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Shariat Petition No. 1 of 1980, decided on 11th January, 1986.

‑‑‑S. 4‑‑Evidence Act (I of 1872), S. 118‑‑Criminal Procedure Code (V of 1898), S. 368‑‑'Qissas'‑‑Widow of deceased, one of legal heirs, pardoning accused and requesting for refraining from executing sentence of Qissas‑‑Sentence of Qissas, held, abated in view of statement of widow. ‑‑[Sentence‑‑Qisas].

‑---‑S. 4‑‑Criminal Procedure Code (V of 1898), S. 368‑‑'Diyyat'‑‑Sentence of Qissas imposed on accused abated in view of statement of widow of deceased, (one of heirs of deceased) pardoning accused and requesting not to execute sentence of Qissas‑‑Accused, liable to sentence of 'Diyyat'‑‑Particulars of legal heirs of deceased (excluding his wife who pardoned) not available‑‑Trial Court directed to determine shares of heirs. ‑‑[Sentence‑‑Qisas]

‑‑‑S. 4‑‑Criminal Procedure Code (V of 1898), S. 368‑‑'Qissas'‑‑Sentence of 'Qissas', held, could be stayed in light of statement of widow of deceased, pardoning accused, before its execution and this could be done either by trial Court, Shariat Court or Supreme Court.‑‑[ Sentence Qissas].

Khawaja Shahad Ahmed for Petitioner.

M. Nisar Mirza, Addl. A.‑G. for the State.

The petition is directed under section 4 of the Constitution of the Shariat Benches of Superior Courts Ordinance, 1979, for quashment of sentence of Qissas on account of the provisions of section 118 of the Evidence Act being contrary and in conflict with the Islamic injunctions of evidence.

2. Muhammad Imtiaz, son of the petitioner was tried on the charge of murder of Muhammad Zahoor deceased. The incident took place on April 4, 1975 and the District Criminal Court, Muzaffarabad recorded conviction by awarding sentence of 'Qissas' to Muhammad Imtiaz on July 29, 1975. An appeal preferred before the Shariat Court was dismissed on July 29, 1976 and the last appeal before the Supreme Court equally failed. The Supreme Court finally rejected the plea of innocence on October 16, 1978. On exhausting the remedies provided under general law, the present petition was directed for quashment of conviction as mentioned earlier, on the ground of provisions of Evidence Act being contrary to the Islamic rules of evidence and that the sentence of 'Qissas' was to be executed under section 368, Cr.P.C. which, according to the petitioner, was equally inconsistent with the Islamic rules of execution of sentence of 'Qissas'. The delay in decision of the petition occurred on account of non‑availability of counsel for the petitioner as on various dates, it was stated that the learned counsel was busy in the Supreme Court.

3. During the pendency of the petition, Mst. Ajeeba Begum alias Hamida Begum widow of Muhammad Zahoor deceased, submitted an application wherein it was stated that the widow who was a legal heir of the deceased, pardoned the guilt of the' accused and requested that the sentence of 'Qissas' may not be executed. The application was moved on November 8, 1983 when her statement was recorded. She was identified by Identification Card, her Passport, in addition to Abdul Hamid Khan and Muhammad Kabir who accompanied Mst. Ajeeba Begum to the Court. In her statement, Mst. Ajeeba Begum also declared that she had forgiven to the convict and was not interested in the execution of sentence of 'Qissas'. In view of the development in the light of application and statement of the widow of the deceased, the learned counsel for the petitioner has abandoned the grounds raised in the petition and requested that the proposition under consideration may be settled in the light of pardon accorded by the widow. of the deceased.

4. The accused was tried on the charge of murder of Muhammad Zahoor deceased, under the provisions of Enforcement of Islamic Penal Laws Act section 4 defines the offence of murder and section 5 of the Act postulates sentence for the offence of murder. Illustration (i) provides as:‑

Section 29 of the Act lays down as below:--

5. It is agreed between the learned counsel for the parties that under the Islamic law, it is permissible to the heirs of the deceased person to pardon or forgive to the accused ascribed culpable homicide amounting to murder liable to sentence of 'Qissas', at any stage after the incident (during the trial or after its conclusion) before the execution of sentence of 'Qissas'. In case of more than one heirs, if one or some of the heirs forgive or pardon the culprit awarded sentence of 'Qissas' for murder, the sentence shall not be executed unless they are unanimous for its execution. Dr. Tanzeelur Rehman, in his book, "Hadood, Qissas, Diyyat and Tazeerat" at page 368, described as below:‑

At page 256 of 'Kitabul Ikhtiar', it was provided as given below:‑

6. In the present case we are not in possession of the list of the legal heirs of Muhammad Zahoor deceased but the fact remains that his widow being one of the legal heirs, has pardoned the accused and requested for refraining from executing the sentence of 'Qissas'. In view of the statement of the widow, the sentence of 'Qissas' has obviously, abated. In the circumstances, the convict is liable to sentences of 'Diyyat'. The convict is in the lock‑up for the last 10 years and 8 months. We, therefore, propose to award him the sentence of 'Diyyat' on the proved charge of murder of Muhammad Zahoor. In absence of B particulars of the legal heirs of the deceased, this Court is not in a position to determine the shares of heirs of the deceased. This function shall, therefore, be performed by the trial Court which recorded the conviction of the convict.

7. Before parting with the order, it is relevant to mention here that in presence of forgiveness made by the widow of the deceased, the sentence of 'Qissas' has been withheld in view of the spirit of the Islamic Law. This act, therefore, shall not be deemed as an interference in exercise of review or otherwise, particularly in presence of the final finding of the Supreme Court. The conviction of sentence is withheld only in the light of the statement of the widow. As it is noticed earlier that the sentence of 'Qissas' could be stayed in the light of the statement of the widow before its execution and this could be done either by the C trial Court, this Court or the Supreme Court, it was, therefore, deemed expedient to record this order instead of sending the case to the trial Court or the Supreme Court, to avoid further delay and multiplicity of proceedings. Moreover, this order is recorded under the provisions of Islamic Penal Laws Act, 1974 as described under section 5, illustration (i) read with section 29 of the Act. The case is, therefore, sent to the trial Court for settlement of 'Diyyat' and its payment to the legal heirs of the deceased, if any, except the widow who has surrendered her claim even to 'Diyyat'

M.Y.H. Case remanded.

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