Law is a complex subject. Because people have superfluous understanding of complexities and technicalities of law, any judgement that does not resonate with common reasoning is deemed unjust.
In the resultant mist of confusion and resentment, public levels up its criticism on judicial procedures. What goes unnoticed is the question of what if the law in itself provides loopholes to the powerful and, hence, requires mending. This is what happens in most murder cases in Pakistan.
What a layman does not know is that the judge, any judge, can only interpret laws that have been laid down by parliament. The judges have little jurisdiction or authority beyond what has already been provided in the statutes or the basis of precedents that also derive legitimacy from either statutes or ordinances; both are not areas under their ambit of power. Judges do not make laws. Period.
With regards to law on murder cases in Pakistan, the greatest loophole for the manipulator is its compoundable nature. Murder is a compoundable offence which can be compromised by paying certain amount of money to the heirs of the victim i.e., diyat, or by any compromise between the two parties. It is perfectly legal in Islamic law as well as the Pakistani law.
Although the Holy Quran lays emphasis on qisas — death penalty — as the preferred form of justice if order is to be maintained in society, room has been provided for settlement in case the murderers ‘correct’ themselves or the heirs of victims enter into a voluntary financial closure.
Nevertheless, there are occasions where this law has been used by culprits as an escape route. There are two most frequently used ways to escape the claws of justice in such cases. The murderer, being a relative of the victim, is forgiven by the heirs who may also be abettors in some cases. In the other scenario, the murderer is often an influential person who pays compensation or uses coercion on the victim’s family to enter into a settlement.
That being so, one may wonder about the function of the state if such heinous acts against individuals and society are committed and then settled outside court using money or influence. Any criminal offence is an offence against the state whereby the state is duty bound under social contract and the Constitution to safeguard life, liberty and dignity of its citizens.
In cases where the matter is resolved through money or influence, three of these rights are violated; life of the person who was killed, liberty of the person who is forced to enter into agreement, and the dignity of those who are forced to close the case for certain amount of money. The state must go to all lengths to provide justice and should not let its prerogative to be abused by individuals.
There is an alternative law where murder is non-compoundable, but its application has been limited. In a recent high-profile murder case, the attorney general has written for the review of the decision of the Supreme Court. His argument is based on the basis of Fasad Fil Arz to be dealt as an act of terrorism. Although this may resolve this particular case, it does not give any long-term solution to the misuse of the doctrine of compensation or compoundability in other numerous cases.
The concept of Fasad Fil Arz is very narrow and applies to very specific conditions, such as mass killings of Muslims or disproportionate use of force in fight between two parties where the victim was disarmed. It may not provide any solution to many cases of murder, honour killing and other criminal homicide offences.
It is high time parliament amended the laws relating to compromise in murder cases. This can be done by narrowing down the availability of this award of compromise. It must not be made a cup of tea for any influential to end a human life and then walk freely just because they were richer or because of having good relations with the heirs of the victim.
The investigating team must also take into consideration the possibility of the victim’s family being forced by the culprit. Another way can be by widening the scope of Fasad Fil Arz. Thus, by closing the door of unjust escape from justice, the state can ensure fairness to its people.
Public offence against the state and people at large must be met with an iron hand. The laymen must also know that the judges only interpret the law, and loopholes are part of the law itself which should be taken care of through due legislation.
MUHAMMAD SHARIF OTHO
KARACHI
