Reforming the law: In Pakistan, punishment is Islamic, but not the procedure

Published: November 12, 2012
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A number of Muslim majority countries have abolished the death penalty; can we begin the debate in Pakistan?

A number of Muslim majority countries have abolished the death penalty; can we begin the debate in Pakistan?

LAHORE: 

Around 100 countries with varying legal traditions have abolished the death penalty, including a number of Muslim majority countries like Turkey, Albania and Djibouti according to the Amnesty International. The case of death penalty in Pakistan, however, is trickier.

“Over here, the punishment for murder is Islamic but the procedure for investigating such cases is not,” says Barrister Umar Mahmood Khan, who practices criminal law in Punjab’s court. The burden of proof is extremely high, but the investigation is so faulty that the conditions for a fair trial as required by the Islamic law are never met here, says Khan. Money is frequently used to influence investigation, which is structurally testimonial-centric, so there is not much left for the lawyers to defend.

So far, Khan says, he has not seen the trickle down effect of government attempt, if any, that could help the marginalised in death penalty cases. Despite setting up of a forensic lab for advanced investigation techniques, no definite change in cases like murder and rape are seen yet, he adds.

Qisas and diyat

Under Islamic law, the punishment for murder, homicide or infliction of injury can either be in the form of qisas – equal punishment for the crime committed – or diyat – compensation payable to the victims or their legal heirs. Under the Qisas and Diyat law in Pakistan, the victim or his heir have the right to determine whether to exact retribution (qisas) or compensation (diyat) or to pardon the accused.

The ordinance came under the spotlight in the Raymond Davis case when the CIA contractor, accused of killing two Pakistanis in Lahore, was allowed to leave Pakistan after paying compensation to the victims’ heirs.

Given how diyat reduces rescue from gallows to money, Barrister Zafrullah asks, “Is Islam the religion for rich only?”

The Qisas and Diyat ordinance is “privatisation of justice” and absolves the state of protecting its citizens, says the Human Rights Commission of Pakistan’s 2006 report on death penalty, “Slow March to Gallows.”

Arthur Wilson, executive director at Prison Fellowship Pakistan, has been mediating for forgiveness of condemned prisoners for over two decades. Wilson says as a Christian he does not believe in blood money, but as an activist he needs to make best use of what the system offers him.

“A lot of families of deceased when approached, would like to take the blood money and forgive the accused, if it were not for those who have stakes in wrongful conviction of the accused.”

Room for debate

In Pakistan, people’s idea of justice regarding the death penalty is based on religion and there is a need for starting a debate on Islamic law; therefore, the debate on emphasis that Islamic Law puts on a state to provide justice needs to be conducted openly, says Sarah Belal.

Asad Jamal, a senior lawyer, argues that there is a need for policy to regulate the Qisas and Diyat law, and quotes from a paper written by William Schabas, a professor or Islamic Law at University of Montreal, in 2000.

“Schabas writes that though all Islamic countries have ‘demonstrated some degree of flexibility in the interpretation of Islamic law in some of the areas of criminal law, yet they stubbornly refuse to acknowledge that the same approach may be undertaken with respect to the death penalty.  It appears that religion is little more than a pretext to justify a resort to harsh penalties that is driven by backward and repressive attitudes in the area of criminal law,” Jamal says.

Path to the gallows is strewn with orders and appeals

Capital punishment is prescribed as the maximum punishment for over 20 different crimes in Pakistan, including various forms of intentional murder, treason, blasphemy, kidnapping or abduction, rape, procuration and importation for prostitution, assault on modesty of woman and stripping of her clothes, drug smuggling, arms trading, and sabotage of the railway system.

An accused becomes a condemned prisoner after an additional district and sessions judge condemns him to death. Prisoners, however, cannot be executed unless a High Court confirms the death penalty. Even if the prisoner does not appeal his penalty, jail authorities automatically take the case to a High Court. If the High Court upholds the death penalty, the additional district and sessions judge issues a black warrant which bears the date of the execution. After that, the prisoner can appeal to the Supreme Court (SC). If the SC does not issue a stay order before the day of execution, the prisoner will be hanged. And if the SC upholds the penalty, the prisoner, through jail authorities, can send a mercy appeal to the president as last resort.

Under article 45 of the Constitution, the president has the “power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority,” if there is a mercy petition before him.

A prisoner is on the death row after all his appeals have been rejected.

Published in The Express Tribune, November 12th, 2012.

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Reader Comments (8)

  • fawad
    Nov 12, 2012 - 10:25PM

    well then instead of putting our efforts in abolishing the punishment we should put more effort in improving the procedure with which these punishments are being handed out

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  • Nov 12, 2012 - 11:20PM

    well its’s very good step to emend the law but there is also need to emend the police act which was legislated by the British Raj and still we are using that one. This is also a big hurdle in implementing the and empowering the law. whatever a police constable had had written in his report judge or magistrate can not challenge those words or report.

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  • Nov 12, 2012 - 11:28PM

    well this can be a good step but these is one more thing which is to be pointed out that police act which is not emended yet since 1935, we are still trying to implementing the act which was made by the British Government, so that is the problem that a fifteen or sixteen grade judge can not challenge the report written by the constable. and the whole proof or evidences flesh out in the gutter.

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  • S
    Nov 13, 2012 - 4:00AM

    agree with @fawad – its the issue with whole system with any case, the investigation system is flawed

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  • Javed Afridi
    Nov 13, 2012 - 9:57AM

    Islamic laws, especially capital punishment, should only be implemented in an established Islamic society, where it’s possible for every citizen of the country to live a respectful life without indulging in unlawful practices.Recommend

  • amanat
    Nov 13, 2012 - 6:33PM

    God has clearly stated in Quran,eye for eye, hand for hand ear for ear. In hort tit for tat. A person who takes life of another person has no right to live. He must be hanged. This will also decrease the crimes in the society as is the case in Saudi Arabia where the number of killings is extremely less due to severe punishment for murderers. This is real justice.

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  • Hamza
    Nov 15, 2012 - 6:26PM

    Come on you mean we must release all these Deamons out in the street to kill more people, then who will help those victims who lost their loved one’s. This goverment placed a temperory ban on Death Penalty which has resulted in unstoppable Target killings all over the country. Criminals do what and when they want.
    Amnesty is more cruel than these Deamons as it has no solidarity to the people who were killed.
    We in Pakistan are not like WEST where we can keep them in jails for their complete period of sentence, they either bribe the police or are freed by Police via bribing them.
    Last Word Zardari Hang them To Death.

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  • amanat
    Nov 16, 2012 - 8:01PM

    If capital punishment is not awarded to the killers the rate of murders in the country will increase tremendously and how the the heirs of the victim will get justice? If a criminal kills100 innocent people do you think he should be freed to kill unlimited people in the country? So capital punishment must be awarded to the killers of innocent people to deter the criminals from such heinous crimes. Therefore capital punishment law must not be amended to decrease rhe punishment of the criminals. The powers of the President to parden or decrease the punishment of the murderers should be withdrawn and the law should be amended to such an extent only.

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