Three Supreme Court judges on Thursday issued a majority verdict that Qisas and Ta’zir are “two distinct and separate legal regimes” against two other judges who declared that both are “mutually exclusive and not overlapping” and “they are to be understood and applied as such”.
Qisas the punishment for murder as per Quranic law, while Ta’zir are punishments decided by a judge or Qazi.
Justice Ejaz Afzal and Justice Ijaz Ahmed Chaudhry disagreed with the 30-page judgment, authored by Justice Asif Saeed Khan Khosa on the issue of Qisas and Ta’zir. However, Justice Dost Muhammad and Justice Qazi Faez Esa supported it.
The court noted that in view of the provisions of section 304 of Pakistan Penal Code a case is one of Qisas only if the accused person appeared before the trial court and voluntary and truly confessed the offence or the requisite number of witnesses are produced by the prosecution before the trial court and their competence to testify is established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984.
The court also noticed that the cases not fulfilling the requirements of section 304 PPC are cases of Ta’zir and the provisions relating to Qisas have no relevance to them. The court noted that the cases covered by the provisions of sections 306 and 307 PPC are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases and instead some alternate punishments for such offenders are provided for in section 308, PPC.
“Qisas and Ta’zir are two distinct and separate legal regimes which are mutually exclusive and not overlapping and they are to be understood and applied as such. I expect that with this categorical declaration the controversy at hand shall conclusively be put to rest,” Justice Khosa writes.
The court noted that the provisions of section 302(c), PPC have also remained problematic in the past and their interpretation has also not been free from controversy. Justice Khosa stated that the provisions of section 302(c), PPC are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas, adding that sections 306 and 307, PPC are person specific whereas section 302(c), PPC relates to certain situations and circumstances wherein a murder is committed and according to the Injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances.
Published in The Express Tribune, January 16th, 2015.
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