IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Ejaz Afzal Khan 
Mr. Justice Ijaz Ahmed Chaudhry 
Mr. Justice Dost Muhammad Khan 
Mr. Justice Qazi Faez Isa 
 
 
Criminal Appeal No. 126 of 2012 
(Against the judgment dated 23.11.2011 passed by the Islamabad High Court, 
Islamabad in Criminal Appeal No. 30 of 2004, Criminal Revision No. 19 of 2004 
and Murder Reference No. 54 of 2005) 
 
Zahid Rehman                                                        … Appellant 
versus 
The State                                                             … Respondent 
 
 
Criminal Petition No. 568 of 2011 
(Against the judgment dated 23.11.2011 passed by the Islamabad High Court, 
Islamabad in Criminal Revision No. 19 of 2004) 
 
Sheerin Zafar                                                          … Petitioner 
versus 
Zahid-ur-Rehman, etc.                                        … Respondents 
 
 
 
 
Criminal Appeal No. 80 of 2001 
(Against the judgment dated 20.04.2000 passed by the Lahore High Court, 
Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 95 of 1994) 
 
Amir Khan                                                              … Appellant 
versus 
Muhammad Aslam, etc.                                      … Respondents 
 
 
For the appellants: 
Kh. Haris Ahmed, ASC  
(in Cr.A. 126 of 2012) 
Hafiz Hifz-ur-Rehman, ASC 
(in Cr.A. 80 of 2001) 
 
For the petitioner:  
 
Nemo. (in Cr.P. 568 of 2011) 
 
For respondent No. 1: 
 
Kh. Haris Ahmed, ASC 
  
 
 
 
 
(in Cr.P. 568 of 2011) 
 
 
 
 
 
Malik Muhammad Kabir, ASC 
(in Cr.A. 80 of 2001) 
 
 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
2 
For the State: 
Mr. Ahmed Raza Gillani, Additional 
Prosecutor-General, Punjab 
 
(in Cr.P. 568 of 2011 & Cr.A. 80 of 
2001) 
 
Nemo. (in Cr.A. 126 of 2012)  
 
Dates of hearing:  
 
14.10.2014 & 15.10.2014 
 
 
JUDGMENT 
 
Asif Saeed Khan Khosa, J.: The law regarding Qisas in 
cases of murder and bodily hurt had been introduced in the 
criminal jurisprudence of this country about a quarter of a century 
ago but unfortunately the distinction between Qisas and Ta’zir and 
applicability of the two concepts to different kinds of cases has 
confused our courts ever since with the result that even this Court 
has rendered conflicting judgments in that respect. One of the 
reasons why leave to appeal had been granted in the case of Zahid 
Rehman convict-appellant was that an authoritative judgment may 
be rendered by this Court removing the prevalent confusion in this 
important field of criminal law and conclusively setting the 
controversy at rest. While granting leave to appeal in that case the 
following order had been passed by this Court on 09.03.2012: 
 
“Criminal Petition No. 581 of 2011  
 
It has inter alia been contended by the learned counsel for 
the petitioner that the case in hand was a case of circumstantial 
evidence only as no eye-witness of the alleged occurrence had 
been produced by the prosecution. The learned counsel for the 
petitioner has maintained that links in the chain of the 
circumstantial evidence were broken at many places and, thus, it 
could not be said that the prosecution had succeeded in proving 
its case against the petitioner beyond reasonable doubt. He has 
also argued that the motive set up by the prosecution had been 
discarded by both the learned courts below, the extra-judicial 
confession allegedly made by the petitioner was not only a weak 
piece of evidence but the same had not been sufficiently proved 
before the learned trial court and the gun and the crime-empties 
had been recovered and sent together diminishing, if not 
eliminating, the evidentiary value of such recoveries. On the legal 
plane it has been argued by the learned counsel for the petitioner 
that even if the case of the prosecution against the petitioner was 
accepted as correct on the factual side still it was a case 
attracting the provisions of section 306(b) and (c), P.P.C. and not 
a case attracting section 302(b), P.P.C. It has been maintained by 
the learned counsel for the petitioner that in this case attracting 
the provisions of section 306(b) and (c), P.P.C. the sentence of the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
3 
petitioner could have been recorded under section 308, P.P.C. 
which carried a maximum sentence of 14 years' imprisonment at 
the time of the alleged occurrence. In this context the learned 
counsel for the petitioner has pointed out that this Court has 
expressed different opinions in respect of the above mentioned 
legal issue from time to time and the said issue requires a 
detailed examination by a Larger Bench of this Court. In this 
regard the learned counsel for the petitioner has referred to the 
cases of Naseer Ahmed v. The State (PLD 2000 SC 813), Dil Bagh 
Hussain v. The State (2001 CMR 232), Muhammad Abdullah 
Khan v. The State (2001 SCMR 1775), Amanat Ali v. Nazim Ali 
and another (2003 SCMR 608), Muhammad Ilyas v. The State 
(2008 SCMR 396) and Khalid Mehmood v. The State (2011 SCMR 
1110) wherein it had been held that in a case like the one in hand 
an accused person found guilty is to be convicted under section 
306, P.P.C. and is to be punished under section 308, P.P.C. He 
has also referred to the cases of Faqir Ullah v. Khalil-uz-Zaman 
and others (1999 SCMR 2203), Muhammad Afzal alias Seema v. 
The State (1999 SCMR 2652), Umar Hayat v. Jahangir and 
another (2002 SCMR 629), Muhammad Akram v. The State (2003 
SCMR 855), Ghulam Murtaza v. The State (2004 SCMR 4), Nasir 
Mehmood and another v. The State (2006 SCMR 204), Abdul 
Jabbar v. The State and others (2007 SCMR 1496), Iftikhar-ul-
Hassan v. Israr Bashir and another (PLD 2007 SC 111) and 
Tauqeer Ahmad Khan v. Zaheer Ahmad and others (2009 SCMR 
420) wherein this Court had categorically held that the provisions 
of sections 306 and 308, P.P.C. stand attracted to a case of Qisas 
only and they do not apply to a case of Ta'zir. Such divergence of 
opinion expressed by this Court in the above mentioned 
precedent cases requires an authoritative pronouncement by a 
Larger Bench of this Court to settle the legal controversy at rest. 
  
2. 
For what has been noted above this petition is allowed and 
leave to appeal is granted to consider the factual and legal 
aspects of this case highlighted by the learned counsel for the 
petitioner. The Hon'ble Chief Justice may graciously consider 
constitution of a Larger Bench of this Court to determine the 
issues involved in the case, if so advised. 
  
Criminal Petition No. 568 of 2011  
  
3. 
Through this petition the petitioner-complainant seeks 
enhancement of the amount of compensation ordered by the 
learned trial Court to be paid by respondent No. 1. Let this 
petition be heard along with the appeal of the convict/respondent 
No. 1.” 
 
(reported as Sheerin Zafar and another v. Zahid Rehman and 
others (2012 SCMR 728))  
 
The titled Criminal Appeal No. 126 of 2012 has arisen out of the 
above mentioned Criminal Petition No. 581 of 2011 and the 
connected Criminal Petition No. 568 of 2011 had been ordered to 
be heard along with the appeal arising out of Criminal Petition No. 
581 of 2011. The titled Criminal Appeal No. 80 of 2001 has 
stemmed from Criminal Petition No. 143 of 2000 in which leave to 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
4 
appeal had been granted by this Court on 31.01.2001 in the 
following terms: 
 
“ --------------------- We have heard the learned counsel at length 
and perused the file. Contentions of the learned counsel are that 
if a person in his statement under Section 342 Cr.P.C. claims his 
age to be less than 18 years and at that stage produces school 
leaving certificate should that be relied upon as conclusive proof 
when the prosecution has not been given the chance to rebut the 
same and should the scribe of such certificate be not produced 
for cross-examination? According to the learned counsel Section 
308 PPC is applicable only to cases which are to be dealt with 
Section 302(a) PPC i.e. Qatl-e-Amad. In the instant case the 
conviction was recorded under Section 302(b) PPC, which is Tazir, 
therefore, 308 PPC would not be applicable to such like cases.  
 
 
Points raised by learned counsel need examination, 
therefore, we grant leave to appeal to reappraise the evidence and 
to consider the points noted above. Let bailable warrant of arrest 
in the sum of Rs. 1,00,000/- with two sureties each in the like 
amount returnable to Sessions Judge, Attock, be issued against 
Muhammad Aslam, respondent No. 1.”  
 
On 12.06.2013 Criminal Appeal No. 80 of 2001 was ordered to be 
heard alongwith Criminal Appeal No. 126 of 2012 as the issue 
involved in the said appeal was also as to whether in a case of 
Ta’zir an accused person can be convicted and sentenced under 
section 308, PPC or not.  
 
2. 
In view of the legal controversy involved in these matters we 
have decided to resolve the legal issue first and then to leave the 
present appeals and the connected petition to be decided by 
appropriate Benches of this Court on the basis of their respective 
merits in the light of the legal position declared through the 
present judgment. 
 
3. 
Assisting the Court on the legal issue involved Kh. Haris 
Ahmed, ASC appearing for the appellant in Criminal Appeal No. 
126 of 2012 has taken us through different provisions of the 
Pakistan Penal Code, 1860 (hereinafter referred to as PPC) and has 
also referred to a large number of precedent cases to which 
reference shall be made in the later part of this judgment. His 
main arguments have been that Qisas and Ta’zir are different 
kinds of punishments provided for an offence of Qatl-i-amd 
(intentional murder); the punishments for such murder prescribed 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
5 
in section 302, PPC are “subject to the provisions of this Chapter” 
(Chapter XVI of PPC); the provisions of sections 306 and 307, PPC 
are independent provisions falling in the same Chapter and the 
same are not controlled or regulated by the provisions of section 
302, PPC and, thus, the punishments provided in section 308, PPC 
are not to be looked at through the prism of section 302, PPC; and 
such punishments can be awarded in an appropriate case 
irrespective of the fact whether the relevant case is a case of Qisas 
or of Ta’zir. The central theme of his submissions is that section 
306, PPC constitutes a distinct offence and the same entails 
different punishments under section 308, PPC and, therefore, in a 
case attracting the provisions of section 306, PPC there is hardly 
any relevance of sections 302 or 304, PPC. As against that Hafiz 
Hifz-ur-Rehman, ASC appearing for the appellant in Criminal 
Appeal No. 80 of 2001 has maintained that for attracting the 
provisions of sections 306, 307 and 308, PPC a case has to be a 
case of Qisas and that the said provisions have no relevance to a 
case of Ta’zir. According to him a case of intentional murder 
wherein proof in either of the forms specified in section 304, PPC is 
not produced or is not available has to be treated as a case of 
Ta’zir entailing the punishments of death or imprisonment for life 
as mandated by the provisions of section 302(b), PPC. Malik 
Muhammad Kabir, ASC representing respondent No. 1 in Criminal 
Appeal No. 80 of 2001 has adopted and supported the above noted 
arguments advanced by Kh. Haris Ahmed, ASC whereas Mr. 
Ahmed Raza Gillani, Additional Prosecutor-General, Punjab 
appearing for the State has argued on the same lines as has been 
done by Hafiz Hifz-ur-Rehman, ASC. 
 
4. 
After hearing the learned counsel for the parties and 
attending to the legal provisions and the precedent cases cited by 
them in support of their respective contentions I may observe at 
the outset that, putting it in its broadest terms, Qisas in Islamic 
terms is Almighty Allah‟s law dealing with the offences of murder 
and bodily hurt and Ta’zir is the manmade law for such offences 
and the standards of proof and the punishments provided therefor 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
6 
are by and large different. It is generally understood that the two 
concepts are mutually exclusive and they represent separate legal 
regimes. Since the year 1990 the concepts of Qisas and Ta’zir have 
coexisted in our criminal jurisprudence and for the purposes of the 
present cases the following provisions of the Pakistan Penal Code 
are relevant:    
 
Section 299. Definitions.- In this Chapter, unless there is 
anything repugnant in the subject or context,- 
--------------------- 
(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 and 
in exercise of the right of the victim or a wali; 
(l) 
"ta'zir" means punishment other than qisas, diyat, arsh or 
daman; ------- 
Section 302. Punishment of qatl-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 where 
according to the Injunctions of Islam the punishment of 
qisas is not applicable:  
 
Provided that nothing in this clause shall apply to the 
offence of 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 
clause (b), as the case may be. 
Section 304. Proof of qatl-i-amd liable to qisas, etc.-- (1) Proof 
of qatl-i-amd shall be in any of the following forms, namely:- 
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). 
(2) 
The provisions of sub-section (1) shall, mutatis mutandis, 
apply to a hurt liable to qisas. 
Section 305. Wali.- 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. 
Section 306. Qatl-i-amd not liable to qisas. -- Qatl-i-amd shall 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
7 
not be liable to qisas in the following cases, namely:- 
a) 
when an offender is a minor or insane: 
 
Provided that, where a person liable to qisas 
associates with himself in the commission of the offence a 
person not liable to qisas with the intention of saving 
himself from qisas, he shall not be exempted from qisas; 
 
(b) 
when an offender causes death of his child or 
grandchild, how low-so-ever; and 
 
(c) 
when any wali of the victim is a direct descendant, 
how low-so-ever, of the offender. 
Section 307. Cases in which qisas for qatl-i-amd shall not be 
enforced.- (1) Qisas for qatl-i-amd shall not be enforced in the 
following cases namely:- 
a) 
when the offender dies before the enforcement of 
qisas; 
b) 
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 
c) 
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. 
(2) 
To satisfy itself that the wali has waived the right of qisas 
under section 309 or compounded the right of qisas under section 
310 voluntarily and without duress the Court shall take down 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 or, as the case may be, the composition was voluntary 
and not the result of any duress. 
 
Illustrations 
 
(i) 
A kills Z, the maternal uncle of his son B. Z has no other 
wali except D the wife of A. D has the right of qisas from A. 
But if D dies, the right of qisas shall devolve on her son B 
who is also the son of the offender A. B cannot claim qisas 
against his father. Therefore, the qisas cannot be enforced. 
 
(ii) 
B kills Z, the brother of her husband A. Z has no heir 
except A. Here A can claim qisas from his wife B. But if A 
dies, the right of qisas shall devolve on his son D who is 
also son of B, the qisas cannot be enforced against B. 
Section 308. Punishment in qatl-i-amd not liable to qisas, 
etc. -- (1) 
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: 
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: 
Provided further that where at the time of committing qatl-
i-amd the offender being a minor, had attained sufficient maturity 
or 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. 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
8 
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. 
 
(2) 
Notwithstanding anything contained in sub-section (1), 
the Court having regard to the facts and circumstances of the 
case in addition to the punishment of diyat, may punish the 
offender with imprisonment of either description for a term which 
may extend to twenty-five years as ta'zir. 
 
Section 311. Ta'zir after waiver or compounding of right of 
qisas in qatl-i-amd:-- Notwithstanding anything contained in 
section 309 or section 310 where all the walis do not waive or 
compound the right of qisas, or if the principle of fasad-fil-arz is 
attracted the Court may, having regard to the facts and 
circumstances of the case, punish an offender against whom the 
right of qisas has been waived or compounded with death or 
imprisonment for life or imprisonment of either description for a 
term which may extend to fourteen years as ta'zir:  
Provided that if the offence has been committed in the 
name or on the pretext of honour, the imprisonment shall not be 
less than ten years. 
Explanation.- For the purpose of this section, the 
expression fasad-fil-arz shall include the past conduct of the 
offender, or whether he has any previous convictions, 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 
honour. 
 
5. 
The provisions of section 299, PPC clearly show that in the 
context of a Qatl-i-amd (intentional murder) Qisas and Ta’zir are 
simply two different kinds of punishments for such offence and 
that they are different from conviction for the said offence. As is 
evident from the provisions of section 304, PPC a conviction for an 
intentional murder can entail the punishment of Qisas only if the 
accused person makes before a court competent to try the offence 
a voluntary and true confession of commission of 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 and this was also so declared by this Court 
in the case of Abdus Salam v. The State (2000 SCMR 338). The 
cases of intentional murder other than those fulfilling the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
9 
requirements of section 304, PPC are cases entailing the 
punishment of Ta’zir, as provided in and declared by section 
302(b), PPC, and the provisions relating to the punishment of 
Qisas are to have no application or relevance to the same. The 
relevant statutory provisions reproduced above make it abundantly 
clear to me that in all cases of conviction for the offence of 
intentional murder the question as to whether the convict is to be 
punished with Qisas or with Ta’zir is dependant upon the fact 
whether the conviction is brought about on the basis of proof in 
either of the forms mentioned in section 304, PPC or not. If the 
conviction is based upon proof as required by section 304, PPC 
then the sentencing regime applicable to such convict is to be that 
of Qisas but if the conviction is based upon proof other than that 
required by section 304, PPC then the sentencing regime relevant 
to such convict is to be that of Ta’zir. It is only after determining 
that the sentencing regime of Qisas is applicable to the case of a 
convict that a further consideration may become relevant as to 
whether such convict is to be punished with Qisas under the 
general provisions of section 302(a), PPC or his case attracts the 
exceptions to section 302(a) in the shape of sections 306 or 307, 
PPC in which cases punishments different from that under section 
302(a), PPC are provided. I have entertained no manner of doubt 
that the general provision regarding an intentional murder being 
punishable through Qisas is section 302(a), PPC carrying only the 
punishment of death but section 302, PPC is subject to the other 
relevant provisions of Chapter XVI of the Pakistan Penal Code 
which provide punishments different from that of death for certain 
special classes of murderers mentioned therein despite their cases 
otherwise attracting a punishment of Qisas. Sections 306, 307 and 
308, PPC belong to such category of cases which cases are 
exceptions to the general provisions of section 302(a), PPC but 
nonetheless all such cases are to be initially proved as cases 
entailing a punishment of Qisas which punishment is then to be 
withheld because the offender belongs to a special class for which 
an exception is created in the matter of his punishment. A plain 
reading of the provisions of sections 306 and 307, PPC shows, and 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
10 
shows quite unmistakably, that the cases covered by those 
provisions are primarily cases of Qisas but because of certain 
considerations the punishment of Qisas is not liable or enforceable 
in those cases. It goes without saying that before considering the 
question of his punishment in such a case a convict must have 
incurred the liability or enforceability of the punishment of Qisas 
against him which punishment is to be withheld from him in view 
of the considerations mentioned in sections 306 and 307, PPC and 
that is why some alternate punishments for such offenders are 
provided for in section 308, PPC. In other words a conviction for an 
offence entailing the punishment of Qisas must precede a 
punishment under section 308, PPC and such conviction can only 
be recorded if proof in either of the forms mentioned in section 
304, PPC is available before the trial court and not otherwise. The 
provisions of section 311, PPC provide another example in this 
context showing how in a case otherwise entailing a punishment of 
Qisas the offender may be handed down a punishment of Ta’zir 
and the said section also falls in Chapter XVI of the Pakistan Penal 
Code specifying an exception to the general provisions of section 
302(a), PPC. It, thus, ought not to require much straining of mind 
to appreciate that the provisions of and the punishments provided 
in section 308, PPC are relevant only to cases of Qisas and that 
they have no relevance to cases of Ta’zir as in the latter category of 
cases a totally different legal regime of proofs and punishments is 
applicable.  
 
6. 
I have not found Kh. Haris Ahmed, ASC to be justified in 
maintaining that section 306, PPC constitutes a distinct offence 
and the same entails different punishments under section 308, 
PPC and, therefore, in a case attracting the provisions of section 
306, PPC there is hardly any relevance of sections 302 or 304, 
PPC. The general scheme of the Pakistan Penal Code shows that a 
section constituting a distinct offence specifies and contains the 
essential ingredients of such offence and thereafter either the same 
section or some following section prescribes the punishment for 
such offence. A bare look at section 306, PPC, however, shows that 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
11 
no constituting ingredient of any offence is mentioned therein and 
the same only provides that the punishment of Qisas shall not be 
liable in cases of certain classes of murderers specified therein. 
According to my understanding that section provides an exception 
to the general provision regarding liability to the punishment of 
Qisas contained in section 302(a), PPC and for such an exceptional 
case a set of different concessional punishments is provided in 
section 308, PPC. A section dealing only with the issue of a 
punishment cannot be accepted as a section constituting a distinct 
offence nor can a section catering for a concession in the matter of 
a punishment be allowed to be treated as a provision altering the 
basis or foundation of a conviction. Any latitude or concession in 
the matter of punishments contemplated by the provisions of 
sections 306, 307 and 308, PPC and extended to certain special 
categories of offenders in cases of Qisas 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. This is the fine point of distinction which needs to 
be understood with clarity if the distinction between the provisions 
of section 302(b), PPC on the one hand and the provisions of 
sections 306, 307 and 308, PPC on the other is to be correctly 
grasped. The discussion about the relevant case-law to follow will 
highlight as to how blurring of vision regarding this fine distinction 
had in the past led to incorrect and confused interpretations and 
results. 
 
7. 
The first category of the relevant precedent cases is that 
wherein all the convicts falling in different categories of persons 
mentioned in sections 306 and 307, PPC were held to be 
punishable only under section 308, PPC without even considering 
whether the cases in issue were cases of Qisas or of Ta’zir. As a 
matter of fact the first reported case dealing with sections 306, 307 
and 308, PPC was itself the case which sowed the seeds of all the 
monumental confusion which was to follow and that was the case 
of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others 
(PLD 1994 SC 885) decided by a 2-member Bench of this Court. It 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
12 
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 strong 
expressions in the judgment this Court had castigated the learned 
court below for not appreciating that such a case did not attract 
the provisions of section 302, PPC and that the only provisions 
relevant to such a case were those of sections 306 and 308, PPC. 
The said judgment was, however, reviewed and reversed by a 5-
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), PPC were restored. It was clearly held that the case 
was not a case of Qisas and, therefore, the punishment mentioned 
in section 308, PPC was not attracted or applicable to the case. 
 
8. 
The case of Muhammad Iqbal v. The State (1999 SCMR 403) 
decided by a 3-member Bench of this Court was a case of a killer of 
his wife having a living minor child from the matrimony. It was 
held in that case that the case of such a convict attracted the 
provisions of section 308, PPC and for reaching that conclusion a 
reference was made to the case of Khalil-uz-Zaman (supra) the 
judgment wherein had been reviewed and reversed in case of Faqir 
Ullah (supra) by a 5-member Bench of this Court. 
 
9. 
In the case of Sarfraz alias Sappi and 2 others v. The State 
(2000 SCMR 1758) a 3-member Bench of this Court had held that 
a convict of murder who was minor could be punished only under 
section 308, PPC but in that case also the judgment handed down 
earlier on by a 5-member Bench of this Court in the case of Faqir 
Ullah (supra) was not adverted to. 
 
10. 
The next case in this category of the precedent cases was the 
case of Naseer Ahmed v. The State (PLD 2000 SC 813) decided by a 
3-member Bench of this Court. In that case no discussion was 
made at all about the case being one of Qisas or of Ta’zir and it 
was held as a matter of course that the case of a minor convict of 
murder attracted the provisions of section 308, PPC. The earlier 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
13 
judgment rendered by a 5-member Bench of this Court in the case 
of Faqir Ullah (supra) had, obviously, escaped notice.    
 
11. 
The case next in line was that of Dil Bagh Hussain v. The 
State (2001 SCMR 232) decided by a 3-member Bench of this 
Court. That was the case of a person who had killed his son-in-law 
who was survived by the killer‟s daughter and her son who were 
wali of the deceased as well as of the killer. For holding that such a 
case attracted sections 306 and 308, PPC and not section 302, PPC 
this Court had relied upon the case of Khalil-uz-Zaman (supra) 
without even noticing that the judgment in the said case had 
already been reviewed and reversed by a 5-member Bench of this 
Court in the case of Faqir Ullah (supra).   
 
12. 
The case to follow was that of Muhammad Abdullah Khan v. 
The State (2001 SCMR 1775) decided by a 3-member Bench of this 
Court and that case was also a case of a killer of his wife having a 
living minor child from the wedlock. In that case too applicability of 
sections 306 and 308, PPC to the case was taken for granted 
without any discussion while placing exclusive reliance upon the 
case of Khalil-uz-Zaman (supra) without having been apprised of 
the fact that the judgment in the said case had already been 
reviewed and reversed by a 5-member Bench of this Court in the 
case of Faqir Ullah (supra).    
 
13. 
The next case was that of Amanat Ali v. Nazim Ali and 
another (2003 SCMR 608) decided by a 3-member Bench of this 
Court wherein no discussion was made regarding the case being 
one of Qisas or of Ta’zir and it was declared as a matter of course 
that the case of a minor convict of murder attracted the provisions 
of section 308, PPC and not those of section 302(b), PPC. 
Obviously, the judgment handed down by a 5-member Bench of 
this Court in the case of Faqir Ullah (supra) was not brought to the 
notice of the Court on that occasion.   
 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
14 
14. 
The last of this category of cases was the case of Muhammad 
Ilyas v. The State (2008 SCMR 396) decided by a 3-member Bench 
of this Court. Alas, in that case too no discussion was made in 
respect of the case being one of Qisas or of Ta’zir and it was taken 
for granted and declared as a matter of course that the case of a 
murderer of his minor daughter attracted the provisions of section 
308, PPC and not those of section 302(b), PPC. Once again, and 
unfortunately so, the judgment handed down by a 5-member 
Bench of this Court in the case of Faqir Ullah (supra) was not even 
adverted to or brought under consideration before reaching the 
decision that was reached. 
 
15. 
The second category of the relevant precedent cases is that 
wherein it had categorically been concluded and held by this Court 
that the provisions of sections 306, 307 and 308, PPC are attracted 
only to cases of Qisas and that the said provisions have no 
relevance to a case of Ta’zir. The first case of this category of cases 
was the case of Muddassar alias Jimmi v. The State (1996 SCMR 3) 
wherein a 2-member Bench of this Court had observed as follows: 
 
“31. 
Ostensibly section 304, P.P.C. plays pivotal role in 
determining fate of persons found guilty for murder “Qatl-i-Amd” 
under section 302, P.P.C.:-- 
 
(i) 
in cases where evidence as envisaged under section 304 
P.P.C. is proved an accused shall be punished for offence under 
section 302, part (a) and sentenced to Qisas. 
 
(ii)  
In case where evidence as required under section 304, 
P.P.C. is brought on the record but sentence of Qisas cannot be 
applied because of bar imposed under section 306, P.P.C. It 
reads:-- 
--------------------- 
 
(iii) 
But where the evidence is available but does not fulfil the 
condition laid down under section 304, P.P.C. the person may be 
convicted and sentenced for Ta‟zir under section 302, part (b) to 
death or imprisonment for life.” 
 
16. 
The case to follow was the case of Faqir Ullah v. Khalil-uz-
Zaman and others (1999 SCMR 2203) mentioned above which case 
was decided by a 5-member Bench of this Court. Khalil-uz-Zaman 
convict in that case had killed his wife who was survived by a living 
minor child from the marriage and in the earlier round a 2-member 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
15 
Bench of this Court had declared that the convict‟s sentence of 
death was not warranted because his case was covered by the 
provisions of section 308, PPC and had remanded the case to the 
High Court (PLD 1994 SC 885). Subsequently Faqir Ullah 
complainant‟s review petition was accepted by a 5-member Bench 
of this Court, the judgment in the case of Khalil-uz-Zaman was 
reviewed and reversed and the conviction and sentence of Khalil-
uz-Zaman recorded by the trial court for an offence under section 
302(b), PPC were restored. It was clearly held that the case was not 
a case of Qisas and, therefore, the punishment mentioned in 
section 308, PPC was not attracted or applicable to the case. It is of 
critical importance to mention here that the numerical strength of 
the said Bench of this Court was, and still remains to be, greater 
and larger than that of any other Bench of this Court deciding all 
the other cases falling in both the above mentioned categories of 
the precedent cases on the subject under consideration. I have 
already mentioned above that in none of the cases falling in the 
first category of cases referred to above this judgment rendered by 
a 5-member Bench of this Court had been referred to or discussed 
which fact had substantially impaired the probative, persuasive or 
precedent value of the judgments delivered in those cases. 
 
17. 
The next case in this category of cases was the case of 
Muhammad Afzal alias Seema v. The State (1999 SCMR 2652) 
which had been decided by a 3-member Bench of this Court. In 
that case the convict of murder was a minor but after a discussion 
of the legal position it had been declared by this Court that the 
said case was not one of Qisas, sections 306 and 308, PPC did not 
stand attracted to a case of Ta’zir and, thus, the convict was liable 
to be convicted and sentenced under section 302(b), PPC. 
 
18. 
Thereafter in the case of Muhammad Saleem v. The State 
(2001 SCMR 536) the plea of a convict of murder regarding 
reduction of his sentence of death on the ground of his minority 
and the case against him attracting the provisions of section 308, 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
16 
PPC was rejected by a 3-member Bench of this Court by observing 
that 
 
“Moreover, even otherwise the said provisions would not apply as 
the penalty of death in this case has not been imposed as Qisas 
but has been awarded as Ta‟zir.” 
 
19. 
The case to follow was that of Umar Hayat v. Jahangir and 
another (2002 SCMR 629) and the same had been decided by a 3-
member Bench of this Court. In that case too the convict of murder 
was a minor and after discussing the provisions of section 306, 
PPC this Court had gone on to record his conviction and sentence 
under section 302(b), PPC because the case was one of Ta’zir and 
not that of Qisas.  
 
20. 
The later case of Muhammad Akram v. The State (2003 SCMR 
855) decided by a 3-member Bench of this Court was a case of a 
killer of his wife who was survived by living minor children from 
the matrimony. The issue at hand had received particular attention 
of this Court in that case and it had been observed in that regard 
as follows:  
 
“The next contention of the learned counsel for the petitioner 
related to the quantum of sentence. 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 section 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 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 
Tazir. 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 Tazir. 
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 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
17 
and may also be punished with imprisonment which may extend 
to a term of 14 years as Tazir. 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 Qisas, and not in the 
cases of Qatl-i-Amd punishable as Tazir. 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 Tazir, 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 Tazir 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 licence of killing innocent persons by 
their Walies.” 
 
(underlining has been supplied for emphasis) 
 
21. 
In the ensuing case of Ghulam Murtaza v. The State (2004 
SCMR 4) the convict of murder was a minor and a 3-member 
Bench of this Court had not felt any hesitation in concluding that 
section 308, PPC was attracted only to a case of Qisas and not to a 
case of Ta’zir.  
 
22. 
The subsequent case of Nasir Mehmood and another v. The 
State (2006 SCMR 204) was a case of a murderer of his wife who 
had been survived by living minor children from the wedlock. A 3-
member Bench of this Court was pleased to hold that the said case 
was a case of Ta’zir and, therefore, the provisions of section 306, 
PPC had no application to such a case.  
 
23. 
An elaborate discussion regarding the issue at hand was 
later on made by a 3-member Bench of this Court in the case of 
Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) 
and an effort was made to remove any “ambiguity” or 
“misconception” in that respect. The case was of a convict of 
murder who was a minor and it had been concluded in no 
uncertain terms that sections 306, 307 and 308, PPC have no 
application in cases of Ta’zir. It was observed as follows: 
 
“6.  
The sole question for determination in the present appeal, 
relates to the scope of section 308, P.P.C. and for better 
appreciation of the proposition, we deem it proper to examine the 
relevant provisions in Chapter XVI of P.P.C., along with the 
definition of "Adult”, "Qatl-e-Amd", "Qisas" and "Tazir" to 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
18 
ascertain correct legal position regarding the application of 
sections 306 and 307, P.P.C. in respect of the punishment of 
Qisas and Tazir for Qatl-i-Amd under section 302, P.P.C. 
  
"299. (a) "Adult" means a person who has attained the 
age of eighteen years; 
--------------------- 
(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) "Tazir" means punishment other than qisas, diyat, 
arsh or daman. " 
  
Qatl-i-Amd has been defined in section 300, P.P.C. as under:- 
  
"300. Qatl-i-Amd.--whoever, with the intention of 
causing death or with the intention of causing bodily 
injury to a person, by doing an act which in the 
ordinary course of nature is likely to cause death, or 
with the knowledge that his act is so imminently 
dangerous that it must in all probability cause death, 
causes the death of such person, is said to commit 
Qatl-i-Amd." 
  
The punishment of Qatl-i-Amd liable to qisas is 
provided in section 302(a), P.P.C. whereas Tazir under section 
302(b) and (c), P.P.C. as under:-- 
  
"302. Punishment of Qatl-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 
tazir 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, 
where according to the Injunctions of Islam the 
punishment of qisas is not applicable." 
  
7.  
In sections 306 and 307, P.P.C. certain exceptions 
have been created to deal with the cases in which Qatl-i-Amd 
is not liable to qisas or the punishment of qisas is not 
enforceable. In the cases falling within the purview of sections 
306 and 307, P.P.C., the offender is liable to the punishment 
of diyat under section 308, P.P.C. and having regard to the 
facts and circumstances of the case, the Court may in 
addition to the punishment of diyat, also punish him with 
imprisonment of either description which may extend to 14 
years as tazir. Sections 306 to 308, P.P.C. provide as under:-- 
  
"306. Qatl-i-Amd not liable to qisas.--Qatl-i-Amd shall 
not be liable to qisas in the following cases, namely:-- 
  
(a) When an offender is a minor or insane: 
  
Provided that, 
where 
a 
person. 
liable to 
qisas 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
19 
associates himself in the commission of the offence with 
a person not liable to qisas with the intention of saving 
himself from qisas, he shall not be exempted from 
qisas; 
 
b) when an offender causes death of his child or 
grandchild, howlowsoever; and 
  
(c) when any wali of the victim is a direct descendant, 
howlowsoever, of the offender. 
  
307. Cases in which qisas for Qatl-i-Amd shall not be 
enforced.-- qisas for Qatl-i-Amd shall not be enforced 
in the following cases, namely:-- 
  
(a) when the offender dies before the enforcement of 
qisas; 
  
(b) 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 
  
(c) 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. 
  
308. Punishment in Qatl-i-Amd not liable to qisas, etc.-
-(1) where an offender guilty of Qatl-i-Amd is not liable 
to qisas under section 306 or the qisas is not 
enforceable under clauses (c) of section 307, he shall 
be liable to diyat: 
  
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: 
  
Provided further that, where at the time of committing 
Qatl-i-Amd the offender being minor, had attained 
sufficient maturity or 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 
fourteen years as Tazir: 
  
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 fourteen years as tazir. 
  
(2) Notwithstanding anything contained in subsection (1), 
the Court, having regard to the facts and circumstances of 
the case in addition to the punishment of diyat, may 
punish 
the 
offender 
with 
imprisonment 
of 
either 
description for a term which may extend to fourteen years, 
as tazir." 
  
Section 338-F, P.P.C. provides that in the matter of 
interpretation and application of provisions of The Chapter XVI, 
P.P.C. of the offences relating to the human body and qisas and 
diyat, the Court shall be guided by the Injunctions of Islam as 
laid down in the Holy Qur'an and Sunnah of Holy Prophet 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
20 
(p.b.u.h.). 
  
8.  
The punishment for Qatl-i-Amd as qisas in the command 
of Holy Qur'an is prescribed in section 302(a), P.P.C. whereas the 
sentence of death as tazir is provided under section 302(b) and 
combined study of the provisions of law referred above, would 
clearly show that section 308, P.P.C. has limited scope to the 
extent of cases falling within the ambit of section 306, P.P.C. and 
307, P.P.C. in which either an offender of Qatl-i-Amd is not liable 
to qisas or the punishment of qisas is not enforceable under law. 
The punishment of qisas is different to the punishment of tazir 
and the two kinds of punishments cannot be mixed together for 
the purpose of sections 306 and 307, P.P.C. to attract the 
provisions of section 308, P.P.C. The punishment of death for 
Qatl-i-Amd liable to qisas as provided under section 302(a), P.P.C. 
can only be awarded if the evidence in terms of section 304, 
P.P.C. is available and in a case of Qatl-i-Amd in which such 
evidence is not available, the Court may, having regard to the 
facts and circumstances of the case, convict an offender of Qatl-i-
Amd under section 302(b), P.P.C. and award him the sentence of 
death as tazir. In a case of Qatl-i-Amd in which the offender is 
liable to qisas but by virtue of prohibition contained in section 
306, P.P.C. he cannot be awarded punishment of death under 
section 302(a), P.P.C. as qisas or the punishment of qisas is not 
enforceable under section 307(c), P.P.C. he shall be liable to the 
punishment of diyat under section 308, P.P.C. and may also be 
awarded the punishment of imprisonment as provided therein but 
in a case in which the offender is awarded punishment under 
section 302(b), P.P.C. as tazir, the provision of section 308, P.P.C. 
cannot be pressed into service for the purpose of punishment. 
Section 304, P.P.C. provides as under:-- 
  
"304. Proof of Qatl-i-Amd liable to qisas, etc.--(1) Proof of 
Qatl-i-Amd liable to qisas shall be in any of the following 
forms, namely:-- 
  
(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). 
  
(2) The provisions of subsection (1) shall, mutatis 
mutandis, apply to hurt liable to qisas." 
  
9.  
The ambiguity regarding the application of section 308, 
P.P.C. in all cases of Qatl-i-Amd in which the offender cannot be 
awarded the punishment under section 302(a), P.P.C. is removed 
in the light of above discussion as careful examination of the 
different provisions of law referred hereinbefore, would clearly 
show that in the cases in which the offender is not liable to qisas 
for the reasons given in section 306, P.P.C. or the punishment of 
qisas cannot be enforced under section A 307(c), P.P.C. section 
308, P.P.C. is attracted but in the cases in which the punishment 
of death is awarded under section 302(b), P.P.C. as tazir this 
section is not applicable. The right of qisas means the right of 
causing similar hurt on the same part of body and in case of 
death, the offender will be done to death in the manner he 
committed death of his fellow person and thus the punishment of 
death as qisas provided under section 302(a), P.P.C. cannot be 
awarded unless the evidence in terms of section 304, P.P.C. is 
available and in a case of Qatl-i-Amd in which the punishment of 
qisas cannot be awarded, the Court may on proving charge 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
21 
against 
the 
offender, 
having 
regard 
to 
the 
facts 
and 
circumstances of the case, award him the punishment of death or 
life imprisonment as tazir under section 302(b), P.P.C. In view of 
the above distinction, a minor offender of Qatl-i-Amd may in case 
of punishment of tazir, avail the benefit of minority in the matter 
of sentence under section 302(b), P.P.C. but cannot claim the 
benefit of section 308, P.P.C. 
 
10.  
This Court in Sarfraz v. State, referred hereinbefore, has 
held that a minor accused who has committed an offence of Qatl-
i-Amd under influence of others cannot be awarded sentence of 
death as qisas under section 302(a), P.P.C. This is settled law that 
provisions of sections 306 to 308, P.P.C. attract only in the cases 
of Qatl-i-Amd 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 tazir under section.302(b),P.P.C. The difference of punishment 
for Qatl-i-Amd as qisas and tazir provided under sections 302(a) 
and 302(b), P.P.C. respectively is that in a case of qisas, Court 
has no discretion in the matter of sentence whereas in case of 
tazir Court may award either of the sentence provided under 
section 302(b), P.P.C. and exercise of this discretion in the case of 
sentence of tazir would depend upon the facts and circumstances 
of the case. There is no cavil to the proposition that an offender is 
absolved from sentence of death by way of qisas if he is minor at 
the time of occurrence but in a case in which qisas is not 
enforceable, the Court in a case of Qatl-i-Amd, keeping in view 
the circumstances of the case, may award the offender the 
punishment of death or imprisonment of life by way of tazir. The 
proposition has also been discussed in Ghulam Murtaza v. State 
2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203, 
Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. 
State 2000 SCMR 338. 
  
11.  
The careful examination of the provisions referred above, 
would clearly show that section 308, P.P.C. is attracted only in 
the cases liable to qisas in which by virtue of the provisions of 
sections 306 and 307, P.P.C., the punishment of qisas cannot be 
imposed or enforced and not in the cases in which punishment is 
awarded as tazir. In the light of law laid down by this Court in the 
judgments referred above, we are of the considered view that in 
the facts of the present case, section 308, P.P.C. is not attracted 
for the reasons firstly that respondent has not been able to bring 
on record any legal evidence to the satisfaction of the law that at 
the time of occurrence, he was minor and secondly, in absence of 
the evidence in terms of section 304, P.P.C. to bring the case 
within the ambit of section 302(a), P.P.C. for the purpose of 
punishment of qisas, the respondent was awarded sentence of 
death by the trial Court under section 302(b), P.P.C. as tazir. 
There is misconception of law that the provision of section 308, 
P.P.C. is also applicable in the cases in which punishment of 
death is awarded as tazir whereas the correct legal position is 
that this special provision is invokeable only in the cases in which 
either offender is not liable to qisas or qisas is not enforceable. 
This is against the spirit of law that in all cases of Qatl-i-Amd in 
which sentence of death is awarded either as qisas under section 
302(a) or as tazir under section 302(b), P.P.C., an offender who at 
the time of committing the offence, was less than 18 years of age 
shall be liable to the punishment provided under section 308, 
P.P.C. rather the true concept is that section 308, P.P.C. will 
operate only in the cases which fall within the ambit of sections 
306 and 307, P.P.C. in which either offender is not liable to qisas 
or Qisas is not enforceable.” 
 
(underlining has been supplied for emphasis) 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
22 
 
24. 
Thereafter came the case of Abdul Jabbar v. The State and 
others (2007 SCMR 1496) wherein a 3-member Bench of this Court 
concluded in the following terms: 
 
“13. 
A bare look at the afore-referred provision of law would 
indicate that Qatl-i-Amd is punishable with death as Qisas if the 
proof in either of the forms specified in section 304, P.P.C. is 
available. In absence of such a proof a Qatl-i-Amd can be visited 
“with punishment of death or imprisonment for life as Ta‟zir 
having regard to the facts and circumstances of the case under 
section 302(b), P.P.C.” In the instant case as admittedly the 
evidence led did not satisfy the requirement of proof as required 
in section 304, P.P.C. the case fell within the ambit of section 
302(b), P.P.C. and the respondents were liable to be „punished 
with death or imprisonment for life as Ta‟zir‟.” 
 
 
25. 
The case to follow was that of Tauqeer Ahmed Khan v. Zaheer 
Ahmad and others (2009 SCMR 420) which was also decided by a 
3-member Bench of this Court. It was again a case of a convict of 
murder who was a minor. Explaining “the true concept” it was held 
by this Court in categorical terms that the provisions of section 
308, PPC are attracted only in cases of Qisas and not in cases of 
Ta’zir. It was observed as under: 
 
“10.  
A careful examination of the different provisions of law 
would show that section 308, P.P.C. is attracted only in the cases 
liable to "Qisas" in which by virtue of the provisions of sections 
306 and 307, P.P.C., the punishment of "Qisas" cannot be 
imposed or enforced and not in the cases in which punishment is 
awarded as "Tazir". In the light of law laid down by this Court, we 
are of the view that in the facts of the present case, section 308, 
P.P.C. is not attracted as respondent has not been able to bring 
on record any legal evidence to the satisfaction of the law that at 
the time of occurrence, he was minor and liable to punish 
provided under section 308, P.P.C., rather the true concept is 
that section 308, P.P.C. will operate only in the cases which fall 
within the ambit of sections 306 and 307, P.P.C. in which either 
offender is not liable to "Qisas" is not enforceable.” 
 
(underlining has been supplied for emphasis) 
 
26. 
The next case of Samiullah and others v. Jamil Ahmed and 2 
others (PLJ 2009 SC 243) was also a case of a convict of murder 
who was a minor. After some discussion of the legal issue a 3-
member Bench of this Court concluded in that case that the 
provisions of section 308, PPC did not stand attracted to the case 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
23 
because it was a case of Ta’zir and not a case of Qisas. The 
following observations were made: 
 
“19. 
The trial Court has convicted the appellant under Section 
308 PPC. A minute study of the said section would show that it is 
attracted only in the cases liable to “Qisas” in which by virtue of 
provisions of Sections 306 & 307 PPC, the punishment of “Qisas” 
cannot be imposed or enforced and not in the cases in which 
punishment is awarded as “Ta’zir”. Reference can be made in this 
context to the cases of Ghulam Murtaza v. The State (2004 SCMR 
4) and Iftikhar-ul-Hassan v. Israr Bashir (PLD 2007 SC 111). Even 
otherwise, Section 304 PPC contemplated “proof of Qatl-i-Amd” 
liable to Qisas, which is reproduced as under:- 
 
“304. Proof of Qatl-i-Amd liable to qisas, etc.: (1) 
Proof 
of Qatl-i-Amd liable to qisas shall be in any of the 
following forms, namely:- 
 
(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). 
  
(2) 
The provisions of subsection (1) shall, mutatis 
mutandis, apply to hurt liable to qisas.” 
 
20. 
The facts of the instant case, when put to the test of “proof 
of Qatl-i-Amd liable to Qisas” as provided in the above referred 
provision of law, and the dictum laid down by this Court not 
fulfilling the required criteria for the purpose, neither the accused 
had made before the Court of competent jurisdiction a voluntary 
and true confession nor Article 17 of the “Qanun-e-Shahadat” 
Order, 1984, applied. The High Court has rightly observed that 
the appellant is not liable to conviction under Section 302(a) PPC, 
for want of application of Section 304 PPC.” 
 
27. 
The case of Ahmad Nawaz and another v. The State (2011 
SCMR 593) happens to be the last reported case of the second 
category of the precedent cases on the subject. In that case too a 
3-member Bench of this Court had unambiguously held that 
sections 306, 307 and 308, PPC have no application to cases of 
Ta’zir and while holding so reference had been made to the earlier 
judgments of this Court delivered in the cases of Iftikhar-ul-
Hassan, Ghulam Murtaza, Faqir Ullah, Muhammad Akram and 
Abdus Salam (supra).  
 
28. 
A survey of all the precedent cases available on the subject 
so far clearly shows that in the first category of cases mentioned 
above the provisions of section 308, PPC had been applied to the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
24 
cases of Ta’zir as well without seriously considering the apparent 
distinction between Qisas and Ta’zir cases and also that the 
declaration of law to the contrary made by a 5-member Bench of 
this Court in the case of Faqir Ullah v. Khalil-uz-Zaman and others 
(1999 SCMR 2203) was never adverted to in those cases. The 
survey further reveals that the 5-member Bench of this Court 
deciding the case of Faqir Ullah (supra) still remains to be the 
largest Bench of this Court deciding the legal question involved 
and, thus, on account of its numerical strength the judgment 
passed by that Bench still holds the field overshadowing, if not 
eclipsing, all the other judgments rendered on the subject by the 
other Benches of lesser numerical strength. Another highlight of 
the survey conducted above is that on a number of earlier 
occasions this Court had tried to remove the “confusion”, 
“ambiguity” and “misconception” engulfing the legal issue under 
discussion but unfortunately uncertainty and misunderstanding in 
this regard still subsists and this is why we have now been called 
upon to pronounce upon the matter.  
 
29. 
After hearing the learned counsel for the parties intently, 
examining all the relevant statutory provisions minutely and going 
through all the relevant precedent cases exhaustively I have found, 
as already observed above, that in view of the provisions of section 
304, PPC a case is one of Qisas only if the accused person makes 
before a court competent to try the offence a voluntary and true 
confession of commission of 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. I 
also find 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 the same. It is also evident to me 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 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
25 
instead some alternate punishments for such offenders are 
provided for in section 308, PPC. I, thus, feel no hesitation in 
concluding that the provisions of and the punishments provided in 
section 308, PPC are relevant only to cases of Qisas and that they 
have no relevance 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, PPC 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. Upon a careful consideration of the legal issue at 
hand I endorse the legal position already declared by this Court in 
the second category of the precedent cases referred to above as on 
the basis of my own independent assessment and appreciation I 
have also reached the same conclusions as were reached in the 
said cases. I, therefore, declare that 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.  
 
30. 
It needs to be mentioned here 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. The 
interpretation placed upon the said provisions by one Bench of this 
Court in the case of Abdul Haq v. State (PLD 1996 SC 1) was 
disagreed with by another Bench of this Court in the case of Ali 
Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) and 
later on the interpretation advanced in the case of Ali Muhammad 
(supra) was followed by this Court in the cases of Abdul Karim v. 
The State (2007 SCMR 1375) and Azmat Ullah v. The State (2014 
SCMR 1178). According to my understanding 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 and I further understand that sections 306 
and 307, PPC are person specific whereas section 302(c), PPC 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
26 
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. In the case of Ali Muhammad (supra) it had been 
declared by this Court that such situations and circumstances are 
the same which were contemplated by the Exceptions to the 
erstwhile section 300, PPC and I tend to agree with the said view. It 
had been observed by this Court in the case of Ali Muhammad that 
 
“28. 
--------------------- It seems to me, therefore, that the class 
of cases to which clause (c) of section 302 applies is different from 
the cases enumerated in section 306 and punishable under 
section 308 and that clause (c) of section 302 is not limited to 
cases enumerated in section 306 and punishable under section 
308.”     
 
Without dilating upon the scope and applicability of the provisions 
of section 302(c), PPC any further I leave the matter to be 
discussed in detail in some other appropriate case as while hearing 
the present matters this issue has cropped up only incidentally 
and I have not received adequate and proper assistance in the 
present proceedings so as to comfortably resolve the same. One 
thing may, however, be clarified here that section 302(c), PPC and 
section 338-F, PPC, both falling in Chapter XVI of the Pakistan 
Penal Code, speak of the Injunctions of Islam and it must never be 
lost sight of that by virtue of the provisions of Article 203G of the 
Constitution of the Islamic Republic of Pakistan, 1973 this Court, 
or even a High Court, has no jurisdiction to test repugnancy or 
contrariety of any existing law or legal provision to the Injunctions 
of Islam as laid down in the Holy Qur‟an and Sunnah and such 
jurisdiction vests exclusively in the Federal Shariat Court and the 
Shariat Appellate Bench of this Court. It, thus, may not be 
permissible for this Court, in the context of the present set of 
cases, to compare two or more provisions falling in Chapter XVI of 
the Pakistan Penal Code for holding or declaring as to which 
provision is in accord with the Injunctions of Islam and which 
provision is not.   
     
 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
27 
31. 
There are certain other issues relevant to cases of Qisas and 
Ta’zir and I take this opportunity to clarify the legal position in 
respect of such issues as well. The matter of compromise in cases 
of murder has also remained subject of some controversy before 
this Court in the past but the legal position in that respect has 
now been settled and I would like to restate the settled legal 
position so as to remove all doubts. Sections 309, 310 and 338-E, 
PPC and section 345, Cr.P.C. are relevant in this respect and the 
same are reproduced below: 
 
309. Waiver –Afw of qisas in qatl-i-amd.- (1) 
In the case of 
qatl-i-amd an adult sane wali may, at any time and without any 
compensation, waive his right of qisas: 
 
 
Provided that the right of qisas shall not be waived-- 
 
(a) 
where the Government is the wali; or 
 
(b) 
where the right of qisas vests in a minor or insane. 
 
(2) 
Where a victim has more than one wali, any one of them 
may waive his right of qisas: 
 
 
Provided that the wali who does not waive the right of 
qisas shall be entitled to his share of diyat. 
 
(3) 
Where there are more than one victim, the waiver of the 
right of qisas by the wali of one victim shall not affect the right of 
qisas of the wali of the other victim. 
 
(4) 
Where there are more than one offenders, the waiver of the 
right of qisas against one offender shall not affect the right of 
qisas against the other offender. 
 
310. Compounding of qisas (Sulh) in qatl-i-amd.- (1) 
In the 
case of qatl-i-amd, an adult sane wali may, at any time on 
accepting badal-i-sulh, compound his right of qisas: 
 
Provided that a female shall not be given in marriage or 
otherwise in badal-i-sulh. 
 
(2) 
Where a wali is a minor or an insane, the wali of such 
minor or insane wali may compound the right of qisas on behalf 
of such minor or insane wali: 
 
Provided that the value of badal-i-sulh shall not be less 
than the value of diyat. 
 
(3) 
Where the Government is the wali, it may compound the 
right of qisas: 
 
Provided that the value of badal-i-sulh shall not be less 
than the value of diyat. 
 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
28 
(4) 
Where the badal-i-sulh is not determined or is a property 
or a right the value of which cannot be determined in terms of 
money under Shariah the right of qisas shall be deemed to have 
been compounded and the offender shall be liable to diyat. 
 
(5) 
Badal-i-sulh may be paid or given on demand or on a 
deferred date as may be agreed upon between the offender and 
the wali. 
 
Explanation.- In this section badal-i-sulh means the 
mutually agreed compensation according to Shariah to be paid or 
given by the offender to a wali in cash or in kind or in the form of 
movable or immovable property.  
 
 
338-E. Waiver or compounding of offences.- (1) Subject to the 
provisions of this Chapter and section 345 of the Code of Criminal 
Procedure, 1898, all the offences under this Chapter may be 
waived or compounded and the provisions of sections 309 and 
310 shall, mutatis mutandis, apply to the waiver or compounding 
of such offences: 
 
Provided that, where an offence has been waived or 
compounded, the Court may, in its discretion having regard to 
the facts and circumstances of the case, acquit or award ta‟zir to 
the offender according to the nature of the offence: 
 
Provided further that where an offence under this Chapter 
has been committed in the name or on the pretext of honour, 
such offence may be waived or compounded subject to such 
conditions as the Court may deem fit to impose with the consent 
of the parties having regard to the facts and circumstances of the 
case. 
 
(2) 
All questions relating to waiver or compounding of an 
offence or awarding of punishment under section 310, whether 
before or after the passing of any sentence, shall be determined 
by trial Court: 
 
Provided that where the sentence of qisas or any other 
sentence is waived or compounded during the pendency of an 
appeal, such questions may be determined by the Appellate 
Court: 
 
Provided further that where qatl-i-amd or any other 
offence under this Chapter has been committed as an honour 
crime, such offence shall not be waived or compounded without 
consent of the Court and subject to such conditions as the Court 
may deem fit having regard to the facts and circumstances of the 
case. 
 
345. 
Compounding of offences.-(1) 
--------------------- 
 
(2) 
The offences punishable under the sections of the 
Pakistan Penal Code specified in the first two columns of the table 
next following may, with the permission of the Court before which 
any prosecution for such offence is pending, be compounded by 
the persons mentioned in the third column of that table: 
 
 
Offences 
Sections of the 
Pakistan Penal 
Code 
Persons by whom offence 
may be compounded 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
29 
 
 
 
 
 
 
 
This Court has already declared that section 309, PPC pertaining 
to waiver (Afw) and section 310, PPC pertaining to compounding 
(Sulh) in cases of murder are relevant only to cases of Qisas and 
not to cases of Ta’zir and a reference in this respect may be made 
to the cases of Sh. Muhammad Aslam and another v. Shaukat Ali 
alias Shauka and others (1997 SCMR 1307), Niaz Ahmad v. The 
State (PLD 2003 SC 635) and Abdul Jabbar v. The State and others 
(2007 SCMR 1496). In the said cases it had also been clarified by 
this Court that in cases of Ta’zir the matter of compromise between 
the parties is governed and regulated by the provisions of section 
345(2), Cr.P.C. read with section 338-E, PPC. In the same cases it 
had further been explained and clarified by this Court that a 
partial compromise may be acceptable in cases of Qisas but a 
partial compromise is not acceptable in cases of Ta’zir. The cases 
of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327), 
Muhammad Saleem v. The State (PLD 2003 SC 512), Muhammad 
Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 
others (PLD 2003 SC 547), Niaz Ahmad v. The State (PLD 2003 SC 
635), Riaz Ahmad v. The State (2003 SCMR 1067), Bashir Ahmed v. 
The State and another (2004 SCMR 236) and Khan Muhammad v. 
The State (2005 SCMR 599) also throw sufficient light on such 
aspects relating to the matter of compromise. It may be true that 
compounding of an offence falling in Chapter XVI of the Pakistan 
Penal Code is permissible under some conditions both in cases of 
Qisas as well as Ta’zir but at the same time it is equally true that 
such compounding is regulated by separate and distinct provisions 
and that such limited common ground between the two does not 
obliterate the clear distinction otherwise existing between the two 
separate legal regimes.     
 
applicable 
Qatl-i-amd 
302 
By the heirs of the victims 
other than the accused or 
the convict if the offence has 
been committed by him in 
the name or on the pretext 
of karo kari, siyah kari or 
similar other customs or 
practices 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
30 
32. 
The provisions of section 311, PPC had also posed some 
difficulty in the past and had remained a subject of controversy 
before different courts of the country but that difficulty has now 
dissipated and the controversy now stands resolved by this Court. 
Section 311, PPC is reproduced below:  
 
Section 311. Ta'zir after waiver or compounding of right of 
qisas in qatl-i-amd:-- Notwithstanding anything contained in 
section 309 or section 310 where all the walis do not waive or 
compound the right of qisas, or if the principle of fasad-fil-arz is 
attracted the Court may, having regard to the facts and 
circumstances of the case, punish an offender against whom the 
right of qisas has been waived or compounded with death or 
imprisonment for life or imprisonment of either description for a 
term which may extend to fourteen years as ta'zir:  
Provided that if the offence has been committed in the 
name or on the pretext of honour, the imprisonment shall not be 
less than ten years. 
Explanation.- For the purpose of this section, the 
expression fasad-fil-arz shall include the past conduct of the 
offender, or whether he has any previous convictions, 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 
honour. 
 
In the cases of Manzoor Hussain and 4 others v. The State (1994 
SCMR 1327), Khan Muhammad v. The State (2005 SCMR 599), 
Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) 
and Iqrar Hussain and others v. The State and another (2014 SCMR 
1155) this Court has already declared that the provisions of section 
311, PPC are relevant to and can be pressed into service in cases of 
Qisas only and not in cases of Ta’zir.   
 
33. 
Having declared the correct legal position relevant to the 
cases of Qisas and Ta’zir I direct the office of this Court to fix the 
titled appeals and the connected petition for hearing before 
appropriate Benches of the Court for their decision on the basis of 
their respective merits in the light of the law declared through the 
present judgment. 
 
 
(Asif Saeed Khan Khosa) 
Judge 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
31 
 
I have gone through the exhaustive judgment authored by 
my learned brother Mr. Justice Asif Saeed Khan Khosa. I, with 
utmost respect for my brother and his view and for the reasons 
recorded separately, don‟t tend to agree therewith. 
 
 
(Ejaz Afzal Khan) 
Judge 
 
I have the privilege of going through the opinions rendered 
by my learned Brothers i.e. Hon‟ble Mr. Justice Asif Saeed Khan 
Khosa and Hon‟ble Mr. Justice Ejaz Afzal Khan. Though both are 
elaborate, but I respectfully agree with the opinion rendered by 
Hon‟ble Mr. Justice Ejaz Afzal Khan. 
 
 
(Ijaz Ahmed Chaudhry) 
Judge 
 
 
I agree with main judgment of my lord brother Mr. Justice 
Asif Saeed Khan Khosa but with my own additional reasons. 
 
 
(Dost Muhammad Khan) 
Judge 
 
 
I agree with Hon‟ble Justice Asif Saeed Khan Khosa. 
However, I have also added a separate note. 
 
 
(Qazi Faez Isa) 
Judge 
 
 
 
 
 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
32 
JUDGMENT OF THE COURT 
 
 
 
 
By a majority of three against two the opinion recorded by 
Asif Saeed Khan Khosa, J. is declared to be the judgment of the 
Court. 
 
 
Judge 
 
Judge 
 
Judge 
 
Judge 
 
Judge 
 
 
Announced in open Court at Islamabad on: 15.01.2015 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Islamabad 
15.01.2015 
Approved for reporting.  
 
Arif 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
33 
EJAZ AFZAL KHAN, J.- I have gone through the detailed 
judgment authored by my brother Mr. Justice Asif Saeed Khan 
Khosa. Though the judgment is elaborate, almost exhaustive 
on many aspects of the subject but I don’t tend to agree 
therewith because it appears to be against the letter and spirit 
of the relevant provisions of the PPC and their legislative 
scheme. My reasons in this behalf run as follows :-  
2. 
 
The word “qisas” as defined in section 299(K) PPC 
means “punishment by causing similar hurt at 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. According to Arabic English 
Lexicon compiled by Edward William Lane, the word qisas 
means “return of evil for evil”. It also means retaliation”. 
Another word, close in meaning to the word qisas is retribution 
which means a punishment inflicted in return for a wrong and 
thus distinctively stresses the operation of strict justice by 
administering merited punishment. The word “tazir” as defined 
in section 299(l) PPC means punishment other than qisas. But 
literally it means chastisement. Punishment of tazir is not 
prescribed by the Holy Quran and Sunnah. What punishment, 
in the circumstances of a case, was to be awarded, in the first 
instance lay with the discretion of the Court; with the passage 
of time exercise of such discretion was structured but at the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
34 
end of day discretion was replaced by the codified law. 
However, there are no two opinions on the point that 
punishment of tazir cannot be as stern and stringent as that of 
qisas. 
3. 
 
Section 304 PPC sets out the mode for proof of 
qatl-i-amd liable to qisas. Section 302(a) provides punishment 
for qatl-i-amd liable to qisas. Section 302(b) provides 
punishment for qatl-i-amd liable to tazir when proof in either of 
the forms specified in section 304 PPC is not available. This is 
not the end, because it is not the form of proof alone which 
takes qatl-i-amd outside the pail of qisas. Section 302 (c) PPC 
deals with qatl-i-amd where according to the injunctions of 
Islam punishment of qisas is not applicable. There is another 
class of cases where qatl-i-amd shall not be liable to qisas in 
view of the circumstances mentioned in clauses (a), (b) and 
(c) of section 306 PPC. There is yet another class of cases 
where qisas shall not be enforceable in view of the 
circumstances mentioned in clauses (a), (b) and (c) of section 
307 PPC.  
 
4. 
 
Section 308 deals with punishments falling within 
the purview of section 306 and 307 (c) PPC. In case we 
subscribe to the view that provisions contained in section 306 
and 308 PPC apply to the cases of qisas only, it is apt to give 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
35 
rise to an anomaly. The anomaly is that if sentence in qatl-i-
amd liable to qisas, despite stern and stringent forms of proof, 
can be lenient in view of the circumstances mentioned in 
section 306 and 308 PPC why can’t it be lenient in view of the 
same circumstances in the case of tazir notwithstanding the 
forms of proof and sentence provided thereunder are 
comparatively less stern and stringent. At no stage, I say so 
with utmost respect, an effort was made to resolve this 
anomaly in the light of the relevant provisions of the statute.   
 
5. 
 
Before appreciating the true import of section 306 
PPC and legislative intent behind it, a look there at would be 
necessary and useful, which reads as under :-  
 
 
“306. Qatl-i-amd not liable to qisas. _ Qatl-i-amd shall not be liable 
to qisas in the following cases, namely : 
a) 
when an offender is a minor and insane; 
 
Provided that, where a person liable to qisas associates with 
himself in the commission of the offence a person not liable to qisas 
with the intention of saving himself from qisas, he shall not be 
exempted from qisas;  
 
b) 
when an offender causes death of his child or grand child; 
how low-so-ever; and  
c) 
when any wali of the victim is a direct descendant, how low-
so-ever, of the offender.”  
 
 
This section when read in its correct perspective leaves 
little doubt that it is a continuation of section 302 PPC. Clauses 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
36 
(a), (b) and (c) of this section like clauses (b) and (c) of section 
302 PPC state the circumstances taking qatl-i-amd out of the 
pail of qisas. However, according to proviso to clause (a) of 
the section the offender shall not be exempted from qisas if 
he, with the intention to save himself from qisas, associates 
with himself in the commission of an offence a person not 
liable to qisas. Legislative intent behind the words used in 
clause (a), (b) and (c) of the section being clear and 
unambiguous, does not admit of any other interpretation. 
Restricting the application of this section to qisas only would, 
thus, amount to reading down the above mentioned clauses 
without any interpretative justification. Above all else what has 
been ignored is that qatl-i-amd committed by a minor or 
insane, father or grandfather of the child or by a direct 
descendent of the victim is not liable to qisas from day one. 
Circumstances stated in clause (a), (b) and (c) of the section 
being inherent in the offender and existent at the time of 
commission of the crime are independent of the forms of 
proof. Such case has to be dealt with independently without 
being linked with the forms of proof. It doesn’t appeal to mind 
that qatl-i-amd committed by a minor or insane, father or 
grandfather of the child or by a direct descendent of the 
victim could be punished under section 308 PPC if it is proved 
to be one of qisas. This is what was ignored in the cases of 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
37 
“Faqir Ullah. vs. Khalil-uz-Zaman and others” (1999 SCMR 
2203), “Muhammad Afzal alias Seema. Vs. The State” (1999 
SCMR 2652), “Muhammad Saleem. Vs. The State” (2001 SCMR 
536), “Umar Hayat. Vs. Jahangir and another” (2002 SCMR 
629), “Muhammad Akram. Vs. The State” (2003 SCMR 855), 
“Ghulam Murtaza. Vs. The State” (2004 SCMR 4), “Nasir 
Mehmood and another. Vs. The State” (2006 SCMR 204), 
“Iftikhar-ul-Hassan Vs. Israr Bashir and another” (PLD 2007 S.C. 
111), “Abdul Jabbar. Vs. The State and others” (2007 SCMR 
1496), “Taqueer Ahmed Khan. Vs. Zaheer Ahmed and others” 
(2009 SCMR 420), “Samiullah and others. Vs. Jamil Ahmed and 
2 others” (PLJ 2009 SC 243), “Ahmed Nawaz and another. Vs. 
The State” (2011 SCMR 593) and other judgments endorsing 
the same view.  
6. 
 
Section 
307 
PPC 
though 
also 
states 
the 
circumstances taking qatl-i-amd outside the pail of qisas, but 
they are not the ones existing at the time of commission of the 
crime. They, as a matter of fact, arise out of the events taking 
place subsequent thereto. A distinction thus has to be drawn 
between the circumstances stated in this section and those 
stated in the section preceding it. Qisas, in any event, shall not 
be enforced in the following cases :-  
 
a) 
when the offender dies before the enforcement of 
qisas;  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
38 
 
b) 
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  
c) 
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. 
 
 
Right of qisas in view of clause (a) shall not be enforced 
if the offender dies before its enforcement. Such right if waived 
or compounded under clause (b) shall be dealt with under 
section 309(2) or 310(4) respectively. Such right if devolved on 
the offender as a result of death of the wali of the victim or on 
the person who has no such right against the offender under 
clause (c) may end up in payment of diyat or punishment 
under tazir or both in view of the provision contained in section 
308 PPC.  
7. 
 
Section 308 PPC, which is also a continuation of 
sections 302, 306 and 307 elaborately deals with the cases by 
providing that where an offender guilty of qatl-i-amd is not 
liable to qisas under section 306 PPC or qisas is not 
enforceable under clause (c) of section 307 PPC he shall be 
liable to diyat. In case the offender is minor or insane, such 
diyat, according to first proviso to sub-section (1), shall be 
payable from his property or by such person as may be 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
39 
determined by the Court. But where the offender being a 
minor has attained sufficient maturity or being insane had a 
lucid interval so as to be able to realize the consequences of 
his act, he according to the second proviso to sub-section (1), 
may be punished with imprisonment of either description for a 
term which may extend to 14 years as tazir. Where qisas is not 
enforceable under clause (c) of section 307 PPC, the offender, 
according to third proviso to sub-section (1) shall be liable to 
diyat only if there is any wali other than the offender, and 
where there is no wali other than the offender, he shall be 
punished with imprisonment of either description which may 
extend to 14 years as tazir. The Court, according to subsection 
(2), having regard to the facts and circumstances of the case 
in addition to the punishment of diyat, may punish the 
offender with imprisonment of either description for a term 
which may extend to 25 years as tazir notwithstanding 
anything contained in sub-section (1) of section 308 PPC.  
8. 
 
Even waiver and compounding have been 
restricted to the cases of qisas by reading section 309 and 310 
PPC in isolation. Section 338-E, which indeed is a key provision 
in this behalf inasmuch as it determines the scope and 
amplitude of section 309 and 310 PPC has been ignored 
altogether. The result is that a piecemeal rather than holistic 
view of the relevant provisions contained in chapter XVI holds 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
40 
the field. Verbatim reproduction of Section 338-E would not 
thus be out of place, which reads as under :-  
“338-E. Waiver or compounding of offences. (1) 
Subject to the provisions of this Chapter and section 
345 of the Code of Criminal Procedure, 1898 (V of 
1898), all offences under this Chapter may be 
waived or compounded and the provisions of 
section 309 and 310 shall, mutatis mutandis, apply to 
the waiver or compounding of such offences. 
Provided that, where an offence has been 
waived or compounded, the Court may in its 
discretion 
having 
regard 
to 
the 
facts 
and 
circumstances of the case, acquit or award tazir to 
the offender according to the nature of offence. 
Provided further that where an offence under 
this Chapter has been committed in the name or on 
the pretext of honour, such offence may be waived 
or compounded subject to such conditions as the 
Court may deem fit to impose with the consent of 
the parties having regard to the facts and 
circumstances of the case. 
 
(2) 
All questions relating to waiver or 
compounding of an offence or awarding of 
punishment under section 310, whether before or 
after the passing of any sentence, shall be 
determined by trial Court. 
 
Provided that where the sentence of qisas or 
any other sentence is waived or compounded 
during the pendency of an appeal, such questions 
may be determined by the appellate Court; 
 
Provided further that where qatl-i-amd or any 
other offence under this Chapter has been 
committed as an honour crime, such offence shall 
not be waived or compounded without permission 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
41 
of the Court and subject to such conditions as the 
Court may deem fit having regard to the facts and 
circumstances of the case.” 
 
9. 
 
The above quoted provision infallibly shows that all 
offences under chapter XVI can be waived or compounded 
and the provisions of section 309 and 310 PPC shall mutatis 
mutandis apply to the waiver or compounding of such 
offences. The words “the provisions of section 309 and 310 PPC 
shall mutatis mutandis apply to the waiver or compounding of 
such offences” used in the above quoted provision not only 
dilute their rigidity but also widen their scope and extent. 
Proviso to sub-section (1) of section 338-E which unequivocally 
provides that “the Court in its discretion may, having regard to 
the circumstances of the case, acquit or award tazir to the 
offenders according to the nature of offence where it has 
been waived or compounded”, leaves no doubt about the 
scheme of the law and legislative intent behind it. These 
provisions, thus, cannot be interpreted narrowly as has been 
done in the past in some of the judgments cited in the main 
judgment. Reference to section 345 of Cr.P.C., in the provision 
quoted above by no means restricts the application of section 
306, 307 and 308 PPC to the cases of qisas only. Nor does it 
prevent a wali from waiving or compounding the offence of 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
42 
qatl-i-amd. The relevant entry relating to qatl-i-amd also 
deserves a reference which reads as under :-  
 
“(Qatl-I-amd) 
302 
By the heirs of the victim [other than 
the accused or the convict if the 
offence has been committed by 
him in the name or on the pretext of 
karo kari, siyah kari or similar other 
customs or practices]. 
 
Qatl under ikrah-i-tam 
303 
                        -do- 
 
Qatl-i-amd 
not 
liable 
to 
qisas. 
308 
                        -do- “  
 
 
 
10. 
 
It, therefore, follows that the provisions contained in 
section 306 and 308 PPC also apply to the cases going outside 
the pail of qisas, with the same force and vigor. Any leniency 
in punishment available in the cases of qisas in view of the 
circumstances mentioned in section 306 and 308 of the PPC 
cannot be denied to a person guilty of qatl-i-amd liable to 
tazir. The interpretation placed on the provisions of Chapter 
No. XVI in the cases of “Faqir Ullah. vs. Khalil-uz-Zaman and 
others”, “Muhammad Afzal alias Seema. Vs. The State”, 
“Muhammad Saleem. Vs. The State”, “Umar Hayat. Vs. 
Jahangir and another”, “Muhammad Akram. Vs. The State”, 
“Ghulam Murtaza. Vs. The State”, “Nasir Mehmood and 
another. Vs. The State”, “Iftikhar-ul-Hassan Vs. Israr Bashir and 
another”, “Abdul Jabbar. Vs. The State and others”, “Taqueer 
Ahmed Khan. Vs. Zaheer Ahmed and others”, “Samiullah and 
others. Vs. Jamil Ahmed and 2 others” and “Ahmed Nawaz 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
43 
and another. Vs. The State” (supra) does not appear to be in 
conformity with their letter and spirit, the more so when it leads 
to discrimination and even injustice, notwithstanding the 
nature of the crime committed is the same.  
11. 
 
Ratio of the judgments rendered in the cases of 
“Muhammad Iqbal. Vs. The State”  (1999 SCMR 403), “Sarfraz 
alias Sappi and 2 others. Vs. The State” (2000 SCMR 1758), 
“Naseer Ahmed. Vs. The State” (PLD 2000 SC 813), “Dil Bagh 
Hussain. Vs. The State” (2001 SCMR 232), “Muhammad 
Abdullah Khan. Vs. The State (2001 SCMR 1775), “Amanat Ali. 
Vs. Nazim Ali and another (2003 SCMR 608) and “Muhammad 
Ilyas. Vs. The State” (2008 SCMR 396) appears to be correct 
though it has not been rationalized in the light of the relevant 
provisions of the PPC.  
12. 
 
Judgment rendered by a five member bench of 
this Court in the case of “Faqir Ullah. vs. Khalil-uz-Zaman and 
others” (supra) appears to be binding on the subsequent 
benches of same or less number of Judges in view of the dicta 
laid down in the cases of “The Province of East Pakistan. Vs. Dr. 
Azizul Islam (PLD 1963 SC 296), “Multiline Associates. Vs. 
Ardeshir Cowasjee and 2 others” (PLD 1995 SC 423), 
“Muhammad Afzal alias Seema. Vs. The State” (1999 SCMR 
2652) and “Gulshan Ara. Vs. The State” (2010 SCMR 1162), but 
since it is against the letter and spirit of the provisions of 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
44 
chapter XVI of the PPC, it being per-incuriam does not have 
that binding force.  
13. 
 
The sum total of what has been discussed above is 
that Section 306, 307 and 308 PPC are equally applicable to 
the cases going outside the pail of qisas.  
Judge 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
45 
 
Dost Muhammad Khan, J.— I have carefully gone 
through the original judgment drawn by my brother Mr. 
Justice Asif Saeed Khan Khosa, the earlier Larger Bench‟s 
decision and majority decision of the 3-Members Benches 
cited therein. In view of well settled principle of law, the 
same have a binding effect and any departure therefrom is 
thus, not permissible. 
2. 
  
The provisions of Ss.299, 302, 304, 306, 307, 
308, 311, 337-P, 338-E and 338-F PPC along with other 
provisions were added to the Pakistan Penal Code in light of 
the judgment of this Court (Appellate Shariat Bench), after 
the draft bill was routed through and approved by Islamic 
Ideology Council.  
3. 
  
All these penal provisions, primarily have been 
based on the commandment of Almighty Allah given in 
different verses of the „Holy Quran‟ or the „Sunnah‟ of the 
Holy Prophet (Peace Be Upon Him). The same were 
enforced through an Ordinance, which was extended from 
time to time and finally it was made an Act of the 
Parliament (Act II, 1997) thus, it occupied a permanent 
seat in PPC as Chapter XVI.  
4. 
  
To understand and to effectively resolve the 
prevalent controversy it has become essential to follow the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
46 
universally acknowledged and accepted principle with 
regard to the construction and interpretation of Statute.  
The power of judicial review to construe and interpret 
Statute is invested in the superior courts however, there 
are some restrictions and limitations and the Judges are to 
act within the parameters universally acknowledged and 
acted upon. In this process, the Judges may enter upon in 
construing and interpreting Statute if it does not convey a 
clear meaning and the intention of the law maker. Similarly, 
Judges would strive in search of the intent of the law maker 
in case a Statute is ambiguous or it conveys two different 
meanings and the Courts would give that meaning to a 
Statute which is more reasonable and further the purpose 
and object of the enactment intended by the Parliament.  
 
In exercise of these powers, the primary and 
fundamental principle is that the Courts/Judges have to 
discover the true intention of the law maker. In case the 
Statute is plainly understandable and its meaning is 
conveniently conceivable then it cannot put a different 
meaning on a Statute nor it can stretch the same to cover 
those matters or to apply to the cases which are not 
covered by the same, either impliedly or expressly.  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
47 
5. 
  
It is the duty of the Courts to undertake the 
exercise of construction and interpretation of Statute when 
it does not convey conceivable meaning or the intention of 
the law maker is not clearly flowing therefrom so to make it 
workable and beneficial one. Again, in the course of that, 
the Courts/Judges are supposed to give true meaning to the 
Statute keeping in view the objects of the enactment, the 
law maker wanted to achieve. Undoubtedly, the scope of 
this exercise is regulated by well settled principles and in no 
manner the Courts/Judges can enter into the field of 
legislation as that process falls within the province of the 
Legislature because of the constitutional command.  
6. 
  
Of course, there is one exception to this rigid 
rule and that is when any Statute or enactment has 
encroached upon the fundamental rights of the citizens and 
comes inflict or clashing with those fundamental provisions 
of the Constitution, guaranteeing fundamental rights being 
inviolable in nature to make it in conformity with those 
fundamental rights. 
7. 
  
I have the benefit of going through the original 
judgment drawn by my brother Mr. Justice Asif Saeed Khan 
Khosa, the judgment rendered by earlier larger Bench of 
five Judges in the case of Faqir Ullah v. Khalil-uz-Zaman 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
48 
(1999 SCMR 2203) and the elaborate reasoning given in 
support of dissenting note of my brother Hon‟ble Mr. Justice 
Ejaz Afzal Khan (J.). 
8. 
  
With utmost respect to the view held by my 
brother (Mr. Justice Ejaz Afzal Khan, J.)  putting a different 
construction on the relevant provisions of the Pakistan 
Penal Code referred to above is not in conformity with the 
fundamental principle relating to construction of Statute 
rather it amounts to legislation and an attempt has been 
made to extend the scope of these provisions of penal law 
to cover the cases expressly omitted to be covered by the 
same.  
9.  
 
It is not the province of the Courts to supply the 
omissions or to repair the defect in the Statute because 
that role and authority is undeniably vested in the law 
makers. The maxim, “A Causus Omissus” can in no 
eventuality be supplied by a Court of law as that would 
amount to make laws. A Court is not entitled to read words 
into an Act of Parliament unless unavoidable circumstances 
provide a clear reason for acting in that manner. It is also 
not the domain of a Court to add to nor to take from, a 
Statute anything unless there are very strong grounds for 
holding that the Legislature intended something, which it 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
49 
has failed to express however, in the course of such 
exercise no undue inference could be drawn to that effect. 
Similarly, a Court has no power to fill up any gap in any 
Statute as doing so would amount to usurp the function and 
to 
encroach 
upon 
the 
constitutional 
power 
of 
the 
Legislature, 
whether 
the 
omission 
is 
intentional 
or 
inadvertent is not the concern of the Court and a “Causus 
Omissus” cannot be supplied by a Court of law. It is better 
to leave the same for the wisdom of the Legislature and the 
Court has to point out the defect or omission in any 
Statute. It is not the function of the Court to repair the 
blunders found in any Statute enacted by the Parliament 
rather those must be corrected by the Legislature itself. 
There is no reported decision where Court has added words 
to a Statute to fill up apparent omissions or lacunas while 
exercising such jurisdiction.  
Similarly, it is not for the Court to change the clear 
meaning of the Statue for the reason that it would cause 
hardship to the accused or would bring about inconvenient 
consequences. Such considerations are alien to the science 
of construction of Statute and even in this kind of Statute 
the meaning cannot be departed from by the Court on the 
ground of public policy because it is the exclusive business 
of the Legislature and not of the Judges to remedy the 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
50 
defects in a particular Statute. The Court is neither 
supposed nor vested with powers to subvert the true 
meaning of a Statute by putting on it more liberal 
construction to cover the cases which were never intended 
by the Legislature.  
10.   
It is also cardinal principle of law that Legislature 
cannot be attributed negligence to bring an evil because 
legislation is a delicate function and laws are enacted to 
suppress the evils and not to nurture the same. It is equally 
the duty of the Courts not to exonerate parties who plainly 
come within the scope of law enacted, on account of highly 
technical and forced construction because that would 
narrow down and exclude cases fairly falling within and 
covered by the Statute. Mere verbal nicety or forced 
construction is never to be resorted to in order to exonerate 
persons plainly coming within the scope of a Statute. True 
that Penal Statutes are to be strictly construed and in case 
of doubt in favour of the accused. In that case too, Courts 
are not authorized to interpret them in a manner to 
emasculate the same when they otherwise convey a clear 
and definite meaning. Adhering to the strict grammatical 
meanings of the words used in the Statute is a well settled 
principle of construction and has been emphasized time and 
again by the Superior Courts.   
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
51 
11.   
Keeping in view the above bedrock principle and 
cannons of interpretation of Statute, we have to see 
whether punishment by way of „Ta‟azir‟ is expressly 
included in the provisions of S.306 where „Qatl-i-Amd‟ shall 
not be liable to „Qisas‟ in the category of cases enumerated 
in the provisions of Ss.306, 307 and 308 PPC and it can 
also be enforced as provided therein and whether same 
treatment is to be given in the case of Ss. 309 and 310 PPC 
read with S.345 Cr.P.C.  
12.  
To further clarify the legal position, it is 
necessary to refer to the classification of crimes made by 
S.299, the definition clause and S.302 PPC. On combined 
reading of these two provisions in view of the new 
dispensation of justice, the crimes defined against the 
human body and the punishments provided therefor are as  
follows:- 
 
“S.299: ……. 
(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‟ and in exercise of the right of victim or a 
„Wali‟.  
(l) 
“tazir” means punishment other than qisas, diyat, arsh or 
daman. 
(b) 
“arsh” means the compensation specified in this Chapter 
to be paid by the victim or his heirs;  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
52 
(d) 
“daman” means the compensation determined by the 
Court to be paid by the offender to the victim for causing 
hurt not liable to arsh; 
(e) 
“diyat‟ means the compensation specified in section 323 
payable to the heirs of the victim.  
 
Similarly, the provision of section 302 PPC consists of 
three clauses, providing that, whoever, commits qatl-i-amd 
shall, subject to the provision 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 where 
according to the Injunction of Islam the punishment of 
qisas is not applicable.   
   
A proviso was added to clause (c) by Act-I of 2005 on 
10.1.2005.  
13.   
The provisions of Ss.306, 307, 308, 309 and 310 
in unequivocal and clear terms mention the punishment of 
“Qisas” leaving no room for „Taizir‟ punishment to be read 
or included therein by implication. Same is the position of 
Ss. 311 and 312. However, the most important one is 
clause (a) of sub-section (2) of section 313 where, in case, 
the deceased/victim has left behind no „Wali‟, then the 
Government shall have the right of „Qisas‟.  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
53 
 
 In the cases of „Qisas‟, „Diyat‟, „Arsh‟, „Daman‟ and 
Badl-e-Sulah”,  the victim or the “Wali” (legal heir of the 
deceased)  has been placed on higher pedestal vis-à-vis the 
State because of the injunctions of Islam laid down by the 
Holy Quran and Sunnah of the Holy Prophet (Peace Be upon 
Him) while the State has been relegated to the secondary 
status. However, after going through the entire scheme of 
Chapter XVI of the PPC and the criminal justice system, 
provided under the Criminal Procedure Code, the State still 
holds the overall dominating position because no victim or 
“Wali” of deceased has a right to take „Qisas‟, „Diyat‟, „Arsh‟, 
„Daman‟ or „Badl-e-Sulah‟ without due process of law as 
such right would only accrue after the accused/offender is 
booked for such crimes, investigation is carried out by the 
Investigating Agency, inquiry and trial is conducted by the 
Courts and the accused is held guilty for the offence of 
„Qisas‟, „Diyat‟, „Arsh‟, „Daman‟ etc.  
14.  
Not only the Anglo-Saxon law but the Islamic 
Injunctions also acknowledge the supremacy of the State to 
prevent crimes or to investigate into the same through its 
agencies and try the offenders for the crimes through the 
established Courts.  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
54 
 
After brief elaboration of the above legal position the 
only conclusion is that punishment by way of „Ta‟zir‟ 
exclusively rests with the State because such crimes are 
considered crimes against the society at large, while in the 
other categories of cases beside being crimes against the 
society, the victim/Wali has been given a preferential status 
excluding the State. In this way there is a marked 
distinction between the punishments for the two categories 
of crimes, one relates to the realm of the State authority 
and the other is vested in individuals who are victims of 
such crimes or Wali/legal heirs of the person killed. In case 
of Ta‟zir, if fine is imposed then it shall go to the 
government treasury, while in the case of „Diyat‟, „Arsh‟ and 
„Daman‟, it is payable to the individuals like the victim or 
the „Wali‟ (Legal heirs of the deceased).  
15.   
While drawing such distinction between two 
types of crimes and entirely different kinds of punishment 
provided therefor, would lead us to a definite conclusion 
that the one exclude the other therefore, both cannot be 
read together or can be construed a substitute for the 
other, even in cases mentioned in the provisions of Ss.306, 
307, 308, 309, 310 and 311 PPC. If the Legislature 
intended also to exonerate the accused from „Ta‟zir‟ 
punishment, in such eventualities, it would have definitely 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
55 
included „Ta‟zir‟ punishment as well with „Qisas‟ which is not 
the case in hand. Rather it is expressly confined to cases 
falling under “Qisas”. Additionally, after being exonerated 
from “Qisas” punishment, the accused is still liable to 
punishment by way of “Ta‟zir”.  
16.   
In the case of  Niaz Ahmad v. Azizuddin and 
others (PLD 1967 SC 466) this Court has held that the plain 
language of clause (b) of subsection (1) of section 45, 
Electoral College Act, 1964 do not seem to be consistent 
with such an interpretation. There was no reason for 
reading the words “marked” and “or written by the voter” 
disjunctively in this clause. These provisions relate to the 
lowest tier of democracy in the country. It was further held 
that the language used by the Legislature being different in 
the Act, from that employed in the corresponding provisions 
of the National and Provincial Assemblies (Elections) Act, 
1964, the Referendum Act and the Presidential Election Act, 
this should, if any, justify a different interpretation rather 
than an identical construction.  
 
Similarly, in the case of Brig. (Rtd.) F.B. Ali v. The 
State (PLD 1975 SC 506) it was held that language of a 
penal Statute is to be strictly construed and the question of 
carrying forward any “legal fiction” does not arise. In 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
56 
another case, a declaratory judgment given by this Court, 
on a Reference made by the President of Pakistan (PLD 
1957 SC 219), it was held that while interpreting Statute 
and provisions of Constitution, the following guidelines must 
be adhered to:- 
(i) 
Discover the intention of Legislature; 
(ii) 
The whole enactment must be considered to find the 
intention; 
(iii) 
Statute is not to be extended to meet a case for which 
a clear and distinct provision has already been made; 
(iv) 
In case of a particular and general enactment in the 
same Statue, the particular enactment must be 
operative and general enactment applies to other part;  
(v) 
Same principle applied to the interpretation of the 
Constitution as to the Statute, effect is to be given to 
the intention of the framer of the Constitution; 
(vi) 
Effect must be given to every part and every word of 
the Constitution; 
(vii) 
In 
the 
case 
of 
repugnancy 
between 
different 
provisions, the Court should harmonize them if 
possible (PLD 957 SC 219). 
 
 Similarly, 
in 
the 
case 
of 
Khizar 
Hayat 
v. 
Commissioner Sargodha Division [PLD 1965 LHR 349 (F.B)] 
it was held that the Courts cannot extend a Statute or its 
meaning to meet a case for which a provision has „clearly 
and undoubtedly‟ not been made and Court has no power to 
fill gaps in a Statute. Also in the case of Chairman Evacuee 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
57 
Trust Property v. Muhammad Din (PLD 1956 SC 331) the 
well known maximum “Expresio Unius Est Exclusio Alterius” 
was pressed into service and adopted, which means 
expressed mention of one thing in a Statute implies the 
exclusion of another. Statute limiting a thing to be done in 
a particular form necessarily excludes the negative i.e. 
things shall not be done otherwise nor any thing should be 
read in it, which has not been mentioned therein expressly. 
Similarly, in the case of E.A. Evans v. Muhammad Ashraf 
(PLD 1964 SC 536) it was held that when there is 
expressed mention of certain things, then anything not 
mentioned is deemed to have been excluded. If doing of a 
particular thing is made lawful, doing something in conflict 
of that will be unlawful. 
17.  
 If the Legislature intended so then by express 
words it would have inserted a non obstante clause in the 
provision of Ss. 306 to 311 PPC to the effect that 
“notwithstanding any thing contained in section 299 and 
302 PPC” and only in that case a different construction 
could be placed on these provisions and its scope could be 
widened to include „Ta‟zir‟ punishment with „Qisas‟ and 
„Diyat‟ etc. but once the Legislature has omitted the same 
from the above provision of law then it stands excluded for 
all purposes and intents and by no stretch of imagination 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
58 
Court is invested with powers to include in it and read in 
the said provision of law relating to cases/punishments of 
“Ta‟zir” because that would amount to legislation bringing 
amendment in the law, which is the exclusive domain and 
authority of the Legislature  
18.  
 Similarly, the provision of 338-E and F cannot 
be pressed into service to enlarge the scope of the above 
provision of law to include therein Ta‟zir cases and 
punishment therefor, because the former provision has not 
been given any overriding or superimposing effect over Ss. 
299, 302, 306 to 311 PPC, therefore, the said provisions of 
law have no nexus with the question of putting a 
construction and interpretation on the cited provisions of 
PPC to the contrary nor Ta‟zir cases and punishment could 
be read into it by implication when it has been expressly 
omitted therefrom.  
19.   
For the above stated reasons and keeping in 
view 
the 
above 
cardinal 
principle 
with 
regard 
to 
construction and interpretation of Statutes and also keeping 
in view the Islamic Injunctions the cases of Ta‟zir and the 
punishment provided therefor cannot be construed to be at 
par and to be read as integral part of the provisions in 
question, which is meant for cases exclusively for Qisas, 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
59 
Diyat, Arsh and Daman etc. called the Islamic Ta‟zirat and 
for the said reasons I am unable to subscribe to the 
dissenting view held by my brother Hon‟ble Mr. Ejaz Afzal 
Khan, rather I would agree with the reasonings and view 
held, the conclusion drawn by my brother Hon‟ble Mr. 
Justice Asif Saeed Khan Khosa (J.), who has written the 
main judgment. 
20.   
There is another strong reason in support of the 
above view that once a five members larger Bench in the 
case of Faqir Ullah (supra) has held a similar view then, this 
Bench of equal strength has no authority to override or 
annul the same rather in view of the consistent practice and 
the principle of law laid down, the proper course was to 
have suggested to Hon‟ble Chief Justice for constituting a 
larger Bench of more than five Judges. The above 
proposition is clearly laid down in the case of The Province 
of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296), The 
Province of East Pakistan and others v. Abdul Basher 
Cohwdhury and others (PLD 1966 SC 854), Multiline 
Associates v. Ardeshir Cowasjee and others(PLD 1995 SC 
423) and Sidheswar Ganguly v. State of West Bengal [1958 
SC (India) 337]  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
60 
21.   
After having the above view, at this stage, I 
deem it essential to point out to the Government to make 
suitable amendment in clause (b) of section 302 PPC 
omitting 
therefrom 
death 
sentence 
and 
only 
life 
imprisonment shall be awardable when for want of standard 
of proof as required u/s 304 PPC, the punishment of Qisas 
cannot be inflicted, then awarding death sentence is not 
desirable or justified because under the provision of section 
314 PPC procedure of execution of “Qisas‟ punishment is 
almost one and the same and is executed by a functionary 
of a government by causing death of the convict as the 
Court may direct. The only addition made is that it shall be 
executed in the presence of the “Wali” of the deceased or 
their representative. However, when they fail to present 
themselves, then it shall be executed by the State 
functionaries. We should not ignore that till date, the 
execution of death sentence is carried out in the old fashion 
and style by hanging the offender on the gallows through 
his neck till he is dead and when no specific harsh method 
has been provided for execution of „Qisas‟ like beheading 
the offender by the State functionaries or the “Wali” then 
there is no difference between the execution of one or the 
other sentence therefore, the Government is well advised to 
bring suitable amendment in clause (b) of section 302 PPC 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
61 
ordinarily providing punishment of life imprisonment unless 
the commission of the crime is attended by an element of 
terrorism, sectarian revenge or the murder is committed in 
a ruthless, cruel and brutal manner, which appear 
unconscionable and no mitigating circumstance is there to 
reduce the gravity of the crime in particular cases.  
22.   
Similarly, once the punishment of Qisas cannot 
be enforced or the offender is not liable to punishment 
under Qisas in the cases enumerated in Ss.306 to 311 PPC 
then Ta‟zir punishment shall also not be inflicted or it 
should be mild in nature and not like death or life 
imprisonment. The proper course is that the courts are 
vested with a discretion in this regard to award punishment 
by way of “Ta‟zir” but not death sentence or life R.I. barring 
the above exceptions and also compensation to the “Wali” 
of deceased or victim of hurt crime.   
The law point in all these appeals/petitions is thus, 
answered in the above terms. 
 
 
 
 
 
 
(Justice Dost Muhammad Khan) 
 
  
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
62 
QAZI FAEZ ISA, J.-  I have had the benefit of reading the 
judgments of my learned and distinguished colleagues. Justice Asif 
Saeed Khosa set out the sections from chapter XVI of the Pakistan 
Penal Code (“PPC”) which needed examination, including the 
different interpretations made by this court on these provisions 
and systematically examined the same. With lucid precision he 
analyzed the same and drew certain conclusions and I am in 
respectful agreement with him.  
 
2. 
 
My learned brother Justice Ejaz Afzal Khan, however, 
was of a different opinion that appears to be premised on an 
interpretation of qisas, with which with the greatest of respect I 
cannot bring myself to agree. I must, however, at the outset 
acknowledge 
my 
inadequacy 
to 
interpret 
Almighty 
Allah‟s 
commands with certainty and seek His protection and mercy for 
any mistake in my understanding.  My distinguished colleague 
states that the word qisas means “return of evil for evil” and also 
“retaliation” or “retribution”. However, Abdullah Yusuf Ali in his 
commentary on the 178th and 179th verses of surah Al-Baqarah, 
wherein the word qisas is mentioned writes:   
“Note first that this verse and the next make it 
clear that Islam has much mitigated the horrors 
of the pre-Islamic custom of retaliation.  In order 
to meet the strict claims of justice, equality is 
prescribed, with a strong recommendation for 
mercy and forgiveness.  To translate qisas, 
therefore, by retaliation, is I think incorrect.  The 
Latin legal term Lex Talionis may come near it, 
but even that is modified here.  In any case it is 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
63 
best to avoid technical terms for things that are 
very different. "Retaliation" in English has a 
wider meaning equivalent almost to returning 
evil for evil, and would more fitly apply to the 
blood-feuds of the Days of Ignorance.” 
  
Moreover, when we examine the said two verses (2:178 
and 179) they do not mandate stern and stringent punishments, 
but seek to inculcate forgiveness and charity in hardened hearts.  
“This is a concession and Mercy from your Lord” (2:178) and “In 
the law of qisas there is (saving of) life to you, O ye men of 
understanding; that ye may restrain yourself (2:179).”  In any case 
there is no need to translate or interpret the word qisas because 
we are only concerned with how it has been used in the PPC, i.e. a 
defined term (section 299 (k) of PPC); similarly, tazir is also 
required to be considered as used in section 299 (l) PPC.  
 
3. 
 
My learned colleague also states that, “there are no two 
opinions on the point that punishment of tazir cannot be as stern 
and stringent as that of qisas”, but the said statement is not 
referenced and I have also not been able to discover its source. I 
may however question whether a person who comes forth and 
makes a voluntary and true confession of murder (qatl-i-amd), 
thereby coming within the statutory definition of qisas, should be 
deserving of a greater punishment than the one whose crime is 
painstakingly established through other forms of evidence?   
 
4. 
 
This Bench was assembled to consider whether 
sections 306 and 308 PPC are applicable to cases of tazir.  Section 
Criminal Appeal No. 126 of 2012, 
Criminal Petition No. 568 of 2011 & 
Criminal Appeal No. 80 of 2001 
 
64 
306 attends to three different categories of cases.  The first 
category is, “when an offender is a minor or insane” (section 306 
(a) PPC), i.e. the offender does not have full mental capacity on 
account of age or state of mind.  Had this exception not been 
provided, then an offender who is a minor or insane would have to 
be sentenced to death under section 302 (a) which prescribes no 
other exception.  The second category is, “when an offender causes 
the death of his child or grandchild, how lowsoever” (section 306 
(b) PPC). And the third category is, “when any wali of the victim is 
a direct descendant, how lowsoever, of the offender” (section 306 
(c) PPC). In the second and third categories “qatl-i-amd is not liable 
to qisas” therefore it has been made liable to tazir.  However, if the 
offender is also not liable to tazir (as held by my learned brother 
Justice Ejaz Afzal Khan), then the offender would only “be liable to 
diyat” (in terms of sub-section (1) of section 308 PPC), which is 
monetary compensation (section 323 PPC), subject however to the 
stated exceptions (the second and third provisos to sub-section (1) 
of section 308 and sub-section (2) of section 308).  In Muhammad 
Akram v. The State (2003 SCMR 855) this court had held that 
such an interpretation, “would amount to grant the licence of killing 
innocent persons by their Walies.”  Therefore, this is yet another 
reason for me to agree with the opinion of my learned brother 
Justice Asif Saeed Khosa. 
 
 
 
 
 
 
 
 
 
 
JUDGE 
 
