Shahzeb Khan was murdered, in cold blood, on 25thDecember, 2012. Almost five years later, his murders are out of jail, and all charges against them are likely to be dropped as a result of some undisclosed “out of court settlement” between the powerful Jatois and the hapless family members of the victim.

By way of background, Shahzeb Khan’s murder case – which was registered and tried after the honorable Supreme Court had taken suomoto cognizance of the same – was decided by the Anti-Terrorism Court (ATC) in 2012. Importantly, as a rare triumph of law over hereditary centers of feudal power, Shahrukh Jatoi and his co-accused were duly sentenced by the ATC. In the months that followed, as is customary in such incidents, Shahzeb’s family (got pressured into?) pardoning the convicts, for undisclosed reasons. However, despite the pardon, the honorable SHC upheld the sentence on the ground that the case related to charges of ‘terrorism’, in which no private settlement can extinguish the punishment.

In August 2016, however, Jatoi’s lawyer — the illustrious Mr. Farooq H. Naek — filed a criminal review application in the SHC, claiming that the offender (Jatoi) was a juvenile at the time when the crime had been committed and, therefore, the terrorism charges could not have been applied. After hearing this review application, the honorable SHC set aside the ATC’s sentence, declaring that provisions of Anti-Terrorism Act (ATA), 1997 could not be applied since Jatoi was a “juvenile” at the time, and the case arose out of a “personal vendetta” as opposed to some act of terrorism. Consequently, the SHC ordered that the case be tried afresh in the Sessions Court (without any charges of terrorism).

The retrial, as ordered by the honorable SHC, commenced in November of this year. And last Saturday, District Judge Imdad Hussain Khoso released all of the accused individuals (including Shahrukh Jatoi) on bail.

In the aftermath of these developments, a group of civil society members from Karachi have filed an appeal before the honorable Supreme Court of Pakistan, against SHC’s decision to retry Shahrukh Jatoi and his accomplices in the Sessions Court. Specifically, this group claims that “citizens [in Karachi] have been deeply affected and aggrieved by the judgment of the SHC whereby terror charges were removed against Shahrukh Jatoi and three others in the case of killing of youth Shahzeb Khan.” They further assert that “it is astonishing that a retrial has been ordered in the case” even though the same “had been concluded four and half years ago”.

While this appeal will be heard by the honorable Supreme Court in due course, Shahrukh Jatoi and his accomplices roam free, on bail, while the spirit of Shahzeb Khan (and other like him) continues to search for justice in this land of the pure.

Shahzeb Khan’s case – much like other similar cases of the past – has raised critical questions about our criminal justice system. Specifically, it warrants a judicious debate about the practice of “forgiving” murderers who are able to exert their personal and societal influence to reach “out of court” financial settlements with the victim’s family. What are the contours of jurisprudence surrounding such settlements? Should it find any space in our legal paradigm? Or, instead, is it time that we plug this gaping leak in our criminal justice system? Are we beholden to some archaic system of blood-money/diyat? Or is there still hope to crawl out of this archaic system of religious jurisprudence that no longer meets modern standards or morality?

In terms of the provisions of the law, it must be kept in mind that ‘murder’ (Qatl-e-Amd) is punishable under section 302 of the Pakistan Penal Code (PPC), and the prosecution of murder is usually conducted in the Sessions Court. Pertinently, PPC makes provision for the family of the deceased (being the aggrieved party, under religious texts) to ‘spare’ the life of the murderer, by accepting blood-money. However, unlike the PPC, the ATA has no specific provision allowing for a “pardoned” to be granted by the litigating parties.

Furthermore, since the Constitution of Pakistan specifically gives primacy to “Islamic injunctions”, a stretched argument could perhaps be made that the option of blood-money/diyat (to the extent permitted under Islamic jurisprudence) could also be read into the ATA.

Would all this, then, mean that the murderers can always go scott-free in Pakistan, so long as the family members of the deceased agree to take blood-money? Can money always be used as a substitute for punishment of a murderer? And if so, have we simply reduced our criminal justice system to a paradigm where, so long as one is willing to pay the ‘price’ of any given life, murder is no longer a ‘punishable’ offense? Does this system treat all citizens, rich and poor, alike? Does it not entail that a rich man can murder a member of some poor and needy family with impunity, while no poor man can murder a rich without facing punishment? And, in such a case, would equality before law not necessitate that if a poor man kills someone, and is unable to pay the blood-money, that the State should be obligated to pay such money on his behalf?

The key to preventing our criminal justice system from decaying into a simple money equation rests in the principle and practice of “Tazir” – punishment (usually corporal) that is administered at the discretion of the judge, irrespective of any compromise between the parties concerned. Mercifully, the PPC, per section 338E, allows the court to exercise its independent “discretion”, having regard to the facts and circumstances of the case, in awarding Tazir (up to 14 years of imprisonment).

Importantly, all criminal offenses are more than simply a dispute between private individuals; they are offenses against the society and the State. And paying diyat to any one family (even the family of the accused) does not absolve the victim of a crime committed against the society at large. For this purpose, the Pakistani law also incorporates the Islamic idea of “fasad-fil-ardh” – crimes that affect the larger fabric of society. In such cases, even if the parties reach a compromise, the society and the State cannot allow the perpetrator to go unpunished (as held in the case of Muhammad Zaman v. State (PLD 2006 Peshawar 82) where the murderer was punished with imprisonment, despite a compromise between the parties concerned).

The Shahzeb Khan case is blood-wrenched reminder to us all that our criminal justice system needs reform. The Pakistan Penal Code (written in 1860!) needs to be reviewed and brought in line with modern realities of our corrupted society. And the judiciary – especially in our superior Courts –must revisit its earlier jurisprudence of allowing private settlements (between litigants of tremendously disparate means) to be the final word in criminal cases.

It is time that our jurisprudence declares, once and for all, that wealth and influence cannot ‘buy’ its way out of the criminal justice system in our land.

 

 The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool