ISLAMABAD: The Supreme Court has questioned as to whether a person can be detained indefinitely if he fails to pay diyat on account of his poverty and whether such detention accords with the injunctions of the Holy Quran and Sunnah, which Section 323 PPC states must be abided by.
The court ruled that Section 323 PPC requires the federal government to keep “in view the financial position of the convicts” in fixing the value of diyat; however, notifications issued thereunder simply fix the same diyat amount payable by the convicts alike, that is the value of 30,630 grams of silver and do not distinguish between convicts who can pay and impecunious convicts who then on account of their inability to pay remain incarcerated indefinitely.
A two-member bench of the apex court comprising justice Qazi Faez Isa and Justice Sardar Tariq Masood passed a judgement in a jail petition filed by one Shakeel Abbas against the judgement of Lahore High Court, Rawalpindi Bench, on November 7, 2018.
Sumbal Khalil had filed an FIR on August 6, 2016, in Distrcit Chakwal against her spouse Shakeel Abbas, the petitioner, alleging that he had killed their two minor sons, namely Abu Zar aged two years and Farman Haider aged about six months. The trial court convicted the petitioner under Section 302 (b) of the Pakistan Penal Code (PPC) on two counts and sentenced him to imprisonment for life but ordered the running of sentences concurrently and directed payment of compensation to the legal heirs of the deceased of an amount of one hundred thousand rupees on account of each death and in default, thereof, to undergo simple imprisonment for six months on each count as well.
The appeal filed by the petitioner was partly accepted by the High Court by acquitting the petitioner of the charge of murder, and he was, instead, convicted under Section 316 PPC--qatl shibh-i-amd and sentenced him to five years rigorous imprisonment and ordered him to pay diyat under Section 323 PPC of an amount of Rs2,174,577
The state did not challenge the petitioner’s acquittal under Section 302 ( b) PPC nor enhancement of his sentence.
The court noted that the petitioner has filed this petition through jail adding that a number of questions arise which require consideration. The court observed that the judge of the High Court came to the conclusion that the killings was not intentional, and substituted the petitioner’s conviction under 316 PPC; however, if there was no intent to cause harm to the body (as per Section 315 PPC) whether the conviction is sustainable under Section 316 PPP.
“If in facts and circumstances of the case, the conviction under Section 316 PPC is not sustainable whether the petitioner could still be convicted under Section 319 PPC-qatl-e-khata-and/or Section 321 PPC-qatl-bis-sabab,” the court questioned.
The court, while granting leave to appeal to consider, amongst others, the aforesaid point appointed Sagheer Ahmed Qadri as counsel for the petitioner at State expense and directed its office to provide him complete set of paper book along with a copy of the of its order.
The court, in order to consider the legal points, issued notices to the attorney general, Punjab advocate general and prosecutor general as it requires interpretation of the Pakistan Penal Code (PPC) and the Rule.
Similarly, the court also issued notice to the Ministry of Religious Affairs and Interfaith Harmony which should forward a copy of the order to all the recognised Wafaqul Madaris and obtain their respective opinion with regard to points raised in the instant case and upon receipt of their opinions forward the same to it.
The court also issued notices to the vice chairman Pakistan Bar Council (PBC) and director general, Shariah Academy of the International Islamic University, Islamabad, amicus to assist it themselves or depute a learned person from their respective institution.
“It will be appreciated of all those whom notices were issued, file their respective submissions in writing within one month from receipt of this order and copy of this order to accompany the notices,” the court ruled
Meanwhile, the court in view of the importance of the issue, directed its office to place the matter for consideration of the Chief Justice who may be graciously pleased to consider whether a Bench of three or more Judges should hear it.
