State as the complainant, perhaps
By: Aisha Gazdar
With judicial activism at its most vigorous, now may be a good time to revisit how the act of intentional murder in Pakistan became a crime against the individual, thereby allowing the state to withdraw its responsibility from prosecuting and punishing the perpetrator of one of the most heinous crimes in society.
Although promulgated in 1990, the law of Qisas and Diyat (retribution and blood money) has its roots in the Islamisation of the country’s laws and institutions by General Zia ul Haq that started soon after his coup in July 1977. Zia set up Shariat Benches in 1978 in each of the four high courts, their specific purpose being to examine all the laws of the country in the light of Quran and Sunnah.
Between 1979 and 1980, about two dozen petitions were filed in the Shariat Benches of Lahore, Karachi and Peshawar, challenging the existing criminal laws repugnant to the principles of Islam. Finally, in 1989, the Shariat Appellete Bench of the Supreme Court decided on all these petitions. This decision is known as the Gul Hassan case.
In this decision, provisions relating to murder and bodily hurt in the Pakistan Penal Code and the Criminal Procedure Code were found to be repugnant to Quran and Sunnah and the government ordered to make changes in accordance with the Islamic law. By this time, after 11 years of Zia’s dictatorship, elections had taken place and the PPP, under Ms Benazir Bhutto’s leadership, had formed the government, albeit with limited power. The Federation of Pakistan did file review petitions challenging the Shariat Appellete Bench’s decision. The court, however, set aside these petitions and ordered the government to amend the relevant laws. Thus, in October 1990, the Qisas and Diyat Ordinance came into force.
Without going into the details of all the changes that were brought in, the law essentially made murder a crime against the individual. Previously, there were only two punishments for intentional murder if proven – death sentence or life imprisonment. However, with the Qisas and Diyat Ordinance (made an Act in 1997), the heirs of the deceased could forgive the offender either by taking ‘diyat’ money, according to the Muslim law of inheritance, or by forgiving the accused in the name of God. So, murder became a compoundable offence. The details and procedures for this compromise can be found in sections 309 and 310 of the Pakistan Penal Code read with section 345 of the Criminal Procedure Code.
While proponents of the law argue that it has helped many old enmities and long standing blood feuds to come to a closure, the provision of compromise has had serious implications for the two most vulnerable sections of society, the poor and the women lot. According to the practitioners of criminal law, in murder cases where the accused party wields influence and money, a compromise (or ‘raazinama’, as it is usually called), is very common.
But it is in the cases of supposed ‘honour’ killings that this law is open to the most misuse. In its annual report of 2010, the HRCP reported 791 murders in the name of honour. A report by Aurat Foundation states that between the years 2008 and 2010, 1,636 women and young girls became victims of honour killings. More recently, the HRCP reported that in the first nine months of 2011, 675 girls and women were killed on the pretext of honour, 71 of them were under the age of 18.
The actual number must be even higher as a lot of these cases go unreported. What this means is that on any given day in Pakistan at least two women are murdered by a close family relative.
While factors like the ingrained feudal concept of control and lack of education are equally responsible, the impunity which the law itself gives to the perpetrator has played a significant role in the increase in these murders.
When a brother kills his sister, the complainant is also a family member and inevitably there is a ‘razinama’ where the father or the mother would file for compromise. The same is true for cases where husbands have killed their wives as in Pakistan most marriages take place within the family as cousin marriages as well as ‘watta satta’ exchanges.
I witnessed this first hand on a recent visit to the district of Shahdadkot in upper Sindh while making a documentary on the so called ‘karo kari’ murders. In a village about two hours’ drive from the dusty town of Qambar Shahdadkot, we met Sohni, a young mother of three. Sitting in the winter sun and chatting with her female cousins there was nothing about Sohni that seemed out of the ordinary until she took off the headscarf to show us the scars on her scalp and around her neck. And, then, we could see how brutally she had been hit with an axe by her husband. She spent nearly two months in Larkana hospital fighting for her life, while her husband was put behind bars for the same amount of time.
That’s it – two months for a crime that could have taken her life.
Furthermore, theirs is an exchange or ‘watta satta’ marriage and both sides of the family decided to file for a compromise. According to Ghulam Pathan, the State Prosecutor in Shahdadkot, almost all cases of violence or murders that take place in the family arrive at a settlement. In the absence of state protection and no resources of her own what would Sohni do except reconciling with the man who almost took her life.
It is the withdrawal of the responsibility of the State to punish the culprits that has serious repercussions. The abovementioned incident testifies to the severity of the issue.
In 2005, the law was amended in cases of honour killings. The amendment ensured that even with a compromise the judge could give a prison sentence which had to be more than 10 years. This law was welcomed as a first step in reducing honour killings. However, in practice, this did not happen as the cases were not registered as honour killings but murders and it is literally back to square one.
According to Khadim Rind, District Police Officer in Khairpur, one solution is that in murder cases, the state becomes the complainant rather than the family member. But this means that the law needs to go back to its original form when murder was a crime against the state. If the parliament is too weak to do that, perhaps the superior judiciary could take note of this 20-year-old anomaly in the law?
Source: The News
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