How Is Murder Non-Compoundable? (A Case Study)

How Is Murder Non-Compoundable? (A Case Study)

“Now that murder is a compoundable offence, the accused, even if guilty, may soon be out after paying blood money.”

These words followed a tragic murder story in which a woman, was allegedly killed by her husband.

[Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enters into a compromise, and agrees to have the charges dropped against the accused].

According to the details reported, a 20 year old woman, mother of a three-year old baby girl, was killed by her husband and three friends, at night, when the other family members were out. As they were living separately her husband went to her place of residence and asked her to come to his house, where he and his three friends strangulated the woman.

It is a general misconception that the offence of murder is a compoundable offence in all conditions and forms but this is not the position.

The Holy Quran Says:

“But whenever he prevails, the goes about the earth spreading corruption and destroying (man’s) progeny: and God does not love corruption”.

Relying on the above verse of the Holy Quran, jurists of Islamic law hold that the offence of murder or placing someone under threat of murder, accompanied with other offences such as dishonoring a woman, extortion of property or house and any other act with the intention to interrupt normal life and peace of the society, is an act of Haraaba and Fasad-fil-Arz.

According to Imam Abu Hanifa

Imam Abu Hanifa and others hold that a person who has indulged in indiscriminate killing of Muslims is a terrorist. He has committed an unpardonable and a non-compoundable offence.

According to Imam Malik

Imam Malik holds that a murder committed employing deceptive methods in sheer helpless condition is a case of Haraaba and Fasad-fil-Arz (terrorism) and thus a non-compoundable offence.

Nature of the Offence

This type of murder can more appropriately be termed as cold-blooded murder in which an individual acts against the peace and tranquility of social life. Action is intended to disturb the whole social structure and to destroy moral and social values of the society. This is why in the opinion of Imam Malik the act will be considered an offence against the society, not against an individual. Therefore such offences will be governed by the holy verses on Haraaba and Fasad-Fil-Arz.

In the case referred above attention is invited to the following facts:

  1. The victim was a woman
  2. The incident took place in the house of the accused
  3. The family was not present
  4. The assailants were four in number against one helpless woman
  5. The offence was committed at night.

It may be noted that the victim was weak and helpless at that time. The site of the offence was selected intentionally to make outside help impossible. Furthermore there was no comparable ratio between the offenders and the victim.

Two basic ingredients of the case are rampant in the whole story:

  1. That the women was deceived. She was brought to the house of the accused in the cover of sacred relationship, with the clear intention to kill her.
  2. That the victim was in a helpless condition as far as the number of the offenders, the time of the incident as well as the location of the incident was concerned.

According to Allama Shabbir Ahmed Usmani

Allama Shabbir Ahmed Usmani in his commentary interprets this kind of murder as an unjustified murder (Qatal-e-NaHaq). He holds that the offence in such a situation will be an act of Fisad-fil-Arz.

According to Allama Yousuf Ali

Allama Yousuf Ali comments: “Even where the injured one forgives, the state or ruler is competent to take such action as is necessary for the preservation of law and order in the society”.

According to  Abdur Rehman Al Jaziri

Abdur Rehman Al Jaziri in his well known book Kitabul Fiqh Ala Madahib illustrates that, even if the heirs of the victim pardon the accused, the judge can still award him punishment if in his or her view peace in the locality is disrupted.

Role of state

Jurists of Islamic law hold that state has the right to award severe punishment even if the heirs of the deceased pardon the accused where circumstances of the case require, or due to the notorious character of the accused.

In this regard, reference is also made to the landmark judgment of Justice Aftab Hussain in which the learned Judge dealt with the subject in detail. The learned Judge was inclined to suggest that each and every case should not be considered as compoundable. The court after going through all the circumstances of the case should consider whether it is a fit case for permitting the offence to be compounded.

Columns of newspapers are full of such awful and heart wrenching murder stories. Some of these cases are clear cases of fisad because of the helplessness of the victim. In order to distinguish a case of Haraaba and Fisad-fil-Arz from a case of compoundable murder, the following elements must be considered:

1) The victim was deceived,

2) The victim was a weak person,

3) The victim was completely helpless. A physically strong person could be in a helpless condition when he or she is totally unarmed and the offenders are in possession of lethal weapons,

4) The act was intended to fulfill some other evil intention like extortion of property, dishonoring the woman and house breaking,

5) The time and place was planned in a manner to block any external help,

6) The ratio between victim and the offenders was not comparable in any way,

7) Public display of force in order to disturb the peace and tranquility of social life.

In view of the above submission, it will be appropriate to provide necessary provisions and exception to Sections 302-310 of the Pakistan Penal Code, and the scope of Hadd-Haraaba and Ordinance VI of 1979 may be widened to cover the cases which make a direct attack on the peace and tranquility of social life and ethical structure of the society.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Muhammad Aslam

The writer hails from Khaplu Ghanche, Gilgit Baltistan. He has graduated from the International Islamic University, Islamabad (IIUI) in LL.M (Muslim Family Law) and is a practicing lawyer at Islamabad Bar Association.



One Comment;

  1. Zaeem Khan said:

    Dear brother its upon jurists who are deciding the case. Because every case does’nt amount to fasaad fil arz or harabah but it is also necessary that the jurists should stop the misuse of provisions of Qisas or dyet

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