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February 23, 2011

Raymond Davis vs Qisas & Diyat Laws

February 23, 2011

As the issue of diplomatic immunity in Raymond Davis’ case has reached a stalemate, it is increasingly being suggested that one strategy for diffusing the tensions might be for the Americans to take advantage of Pakistan’s Qisas & Diyat laws. This would involve the payment of so-called ‘blood money’ to the relatives of the victims of the shootings in return for their forgiveness. It is being assumed that once the victims’ heirs pardon Davis, the legal obstacles to his release shall be automatically cleared. This view is based upon the grossest and most problematic understanding of Pakistan’s Islamised criminal laws.
The Qisas & Diyat laws were introduced in 1990 upon the insistence of the Shariat Appellate Bench of the Supreme Court. These laws have been the subject of intense scrutiny and critique since their incorporation into Pakistan’s corpus juris and have brought further notoriety to the Islamisation process. One major criticism rightly levelled at these laws is that they enable the victims’ heirs to pardon the offenders with the result that most people who commit murder, the most heinous crime in any jurisdiction, walk away without a conviction or a penalty. This is especially problematic in cases of intra-family honour killings or where the offenders are able to pressurize the victims’ families due to their wealth, political influence or status in the rural social hierarchy.
Another problem with these laws is that they are unnecessarily complicated. There are two categories of the most serious offence of homicide: Qatl-i-Amd liable to Qisas (punishable under Section 302(a) of PPC) and Qatl-i-Amd liable to Tazir (punishable under Section 302(b) of PPC).
For the offence to be one of Qisas, there must be two eyewitnesses or a confession by the accused. In such a case, if the victims’ heirs insist on Qisas then under Islamic law the state has no choice but to administer capital punishment. However, if anyone of the victim’s

legal heirs (determined according to the Islamic law of inheritance) pardons the offender then capital punishment cannot be given. The state may nonetheless prosecute the case as one of Tazir under section 311 of the Pakistan Penal Code (PPC). The accused may be sentenced for up to 10 years’ imprisonment if he is a first-time offender, or 14 years if he is “a previous convict, habitual or professional criminal.”
If the proof required for the Qisas offence is not available, the accused may be tried under section 302(b) of the PPC for Qatl-i-Amd liable to Tazir. This offence carries a punishment of either death penalty or life imprisonment. A lower penalty is not permissible. Most cases of qatl continue to be prosecuted as Tazir offences even after the Islamisation of these laws. The Tazir cases may also be compounded, i.e. the heirs may pardon after reaching a compromise or settlement. However, this requires the approval of all the heirs and even then the court has the discretion whether to accept the settlement or not.
As may be noted in this brief summary of the Qatl-i-amd provisions, the state always has the discretion to prosecute and punish the offender even after the heirs of the victims pardon the offenders. This is because in Islamic law there are two sets of rights: a primary set of rights vested in the victims’ heirs and a secondary set of rights and obligations vested in the state. If a victim’s heirs pardon the offender and waive the right to Qisas, the accused may not be given a death penalty. However, the state still has the residuary right, and some may argue the obligation as well, to maintain law and order and can exercise its discretionary powers to prosecute and punish any offenders as Tazir.
This discretionary power to punish after waiver of Qisas in case of Qatl-i-Amd liable to Qisas, or to refuse a settlement in a case of Qatl-i-Amd liable to Tazir, has been granted to trial and appellate judges under the Qisas & Diyat laws. Unfortunately, Pakistan’s judges have in the past misunderstood the Islamic jurisprudential principles at the foundations of these laws and have failed to exercise their discretionary powers. Most judges refuse to sentence the accused in Qisas cases after a pardon by any of the heirs or fail to adequately police the compromise settlement in Tazir cases. As a result the critics rightly argue that the Qisas & Diyat laws result in acquittals for the accused in a majority of cases. The responsibility for this regrettable state of affairs lies squarely with our judiciary rather than with Islamic law.
Another complicating factor that must be taken into consideration is that when an offence of qatl involves additional elements, such that it may be characterized as a separate Tazir offence distinct from qatl-i-amd, the state’s right to prosecute and punish may become paramount. One example is of the offence of ‘dacoity with murder’ under section 396 of the PPC. In such a case a pardon by the heirs is irrelevant and the accused may be prosecuted and punished despite it. In a leading judgment on this point the Supreme Court noted that the pardon was not even a mitigating factor that may lead to a reduction in sentence (of death penalty in that particular case).
Looking at Raymond Davis’ case in the light of these laws it is immediately clear that he is likely to be prosecuted for the offence of Qatl-i-Amd liable to Qisas under section 302(a) of the PPC, assuming that two eyewitnesses of the shooting are willing to testify before the trial court. For both the offences to be pardoned, at least one heir of each of the victims must be willing to waive Qisas. If all the heirs of either of the victims refuse to pardon and insist on Qisas then capital punishment is the only penalty available to the court. In such a scenario, the only way Davis might avoid a death sentence is through a presidential pardon under Article 45 of the Constitution.
Even if an heir of each of the victims pardons Davis in return for receiving monetary compensation, the state shall nonetheless retain the right to prosecute him under section 311 of the PPC Offences other than Qatl-i-Amd liable to Qisas shall also not be affected by the pardon, and these shall include the offences relating to illegal possession of firearms and any terrorism charges that might arise from this incident.
Given the above legal position, I believe that it is rather unfair for a section of the public and the media to bring intense pressure upon the poor families of the v0ictims not to compound the Qatl offences. The heirs have a right to receive compensation and pardon the offender under the Qisas & Diyat laws. The scrutiny should remain on the state’s actions and upon whether the Punjab government is willing to prosecute Davis for qatl and other offences even if the heirs pardon him.
Furthermore, if the American government exercises the option of obtaining the heirs’ pardon and succeeds in completely jettisoning the prosecution it shall seriously undermine its moral credibility in criticizing alleged violations of human rights in the enforcement of Islamic laws. The pardoning of offenders by the heirs is not in itself the key problem in Qisas & Diyat cases as identified above. The real issue is the state prosecution’s refusal to prosecute or the judges’ failure to convict in the Tazir offences that remain after the pardons. In securing Davis’ release through this strategy the American government shall validate the worst abuse of Qisas & Diyat laws.
The writer is an Associate Lecturer at the College of Law, Australian National University (ANU)

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