Wasti found that one difference between the two decades was the introduction of the Qisas and Diyat law, imposed on the directions of a Shariat Court and upheld by the Supreme Court Shariat Appellate Bench in 1989.
Historically, such forgiveness under Hudood encouraged mercy and allowed close relatives to end tribal rivalries that went down generations
People v. individual
Criminal offences under state law are crimes against people but also the state and society as a whole. So the state, acting on behalf of society, becomes the prosecutor in all such offences. Under Islamic law, however, crimes affecting the human body are considered offences against individuals (not society) and punishment for crimes such as murder may take the form of either qisas (retribution) or diyat (blood money).
Historically, such forgiveness under Hudood encouraged mercy and allowed close relatives to end tribal rivalries that went down generations. In today’s world, however, urbanisation and the rise of the nuclear family means that the old enmities are too costly and impossible to maintain.
So today, this forgiveness mechanism acquits murderers who evade punishment if their victim’s heirs forgive them. (Usually this happens when the murderer gives the heirs money in compensation for the life lost). The privatisation of murder has commercialised and decriminalised the heinous act.
SOURCE: The Application of Islamic Criminal Law in Pakistan by Tahir Wasti (2009)
Shahrukh-Shahzaib case
The Qisas and Diyat law was talked about most recently because of the headline-grabbing 2012 Shahrukh Jatoi-Shahzaib Khan murder case that saw developments last week—even though most people were erroneously linking the two.
The son of an influential business tycoon Shahrukh Jatoi was accused of murdering 20-year-old student, Shahzaib Khan, in Karachi.
In 2013, an anti-terrorism court had awarded death sentences to Shahrukh Jatoi and Siraj Talpur for the murder, while life sentences were awarded to Sajjad Ali Talpur and Ghulam Murtaza Lashari.
An anti-terrorism court had initially sentenced Jatoi to death but, after five years, the case was moved outside this court’s jurisdiction. This effectively meant declaring his murder a crime against an individual, rather than the state. The Sindh High Court set aside the anti-terrorism court verdict because there was nothing in the case for the prosecution to merit assigning it to an anti-terrorism court. When a case is arbitrarily assigned to a harsh procedural forum, it violates a person’s constitutional right to be treated equally by the law. This is why the verdict has been set aside, and not, as many people believe, because of a compromise between the parties. It is important to mention that Shahzaib Khan’s parents have pardoned Jatoi. Shahzaib’s father Aurangzeb Khan submitted an affidavit saying that with the consent of his family members, he has reached a compromise with the family.
The law says that an accused who has been kept behind bars for more than two years (in cases which may lead to the death sentence) may be released on bail if the delay has not occurred due to the accused. In this case, the state failed to conclusively determine Jatoi's fate in almost five years, the duration of his imprisonment. A retrial has now been ordered in a sessions court.
In this case the compromise between the parties is not on the basis of Qisas and Diyat but on the basis of the changes which were introduced to the pre-existing secular law in the criminal procedure, simultaneously with the introduction of Qisas and Diyat provisions. Jatoi's release is thus not related to Qisas and Diyat technically and legally. He has not been acquitted as the outrage on social media would suggest but there is a strong likelihood that he may be acquitted as a result of the compromise.
In many instances, Qisat and Diyat provisions give the powerful and the affluent a get-out-of-jail-free card, at the expense of the lives of the poor, ordinary citizen. The victim’s loved ones are often pressured into forgiving the perpetrator. They are either intimidated or made a financial offer they can’t refuse, or both. Ultimately, justice is seen as a luxury they can’t afford.
Women & honour
Many women’s rights activists argue that the Qisas and Diyat law perpetuates a gender bias in the criminal justice system and is perhaps most damaging when abused in cases of so-called ‘honour’ killings.
According to the Human Rights Commission of Pakistan, 2,300 Pakistani women have been killed in the name of ‘honour’ in the last three years, yet conviction rates for this type of murder remain disturbingly low. This is due to the nature of honour killings being pre-meditated and committed by one of the victim’s closest relatives so the perpetrator gets away with the crime because they can simply plan for another member of the family to pardon the convicted after the fact.
Lahore High Court Bar Association former president, Nasira Javed Iqbal, said, “Qisas and Diyat laws have made it very easy for the perpetrator of honour-based crimes to escape the law… policemen now advise criminals held in other cases to declare their crime honour killing so they can escape justice.”
What next?
There have been numerous reforms proposed to keep the Qisas and Diyat law intact but make it more just. One suggestion is for the law to not apply in cases of honour killings. Another approach is for all murder cases to be handled by the anti-terrorism courts, which at least ensures that the trial reaches a conclusion. However, the difference between rich murderers and poor murderers is still made obvious, as illustrated by Jatoi. If you are able to afford a good lawyer you can get the anti-terrorism provisions struck off. A poor convict is likely to receive capital punishment for disproportionate crimes that are not terroristic in nature. The sad reminder that there is one law for a rich man and another for a poor man in Pakistan still exists.
It is not enough to simply reconsider and continue tweaking the deeply problematic laws; the Qisas and Diyat law should ideally be abolished to stop the frequent miscarriages of justice. But given the reality that this is unlikely to happen in the foreseeable future, we should think of ways in which to prevent its abuse. One suggestion is, according to lawyer Asad Jamal, assigning a greater role to the state when matters come to a point of reconciliation between the aggrieved and the offender. It is an irrational legal loophole to get away with murder and as the saying goes, ‘Don’t do the crime if you can’t do the time’.
(Update: This article has been amended to correct the original print version)