The doctrine of 'qisas' or 'revenge in kind' allows the heir of the victim to take the life of the murderer (after court approval). However, as an alternative, monetary compensation is also allowed where the aggrieved party receives financial compensation in return for forgiving the murderer. This is known as 'diyya' or 'blood money' in Shariah law. The third recourse under Shariah law is the forfeiture of right to qisas as an act of charity. In other words, pardoning the offender.

Pakistani penal code however allows the government to step into the cases of Pardon by invoking ta’zir. Considering the severity of the matter, the government is allowed to punish the offender even when the heirs have forgiven the person.

Section 311 of Pakistan penal code states:

“The Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived.”

In a recent turn of events, the government of Pakistan has invoked Section 311 of the penal code and has taken the case of Qandeel’s murder into its own hands. This move was an attempt to curb the apprehension that the legal heirs of Qandeel will pardon Waseem, her brother. The FIR against Qandeel’s brother also includes section 11 of the penal code which makes the case non-reconcilable.

Criminal law experts, however, have varying opinions. Some of them say that the government’s move will have no impact on the right of the heir (Qandeel’s father) to pardon the killer.

According to advocate Asad Jamal, the state can only act as heir when no legal heir is available. He states that since Qandeel’s father is alive, he can easily forgive his son.  Advocate Azam Nazir Tarar on the other hand says that the heir of the killer does not have unfettered power to forgive the killer. The decision to pardon the killer is subject to court approval.

It should be kept in mind that the penal code attaches certain conditions if the court wants to invoke section 311 and punish the offender. Section 311, when read with these conditions states:

“Where all the walis do not waive the right of qisas or if the principle of fasad-fil-arz is attracted, the Court may, punish an offender against whom the right of qisas has been waived”

This means that the court has the authority to punish the offender only when all of the heirs have not pardoned the murderer or when the principal of fasad-fil-arz is attracted. The word fasad-fil-arz has not been defined by statute. However, according to the book The Application of Islamic Criminal Law in Pakistan by Tahir Wasti, the court defined Fasad-fil-arz as:

“The ones guilty of creating fasad-fil-arz are inter alia those who disturb the collective peace and tranquility in the society; those who disturb the orderly running of the State; those who breech the law and order; and those who disobey the lawful commands of Ul-il-Amr (those in authority).”

Case law involving such cases is still evolving. Since the statute does not define fasad-fil-arz, the discretion is wide. Different judges have construed fasad-fil-arz differently.

The meaning of fasad-fil-arz was further elaborated in Ijaz Ahmed v. The State. In this case, Ijaz Ahmed admitted to murdering his sister Maryam on 21 May 1999, shooting her in various parts of the body for refusing to iron his clothes. Six months later, his father appeared before the court saying he and the heirs have forgiven him. However, the trial court still sentenced him to fourteen years in prison under section 311, citing fasad-fil-arz on grounds that she was brutally murdered over a trivial matter. The view was however disputed by Justice Kiyani on grounds that fasad-fil-arz would only apply if the offender had previous convictions. The appellate court admitted this as a valid argument and overturned the ruling by trial court. The court maintained that infliction of punishment in the presence waiver should consider both, the propensity of the offender towards crime and the brutality of the act. It further stated that if the court kept punishing people despite waiver of Qisas, sections 309 and 310 of Pakistan Penal Code would become redundant.

Justice Ramday has previously stated that courts are not allowed to blindly acquit the murderer just because the heirs had forgiven the offender. However, he also stated that the courts need to make sure the case falls within the ambit of the provisions of section 311 before punishing the murderer.

As pointed by advocate Aftab Bajwa, the government’s recent move is useless because the trial court has the power to decide whether a criminal act falls within the purview of fasad-fil-arz or not.

Qandeel's father has nominated both his sons for FIR but rumor has it that since the father is crippled and needs the support from his sons to move the case forward, he will eventually drop the charges and forgive his son.

Regardless of the outcome of the case, the seeds of terror have already been sown into the society.