It has been a controversial year for the Supreme Court of Pakistan, to say the least. Not only does it find itself fiercely entangled in the volatile webbings of recent constitutional throes, its decisions in the realm of criminal law have also solicited much controversy: the issue of blood pardons and terrorism has once more left outcry in its roar. Public protest against the release of Shahrukh Jatoi has been immense.
This is not the first time a murderer has walked free under the banner of diyat; the fateful cases of Salahuddin Ayyubi, Shahrukh Jatoi, Qandeel Balcoh, among others, are strung by the same thread of pardon. In each case of murder, the family forgave the murderer.
However, a unique feature regarding the Jatoi case is that the prosecution later pushed for trying him under the Anti-Terrorism Act 1997. The argument seemed obvious enough: by firing at his victim in the open streets of Karachi, Jatoi had caused mass fear and sense of insecurity and secondly, the act in itself purported a message: the life of a common man was not equal to the life of those born into the elite. There was no equal resolution to feuds with the powerful — there was only intimidation, threats and in the worst case, death.
However, one must look towards the legality of such an argument. According to Section 6.1 (b) and (c) of the Anti-Terrorism Act 1997, a terrorist act must not only solicit fear but it must also be effected with the intention of “advancing a religious, sectarian or ethnic cause”, among other illustrations. Whatever the other scenarios may be, one point remains clear: terrorism is not a crime against an individual; it is an assault upon the state. However, the question still remains: can Shahrukh Jatoi be tried for a crime thus?
At one point, it was possible that he could have. From 2016 onwards, one of the main sources of case law surrounding terrorism stemmed from Kashif Ali vs. State (PLD 2016) which stated that, “where the action of an accused results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity,” it ought to be tried for terrorism in a Special Court.
However, this expansionist approach was overturned by Justice Asif Saeed Khosa in Ghulam Hussain v. The State 2019, noting that the element of intent or cause, whether it be sectarian, ethnic, or with the purpose of intimidating the state, to have been pushed into the shadows in earlier case law. Prior readings of the case law had resulted in convictions where private offences had been adjudicated as terrorist acts based on presumptive grounds of effect alone. This was in clear violation of the current Act.
I would argue that the Court cannot be held guilty for upholding the law; one cannot try a thief for robbery and call it justice. In Rex v Sussex Justices (1924), Lord Hewart famously said: “Justice must not only be done but must also be seen to be done.” The punishment for murder under qisas according to Section 302 of the Pakistan Penal Code, and terrorism under the Anti-Terrorism Act in this case may very well be the same; however, the route to the result is also of uncompromising importance. Therefore, it is legally quite reasonable to say that Jatoi may have caused mass disturbance, but it does not take away from the fact he had no cause, so to speak, and therefore he cannot be held liable for the act of terrorism.
Opponents of such a reading would argue for necessity and justice — powerful men like Jatoi cannot be held accountable by ordinary law. Already, he has been forgiven by the family as a result of which he cannot be tried for murder.
The question, however, then becomes: what need arises for us to look towards terrorism particularly – an unforgiveable crime not even prosecuted by ordinary courts most of the time, as a means to try brutal offences such as murder?
The answer is simple: It is because concepts of diyat do not apply to acts of terrorism. When the body in violation is the state, there are no pardons.
The problem then, is not with the enforcement of justice, but the making of justice. By privatizing murder in Federation vs. Gul Hassan (1989), the concept of blood pardons was emblazoned in law, and murder was no longer a matter of crime against the state, albeit of a qualitatively different nature than terrorism, but rather, a matter that could be resolved privately between families. It must be noted that while the order of the Court made a distinction between deliberate murder and murder, where the former could not be forgiven, the Ordinance consequently promulgated made no such difference and we landed with the option of blanket pardoning all kinds of murders.
Automatically, this meant that conviction rates were going to drop, and they did. As long as pardons could be obtained under the Section 307 of the Pakistan Penal Code, the hands of justice could be stayed. Today, murderers walk free, unpunished and unscathed, for the anguish they have inflicted upon our society.
The solution is obvious, and it is not to try murderers under terrorism. That is another injustice. It is important to emphasize here that no matter how grotesque the act, it cannot be tried for terrorism unless it fits the definition of what it is to be a terrorist act. Javed Iqbal, the serial killer responsible for the sexual abuse and killing of a hundred young boys by strangling the victims, then dismembering their bodies into a hundred pieces in front of their parents and afterwards dissolving them in acid, was still not tried under terrorism despite the mass terror he caused because his intention was not to intimidate the state or a certain sect of the society. He was convicted for child sex abuse and murder.
Therefore, the way forward may not be simple but it is obvious: Federation vs Gul Hassan must be overturned, and Section 307 scrapped.
The courts must not serve the assailants, and they must not serve victims. They are servants of justice, and in objectivity alone must their allegiance lie.
This is not the first time a murderer has walked free under the banner of diyat; the fateful cases of Salahuddin Ayyubi, Shahrukh Jatoi, Qandeel Balcoh, among others, are strung by the same thread of pardon. In each case of murder, the family forgave the murderer.
However, a unique feature regarding the Jatoi case is that the prosecution later pushed for trying him under the Anti-Terrorism Act 1997. The argument seemed obvious enough: by firing at his victim in the open streets of Karachi, Jatoi had caused mass fear and sense of insecurity and secondly, the act in itself purported a message: the life of a common man was not equal to the life of those born into the elite. There was no equal resolution to feuds with the powerful — there was only intimidation, threats and in the worst case, death.
However, one must look towards the legality of such an argument. According to Section 6.1 (b) and (c) of the Anti-Terrorism Act 1997, a terrorist act must not only solicit fear but it must also be effected with the intention of “advancing a religious, sectarian or ethnic cause”, among other illustrations. Whatever the other scenarios may be, one point remains clear: terrorism is not a crime against an individual; it is an assault upon the state. However, the question still remains: can Shahrukh Jatoi be tried for a crime thus?
At one point, it was possible that he could have. From 2016 onwards, one of the main sources of case law surrounding terrorism stemmed from Kashif Ali vs. State (PLD 2016) which stated that, “where the action of an accused results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity,” it ought to be tried for terrorism in a Special Court.
However, this expansionist approach was overturned by Justice Asif Saeed Khosa in Ghulam Hussain v. The State 2019, noting that the element of intent or cause, whether it be sectarian, ethnic, or with the purpose of intimidating the state, to have been pushed into the shadows in earlier case law. Prior readings of the case law had resulted in convictions where private offences had been adjudicated as terrorist acts based on presumptive grounds of effect alone. This was in clear violation of the current Act.
Today, murderers walk free, unpunished and unscathed, for the anguish they have inflicted upon our society.
I would argue that the Court cannot be held guilty for upholding the law; one cannot try a thief for robbery and call it justice. In Rex v Sussex Justices (1924), Lord Hewart famously said: “Justice must not only be done but must also be seen to be done.” The punishment for murder under qisas according to Section 302 of the Pakistan Penal Code, and terrorism under the Anti-Terrorism Act in this case may very well be the same; however, the route to the result is also of uncompromising importance. Therefore, it is legally quite reasonable to say that Jatoi may have caused mass disturbance, but it does not take away from the fact he had no cause, so to speak, and therefore he cannot be held liable for the act of terrorism.
Opponents of such a reading would argue for necessity and justice — powerful men like Jatoi cannot be held accountable by ordinary law. Already, he has been forgiven by the family as a result of which he cannot be tried for murder.
The question, however, then becomes: what need arises for us to look towards terrorism particularly – an unforgiveable crime not even prosecuted by ordinary courts most of the time, as a means to try brutal offences such as murder?
The answer is simple: It is because concepts of diyat do not apply to acts of terrorism. When the body in violation is the state, there are no pardons.
The problem then, is not with the enforcement of justice, but the making of justice. By privatizing murder in Federation vs. Gul Hassan (1989), the concept of blood pardons was emblazoned in law, and murder was no longer a matter of crime against the state, albeit of a qualitatively different nature than terrorism, but rather, a matter that could be resolved privately between families. It must be noted that while the order of the Court made a distinction between deliberate murder and murder, where the former could not be forgiven, the Ordinance consequently promulgated made no such difference and we landed with the option of blanket pardoning all kinds of murders.
Automatically, this meant that conviction rates were going to drop, and they did. As long as pardons could be obtained under the Section 307 of the Pakistan Penal Code, the hands of justice could be stayed. Today, murderers walk free, unpunished and unscathed, for the anguish they have inflicted upon our society.
The solution is obvious, and it is not to try murderers under terrorism. That is another injustice. It is important to emphasize here that no matter how grotesque the act, it cannot be tried for terrorism unless it fits the definition of what it is to be a terrorist act. Javed Iqbal, the serial killer responsible for the sexual abuse and killing of a hundred young boys by strangling the victims, then dismembering their bodies into a hundred pieces in front of their parents and afterwards dissolving them in acid, was still not tried under terrorism despite the mass terror he caused because his intention was not to intimidate the state or a certain sect of the society. He was convicted for child sex abuse and murder.
Therefore, the way forward may not be simple but it is obvious: Federation vs Gul Hassan must be overturned, and Section 307 scrapped.
The courts must not serve the assailants, and they must not serve victims. They are servants of justice, and in objectivity alone must their allegiance lie.