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Tazkiyah al-shuhood (Hudood Laws)

Tazkiyah al-shuhood means the mode of inquiry adopted by a court to satisfy it self as to the credibility of a witness. In the case of PLJ 1994 Cr.C. (SAC) 91 two adult male Muslims, other than victim of crime, were not available in this case–All four persons in van were actually and in constructive custody of money in brief case and bag which was snatched away from all of them by culprits, hence they all were victims of crime and none of them was independent witness satisfying requirements of Tazkia-ul-Shalzood–No Muzakki (purgator) was appointed by trial court to verify truthfulness of eye-witnesses which was a condition precedent for conviction of Shahid Iqbal for commission of “Haraba” liable to Hadd–Held: Conviction of Shahid Iqbal appellant and his sentence under Section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is not sustainable–Conviction altered to that under Section 20 of Ordinance read with Section 392 PPC and sentence awarded by trial court, i.e. 10 years R.I. and fine maintained.

It should be noted that Tazkiya Al-Shahood–Requirement of Tazikya Al-Shahood (Certification of probity of witness) is obligatory only in cases punishable with Hadd and/or Qisas, but not in cases punishable. with Tazir. PLJ 1999 SC 105

Some cases discussed below are useful in understanding the concept better.

1998 PCrLJ 2022. Iftikhar Ali V/S The State (Peshawar DB).

S.302(b), 324/353 PPC. However, sentence of death having been awarded to accused by trial court without undertaking the exercise of Tazkiya-al-Shahood, was altered to death as Tazir which too was an Islamic Punishment. DEATH SENTENCE ALTERED.

PLD 1998 Peshawar 101. Sambali Khan V/S The State (DB).

S.299-K & 302 PPC. Liability of Qisas was to be established by two competent (A’dil) witnesses and sentence of each as Qisas could not be imposed unless court was satisfied having regard to requirements of Tazkiya-al-Shahood that the charge of intentional murder was supported by credible testimony of two male adult Muslim witnesses who were not only truthful witnesses, but also abstained from major sins and were not inclined to indulge in minor sins. Probity of all eye-witnesses in case was challenged and it was not established on record by means of Tazkiya-al-Shahood that they were in fact A’dil witnesses. When the guilt of intentional murder was established, but the evidence of the requisite standard for convicting murder with the sentence of death as Qisas was not available, court had to award sentence of death as Tazir. Deceased was earlier charged for murder of father of accused when accused was about 7/8 years of age, but deceased was acquitted and accused being smarting under grievance had committed murder of deceased to avenge murder of his father. DEATH SENTENCE ALTERED TO LIFE IMP.

NLR 1996 SD 709. Home Secretary NWFP V/S Muhammad Ayaz Khan etc. (Peshawar DB).

S.304 PPC. Procedure with regard to process of Tazkiya-al-Shahood :-

a: There must be evidence of victim followed by atleast 2 witnesses.

b: In case of discrepancies on vital aspects between two witnesses both shall be rejected.

c: Tazkiya Al-Shahood is a condition precedent to impose the sentence of Hadd.

d: There should be one or more “Muzakki” (a person who testifies about the truthfulness of the witnesses)

e: The “Muzakki” should be present when the witness gives evidence.

f: The “Muzakki” should also be questioned about antecedents, character and dealings.

g: It is the responsibility of the court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both.

h: The court may frame a questionnaire on which the “Muzakki” should collect information to supply to the court.

i: The court should also examine the “Muzakki” after he submit his report.

J: The Court should ask searching questions from the witness and cross-examine him, to discover

Facts which might show his credibility, piety or otherwise.

PLD 2002 Peshawar(DB) 65. Gulbar V/S The State

S.302 & 304 PPC. Punishment of Qatl-I-Amd. Tazkia-al-Shuhood, once conducted about a witness, does not effect before the expiration of six Islamic months. Where no such evidence was forthcoming from the record to indicate that the eye-witnesses were ever put to the test of Tazkia-al-Shahood during the period of six months preceding their giving of evidence in the case, punishment of death as Qisas inflicted upon the accused was not warranted in law and thus was not maintained by the High Court in appeal.

1998 PCrLJ 383. Muhammad Israr & Others V/S The State (FSC.DB).

S.7 R/W S.17(3) OAP(EHO). Tazkiya-al-Shahood although not clearly defined in the Explanation to S.7, means the mode of inquiry adopted by the court to satisfy itself as to the credibility of a witness. Expression “the mode” signifies that it is one or more of the modes which are assumed to be well-known. Tazkiya-al-Shahood, according to all accepted versions of the definition, can be done in either or both of the two modes, one “open” and other “secret”.

(2) No proper Tazkiya-al-Shahood was done of the two eye-witnesses who even otherwise themselves were the victims of the occurrence and could not be termed as independent witnesses.

1998 PCrLJ 716. Irfan Masih V/S The State (FSC.DB).

S.17 OAP(EHO). Punishment of Hadd could not be awarded without resorting to Tazkiya-al-Shahood before recording statements of prosecution witnesses. DEATH SENT. ALTERED TO LIFE IMP.

NLR 1997 SD 560. Muhammad Humayun V/S The State (FSC.DB).

S.6 Qazf Ord. Court is not required to resort to Tazkiya-al-Shahood when proof of qazf liable to Hadd is available in one of form provided in S.6.

NLR 1997 SD 21. Zarina Bibi V/S The State (FSC).

S.10 Zina Ord. Trial court is bound to hold Tazkiya-al-Shahood when four witness have claimed to have seen commission of zina with their eyes. Failure to do so would vitiate conviction.

NLR 2004 SD 1152. Amjad Pervez V/S The State (FSC.FB)

S.17(3) & 9(1) OAP (EH). Person who conducts inquiry as Muzakki by way of taski-al-shuhud is loaded with a very heavy responsibility. It would be imperative for court to appoint only one such person for each witness who is highly credble, trustworthy and well aware of antecedents of witness appearing on behalf of prosecution. The inquiry made by Muzakki may not necessarily be open or confidential but should be fully sufficient to convence court about credibility or otherwise of the witnesses appearing before it. CONVICTION ALTERED

PLJ 2008 FSC 27. Ghulam Nabi & 2 Others V/S The State

S.7 OAP (EHO) 1979. Violation of the requirements of Tazkiya-al-Shahood. Three conditions have to be fulfilled for proof of theft liable to hadd, namely (i) there shall be an inquiry by the trial court as to the credibility of at least two male eye-witnesses, (ii) the credibility of eye-witnesses shall be determined on the basis of the truthfulness and abstinence from major sins, (iii) the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of eye-witnesses are recorded. Held: Victim of the theft was a bank which was a fictitious person/entity and was not a natural person. Being a fictitious person it cannot adduce evidence of the theft personally but only through its agent or representative—Contentions— Firstly, evidence of bank employees in inadmissible under Sharia, secondly, fictitious legal entities or statutory/corporate bodies were not in existence in the days of the Holy Prophet (PBUH) and the relationship of master and servant existed only between natural persons. If such argument is accepted then all the dacoits and robbers shall have free hand to commit dacoity and robbery of Banks without any fear and in due course there shall not be any bank at all. Qanoon-e-Shahadat Order 1984 does not recognize any such exception. According to Qanoon-e-Shahadat all persons are competent to testify unless otherwise specifically debarred. There is nothing therein imposing any legal disability on the employee or servant of any one including a fictitious person to testify under Sharia law in a matter concerning his employer. Additional Sessions Judge conducted the inquiry was nothing but a mockery. To him PW-1, who on certain occasions tells lies is a credible as PW-2 who never tells lies. Again PW-3 who never offers prayers at all is a good as PW-1 who offers prayers regularly. This superfluous and summary inquiry was held was in clear ciolation of the requirements of Razkiya-al-Shahood U/S 7 of the Ordinance. Held: Prosecution had been fully able to establish its case of robbery against the appellants against whom there was irrebutable evidence falling under Tazir laws hereby the Bank was robbed. CONVICTION UNDER HADD SET-ASIDE BUT ACCUSED CONVICTED U/S 394 PPC AS TAZIR.

2009 SCMR 356. Sajid Sohail V/S The State

S.302(a) & 302(b) PPC. Punishment of Qatl-I-Amd. No doubt sentence of death as Qisas cannot be inflicted unless requirement of Tazkiyah-al-Shuhood are satisfied and proof of Qatl-I-Amd liable to Qisas as required by S.304 PPC is available but in the absence of requisite proof under S.304 PPC Tazir punishment can be inflicted on an accused, because every Muslim is a competent witness as he is ordained to speak truth and his testimony cannot be discarded, so far as Tazir punishment is concerned, if the same is otherwise believable. DEATH SENTENCE CONVERTED INTO LIFE IMPRISONMENT.

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