Legal and Theoretical Foundation of the Qisas and Diyat Law in Pakistan

CHAPTER TWO LEGAL AND THEORETICAL FOUNDATION OF THE QISAS AND DIYAT LAW IN PAKISTAN Introduction Intriguingly, the foundation of the new law of murder and culpable homicide, allegedly based on the Sharia principles of qisas and diyat, was not laid in the Legislative Assembly of Pakistan. Instead, from 1980 to 1989 the law was pondered over, discussed, dissented, weighed and finally approved by judges of the Shariat courts, on whose insistence it was ordained by the State in 1990. It was only enacted by the Parlia- ment in 1997.1 The Islamic law of murder and homicide, i.e., the law of qisas and diyat, was initially discussed in the Shariat Bench of the Peshawar High Court in the case of Gul Hassan Khan v. the Govern- ment of Pakistan.2 This was the first case wherein the court held that the penalties prescribed in chapter XVI of the Pakistan Penal Code (henceforth ‘PPC’) with respect to offences against the human body (in particular, under section 302 of the code) are un-Islamic inasmuch as such offences were not made excusable by pardon or on the payment of ‘diyat’; a non-pubert can be subjected to ‘qisas’.3 The Islamic and secular versions of the two laws of murder and homicide were reviewed by the Federal Shariat Court (henceforth FSC) of Pakistan in the case of Mohammad Riaz etc. v. The Federal Govern- ment of Pakistan.4 In a majority judgment, the Full Bench reiterated the decision rendered in Gul Hassan’s case and further explicated the reasons as to why the law contained in the PPC pertaining to homicide, murder and bodily injuries was against the injunctions of Islam. Finally, the Shariat Appellate Bench (henceforth SAB) of the Supreme Court of Pakistan dealt with the State’s objections to the Islamic law of qisas and diyat as it had been spelt out by the lower courts, i.e., the 1 See Martin Lau, op. cit., pp. 43–58, especially p. 50. 2 PLD 1980 Peshawar 1. 3 Ibid. 4 PLD 1980 FSC 1. 58 chapter two Shariat Bench of the Peshawar High Court and the FSC. The SAB also dealt with the State’s reservations—as to the applicability of the law in modern times—that were expressed in the appeals filed by the Federal Government against the judgments of the Shariat Courts5 in The Fed- eration of Pakistan v. Gul Hassan Khan.6 The Court found the State’s objections to be devoid of any basis and concluded that the injunctions of Islamic law were up-to-date, beneficial for society, capable of fulfilling present-day demands and in line with the mandates of the Constitution. This chapter examines the opinions of several judges of the higher judiciary of Pakistan on the Islamic law of qisas and diyat as expressed in the abovementioned three judgments. The central argument of this chapter is that despite a general consensus among the judges of the higher judiciary—that the law pertaing to culpable homicide and murder provided in the PPC is un-Islamic—they could not agree as to what the Islamic law of culpable homicide and murder actually was. Proceed- ing with this critique, this chapter will attempt to identify the sources of their opinions within the framework of Islamic law as interpreted by various Islamic jurists and commentators of the Quran. The study brings into focus the divergent approaches and conflicting opinions of the judges in the three different courts in their understanding of the Islamic law of qisas and diyat, through highlighting the varying opinions and perceptions in their judgments. It is argued that the judges, in their appraisal and declaration of the Islamic law of qisas and diyat, did not exclusively follow the injunctions of Islam as laid down in the Quran and Sunnah, since they were bound under the very constitution by which they were created. It is further argued that inasmuch as they did follow those injunctions, they predominantly followed the selective interpretations of the Quran and Sunnah as rendered by certain traditional scholars of the four Sunni schools of thought. In doing so, they did not give proper consideration to any interpretations of the Quran and Sunnah which may have been against their own sets of conventional beliefs or their own limited knowledge pertaining to Islamic criminal law. 5 Shariat Bench of the Peshawar High Court and the Federal Shariat Court of Paki- stan; for details see PLD 1980 Peshawar 1. 6 PLD 1989 SC 633..

Load more