The Criminal Law (Amendment) Act, 2004
This law amended the existing criminal law to consider killing in the name or on the pretext of honor as pre-meditated murder and dealt with accordingly. Honor crimes are made punishable by a minimum of 10 years and a maximum of life imprisonment or death sentence, according to the circumstances of the case. Earlier, the cases of honor killing were generally dealt with under section 304 (1) “the grave and sudden provocations” instead of section 302 (murder) of the Pakistan Penal Code. This has removed the legal lacuna whereby such matters could be treated under the legal provision dealing with grave and sudden provocation. Moreover, as per this law, the Wali (legal Heir) can not include the accused or the convict for an honor crime. As such, no out of court of settlement is possible till the verdict of the court is handed down.
The Act through amendment to Section 299 and 302 of PPC, categorized the offence of honor killing as Qatal-i-Amad (willful and intentional killing). After amendment Section 299 clause (ii) of PPC reads, “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 Sivah Kari or similar other customs or practices;” A new proviso to Section 302 PPC reads “Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.”
Shortcomings of ‘Honor Killing’ Act – Qisas and Diyat Laws prevail
Criminal Law (Amendment) 2004 did not address the issue of waiver in which perpetrators of the crime were afforded an opportunity to seeking forgiveness from the family of the victim. Qisas and Diyat laws are codification of the Islamic concept that the victim’s heirs can either seek retribution in equal measure or accept monetary compensation from the accused in return for surrendering their claim to legally pursue the case against him. A lacuna in the Qisas and Diayat law, which covers all offences against the human body, allows to make these offences compoundable i.e. open to compromise as a private matter between two parties, by providing for Qisas (retribution) and Diyat (compensation or blood money). As such, the family of the victim can forgive the murderer after receiving Diyat. As most honor crimes are committed by close relatives of the female victim, her family ‘pardons’ the murderer or is pressurized into accepting blood money (khoon baha). Also, most of the honor killings occur in settings of extreme poverty, so the victim’s family is virtually forced to make a compromise with the murderer for some financial benefit. This option is also preferred as litigation in courts is long-drawn requiring considerable financial resources.
Retribution of the murderer hinges on the Wali, the heir of the deceased or the victim. The Criminal Law (Amendment) 2004 also failed to address the issue of Wali, who ‘continued to be the central lynchpin of justice and retribution’. The Walis remain mediators of crime and murderers continue to get away scot free by law.
In addition to the formal legal system, a parallel legal system also exists in some parts of Pakistan. Such tribal councils in southern Punjab are called Panchayat and in Sindh, Jirga. Although not recognized under law, Jirgas continue to function in rural areas under the tutelage of feudal lords and influential community elders, dispensing justice as per the members’ own cultural wisdom and gender perceptions.
Efforts to address parallel legal systems
Honor killings fall outside the formal legal framework – Jirga assumes the responsibility to adjudge the perceived crime, establish guilt and execute punishment, not the law or courts. The accused does not have any opportunity to defend her/ himself, and there exists no option of any punishment other than the ultimate punishment of death. Jirgas and Panchayats comprise of male elders in a community for dispute resolution who judge and hand down punishments according to their own socio-cultural construct and gender perceptions. Since the courts have a huge backlog of cases, litigations expensive and access to courts limited, people are left with no option but to resort to Jirgas for quick justice. Women suffer more at the hands of these Jirgas as they rarely have access to other judicial forums.
An attempt to curb incidence of honor killing would remain deficient unless efforts are undertaken to uproot extra-judicial mechanisms like Jirgas and Panchayats, which are the first, and often final, port of call for seeking justice. The Sindh High Court (SHC) ruled in 2004 that Jirgas were illegal. Justice Rehmat Hussain Jaffery pointed out that since Jirgas exercised legislative, judicial and executive authority, they usurped and undermined the power of the State, and were therefore unconstitutional. National Commission on Status of Women (NCSW) also lodged a petition in the Supreme Court of Pakistan in 2011 pointing out that the parallel legal systems violate State laws and deprive the citizens of the opportunity to a fair trial and justice and are as such illegal and inhuman. The petition, which is currently being heard by the Court, asks for individuals engaged in this practice to be punished.
The prime protectors of the jirga system are feudal lords who usually are in positions of political power. This was evidenced in 2010 when after SHC had ruled Jirgas as unconstitutional, PPP Senator Islamuddin Sheikh convened a Jirga at his residence in Sukkur to settle a dispute between the Lakhan and Mirani communities, as also the president of the Sindh chapter of the PML-Q, Ghaus Bakhsh Khan Mahar, who settled a dispute through a Jirga that arose when an FIR was lodged against two individuals for kidnapping a former naib nazim.