When Qatl Amd not Liable to Qatl

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Cases in which Qatl Amd shall not be liable to Qisas:

Section 306 PPC provides for cases where qatl-i-amd is not liable to qisas. Where

  1. A offender is a minor or insane, (provided he does not associate with himself a person not liable to qisas with the intention of saving himself from qisas)
  2. When an offender causes death of his child or grandchild howlowsoever, or
  3. When any wali of the victim is a direct descendant howlowsoever of the offender, such qatl-i-amd shall not be liable to qisas.

Applicability

Provisions of s. 306, 307 and 308, PPC would only attract in the cases of qatl-i-amd liable to qisas u/s 302 (a) PPC and not in the cases in which sentence for qatl-i-amd has been awarded as tazir u/s 302 (b) and (c) PPC. [2003 SCMR 855]

Minor:

Minor has been defined in s. 299 (1), PPC a person who was not adult and adult defined in clause (a) of s. 299 as person who had attained the age of 18 years. Section 308, PPC provides punishment in qatl-i-amd not liable to qisas where an accused guilty of qatl-i-amd at the time of committing qatl-i-amd was minor or being insane and was not able to realize the consequences of his act.

Determination of age:

Determination of age of accused is a mixed question of law and fact for the purpose of this code. Where prosecution does not place any solid evidence to prove that accused was not a minor at the time of commission of offence, benefit of doubt is to be given to the accused.

Section 306 (b), PPC Accused causing death of his daughter:

Accused who was found to have caused death of his daughter in view of s. 306(b) is not liable to qisas and his case would fall u/s. 308, PPC where an imprisonment up to 25 years could be awarded as tazir. [2003 YLR 727]. Accused father of victim girl case failing within clause (c) of S. 306, PPC. Hence not liable to qisas. But the punishment provided under S. 308, PPC will be attracted.

Clause (c) Wali relating to accused and descendent of deceased:

Deceased survived by only daughter who is also descendant of accused. Deceased survived by a two years old daughter who was admittedly the Wali of the deceased and descendant of the accused. Accused, therefore, was not liable to qisas in view  of the proviso as enumerated in s. 306, PPC and he would only be convicted u/s. 308 (2) PPC which does not provide the sentence of death or imprisonment for life.

Cases in which Qatl Amd shall not be enforced:

Section 307, PPC provides for the cases in which qisas for qatl-i-amd is not enforceable. The class of cases categorized to all in this section is reproduced below.

  • When the offender dies before the enforcement of qisas:
  • When any wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas u/s. 309 or compounds u/s. 310; and
  • 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.

Applicability of S. 307(2):

According to sub-section (2), to satisfy itself that Wali has waived the right of Qisas u/s. 309 or compounded the right of Qisas u/s. 310 voluntarily, the Court shall record statement of the Wali and such other persons as it may deem necessary on oath, so as to satisfy that the waiver or composition as the case may be is voluntary and not the result of any duress.

More than one Wali:

Qisas for qatl-i-amd would not be enforceable in case where one of wali victim grant Afw while other walis do not grant Afw to offender. In such case, Wali who do not waive Qisas right would be entitled to share of diyat. Case can be decided by resorting to S. 302C, PPC.

Punishment in qatl-i-amd not liable to qisas, etc.

Sub-section (1) of s. 308 deals with the punishment in qatl-i-amd not liable to Qisas by providing that where an offender quilty of qatl-i-amd is not liable to qisas u/s. 306 or qisas is not enforceable under cl (c) of s. 307, he shall be liable to diyat. It will be noticed that first proviso to the above sub-section lays down 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, whereas, second provision to the above sub-section provides 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 consequence of his act, he may also be punished with imprisonment of either description for a term which may extend to 25 years as tazir. It may be pointed out that the third provision to above sub-section lays down that where the Qisas is not enforceable under c. of s. 307 the offender shall be liable to Diyat only if there is any wali other than the offender, and if there is no wali other than the offender, he shall be punished with imprisonment for either description for term which extend to 25 years as tazir.

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