and sentence was reduced in such an offence would not effect the nature of sin committed by a person in the words of the Holy Qur'an. The punishment for Qatl-e-Amd as provided under section 302, P.P.C. Is of the following three kinds:--
(a) In case of Qisas, the punishment of Qatl-e-Amd is death;
(b) In case of Ta'zir the punishment is death or imprisonment for life;
(c) In any other case, the sentence up to 25 years.
' The Shariat Appellate Bench of Supreme Court in a judgment in Shariat Appeal reported in PLD 1989 SC 633, while examining laws in the light of Islamic Injunctions held as under:-- {{URDU TEXT}}
25. Dr. Muhammad Aslam Khaki, Advocate, with reference to the above quoted Versus of Holy Qur'an and the opinion expressed by the Muslim Jurists as mentioned below has submitted that the acts and offences which involve both right of a person and right of. Allah, for violation of rights of a person the conviction and sentence is awarded through the process of law and Courts or the same are compounded by the parties, but the right of Almighty Allah is not waived even after acquittal or forgiveness given by a person to a fellow person. The learned counsel submitted that killing of one person is killing of a mankind and voluntary killing of a Muslim is a major sin in Islam.
He has placed reliance on Al-Fiqah-al-Islami and Adultahu (page 219) and Majmu'at Al-Sihah Al- Sitta, Volumes 5 and 6 wherein at page 266 it is mentioned:- {{URDU TEXT}} ' Learned counsel added that except in the following three cases, murder in any manner in Islam is prohibited:-- {{URDU TEXT}}
26. Learned counsel representing the respondent on the other hand placing reliance on the verdict given by different Muslim Jurists in different Books contended that the act of the respondent being an act of Qatl-eKhata is not a major sin and the punishment provided in Islam for such an offence would also remove the stigma of sin. Learned counsel concluded that in case of Qatl-eKhata, the pardon given by the legal heirs of the deceased would save the offender from sin.
27 In the light of the Versus of the Holy Qur'an and sayings of Holy Prophet (p.b.u.h.) quoted above and the opinion expressed by the Muslim Jurists in the books referred to above, it cannot be said that Qatl-e-Khata, is not a major sin and if the offender is pardoned by the legal heirs of the deceased, he is discharged from the a responsibility of "Qatr as sin before Almighty Allah. In case of 'Qatl' notwithstanding the pardon given by the legal heirs of the deceased, the responsibility of sin is not discharged unless Almighty Allah pardons the offender.
28.The next question for determination in the present case relates to the kind of murder committed by Mushtaq Ahmad respondent. ' According to the learned counsel for the respondent, it was a Qatl-e-Khata whereas according to the learned counsel for the petitioner, it was Qatl-e-Amd.
Keeping in view the definition of section 318, P.P.C. And the illustrations given thereunder, the murder for which the respondent was charged was not Qatl-e-Khata. It may be observed that in the light of foregoing discussion even Qatle-Khata would fall within the ambit of major sin and further notwithstanding the kind of 'Qatl' either QatIle-Khata, or Qatl-e-Amd, the act of committing 'Qatl' is a major sin and a person guilty of such an act is disqualified to contest the election by virtue of clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, irrespective of his compromise with the legal heirs of the deceased. The forgiveness by the legal heirs of the deceased would not provide an excuse that the sin committed by the offender was forgiven by Almighty Allah. Therefore, notwithstanding the conversion of conviction from section 302, P.P.C. To section 304, Part I, P.P.C. (old) and compromise of the respondent with the legal heirs of the deceased, he would still be responsible for major sin in the words of the Holy Qur'an.
29. This is noticeable that an offence falling under section 304, P.P.C. (old) would not necessarily be definable as Qatl-e-Khata or that death being involuntary the offence would not be a 'Qatl'. It may be noticed that under section 302, P.P.C. All cases of Qatl-eAmd which are not punishable under clauses (a) and (b) of said section are punishable under clause (c) of section 302, P.P.C. Which is substitution of section 304, P.P.C. And thus all these cases-which would fall within the ambit of section 304, P.P.C. Now fall under clause (c) of section 302, P.P.C. And are definable as Qatl-e-Amd.
The classification of Qatl-c-Amd under section 302, P.P.C. Is only relevant to the extent of punishment. Qatl-e-Khata is defined under section 318, P.P.C. Which has different ingredients and is punishable under section 319, P.P.C. Thus, the old and new provisions of law on the subject if are kept in juxtaposition, it is clear that an unpremeditated murder is also Qatl and a major sin -"and thus, while keeping in view the definition of Qatl-e-Khata given in section 318, P.P.C. And Qatl' under section 299(1), P.P.C. And also 'Qatl-e-Amd under section 300, P.P.C., it can be visualized that the act of the respondent of causing injuries to the deceased with a Suriya, a deadly weapon on the head a very sensitive part of the body without any lawful excuse was voluntary and not as Khata, therefore, it can safely be said that despite unpremeditated and sudden occurrence, the killing of the deceased was definitely a ' Qatl' which would fall within the ambit of major sin and the ultimate alteration in the conviction and sentence through the verdict of the Court as a result of compromise or otherwise, the nature of sin from major to minor is not changed.
30. The disqualification provided under clause (d) of section 14 of the Punjab Local Government Elections Rules, 2000, is confined to the extent of commission of a major sin and not that what punishment was awarded to a person by the Court for an offence constituting major sin. Section I4(d) provides_ as under:-- "Section 14. Qualification for candidates and elected members.--- A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,--
(d) is of a good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; provided that these qualifications shall not apply to a person who is a non-Muslim but such a person shall have a good reputation. "
31. The similar disqualification is provided under Articles 62(d), (e), (g) and 63(h) of the Constitution of Islamic Republic of Pakistan, 1973. Article 62(d), (e) (g) for the members of Parliament which provide as under:-- "Article 62.---A person shall not be qualified to be elected or chosen as a member of Parliament unless--
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he is sagacious, righteous and non-profligate and honest and Ameen;
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence.
"63(h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release."
32. There can be no second opinion that a person who lacks moral virtuousness and respect for mankind and does not abstain from committing major sin is not a righteous person to hold the elective office.
33. The nomination papers of the respondent were rejected by the Returning Officer on the ground of disqualification as provided under clauses (d) and (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000, which were accepted by the Appellate Authority in appeal with an observation that the occurrence in which Abdul Hayee lost his life at the hands of the respondent was not premeditated and would fall within the exception (v) to section 300, P.P.C. (old) as the conviction of the respondent was converted from section 302, P.P.C. (old) to section 304, Part I, P.P.C. (old) in appeal and in consequence thereto the act of respondent No,1 would not fall within the ambit of major sin and further the offence having compounded, the disqualification if any stood removed. The observation is without any foundation in the context of Islamic Law of Crime and Sin and consequently the questions raised in para.16 of this judgment are answerd in the negative.
34. The purpose of the scrutiny of the nomination papers is to exclude the person from entering into the arena who were not qualified to be elected or chosen as a member due to suffering severe disqualification under the law. It is a process of filtration to exclude a disqualified person from election with a view to restrain ill-eligible persons from participation in the election so that the people in the local constituency can be provided proper representation through proper person. If the disqualification of a person is known and it is established on record, the clearance of nomination papers of such a person to accept him as a candidate would amount to defeat the spirit and purpose of law. Section 14 of the Punjab Local Government Elections Ordinance, 2000 is a composite section, which contained qualification and disqualification for a person to be elected or to become a member of the Local Council. The disqualifications which are not known and cannot be established without the detailed inquiry and recording of the evidence need not to be considered at the time of scrutiny as the scope of scrutiny of nomination papers being limited cannot be enlarged beyond the summary inquiry but in a case in which no factual controversy is involved relating to the disqualification of a person and without a formal inquiry or recording of evidence, the disqualification is ascertainable in the process of scrutiny, it is obligatory on the authorities responsible for the scrutiny of nomination papers not to escape notice of such disqualification of a person.
35. Learned counsel for the petitioner has submitted that in the case in hand, the objection relating to the qualification of the respondent was raised on the basis of admitted fact and in the light thereof, the only question requiring determination would be whether the act of the respondent was Qatl which is a major sin or not and disqualification of the, respondent being known, the Appellate Authority while travelling on wrong premises through misconception of law accepted the nomination papers and the respondent despite being disqualified was allowed to contest the election. Learned counsel representing the respondent submitted that the disqualification being pleaded in support of this petition can also be taken as a ground in the election petition if ultimately the respondent succeeds, therefore, writ petition may be dismissed. The learned counsel for, the petitioner has strongly argued that respondent No,1 having no right to contest the election cannot be allowed to participate in it.
36. There is no cavil to the proposition that the pre-election disqualification is necessarily to be taken notice of during the scrutiny of the nomination papers and if it is found that the person is disqualified to contest election, he should not be allowed to contest election on the ground that the defeating candidate shall have the right of filing election petition. The grant of permission to a person who is not qualified to contest the election to participate in the election would amount to disfranchise a large number of voters which would be nothing but a wasteful exercise at the costs of public expenses and time. The dismissal of this petition on the ground that in case of ultimate success of the respondent in the election, the petitioner can challenge his election through an election petition would amount to legitimate the candidature of a person who is carrying a known disqualification. This petition could be disposed of even on the short ground but due to the sensitiveness of the matter and interpretation of clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, in the light of concept of major sin in Islam, the matter has been discussed at length and examined in detail and depth.
37. The disqualification pleaded under clause (j) of section 14 of ibid Ordinance being not as such inviolable against the respondent in the given facts, the same need not be discussed.
38. For the foregoing reasons, it is held that respondent No,1 at the time of filing the nomination papers was not qualified on account of his being guilty of major sin due to voluntary causing death of a Muslim. The result is that the impugned order of the acceptance of nomination papers of respondent No,1 by the District Returning Officer as Appellate Authority in appeal is declared to be illegal and of no consequence. This petition is allowed but there shall be no order as to costs.