Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Ch. SABIR HUSSAIN VS Respondent: Mirza MUSHTAQ AHMED and 3 others
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi Title: Ch. SABIR HUSSAIN vs Mirza MUSHTAQ AHMED and 3 others Case No.: Writ Petition No,1970 of 2001 Date of Judgment:2001-06-26 Reported As: 2001 YLR 2454 Result: Petition allowed
JUDGMENT
JUDGMENT ' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner, a candidate for the election of seat of Nazim Union Council Pindori, Tehsil and District Jhelum, against the acceptance of nomination papers of Mushtaq Ahmad, respondent herein, who is the opposing candidate of the petitioner, by the District Returning Officer as Appellate Authority. The petitioner and the above-named respondent filed the nomination papers for the seat of Nazim from the same Halqa and during the scrutiny of the nomination' papers, the present petitioner raised an objection to the candidature of respondent No,1 on the ground that he was not eligible for being elected or chosen as member of Union Council for the reason that he upon conviction on 15th of July, 1985, for an offence under section 302, P.P.C. Was sentenced to imprisonment for life with a fine of Rs,10,000 by the learned Sessions Judge, Jhelum, and later in appeal, his conviction under section 302, P.P.C. Was converted to under section 304, P.P.C. By the Lahore High Court, Rawalpindi Bench, Rawalpindi. ' In consequence to the compromise of the respondent with the legal heirs of the deceased, the sentence of the respondent was reduced to the period already undergone by him with the dismissal of appeal vide judgment, dated 20-5-1986. The petitioner produced a copy of the abovesaid judgment passed by the High Court in Criminal Appeal No,82 of 198-5 filed by respondent No,1 against his conviction and sentence. 2. The facts of the murder case as reproduced in Paras. Nos.3 and 4 of the judgment dated 20-5- 1986 in Criminal Appeal No,82 of 1985 are as under:-- "The prosecution case as narrated in the F.I.R. Is that the first informant, P.W.9, Mirza Mumtaz Beg, resident of Dhoke Tamma Dakhli Pindori, Tehsil and District Jhelum, was holding the office of the
---
## Page 2
Vice- Chairman, Union Council, Sultanpura.. In the election to the local body prior to the occurrence, he was elected as a Councillor or from his village. The deceased, Abdul Hayee was husband of his sister. One Subedar Fazal Ahmad was the rival candidate of Mirza Mumtaz Beg P.W.9 in the said election. Mushtaq. Ahmad appellant and his Brotheri had supported Fazal Ahmad, the rival candidate. The first informant, Mirza Mumtaz Beg had contested the election with the help of Abdul Hayee, deceased. Muhammad Ayub, father of Mushtaq Ahmad appellant had persuaded the deceased Abdul Hayee on number of times to prevail upon the complainant to withdraw from this election in favour of Subedar Fazal Ahmad but Abdul Hayee did not agree and consequently the complainant was elected. The rival candidate, Subedar Fazal Ahmad was Khaloo of Mushtaq Ahmad, appellant. On account of the election rivalry, the appellant Mushtaq and his Brotheri thus became enemy of the deceased. On the day of occurrence, Muhammad Abbasi P W.11 had informed the complainant that the appellants had injured the deceased, Abdul Hayee with Sariya and stick in the village graveyard where the deceased was lying unconscious P.W.11 Muhammad Abbas further informed the complainant P.W.9 that had he alongwith Riaz Hussain P.W.10 not reached, the appellants would have killed the deceased. On receipt of this information, the complainant, Mirza Mumtaz Beg rushed to the spot and found the deceased lying unconscious. The complainant picked up the deceased and proceeded to Police Station in wagon, when he came across Muhammad Ayaz, P.W.12, Sub-Inspector, Police Station Dina, present at Dina Chowk, who recorded the statement of the complainant and a case under section 307 read with section 34 of the Pakistan Penal Code was registered. ' On 23-10-1984 at about 3-45 p.m. Muhammad Ayaz, Sub-Inspector P.W.12 received the message, that the deceased had expired and thus the registration of the case was converted into one under section 302 read with section 34 of the Pakistan Penal Code." ' The injuries sustained by the deceased in the occurrence as traced out by the doctor in the post- mortem examination of the dead body are described in para.5 of the said judgment as under:-- (1) A lacerated wound 1/4 x 1/8 x 1/2 inch bone deep on the back of the left side of the head, 4 inch away from the left ear. (2) A swelling 3" x 3" on the right clavicular region. (3) An abrasion 1" x 1" on the back of the head in its middle. ' A depressed fracture of parietal bone was found at the vertex. There was diamond shape depression in an area of 2-1/2 inch x 1 inch. The bone underneath was broken into three pieces. One fracture line was running anteriorly. Unfortunately two fracture lines were running laterally on left and right side towards the temporal bones. The death in the opinion of the doctor was the result of injury No,1 which resulted in intracranial haemorrhage and shock was opined to be sufficient in the ordinary course of nature to cause death. 4. The conclusion of the Appellate Court in appeal contained in para.10 of the judgment was as under:-- "The story of the volley-ball match and the throwing of the stones is also unbelievable, because no evidence worth the name was brought on the record. It is now well-settled, that if an occurrence can give rise to two probable views, then the one favourable to the defence has to be adopted. It is not known as to what immediately preceded the occurrence. To my mind, it seems to be a sudden flare-up in which both the appellants, one side and the deceased alone fought with each other. Only injury No,1 on the head of the deceased proved to be fatal. In my view, the incident is unpremeditated and the offence is covered under exception 4 to section 300 of the Pakistan Penal Code. Accordingly, I would allow this appeal to the extent of converting the conviction from section 302 to section 304, Part I of the Pakistan Penal Code. I will, therefore, alter the conviction and sentence and it is, thus, hereby directed that instead of life imprisonment, the appellants shall suffer R.I. For a period of ten years each. However, the sentence of fine shall remain intact."
---
## Page 3
5. The reasons for the reduction of sentence of the respondent to already undergone were given in paras.11 and 12 of the judgment as under:-- "At this juncture, the heirs of the deceased and the relatives of the complainant have appeared in person and have stated that the parties have compromised with each other. Certain affidavits have also been placed on the record and after examination of the person concerned, I am satisfied, that the parties have sincerely buried their grievances. A serving Brigadier in the Pakistan Army has also appeared and stated that he was responsible to bring about the compromise which fact has been affirmed by the widow and the brother of the deceased. ' In this view of the matter, to bring about amity between the parties. I would hold that the sentence already undergone would be sufficient to meet the ends of justice. As far as the sentence of fine is concerned the same is set aside, because the complainant side has been adequately compensated by the appellants." 6. The objection of the petitioner to the candidature of the respondent was that he being a convict in the murder case was not qualified to be elected or to hold an elective office or membership of a Local Government as provided under clauses (d) and (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000. The Returning Officer vide order, dated 6-6-2001 upholding the objection rejected the nomination papers of respondent No,1 with the following' observations:-- "The relevant portion of section 14(1) reads as under:--- "Qualifications for candidates and elected members.--- A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,-- (j) has not been sentenced to imprisonment for more titan three months for an offence under any law or a period of not less than five years has elapsed since his release." ' The word ' or' appearing in the above provision, underlined by this Court is of great import. This word 'or' separates the two provisions preceding and appearing after it. The preceding sentence to it disqualifies a person who has been sentenced more than three months. The sentence appearing after it connotes that the relaxation of elapse of 5 years after the release will relate to that imprisonment which is less than 3 years. Had it not been so the intention of the Legislature as is interpreted by this Court, there would have been the word ' and' instead of word 'or'. Therefore, a conviction for more than 3 months puts a complete restriction on a person for not being elected as a Member of Local Government. Therefore, the candidate is not found eligible for contesting the election for the seat of Naib-Nazim. ' Apart from what has been found out under the preceding para. And in case the interpretation of word 'or' made by this Court is not accepted, the candidate is otherwise found disqualified under section 14(d). This provision inter alia enjoins that a person shall not qualify to be elected, if he does not abstain from major sins. There must be no cavil with the maxim that there may not be greater sin in the word than the unauthorized killing of human body. In Islam too, the unauthorized killing of a human body is the second most greater sin after the sin of Shirk. The Holy Qur'an has similized an unauthorized killing of a human body to the killing of the entire mankind. It is true that after the promulgation of Qisas and Diyat Ordinance conviction of the candidate shall be considered as his acquittal keeping in view the fact that the legal heirs of the deceased victim pardoned him. But the acquittal and the perpetuation of sin are two different things altogether. The consequence of the forgiveness tendered by the legal heirs of the murdered puts an end to the punishment of the killer. But it does not wipe out the sin committed by the killer not only against the body of the murdered but also against the mankind. The major sin of murder committed by the candidate Mirza Mushtaq Ahmad has not vanished merely on account of the forgiveness tendered to him by the legal heirs of the murdered, but it will go with him to his grave and then will be accounted for in the Last Day of Deen. Such type of person cannot be considered qualified for being a Member of Local
---
## Page 4
Government, by stretch of any imagination Therefore, the restriction appearing in section 14(d) seems coining in operation against the said candidate." 7. The respondent No,1 being aggrieved of the order of rejection of his nomination papers by the Returning Officer filed an appeal under Rule 18(4) of the Punjab Local Government Election Rules, 2000. The District Returning Officer exercising the powers of the Appellate Authority vide judgment, dated 9-6-2001 allowed the appeal and while overruling the objection accepted the nomination papers of respondent No,1 with the following observation:-- "From the perusal of record, it appears to me that appellant No,2, Zia-ul-Malik Chaudhry is a practising Advocate at Jhelum. During the course of scrutiny his nomination papers have been found in accordance with Rules Nomination papers of Mirza Mushtaq Ahmad Naib-Nazim have been rejected mainly on the ground that he remained involved in a murder case. Copy of the judgment passed in Criminal Appeal No,82 of 1985 from the Honourable Lahore High Court, Rawalpindi Bench, goes to show that ultimately it was held by the Honourable Lahore High Court that it could not be ascertained how the occurrence of murder took place. It appears that it was a sudden flare-up in which both the parties fought with each other. It was unpremeditated murder. Due to this reason it was held that the case falls within the Exception No,4 of section 300, P.P.C. Consequently, punishment of section 302, P.P.C. Was converted into section 304, Part I, P.P.C. In this way undoubtedly view of Honourabl High Court was that in murder case wherein Mirza Mushtaq Ahmad was involved was not a premeditated murder. Such a murder cannot be treated to be major sin (Gunah-eKabira). Of course premeditated murder is to be considered Gunah-eKabira. Besides it since matter was compromised at the stage of appeal and as such punishment was reduced from section 302, P.P.C. To 304, P.P.C. So Mirza Mushtaq Ahmad had not preferred an appeal before the apex Court. Another important aspect of the case is that as per section 14(j) of Local Government Elections Ordinance, 2000, where a person has been sentenced for more than 3 months and a period of 5 years has elapsed then conviction in a criminal case cannot form basis for rejection of nomination papers. In the case in hand basic judgment was given by the Sessions Court on 15-7-1985. Another important aspect of the case is that beside the aforementioned incident of murder nothing has been produced on behalf of the respondent to prove that appellant No,1 is having any sort of criminal history of his involvement in criminal cases, proving him to be a habitual in violating the Injunction of Islam. So I come to this conclusion that learned Returning Officer was not right in reacting the nomination papers of appellant." 8. This petition was fixed for hearing on 12-6-2001 and Mr. Junaid Iqbal Awan, Advocate, while appearing at limine stage accepted notice on behalf of respondent No,1 for 18-6-2001. The learned counsel for the parties argued the case on 20-6-2001 and 22-6-2001. In view of the nature of the dispute and importance of the matter in addition to the learned counsel for the parties, learned Assistant Advocate-General, Dr. Z. Babar Awan and Dr. Muhammad Aslam Khaki, Advocates, of this Court were asked to assist the Court as amicus curiae. 9. The facts relating to the conviction of respondent No,1 for the murder charge under section 302, P.P.C. With punishment of sentence of imprisonment for life to him by the trial Court and ultimately the conversion of conviction under section 302, P.P.C. (old) to under section 304, Part I, P.P.C. (old) are admitted. The main ground urged on behalf of the petitioner in support of this petition was that the District Returning Officer while exercising the powers of Appellate Authority misapplied and misinterpreted the law and on the basis of wrong assumption has rendered a decision contrary to the law. Precisely the argument of the learned counsel for .Getting respondent No,1 declare to be disqualified to contest the election is based on the provisions of clauses (d) and (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000, which lays down disqualification for a person from being elected as and from being member of Union Council if he is of not a good character or if is commonly known as one who violates the Injunctions of Islam and if he does not
---
## Page 5
abstain from major sins. Under clause (j) of the Ordinance if a person has been sentenced for a period more than three months for any offence and a period of not less than five years has elapsed since his release, he is disqualified to be elected or hold membership in the Union Council. 10. The same disqualification is mentioned in Article 62 (d)(e) and (g) and Article 63(h) of the Constitution of Islamic Republic of Pakistan, 1973, for a person to be elected or chosen as Member of Parliament. 11. The learned counsel for the petitioner argued: (a) That if a person is sentenced for a term less than three months, such person can be qualified to contest the election on the expiry of a period of five years from the date of his release, but in case if he is sentenced to more than three months, he will-not be qualified to contest the election even after the expiry of the period of five years: Learned counsel has submitted that the word 'or' has been used in clause (j) of section 14 of the Punjab Local Government Elections Ordinance, 2000, before the sentence a period of not less than five years which would show that the period of five years is related to the expression ' sentence less than three months' and if the sentence is more than three months, the disqualification is permanent. ' Learned counsel submitted that respondent No,1 served his sentence as a convict for a period more than two years and was later released as a result of compromise. (b) That under clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, a person who is of a good characte and who is not commonly known as one who violates Islamic Injunctions and abstains from major sins is qualified to contest the election and becomes a member of Local Government but if any of this qualification is lacking in such person, he would be disqualified to contest election and to become member of Local Council. (c) That admittedly the respondent was convicted and sentenced for the murder charge which in addition to an offence is a major sin and one who commits such an offence (a) he is not a person of good character, (b) he violates the Islamic Injunctions, and (c) he does not abstain from a major sin. The learned counsel for the petitioner argued that the disqualification of a person as mentioned under section 14 of the Punjab Local Government Elections Ordinance, 2000, was known for rejection of his nomination papers during the process of scrutiny but the District Returning Officer in exercise of his powers as Appellate Authority in departure to the law on the subject allowed the appeal of respondent No,1 and accepted his nomination papers. ' The learned counsel while placing reliance on Kitab-ul-Fiqqa (page 839) written by Abdul Rehman Al-Jazeera has contended that the murder of a person in Muslim Society is not excusable in Islam and voluntary killing of a person under any circumstance is a major sin. The learned counsel contended that since the said respondent was found guilty of Qatl of a fellow Muslim, therefore, he committed a major sin and consequently by virtue of clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000, was disqualified to contest the election. 12. Learned counsel representing the respondent on the other hand has contended that the conviction of respondent No,1 under section 302, P.P.C. (old) was converted under section 304, Part I, P.P.C. In appeal and thus, the case against him would be covered by Exception (v) to section 300, P.P.C. (old) which would not Qatl-e-Amd as defined under section 300, P.P.C. As amended through Qisas and Diyat Ordinance, 1991, and that if a Qatl is not definable as Qatl-e-Amd it would not fall within the ambit of major sin. The learned counsel in the light of definition of different kind of Qatl and offences affecting the Human Body under Chapter XVI of the Pakistan Penal Code submitted that if Qatl is committed with the intention to cause death, it is Qatl-e-Amd as defined under section 300, P.P.C. And is a major sin but in case of any other kind of Qatl such as Qatl-e-Khata, Qatl-e-ShibahAmd and Qatl-e-Bis-Sabab it is not a major sin.' The learned counsel argued that the respondent was acquitted under section 302, P.P.C. And was convicted under section 304, Part I, P.P.C. (old) in appeal by the High Court, which constituted an offence of Qatl-e- Khata as defined
---
## Page 6
under section 318, P.P.C. And would not fall within the definition of Qatl-e-Amd for want of essential elements of intention to cause death. Learned counsel while concluding has submitted that keeping in view the facts and circumstances under which the murder took place, it can safely be said that it was not a Qatl-e-Amd to bring it within the purview of major sin to attach a disqualification with the respondent under clause (d) of section 14 of the Local Government Elections Ordinance, 2000. In support of the argument, the learned counsel has placed reliance on the following Books:- {{URDU TEXT}} ' In addition, he has also placed on record the leave granting order of the apex Court in C.P. No,744 of 2001 in a case titled "Masood Sarwar v. District Returning Officer and the copy of the judgment, dated 20-5-1986 in Criminal Appeal No,82 of 1985 filed by Mushtaq Ahmad respondent No,1 against his conviction and sentence. 13. The question whether only Qatl-eAmd punishable with death or life imprisonment as Qisas or Ta'zir, as the case may be, is only a major sin or 'Qatl' is a major sin. The intentional murder is 'Qatl- c- A Amd in Islam but it is nowhere said in the Holy Qur'an that only Qatl-e-Amd is a major sin and other kinds of 'Qatl' are not major sin. In plain words in Islam 'Qatl' is a major sin and a Muslim guilty of 'Qatl' of another Muslim despite subsequent acquittal from the Court cannot claim that his responsibility of major sin of killing a Muslim brother was absolved. In the administration of justice a convict of Qatl or Qatl-e-Amd as the case may be, upon conviction has to serve his sentence awarded to him in the manner provided under the law if he is not pardoned by the victim or his legal heirs as the case may be, which is only to the extent of right of a person or body of person but it would not take away the right of Almighty Allah to punish for major sin. 14. Dr. Babar Awan, Advocate, who assisted the Court (sic) has submitted that Qatl' is a major sin in Islam and the acquittal from charge of murder would not remove the stigma of major sin in Islam. He submitted that according to Sharia good and bad acts are rewarded with Swab and punishment by Almighty Allah and in case of commission of an offence which is also a sin, the punishment for such an offence is different to that of punishment to be awarded by Almighty Allah for the sin committed in consequence to such offence and thus, there is a clear distinction between an offence and a sin. In a case in which sentence is awarded for an offender by the Court, the matter of Magfarat for the sin committed as a result of such offence is exclusively with Almighty Allah which can neither be pre-empted nor can be predicted that after serving sentence for an offence of 'Qatl', the offender after death will not be answerable before Almighty Allah on the Day of Judgment. 15. The learned counsel has referred the following Verses from the Holy Qur'an:-- (1) Sura Al-Baqara (2.217); (2) Sura Al-Nisa (4.92 and 4.93) (3) Sura AlMaida (5.32), (4) Sura Al- Banni Israel (33) and (5) Sura Al-Furqan (68). ' As per Ketab-ul-Iktiar, a prominent Book of Islamic Jurisprudence, "the final dictum which is led is that if an offence of murder is compounded by the legal heirs of the deceased, a person can be acquitted in this world, but he remains Qatil' till eternity and cannot be absolved from the responsibility of murder committed by him just because the matter stood compromised. ' In nutshell learned counsel submitted that if an offence of murder is compounded by the legal heirs of the deceased, a persona can be acquitted in this world, but he would remain Qatil and would not be deemed to have been pardoned by Almighty Allah for the sin he committed. ' In the second Volume of Islamic Encyclopaedia in the Chapter of Murder, the following five types of murders are mentioned. (i) Qalt-e-Amd, (ii) Qatl-Shibh-eAmd, (iii) Qatl-e-Khata Amd, (iv) Qatl-Jari Majri Khata (v) Qatl- bisSabab.
---
## Page 7
' In this Chapter it is mentioned that according to Ibn-e-Sina, Zaid bin Sabir and others prominent Muslim Jurists that Tauba of a murderer is never accepted. ' In Saihi Bukhari in Chapter Ketabul Addiat the following Hadees can be quoted in this behalf, which reads as under"--- {{URDU TEXT}} ' In the same Book of Hadees in Chapter Diyat, another saying of Holy Prophet (p.b.u.h.) is quoted at page 651 in the following words:- "A Momin lives always comfortable, unless he commits a murder.' ' Gunah Kabeera has been defined in Bukhari Sharif at page 653 and saying of Holy Prophet is quoted at Serial No,1765 in the following words:-- "Ishaq Bin Mansoor, Samad, Abaidullah Bin Abi-Bukkar, heard from Hazart Uns that the Holy Prophet (p.b.u.h.) declared that the two sins are the biggest in all which are (i) Shirik and (ii) taking the life (Qatl)." ' In Bukhari Sharif in Chapter 1005 instances of Qatl-e-Khata in the words of Hazart Aisha (Razi Allah Ta'ala Unha) has been described. In Gazva-e-Ohad, "Iblees raised' the voice that a man was watching your back upon which confusion was created and one Yamaan was murdered who was father of a Muslim warrior namely Hazefa and said Hazeefa cried that his father be saved but Yamaan was done to death upon which Hazeefa said God forgave you which would show that even in case of Qatl-e-Khata or in any kind of murder, the pardon in the form…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.