Blood pardons.

Byline: Asad Rahim Khan

SOME time back, a man called Gul Hasan Khan was convicted of murder, and sentenced to die. He pleaded for his life before the Peshawar High Court - the victim's heirs had pardoned him, he said, and the Penal Code, which made no room for such things, was un-Islamic. It was 1980, and Gen Zia's Islamisation was in full swing. Peshawar's judges, who were not Islamic jurists, agreed with Gul Hasan. They claimed that religious scholars were unanimous: the victim's kin could pardon the killer. This was incorrect: the bench just ignored any scholar with opposing views, including the respected Muhammad Asad, who argued that forgiveness flowed from 'the community or its legal organs', ie the state, and not the victims' heirs.

But the Supreme Court endorsed the verdict in 'Federation vs Gul Hasan', and struck down those parts of the Penal Code that dealt with murder. According to the bench chaired by Justice Afzal Zullah, the code did not provide for qisas (retribution) in cases of qatal-i-amd (deliberate murder). It also did not provide for diyat (blood money) in cases of mistaken or quasi-deliberate murder.

There is much to question about the Gul Hasan decision: it ignored the same scholars the Peshawar High Court ignored; the judges couldn't even agree on the correct interpretation of the main sources that dealt with qisas and diyat; and it overlooked a massive body of Islamic jurisprudence.

It nonetheless ordered the government to turn the Pakistan Penal Code upside down, and pass a new law. By then it was already 1990, and the government of the day was an interim one. President Ghulam Ishaq Khan had sacked Benazir, but she'd challenged her dismissal in the Supreme Court. Whether or not he was currying favour with the same judges, GIK thought it the best moment to bow to the court's wishes, and pass the Criminal Law (Second Amendment) Ordinance of 1990.

There must be a clear connection between crime and punishment.

It was a win-win: the president got to keep Benazir out, and the judges got to see their new law pushed in. It was the most radical change to the country's criminal justice system ever, and it happened without a single debate in parliament.

But the new law was no better than the judgement. The Supreme Court's unanimous order, flawed as it was, had still made a crucial distinction between murder and deliberate murder: 'compromise' was attracted only when the act of murder was unintentional. The ordinance made no...