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View from the courtroom: Laws need amendments to punish perpetrators of honour-related offences

View from the courtroom: Laws need amendments to punish perpetrators of honour-related offences

After prominent filmmaker Sharmeen Obaid Chinoy won another Oscar award on Feb 28 for her documentary “A Girl in the River: The Price of Forgiveness”, the issue of honour-related violences is once again in the limelight in Pakistan. The documentary is based on the story of a survivor of an attempted honour killing.

The documentary also prompted the lawmakers, including Prime Minister Nawaz Sharif, to promise to plug the lacunas in the existing laws so the perpetrators of the honour-related offences were punished.

Speaking at the screening of Ms Chinoy’s documentary last month, the prime minister stated that he had directed the quarters concerned to plug loopholes in the existing laws in order to eliminate honour killings from Pakistan.

Related: We need to change the conversation about Sharmeen Obaid Chinoy. Here's how

The issue of honour-related violence, including murders, is not new to Pakistan as such incidents frequently take place across the country, including the tribal areas. In some parts, this inhuman practice is considered sacred and punishing perpetrators of such offences is next to impossible. While the society in general is mostly supportive to these offences, loopholes in the laws also let offenders off the hook.

From time-to-time civil society groups raised voice against such practices and the relevant laws were amended, but so far the desired results could not be achieved.

The Pakistan Penal Code (PPC) does not contain any provision which can mitigate the offence of murder committed in the name of honour. Originally, section 300 of the PPC contained a provision of “grave and sudden provocation” that provided for lesser punishment in mitigating the circumstance. The plea of “grave and sudden provocation” was available under Exception (1) to section 300. The said exception stated: “Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of any other person by mistake or accident.”

Through the Qisas and Diyat Ordinance drastic changes were made in the PPC and about 40 provisions related to bodily hurt and murder were repealed and replaced with new provisions which the government claimed were in accordance with the Islamic injunctions.

The Qisas and Diyat law was initially introduced through the Criminal Law Amendment Ordinance VII of 1990 promulgated by the then president Ghulam Ishaq Khan during the interim government of the caretaker prime minister Ghulam Mustafa Jatoi. The said ordinance was re-promulgated for about 24 times and finally it became an Act of the Parliament in 1997 during the then government of Mohammad Nawaz Sharif. This Act covers all offences against human body, including murder and body hurt, and provides for qisas (retribution) and diyat (blood money).

To address the issue of honour killing, amendments were again made in the PPC as well as in the Code of Criminal Procedure (CrPC) through the Criminal Law (Amendment) Act, which was published in the official gazette on Jan 11, 2005.

Related: 'If people don't go to jail for honour killing, how will they know it's a crime?'

Through those amendments for the first time a definition of honour-related offences was included in the PPC. A sub-section (ii) was incorporated into section 299 of the PPC which defines honour related offence as: “Offence committed in the name or on the pretext of honour means an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices.”

Through the Qisas and Diyat law the entire pattern of law was changed and certain crimes are no longer considered offences against the state, but against individuals. Thus, if these individuals so decide, offenders can walk free even after committing grave and heinous crimes like murder.

Among the major changes introduced through the Qisas and Diyat law the offences relating to the human body were made compoundable. The legal heirs of a deceased have the right to make a compromise with the offender under section 309 and 310. In the first provision, legal heirs can forgive the murderer in the name of God without getting any monetary compensation in the form of diyat, while under section 310 the legal heirs can compromise after receiving diyat in their respective shares. The minimum value of blood money is the value of 30,630 grams of silver on the first day of the month of July each year.

Moreover, under section 306 of the PPC, the qatl-i-amd (intentional murder) shall not be liable to qisas when an offender causes death of his child or grandchild, how low-so-ever; or when any wali of the victim is a direct descendent of the offender. These provisions ensured that several categories of killers can escape the qisas penalty, not on the basis of any difference in the nature of their crime, but because of their relationship to the victim or the victim’s walis. These include several of those male relatives who are the ones most commonly responsible for the murders of their female family members in the name of ‘honour’.

Recent: Lahore court sentences brothers to death over 'honour' killing

Following the enactment of the Criminal Law (amendment) Act, 2005, an intentional murder (qatl-e-amad) committed in the name or on the pretext of honour now carries punishment of death or life imprisonment. The discretion of the trial court to award lesser sentence had been removed and the courts are bound to sentence an offender in an honour-related murder case under section 302 (a) or (b) of the PPC which provide for the sentences of death and life imprisonment.

Another important amendment was made in section 311 dealing with the principle of fasad-fil-arz (mischief on earth) and the courts have now been empowered to sentence a person to more than ten year imprisonment in cases of honour-related offences even if the offender is forgiven by the legal heirs of the deceased person. The offence related to honour is considered as fasad-fil-arz.

A new sub-section (2a) has been incorporated after section 345 (2) of the CrPC whereby an offence committed in the name or pretext of karo kari, siyah kari or similar other customs or practices may be waived or compounded subject to such conditions as the court may deems fit to impose having regard to the facts and circumstances of the case.

Experts believe that just like the offences under the Anti-Terrorism Act, 1997, are made non-compoundable, in the same manner honour-related killings should also be placed in that category of offences. Unless changes are made in the law, they believe, in the existing situation people would continue to carry out such offences with impunity.

Published in Dawn, March 14th, 2016

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