What price the blood

July 20, 2014

As the government fixes a considerably low new value of Diyat for the coming financial year, it is perhaps time to revisit the country’s problematic Qisas & Diyat laws

What price the blood

On July 9, 2014 the federal ministry of finance issued a notification announcing Rs19,23,843 as the new value of Diyat (blood money) for year 2014-15 under sub-section (2) of Section 323 of Pakistan Penal Code (PPC).

Interestingly, the value of Diyat in Pakistan has decreased from Rs 31,55,542 in 2011 to less than two million rupees in a span of three years.

The officials at the ministry of finance are convinced that the value of Diyat as defined in the law will not be less than 30,630 grams of silver and since the price of silver has decreased drastically in the last three years, the value of Diyat had to reduce subsequently.

"The formula was decided in 1994 after consultation with religious scholars, law experts and officials of the government. We get average price of silver from three main local markets -- Karachi, Lahore and Multan -- during the last two weeks of June every year and announce the value of Diyat in the first week of June," an official from the ministry of finance involved in declaring the value of Diyat tells TNS.

He says the ministry has not received any objections over the value of Diyat from the judiciary or the families of victims. "I know it is hard to understand how the value of blood money has decreased by more than Rs 1.2 million in Pakistan since 2011 but we are bound to follow the law," he says.

Declaration of value of blood money is part of Qisas and Diyat Ordinance 1990 of Pakistan, which was first introduced by General Ziaul Haq as part of the Islamisation process in the country. But Zia did not implement this law when he imposed his Nizam-e-Islam in February 1979 to ensure that Zulfikar Ali Bhutto did not benefit from it, according to legal academic Tahir Wasti’s book, Application of Islamic Criminal Law in Pakistan: Sharia in Practice published in 2009.

The law was promulgated as an ordinance in October 1990 by the then president Ghulam Ishaq Khan during the caretaker government of Ghulam Mustafa Jatoi upon the insistence of the Shariat Appellate Bench of the Supreme Court.

The value of blood money has decreased by more than Rs 1.2 million in Pakistan since 2011. 

The ordinance of 1990 was re-promulgated over 20 times before it became an Act of the Parliament in April 1997 during the second government of Nawaz Sharif. This law re-conceptualised the offences related to physical injury and murder in Islamic terms as understood in Pakistan, and replaced about 40 sections (299 to 338) of the Pakistan Penal Code 1860 relating to offences affecting human body which were derived from the British Common Law.

Similarly, some provisions of the Criminal Procedure Code 1898 were amended to allow the legal heirs of victim to compromise or forgive a murderer even at the last minute before execution. These provisions make intentional and deliberate murder (qatl-e-amd) punishable by Qisas (retribution) or forgiveness while un-intensional/accidental murder (qatl-e-khata) punishable with Diyat (compensation).

According to the law, in awarding Diyat, courts are to take into account the financial position of the convict and the victim’s heirs, but the amount fixed must not be less than the value of 30,630 grams of silver -- a value that the federal government must declare at the start of each fiscal year.

Religious scholars including Dr Javed Ahmad Ghamidi say that the law of Diyat was enforced in pre-Islam Arab. They argue that since it was mentioned in Quran it becomes an eternal law; however its quantity, nature and other related affairs have been dependent upon the customs and traditions of a society.

During the time of the Prophet (PBUH), the Arab used to pay 100 camels as Diyat and he did not change this custom. They say that in present times, it is not possible to pay Diyat in the form of camels nor is it a very wise step to fix the amount of Diyat on this basis and every society should decide it according to its customs.

"We need to rethink the mechanism of declaring the value of Diyat. In tribal cultures, it used to be paid by the whole tribe and not the individuals. Now, the payment of Diyat has become an issue of one individual," says Dr Khalid Masud, leading religious scholar and former head of the Council of Islamic Ideology while talking to TNS. "We need to initiate a debate on the implementation of these laws. At present, influential have been using these laws in their favour. We need a political will to start deliberation on such issues which is not there yet."

The human rights groups have long been raising their voices against the law terming it "privatisation of justice", which absolves the state of protecting its citizens. They argue that, under this law, the offences against human body are directed not against the state but against an individual. Besides, the prosecution case can collapse if the legal heirs of the deceased waive the right of Qisas or compound the murder under Qisas and Diyat Ordinance. They say the law is used negatively especially in cases of honour killing, where legal heirs -- parents or siblings -- pardon the murderer (who in an overwhelming majority of cases is one of them).

There is also a debate about who would define whether it was intentional and deliberate or accidental murder. Under the law, the confession of the accused or testimony of four reliable, trustworthy, pious and unquestionable witnesses is required for conviction of intentional and deliberate murder which is almost impossible to prove.

Aslam Khaki, senior advocate and Jurisconsultant of Federal Shariat Court, says that it is a pre-Islamic law that was endorsed by Islam. "The rights groups on one hand do advocacy for abolition of capital punishment while on the other are against this law which is practical manifestation of abolition of capital punishment," he says that value of Diyat should be measured according to present times. "It is customary and is only applied to un-intentional murders."

After the implementation of Qisas and Diyat laws, the cancellation of murder cases by police increased from 4 per cent in 1981 to 11 per cent in 2000. Similarly, conviction rate at trial stage fell from 29 per cent in 1981 to 12 per cent in 2000. 

The Diyat law first sparked controversy when in 2011 Raymond Davis allegedly a CIA contractor sought diplomatic immunity after shooting to death two Pakistani citizens. The American government resorted to Pakistan’s Qisas and Diyat laws and paid blood money to the family of the victims. In an article "Raymond Davis vs Qisas & Diyat Laws" that appeared a little before the money was actually paid in The News, Moeen Cheema argued that "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".

Later, in another incident, the father of Shahzeb Khan, 20-year-old who was killed in Karachi in December 2012 and a huge campaign was launched first on social media and then on mainstream media to arrest his murderer, submitted a compromise statement before the court in September 2013 saying that he and his other family members have pardoned the appellant outside the honourable court in the name of Allah. "I say that I and the other legal heirs of the deceased Muhammad Shahzeb Khan have waived the right of Qisas and Diyat," the statement reads, adding that he has no objection to the high court acquitting the convicts in the larger interest of justice.

A special court had already handed down the death sentence and life imprisonment to the culprits for his murder. The case was being heard in Sindh High Court at the time of pardon under the Qisas and Diyat laws.

"The court under the law can not even question the legal heirs how could they enter into a compromise when a lot of resources of state-police and courts had already been used on the case," a Lahore based senior police official tells TNS.

Tahir Wasti’s book, Application of Islamic Criminal Law in Pakistan… discusses in detail the implications of these laws on the murder cases in Pakistan. His work reveals that murder rate increased by an average of 6.5 per 100,000 per annum after implementation of Qisas and Diyat laws while cancellation of murder cases by police increased from four per cent in 1981 to 11 per cent in 2000. Similarly, conviction rate at trial stage fell from 29 per cent in 1981 to 12 per cent in 2000. The total conviction rate in murder cases in the Multan Bench of the Lahore High Court fell from 51 per cent in the 1980s to 33 per cent in 2000.

At the same time, the acquittal rate in the Supreme Court increased from 28 per cent to 67 per cent while the conviction rate dropped from 79 per cent in 1984 to 35 per cent in 2000 mainly because of the law that allows the state to surrender its responsibility of trying the murderer.

What price the blood