The qisas and diyat law has become a powerful means for criminals to kill and get off scot free, especially in cases of honour killings. A woman is killed by her brother in the name of honour and the case is settled with the father or the rest of the family. This law has encouraged the crime and has actually served to decriminalise murder. Murder is a crime against the state and cannot be settled by the citizens whatever their relationship with the deceased is. Under Islamic law, punishment for crimes like murder and/or inflicting bodily injury takes two forms: qisas, an equal retributory punishment as inflicted, or diyat, which is basically paying the legal heirs compensation for life lost or/and bodily injury inflicted.
If you recall, after the Shahzeb Khan murder case, settled out of court, it was claimed by many quarters that the law was being used to offer immunity to the rich and the powerful. Generally speaking, in a situation where two parties are involved, it is easy to influence the weaker party to accept the offer by the stronger party. External factors that usually favour the stronger party generally prevail. Heirs to the victims of a crime ‘forgive’ the accused under this law. For example, in 1993, a person by the name of Hanif murdered his wife’s sister on an assumption that she was to marry a man he desired his own sister to marry. Hanif escaped punishment after his wife and her parents forgave him for the murder. This ordinance is also misused to allow culprits of honour killings to go free by applying the same standards. There are two approaches put forward. The first supports the idea that murder and/or bodily harm must be treated as a state offence and not as a private offence for the heirs to forgive. The other approach is to correct the loopholes in the justice system, not the ordinance.
In India, all women are daughters of India but dalits (untouchables) are outside the law. However, in Pakistan, all women can be thought of as dalits. Gender bias in the criminal justice system becomes fairly obvious through the letter and interpretation of laws such as the Qisas and Diyat Ordinance. The legal structure breaks down in many places to allow room for tribal customs in the name of Islam. An easy example is honour killing and violence against women. According to the correct interpretation of Islam, serious crimes such as murder are not crimes against individuals, but also against the state and society. There is also an argument as to why the modern concepts of citizenship have not been taken into account by way of ijtihad (reasoning) by virtue of which the state itself should be considered an heir of the deceased.
Furthermore, the historical context has to be understood. Tribal rivalries go down several generations and one murder can lead to countless more deaths. Forgiveness under Hudood allowed near relatives to put an end to bloodshed by way of forgiving. The laws also encouraged mercy to one’s family; for example a husband could forgive the flogging of an adulteress wife and vice versa. However, they were meant to put a price tag on justice or commercialise the killing of one’s own family.
Following the introduction of the qisas and diyat law, crimes affecting the human body are considered offences against individuals. Thus, if the legal heirs of a deceased so decide, offenders can walk free even after committing grave crimes. In terms of crimes committed against women, the legal heirs of a deceased woman have the right to make a compromise with the offender under sections 309 and 310. In the first provision, legal heirs can forgive the murderer in the name of God without getting any monetary compensation in the form of diyat, while, under section 31, the legal heirs can compromise after receiving monetary compensation. Repercussions of the qisas and diyat laws are especially seen in crimes committed to preserve honour, usually by the family of the victim itself. Since the family can legally forgive itself, the state does not have obligation to interfere and punish the perpetrator.
The jirga system that operates freely in many parts across the country is also given considerable leeway to decide the fate of women and attribute their decision to qisas and diyat laws as well as similar teachings in the Quran. Customs such as swara and vani are legitimised in the name of qisas and diyat since these laws permit compromise and settlement between families in order to settle feuds. While the rules of qisas and diyat are based on Islamic law, they undoubtedly operate disfavourably towards women.
Qisas and diyat provisions were enacted into Pakistani law through an ordinance at the behest of the Federal Shariat Court and Shariat Appellate bench of the Supreme Court. Later, in 1997, an act was promulgated for the same. These provisions militate against the fabric of our common law system of criminal justice. Criminal offences under our law are not only crimes against people but also crimes against the state and society, and for this reason, it is the state, on behalf of society, that is the prosecutor in all such offences. But if you give people the right to end prosecution, in lieu of blood money, it is the state and society that suffers.
If we allow people to go free, by paying money, then we have reduced all criminal offences to a money equation. This would mean that a rich man can kill a poor man without being punished because he can pay money for the crime and the poor man cannot kill a rich man because he cannot afford to. Is human life really a money equation? Is crime permissible, without punishment, just because one can exploit the poverty of the victims’ family?
The country’s qisas and diyat law should not apply to honour killings, as the family itself is the primary perpetrator in a majority of instances. Most honour killings are premeditated and family members decide who is going to kill and which of the family members are going to pardon the convicted.
