After the violent mob lynching in Sialkot, much has been written on inherent violence in our society, breakdown of the rule of law, police and judicial corruption and acceptance of mob justice. However, one factor that remains to be highlighted is how the introduction of qisas and diyat laws in 1990 led to a complete obliteration of criminal justice. Without going into the ideological, religious and sectarian debates that stem from the issue, I would like to highlight problems associated with this legislation.
Statistics and facts have been taken from The Application of Islamic Criminal Law in Pakistan by Tahir Wasti. Introduced purely out of political expediency by an unrepresentative interim government to please a court headed by a religious man (Justice Afzal Zullah), and to seek a positive judgment in the dismissal of the Benazir government by Ghulam Ishaq Khan, it has since paralysed the criminal justice system by failing to properly punish murders, making murder more of a civil offence than a criminal one and allowing murderers to walk scot free out of court rooms after admitting to killing people - all in the name of divinely sanctioned Islamic law. Qisas and Diyat laws are also the foundation on which honour killings remain largely legally justified (even after The Criminal Law Amendment Act, 2004 since the SC has stuck to its doctrine of grave and sudden provocation and judicially patronizing honour killings - in fact in a number of cases it has been ruled that it is justified for a person top murder his wife for being involved with another man but the man is then prosecuted not for murder but for failing to bring it to the notice of authorities and acting on it himself).
While murder is still treated as an offence against the public and the state initiates prosecution against alleged culprits, Islamic criminal law has been understood to treat murder as a civil offence where the aggrieved party (legal heirs of the deceased) alone can bring forward the case or forgive on their own without bringing it in front of a judge. The social contract that has evolved in Pakistan requires the state to treat murder not as a private wrong but a criminal offence against the public. However, this remains a constant source of complaint amongst the religious segment of the society who adhere to the concept that all such matters can be handled appropriately by people themselves and court (adhering to their notion ofqazis) should be involved only if there is question over violation of laws that a person acted upon.
Based on research in 10 districts in Punjab regarding the Multan Bench of the Lahore High Court (LHC), Federal Shariat Court (FSC) and Supreme Court (SC), between 1981 and 2000, the murder rate rose at an average of 6.5 per 100,000 per annum. It has increased since the qisas and diyat laws were introduced. The percentage of cases cancelled by the police on their own without sending a chalaan to the court has doubled and stood at 11 percent in 2000. Conviction rates at the trial stage have steadily decreased and stood at an abysmal 12 percent in 2000 while compromise rates increased to 29 percent. This means that one out of every three murderers walks free after striking a deal. The total conviction rate in the Multan Bench of the LHC fell from 51 percent in the 1980s to 33 percent in the next decade. At the same time, the acquittal rate in the SC increased from 28 percent to 67 percent while the conviction rate dropped from 79 percent in 1984 to 35 percent in 2000. No person has ever been convicted of murder under qisas.
Here are some notable cases of murderers going scot-free. In PLD 1992 Pesh 187, one Ishtiaq murdered his sister in cold blood to obtain her real estate property. The compromise between him, his parents and siblings was accepted and he went free. In 1993 PCrLJ 1795, one Hanif murdered his wife's sister since he thought that she was going to marry a man he wished his sister to marry. Hanif went scot-free after his wife and her parents forgave him. Husbands guilty of murdering their wives are let go since the court views that minors would be deprived of having a father. In PLJ 1997 CrC 1122, an absconder was pardoned in absentia. In 2000 PCrLJ 116, one Ijaz Ahmed who had murdered his sister for failing to iron his clothes by shooting her multiple times, was sentenced to 14 years by the trial court under fasad fil arz. The High Court acquitted him at the appeals stage since compromise had been struck between the offender and the legal heirs (his own family members). In 1997 PCrLJ 247, one Mansoor Ali broke into the house of his uncle to wipe out his family so he could become the heir to his wealth. He shot dead five family members while two others were injured. He was acquitted after a compromise deed was produced before the court signed by the heir who had, by that time, lost her sanity. The case of Samia Sarwar, belonging to an urban elite educated family tells us how parents systematically murdered their own daughter in the name of 'honour' for wishing to divorce her husband. Parents and siblings, already having lost a family member, do not wish to be separated from one another. This poses the question of whether such compromises should be allowed since it sends a clear message that honour killings and killings within the family are justified since the convict goes scot-free without any social stigma or serving a criminal sentence.
The author rightly notes: "The present rationale of the Pakistani qisas and diyat laws effectively translates into the government abdicating its responsibility to punish murderers" and "an increasing number of people (are) getting away with murder". The author notes that compromise was not a new phenomenon and was commonplace in the country before 1990 when it was essentially illegal and had no legal value.
Razinamas are controlled demolitions of the system of criminal justice. Murderers walking away scot-free are a threat to society. It is beside the point that compromises are often produced by abducting and harassing family members, using coercion, and girls are exchanged in badl-i-sulh (mutually agreed compensation) as nothing but objects owned by people. The concept of fasad fil arz (corruption on earth) alone cannot fulfil the requirements of giving murderers due sentences for their heinous crimes since in most interpretations it is only applicable where the offender has a record of criminal behaviour. What the court laid down in Dawar vs the State (1991 MLD 1864) as "an offence ... (that) pose(s) a threat to collective peace and tranquillity" has formally translated into a reality where it seems most murders do not pose a threat to society. If honour killings, broad daylight murders and killing sprees between families do not pose a threat to the peace of society, then perhaps nothing does since only a handful of such cases result in sentences after compromises.
The basic problem with theocracy as an ideology and laws promulgated in the name of religion remains that the doors of any subsequent change are closed forever. Diyat in the form of a razinama is elitist as it allows a financially well off person to get away with murder (provided the wali agrees). It is an injustice that rich people have the unfair and unjust advantage of offering a large amount of money to financially poor heirs as it allows the former to entice the latter with money. A justice system biased towards the elite cannot work.
Evolution in social constraints and norms since the time when Islamic jurists laid down the basis of criminal justice aside, the nature of compromise deeds has led to a culture where murder is nearly condoned and justified since monetary compensation can wash murder clean. The basics of criminal law are indeed deterrence, incapacitation, retribution and rehabilitation. In the present case with convicts going scot-free due to razinamas, without any stigma attached to their character, neither one of the four basics of criminal justice are fulfilled. The breakdown of criminal justice is nothing but the by-product of such legislation