The debate over pardoning
convicted murderers has gained recent traction after the case of compromise
emerged in high profile case of murder of Mr. Shahzeb Khan a twenty years old
chap. In Karachi, on 24th December a young chap brutally murdered by Mr.
Shahrukh Jatoi and his close friends belong to hifi, elite and influential
families of Pakistan. His fault was to stop the convicts from humiliating his
young sister. The Culprits could not be arrested & brought to ultimate justice
by the government authorities due to their influential background un till a
massive campaign had been launched at the social as well as the electronic media
of the Country against such brutal murder. Moreover Suo Moto action was taken by
Chief Justice of Pakistan in this case. This made the government authorities
mobilize, they came in action and not only arrested the co accused namely Nawab
Siraj Talpur, Nawab Sajjad Talpur and their cook Ghulam Murtaza Lashari but also
extradited the main accused Mr. Shahrukh Jatoi from Dubai who had left the
Country after committing this murder. In the result of all this and more then
that the tremendous pressure of the civil society then Mr. Nawab Sajjad Talpur &
Ghulam Murtaza Lashari were sentenced with life imprisonment while the main
accused person namely Shahrukh Jatoi & Nawab Siraj Talpur were sentenced with
death in the brutal murder of 20-year-old Shahzeb Khan.
The murderers were sentenced under the anti terrorism laws as in the Completed
challan/Police Report was submitted to the anti-terrorism court, investigating
officer had charged all the accused under Section 302 of the Pakistan Penal Code
(PPC) and under Section 7 of the anti-terrorism act (ATA) 1997. According to
anti-Terrorism act “A person is said to commit a terrorist act if he, in order,
if the effect of his action will be to, strike terror or create a sense of fear
and in security in the people, or any section of the people, does any act or
thing by using explosive or inflammable substance, or such fire arm or other
lethal weapons, be likely to cause death of, or injury to any person or persons.
The whole case had a great twist when out of the blue the family of Mr. Shahzeb
Khan entered into a compromise with the convicts and pardoned them. The
allegations of procuring heavy amount from the families of the convicts in
reward of granting pardon were also heard at the media. Many legal experts are
analyzing that there are bright chances that the court will accept this
compromise as already precedents have been settled in other similar matters. The
convictions under section 7 of the ATA are unlikely to have a compromise
settlement. “Section 302 of the Pakistan Penal Code is compoundable, but the
Section 7 anti-terrorism act is non-compoundable. It means an offence punishable
under the Section 302 of the PPC can be compromised, but that falling within the
ambit of the Section 7 of the ATA cannot be compromised. Anti-terrorism act is a
special law in which there is no provision of compromise. Only heinous Offences
are tried under this act and there are special Courts for it which called
anti-terrorism courts. Consequently in the above explained legal position there
is no question of setting the convicts free can be arisen in this case as long
as the provisions of the anti terrorism act, 1997 are intact against the
convicts.
The unfortunate scenario in this saga is that the law and the Islamic
Jurisprudence has been misinterpreted badly. The real position is that the
Islamic Jurisprudence provides a concept for such crimes which is defined as
Fasad-Fil-Arz Section 302 PPC although a compoundable offence but jurisdiction
to tender pardon is strictly limited if the decision of the court amounts to
Fasad-Fil-Arz. The court may in its discretion having regard to the facts and
circumstances of the case, punish an offender against whom right of qisas has
been waived or compound. That the interpretation in the light of the guideline
by the Injunction of Islam as laid down in the Holy Quran and Sunnah where an
accused person has been awarded sentences for murder as per tazir and not qisas,
the legal heirs cannot waive or accept badal-e-sulh. The expression
Fasad-Fil-Arz shall include the past conduct of the offender or whether he has
previous convictions, or the brutal or shocking manner in which the offence has
been committed which is outrageous to the public conscience, or if the offender
is considered as a potential danger to the community.
Awarding sentence means that the accusation on the accused stands established
and no room has been left for legal heirs to enter into compromise in the legal
scenario discussed supra. The offences mentioned in Anti terrorism law are non
compoundable and the offence section 302 PPC even if compoundable deems to be
non compoundable if it falls within the ambit of Fisad-Fil-Arz. Pardon in
Allah’s name come within the realm Fisad Fil Arz. It also tantamount to
encourage the culprits that they can mould the law according to their own wishes
and do whatever they want.
A debate has been started in the civil society of Pakistan after the latest
development of grant of pardon in such a high profile case that if offenders get
away with the murder of young block in such ridicules manner will created an
impression not only in our society but at the international stage as well that
justice and convictions are only for poor people Pakistan and rich citizen of
the Country are above the laws.
I urge not only to the Apex Court of the Country but also the ULEMAS and Islamic
Scholars to design a proper mechanism for proper enforcement of the concept of
FASAD FIL ARZ so that no one can take dire advantage in such heinous crimes
behind the curtain of Islam.
SHUMAIL ARIF
Lawyer by profession
Mob: +92-321-4204110