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October 10, 2016

Confusing punishment


October 10, 2016

On October 6, 2016, parliament in a joint session passed the Criminal Law (Amendment) (Offenses in the name or pretext of Honor) Act, 2016. The law comes into force once signed by the president of Pakistan; it, however, fails to state whether it applies to the whole of Pakistan or not.

The government of Pakistan and many of its law-makers claim that the amendments carried out by the law have made the crime of ‘honour killing’ punishable with more stringent punishment.

A new definition has been added in section 299 of the Pakistan Penal Code 1860 (No XLV), after clause (e) which in the relevant part says the following: “(ee) ‘fasad-fil-arz’ includes……….. if the offence has been committed in or on the pretext of honor.”

In other words, the term ‘fasad-fil-arz’ refers to to honour killing. This new definition has been taken from the previous explanation to section 311 of the PPC which has been substituted.

The problem with this new act arises when one looks at the substitution of section 311 in the PPC by a new one. The substitution reads as follows:

“311. Ta’zir after waiver or compounding of right of qisas in qatl-i-amd. Where all the wali do not waive or compound the right of qisas, or if the principle of fasad-fil-arz is attracted, the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term of which may extend to 14 years as ta’zir:

“Provided that if the offense has been committed in the name or on the pretext of honor, the punishment shall be imprisonment for life”.

The way I interpret the above new section is to mean that where all the walis, defined under section 299(m), do not waive or compromise the right of qisas, defined under section 299(k), the court may punish the offender with death or imprisonment for life, or imprisonment extending to 14 years as tazir, defined under section 299(l).

The government claims that the proviso in the new section 311 means that life imprisonment is compulsory if honour killing is involved. Incidentally, the language in both the new and old section 311 proviso is the same except that the words “imprisonment for life” replaced the words “the imprisonment shall not be less than ten years.”

The problem is that nowhere is it stated in either the new or the old section 311 that the proviso automatically applies if and when honour killing is involved. I interpret it to mean that if all the walis do not waive or compromise the right of qisas (in other words, lack of unanimity), then the court can punish an offender with death or life imprisonment. However, the proviso means that if the offense is that of honour killing, then the punishment shall be life imprisonment; in other words, it cannot be death if there is lack of unanimity.

In the event of unanimity by the walis, section 311 shall not apply.

Some may argue about the presence of the word ‘or’ before the words “if the principle of fasad-fil-arz is attracted” in the first line of section 311 and say that the section deals with two separate eventualities, namely waiver by walis and honour killing. Even if one presumes this interpretation to be correct, the proviso to section 311 still does not say that life imprisonment for honour killing is compulsory.

There are a few other amendments to the PPC sections but they are not relevant to the above discussion. If the law-makers wanted to make life imprisonment compulsory for honour killing, all they had to do was to state the same. Section 311 should have been modified to only deal with the question waiver by the walis or compounding the offense.

A new section in the PPC should have been inserted, clearly stating that honour killing cannot be waived by the walis and that the offence is not compoundable; alternatively, even if a waiver was to be given for whatever reasons, it could have been said that the minimum punishment for honour killing shall remain imprisonment for life.

Such an approach would have made the law clearer; would have made the task of the courts easier while interpreting the new amendments, and could have made it easier for the public to comprehend the law.

The writer is an advocate of the Supreme Court Email: [email protected]

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