JURISPRUDENTIAL DEBATE ON COMPARATIVE STUDY OF LAW OF HOMICIDE
WITH PARTICULAR REFERENCE TO
ISLAMIC LAW OF HOMICIDE ITS PENAL CONSEQUENCES AND CRIMES OF
HONOUR AND PASSION
By:
BARRISTER KHURRAM SALEEM BAIG
LL.B. Hons. (
LL.B (
LL.M. Hons (
Advocate High Court.
Email: ksbaig@hotmail.com
The thesis
explains and analyzes the English law of murder with comparable provisions of the law of murder under Islamic law. It is a possible criticism on divergent issues to see
if laws can be re-examined or modified to
determine a system in order to minimise or to abolish the defence of honour killing.
This paper considers how the
punishment for murder imposed on the offenders by the Courts under the
respective judicial systems differs and what are the main areas of distinction on this issue. Under the English
Legal System the crime of murder in all circumstances has different
categories and is treated as an offence against the state and the society in totality. The crime of murder under the
Islamic system, as prevalent in the
Arab World and other Islamic
countries is not always considered as a
crime against the society or against the state but in some areas it is
treated and considered as a private offence
against the victim and his family. The family members in this scenario are considered as the arbiter in the process of awarding punishment or penalty. Occasionally they also intervene during the
judicial process of trial and exercise powers given under the Doctrine of Qisas and Diyat. In this
paper, the emphasis is placed on the term "Qisas" and "Diyat" as defined in the Islamic law and how it is interpreted by the judiciary.
The legislation on this issue
made and promulgated by the Government of Pakistan is known as Qisas and Diyat
Ordinance. It will be seen as
to what extent the powers and discretion
of the victim’s family have been impaired and to what extent the discretion has
been bestowed to the judiciary to overrule the will of the victim's family. It
will also be seen as to how far the judiciary is acting as a judicial activist in this area and to what extent it has encroached upon the powers to
inflict penalty available to the victim's family under the injunctions of Islam. The study also includes criticism
and suggestions.
The
Ordinance emphasizes that no one convicted of murder be given pardon by the State without permission of the
victim’s family which is a drastic change in the prevailing system as under the previous British
system, the State had the powers to pardon
the one convicted of murder.
Under the Anglo-Saxon
jurisprudence, Society represented by State, holds a direct control over
serious offences concerning person and property. The launching of the prosecution,
the withdrawal of the prosecution, reprieve and pardon after conviction and
sentence by the State and its functionaries are all manifestations of this
feature. The victim of the crime or his
heirs have no say in the matter. Under the injunctions of Islam this is not so; at least in respect of offences
against person. In Islam, the individual victim or his heirs retain,
from the beginning to the end, entire control over the matter, including the crime and the criminal. They may not report
it. They may not prosecute the offender.
They may abandon prosecution of their free-will. They may pardon the criminal at any state before the execution of the
sentence. They may accept monetary or other compensation to purge the
crime and the criminal. They may compromise. They may accept Qisas from the
criminal. The State cannot impede, but must to its best, assist them in achieving their object. There is another sweeping change. The State has no powers
to pardon or reduce Qisas or diyat, punishments, which are the sole prerogative
of the heirs of the victim. The State however
retains the power to pardon or reduce the mitigated sentence, which is short of Qisas or Diyat. Similarly the heirs of victim have no
powers to pardon or remit the
sentence other than Qisas and Diyat.
The
punishments for homicide under Qisas and Diyat have encouraged repetition of criminal acts. The Qisas and Diyat punishments have
not been seen as a deterrent. The society experiences an upward trend in crimes.
Strict legislation is suggested to create deterrence
in the society. Although compromise
and pardon by the legal heirs of the
victim is acceptable by the Court but keeping in view the public interest, the Court may convict the
accused to undergo rigorous imprisonment.
The study of the criminal law journal in
In this article, the defence to murder under the pretext of provocation
as being applied under the English Legal System and American System on the
ground of defence of provocation has also been discussed. A comparative study
of provocation as a defence to murder under the English Legal System,
under the legal system prevalent in the
Arab World as well as in Islamic
countries with orthodox social system
has been highlighted. In this regard, emphasis in the paper is made to pinpoint
the misuse of defence of honour killing in Islamic countries as well as the rural societies of
II COMPARATIVE VIEW OF HOMICIDE UNDER THE ENGLISH LEGAL SYSTEM AND UNDER ISLAMIC LAW
Homicide, according to the
English law, may be (1) justifiable, (2) excusable, or (3) felonious. Justifiable homicide is of three kinds: where the proper officer
executes a criminal in strict conformity with his sentence; where no
officer of justice, or other person acting in his aid, in the legal exercise of
a particular duty, kills a person who resists
or prevents him from executing
it; or where it is committed in prevention of crime
attempted with violence.
Excusable homicide is of two kinds i.e. by misadventure, as where a man doing a lawful act without any intention of hurt by
accident kills another; or where a man kills another upon a sudden encounter in defence of himself or his
belongings.
Felonious homicide is of two kinds i.e killing one's
self, or killing another which is either murder or manslaughter; and this either is
voluntary, where a man doing an unlawful act, not amounting to felony, by accident kills
another; or involuntary, where upon a
sudden quarrel, two persons fight and one of them kills the other; or where a man greatly provokes another, and the other
immediately kills him. Culpable homicide and murder are offences dealing
with destroying the lives of human beings; an offence cannot amount to murder unless it falls within the definition of
culpable homicide.
An act of killing done with the
intention to kill, or to inflict bodily injury likely to cause death, or with the knowledge that death is
probable is prima facie a murder, committed
with the knowledge that death will be a likely result. Where the act was not done
with the intention of causing death, the difference between culpable homicide
and murder is merely a question of different
degrees of probability that death would occur. It is culpable homicide where death
must have been known to be a probable result. It is murder where it must have been known to be the most probable result.
A. The Classic Definition of Murder is given by
Coke:1
Murder is when a man of sound memory and of the age
of discretion unlawfully kills another human being, with malice aforethought
either expressed by the party or implied by law, so as the party wounded, or
hurt, etc, die of the wound or hurt, etc, within a year and a day after the same.[i]
The meaning of the term is of the utmost importance,
for it is the presence or absence of preconceived malice, which
determines whether an unlawful killing is murder or manslaughter.
"Murder is unlawful homicide with predetermined malice. Manslaughter is an unlawful
homicide without predetermined malice. "Malice aforethought is a concept of the
common law. Although the common law of malice aforethought is now fully stated in
the rule requiring an intention to cause death or grievous bodily harm.
At common law, what was known as the felony murder
rule; a killing while furthering another offence, was considered murder even
though neither death nor personal injury was intended, although ultimately this
was restricted to killings in the violent felonies.
Until the Homicide Act 1957 2, all persons convicted of murder were automatically sentenced to death. By s.5 of that Act, certain types of murder were
singled out and designated
"capital murder". They continued to be punishable by death, while the
remaining types of murder were
punishable by imprisonment for life. In fact, we have had two degrees of murder. The distinction between
the two degrees of murder proved to be most unsatisfactory, and the death
penalty for murder was suspended by the Murder (Abolition of Death Penalty) Act 1965, 3
which is to continue permanently in force. All persons convicted of murder must now
be sentenced to imprisonment for life.
To get a
comparative view, it is necessary to know as to how the intentional killing of a human being is dealt with under the injunctions
of Islam. Professor NJ Coulson has summarised the historical background of Islamic
Law as:
Under the
pre-Islamic customary law a rough system of private justice, dominated by the notion of vengeance, had
prevailed in these matters. The loss of a tribal member was to be avenged by the
infliction of a corresponding loss upon the culprit's tribes who were collectively responsible for
the action of one of their members. Until satisfactory vengeance had been wreaked,
the soul of the victim could not rest in peace; and since the natural tendency was for a
tribe to set an exaggerated value on the member it had lost, two or more lives might be
claimed in revenge for a single victim. The Quranic maxim thus radically altered the
legal incidents of homicide. Henceforth only one life-the life of the killer
himself-was due for the life of the victim, and the distinction is marked by a change of terminology,
the term tha's (blood revenge) being replaced by that of qisas (just retaliation). Islam allows
only the killer himself (or several killers for one slain) to put to death, and only if he is fully
responsible and has acted clearly with deliberate intent; Islamic Law further recommends
waiving. The considerable restriction of
blood feuds was a great merit of Muhammad's. It is once again noteworthy,
however, that the basic structure of the existing law is left unchanged. Homicide remains an offence which falls into the
category of civil injuries rather than that
of public offences or crimes for it is the relatives of the victim who have the
right to demand retaliation, accept
compensation or pardon the offence. 4
Under the
English Legal System a person convicted of murder is sentenced to imprisonment for life. However,
under Islamic Law, the punishment is regulated by the Doctrine of Qisas and Diyat which
is a primary distinction between the two systems.
Islamic law of Qisas and, Diyat summarised as the concept of retaliation was against the tribe of the offender though sometimes
the actual offender can be punished through
arbitration. Islamic Law modified the traditional Arab law in three ways: firstly, the blood feud was abolished; secondly,
vengeance could be exacted only after determining the guilt of the
accused through judicial proceedings. The crimes were to be proved by two witnesses or by confession; thirdly, different punishments were laid down
for different offences according to the degree of culpability. In the case of homicide, four kinds of
punishments have been laid down by the Shari'ah "qisas (retaliation),
diyat (blood money), kaffarah (expiation), and prevention from
inheritance" whenever relevant.
In pre-Islamic
Islamic law
of homicide, like other branches of Islamic law, adopted and varied many areas
of the pre-Islamic Arabian legal system. Islamic law described three categories
of crimes i.e.
Hadood, Tazir and Qisas. Hadood crimes are crimes against God, which prescribes penalties that cannot
be established at the discretion nor can -be
suspended or abolished by the aggrieved
parties or authorities. Tazir crimes are based to preserve the public order. Judges are permitted to exercise
flexibility and discretion in dispensing punishment and pardon. In contrast, the Qisas crimes relate to murder
and causing intentional physical
injury and harm. The control over the execution of punishment in Qisas, crimes are limited to the victim or his
heirs. The Quran has prescribed a proportional standard of punishment
i.e. life for a life or retaliation. The Quran also allows pardon or compensation. The right of the victim or his
family is either to demand retaliation
(Qisas), to forgive or to enter into a compromise. The State can prescribe the
quantum of compensation (Diyat) to be
paid to the victim or his heirs. The judges however consider several factors in determining the compensation
i.e. seriousness of the assault, the intent of the offender and the financial status of the victim including the
status and sources of the offender.
The Quran recognizes retaliation as a mode of punishment; however, it also expects
the believers to exercise calm and restraint in their action and against the
action of others.
A. Diyat (Compensation as a punishment for crime)
The
conflict between the retribution and forgiveness, up to some extent, is being solved by Diyat. For intentional
murders and attacks, the question may arise as
to whether
Diyat is designed to compensate the victim or it is a punishment for the offender. Diyat is considered as a device to extract from the offender, the
compensation for the suffering of the
victim. The Diyat however, may result in reducing the deterrent for the offender, as in some cases the offender is unable to pay for himself and the compensation in the shape of diyat is made by the
family of the offender. The spirit of the
diyat is that it must serve as deterrence
in the form of punishment. However, the offender who pays diyat succeeds in mitigating his crime as such that it never proves to be a punishment for the crime.
The Qisas
and Diyat Ordinance were promulgated in
The first
problem involves the poor offender and how he may be punished with mercy i.e. forgiveness rather than
retaliation if he is unable to pay Diyat. The law is silent as to how a poor offender can be saved from
retaliation. The victim or his heirs retain the choice between the retribution and Diyat. It is unlikely that they would
choose anything less than the compensation. The third option, which is a total
pardon for the offender attracts practical as well as legal complications as the heirs of victim of murder are always reluctant.
1 Legal Problem
The legal
problem relates to establishing a minimum Diyat implying that complete forgiveness with pardon may not be proper if the
victim or his heirs are merciful. The inability of some offender to pay
diyat by the mercy may attract criticism about the fairness of the law. The other criticism is that for the wealthy
offender, the Diyat is never an
adequate deterrence. The need to maintain the deterrent value of Diyat is
emphasised so that an offender could
not imagine acquitting himself cheaply after destroying a life and paying blood money (Diyat).
2 Comparison.
The comparison of law of homicide under the English Legal System and the
law of homicide
under Islamic law is that, under the English legal system, the crime of murder in all circumstances is considered and
treated as an offence against the state and the society in general. The aggrieved person's will or desire in the process
of trial or conviction does not play any role nor the victim's family or legal
heirs have been empowered or given
any discretion to waive, adjust or compound the crime or offence. The offence
of murder being felonious is taken as an offence against the society, which in all circumstances is to be punished if the
same is proved as per law. Under
Islamic law, the offence of murder is treated not as a public offence
but as a private offence against the victim or his family who become aggrieved
of the offender's aggression resulting into killing. The law of qisas and diyat
empowers the heirs of the deceased victim to
demand qisas (retaliation) punishment or waive, compound or compromise the offence. The discretion conferred on
the legal heirs in this regard converts the offence from public into
private.
3 The Effect of the Waiver
The effect
of the waiver or compromise is very drastic which is that death penalty is converted into Diyat along with imprisonment which is
also rarely been given by the courts.
In
Now the state has got a
secondary role whereas victims or heirs of victim have assumed a primary
position and would be a necessary part at every stage of trial including bail stages with rights of appeal
against adverse orders.
4 The
Main Distinction
As Islamic law of homicide operates in private capacity, the powerful
and rich lords misuse
it and they go scot-free by using their influence and money etc. This criticism
of injustice is
valid on its face value in the tribal system as well as the rural society where the rich persons with resources exercise pressures of
various kinds on the victim’s families which result into waiver,
acceptance of Diyat (blood money) etc. by which capital punishment or life
imprisonment is avoided and the hardened criminals are provided another chance to commit further killings.
The term Qisas (retaliation
punishment) means "a person who has committed a given violation (i.e.
murder under discussion), will be punished in the same manner by the same means. Now under the new system, the State
executes murderers by death penalty. However, an optional remedy for the
murder victims’ heirs is made available. If they chose to waive the punishment
of retaliation (death penalty), they can substitute the payment Diyat
(compensation) for death. The effect and implication of the exercise of power or option of waiver by the
victim's heir will be discussed and seen. It has the effect of shift
from the British system of State's control over the punishment under
It was held by the High Court (PLD 2002
The main distinction therefore between Islamic Law and Western Law on
homicide (Qatl-I-amd)
is that in Islam, when the offence of homicide is committed it gives birth to two rights: one to a person (heir
of the victim) and the other to the society / state. The heir has a right to claim Qisas, which
is an eye for an eye etc. or would opt for Diyat or compromise or waiver. Whereas in the Western or
English law there is no concept of a private right of a person who suffers from the death of his family member. Homicide is a crime against the state and the culprit is liable
to be punished according to the law of the state, which was punishment
of death. But recently, the majority of the Western States in the
III CRITICAL
ANALYSIS
The interpretation of the
Quranic verse on the issue of complete pardon suggests that the Qisas victims and their heirs are entitled only
to retributions by Diyat and are not empowered
to grant complete pardon. It can be argued that the right of remittance conferred by the Quran upon the victim or his
heirs, gives the right to pardon fully and without compensation.
Islamic Law gives preference to
the suffered family by giving them the right of Qisas (retaliation), Diyat (blood money), or ufw (pardon/waiver). In case the
murder is proved without any shadow of
doubt, the person guilty of committing murder is liable to be punished with death penalty if the legal heir or
heirs prefer Qisas (retaliation). In case the heir is a widow, a minor, or a widow with minor children having no
source of income, he or she can choose
Diyat (blood money as compensation)
instead of Qisas (retaliation) in order to be compensated for the loss
they have undergone and to plan for the future. They can also waive their right without any compensation
due to any reason.
An adult heir of the victim may
at any time, with or without any compensation, waive his right of Qisas (retaliation) i.e. right to claim death penalty is
waived. However question may arise as
to whether the victim's heir has a right to
insist for Diyat and punishment short
of death. The law is silent on the issue. However, the issue is left to the
courts to settle. The issue, which at this juncture emerges is, where an
offence has been waived or
compounded, still the Court may, in its discretion, having regard to the facts of the case, acquit or inflict punishment
(Tazir) to the offender. In this regard, the
acquittal of a criminal with dangerous behaviour indicates a grave risk to the
society as a whole.
Thus when
an individual is responsible for systemic law breaking, the state must take control of his activities and
inflict punishment. This matter may not be left at the sole discretion of the aggrieved
victim or his family (heirs). In Saima Waheed v
Raheel8, earlier
decided by the Supreme Court, it was held that waiver or compromise by the
heirs of the victim shall have the effect of acquittal of the accused with whom
the offence has been compounded. In the
later case of Amna v Zaheer 9, the Court was informed that a minor daughter of the victim had moved an application pardoning the accused
offender (murderer). The court accepted the pardon but awarded Diyat
(compensation/blood) money, which was to be assessed by the Federal Government. At the same time the
Court also held that since there was hardly
any justification for brutal murder, therefore in addition to compensation, the
accused was liable to suffer
imprisonment for a term of only three years.
The above judgement clearly
indicates that by mere pardoning of the offender by the heirs of the accused, would not absolve him from paying the compensation
(Diyat), but compensation is not
adequate in this regard. The effect of pardoning the accused in these types of cases, results in the substitution
of death penalty with a lighter punishment.
The power to pardon therefore results into the removal of the death penalty or
life imprisonment, which has the
effect of encouraging a killer to repeat the offence. Hence the courts have assumed
the discretion to award punishment keeping in view the gravity of the criminal
act of killing.
In
language that suggests broad judicial discretion, the Ordinance gives the state
the power to impose
punishments not requested by the victim but simply for vague social reasons. Likewise, the Ordinance
prohibits the State from suspending remitting, or commuting any sentence that is
the preference of victim's family. The drafters of the Ordinance chose to make pardons
completely subject to the victim's permission. A pardon by the victim or his heirs may help in the
patching up of differences, in diminishing the sense of vengefulness or vindictiveness and in
cultivating amicable, harmonious
relations between the parties. The right of the aggrieved to exact retribution,
to forgive, or to
enter into a compromise, exists throughout
his lifetime and
may upon the death
of the aggrieved, go to his heirs. If there are no heirs, the right passes to
the State. For
intentional murders and attacks however, the question arises whether Diyat is compensation or punishment.
Thus, Diyat may result in reduced deterrence and a refutation of the peace-keeping
role for which Qisas was originally intended. First, the problem of discrepancies in
wealth, involves both the inability of a poor offender to negotiate settlement
and the inadequate deterrent effect of Diyat on a wealthy offender. The second issue is whether the
victims or heirs may fully pardon an offender. Therefore, the Ordinance provides no
opportunity for a poor offender to be saved from retaliation. The only exception for the poor
offender is a provision that provides for a prison sentence in case of
non-payment of Diyat.
This
argument does not mean to imply that murderers deserve pardon (free or compensated). But even if retributive
punishments in the Ordinance are to be considered fair and the opportunity for
Diyat constitutes merely gratuitous mercy, the Government of Pakistan must address where
the inability of some offenders to buy that mercy may undermine the fairness of the
entire scheme.
Another
problematic scenario, one which is addressed more competently by the Ordinance, is that of the wealthy offender for whom
Diyat is not an adequate deterrent. The
Finally if
an offender's wealth is so great that even this large amount has insufficient deterrent value, the judge may
consider the financial situation of the convict and raise Diyat.
Heirs are
entitled only to retribution or Diyat but may not grant complete pardon. Most commentators however, have argued
that the right of remittance bestowed by the Quran upon the victim or heir gives the
right to pardon, fully and without compensation. This is the position of the Ordinance
that states, "in
the case of intentional murder an adult sane heir may, at any time and without
any compensation
waive his right of Qisas.
Islamic
law states that even after pardon or settlement, the State may improve a sentence in cases where the state or the community is
affected. The general purpose of punishment
is to protect the community and the public order. Its primary role, therefore, is to provide a deterrent to any criminal
behaviour that threatens society as a whole.
The safety of the community may even
require that the State retains the right to impose punishment in the case of pardon or settlement. One
further role of discretionary punishment,
as articulated by the
The Supreme
Court compromised between the two positions, determining that discretionary punishment could not
include the death penalty, in case where the victim or heir has forgiven the
offender. Where an offence has been waived or compounded, the court may, in its discretion, having regard to the
facts and circumstances of the case, acquit
or award punishment to the offender according to the nature of the offence.
But if the rights of the victim or heir are to be
preserved to some extent, the law must distinguish between those cases in which
State's intervention is necessary and those in which intervention constitutes an
unacceptable usurpation of the victims' rights. But which cases of
unjustified murder remain within the control of the victim and which constitute the
State's control? Islamic jurists have long tried to define exactly when it is
that an injury has been
inflicted on the community. The
One who
masterminds the criminal activities of others and thus assembles around him other criminals; hardened,
cold-blooded as well as potential, and in the
advancement of any or all of these
activities, commits or abets murder, is responsible for systematic law-breaking and the State must take control
of his punishment.
The
Murders in
urban societies occur more randomly, between strangers and are less likely to arise out of long standing
disputes. The consequences of a pardon may be that the offender disappears into the anonymity of urban life
and is therefore more likely to victimize
another stranger than to attack the same family. In this case, the heirs may be
less worried about setting the
offender free and thus less likely to demand retribution.
When
discretionary punishment may not be used, it may be assumed that a judge is
free to punish
whenever he feels that the settlement has not adequately protected the society.
The Ordinance would still leave judges
with the option to accept private settlements. Indeed, it allows the judges
enormous discretion, not only to determine the extent of punishment but also to decide whether an offender
will be punished at all.
The final and least attractive
scenario is the continued uncertainty. Unless the Pakistan Government or its judiciary develop a fair and
consistent pattern of overseeing the Qisas and Diyat process, the Ordinance might lead to confusion and inequity
and result in society's
disillusionment with judicial arbitration.
IV COMPARATIVE STUDY OF DOCTRINE OF PROVOCATION
AS A DEFENCE TO MURDER
A plea of provocation is raised as a defence by a defendant accused of
murder. Provocation is a defence to a charge
of murder at Common Law entitling an accused to be convicted of manslaughter with a reduced punishment. The common law
rule has been modified by the Homicide Act 1957. Section 3 of the
Homicide Act 10 assumes the existence of common law defence. The section also
assumes the existence of the dual test
i.e.: Section 3,
1)
whether the defendant lost his self control by provocation, this is a
subjective test. 2)whether
the provocation was enough to make a reasonable man to act in a manner he did, this is an objective test.
Lord
Goddard in Kumarasinghege Don John Perera11
defined the conditions and circumstances causing provocation resulting into crime of murder. It
was inter alia observed:
The defence of provocation may
arise where a person does intend to kill or inflict grievous bodily harm but
his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An
illustration is to be found in the case .of a man finding his wife in the act of adultery who kills her
paramour, and the law has always
regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received.
The Modem
Law of provocation is based on reasoning, where the accused must prove that there was reasonable
provocation that in fact he was provoked and being a reasonable man, he did not cool off in the interval
between the provocation and the alleged
fatal blow.
A HONOUR KILLING
Sudden Provocation And Honour Killing In Countries Following Islamic Law (Sharia)
As currently applied in many Islamic countries, the law
recognises defenses for men who murder their wives for committing adultery.12
In
If a man
sees his wife in a sexual relationship with another man, he has the legal right
to kill her without being prosecuted for murder. In the case of his daughters and sisters, he can also kill
them, but a punishment of a few months in prison is possible.
In Iraq Article 40913
provides
for the acquittal of men who kill female relatives suspected of adultery or
pre-marital sex.
Men may
kill their wives for adulterous acts and escape punishment. The laws in most
Islamic countries require lower
compensation ("blood money" or "diyat") for the families of
female murder victims than for those of male murder victims. An example of a
crime of honour is the killing of a woman by
her father or brother for engaging in, "or being suspected" of engaging in sexual activities before or outside
marriage. Killing in this scenario is not only based on sudden provocation but also on mere suspicion, which is
contrary to the principles of sudden
provocation in
Killings
committed in a "heat of passion" which is not in true sense
the "heat of passion" are regarded valid by the courts especially in Pakistan,
even though provocation here is based on
mere suspicion and it is not sudden, which gives time for an offender's passion
to cool. Even more striking is the fact that it is the paramour that is getting
killed more often during honour killings.
In
traditional Islamic society, a woman is the source of her family's honour that
is being given a new term in Pakistani
society (Gherat). By committing adultery or losing her virginity before marriage, she spoils this honour. Men carry no such
responsibility; instead, social
values often require them to avenge their female relatives' behaviour. Some countries like
Under Islamic tenet "a Muslim shall not suffer death for an
unbeliever" to mean that the murder of an adulterous female
relative should not incur Qisas (life imprisonment
or death penalty). In extreme cases, men who murder adulterous wives receive no punishment at all. Since the family
honour rests solely in women, there is no analogous defense for women who kill adulterous husbands. Adulterous
husbands are also liable to be punished under Islamic Criminal Law for
committing adultery. If defence of
provocation is available to a husband killing his adulterous wife, such a right
should also be available and may not be denied to a wife who kills her
adulterous husband for lack of the element
of honour in such situation.
B Defence
Of Sudden Provocation And The Issue Of Honour Killing In
The concept of sudden
provocation is alien in Islam. Mere provocation, however serious and sudden, cannot reduce murder to
manslaughter or culpable homicide not amounting
to murder. The doctrine of provocation was incorporated in the Pakistan Penal Code 1860 under section 300, which is
an exception and a number of judgements in
this regard were pronounced. The provisions of Pakistan Penal Code 1860
were based on Common Law.
The grave and sudden provocation is not an exception
per se and punishment of Qisas where, intentional murder is committed under grave and sudden provocation
can be mitigated to life imprisonment if the
requirements of four witnesses are fulfilled in the cases of adultery.
Such as proof of Zina (illegal sexual
intercourse) is established, which conforms to the required standard of
evidence prescribed under the Islamic Injunctions. The concept of sudden and
grave provocation is very much part of the western/common law and
has a long history of evolution and was for the first time, given the status of
a valid exception in the law by
passing the Homicide Act,
The
Pakistan Penal Code does not formally recognize a
defense for men who kill their wives, but courts have utilized the concept of
"grave and sudden provocation" to serve similar ends. Under section 308 of Pakistan Penal
Code "culpable homicide is not considered murder if the defendant lost
self-control due to grave and sudden provocation".
Such a defendant will receive a mitigated sentence or sometimes no sentence, he being justified by the courts for protecting his honour. Only men may
take advantage of this defence, as it
is based on the idea that the woman has insulted the family’s honour. The Lahore High Court, in Sher Ali v
State14 explained the theory as:
To see
one's wife, in an objectionable condition, or even mere suspicion that the wife
is adulterous
according to the background of social custom prevailing in our society and also moral values, notion of
honour and chastity, it is regarded as the provocation of the gravest kind to witness.
However,
“objectionable condition” has not been explained by the courts in
So according to Adam's explanation, the offender's
actual power of self-control or level of self-restraint is irrelevant and the court or the jury is
required to imagine a person with the
power of "self-control" of an "ordinary person". The
offender’s personal characteristics
are not relevant here. This includes disposition to lose one's temper, which more often happens in
The
courts in
In
The Supreme Court in
In the
majority of the cases, males who do not even witness these sexual acts kill
their wives, sister or daughter on the
ground of doubt. The courts in Pakistan and other Islamic countries accept
doubt or suspicion as sudden provocation and
men get acquitted by the court or
face one or two years life imprisonment.
The act of
killing of females for sexual activity is violative of fundamental right as enshrined in Article 8 (1) of the
Constitution of Islamic Republic of Pakistan 4° which
provides that "no person would be deprived of life or liberty except in
accordance with law and any custom or usage in that respect is void under
Article 8(1) of the constitution". But provisions of the Quran prevail
over the constitution here. However the Division Bench in a case reported as Mumtaz Khan v Musarat Khan16
observed that:
What kind of world is it we live in where horrifying
crimes such as `Honour Killing' are not
merely given cover under law and custom or in the name of religion, but often perpetrated. One step forward has been followed
by several steps back..
Victims of violence by male
family members, sold or exchanged in marriage, killed in the name of honour for
the crime of exercising control over their own lives and all this is being done
in the name of Islam, custom and the Law.
The
pretext of honour killing as argued by its supporters is two fold. One is the
right of self-defence if chastity of a female member of the family is found to
be in danger. The argument could give
rise to a plea of acquittal altogether. The other pretext is sudden provocation
on account of incidents of involvement of female members of the family in
illicit relations with paramours. This is termed by them as honour killing by
taking defence of sudden provocation. This misnomer of honour killing creates
problems for prosecution to get adequate punishment for the accused.
Under the
British made System prevailing and in vogue, in Pakistan prior to Qisas and
Diyat Ordinance, the
plea of sudden provocation on account of some act of the victim was accepted as a defence and mitigated sentence was
awarded. The Supreme Court in
The
Division Bench of Quetta High Court in Mumtaz Khan's20 case rejected the plea of honour killing. However in a
recent case of Nisar Ahmad, decided by the Division Bench of Lahore High Court the deceased
who having developed illicit intimacy with sister of the accused, injured their
sentiments and in consequences thereto having felt disgraced in the village due
to the damage caused to their family honour, took the extreme step of killing
the deceased. The
Court ruled that there were sufficient mitigating circumstances in their favour for lesser punishment.
Consequently, sentence from death altered to life imprisonment. The Supreme Court
in Muhammad Hanif's case21 ruled
that lesser punishment
may be granted only if proof of commission of actual sexual intercourse existed. However, the Supreme
Court in Gul Hassan's case22
completely ruled out provocation
to mitigate the punishment of killing being alien to tenets of Islam. In Ali Muhammad's case23
the accused took a plea of sudden provocation when he saw the deceased with his wife lying on the same bed in
an objectionable position. The Court accepted the plea of grave and sudden
provocation and inflicted mitigating sentence. The Single Bench of
Lahore High Court in Muhammad Jamil's case24
accepted the plea of grave and sudden
provocation on mere suspicion.
We have
seen that sudden
provocation as per dictum of Supreme Court in Gul Hassan's case25, was ruled out being alien to the tenets of Islam. The
Supreme Court however gave a unique reasoning
for mitigating the sentence in case of murder of a wife involved in
extra-marital sexual activity which is to the effect that since being
involved in an act which attracts death
penalty, the killer of that woman would not be given extreme penalty of death
and would be entitled to a lesser punishment. In this case, neither the plea of
sudden provocation nor the plea of
infringement of honour was accepted. The critical analysis of other rulings of
the Supreme Court discussed above reflects that in some cases a plea of honour killing is accepted whereas in others a
plea of sudden provocation was given weightage, whereas in the case of Muhammad
Jamil sudden provocation was accepted as a consequence of infringement of honour. In my humble opinion neither
the law on the issue is clear nor the
approach of the Courts is consistent.
The Arab
killing in a fit of fury in fact is in a state of passion. The idea of passion
is based on the
notion of excuse. Flagrante delicto is not an absolute requirement in a regime of honor, whereas it is in
the case of passion. What is most crucial is the "dishonorability of the act committed by the
victim. The offender commits the crime in a
fit of fury having lost control over his reason. The element of flagrante delicto
is therefore a key factor. The necessity to
avenge the dishonour survives the initial moment of fury; the crime may
be conceivable after that. Anyone dishonoured can commit a crime of honour. Dishonouring is a collective injury. Any
dishonourable action justifies intervention by the one who is
dishonoured, which covers a case of flagrante
delicto, adultery based on sexual betrayal. The application of the excuse beyond adultery includes situations of an
unlawful bed. The Iraqi Code is unique in that, it covers both the situation of adultery and what it
called "her presence in one bed with her lover". The Algerian Code is unique in that, it treated both
husband and wife as beneficiaries of excuse, which is limited to
situations of adultery. The Algerian Code where
both husband and wife benefit from reduction of penalty when one catches the other committing adultery.
Jordanian
law regulates honour
killings under Article 340 of the Jordanian Penal Code 1980. Article 340(i) allows
a male who witnesses actual adultery
complete exoneration from penalty. Article 340(ii) only provides a male leniency for witnessing his female relative
in an "unlawful bed,"
which is a term that denotes the bed of a man who is not her husband. Both
Article 340(i) and 340(ii) require a male's first hand observance of a female in a sexually suggestive situation. Logically, Article 340(ii), as written only grants a male leniency for observing a female relative in
the bed of another man without
witnessing.
Furthermore,
as this kind of murder is not treated as
intentional killing, mitigating circumstances
are extended in favour of the accused, who takes a plea of self defence in the name of honour killing. This approach in Jordanian law is different than
the approach of the judiciary in case of honour killing in
The conservative Muslims
societies strongly inspired by religion and making that religion their culture,
has deeply shapened internalised gender biases, which find its validation from religion and cultural traditions.
What is even more unfortunate is the reality that the law, which is
supposed to ensure justice to or on behalf of the victims of thecrimes not only allows this to happen but actually
provides legal protection to the perpetrators
of these crimes. The validation and static nature of Islamic law of Homicide and misinterpretation of the defence of sudden
provocation by the judiciary in
The judiciary in
V COMPARATIVE VIEW OF DEFENCE OF HONOUR KILLING IN UNITED STATES, THE WEST AND IN
ISLAMIC COUNTRIES
In the
Islamic jurist justify the act
of honour killing on the ground that the same takes place in modern societies
in the form of extreme emotional distress. But, there remains a sharp cultural
cleavage between the Arab,Western and American legal systems. The killing of daughters, sisters, and mothers, for their sexual
conduct, seems to be rarely ever tolerated in the American or Western
system (as opposed to wives, ex-wives, girlfriends, and ex-girlfriends). Maher v People25,
One way of
representing honour and passion in the
All common
law forms of adequate provocation can be regarded as justification based for instance in cases of
adultery, sexual unfaithfulness is seen as the highest invasion of a “husband” property
It is still
a provocation even if the defendant’s belief was mistaken Kaplan and Wersberg’s Criminal law 253 2d Ed 1991,
which means that the excitement was the effect of belief which caused uncontrollable passion. In
It is noteable that killing a woman in heat of passion was
a common law category which required proof of actually witnessing the physical act of intercourse between his wife
and paramour, however Price v State29 is a starting point departing from
such a strict condition with “a belief” of commission of intercourse.
A crime of passion in the
Similarly People v Kelly30 interpretation
of “taking the act of adultery” by treating twenty
hours of waiting by the defendant before the actual act of killing not within
the “heat of passion” requirement.
One basic
difference, however, remains. Most women killed in the Arab world are daughters
sisters and wives, and in the United States and in the West they are wives and girlfriends and the culprits
face serious penal consequences as sudden provocation is not justified here on
the ground of mere suspicion.
Perhaps
the best known case—and an ultimate victory for women’s groups—was the trial of Raul “Doca” Street . Street, a Brazilian playboy, admitted shooting his girlfriend. The defense attorney argued that the
victim was a “lascivious woman”. The lower court ruled that he had killed her in “legitimate defense of his
honour.” He was thus found guilty of
involuntary homicide and received two years suspended sentence. The
appellate court overturned the verdict and sentenced him to fifteen years for murder. Many saw this as a victory for the
feminist movement, and hoped that it would turn back the tide of male violence
against women. As evidenced by the Supreme Court’s
repudiation of the legitimate defense of honour, the Brazilian women’s movement has achieved much success combating
violence against women.
VI CULTURAL
DEFENCE
Some courts in the
An act of
killing is illegal besides being immoral. But if we take into consideration the issue of honour killing, the
act in Islamic countries is regarded illegal not immoral. Men kill their wives, daughters
or sisters and claim that they have done a moral act by protecting their honour. The
society also accepts that as such there is no stigma of killing on their part. Law is incomplete without
morality, but what type of morality
we are talking about, public or private morality. An Act of honour killing is
justified as a private morality
between a family, which does not affect society. But realistically when
you kill someone it is a crime against the whole
society and it affects the society as a whole. Society shares public
morality and when that morality is breached
it creates a bad impact on the whole society.
According
to Hart31 laws are neither "good nor bad" and even if
they are bad they are valid laws.
According to him laws are to be kept separate from morality which signifies the
point that Islamic Law of homicide even though a bad law is valid in its application.
If the application of a certain
law is not in compliance with society's moral conceptions
then the law should be changed. Kllewlyn32 theory was very
similar to this idea, though he never
mentioned the issue of morality in his theory, but justified it on the ground
that society is in a flux, in a constant movement as such laws have to keep up pace
with the changing needs of the society. Honour killing is an immoral act
affecting the society as a whole. Consequently the defence of honour
killing can only be abolished if the
change is brought in the provisions of law of homicide.
VI
ROLE OF HUMAN RIGHTS COMMUNITY
Throughout
the world, men who murder their wives encounter legal systems that are lenient toward their crimes. Many
legal systems treat the murder of a wife as
a less serious crime than the murder
of a stranger. Such systems permit men who kill their wives to avoid punishment or receive mitigated sentences through a
variety of techniques, including the creation of statutory and common law
defenses to criminal charges and
non-enforcement of criminal laws. By such legal devices, countries around the world have in effect sanctioned these murders.
A man's ability to kill his wife and escape punishment is not confined
to any one country. The human rights community can and should address this
problem by expanding its definition of human rights to include the right of wives to be protected by the state from violence at
home. Since the problem of leniency
for wife-murderers exists on an international scale and results from
universally shared attitudes, it demands international attention.
The fact that husbands may
escape punishment or receive mitigated sentences for murdering their wives presents a striking example of this phenomenon.
In addition, the state does in fact play a large role in the murder of
wives. Legislation, judicial decisions and
police behaviour perpetuate these murders by failing to punish the men who commit them.
These
actions are all in the "public" sphere, and thus open to attack even
under the traditional,
narrow definition of human rights. In Islamic countries, men may invoke
statutory or customary law defenses if they kill adulterous wives.
In
VII NEED FOR INTERNATIONAL ACTION.
Since the
problem of leniencies for wife murderers
exists on an international scale, it demands international attention. The short
coming of local women groups are the result
of inefficient staff funding, the inability of local group to convince the government to change the law and pressure on
such groups to focus on an immediate
solution to avoid violence on women, moreover the problem is based on international attitude therefore,
legislation action alone cannot change the human behaviour.
Human
rights action is therefore needed not only to change the laws in particular countries but to educate peoples and begin
to change human attitude. State responsibility
to address domestic violence seldom has been discussed at an international
level. The Convention on the Eliminating on all forms of Discrimination against
Women (CEDAW) was a major break through for the international women’s rights
movement because it stated principles to eradicate discrimination against
women. The Human Rights activists believed that since domestic violence occurs
in private affairs it is beyond the scope of human rights activities. Some activists
therefore, conclude that acts of a husband
against his wife are simply not human rights violence. Right to life, liberty and security of a person certainly bears on
the problem of wife murder. This right is guaranteed in Article 3 of the
Universal Declaration of Human Rights as well
as under International Convention.
State must take effective steps to outlaw wife murder. Statutes that reduce the penalty for men to kill
their wives clearly violate equal protection
provision contained in the Universal Declaration as well as Convention
on the Eliminating on all forms of Discrimination against Women (CEDAW).
Moreover, in order to truly guarantee equality in law to women, the State must
address the issue of bias in the Courts, in the Police Force as well as social
attitudes that perpetuate crimes against women. CEDAW does not contain any
provision protecting women from domestic violence. Further, honour
killings are committed on pretext of eradicating dishonour to the family. There is still a need for CEDAW's intervention that
may address honour killing. In addition
CEDAW must specifically prohibit the practice of honour killing because it is
the premier authority on
International women rights. It must contain specific provisions prohibiting honour killing to dispel the argument
among some state parties that CEDAW
did not address honour killing. In addition specific language
condemning the practice of honour
killing will help bring an end to honour killing internationally because women, specifically those in the
The recent events espoused by
religious groups professing and applying rigid interpretation of the tenets and command of Islamic religion demand a
more active role of the human right
community in removing the established practice of mal-treatment of females which
include permitted honour killing. In
CONCLUSION
In Islamic
Countries, men invoke defence of honour killing if they kill an adulterous
female of the family. Most women killed in the Arab world for adulterous
behaviour are daughters, sisters or wives. A clear rejection of the cultural defence by the Courts would similarly
teach immigrant men that murder of wives will not be tolerated in
REFERENCES:
1 Simth and Hogan Criminal Law (9th Edition)
(Butterworths London 1998)
2 The Homicide Act 1957
3 The Murder (Abolition of Death Penalty)
Act, 1965.
4 NJ Coulson MA Islamic Jurisprudence (3rd
edition) (Sweet and Maxwell London) 1964.
5
6 Nasruddin and others Vs. The State PLD
2002
7 The Abolition of Death Penalty Act 1965.
8 Saim a Waheed v Raheel [ 1997] SCMR 951 SC
9 Amna v Zaheer [ 1999] SCMR 403 SC.
10 The Homicide Act, 1957
11 Kumarasinghege Don John Perera [ 1953] AC
200 Goddard
12 Irani Penal Code
13 Iraqi Penal Code
14 Sher Ali v. State (1992) HC Lah PLD 430 HC
15 The State v Muhammad Hanif and 5 others
(1992 SCMR 2047)
16 Mumtaz Khan V. Musarat Khan PLD (1996) HC
17 Muhammad Hanif's case (1992 SCMR 2047)
18 Ali Muhammad's case (PLD 1996 SC 274)
19 Muhammad Akram Khan (NLR 2001
20 Mumtaz Khan v. Musarat Khan PLD (1996) HC
Quetta 88
21 Muhammad Hanif's case (1992 SCMR 2047)
22 Gul Hassan Khan’s case (PLD 1980 Peshawar 1)
23 Ali Muhammad's case (PLD 1996 SC 274)
24 M. Jamil’s case (PLD 1996 Lah. 190)
25 Gul Hassan Khan’s case (PLD 1980 Peshawar 1)
25 Maher v People [10 Mich. 212 (1862)]
26
27 State v Yanz 11 Mich. 215 (1872)
28 State v Wgtkins 12 Mich. 216 (1875)
29 Price v State 15N.W. 2d. 344 (Mich. CT. App. 1976)
30 People v. Kelly 14N.W. 2d 334 (Mich. Ct. App. 1973)
31 HLA Hart The Concept of Law (3RD Edition) (
32 K.Llewlyn Law Jobs Theory (2nd Edition) (
2 The Homicide Act 1957
3 The
Murder (Abolition of Death Penalty) Act, 1965.
4 NJ Coulson MA Islamic Jurisprudence (3rd edition) (Sweet and Maxwell
London) 1964.
5
6 Nasruddin and others Vs. The State PLD 2002
7 The Abolition of Death Penalty Act 1965.
8 Saim a Waheed v
Raheel [ 1997] SCMR 951 SC
9 Amna v Zaheer [ 1999]
SCMR 403 SC.
10 The Homicide
Act, 1957
11 Kumarasinghege Don John Perera [ 1953] AC 200 Goddard
12 Irani Penal Code
13 Iraqi Penal Code
14 Sher Ali v.
State (1992) HC Lah PLD 430 HC
15 The State v
Muhammad Hanif and 5 others (1992 SCMR 2047)
16 Mumtaz Khan V.
Musarat Khan PLD (1996) HC Quetta 88
17 Muhammad Hanif's case (1992 SCMR 2047)
18 Ali Muhammad's case (PLD 1996 SC 274)
19 Muhammad Akram Khan (NLR 2001
20 Mumtaz Khan v.
Musarat Khan PLD (1996) HC Quetta 88
21 Muhammad Hanif's case (1992 SCMR 2047)
22 Gul Hassan Khan’s
case (PLD 1980 Peshawar 1)
23 Ali Muhammad's case (PLD 1996 SC 274)
24 M. Jamil’s
case (PLD 1996 Lah. 190)
25 Gul Hassan Khan’s
case (PLD 1980 Peshawar 1)
25 Maher v People [10 Mich. 212
(1862)]
26
27 State v Yanz 11 Mich. 215
(1872)
28 State v
Wgtkins 12 Mich. 216 (1875)
29 Price v
State 15N.W. 2d. 344 (Mich. CT. App.
1976)
30 People v.
Kelly 14N.W. 2d 334 (Mich. Ct. App.
1973)
31 HLA Hart The Concept of Law
(3RD Edition) (
32 K.Llewlyn Law Jobs Theory (2nd Edition)
(