SC points finger at 'pardon' in Shahzaib murder case
14 September, 2013
ISLAMABAD: Taking notice of the controversy over the pardon of the murderers of Shahzaib Khan by his family in the name of Allah, the Supreme Court on Friday sought opinion of attorney general of Pakistan as well as the advocates general of all the provinces.
A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry was hearing a case of compromise between the two parties in the case of a murder that took place in Phalia District in 2004. While noting that convicts are pardoned in the name of God the court said that it should be determined whether a pardon conforms to the law and is in the interest of society. It also said that people were released after such pardons and it was the responsibility of the courts to look into such cases, particularly those involving violence. Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry said that Shahzeb's family had pardoned the convicts under diyat and qisas law, and prima facie the case is over but actually it is still alive.
The chief justice remarked, "Extending pardon in the name of Almighty Allah in murder cases has become a continuous custom which runs contrary to the teachings of Quran." He remarked that pardoning in the name of Almighty Allah for a murder is "Fasad Fil Arz" and it is the job of the court to prevent this. Justice Iftikhar noted that the court had taken suo motu notice of a murder case in Faisalabad. The rival party had kidnapped a child, but the victim's family reconciled under compulsion. He said that wrong deeds are being committed in the name of Islam, and Quranic injunctions are being misinterpreted.
"Allah's chastisement can come down upon it," Justice Jawwad S Khawaja remarked, adding that "the sentence cannot stand revoked on the reconciliation struck in defiance of Quranic teachings. The mode and scope of the reconciliation should be determined. Pardoning in the name of Almighty should not be made a custom." The court stressed upon correct implementation of Quranic teachings and injunctions in this connection.
"Pardoning in the name of Allah is a good thing, but this is being misused," said Justice Jawwad S Khawaja. Whereas, the chief justice asked why should the court accept such compromises in a mechanical manner. The court said that in the murder cases, the trial and high courts are duty-bound to examine the genuineness of the compromise otherwise it would allow the parties to compound the offence without adhering to the Islamic injunctions, particularly Section 311 of Pakistan Penal Code.
The court noted that the provision should not be exercised without seriously applying and adopting true interpretation of Islamic injunctions. Referring to the Phalia case, it said that the facts of the case are that Phalia district and sessions judge found Mohammad Azam and Jehangir guilty of Mohammad Arif's murder. The Lahore High Court, where the appeal was filed against the trial court's decision, reduced the death sentence into life imprisonment. During the pendency of the case Mohammad Azam entered into compromise with the legal heirs of Mohammad Arif, stated to be his two widows along with their children, by giving two-kanal land to the family of the victim.
However, three family members, Tanvir Fatima, Ghulam Dastagir and Ghulam Arfeen, did not forgive the culprits. The case was filed in the Supreme Court, which on September 6 this year admitted it for hearing and it was heard again today (Friday). During the proceeding the chief justice inquired from the counsel of the respondent why should such compromises be rejected. Senior Advocate Shahid Hamid, who was appointed amicus curiae (friend of the court), said that the way compromise law is used was against the concept of diyat. "It has led to degradation and abuse of law," he said, adding that the moratorium on death penalty during the last five years has affected our society negatively. Justice Jawwad noted that five persons have been executed through lethal injections in one year in the US state of Oklahoma.