Qisas and Ta’zir in Murder Cases: The Rule in Zahid Rehman v. The State

Independently written and published by Shahbaz Shah Legal Journal.

Zahid Rehman v. The State, PLD 2015 SC 77, is a leading Supreme Court decision on a deceptively simple but consequential question: when qatl-i-amd is punishable as Ta’zir, can a court use provisions designed for the Qisas regime?

By a three-to-two majority, a five-member Bench held that it cannot. Qisas and Ta’zir are distinct and mutually exclusive legal regimes. That classification controls the availability of sections 306, 307, 308, 309, 310 and 311 of the Pakistan Penal Code. The ruling resolved a conflict in earlier authorities and remains especially important where a party relies on kinship, waiver, compounding, or fasad-fil-arz to alter the consequences of a murder charge.

The decision should be read for its precise ratio. The larger Bench decided the governing legal question, then directed the office to place the connected matters before appropriate Benches for their individual merits. It did not itself finally determine the merits of Zahid Rehman’s connected appeal or the other connected proceedings.

Why the issue went to a larger Bench

The Court confronted competing lines of precedent. One line treated the special situations in sections 306 and 307 PPC, and the alternative punishment in section 308 PPC, as available even where qatl-i-amd was otherwise punishable as Ta’zir. The other line treated those provisions as part of the Qisas regime only.

The disagreement mattered because the two paths can lead to very different sentencing and compromise consequences. The larger Bench was asked to decide whether the provisions could cross the boundary between Qisas and Ta’zir, and whether section 311 PPC could operate after waiver or compounding where the case was one of Ta’zir.

Classification comes first

The majority began with the statutory classification. Section 299 PPC defines Qisas and Ta’zir as different forms of punishment. Section 304 identifies the routes by which a case of qatl-i-amd becomes liable to Qisas: a voluntary and true confession before a competent court, or proof through the Article 17 Qanun-e-Shahadat standard together with Tazkiya-tul-Shahood.

In the majority’s analysis, a case that does not meet those Qisas conditions is dealt with as qatl-i-amd punishable as Ta’zir. The fact that the same conduct may be described as intentional homicide does not allow a court to select discrete concessions from the Qisas framework for a Ta’zir case.

This is the practical starting point for a trial court and counsel. Before arguing a sentencing exception, a waiver, or a compromise, identify the regime in which the case falls and the evidentiary basis for that classification.

Sections 306, 307 and 308 PPC remain within Qisas

Sections 306 and 307 identify circumstances in which Qisas is not available or enforceable. Section 308 supplies alternative punishment for the offender in those Qisas-specific situations. The majority held that these provisions operate together: they do not convert a Ta’zir case into a Qisas case and do not import their reduced or alternative consequences into Ta’zir.

Accordingly, a party cannot reason that a person would have been within a section 306 or section 307 category if the case had been liable to Qisas, and then use section 308 as the sentence in a Ta’zir case. If the statutory conditions for Qisas have not been met, the applicable punishment must be determined within the Ta’zir framework, including the relevant part of section 302 PPC and the facts of the case.

The judgment therefore endorses the earlier view represented by Faqir Ullah v. Khalil-uz-Zaman, 1999 SCMR 2203, rather than the competing approach represented by Naseer Ahmed v. The State, PLD 2000 SC 813.

Waiver, compounding and section 311 PPC

The distinction also determines what follows from a waiver or settlement. Sections 309 and 310 PPC concern waiver of the right of Qisas and compounding of Qisas. The majority held that they apply to Qisas cases, not to Ta’zir cases.

Section 311 PPC gives the court a discretionary power to punish after waiver or compounding of the right of Qisas in specified circumstances. On the majority view, that power is likewise confined to a case that was liable to Qisas. It is not a residual power that may be used merely because parties in a Ta’zir case have reached a compromise.

For a Ta’zir case, the Court pointed to the separately applicable statutory treatment of compromise, including section 345(2) CrPC and section 338-E PPC. The distinction is not technical drafting. It determines whether an accused may be acquitted on a valid procedural compromise or remains exposed to a Qisas-specific discretionary punishment under section 311.

What the ruling did not decide

The majority did not treat every issue concerning section 302 PPC as finally resolved. In particular, the opinion did not attempt a complete treatment of the separate question concerning section 302(c). Counsel should therefore resist using PLD 2015 SC 77 as a short answer to every sentencing question under section 302.

The safer approach is to identify the precise proposition for which the case is cited: the separation of Qisas and Ta’zir, the Qisas-only operation of sections 306–308, the Qisas-only character of sections 309–311, and the need to use the correct statutory route for compromise in a Ta’zir case.

The majority and the dissent

Justice Asif Saeed Khan Khosa authored the principal majority opinion. Justices Dost Muhammad Khan and Qazi Faez Isa concurred with separate opinions. Justices Ejaz Afzal Khan and Ijaz Ahmed Chaudhry disagreed. The reported majority position, by three to two, is the Court’s controlling declaration on the issue resolved by the larger Bench.

This split is helpful to remember when reading a later case that cites Zahid Rehman. The case should be used for the majority’s stated boundary between the two regimes, not for an isolated observation drawn from a separate opinion.

Current statutory context

The Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016 later amended parts of the statutory framework governing murder and honour-related offences. PLD 2015 SC 77 should therefore be applied for its issue-specific ratio, alongside the current PPC text and later binding authority. It is not prudent to assume that every consequence discussed in a 2015 case is unchanged after later legislation.

Practice checklist

• State at the outset whether the prosecution case is liable to Qisas or punishable as Ta’zir, and identify the statutory and evidentiary basis.
• Do not plead sections 306, 307 or 308 as a sentencing route in a Ta’zir case without confronting the Zahid Rehman ratio.
• Distinguish a waiver or compounding of the right of Qisas from a procedural compromise in a Ta’zir case.
• If section 311 is invoked, establish first that the case is one liable to Qisas and identify the statutory trigger for the court’s discretion.
• Check the present PPC, Article 17 of the Qanun-e-Shahadat Order, section 345 CrPC, the 2016 amendments, and any later binding decision before advising on a live case.

Conclusion

PLD 2015 SC 77 is an authority on legal classification before sentencing. Its central rule is that Qisas and Ta’zir do not overlap. Once a case is properly classified as Ta’zir, the Qisas-specific provisions in sections 306–311 PPC do not supply an alternative route to sentence or post-compromise punishment.

This article is independent legal commentary for research and general information. The attached research reference copy is not an official court-issued PDF. The reported judgment and the current statutory text should be verified before reliance in proceedings.