Legal scholars have long struggled to come up with a universally acceptable definition of justice and fairness throughout history. But what is universally agreed upon is that blindly following a law in letter but not spirit cannot ensure either.
In 2018, Pakistan had prevented US diplomat Col Joseph Emanuel Hall, a military attaché, from leaving the country after he killed a motorcyclist, 22-year-old Ateeq Baig while driving, and the incident increased political tensions between the two countries. In 2019, another news surfaced when the US diplomat’s wife killed 19-year-old Harry Dunn with her car in Northamptonshire, UK. She left the country after telling the police that she won’t. The victim’s mother told the media that she was utterly devastated by her son’s death. The then Foreign Secretary Dominic Raab urged the US embassy to reconsider after the State Department said that diplomatic immunity is rarely waived.
In both these cases, it can be argued that the law was fully complied with and the deaths were the result of accidents, but the families of the victims would argue that justice was not done to them. In 2021, four young men were killed, and two others were injured when a vehicle, with the family of the then Federal Ombudsperson for Protection against Harassment of Women at the Workplace on board, hit a car on the Srinagar Highway in Islamabad. Even though the police registered a case against the Ombudsperson’s son and arrested the driver, her son was released on pre-arrest bail. The victims and their families might cry for justice, but it is the law that is to be blamed.
Laws in Pakistan which deal with fatal accidents are inherently defective as section 320 of the Pakistan Penal Code (PPC), that is, punishment for Qatl-i-Khata by rash and negligent driving is bailable, and the accused, therefore, claims bail as a right and can be released even by the arresting officer. The defect in the law is apparent as Section 322 of the PPC, which prescribes the punishment for Qatl-bis-Sabab, only provides for the payment of Diyat and not imprisonment, but is not bailable. On the other hand, the offence under section 320 PPC is punishable with imprisonment of up to ten years along with Diyat. This is baffling for every legal scholar, as the time spent by an accused cannot be justified for an offence which is not even punishable by imprisonment in the first place. The Fatal Accident Act 1855, also provides a remedy to the family of the victim to file a suit for compensation for the loss occasioned by the victim’s death and enables the courts to make the wrongdoer answerable in damages for causing injury.
In a groundbreaking order by Justice Salahuddin Panhwar of the Sindh High Court, in Ghulam Shabir v. The State (2016 MLD 1714), with respect to section 320 PPC, the court had dismissed the bail application observing that this was a heinous offence as the unfortunate incident took the lives of 17 people and more than 20 people were injured, because of negligent attitude of the applicants/accused towards their obligations and duties.
While the Control of Narcotic Substances Act 1997, lists methamphetamine as a scheduled drug, it does not recognise the act of consuming this drug as an offence
Islamic Criminal Law does not recognise the difference between bailable and non-bailable offences, and, under the principle of Qisas, the right to forgive the accused for qatl lies with legal heirs of the victim, and to grant bail to the accused without even granting them an audience while dealing with cases under section 320 PPC again raises a legal question regarding justice and fairness.
Recently, Natasha Iqbal, in the Karsaz road accident case, killed a 26-year-old MBA student Amina, and her 60-year-old father Imran Arif, who sold bread and papadom (thin wafer), and both were the breadwinners of their family. The arrest of the accused was allegedly delayed, which is not warranted under the law, on the plea that she was of unsound mind. An accused of unsound mind is to be released upon bail after being arrested, under Section 466 of the Code of Criminal Procedure (CrPC), 1898, after the alleged unsoundness of mind has been determined under sections 464 and 465 of the CrPC, which is a special procedure and different from dealing with cases of bail in bailable offences under section 496 CrPC, and bail in non-bailable offences under section 497 CrPC.
Secondly, regarding the plea of unsoundness of mind, provided under section 84 of PPC, the prosecution can argue against it because intention is not required in Qatl-i-Khata, which is committed by mistake of act or by mistake of fact; nor for Qatl-bis-Sabab, for doing any unlawful act which becomes a cause for the death of another person, thus, making the argument of unsoundness of mind immaterial.
It was reported on August 31, 2024, that a fresh case was registered against the accused for driving under the influence of methamphetamine or crystal meth, under Section 11 of The Prohibition (Enforcement of Hadd) Order 1979, which deals with consuming intoxicating liquor and intoxicants. The law, however, does not include methamphetamine as a scheduled drug. While the Control of Narcotic Substances Act 1997, lists methamphetamine as a scheduled drug, it does not recognise the act of consuming this drug as an offence. This law only deals with acts of cultivation, possession, import or export, and trafficking or financing the trafficking of narcotic drugs etc. Therefore, the accused may be given the benefit of the shortcomings in the narcotics laws of Pakistan.
It was reported on September 6, 2024, that a Sessions Court in Karachi had granted bail to the accused after the counsel to the victims’ family said that they had pardoned them and removed their objections. The present case has thus exposed the dark side of the Pakistani criminal justice system which, under draconian drug laws, only incarcerates the poor, while benefiting those with wealth and cars to get away from committing qatal.
Rafaqat Tanoli has been crying for justice for his deceased son, killed by a vehicle of the Lahore High Court in 2022, and it is high time that parliament makes the offence under section 320 PPC non-bailable, so, that the legal heirs of victims are treated with dignity if not justice, because in the land of the pure, the laws are different for the rich and the poor.