By Hassan Naqvi
November 11, 2016
The Qisas and Diyat law has become a
powerful means for criminals to kill and get off scot free, especially in cases
of honour killings.
A woman is killed by her brother in the
name of honour and the case is settled with the father or the rest of the
This law has encouraged the crime and has
actually served to decriminalise murder.
Murder is a crime against the state and
cannot be settled by the citizens whatever their relationship with the deceased
Under Islamic law, punishment for crimes
like murder and/or inflicting bodily injury takes two forms: Qisas, an equal
retributory punishment as inflicted, or Diyat, which is basically paying the
legal heirs compensation for life lost or/and bodily injury inflicted.
If you recall, after the Shahzeb Khan
murder case, settled out of court, it was claimed by many quarters that the law
was being used to offer immunity to the rich and the powerful.
Generally speaking, in a situation where
two parties are involved, it is easy to influence the weaker party to accept
the offer by the stronger party.
External factors that usually favour the
stronger party generally prevail.
Heirs to the victims of a crime ‘forgive’
the accused under this law.
For example, in 1993, a person by the name
of Hanif murdered his wife’s sister on an assumption that she was to marry a
man he desired his own sister to marry.
Hanif escaped punishment after his wife and
her parents forgave him for the murder.
This ordinance is also misused to allow
culprits of honour killings to go free by applying the same standards.
There are two approaches put forward.
The first supports the idea that murder
and/or bodily harm must be treated as a state offence and not as a private
offence for the heirs to forgive.
The other approach is to correct the
loopholes in the justice system, not the ordinance.
In India, all women are daughters of India
but Dalits (untouchables) are outside the law.
However, in Pakistan, all women can be
thought of as Dalits.
Gender bias in the criminal justice system
becomes fairly obvious through the letter and interpretation of laws such as
the Qisas and Diyat Ordinance.
The legal structure breaks down in many
places to allow room for tribal customs in the name of Islam.
An easy example is honour killing and
violence against women.
According to the correct interpretation of
Islam, serious crimes such as murder are not crimes against individuals, but
also against the state and society.
There is also an argument as to why the
modern concepts of citizenship have not been taken into account by way of
Ijtihad (reasoning) by virtue of which the state itself should be considered an
heir of the deceased.
Furthermore, the historical context has to
Tribal rivalries go down several
generations and one murder can lead to countless more deaths.
Forgiveness under Hudood allowed near
relatives to put an end to bloodshed by way of forgiving.
The laws also encouraged mercy to one’s
family; for example a husband could forgive the flogging of an adulterous wife
and vice versa.
However, they were meant to put a price tag
on justice or commercialise the killing of one’s own family.
Following the introduction of the Qisas and
Diyat law, crimes affecting the human body are considered offences against
Thus, if the legal heirs of a deceased so
decide, offenders can walk free even after committing grave crimes.
In terms of crimes committed against women,
the legal heirs of a deceased woman have the right to make a compromise with
the offender under sections 309 and 310.
In the first provision, legal heirs can
forgive the murderer in the name of God without getting any monetary
compensation in the form of Diyat, while, under section 31, the legal heirs can
compromise after receiving monetary compensation.
Repercussions of the Qisas and Diyat laws
are especially seen in crimes committed to preserve honour, usually by the
family of the victim itself.
Since the family can legally forgive itself,
the state does not have obligation to interfere and punish the perpetrator.
The jirga system that operates freely in
many parts across the country is also given considerable leeway to decide the
fate of women and attribute their decision to Qisas and Diyat laws as well as
similar teachings in the Quran.
Customs such as Swara and Vani are
legitimised in the name of Qisas and Diyat since these laws permit compromise
and settlement between families in order to settle feuds.
While the rules of Qisas and Diyat are
based on Islamic law, they undoubtedly operate disfavourably towards women.
Qisas and Diyat provisions were enacted
into Pakistani law through an ordinance at the behest of the Federal Shariat
Court and Shariat Appellate bench of the Supreme Court.
Later, in 1997, an act was promulgated for
These provisions militate against the
fabric of our common law system of criminal justice.
Criminal offences under our law are not
only crimes against people but also crimes against the state and society, and
for this reason, it is the state, on behalf of society, that is the prosecutor
in all such offences.
But if you give people the right to end
prosecution, in lieu of blood money, it is the state and society that suffers.
If we allow people to go free, by paying
money, then we have reduced all criminal offences to a money equation.
This would mean that a rich man can kill a
poor man without being punished because he can pay money for the crime and the
poor man cannot kill a rich man because he cannot afford to.
Is human life really a money equation? Is
crime permissible, without punishment, just because one can exploit the poverty
of the victims’ family?
The country’s Qisas and Diyat law should
not apply to honour killings, as the family itself is the primary perpetrator
in a majority of instances.
Most honour killings are premeditated and
family members decide who is going to kill and which of the family members are
going to pardon the convicted.
Hassan Naqvi is a journalist based in Lahore and covers politics, economy