VICTIMS OF VIOLENCE COMPENSATION AND THE CONCEPT OF DIYAT

VICTIMS OF VIOLENCE COMPENSATION <!--[if gte mso 10]> VICTIMS OF VIOLENCE COMPENSATION AND THE CONCEPT OF DIYAT By A. R. Akhtar, Advocate, Karachi The phenomena of crime, criminal behavour and violence has surpassed extreme limits, and with more and more violence and crimes, and consequent increase in suffering, our criminal justice system has become dis functional, for effective remedial dispensation. But more disappointing is the callous unconcern and apathy towards lego-socialogical study for developing criminology and penal system for peace and security in the society. We have almost abandoned study and research in law, particularly criminology and the criminal justice system. In recent times penology has introduced new concept of criminal terminology, offences and notions of crimes and punishments[1], without any basic study and research on its value oriented edifice. Organised crimes and anti-society mafia as an occupation, has changed the crimographic market structure. The lack of any concern for social responsibility, corporate responsibility, increase terrorism and in fraudulent conduct generally, while colour crimes, family feuds and plain brutality and coercion, has brought out a criminogeneric upheavals, for which our criminal justice system is not ready to deal with. The absence of any scientific crimino-technolegal process, the abuse of power, relationship between crimes, criminals and its functional and physical costs of prevention, detection and role of punitive agencies, lacks will and ability to deal effectively with disappointing crime scenario. With the justice system corroded, the pathetic state of police, police system and crime management suffers from stagnate lack of recognition. The plight of accused in police custody, and the trial system has corroded down deep and like the offender, the victim of crime is almost ignored, and does not matter in the system. Crimonologist in the west concern more for the criminal gravity of punishment, and its social and human impact on the criminal. At times, hanging for murder was considered morally and legally justified, but social and anthropologist experts question the wisdom in capital punishment, and its gains to the Society; forgetting the victims and plight of his family the victims moral and legal right to express its lawful and legitimate needs, economic and emotional impact on quality of life their substance without monitory support from the deceased. The whole paradigm of Justice System revolves around the accused, penology and criminality of condemned act despised by the society, yet ignores the victims of crime, and its consequential impact and sufferings for the family. Researchers have now started deliberations and ask, does hanging of the convict satisfy the emotional impulse of heirs of the victim, so fully, that the punishment serves all emotional and economic needs of the victim as a recompense for the losses. As the criminal justice system works, and deals with crimes and criminals but the unconcern and ignorance displayed by the society for the victims of crime, can be judged from dearth of any study or research in the field of criminology, criminal behaviour and its impact on individuals directly, and the community at large. Victims of violence appear to have no place in the system, once the state takes over prosecution and penal process against the culprit. Violence of offences committed against human body, penology and criminal behaviour has generally, ignored the victim in the process of justice system. The functional impact of criminal justice system subsist on positivism and State authority and its responsibility in prevention and deterrence in criminal behaviour and conduct. No doubt the element of unpredictability and spontaneity in behaviour, with criminal and penal consequences is beyond the scope of legal system, and legal process cannot and must not regulate moral dictates in human conduct; though it justifiably claims authority to take punitive action of consequences of such actions. This obviously follows from the western legal theories of separation of moral from the legal code, and despite this positivism and social jurisprudence remain interdependent. The exclusive domain of state authority for deterrence and punitive, actions against violators of legal code is necessary consequence of institutionalization of justice system from individual revenge to a collective security system of prevention, deterrence and retribution. Disappointingly however, retributive aspect and expiatory element for criminal conduct and its impact on individual victims has been pushed as under and out of criminal legal frame order. Western Jurists realising injustice to victim of violence, had introduced Criminal Injuries Compensation Scheme (CICS) in 1964. As public sympathy emerged for the victim, the State recognized its duty to make efforts for tangible reparation to the victims of violence; Recognition that a crime is not merely a wrong against the State, but primarily injuries to the victim was introduced in criminal jurisprudence partially. There are crimes for which the immediate victims suffer in person, or through relationship and for loss or damage in property, person, honour and reputation. Offences like cheating, forgery impersonation, defamation, bodily injuries, hurt, rape, decoity, even death, seriously effect and bring devastation to the lives and peaceful livings of victims of crime. Jurists have recognised the primary crimes and mischiefs and the secondary, reflexive and derivative mischief and their effect on individual and the community. A slap on the face gives monetary hurt and pain, but suffering in the mind, status and position of the victim for which no measure of assessment is designed under legal norms. A bureaucrative order say, under taxation regime of customs duties assessed for levies may have penal and financial implications beyond imagination, but without retributive compensatory elements in cases of excesses and abuse of authority. Action for death of a human being did not attract civil action for damages. This rule followed from the decision in the case of Bakar v. Boltan[2] in 1808 and followed meticulously. The rule has been seriously criticized since, as the logic of awarding compensation to husband for temporary separation of his wife for accidental injuries, and refusal of compensation for permanent separation due to death is absurd. Lord Pollock had observed, (in his famous book on TORT[3]) instead of abolishing this barbaric rule which was the root of this mischief, the law creates a new right and remedy. It has been observed that person maimed by negligent act, could recover damages in tort, but if he is killed instantly, the heirs get mere grief, without monetary compensation under the prevalent legal justice system on the theory of separation of tortious acts, and offences giving distinct rights to private persons and the state for actionable wrongs and crimes. The American Criminal Justice System also realising the impact of violence on victim, introduced Victims Impact Statement, covering his economic losses, physical injuries, and how personal welfare of victim and his family has changed because of the offence. This rule enunciated in the case of Booth v. Maryland was partly overrules in 1991, in the case of Payne v. Tennessee [4] on Constitutional question, as to whether any right of the offender is violated because of impact statement, leaning in favour of the victim. In fact the debate on moral justification of death penalty from Beccaria's (1764) detesting hanging, termed punishment for homicide to prevent murder is to commit murder publicly, as against Cesare, Lombrosso (1890) who wished to retain death penalty to be applied resolutely in all cases. Sir James Stephens (1883) said that proper attitude of mind towards criminals is not the long suffering charity, but open enmity which justified hanging. According to Lord Denning, death, penalty is not deterrent, but an emphatic denunitation by a community of crimes and sympathy due to a victim. Statistic in America show that number of policemen killed in States was more, where death penalty has been abolished. The Jurists still pose the question that in hanging the criminal though the State has taken its vengeance, but what has it gained yet top short of asking, what the grieved victim has gained. This is where the principle of Badl-e-Sullah, and concept of Diyat establish the theory of forgiveness and recommence enshrined under Islamic Criminal Justice System becomes most relevant for study of present day justice system in dealing with crimes. There is a general classification of crimes in our criminal law, reflecting substantive and procedural implications, duties and authority for prosecution. There are cognizable or non-cognizable, compoundable and non-compoundable offences. Such categorization has persisted for over more than a century, and the justice system follows Inquiry, Investigation and different procedure in bailable and non-bailable offences. This terminology flows from the concepts of public offices prosecuted exclusively by the State authorities, and private offences as mala in se and mala prohibita, where prosecution remaining the exclusive domain of the State, and a category of compoundable offences require permission and consent through Judicial process. Strong compartmentalization and exclusivity reflects undue unsurption of all rights against the culprit for crime, to the exclusion of the victim. The legal system in vogue had never recognized the offence being also a sin and gunah, for which no substantive provisions relating to right, obligation and duties inter se the offender and victims of crimes in direct or consequential effect and sufferings have been laid down. However, the criminal procedure introduced a system to provide for payment of compensation by a person convicted of an offence for causing death, hurt, injury or mental or psychological damage or for loss or destruction of any property, to be paid to the heirs or person hurt or who suffers such physiological damage which is in normal course obligatory and consistent with morality and justice. It still does not recognize the victim or his family as essential co-percipient in the criminal justice system as of right; claims under tortious obligations apart, it appears that on conviction of the offender, the purpose of law is satisfied, though dispensation of justice for the victim is still a far cry, having no place in penological functionalism and legal responsibility of the State. The Muslim jurists have dilated on the penology of crimes under the headings, "Janayat" (Crimes) or more explicitly, the heading "Kitabu-al-Diyat" both for tortious and criminal acts of violence resulting in bodily injuries and harm, and its consequent punative provisions. In culpable homicide amounting to murder (Qatl-e-Amd), Sharia edicts and Judicial expositions clarify penological theory and explains that there are two rights blended in retaliation for murder, one is the right of God (Society or the State) since it frees the world of corruption, and secondly, the right of man, in so far it is a source of satisfaction to the heirs of the slain; yet the dominant right is given by Sharia to man; and the. preposition that as budl-e-Sulh (settlement) on payment of Diyat (Compensation), the convict must in all events go free is rejected[5], as and in case of existence of some element of corruption (Fasad-fil-Arth) the Court may still impose Tazir (punishment), refusing absolute pardon. According to the Supreme Court of Pakistan[6]. "The concept of punishment for homicide and the like offences in Islam, is relatable neither solely to the Absolute theory nor its purpose is entirely utilitarian. It is manifold, wherein the main purpose is the fulfilment of God's Will. This in turn in conducive to the improvement, reformation and preservation of good society." Islamic criminal law condemns (Qtl) murder in severest terms as unpardonable crime against humanity; Gunnah Kabira (gravest sin) for which the culprit goes to hell (Jahanmi); yet allow retribution, remission and advocates forgiveness, in which there is stated to be life for you (Fil Qisas-o-Hyatun). Action for damages in culpable behaviour depends, under English Law on the question whether legislation which prohibits an act as a criminal offence renders its breach also in an action for damages. So conspiracy as a civil tort or as an offence is recognized, as in defamation and libel; both liable to civil and criminal action, yet recognition for compensation for criminal action is though accepted, but not for retribution or expiration of the offender. Social necessity for recompense to victims of crimes was recognized expressly in 1980 when section 544-A inserted in P.P.C. in 1972, was given the present form. Judicial dispensation of Justice had consistently rendered its application in form and substances, its effective distinctive features in the notion of "Diyat" "fine" and "compensations" for offence against human body been strictly maintained, and overlapping have been avoided[7]. The positive theory of penal responsibility justifiable sympathise with the victims of voluntary and involuntary acts of omissions and commissions, affecting their economic plight, engineered by violency, and the emotional and psychological grief, and physical damages and injuries to the victims family and imperative needs for recompense. The present day scenario and paradigm of rampant criminal behaviour in our society appears beyond comprehension generalize the causes, and present any viable thesis for effective criminal justice system study. Corruption from the highest to the lowest, from the wealthiest to the poorest, violence, terrorism uncalled for killing, extortions, Karo Karis, bribery, abuse of power, land grabbing oppression of the poor and the weak, decoities, etc; the magnitude and frequency, and areas of operation and effectives is difficult to specify. Is it moral degradation, gread for money or power, revenge, intolerance which has broken the fabrics of the society and social values has been decayed. There is no model role available for the society or from the elders to imitate. The political cultural stagnating, religious fervour becoming violative and intolerant, the people in destress for amenities like water, electricity in rural and urban areas, jobless with sense of insecurity; the gloomy picture is too devastating to be portrayed. No section of society, organizational structure in civil, personal and public domain appears to be guided by any rules of ethics, moral or religious dictates: hundreds of N.G.O.s in the field, and intellectuals clamouring for sanity, tolerance, the sense of justice and fairplay has been renegated as under; whereto from here; no sense of direction. We as a society having discarded the Book, we are discarded and misguided by the Providence. Increase in the rigour of criminal law aside, no let up appears in criminal conduct despite. The criminals and inductive impulse induct more and more aggressive attraction for monetary gains, revenge and emotative lusts. The Holy Qur'an has condemned "Takasur" (the Greed) for all wordly gains, authority, position and riches. This may be a pointer for re-shaping our penological theories to enforce rendering account for crimes both in body, belongings, reputation by recompense, equally to the victim. The Islamic system of Diyat, Arsh, and Zaman should be enforced with justice for real recompense to the victims of violence and his family, restoring their position, status and honour, in restitution in integram. This calls for new theory of criminal justice system under Sharia. The concept of criminality, crimes and punishment is derived from the socio-legal framework laid down by Sharia'h in the law of actions and juristic acts, and obligations. Shariah Law gives a classification of rights, obligations and duties either in its general rules of obligations, or under specific commands[8]. The general rules cover both actions and things as permitted, prohibited, or allowed or sometimes commended as Halal. Haram, Mukrooh or Mubah in respect of specific things in respect of actions. The specific commands prescribe framework of socio-economic and lego-moral fabrics of obligations and duties covering almost all aspect of human life societal obligations to God, and Man. Consequent upon these commands, and guideline for human conduct, system of accountability for all actions committed in breach of rules of Amro Nahi are laid down and enforced accordance to its nature, concept and policy of Shariah either examination of law, and classification of actions shows that Shariah either defines the quality of act, falling in the category of permitted or prohibited acts or things, or indicates its legal effect leading to other obligations, right and duties. A person obliged under Shariah as Mukalaf as subject of commands, is imparted legal and moral duty to follow all commands of Shariah. The consequent accountability to be answerable for his act, omission, faults and neglects for the purposes of remedies, will depend upon the subject-matter falling under the category of Ibadat or in Muamalat. Based on these principles the concept of rights and obligations is derived and enforceable under law. Like all other system of criminality, and criminal law. Islamic law of crimes is historically based, driving sanctity and force from revelation and faith of the Muslim society in its legal efficacy. The scope of criminal law as a concept of relgo-social obligations and as a system of legal values has a duel aspect, Shariah, as a legal system deals with crimes and offences under the concept of Jannayat as wrongs against obligatory duties, enforceable by the State itself. A crime is an offence under law, and may also be a sin or Gunnah under Shariah. But whether a Muslim State can equate the sphere of crimes common both for offences under law and Gunnah for breach of duty to Allah under Shariah. Apparently this dichotomy arises from running two parallel systems being worked as law and Shariah law at the same time. But such a controversy need not arise, as supreme and fundamental purpose under law and Shariah is to conserve moral welfare of the society and the State, and more so when the term law and Shariah law means one and the same thing. If this is agreed in principle, that is we accept the legal efficacy of both law and Shariah as a system of law of obligations enforceable by the State as to why crimes are made punishable or disapproved, or the authority or the State to declare certain acts as offences. Once the sanctity of Shariah as the law enforceable within the realm is accepted, as part of faith, the rationality of crimes and punishment becomes academic argument in a Muslim society. However, in the study of criminal behaviours, crimes and criminals impact of environmental and sociological behaviour, the impact of religion cannot be overlooked. The factors leading to criminal behaviour may physical mental, biological or may be economic, sociological cultural or social; the reasons for female infanticide in the medieval Arab society were cultural or sociological-subjective pressure. However, a criminal character in an act or its test or criminality may be found objectively from the nature and scope of an act and its implication, or moral fabrics of the society. Whether or not to treat the study of criminal law as the study in sociology of criminal behaviour may be important for other factors, as the normative character of these rules based on devine commands, its status as positive obligations under Shariah are in any case undisputed. The implications of religious obligations or ordained by Shariah lies only in the system envisaged for accountability and redress, either in this world or in the world hereafter; or perhaps in other words, accountability is imminent for all actions before God, but for actual redress of grievance availability of remedy for breach of obligations for Haqooq-ul-Ibad may also lie under law enforceable by the State. This may be one of criteria to determine and distinguish a sin or Gunnah from the nature and concept of an act which is also an offence punishable by law. This concept of criminality as an offence under law and as breach of obligations under Shariah are prominent in the concept of Hudood the limits which are prescribed by Shariah as part of law of obligations, both to God and man and society. REFERENCES [1] Criminal Law (Amendment) Act (II of 1997) dated 11-4-1997; Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Offence of Zina (Enforcement of Hudood) Ordinance, 1979; Offence of Qazf (Enforcement of Hadd) Ordinance, 1979; Anti-Terrorism Act, 1997; Prohibition (Enforcement of Hadd) Order, 1979, Anti-Narcotics Forces Act, 1997, Control of Narcotic Substances Act, 1997. [2] (1808) 1 Camp. 493: 10 RR 734.Tort by Pollock - 15th Edn., p.55. [3] (1991) 501 (IS. 1115 ef. 2597. Examining Justice Process by James A. Inciardi. [5] Muhammad Riaz's case PLD 1980 FSC 1. [6] Muhammad Bashir v. The State PLD 1982 SC 139. [7] Dilmee v. State 1999 Cr.LJ 543: Muhammad Heyat v. Badar Alam 2000 SCMR 467; Saeed Iqbal v. State 2000 MLD 1023; see also Sikandar Khan v. State 2001 PCr.LJ 1410; Mohabat Khan's case PLD 2001 P.112, where fine was converted into compensation, also Rashid Mahmood v. State 2001 YLR 137. [8] See Sir Abdul Rahim on Muhammadon Jurisprudence.