Violence against women is closely linked to the regulations of gender activities. This is sensitive and very important issue. In many societies the ideal of masculinity is under pinned by a notion of ‘honor’ of an individual man, or a family or community and fundamentally connected to policing female behavior. Honor is generally seen as residing in the bodies of women. Framework of ‘honor’ and its corollary “shame” operate to control, direct and regulate women freedom of moment by male members of the family”. Women are not allowed to transgress the boundaries demarcated by their fathers,brothers, husbands or any male members of the family like falling in love, choosing their own husbands or seeking divorce and regulation of such behavior may end up in serious consequences like abuse, violence or heinous crime like honorkilling.In this context, the right of women or girl to control their own lives, freedom of expression, movements and bodily integrity means very little.
Pakistan at this juncture is signatory of many international conventions and protocols that have a strong effect on women rights and any kind of sexual and gender based violence. Most significant is the Convention against the Elimination of all forms of Discrimination against Women (CEDAW).International treaties do not become part of domestic law in Pakistan unless incorporation through legislation is done since it follows the so called dualist model inherited from the English legal system.
During the development of Penal Code for India, its framer, the British, was somewhat inclined to regional and social norms. First Commission (1835-37) to develop Penal Law for India termed honor killings as ‘manslaughter’ instead of murder showing respect to accepted norms. Under exception of one section of Indian Penal Code 300 (IPC) 1860, plea of grave and sudden provocation was provided. Resultantly, punishment for cases of honor killing varied from 8 months to 10 years. Courts of British India constantly carried on with this tradition of considering the accused of honor killings contrarily and compassionately.Pakistan Penal Code 1947 adopted all laws of British India and case laws decided under Indian Penal Code(IPC) provided necessary guidance to the judiciary of Pakistan. In a reported case in 1950 (Aziz-ul-Rehman v. Crown, 1950:76), Peshawar High court referred to cultural norms of specific area and sentenced the accused less than three months. In Kalu alias KalanderBux v. State, 1968, sentence was reduced from death to transportation of life on the plea that accused murdered the deceased to vindicate his family . In 1985, while listening to Mohib Ali v. State, the Supreme Court of Pakistan took notice of overmuch use of plea of grave and sudden provocation.
The whole episode in criminal conspiracy is planning which lasts in the shape of a compromise between the complainant and the nominated accused
The loop hole was created when General Zia-ul-Haq ‘Islamized’ Pakistani law of 1970 introducing the twin Islamic concepts of Qisas (eye for an eye) and Diyat (compensation). In the history of development of law in Pakistan, another bench mark is Criminal Law Ordinance, 1990 which substituted sections 299 to 338 of PPC through Qisas and Diyat Ordinance. No provision of grave and sudden provocation was explicitly provided under this law but insertion of section 302 (c) PPC under punishment of Qatl-i-Amd left the room for mitigating circumstances. Interestingly, theory of right of self-defense, and off course which includes self-defense against honour, took more space in the arguments of the lawyers as well as the decisions of the courts. Consequently, a full bench of the Supreme Court has to give guiding instructions for the subordinate courts while listening the Abdul Zahir v. the State, 2000. Chief Justice Saeed-uz-Zaman Siddiqui (late) as head of the bench showed his concern on the way the issue of honour killings was being appreciated by judiciary. Moreover, he categorically ordered that all cases of provocation not to fall in section 302(c) of PPC, particularly Qatl-i-Amd of close female relatives at the hands of males on the allegations of siakari. Similarly, in AshiqHussain v. State, the Lahore High Court has to give unequivocal decision when Justice Tassadaque H. Jillani disapproved the sanctification of murder in the name of tradition, family, honor and religion. It was a complete shift from the authors of IPC.
During trial in the court of law, Judicial Officers have to rely on the available evidence collected by police and presented by prosecutor. They face the limitations of the least interest of prosecution as well as witnesses. Sometimes, Judicial Officers consider it convenient to succumb to ‘influence’ of defence lawyers, especially in the presence of disinterested prosecution. Finally, they tend to close the proceedings on the basis of compromise between the complainant (near-relative) and the accused, instead of invoking the clause of Fisad-fil-Arz.
Formal police investigation begins with the FIR. This is where rudimentary problem starts. The killing with a reason as honour is different from other murder in many respects. Majority of honour killing is the result of socializing of mind among several family members and even coterie. It is perpetrated in most of the cases. The murder is usually committed by several people having a principle offender involved in execution of crime and resultantly one person is nominated. The whole episode in criminal conspiracy is planning which lasts in the shape of a compromise between the complainant and the nominated accused. Which results very difficult and technical for the police to prove the criminal conspiracy and essential element of evidence to put them together becomes tedious for police officer. In some cases police becomes party with the complainant and deliberately make a very weak and poor case for prosecution leaving initial lacunas for the defence to exploit them.
Due to lack of proper training and professionalism most of the useful evidence from the scene of crime is neither properly collected nor preserved for forensic analysis hence having no alternative to investigator except arresting the accused on the statement of the witnesses. The witnesses are also from complainant side who are not neutral and they depose defective evidence and normally change their version during disposing before the court and resultantly prosecution case loses the ground and it becomes impossible to get the offender convicted. During research it has been observed that in addition to failing to conduct timely and comprehensive investigation, including witness interview, site visit, forensic, the police deal the case in a non-professional manner using inappropriate investigation method such as interviewing family elders instead of eye witness, closing cases on oath by the accused and pressuring complainant to drop charges on the basis of such oath. Then taking dictation from punchayat and jirgas decides the investigation.
(to be concluded)
Ghania Usman was formerly associated with Army Public School (APS) Bahawalpur / Saud Bin Ahsen is a freelancer