In this article, we shall study the type of the Qalts and their punishments as has been provided in Pakistan Penal Code 1860; when the right of Qasis can be exercised in qalt-i-amd, what are evidential standards of the enforcement of Qalt-i-amd as Qasis, who can exercise the right of Qasis and what case in which Qasis can not be enforced? When criminal court can award punishment as Diyat and Tazir?
Types of Qalts defined in PPC 1860
The following are Qalt has been defined in Pakistan penal code constituting the offence of Qalt.
Qalt-i-Amd
Whoever commits the intentional or premeditation plan of death of person or cause body injury to person intentionally by doing which is in ordinary course of life can cause death, or with the intention and knowledge which he could visualize that act will cause the death of person. The element of probable foresight of that act or omission will probable death, he said to have committed the Qalt-i-Amd.
The accused can only be held culprit if the injury is direct result and consequence of his death and the action or omission is an intentional murder which falling under definition of section 300 of PPC 1860. Ingredient of the offence are felonious and an injury causing the death. Mere the provisions of the law are not sufficient for constitution of the offence, and implication of the accused.
The provision of 300 has provided for the murder of offence which are exclusively are falling under the provision of Qalt-i-Amd and have contemplated by offender with intention and knowledge. Any qalt which is committed under the Ghariat or sudden provocation caused by outcome of any event is also falling under definition of intentional murder. The charge of common intention to murder in pursuit of a family vendetta at such stage as to whose shot proved fatal.
The qalt-i-amd is punishable as Qasis, and if evidential standard is not fulfilled than punishment as Tazir up to twenty five years imprisonment .
Qalt-i-shibh-Amd
Whoever intentional causes death of human being which is not in ordinary course life causes the death said to have committed Qalt-i-shibh-Amd, when no as such weapon is employed. That act or omission is not often regarded as probable consequence of death. It is question of medical science to determine the fact rather employment of weapon has caused the death of that person as result of hit or striking of weapon on the body of person. The direct consequence of death as result of the weapon used to cause the death of that person is ultimate principle of criminology for putting criminal liability on the person for commission of the offence of Qalt.
Non-production of most natural and independent witness of occurrence only leads to presumption that Qalt-i-Shabh-amd has been committed. The section is applicable to circumstance where the fighting has taken place out of sudden impulses without premeditation causing the death of human being and means or weapon used by offender do not cause the death of human ordinary course of life. The qalt shibh-i-Amd shall be liable to tazir and also imprisonment as for description of term which may be extended over to fifteen years.
Qalt-i-Khata
When any act or omission is done which is caused by mistake of fact causes the death of human being without any intention or knowledge said to have committed the qalt-i-khata. The act must be mistake of fact not mistake of law and foresightedness of the person is important element in determination of the criminal liability. The provision of the section shall only be applicable to the action or omission which is done under sudden mistake of fact. The action which are done without premeditation or intention or having foresightedness cause the death of human can be placed under the provision dealing with Qalt-i-khata.
The Qalt-i-khata has no relevance with the provision of the act which is done under sudden provocation. The qalt-i-khata is liable to diyat but if the commission of the Qatl-i-khata is committed under rash act or negligence the addition punishment has provided for commission of such type of offence under 320 of PPC which may extend over to ten years.
Qalt-bis-sahab
When any person without having intention of causing death of person or harm or any act which become the cause for death of another person said to have committed Qalt-i-Sahab. The qatl-bis-sahab is murder without intention on the part of the accused, with the weapon or instrument which is neither regarded as the instrument nor weapon. The element of unlawful must be there for constitution of the offence under heading of Qalt-bis-sahib. The accused should not have any intention or motive or premeditation plan for commission of offence and the circumstance evidence must negate the intention of the accused. The punishment of Qalt-bis-sahab is provided in section 322 which is liable to diyat.
Qalts committed under compulsions
It death caused under putting person instant fear of death or permanent impairing the organ with knowledge and foresightedness that act or omission constitute the commission of offence under section 303 of PPC 1860.
Qasis
Qasis means punishment by causing similar hurt at same part of the body of the convict as has caused to victim his death if he has committed Qalt–i-Amd in exercise of the right of the victim or a wali. The punishment of similar hurt at the same part of body of the convict as he has caused to the deceased which has caused his death. The right to exercise that right is vested in wali. It is aim to cause similar hurt at the same part of the body of the convict as far as possible keeping in view the opinion of the authorized medical officer according to the physical condition of the convict.
Right of Qasis in Qalt-i-Amd
The right of Qasis is vested on the Wali of the deceased, and if there is no Wali then the right to exercise the Qasis is vested in government. In the case of minor or having no father, the right of Qasis is vested to paternal grandfather has the right of Qasis against the accused.
Exemption from enforcement of Qasis for qalt-i-amd
Qasis for qalt-i-amd shall not be have effect or legal enforce in following cases namely, when offender dies before the execution of the Qasis, when wali, voluntary and without duress to the satisfaction of the court waive the right of Qasis under section 309 or compound under section 310 and when the right of Qasis devolves as the result of the death of the Wali or on the person who has no right of Qasis against the offender, but the right of Qasis will vest on government to waive the offender, the government means appellate power vest in President of Pakistan to forgive the offender. The criminal court can not exercise this right, the criminal court only have to exercise his power under the penal provision to pronounce the judgment under given circumstances.
Proof of qalt-i-amd liable to Qasis
The proof of qalt-i-amd liable to Qasis shall be in any of following forms, namely when the accused make true and voluntarily confession of guilt before the court of his commission of offence and when the evidence has been forwarded against the accused fulfilling the requirement provided in article 17 of Qanun–e-shahadat, 1984.
Evidential standards for Tazkiyah-Al-Shuhood as provided in Qanun –e-shahadat, 1984
There are following evidential standard have to be fulfilled by witnesses forward before the court of law on side of Defendant. That evidence must be supported by two witnesses; in the case of discrepancy between them, the evidnce must be rejected. There should be one or more muzakki who may testify the truthfulness of the accused.
Execution of Qasis
There is important condition for the execution of the Qasis is that, the wali or his representative should be present there at the time of execution of convict. The execution of the Qasis can be suspended if the convict is pregnant woman till the two year after the birth of child. Qasis in Qalt-i-amd shall be executed by a functionary of the government by causing death of the convict at direction of the criminal court. If there is pending appeal before the appellate court, the execution of Qasis shall be subject to the order of the appellate criminal courts.
Punishment as Diyat
The diyat means the compensation awarded to the accused as punishment for commission of the offence specified in section 323 of PPC payable to heir of the victim. The value of the diyat should no be less than the value of thirty thousand six hundreds and thirty grams of silver. In cases of Qalt-i-Amd, diyat can be awarded where the offence committed is proved to be not liable to Qasis or where the Qasis is not enforceable. The consideration in such cases is badl-e-sulh as laid down in section 310 Of PPC 1860.
In the following cases the right to get the diyat shall be vested on the victim. When the commission of the offence is falling in definition under the section 306 and 307 are not liable to Qasis, section 312 Qalt-i-amd after waiver or compounding of Qasis, the section 315 Qalt shibh-i-Amd, the section 318 Qalt–i-khata and the section of Qalt bis Sahab.
The amount of diyat is to be disbursed amongst the heir of victim according to shariah. In case where an heir forgoes his shares it shall not be recovered. It can be ordered to be paid in lump sum or in installment by the offender; it is the discretion of the court. The offender’s default pay the amount will be liable to imprisonment.
Punishment as Tazir
When evidential standard as provided in PPC and Qunun shahadat order 1984 is not available, the court can award the punishment in Tazir for commission of offence of Qalt. It includes punishment of imprisonment, forfeiture of property and fine. Award of Tazir has been left at the discretion of the court which must be exercised in a judicial manner and according to the facts and circumstances of the case.
Summary
The following kinds of qalts have been defined in Pakistan Penal code, the Qatl-i-Amd, Qalt-i-shibh-Amd, Qalt-i-khata and qalt bis sahib. Only Qatl-i-Amd is liable to Qasis and other qalts are either punished as tazir or liable to diyat. The right of Qasis vests in Legal wali of the deceased and he can compound and waive the right of Qasis.
The Qasis is subject to fulfillment of evidential standards of Tazkiyah-Al-Shuhood as provided in Qanun –e-shahadat, 1984. Diyat and Tazir are awarded to offender as punishment of the commission of qalt.
The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan?in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan. Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence?
Author can be contacted by adil.waseem@lawyer.com.