THE law of qisas is derived from the primary source of Islamic law: the Quran. The Quran uses the term ‘qisas’ in the sense of ‘equality’.
Let us briefly look at the principle of qisas, its objectives and the exceptions to the principle of qisas, and objectives of such exceptions. Let us also relate qisas to the Pakistan Penal Code and argue that the PPC is reflective of the true letter and spirit of qisas, but further argue that the law needs proper interpretation and stringent application through robust judicial oversight.
The grand norm of the Quran is that life is sacred and it cannot be taken away. Life, however, can be taken for dispensing justice: “…Take not life which Allah has made sacred except by way of justice and law. …” (6:151).
Within the justice system of Islam, equality is the cardinal rule in cases of murder and hurt. The Quran (2:178) allows qisas in cases of intentional murder: “O you who believe, qisas has been prescribed for you in cases of murder … But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.”
The essence of the principle of qisas is human equality (affirmed in the Quran, 5:45) and security of life in society. The context of revelation (shan-i-nazool) sheds ample light on the objectives of qisas: the aim was to curb the pre-Islamic practice whereby the blood of some influential tribes and individuals was considered more precious than the blood of poor and weaker segments of society.
The blood of women and slaves was also considered less precious compared to the blood of men and freemen. The Quran prohibited this practice, by making the blood of everyone equally precious: life for life, but allowed an exception, ie forgiveness for merciful objectives. The Quran warns of painful punishment for those who transgress these rules.
The Quran provides two options to deal with someone who is found guilty of intentional murder: qisas (ie that he/she be killed in the manner in which the victim was murdered) and forgiveness by the heir/s of the victim. The conditions for the second option are that the victim’s heir/s are required to ask for ‘fair’ diyat (blood money) and the guilty person is obligated to pay diyat in a ‘good’ way. To make sure that diyat is fair and that it is paid ‘in a good way’, jurists have agreed on judicial oversight over the matter of demanding and paying diyat as leaving it as a private matter was risky.
The heir/s of the victim may forgive diyat as well, which is sometimes considered the third option, ie forgiving the guilty in the name of Allah.
The option of diyat is an exception to the rule of qisas (ie life for life) and a reduction in the punishment. The Quranic (2:178) basis for this reduction is ‘mercy and relief’ from Allah. Human equality and the protection of life are overriding aims of qisas; forgiveness is an exception, and aims at achieving merciful objectives. Therefore, diyat should be paid in deserving cases in order to achieve merciful objectives. Diyat must not be used to buy the blood of the poor and weak in society, negating the essence of qisas.
The relevant sections of the PPC, as inherited from the British, were declared incompatible with the Quran and Sunnah in Gul Hassan (PLD 1980 Peshawar 1). The Supreme Court upheld the decision (PLD 1989 SC 633) thus forcing the government to incorporate qisas in the PPC.
The current law (Sections 302, 309) of qisas is reflective of the Quran: it allows qisas and the waiver of qisas with or without compensation, ie diyat. Judicial oversight over sulh (ie forgiveness with or without diyat) is provided in Section 210.
The PPC (Section 311) wisely provides further safeguards by allowing the court to award punishment as tazeer in cases with aggravating circumstances, eg circumstances amounting to fasad fil ard (spreading corruption on the earth) even if the victim’s heir/s have forgiven the guilty person.
Judicial oversight has two main functions: firstly to make sure that the victim’s heir/s demand fair diyat and that the guilty person pays it in a good way and, secondly, to determine whether aggravating circumstances exist demanding additional punishment as tazeer.
To sum up, the law exists but it needs proper interpretation in line with the essence of the Quran, and a more stringent application in order to achieve the aims of qisas as laid down in the Quran.
Without robust judicial oversight, the law will be used by rich and influential members of society for their own ends, which not only goes against the essence of the Quran, but takes us back to the pre-Islamic Arab society where the blood of victims such as Shahzeb Khan seemed less precious.
The writer is a senior lecturer in law at the University of Hull, UK.