The Mixture Of Pakistan Penal Code With Islamic Laws
Pakistan Penal Code is a gift of colonial British Empire. On 14thAugustt 1947, Pakistan adopted the 1860 Penal Code, which then emerged as the Pakistan Penal Code (PPC). But soon after, PPC became the subject to a slow and gradual process of Islamization. However, this process has not been absolute in any sense, because sections like 295 –C have been mere additions to an already existing penal structure and do not replace other sections.
In the year 1990, certain ordinances including Qisas and Diyat Ordinance (Ordinance) were promulgated by the then President Ghulam Ishaq Khan. It provided for sections which form part of the PPC today as sections 299 to 338. Its major aim as per the preamble of the criminal law (Second Amendment Ordinance) was to bring the penal law in conformity with the injunctions laid by Holy Quran and the Sunnah. The Ordinance introduced new categories and new penal concepts in respect of punishing the culprits in terms of laws laid down in the Holy Quran.
This piece attempts to analyze the actual provisions of the Ordinance and also seeks to analyze the jurisprudential discourse in respect of the amendments.
The terms of ‘Qisas’ and ‘Diyat’ in traditional Islamic law:
Unlike the western penal laws, the Islamic law of homicide effectively reduces the occurrence of offences such as the murder and hurt to a private right. The right of retaliation (Qisas)- the forgiveness or receiving of compensation- lies with the “wali” who is regarded as the heir of the victim and who is entitled to claim qisas, the concept also comprehended by Coulson in his famous book: History in Islamic laws. In this book, Coulson also explained the nature of the vengeance which is taken against the whole tribe while the crime has been committed by only a single individual. Hence, post-murder, it is quite evident that a sense of revenge takes over the saner human emotions and sets into motion a desire for “an eye for an eye” causing great disruption.
The Holy Quran mentioned this situation and cited the law of qisas and diyat in several of its verses. There are two important ayaats which are worth mentioning here; one ayat is from is Surah-al-Baqara (170:2) which summarizes the concept of retaliation (Qisas) and prescribes that the prosecution of the slain and remission by anyone’s brother should be made according to the usage and payment to a person in a good manner. This is a relief from lorded mercy and whoever exceeds the limit after this, he shall face a painful chastisement.
The second most important source is sura Al-Mayda (45:4) which provides “a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth and for wounds’ retaliation (qisas) whoever forgoes it shall be a charity. And whoever judges not what God has sent down, such as, they are iniquitous.” The Quran, thus, allows for just retaliation (Qisas), lest the culprit after the mutual agreement with victim’s family pays diyat or he is forgiven by them, they win the grace and happiness of God and if after this agreement the heirs try to kill the murderer with vengeance, God will punish them with painful sanction in the hereafter.
The development of this law in Pakistan:
The ordinance was promulgated in 1990, however, case law shows that suggestions to apply this law had started when Shariah courts were made operational in the 1970s when the Supreme Court first dealt with this issue. The court applied Qisas and Diyat in the case of Muhammad Bashir v. The state (PLD 1982 SC 143 ). The court converted death penalty into life imprisonment under sec 302 after the parents of the victim accepted the compensation and diyat by the accused. The court quoted two ayaats from the Holy Quran; one from Surah-al-Baqrah and the other from Al Asara, which are related to the Qisas and diyat law. It was, however, observed that under sec 302 PPC, the offence of murder remained compoundable.
The Federal Shariat Court in the case of Mohammad Riaz v.Federation of Pakistan (PLD 1982 FSC 1) heard a petition challenging the existing penal law of murder in sec 302 as being repugnant to the injunctions of Islam. It was held by the majority that sec 302 is repugnant to the customs of Islam. Thus, all sections in the PPC which are related to the bodily harm were struck down since punishments were not in conformity with the Islamic principles and rules of diyat were not being followed.
In a nutshell, I wanted to highlight a detailed overview of the impact of shariah rules and Islamic jurisprudence on Pakistan Penal Code and Pakistani legal infrastructure; something which was little known before in legal writings. This impact is undeniable and worth mentioning at every brick and point whether this inflicts a positive norm on the legal mechanism of Pakistan or labels the juridical system as a backward commodity. Still, it provides a relationship between a religious legal ideology and a practical penal code.
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.