The murder of Shahzeb Khan last year, on the night of December 23-24, sparked a nationwide protest, suo motu notice by the Supreme Court, and the trial of the culprits. That trial led to a conviction on June 7, but when the case moved to the Sindh High Court, the heirs of Shahzeb Khan forgave the murderers, and compounded the offence. As a result, three killers walked free, and now the vociferous protests were directed against the provision under which they had been released.

However, the issue of how exactly Islamic provisions have been grafted onto an essentially Raj penal code and criminal procedure code has not been examined. The conflict is not that of the wealth of Shahrukh Jatoi’s father, and his ability to pay off the victim’s family, but of the conception of murder. The Raj conceived of the offences against the person as breaches of the King’s peace, as an offence against society as a whole. Islam conceived of them as wronging the heir, and thus punishable by both retaliation (qisas) and compensation (diyat).

After President Ziaul Haq introduced the mechanism of the Shariat Appellate Bench, this was perhaps inevitably one of the most immediate issues it would take up. Ultimately, it struck down the provisions of the Pakistan Penal Code relating to offences against the person, declaring that the Quran and Sunnah would determine the law. This was followed by a letter from the IGP Punjab to all supervising officers, including all SHOs, telling them to study the Quran and Sunnah and register cases accordingly. The government then quickly promulgated the 1992 Qisas and Diyat Ordinance, which replaced the old provisions of the PPC, and which made murder a compoundable offence.

Compounding offences was already a process recognized by the Raj, and it had provided a list of offences, and who could compound them, in the Criminal Procedure Code. Murder was not one of them. It would be appropriate to remember at this point that the PPC and CrPC were designed by Thomas Babington Macaulay, later Lord Macaulay, for a multi-religious colony. Thus, he did not take into account that it is said by the Almighty: “Verily there is life for you in retaliation (qisas), O men of understanding, so that you may take precaution” [Al-Baqarah:179]

Retaliation takes the form of a life for a life. In the case of personal injury, it extends to inflicting corresponding injury. However, the most attention has been devoted to the compoundability of these offences, and the possibility of inflicting an injury upon someone, and perhaps even killing him, and getting away with it in the sense of obtaining an acquittal by paying up.

The heirs may forgive the killers without taking anything, or they take what is called badal-i-sulh in the Qisas and Diyat Ordinance, Section 310 PPC. They are supposed to take revenge, compensation or forgive. However, because of the Qisas and Diyat Ordinance, the revenge is taken by the state, in the form of execution. The compensation is supposed to be fixed, but it can be more or different, and there is no saying what will suffice for obtaining forgiveness.

Another dimension in general is that murders not only cause enmities, but may have been caused by them. The Shahzeb case is probably relatively uncomplicated because there was no previous enmity, either between the individuals or the families. However, in such cases, the payment of compensation takes a backseat to the inflicting of vengeance. Here, it can be seen how the state maintains its position as the sole possessor of force, with the giving of the right of retaliation of heirs. It does the inflicting of the revenge. It should be remembered that when the moratorium on the execution of death sentences was ended, one of the strongest voices was raised by victims’ heirs claiming retaliation. Not only does the state ensure that this retaliation is so carried out that its monopoly on force is not affected, by being involved in the process, it also ensures that the retaliation is proportionate: that the person or persons killed for one person is guilty, and a whole village is not razed, for example, with the guilty perhaps getting away, and the innocent dying too. Apart from challenging the state, private vengeance is also disproportionate, and this disproportion is likely to create further enmities. Justice provided by the state is thus dispassionate. Though a judge may have passed as many death sentences as can be wished, but he does not incur anyone’s enmity. On the other hand, mortal enmities have developed over someone’s decision to testify, to provide evidence against someone else in another case.

Those in principle opposed to the blood money principle have proved not above using it when pressed. The USA got CIA contractor Raymond Davis released after paying the heirs of his victims. That was perhaps a more typical case, for Davis was not convicted in that shooting in the midst of a crowded Lahore neighbourhood, but the compounding of the offence by the heirs, the court being informed through certificates to that effect, was sufficient to stop the trial in its tracks, and result in Davis’s release, after which he was whisked back to the USA. That also illustrated that the USA was not above using a procedure that it in theory regarded as a holdover from ancient times, and which it did not acknowledge in its own courts.

One thing which diyat has not been able to solve is the perpetuation of feuds. Perhaps this is because the timescale is insufficient. While the Qisas and Diyat Ordinance was promulgated only 22 years ago, feuds may last for several generations. A murder may be a major event in a feud, but it is by no means the only one, and its origins may lie in seemingly small incidents in a distant and murky past. A murder is all too often the result of very old friction. It must not be forgotten that a lot of injuries are unsuccessful murder attempts, while many murders are assaults that succeeded only too well. Even if there is no previous feud, injuries can be the cause of a feud.

Perhaps what has raised hackles is the sight of feudal money getting away with murder. The attitude, that anything can be paid for, even someone’s life, is what has irritated many. However, there is a grudging acceptance that Shahzeb’s parents had the right of compounding the murder. One reason given by the murdered boy’s father, that the further proceedings of the case were lengthy again shows the contradiction between the British and Islamic legal systems. Islamic law contemplates verdicts achieving finality at the trial stage, without the two appeals provided by the British system. However, neither system allows murderers to get away unscathed. The essence of power would be to commit murder and evade all punishment, even paying any compensation. At least that has not happened.

The writer is a veteran journalist and founding member as well as executive editor of The Nation.