By Waseem Ahmad Shah
July 3rd, 2017
The recently published memoir of CIA contractor Raymond Davis titled “The Contractor: How I Landed in a Pakistani Prison and Ignited a Diplomatic Crisis” has once again stirred a controversy, bringing into focus the Qisas (retribution) and Diyat (blood money) provisions of Pakistan Penal Code (PPC), 1860.
The memoir reveals how a mockery of the law was made by none other than officials of a top intelligence agency of the country as well as other people at the helm of affairs. While certain facts about the trial of Raymond Davis in March 2011 were reported at that time, specially about the role of then chief of Inter-Services Intelligence (ISI) Ahmad Shuja Pasha in his release, the memoir cleared how the Qisas and Diyat law was misused.
The writer explained how the legal heirs of the two persons killed by him, Mohammad Faheem and Faizan Haider, were coerced by the intelligence agency to accept blood money for pardoning him. “To separate the family members from the radical Islamists whispering in their ears and the lawyer who endorsed a hard-line Islamist agenda, ISI operatives intervened on March 14, detaining and sequestering all 18 of them (legal heirs). For the two days preceding the March 16 trial that would decide my fate, Butt (lawyer of the legal heirs) was unable to reach to any of them by phone, and their neighbour confirmed that they had disappeared,” he claims.
The memoir further revealed: “The night before the March 16 trial, ISI agents took the family members to Kot Lakhpat Jail and encouraged them to accept the deal that was on table. If they agreed to forgive me, they would be given a large sum of money in return. If they didn’t agree, well, the consequences of that decision were made clear the following morning when they were reportedly held on gunpoint just outside the prison’s courtroom for several hours and warned not to say a word about it to the media.”
When the judge cleared the courtroom of all irrelevant persons, only General Pasha was left inside. “One of the few people allowed to stay behind was General Pasha, who’d been continually texting ambassador Munter, updating him about the court proceedings,” Raymond Davis claims.
Interestingly, Raymond Davis states that relying on the Qisas and Diyat law was not his first choice as this law was used to provide legal protection to those who had carried out so-called honour killings. “Relying on such a law to secure my freedom wouldn’t have been my first choice. As someone who values the separation of church and state, I found Sharia law repugnant. But, as Carmela (consul general) had made perfectly clear, I really didn’t have a say in the matter.”
When he was told on March 16, 2011 by the consul general Carmela Conroy that the proceedings were shifted to Shariah law, he was uneasy with it and stated: “I can’t believe they can get away with this. I’m toast, right? They’re going to drag me into this prison’s courtyard and stone me to death, aren’t they?”
“No, Ray. That’s Qisas. Sharia law also allows for Diyat, which the families of the victims have agreed to accept,” Carmela replied.
In the memoir, he has also given a brief history of the Qisas and Diyat law.
It remains a fact that ever since its inception in 1990, the Qisas and Diyat law remains in centre of different controversies because of its misuse specially in cases of honour-related murders or killings by influential people.
Commonly known as QDO (Qisas and Diyat Ordinance), through it drastic changes were made in Chapter 16 of the PPC to offences affecting human body. Sections 229 to 338 of PPC, related to bodily hurt and murder were repealed and replaced with new provisions, which the then government claimed were in accordance with the Islamic injunctions and a judgment of the Shariat Appellate Bench of the Supreme Court.
The law defines Diyat as “compensation specified in section 323 payable to the heirs of the victims.” Similarly, Qisas is defined as “punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-i-Amd in exercise of the right of the victim or a Wali.”
Initially, these provisions were introduced through the Criminal Law Amendment Ordinance VII of 1990, popularly known as Qisas and Diyat Ordinance, in Oct 1990 by the then president Ghulam Ishaq Khan during the caretaker government headed by prime minister Ghulam Mustafa Jatoi. The ordinance was re-promulgated over 20 times as the constitutional life of an ordinance is four months. Finally, in 1997 during the government of Nawaz Sharif, it became an Act of the Parliament, which covered all offenses against human body and provided for Qisas and Diyat.
The Federal Shariat Court had in several Shariat petitions declared that the existing provisions of PPC related to murder and bodily hurt were contrary to the Islamic injunctions. The then government had filed an appeal before the Shariat Appellate bench of the Supreme Court, which dismissed the same in July 1989. The Shariat appellate bench made it binding on the government to amend the relevant laws.
The five-member appellate bench unanimously decided that sections 399 to 388 of PPC 1860 are repugnant to the injunctions of Islam on different grounds. The bench ruled that these provisions did not provide for Qisas in cases of Qatl-I-Amd (deliberate murder) and Jurooh-Al-Amd (deliberately causing hurt) as was prescribed in the Holy Quran and Sunnah; it did not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in case of qatl and jurh (hurt); it did not exempt a non-pubert and an insane offender from the sentence of death in cases of murder; etc.
The bench had held that this decision should take effect from March 23, 1990, whereby the provisions referred to by the bench, to the extent they had been held to be repugnant to the injunctions of Islam, should cease to have effect.
Following the introduction of the Qisas and Diyat law the crimes affecting human body are no longer considered offences against the society or state, but are now considered offences against an individual. Thus, if these individuals so decide, offenders can walk free even after committing heinous crimes like murder. The legal heirs of a deceased have the right to make a compromise with the offender under section 309 and 310.