A columnist with intellectual pretentions commented the other day that the soul of Shahzeb Khan was not at rest. The twilight of the mid-summer monsoon evening had given way to nightfall and the self-anointed intellectual, clutching a glass filled with the choicest brew of the Scottish highlands, rambled on incoherently about the 20-year-old youth’s murder in Karachi by Shahrukh Jatoi, the son of a powerful feudal lord, and his three accomplices last December.
He mumbled something about the popular outrage as “never before in Pakistan” and then rounded off by recalling how Shahrukh had fled the country only to be brought back, tried and sentenced to death.
There was a sense of relief that justice had finally triumphed and the law had prevailed. But then came the shock – the parents and two sisters of the slain youth pardoned the culprits ‘in the name of Allah’ under the provisions of the qisas and diyat laws that were promulgated in 1980 by General Ziaul Haq. The military dictator, who sought to legitimise his illegal rule under the pretext of transforming Pakistan into a fortress of Islam, ensured that the Qisas and Diyat Ordinance would only come into force after Zulfikar Ali Bhutto had been executed.
The pardon granted to Shahrukh Jatoi may have been in accordance with the letter of the law but not its spirit. On September 13, during a hearing of a 2004 murder case in which a compromise had also been reached, Chief Justice Iftikhar Muhammad Chaudhry observed that pardoning a murderer “in the name of God” was a travesty and amounted to a circumvention of the law. He elaborated that the injunctions of the sacred Quran were often deliberately misinterpreted in order to secure pardon for convicted murderers from rich and powerful families.
During the hearing, the outcome of an exhaustive study was presented before the three-member bench of the Supreme Court. It showed that in the 28 years between 1978 and 2006 every single homicide case involving compromise that had been heard by the Multan bench of the Lahore High Court, the laws had been misapplied in ‘the cause of religion’. The heart of the problem was that murder was looked upon as a crime against an individual rather than the state. This was what needed to be rectified.
The chief justice, accordingly, asked the attorney general, Munir A Malik, the four provincial prosecutor generals and advocate Shahid Hamid – who was appointed amicus curiae by the court – for their opinions within ten days. The deadline expires tomorrow. All that needs be said for now is that the laws of Islam are derived exclusively from the Quran and it is the commandments of the scared scripture that determine the authenticity of the reported traditions (hadith and sunnah) which, along with the consensus among the learned divines, constitute the secondary source of Islamic jurisprudence.
Whatever the findings of the legal experts, the central element has to be built around an understanding of what the Quran has to say about qisas, and, from it, the law pertaining to diyat. Only then can an accurate determination be made about the extent to which the injunctions of the scripture have been misused.
The starting point for such an examination must necessarily be the first part of the Quranic verse on the subject. This pertains to qisas and begins with the exhortation: “O you who have attained to faith! Just retribution is ordained for you in cases of killing: the free for the free, and the slave for the slave, and the woman for the woman...” (2: 178).
All the classical commentators agree that the term ‘qisas’ which occurs at the beginning of the passage is synonymous with ‘musawah’ which means ‘making a thing equal (to another thing)’, and, in the context in which it has been used, the implication is that the punishment must be proportionate to the crime. The correct rendition of ‘qisas’ is, therefore, ‘just retribution’ and not ‘retaliation’ which features in some of the translations of the Quran.
This becomes clear from the text which pertains to “cases of killing” and is, as such, applicable to all categories of homicide including premeditated murder, killing under extreme provocation, culpable homicide, accidental manslaughter, etc. The implication of ‘retaliation’ is the taking of ‘a life for a life’ and is, therefore, not in accord with the norms of equity as envisaged in the principle of qisas.
Terrorist outfits such as Al-Qaeda and the Tehreek-e-Taliban Pakistan interpret the formulation “the free for the free, and the slave for the slave, and the woman for the woman” in the literal, restrictive sense in order to justify the indiscriminate slaughter of innocent men, women and children in ‘retaliation’ for drone strikes or military operations against them. This hideous distortion becomes obvious because the injunction is qualified by the introductory exhortation for “just retribution.” All that the passage implies is that whatever the social status or gender of the guilty person, he or she alone is to be punished for the crime.
The second part of the same verse deals with diyah (plural diyat) – the indemnity that is to be paid to the relatives of the victim by the guilty party. This is applicable to instances of murder where mitigating circumstances are established in which event the death penalty is waived. It also applies to accidental manslaughter which does not entail capital punishment. The wording of the Quran is: “And if something (of his guilt) is remitted to a guilty person by his brother, this (remission) shall be adhered to in fairness, and restitution to his fellow-man shall be made in a goodly manner.”
It is the misinterpretation of this injunction that has resulted in the distortion of the law in Pakistan. As a consequence, murderers have been pardoned ‘in the name of Allah’, as in the Shahrukh Jatoi case, by the family members of the victim. The confusion arises because the word ‘his’ in the phrase “...remitted to a guilty person by his brother” is wrongly attributed by several commentators to the victim, and, consequently the expression ‘his brother’ is taken to mean the victim’s family or blood relations. But a closer reading of the Quranic formulation leaves no doubt that ‘his’ refers to the guilty person and the word ‘brother’ implies ‘his brother in faith’ ie, the community as a whole or the state.
Thus in murder cases, it is the state, and not the victim’s immediate relatives, that can waive the death penalty. This is corroborated by some of the world’s finest Quran commentators, notably the Austro-Hungarian born Muhammad Asad (1900-1992), who also has the distinction of being given the first Pakistani passport after the emergence of the country.
Asad commented with the refreshing perspicacity of an enthused convert that “the expression ‘if something is remitted to a guilty person by his brother’ (ie, by the community or its legal organs) may refer to the establishment of mitigating circumstances in a case of murder...in which case no capital punishment is exacted and restitution is to be made by payment of an indemnity called diyah to the relatives of the victim.”
Reason, and not emotion, is the central emphasis of the Quran. It recognises the rights and obligations of individuals in the Islamic community and this is the purpose of its legal injunctions. The Quran thus explains the rationale for its commandments on qisas: “For in (the law of) just retribution, O you who are endowed with insight, there is life for you, so that you may remain conscious of God!” (2: 179). The purport of Islamic law in respect of murder is, therefore, the protection of the entire community.
When the murdered victim’s immediate family is given the exclusive right to pardon the crime in return for compensation then justice is put on sale. Consequently, there will be many more Shahrukh Jatois on the prowl and perhaps this is what that emotional columnist meant when he said the other night that the soul of Shahzeb Khan is not at rest.
