The dark side

29 Sep 2013

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When military dictator General Zia-ul-Haq embarked upon a radical process of Islamisation in 1979 by establishing Sharia benches in the superior judiciary, the Qisas and Diyat law was intriguingly omitted from his agenda of promulgating a set of Islamic penal laws. Instead, the military regime appealed against the decision of the Sharia bench of the Peshawar High Court (PHC), which was the first to take up the issue ordering the Zia government to amend the secular law of murder and culpable homicide in accordance with the Islamic injunctions.

The PHC Sharia bench ruled in the case of Gul Hassan Khan vs the Government of Pakistan that the penalties prescribed in Chapter XVI of the Pakistan Penal Code with regard to offences affecting human body, particularly under Section 302 were un-Islamic as offences were not made excusable by pardon or on the payment of Diyat.

However, the law remained under discussion and litigation from 1980 to 1989. It was finally approved by the judges of the Sharia courts and promulgated through an ordinance known as the Qisas and Diyat Ordinance during the interim government headed by Ghulam Mustafa Jatoi in 1990.

The Federal Sharia Court (FSC) reviewed the Islamic and secular version of the two laws of murder and culpable homicide in the case of Muhammed Riaz vs the Federal Government of Pakistan. The FSC, in a majority judgment, upheld the PHC Shariat Court’s ruling.

Later, in 1989, the FSC judgment was also challenged before the Sharia Appellate Bench of the apex court that also dismissed state appeals.

The Appellate Bench of the SC observed in is judgment: “Section 302, PPC in its present form is against Sunnah. To make it in conformity and accordance with the injunctions of Islam it is essential, so as to pre-empt sentence of qatl-i-amd as stated in the Qur’an and that should also contain provision as to composition with the victim with or without consideration. In addition, the court be made competent to award sentence as Ta’zir to the victim. To make the law in conformity with Qisas, waiver, compounding and awarding of ta’zir, the injunctions of Islam as contained in Qur’an and Sunnah and Fiqah-i-Islami to be consulted”.

The law was promulgated by the then interim government on Sept 5, 1990 and its provisions came into effect on Oct 3, 1990.

The Criminal Law (Second Amendment) Ordinance 1990 (Ord VII) was promulgated introducing the Islamic law of Qisas and Diyat in the PPC and replacing Sections 299 to 338 of the PPC with its own definition of offences and sentences.

The Ordinance VII introduced Islamic punishments such as Qisas, Ta’zir, Diyat, Arsh and Daman in the PPC, but it maintained the death sentence, imprisonments of both kinds and financial penalty for qatl-i-amd (intentional homicide) as provided under the repealed law. One of the punishments of intentional homicide was death as Qisas. However Qisas being the right of the victim, or his wali (if the victim had died), which could then be exercised, was waived or compounded under the Ordinance.

However, the right to retaliate was given to the government functionary rather than the victim or his wali under the Ordinance.

The Criminal Law (Amendment) Act, 1997 that amended the Pakistan Penal Code incorporating Qisas and Diyat law was enacted by the parliament in 1997.

The provisions pertaining to the punishment under ta’zir after waiver or compounding the right of Qisas in qatl-iamd was earlier amended through the ordinance.

The amendment that became the part of the new law allows the courts to award sentence to the accused person to up to 14 years’ imprisonment as ta’zir in view of the principle of fisad-fil-arz, despite any compromise or waiver by the heirs of the deceased.

It is widely argued that the present homicide law is incompatible with the criminal justice system of the country as political expediencies were the main motivation for its introduction.

The application of the law is believed to have resulted in an alarming fall in convictions for culpable homicide and murder with a large number of murderers escaping punishment, though the murder rate has gone up in recent years.

The so-called Islamic law enables the murderer to enter into a compromise with the legal heirs of the victim at any stage of trial and his sentence, even after a Supreme Court verdict upholding the punishment awarded to him.

Under the law, either party can file an application to the jail superintendent to stay the execution in view of compromise between them. Later, the compromise proceedings are initiated in the High Court.

This is a established rule that the penal laws, whether Islamic or secular, ought to be retributive, punitive, deterent, redressive and reformative. However, the implementation of the Qisas and Diyat laws seem to have changed the whole structure of criminal justice system in the country as the role of state has apparently become restricted to merely ensuring a smooth trial of the cases through courts.

It is widely apprehended that practice of entering into compromise by waiver (pardoning for the sake of God) or through compensation to the legal heirs of the victim, is contributing to the deterioration of the situation of law and order.