ISLAMABAD - Article 9 of the Constitution confers upon every citizen the fundamental right of life, therefore, Qatl-e-amd (murder by intention) is an offence punishable under Section 302 PPC, argued Shahid Hamid, appointed amicus curae in the case of rising trend of misuse of compromise laws as well as Islamic injunctions by pardoning convicts of heinous crimes ‘Fisabilillah’ (in the name of God).

A five-judge bench headed by Justice Nasirul Mulk was hearing the appeals of two convicts – Muhammad Azam and Sikander Hayat. In 2004 they had killed a man Muhammad Arif in tehsil Phalia of district Mandi Bahauddin.

A trial court had awarded death sentence to Azam in 2006 and life imprisonment to Hayat in 2011. The Lahore High Court last year had converted the death sentence of Azam into life term and retained the sentence of Hayat. Both the convicts last month approached the apex court against the LHC decision.

Shahid Hamid argued that Surah Al-Ma’idah Ayat 32 makes it clear that any Qatl-e-amd is Qatl-e-amd of all the people, therefore, simultaneously it is an offence against the wali(s) who are the heirs of the victim and an offence against the State.

He said the State has a religious, Constitutional and legal duty to ensure conviction and punishment of all offenders who commit qatl-e-amd. Any compounding or waiver of qisas by the wali of the victim cannot and does not relieve the State of its duty and obligation.

The Injunctions of the Holy Quran as set out in Surah Al-Ma’idah Ayat 33, and in Surah Al-An’am Ayat 151, make the duty of the State a mandatory command in case of offenders who commit qatl-e-amd while striving with might and main for mischief in the land, i.e. where the principles of fasad-fil-arz are attracted as explained in Section 311 PPC.

The learned counsel said that the Supreme Court is bound to give effect to the Injunctions of the Holy Quran as set out in Surah Al-Qasas Ayats 15, 16, 17 and 18, Surah Sad Ayats 22, 23, 24 and 25, Surah Al-Isra Ayat 33 and Surah Al-An’am Ayat 151, Surah Al-Nisa Ayat 93 that an offender who commits qatl-e-amd must seek the forgiveness of Allah Almighty and show proper repentance and remorse before the heirs of the victim are permitted to compound this offence.

The waiver of qisas in terms of Section 309 PPC, and the compounding of qisas in terms of Section 310 PPC, in case of qatl-e-amd are based on the Injunctions of Islam as set out in Surah Al-Baqarah Ayats 178 and 179 and Surah Al-Ma’idah Ayat 45.

Such waiver and/or compounding is inextricably linked and confined to cases in which an offender who has committed qatl-e-amd is punished with death as qisas in terms of section 302(a) PPC [Muhammad Saleem vs The State PLD 2003 SC 512].[Also, another separate case of Muhammad Saleem vs The State 2005 SCMR 849].

He contended that the provisions of Sections 309 and 310 PPC do not apply to cases in which the offender who has committed qatl-e-amd is punished with death or imprisonment for life as ta’zir in terms of Section 302(b) PPC or for a term extending upto 25 years imprisonment in terms of Section 302(c) PPC [Muhammad Saleem vs The State PLD 2003 SC 512]. [Also, another separate case of Muhammad Saleem vs The State 2005 SCMR 849].

The right of the heirs of the victim to waive and/or compound in cases whether the offender is to be punished with death as qisas is (again) not an absolute right but subject to the provisions set out in Section 311 PPC and to the permission of the Court as required by Section 307 PPC and section 345(2) Cr. P. C [Naseem Akhtar vs The State PLD 2010 SC 938].

In terms of the Islamic Injunctions set out in Surah Al-Baqarah Ayats 178 and 179 and Surah Al-Ma’idah Ayat 45, the true interpretation of Sections 309 and 310 PPC is that in cases where an offender has been sentenced to death as qisas under Section 302(a) PPC, the heirs of the victim can, insofar as they are concerned, agree to spare the life of the offender subject.

He said that there should be authoritative judgment on the points he had raised, adding, a conjunctive reading of sections 309 and 310 PPC with Section 311 PPC, as also Section 307 PPC and Section 345(2) Cr. P.C, suggest that the words “at any time” in Sections 309 and 310 PPC mean at any time after the offender has been convicted because how can a court decide whether the principles of fasad-fil-arz are attracted till such time as the offender has been tried and convicted [Azmat & another vs The State PLD 2009 SC 768].

The trial court may use the admission of qatl-e-amd accompanying the application for compounding (or waiver) and seeking the forgiveness of Allah Almighty as the basis for convicting the offender, but must also record such other evidence as the court deems fit, to adjudge whether the principle of fasad-fil-arz is attracted, before passing orders on any application for compounding/waiver and determining the final sentence.

He said while determining the ambit and scope of fasad-fil-arz the Court should note LHC judgment in the case of Abdul Ghafoor vs The State 2000 P. Cr L J 1841, which says; “… Allah abhors Fasad in the land and condemns those who create the same…”

Shahid stated that "Fasad" according to Elias' Modern Dictionary - Arabic - English, published by Elias Modern Press, Cairo, inter alia means, to spoil to vitiate, to ruin, to demoralise, to foil, to frustrate, to negate, to deteriorate, to invalidate, to purify or to decompose, while "Arz" means land, but is also used to indicate a piece of land such as a State or a country.

He prayed the Court to declare or re-affirm that the principles of fasad-fil-arz will be attracted in terrorism related offences, and where a State functionary is murdered to deter him from performing his official duties as stated in Azmat & another vs The State PLD 2009 SC 768]. Also in the commission of other offences such as dacoity, robbery, gang rape, child molestation, terrorist acts, and where the conduct of the offender after his arrest and upto his conviction and sentence has been such as to show no penitence or remorse and, to the contrary, exhibits ‘glory’ in the qatl-e-amd committed by him for the reason, inter-alia, that such a person creates or develops corruption in the society [Muhammad Riaz vs Federal Government PLD 1980 FSC 1].

The Court re-affirm that an offender is convicted and sentenced under Anti-Terrorism Act 1997, for an offence which is non-compoundable that such offender cannot be acquitted of such offence even if the application for compromise to the extent of charge under Section 302 PPC is accepted.

Attorney General said that the waiver of Qisas can take place before, during and after the trial, subject the court decision. He said that the Azmat case, referred by Shahid Hamid, is rightly decided.

The case is adjourned for date in office (indefinite period).