Women and Minorities

Naeem Shakir

Posted Nov 19, 2005      •Permalink      • Printer-Friendly Version
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Women and Minorities:  Qisas and Diyat law in Pakistan
Naeem Shakir

Since the promulgation of Qisas and Diyat law in Pakistan, there has been a complete departure from the established principles of criminal law that an offence of murder or injury to human body is a crime against the State, and that any one can set the criminal law in motion. This serious blow to the doctrine of crime and punishment was caused during the process of Islamisation of the State of Pakistan as the undemocratic state administrators in a move to seek legitimacy patronized the religious bogey. It is a serious issue that is faced by the society in Pakistan. It has been urged by the civil society time and again that the law be repealed. It is rather encouraging to note that the National Commission on the Status of Women, an institution constituted by the present government has initiated a public debate over the issue as a measure to ameliorate the lot of women folks of the country who stand marginalised by this law very much.  This Federal Commission earlier strongly recommended that the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 relating to adultery and rape should be repealed but the present government did not do so because of the pressure of religious extremists. Despite present governments claims for a policy of ґmodern enlightenment, it has not yet abandoned policy of appeasement of the religious lobby and thus the political will for ґwar against terror and against religious fundamentalism is still far from reality. ItҒs been three years now that the government announced to regulate the Madrassasђ with modern syllabi, as these are the institutions that Islamistsђ use to spread fanaticism, obscurantism and extremism. But there has been no headway in materializing the declared policy just because the government still tries to find ways to avoid confrontation with the sectarian forces.
The critique of the Qisas and Diyat Ordinance 1990 needs critical appraisal of the Constitution of Pakistan of 1973, Pakistan Penal Code of 1886 including Huddood Laws, Criminal Procedure Code of 1886, Qanoon - e Shahadat (Law of Evidence) of 1984, and Enforcement of Shariah Act of 1991. The Criminal Law (Fourth Amendment) Ordinance 1991 that now includes Qisas and Diyat laws with amendments in Penal Code provides the basic criminal law of Pakistan. Its preamble stipulates the objective of the legislation that says, ֓ in order to bring in conformity with the Injunctions of Islam as laid down in Holy Quran and Sunnah.

The Qisas has been defined in the Ordinance as punishment ԓby causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of victim or wali.  Diyat means compensation (blood money) specified in Section 323 of the Pakistan Penal Code, payable to the heirs of the deceased victim. The provisions of this Section are laid down as under;

ԓ (1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.

(2) For the purposes of subsection (1) the Federal Government shall, by notification in the official Gazette, declare the value of silver on the first day of July each year on such date as it may deem fit, which shall be the value payable during a financial year.

According to the Gazette of July 2003, the Federal Government was pleased to declare Rupees two hundred seventy five thousand seven hundred sixty two (RS. 275762) to be the value of thirty thousand six hundred thirty grams of silver.

This is precisely the price of life determined by the administrators of this society. And it hardly need further comment except that such determination of price of human life is simply outrageous for humanity at large.

The introduction of Qisas is meant to provide deterrent Punishment for ԑ an eye for eye, nose for nose, ear for ear and life for life.  Although this law dates back to an era of Law of Moses yet it can hardly be applicable in todayԒs world in which there is a strong global campaign for elimination of capital punishment. Ironically enough the notion of deterrent punishment was simultaneously negated by introduction of the doctrine of Diyat that is compensation as blood money for an attack on life or causing injury to human body. Paying blood money or compensation to the heirs of the victim/deceased can now compound the offence of murder. The law in fact is a complete departure from the established norms of criminal law as it is against the legal order of the State and the Society.

Prior to this legislation that is enshrined on the religious principles of Islam, the taking away of ones life or injury to body was considered as an offence against the State. And now with introduction of the provisions of Qisas and Diyat Ordinance, the concept of criminal offence of murder has been privatized as now the sentence for murder could be compounded under the socio-economic pressure of the oppressor as against the heirs of the victim. It may however be pointed out that the provisions of Article 45 of the Constitution that empowers the President to grant pardon reprieve and respite and to remit and suspend or commute the sentence contradicts the Qisas law. In Skina BibiҒs case however, as reported in PLD 1992 Lahore 99, it was held that President has no power to commute the death sentence awarded in cases of Huddood, Qisas and Diyat.

There are various issues related with the provisions of Qisas and Diyat such as determination of blood money, distribution of blood money amongst heirs and the standard of evidence required for such situations. The standard of evidence is now based on an Islamic concept of credibility of a witness. The Islamic doctrine of Tazkiah al Shahood is a mode of inquiry that stipulates the concept of piety of a witness under the Injunctions of Islam.  The testimony is considered to be reliable if the witness observes the limitations prescribed in the Holy Quran and Sunnah. The Supreme Court of Pakistan in Manzoor versus State as reported in 1992 SCMR 2307, held As regards it being a case of Qatl-I-amd liable to death by Qisas the requirement of Islamic Law is that the witnesses must stand the test of Tazkia al Shahood.Ӕ  The testimony of a non-Muslim witness under this concept is rendered secondary, because such a witness for obvious reasons cannot stand the test of Tazkia ul Shahood. Therefore the non-Muslim citizens stand marginalized, as they cannot be expected to possess Islamic virtues that entitle a witness to be reliable and credible. According to Section 7 of Qanun-e-Shahadat of 1984 (Amended Law of Evidence):  the competence of a person to testify shall be determined in accordance with the injunctions of Islam as laid down in the holy Koran and Sunnah.Ӕ And Qatl e Amd under Section 299(i) of Pakistan Penal Code means intentionally causing death of a person.

The established law of evidence provides for ocular and circumstantial evidence to prove the commission of an offence whereas under Huddood and Qisas Ordinances the nature of evidence is altogether different. Whereas, the evidence of women and non-Muslims has been rendered at a marginalized status.

The menace of honour killing is a shameful remnant of the mediaeval and patriarchal society and a misconceived notion of individual or family honor has been further legitimized under the Qisas and Diyat law. The perpetrators of the cruelty of the offence of killing their own women folks in the name of karo-kari, kala-kali and sia kari have been able to get themselves free from the clutches of law by pleading for grave and sudden provocation and arranging for blood money. All the three customs have the same meaning in local versions that one who marries against the will of the family elders is a condemned person and thus must be killed to save and restore the family honor. Karo is the condemned man and Kari is the condemned woman by the family or the tribe.

There has been chain of cases in which women exercising right to choose their life partners were killed for not accepting the will of family elders. There are number of cases in which women were tortured to death and such tragic events became high profile cases in national and international media that tarnished the image of the country as an uncivilized society.

In the wake of sharp criticism against the menace of killing women in the name of family honor at internal and external level, a strong debate finally ensued at the floors of the parliament. And resultantly the law was reformed on the offence of murder. The Criminal Law (Amendment) Act 2004, apart from other provisions, introduces amendment to section 299 that relate to offence against human body in the form of new clause 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, siya kari or similar other customs or practices.Ӕ With this amendment the inhuman customs and practices to kill persons in the name of honor have been brought in the net of the offence of murder. It may however be mentioned that the amendment in penal law has brought no change so far as instances of killing in the name of honor continues. 

In most of cases the offenders were not provided deterrent punishments as provided under Qisas law. The imprisonment in some cases was curtailed to five years for murder or culprits were freed for lack of evidence as the standard of evidence provided under the new law of evidence supposedly Islamic was lacking or they were freed for payment of blood money. This law has seriously prejudiced the womens right of life and right of marriage of oneҒs own choice. Our heads hang in shame to recall the case of Salma Bibi. The father of Salma killed her along with her husband Mohammed Saleem and six-month-old daughter. Muhammad Siddique committed this triple cold-blooded murder merely for restoring family honor because Salma had married Muhammad Saleem of her own choice.  Salma had to pay heavy price of her life and life of her dear ones. This case is reported in PLD 2002 Lahore 444 as Muhammed Siddique Vs State. The Shazia Khaskhelis case is another case that hit the pages of international media when Shazia and Muhammad Hassan Solangi having married out of love were tortured to death in a barbaric manner on October 8 2003. It may however be stated that there have been cases of killing women in disguise of family honor for ulterior motives and in most cases were of economic nature.

Young SalmaҒs case speaks volumes for treacherous blackmailing of human relations by the father and the venomous sentiments of avenge for honor killing. The Division Bench judgement in Salmas case (PLD 2002 Lahore 444) exposes the cruel designs in which the triple murder took place and how the victims were trapped. ғ Invitation from an estranged father to his daughter must have been a message of forgiveness, of love and hope and for her credulous husband it must have been a moment of excitement as such message must have ended the long chase and his reactive hide after registration of the Hudood case and above that moment when his marriage was to be accorded recognition by his in laws. An application for compromise was based on the statement of the mother of the deceased Muhammad Saleem who at the time of judgement was present at the CourtԒs direction. On a question by the Court regarding the fact of compromise the mother though nodded in positive but tears in her eyes speaking volumes could not hide the background under which the compromise had been obtained. The Court took a bold step in taking judicial notice of the mothers tears and refused to accept the compromise and dismissed the appeal of the killer father of Salma Bibi. This is a novel case in which the Court did not agree to accord sanction to the compromise.

The fact is that these provisions form part of Personal Law of Muslims, which has been imposed on non-Muslims as well as Public Law. This of course is a blatant violation of the Article 227 (3) of the Constitution that provides that ґ nothing shall effect the personal law of non-Muslim citizens and their status as citizens. The Enforcement of Shariah Act 1991, in Section 3 declares, The Shariah that is to say the Injunctions of Islam as laid in Holy Quran Sunnah, shall be the supreme law of Pakistan.Ӕ And its proviso says, provided that nothing contained herein shall affect the rights of the non-Muslims guaranteed by or under the constitution.Ӕ Whereas section 1 (4) provides, Nothing contained in this Act shall affect the personal laws, religious freedom, traditions, customs and way of life of the non-Muslims.Ӕ

The argument that criminal law is public law hence should be applicable to all citizens is self-defeating and is not tenable as it promotes sectarianism and majoritarianism. The public law is no doubt applicable to all citizens in order to keep the social fabric intact but if it is based on a particular religious creed, it tantamount to state oppression.

The State of Pakistan is a signatory to international conventions including Universal Declaration of Human Rights and Convention on Elimination of Discrimination against Women. These international laws provide international standard of legislation. Whereas, the subject legislation is based on a particular religious creed and philosophy of the majority community which violates the established principles of human rights and norms of crime and punishment.  The todays civilized world has reached at a stage that no State can dare introduce provisions in favor of the institution of slavery because it offends the human conscience developed with the passage of time through the process of human development. Therefore it depends as to how far the social order of a State is influenced with the pace of civilization. They cannot refuse to accept the norms of civilized world merely on the basis of religious personal law and impose it on those who do not belong to it. They become victims of sheer majoritarianism, which is simple sectarian repression that promotes socio-religious intolerance and tears apart the social fabric. Therefore, in any case the Qias and Diyat Ordinance and its related provisions in penal code must not be applicable to non-Muslims, as they do not belong to Islamic Shariah. The women who are almost half of humanity cannot be sidelined any more to protect the patriarchal social setup. The times have changed. Depriving women of their basic rights amounts to arresting the process of development as they prove the best agents for change. Those who are not prepared to provide equal status to their women folks are not only socially backward but have a sick mental out look that do not allow them to come out of the age old male chauvinism syndrome.

Justice Tassadaq Hussain Jilani, who has now been elevated to the Supreme Court of Pakistan, has in his judgement in Salma BibiҒs case (PLD 2002 Lahore 444) held:

In a great majority of cases, behind it at play, is a certain mental outlook, and creed which seek to deprive equal rights to women i.e. inter alia the right to marry or right to divorce which are recognized not only by our religion but have been protected by law and enshrined in the constitution. Such murder, therefore, represent deviant behavior, which are violative of law, negatory of religious tenets and an affront to the society. These crimes have a chain of reactions. They feed and promote the very prejudice, of which they are the outcome, both at conscious and sub-conscious level to the detriment of our enlightened ideological moorings.”

Justice Jilani observed in his judgement, ӓLaw is part of this human odyssey and achievement. Law is dynamic process. It has to be in tune with ever-changing needs and values of a society failing which individuals suffer and social fabric breaks down. The Judge further observed, ԓ The offence which stands proved against the appellant has to have a judicial response, which serves as a deterrent, so that such aberrations are effectively checked. Any other response may amount to appeasement or endorsement. A society which fails to effectively punish such offenders becomes privy to it.

The promoters of such a creed must be reminded that the Holy Quran in Chapter 5 Verse 32 in Surah Al Maida abhors killing of mankind and lays down a cardinal principal. It says, ԓFor that cause we decreed for the children of Israel that whosoever killeth a human being for other than man slaughter or corruption in the earth, it shall be as if he had killed all mankind and whosoever saveth the life of one, it shall be as he had saved the life of all mankind Ŕ.

Law is multi dimensional and is part of the human traverse under taken through passage of various civilizations since times immemorial. Therefore any particular version of law cannot be in isolation of human civilization. Those who take position on amendments in the 1973 constitution based on religion and the statute law enforced in the so-called process of Islamisation of Gen. Zia as divine law are in fact forces of retrogression that retard the process of development. In their claim to possess and hold the only truth, they tend to construct single version of collective identity and thereby impose their authority of majoritarianism. They impose religious creed and socio-political philosophy that was designed to suit a few with vested interest. The sectarian approach is a complete departure from the pluralistic democratic order envisioned by the founders of this State of Pakistan. The State must not scum to the pressure of religious extremist at the cost of life, liberty and dignity of its citizens and must abandon the policy of appeasement with the religious lobby merely to gain political legitimacy. No change in law would ameliorate the lot of women and minorities unless the oppressive social structures are dismantled and radical change is brought about in the prevalent socio-economic and socio-political philosophy of the society. It is a process that has to be initiated at grassroots level to build a civil, pluralistic and democratic order with the engagement of progressive social forces.

Shariah: Injunctions of Islam as laid in the Holy Qoran and Sunnah
Sunnah; The teachings including acts of the Holy Prophet
Tazkia al Shahood: An Islamic mode of inquiry for examining a witness
SCMR: Supreme Court Monthly Review
PLD: Pakistan Legal Decisions
Gen. Zia Gen Zia ul Haq who ruled Pakistan from July 1977 to 1988