Oath and Law

 

Why Oath?

            Justice means fair and moral treatment. In legal semantics, precisely, it means the legal process of judging and punishing people. Then comes the administration of justice. Salmond, a jurist, said that the Administration of Justice implies the maintenance of rights within a political community through the physical force of the state. The modern state chiefly consists of three pillars: Legislation, Executive, and Judiciary. The administration of justice is the work of the third one. However, the power to do justice is entrusted from the first one. And the middle one is the enforcement agency.

            In the administration of justice, witnesses play a decisive role. Their testimony is taken as per the procedure provided by the law. And thereafter, the process of evaluation is started. But the decision is quite impossible without evidence. And evidence oral or documentary is given by a witness; who is human. Therefore, being intrinsically biased in its nature, their depositions are controlled by oaths.

            The procedure of oath-taking is very simple. As per the Oaths Act, 1873 read with Chapter 12 Volume IV of the High Court Rules and Orders, before a witness is called on to give evidence he should be made to stand in front of the judge who himself will administer the oath. The witness is required to repeat the words of oath after the judge in a clear voice. And in the administration of justice, this is mandatory. Evidence without oath is inadmissible. The reason is quite logical: stopping him to tell a lie. And if he is a Muslim, he would naturally fear Allah from telling a lie after taking oath in His name. The education has notwithstanding anything to do with this. Being human is sufficient to understand the value of oath.   

            In courts, when an allegation is put forth by someone, he has to prove the same. Allegations may be true or false, but being a practicing advocate what I see quotidian is that witnesses seldom are true. One of the leading reasons is that system requires it; otherwise, it is out of the question that delinquents could be brought to justice. For instance, in a criminal case, parties mostly are at daggers drawn with each other, they mostly know who commits the crime, but they are not the witnesses; so, they have to introduce false witnesses through the complicity of police officers who investigate the case. Is it right to do so? Does Islam sanction it?

            In the Holy Quran, Allah SWT says that “Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths ...”. And in Islam, there is no oath except that of Allah SWT. As the beloved Holy Prophet (PBUH) says, reported in Sahi-Muslim, Book 15, Hadith No 4038: “Abdullah (b. Umar) reported that Allah's Messenger (PBUH) found, Umar b. al-Khattab amongst the riders and he was taking oath by his father Allah's Messenger (PBUH) called them (saying); Our Allah, the Exalted and Majestic, has forbidden you that you take an oath by your father. He who bag to take an oath, he must take it by Allah or keep quiet”. And as per Sahi-Muslim, Hadith No 4065: “Abu Huraira reported that Allah's Messenger (PBUH) as saying: An oath is to be interpreted according to the intention of the one who takes it”.

            Nevertheless, once I heard a police officer, who appeared in a narcotics case as a witness, saying that this oath does not mean the oath which we take in Islam. The oath in a court of law is a different one. I do not understand his concept of oath in a court and out of court. Anyhow, the Holy Quran guides us, in this regard, in Surah Al Maidah, as narrated above, that “Allah will not take you to task for that which is inadvertent in your oaths”. But the procedure provided by the Oaths Act, 1873 makes it obligatory upon the judge to ensure that the witness is not deposing without understanding the meaning of the oath. If he is incapable to understand the meaning of the oath, he is not a competent witness.

            Anyhow, Islam being the religion of prosperity provides an expiation for the one who inadvertently took an oath, and for the one who considers it better to leave the oath if it outweighs in harm than the betterment. As it has been commanded in Surah Al Maidah verse No. 89 that “… So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] then a fast of three days [is required]”.

            Be that as it may, this is not the ruling for the intentional false oath. False oath belongs to the category of greater sins. It is provided in Surah Al-i-Imran verse No. 77 “(As for) those who take a small price for the covenant of Allah and their own oaths, surely they shall have no portion in the hereafter, and Allah will not speak to them, nor will He look upon them on the Day of Resurrection nor will He purify them, and they shall have a painful chastisement”.

In this respect, Muslim Jurists often quotes an interesting incident, provided in Tafsir al-Mizan from the book Amali. Imrul Qays and another man had a dispute regarding some property. Both of them came to the Holy Prophet (PBUH). He (PBUH) asked Imrul Qays, “Can you provide two just witnesses to substantiate your claim?” He replied, “No!” The Holy Prophet (PBUH) said, “Then your opponent should take an oath.” Imrul Qays said, “But what if he swears falsely and acquires my property?” The Holy Prophet (PBUH) replied, “If he swears falsely he shall be included among people who will not be eligible for Divine Mercy on the Day of Judgment and Allah shall not purify him of sins. There would be a dreadful punishment for such a man!”. Consequently, when the litigant heard these statements he was filled with horror and gave up his false claim to the property of Imrul Qays.

            Therefore, it is high time for the authorities, legislatures, judges, executives, lawyers, Ulamas, teachers, everyone who has the knowledge and understandings of the basics of Islam must play his active role in the eradication of this false-oath-taking phenomenon that it is not the one that is punishable. What is often seen in court-rooms is that people, even judges, and lawyers, consider that oath after doing ablution, and by putting hands on Holy Quran and thereafter by swearing in the name of Allah Almighty is the one punishable. And the oath under the Oaths Act, 1873 is the invention of Colonial masters, therefore, it is not a sin to take it repeatedly with impunity falsely. If authorities could not change the concept of people, then remove the oath from the procedural law, and let the system work without it. As it is of no use if the one taking it does not understand it.

 

 

 

    

Coronavirus and Fear

Right to be Feared

Fear, a word. Currently, it is the most used word overall in the world. Everyone knows why: because of the fear of being infected from Novel Coronavirus.

However, in Pakistan, due to our weird mores and strange culture, our people are confused with the word fear. Some said never fear. Some said Muslims have nothing to do with fear. Some said Pakistanis are a brave nation; they never fear. I have listened to them all. Wherever you go, these two words: Coronavirus and Fear is part and parcel of every discussion. I told them, there does exist a right to fear. Indeed, there exists a right to fear God.

Rights and liabilities are two sides of the same coin. Wherever there is a right, there is a liability. When I told my colleagues that there is a right to fear. All of their self-made theological and brave philosophies come directly in contradistinction to mine. Because it puts a liability onto humanity to fear.

Before answering the questions are: What is fear? Why it exists? What is its purpose? Is it bad to fear? Or is it good not to fear? In my research, I open the Quran to find answers.

Here is it what briefly I have found.

The dictionary defines fear as an “ unpleasant emotion caused by the threat of danger, pain, or harm”. One of the purposes of fear is survival. It is natural. By natural means, it is too a creation of God.

When God said: “That is Allah, your Lord; there is no deity except Him, the Creator of all things, so worship Him. And He is Disposer of all things”. (Al-Quran: Surah #6, Ayat #102). Thus, He creates fear as well. As he says “and He creates that which you do not know” (Al-Quran: Surah #16 Ayat #8), therefore, every human emotion including the fear also has been created by Him Almighty with a certain purpose. Here you will find the purpose.

He orders humanity to fear at many places in the Quran: to fear from hell (Al-Quran: Surah #2, Ayat #24) (Al-Quran: Surah #3, Ayat #131); to fear from judgment day (Al-Quran: Surah #2, Ayat #48, 281); and above all to fear from Him Almighty (Al-Quran: Surah #2, Ayat #41, 74, 105, 196, 197, 203, 278)

The reasons to fear are as follows:

Fear Him because he has a right to be feared: “O you who have believed, fear Allah as He should be feared and do not die except as Muslims” (Al-Quran: Surah #3, Ayat #102)

Fear Him because He said: “And fear Allah and know that Allah is with those who fear Him” (Al-Quran: Surah #2, Ayat #194).

Fear Him because there is a reward to fear from Him: “but those who fear Allah are above them on the Day of Resurrection” (Al-Quran: Surah #6, Ayat #212)

Fear Him so that you may be successful: “But fear Allah that you may be successful” (Al-Quran: Surah #3, Ayat #103)

Above all, Fear Him because He said loves God-fearer: “But yes, whoever fulfills his commitment and fears Allah; then indeed, Allah loves those who fear Him”. (Al-Quran: Surah #3, Ayat #76)

So, whether should we fear from pandemic caused by Novel Coronavirus. No, certainly not. Rather it is a testing period for us. Be patient and fear from Him who creates Novel Coronavirus.

 In this regard, as Almighty Allah said: “and We will surely test you with something of fear and hunger and a loss of wealth and lives and fruits, but give good tidings to the patient”. (Al-Quran: Surah #2, Ayat #155)

So, what should we do?

In these testing times, we have two recourse to adopt: one, patience and second, fear of Allah.

As it is said in Quran: “You will surely be tested in your possessions and in yourselves… but if you are patient and fear Allah; indeed, that is of the matters (worthy) of determination. (Al-Quran: Surah #3, Ayat #186)  

The next question is: What will be the result if we adopt these two measures?

The answer is: and those who fear Him here, at the end “There will be no fear concerning them, nor they will grieve” (Al-Quran: Surah #6, Ayat #262, 274, 277)

Here, one may raise the question, how do we know that Novel Coronavirus is a test for us?

Hazrat Ali (R.A) said in this regard: “the difficulty which leads you away from God is a torment, and the difficulty which brings you near to God is a test”

So, take the testing times in a positive sense, as a means of nearness to God, and reform yourselves: “Oh you who have believed, fear Allah and seek the means (of nearness) to Him and strive in His cause that you may succeded” (Al-Quran: Surah #5, Ayat #35)   

In a nutshell, it is time not to fear from any virus or from being infected. As God said: “that is only Satan who frightens (you) of his supporters. So fear them not, but fear Me. If you are believers. (Al-Quran: Surah #3, Ayat #175). So, it is time to fear Him. It is time to fear the Creator of all things. The creator of Novel Coronavirus as well.

Lastly, it is time to quarantine ourselves from all evils and bad deeds. It is time to isolate our hearts from jealousy, greed, grudge, ill-will, and every evil thought. it is time to reform ourselves, as it is written in the Holy Quran “…then, whoever fears Allah and reforms; there will be no fear concerning them, nor will they grieve” (Al-Quran: Surah #7, Ayat #35). And if we fear from Him right now then surely He will save us; since He promised to do so: “Unquestionably, (for) the allies (friends) of Allah there will be no fear concerning them, nor will they grieve” (Al-Quran: Surah #10, Ayat #62). So, let's do friendship with Him; remember, He loves us seventy times more than our mothers do. Fear Him and pray Him.

 

Courtrooms

 

Shootings inside courtrooms

            Courtrooms are not safe anymore in Pakistan. Legally speaking, a court is a place where trials are conducted and legal cases are decided in accordance with the law. Persons facing trials, or litigants claiming rights, come to court with a belief that it is the safest place where their rights will be protected, determined, and respected; they are under the protection of the law; they will get justice. However, with an increase in killings, shootings, fighting, and squabbling inside, outside, or even near the courtrooms, the trust of citizens upon which the premises of justice stands is started to be diminishing. Therefore, it is high time to make sure that the courtrooms are the safest place to get justice.

            In Pakistan, work in courts have been divided as per subjects: civil, criminal, family, tax, banking, service matters, etc. Likewise, in the higher judiciary, work is also distributed amongst benches. It is becoming common day by day to watch the situation of chaos inside, outside, or near the courtrooms. What to speak of district judiciary, even the high judiciary is no exception to it.

            Civil and criminal are two major divisions of the court work. In civil matters, often quarrel amongst litigants ends with police intervention, even though late, or after catching TV channel cameras, etc. but never ends with the death of anyone, because only future or financial interests are involved. However, in criminal matters, the situation is entirely different, because the loss of life is involved.

            In criminal litigation, especially murder trials, litigants come to court not to get justice but to take revenge. It is not the hope of justice that is the leading factor, under the present circumstances of the criminal administration of justice in Pakistan, rather it is the rage and revenge that urges litigants involved in murder trials to come to court; many a time, only to get a chance to kill the accused or to injure him or his family members inside, outside, or near the courtrooms during trial hearings.

            In recent days, only in Punjab, it can be seen that the situation inside criminal trial courts is very grim. Moreover, as per news and circulated videos on social media, a man wearing the uniform of an advocate shot down his target during court proceedings in the presence of police. Everyone was unsafe: the judge, the prosecutor, the stenographer, the reader of the court, the police officials, the clerks, the lawyers.

            This is not unpreventable, rather this can be avoided with the use of modern technology. Our criminal laws are as old as one can think i.e. 1898 Procedure, 1908 Penal Code. When the light was rarely available. When the Mobile Phones are unimaginable. When the Internet is beyond thought. When for summons we need many days and a person for this job only. Whereas, as per research, in 1973, the first call from a hand-held device was made with a phone-shaped device of Motorola company. And January 1, 1983, is considered the official birthday of the Internet.          

            After that life has been changed. Today the world is on one click. This is the age of light, speed, and the internet. Sadly, still today we are roaming around the archaic age laws made by colonial masters not to favour the citizens of the subcontinent rather rule on them. Resultantly, we are still losing the lives inside, outside, or near the courtrooms: for what, justice?

            Anyhow, by using modern devices not only this surely can be prevented but also the state expenses can be minimized of court proceedings. The summoning and attendance of accused persons either on bail or under custody should be made possible through the use of modern devices that must be installed inside each criminal trial courtroom. Although the colonial masters’ designed laws fixed the recording of evidence in the presence of the accused; however, it does not debar the use of modern devices for achieving the ends of justice.

            In a recent most case titled Muhammad Israr versus the State, the honourable Peshawar High Court has provided detailed guidelines that must be followed by trial courts in recording evidence through the use of modern devices which can be taken as the first drop of rain. Likewise, the Supreme Court of Pakistan also time and again has highlighted the use of modern devices in recording the evidence.

            Judges should not act as spectators, and courts should not act as post offices. It has often been seen that accused persons facing trial moved applications that their lives are under threat, and judges just pass stereotypes orders for the police officials: mostly to the Station House Officer of the police station to ensure safety, who in compliance increase the quantity of deputed officers. Amongst those mostly remained on various raids, or for whole night security and are too much tired to actively obey the orders; so, they left things in the hands of fate.   

            What should be done is that whenever any witness or accused, or any complainant, or even anyone attending court proceedings moved an application of a life threat, it should not be considered lightly, rather his attendance must forthwith be shifted and be ensured through the use of modern devices: one TV, Internet device, and one operator inside the courtroom; one TV, Internet device, and one operator inside the police station in case of persons other than accused or accused on bail, or inside the jail premises in case of accused facing trials. That police station or jail then simply will be connected through the internet and court proceedings can be conducted safely.

            This is not rocket science, this is very simple, a child of today’s age can do it. So, to conclude in the words of Stephen Hawking that “we are all connected like neurons in a giant brain”, it is the utmost requirement of the time that safety of lives be ensured inside the courtrooms through the use of modern technology and use of modern devices which is available in the hands of more than 180 million citizens of Pakistan.

 

Bar Associations’ Elections

 

Bar Associations’ Elections: Arousing from slumber

Each year the initial days of January are fixed for the local Bar Associations’ elections. More or less: slogans and banners, heated campaigns and fervor rallies, presentations of motos and group meetings, a lot of expenses, usage, and wastage of money, politics, and hypocrisy, and lastly the indispensable item ‘food’—a lot of food—are essential elements of Bar’s elections. There are some positive and negative aspects with regard to the Bar Associations’ elections.  

Before to discuss these aspects, it is pertinent to briefly introduce Bar Councils and Bar Associations. The Legal Practitioner and Bar Council Act, 1973 deals with it. The Bar Councils are autonomous elected institutions comprising of legal practitioners of respective bars. Amongst them, the Pakistan Bar Council is the supreme body; and then comes the provincial bar councils of each province that are inferior to it.

Similarly, the Supreme Court Bar Association of Pakistan is the supreme elected body of the advocates of the Supreme Court. Next in number are the respective provincial Bar Associations. The last in number—although inferior to all, but the most influential body of legal practitioners are the local or district Bar Associations.

The District Bar Associations (DBA) are the governing bodies of legal practitioners at the district level. The main powers and functions are, held and controlled, by the president, vice president, and secretary—rest are although elected simultaneously during main elections, yet devoid of any functions and powers, e.g. finance secretary, library secretary, and executive members, etc. However, ironically each is happy to be elected.

There are many positive and constructive aspects of DBA’s elections. Foremost is the protection of the rights and welfare of legal practitioners, through the provision of essential facilities of life to them at district bars, such as neat and clean environment, pure water, updated library, walkable roads and streets for pedestrians in and around the courts’ premises. It also includes registration of legal practitioners under the Legal Practitioner and Bar Council rules, 1976. Moreover, the collection and disbursement of funds, incomes from domestic business in bars—and above all the construction of offices for upcoming lawyers are the chief functions of DBA. In other words, each local bar has its own local issues and problems; and these associations are being given the mandate to solve them.

Nonetheless, the DBA’s elections also have some adverse aspects, that need to be highlighted. The top of them is the misuse of money. At my DBA (City Sheikhupura), an estimated more than two crore rupees, over merely fifteen to sixteen hundred lawyers, is the normal expense of elections. Sometimes, the figure crossed three crore rupees—an average of twenty thousand rupees per lawyer. Although claimed as the most educated and intellectual class of society, the fifteen hundred lawyers eat in the shape of food half of this figure at lunches and dinners arranged for them. And the rest of half as a bribe to vote. (None of a single penny is used on library and on books—everything is just on food and bribery)

Here one must raise his eyebrow on the question: how can one earn back this huge sum of money in a short span of one year from cases? Behold, they earn it. The evil gives birth to evil. And it is absurd to think, one is so generous onto lawyers to spend three crores merely on their food and leisure. Obviously, one spends to earn. And how they earn; it is a mystery. An unsolvable mystery.

Moreover, the hypocrisy—that never suits to a highly qualified person—is another deplorable aspect of DBA’s elections. One who promises to vote seldom he votes as per his promise. This is a routine matter in elections. The groups (it mostly comprises on one senior most lawyer as a head and juniors ones as a herd) often bargain at elections’ night. The trade their votes in considerations of votes for their respective candidates. This is known as the surprise factor, and the night is called a Moon-night.

Furthermore, ‘the true spirit of democracy’ and ‘continuance of democracy’ are practically alien words for DBA’s elections. Each vote is influenced; the more appropriate word is undue-influenced vote. A young lawyer has no right to discretion, to choose, to think, to argue, to present his issues; in fact, he has no place in choosing, thinking, arguing, except to put the stamp and make a pic of it in his mobile phone as evidence of his loyalty to his senior. Otherwise, your loyalty is at stake. It means your future. (one may disagree, yet it is true)

Another illegality that is frequently being ignored at DBA’s elections by the Provincial Bar Councils is the votes of non-practitioners. Legally only the practicing advocate, who is not an employee of any other organization, is entitled to vote. Yet what is being happened, it is adverse to this rule. Many non-practitioners—almost half of the total of each local bar—are employees or are having their own businesses, despite that they vote in each year’s elections. This is where the bribe-money is used, to fetch the voter. Food and expenses gifts through their known sources are sent to them. And on the election day, pick and drop services from the candidates is provided to each one of them. One must search ‘democracy’ here in this process; one will surely fail to find it here.

In consequence, one finds adverse to one’s expectations from a highly qualified class of society. As recently, the world has already witnessed the despicable face of lawyers at Punjab Cardiology’s unfortunate incident. The reason is simple and clear. One who does not have three crores extra to spend with courage that if one loses, one will not have any effect of it. Yet truth is that a normal legal practitioner at local level Bar would scarcely have such huge extra sum to bet. Thus, good practitioners left to think about being elected and work for the welfare of lawyers. Their space is then filled by mafias; because there is nothing difficult to pass an LL.B. degree and become a lawyer.

It is high time that we lawyers let not the grass grow anymore under our feet, and take strict action in order to safeguard our own future and rights. Let us not be a herd anymore. Let impedes the entrance of mafia at our home. Let us not be used and misused anymore. Because these elections and fairly elected bodies are the only possible way to make things right; then let us first undo our own elections’ wrongs. Let us have a true, free, and democratic elections at our local Bars. Arouse from slumber, fellow lawyers.

 

Access to Internet

Access to Internet: Limitation vs Human Rights in the context of Fifth-Generation Warfare

         In the modern age, access to the internet is widely regarded as an essential tool for communication, education, and economic participation. There is also an argument to give it a status of human right. However, in the context of fifth-generation warfare, there is a growing debate about whether limiting internet access is necessary for national security or whether it undermines fundamental human rights. 

            Firstly, it is pertinent to explain that the Fifth-generation warfare is a new form of conflict that is characterized by the use of technology, misinformation, and psychological operations to achieve political objectives. This type of warfare is asymmetrical and non-linear, and it challenges traditional notions of warfare and national security. One of the key features of fifth-generation warfare is the use of the internet and social media to spread propaganda and disinformation, and the ultimate target is the uneducated young generation, who has a little knowledge regarding the use and misuse of modern social media technology. They just use it.

            However, proponents of limiting access to internet in the context of fifth-generation warfare argue that it is necessary to prevent the spread of harmful information and propaganda that can be used to incite violence and promote extremist ideologies. They argue that by limiting internet access, governments can better control the flow of information and prevent the spread of harmful content. Furthermore, the internet limitations can be implemented in a way that minimizes the impact on individual freedoms and that it is necessary to protect national security in the face of new technological and information-based threats.

            On the other hand, opponents of limiting access to internet in the context of fifth-generation warfare argue that it undermines fundamental human rights, including freedom of speech, access to information, and privacy. They argue that internet access is a basic human right that should not be restricted except in cases of clear and present danger. They further argue that internet limitations are often implemented in a way that disproportionately affects marginalized communities and that it can lead to the suppression of dissent and political opposition.

            Notwithstanding, from a legal perspective, the question of whether internet access is a fundamental human right is complex and has not been fully resolved. While some argue that access to the internet is essential for exercising basic human rights such as freedom of expression, access to information, privacy, and the right to participate in cultural and political life, others argue that it is not a fundamental right in the same sense as, for example, the right to life, liberty, and security of person. Moreover, some countries have recognized access to internet as a fundamental right, while others have not. For example, in 2016, the United Nations Human Rights Council passed a non-binding resolution recognizing the importance of internet access for the exercise of human rights and calling on states to promote and facilitate universal access to the internet. In 2021, the European Union recognized access to affordable high-quality internet as a fundamental right.

            Additionally, proponents argue that access to the internet is necessary for individuals to exercise other fundamental human rights, such as the right to education, the right to work, and the right to health. In today's digital age, many essential services are delivered online, and without access to the internet, individuals may be unable to access these services or pursue educational and employment opportunities. Besides, it also promotes equality and social inclusion. In many parts of the world, access to the internet is limited to certain segments of the population, creating a digital divide that can exacerbate social and economic inequalities. Recognizing access to the internet as a fundamental human right would help to ensure that everyone has equal access to this essential tool, regardless of their background or socio-economic status.

            However, there are also compelling arguments against such recognition. One argument against recognizing internet access as a fundamental human right is that it is not an essential tool for exercising basic human rights. While the internet may facilitate the exercise of certain rights, such as freedom of expression and access to information, these rights can still be exercised without access to the internet. Recognition of internet access as a fundamental human right would be impractical and unenforceable. Unlike other fundamental human rights, such as the right to life and liberty, access to the internet could not be considered an absolute right, and there are practical and legal limitations to providing universal access to the internet. Such recognition could place an undue burden on governments and private entities, who would be responsible for providing and maintaining access to the internet.

            Despite that there are several international agreements that recognize the importance of internet access and the right to freedom of expression, for example, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Human Rights Council have all recognized the importance of freedom of expression and access to information, yet it could not be given a status of absolute right in the context of fifth-generation warfare.

            The use of technology and social media in warfare raises questions about the ethical use of technology and the responsibility of governments to protect individual rights. In this context what is necessary is to balance the need for national security with the protection of human rights, including the right to access information and internet.

            In conclusion, it is evident that the question of whether to restrict internet access in the context of fifth-generation warfare demands careful consideration, as it involves complex and multifaceted legal issues. While proponents may assert that limiting internet access is necessary to prevent the dissemination of harmful information, opponents contend that it fundamentally undermines fundamental human rights. From a legal perspective, it is recognized that internet access and freedom of expression are essential components of modern society. However, the question of whether access to the internet is a fundamental human right is a matter that requires further elucidation. Ultimately, it is incumbent upon the state to strike a balance between the imperative of national security and the protection of individual rights. Any measures restricting internet access must be implemented in a manner that is respectful of fundamental human rights, and in compliance with international human rights norms and standards.

            In the last, to maintain a balance between access to the internet and the prevention of fifth-generation warfare (5GW) strikes, Pakistan could take several measures, including: Developing a comprehensive legal framework that strikes a balance between the need for national security and the protection of individual rights, including the right to access the internet; Strengthening cybersecurity by establishing cybersecurity centers and the deployment of advanced threat detection systems; Promoting digital literacy and awareness of online threats among the general public, especially the young ones. Moreover, authorities could also take measures to combat disinformation through the establishment of media literacy initiatives and fact-checking mechanisms and could promote responsible online behavior among its citizens, including through the development of guidelines and codes of conduct for internet users. In short, by adopting a multifaceted approach that encompasses legal, technological, educational, and international cooperation measures, Pakistan can minimize the risks of 5GW attacks while preserving the fundamental human right of access to the internet.

Necrophilia

 

Law and Necrophilia in Pakistan

Lois McMaster Bujold once said, “The dead cannot cry out for justice, it is the duty of the living to do so for them.” Although Pakistan has a written constitution and plentiful penal laws covering various aspects of crime yet penal laws are silent in specifically dealing with necrophilia.    

Necrophilia is derived from the Greek word nekros means corpse and philia shows love. Generally, sexual intercourse with corpses or sexual attraction toward a dead body is known as necrophilia. It is a paraphilia whereby the perpetrator gets sexual pleasure in having sex with the dead body. A necrophiliac is a person who voluntarily indulges in such acts which are generally motivated by sexual desires. It is a sick abnormal fascination with the dead; or more particularly, an erotic attraction to corpses. Research says it is a psychosexual disorder.  

Researchers also associate it with types of paraphilias, such as sadism (sexual pleasure by inflicting pain on others), cannibalism (eating the flesh of one’s species), vampirism (drinking blood from a person or animal), necrophagia (eating the flesh of the dead), necropedophilia (sexual attraction to the corpses of children), and necrozoophilia (sexual attraction to the corpses of or killing of animals).

Incident of necrophilia is increasing in Pakistan. It is an appalling, outrageous, abhorrent and disgraceful act not only for the victim/corpse or his/her family but also for the society at large. The recent incident was reported in a Village, Chak Kamala, Gujrat, where reportedly some unknown men dug out the corpse of a teenage girl and raped it. On August 15, 2021, it was reported that some unknown men dug out the corpse of a freshly-buried teenage girl and raped it in Thatta. On March 01, 2020, as per a newspaper report, a man was arrested for rape with women's bodies at Joiya Sharif village of Okara, etc.

Pakistan has no specific penal provision or special law dealing with necrophilia or types of it. Currently, section 297 of the Pakistan Penal Code, available in Chapter XV of Offences Relating to Religion, is the apparently applicable penal provision in our country. The provision provides that “whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. A prudent mind does not accept that for such a heinous offence one-year punishment is provided in the law.

However, another penal provision also seems to be applicable is section 377 of the Pakistan Penal Code, 1860. It provides that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine”. But the application of this provision in the case of necrophilia can best be answered by the judicial interpretation, which is yet not available in our country.    

 The dearth of special legislation is also present in other countries. India also applies above mentioned penal provisions in dealing with necrophilia cases. However, in the United States, though federal legislation does not deal with it specifically yet few states have specifically used the term Necrophilia in their particular legislations, and for which sentences range from one year (in several states) to fifteen years (in Georgia) and twenty years (in Massachusetts). In the United Kingdom section 70 of the Sexual Offences Act, 2003 deals with this subject.  Section 182 of the Criminal Code of Canada, 1985, for a term not exceeding five years. Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 of South Africa prohibits the commission of a sexual act with a corpse.

In Pakistan, legislation vaguely covered the rights of a dead person by penal as well as civil laws. Pakistan though has one of the largest written constitutions in the world and yet it is silent about certain rights, specifically the rights of a dead human being. Though penal laws are in abundance yet the question of whether the penal laws recognize a person after his death, the question of whether the rape with a corpse amounts to rape punishable under sections 376, and 377 is still unanswered by the legislation as well as by the judiciary in Pakistan. This gives rise to the crimes like Necrophilia. As far as the constitution is concerned, it also does not provide provision for the protection of the rights of a corpse. Article 37 of the Constitution deals with the “promotion of social justice and eradication of social evils” ambiguously covered the act of necrophilia because it is a social evil not just towards the deceased but also to their families. Article 9 of the Constitution guarantees the security of a person and Article 14 safeguards the inviolability of dignity of citizens, but whether they cover the dignity and security of a corpse?

To conclude, under these ambiguous circumstances, when the law recognizes “the accused as its favourite child”; when the rules of interpretation provide that “in two possible views view favourable to the accused shall prevail”; when more than a century-old golden principle of law is that “benefit of a reasonable shadow of doubt shall be given to the accused”; when the principle applicable in Pakistan provides “penal provisions must be strictly construed”, then mere punishment of a rapist/necrophiliac under section 297 of the Pakistan Penal Code, 1860 for a term of one year would also be against Retribution theory, and the doctrine of Lex talionis, means an eye for an eye (Islamic principle of penal laws), Deterrent theory to create deterrence in criminal-mind persons, and Preventive theory to prevent the recurrence of necrophilia.

Therefore, when the writing is on the wall that the evil of necrophilia will surge unless it is dealt with iron hands then it is high time that legislators must legislate specific penal provisions to nip this evil in the bud, and so that no undue benefit of the dearth of legislation could be extended to a necrophiliac.        

Hafiz Muhammad Azeem.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and works in Punjab Public Prosecution Department.

 

FIR

 

Multiple FIRs

                        Brief legal introduction of FIR is that it is an information given under section 154 CrPC to an officer incharge of a police station. It is First Information Report and it is known as FIR because of its nickname. Basically, it is the initial and the first information of a cognizable offence and it is recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC.

                        Furthermore, it is pretty much possible that more than one information is given to a police officer in charge of a police station in respect of the same incident. And it often happens that more than one information regarding the same incident is given to a police officer in charge of different police stations. This is what is happening in Pakistan. It is available in news, that multiple FIRs are being registered regarding the same incident in multiple police stations across the country. The question is: Whether is it right to register multiple FIRs?  

                        In Pakistan and India, the issue of registration of multiple FIRs against one occurrence or incident, due to political or rivalry reasons, is quite normal. Therefore, superior courts of both countries have time and again interpretated the correct application of law. However, there is a difference between the two.

                        In Pakistan, the landmark case is Mst. Sughran Bibi Vs the State. The Supreme Court of Pakistan answer the question that whether a separate FIR could be registered for every new version of the same incident when commission of the relevant cognizable offence already stood reported to the police, and an FIR already stood registered in such regard? The held that after entering the first information relating to commission of a cognizable offence in the prescribed book under rule 24.5 of the Police Rules, 1934, the matter became a ‘case’, and afterwards every step taken in the investigation was a step taken in that case. The honorable court observed that under Police Rules, 1934 when a matter is reported to the police it is given an annual serial number and that number is used forever demonstrating that case in which it is given.

                        The court further held that it is not the matter how many numbers of different versions are received by the police in that case; how many numbers of different circumstances arise in that case; how many culprits bring to the notice of the investigating agency. All is that in one single case. And all such versions in that case regarding that same incident though bring into notice by different persons are to be recorded by under S. 161, CrPC in the same case. The court concluded that no separate FIR is required to be registered for any new version in the same case and the same incident.

                        The landmark case lay down by Supreme Court of India on the subject is T.T. Antony Vs the State of Kerala. The honorable court observed that though it is quite possible that multiple informations are given to a police officer in charge of a police station in one incident; however, he is not bound to enter every such information in the book. The first information noted in station house diary by a police officer in charge of a police station is the First Information Report. All other informations after such noting will be called statements under section 161 and 162 of CrPC. And no such information or a statement can properly be called as an F.I.R. Furthermore, the court observed that investigation commences on the basis of entry of the First Information Report. After completion of investigation the officer has to form opinion under Section 169 or 170 of CrPC, as the case may be, and forward his report to the concerned Magistrate under Section 173 of CrPC. Even more, after filing such a report for further investigation, information or material, the officer need not register a fresh FIR.

                        However, the decision in TT Antony’s case when came up for consideration before a three judge Bench in Upkar Singh Vs Ved Prakash the court observed, while distinguishing the case, that “if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimate right to bring the real accused to book. This cannot be the purport of the Code”. The Supreme Court of India differs with Supreme Court of Pakistan on counter version cases.  Notwithstanding the above difference, registration of multiple FIRs in Pakistan against one offender regarding the same incident must be stopped. It amounts to abuse of process of law and it is also against the law lay down by Supreme Court of Pakistan.

                        To conclude, in the words of honorable Supreme Court of India, “under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus, there can be no second F.I.R, and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident”. It is high time that investigating agencies in Pakistan start paying attention to and abiding these principles of law in matters of registration of FIR(s).

 

Hafiz Muhammad Azeem

The writer is an Assistant District Public Prosecutor. He holds an LL.M. from the Punjab University, writes on various topics, and teaches law. He can be reached at Khokhar.azeem@yahoo.com. His articles can also be accessed on hmazeem.blospot.com.