SC calls for legislation to decide murder victim’s heirs
Top court says the law does not provide for devolving such capacity to the heir of a victim
Supreme Court of Pakistan. PHOTO: AFP
ISLAMABAD:
The Supreme Court has asked the federal government to do ‘appropriate legislation’ for determination of heirs and ‘wali’ of a victim in cases of Qatl-i-Amd – premeditated murder.
“In Pakistan section 345(2), CrPC now provides that an offence of qatl-i-amd under section 302, PPC may be compounded by “the heirs of the victim” and does not provide for devolving of such capacity to compound on an heir of an heir of the victim,” says an SC judgement.
The judgement authored by the Chief Justice of Pakistan (CJP) Asif Saeed Khosa sought to decide a question of law as whether the heir of an heir of the victim could be a ‘wali’ of the victim. A seven-judge bench headed by the CJP Khosa had heard the matter last year.
The precise legal question before the court was the scope and extent of the term ‘heirs of the victim’ used in section 345 CrPC in order to determine who on behalf of the deceased victim is entitled to compound the offence of qatl-i-amd punishable as ta’zir under section 302, PPC.
The judgement, which is announced on Thursday, says in Pakistan section 345(2), CrPC now provides that an offence of qatl-i-amd under section 302, PPC may be compounded by “the heirs of the victim” and does not provide for devolving of such capacity to compound on an heir of an heir of the victim.
“But in India the legislature had introduced section 320(4)(b) of the Code of Criminal Procedure, 1973 which reads “When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908, of such person may, with the consent of the court, compound such offence,” it adds.
The court says introduction of this legal provision in India is by itself a legislative acknowledgment that the capacity to compound an offence is not automatically devolved upon an heir of a person possessing the capacity to compound unless the law expressly provides for the same.
“The omission in this respect in the original law was supplied in India by the legislature and we in this country would not like to embark upon judicial legislation by supplying the relevant omission in our law through the means of interpretation.
“Let this responsibility rest where it lies and we would not like to encroach upon the domain of the legislature in this regard. We, therefore, refer this aspect of the matter to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad so that the Federal Government may consider getting the relevant law amended by the Majlis-e-Shoora (Parliament) appropriately, if so advised,” it says.
However, Justice Syed Mansoor Ali Shah, a member of larger bench in his additional note, questions why should an interpretation be encouraged that restricts the choice or option of the subsequent heirs of the victim to settle a feud and move towards a more harmonious and peaceful life.
“Why deprive the heirs of this right? This interpretation supports the protection of the family as envisaged in the Principles of Policy under article 35 of the Constitution.
“Any embargo on the exercise of the right to compound under section 345(2) CrPC by the subsequent heirs of the victim might not be in consonance with the Islamic Law of Inheritance,” he adds.
Justice Shah says section 320 of the Indian Code of Criminal Procedure, 1973 does not provide for compounding of an offence in case of murder. Further, in case the person who can compound the offences given under the said section dies a natural death, his or her legal representative, with the consent of the court, may compound the offence.
“Legal representative supports the purposive interpretation employed in this note, recognising a more contemporary status of heir of the victim, who is there at the point of time of compounding and is not frozen in history at the time of the death of the victim,” he adds.
The Supreme Court has asked the federal government to do ‘appropriate legislation’ for determination of heirs and ‘wali’ of a victim in cases of Qatl-i-Amd – premeditated murder.
“In Pakistan section 345(2), CrPC now provides that an offence of qatl-i-amd under section 302, PPC may be compounded by “the heirs of the victim” and does not provide for devolving of such capacity to compound on an heir of an heir of the victim,” says an SC judgement.
The judgement authored by the Chief Justice of Pakistan (CJP) Asif Saeed Khosa sought to decide a question of law as whether the heir of an heir of the victim could be a ‘wali’ of the victim. A seven-judge bench headed by the CJP Khosa had heard the matter last year.
The precise legal question before the court was the scope and extent of the term ‘heirs of the victim’ used in section 345 CrPC in order to determine who on behalf of the deceased victim is entitled to compound the offence of qatl-i-amd punishable as ta’zir under section 302, PPC.
The judgement, which is announced on Thursday, says in Pakistan section 345(2), CrPC now provides that an offence of qatl-i-amd under section 302, PPC may be compounded by “the heirs of the victim” and does not provide for devolving of such capacity to compound on an heir of an heir of the victim.
“But in India the legislature had introduced section 320(4)(b) of the Code of Criminal Procedure, 1973 which reads “When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908, of such person may, with the consent of the court, compound such offence,” it adds.
The court says introduction of this legal provision in India is by itself a legislative acknowledgment that the capacity to compound an offence is not automatically devolved upon an heir of a person possessing the capacity to compound unless the law expressly provides for the same.
“The omission in this respect in the original law was supplied in India by the legislature and we in this country would not like to embark upon judicial legislation by supplying the relevant omission in our law through the means of interpretation.
“Let this responsibility rest where it lies and we would not like to encroach upon the domain of the legislature in this regard. We, therefore, refer this aspect of the matter to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad so that the Federal Government may consider getting the relevant law amended by the Majlis-e-Shoora (Parliament) appropriately, if so advised,” it says.
However, Justice Syed Mansoor Ali Shah, a member of larger bench in his additional note, questions why should an interpretation be encouraged that restricts the choice or option of the subsequent heirs of the victim to settle a feud and move towards a more harmonious and peaceful life.
“Why deprive the heirs of this right? This interpretation supports the protection of the family as envisaged in the Principles of Policy under article 35 of the Constitution.
“Any embargo on the exercise of the right to compound under section 345(2) CrPC by the subsequent heirs of the victim might not be in consonance with the Islamic Law of Inheritance,” he adds.
Justice Shah says section 320 of the Indian Code of Criminal Procedure, 1973 does not provide for compounding of an offence in case of murder. Further, in case the person who can compound the offences given under the said section dies a natural death, his or her legal representative, with the consent of the court, may compound the offence.
“Legal representative supports the purposive interpretation employed in this note, recognising a more contemporary status of heir of the victim, who is there at the point of time of compounding and is not frozen in history at the time of the death of the victim,” he adds.