MAIN ASHRAF ASMI
ADVOCATE HIGH COURT
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) punished with imprisonment of either description for a term which may
extend to twenty-five years (but shall
not be less than ten years ),where according
to the lnjunctions of isalm the punishment of qisas is not applicable .
{Provided that
nothing in this clause shall apply to offence to qatl-i-amd if committed
in the name or on the pretext of honour and the same shall fall within the
ambit of clause (a) or clouse (b)as the case may be .}
1.scope Accused
can come within the mischief of this section only if death is direct result of
the injury .PLD 1976 S.C.377 .ingredients of the offence are felonious
intention and an injury causing the
death .PLD1976 S.C377 .mere altercation not sufficient to bring exception in
operation.PLD1962 dacca 424.culpable
homicide may not be murder where
the mental state is not of the special degree o criminality required by
S.300 PCC,1981 SCMR329 . No culpability in putting a person to death in
execution of legal punishment .PLD 1980 FSC 1.Section 302 (As amended ) a
compoundable offence . 1992 Pcr LJ982 substitution of charge U.S .308 .not
warranted by law .NLR 1999 Cr S.C 36.Corroboration can be gathered from the
event . PLD2001 S.c 333.Accused aging 16.1,2years. Child within the meaning of
juvenile Court .pld 2001 lah 479.
2.Administration of
justice ..is not only to be done but
should be seen to have been done .leniency not to be shown at the cost of justice . 2000pcr lj 1956
3.qatil –i-amad.
Qati-i-amd has three categories.
(i) Qatli-i-amd which is punished with death as qisas.
(ii) qatli-i-amd punished with death or life imprisonment as
ta zir ,and
(iii)Qatil-i-amd punishable with imprisonment of either
description for a term which may extend to tywenty-five years .where according
to the injunctions of islam the punishment of qisas is not applicable .
Section 302 of the p.p.c contemplates plainly clearly a
category of cases which are withinthe definition of Qatl-i-amd but for which
the punishment can under the Islamic law ,be one other than death or life
imprisonment.AS to what are the case falling under clause (c) of S. 302 the law
maker has left it to the Court to decide
on acase to case basis . PLD 1996 S.C 274 .Qati committed on account of Ghairat
is not equivalent to qatl-i-amd pure and simple
and can cannot be punished with qisas . 1997 Pcr.LJ 1411 .charge of
common intention to murder in pursuit of
a family vendetta. Immaterial at such stage as to whose shot proved fatal. 1999
pcr.LJ 9 , 1995 SCMR 1765 rel . offence when proved has to be met with the maximum sentence provided therefore ,however,
circumstances of each case would justify
the severity and leniency in passing the legal sentence .(PLD 2004 PESH 143)
4.Crime of karo kari
siyah kari . No one is to be
permitted any more to take the law in
his own hands on the pretext of punishing infidels .PLD2003 kar 655.
5.abatement. one
of the convict dying .Appeal not abated .1989 MLD 3730.convict dying trying to
escape in jail break up
–sentence of fine not abated . PLD987 kar.250.
6.Abscondence .Abscondence
by itself does not establish guilt unless corroborated by other congent
evidence ,2000 pcr.lj 2038 .An important factor. 1989 pcr.lj 784. Has to be
judged in circumstances of each case. 1989 MLD 4219. Long period –can be used
as corroborative piece of evidence , 1989 Pcr. LJ 1511,1275 by itself not a
substantive piece of evidence .1989 Pcr .lj 2289, nor sufficient for concivtion
1989 Pcr.lj 2100, PLD1986 pesh .150 .not a corroboratory evidence . 1987 MLD
1287 Right of hearing forfeited. PLD1987 kar .250. Accused can evade arrest on account
of false implication . 1986 SCMR 982.Absconding by far weakest corroborative
evidence. PLD1977 S.c 41. Duty of the Court to sift evidence . 1989 Pcr lj2336
,1987 SCMR1. Not proved .1986 MLD3108.for some days per se not helpful.
1989Pcr.lj 2038.warrant not placed on record . 1989 pcr.lj 2315.benefit can be
extended to accused even if plea not taken . pld 1986 lah.382.Abscondence alone
is not enough to sustain conviction
. 1997 pcr.lj 961. 1453 in determining
the effect of abscondence ,the antecedent of the absconder his occupational
habits and limitations period of abscondence and specific explanation for
abdcondence have to be considered in juxtaposition with other evidence on the
record . 2003 PCr.LJ 66. Absconding alone cannot be a substitute for real
evidence .2002 PCr.lj 1914.
Abscondence per se not sufficient for conviction, 1994 MLD
590 to adjudge accused guilty , 1993
PCR.lj 1118 ,has never the effect
of remedying the defects in the wvidence led by prosecution .PLD 1995
lah 229. Conduct plays an important part in determining guilt .A corroborative
evidence .2001 SCMR 177. Abscondence alone cannot be a substitute for real
evidence .(PLD 2004 pesh 1) Mere abscondence per se is not
sufficient for establishing the guilt of
accused person unless prosecution is able to establish its case through
unimpeachable evidence . (2004 PCr.lj788) at the most can be taken as
corroboration of change and not as evidence of the charge. (PLD 2004 PESH 143)
7.Accomplice .
Solitary statement cannot from basis for conviction .PLD 1994 s.c 314.
Accused. Underage
.PLD 1987 kar. 110,1987 MLD 1953 .Accused deaf and dumb .1987 MLD 1016 .no reason not to award legal sentence . PLD
1964 s.c 801.
8.Amnesty . Claim
of PLD 1993 S.C 17 , 1994 scmr 1216
,1993 SCMR 1940 appeal pending in the
supereme court . benefit of general amnesty allowed . 1974 SCMR 271.
9. Remission
.Remission granted to accused through
notifications prior to his conviction not admissible .(PLD 2004 QUETTE 1)
10.Right of self –defence . Accused even in the absence of
his own evidence in his defence is entitled to support his plea of right of self-defence from the circumstances
appearing ih the prosecution evidence . 2003YLR 1369.
11.Medical evidence . Medical evidence can furnish
corroboration but can neither establish identity of assailant nor connect him
with the crime . 2003 PCR.lj 1847medical evidence is always treated to be of confirmatory nature and it does not identify the accused
involved in the commission of offence
(pld 204 S.C 663) medical evidence if in conflict with the ocular
testimony will not discard the latter if the same is true ,reliable and
confidence –inspiring .(PLD 2004 QUETTA 123) various piece of prosecution
evidence cannot be considered in isolation but a cumulative effect of whole prosection evidenceis to be
considered is to be considered. (pld 204 Quetta
123).
Ocular account corroborated by medical evidence .fatal
injury attributed to accused . Prosecution
has proved its case against accused beyond any shadow of doubt –appeal
was dismissed . P..LJ 2007 Cr.c. (Lahore)1043.
Medical evidence had
supported prosecution case.Deceased lost
his life due to fire-arm injurirs , but it did not lead to the
assailant.Deceased was involved in a number of cases including those of murder
and had many accounts to settle and it could not be said that only accused had
the motive against the deceased .Alleged pistol of .30 bore
recovered at the instance of accused ,was never sent to F.S.L nor any
empt was recoverd from the spot .no independent witness was prodused during
trail to prove the recovery.Recovery evidence ,could not be used against
accused .PLJ 2007 Cr.C(LAHORE) 398.
Medical evidence in no way was inconsistent with prosection
story .According to the report of
forensic science laboratory ,crime empties had matched with the Kalashnikov
recovered from the accused.PLJ 2008 SC 360.
Medical evidence and
the recoveries of the crime empties and the weapon of offence to cannot the
appellamts with the commission of offence .prosecution proved his case beyond shadow of doubt.PLJ2008 SC
396.
12.injured witness . not
sufficient to hold that he had spoken the whole truth (PLD 2004 PESH 1)
13.Restracted
confession . May be treated to be
sufficient to sustain a conviction if found voluntary and ture of
prudence ,the same should not be acted upon unless corroborated by some other
reliable evidence . (2004 PCr. LJ 677)
14. presence of eye
witness doubtful. Presence of eye
witnesses on the spot being highly
doubtful and their testimony having been belied by medical evidence positive
report of the ballistic expert will not improve the prosecution case where
bullet recovered from the dead body not
sent to serologist .(2004 PCr,lj 813)Conviction u.s 302 on sole statement of
eye witness whose credibility is not to be based but court should look for
independent corroboration .(NLR 2004 Cri. (QUETTA) 96)IF evidence of solitary eye
witness satisfies conscious of the court and is found confidence –inspiring
conviction can be based . (NLR 2004 cri.(QUETTA
) 107)
15. Accused .A minor
. Accused less than 16 years old a juvenile ,capital punishment not be imposed
,entitled to benefit of S.282-BCrP.C eing mandatory (2004PCR.LJ874) Accused
less than 18 years of age not sufficient to withhold normal penalty unless it
is specifically establish that there were some surrounding circumstance
justifying award of lessor sentence .(NLR 2004 cri .(quetta )107)
16.Blood stained
earth not taken.Three eye witnesses receiving grievous fire arm injuries which could not be
fabricated or self suffered if the i.o had not taken the blood stained earth
from the scene of accurrence it might be due to his inefficiency and cannot
belie ocular account which is full corroborated by medical evidence. (2004 PcR
.LJ 805)
17.Absence of enmity
.Not sufficient to stamp the statement of a witness with truth .(2004
PCR.lj 805)
18.Non-recovery of
weapon . No help in the absence of
ocular testimony in line with medical evidence .Bail refused . 2001.PCR.LJ 134.role of causing injury on the left lank
of deceased . bail not allowed . 2001PCR .LJ 180. Accused armed with . 12 bore
gun pelted brick blood stained . bail declined . 2001 pcr.lj 185.
19.Benefit of
doubt. Reasonable doubt not an imaginary but which having regard to
the circumstance of the case would be entertained by a person of common
prudence . 1974 SCMR 215. Conclusion reached without taking
into consideration the relevant circumstance . Benefit of doubt
given to accused.PLD 1973 S.C 469.evidence of approver –unworthy of credit
.PLD 1971 S.C 447 .evidence of eye –witnesses inconsistent and inimical towards
accused . 1970SCMR 840 .Enmity between
the parties . possibility of the accused being falsly implicated not ruled out . 1970 SCMR 220 scmr 12. Neither the
prosecution evidence .Benefit given to
the accused . 1973 SCMR 26. No evidence as to which of the accused were responsible for the fatel injury .benefit of boubt goes
to all the accused . 1968 SCMR 18. Plea of accused also be considered . PLD
1977 s.c 15. Unseen murder .PLJ 1979 s.c
172. Discrepancies between statement of
eye-witness and circumstantion evidence 1977. SCMR 393 .mere suspicion 1990.
Pld 1994 lah 187. Deceased not proved to have been last seen alie in the company of accused .
1994 mld 387. Defence plea may be raised or not . PLD lj 1631.
20. Absence of
postmortem report . Unnatural death of deceased by the pistol shot fired by
the accused having been proved by the ocular testimony ,failoure to
conduct postmortem not fatal .(2004
PCR.L. 1326.
21.Police statement. statement
of i.o being merely an opinion cannot be
substituted for any piece of evidence. (2004 pcr.lj 1710)
22.Testimony of minor
girls.testimony of minor girls sustaining injuries having no motive to
falsely implicate accused honesty and
stragight-forward High court not justified to give over due –improtance to the
deence plea,judgment of acquittal set aside and
that of conviction restored.(PLD 2004 S.C 403)
23.Contradiction
/improvements.Any contasiction /improvements or other factors made by
witness reflecting adversely on his credibility ,would not by itself ,be
sufficient to reject his testimony
as a whole .court can rely upon a portion of the testimony o such
witness I it is corroborated by other reliable evidence or circumstances.(2004
SCMR 477)
24.Approver .Exculpatory
statement cannot be used against another co-accused. 1989 Pcr lj
1262.Accomplice evidence . 1989MLD1271.Evidence value 1989SCMR 1375.Lacking
corroboration 1989MLD 1638.
