The Supreme Court judgment in 

Zahid Rehman v the State  has raised the [1]

‘significant question’ about the nature of the legal system in Pakistan, that is, is
it based on common law, Islamic law, or a hybrid of both systems? This
question, however, still remains unanswered.  In Naseer Ahmed v the State, the
court held that a convict of Qatl-e-Amad  punishable as Ta‘zir  could be punished
under the statutorily provided exceptional clauses of Qatl-e-Amad punishable
as Qisas. While in Faqir Ullah v Khalil-uz-Zaman court encourages the state
legislative punishment over Islamic punishment.

One of the effect of the islamization in 80’s result is Qisas and Diyat ordinance,
by petition filed in Peshawar High court Gul hassan vs government of Pakistan,
court declared that provision of PPC regarding Homicide and murder are
repugnant to Islam from then till 1995 the ordinance has been scrutinized on
various forums around 27 times, before promulgating it as law.

In such scenario no such authoritative judgement prevail which could perfectly

interpret the Qisas and Diyat laws. Supreme court usually put ball in basket of
Federal Shariat court by using defense mechanism of A203G of constitution
which bares jurisdiction of Supreme court. This creates oscillating views and
dilemma in lower courts during trial.
Implementing a Islamic punishment requires that evidence should be put before court are Islamic. The
evidence to proof a person guilty of Qisas are quiet strict as evidence keen full examine to fulfill
requirement of A 3 and A 17 of QSO 1984. Such strict procedure cannot be followed by court with that
much burden of cases.

It has been 27 times that Qisas and diayt Ordinance had been deliberated on numerous forms in order
to fit closer to Islamic principles but unfortunately it still need certain reforms. From the Quran it is
interpreted that on commission of Murder there are three parties one the heirs of victims, second Allah
Almighty and third is society. The liquidation with Allah almighty is on doom day. In case of heirs it Up to
them to forgive or impose Qisas but in ( Suraha Isreal verse no 33) states that the Heirs should be
assisted by the society, Islamic law balances both pardon and imposing of Qisas . the most important in
implementing Qisas is third one the society, from interpretation by jurist of (verse 178 of Suraha Baqra)
it is enunciated that the verse is specific for the society hence in proceeding State represents society and
in above such verse Taking Qisas is made obligation. If heirs pardon the accused it won’t abolish the
right of state to impose Qisas however such pardon abolishes obligation. For this Sec 311 is included in
PPC but it is ineffective as Islamic law is basis on inquestorial system and common law basis on Adversial
legal sysyem as we have seen example in Sharukh Jattoi case where on remand of case from the ATC to
Session Court Prosecution didn’t impleaded charge of 311 PPC
Diyat is usually consider as a punishment but it is not, as punishment is not defined before guilt .it is
simple compensation. Diyat and HAQ Mehar are the two obligations which are allowed to determine
according to customs of society which are further given a shape of customary law the. In our law
minimum value of diyat is fixed by opting the custom of Arabs using scale of Silver. The minimum value
of diyat is same of Qatal e amad, Qatal e khatta, Qatal e shabi Amad and for injuries. This should be
bifurcate