Sunday December 10, 2023

How to get away with murder

By Ali Tahir
January 15, 2023

The practice of ‘indulgence’ started during the Middle Ages. The idea behind the concept was to absolve sins by decreasing their severity. Initially, indulgences were granted after a person prayed in the church selflessly.

Later, the economy kicked in, and the church started granting indulgences to those who explicitly paid for it or made donations in the name of the church or saints. The rich could get absolved of their sins if they secured an amount big enough to be paid. This idea was attacked and challenged by reformists, and in modern legal systems, though there are instances where the state can impose pecuniary penalties like fines, one just cannot use monetary compensation – blood money – in murder cases. But a few legal systems, including that of Pakistan, allow this.

Last year on January 12, the victims in the Islamabad couple harassment case backtracked from their allegations against the accused after having reached a compromise with the accused. This led to an uproar, and the government decided that it would still prosecute the accused as there was other evidence available, including a video of the incident. The accused were then convicted and sentenced two months later by a sessions court in Islamabad. This was a huge win for the legal system.

On the 12th of January this year, the legal system lost when a sessions court in Malir, Karachi acquitted three people including an MPA of the Sindh Assembly in the Nazim Jokhio murder case on the basis of a compromise. The court however did not acquit two accused persons from the charge of kidnapping. They were employed by the prime accused and definitely did not have strong financial backing. In the 2012 Shahzeb murder case, the family of the victim had pardoned the accused a few months after the incident, and in October 2022, the Supreme Court acquitted the prime accused Shahrukh Jatoi from the terrorism charge and set him free. This was done because Shahrukh had already reached a compromise and since the terrorism charge did not carry, he was acquitted.

These two cases show that if a person is murdered, the culprit will have the benefit of a compromise, but in cases of harassment and kidnapping, this privilege will no longer exist. This legal position is without any logic or prudence. There is one important question though: isn’t it better that the heirs of the victim end up with some pecuniary benefits than to punish the accused? This question however can easily be answered by referring to the provisions of compensation in criminal cases enacted by the modern legal systems.

In the UK, the courts are fully empowered to award monetary compensation for victims or their families. This is where the convict can afford to pay such compensation. Otherwise, the Criminal Injuries Compensation Scheme, which is a government-funded scheme, compensates victims or their bereaved families for any physical or mental injury caused by a violent crime. The same is the situation in the US; although all states have their own laws, the courts of all states make compensation orders. If this is not sufficient, every US state operates a programme to help crime victims pay for some of the expenses they would not otherwise have incurred except for their criminal victimization. This is what needs to be incorporated in Pakistan’s law as well.

When one looks at the Nazim Jokhio case, it becomes evident that the rich can get away with murder. The main accused, who is also a Sindh Assembly member, did not spend even one day under investigation. First, he was escorted by a government minister to the Sindh High Court, where he was able to obtain protective bail without the court considering the merits of the case. The protective bail is granted under Section 498 of the Criminal Procedure Code, 1898 to an accused to enable him to approach the court for the purpose of obtaining pre-arrest bail without touching its merits. This is warranted where the court is at a distance and the accused apprehends arrest; however protective bails unfortunately have become a norm in Pakistan. Later, the accused was able to obtain pre-arrest bail from the concerned court.

Even though the Supreme Court has decided that pre-arrest bail cannot be granted in every criminal case as grant of this relief is an extraordinary judicial intervention, such bails at the interim stage are obtained without determining the merits of the case. Since the offence was murder, the main accused easily obtained acquittal from the courts.

Like in the Islamabad harassment case, in the Nazim Jokhio case, there is also video evidence, recorded by the victim. It seems that had Nazim only been harassed, the accused would have been penalized. But when it comes to murder cases, there’s the option of compromise. This is where the state and its legal system lose the battle, and the rich can seek atonement for their crimes. It seems that Pakistan is still in the Middle Ages.

The writer is a Karachi-based barrister practising constitutional and administrative law.