Notorious, formidable, perplexing, yet rather simple: Qatl-i-amd, section 302 of the Pakistan Penal Code 1860 or simply; the law of murder, is perhaps the most renowned provision regarding criminal law in Pakistan. Regardless of its popularity, very few may be aware of its intricacies. This article is an attempt to highlight the flaws of this section and the extremely low threshold that governs it.
Qatl-i-amd or simply murder – the act itself is defined in section 300 of the Pakistan Penal Code, 1860. Section 302 merely contains the punishment. Therefore, the former is the focus. Section 300 defines murder as:
“Whoever, with the intention of causing death OR with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of the such person, is said to commit qatl-i-amd/murder”
The scrupulous reader may have noticed something above: a flaw. Beyond the first seven words, the definition focuses on the intention to cause “Injury,” not the intention to cause death. The two basic elements that must be proven in order to convict a person of a crime are “actus reus” and “mens rea.” The former means “guilty act” and the latter means “guilty mind.” With the omission of the intention, the commission of the act alone is not enough to gain a conviction for that crime. This is a basic principle that all law students are well acquainted with.
In order to prove murder, there has to be an intention to cause the death of that person along with the action of actually injuring them – and that injury subsequently leading to and causing the death of that person. However, our law seems to differ from the rest of the world. Section 300 of the Pakistan Penal Code 1860 focuses on the intention to cause Injury. “Knowledge of the accused is a matter to be inferred from the circumstances, for it being a state of mind, is very difficult to be proved otherwise.”
Let’s focus on what the Prosecution must prove in order to gain a conviction. There are four elements that must be proven. These four elements were established in the case of “Virsa Singh v The State of Punjab” 1958 SC 465. This case can be found in the commentary of section 300 of the Pakistan Penal Code 1860.
Firstly, the bodily injury. Secondly, the nature of the injury. Thirdly, and most importantly, that there was an intention to cause that bodily injury. Once the first three elements are proven, it must also be proved that the injury is sufficient to cause death in the ordinary course of nature.
I’d like to draw your attention to the third element. It requires that the intention to cause bodily injury must be proven. There is no mention of the intention to kill, to murder and of proving that the accused intended to kill the victim. The focus is on the intention to cause injury. This is a major problem: an extremely low threshold for an offence carrying the death penalty.
In fact, this provision nullifies the difference between manslaughter and murder. Section 318 of the Pakistan Penal Code 1860 defines Qatl-i-khata (manslaughter) as “Whoever, without intention to cause the death of or cause harm to a person causes death of such person, either by mistake of act or by mistake of fact is said to commit qatl-i-khata.”
The issue here is that an accused may say that they intended to injure the victim, but they did not intend to kill them. In other words, they might claim that thedeath that resulted due to the accused’s attack was neither foreseeable nor intended. Based on the definition of Qatl-i-khata above, this should constitute manslaughter and thus fall within the ambit of section 318. Therefore, the case should not be tried under section 300 and 302. The lesser offence of section 318 applies.
However, if the same person were charged with section 300 and 302, their defence that they never intended to kill the person – and that they just wanted to injure them or incapacitate them –, will fail, as the elements of the offence only require the intent to cause injury to be proven, not the intention to cause death. This unfortunate ambiguity results in the law regarding murder and manslaughter to be repugnant with each other.
In order to reinforce my point, let’s go back the Virsa Singh Case and the fourth element. Specifically, that once it is established that in the ordinary course of nature, the injury would result in deat,-it will be “purely objective and inferential and has nothing to do with the intention of the offender.” This was held in the Judgment and this point follows the fourth element of the offence.
Therefore, if the intent to cause injury is proven and it is further proven that in the ordinary course of nature, that injury would result in death, that matter is now objective and the intention to kill (the main element that must be established without an iota of doubt in all other jurisdictions) will be inferred. This is a horrifying reality, an extremely low threshold for an offence that carries capital punishment.
Pakistan’s legal system is not without flaws: overhauling is overdue and the law regarding murder requires serious reconsideration and clarification. For the time being, the least that can be done is to make sure that the First Investigation Report (FIR) is registered with honesty and after properly ascertaining the facts. If a victim is shot at point-blank range, it may still be fair to infer that the accused intended death. However, that is not always the case.
There are countless instances where death was never intended – even more where those nominated in the FIR were not present when the injury or death occurred. The death of a human being is a tragic event. But the death of any living being is no less a tragic event.
To invoke section 300 and 302 just because death has occurred is the biggest tragedy of all. It does the exact opposite of what a legal system is there to do, i.e. secure its citizens.