Daily Times

On September 13, 2013, the Supreme Court (SC) of Pakistan, during the hearing of a 2004 murder case in which a compromise had been reached, said that it may form a larger bench on the increase of the misuse of compromise laws by pardoning convicts. This decision comes in the backdrop of the decision taken by Shahzeb Khan’s parents to forgive his killers, opening up the doors for their release, which had outraged many and potentially placed the lives of witnesses who testified against Shahrukh Jatoi and Siraj Talpur at risk. The three-member bench of the SC has said cases involving ‘forgiveness’ in the name of Allah need to be looked at. The SC also stated that in Multan, from 1976 to 2006, in all cases involving the offence of murder the parties had preferred ‘compromise’, which seems alarming. Therefore, I think the decision of the Honourable SC is plausible and laws pertaining to Qisas and Diyat should be reviewed without any further delay.

Now, let’s have a brief look at the Qisas and Diyat laws with reference to Shahzeb Khan’s case. The idea behind Qisas and Diyat is based on precepts of equal vengeance and compensation. If we look at the basic principle of justice in Islamic laws as well as secular law, proportionality or equal treatment — the scales of justice — should have balance.

The Anti-Terrorism Court had awarded a death sentence to Shahrukh Jatoi while the other two had been sentenced to life imprisonment. Jatoi had filed an appeal against the sentence in the Sindh High Court. The family of Shahzeb Khan submitted the affidavit filed with the Sindh High Court later, stating that they had decided to pardon the culprits “in the name of Allah”. Under the country’s law, a victim’s family can strike an out-of-court settlement with the murderers by appearing in court to testify that they have pardoned the murderer in the name of Allah. Such pardons often include the accused paying the victim’s families money, in the form of Diyat or Qisas. However, in Khan’s case the lawyer said that the victims’ family has not accepted any payment. The court is obligated to do likewise. It further states that the parents of both the parties have come to an understanding out of court.

It is acceptable that the act of forgiving the murderer of Khan by his parents might heal their wounds, but the pardon would not establish peace and harmony but foster fasad fil arz (mischief) in this land. The reason seems simple: the ‘Justice for Shahzeb’ campaign has pitted a noteworthy section of Pakistani society against the killers of the young man and the desire for retribution of the killing is not limited to the immediate heirs of Shahzeb Khan but the whole society demands it.

A senior official of the Council of Islamic Ideology (CII) said that the Qisas law only gives the right of pardon in simple murder cases while an aggrieved family cannot pardon the accused convicted under the Anti-Terrorism Act. “In a simple murder case, under the Qisas and Diyat law in Pakistan, the aggrieved family or his heir(s) have the right to determine whether to exact retribution (Qisas) or compensation (Diyat) or to pardon the accused,” a CII senior official said, desiring not to be named. He argued that if there is a simple murder case against Shahrukh Jatoi, Siraj Talpur, Sajjad Talpur and Ghulam Murtaza Lashari, the family of Shahzeb Khan has the right to pardon the guilty. But, he added, if they were convicted under the Anti-Terrorism Act, the victim’s family has no right to pardon the accused. He said that under Islamic law, the punishment for murder can either be in the form of Qisas (equal punishment for the crime committed) or Diyat (compensation payable to the victims or the legal heirs). Under the Qisas and Diyat law in Pakistan, the victim or his heir(s) have the right to determine whether to exact retribution (Qisas) or compensation (Diyat) or to pardon the accused. The official said it was obvious that Shahzeb Khan’s family pardon is not contrary to the law, as the law allows the aggrieved family to settle the dispute with the accused out of court.

In culmination, it is submitted that the Qisas and Diyat laws need to be reviewed in Pakistan. It must be understood that justice can be only be privatised in an ideal society where the state intervenes vigorously to protect women from violence and discriminatory cultural practices; in short, where a woman is deemed an equal member of society. I hereby hold that Shahrukh Jatoi and Shahzeb Khan’s families reached a point of compromise under the law, which should be acceptable to all. The families did what is admissible in law.

However, parliament should play its part and review the laws pertaining to Qisas and Diyat, which have been misused in Pakistan for years.

The writer is an attorney and lecturer in
Law of International Trade. He can be reached at greenlaw123@hotmail.com