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Pros and cons of Qisas and Diyat law

September 16, 2013

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THE Qisas (retribution) and Diyat (blood money) provisions of Pakistan Penal Code (PPC), 1860, are once again under discussion on national as well as international level. Following the surfacing of the pardon given by legal heirs of a deceased young man in the famous Shahzaib murder case in Karachi, these provisions have been in the limelight.

Ever since the introduction of these provisions around 23 years ago by the then government on the order of the Shariat Appellate Bench of the Supreme Court, the law remains under discussion in high profile murder cases. Last time it was the murder of two Pakistanis by an American national Raymond Davis in Lahore in 2011 when this law was invoked to pardon that accused. Several write-ups had appeared on it in national and international media. Now when the family of Shahzaib, whose cold-blooded murder last year drew public outcry, has agreed to forgive the influential killers which has resulted in aggressive public debate on the pros and cons of this law.

Commonly known as the Qisas and Diyat Ordinance, through it drastic changes were made in Chapter 16 of the British-era Pakistan Penal Code related to offences affecting human body. Sections 229 to 338 of PPC, related to bodily hurt and murder were repealed and replaced with new provisions, which the then government claimed were in accordance with the Islamic injunctions and judgment of the Shariat Appellate Bench of the Supreme Court. Similarly, some provisions of the Criminal Procedure Code, 1898, were amended and legal heirs of a deceased person were authorised to enter into compromise with a killed even at last moment before execution of sentence.

Initially, these provisions were introduced through the Criminal Law Amendment Ordinance VII of 1990, popularly known as Qisas and Diyat Ordinance (QDO), in Oct 1990 by the then President Ghulam Ishaq Khan during the caretaker government headed by prime minister Ghulam Mustafa Jatoi. The said ordinance was re-promulgated over 20 times as the constitutional life of an ordinance is four months. Finally, in 1997 during the government of Mian Nawaz Sharif, it became an Act of the Parliament, which covered all offenses against human body and provided for Qisas and Diyat.

The Federal Shariat Court had in several Shariat petitions declared that the existing provisions of PPC related to murder and bodily hurt were contrary to the Islamic injunctions. The then government had filed an appeal before the Shariat Appellate bench of the Supreme Court, which dismissed the same in July 1989. The Shariat appellate bench made it binding on the government to amend the relevant laws.

The five-member appellate bench unanimously decided that sections 399 to 388 of PPC 1860 are repugnant to the injunctions of Islam on different grounds. The bench ruled that these provisions did not provide for the Qisas in cases of qatl-i-amd (deliberate murder) and jurooh-al-amd (deliberately causing hurt) as was prescribed in Holy Quran and Sunnah, it did not provide for compromise between the parties on agreed compensation when they make sulh (compromise) in case of qatl and jurh (hurt); it did not exempt a non-pubert and an insane offender from the sentence of death in cases of murder; etc.

The bench also ruled that section 345 of the Code of Criminal Procedure was repugnant to the injunctions of Islam in so far as it did not include some of the offences against human body in the table of compoundable offences. It also ruled that section 381 of the CrPC was repugnant to the injunctions of Islam in so far as it did not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into compromise with him even at the last moment before execution of sentences, upon which execution could not take place.

The bench had held that this decision should take effect from March 23, 1990, whereby the provisions referred to by the bench, to the extent they had been held to be repugnant to the injunctions of Islam, should cease to have effect.

Following the introduction of the Qisas and Diyat law the crimes affecting human body are no longer considered offences against the society or state, but are now considered offences against an individual. Thus, if these individuals so decide, offenders can walk free even after committing grave and heinous crimes like murder.

Now, the legal heirs of a deceased have the right to make a compromise with the offender under section 309 and 310. In the first provision, legal heirs can forgive the murderer in the name of God without getting any monetary compensation in the form of Diyat, while under section 310 the legal heirs can compromise after receiving Diyat in their respective shares. The minimum value of blood money is the value of 30630 grams of silver on the first day of the month of July each year.

The law defines Diyat as “compensation specified in section 323 payable to the heirs of the victims.” Similarly, Qisas is defined as “punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a Wali.”

One important inclusion in law is that of section 311 of the PPC which empowers the court to convict a person, even if compromise took place in it, under the principle of fasad-fil-arz (mischief on earth), keeping in view the facts and circumstances of the case, and could sentence him up to 14 years of imprisonment. Following amendments in the PPC in early 2005, murders on the name of honour were also included in section 311, which provides that the imprisonment shall not be less than 10 years.

Experts dealing with criminal cases believe that the trial and appellate courts had very rarely been invoking section 311 of PPC and in very few cases killers were convicted under the principle of fasad-fil-arz. They believe that in heinous nature cases the courts should invoke this section so that the offenders are not set free merely on the ground that they have entered into a compromise.