Legal experts see government’s move of becoming a complainant in the murder case of social media celebrity Qandeel Baloch as an attempt to end apprehensions that legal heirs may pardon the killer-brother at a later stage of trial.
Police added section 311 (Ta’zir after waiver or compounding of right of qisas in qatl-i-amd) of the Pakistan Penal Code (PPC) in the first information report besides Section 302 (qatl-i-amd or intentional murder). It is believed that the decision to include Section 11 in the FIR was taken to make the case a non-compoundable (non-reconcilable).
Waseem Azeem has already confessed to kill his sister (Qandeel) in the name of ‘honour’.
Criminal law experts believe that the government’s move would not affect the right of wali or complainant to pardon the killer. In this case, the father of Qandeel Baloch is the main complainant. They say the state, under the law, always acts as a necessary party in every criminal case to prosecute the offenders.
Advocate Asad Jamal has an opinion that state can be legal heir (wali) only if there is no one from the family of the victim. In the case of Qandeel, her parents are alive, he says, adding that they can forgive their son (killer).
He says legally once the suspect confesses to the commission of the offence and the court admits such evidence under section 304 (Proof of qatl-i-amd liable to qisas) of the PPC, qisas becomes applicable.
Consequently, waiver (forgiveness without consideration/diyat etc) or reconciliation (compromise as a result of payment of diyat, for instance) of the offence becomes a real possibility unless the court goes to the extent of declaring the criminal act as fasad-fil-arz in which case the court can hand down a minimum punishment of 10 years of imprisonment as ta’azir, advocate Jamal states.
He adds that the court can also hand down death or imprisonment for life in honour killing cases as ta’azir.
Advocate Azam Nazir Tarar says under the existing scheme of law it is the state’s primary duty to prosecute criminals. He says private individuals are permitted to prosecute but not exclusively.
Mr Tarar says the role of the state as complainant in a case will not prejudice the wali’s right to pardon. However, he states, wali’s right to forgive a killer is not unfettered and subject to approval of the court.
Advocate Aftab Bajwa also sees government’s move as useless, saying the trial court has the jurisdiction to decide whether a criminal act falls within the definition of fasad-fil-arz under the section 311 of the PPC. He has the opinion that it is a simple murder case carrying punishment under section 302 of the PPC.