Law: Pakistan Penal Code (PPC),1860

Section: 302, 311, 109

Law: Criminal Procedure Code (V of 1898)

Section: 544, 374, 342, 265, 345

Law: Qanun-e-Shahadat Order, 1984

Section: 122

REMARKS

The applicability of Section 311, P.P.C. to the present case, under which the learned trial court has awarded life imprisonment to the appellant, it is pertinent to first reproduce the said provision, which was last amended through the Criminal Law (Amendment) (Offences in the Name of or on Pretext of Honour) Act, 2016:
311. Ta`zir after waiver or compounding of right of qisas in qatl-i-amd.-
Where all 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 of 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 punishment shall be imprisonment for life.
A plain reading of Section 311 PPC makes it abundantly clear that a court may award punishment under this provision in cases where the principle of fasad-fil- arz is attracted but only in situations where the right of Qisas has been waived or where a compromise has been effected in relation to a sentence awarded as Ta’zir. In the present case, however, neither was the punishment awarded as Qisas, nor has there been any waiver or compounding of the offence by the legal heirs. Moreover, no compromise under Section 345 Cr.P.C. has been effected in respect of the punishment of Ta’zir awarded under Section 302(b) PPC. In this context, the learned trial court’s decision to award punishment under Section 311 PPC apparently on the assumption that the circumstances attracted the principle of fasad-fil-arz is legally untenable and misconceived. The essential preconditions for the applicability of Section 311 PPC namely the existence of a Qisas-based sentence or a compromise in relation to Ta’zir were simply not met. Therefore, the reliance on fasad-fil-arz to justify sentencing under Section 311 PPC in the absence of these statutory triggers is wholly misplaced. Even otherwise, if the essential preconditions for attracting the provision of Section 311 PPC are satisfied, the court cannot award punishment under Section 311 PPC when no clear evidence is available to constitute the element of fasad-fil-arz.

 Case Summary:"Spousal Murder"