Dilemma Of The Pakistani Legal System
“All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.”
– (A. 227 Constitution of 1973).
Since the creation of Pakistan, we have been in a mode of legal evolution which has had a significant impact on our legal history. Pre-independence laws, still pretty much intact today, play a critical role in Pakistan’s legal system, such as Code of Civil Procedure (CPC), Code of Criminal Procedure (CrPC) and Pakistan Penal Code (PPC).
However, as a nation, Pakistan has been facing a dilemma since the state of “Pakistan” was created in the name of Islam whereas the entire legal system of Pakistan was based on the philosophy of separation of religion and state. Pakistan’s National Assembly of 1973, after incorporating the aforementioned Article, started a never ending legal debate about the legitimacy of both forms of law resulting in two systems of law running parallel to each other and conveniently being used, one way or other, by the people in power. As a result we had become the custodians of Islam having a centuries-old British system along with parallel Islamic jurisprudence. This resulted in the amalgamation of the two systems whereby none remained purely applicable.
When military dictator General Zia-ul-Haq embarked upon a radical process of Islamization in 1979 by establishing Sharia benches in the superior judiciary, the Qisas and Diyat law was intriguingly omitted from his agenda of promulgating a set of Islamic penal laws. Instead, the military regime appealed against the decision of the Sharia bench of the Peshawar High Court (PHC), which was the first to take up the issue ordering the Zia government to amend the secular law of murder and culpable homicide in accordance with the Islamic injunctions.
The Honorable Peshawar High Court Shariat Bench ruled in the case titled Gul Hassan Khan vs the Government of Pakistan (PLD 1989 SC633) that the penalties prescribed in Chapter XVI of the Pakistan Penal Code with regard to offences affecting the human body, particularly under Section 302 were un-Islamic as offences were not made excusable by pardon or on the payment of Diyat.
However, the law remained under discussion from 1980 to 1989. It was finally approved by the judges of the Sharia courts and promulgated through an ordinance known as the Qisas and Diyat Ordinance during the interim government headed by Ghulam Mustafa Jatoi in 1990.
The Honorable Federal Shariat Court (FSC) reviewed the Islamic and secular version of the two laws of murder and culpable homicide in the case titled Muhammed Riaz vs the Federal Government of Pakistan. The Federal Shariat Court, in a majority judgment, upheld the Peshawar High Court Shariat Bench’s ruling. Later, in 1989, the Federal Shariat Court judgment was also challenged before the Sharia Appellate Bench of the apex court which also dismissed the state’s appeal. The Appellate Bench of the Honorable Supreme Court observed in its judgment:
“Section 302, PPC in its present form is against Sunnah. To make it in conformity and accordance with the injunctions of Islam it is essential, so as to pre-empt sentence of qatl-i-amd as stated in the Qur’an and that should also contain provision as to composition with the victim with or without consideration. In addition, the court be made competent to award sentence as Ta’zir to the victim. To make the law in conformity with Qisas, waiver, compounding and awarding of ta’zir, the injunctions of Islam as contained in Qur’an and Sunnah and Fiqah-i-Islami to be consulted”.
The Criminal Law (Second Amendment) Ordinance 1990 (Ord VII) was promulgated which introduced the Islamic law of Qisas and Diyat in the PPC and replaced Sections 299 to 338 of the PPC with its own definition of offences and sentences. The Ordinance VII introduced Islamic punishments such as Qisas, Ta’zir, Diyat, Arsh and Daman in the PPC, but it also maintained the death sentence, imprisonments of both kinds and the financial penalty for qatl-i-amd (intentional homicide) as provided under the repealed law. One of the punishments of intentional homicide was Qisas. However Qisas being the right of the victim, or the victim’s wali (if the victim had died), which could subsequently be exercised, was waived or compounded under the Ordinance. However, the right to retaliate was given to the government functionary rather than the victim or the victim’s wali under the Ordinance.
The Criminal Law (Amendment) Act 1997 that amended the Pakistan Penal Code incorporating Qisas and Diyat law was enacted by the Parliament in 1997. The provisions pertaining to punishment under ta’zir after waiving or compounding the right of Qisas in qatl-i-amd were earlier amended through the Ordinance. The amendment that became part of the new law allowed the courts to imprison the accused person for up to 14 years as ta’zir in view of the principle of fisad-fil-arz, despite any compromise or waiver by the heirs of the deceased. It is rightly argued that criminal justice system of Pakistan and in particular homicide laws (PPC and CrPC) are completely incompatible with the concept of punishment in terms of Sharia law.
The application of the law is believed to have resulted in an alarming fall in convictions for culpable homicide and murder with a large number of murderers escaping punishment. It is pertinent to note here that the rate of murders has gone up in recent years. The so-called Islamic law enables the murderer to enter into a compromise with the legal heirs of the victim at any stage of trial, even after a Supreme Court verdict upholding the punishment has been awarded to him or her. This so called Islamization of laws has helped murderers escape the punishment for their illegal actions while the poor continue to suffer since they, unlike the Jatois of the country, do not possess a get-out-of-jail-for-free card! For instance, the renowned case of Raymond Davis involving national security matters, was an open-and-shut case where a murderer left the country after killing innocent people.
Under the law, either party can file an application to the jail superintendent to stay the execution in view of compromise between them. Later on, compromise proceedings are initiated in the High Court.
It is an established rule that the penal laws, whether Islamic or secular, ought to be retributive, punitive, deterrent, redressive and reformative. However, the implementation of the Qisas and Diyat laws seems to have changed the whole structure of criminal justice system in the country as the role of state has apparently become restricted to merely ensuring a smooth trial of the cases through courts.
It is widely apprehended that the practice of entering into compromise by waiver (pardoning for the sake of God) or through compensation to the legal heirs of the victim, is contributing to the deterioration of the situation of law and order.
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.