Manipulating justice system

And the need to revise laws on Qisas and Diyat

The Islamic jurisprudential issues of Qisas and Diyat were reduced into law in Pakistan hurriedly by virtue of Criminal Law (Second) Amendment Ordinance 1997. The step was taken to Islamise the law on hurt. Earlier, Prohibition/Enforcement of Hadd Order IV of 1979, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979 had been promulgated. It was expected that with these only laying the foundation, the laws will be suitably amended through an evolutionary process but unfortunately Ijtihad (one of the process to bring changes to Islamic laws) has not been given due place for so many reasons and Muslim ummah has suffered much due to this retrogressive approach and continues to do so.

In Muslim Jurisprudence it is believed that there are two kinds of punishments in penal offences i.e., Hadd and Tazir. Hadd is a limit fixed by the Almighty and is immutable whereas Tazir is a punishment to be determined by hakim/government/legislature. Four hudood laws were introduced through the aforesaid legislations. There is a difference of opinion whether Qisas is a hadd or not. But for the discussion in this opinion piece, only the laws of Qisas and Diyat are being taken up.

In the Criminal Law (Second) Amendment Ordinance 1990, the definition of Qisas has been given without any reference to Hadd; however, the word Tazir has been used in section 302(b) of Pakistan Penal Code (PPC). In the un-amended law a premeditated, calculated, fully intentional and cold blooded homicide was defined as murder liable to be punished under the then section 302 of PPC with death or life imprisonment but when elements of self-defence, provocation etc were involved it was considered a slightly lesser offence named as “culpable homicide not amounting to murder” and was visited with lesser punishment of life imprisonment or up to 10 years imprisonment or fine or both under section 304 of PPC.

The offence under section 302 or 304 of PPC was non compoundable. If the parties compromised out of the court then the prosecution witnesses (PWs) resiled in the court. The courts sometimes took notice of perjury and sometimes didn’t. In the amended law, though, the offence has been made compoundable. The issue is being examined in this perspective.

Quranic verses touching upon the subject may be enumerated as follows: “O believers, ordained for you is retribution for the murdered, (whether) a free man (is guilty) of (the murder of) a free man, or a slave of a slave, or a woman of a woman, but he who is pardoned some of it by his brother should be dealt with equity, and recompense (for blood) paid with a grace. This is a concession from your Lord and a kindness. He who transgresses in spite of it shall suffer painful punishment. In retribution there is life (and preservation), O man of sense, you may happily take heed for yourselves. “(Quran 2:178, 179, translation by Ahmed Ali). Chapter 4, Verse 92 says: “It is not for a believer to take a believer’s life except by mistake; and he who kills a believer by mistake should free a slave who is a believer, and pay blood money to the victim’s family unless they forego it as an act of charity.” (4:92, Tr. Ibid)

There is a difference of opinion on blood money being permissible only in a murder by mistake; however, it is evident in the books of Ahadith that blood money is permissible in all cases, intentional or by mistake or on provocation (for reference see chapter on Qisas and Diyat in Sahi Muslim). The blood money during the days of Holy Prophet (pbuh) was reportedly one hundred camels, or two hundred cows, or two thousand goats, or eight hundred dinars and which was increased later proportionate to the price of cattle heads.

Coming to our aforesaid amended law, Qatl-i-Amd (homicide, intentional murder) can be waived without any compensation under section 309 of PPC and the offence can be compounded with badl-e-sulah (something in return for compromise) under section 310 of PPC though it is specifically mentioned in section 310 of PPC that giving of a female in marriage shall not constitute a valid badl-e-sulah. All offences against human body can be waived or compounded under section 338(e) of PPC read with section 345 of Criminal Procedure Code 1898 (CrPC).

The jurisdictions of the trial court or appellate court are para-material whereas the jurisdiction reverts to trial court after the decision of the appellate court/courts. It has been experienced over the years that the introduction of compoundability during trial of a murder case has virtually destroyed the criminal justice system in Pakistan. Sections 309 and 310 of PPC are well nigh a license to kill. Ours is a custom ridden society and not everyone is as pious as they ideally should be in an Islamic society. It is not often that someone is a witness to a murder, a witness whose testimony and evidence is beyond doubt.

A murder case can be adjourned under numerous reasons like non availability of defence council, general strike, elections, sad demise of a member of bench or Bar, the accused could not be produced, the whole set of PWs is not present, so on and so forth. The underlying reason, almost always, is that the accused party goes on prolonging the trial to pressurise the heirs for a compromise or to win or terrorise the eye witnesses. Deliberation is the most urgent need of the hour.

The Quranic verses do not lay out a total remission of blood money but provide a reduction. The heirs of victims (wali) avoid the mentioning of badl-i-sulah, mainly due to customary reasons. The Muslim jurists should once again examine the issues of Qisas and Diyat in the light of Quran and Sunnah. To save the society from anarchy it is proposed that the provisions of compoundability during trial or appeal should be deleted in as much as the existing proviso to section 381 of CrPC which reads ‘that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him at the last moment before execution of the sentence’. This is sufficient to meet the requirement of making laws according to Islamic injunctions while making our criminal justice system dynamic and a bit harder to manipulate.

The writer, an LLM, is a faculty member, University Law College, University of the Punjab, Lahore.

Ed Note: An earlier version of the article carried a mistake in the last paragraph which has been addressed.