ISLAMABAD: Out-of-court-settlements, if done right, can decrease the burden of the judicial system. But legal experts believe that in most recent cases, such agreements result in a miscarriage of justice. These concerns have been highlighted in a number of instances, where those accused of heinous crimes have gotten off virtually scot-free.

In the first such instance, a man accused of raping and killing at least two teenage girls attempted to negotiate just such a settlement.

The accused, an alumnus of the National University of Modern Languages, allegedly manipulated his girlfriend into introducing him to women who he would sleep with. The man claimed to have AIDS and told his girlfriend that sleeping with multiple partners would cure him.

According to testimony, the man’s girlfriend introduced him to five women. At least two of these women were raped, murdered and their bodies cremated, ostensibly to conceal evidence.

The accused was arrested when the girls’ families reported their disappearance. Police arrested the couple in Feb 2013 and subsequently, they were put on trial.

When the case was in its penultimate stages, the father of one of the murdered girls agreed to settle. He changed his statement before the court, prompting the prosecution to challenge the new account and declare him a hostile witness.

Prosecutors maintained that that the offences he was booked for were non-compoundable offences. Public prosecutor Amir Nadeem Tabish told Dawn that the Pakistan Penal Code (PPC) defines heinous crimes such as rape, kidnapping, concealment or destruction of evidence as non-compoundable offences, over which there can be no compromise.

Legal experts say individuals accused of heinous crimes exploit legal loopholes, coerce victims to escape punishment

The accused, prosecutors in the case maintained, was charged under PPC sections 302 (murder), 364-A (kidnapping), and 376 (rape). Mr Tabish said that a compromise was only possible under section 302, which was still a compoundable offence.

Former police officer-turned-legal practitioner Saleemullah Khan told Dawn that such settlements were one of the reasons why the crime rate had been gradually rising. As per statistics available with Islamabad police, the number of rape cases reported in the capital was 222 in 2011, but two years later in 2013, the number had jumped to 303. Similarly, 117 murders were reported in 2011, but these went up to 128 in 2012.

Then, last week, the murdered girl’s father filed an application before an Islamabad district and sessions judge, complaining that the family of the accused had only paid him Rs0.7 million, instead of the promised Rs1 million.

This is not the only such case in recent memory.

The family of a 9-year-old girl, who was murdered in September this year in the Islamabad suburb of Pindorian, also pardoned the murderer through an out-of-court settlement.

The murderer allegedly shot the girl in a drunken stupor. The aggrieved family, fearing lengthy litigation, settled for Rs5 million in blood money in exchange for pardoning the murderer, a lawyer associated with the case told Dawn. The matter is now fixed for hearing on Dec 12.

Sources said that since the case was registered under PPC Section 302, the alleged killer may be freed by the court on the basis of this settlement.

However, things are not looking up for one of the alleged killer’s accomplices. Accused of abetment, the associate has not entered into a compromise with the victim’s family, which means that he may still be tried for his crime, the case prosecutor said.

Earlier, in 2012, the Supreme Court also took notice of an out-of-court settlement that freed four individuals who were accused of raping a 13-year-old girl in Rawalpindi.

According to the prosecution, the rape took place on March 21. The victim then tried to commit suicide, but survived.

But a Rawalpindi sessions court acquitted the accused last year after the victim’s father gave statements in favour of the accused, telling the court that they had been “identified by mistake”.

Riasat Ali Azad, an advocate of Supreme Court said that though the rape is a non-compoundable offence where an out-of-court compromise is not possible, but the accused manage to get off by threatening the victim and their family or pressuring them to accept a monetary settlement.

According to Advocate Azad, out-of- court settlements are carried out, in murder cases, under Section 3.23 of the PPC following the payment of Qisas (blood money), he added.

Civil society has, on a number of occasions, expressed concerns over such settlements where vulnerable members of society are coerced to accept a compromise by more privileged individuals.

Human rights activist Tahira Abdullah told Dawn that applications of compoundablity and waivers have contributed towards the proliferation of violent crimes against women. She said that accused parties cases of honour killing also benefit from such unfair settlements.

Mr Saleemullah Khan, who has served as an inspector general of police, pointed out that such compromises were also quite a burden on the exchequer, because the energies of police personnel spent investigating a case and the resources employed could not be reimbursed. In addition, prosecutors’ fees and legal costs were quite high in such cases. He suggested that in order to discourage out-of-court settlements, courts can make the accused party bear the legal costs of the case in such matters.

Published in Dawn December 6th , 2014