There are various judgments of this Court, which enunciate that the provisions of Sections 306 & 308 PPC would only be attracted in the cases of qatl-i-amd liable to ‘qisas’ under Section 302(a) PPC.

 There are various judgments of this Court, which enunciate that the provisions of Sections 306 & 308 PPC would only be attracted in the cases of qatl-i-amd liable to ‘qisas’ under Section 302(a) PPC. However, at the same time, the view persists that “in case we subscribe to the view that provisions contained in Sections 306 and 308 PPC apply to the cases of qisas only, it is apt to give rise to an anomaly. The anomaly is that if sentence in qatl-i-amd liable to qisas, despite stern and stringent forms of proof, can be lenient in view of the circumstances mentioned in sections 306 and 308 PPC why can't it be lenient in view of the same circumstances in the case of tazir notwithstanding the forms of proof and sentence provided thereunder are comparatively less stern and stringent.” Reliance is placed on Zahid Rehman Vs. The State (PLD 2015 SC 77). There is no direct judgment on the subject except Khalil-uz-Zaman Vs. Supreme Appellate Court (PLD 1994 SC 885) wherein while dealing with a similar case, this Court held that “language of Sections 306 and 308 PPC is plain enough to show that Qatl-i-Amd committed by the petitioner was not liable to Qisas and Qatl-i-Amd not liable to Qisas is specifically punishable under Section 308 PPC only. So, the petitioner could be convicted under Section 308 PPC and not under section 302 PPC to death as Qisas or Ta'zir.” Although review was filed in this case i.e. Faqirullah Vs. Khalil-uz-Zaman (1999 SCMR 2203), which was accepted, the conviction of the petitioner under Section 302(b) PPC as Ta’zir was maintained and he was ultimately executed but from perusal of the judgment, it is apparent that the Court itself observed that the provisions of Sections 306 to 308 PPC are not violative of any Quranic text or the Sunnah. The relevant portion of the judgment reads as under:-

“Due to paucity of time we have not been able to make further research in the matter ourselves. The opposite side had also not assisted us on the subject. Nonetheless, the amendments were introduced in the year 1990 in the Pakistan Penal Code including the provisions of clause (c) of section 306 and clauses (a) and (b) of section 304 of the P.P.C. with a view to bringing those provisions in conformity with the Injunctions of Islam and Sunnah. The presumption, therefore, is that aforementioned provisions are not violative of any Qur'anic text or the Sunnah of the Prophet (p.b.u.h.). The second contention is, therefore, devoid of any force.”

For what has been discussed above, the questions as to (i) whether the case of the petitioner is covered under Section 306(c) PPC for which the maximum punishment provided under Section 308 PPC is 25 years along with payment of diyat, and (ii) whether the conviction and sentence recorded against the petitioner under Section 302(b) PPC as Ta’zir was appropriate as per scheme of law squarely, requires consideration. We, therefore, grant leave to appeal in this petition. As the matter requires interpretation of the afore-referred provisions as per the intent of the Legislature, therefore, we deem it appropriate to send the matter to Hon’ble Chief Justice for constitution of a larger bench to adjudicate the matter for authoritative judgment, as the earlier matter was heard by a bench comprising five members.

Death Sentence/Anti-Terrorism Act J.P.351/2017

Muhammad Nasir v. The State
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
03-01-2023