This law brought drastic changes in Chapter 16 of the British-era Pakistan Penal Code 1860 from sections 229 to 338 related to bodily hurt and murder.223 Section 338-E under the Pakistan Penal Code(PPC) states that aIl offences under Chapter 16 of the Pakistan Penal Code (i.e. offences affecting the human body) can be waived or compounded in the matter provided in sections 309224 (i.e. a sane adult legal heir can waive his right of Qisas in murder without compensation) and 310 which provide compounding of Qisas on accepting badl-i-sulh (i.e. compensation), subject to the provisions of Section 345 of the Criminal Procedure Code. i.e. with the permission of the court and only by the persons mentioned in the schedule. Wali, an adult and sane legal heir, was allowed to compound his right of qisas at any time by accepting badl-
i-sulh(exchange of compromise).225 Badle-i-Sulh was explained as mutually agreed compensation according to Shariah to be paid or given by the offender to wali in cash or kind in the form of moveable, or immovable property.226
Firstly the right of the wali to compound Qisas at any stage of the trial has not helped to promote unequal justice but has had an impact on the process of investigation and trial. In addition, Qisa and Diyat Law ‘does not provide any guidelines to courts about how to ensure that the compromise between the parties is genuine or false’.227
Consequently, the process of compromise resulted in coercion and corruption. Both the Shariat Bench of Peshawar High Court228 and the Federal Shariat Court229 did not
221 Ibid, p.97.
222 Abid Hussain v. The State, PLD 2002 Lahore 482. 223
Criminal law (Second Amendment) Qisas and Diyat Law,1997,
224 Criminal Law (Second Amendment), 1997, The Qisas and Diyat Law, section 309. 225 Ibid, sec. 310.
226 Ibid, sec. 310 227
Tahir Wasti(n 213) p.207.
228 Gul Hassan Khan v. The Government of Pakistan, PLD1980 FSC 187 229 Mohammad Riaz v. The Federal Government, PLD1980, FSC187.
rule out the possibility of frightening the heirs of the deceased person to accept compromise and the Federal Shariat Court suggested that the courts should monitor the settlement process in order to ensure ‘the question of deciding upon the genuineness of a compromise and permitting composition in a case of retaliation should be vested in the High Court’.230
The perusal of Assembly debate on the law reflects that many members of the Assembly had shown their concern regarding the viability of the law. In this regard, Syed Zafar Ali Shah a member of opposition depicted the sorry states of affairs during the debate of Parliament in 1993 in these words: ‘Now a days a man kills another and then threatens his heirs that if they did not pardon him then he would kill them too. Because of these threats, people were pardoning murderers’.231
The Lahore High Court in Ghulam Shabir v. Mst. Zanib
Bibi232 the court acknowledged the tactics that those accused use to take advantage of the heirs of the deceased. It was observed:
In many cases the poor and helpless heirs of a deceased [person] cannot withstand the pressure tactics of the influential accused persons and finally submit to their demands even after the accused have exhausted all the remedies under the law. This is mostly done out of the fear of the accused and not of their own free will to pardon them in the name of God.
In the recent past, the two most widely reported cases have unfurled how the powerful and the rich exploit the law. The swift release of the American Central Intelligence Agency (CIA) contractor Raymond Davis left behind many doubts and questions regarding the settlement of the double-murder case. The victims’ families’ counsel Asad Manzoor Butt has alleged that the government forced the families to accept diyat.233Another case that gained lime light in the media that Anti-terrorism Court (ATC) had awarded death sentences to Shahrukh Jatoi and Siraj Talpur, the key suspects, in Shahzeb murder case in June 2013.The case become a test for the criminal justice system as the Jatoi, who is the son of a billionaire and a very influential man, got the legal heir of the slain Khan to forgive the murder under the Islamic provision of the criminal laws. The legal heirs of (murdered) Khan could not sustain the pressure and influence and eventually submitted an affidavit of forgiveness of their son’s murder.
230 Muhammad Riaz, PLD 1980 FSC 30. 231
National Assembly Debate, Vol.2, no.6.1993, p.614.
232 Ghulam Shabir v. Mst. Zanib Bibi,1999 MLD 585.
The Supreme Court, executive of the country and reports of government commissions have underlined the need to reform the law. On October 03, 2013, the Supreme Court decided to constitute a five-judge bench to take up matters concerning the misuse of compromise laws and Islamic injunctions to get those convicted of heinous cases pardoned in the name of God. The Prime Minister’s special assistant on legal affairs said: ‘This abuse was to the degree that influential and rich people would get away with murder, literally’.234
The principles of justice require that the wali / state be allowed to exercise its option or the legal heirs of victims be allowed to compound the offence after the completion of the trial. The report of the National Commission on the Status of Women reflect that qisas be compounded only subject to completion of the following procedure: ‘Firstly, the crime is proved either by confession or by evidence; secondly, the convict must submit his or her written apology to the legal heirs of the victims through the court’.235