A much-trumpeted anti-honour killing bill was passed in a joint sitting of the parliament on Oct 6. While the government has been claiming that the recently-passed Criminal Law (Amendment) (Offences in the name or pretext of honour) Act 2016 would help in curbing honour-related killings, legal experts think otherwise stating that only some cosmetic changes have been made to the law, which were already available.

The initial bill, Anti-Honour Killings Laws (Criminal Laws Amendment) Bill 2014, was introduced in the Senate by Senator Sughra Imam of Pakistan People’s Party in Feb 2014. However, as the said bill could not be passed by both the houses of parliament in the period stipulated in the Constitution, it was referred to the joint sitting of the parliament.

In order to appease the religious parties in parliament, who had been dubbing the original bill as against injunctions of Islam, a much watered down version of the bill was passed. Through the recently-passed bill, amendments have been made to the Pakistan Penal Code (PPC) and Code of Criminal Procedure (CrPC). Interestingly, most of the amendments had already been incorporated in the said two laws through Criminal Law (Amendment) Act 2004 (Act No I of 2005), which was published in the official Gazette on Jan 10, 2005.

Through the 2004 amendments the honour-related offences were placed in Section 311 of PPC dealing with ‘fasad-fil-arz’ (mischief on earth), under which the trial court has been empowered to punish an offender even if he or she is forgiven by legal heirs of a deceased person.

“The only major change made in the law through the present amendments is that previously under ‘fasad-fil-arz’ the trial court was empowered to sentence an offender to 10 years imprisonment even if he was pardoned by the legal heirs and now the said sentence has been enhanced to life imprisonment,” said an advocate of high court, Shabbir Hussain Gigyani. He said that these were only cosmetic changes which would not serve the purpose of the bill.

He pointed out that these amendments were almost identical to those made in 2004, which had failed to achieve the desired results despite passage of over a decade. He added that the previous as well as present amendments were aimed at checking the compromises which took place between the offenders and the legal heirs of deceased women in honor-related offences.

“For applying the principle of ‘fasad-fil arz’ by the trial court the accused persons have to be first proven guilty of the offence, which is an uphill task in the existing criminal justice system,” Mr Gigyani said, adding that unless an offender was found guilty of the offence of honour-killing he could not be sentenced under Section 311.

He pointed out that as honour-killing was a family affair in most of such cases, it was always difficult to prove it in a court of law. Moreover, he said that the standard of investigation was not up to the mark due to which the perpetrators in such offences were often acquitted.

Another shortcoming in the previous as well as present amendments is that sentencing an offender has been left to the discretion of court. The present amended Section 311 states: “Where all the wali do not waive or compound the right of Qisas, or if the principle of ‘fasad-fil arz’ is attracted, the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term which may extend to 14 years as tazir: Provided that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life.”

Till the passage of 2004 Act there was no definition of honour-related killing in PPC. Through that amendment a definition of honour-related offences was given in Section 299 of PPC which states: “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.”

The Qisas and Diyat law was introduced through the Criminal Law Amendment Ordinance VII of 1990 promulgated by the then president Ghulam Ishaq Khan in 1990. The said ordinance was re-promulgated several times and finally it became an Act of Parliament in 1997 during the then government of Nawaz Sharif.

Through that Act amendments had been made in around 40 sections of the PPC and it covers all offences against human body and provides for Qisas (retribution) and Diyat (blood money). Experts believe that the entire pattern established through the Qisas and Diyat law is a sort of privatisation of offences related to human body, whereby crimes are no longer considered offences against the state, but against individuals.

Among the major changes introduced through the Qisas and Diyat law the offences related 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 Allah 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.

Now, through the present amendments it is provided that waiver of Qisas or compounding the offence under Sections 309 and 310, will be subject to the provision of Section 311, where the principle of ‘fasad-fil-arz’ is attracted.

An explanation of ‘fasad-fil-arz’ given in Section 311 PPC has now been included in Section 299, the definitions section. It states: “Fasad-fil-arz includes the past conduct of the offender, or whether he has any previous conviction, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or if the offender is considered a potential danger to the community, of if the offence has been committed in the name or on the pretext of honour.”

Published in Dawn, October 10th, 2016