ISLAMABAD - The Supreme Court on Thursday decided that a five-member larger bench will hear the case of rising trend of misuse of compromise laws as well as Islamic injunctions by pardoning convicts of heinous crimes ‘Fisabilillah’ (in the name of God).
A three-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry was hearing the appeals of two convicts – Muhammad Azam and Sikander Hayat. In 2004, they had killed one Muhammad Arif in tehsil Phalia of district Mandi Bahauddin.
A trial court had awarded death sentence to Azam in 2006 and life imprisonment to Hayat in 2011. The Lahore High Court last year had converted the death sentence of Azam into life term and retained the sentence of Hayat. Both the convicts last month approached the apex court against the LHC decision.
During the proceeding, the chief justice said the heinous crimes were increasing, saying; “Islam has given golden principles to curb Fasad (discord), but these are not being used judiciously.” He said for wealthy, there is no problem if they commit murder as they secure pardon through payment of Qisas (blood money). Justice Jawwad S Khawaja said the state could enforce Tazir-i-Pakistan (Pakistan Penal Code) even if the heirs of deceased pardon the murderers. He said there were limits for the heirs in Qisas.
Shahid Hamid, appointed amicus curea (friend of the court) in the case, submitting his propositions, questioned whether the Supreme Court should suggest to parliament that the minimum punishment for murder under Sec 311 PPC should be 15 years.
Quoting verses of Holy Quran, Shahid Hamid questioned whether the Injunctions of the Holy Quran, as set out in Surah al-Baqarah, verses 178-179, Surah al-Isra verse 33, Surah al-Nisa verses 92, 93 and 106, Surah al-Ma’idah verse 45, Surah al-Qasas verse 15, 16, 17 and 18, and Surah Sad verses 22,23,24 and 25, require that before accepting an application for waiving the right of Qisas – under Section 309 PPC or compounding under Section 310 PPC or compounding under section 345(2) CrP.C. – the court must be satisfied that the offender has genuinely repented and seeks forgiveness of Allah for the Qatl-i-amd (murder by intention) committed by him.
He asked whether an admission of Qatl-i-amd, as determined by the trial or appellate court together with a plea expressing repentance and remorse and seeking the forgiveness of Allah, should be an integral part of any application for waiver or compounding, as the case may be. Whether when application for waiver or compounding is made, the court should cause the offender to be produced before it and record his admission that he did commit Qatl-i-amd, that he is penitent and remorseful, and that he seeks the forgiveness of Allah.
He asked whether, when application for waiver or compounding is made before the trial has commenced or concluded, the court may convict an offender on the basis of his admission that he has committed Qatl-i-amd, which admission must accompany the application for waiver or compounding as the case may be, and the court may also record such other evidence as it may deem fit to adjudge whether the principle of fasad-fil-arz (mischief on earth) is attracted.
Whether the injunction of the Holy Quran, as set out in Surah al-Ma’idah verses 32, means that any Qatl-i-amd committed by an offender is Qatl-i-amd of the people of Pakistan. Whether the court and the state/government [as Wali (heir and guardian) of the people of Pakistan] have, keeping in view Surah al-Ma’idah verses 32 and 33, Surah al-An’am verse Ayat 151 and also Article 9 of the Constitution, a religious, constitutional and legal duty to ensure punishment of every Qatl-i-amd under either Sec 302(b) PPC or Sec 302(c) PPC or Sec 311 PPC notwithstanding any waiver or compounding by the Wali of the victim.
Whether the concept/explanation of fasad-fil-arz as set out in S 311 PPC includes within its ambit cases in which the Qatl-i-amd is accompanied by commission of other offences such as dacoity, robbery, gang rape, rape, child molestation, terrorist acts, etc, cases in which the Qatl-i-amd is committed in a manner that terrorises the community e.g. through use of automatic weapons, and cases in which an offender shows no penitence or remorse and rather ‘glories’ in the Qatl-i-amd committed by him.
Whether the satisfaction of the court that a Wali is waiving or compounding his right of Qisas voluntarily and without duress requires the court to inquire: whether the Wali or a relative has been detained or kidnapped by the relatives of the offender; Whether there has been any other harassment of the Wali or a relative by the relatives of the offender; Whether any political or other outside pressures have been brought to bear on the Wali; Whether the waiver or compounding will promote the well-being of the Wali in financial and societal terms; Whether the Wali is convinced that the offender has repented and genuinely seeks the forgiveness of Allah; whether the Wali has had the benefit of proper help and guidance from legal and other advisors, and any other relevant considerations in the peculiar facts and circumstances of each case.