ISLAMABAD: Over a decade back an American official had stated: “Pakis can sell their mother for ten dollars.” Our past rulers have been proving it time and again and Musharraf broke all past records of his loyalty to Washington throughout his nine-year dictatorship and today we have demonstrated it yet again under the so-called democratic rulers. We have sold ourselves once again.
Our real masters — the Americans — must be very pleased with the work of their puppets in Islamabad and Lahore. However, there are serious apprehensions that this latest shame earned for Pakistan would unleash a new wave of terrorism and fuel extremism in the country.
Only time will tell as to who in the establishment and amongst the civilian rulers of Lahore and Islamabad sold their souls, dignity and honour of the nation to facilitate the smooth release and return of the American double murderer Raymond Davis. However, in view of an earlier court judgment Islamic law of Diyat is not applicable in the offences that fall under the expression of “Fasad-fil-Arz”. Additionally, Davis involvement in spying business was a crime against state, this point was altogether ignored by the federal and provincial governments.
Although, it is for the religious scholars and jurists to ponder if Raymond’s case falls in the category of “Fasad-fil-Arz” or it was a routine “murder” invoking the provision of Diyat, this very aspect was not discussed by the Lahore sessions court. The Punjab prosecution also did not raise this aspect of this strange outcome of the Raymond case.
Raymond was on ECL but he was allowed to fly abroad without any problem. The news was broken to the media only after Raymond had left the soil of Pakistan. We never thought that we would be sold in this manner and so cheaply. We knew well that Nawaz Sharif had once sold Aimal Kansi to the Americans, Benazir Bhutto handed over Yousaf Ramzi to US and the ISI and Pakistan Army under Musharraf presented hundreds of Pakistanis and other nationals including the daughter of Pakistan Dr Aafia Siddiqui to US but we mistakenly thought that it might not be possible for all of them now because of the independent media and the judiciary. But they did it again to Pakistan and did it so shamelessly.
Raja Arshad Ahmed, former attorney general and counsel representing heirs of one of the deceased, told this correspondent that the Punjab government’s prosecution did not raise the issue that this case falls in the category of “Fasad-fil-Arz”.
Raymond Davis was a CIA agent. He has been involved in spying and according to the investigations of Punjab police he was involved in a cold blooded murder. Davis was an enemy of the state and there are many other Davis like American agents in Pakistan allegedly involved in creating chaos in Pakistan. None of these facts were placed before the court neither did the judge apply his mind from this very aspect and ended up settling the issue as a routine murder case under Qisas and Diyat law of Islamic jurisprudence.
It was reported by The News on February 20 that a Peshawar High Court decision might spoil Washington’s option to get waived the right of Qisas and Diyat of the heirs of those killed by Raymond Davis by paying blood money. The court order was also briefly reproduced in the story but the Punjab government found it convenient to ignore this important aspect to ensure the smooth release of Raymond Davis.
In a recent decision — PLD 2006 Peshawar 82 — the PHC had denied benefits to a murderer of four persons despite the fact that the heirs of the deceased had compromised with the accused ruling, “Where case of an offender falls under the expression ‘Fasad-fil-Arz’ he shall not be entitled to any grace and leniency...”
After the matter was taken up by the Lahore High Court and the possibility of immunity became impossible, according to media reports, these were the rulers of Islamabad and Punjab who had suggested to the Americans that they should pay the blood money under Islamic laws to the heirs and get their murderer released.
A legal expert and ex-judge of the Lahore High Court recently told this correspondent that in his view and as per the Peshawar High Court decision the case of Raymond Davis did not fall in the category where it could be settled under Qisas and Diyat law.
Referring to the case, heard by the then CJ PHC Justice Tariq Parvez Khan and Justice Muhammad Qaim Jan Khan, the expert on condition of not being named said that in the said case all the legal heirs of four deceased had waived their right of Qisas and Diyat but still the murderer was not freed.
According to the judgment, authored by the then CJ PHC Justice Tariq: “Although all the surviving legal heirs of the four deceased have waived their right of Qisas and Diyat and their compromise appears to be genuine because of inter se close relationship but we are not inclined to give full effect to the compromise because under section 338-E, PPC notwithstanding waiver or compounding of the offence, the court may in its discretion having regard to the facts and circumstances of the case, can award Ta’zir to the offender according to the nature of the offence.”
The judgment said that a wali (heir) is entitled to waive or compound the right of Qisas but still the court may in its discretion punish an offender against whom right of Qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as Ta’zir.
“Keeping in view the principle of Fasad-fil-Arz, the court may in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as Ta’zir,” says the judgment.
The judgment added that the insertion of expression “Fasad-fil-Arz” is the requirement of socio-cultural setup and to maintain law and order and to save the civic society from deterioration.
In the context of Punjab police investigation proving Davis to have killed two young men in a cold blooded manner, it is interesting to read this part of the PHC judgment, “Where a person for no sufficient reason resorted to indiscriminate firing, taking lives of four innocent ladies which include his wife and three young daughters, should not go scot-free just because the legal heirs of the four deceased have waived and compounded the offence against the offender.”
The judgment said, “It is a case in which the expression ‘Fasad-fil-Arz’ is fully applicable because killing of innocent persons which include a man or woman but for no reason and that too in brutal manner has not only ruined the family but has very insecure impact on the public at large.......”