HONOUR KILLINGS UNDER THE RULE OF LAW IN PAKISTAN

HONOUR KILLINGS UNDER THE RULE OF LAW IN PAKISTAN

ABSTRACT

'Honour', is an undefined concept in a male society like Pakistan, and is used as a tool to justify the criminality of murder. Violence in the term of honour is not a new phenomenon. Historically, it has been defensible in the name of culture but the scope of this tradition has enlarged with time and there is a huge increase in the number of its victims. This cultural concept is interpreted in a way to regulate women's sexuality and to keep women subsidiary to men.

Honour killing is not legally authorized but the judiciary and the administration and the society often forgive it one way or the other. In the tribal parts of Pakistan where such murder is not well-thought-out a crime, honour killing is a punishment for those who break against the traditional honour code.

The wide approval of honour killing has made women victim as a whole against their basic rights for example human, constitutional and Islamic.

Introduction

On Apri16, 1999, a 29-year-old woman named Sarnia Sarwar, mother oftwo young sons, was murdered at her lawyer's office in Lahore by an assassin hired by her family. Her mother, father and paternal uncle were all accomplices to her murder. She was murdered for seeking a divorce from her estranged husband, who would abuse her physically as well as mentally. For ten years of her marriage Sarnia suffered violence at the hands of her husband and separated from him to live with her parents. Her parents never agreed to her seeking a divorce as it was· against the family honor. Ironically, it was not her battering by her husband but her act of filing for divorce to get out of a violent relationship which her family deemed 'dishonoring' and, hence, warranting death. [1]

Sarnia was murdered in the name of a tradition under which a woman is not allowed to use her constitutional and Islamic right to seek a divorce. Her act of seeking a divorce was deemed as defiling family honor and tribal traditions. A charge of murder was filed in the Court, and the accused filed an application to make a compromise according to the provisions laid down in the law of Qisas and Diyat (provisions of criminallaw based on Islarnic principle of retribution and compensation applicable in cases of murder and bodily hurt).

The judge, who could reject this application, agreed to the compromise between the parties, i.e. the accused and Sarnia's legal heirs including her abusive husband and two children. An amount was fixed to be paid to the legal heirs and the murder was settled between the parties. This is one case of honor killing adjudicated under the formallegal system of Pakistan which presents a stark example of violence inflicted upon women in the name of customs and traditions upholding patriarchal norms of the Pakistani society.

In Pakistan, violence against women is widely perceived as acceptable. It is inflicted upon women by the state officials or by the citizens acting under a dispensation granted by law, and sometimes by persons whose violent act is deemed acceptable 4. Women are viewed inferior to be "reined in" by men for the better or, in the majority of cases, for the worse. They cannot raise their voice against violence by men, i.e. fathers, brothers and, after marriage, husbands and their male relatives, who are in control of their physical being. The most common form of violence against women is domestic. However, barring certain exceptions (such as high-profile incidents), domestic violence cases are virtually never reported and, therefore, never investigated or prosecuted.

The Pakistani legal system failsto criminalize a quite common but highly serious form of domestic violence. Even complaints against acts of domestic violence that fall under the criminallaw, such as assault, battery, acid throwing8 or attempted murder9, are routinely ignored or condoned by the state officials and often go unreported by police.

In Pakistan, honor killings are decided by two legal forums, i.e., formal judicial institutions and informal legal system called the tribal justice system. The formal legal system comprises a body of law which combines influences of the English common law, prevailing customary law and Islamic law. It has a hierarchical court system established by the Constitution. The informal legal system is based on tribal rules, commonly called the "honor code", and is administered by quasi-judicial tribunals, generally called 'Jirga’s", which are highlybiased against women.

Under the formal legal system, honor killing is defined as a murder committed in the name or on the pretext of honormurder is adjudicated according to the criminallaw of Qisas and Diyat which holds that the offence against a person (including hurt, bodily injury and murder) gives completeright of conviction to the victim and his her legal heirs, i.e. the victim or his her legal heirs retain control over the matter including the crime and the criminal. They may choose not to report the crime or not to prosecute the criminal. This law provides the legal heirs with the right to agree to a compromise according to the law, as in the case of Samia. Certain other provisions of criminal law used in an honour killing result in lenient punishments. This discrimination amounts to infringement of constitutional rights of women under which the state is obliged to protect aIl its citizen’sequally without sex discrimination.

Pakistan also has to respect international treaties it is a party to and customary international law to ensure respect for women’s human rights and fundamental freedoms. Pakistan, being a state party to theConvention on the Elimination of all Forms of Discrimination against Women, is required to take positive steps towards eliminating discrimination, inter alia,violence against women. State officials, rather than responding actively to the violations of women's right to life, to security, and to being free of discrimination, act through police and judicial system to block access to redress and justice for women victims of violence.

The informal judicial system, operating through the Jirga, works parallel to the formaljudicial institutions. The members of Jirga do not respect the laws and principles enshrined in the Constitution, statutes, the Holy Quran and the Sunnah. They make decisions according totriballaw, which is not codified.

Yet these all-male Jirga’s, where women have no say, have been provided by the state with carte blanche to render whatever verdict they wish entirely at their whims and caprice. Jirga is the highest informal tribunal. There is no revision or appeal to a Jirga decision.

Constitutional law recognizes the tribal judicial system only in specific areas (including F AT A and PAT A called special are as ) but it is found aIl over Pakistan. In the special are as formal judicial tribunals have no jurisdiction over a Jirga decision and so there are cases where

Fundamental rights protected under the Constitutional law are infringed. These Jirga’s are Convened and supported by feudal (landlords) and the state is unable to control them in settled areas of Pakistan. These Jirga’s work against the interest of women and their decisions are mostly based on stark bias and prejudice against women according to theircultural and religious stereotypes of women’s status. Pakistani court system presents its own set of impediments and hurdles for women. The formal judicial institutions of Pakistan have deteriorated over the years leading to a decline in the quality of judicial services and to a plethora of related problems Women who make it to a court of law for redress in mostly cases face Pakistan's pre-dominantly

Conservative judges. The judges often have discriminatory and sexist assumptions about women that prejudice the few cases that reach the courtMagistrates and judges allow defense counsel to introduce inflammatory evidenceand launch a character assassination of the victim including questions relating to the victim's sexual history even when it is patently irrelevant.

Defining the term of "Honour Killing"

The Criminal Law (Amendment Act, 2004)defines the crime of honour killing in section 299 of Pakistan Penal Codeas an "offence committed in name or on the pretext of honour means an offence committed in name or on the pretext of karokari, siyahKari or similar other customs or practices.

Broadly speaking for Pakistan, 'honour killing' refers to the murder of women and sometimes men under the pretext of restoring and/or reviving the 'lost honour1 of a family.

UNICEF[2] defines honour killing as an ancient practice in which men kill female relatives in the name of family 'honour' for forced or suspected sexual activity outside marriage, even when they are the victims of rape.

According to the dictionary the word "honour", is not gender specified and has a neutral meaning. Every society ascribes its own meaning to the word "honor" according to its socio-economic and cultural practices.

Patriarchal societies manipulated and contorted the meaning into making honour the sole responsibility of males. They have reached such a notion as "men are the sole possessors and defenders of honour. This customary practice is upheld .to maintain the social control over women and to keep their status subordinate to men.

Other than Pakistan, these killings are reported in Afghanistan, Jordan, Yemen, Lebanon, Egypt, Israel, United Kingdom, and Middle Eastern countries, India, Turkey, Brazil and Canada as weIl.

Nature and Scope of Honour Killing

Honour killing in Pakistan exists in a rather unique combination of conflict-unity. It is an unspeakable tragedy in which fathers, brothers and husbands kill their beloved, daughters, sisters and wives. What makes the situation even more complicated and worrisome is that the honour crimes are sometimes committed with the connivance of female members of the family (such as in the case of Samia's murder in which her mother was an accessory to her own daughter's murder).

Nevertheless, killing in the name of honour occurs in a family system where members are closely tied to each other in bonds of affection, compassion and love. This is a strange yet unique combination where affection and brutality coexist in conflict as weIl as unity. This concept of a combination of affection and brutality in close family members exists as the two opposite models residing in women.

According to HinaJilani, a renowned lawyer and human rights activist in Pakistan, a woman's right to life in Pakistan is conditional to her obeying the social norms and traditions.Women are negated their "core rights.

Based on statistical evidence, the number of honour killings has increased manifold in the past few years. Its scope too has broadened in a rise in the number of reasons provided originally. Once women and men who committed adultery were killed for honour, but now women are murdered for many reasons inc1uding rape to the rejection of a marriage proposal from the perpetrator.[3]

Reasons for Honour Killing

AlI over Pakistan hundreds of women of all ages are killed for a variety of reasons connected to the varying interpretations of honour.

The reasons include the customs, religious misinterpretations, tribal laws, taunting by community members, marriage or divorce against the will of family, settling debts, family enmity, camouflaging murder as honour killings to get lenient punishment under statutory law and failing judicial system.

These are not mean the only instances where honour crimes are justified in Pakistan.This uncontrolled increase in the practice of this tradition is a mockery of law and humanity. The victims of honour killings are 3-90 year old females, both married and unmarried. An important reason behind the perpetration of an increase in this heinous crime is the impunity a perpetrator enjoys. Even if the crime is reported and the perpetrator appears before a court of law (which is quite rare) Pakistan's male dominated judicial system protects him or her instead of giving exemplary punishment.

Honour killings are also used to camouflage a murder to get away with the come altogether or receive a lighter punishment.

The murder could be for personal reasons or to seek revenge as well. Many cases published in newspapers are not formally reported by police or other law enforcing agencies. A newspaper published an unreported case of honour where a girl named Shamshad was stoned to death by her unc1e and a mob of villagers in front of her parents in the name of 'honour'. Her crime was to dance at her cousin's marriage; a normal occurrence at Pakistani weddings but not considered moral by her unc1e.[4]

Some honour killings are committed for monetary gains, property and inheritance. The lesser the number of inheritors, the smaller the prospects of sharing the ancestral property. Sometimes women are killed as alleged kari97 with some rich man of the tribe to receive the monetary compensation for pardoning the alleged Karo. Kari is killed by her family and then karo has to pay the fine under the tradition to spare his life, no matter the charge is true or false.[5]

Historical Overview of Honour Killing

Killing in the name of honour is an ancient practice. Many authors find its roots in the tribal days of the Hammurabi and Assyrian tribes of 1200 B.C

This practice predates Islama time when women were not considered full members of society. They did not have any social, political and legal rights. They were treated as a commodity rather than a human being, like the family property first of her father and brothers and then person she was married or sold to.

The notion of killing women for honour has not been confined to Arabs only. It has been practiced in many countries all over the world in one way or the other. In English common law women were perceived as chattel and adultery was defined as· a crime against property.

Furthermore, a 1991 investigation conducted by Human Rights Watch in Brazil shows that in wife murder cases, the accused said that he acted spontaneously in legitimate self-defense against an attack on his honour.

Historically, this tradition gave right to the community or the male relatives, including husband, father or brother to kill the woman found in an illicit relationship outside marriage.He may also kill the man she is found with. Over the years this tradition has become even more gruesome and senseless. Now murder of a woman is justified even if it is committed on mere suspicion of illicit relation.

Honour Killings condemned in Islamic Teachings

Islam does not sanction honour killings. These killings are linked with religion on the basis of moral standards upheld by the patriarchal structure in Pakistan.  In Quranic interpretation of sexual equality, both men and women have to be judged on the same touchstone, as they carry the same moral responsibilities and face similar accountability. Islam holds both men and women equally responsible to guard their chastity1 and there is no hierarchal difference. Yet in practice, Pakistani men hold themselves as sole guardians of their women to support their brutal actions.

The Quranic verse often quoted to justifyma1e dominance are:

Men are the protectors and maintainers (qawwam) of women, because Allah has given the one more (strength) than the other, and because they support them from their means.[6]

Along with these traditions or patriarchal interpretation of Quranic verses, fundamentalists bring in the false dichotomy of public and private sphere, based on the traditional gender specified roles. This has led to women's subordination economically, socially and politically. Islam has tried to break down this barrier of public and private sphere1, maintained in Pakistan by the state and the religious leaders to retain power and control over women's lives. It is be1ieved in Pakistan that "Islam relegates women to an inferior status; it confines them inside the four walls of their homes and restrains them from taking up employment outside their homes.But Muslim scholars agree that Islam accords women with the equal rights as men, i.e., right to property, right to choose a spouse and right to divorce etc.

Cultural practices discriminatory to women have been shrouded in religious beliefs whereas religious norms favoring women are all too conveniently ignored. 1Under Islamic law, every male and female has the right to enter into marry by exercising full and free consent, but many Muslim families deny their children, particularly female children this right due to constraints of cultural norms.

Verses 4 to 9 of Surah AI- Noor (XXIV) of the holy Quran:

And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation) flog them with eighty stripes and reject their evidence ever after, for such men are wicked transgressors. Unless they repent thereafter and mend (their conduct) for Allah is Oft-Forgiving, Most Mercîful. And for those who launch a charge against their spouses, and have (in support) no evidence but their own - their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth.

And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah that (her husband) is telling a lie; and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth.[7]

But in an Islamic country like Pakistan, Islamic injunctions about the rights of women are altogether ignored. Many innocent women are killed in the name of 'honour'. Shahab says that" God has eliminated the evil of the Jahilliah period, and thus, no case of so called 'honour' killing was reported in the early period of Islam"

Islam has provided an equal status to both man and woman. In a few reported cases. Islamic provisions favorably disposed toward women have been quoted to negate thesupport of honour killings in the name of Islam and pre-conceived notions of pseudo religiosity.

On the contrary, judges often justified honour killings in the name of fulfilling moral and religious duty. In the case of Ameer Buxv. The State, the judge legitimized the murder saying that it was in the true spirit of Islam and the moral duty of a true Muslim.

The judge held that "in our Islamic socîety the moral of the socîety has always been given the weight."[8]

Rule of Law and Honour Killing

No codified law in Pakistanprovides an exemption from punishment for murder or injury in the cases of honour killing, asis the case in Jordanian law, which expressly spares the perpetrator. Honour killing is dealt as a murder crime under the criminal law of Pakistan, inter alia Qisas (punishment equal to the offence) and Diyat (compensation) law based on the Islamic injunctions. Recently> special legal provisions have been promulgated amending the criminal law vide Criminal Amendment Act, 2004 to define and enforce punishment for an offence committed in the name or on the pretext of honour. However, the Qisas and Diyat law protects the perpetrator in honour killing cases. Under Qisas and Diyat law, the victims or hislher legal heirs retain control over the matter including the crime and the criminal. The legal heirs can also pardon the murderer or reach sore settlement as a compensation in lieu of punishment.

In honour killings, which are often committed by family member or in connivance with the family, the perpetrator having a relation with the victim and hislher legal heirs also takes advantage of Qisasand Diyat law.

There is no substaIitive provision in the criminal law of Pakistan which legalizes or provides exemption in the cases of honour killing. However, the right provided to the legal heirs of the victims under Qisas and Diyat law has privatized the crime ofhonour killing. ·On the contrary; in tribal areas, honour killings are justified and honour crimes are sanctioned by the traditions and the tribal rules.

In Pakistan, two judicial systems formal and the informal (tribal justice system), working parallel to each other, deal with honour killings. The formaI judicial system administers constitutional law, criminal law, Islamic law (shariah) including Qisas and Diyat law with hierarchal court systempresided over by qualified judges in all the four provinces of Pakistan (except for the Federal Shariat Court which has three religious scholars appointed as Judges200).

The formaI judicial system is constitutionally an independentbut General Zia brought in constitutional changes which made the judiciary and legislature effectively subservient to the executive and now "what seems on paper to be a tripartite government of executive, legislative, and judiciary powers turns out to be a long executive arm enveloping and so curtailing both the legislature and the Courts However, according to Article 247(7) of the Constitution, the Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) do not fall under these courts. These tribal areas have their own legal and judicial system largely based on tribal adjudication.

Against the backdrop of this legacy pluralistic adjudication of honour killings criminal laws are used to discriminate against women. Pakistan's constitutional law guarantees equal protection to its citizens.

It also guarantees protection of marriage, family, mothers and children besides ensuring full participation of women in a spheres of national life.

However, women are discriminated against violating their constitutional rights. Women face a systemic subordination to men determined by the forces of patriarchy across classes, regions, and the rural urban divide? In honor killing cases the provisions of Qisas and Diyat law are used to discriminate against women. In the tribal judicial system, honor killings are legalized suppressing women's constitutional rights.

The impunity with which the perpetrator commits the crime of honor killing and the systematic failure of the state to exercise effective control on such acts makes the state responsible under national and international law. These murders in the garb of cultural practices have not only been ritualized but also legitimized by Jirga’s in Pakistan. It is a version of the implicitly accepted violence on women in everyday life.

This violence against women is a violation of fundamental rights protected under.

The constitutional law of Pakistan as weIl as international law under which state parties are obliged to exercise "due diligence" to ensure prevention, investigation and punishment of the perpetrators of such crimes.Pakistan, as a state party to Women's Convention and the Convention of Rights of Child, is also responsible for its failure to exercise due diligence.

Fundamental Rights in the Constitutional Law

The Constitution of Pakistan guarantees certain fundamental rights to all its citizens equally without gender discrimination. Article 25 protects those laws made especially for the protection of women and children. Women are given special attention for safeguarding their interests and safety. Article 8 of the Constitution protects against any law or custom or usage having force of law which is inconsistent with the fundamental rights conferred by the Constitution, stating that such law or custom "shall be void to the extent of its inconsistency". Article 9 of the Constitutionguarantees the security of every citizen by stating that "No person sha1l be deprived oflife or liberty, save in accordance with law."

Article 35 of the Constitution provides that ''the State shall protect the marriage, the family,mother and the child". Such "protection" has s6 far been counter-productive at the hands of

Pakistan's predorninantly conservative judges, all too eager to confine women within the traditional. And discriminate tory notions of inequality against the constitutional guarantees. The

Discriminatory interpretations could easily rely on customs and personal morality. Orthodox interpretations ofIslam also provide ready tools for advancing discrirninatory judgments.

There are laws in Pakistan, including customary laws, which negate the equality provided by the Constitution. To quote a few examples, constitutional law provides fundamental guarantees and special protection to women but customary practices, especially in cases of right of mitigate negate them.

Special protection to women is provided under Article 25 of the Constitution. But the Qanoon e Shadat Order of 1984 says the evidentiary value of a woman's testimony is not equal to that of a man in financial transactions.

Under the Zina Ordinance221, women are considered equal partners in offence of Zina, whereas the Frontier Crimes Regulation, 1901 (FCRdefines adultery as a crime committed only by a woman. In Zina cases awoman’s testimony as a victim is not accepted if evidence to prove theallegation is insufficient; it is rather taken as a confession for having committed Zina.

Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, breaches the constitutional equality guaranteed to women in cases of conviction of adultery in a matrimonial relationship.

Onlythe husband can invoke the provision of Li'an provided in this section, not the wife?

This provision again brings women to a subordinate level as compared to men. Under Article 151(4) of the Qanun-e-Shahadat Order, 1984 only a woman'scharacter can be impeached in Zina cases. According to the Hudood laws the definition of an adult eligible for the punishment of Hadd226 discriminates against women: while a male is considered adult when he reaches the age of 18 years,female is considered adult when she reaches the age of 16 or attains puberty, whichever cornes first (reaching puberty may vary, starting as early as the age of Il or 12 years).

Rape victims often fear death at the hands of their family members in the name of honor. In cases of rape under Zina Ordinance (where women are considered equal partners in the sexual offences of adultery, fornication and rape), and in the presence of Article 151 (4) of the Qanun-e-Shahadat Order, (where a women's character could be impeached in a rape case) women fear to be convicted as equal partners in sexual offences if they cannot meet the strict evidentiary requirement. The evidence required under Zina Ordinance to prove rape is to produce four Male Adult Muslirns· as eyewitness to the crime. In the presence of these laws it is difficult for a woman to prove the offence of rape. Besides the evidentiary hurdles, in the presence of social pressure women know that their families and communities would feel dishonored due to a conviction or allegation of being equal partners in a sex offence, and so often fear for their lives. In some cases their kin killed the women who filed complaint of rape for "dishonoring" the family.

Criminal Law Relating to Murder

Laws applicable to the cases of bodily hurt, injury and murder are laid down in Chapter 16 of Pakistan Penal Code (P.P.C.). Before the introduction of Islamic concept of Qisas punishment equal to the offence) and Diyat (compensation), the principle of grave and sudden provocation was a part of criminallaw since its promulgation as an exception to the law of defining culpable homicide as murder under Section 300.

However, this exception provided in P.p.C.230 was reversed by the Sharia Appellate Bench of the Supreme Court in the year 1989, thereby introducing the Islamic concept of Qisas and

Diyat.

This exception of grave and sudden provocation had invariably been used by the courts while deciding cases of honor crimes. Provocation was evaluated according to the facts presented and it was at the discretion of the courts to accept the pie of grave and sudden provocation or not.

This led to a situation where crimes of passion (involving honor) were taken as the lesser crime of manslaughter instead of cold-blooded murders. The Commission of Inquiry for Women234 has rejected "honor" as a mitigating circumstancesin murder cases and recommended that such killings be treated as simple murders.

Law of Qisas &Diyat (Islamic Law)

Among other statutory laws, the law of Qisas and Diyatcovers offences relating to physical injury, manslaughter and murder. This law has changed the concept of criminal accountability in justice system re-conceptualizing the offences in such a way as are not directed against the legal orders of the State but against the victim. This has rendered murders of family members a family affair and prosecution and judicial redress negotiable.

Murder is defined as an offence of Qatl-i-amad (intended murder) under Section 300 of P.P.C. (Pakistan Penal Code, 1860) with punishment provided in its Section 302 thereof.

Under Section 302 of P.P.C. whoever commits the offence of murder shall be subject to

(a) Punishment by death as Qisas or

(b) Punishment by death or life imprisonment as ta'zir (punishment other than Qisas)

"Having regard to the facts and circumstances of the case, ifproofin either of the forms specified in section 304240 P.P.C. is not available or

(c) Punished by imprisonment of either description for a term which may extend to 25 years, where punishment of Qisas is not applicable. Under these provisions, if the murderer voluntary confesses that he/she has committed the murder, he is liable for the punishment of Qisas.

But in case where the evidentiary requirement is not fulfilled as prescribed in Section 304 PPC. He can still be punished under Taz'ir (which includes the death sentence and life imprisonment) but this is subject to the facts and circumstances of the case. This section is invoked in cases where the judge considering the 'mitigating circumstances of grave and sudden provocation' lets the perpetrator escape the punishment of Qisas under Section 302(b) P.P.C.

Sections 306 and 307 of P.P.C.have sorne loopholes which people use in the cases ofhonor killing to get away with the punishmentofQisas.

According to Section 306, the punishment of Qisas not be applicable where murder is committed by a minor or insane person or in cases where thevictim is a child or grandchild of the offender.

This clause saves fathers or grandfathers, who kill their daughters in the name of honor from the punishment ofQisas. The last clause of Section 306 protects the offender from the punishment of Qisas if any legal heir of the victim is a direct descendant of the offender.

This clause saves the man from Qisas in cases where his wife (victim) has left a child who, besides being her legal heir, is also a direct descendantofthe offender.

Moreover, the perpetrator may escape the punishment of Qisas through the application of Section 307 P.P.C. according to which Qisas is not enforceable in cases of murder where any legal heir voluntarily waives his right of Qisas as prescribed in Section 309 or compounds his right ofQisas under Section 310 Ppc.

In the criminallaw of Pakistan certain offences are compoundable. Section 345 of the Criminal Procedure Code (Cr.P.C.) provides a schedule of such offences and the persons by whomthe offence may be compounded.

The compounding of an offence signifies that the victim or his legal heirs can obtain compensation from the perpetrator and in return can agree that the perpetrator will not be punished?

Originally, murder was not a compoundable offence.

However, at the time of the introduction of the Qisas &Diyat law in the P.P.C., a corresponding amendment was made in Section 345 (2) Cr.P.C. whereby, inter alia, the offence of murder was made a compoundable offence by the legal heirs of the victim. According to the Qisas & Diyat law, Section 338-E P.P.c. states that aIl offences under Chapter 16 of P.P.C. (i.e. offencesaffecting the human body) can be waived or compounded in the matterprovided in Sections 309 (i.e. a sane adult legal heir can waive his right of Qisas in murder without compensation) & 310 P.P.C. (which provides compounding of Qisas on accepting badl-i-sulh246 (i.e. compensation), subject to the provisions of Section 345 Cr.P.C. i.e. with the permission of the court and only by thepersons mentioned in the schedule.

The Section also empowers the court to either acquit the accused or to award punishment under ta'zir even after waiver or compounding of offence.

According to Section 311 P.P.C. an offender, against whom the right of Qisas has been waived or compounded, can be punished with imprisonment under ta'zir for a maximum term of 14 years.

According to Section 307P.P.C. Qisas for murder cannot be enforced where it has been waived or compounded, inter alia, under Sections 309 and310 P.P.C. The provisions of Sections 309 and 310 P.P.C. are applicable only in the cases where the punishment is under Qisas and are inapplicable, when the conviction is under ta'zir.

In such cases, Section 345 (2) of Cr.P.C. is invoked to reach a compromise. These provisions in the criminal law make the capital offence of "murder" compoundable and exempt certain persons from being punished with Qisas.

These provisions have in effect privatized murder. Under the present legal regime anybody can simply get away with the crime (of murder) by paying off money as compensation to the legal heirs of the victim. In most of the cases of honor killings it is the family, the legal heirs of the victim, who forgive the offender, also their relation.

State's Obligation under International Law

Murder in the name of honor is a violation of internationally recognized human right, i.e., right to life. Right to. life, liberty and security are basic human rights inscribed in Article 3 ofUniversal Declaration ofHuman Rights (UDHR) and Article 6(1) and 9(1) of International Covenant of Civil and Political Rights322 (ICCPR).

UDHR and its principles may be regarded as "an authoritative interpretation of human rights provisions contained in UN Charter".[9] UDHR is not legally binding by itself, but many provisions and rights proclaimed in UDHR have attained the status of customary international law.

The basic civil and political rights enshrined in UDHR are now widely regarded as binding on

States "either as interpretationofthe U.N. Charter or as customary international law, or both." Some authors say that not all the provision of UDHR have reached this status but agree that sorne provisions especially put stress on certain rights including right to life, freedom from slavery or torture which are so fundamental that no derogation may be accepted from these rights.

These non-derogable rights are explicitly iterated in Article 4 ofICCPR, which includes Articles 6, 7, 8(1), 8(2), 15, 16 and 18. Right to life is abasic inherent right of every human being. Sorne scholars hold that "hurnan right to life is entrenched in customary international law, which is binding on all the states.

State is responsible for thisgross violation of human rights, especially violence on women by its failure to exercise due diligence to control, prevent and investigate it.

Pakistan has failed to fulfil its obligations under the international law, to exercise due diligence in preventing, investigating and punishing abuses of honor killings.

The state has failed to protect women's right of life and control violence against them condoning customary practices, which amounts to gender discrimination. The state has failed to protect and provide equal protection of law, inscribed in its Constitution, to aIl without sex discrimination especially in cases of honor killing.

The government’s indifference towards increasing rise of honor crime also shows its "complicity in women's oppression.

The government’s inaction to prosecute and punish perpetrators of honor crimes results in the victimization of women.

"This attitude by the state reflects institutionalized gender bias that pervades its machinery, inc1uding the law enforcement apparatus.

This inaction by the government against gender specific violence is in itself a blatant form of discrimination against women.

The systematic failure by the state to prevent, investigate and punish the perpetrators is an irresponsible attitude of the state towards international obligations.

Pakistan, being a party to the Convention on Rights of Child334 and the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention), holds the responsibility to fulfil its duty to comply with the human rights standards and respect the international laws and treaties.

UDHR is adec1aration of basic principles of human rights and freedoms.

"To serve as a common standard of achievement for aIlpeoples of aIl nations"

But Pakistan has failed to comply with the state obligation under both national and international law.

The Charter of United Nations affirms equal rights of men and women.

This concept of nondiscrimination is further elaborated in UDHRarticle 1 which says that all human beings are born free and equal in dignity and rights. Article 2 sets forth that aIl people are entitled to rights and freedoms without distinction with regard to sex, whereas, article 3 provides protection to right to life, liberty and security of persons. Article 5 states that "no-one shall be subjected to torture, to cruel, inhuman or degrading treatment or punishment.

Besides protecting basic human rightsUDHR also contains provisions like Articles 8 and 10, for right to effective remedy by a free, impartial and independent judicial tribunal.

These provisions are also reiterated in ICCPR in Article 9, 10, 14, 15. Besides Pakistan's obligation under the customary international law to provide a citizens with impartial and fair trial, the state is also bound to do so under its Constitution.

The provisions are reiterated in the Constitution's preamble and Article 2-A.

In the honor killing cases obligations under the national and international law are breached in providing this right. In the presence of gender bias against women, the state machinery has failed to protect them from violence in formal and informal judicial system.

Equality before the law and equal protection of law is the right of every human being. This right is protected under Article 7 of UDHR and Article 26 of ICCPR which constitute a general norm of non-discrimination, considered to have attained the status of customary internationallaw.339 Equality is also enshrined in the Constitution of Pakistan’s under Article 25. But in reality this equality is not provided or protected especially in honor killings cases.

This equality of protection is discriminated against women by thepolice or the biased judges.

This protection is also not available to women living in tribal areas where Jirga punishes them for using their fundamental rights.

The state is obliged to provide a mechanism for to fulfilling its obligation under national and international law and establish an impartial administration of justice. Pakistan as a state party to the U.N. Convention on.

The Elimination of All Forms of Discrimination against Women (Women's Convention) is also responsible for its ineffective control of violence against women. Pakistan became a party to the Women's Convention in 1996.

A general declaration was made invoking the primacy and sovereignty of the Constitution of Islamic Republic of Pakistan, 1973 overruling all the provisions of the Women's Convention. A single reservation was made to Article 29 paragraph e41 of the Women's Convention. The government of Pakistan declarednot bound by the arbitration clause of Women’s convention.

Being a party to the Women's Convention, Pakistan is required under its Articles 2 and 5 to take "all appropriate measure to modify social and cultural patterns" in order to eliminate prejudices and customs based on inferiority or gender-based stereotype roles".

Despite its obligations, the govemment has taken no meaningful steps to address the discriminatory laws and customs that encourage' honor killings suffered at the hands of family members and ‘local communities.

These "extra judicial executions of women for so-called honor crimes are common in sorne regions and govemment have done little to curb such customary practices.

Pakistan has failed to protect and control the violence inflicted upon women in the name of honor. This gender violence amounts to discrimination against women. Violence is also a form of discrimination against women as it is inflicted upon them because of their gender.

Administration of Justice

It is the state's obligation toprovide justice fairly, impartiality, equality, and expeditiously, under an organized system of administration to aIl its citizens.[10]

As discussed in the previous chapter, Pakistan has a state obligation under its domestic law and under international law, to provide justice to its citizens equally and fairly. Fulfilment of a state's obligation regarding women's protection can be evaluated against two criteria:

First, whether the state's written law provides for the equality of women and, second whether there are enforcement actions available for women who have been wronged.

Pakistan's state obligation as a party to Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention) holds it responsible not only for the legal Implementation and protection of women's rights, but also requires it to take positive steps towards elimination of an kinds of discrimination against women in social, political, cultural and economic spheres of life. It is incumbent on law enforcement agencies (police) and the courts "to intervene appropriately in relation to violence in the family and not to allow its perpetuation through Indifference or Inadequate response".[11]

However, Pakistan's law enforcement agencies are note only alleged to be unfair in their treatment of women complainants but also at times, instrumental in the commission of crimes?

Criminal injustice in the cases of honor killing arises out of inadequate administration of law and order by the police, lack of accountability, a conservative judiciary and the amended penal law of Qisas (punishment equal to the offence) and Diyat, (compensation), a criminal. Law based on Islamic injunctions which has made murder a compoundable offence. Controversial laws and their interpretations by the courts have further eroded the status of women and exposed them to injustice.

Often police and judges considerdomestic violence as a family matter and are reluctant to intervene. This is a major impediment for women seeking criminal justice. The courts also draw a distinction between cases of murder for honor and the one for some other reason. The judicial system of Pakistan makes it difficult for a woman to seek justice.

Women and the Criminal Justice System

The state of Pakistan is obliged under national and international law to provide justice equally and expeditiously to all its citizens. This is the 'raison d'être for a statehood, under the Islamic injunctions and the Constitution of Pakistan described in Article 2_A377 of the Constitution. The rule of law is the foundation ·of a responsible govemment and requires that settled and just laws are fairly administered without fear and favorfor its advancement.

Such laws must offer protection to aIl -individuals and their rights, especially of those who are minorities or otherwise disadvantaged. The state does not inflict violence on women directly but it "often supports or condones an exploitative family structure through various laws and rules of behaviors which legitimize the authority of male members over the lives of female members.

Pakistan is an Islamic republic in which the dictates of the Holy Quran are upheld, but this is not the case when women's rights and protection is concerned. Although the state is obliged to establish a society in accordance with the injunctions of Islam, personal bias and moral standards are looked. Upon to make decisions on rights and liberties guaranteed to women in Islamic society. This is against the teachings of Islam since the Quran, interalia, and ordains that "personal likes or dislikes must not influence the administration of justice,the administration of justice depends on the actors involved in the penal system.

The police, prosecutors and the judges for its effectiveness.382 Women will turn to police and judicial institutions to seek judicial redress. However, the police are corrupe83 and are generally not supportive of women victims in the cases ofhonor killing.

There are many reported and unreported cases of women who are mutilated and killed by male relatives, being suspected of illicit relationship or adultery. Among those cases which actually get reported, few are thoroughly investigated by the police. Accused murderers are often acquitted upon the mitigating circumstance of the grave and sudden provocation allegedly caused by the victim's act.

Use of Islamic law

A woman accused of zina is considered by the judges and the society deserving the punishment of adultery. In a case titled Ameer Bux vs. The State, the judge justified the murder of awife by her husband who had committed adu1tery~

The judge cited Section ofP.P.C.492, which protects a person who committed an offence by reason of a mistake of fact and in good faith believed to be bound by law to do it. The judge based his contention using religion to state that "A Muslim on seeing a person committing zina with a woman and that two of his own house, under Islamic law is justified to do away with

Both."

This interpretation of Section 75 P.P.C. And Islamic law is repugnant and contrary to the provisions codified in Hudood Ordinances. The provision, under Islamic law in a case where a husband convicts his wife of adultery is referred to as Li'an.493 "The need for cIear proof was required by Prophet when one man convicted his wife of adultery.

And when he could not produce for the punishment of Li'an. Islam does not authorize to kill any woman or man on the allegation of zina.

If there is an allegation, it has to be proved according to the evidence (required under Islamic law) to implement the punishment of Zina. In an appeal case tothe Sharia Appellate Bench (Islamic court) the judges held that, the murder by the husband (or, by inference, by a near relative, as in the instant case) "will attract a punishment lesser than Qisas only ifproof of commission of such Zinaexists which satisfies the required standard of evidence prescribed under Islamic injunctions."

ISLAMABAD: Despite hard work on the part of numerous legislators and human rights activists, a steady number of ‘honour is killing’ cases continues to be reported.

“Earlier the killings were mostly isolated to northern Sindh, southern Punjab and some parts of Khyber Pakhtunkhwa and Baluchistan, but now the capital police are registering cases regularly especially in its rural areas.

But even then the police, non-governmental organisations (NGOs) and other concerned authorities believe that the majority of cases remain unreported.

Prominent women’s right activists Farazana Bari over the issue said that the actual figure of ‘honour killings’ was not available with anyone neither was there any authority at the national or provincial level to monitor the act and collect the details. “The numbers are only collected from police and media reports,” she added.

Ms Bari explained that ‘honour killing’ is a compoundable offence in which the parties – accused and victim family can reach a compromise and settle the issue. “As the accused of the ‘honour killing’ is often a family member – father, brother or husband – of the victim, he is easily earned pardoned by the king of the victim or the complainant,” she said.

“In 2004, the then government tabled the law on ‘honour killing’ but defined it as a compoundable offence. We had raised objections and showed reservation over the law too,” she added.

“NGOs and other organisations working for women’s rights are struggling to make ‘honour killing’ a non-compoundable offence by considering the crime against the state not against the individual but it has been all in vain,” she complained.

Meanwhile, pioneer president Islamabad High Court Bar Association Chaudhry Mohammad Ashraf Gujar said pardon from all the kin and legal heirs of the victim was necessary for the accused to avoid punishment and acquittal. In ‘honour killings’, parents should pursue the case but as both the victim and accused were related, the killer gained an advantage.

Mr. Gujjar said the application of law changes with changes in social behaviour. “The law on ‘honour killings’ should also be changed to address the issue,” he said, adding, “The legislators and parliaments can make amendment to the existing law.”

At least six incidents of honour killings reported over the last two-and-a-half months.

July 19:

 A man killed his sister ‘MB’, 19, on pretext of ‘honour’ in his house in Kirpa. The victim’s family was trying to convince her to marry a man of their choice, but she repeatedly refused.When asked for her reason, she disclosed that she had married secretly. Over the disclosure, her brother killed her with a pistol and escaped. Later, the victim’s father lodged a complaint against his son and the police registered a murder case.

July 6:

A man killed his wife and her alleged paramour in the area of Shahzad Town.  Later, the accused, who escaped from the spot after the killing, surrendered to the police. The accused told the police that on that day he returned home and found his bedroom locked from the inside, but his wife was in the kitchen. Later, he found a man inside his bedroom and lost his temper and killed the two. He further claimed that around a month ago he had returned home and found his bedroom locked. Later, his wife opened it and he saw the man escaping from another door. He rebuked his wife over her illicit relation with the man and in response she left the house. A week later she returned on his insistence but did not abandon the illicit relation.

July 3:

A man was found dead from a nullah at G-11/2. The victim, Mohammad Bashir, and his cousin Ahsanullah, natives of district Kohat, persuaded two local girls to run away with them and got a court marriage done a year back. A Jirga was called which barred the couple from entering the village. In response, the couple migrated to Islamabad and started living at Merabadi in Golra. On that day, the victim received a call at his mobile from his in-laws and immediately left the house. Later, he was found strangled in the nullah.

June 11:

Shamasur Rehman, 22, an Afghan national, was killed during a scuffle with a man whose daughter he wanted to marry. The accused, a native of Mardan, surrendered before the Tarnol police, and claimed that he was not a criminal but murdered the victim as he was constantly teasing his daughter.  On that day, the victim called him on his mobile and told him that he was coming to his house along with others for marriage proposal. However, the accused claimed he refused and asked him not to come to his home. However, the victim along with his friends tried to forcefully enter his home which led to the scuffle and later the killing.

May 4:

A teenager was stabbed to death and others injured critically injured over ‘honour killing'. The victim – Dilawar Abbas – had friendship with the sister of the accused and earlier they were engaged in a brawl over the issue.”[12]

May 1:

 A married woman was gunned down by her brother in Golra. The victim’s husband told the police that his wife had eloped with one of her acquaintances after 45 days of their marriage in September 2011. Since then her brother was tracing her whereabouts and last week he brought her home. But he kept the victim in his house and put restrictions over her movements, including going outside the house, including the house of her husband, and later killed her.”

Case laws

1.In Bhagwan Das Case Supreme court judgment

“Before parting with this case we would like to state that ‘honour’ killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh’s case (supra) that there is nothing ‘honorable’ in ‘honour’ killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds. In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behavior. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.”[13]

2.Court judgment of Manoj-Babli honour killing case

“No Karnal lawyer would adopt the case, so Manoj's family had to find lawyers from Hisar.Later on Adv. Sunil Rana from karnal accepted the case, arguing on their behalf public prosecutor Sunil Rana and lawyers Lal Bahadur, Surat Singh, Cornel Omparkash, and Rakesh Manjhu from Hisar, Haryana. Bahadur argued that the couples' clothes recovered from the canal and photographs from the Scorpio established that day's happenings. Bahadur also cited the contractor's statement and the last phone call from Manoj, in which Manoj had related that Babli's relatives were trailing them.However, the contractor "turned hostile" and withdrew his statement.

Arguing for the defence was lawyer Jagmal Singh.He asserted that there was no evidence against the accused and that it was all contrived by the media, no evidence that the khap panchayat ever met to discuss the fate of the couple, and no evidence indicating that Manoj and Babli were dead. The cremated bodies recovered from the canal were never confirmed to be those of Manoj and Babli.

On 29 March 2010, after 33 months of 50 hearings with 41 witnesses, the karnal District court found the accused guilty of murder, kidnapping, conspiracy, and destroying evidence under respective sections in the IPC.The next day, 30 March, for the first time in Haryana state history, a death penalty verdict was announced in the double murder case for the five accused. All were related to Babli, and included her brother Suresh, cousins Gurdev and Satish, paternal uncle Rajender, and maternal Uncle Baru Ram. The leader of the khap panchayat Ganga Raj was given a life sentence for conspiracy, while the driver, Mandeep Singh, held guilty of kidnapping, was given a jail term of seven years. The court asked the Haryana government to provide a compensation of ₨100,000 to Chanderpati, who had filed the case.Ganga Raj, was fined ₨16,000, and the other six convict’s ₨6,000 each.

The court also accused six police personnel of dereliction of duty and directed the SSP of Kaithal to take action against them. The personnel included head constable Jayender Singh, sub-inspector Jagbir Singh, and the members of the escort party provided to the couple.They claimed that the couple wanted them to leave.The SSP's statement was that it is correct that the deceased couple had given in writing not to take police security any further, but Jagbir Singh was well aware that there was a threat to their lives from the relatives of the girl." The report stated that Jayender informed Gurdev Singh of the location of the police and that of Manoj and Babli over his mobile phone. Jayender was dismissed from the police force, and both he and Jagbir were penalised by a cut of two increments.

In her verdict, district judge Vani Gopal Sharma stated, "This court has gone through sleepless nights and tried to put itself in the shoes of the offenders and think as to what might have prompted them to take such a step. Khap panchayats have functioned contrary to the constitution, ridiculed it and have become a law unto them.

Bahadur was satisfied with the decision, "Out of seven accused, five have been given death sentences. This will send a strong message to the public that law is greater than the khap." However, he was disappointed that "the leader [Ganga Raj] got away with death penalty because he intentionally disappeared during the killing."Narenda  said, "We will appeal in High Court for death penalty to the main accused, Ganga Raj. We respect the court's decision but he should be punished so that the instigators of the crime get the punishment. Also it is important that it is a very clear message so that no khap gives such directions, ever.Seema seconded Narendra's concerns, "We would have been happier if the main accused was also given the death sentence. The decision of the panchayat was not justified and people should not to be allowed to misuse their power. We have fought this battle alone when no one was supporting us." She requested more security for her family, "They tried to bribe us to withdraw the case then they threatened that they would kill us if we didn't withdraw the FIR. Even after the decision we're afraid of a backlash from the Khap Panchayat."[14]

Prevalence of honour killings

“In 2011, human rights groups reported 720 honour killings in Pakistan (605 women and 115 men).Some discrepancy exists between reports. For instance Pakistan's Human Rights Commission reported that in 2010 there were 791 honor killings in the country, while Amnesty International cited 960 incidents of women alone who were slain in honour killings that year.

Over 4,000 cases were reported in Pakistan between 1998 and 2004. Of the victims, almost 2,700 were women and just over 1,300 were men; and 3,451 cases came before the courts. The highest rates were in Punjab, followed by the Sindh province. Lesser number of cases has also been reported in North-West Frontier Province (NWFP) and in Balochistan.  Nilofar Bakhtiar, advisor to Prime Minister Shaukat Aziz, stated that in 2003, as many as 1,261 women were murdered in honour killings.”[15]

Hudood Ordinance

“In the 1970s, Pakistan experienced extensive legal, political, economic, and social changes which severely curtailed the rights of women. In 1977, military ruler General Muhammad Zia-ul-Haq, initiated a series of repressive legal and political measures as part of his 'Islamization' agenda.

The Hudood Ordinance was a set of laws prescribing punishments for crimes such as rape, adultery, theft, use of alcohol and drugs. Haq intended to implement Islamic Sharia Law by enforcing punishments mentioned in the Qur'an and Sunnah for zina, or extramarital sex. In the provisions of zina, a rape victim is liable to prosecution of adultery if she cannot produce four male witnesses (under Islamic law, a male's testimony is equivalent to two female's testimonies).This serves to reduce or totally exclude female evidence in courts.

More importantly, the Hudood Ordinance diminishes women's legal abilities, as women become legally defined and situated as dependents of their biological family and community. Pakistani women in legal contexts are not defined as "sui juris", that is, within the bounds of personhood, autonomy, and independent decision-making.

A conference held in May 2005 in Islamabad, Pakistan addressed whether Pakistani law, governments and international agencies were having any success in reducing honour killings in the country.They found that more cases of honour killing are being reported rather than hidden, and more women are having the courage to come forward. But, they found there was a severe lack of proper implementation of laws and assurances that men who commit honour killings are not given lighter sentences. The conference found primary fault with Pakistan's Zina laws that put women in an unfair disadvantage and inferior position, often at the mercy of men to prove their innocence.”[16]

1990 Qisas and Diyat Ordinance

“Most honor killings are encompassed by the 1990 Qisas and Diyat Ordinance, which permits the individual and his or her family to retain control over a crime, including the right to determine whether to report the crime, prosecute the offender, or demand diyat (or compensation). This allows serious crimes such as honor killings to become "privatized" and to escape state scrutiny, shifting responsibility from the state to the individual.

Under Islamic Sharia law, the punishment for murder, homicide or infliction of injury can either be in the form of qisas (equal punishment for the crime committed) or diyat (monetary compensation payable to the victims or their legal heirs). These concepts are applied in different ways in different Islamic systems.

In Pakistan, the right to waive qisas, or punishment, is given to the family of the victim. If and when the case reaches a court of law, the victim's family may 'pardon' the murderer (who may well be one of them), or be pressured to accept diyat (financial compensation). The murderer then goes free. Courts have used provisions like this to circumvent penalties for honor killings.

Once such a pardon has been secured, the state has no further writ on the matter although often the killers are relatives of the victim. Human rights agencies in Pakistan have repeatedly emphasized that women falling prey to karo-kari were usually those wanting to marry of their own will. In many cases, the victims held properties that the male members of their families did not wish to lose if the women chose to marry outside the family. More often than not, the karo-kari murder relates to inheritance problems, feud-settling, or to get rid of the wife, for instance in order to remarry.”[17]

Stoning of Farzana Parveen

“On 26 May 2014, a pregnant Pakistani woman named Farzana Parveen was stoned to death by her own family outside a court in Lahore, following the tradition of honour killing.”[18]

Conclusion

“The increasing number evidencesto the state's failure in controlling honour killings. The state has been unable to ensure that justice is administered fairly and equally ensuring protection of womenand their fundamental rights.”[19]Such a state obligation to administer justice equally and fairly is furthercompromised by the inadequate judicial system in Pakistan. There is a dire need for a radical reformation of judicial administration. The police are the first state agent to be approached in honour killings cases. The police play a vital role in the initiation of the reporting of honour killing cases and they should perform their duty with diligence and care. Police inability amounts to lack of judicial redress in honour killings cases. The police have to play a proactive role in controlling honour killings and the subsequent administration of justice.

“Theyshould take violenceagainst women as a criminal offence.Rather than considering it a family matter. The state is under an obligation to provide equal protection to aIl its citizens under its own constitutional and international law. It is also discussed in the report of the Special Rapporteur on violence against women, the "State is under a positive duty to prevent, investigate andpunish crimes associated with violence against women".[20]

The Special Rapporteur says that nation states have obligations under internationallaw to investigate the violence against women crimes with due diligence which not only limited to legislation but includes a training of state personnel. Under article 4 of Declaration on the Violence against Women lays down a series of judicial, legislative and administrative, educational and other steps that astate should take to end violence against women. There should be mandatory training sessions especially for police to handle cases of honour killings emphasizing that women are equal citizens attaining the same attention andProtection by police as men. They should be trained to understand the sensitivity andNature of the threat of the honourkillings and to act efficiently and legitimately to arrest the culprits.

"Asma Jahangir, a human rights activist in Pakistan and a U.N. Speicial Rapportuer on Extrajudicial, Arbitrary, and Summary Executions addressed the crime of honour killingsIn her report that " ... certain traditional practices which, when condones or ignored by the authorities, may constitute violation the right to life" which makes the state responsible under its national and international obligations. Further in her. Report she states that the police fail to intervene in honour killings and the judiciary ·often view the defence of the family honour as a mitigation of circumstance where a woman has been killed.”[21]

“Judges interpret and make law. They have an important role to play in judicial redress of victims of honour killings. They should perform their duty without any bias against women. They need to expedite honour killings cases to deter this crime rather than upholding customary norms and social attitudes. They should not use their discretionary powers· to invoke the repealed law of grave and sudden provocation to give a lenient punishment to the offender. Judges should play the role of an activist to mend the social evils. Again referring back to Samia's case, (who was murdered by her family for seeking divorce from her violent husband) the circumstances were not of grave and sudden provocation. Under Section 338-E of the P.P.C. the judge could have punish the offender with life imprisonment as Taz'ir. Aiso under Section 311 of the P.P.C. the judge could punish the offender with imprisonment as Taz'ir but he overlooked the circumstances of the case. In Samia's case the motive for murder was c1early to uphold tribal tradition; whereas amongst the parties; there isn't any lack of evidence in the mala fides of the victim's legal heirs to compound the offence. Under Section 338-E of PPC a court has the power to acquit or award Tazir to the offender according to the nature of the offence. The murder was committedupholding the traditions.”[22]

“But judges did not consider that law should be used to uphold justice and to condemn inhuman traditional norms. It is important to have a fair and impartial judicial system in which judges receive gendersensitive training to effectively rule on cases related to women's abuse and honour killings. There should be training of judges thunder stand the culture of violence which is propagated against women and to make them better equipped to handle the sensitive cases of honour killings, with special attention to vital details.”[23]

“Joint seminar sessions of NGOs and the judicial administration should be arranged to understand and discuss the on-going violence perpetrated on women and to help bring the justice for the victims of honour killings. Judicial gender-sensitivity in the cases of honour killing is of extreme importance, because uncertainties of judicial interpretation are inescapable in any system of law. This problem arises when the judiciary applies a law otherwise than in accordance with the intention of its drafters. In that perspective legislators can amend the law to make it unambiguous; to leave no room for persona! interpretation of law rather than legal jurisprudence.’’[24]

Legal Reformation and its Effective Enforcement

“Legal reforms should be made to target honour killings. An offender should not get reliefunder the Qisas and Diyat law. Compounding of murder makes it easier for theperpetrator to get away with the crime mostly committed at the instigation or with theconnivance of legal heirs of the victims. It is important to remove the crime from the listof offences compoundable under criminallaw of Pakistan.The Criminal Act 2004, (the bill on honour killings passed by National Assembly in 2004to eliminate violence on women in the name ofhonour) does not fulfill its purpose. NGOsand human rights activists failed to have the provision of compound ability of honourkillings removed because of strong opposition from political parties. The law does notaddress waiver or compounding of the offence which benefits a perpetrator in seekingforgiveness from legal heirs of the victim, mostly their close. Relatives. In Samia's case herfamily was party to her murder but was pardoned by her legal heirs. In Qisas and Diyatlaws being applicable in cases of honourkilling, murderers will often be able to escapet 25(alien women under law)punishment. Failure in address the issue of compundablity will mean the law can bringlittle change in women's murder taIly.”[25]

“Any laws discriminating against women should be repealed and amended. Lawsrestricting the liberties and freedoms of women must not be put in place in any part of thecountry.”[26]

“Laws in tribal areas discriminate against women and are in conflict with theconstitutional protections of equality and impartiality provided to aIl the citizens. FrontierCrimes Regulations 1901 is not only a badset of laws”[27]

“But also categorizes the citizensof Pakistan under their territorial jurisdiction Laws restricting the liberties of womenmust not be introduced in any part of the country.”[28]

“In tribal areas, customary lawsoverride the rights of women protected under religious and nationallaws. Customary lawsneed to be replaced by more just laws and the tribal areas need to be brought into themainstream ofnationallife.”[29]

“Presence of parallel judicial system in Pakistan has harmed women and helped victimizethem in the name of honour. A law should ban informal judicial forums of Jirga, a majorsource of abusing women's rights, for setting up one judicial system in Pakistan. A SindhHigh Court judgment ordering abolishing of Jirga’s is yet to be honored. In fact, afterthe promulgation of the law on honour killing in October 2004, Sindh Assembly receiveda propose to legalese the Jirga system.”[30]

“The draft law proposed by the SindhGovernment in October 2004 to legitimize the Jirga’s and their decisions had no provisionfor appeal.”[31]

The propose should be withdrawn immediately because Jirga’s are thefacilitators of honour killings and they act against the constitutional law and Islamicprovisions.

 The Government of Pakistan should be pressùred to adopt a single uniform court systemby eliminating the Jirga system. Judiciary should make efforts to reinforce its role as anindependent custodian of the peoples' basic right. The parallel judicial system haslowered public confidence in the judicial system and so it should be abolished.

Reformation of Judicial Administration

“Police and judiciary should receive gender-sensitive training to handle the cases ofwomen's abuse and honour killing. There should be mandatory training sessions forpolice to handle cases of honour killing, so they consider women as equal citizens as men. They should be trained to understand the sensitivity and nature of the threat of the honourkilling and act efficiently and legitimately to arrest the culprits.Judges should be trained to comprehend the culture of violence against women and tohandle sensitive cases of honour killing, with special attention to details.”[32]

NGOs andjudges should attend joint seminars to understand and discuss violence on women and tohelp bring justice to victims.

• Social and Cultural reformation

Legislation alone cannoteliminate honour killings; society has to play its part byeradicating the social and prejudiced norms against women. Social attitudes that relegatewomen to a status subordinate to men and on their role and place in a communityprevailing in large part of the society; inc1uding police, judges and legislators, hinderwomen victims of honour killings seeking justice.“Customs can be changed and molded according to the needs of the society. Society hasto play a more pro-active role using its means and measures to eradicate this crime inpatriarchal community through Islamic clergy's sermons, mass communication,the pleas of pardon as gained not by freewill but pressure by tl1e family of the murderer.newspapers, small grass-root NGO's seminar~ and public awatene55. The governmentshould encourage a countrywide social dialogue that advocates equality between womenand men and a comprehensive public campaign aimed at changing traditional attitudes.”[33]

• Awareness campaign on the rights ofwomen through Islamic clergy

“Since custom is the inner core and most influential of the non-regulating andinfluencing the viewpoint of millions of illiterate Muslim men and women, Islamicteachings which provide women equal rights andprotect ~hem should be used to savethem from being misinformed and establishing wrong beliefs.”[34]

“If the c1ergy helpspromote the real Islamic rights of women and propagate the provisions of Islam thatprotect women especially against allegationon their chastity and character”[35]

the problemwill be easier to cope with. The crime is more prevalent in Sindh province and the ruralareas of the country where people follow their customs and toe Islamic c1erics rather thanthe law. If Islamic institutions help spread the Interpretation of Quranic verses whichprotect and respect women's rights and make people aware of criteria for establishing acase ofadultery, and of the punishment offales accusation, the crime can be controlled toa great extent.

• Compilation of data on honour killings

Maintaining a statistical data is very important to know the number of and reasons forhonour killings for makingstrategies to curb the crime. The Government of Pakistan hasmade no effort to establish adatabase of victims of honour killing. It is only the NGOscompile the information and. statistical data based on the Gases reported in newspapers.However, many cases do not even getreported in remote areas of Sindh and Baluchistanwhere this crime is practiced very frequently and openly as a custom and tradition. TheShaheen Ali, "Equal before Allah", supra note 44 at 107.government should make efforts to set up a structure in districts to collect information forcompiling a statistical data.Statistics on the cases in whichlegal heirs of a victim compounded the murder under the criminal law could be used as an evidence to highlight the lacuna in the criminal law andto establish how they are used against women in getting away with the crime, especiallythe honour killing.”[36]

• Monitoring Culture notions and improving statusofwomen

Cultural patterns in Pakistan do not let women enjoy their legal and religious rightsprotected by the law and provided by the religion. Pakistan is an Islamic state but inwomen's rights, it derives itsinterpretation from customs and cultural norms. Culture isnot static and so can be molded. Like other customs and traditions, honour too is aconceptual norm which can be changed if majority of people are willing to do so forthe betterment of society and women.”[37]

“A social movement should evolve an atmosphere where fundamental rights are ensuredwith equality. Only legislative enactment will not suffice to bring change in the attitude of people living in Pakistan.”[38]

Even if law is promulgated against honour killing,administration and judiciary will still be influenced by its attitude and personal biasagainst women. Men and women should be made aware of theirrights and of the respectthey owe to each other's rights. What is most importantly required is to change the biasedcultural norms and practices in the Pakistani society. Even in the presence of strict laws,the administrationbeing biased willnot implement them in their spirit. “There is a direneed for a social movement to eradicate the culture of violence against women in thename of honour or tradition. If the cultural norms cannot be eradicated, laws shouldeffectively protect women's rights. Cultural traditions must come closer to the practice ofhuman rights and not vice-versa.”[39]

“Only promulgation of substantive provisions of law will not end discrimination againstwomen. Women's status will have to be raised socially, economically and politically.”529

This depends on change in the traditional attitude and customs which are based on the idea of inferiority of women.

• Mass Media and Educational Strategies

Media have always been effective in spreading awareness among people, literate andilliterate alike. "Media play a crucial role in influencing and reinforcing social perceptions. There could be programmers and plays on reforming women's status inPakistani society and especially on honour killing. There should be awareness amongmen about respecting dignity of women and treating them as equal persons, and amongwomen as well as about their legal rights. Syllabus for young children should redefine theirattitude towards women as carrying equal status and rights as men. Girls should notrelegate themselves to a status inferior to men's and should explore their potential.531

Gender neutral syllabus should be made part of the primary school curriculum. Thereshould also be national civiceducation programmers on women's rights. AlI possible stepsshould be made to end the culture of impunity associated with the honour killing.

Concluding remarks

Honour killing in Pakistan· is an interplay of culture, formaI and informaI laws andjudicial institution which protects the perpetrator. Under the rule of law it is an outcome of inadequate judicial administration. Court cases illustratehow various excuses have been used to give lenient sentences in honour killings and how honour is being gendered. Legal provisions of Qisas and Diyat law, plea of grave and sudden provocation, culturalnotion and religious norms are often used as an excuse to justify murder in the name of honour.

The case of Samia Sarwar, who was murdered at her lawyer's office by a driver at the instigation of her mother and uncle, was decidedby the formaI le gai system under the provisions of Qisas and Diyat law. The accused was pardoned by Samia's legal heirs, close relation of the victim and her family. The tradition was upheld violating legal and Islamic rights of women. Culture overpowered the· legal protections guaranteed by the law of the land. The killer was freed without any punishment. Such incidents will continue happening, if the plea for pardoning the murderer in the cases of honour killing is not eliminated from the law. This excuse acts as a protection against those who kill their women in thename ofhonour and then receive lenient punishments or get pardoned for the crime.

In the current legaI system and the set of laws, it is difficult for women to receive justice. As in Samia's case, a formallegaI system acting as doesan informai one, to discriminate against women's basic rights, bares the loopholes in the justice mechanism that is unable to provide redress and justice to women.

References

1.      Constitution oflslamic Republic of Pakistan, 1973

2.      Criminal Law (Amendment) Act, 2004 (enacted on 2nd January, 2005).

3.      Criminal Procedure Code, 1898.

4.      Evidence Act, 1872.

5.      Frontier Crimes Regulation, 1901

6.      Jordanian Penal Code, No. 16, 1960.

7.      Offences ofzrna (Enforcement of Hadd) Ordinance, 1979.

8.      Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

9.      Pakistan Penal Code, 1860 (Act No. XLV of 1860).

10.  Qanun-e-Shahadat Order, 1984.

CASES

·         Abdul Badshavs. Deputy Commissioner & another, PLD 1997 Peshawar 132.

·         Abdul Haque vs. The State & another, 1996 SCMR 1566.

·         Abdul Nabi vs. The State, 1997 SD 115.

·         Abdul Zahir v. The State,2000 SCMR 406.

·         Ameer Bux vs. The State, 2000 YLR 867.

·         Ashiq Hussain vs. Abdul Hameed & others, 2002 P.Cr.L.J. 859.

·         Ayesha Ijaz vs. Station House Officer, 1997 MLD 641.

·         Ch. Manzoor Elahi vs. Federation of Pakistan etc; Province of Baluchistan etc. vs. Malik

·         Fazal Din vs. The State, 1983 P.Cr.L.J692.

·         Federation of Pakistan v. Gui Hassan Khan, PLD 1989 SC 633.

·         Ghulam Mustafa & another vs. The State, 1983 P.Cr.L.J. 1712.

·         Ghulam Yaseen and others vs. The State,PLD 1994 Lahore 392.

·         Hafiz Abdul Waheed vs. Asma Jehangir, PLD 2004 SC 219 (Full Bench).

·         Khalil-uz-Zaman vs. Supreme Appellate Court,·Lahore &four others, PLD 1994 SC 885.

·         Maulvi Muhammad Ishaque Khosti vs. Government of Baluchistan, PLD 1979 Quetta 217.

·         MohammadAyub vs. The State, 1997 P.Cr.L.J. 2056.

·         Mohammad Rafique & others vs. The State, PLD 1993 Lahore 848.

·         Mohammad Sharif vs. The State, PLD 1987 Lahore 312.

·         Mst. Humaira Mehmood vs. The State & others, PLD 1999 Lahore 494.

·         Mst. Shazia vs. Station House Officer c.fc others, 2004 P.Cr.L.J. 1523.

BOOKS & ARTICLES

1.      Abdél Halim,· Asma Mohammad. "Challenges to the Application of International Women' s

2.      Human Rights in the Sudan" in RebeccaJ. Cook, ed., Human Rights ofWomen: National

3.      and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994).

4.      Abdul Ghaffar, Mian. The Constitution of the Islamic Republic of Pakistan, 1973

5.      (Amendments and Case Law-up-to-date) (Lahore: Irfan Book House, 2000).

6.      Afshari, Reza. "An Essay on Islamic Cultural Relativism in the Discourse of Human Rights"

7.      (1994) 16 Hum. Rts. Q. 235.

8.      Ahmad, Nausheen. "The Superior Judiciary: Implementation of Law and Impact on Women"

9.      in Farida Shaheed, Sohail Akbar Warraich, Cassandara Balchin, Aisha Gazdar eds.,

10.  Shaping Women 's Live; Laws, Practices and Strategies in Pakistan (Lahore: Shirkat Gah,

11.  1998).

12.  Ahmed, Anis. Women and Social Justice: An Islamic Paradigm, Second Revised Edition

13.  (Islamabad: Institute of Policy Studies, 1996).

14.  Akbar, S. & Ahmed, Zeenat. '''Mor' and 'Tor': Binary and Opposing Models of Pukhtun

15.  Womanhood" in T. Scarlett Epstein and Rosemary A. Watts, eds., The Endless day: Some

16.  case material on Asian Rural Women (School of African and Asian Studies University of

17.  Sussex, Pergamon Press, 1981).

18.  Alam, Muhammad Badar. "The Multan bypass: The alleged murder of 23-year old Afsheen is

19.  being pro1Jed on the directives of the president, but it does certainly discredit the system

20.  that we have been seeking to build" The News, 21 December, 2003.

21.  Alfredsson, Gudmundur. & Tomasevski, Katarina. A Thematic Guide to Documents on the

22.  Human Rights of Women: Global and Regional Standards Adopted by Intergovernmental

23.  Organizations, International Non-Governmental Organizations and Professional

24.  Associations, (The Hague: Kluwer Law International, 1995)~

25.  AI-Hibri, Azizah. "Islam, Law, and Custom: Redefining Muslim Women's Rights" in Kelly

26.  D. Askin & Dorean M. Koenig, eds., Women and International Human Rights Law,

27.  Volume 2 (New York: transnational Publishers, Inc., 1998).

28.  Ali, Shaheen Sardar. Gender and Human Rights in Islam and International Law: Equal before

29.  Allah, Unequal before Man (The Hague: Kluwer Law International, 2000).

30.  --- "Using Law for Women in Pakistan" in Gender Law and Social Justice: International

31.  Perspectives, Ann Stewart and Mike McConvilee, eds., (London: Blackstone Press,

32.  --- "Are Women Aiso Human? Women's Rights and Human Rights in Tribal Areas:

---

[1]Human Rights Watch, Crime or Custom? Violence Against Women in Pakistan (New York: Human

Rights Watch, August 1999) at 1 [Crime or Custom].

[2]United Nations Children's Fund: an organization within the United Nations that helps to look after the

healtha,nd education of children aIl over the world.

[3]See "Shahla Zia report" supra note 15.

[4]Muhammad Shehzad, "Honour Killings Continue", in Dawn January, 2003 online:

http://www.dawn.com

[5]Sunder Khan Sundurani, the chief Sardar of Jacobabad (a city in Sindh Province), admitted that most of

thekarokari cases were false accusations. Karokari cases are registered either to extort payment of the fine

or to get rid of a loan. The tradition is also used to occupy one's land or property. Manzoor, Economics of

karokari, supra note 65.

[6] "The Quran", supra note 35 at Surah Nisa 4:34.

[7]"The Quran", supra note 35 Surah Al Nur XXIV verses 4-9 at 243

[8]Ameer Buxv. The State, 2000 YLR 867

[9]International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171

[10]"Women's Judicial Redress", supra note 15 at 53.

[11]John Valery White &Christopher L. Blakesley, "Women or Rights: How should women's rights be

conceived and implemented?" in Kelly D. Askin&Dorean M. Koenig, eds., Women and International

Human Rights Law, Volume 2 (New York: Transnational Publishers, Inc., 1998) 51 at 52 [Jhon and

Christopher, "Women or Rights'l

[12] (Honour killing cases on the rise Munawer Azeem Published Jul 22, 2012 )

[13] (Justice Markandey Katju and Justice Gyan Sudha Mishra in Bhagwan Das Case Judgement (2011)

[14](Manoj-Babli honour killing case)

[15] (Dawn newspaper Pakistan)

[16] (Pakistan general survey of long era)

[17] (Islamic sharia law for honor killing)

[18] (farzana parveen case law)

[19] (Amnesty "Violence against Women", supra note 15 at 43)

[20] (Cited in ibid. at 39.95)

[21]. Ibid.

[22](Ibid. at22-23)

[23](For example one case decided by Justice Tasadaq Hussain Jilani, discussed supra under the sub-heading

of 'Liberal Activism', where he did not accept the pleas of pardon as gained not by free will but pressure by

The family of the murderer)

[24] (Aileen McColgan, Women under the law: the false Promise of Human Rights (Essex, UK: Longman,2000 )

[25] (State ofHuman Rights in 2004 (Lahore: HRCP, 2005) at 190 [HRCP report 2004)

[26] (Ibid)

[27] (Ibid.at 60)

[28](Ibid. at 190)

[29] (Shaheen Sardar Ali, "Are Women Aiso Human? Women's Rights and Human Rights in Tribal Areas: A Case Study of the Provincially Administered Tribal Areas of Pakistan" in Nighat Said Khan, Rubina Saigol, Afiya Shehrbano Zia, eds., A Celebration of Women; Essays and abstracts from the Women 's studies conferenceMarch;94 (Lahore: ASR Publications, 1995) 195 at 196.)

[30] (Seekingjustice for Women, Dawn, 8th March, at 7)

[31] (HRCP report 2004, supra note 513 at 171)

[32](For example one case decided by Tasadaq Jilani, discussed above in chapter 3 where he did not accept)

[33] (Phillip, "Human Rights in Context", supra note 172 at 192.)

[34]( Shaheen Ali, "Equai Before Allah", supra note 44 at 183.)

[35] (Discussed above in chapter 1. Isiamic provisions protecting women against faise allegation of adultery)

[36] (Gudie to Human Rights ofWomen, supra note 512 at20.)

[37](IWRA W reports, 1999, supra note 143)

[38](Yasmeen Hassan, "Honor Killings", supra note S•at 604)

[39] (Leuprecht, "Culture Against Human Rights", supra note 16'6 at 7 and 9)