Daily Times

In January this year in my article “Another one bites the dust” (Daily Times, January 11, 2013) , I wrote about the host of a television programme having said that he “had set up a poll on the internet in which he had asked the public to give their opinion as to whether Shahzeb Khan would get justice. A shocking 90 percent of the people replied in the negative. The host reposted the same question after the SC took suo motu notice and an overwhelming 90 percent of the people polled replied in the affirmative.”

The Supreme Court (SC) did take notice of the 20-year-old Shahzeb Khan’s murder in Karachi and directed the IG Police Sindh, who failed to appear before it, to arrest the influential suspects, Siraj Talpur and Shahrukh Jatoi, or appear before the court without uniform. The SC also ordered the government to cancel the passports of the accused. Talpur was arrested by the Sindh Police from Naushehro Feroze and Jatoi was brought back from the UAE to face trial, although the FIA claimed to have no record of his absconding from Pakistan. And trial he did face along with Talpur. The people of Pakistan stood in solidarity with Khan’s family and prayed for justice. It was a big deal: his family standing firm against the powerful and all eyes turned towards the court. People wanted to see if the court would be able to withstand the pressure, and it did. Shahrukh Jatoi and Siraj Talpur were sentenced to death. Justice was done.

But the convicts have been pardoned, it is claimed in the name of Allah, by Shahzeb Khan’s legal heirs: his parents and two sisters. There are allegations that the pardon involved a settlement of Rs 350 million and Australian visas; the same is denied by the family. General Ziaul Haq introduced the Qisas and Diyat laws during his tenure. Qisas is defined as “punishment by causing similar hurt at same part of body of convict as he has caused to the victim or by causing his death if he has committed qatl-e-amd and in exercise of the right of the victim or a wali.” Death as a penalty can be imposed as qisas in cases of qatl-e-amd or a premeditated murder, only when either the accused makes a confession or when it is proved in a court of law beyond reasonable doubt. The heirs or wali of a victim also have the right to compound offences or waive the right of qisas. However, the court has the power to reject such a waiver or compounding, on the principle of fasad-fil-arz, having regard to the facts and circumstances of the case and award punishment under the ta’zir law. Fasad-fil-arz includes ‘the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed, which is outrageous to the public conscience, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour.’

In Khan’s case, it was reported, and I rely on the print and visual media reports, as I have neither seen the actual FIR nor have copies of the court proceedings or the final orders, that apart from being charged for premeditated murder or qatl-e-amd (302 PPC), Jatoi and Talpur were also charged and tried under the anti-terrorism laws, which contain no provision for compounding of offences.

Section 7 of the Anti-Terrorism Act, 1997 (ATA) was challenged before the Federal Shariat Court (FSC) in 2006 on the ground that it was repugnant to the injunctions of Islam as it did not recognise the right of waiver to be exercised by the wali of the deceased or compounding the offence as a whole. The petition sought the section to be amended and brought in conformity with the injunctions of Islam. It was argued that since the offence under section 302 PPC (qatl-e-amd) was a major offence in comparison with section 7 of ATA, is compoundable, therefore, the ‘legal heirs of the deceased should have also been entitled to compound the supplementary — or ancillary offence falling under Section 7 of the Act as the legislature in its wisdom has, by way of amendment Act VI of 2004, amended section 148 PPC, thereby making the same compoundable if it was committed with other compoundable offences’. The FSC rejected the petition holding that “the offence under section 7 of the Act can, by no stretch of imagination, be regarded as a minor offence in comparison with section 302 PPC because under both these provisions the offenders are liable to punishment of death. Section 7 of the Act is rather an aggravated form of the offence because it contains the element of terrorism as well.”

In 2007, the SC while addressing the issue of compromise held that “whatever the nature or status of an offence but for the purposes of the compromise it will be seen as to whether the offence/the section of law for which the compromise is requested is compoundable under the law or not. The offences which are compoundable have been mentioned in section 345(1), Cr.P.C. Since the offence is under Section 7 of the ATA, 1997 for which a death penalty has been prescribed does not find its mention in the aforesaid section in the category of the offences which are compoundable”, the courts have to disallow the compromise. In 2004, the SC laid down the guidelines for compounding of offences as mentioned in the Criminal Procedure Code, holding that “the Legislature has laid down in this section the test for determining the classes of offences, which concern individuals only as distinguished from those which have reference to the interest of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. are satisfied as to all matters mentioned in the section.”

Prosecution in Pakistan is a tough business, conviction more so. In a country where there is no witness protection programme, getting people to testify is a Herculean task. But in Shahzeb Khan’s case his friends and many others came forward and at risk to their own lives got him justice. Khan’s murder was an act of terrorism in the way it was executed. The purpose of enacting the ATA was for prevention of terrorism, sectarian violence and speedy trial of heinous offences committed against the State and not against individuals only, thus giving them no legal right to compound. So, how was a compromise, which is so evidently against public policy, allowed? How did a summary get prepared by the government to seek a Presidential pardon? And why is qatl-e-amd a compoundable offence? Islam does not allow premeditated murder; the Quran provides for compounding in cases of qatl-i-khata or murder by mistake. When is the legislature going to wake up and amend the law so that the rich do not have an advantage over the poor? The snide jubilance on Shahrukh Jatoi and Siraj Talpur’s pardon is a grim reminder of the power of money. There is a possibility that Khan’s parents compounded the offence under duress. After all they have two daughters to worry about. Shahzeb Khan’s justice — was it dust and ashes only?

The writer is an advocate of the High Court