THE case of US national Raymond Davis has brought to limelight the Qisas (retribution) and Diyyat (blood money) provisions of Pakistan Penal Code (PPC), 1860. Ever since the induction of these provisions in the PPC over two decades ago, these remained the focus of discussion for different reasons.

Through the commonly known Qisas and Diyyat law, around 40 provisions of the British-era PPC sections 229 to 338 related to injury and murder were repealed and replaced with new provisions, which the then government claimed were in accordance with the Islamic injunctions.

Similarly, some provisions of the Criminal Procedure Code, 1898, were amended.

Initially, these provisions were introduced through the Criminal Law Amendment Ordinance VII of 1990, popularly known as Qisas and Diyyat Ordinance (QDO), in Oct 1990 by the then president Ghulam Ishaq Khan during the interim government headed by caretaker prime minister Ghulam Mustafa Jatoi.

The said ordinance was re-promulgated over 20 times as the constitutional life of an ordinance is four months. Finally, in 1997 during the government of Mian Nawaz Sharif, it became an act of the Parliament.

Prior to the promulgation of QDO, the Federal Shariat Court had declared that the existing provisions of PPC related to murder and injury were contrary to the Islamic injunctions.

The then government had filed an appeal before the Shariat Appellate bench of the Supreme Court, which dismissed the same in July 1989. The Shariat appellate bench made it binding on the government to amend the relevant laws.

The entire pattern established through the Qisas and Diyyat law is a sort of privatisation of crime, whereby crimes are no longer considered offences against the state, but against individuals.

Thus, if these individuals so decide, offenders can walk free even after committing grave and heinous crimes like murder.

Among the major changes introduced through the Qisas and Diyyat law the offences relating to the human body were made compoundable and cases could be decided on basis of compromise between the two parties.

The legal heirs of a deceased have the right to make a compromise with the offender under section 309 and 310. In the first provision, legal heirs can forgive the murderer in the name of God without getting any monetary compensation in the form of Diyyat, while under section 310 the legal heirs can compromise after receiving Diyyat in their respective shares. The minimum value of blood money is the value of 30,630 grams of silver on the first day of the month of July each year.

Moreover, under section 306 of the PPC, the qatl-i-amd (intentional murder) shall not be liable to Qisas when an offender causes death of his child or grandchild, how low-so-ever; or when any wali (guardian) of the victim is a direct descendent of the offender.

These provisions ensured that several categories of killers can escape the Qisas penalty, not on the basis of any difference in the nature of their crime, but because of their relationship to the victim or the victim's walis .

The law defines Qisas as “compensation specified in section 323 payable to the heirs of the victims.” Similarly, Qisas is defined as “punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali .”

Under the law if an intentional murder is not liable to Qisas, as the proof of the offence is not in accordance with the Islamic injunctions, then an accused could be punished under the tazir, which means punishments other than Qisas and Diyyat.

Section 311 of the PPC also empowers the court to convict a person, even if compromise took place in it, under the principle of fasad-fil-arz (mischief on earth), keeping in view the facts and circumstances of the case, and could sentence him up to 14 years of imprisonment.

Following amendments in the PPC in early 2005, murders on the name of honour were also included in section 311, which provides that the imprisonment shall not be less than 10 years.

The expression fasad-fil-arz include the past conduct of the offender; or whether he has any 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 a potential danger to the community or if the offence has been committed in the name or on the pretext of honour.