Punishment of qati-i-amd MAIN ASHRAF ASMI ADVOCATE HIGH COURT

Punishment of qati-i-amd

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.