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Subject: [India Thinkers Net]The Law of Qisas and Diyat in Pakistan - November15, 2005



From: yogi sikand <ysikand@yahoo.com>
Date: Tue Nov 15, 2005 Subject: Impact of Discriminatory Laws on Pakistani Minorities: Naeem Shakir  


The Law of Qisas and Diyat in Pakistan ??“ Its Impact
on  Women and Minorities




By Naeem Shakir


Since the promulgation of Qisas and Diyat law in
Pakistan, there has been a complete departure from the
established principles of criminal law that an offence
of murder or injury to human body is a crime against
the State, and that any one can set the criminal law
in motion. This serious blow to the doctrine of crime
and punishment was caused during the process of
Islamisation of the State of Pakistan as the
undemocratic state administrators in a move to seek
legitimacy patronized the religious bogey. It is a
serious issue that is faced by the society in
Pakistan. It has been urged by the civil society time
and again that the law be repealed. It is rather
encouraging to note that the National Commission on
the Status of Women, an institution constituted by the
present government has initiated a public debate over
the issue as a measure to ameliorate the lot of women
folks of the country who stand marginalised by this
law very much. This Federal Commission earlier
strongly recommended that the Offence of Zina
(Enforcement of Hudood) Ordinance of 1979 relating to
adultery and rape should be repealed but the present
government did not do so because of the pressure of
religious extremists. Despite present government??™s
claims for a policy of ???modern enlightenment??™, it has
not yet abandoned policy of appeasement of the
religious lobby and thus the political will for ???war
against terror??™ and against religious fundamentalism
is still far from reality. It??™s been three years now
that the government announced to regulate the
???Madrassas??™ with modern syllabi, as these are the
institutions that ???Islamists??™ use to spread
fanaticism, obscurantism and extremism. But there has
been no headway in materializing the declared policy
just because the government still tries to find ways
to avoid confrontation with the sectarian forces.

The critique of the Qisas and Diyat Ordinance 1990
needs critical appraisal of the Constitution of
Pakistan of 1973, Pakistan Penal Code of 1886
including Huddood Laws, Criminal Procedure Code of
1886, Qanoon - e ??“ Shahadat (Law of Evidence) of 1984,
and Enforcement of Shariah Act of 1991. The Criminal
Law (Fourth Amendment) Ordinance 1991 that now
includes Qisas and Diyat laws with amendments in Penal
Code provides the basic criminal law of Pakistan. Its
preamble stipulates the objective of the legislation
that says, ??? in order to bring in conformity with the
Injunctions of Islam as laid down in Holy Quran and
Sunnah???.

The Qisas has been defined in the Ordinance as
punishment ???by causing similar hurt at the same part
of the body of the convict as he has caused to the
victim or by causing his death if he has committed
qatl-i-amd in exercise of the right of victim or
wali.??? Diyat means compensation (blood money)
specified in Section 323 of the Pakistan Penal Code,
payable to the heirs of the deceased victim. The
provisions of this Section are laid down as under;
??? (1) The Court shall, subject to the Injunctions of
Islam as laid down in the Holy Quran and Sunnah and
keeping in view the financial position of the convict
and the heirs of the victim fix the value of Diyat
which shall not be less than the value of thirty
thousand six hundred and thirty grams of silver.
(2) For the purposes of subsection (1) the Federal
Government shall, by notification in the official
Gazette, declare the value of silver on the first day
of July each year on such date as it may deem fit,
which shall be the value payable during a financial
year.???
According to the Gazette of July 2003, the Federal
Government was pleased to declare Rupees two hundred
seventy five thousand seven hundred sixty two (RS.
275762) to be the value of thirty thousand six hundred
thirty grams of silver.
This is precisely the price of life determined by the
administrators of this society. And it hardly need
further comment except that such determination of
price of human life is simply outrageous for humanity
at large.

The introduction of Qisas is meant to provide
deterrent Punishment for ??? an eye for eye, nose for
nose, ear for ear and life for life???. Although this
law dates back to an era of Law of Moses yet it can
hardly be applicable in today??™s world in which there
is a strong global campaign for elimination of capital
punishment. Ironically enough the notion of deterrent
punishment was simultaneously negated by introduction
of the doctrine of Diyat that is compensation as blood
money for an attack on life or causing injury to human
body. Paying blood money or compensation to the heirs
of the victim/deceased can now compound the offence of
murder. The law in fact is a complete departure from
the established norms of criminal law as it is against
the legal order of the State and the Society.

Prior to this legislation that is enshrined on the
religious principles of Islam, the taking away of
one??™s life or injury to body was considered as an
offence against the State. And now with introduction
of the provisions of Qisas and Diyat Ordinance, the
concept of criminal offence of murder has been
privatized as now the sentence for murder could be
compounded under the socio-economic pressure of the
oppressor as against the heirs of the victim. It may
however be pointed out that the provisions of Article
45 of the Constitution that empowers the President to
grant pardon reprieve and respite and to remit and
suspend or commute the sentence contradicts the Qisas
law. In Skina Bibi??™s case however, as reported in PLD
1992 Lahore 99, it was held that President has no
power to commute the death sentence awarded in cases
of Huddood, Qisas and Diyat.

There are various issues related with the provisions
of Qisas and Diyat such as determination of blood
money, distribution of blood money amongst heirs and
the standard of evidence required for such situations.
The standard of evidence is now based on an Islamic
concept of credibility of a witness. The Islamic
doctrine of Tazkiah al Shahood is a mode of inquiry
that stipulates the concept of piety of a witness
under the Injunctions of Islam. The testimony is
considered to be reliable if the witness observes the
limitations prescribed in the Holy Quran and Sunnah.
The Supreme Court of Pakistan in Manzoor versus State
as reported in 1992 SCMR 2307, held ???As regards it
being a case of Qatl-I-amd liable to death by Qisas
the requirement of Islamic Law is that the witnesses
must stand the test of Tazkia al Shahood.??? The
testimony of a non-Muslim witness under this concept
is rendered secondary, because such a witness for
obvious reasons cannot stand the test of Tazkia ul
Shahood. Therefore the non-Muslim citizens stand
marginalized, as they cannot be expected to possess
Islamic virtues that entitle a witness to be reliable
and credible. According to Section 7 of
Qanun-e-Shahadat of 1984 (Amended Law of Evidence): ???
the competence of a person to testify shall be
determined in accordance with the injunctions of Islam
as laid down in the holy Koran and Sunnah.??? And Qatl e
Amd under Section 299(i) of Pakistan Penal Code means
intentionally causing death of a person.

The established law of evidence provides for ocular
and circumstantial evidence to prove the commission of
an offence whereas under Huddood and Qisas Ordinances
the nature of evidence is altogether different.
Whereas, the evidence of women and non-Muslims has
been rendered at a marginalized status.

The menace of honour killing is a shameful remnant of
the mediaeval and patriarchal society and a
misconceived notion of individual or family honor has
been further legitimized under the Qisas and Diyat
law. The perpetrators of the cruelty of the offence of
killing their own women folks in the name of
karo-kari, kala-kali and sia kari have been able to
get themselves free from the clutches of law by
pleading for grave and sudden provocation and
arranging for blood money. All the three customs have
the same meaning in local versions that one who
marries against the will of the family elders is a
condemned person and thus must be killed to save and
restore the family honor. Karo is the condemned man
and Kari is the condemned woman by the family or the
tribe.
There has been chain of cases in which women
exercising right to choose their life partners were
killed for not accepting the will of family elders.
There are number of cases in which women were tortured
to death and such tragic events became high profile
cases in national and international media that
tarnished the image of the country as an uncivilized
society.

In the wake of sharp criticism against the menace of
killing women in the name of family honor at internal
and external level, a strong debate finally ensued at
the floors of the parliament. And resultantly the law
was reformed on the offence of murder. The Criminal
Law (Amendment) Act 2004, apart from other provisions,
introduces amendment to section 299 that relate to
offence against human body in the form of new clause
as, ???offence committed in the name or on the pretext
of honour means an offence committed in the name or on
the pretext of karo kari, siya kari or similar other
customs or practices.??? With this amendment the inhuman
customs and practices to kill persons in the name of
honor have been brought in the net of the offence of
murder. It may however be mentioned that the amendment
in penal law has brought no change so far as instances
of killing in the name of honor continues.


In most of cases the offenders were not provided
deterrent punishments as provided under Qisas law. The
imprisonment in some cases was curtailed to five years
for murder or culprits were freed for lack of evidence
as the standard of evidence provided under the new law
of evidence supposedly Islamic was lacking or they
were freed for payment of blood money. This law has
seriously prejudiced the women??™s right of life and
right of marriage of one??™s own choice. Our heads hang
in shame to recall the case of Salma Bibi. Father of
Salma killed her along with her husband Mohammed
Saleem and six-month-old daughter. Muhammad Siddique
committed this triple cold-blooded murder merely for
restoring family honor because Salma had married
Muhammad Saleem of her own choice. Salma had to pay
heavy price of her life and life of her dear ones.
This case is reported in PLD 2002 Lahore 444 as
Muhammed Siddique Vs State. The Shazia Khaskheli??™s
case is another case that hit the pages of
international media when Shazia and Muhammad Hassan
Solangi having married out of love were tortured to
death in a barbaric manner on October 8 2003. It may
however be stated that there have been cases of
killing women in disguise of family honor for ulterior
motives and in most cases were of economic nature.

Young Salma??™s case speaks volumes for treacherous
blackmailing of human relations by the father and the
venomous sentiments of avenge for honor killing. The
Division Bench judgement in Salma??™s case (PLD 2002
Lahore 444) exposes the cruel designs in which the
triple murder took place and how the victims were
trapped. ??? Invitation from an estranged father to his
daughter must have been a message of forgiveness, of
love and hope and for her credulous husband it must
have been a moment of excitement as such message must
have ended the long chase and his reactive hide after
registration of the Hudood case and above that moment
when his marriage was to be accorded recognition by
his in laws.??? An application for compromise was based
on the statement of the mother of the deceased
Muhammad Saleem who at the time of judgement was
present at the Court??™s direction. On a question by the
Court regarding the fact of compromise the mother
though nodded in positive but tears in her eyes
speaking volumes could not hide the background under
which the compromise had been obtained. The Court took
a bold step in taking judicial notice of the mother??™s
tears and refused to accept the compromise and
dismissed the appeal of the killer father of Salma
Bibi. This is a novel case in which the Court did not
agree to accord sanction to the compromise.

The fact is that these provisions form part of
Personal Law of Muslims, which has been imposed on
non-Muslims as well as Public Law. This of course is a
blatant violation of the Article 227 (3) of the
Constitution that provides that ??? nothing shall effect
the personal law of non-Muslim citizens and their
status as citizens. The Enforcement of Shariah Act
1991, in Section 3 declares, ???The Shariah that is to
say the Injunctions of Islam as laid in Holy Quran
Sunnah, shall be the supreme law of Pakistan.??? And its
proviso says, ???provided that nothing contained herein
shall affect the rights of the non-Muslims guaranteed
by or under the constitution.??? Whereas section 1 (4)
provides, ???Nothing contained in this Act shall affect
the personal laws, religious freedom, traditions,
customs and way of life of the non-Muslims.???
The argument that criminal law is public law hence
should be applicable to all citizens is self-defeating
and is not tenable as it promotes sectarianism and
majoritarianism. The public law is no doubt applicable
to all citizens in order to keep the social fabric
intact but if it is based on a particular religious
creed, it tantamount to state oppression.

The State of Pakistan is a signatory to international
conventions including Universal Declaration of Human
Rights and Convention on Elimination of Discrimination
against Women. These international laws provide
international standard of legislation. Whereas, the
subject legislation is based on a particular religious
creed and philosophy of the majority community which
violates the established principles of human rights
and norms of crime and punishment. The today??™s
civilized world has reached at a stage that no State
can dare introduce provisions in favor of the
institution of slavery because it offends the human
conscience developed with the passage of time through
the process of human development. Therefore it depends
as to how far the social order of a State is
influenced with the pace of civilization. They cannot
refuse to accept the norms of civilized world merely
on the basis of religious personal law and impose it
on those who do not belong to it. They become victims
of sheer majoritarianism, which is simple sectarian
repression that promotes socio-religious intolerance
and tears apart the social fabric. Therefore, in any
case the Qias and Diyat Ordinance and its related
provisions in penal code must not be applicable to
non-Muslims, as they do not belong to Islamic Shariah.
The women who are almost half of humanity cannot be
sidelined any more to protect the patriarchal social
setup. The times have changed. Depriving women of
their basic rights amounts to arresting the process of
development as they prove the best agents for change.
Those who are not prepared to provide equal status to
their women folks are not only socially backward but
have a sick mental out look that do not allow them to
come out of the age old male chauvinism syndrome.

Justice Tassadaq Hussain Jilani, who has now been
elevated to the Supreme Court of Pakistan, has in his
judgement in Salma Bibi??™s case (PLD 2002 Lahore 444)
held,
??? In great majority of cases, behind it at play, is a
certain mental out look, and creed which seek to
deprive equal rights to women i.e. inter alia the
right to marry or right to divorce which are
recognized not only by our religion but have been
protected by law and enshrined in the constitution.
Such murder, therefore, represent deviant behavior,
which are violative of law, negatory of religious
tenets and an affront to the society. These crimes
have a chain of reactions. They feed and promote the
very prejudice, of which they are the outcome, both at
conscious and sub-conscious level to the detriment of
our enlightened ideological moorings.
Justice Jilani observed in his judgement, ??? Law is
part of this human odyssey and achievement. Law is
dynamic process. It has to be in tune with
ever-changing needs and values of a society failing
which individuals suffer and social fabric breaks
down.??? The Judge further observed, ??? The offence which
stands proved against the appellant has to have a
judicial response, which serves as a deterrent, so
that such aberrations are effectively checked. Any
other response may amount to appeasement or
endorsement. A society which fails to effectively
punish such offenders becomes privy to it.???

The promoters of such creed must be reminded that the
Holy Quran in Chapter 5 Verse 32 in Surah Al Maida
abhors killing of mankind and lays down a cardinal
principal. It says, ???For that cause we decreed for the
children of Israel that whosoever killeth a human
being for other than man slaughter or corruption in
the earth, it shall be as if he had killed all mankind
and whosoever saveth the life of one, it shall be as
he had saved the life of all mankind ??¦???.

Law is multi dimensional and is part of the human
traverse under taken through passage of various
civilizations since times immemorial. Therefore any
particular version of law cannot be in isolation of
human civilization. Those who take position on
amendments in the 1973 constitution based on religion
and the statute law enforced in the so-called process
of Islamisation of Gen. Zia as divine law are in fact
forces of retrogression that retard the process of
development. In their claim to possess and hold the
only truth, they tend to construct single version of
collective identity and thereby impose their authority
of majoritarianism. They impose religious creed and
socio-political philosophy that was designed to suit a
few with vested interest. The sectarian approach is a
complete departure from the pluralistic democratic
order envisioned by the founders of this State of
Pakistan. The State must not scum to the pressure of
religious extremist at the cost of life, liberty and
dignity of its citizens and must abandon the policy of
appeasement with the religious lobby merely to gain
political legitimacy. No change in law would
ameliorate the lot of women and minorities unless the
oppressive social structures are dismantled and
radical change is brought about in the prevalent
socio-economic and socio-political philosophy of the
society. It is a process that has to be initiated at
grassroots level to build a civil, pluralistic and
democratic order with the engagement of progressive
social forces.

---------------------------


Bibliography:
Shariah: Injunctions of Islam as laid in the Holy
Qoran and Sunnah
Sunnah; The teachings including acts of the Holy
Prophet
Tazkia al Shahood: An Islamic mode of inquiry for
examining a witness
SCMR: Supreme Court Monthly Review
PLD: Pakistan Legal Decisions
Gen. Zia Gen Zia ul Haq who ruled Pakistan from July
1977 to 1988

-----


Contact: Ch. Naeem Shakir,
Advocate, Lahore High Court,
Hassan Plaza, 1- Mozang Road, Lahore, Pakistan.
Chairman,
Idara e Amn o Insaf Lahore
(Committee for Justice and Peace, Lahore).
Email: nshakir@...
Phone; Of: 042 7353309, Res: 042 5838957, 5850606.




 







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