The Rule of “Death as the Normal Penalty for Murder”

A Case Study of the Qisas and Diyat Law in Pakistan

Abstract

Death is regarded as normal penalty for murder in the subcontinent since the enactment of the Code of Criminal Procedure, 1898 (Cr.PC) particularly its section 367(5). This clause required trial courts to state reasons when capital punishment was not imposed in a capital offence with other sentencing options. Section 302 of the Indian or Pakistan Penal Code (PPC) provided that the punishment for murder did not attach any preference to capital punishment or its alternative of life imprisonment. Judicial interpretations of section 367(5) Cr.PC, practically qualified section 302 PPC, resulting in the development of the rule: death as the normal penalty for murder. Superior courts in Pakistan followed and enforced this rule. Under this rule, lesser punishment can only be imposed if mitigating factors are established. When the Islamic law of homicide and hurt was enforced in Pakistan, it provided punishment of death as qisas (retaliation) for qatl-i ‘amd (intentional murder) as fixed penalty. For the punishment of qatl-i ‘amd as ta‘zir, it provided death or imprisonment for life as sentencing options, keeping in view the circumstance of the case. Punishment of qatl-i ‘amd as qisas remained a rare phenomenon practically rendering this aspect redundant. This issue of redundancy of penal provision of qisas was never addressed judicially or legislatively. Instead courts in Pakistan invoked death being normal penalty rule developed under the old law, while punishing for qatl-i ‘amd as ta‘zir. On the other hand, as per opinions of Muslim scholars and judgments of superior courts steering the Islamisation of the law of homicide and hurt, punishment of ta‘zir in qatl-i ‘amd can reach up to capital punishment if aggravating circumstances so demand. In view of this conflicting position, death being the normal penalty for murder rule is inapplicable under the existing statutory Islamic law of homicide and hurt. To establish this point this article has analysed the metamorphosis of capital punishment under English law and its influence on the jurisprudence of India and Pakistan. It also studied the above-mentioned rule before and after the promulgation of Qisas and Diyat Law in Pakistan in 1990. It finally argues that invoking this rule under the umbrella of section 302(b) PPC, which provides the punishment of qatl-i ‘amd as ta‘zir has resulted in jurisprudential paradox, which needs to be addressed.