ISLAMABAD: The Supreme Court gave a conclusive judgment on Thursday, ending once and for all the confusion between Qisas and Ta’zir in cases of murder.

The law providing for Qisas, which in Islamic criminal jurisprudence means an equal retribution, was introduced when military dictator Gen Ziaul Haq was in power but it continues to be confused with Ta’zir, which means punishment other than death penalty. The conflicting judgments pronounced by courts over the last quarter of a century have served to add to the confusion.

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In a 3-2 judgment, a bench headed by Justice Asif Saeed Khan Khosa removed the confusion by clearly categorising the nature of offences falling under Qisas and Ta’zir.

The court declared that Qisas and Ta’zir were two distinct and separate legal regimes which were mutually exclusive and that they were to be understood and applied as such.

It held that in view of Section 304 of the Pakistan Penal Code (PPC) a case is one of Qisas only if the accused, before a competent court hearing the case, makes a voluntary and true confession of commission of the offence or the prosecution produces the required number of witnesses before the trial court.

In case of production of the required number of witnesses, their competence to testify is to be established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused) as required under Article 17 of the Qanun-i-Shahadat Order, 1984.

Section 299 (K) of the PPC defines Qisas as punishment by causing similar injury to the same part of the body of the convict as (s)he has caused to the victim or by causing his/her death if the convict has committed Qatl-i-Amd (wilful murder), in exercise of the right of the victim or a “Wali” (authorised legal heir).

Justice Ejaz Afzal Khan and Justice Ijaz Ahmad Chaudhry dissented with the majority view while Justice Dost Muhammad Khan and Justice Qazi Faez Isa agreed with the main judgment authored by Justice Khosa but added separate notes to it.

The court held that cases not fulfilling requirements of Section 304 of the PPC were cases of Ta’zir and provisions relating to Qisas had no relevance to the same. It observed that the cases covered by provisions of Sections 306 and 307 of the PPC primarily pertained to Qisas, but because of certain considerations the punishment of Qisas was not liable or enforceable in those cases and instead some alternative punishment for such offenders was provided for in Section 308 of the PPC.

“I, thus, feel no hesitation in concluding that the provisions of and the punishments provided in Section 308, PPC, are relevant only to cases of Qisas and that they have no relevance to cases of Ta’zir and also that any latitude or concession in the matter of punishments contemplated by the provisions of Sections 306, 307 and 308, PPC, and extended to certain categories of offenders in Qisas cases mentioned in such provisions, ought not to be mistaken as turning those cases into cases of Ta’zir with the same latitude or concession in the punishments,” Justice Khosa noted in the main judgment.

He was of the view that provisions of Section 302(c) of the PPC were relevant to acts of murder committed in situations and circumstances which did not attract the sentence of Qisas while Sections 306 and 307 were person-specific whereas Section 302(c) related to certain situations and circumstances where a murder was committed and in accordance with injunctions of Islam the punishment of Qisas was not applicable to such situations and circumstances.

Justice Dost Muhammad Khan in his additional note advised the government to introduce a suitable amendment to Clause (b) of Section 302, ordinarily providing punishment of life imprisonment unless the commission of the crime was attended by an element of terrorism, sectarian revenge or the murder was committed in a ruthless, cruel and brutal manner, which appeared unconscionable and no mitigating circumstance was there to reduce the gravity of the crime.

Similarly, he said, once the punishment of Qisas was not enforced or the offender was not liable to be punished under Qisas in the cases enumerated in Sections 306 to 311 of the PPC, then Ta’zir punishment shall also not be inflicted or the punishment should be mild in nature (not death or life imprisonment).

The courts were vested with discretion in this regard to award punishment by way of Ta’zir, but not death sentence or life rigorous imprisonment, barring a few exceptions, he added.

Published in Dawn, January 16th, 2015

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