The recent order of the Lahore High Court, Multan bench acquitting the brother of social media star Qandeel Baloch of her murder is a reminder of how Qisas and Diyat laws are used by the perpetrators to get away with the crime. Qandeel’s brother had previously confessed to mercilessly murdering his own sister because her actions threatened his ‘honour’.
The Anti-Honour Killing Laws (Criminal Amendment Bill) 2015 was reformed after Qandeel’s murder to supposedly fix a loophole through which the heirs of a victim could forgive the perpetrators of the ‘honour’ killing, granting them impunity from criminal sanction. In this law, determining the motivation behind the murder was still left to the discretion of the Court, although it could be substantiated by evidence from the victim’s heirs. However, in many cases of ‘honour’ killings, the victim and the murderer belong to the same family. This is evident in Qandeel’s case, since the parents of the murderer and the victim had initially claimed that they would not forgive their son, but with the passage of time, paternal instincts apparently took over.
Diyat, known as blood money, was introduced into Pakistani law 32 years ago, after a right-wing Shariat Appellate Bench of the Honourable Supreme Court of Pakistan ordered the government to include its provision – an example of the judicial organ issuing a directive to the legislative organ of the state, violating the trichotomy of powers envisaged in the Constitution of the Islamic Republic of the Pakistan, 1973. Through Diyat, the heirs of the victim can forgive a murderer in the name of God, either without any compensation under section 309 or after receiving compensation in the form of Diyat under section 310 of the Pakistan Penal Code (PPC). Practically, these laws provide an escape route for criminals who can wield money, influence and power.
Despite being charged with the murder of two Pakistanis, American Raymond Davis immediately left Pakistan after his acquittal on the basis of a rushed and shady compromise with the victims’ families.
There are many instances of Diyat in recent memory. Despite being charged with the murder of two Pakistanis, American Raymond Davis immediately left Pakistan after his acquittal on the basis of a rushed and shady compromise with the victims’ families. Balochistan MPA Majeed Achakzai crushed a police constable on active duty in Quetta but is now a free man after being acquitted on the basis of yet another such compromise. In the future other rich and influential murderers, such as Zahir Jaffer, may also get a green chit if the victim is not equally powerful and influential.
These Diyat laws do not conform with Islamic principles of rule of law and justice. In fact, these laws were framed by rightist elements loyal to General Zia-ul-Haq and serving at his pleasure, based these laws on their personal beliefs in particular schools of thoughts and not on any entrenched principle of Islamic law. Private law looks at dealings between persons themselves. Civil laws spell out duties between people and people, or people and the government, for instance how much should be paid in damages for the breach of a contract. Criminal law is a part of public law, addressing the relationship between people and their government. Criminal law deals with transgressions and violations against the public, and mandates a duty on the state to penalize any transgressors or violators. When heirs are given the power to forgive a murderer, it calls into question the very basic definition of the legal system.
There are three scenarios Pakistan must consider in regards to the court’s handling of ‘honour killings’ and Diyat. If a murderer can be forgiven by the victim’s heirs, leaving the state powerless to prosecute a murder, this will only lead to injustice and amnesty for influential murderers and should therefore not be permitted. If the state can mitigate a murderer’s sentence based on a compromise between perpetrators and heirs in a structured manner, then this may very well be a legal discretion of the state, and could therefore be made a part of the law. If the state should be able to prosecute, convict and punish a murderer to maintain order in society, then it can only be done if the law is reformed in a way that the state’s discretion to prosecute and convict a murderer should never be vitiated on the whims and wishes of the legal heirs of the victims. Murder is a crime against the public at large, including the victim. Murder is not a civil transaction between the murderer and the victim’s heirs, dependent on a compromise that challenges the very core of the state’s writ.