The Pakistan Penal Code and the Offence of Murder

All criminal offences in Pakistan are dealt with legislation contained in the Pakistan Penal Code (PPC). This law was originally authored by Lord Macaulay in 1860 on the behalf of the Government of India as the Indian Penal Code. After the two countries separated in 1947, Pakistan inherited the same code to which it made several amendments. The Indian and Pakistan penal codes were working on the same structure laid down by the British for penalizing criminal offences. But after 1990 the Pakistan Penal Code made some amendments regarding Qatl (murder) by enacting the Qisas and Diyat ordinance 1990. This Ordinance redefined certain crimes and punishments provided by the PPC to bring them in conformity with the injunctions of Islam as stipulated by the Quran and Sunnah.

Murder was known as homicide in section 299 of the Indian Penal code which defined it as “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that his act is likely to cause death, commits the offence of culpable homicide.” Before Qisas and Diyat Ordinance, this was the definition of murder. Murder was defined to be the unlawful killing of another human being without any justification or with some malicious intent. But Qisas and Diyat ordinance replaced this term of ‘murder’ with Qatl and divided it into different types. Qatl is now defined by the PPC, by section 299(j), as ‘causing the death of a person’.

Types of Qatl:

1. Qatl-i-Amd
Under section 300 of PPC this is defined as “Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-amd”.

Qatl itself is a heinous crime. Those convicted of Qatl-i-amd are regarded as deserving the most stringent of punishments. This is because the premise of this crime requires the perpetrator of the Qatl to have intended the death of the victim. In other words, the perpetrator intended the result of death which he ends up achieving. Since Qatl violates the fundamental right to life, it is regarded as a very serious crimes by the PPC. This is a position which reflected by justice systems globally. The grave nature of the crime and the permanent consequences resulting from it demand harsh punishments fitting the retributive and deterrent purpose intended by them.
The punishment for Qatl-i-amd has been set, by section 302 0f the PPC, to be either death according to Qisas, punished with death or imprisonment for life according to Ta’zir or for a maximum of twenty-five-years imprisonment, when requirements of Qisas are not fulfilled.

2. Qatl shibh-i-amd :
The second type of Qatl is defined by section 315 of the PPC as, “whoever with the intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl shibh-i-amd”.
This Qatl is reminiscent of the offence of involuntary manslaughter. Since the perpetrator does not intend the death of the victim in this case but is reckless as to the consequences of his actions and thereby kills the victim, his crime is held to be less grave than that of Qatl-i-amd and therefore punished less severely.
The punishment for this crime has been stipulated by section 316 PPC, which makes convicts of Qatl-i-Shibh-i-amd to be liable to diyat or a maximum imprisonment of twenty five years according to Tazir.[1]

3. Qatl-i-khata:
The third type of Qatl is Qatl-i-khata, which has been defined by section 318 to be ‘whoever without the intention to cause death of, or cause harm to, a person causes death of such a person, either by mistake of act or mistake of fact, is said to commit qatl-e-khata’.
This type of Qatl is punished by section 319 of the PPC and is made liable to Diyat thereby.[2]

4. Qatl-bis-Sabab:
The fourth type of Qatl, is defined by section 321 as “whoever without any intention to cause death of, or cause harm to, any person, does any lawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab.”
This type of Qatl is only punished by Diyat.

Given that Qisas, Diyat and Ta’zir feature prominently in the legal address of Qatl, it is only fair to add descriptions for these three.

Qisas embodies the retributive theory of punishment and means that crimes must be reciprocated by punishments where the sanction is equal in gravity to the crime committed (i.e. the infamous example of an eye for an eye or a tooth for a tooth fits as an example). The concept of Qisas is defined in the PPC as per Section 299 (K) “punishment by causing similar hurt or Qatl (murder) 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-e-amd (intentional killing), in exercise of the right of the victim or a wali (heir of the victim, or the provincial government if there is no heir)”. The victim can also waive the right of Qisas if he wishes to, however after paying compensatory money to the victim or imprisonment. Qisas is also pre-empted for convicts of Qatl who are minors or insane or when the victim is the child or grandchild of the perpetrator or when a wali[3] of the victim is a direct descendant of the offender[4] or when the hurt has been caused at the insistence of the victim or when the organ of the offender liable to Qisas is missing[5].

Tazir is defined by s.299(L) PPC and is a punishment where the substance of the penalty is left to the discretion of the judge.[6]

Section 299(e) defines Diyat to be monetary compensation to be paid to the heirs of the victim, the value of which is left to the discretion of the judge presiding over the case. The compensation cannot however be less than the value of thirty thousand six hundred and thirty grams of silver, according to section 323 of the Pakistan Penal Code.[7]

This lays out the punitive structure for the crime of Qatl under the Pakistan Penal Code. The punishment of death is part of this structure and this attracts voices opposing it, in view of the right to life. This however is not possible as the punishment is added to the Penal Code by the stipulations of Islamic law. Given that Islam is the popular religion in Pakistan, the removal of this penalty seems unlikely. Also, majority of the Pakistani community supports the harsh retributive approach of this law and therefore it hails more support for its imposition, particularly for the crime of Qatl. But it must not be forgotten that the Penal Code allows for a wide array of punishments, besides that of death, for the crime of murder. These have been moderated according to the varying elements of intent in each type of Qatl. This seems to reflect the approach of the PPC which tries to maintain proportionality, in every punitive sentence it mandates.

[1] Pcr. LJ 1807.

[2] PlD 1993 Lah. 293.

[3] A person entitled to claim qisas. (Pakistan Penal Code, s 299(m).

[4] Pakistan Penal Code, s 306.

[5] Pakistan Penal Code, s 308.

[6] 1997 SCMR 1307 (a) at p. 1320.

[7] PLD 1991 SC 202; 1992 PCr.LJ 1583.