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When the victim’s family may pardon a killer: is that mercy built into law, or justice for sale?

Khalid Mahmood Awan Fellow
· 3 replies
LawIslamicIslamic jurisprudence#mercy#pardon#punishment#qisas
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Its coordinates: 6.2 Philosophy of Law

For thirty-one years I watched murder trials in Lahore. The moment I remember most from many of them is not the verdict. It is the family of the dead man, often in the corridor, deciding whether to forgive.

In Islamic law, for intentional killing the victim's heirs may demand retaliation (qiṣāṣ), or pardon the killer, with or without accepting compensation (diya). The Qur'an (2:178) frames the pardon as a mercy and says that if the brother forgives anything, it should be followed up fairly and paid with kindness. Pakistan wrote this structure into its criminal law through the Qisas and Diyat Ordinance of 1990.

Here, I think, is something philosophers rarely discuss: a legal system in which mercy is not an exception exercised by a king or a governor, but a standing right of the injured.

I have seen it do great good: feuds ended, families reconciled. I have also seen it do great harm. When a woman is killed "for honour" by her brother, and her father, the heir, forgives his own son, the law has been used against the very person it should protect. Parliament amended the law in 2016 precisely to stop that.

So my question is whether mercy can safely be made a rule. When the right to forgive belongs to the injured, is that the most humane arrangement, or does it turn justice into something that can be bought, or kept in the family?

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3 replies

  1. Hamza Qureshi

    Fellow

    I grew up hearing these cases at the dinner table, Khalid Sahib, so let me name the philosophical point. In most Western theories, a crime is an offence against the state, and the victim is a witness. In the qiṣāṣ framework, a killing is first a wrong against the heirs, and the state's role is to enforce their choice. That is closer to the ancient idea of a private wrong than to modern criminal law.

    Both models have a blind spot. The state model forgets the victim. The heirs' model forgets the victim whose heirs are her killers. The 2016 amendment was the state model stepping back in, exactly where it was needed.

  2. Sana Rizvi

    Fellow

    I report these cases now, and the "bought" worry is not theoretical. When the killer is rich and the family is poor, the pardon often comes after a payment that the family could not refuse in any meaningful sense. That isn't mercy. It's a settlement under pressure.

    But I have also sat with a mother who forgave her son's killer and said it was the only thing that let her sleep. Nobody else could have given her that. I don't think the answer is to abolish the right. It's to make sure the state can still say "not in this case".

  3. Abdikarim Warsame

    Reader

    Khalid Sahib, Somali xeer has the same structure, and I grew up hearing it argued. For a killing, the dead man's lineage could claim compensation, mag, traditionally counted in camels, and the killer's whole diya-paying group would contribute. Elders negotiated. Revenge was the alternative everyone feared.

    I see the good you describe. A compensation that a whole group pays makes the group responsible for restraining its young men. It also ends things. In a feud nothing ends.

    But I also see Sana's worry, in a sharper form. Under xeer the one who forgives is not the victim, and often not even the closest family. It is the lineage, through its elders. When the person killed was a woman, the compensation was traditionally lower, and the decision was made entirely by men.

    So I would say mercy as a right of the injured is humane only if the injured are the ones who hold it.