Murder and the state’s responsibility

As Shahzeb Khan’s former policeman father presented an application before the court, technically asking for dismissal of the case against his son’s murderer Shahrukh Jatoi, the hopes of many came crashing down. The disappointment was to such an extent that some people lambasted the parents for selling out at the hands of a ‘waderey ka beta’. There were others, like one joker I met on Twitter, who was of the opinion that this was good riddance of just a very ordinary case that didn’t belong in the ATC. The picture of a gleeful Shahrukh Jatoi as he came out of the court making a victory sign after the death sentence was given by the ATC will be stuck in the minds of many. Perhaps, that day, the brute knew what others didn’t — you can keep crying murder but the legal system will eventually be on the side of the oppressor rather than the oppressed.

Why condemn the poor father, who like many others, must have been forced into a compromise? Why not condemn and examine a legal system that allows for such compromises. I am indeed pointing a finger at Pakistan’s legal system that has allowed the state to voluntarily surrender its responsibility to protect its citizens — all in the name of Allah. The larger albatross around the state’s neck are the qisas and diyat laws, which were invoked in the Sarfraz Shah case, the case of the young man killed by the Rangers, or many others who can’t afford justice in this country. Our legal history is replete with cases in which numerous judges showed their magnanimity by ordering the payment of blood-money in addition to exchange of women. This particular law is one of the reasons that there is a low conviction rate in Pakistan because a large number of cases are settled even before a judgment is given invoking qisas and diyat. According to data given in Tahir Wasti’s seminal work, Application of Islamic Criminal Law in Pakistan: Sharia in Practice (published in 2009), cancellation of murder cases increased from four per cent in 1981 to 11 per cent in 2000. Similarly, conviction at trial stage fell from 29 per cent in 1981 to 12 per cent in 2000 mainly because of the law that allows the state to voluntarily surrender its responsibility to try someone for committing the heinous crime of murdering a citizen in cold blood.

The issue of whether the relatives of the deceased of the state are responsible for punishing a murderer is open to interpretation. The Abbasids, who codified the Sharia law, left murder out of the ambit of state responsibility while making many other crimes that collectively had smaller effect on society. In fact, in 1977 when the framing of the law was being debated by Ziaul Haq, the then ministry of interior had argued using scholarly religious interpretation that there is nothing in the Holy Quran that forbids the state from striking back at the culprit (in case of murder). Qisas and diyat cannot be seen without acknowledging the particular historical context — the concept of ‘blood money’ (diyat) was introduced later to contain the continuation of a cycle of vengeance and bloodshed that was encouraged due to the principle of an ‘eye-for-an-eye’.

Sadly, the law in Pakistan’s case was a brainchild of Justices Afzal Cheema and Tanzeelur Rehman. Intriguingly, Ziaul Haq did not implement this law when he imposed his Nizam-e-Islam in February 1979 for the fear that Bhutto’s lawyers might use the law to their advantage as the entire body of the law does not allow for an approver. Indeed, Bhutto had filed a review petition number 5-R of 1979 on 13/02/1979 in the Supreme Court asking that his case be tried under Sharia or Nizam-e-Islam through first invoking the law on qisas and diyat.

The law was finally approved as an ordinance in 1990 by Ghulam Mustafa Jatoi’s caretaker government (encouraged by Ishaq Khan to please Justice Afzal Zullah), and finally made into a law in April 1997 under the second Sharif government. Legal history is replete with instances that indicate how the lower and higher judiciary and the larger legal community allowed the law to flourish. In any case, no one ventured to challenge the system. Human rights activist and Benazir Bhutto’s law minister in her first government, the late Iqbal Haider was quizzed about the legal community’s indifference to the law. His response on the floor of parliament was that this was due to their (the lawyers’) greed. A compromise allows lawyers to charge their clients without working hard for it.

The judges also tend to prefer diyat as it is easier than qisas, which was never implemented. As per the Sharia codified by the Abbasids, the condition of being a witness is almost unachievable unless logically amended. No wonder looking at the conditions for being a witness like: a) one who has never been punished for any crime, b) has always said all his prayers in time, c) never urinated standing up, d) never eaten from a marketplace, e) never committed any major sin, f) never committed any minor sin, and g) never failed to carry out obligations prescribed by the Holy Quran and sunnah. Pakistan’s former chief justice Sajjad Ali Shah commented that even he would not qualify as a witness. Thus, it was easier to use tazeer or diyat to pass judgments.

No sane society can survive without justice, peace and stability, and these cannot be ensured in an environment where people are allowed to get away with murder. The misuse of the qisas and diyat laws will sadly produce more Shahrukh Jatois. It’s a tide that must be stemmed.

Published in The Express Tribune, September 12^th, 2013.

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