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Crime vs deterrence: Zainab case

Top Story

February 20, 2018

The murder of Zainab brought a wave of shock and the entire nation stood up for justice for her. The arrest of the accused was carried after the CJP took suo moto notice and his arrest and subsequent conviction have given sigh of relief to the family and the general public. The general public is pressing hard for public hanging of the convict till death. I have, therefore, presented the House with amendment in Section 364A PPC for public hanging. The said proposed amendment is under process as the law related to public hanging has been declared null & void hence there has to be an amendment in the law to move through the attorney general to Supreme Court to lift the embargo-on public hanging. The nations grow better with less crime rate than the societies, which are not self-accountable to laws of the state. Level and application of deterrence is highly important to check and reduce the crime rate. Crime is defined as an illegal act for which someone can be punished by the law, especially a gross violation of law or a grave offence against morality, person or property.

Deterrence is inversely proportional to crime which in now a universal fact. Let us examine the historical role and importance of deterrence. The law enforcers and criminologists developed Criminology as a discipline to study the crime and the criminal element, its causes, and the suppression and prevention of it. The history of criminology is in many ways the history of humanity and every religion has advocated for deterrence and deterrence is more effective when it is displayed in the public. The story of Abel and Cain is believed to be the first ever crime committed on earth. Cain and Abel were the two sons of Adam as mentioned in the Holy Quran. Both the brothers were asked to offer their sacrifices to God individually. Both made their sacrifices but the God accepted Abel's sacrifice and rejected Cain's, therefore, Cain out of jealousy, killed Abel. It is considered to be the first crime on the earth. In Bible, the penalties that judges must apply for each crime committed have been stated. These penalties are still being applied in the modern world. In Islam, the criminal laws are specified as Sharia laws. Islam has divided crimes into three different categories depending on the nature of the crime. (1) Hadood: it is said to be the crime against “God” whose punishment is fixed in the Quran and the Hadiths. Hadood punishments are the most crucial ones that cannot be forgiven by the public or the state. These punishments range from publicly stoning to death of the culprit to publicly lashing. (2) Qisas: Qisas is the right of the heir of Wali of the victim to demand for causing the same kind of hurt to the body of the offender. Qisas is the Islamic principle of "an eye for an eye". This category includes the crimes of murder and battery. Punishment is either exact retribution or compensation as it has been defined under section 299 of PPC. According to the provisions of the Pakistan Penal Code,“Qisas means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed”. (3) Tazir: It is the punishment other than “Qisas” or “Diyat”. In Islamic Law, Tazir refers to punishment for offences at the discretion of the judge (Qadi) or ruler of the state whose punishment is not stated in the Quran and the Hadiths. These are normally stated as the crimes against “Government”.

Islamic laws and punishments clearly portray the concept of deterrence by dealing with the crimes and offences in a just manner. The issue of capital punishment in Judaism according to Jewish law is proportional to that of the monarchy in England. In Indian Hindu mythology word “karma” means action. One's own actions will decide his/her fate. Every society has evolved some system of punishment to check criminal behaviour, with the belief that fear of punishment would deter such criminal acts in the future.

The study shows that every religion emphasises on deterrence against the crime. It is proven fact that the deterrence to crime is an integral part of growth of healthy society, which is being followed for centuries. The natures of crime are fast growing and hence the governments are coping it by introducing new laws to create effective deterrence. I would like to say that the level of deterrence is important but more important is an effective and prompt implementation of the law/deterrence. Our failure of rule of law is that although there is severity of law but these laws are not implemented effectively and across the board, which provides an opportunity to the delinquents to exploit this discrimination.

Our law enforcement actions and judicial proceeding stand discriminatory vis-a-vis high profile cases and cases of a common man. Our judicial system is heavenly burden with pending cases. It is felt that the cases appeared in the media fetch high level of attention from law enforcer and the courts and many cases/victims do not get justice in time because of ineffective criminal justice system. The cases publicised in the media draw the attention of the superior courts, which result into suo moto notices. I wish that these cases would have been dealt with by the law enforcement agencies/police appropriately before those found place in the media.

We need to build the confidence of the public in the institutions and a sense of deterrence has to be prevailed in the society by creating fear of law and accountability. We see now major time of the superior judiciary is utilised in high profile cases, which shows the prevailing law enforcement system has failed. I think that as a nation we have deviated from the principles of implementation of rule of law, which is essential for the safety of the society. The dilution of rule of law has created the present judicial and law enforcement crises and the constitutional institutions are under severe attack and such attacks on institution are going to be further detrimental for the country. Why we have reached to this level of distrust? The role of deterrence in curbing crime is basically one of the primary objects of the Criminal Law and mentioned in all the holy books. Its basic motive is to frighten the members of a society of a state from committing a crime out of the fear of being caught and punished.

The most effective deterrent would be a just and effective criminal justice system that would make it certain that anyone who breaks the law would be certainly apprehended, punished and convicted according to the offence. The countries with lowest crime rate have been observed as having effective law enforcement and highest rate of indiscriminate conviction. It is unfortunate to note that with the increasing rate of militancy, terrorism and deteriorating law and order, Pakistan stood fourth on a list of the 20 most dangerous countries in the world in 2017. This is worrying for us and for coming generations; incidents like Zainab has further tarnished our national image worldwide. Are we so incompetent that we failed to identify our failures in law enforcement and judicial system?

There is no doubt that right deterrence/right implementation is integral part of journey to progress. Are we waiting some Devine help to set our criminal justice system right or we, as country, has to reduce the crime rate here to ensure crime free society. Our criminal justice system needs to be revisited and updated according to the growth of crime rate. I pray that we do not have to witness another case like Zainab in future. In the end I must say that we need certainty in law in addition to its severity.

The writer is Chairman of think tank “Global Eye”, Chairman Senate Standing Committee on Interior and former interior minister of Pakistan. He can be reached at Email: [email protected], Twitter @SenRehmanMalik

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