Extending arguments during course of hearing of cases at the Supreme Court relating to practice of pardoning of killers in the name of Allah, Attorney General (AG) Munir A Malik on Monday said compromise could take place in Qasas and Diyat cases no matter what stage the case stood at a particular time.
However, Amicus Curiae Shahid Hamid said courts could award punishment per section 113 under Tazeer even if the legal heirs of the accused pardoned the killers.
“The court should not rely on compromise only in murder case. The court should direct parliament to remove constitutional loopholes.”
The five-member larger bench of the SC headed by Justice Nasirul Mulk, remarked, “The court will give decision by remaining within its ambit in consonance with Islamic teachings.”
Justice Saqib Nisar remarked that the court was competent to accept compromise in Qasas cases.
Justice Ejaz Afzal said, “We have to give decision in the light of facts. There lies difference between law and customs. Whatever is done will be done in keeping with law and constitution.”
Shahid Hamid said, “I have already said in my reply that if the family members of the killed pardon the killer, even then punishment will be awarded under Tazeer. The court can declare void any law repugnant to Quran and Sunnah.”
About “Qatal-e-Amd”, he said if someone killed anyone deliberately, the killer was awarded capital punishment.
He also read out section 305, 306. “Qasas does not become practicable as long as members of the victim family remain non-adult. Matter of Diyat is somewhat different. Punishment of 25 years term is fixed in Tazeer,” Hamid said.
The court inquired if any punishment was there in Islamic teachings with reference to Qatl-e Amd.
Hamid said Islam was a clear religion and everything was laid down therein. “Even Majlis-e-Shoora can lend no help to the murderer in this respect.”
Justice Ejaz Afzal remarked there were a few among thousands of cases that had been decided under Qasas. “Section-311 clarifies Qasas.”
Hamid said the matter was laid down in section-345.
“Any Qatl-e-Amd is not only a crime against a persons but he is also criminal of the state. If the family members of the killed person say that they pardon for the sake of Raza-e-Elahi, the killer will still be punished, as murder is a state offence,” he said.
The court remarked, “We are not appraising the case on modern laws but we want to see what Islamic teachings say about it.”
Hamid said the punishment prescribed under Qatl-e-Amd was aimed at eliminating vicious customs, including Karokari.
Justice Nasirul Mulk remarked, “The culprit is acquitted on compromise under the section being referred to by you. The court is satisfied to the extent of section 345 because compromise has been kept subordinate to court’s orders.”
Justice Saqib Nisar added, “The case will be decided in conformity with Islamic teachings.”
He inquired from the amicus curiae if the court could punish a criminal if the culprit pleaded guilty and extended apology.
Hamid said “Yes, he will be punished even then. Several decisions of the cases are there in support of it. The superior judiciary has also given decisions in this regard.”
Justice Nasirul Mulk observed, “You want to say whosoever commits crime will be awarded punishment at any cost. What is responsibility of state in the murder case?”
Hamid said its responsibility was to convict whosoever committed crime.
“The Quranic teachings and the law also say this. The court can give guidelines. It is necessary to review the circumstances under which the murder has been committed.”
The hearing of the case was later adjourned for an indefinite period.