August 2016

A false value of honour and the customary domination of women in our society have provoked extreme reaction at times to a woman’s exercise of self-determination or choice of how to live her life. The preservation of these values even at the cost of women’s lives is proudly claimed as the preservation of culture. Incidents of honour killings, ‘cultural’ practices like karo kari, and stove deaths are indicators of the denial of the basic right to life of women in Pakistan.

Women’s right to life, liberty, security and dignity are frequently violated with impunity. Women’s entitlement to receive relief and enjoyment of fundamental rights guaranteed in the Constitution is conditional upon their submission and conformity, not only to what are perceived as religious precepts, but also to social and cultural norms. The recent killing of Qandeel Baloch by her own brother is just one case in point.

The practice of karo kari in Pakistan is well documented, and some incidents have caused public outrage. At the same time it has been justified and condoned, not only by many social actors but also by Pakistani institutions and authorities. Such cases are seldom reported, even fewer are prosecuted and the rate of conviction remains low. For many years, when honour was claimed as a defence for murder of a woman in the family, judicial responses also reflected the social mindset that condoned these violations in the name of preserving some of these false notions of culture and morality.

Before its amendment in 1990, Section 302 of the Pakistan Penal Code (PPC), defining the offence of murder, made an exception in cases where “the offender, while deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation.” In such cases, where prosecution resulted in conviction, the plea of “grave and sudden provocation” was allowed to mitigate the offence of murder and a diminished sentence was justified in many court decisions. It is worth noting that a defence of “grave and sudden provocation” was never a consideration in any murder case where a woman was accused or convicted of killing a male member of her family!

Provisions of the Chapter on Offences Against the Human Body of the PPC were amended in 1990 to introduce the Islamic provisions related to Qisas and Diyat. While the new provisions did not make any concessions for murder committed on “grave and sudden provocation,” it changed the whole concept of the crime of murder as a crime against the state and the society by allowing heirs of the victim to compound the offence by entering into a compromise with the offender either with or without any compensation. This had a particularly pernicious effect on accountability for murder in the name of honour.

In a vast majority of cases of this nature the victim is a woman killed by a member of her own family. The family first conspires to kill her and then to forgive the person who has done the deed. A combined effect of the provisions of the Qisas and Diyat law is the legalisation of impunity for such killings. There are hardly any decisions of the superior courts that have taken notice of this anomaly in the law. On the other hand, a large number of judicial decisions continue to apply the “grave and sudden provocation” exception to award lesser sentences where family honour is claimed as the motive for murder, especially when the offender has killed a woman from his own family.

Some of these provisions were amended in 2004 by the Criminal Law (Amendment) Act that sought to strengthen the law against “honour” killings. Amongst other changes made, the power to compound the offense was taken away from an heir who had committed murder of a female relative. A more strict scrutiny of the process of compromise was imposed on the court and it was empowered to award a suitable punishment despite waiver of Qisas. These amendments, however, did not affect the legal capacity of other heirs to compound the offence and, therefore, proved to be insufficient for removing impunity for killings in the name of honour. There was also the more complex issue of determining at what stage of trial could the court define the offence as that of “honour” killing, as motive would only be clear after evidence had been adduced to that effect. The provision of the law that allows the waiver of Qisas at any stage has become a real obstacle to any effective change in the treatment of such crimes by the courts.

Analysis of case law in the context of honour killings, both before and after the enforcement of the Qisas and Diyat Law, shows that what courts have found to be “grave provocation” is an astonishingly broad category. In the case of Muhammed Saleh v. The State (1965), while reducing the sentence imposed on a brother who had murdered his sister, the Supreme Court had observed:

“Under village conditions and even in many other parts of society in this country, the rights of the male member of the family to control the actions of their womenfolk, particularly in the field of sexual relations, is fully recognized and forcefully maintained.”

The reduction in sentences has been extended even to circumstances where there has been no sexual indiscretion. In the case of Maula Bux v. The State (1983), the accused had killed his fiancee because her family was objecting to an early marriage. His death sentence was reduced to life imprisonment, as it was found that this constituted an injury to the honour of the accused and therefore a “grave and sudden provocation.”

In the case of Riasat Ali v. The State (1983), the murdered wife had left the accused and returned to her family because he beat her. The court found that the woman’s complaints that she was married to an undesirable man, made on the occasion of an attempt at reconciliation between the families, constituted “grave and sudden provocation.”

In the case of Sardar Muhammad v. The State (1997), the Lahore High Court went so far as to acquit an accused, holding that where there was no doubt that the accused had caught his daughter and the other victim in the act of committing zina,

“Accused in such a situation on having been overpowered by the wave of his family honour and ghairat had killed both the deceased and had committed no offense liable to punishment.”

In some cases courts have based their decision on hypothesis rather than on facts, while applying the notion of mitigating circumstances. In Saifullah v. The State (1999), while converting the sentence of death to imprisonment for life, the Court observed,

“Accused appeared frustrated due to the desertion of his deceased wife and he, having become revengeful and losing balance, had probably caused injuries to the deceased upon her refusal to accept his demand of joining him…”

The Court continued to observe that the “possibility of the deceased having behaved aggressively with the accused also could not be ruled out.”

In a 1991 decision the Supreme Court stated unequivocally that, “the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such cases.” However, ten years later, in a 2001 case, the Supreme Court viewed such cases in a completely different light. In the case of Muhammad Akram Khan v. The State the Court has held honour killings to be a violation of the fundamental right to life. The judgment says,

“Nobody had any right nor could anybody be allowed to take law in his own hands to take the life of anyone in the name of ghairat… Neither the law nor the religion permitted so-called honour killing which amounted to Qatal-e-Amd simpliciter … Such iniquitious and vile act was violative of the Fundamental Right as enshrined in Article 9 of the Constitution which provided that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect was void under Article 8(1) of the Constitution.”

The words of the 2001 Supreme Court judgment were echoed in several judgments of the superior courts in more recent years. In its judgement in the case of Khadim Hussain v. The State (2012), the Balochistan High Court, while refusing bail in a case of alleged honour killing, reproduced the very words that the Supreme Court had used, and added that,

“Killing of women on the pretext of siyahkari was un-Islamic, illegal, unconstitutional and an offense against the state and society”

In a 2010 decision of the Sindh High Court (Diamuddin v. The State), while rejecting the bail petition of the accused who had murdered a woman of their own family because she had married of her own choice, the Court observed,

“Karo kari was a crime which was a blot on the fair name of Sindh, a land of Sufis and saints…. Present was a case where conspiracy was floating on the surface.”

Unfortunately, there are other judgments of our courts that have not shown the same aversion to this vile practice and have continued to use the “grave and sudden provocation” exception clause in PPC Section 302 for mitigating the offence of murder and imposing lesser punishments, even subsequent to the Supreme Court judgment, by distinguishing the circumstances of the cases before them. As a result, despite some judgments in which the practice of honour killings has been deprecated, the ratio decendi of judgments on this issue does not indicate any proactive role of the judiciary in highlighting the seriously negative implications of the Qisas and Diyat provisions of the Penal Code for women, and the impunity with which honour killings can be committed.

It is in the shadow of these attitudes and beliefs that women are striving for a more egalitarian family structure where their rights are at par with men. Sanctifying the family, without creating de facto equality between men and women, or establishing a more egalitarian and just foundation for relationships within it, has resulted in subjugating the interests and rights of women to the ideology of preserving the family. The presumption that the family is benign for all its members, has led to ignoring the fact that it has become the locus of the violation of human rights of women. The hopelessness is particularly acute when the forums of justice do not speak with one voice to clarify the constitutional protections against violence, oppression and discrimination.

When blatant breach of legal principles are given the protection of law, it is the Courts that have the primary responsibility to expose these aberrations and to ensure not only equality before the law but also the equal protection of the law.

The women’s rights movement in Pakistan has been very vocal in its criticism of the law and holds the existing provisions primarily responsible for the increase in the incidence of honour killings in all parts of the country. Their advocacy on the practice may have influenced judicial thinking regarding the practice, but the fact that the law itself provides impetus to such killings has yet to be noticed by the courts in Pakistan.

Hina Jilani is a lawyer practicing in the Supreme Court of Pakistan. She has contributed to law reform initiatives to promote human rights and the enforcement of fundamental rights in Pakistan. She served as the Special Representative of the UN Secretary General on Human Rights Defenders and is a member of the Elders, a group of global independent leaders established by Nelson Mandela to work for peace and human rights.