Diyat in Pakistan vs Islam
Like so many other Pakistanis, the atrocious lack of justice in cases like that of Shahzeb Khan, deeply upsets me. In fact, it fills me with despair.
There is no doubt that Pakistani culture, the influence of feudals, corruption and so on contribute to the ability of odious murderers like Shahrukh Jatoi to escape justice.
However, honesty demands that we also acknowledge the evident flaws in our so-called ‘Islamic laws’ of diyat and qisas.
Islam, is indeed perfect. Yet, our slavish devotion to the views of yesteryear scholars, compounds the problems of injustice in our legal system.
Moreover, although the Qur’an is the most authentic source of Islam – being mass transmitted or mutawatir – it is often overuled by narrations, which are mostly oral reports from a handful of people, compiled at the personal initiative of people centuries after the Prophet (upon him be peace).
Hadith, Seerah, Athaar and Akhbaar (reports attributed to Prophet Muhammad PBUH, biographical literature, narratives ascribed to early Muslims) and all scholarly opinions must be understood in light of the words of the Qur’an.
The infallible Qur’an must never be subject to these fallible sources, which whilst important are not divinely revealed nor given to us directly by God’s Messenger (PBUH).
The Qur’an is Al-Furqan – the very distinguisher of true and false, right and wrong:
Blessed is He Who hath revealed unto His slave the Criterion (of right and wrong), that he may be a warner to the peoples..
Al Qur’an 25:1
We should never put the views of one scholar – or a thousand of them – above the Qur’an.
Taking Scholars as Lords
We need to be wary of idolising our great scholars of the past, to the point where we take them as lords besides Allah.
The Qur’an condemns the People of the Book for this very attitude (9:31).
Abdullah Al-Andulusi righly reminds us that similar appeals to emotion, about the ‘greatness of our scholars’, and the same fallacious argument from authority, led Christians to accept all manner of deviations from truth:
…I remember reading that some of the Church Fathers complained that though they believed Jesus was God and God was a trinity, that majority of the Christian people rejected Trinity and Jesus being divine ‘only because’ they didn’t understand that was the ‘correct interpretation of the Gospels that only a learned man would truly know’ and they resisted the claims of the majority jumhur of learned Christian scholars about this.
…Eventually, of course, the scholars (using the influence of the Roman state), ‘won the argument’.
Also, Christian scholars simply invented Sunday being a ‘day of rest’ and ‘praise’, it has no real evidence in the Bible.
But this too became established amongst the Christians.
If you were a layman Christian back then, what would you have done in the face of most of the scholars of [the] time falling to these doctrines? How would an unqualified layman like you, know what they were saying was wrong and hold them to account, if they were the majority of scholars?
…If you make a claim, back it up with solid reasoning from evidence from Quran & Sunnah.
Facebook Post, 20 June 2022
Islam vs Pakistani diyat laws
Returning to the laws of diyat and qisas (Bloodwit and retributive justice) as they exist in Pakistan, these are fundamentally repugnant to the Qur’an.
More than that, they make a mockery of the whole basis of Islamic justice.
We rightfully defend the stern penal law of Islam, when criticised by liberals. Why? Because we assert that the physical punishment meted to thieves and adulturers, for instance, deters people from committing such crimes.
Yet, conversely, we justify the idea that wealthy people should be able to pay off poor victims families and escape justice, in the name of diyat.
Surely, this has the opposite effect? The powerful can murder the weak with impunity, never worrying, as long as they can pay ‘blood money’.
How can this idea be reconciled with the Holy Qur’an’s condemnation of the exploitation of the poor, and tyranny?
How can taking one life, be like the killing of all mankind (Qur’an 5:32), if blood is so cheap?
The famous Hadith attributed to the Prophet (PBUH) should also be recalled, which states that previous communities were destroyed as they punished the poor, but allowed the powerful to escape justice (Sahih al-Bukhari 6787).
How then can this law be Islamic?
Some apologists try to deflect criticism from the ancient jurisprudence that allows such outrageous injustice.
They place the blame on out of court ‘compromises’ which often precede a final judgment in such cases. However this is a moot point.
Even if such ‘raazi naamas’ are outlawed, the rich can still pay their way to escape justice thanks to our qisas and diyat laws.
Diyat in the Qur’an
So what does the Qur’an actually state regarding bloodwit? (diyat).
First and foremost, diyat is to be paid in cases of manslaughter or accidental killing (Surah 4: 92).
The purpose is to compensate the grieving family, and show contrition for the unintended crime.
The payment is not in lieu of punishment, but rather a fine or penalty for an accidental crime.
As for intentional murder, the Qur’an gives the right to punish or forego capital punishment, not to the ‘ahl‘ or family but the ‘wali‘ or protector of the deceased:
…if anyone has been slain wrongfully, We have empowered the defender of his rights [to exact a just retribution]…
Qur’an 17:33
As Allama Muhammad Asad clarifies (with support from Imam Zamakhshari) this refers to the legal organs of the State, who are tasked with defending and protecting citizens lives and property:
In the present context, the term wali (“protector” or “defender of [one’s] rights”) is usually taken to mean the heir or next of kin of the victim.
Zamakhshari, however, observes that it may also apply to the government (as-sultan): an interpretation which is obviously based on the concept of the government as the “protector” or “defender of the rights” of all its citizens”
The Message of the Qur’an
The misunderstood verse
One verse of Surah Al Baqarah has been wrongly understood by many traditional scholars, in light of later, less reliable sources:
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. And if something [of his guilt] is remitted to a guilty person by his brother, this [remission] shall be adhered to with fairness, and restitution to his fellow-man shall be made in a goodly manner. This is an alleviation from your Sustainer, and an act of His grace. And for him who, none the less, wilfully transgresses the bounds of what is right, there is grievous suffering in store.
Qur’an 2:178
1. The first misunderstanding is the addressee of this command. The verse addresses Muslims in their collective capacity to seek just retribution in cases of murder.
This is apparent by the words ‘kutaba alaykum‘ in the plural form, making it clear qisaas is not just a matter for the victim’s family.
Javed Ghamidi observes:
Since this directive is related to the whole society, the addressee of the expression كُتِبَ عَلَيْكُمُ (decreed for you) is the society. Consequently, it is incumbent on the state ...” (Tafsir Al Bayan)
Tafsir Al Bayan
2. Secondly, the right to pardon murder is not granted to heirs of the murder victim.
The remitting of guilt by the ‘brother’ in this verse, is absurdly assumed to refer the heirs of the deceased.
In such a case the words ‘ahlihi’ (his people or family) would be used as in 4:92.
Since many victims will not have a ‘brother’ and others will have closer relatives such as parents or children as heirs, the word brother here would be most inappropriate for ‘heir’.
Allama Muhammad Asad clarifies, the true signifance of the word ‘brother’ in this verse:
There is no linguistic justification whatever for attributing – as some of the commentators have done – the pronoun “his” to the victim and, thus, for assuming that the expression “brother” stands for the victim’s “family” or “blood relations”.
The pronoun “his” refers, unquestionably, to the guilty person; and since there is no reason for assuming that by “his brother” a real brother is meant, we cannot escape the conclusion that it denotes here “his brother in faith” of “his fellow-man” – in either of which terms the whole community is included.
Thus, the expression “if something is remitted to a guilty person by his brother” (i.e., by the community or its legal organs)…
The Message of The Qur’an
3. The verse is taken as giving a blanket right to relatives of the deceased to take blood-money in lieu of murder.
However this is plainly wrong.
The verse actually empowers the court or state to remit capital punishment, and ask for blood money to be paid to family, should the circumstances of the case justify this.
It is the judge, not the family who can demand payment to heirs, or forgo capital punishment. The judge can only give this concession where capital punishment would be unjust.
Dr Khalid Zaheer notes the option to remit capital punishment and order payment of diyah is a discretionary concession to the judge, just as leaving fasting is for the traveller or sick person is.
The concession is dependent on the facts of the case:
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.’
Seeking the Spirit of laws of Diyat and Qisas, Dr Khalid Zaheer, personal website.
Allama Muhammad Asad makes this even clearer:..
..Thus, the expression “if something is remitted to a guilty person by his brother” (i.e., by the community or its legal organs) may refer either to the establishment of mitigating circumstances in a case of murder, or to the finding that the case under trial falls within the categories of culpable homicide or manslaughter – in which cases no capital punishment is to be exacted and restitution is to be made by the payment of an indemnity called diyyah (see 4:92 ) to the relatives of the victim..
The Message of the Qur’an
In other words, if the judge determines that the case falls under ‘accidental killing’ or otherwise there are mitigating circumstances such as self-defence, mental illness and so on, he or she can reduce the punishment and order bloodwit to paid to the family, as stated.
Even in this case, the words ‘remit something of’ and ‘allievation’ (tahfif) indicate capital punishment may be commuted to a lesser punishment, not that the killer can pay the family diyat, and walk away scot free.
Summary
The Quranic concept of Diyah and Qisas differs from that advocated by our traditional jurisprudence, and which exists in Pakistan.
- In every case of killing, the judge who is the ‘guardian’ or wali of the victims right, will try to establish the circumstances of the killing. There will be no opportunity for the murderer to make an out-of-court settlement with the heirs of the deceased.
- If the murder was committed on purpose, and there are no mitigating circumstances, the murderer will be sentenced to death. The family of the victim has no option to take money and ‘forgive’ in such a case.
- If the killing is determined to be accidental, the judge orders diyat, to be paid to the family of the victim.
- If the judge determines there are some mitigating circumstances, he or she can commute the death sentence to a lesser punishment (imprisonment for example) and order diyat blood money is paid. The decision in this case also lies with the judge, and the murderer cannot try to ‘buy’ a pardon from the family, to get a lesser punishment.
Senior lawyer, Abdul Moiz Jafferi eloquently eloquently recapitulates as follows:
“…even accidental murders can only be forgiven once that pardon is confirmed by the state through its judicial system. A crime against a person carries with it the necessary duality of it also being a crime against the social fabric. Where any pardon is being extended by the victim’s families, it is up to the court to confirm it in light of the effect it would have upon society as a whole.Causing disorder or damage to the fabric of the state, or the peace that exists within it, has no nexus with the victim’s family and cannot hence be forgiven by them. Hence, even in Pakistan where accidental murders can be pardoned, the family pardon removes only the sanction of death for the murder; it does not remove the independent sanction of causing damage to the fabric of the state.The separate crime of disrupting peace upon the land is included in our code as fasad fil ard and continues to apply. You don’t just step away from a murder..”
Dawn News article