The main aim of justice is to create a free, fair and happy society, where fundamental rights of individuals are respected. Also, it is not only the responsibility of government to provide justice to every individual but also of the society in which the individual is living. That is why, apart from a well organized judicial structure on country level, Pakistan do have some non-governmental institutions like Jirga and Panchayat, working in rural societies for the provision of justice. Courts are government led judicial structures that provide justice in the light of a well-established legal code of the country called constitution. Jirga and Panchayat derive their authority from the prevailing code of conduct and morality in their respective societies. Here instead of Jirga and Panchayat both, we narrow down the discussion to Jirga only. Yousafzai and Gohar define Jirga as a body comprising of local elder and influential men (mostly from two to ten) who sit in a circle without any president or secretary (17).
Although the court of law and Jirga both serve the same purpose of providing justice to the individuals and in this context, there are certain similarities in both systems like consensus of masses, still both systems are much different in their procedural norms and principles especially in case of murder.
Judicial institution of a society is accepted only when a legitimate authority backs it. Since the legitimacy of any authority is primarily based upon the consensus of masses, both the judicial systems derive their authority from their respective masses. Jirga still operates in Pushtoon society because Pushtoon nation recognize its legitimacy while Pakistan Judicial System is the only hope of urban class to receive justice.
In order to evaluate the procedural norms of both systems, we first take into account a situation where an offender has committed an unintentional murder i.e. accidental killing of a person in crossfire between two other parties or in a road accident. Under the Jirga system if the members of Jirga are satisfied that the murder is unintentional, they will settle the dispute through head money and a public apology only (Yousafzai and Gohar 36-37). In court of law this type of murder is termed as Qatl-e-Khata for which they also look for the factor of negligence and rashness and whoever commits Qatl-e-khata is liable to Diyat (payment made to the heirs of victim) as well as imprisonment which may extend up to five years as tazir (Mehmood 112).
Both the systems differ in their approach to intentional murder as well. Jirga, like court, first needs to prove that the murder was intend but unlike courts “when it is difficult to prove whether the event occurred accidently or whether there was some malice involved, onus of providing such proof lies with the party under suspicion of murder. The victim party can only observe the things silently” (Yousafzai and Gohar 37). Yousafzai and Gohar further say that when the murder is proved to be intentional then according to the Jirga system the murderer party provides the victim party with cash money and more often with the transfer of girl (for marriage), in order to settle down the dispute (37). In courts of law, both, the defendant and the plaintiff, are required to plead their case. Moreover, being a well developed institution, court can use modern techniques like autopsy report and finger prints to prove the murder. When intentional murder is proved, it is then termed as Qatl-e-Amd for which depending upon the gravity of case, apart from the punishment of Diyat the murderer can be hanged to death or he can be imprisoned for a term, which may extend to twenty-five years (Mehmood 93).
The menace of murder in the name of Honor Killing has always been an integral part of Pakistani rural society. The killing of a boy or girl mostly due to sex, adultery, and rape is termed as Honor Killing. There is room for Honor Killing in the Jirga. Yousafzai and Gohar say that even the Jirga can itself morally force the father or brother of the boy or girl to kill their respective offspring (37). Whereas, court of law does not has any room for the Honor Killing and has same punishment for the Honor Killing as for Qatl-e-Amd (intended murder).
Concluding from the above-mentioned facts, we can say that although both systems differ up to some extent in their procedural norms, they still are doing the noble work of providing Justice to the masses. Justice is upon which the social stability of any society depends. It not only helps in promoting economic and political growth but also attributes to the overall welfare of the society. The need of the hour is to establish strong political institutions backed by legal authority to provide efficient, speedy and fair Justice to the society.
Written By: Fawad Marwat
Posts
