The Qisas and Diyat Law in Pakistan

Author(s): QADEER ALAM

Source: Islamic Studies , Winter: 2019, Vol. 58, No. 4 (Winter: 2019), pp. 551-562
Published by: Islamic Research Institute, International Islamic University, Islamabad

Stable URL: https://www.jstor.org/stable/10.2307/26899443

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Islamic Studies 58:4 (2019) pp. 551–562 551

The Qisas and Diyat Law in Pakistan: Prosecution of

Offence of Murder
QADEER ALAM*

Abstract
The penal laws adopted and practiced by Muslims in the modern period are an
appraisal of their adherence to the Qur’┐nic principles of justice and contemporary
human rights law. In 1990, Pakistan incorporated amendments in Pakistan Penal
Code to make the penal laws of the country in consonance with the Qur’┐n and the
sunnah—a constitutional obligation. However, Pakistan’s existing law of homicide
does not completely comply with the Qur’┐nic principles of justice and human rights.
The paper argues that the Qisas and Diyat Law of Pakistan has further complicated
the prosecution of offence of murder on the following grounds: (a) power of legal heirs
to waive off or compound the offence of intentional murder (qatl-i ‘amd) at any stage
of the trial; (b) controversy over the interpretation of some sections of the law related
to qatl-i ‘amd not liable to qi╖┐╖; (c) jurisdiction of the court to award punishment of
ta‘z┘r in cases of fas┐d f┘ ’l-ar╔ wherein qi╖┐╖ is waived or compounded.

Keywords
Qisas and Diyat Law, Pakistan, prosecution, murder, qatl-i ‘amd.

Introduction
This research paper briefly discusses the criminal justice system in the shar┘‘ah.
It traces the origins of the Qisas and Diyat Law in both the judiciary and the
parliament of Pakistan and elucidates how the right of legal heir to waive and
compound offence of murder at any stage provides escape route to the
powerful. It also illuminates how the law discriminates against women.
Moreover, it evaluates cases of the Supreme Court in which courts awarded
punishment without taking into account tangible difference between qatl-i
‘amd (intentional murder) liable to qi╖┐╖ (retaliation) and qatl-i ‘amd liable to

*
Assistant Inspector General Prisons, Inspectorate of Prisons, Government of Punjab, Lahore,
Pakistan.

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552 QADEER ALAM

ta‘z┘r (discretionary punishment). The paper discusses how the courts made
conflicting interpretations of the provisions of the law dealing with situations
where qi╖┐╖ for qatl-i ‘amd is not liable or enforceable. It concludes with
enumerating challenges faced by the courts in enforcement of ta‘z┘r after
waiver or compounding of the right of qi╖┐╖ in case of qatl-i ‘amd.

Crime and Punishment in the Shar┘

Shar┘‘ah
The word crime (jurm) has been used in many verses,1 but the Qur’┐n did not
give legal definition of crime or the law of procedure to prosecute an offender
except in the case of zin┐ (fornication)2 and qadhf (false accusation of
fornication).3 Islamic jurisprudence emerged as a distinguished Islamic science
around 150/767, as different Muslim jurists made significant contributions to
its evolutionary growth.4 The various schools of Islamic jurisprudence differed
from each other in terms of the interpretations of the Islamic texts (nu╖┴╖),
customs, social environment, and political allegiance.5
The second century of Islamic calendar saw tremendous and rapid
development of technical legal thought. Muslim jurists (fuqah┐’) defined crimes
“in terms of punishments.”6 In criminal law of Islam, jurists placed crimes into
three different categories: (a) ╒ud┴d7 (fixed penalties), (b) qi╖┐╖8 (retaliation),
and (c) ta‘z┘r (discretionary punishment).9 Literally, a ╒add means preventing
the offender from committing an offence or repeating it. The ╒ud┴d penalties
are also classified as rights of Allah. Many jurists including ‘Al┘ b. Mu╒ammad
al-M┐ward┘ (d. 1058 CE) consider all of the ╒ud┴d penalties specially defined
punishments.10 Hence, qi╖┐╖ was not part of the ╒ud┴d, because it is mostly
considered the right of human beings. However, the Sh┐fi‘┘ jurists recognise

1
Qur’┐n 77:46; 8:8; 10:82.
2
Ibid., 24:2.
3
Ibid., 24:4.
4
Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 40.
5
Jamal J. Nasir, The Islamic Law of Personal Status (London: Graham & Trotman, 1986), 3.
6
Mahgoub El-Tigani Mahmoud, The Sources of Islamic Jurisprudence: Justice and Law in Islam
(Lewiston: Edwin Mellen Press, 2014), 85.
7
In Arabic language, the word ╒add is used in several meanings, such as edge, border, extremity,
terminus, and limit.
8
It means retaliation, homicide, and personal injury and forms the second type of offence—
falling between ╒ud┴d laws and torts.
9
It means censure or reprimand, but it is discretionary punishment.
10
Mu╒ammad Ab┴ Zahrah, al-Jar┘mah wa ’l-‘Uq┴bah f┘ ’l-Fiqh al-Isl┐m┘ (Cairo: D┐r al-Fikr al-
‘Arab┘, 1988), 25.

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THE QISAS AND DIYAT LAW IN PAKISTAN: PROSECUTION OF OFFENCE OF MURDER
553

the qi╖┐╖ as a ╒add, which they saw as encompassing both homicide (qatl) and
bodily harm (jin┐yah).11
Edward William Lane (d. 1876) defines the Arabic word qi╖┐╖ as
“retaliation.”12 Muhammad Asad (d. 1992) translates it as “synonymous with
musawah, i.e., making a thing equal, making the punishment equal to the
crime—‘just retribution.’”13 Wael Hallaq opines that the qi╖┐╖ is not an
exclusive act of revenge, but “the considered and measured equalization
(supervised in all cases, by the Qadi) of loss of either limb or life.”14 Section
299 (K) Pakistan Penal Code defines the qi╖┐╖ as, “punishment by causing
similar hurt at same part of the body of the convict as he has caused to the
victim or by causing his death.”15
The third category of crimes (i.e., ta‘z┘r) refers to discretionary
punishments that Muslims rulers exercised “due to the absence of a Sharia’s
text to determine the deserved penalty.”16 In the beginning, the ta‘z┘r was
discretion of the court, but it never meant that judge had unfettered power to
inflict punishments. With the passage of time, the punishments of ta‘z┘r were
codified. The word ta‘zir as defined in section 299(l) of Pakistan Penal Code
means “punishment other than qisas.”
The penalties in Islamic jurisprudence were not legislated for random and
arbitrary implementation. In fact, “Muslim jurists exhibited concrete concerns
over the authenticity of evidence, the legality of pre-trial investigation, and
provision of sufficient space for post-trial revisions and corrections.”17 The
summum bonum of the Islamic criminal justice system is that it is applied
equally on all humans, regardless of their status or class.18 Muhammad Munir
argues that the Islamic criminal justice system was ahead of its time and it
recognised all safeguards and guarantees of fair trial fourteen hundred years
ago, which were essential elements of criminal justice system of the twenty-

11
Wael B. Hallaq, Sharia: Theory, Practice, Transformation (New York: Cambridge University
Press, 2009), 310–11.
12
Edward William Lane, An Arabic-English Lexicon (London: Williams and Norgate, 1872),
2528, s.v. q-╖-╖.
13
Muhammad Asad, The Message of the Quran (Gibraltar: Dar Al-Andalus, 1980), 71.
14
Hallaq, Sharia, 310.
15
Pakistan Penal Code, sec. 299(K).
16
Man╖┴r Mu╒ammad ╓ifnaw┘, al-Shubuh┐t wa Atharuh┐ f┘ ’l-‘Uq┴bah al-Jin┐y’iyyah f┘ ’l-Fiqh al-
Isl┐m┘ Muq┐ranan bi ’l-Q┐n┴n (Cairo: Ma═ba‘at al-Am┐nah, 1986), 37.
17
Mahgoub El-Tigani Mahmoud, Criminology and Penology in Islamic Jurisprudence (Lewiston:
Edwin Mellen Press, 2015), 165–66.
18
Ibid., 140.

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554 QADEER ALAM

first century.19 Islamic laws are based on equitable principles, “ensuring to

individuals perfect equality of rights.”20

Development of Qisas and Diyat Law in Pakistan

During the process of Islamisation, the Federal Shariat Court (FSC) was
established to review the repugnancy of existing laws of Pakistan to Islam.21 By
invoking constitutional jurisdiction, the FSC directed the federal government
in its three judgments22 to review penal laws of the country in conformity
with the Qur’┐n and the sunnah. From 1980 to 1989, both the judiciary and
the parliament had intensive discussion on repercussions and implications of
the draft legislation. In 1990, in compliance with judgments of the court, the
sections of Pakistan Penal Code dealing with murder and bodily hurt were
amended in line with Islamic jurisprudence. Subsequently, the law was enacted
by the parliament in 1997. In this process, the court played a leading role. That
is why, Martin Lau rightly observes that “the Islamisation of laws in Pakistan
has been primarily a judge-led process.”23
In fact, the Qisas and Diyat Law was enacted without developing any
consensus among the members of the parliament. It is noteworthy that the
National Assembly of Pakistan debated the draft law of homicide and bodily
hurt in 1993,24 but it could not become legislation. On April 7, 1997, the law
was tabled in the National Assembly for its approval.25 The parliament passed
the bill within thirty minutes without observing the procedure prescribed
under its statute. In this context, the prior notice was not served to the
members of the parliament nor was the bill debated by the Standing
Committee or Select Committee before its approval by the National
Assembly.26 Syed Naveed Qamar raised the objection regarding the abrupt
introduction of the law as follows: “We are suspending rules so that we can

19
Muhammad Munir, “Fundamental Guarantees of the Rights of the Accused in Islamic
Criminal Justice System,” Hamdard Islamicus 40, no. 4 (2017): 45-46.
20
Syed Amir Ali, The Spirit of Islam (London: Chatto & Windus, 1922), 289.
21
Presidential Order No. 1, 1980, The Constitution of Islamic Republic of Pakistan 1973, article
203 D (1).
22
Gul Hassan Khan v. the Government of Pakistan, PLD 1980 Peshawar 1; Muhammad Riaz
etc. v. the Federal Government of Pakistan, PLD 1980 FSC 1; and The Federation of Pakistan v.
Gul Hassan Khan, PLD 1989 SC 633.
23
Martin Lau, The Role of Islam in Legal System of Pakistan (Leiden: Martinus Nijhoff, 2006), 1.
24
“The National Assembly of Pakistan Debates: Official Report,” vol. 2, no. 6 (June 10, 1993),
p. 606, http://www.na.gov.pk/uploads/documents/1459320457_248.pdf.
25
Ibid., vol. 4, no. 7 (April 7, 1997), p. 577, http://www.na.gov.pk/uploads/documents
/1459577438 _817.pdf.
26
Ibid., p. 578.

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THE QISAS AND DIYAT LAW IN PAKISTAN: PROSECUTION OF OFFENCE OF MURDER
555

pass a law without getting anything to Committee.”27 The opposition walked

out.28 The Lahore High Court endorsed the fact in its observations made in
Abid Hussain v. the State that the law was incorporated into the criminal justice
system without any serious arguments or cogitation.29
Leading Muslim scholars have consensus that the ╒ud┴d and qi╖┐╖
penalties are ideally enforced only by an ideal authority in egalitarian Muslim
society. Ab┴ ’l-A‘l┐ Maud┴d┘ (d. 1979) rightly observes that an isolated
provision of Islamic law cannot do any miracles without addressing the
economic, social, and political problems of society.30 Salim el-Awa31 and
Mohammad Hashim Kamali also endorse Maud┴d┘’s standpoint that the
Islamic criminal justice system in an alien environment is not only unrealistic,
but most likely produces the opposite results—frustration with the Islamic
vision of justice and fair play.32 The law was grafted onto the penal system of
Pakistan without taking into account the social matrix of society.
Consequently, the law entailed legal and social complications in its
implementation.

The Power of Legal Heir to Pardon off at any Stage of the Trial
The law had profound impact on process of prosecution of the offence of
murder. The law shifted the emphasis from homicide as a crime against the
state to a private offence against the victim. Evan Gottesman rightly observed,
“The law overhauls Pakistan’s British-written criminal legal code and marks a
profound shift away from the British system of state control over
punishment.”33
Section 309 of PPC empowers a sane adult legal heir to “waive his right of
Qisas” in murder without compensation at any stage of trial or after
conviction.34 Moreover, section 310 permits the sane legal heir to forgive the
offender in lieu of financial compensation.35 In this regard, badl-i ╖ul╒ (financial

27
Ibid.
28
Ibid., p. 585.
29
Abid Hussain v. the State, PLD 2002 Lahore 482.
30
S. Abul A‘la Maud┴d┘, Islamic Law and Its Introduction in Pakistan, trans. Khurshid Ahmad
(Lahore: Islamic Publications Limited, 1970), 19–20.
31
Mohamed S. el-Awa, Punishment in Islamic Law (Indianapolis, IN: American Trust
Publications, 1982), 136.
32
Mohammad Hashim Kamali, “Punishment in Islamic Law: A Critique of the Hudud Bill of
Kelantan, Malaysia,” Arab Law Quarterly 13, no. 3 (1998): 229.
33
Evan Gottesman, “The Re-emergence of Qisas and Diyat in Pakistan,” Columbia Human
Rights Law Review 23, no. 2 (1992): 433.
34
Pakistan Penal Code, sec. 309.
35
Ibid., sec. 310.

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556 QADEER ALAM

compensation) is explained under section 310 as “the mutually agreed

compensation according to Shari’ah to be paid or given by the offender to a
wali in cash or in kind or in the form of moveable or immovable property.”36
As a safeguard, the section 310-A categorically prohibits exchange of woman as
a compensation to waive the right of qi╖┐╖. The Supreme Court of Pakistan
defines the concepts of ‘afw and ╖ul╒ as follows: “Waiver-Afw (forgiveness
without accepting any compensation) and Compounding-Sulh (compounding
on accepting badal-i-sulh/compensation).”37
The right of legal heirs to waive or compound qi╖┐╖ at any stage of the
trial entails many social and financial complications. First, the law does not
stipulate any explicit guidelines to the courts how to gauge fairness of the
compromise. Consequently, the process of compromise results in coercion and
corruption in some cases. In this respect, the judgments of the FSC38 did not
rule out the possibility that legal heir could be subjected to social and
economic pressure to accept compromise. Against this backdrop, the FSC
suggested that the high courts should be only competent court to monitor the
“the genuineness of compromise.”39
The perusal of the National Assembly debate on the law reflects that
many members of the assembly showed their concern regarding the viability
of the law. In this regard, in 1993, Syed Zafar Ali Shah, a member of
opposition, highlighted the issue that legal heirs were more vulnerable to
accept compromise under intimidation and compulsion.40 The Lahore High
Court, in Ghulam Shabir v. Mst. Zanib Bibi, noted that in numerous cases the
indigent legal heirs of a deceased could not sustain the pressure and were
forced to resort to compromise to accept diyat (blood money).41
Second, the right of the val┘ to compound qi╖┐╖ at any stage of the trial
had an impact on the process of investigation and trial. In the recent past, the
two most widely reported cases showed how the powerful and the rich
exploited the law. On January 27, 2011, Rammond Davis, the American
Central Intelligence (CIA) contractor, killed two men in an accident in
Lahore. The trial of the accused was under progress in the special court held at

36
Ibid.
37
The Supreme Court of Pakistan, Suo Motu Case No. 03 of 2017, regarding the issue as to
whether compounding of an offence under section 345, Cr.P.C. amounts to acquittal of the
accused person or not, para. 7.
38
Gul Hassan Khan v. the Government of Pakistan, PLD 1980 FSC 187; Mohammad Riaz v.
the Federal Government, PLD 1980, FSC 187.
39
Muhammad Riaz v. the Federal Government PLD 1980 FSC 30.
40
“The National Assembly of Pakistan Debates: Official Report,” vol. 2, no. 6. (June 10, 1993),
p. 614, http://www.na.gov.pk/uploads/documents/1459320457_248.pdf.
41
Ghulam Shabir v. Mst. Zanib Bibi, 1999 MLD 585.

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THE QISAS AND DIYAT LAW IN PAKISTAN: PROSECUTION OF OFFENCE OF MURDER
557

Central Jail, Lahore. During the trial, on March 16, 2011, the trial court
ordered to release Davis on the ground that the legal heirs accepted blood
money that was worth 2.4 million. The swift release of Davis left behind
many doubts and questions regarding the settlement of the double-murder
case. The counsel of the victims’ families alleged that the government forced
the families to accept the diyat.42
In another case, the anti-terrorism court sentenced Shahrukh Jatoi and
Siraj Talpur, charged with gruesome murder of Shahzeb Khan in June 2013.
The case exposed flaws of the trial of murder under prevalent criminal justice
system of Pakistan. The condemned prisoner, Shahrukh Jatoi managed to
persuade the legal heirs of the slain Khan to forgive the killer under influence
of wealth and social pressure. The legal heirs of (the murdered) Khan could
not sustain the pressure and influence and eventually submitted an affidavit of
forgiveness of their son’s murderer.
During the last decade of the eighteenth century, the British also pointed
out social and legal complications involved the right of legal hair to pardon the
killer. It is pertinent to mention that the Qisas and Diyat Law was applicable
to all religious groups equally during the Muslim rule in India during the
eighteenth century. This law was acceptable to Brahmin as a class, because the
probability of their execution was remote and in practice ‘Gentoo’ lower class
Hindu, could not afford to opt for qi╖┐╖ in case of Brahmin.43 On December 3,
1790, Lord Cornwallis observed,

The evil consequences, and the crimes which hereby escape punishment, are so
manifest and frequent, that to take away the discretion of relations seems
absolutely requisite to secure an equal administration of justice and will
constitute a strong additional check on the commission of murder, and other
crimes.44

Moreover, the British pointed that the law contemplated offence of

murder against an individual not a society or state.45 To secure equal
administration of justice the right of the victim’s relatives to forgive a
murderer, enforced in India under Islamic law, was amended in 1790 through

42
http://www.bbc.co.uk/news/world-south-asia-12757244, accessed on April 20, 2016.
43
Charles Grant, Observations on the State of Society among the Asiatic Subjects of Great-Britain
particularly with respect to Morals and on the Means of Improving It (London: House of
Commons, 1813), 35.
44
Ibid.
45
Mahabir Prashad Jain, Outline of Indian Legal History (Bombay: N. M. Tripathi, 1981), 489.

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558 QADEER ALAM

promulgation of a regulation.46 The amendment enacted the principle that “the

relatives be debarred from pardoning the offender in future instances and that
the law be left to take its course.”47 Finally, the Indian Penal Code 1860 and
Code of Criminal Procedure 1898, contrary to Islamic penal laws, empowered
the state to punish and grant pardon.

Discrimination against Women

The Qisas and Diyat Law implicitly gave legitimacy to the murder committed
in the name of honour. Before the enactment of the Qisas and Diyat Law, the
Indian Penal Code 1860 did not reckon culpable homicide as murder under
the provision of “grave and sudden provocation.”48 In Gul Hassan Case v.
Federation of Pakistan, the court stated that Islamic jurisprudence does not
permit to dilute the intensity of offence of murder under the plea of “sudden
and grave provocation.”49 The plea of provocation was argued and accepted in
the courts in mitigation even though the provision as such no longer exists in
the law.50 In this regard, the judges invoked section 338(F) that empowered the
judiciary to interpret the law in light of the shar┘‘ah.51 However, unfortunately
no comprehensive plan was chalked out for the training of judges to sensitise
them to the Islamic laws in order to perform their professional role in
accordance with the law.52
Against this backdrop, the judiciary made its own interpretation of the
shar┘‘ah to apply the law. In Ghulam Yasin and two others v. the State, the court
exercised the powers under article 338(F) and made distinction of intentional
murder (qatl-i ‘amd) from the murder committed on account of honour.53 The
court noted that the accused who was proved guilty of offence of murder (qatl)
committed the crime as consequence of honour, hence, merited concession.54

46
James Norman Dalrymple Anderson and Noel James Coulson, Islamic Law in Contemporary
Cultural Change (Zurich: Verlag K. Alber, 1967), 42.
47
James Edward Colebrook, Supplement to the Digest of the Regulations and Laws Enacted by the
Governor General in Council for the Civil Government of the Territories under the Presidency of
Bengal (Calcutta: n.p., 1807), 155. The instruction was further issued in detail in regulation
1793/9, secs. 55, 76 and regulation 1797/4, secs. 3, 4.
48
Indian Penal Code, 1860, sec. 300.
49
Gul Hasan Khan v. Government of Pakistan, PLD1980 FSC 187, 674.
50
Sohail Akbar Warriach, “‘Honor Killings’ and the Law in Pakistan” in Honour: Crimes,
Paradigms, and Violence against Women, ed. Lynn Welchman and Sara Hossain (London: Zed
Books, 2005), 96.
51
Pakistan Penal Code, sec. 338(F).
52
Tahir Wasti, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (Leiden:
Brill, 2009), 194.
53
Ghulam Yasin and two others v. the Sate, PLD 1994 Lah. 392.
54
Ibid., at 397.

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THE QISAS AND DIYAT LAW IN PAKISTAN: PROSECUTION OF OFFENCE OF MURDER
559

In Ghulam Hussain alias Hussain Bakhsh v. the State and another, the Supreme
Court validated “sudden provocation” as mitigating circumstance to commute
the sentence of murder.55 In Muhammad Rafique v. the State, the Lahore High
Court granted benefit to the murderer on account of sudden provocation, who
killed his wife due to her violation of social norms.56 In State v. Abdul Waheed
and another, the Supreme Court observed that the murder of wife committed
by husband due to honour should not be awarded the punishment of the
qi╖┐╖.57 The Supreme Court endorsed the act of husband who killed the person
who was caught red handed in doing sex with his wife on the account of
sudden provocation.58
On the contrary, the case law shows that judiciary in Pakistan adopted an
opposing stance in a series of judgments.59 In Muhammad Siddique v. the State,60
the Lahore High Court upheld the trial court’s punishment of death penalty
to a man who killed his daughter, the husband of the daughter, and their child,
regardless of the fact that the compromise had been concluded between the
parties. In Ashiq Hussain v. Abdul Hameed, the court reiterated that murder
could not be defended to glorify custom, creed, and tribe.61 Similarly, the
Supreme Court, in Muhammad Saleem v. the State categorically denounced the
practice of killing a person in the name of honour.62

Contradiction in Interpretation of Exceptions to Qatl-

Qatl-i ‘Amad Liable to
Qi╖
Qi╖┐╖
Section 299 of PPC prescribes two punishments for intentional murder (qatl-i
‘amd) as qi╖┐╖ and ta‘z┘r. Section 304 of PPC contains two requisites for the
award of the punishment of qi╖┐╖: First, the accused facing the charges of
offence of murder makes a candid confession without any coercion and
temptation;63 second, the witnesses meet the threshold of competence (tazkiyat
al-shuh┴d) as enunciated by the law of evidence.64 If the evidence against the
accused offender does not meet the aforesaid standard, the accused will get

55
Ghulam Hussain alias Hussain Bakhsh v. the State and another, PLD 1994 SC 31.
56
Muhammad Rafique v. the Sate, PLD 1993 Lahore 848.
57
The State v. Abdul Waheed and another, 1992 P Cr. LJ 1596.
58
The State v. Muhammad Hanif, 1992 SCMR 2047.
59
Warriach, “‘Honor Killings’ and the Law in Pakistan,” 96.
60
Muhammad Siddique v. the State, PLD 2002 Lahore 444, 454.
61
Ashiq Hussain v. Abdul Hamed, 2002 P Cr L.J 859.
62
Muhammad Saleem v. the State, PLD 2002 SC 558.
63
Pakistan Penal Code, 1860. sec. 304.
64
The Qanun-e-Shahadat Order 1984, article 17.

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560 QADEER ALAM

punishment of ta‘z┘r. It means that the nature of sentence—whether qi╖┐╖ or

ta‘z┘r—is determined by the standard of the proof.65
The law enumerates some exceptions wherein the punishment of qi╖┐╖ in
qatl-i ‘amd is neither “liable” nor “enforceable.”66 It includes cases when the
offender is minor or insane, or the offender causes death to his child or
grandchild, or any val┘ of the victim is a direct descendent of the offender. In
line with the provisions of the law, those cases which fall under the aforesaid
exceptions to punishment of qi╖┐╖, the offender who is found guilty of qatl-i
‘amd will get the punishment of diyat under section 308. As the statutory
provisions clearly show, the exception is for those who are convicted of
murder under 302(a).
However, there are series of cases wherein the Supreme Court extended
the benefit of exception to the convicts who were punished as ta‘z┘r under
302(b). In this context, the Supreme Court granted benefit to the death row
prisoner, Khalil-uz-Zaman, who was charged with killing of his wife and
survived one minor child.67 The aforesaid judgment of the August Supreme
Court proved to be pioneering precedent case wherein the Supreme Court
provided relief to those who were awarded punishment for the commission of
offence of qatle-i ‘amd and punished under section 302(b) with ta‘z┘r, but they
yet qualified to get benefit of exception under section 306 and 307 of PPC.
In 2015, the Supreme Court, in Zahid Rehman v. the State68 attempted to
end controversy and ambiguity. The court did the survey of all the reported
judgments of the Supreme Court on the subject and concluded that qi╖┐╖ and
ta‘z┘r are two different and “exclusive punishments,” which do not “overlap.”69
Moreover, the exceptions where the punishment of qi╖┐╖ is not liable or cannot
be enforced have no relevance to the punishment of ta‘z┘r, hence, applicable
cases of qi╖┐╖ only.70

Ta‘z┘r after
Ta‘ after Waiver or Compounding of the Right of Qi╖
Qi╖┐╖ in Qatl-
Qatl-i
‘Amd
‘Amd
The tension between the empowerment of the victims and needs of the state
has always engaged Muslim scholars. It is argued that “the safety of the
community requires that the state retain the right to impose ta’zir in case of

65
Pakistan Penal Code, sec. 304.
66
Ibid., secs. 306-07.
67
Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885.
68
Zahid Rehman v. the State PLD 2015 SC 77, 29.
69
Ibid.
70
Ibid.

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THE QISAS AND DIYAT LAW IN PAKISTAN: PROSECUTION OF OFFENCE OF MURDER
561

pardon or settlement.’71 Mahmood Ahmad Ghazi (d. 2010) defends the state’s
power to punish the murderer in order to protect the right of society.72 If in a
case, qi╖┐╖ is inapplicable due to waiver, the court may award ta‘z┘r
punishment under the principle of fas┐d f┘ ’l-ar╔ (serious disruption in society).
However, it has been the general practice that the court does not impose any
kind of punishment on the accused of murder in case of compromise between
the parties.73 Consequently, the person who commits an offence of murder is
released.
The concept of fas┐d f┘ ’l-ar╔ is still very much subject for debate due to its
diverse interpretations. The section 311 of PPC enlists honour killing under
fas┐d f┘ ’l-ar╔ and its punishment is not less than ten years imprisonment in
case legal heirs forgive the killer under the law.74 Moreover, this section
explains that the court will take account of the previous convictions of the
convict, the manner of killing, and the threat that the offender may pose to
society. However, it is difficult for the court to determine a murder that
created a sense of insecurity and unrest in society. This section also permits the
court to determine an act of murder as fas┐d f┘ ’l-ar╔ through sketch of imagination.

Conclusion
The majority of Muslim jurists argue that the Qur’┐n and the sunnah of the
Prophet permit to forgo the qi╖┐╖ punishment in case of qatl-i ‘amd. The legal
heir(s) may pardon the punishment of qi╖┐╖ of the convict either against diyat
or without accepting any compensation. The Qur’┐nic verse that contains the
command of qi╖┐╖ gives the option of forgiveness and reconciliation.75 The
underlying principle of this divine rule is to promote justice as well as life.
As a constitutional obligation, in 1990 the government of Pakistan
incorporated amendments in the provisions of the chapter sixteen of Pakistan
Penal Code in conformity with the Qur’┐n and the sunnah. However, it is
argued that Pakistani Qisas and Diyat Law was enforced without conducting a
rigorous research on Islamic criminal justice system and taking into account
unequal distribution of wealth and power among different strata of Pakistani
society. Consequently, the power of legal heirs to waive or compound the

71
Gaafer Mohamed Abd-Elrahim, “The Concept of Punishment in Islamic Law in Relation to
Contemporary Legal Trends,” American Journal of Islamic Social Sciences 7, no. 1 (1990): 124.
72
Mahmood Ahmad Ghazi, Musawwadah-i Q┐n┴n-i Qi╖┐╖-o Diyat (Islamabad: Id┐ra-i Ta╒q┘q-i
Isl┐m┘, 1986), 64.
73
Ghulam Hyder Sindhi, Honour Killing and the Status of Women in Pakistan (Islamabad:
National Institute of Pakistan Studies, 2007), 137.
74
Criminal Law (Amendment Act, 2016), sec. 311.
75
Qur’┐n 2:178.

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562 QADEER ALAM

right of qi╖┐╖ from investigation to the time of execution not only mars the
process of investigation, but also gives an ample opportunity to the powerful
and wealthy to entice the legal heirs to compound the offence.
Moreover, the law implicitly condones honour killings that contradict
the tenets of Islam and spirit of the Constitution of Pakistan. Since the
promulgation of the law, both the trial and appellate courts put different
interpretations on the provisions dealing with exceptions or concession to the
application of qi╖┐╖ and the power of the court to award punishment of ta‘z┘r
in cases where qi╖┐╖ was compounded or waived under the provision of fas┐d f┘
’l-ar╔. By overlapping two distinct types of punishment namely ta‘z┘r and
qi╖┐╖, the courts extended the exceptions to the enforcement of qi╖┐╖ on
intentional murder to the cases liable to ta‘z┘r. Owing to diverse
interpretations of fas┐d f┘ ’l-ar╔, the courts exercised discretion to award ta‘z┘r
punishment. However, the law must identify the circumstances wherein the
state’s intervention is necessary to maintain peace in society without
infringing the victim’s rights.
Taking into account the socio-economic dynamics of Pakistani society,
the paper suggests to reform the Qisas and Diyat Law of Pakistan to eliminate
its misuse and dissolve legal complications.

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