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Forgiving a murder

The recent order of the Lahore High Court, Multan Bench, which acquitted the brother of social media star Qandeel Baloch, has once again brought the discussion of the Qisas and Diyat law in the limelight. Qandeel’s brother had confessed to the media that he mercilessly murdered his sister because her actions threatened his ‘honour’.

The law was reformed a few years ago so that its loophole where the heirs of victims, who were the real perpetrators of the crime of honour killing, were allowed to forgive the murderer, could be rectified and honour killings couldn’t continue with impunity. However, deciding whether the motivation behind the murder was family honour or otherwise was still left at the discretion of the court and could be substantiated by the evidence of the heirs of the victim, especially since in cases of honour killings, the victim and the murderer belong to the same family. This is evident from the Qandeel case since the parents had initially claimed that they would not forgive their son, but with time, paternal instincts gave in.

Diyat (blood money) was introduced in the law around 32 years ago after an extremely right-wing Sharia Appellate Bench of the Supreme Court of Pakistan ordered the government to include it; it was an unfortunate incident where part of the judicial organ issued orders to the legislative organ of the state, violating the trichotomy of powers envisaged in the constitution. Heirs of the victim can forgive a murderer without any compensation under Section 309 of the Pakistan Penal Code or after taking compensation in the form of Diyat under Section 310.

These laws which compel the state to acquit a murderer based on a compromise between the heirs and the murderer provide an escape route from justice to those who wield money, influence and power. The Raymond Davis case showed how despite being charged with the murder of two Pakistanis, the murderer immediately left Pakistan after his acquittal on the basis of a rushed and shady compromise. Similarly, in the case of an MPA whose speeding vehicle crushed a traffic police constable to death in Quetta, the court case ended on the basis of yet another such compromise. It implies that in the future, other rich and influential murderers may also get a green chit if the victim is not equally powerful and influential.

Criminal law is a part of public law, which addresses the relationship between people and their government, while private law looks at dealings among people. While civil laws spell out duties between people or between people and their governments – for instance what amount of damages should be paid for breach of contract, properly capable of a compromise, criminal law looks at transgressions and violations against the people, and mandates and imposes a duty on the state to penalise the transgressors and the violators. When heirs are given the power to forgive a murderer, it calls into question the very basic definition of the legal system.

If the question is whether a murderer can be forgiven by the victim’s legal heirs, leaving the state powerless in prosecuting a murderer, the answer has to be that it will only lead to injustice and an amnesty for influential murders and should, therefore, not be part of the law. If the question is whether the state can mitigate a murderer’s sentence based on a compromise with the heirs in a structured discretion, this may well be a legal discretion of the state and must, therefore, be made a part of the law.

If the question is that the state should be able to prosecute, convict and punish a murderer, and keep the good order of society, the answer is that it can only be done if the law is reformed in a way that the state’s discretion to prosecute and convict a murderer should never be vitiated on the whims and wishes of the legal heirs of the victims. It must be noted that since murder is a crime against humanity and not a civil transaction between the murderer and the legal heirs of the victim, any compromise that may be entered at will is likely to attack the very core of the state’s writ.

Ali Tahir, "Forgiving a murder," The News. 2022-02-24.
Keywords: Social sciences , Social issues , Honour killing , Civil laws , Criminals , Judiciary , Murderer , Qandeel Baloch , Quetta , Lahore , MPA