ISLAMABAD, Oct 1: The federal government has raised a number of questions before the Supreme Court bench hearing a murder appeal and asked if it could make a law about compromise rules on a case-to-case basis when authoritative SC precedents on the issue already exist.

In a reply submitted to the court by Attorney General Muneer A. Malik, the government asked whether the Supreme Court could issue a comprehensive and authoritative judgment on the issue of waiver of Qisas (retaliation) and ‘compoundability’ of murder offences.

At the last hearing on Sept 13, a three-judge SC bench headed by Chief Justice Iftikhar Muhammad Chaudhry had indicated that it would issue a judgment against the rising trend of misuse of the compromise laws as well as the Islamic injunctions by pardoning convicts of heinous crimes ‘Fisabilillah’ (in the name of God).

The court had taken up appeals of Mohammad Azam and Sikander Hayat who had killed one Mohammad Arif in tehsil Phalia of Mandi Bahauddin district in 2004.

The government asked whether the pronouncement of the Supreme Court should be limited to cases of Qatl-i-Amd (murder) or should such a pronouncement be in relation to all offences involving the waiver of Qisas and compoundability of offences under provisions of section 338-E of the Pakistan Penal Code (PPC) and section 345 of the Criminal Procedure Code (CrPC).

It further asked: “Whether the permission of the competent court is a condition precedent to the right to waive Qisas and compoundability of the offence and the right to waive Qisas and to compound the offence is not absolute right. If so, under what legal and factual conditions, should approval be granted by the competent court?

“In the context of the waiver of Qisas and compoundability of the offence, or the right to compromise, what is meant by ‘freewill and without fear, coercion, under influence and undue pressure? What principles and procedure the competent court should adopt to ensure that the right to waive Qisas and compoundability of the offence, or the right to compromise, has been exercised out of freewill and without fear, coercion, undue influence and undue pressure.

“Whether it is the duty of the state to ensure that the right to waive Qisas and compoundability of the offence, or the right to compromise, has been exercised out of freewill and without fear, coercion, undue influence and undue pressure? And what measures (physical protection, legal aid, etc.) is the state’s duty to provide to the legal heirs and/or victim in order to ensure that it performs this duty.

“Whether the lack of implementation of section 338-G, CrPC (relating to providing finances to poor prisoners to benefit from this right of Qisas and compoundability of offences and mechanism protecting rights of the victims for the purpose of compensations) is not a violation of articles 4 (right of individual to be protected under the law) and 25 (equality before law) of the constitution?

“Whether the competent court can impose punishment under Tazir, as specified in that section, only in cases of waiver of Qisas and compoundability of the offence of Qatl-i-Amd (murder)?”