TEAM CODE – U3

UNIVERSIY OF LAHORE, 3RD NATIONAL LAW

MOOT COMPETITION, 2023

IN THE SUPREME COURT OF PAKISTAN

AHMED
Vs.
THE STATE

MEMORIAL FOR THE PROSECUTION

 TABLE OF CONTENTS

Sr. No PARTICULARS PAGE NO.

1. Table of Contents 1

2. Index of Authorities 2

3. Statement of Jurisdiction 3

4. Identification of Issues 4

5. Statement of Facts 5

6. Summary of Pleadings 7

7. Pleadings 10

i. Issue A 9
ii. Issue B 16
iii. Issue C 20
iv. Issue D 24
8. Prayer 27

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 INDEX OF AUTHORITIES

Statutes Referred
1. Pakistan Penal Code, 1860

2. Constitution of Pakistan, 1973

3. Qanun e Shahadat Order, 1984

4. Dissolution of Muslim Marriages Act, 1939

Cases Referred
1. Zahid Rehman vs. The State - (PLD 2015 SC 77)

2. Bashir Ahmed and others vs. The State - (2022 SCMR 1187)

3. Faqir Ullah vs. Khalil-uz-Zaman and others - (1999 SCMR 2203)

4. Muhammad Abbas vs. The State - (PLD 2020 SC 620)

5. Abdul Salam vs. The State - (2000 SCMR 338)

6. Pakistan vs. NWFP Government - (PLD 1990 SC 1172)

7. Federation of Pakistan vs. Gul Hassan Khan - (PLD 1989 SC 633)

8. Kamal Shah vs. The State - (2009 P Cr. L J 547)

9. Muhammad Arshad vs. The State - (2006 SCMR 89)

10. Abdul Jabbar vs. The State - (2007 SCMR 1496)

11. Muhammad Ameer vs. The State -(2006 PLD 283)

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 STATEMENT OF JURISDICTION

1. The Hon'ble Supreme Court of Pakistan exercises jurisdiction to hear and adjudicate

the present matter under the provisions of Article 185(3) of the Constitution of

Pakistan,1973 read with Rule 3 along with 4 and 5 (including the Proviso of Rule 5),

of Order XXIII of the Supreme Court Rules, 1980.

2. The provisions under which the prosecution has approached the Hon'ble Court has been

reiterated herein below.

Article 185(3) - Appellate jurisdiction of Supreme Court

(3) - An appeal to the Supreme Court from a judgment decree, order or sentence of a High

Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants

leave to appeal

Order XXIII, Supreme Court Rules, 1980.

Rule 3:

The petitioner, if he is in jail, may present his petition for leave to appeal in respect of his own

conviction along with the accompanying documents, including any written arguments which

he may desire to advance, to the Officer- in-charge of the Jail who shall forthwith forward them

to the Registrar.

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 IDENTIFICATION OF ISSUES

A. Is Ali a Wali of Ahmad within the meanings of section 305 of Pakistan Penal Code,

1860? If so, can sections 306 and 308 apply to this case?

B. Can a sentence in ‘qatl-i-amd not liable to qisas’ be lenient in circumstances mentioned

in sections 306 and 308 PPC; if so, can it be lenient in the same circumstances in the

case of Ta’zir?

C. Are Sections 306 to 308 PPC violative of any Quranic text or the Sunnah?

D. Whether the conviction and sentence recorded against the petitioner under Section

302(b) PPC as Ta’zir is appropriate as per the scheme of law?

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 SUMMARY OF THE FACTS

1. Ahmed was a wealthy businessman who had very fragile childhood because of his

abusive parents, due to which he had trouble with academics. He was sent to boarding

school away from domestic problems but he was bullied in hostel. He never disclosed

this issue as his family was surrounded by their own worries.

2. During his matriculation exams he left home due to domestic issues, and was involved

with drug addicts, he smoked for the first time there. He was caught with them in

burglary, intoxicated. He was bailed by his uncle who did not let the police enter

incident in police record.

3. On the next morning after his 19 th Birthday his parents had a harsh fight, which resulted

in failing his matriculation exams and his parents also got separated and his father took

Ahmed in his care.

4. He lost interest in studies, was in bad company, his father decided Ahmed should join

his family business. After some his mother also passed away. When he was 29 his father

thought getting married to him with a daughter of wealthy businessman would be great

as it will boost the business. But it was against Ahmed’s choice.

5. Ahmed and Sameera had bonding issues from the start of their marriage, Ahmed used

to have abrupt changes in his behaviour sometimes he was very loving and sometimes

he was stubborn and teasing husband. He did not let Sameera meet her family and also

used to hurt her.

6. After three years of marriage, a male child was born to them named Ali.

7. One day he came home distressed due to economic crisis, he started throwing things at

Sameer. He accused Sammera for being treacherous wife who had no love for HIM.

After this Sameera left the house with Ali, who was 3 years at that time, and she

shouted: “Ali would never see you again”, “you are a selfish and psycho.”

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8. On 9-2-01 Ahmed received notice from the Family Court for the dissolution of marriage

under section 2 of the Dissolution of Muslim Marriages Act 1939. After this he stopped

going to business and confined himself. On 11-2-01, he sent voice note to all family,

relatives and Sameera that Ali was not his son, Sameera had cheated on him.

9. On 12-2-01 he left house with can of acid and went to the Sameera’s family home,

guards let him in as he was the son in law. As he entered the house he saw Sameera and

her family having lunch while Ali is in Sameera’s lap, everyone is in jovial mood. This

provoked him further and he became impulsive and stated throwing acid on everyone

including Ali. Acid fell on Sameera’s body and face and also on Ali cheeks and right

arm right after this Ahmed fled away. Guards and family members were witness of this

event. Ali and Sameera were moved to hospital.

10. Family of Sammera lodged a police complaint on investigation police concluded that

the motive of occurrence was that a suit for divorce was pending between her and her

husband and due to that grudge he had thrown acid at them. This complaint resulted in

registration of FIR No.22/2001 dated 12-2-01. After a few days, Sameera died to her

burn injuries and Ali is alive with badly burnt arms.

11. The matter was reported by media and Ahmed was arrested after a month. He was tried

by the learned ATC judge on charges of murdering his wife and injuring his son.

12. During trial Ahmed contended that Sameera had cheated on him, that provoked him

and he lost his self-control.

13. Ahmed was punished under following sections: Section 302(b) PPC, Section 7(1) (a)

of Anti-Terrorism Act, 1997, Section 336-B PPC, Section 7(1) (c) of Anti-Terrorism

Act, 1997 and forfeiture of the property of Ahmad in favour of State under Section 7(2)

of the ATA. Above mentioned sections were to be run concurrently under Section 382-

B Cr.P.C.

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 SUMMARIES OF PLEADINGS

ISSUE – A

Provocation has been defined by citing Bashir Ahmed and others V the State, and elements

stated. As the condition of retaliation without inordinate delay is not in the Ahmed’s case it

cannot be contended as case of provocation. During the trial Ahmed had already contended

that Sameera had cheated on him and questioned his child’s legitimacy. The question of Ali

being the Wali of Ahmed does not arise in this case by reason of it being in the pretext of

honour. Ahmed is rightly punished to death as Ta’zir and the punishment should be maintained.

The provisions of Sections 302, 306 PPC and 308 of the PPC do not attract in this case.

ISSUE – B

Ahmed committed the said offence on the pretext of honour, and therefore this makes the

present case, one of honour killing, which makes it a premeditated murder, and rules out the

possibility of it being a case of Qatl-e-Amd on the ground of grave and sudden provocation

since a case of Honour Killing does not accept the plea of provocation.

ISSUE – C

The Supreme Court is not a Shariat Appellate bench, as per the provisions in Article 203G of

the Constitution of Pakistan, it has no jurisdiction to determine any law as being repugnant to

the injunctions of Islam as laid down in the Holy Quran or Sunnah. A person cannot be held

guilty of qatl-i-amd liable to qisas unless the case has been tested on the yardstick of evidence

provided under section 304 of the PPC. Since this case is an appeal, and the punishment is

also not arising from sections 306 till 308, there is no legal mandate to determine any of the

sections as being in violation of the Quran and Sunnah.

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 ISSUE – D

Various grounds and precedents have already been presented in the arguments for the A and B

issues presented before the Court to establish that the Ta’zir punishment awarded to the

Petitioner (Ahmad) under section 302(b) of PPC is appropriate and is not liable to be subjected

to any leniency. Judgements in Zahid Ahmed case (PLD 2015 SC 77) and Muhammad Akram

vs. The State is cited to support this stance.

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 ISSUE - A

1. DEFINITION OF WALI

Section 305 of the Pakistan Penal Code (hereinafter referred as PPC) defines Wali as,

In case of qatl, the Wali shall be—

(a) The heirs of the victim, according to his personal law [but shall not include the

accused or the convict in case of qatl-i-amd if committed in the name or on the pretext

of honour]; and

(b) The Government, if there is no heir

2. PROVOCATION

2.1 Definition

In the case of Bashir Ahmed and others vs. The State1, provocation is defined as

incitement to anger or irritation, and is used to denote much more emotion than ordinary

anger. To extenuate the killing of a human being provocation has always had a special

significance, since it is something which incites immediate anger or passion which

overcomes a person's self-control to such an extent as to overpower his reason. A person

can be provoked to commit a criminal act partly because of a preceding set of events

that might cause a reasonable person to lose self-control.

2.2 Elements of Sudden Provocation

There are mainly four elements which need to be established to avail the defense of

provocation:

i. The provoking circumstances.

1
2022 SCMR 1187

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 ii. The loss of self-control of the accused resulting from the provoking

circumstances, whether reasonable or not;

iii. Whether the provocation could have caused an ordinary person to lose self-

control.

iv. The retaliation was proportionate to the provocation. Whether the loss of self-

control of the accused was a result of the provoking circumstances is a subjective

test. To prove the elements of provocation, there are two more conditions i.e. it

should be prompt, and retaliation is without inordinate delay.

As mentioned in the above case law provocation is something which incites immediate anger

or passion. It was not immediate anger or passion in the current case because there was a gap

of many days in the quarrel between him and his wife and the act of Ahmed which resulted in

the death and injuries of his wife and son, respectively. Therefore, it cannot be contended that

he was highly provoked and committed the murder due to immediate anger.

On 09-02-2001 he received notice from the family of the dissolution of marriage, on 11-02-

2001 he sent voice note to everyone about Ali’s illegitimacy, afterwards, on 12-02-2001 he

was seen leaving the houses with the can of acid. Therefore, it can be concluded from the facts

on record that Ahmed had a sufficient amount of time to cool down even if he was highly

provocated. The offense committed in the case by the Petitioner cannot be considered as a

murder on the basis of sudden provocation since there was no such factors, as mentioned above,

present in the instant case which could provoke Ahmed to the extent of losing self-control and

committing murder of his wife and fatally injure his son Ali, hence, it was a premeditated

murder on the pretext of honor. As the condition of retaliation without inordinate delay is not

present in this case it cannot be contended as a case of grave and sudden provocation.

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During the trial Ahmed had contended that Sameera had cheated on him and questioned his

child’s legitimacy. But the question of Ali being the Wali of Ahmed does not arise in this case

by reason of the offense having been committed in the pretext of honor. Therefore, the question

of Wali is excluded as per the scheme of Section 305 of PPC.

3. NON-APPLICABILITY OF SECTIONS 306 AND 308 OF PPC

The provisions of Section 306 of the PPC are not applicable in the instant case, as Ahmed had

refused to accept Ali as his child. Moreover, the point of Wali cannot be raised in the honor

killing pertaining to the circumstances of the present case. Therefore, the Prosecution contends

that the Trial Court has rightly convicted the Ahmed under Section 302(b) of the PPC due to

lack of evidence as required by Section 304 of PPC. Thereby Ahmed cannot plead for leniency

at this stage based on the argument that Section 306 of the PPC is applicable and that the

scheme of punishment under Section 308 PPC should be followed.

3.1 Caselaw

In the light of the case of Zahid Rehman vs. The State2, the stance of prosecution can be further

affirmed by referring to the paragraph 7 of this case, quoted;

“…… Khalil-uz-Zaman v. Supreme Appellate Court, and 4 others (PLD 1994 SC 885)

decided by a 2-member Bench of this Court. It was a case of a person who had killed

his wife and at the relevant time the couple had a living minor child. Using some Co

strong expressions in the judgment this Court had castigated the learned a di court

below for not appreciating that such a case did not attract the provisions of section

302, P.P.C. and that the only provisions relevant to such a case were those of sections

306 and 308, P.P.C.. The said judgment was, however, reviewed and reversed by a 5-

2
2015 SCMR 77

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 member Bench of this Court later on in the case of Faqir Ullah v. Khalil-uz-Zaman

and others (1999 SCMR 2203) and the conviction and sentence of the offender

recorded by the trial court under section 302(b), P.P.C. were It was clearly held that

the case was not a case of Qisas and, therefore, the punishment mentioned in section

308, P.P.C. was not attracted or applicable to the case.

4. DEFINITION OF FASAD FIL ARZ

The instant case also attracts the provision of 299(ee) of PPC which provides the definition of

Fasad-fil-arz, which is as under;

(ee). fasadfilarz" includes the past conduct of the offender or whether he has any previous

conviction or the brutal or shocking manner in which the offence has been committed

which is outrageous to the public conscience or if the offender is considered a potential

danger to the community or if the offence has been committed in the name or on the

pretext of honor;

5. DEINITION OF HONOUR KILLING

Honor killing is defined in section 299 (ii) of the PPC as follows,

ii. “offence committed in the name or on the pretext of honour" means an offence

committed in the name or on the pretext of karo kari, siyah kari or similar other customs

or practices;

5.1 Case laws

To support the instance case being one of honor killing, the Prosecution relies on the case of

Muhammad Abbas vs. The State3, the circumstances of which resemble this current case the

3
PLD 2020 SC 620

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most on a principal level. As in the instant case where Ahmed acted on a mere suspicion and

caused the death of Sameera (his wife), injured his son Ali and thereafter, was convicted to

death under section 302(b) of PPC, the aforementioned case also holds quite similar

circumstances, hence, it can support our argument. Following are the relevant references from

the above mentioned Muhammad Abbas case:

6. ……..In this case the petitioner had merely seen his wife in the company of a man,

without observing indecent or even improper behavior on either of their parts, thus

there was no fact to amount to grave and sudden provocation.

15. The petitioner who professes to be a Muslim did not follow the methodology

commanded by Almighty Allah and the law of Pakistan to resolve his suspicions about

his wife. The petitioner then couched his criminal and un-Islamic conduct by stating he

became enraged to see his wife in the company of a man and on account of his ghairat

he killed her. Almighty Allah loves those who amongst others restrain their anger. To

become enraged is not an admirable trait nor is ghairat. The word ghairat nor the

Arabic ghairatun is used in the Holy Qur’an. The Holy Qur’an also does not permit

killing on the ground of adultery, let alone on the ground of ghairat (ghairatun in

Arabic), nor prescribes a lesser punishment for such killings. The law of Pakistan also

does not permit this. It is inappropriate to interpret Chapter XVI of the PPC, which

includes section 302 PPC, by disregarding the requirements of Section.

16……. Parliament was rightly concerned with the prevalence of such killings and

enacted legislation to dissuade, if not stop such crimes. It did so by ensuring that

offenders do not avail of the benefit of section 302(c) PPC, for which the maximum

punishment is twenty-five years imprisonment but which does not prescribe a minimum

punishment. Parliament specifically stipulated that such crimes attract clause (a) or

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 clause (b) of section 302 PPC, for which the punishment is either death or imprisonment

for life. However, the Muhammad Qasim case relied on certain obiter observations in

the Muhammad Ameer case and after creating another exception to the erstwhile

section 300 PPC this exception was applied to bring the offender’s case within the

ambit of section 302(c) PPC, even though the Muhammad Ameer case had held that an

honour crime did not come within the ambit of section 302(c) PPC. The language of

the proviso read with the definition of fasad-fil-arz is clear. If for the sake of argument

it is assumed that there was some ambiguity in the proviso, the statement and objectives

introducing it had it removed. The provisos (the one inserted in the year 2005 or the

one in year 2016) did not intend to nor created another exception for one who kills in

the name or pretext of honour in the erstwhile section 300 PPC, nor did it state that

such crimes came within the ambit of section 302(c) PPC; on the contrary it said the

opposite. 338-F PPC, which necessitates seeking guidance from the Holy Qur’an and

Sunnah.

20. In the present case the learned Sessions Judge, after considering the testimony and

other evidence on record, had determined that the petitioner had killed his wife. The

petitioner’s conviction was upheld by the learned Judges of the High Court but they

reduced his sentence of death to one of imprisonment for life. The two concurrent

findings of guilt against the petitioner are supported by evidence on record which we

have also independently examined. The High Court reduced the petitioner’s sentence

to imprisonment for life, which was the lesser one of the two prescribed punishments.

There is no reason justifying the grant of leave, which is declined, and, consequently,

the petition is dismissed.

The above referred text of the case judgement affirmed the contention of the Prosecution that

Ahmed is rightly punished to death as Ta’zir under Section 302(b) of the PPC and the

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punishment should be maintained, the mere difference in the punishment converted from one

of death to life imprisonment in the above referred case in contrast to the punishment of death

in the present case is that the above referred case had a convincing ground of grave and sudden

provocation on account of the accused finding his wife and the deceased in each other’s

company although without any in decedent or immoral condition.

In Muhammad Arshad v. The State4, Justice Abbasi stated that while it is true that the illicit

liaison of a female member of the family is not tolerated in our society, mere suspicion of such

relations cannot be used as an excuse to commit murder and claim mitigating circumstances

for a lesser punishment.

Moreover, in Abdul Jabbar v. The State5, Justice Jillani reaffirmed Justice Abbasi's earlier

decision6, namely that suspicion is insufficient for a successful claim of grave and sudden

provocation. Referring to previous cases in Pakistani law, Justice Jillani quoted that:

"A mere allegation of moral laxity without any unimpeachable evidence to substantiate

would not constitute grave and sudden provocation. If such pleas, without any evidence

are accepted”.

However, in the present case Ahmed did not see nor witness any such happening nor anything

else which would instigate grave and sudden provocation in him, and on the basis of mere

imagination and baseless suspicion, he killed his wife and seriously injured his son.

Therefore, the provisions of Sections 302(c), 306 and 308 of the PPC do not attract in this

case. As the murder was committed in the pretext of Honor, therefore, the question of Wali and

the scheme of Section 308 of the PPC does not apply.

4
2006 SCMR 89
5
2007 SCMR 1496
6
2006 SCMR 89

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 ISSUE B

1. DISTINGUISHING QISAS AND TA’ZIR

The question of whether the sentence awarded to the Petitioner (Ahmed) by the learned Trial

Court, thereafter affirmed by the Honorable Lahore High Court, under Section 306 of PPC i.e.

“Qatl-e-Amd not liable to qisas” and Section 308 of PPC, can be lenient in the same

circumstances in the case of Ta’zir may be understood better if the types of cases which entail

the Qisas and Ta’zir punishments are first distinguished and explained. The provisions of

Section 299 of the PPC clearly mention that as regards the context of Qatl-e-Amd, Ta’zir and

Qisas are two different types of punishments for this offence. The Section 299 of PPC has been

reproduced here for ready reference:

1.1 Section 299 of PPC

(k) Qisas means punishment by causing similar hurt at the same part of the body of the

convict as he has caused to the victim or by causing his death if he has committed Qatl-

i-Amd in exercise of the right of the victim or a Wali;

(l) Ta'zir means purushment other than qisas, Diyat, arsh, or daman;

Now a conviction entailing the punishment of Qisas can only be made if either of the provisions

of Section 304 of PPC are satisfied, as was also declared in the case of Abdul Salam v. The

State7, the provisions of Section 304 of PPC provide as follows:

1.2 Section 304 of PPC

(1). Proof of qatl-i-amd shall be in any of the following forms, namely: -

7
2000 SCMR 338

16 | P a g e
 (a) The accused makes before a Court competent to try the offence a voluntary

and true confession of the commission of the offence; or

(b) By the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984

(P.O. No. 10 of 1984).

Whereas, the cases of Qatl-e-Amd which do not fulfill the requirements of Section 304 of PPC

fall under the category of Ta’zir punishment, as has been clearly provided in the Section 302(b)

of PPC.

1.3 Caselaw

The issue at hand can be explained further in the light of the case of Zahid Rehman vs. The

State8, where the satisfaction of either of the provisions of section 304 PPC was again declared

to be required for a case to be one of Qisas and where the precondition of Tazkiya-tul-shahood

has been established for the section 304(b) of PPC as required by Article 17 of the Qanun-e-

Shahadat Order, 1984.

The above referred case has also answered the question of leniency in a clear cut manner, that

has been proposed in the issue at hand, in the Paragraph no. 29 of the case, in which Justice

Prof. Asif Saeed Khan Khosa, authoring the majority Judgment has held as under, quoted:

“It is also evident to me that the cases covered by the provisions of sections 306 and

307, P.P.C. 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, P.P.C. I, thus,

feel no hesitation in concluding that the provisions of and the punishments provided in

section 308, P.P.C. are relevant only to cases of Qisas and that they have no relevance

8
PLD 2015 SC 77

17 | P a g e
 to cases of Ta’zir and also that any latitude or concession in the matter of

punishments contemplated by the provisions of sections 306, 307 and 308, P.P.C. and

extended to certain categories of offenders in Qisas cases mentioned in such

provisions ought not to be mistaken as turning those cases into cases of Ta’zir with

the same latitude or concession in the punishments.”

The facts of the present case are clearly in consonance and under the applicability of the

distinctive punishments defined in the above referred case.

1.3.1 Analysis in the light of the above case

In the present case, after Ahmed received a notice of a suit for dissolution of marriage

by Sameera under Section 02 of Dissolution of Muslim Marriages Act, 1939, from

the Family Court of Lahore, Ahmed started to think that his wife (Sameera) had cheated

on him and spread such claim in his family and afterwards before the Court as well, but

he has not provided any proof for such claim of his, and this was a mere speculation of

his mind which also led him to believe that Ali was also not his son, and afterwards

during the trial Ahmad has contended that he was highly provoked and lost his self-

control because of that situation, which was merely his imagination and not something

backed by evidence, thereafter, on an apparent pretext of honour and provocation he

went to Sameera’s house with a can of acid and started throwing the acid at Sameera

and her family including Ali who were sitting together having lunch, pertaining to

which Sameera sustained fatal injuries and later passed away in the hospital, whereas,

Ali also sustained serious burns on his arms. The facts and circumstances of the case

therefore suggest that this is a matter of honour killing and therefore a premeditated

murder which rules out the possibility of it being a case of Qatl-e-Amd on the ground

of grave and sudden provocation since a case of Honour Killing does not accept the

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 plea of provocation in the circumstances of the current case, as argued by the

Prosecution in the other issues presented before this Court as well, which brings this

case in the ambit of Section 302(b) of PPC, and hence the punishment awarded by the

Leaned Trial Court is appropriate, while backing up this contention with the above

referred case law.

2. QUESTION OF WALI AND APPROPRIATENESS OF TA’ZIR

As regards the question of Wali, the reason of the offence committed being an honour killing,

in such a situation even if Ali is the Wali of Ahmed, Qisas is not applicable as per the section

306(c) of PPC, but this situation instead calls for punishment of Diyat through section 308 of

PPC, but that would also not be appropriate, because of the reason that the question of Wali

does not even arise in the case of Honour Killing and the offence being a premeditated murder,

therefore, with reference to the above mentioned cases, Zahid Rehman case and Muhammad

Abbas case, it is contended that the Ta’zir punishment of death awarded to the Petitioner

(Ahmad) under section 302(b) of PPC is appropriate and subject to no leniency pertaining to

the circumstances of the case.

In Muhammad Ameer v. The State9, Justice Muhammad Nawaz Abbasi stated that if a crime

is committed with premeditation, the plea of grave and sudden provocation may not be

available to the accused. Therefore, the abovementioned contention is deemed appropriate and

must be followed.

9
2006 PLD 283

19 | P a g e
 ISSUE C

Sections 306 to 308 of PPC state the instances where Qatl e Amd is liable to Qisas or not, and

if it is, then what shall be its punishment.

1. QATL-E-AMD NOT LIABLE TO QISAS

Section 306 of PPC discusses the rules regarding Qatl-i-Amd where it is not liable to qisas.

It shall not be liable to qisas in the cases when;

i. An offender is a minor or insane

ii. An offender causes death of his child or grandchild, how-low-so-ever; and

iii. Any Wali of the victim is a direct descendant, how-low-so-ever of the offender.

Under this section 306, the Pakistan Penal Code only exonerates the offender from the

punishment of qisas. A person cannot be held guilty of Qatl-i-amd liable to Qisas unless the

case has been tested on the yardstick of evidence as provided under Section 304 of PPC.

Moreover, the provisions of section 306 of PPC provide only that Qisas shall not be enforced

on an offender whose descendants are Wali of the deceased person(s).

2. INSTANCES WHERE QISAS IS NOT ENFORCEABLE

Section 307 of PPC states the cases in which Qisas for Qatl-i-amd shall not be enforced. There

are three instances where Qisas for Qatl-e-Amd shall not be enforced;

i. When the offender dies before the enforcement of qisas;

ii. When any Wali voluntarily and without duress, to the satisfaction of the Court, waives

the right of qisas under Section 309 or compounds under Section 310 and,

iii. When the right of qisas devolves on the offender as a result of the death of the Wali of

the victim, or on, the person who has no right of qisas against the offender.

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3. WAIVER OR COMPOUNDING OF QISAS

To satisfy itself that the Wali has waived the right of qisas under Section 309 of PPC or

compounded the right of qisas under section 310 of PPC voluntarily and without duress, the

Court shall record the statement of the Wali and such other persons as it may deem necessary

on oath and record an opinion that it is satisfied that the waiver was voluntary and not the result

of any duress.

4. PUNISHMENT FOR QATL-E-AMD NOT LIABLE TO QISAS

Lastly, Section 308 of PPC states the punishment where Qatl-e-Amd is not liable to Qisas. It

states that where an offender guilty of Qatl-i-Amd is not liable to qisas under section 306 or

the qisas is not enforceable under clause (c) of Section 307, he shall be liable to Diyat under

section 308 of PPC.

5. PROVISIONS FOR DIYAT

Diyat has three provisos under section 308 of PPC;

i. Provided that, where the offender is minor or insane, Diyat shall be payable either from

his property or, by such person as may be determined by the Court.

ii. Provided further that where at the time of committing Qatl-i-Amd the offender being a

minor, had attained sufficient maturity of being insane, had a lucid interval, so as to be

able to realize the consequences of his act, he may also be punished with imprisonment

of either description for a term which may extend to twenty-five years as ta'zir.

iii. Provided further that, where the qisas is not enforceable under clause (c) of Section

307, the offender shall be liable to Diyat only if there is any Wali other than offender

and if there is no Wali other than the offender, he shall be punished with imprisonment

of either description for a term which may extend to twenty-five years as Ta'zir.

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6. LACK OF JURISDICTION

The Supreme Court is not a Shariat Appellate bench, and as per the provisions in Article 203G

of the Constitution of Pakistan, it has no jurisdiction to determine any law as being repugnant

to the injunctions of Islam as laid down in the Holy Quran or Sunnah. Article 227 of the

Constitution states the provisions relating to the Holy Qur'an and Sunnah that, all existing laws

shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran

and Sunnah, and no law shall be enacted which is repugnant to such Injunctions, which

raises no question of these sections being violative of Quran and Sunnah as that would be

unconstitutional.

7. CASELAWS

Ever since the criminal law reforms in 1990, approved by the Shariat Appellate Bench, Sections

299 till 330h of PPC have been changed as per the Islamic system, hence the question of it

being in violation of any Quranic text or the Sunnah ceases to exist. As was reinstated in

Federation of Pakistan v NWFP Government10, all the injunctions which were repugnant to

Islam ceased to take effect from 12th Rabi ul Awwal 1411 AH, in light of the new Ordinance

incorporating the amendments related to Qisas and Diyat. The impact of the judgments of the

FSC has been significant upon criminal laws. As a result of the FSC judgment, Islamic legal

principles of qisas and Diyat have been incorporated into the Pakistan Penal Code 1860. The

strictness can be seen in the case of Federation of Pakistan v. Gul Hassan Khan11. Under

Article 203D of the Constitution of Pakistan, the Federal Shariat Court is empowered to decide

whether or not any law is repugnant to the injunctions of Islam as laid down in the Quran or

Sunnah.

10
PLD 1990 SC 1172
11
PLD 1989 SC 633

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Moreover, the Islamic Shari’ah Council, ever since the amendments have been enacted, has

not raised a single question about sections 306, 307 or 308 of the PPC being in violation of

the Quran or Sunnah.

Furthermore, since this case is an appeal, and the punishment is also not arising from sections

306 till 308, there is no legal mandate to determine any of the sections as being in violation of

the Quran and Sunnah.

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 ISSUE D

The prosecution has already provided various grounds and precedents in the arguments for the

A and B issues presented before the Court to establish that the Ta’zir punishment awarded to

the Petitioner (Ahmad) under section 302(b) of PPC is appropriate and is not liable to be

subjected to any leniency. Furthermore, in Kamal Shah v. The State12, according to Justice

Tariq Shamim, Ghairat was barred from being considered as an extenuating circumstance for

a lesser sentence.

As per the Zahid Ahmed case13, because of the heinous offense of Honour Killing having been

committed by the Petitioner in the present case, as explained in the arguments of the

Prosecution in issue B, aptly falling in the definition of a Premeditated murder, thereby ruling

out the chance of the Defense to establish their pleading for grave and sudden provocation. The

stance of the Prosecution that the offense of Honour Killing has been committed by the

petitioner (Ahmed) was established by relying on Muhammad Abbas case14 in the issues A

and B presented before the Honourable Court.

Now, the question presented by the issue at hand being that whether Ta’zir punishment awarded

to Ahmed is appropriate as per the scheme of law can be elaborated further by understanding

what the Scheme of Law actually is, regarding section 302(b) of PPC, and that has been

precisely elaborated by the Supreme Court judgment in the case of Muhammad Akram vs. The

State.15 The judgment in this case upheld the Petitioner’s punishment to death as Ta’zir and

12
2009 P Cr. L J 547
13
PLD 2015 SC 77
14
PLD 2020 SC 620
15
2003 SCMR 855

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has explained in detail the reasoning and the legality of it. Following are the relevant paragraphs

from the Muhammad Akram case;

5. ......According to the learned counsel petitioner being Wali of the deceased

would be entitled to the benefit of section. 308, P.P.C., therefore, the conviction and

sentence of the petitioner under section 302(b), P.P.C. was illegal. In the alternative,

learned counsel argued that in any case the immediate cause of occurrence being not

known, it would not be a case of extreme penalty. The first contention of the learned

counsel relating to the application of section 308, P.P.C. by virtue of sections 306,

P.P.C. is without any substance, sections 306, 307 and 308. P.P.C. would only attract

in the cases of Qatl-i-Amd which are liable to Qisas under section 302(a), P.P.C. and

not in the cases in which sentence for Qatl-i-Amd has been awarded as Ta’zir under

section 302 (b) and (c), P.P.C. For the purpose of removing the confusion and

misconception of law on the subject the above provision must be understood in the true

spirit. Section 306, P.P.C. provides that Qatl-i-Amd shall not be liable to Qisas in

certain cases mentioned therein and thus it is clear that in such cases the punishment

of Qisas will remain inoperative but there is no such exception in a case of Qatl-i-Amd

punishable as Ta’zir. Under section 307, P.P.C. the sentence of Qisas for Qatl-i-Amd

cannot be enforced in the cases referred therein and therefore, the exceptions

mentioned in sections 306 and 307, P.P.C. are confined only to the cases liable to Qisas

and not Ta’zir. Under section 308, P.P.C. it is provided that where an offender guilty

of Qatl-i-Amd is not liable to Qisas in terms of section 306, P.P.C., the sentence of

Qisas will not be enforced against him as provided under section 307, P. P. C., and he

shall be liable to Diyat and may also be punished with imprisonment which may extend

to a term of 14 years as Ta’zir. The above provision of law can be made applicable only

if the essential conditions contained therein are available in a case which is liable to

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 Qisas, and not in the cases of Qatl-i-Amd punishable as Ta’zir. The petitioner was tried

for the charge of Qatl-i-Amd under section 302(b), P.P.C. and was convicted and

sentenced to death as Ta’zir, therefore, he would not be entitled to the benefit of section

308, P.P.C. and was rightly punished under section 302(b), P.P.C. It is not permissible

to extend the benefit of provisions of section 308, P.P.C. in the cases of Qatl-i-Amd

which are punishable under section 302(b) and (c), P.P.C. as Ta’zir and therefore, the

extension of such benefit to cases falling under section 302(a) and 302(c), P.P.C. would

amount to grant the license of killing of innocent persons by their Walies.

6. The second contention of the leaned counsel for the petitioner for the lesser

punishment was that accused probably acted under sudden provocation without any

premeditation therefore, the capital punishment would not be justified. We having

carefully examined the record have not been able to locate any direct or circumstantial

evidence to suggest that the accused acted under sudden provocation. The possibility

of exchange of dialogues between the deceased and accused as husband and wife on

family affairs would not permit the petitioner to take such a cruel step of committing

murder of his wife and further petitioner has not taken any 'such plea in his defence.

The petitioner for a very petty dispute committed murder of deceased of innocent and

helpless lady in a brutal manner, therefore, he would not deserve any leniency in the

matter of sentence.

The above cited paragraphs clearly explain the scheme of law regarding the Section 302(b) of

PPC, and in view of these above paragraphs the Prosecution argues that the punishment of

death as Ta’zir awarded by the learned Trial Court and subsequently maintained by the Lahore

High Court are appropriate.

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 PRAYER

1. In light of the facts stated, arguments advanced and authorities cited, the Respondents

respectfully submits before the Honorable Court that the Ta’zir punishment of death

awarded to Ahmad under section 302(b) of PPC is appropriate and must be subject to no

leniency pertaining to the circumstances of the case.

2. The Prosecution also submits that the punishment of death as Ta’zir awarded by the learned

Trial Court and subsequently maintained by the Lahore High Court are appropriate and

must be maintained.

3. The Prosecution further submits that since this case is an appeal where the punishment is

not arising from sections 306 till 308, there is no legal mandate to determine any of the

sections as being in violation of the Quran and Sunnah.

4. The Prosecution also submits that Ahmed is rightly punished to death as Ta’zir under

section 302(b) of the PPC and the punishment should be maintained.

5. Also pass any order that the Honorable Court may deem fit to prevail equity, justice and

the rule of law.

RESPECTFULLY SUBMITTED,

COUNSEL(s) FOR THE STATE

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