Is money mightier than truth and does pedigree trump virtue?
The verdict of the Anti-Terrorism Court on 7th June, 2013 – convicting the culprits of Shahzeb Khan’s murder – was celebrated with euphoria and dancing in the streets, all across Pakistan. The verdict did more than administer justice. It breathed hope in the ideal that the rich and the influential in Pakistan do not exist outside the empire of law; that law alone was a sufficient weapon (and shield) for the ‘mango people’ against the excesses of the powerful and the mighty; that every individual, regardless of his or her pedigree, was equal at the altar of justice.
Those celebrations were brought to a stunning halt on Tuesday when an application was submitted before the honourable Sindh High Court, informing the bench that the deceased’s family had struck a compromise (allegedly against blood-money, Diyat) and “forgiven” the cold-blooded murderers of their only son. To add insult to injury, in the aftermath, our media waves have been aflush with images of a smiling Shahrukh Jatoi (the principal accused), holding up the victory sign amidst a coterie of ‘servants’ chanting slogans in his favour.
To the young wadera, his victory sign might just be a repetition of something he has seen in some gangster movie from the comforts of his gaudy home theatre. To the rest of the nation, all those who are the children of a lesser God, however, the smiling victory sign portrays a cruel national reality: that wealth is a substitute for innocence; that the veil of influence can cover the horrific face of guilt; that money is mightier than truth; and that pedigree trumps virtue.
What are the contours of the jurisprudence that have brought us to this day? Are we beholden to an archaic religious criminal justice system that no longer meets modern standards or morality? Is there still some part of the process that is salvageable? And where can we go from here?
In terms of the provisions of the law, it must be kept in mind that ‘murder’ (Qatl-e-Amd) is punishable under section 302 of the Pakistan Penal Code (PPC), and the prosecution of murder is usually conducted in the Sessions Court. Notwithstanding the debate on the abolition of death penalty (which I support), in line with Islamic injunctions, PPC makes provisions for the fact that the family of the deceased (being the aggrieved party, under religious texts) can ‘spare’ the life of the murderer by accepting blood money. Under Pakistani law, however, in certain circumstances, acts of violence (resulting in death) are prosecuted under the Anti Terrorism Act (ATA). And while the PPC has specific provisions relating to blood money, the ATA has no such mention.
In line with the preamble and provisions of the Constitution of Pakistan, and specifically in light of Article 2A of the Constitution, an overarching argument could be made that Islamic injunctions (and principles) must be read into all subordinate legislations. And, in light of this stretched contention, it could perhaps be argued that option of blood money (to the extent not specifically prohibited) could be read into the ATA.
Would all this, then, mean that the murderers can always go scot free in Pakistan, so long as the family members of the deceased agree to take blood money? Can money, always be used as a substitute for punishment of a murderer? And if so, have we simply reduced our criminal justice system to a paradigm where, so long as one is willing to pay the ‘price’ of any given life, murder is no longer a ‘punishable’ offense? Does this system treat all citizens, rich and poor, alike? Does it not entail that a rich man can murder a member of some poor and needy family with impunity, while no poor man can murder a rich without facing punishment? And, in such a case, would equality before law not necessitate that if a poor man kills someone, and is unable to pay the blood money, that the State should be obligated to pay such money on his behalf?
The key to preventing our criminal justice system from decaying into a simple money equation rests in the principle and practice of “Tazir” – punishment (usually corporal) that is administered at the discretion of the judge, irrespective of any compromise between the parties concerned. Mercifully, the PPC, per section 338E, allows the court to exercise its independent “discretion”, having regard to the facts and circumstances of the case, in awarding Tazir (up to 14 years of imprisonment).
Given that all criminal offenses are more than simply a dispute between private individuals – they are offenses against the society and the state – the Pakistani courts have incorporated the Islamic idea of “fasad-fil-ardh”, to conclude that in certain circumstances the crime committed is of such a nature that even if the parties reach a compromise, the society and the state cannot allow the perpetrator to go unpunished. This idea was applied and upheld recently by the honourable Peshawar High Court in the case of Muhammad Zaman v State (PLD 2006 Peshawar 82), where the murderer was punished with imprisonment, despite a compromise between the parties concerned.
As we look towards the next chapter of the Shahzeb Khan murder saga, and recount our collective disappointment with the settlement between the families of the murderers and the deceased, we must be mindful of the fact that the final outcome of this case will have lasting influence on the degree of confidence that people have in our criminal justice system. And the key, to restoring that confidence or allowing it to disintegrate, lies with the judiciary now. As the judges of the honourable Sindh High Court decide on the contours of settlement between the parties, and on the overall outcome of this brutal event, I pray that they do not lose sight of the larger issue at stake.
I pray that, in deciding this case, they let it be known to all – rich and poor, young and old – that wealth and influence cannot ‘buy’ its way out of the criminal justice system in our land.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu