By Hina Hafeezullah Ishaq
The defence relies on the plea of sudden and grave provocation in cases of honour offences and pleads for a lesser sentence on mitigating circumstances
The Rome Statute of the International Criminal Court (RSICC) defines crimes against humanity as a category of various offences that are committed as part of a widespread or systematic attack directed against any civilian population. With knowledge of the attack, including but not limited to, murder, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, other forms of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health are included.
It has been over six years since the legislature amended various sections in the Pakistan Penal Code and the Criminal Procedure Code through the Criminal Amendment Act 2005. It included provisions pertaining to offences “committed in the name or on the pretext of honour”, which means “an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs”.
According to data collected by the Aurat Foundation, 604 cases of honour killings were reported in 2009: 245 Punjab, 284 Sindh, 14 KPK, 59 Balochistan, 2 Islamabad, a steep rise when compared to 475 reported in 2008. The HRCP reported that at least 675 Pakistani females, 71 under 18, were murdered during 2011 for allegedly defaming their family’s honour.
Contrary to popular belief, honour crimes in their various forms are not only indigenous to Pakistan or to Muslims. The UK police recorded 2,823 so-called honour attacks in 2010. In 2010, a study conducted in India reported 1,000 incidents of honour killings yearly. According to a report published by the Turkish National Assembly on violence against women and children, 1,091 honour crimes were committed in Turkey between 2000-05. It also stated that suicides should be included within the framework of honour killings as in most cases either “the woman in question is forced to kill herself or she may kill herself knowing what awaits her. The whole question of shame and threats within the community ensures that no one is willing to be a witness and the deaths are usually explained and registered as either accidental or as suicide.”
Honour killing carries the penalty of death as qisas or in the alternative death or imprisonment for life as tazir; an attempt to commit one carries a mandatory minimum of five years extending to ten years.
Qisas means punishment by causing similar hurt to the convict as he caused the victim, or by causing his death if he committed qatl-i-amd, in exercise of the right of the victim or a wali. Tazir are a category of punishments that are awarded by the court in the absence of proof required for qisas: confession of the accused or testimony of tazkiyah-al-shahood.
The Quran says: “Whoever kills a believer intentionally, their reward will be Hell, to abide therein forever, and the wrath and the curse of Allah are upon them, and a dreadful penalty is prepared for them” (Chapter 4, Verse 93). The defence relies on the plea of sudden and grave provocation in cases of honour offences and pleads for a lesser sentence on mitigating circumstances. It has been held in various judgements that murders committed on account of ghairat (honour) are undeserving of this benefit for being mostly premeditated murders; unfortunately, there are others that allow for honour killings to be a mitigating circumstance. In view of the conflicting views of the high courts, the buck stops at the Supreme Court as a defining judgement on this issue is awaited.
The problem with honour killing is that it is a compoundable offence. Since in most cases the offender is a family member, the walis of the victim forgive him, compounding the offence. Even if the court disallows it, the witnesses either deny seeing the offence or simply retreat from their earlier statements, leaving the courts with no choice but to acquit the accused for lack of evidence. It is imperative that the police investigation system be improved, with particular emphasis on educated and properly trained investigators. Forensic and expert evidence must be relied on. That would increase the conviction rate even in the absence of family members.
Women are killed on account of honour, not only for allegedly having affairs, but also for exercising a right to choose their partner, an inalienable right guaranteed by Islam and the law. There is an atmosphere of intense repression, fear and suffocation where the fundamental rights are unavailable, with no concept of ever having access to them. Couples are brutally killed by vengeful family members, after years of being married. As I wrote once, it is a sub-culture within our relatively moderate culture, where women are treated as chattels, denied access to education, are raised to serve the fancies and whims of the men and where their attempts to exercise any of their basic religious or legal rights result in their victimisation.
In a sizeable majority of cases, the ‘honour’ that is so dishonoured, is actually a guise for grabbing property. It is rare for females to have inherited property; to have them removed from the scene on account of ghairat provides the accused free access to property. However, according to the principles of Islamic law, a person who commits homicide is disentitled from inheriting the property of the victim, but this principle is not applicable if the victim has yet to inherit her share of the property, which simply means: lesser the number of co-sharers, more the share.
The Quran terms murder of one person equivalent to the slaying of the entire humanity. Honour-based killings and offences fall within the spirit of the definition, though inapplicable, given in RSICC. Let us rise above our petty differences and declare such atrocious and barbaric events, which cause great suffering, both physically and mentally, to be a crime against humanity, by making honour-based offences un-compoundable.
The writer is an advocate of the High Court
Source: The Daily Times, Lahore