PARTICIPANTS’ PAPERS
COUNTRY REPORT: PAKISTAN

Abdul Latif Khan＊
I. VICTIMS OF CRIMEIn Pakistan, the present criminal justice system is primarily based upon the codified penal and procedural
laws designed by the British masters in the colonial era of British Indian history. It includes the Criminal
Procedure Code of 1898 and Penal Code of 1860. Since these criminal laws did not provide for any concept of
restorative justice we have not inherited a system having any such provisions. Our system is still based upon
the accusatorial principle i.e. the state is a party in any criminal transaction. Punishment of the offender as arule has been provided as the only penalty for the criminals instead of extending any relief/remedy to thevictim. It truly speaks of the underlying objective that the state is interested in maintaining ‘order’ and writof the state in the society instead of taking care of the victim.
A. Statutes
However in the course of development, Pakistan as a country tried to improve the inherited criminal laws
to make them more consistent with and beneficial for the society. In brief, these codified changes are:
1. Qisas and Diyat Ordinance“Crime of retribution and compensation (Diyah) involve homicide, bodily injury or other forms of harmcommitted against the physical security of the person. Homicide is of three categories: - It may be premeditated, involuntary, or voluntary. Only pre-meditated homicide involves a penalty under the law of Qisas.
Qisas refers to a specified punishment in Quran and Sunnah. They are labeled as such because thepunishment imposed is either a just-retributive penalty equivalent to the injury inflicted on the victim, or
takes the form of pecuniary compensation (Diyat) for the victim’s injuries. Diyat is imposed only if justretribution is not executable or the victim waives his right to demand it. The decision whether or not toprosecute rests with the victim and his relatives. In the event of a conviction they have the choice between
the sanction of retribution or exacting compensation or pardoning the offender altogether. In the last eventthe court reserves power of discretionary punishment of the offender.
The Quran has described a very important principle of civil law, i.e. equality of men and the necessity ofawarding proportionate punishment to all offenders, without distinction, unless and until the offender ispardoned by the relatives of the victim under circumstances that are expected to lead to improvement ofconditions.
The Islamic law of just-retribution provides a very effective and practical means to put a stop to murderand safeguard human life. A man who shows a callous disregard for the life of a fellow-person loses his rightto live. The option to pardon allowed to the heirs of the slain person, should not be regarded as likely to
encourage murder, for such option is not synonymous with exemption from punishment as in ordinary
circumstances the murderer will have to pay the blood-money. Moreover, the would-be murderer possesses
no means to know that the heirs of the person whose murder he contemplated will actually be persuaded topardon him; so the fear of capital punishment will always be there to deter him from the commission of thecrime. Again, pardon or remission is permissible only where the circumstances are such that the pardon orremission is likely to improve conditions and bring about good results for all parties concerned.
To prevent crime, Islam really aims at the elimination of the conditions that cause it. It seeks to remove
the very root-cause of all crimes by working a complete moral reformation in man. But it does not remain＊

Deputy Inspector General of Police,
Mardan Region,
NWFP,
Pakistan136

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content with that. It also prescribes deterrent laws in conformity with the dictates of reason, justice andhumanity.
The individualization of punishment under Islamic law is fundamental, whether as to Hadd, Qisas or Tazir.
The Diyah, by contrast, is not strictly punishment, but is in the nature of compensation, which must be paid
to the victim as reparation for injury. It is sometimes confused with punishment because the amount ofcompensation is specified in advance. That practice is evidence of the firm adherence to the principle.
Difference between Qisas and Revenge
There is a difference between Qisas and Revenge. In revenge, the punishment inflicted on the offender isneither equal nor similar and some times innocent people can become a victim of revenge. While in qisas theequality of quantum of crime and of punishment is strictly adhered to. The law requires that a person shallnot inflict a greater degree of harm than that which has been inflicted. If equality in awarding punishment by
way of qisas is not practicable or possible then some other punishment is awarded. Secondly the process ofrevenge goes on between strong and weak while qisas is awarded by the order of the court and the entire
community is under an obligation to help the victim until qisas is executed.
Preference of Diyah over Qisas
As between Qisas (just-retribution) and Diyah (blood money), the Quran clearly indicates the preference
for the Diyah and forgiveness. Islam recommends reconciliation in murder cases so that peace and tranquility
emerges ultimately. Murder is a compoundable offence under the existing law.
Thus, the combination of Diyah and forgiveness produces a powerful material and spiritual inducement toforsake Qisas as retaliation. Consequently, one must interpret the crimes of Qisas as being based on a
general deterrence policy which recognizes the victim’s sense of vindictiveness against his aggressor, while
limiting the consequences of the penalty to the harm done and establishing the alternative remedies of victim
compensation or outright forgiveness.
Qisas in Hurt Cases
The law includes many detailed provisions regarding cases of hurt and “Itlaf” (total or partial damage to
any limb or organ of the body) and has provided for “Arsh” “Zaman” and “Diyah” as various modes ofcompensation.
In cases where extreme punishment of Qisas is not an adequate relief, Diyah is payable according to theyardstick fixed by law. At times, the full amount of compensation in the form of Diyah is payable to theaggrieved whereas, at other occasions, only a proportionate amount of Diyah is recoverable. If, for instance,
the sole organ or limb of a person is totally damaged due to the act of an individual and he is deprived ofmaking use thereof permanently, the full amount of Diyah would be recoverable. The cutting off of the nose
etc. of an individual can be quoted as an instance. If both organs or limbs like hands, eyes, feet are damaged,
full compensation in the form of Diyah would be payable but if one of the two is damaged then proportionate
Diyah to the extent of one-half would be payable. This principle would follow in other cases as well.
It should be noted that in certain circumstances, a fine could only be imposed if the damage caused is of anegligible extent. If a person has, for instance, six fingers of a hand and damage is caused totally or partiallyto the sixth additional finger, no compensation in the form of Diyah can be recovered. But the aggrieved
person can only approach the court that shall award him reasonable compensation by imposing a fine on theoffender. Similarly, if certain damage is caused to a sexual organ of an impotent male person, the victim canonly be compensated by way of payment of a fine because it cannot be said that he suffered an irreparable loss.
The fact cannot, however, be lost sight of that in certain cases a larger amount of compensation by way of
Diyah can also be granted if the damage caused is of an extensive nature. If, for instance, one of the teeth outof 32 teeth is initially damaged but the said damage has also adversely affected the remaining 31 teeth, theoffender must compensate the victim for the damage caused partially to the said 31 teeth.
Other Expenses Recoverable
It would be an injustice to the victim, if he is not awarded compensation for the injuries sustained, butrather left to expend his own money on the treatment of the inflicted injuries. The present law is not
oblivious to the practical difficulties and the hardships of the victim and has specifically provided that thevictim must be given adequate relief and compensation for the following: 1. Hospital expenses.
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2. Pain and suffering caused by the injury and3. Pecuniary loss.
Provision for Negligent Driving
Negligent Driving and other rash acts causing hurt entail criminal punishment under the law besides“Arsh” and “Daman” specified for the offence.
AaqilahSometimes an offender may be helped by his community to pay the blood money. When death has beencaused by negligence or mistake, Aaqilah of the offender i.e. those who have a common interest with theoffender arising out of their profession or simple neighborhood or the merchants who occupy premises in thesame market, must pay the blood money to heirs of the deceased. The reason is that it is the duty of the person’s
Aaqilah to watch over his conduct and the law presumes that the wrongdoer would not have acted in the way hedid, unless they neglected their duties. In this way his community has been burdened with the so-called light
penalty.
Qasamah
To prevent crime and making every locality conscious of being a helping hand in the overall objective ofgood order in society another novel concept has been introduced by the law, which is called “Qasamah”.
It is a general term for oath. As Qasamah means, “to divide”, we seem to have here the usual transition
between the meanings to cut and to decide so that Kasam’ would be the deciding, strong word.
If a dead body is found in a certain locality with signs of foulplay on it the heirs of the deceased are entitled
to select a maximum of fifty inhabitants from the place to take an oath that none of them killed him. If theytake the oath then the competent court of jurisdiction has the discretion to nominate several or all of the
inhabitants for the payment of blood money. Whoever refuses to take the oath shall be kept in simple
imprisonment until the time of his confession, or his willingness to take the oath, or disclosure of information
pertaining to the real murderer. Similarly, if a dead body is found at the door of a man’s house he will takethe oath and if he swears that he did not kill him, then the court will decide as to whom is liable for thepayment of Compensation.
GhurrahGhurrah (compensation) is due in the case of destruction of an embryo or a fully formed child still-born asa result of assault suffered by the mother during her pregnancy. Thus the law provides an effective remedy
in case of injury to unborn children.
From the above discussion, it is vividly clear that the Penal law of the country has provided ample
opportunities of compensatory justice to the victim in the shape of Qisas, Diyat, Arsh, Zaman, Aaqila,
Qasamah and Ghurrah. As mentioned earlier no homicide, hurt, injury or damage remains uncompensated,but despite the prevalent law, the ideal results in the area of restorative justice are yet to be achieved.
2. Haddood Ordinances of 1979
Hadd means to check or stop. It also means measure, limit and in law it means a punishment, themeasure of which has been definitely fixed by the Holly Quran and Sunnah i.e. by the Holly Prophet (peace
be upon him). The major crimes covered under this category are theft, robbery, illegal sexual intercourse,
drinking of alcohol etc.
Since Islam as a religion carries a full social system in its lap, therefore it has provided a complete societal
restorative system for the tranquility, harmony and health of the society as a whole. In Pakistan, offences
against the Property Ordinance, Zina Ordinance and Prohibition Order envisage such provisions. A detailed
discussion of these laws will infringe the remaining topics.
In Islam the various categories of punishment have been prescribed according to the nature, type, and its
impact on the society or the individual victim. If the offence infringes the rights of Allah or in other words if it
is against the good order and welfare of the entire community then the punishment is harsh. If it is a matter
concerning the individual then leniency can be adopted, which may even include forgiveness by the victim
and his family, as well as patching up of the matter through compromise.

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B. Pilot Programmes or Schemes for Crime Victims
As far as pilot programmes or schemes meant for deliberate or concerted efforts on the part ofgovernment are concerned, no such initiative has been taken or is in the offing. Statistical information or
evaluation of outcomes is therefore out of the question.
C. Measures to Protect Victims of Crime
In Pakistan victims of crime can only be protected through tougher bail conditions and the police by therequest of and at the victim’s expense. Similarly there is no quasi-legal setup for swift victim restoration.
Compensation paid by the offender after compromise reached through the efforts of elders/notables of thelocality is the only restoration. We are not in a position to provide separate rooms in courts for victims,
witnesses and offenders. Victims of crime have to appear before the court of law in order to record theirstatements. Similarly there is no organizational set up for any immediate and direct support for the victims ofcrime.
D. Participation of Victims in the Criminal Justice Process
The victim has a right of complaint, right to arrange a private prosecution for his case, and a right torecord his statement in the court of law. If he has entered into a compromise with the offender, on thevictim’s request the offender can be released in compoundable cases.
E. Provision of Information to Victims of Crime
The law of Pakistan provides for the giving of information to the victim of crime at different stages in acriminal proceeding. At the time of registration of a criminal complaint he receives a copy of the registeredFirst Information Report. On the eve of arrest of the offender, he is called for the purpose of an identification
parade. As per the law the state is bound to inform the complainant at the time of submission of the complete
case file to the court for trial.
F. Problems
1. Lack of Governmental Interest
Pakistan, as a country, has not been able to formulate any such deliberate programme or scheme toprotect the rights of victims. Nor is it on the agenda to envisage a targeted law for such an issue. Why is thismissing? Frankly speaking, it is not a priority of the government. Firstly we as a country have been
struggling for political stability since independence in 1947 and have not been able to strengthen our cardinal
institutions. Secondly, financial constraints of the government hamper any such initiative.
2. Divergent Social Conditions
In a country, which is heterogeneous in social systems, geography and ethnicity, it is not possible tofollow an agenda of directed change as is required to provide for a victim protection system.
3. Illiteracy and Backwardness
Since the conceptual framework for the purpose is missing, development of institutions is unthinkable.
Such concepts are concomitant with the economic development that, in turn, is dependent on the educationlevel and infrastructure of a country. We as a country are still living in a developing stage having a low
literacy rate, battered governmental institutions and backwardness. We are suffering from some intrinsic
handicaps since independence, which have inhibited us from progress.
4. Lack of Community Interest
On the other hand, individuals or community organizations are also not interested in the phenomenon. In
fact there is a problem of awareness. We as a society have not been able to take up the issue. Sporadic
efforts are there, for example some NGOs are working for rape victims or against child abuse. But their roleis negligible, cosmetic, and dubious in nature.
G. Solutions
1. Awareness Campaign
Although the concept is concomitant with the development as discussed above, an awareness campaign
could be started for the issue, and it would definitely serve the purpose. The first step in achieving theobjective should be conceptualization of the issue. This would be through interaction with those people who
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are running the system in different developed countries. The Present seminar will provide an opportunity formember developing countries for conceptualization of the issue. Such seminars will trigger an awarenesscampaign and development of crime victim protection institutions will follow.
2. Role of Community
Since the government of Pakistan is not in a position to prioritize the issue, the role of community-basedorganizations has become more important. Developed countries as well as individuals of the society should
dole out funds and human resources for the establishment of restorative institutions.
3. Role of Government
On the other hand the legal aspects required for the development of crime victim institutions should becovered through legislation by the government. Deliberate and concerted efforts are needed on the part of
the government in order to provide a legal framework and motivation to the community based organizations
for taking up the issue.
II. RESTORATIVE JUSTICE APPROACHES
A. Current Situation
Restorative Justice as such is a new and emerging concept having a bearing upon the restoration andrehabilitation of crime victims and offenders. It can be defined as a systematic response to wrongdoing thatemphasizes healing of the wounds of the victim caused or revealed by crime. It is not a quasi-legal pluralist
alternative to the modern juridical order. It is a middle-range paradigm, a stabilizing influence fostering
confidence in mainstream legal and political institutions.
In the backdrop of the above-mentioned concepts, Pakistan as a country is not following a deliberate andspecific programme for achieving a restorative justice system. However the present laws related tocriminology envisage provisions, which can become the basis for adopting a balanced restorative justiceapproach. These laws include;(i) Qisas and Diyat ordinance: as discussed in the previous pages.
(ii) Juvenile Justice System Ordinance-2002
In a deliberate effort the government of Pakistan has enacted a law for Juvenile delinquents. The main
thrust of the law is on restoration, and rehabilitation of teenagers who are booked under certain offences sothat they can again become useful members of the community.
1. Salient Features of the Act
Although deficient in certain critical areas, the Act incorporates several provisions that add to theprotections afforded to children under domestic law. These provisions include:(i) Requiring provincial governments to establish one or more juvenile court for each local area, with
exclusive jurisdiction over cases involving children.
(ii) Granting children a right to counsel at government expense and providing that court-appointed
counsel have at least five years of standing in the profession.
(iii) Prohibiting the imposition of the death sentence, amputation, or whipping of children, or assignment
to hard labour while in a “borstal or other such institution”.
(iv) Prohibiting the imposition of handcuffs, fetters, or corporal punishment on children” at any time
while in custody.
(v) Prohibiting the arrest of children below the age of fifteen under laws relating to preventive detention
or vagrancy.
(vi) It specifies the persons who may be present during a juvenile trial, and prohibits publication of theproceedings of a trial without the juvenile court’s authorization.
(vii) Immediately upon the arrest of a child, police must notify his or her guardian as well as a probation
officer, who is to prepare “a report on the child’s character, education, social and economic background”.
(viii) On taking cognizance of an offence the juvenile court shall decide the case within four months.
B. Absence of Targeted Programmes
As far as targeted programmes like VORP or VOM or FGC are concerned, these are post-dated concepts
for our country. We have the basic laws which provide a foundation for a restorative justice system but suchprogrammes need more awareness, community participation and the will of the government. We do have the140123RD INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
conciliatory committees, peace committees or mediation councils but those are informal and specific tocertain communities of the country.
C. Conducive Conditions
Conducive conditions for adopting a diversion system for restorative justice vary from social group tosocial group. Pakistan as a heterogeneous country cannot follow a uniform approach for the purpose. It is fullof divergent social setups having their peculiar norms of taking on the victims of crime and offenders.
D. Fate of Outcomes of the Restorative Process
Outcomes of a restorative process are, legally speaking, bound to be ratified/validated by a court of law if alegal process in a certain crime case has been put into motion. However, it is a well established judicial
practice in Pakistan that decisions coming out of a restorative process are ratified & validated by the court oflaw especially in compoundable offences like murder, etc.
Though criminal law or procedure in the country does not specifically provide for such restorative process
the compoundable nature of certain offences allows the adaptation of the restorative process.
E. Ensuring Clause
Different social groups ensure out of court settlements as the courts in Pakistan entertain the outcomesof a Restorative process.
Social pressure in the phenomenon is an ensuring clause. However courts are not bound to necessarily
ratify the compromise.
F. Problems and Solutions
Pakistani society as a whole enjoys a well established family system and tribal affinities. We are wellinterwoven in our social groups, especially in rural areas. Resolution of conflicts and problems through acommittee of elders (conciliation committee) has been a norm in our rural areas since long ago. We are notfacing the problem of anomie or “Lonely crowd syndrome” as is faced by the developed world specially thewest. Therefore adopting a well-defined restorative justice approach is not as difficult as it would be in thewest where ‘ neighborhood’ does not exist. However, since we are passing through a transition phase inwhich urbanization has been a hallmark, therefore family institutions & primary groups are bound to break.
We are going towards the stage of “Lonely crowd syndrome”. Therefore I see this time as ripe for adopting
modern techniques & approaches of the restorative justice process.

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