Seeking the Spirit of laws of Diyat and Qisas
It is generally believed that if the relatives of a murdered person wanted a compromise with the murderer, by forgiving him and demanding blood-money in compensation, the life of the murderer could be spared.
But the saga of Shahzeb’s murder case has prompted the confused and anxious Pakistani society to revisit the law of Diyat and Qisas (Q&D).
A startling fact in the story is the demeanour of Shahzeb’s killer who comes across as an arrogant, careless son of a filthy rich father. Despite the initial firm resolve of the parents of the deceased to get him punished for his crime, Shahzeb’s remorseless killer seems to be getting away with it, apparently because the law on Q&D seems to allow him to be spared.
There are two questions that arise while justifying the law: Why should someone who kills as blatantly as the young Jatoi be spared by the Islamic law, even when ordinarily the punishment for the crime is to kill the murderer? And if blood-money can spare a killer’s life, why should the poor be deprived of this opportunity?
The response of most scholars seems to suggest that, although the Q&D law is correct and a true reflection of God’s verdict on the issue, Shahzeb’s case should be treated differently. The alternative suggestion being that Jatoi should be declared guilty of creating mischief on earth and as a consequence be treated by a different law according to the verse 5:33 of the Quran, which stipulates capital punishment or banishing of the guilty.
There are however two problems ensuing from this suggestion. If left to the discretion of the judges to decide what case belongs to the category of mischief on earth, legislation with far-reaching consequences becomes vague and discretionary. The other problem is that the verse points to either merciless killing like stoning to death for the criminal or abandoned him to a different region. In one case it is more than ordinary killing, which no one seems to be demanding, and in the other it is either too lenient a punishment or unworkable for the present times. The solution seems to be an attempt at punishing Shahzeb’s killer according to the verdict of the public conscience without looking at what the text actually says.
The correct understanding in my opinion is what the religious scholar Ghamidi states: Even though the Quran allows the heirs of the deceased to forgive the murderer and receive blood money instead, this clemency clause is not a binding concession. The case of the law of punishment of murder is in a sense like the law of fasting during Ramadan. (Quran; 2: 178-185). The Quran discusses exemption for those who are taken ill or are on a journey from fasting during Ramadan and they can complete the number of 30 compulsory fasts later.
Everyone agrees that it is not compulsory for an individual to ‘not fast if he is on a journey or is taken ill’ but it is just an option. Likewise is the case of concession of sparing the life of a murderer on taking blood money.
It is a discretionary concession and not compulsory for the society to implement. The discretion must be exercised by the society and in this particular case by the judges. They will decide if the concession should be made available to the relatives of the deceased or not. The decision should be based on the question whether the murder was blatant, the killer showed any signs of remorse, and if the relatives of the deceased have a real interest in the life of the deceased.
This is a new understanding of the Quranic verse 2:178-179, presented for the first time by Ghamidi. Our traditional scholars do not validate any new understanding of the Quran because they believe that all authentic interpretation of the Quran has already been done earlier and Muslims in the present day need only to understand and implement what has already been interpreted. The truth of the matter is that the Quran is meant to be a source of guidance for mankind for all times to come and the act of reflecting upon the Quran is an ongoing process. After the Prophet (PBUH) no one is infallible. The process of understanding the true meaning of the Quranic text therefore must continue for ever. The question whether a certain interpretation is valid should not be based on the mere count of heads or time of interpretation. It should be based on pure merit of the quality of argument which claims to be the true reflection of the intent of the text.
As for the poor benefiting from the option of getting their lives spared after payment of blood money as well, the onus lies on the state to take responsibility to arrange payment for those who can’t avail the opportunity of paying blood money on their own. If their case deserves clemency and the relatives of the deceased are inclined to forgive, the amount should be provided by the public exchequer. In the earlier days such payments used to be made by the entire tribe (A’qila) to whom the accused belonged. The state should play the role of A’qila now for all its citizens who cannot negotiate nor afford the payment of blood money. Our parliament should ideally develop an appropriate legislation to this effect.
Published in Dawn News, September 29, 2013