In a well-reasoned, well-researched, well-analysed and well-articulated judgment titled Muhammad Abbas Vs The State in Jail Petition No. 499 of 2015 (On appeal against the judgment dated 8.9.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 300-J/2013 and Murder Reference No. 138/2011), the Supreme Court of Pakistan just recently on August 24, 2020 has observed that extremism and violence has permeated through Pakistani society and it has been brutalized. Not enough is done to ensure that crimes against women do not take place. The Court was also of the view that, “Respect and language play an important role to bring about a positive change in society and using terminology such as ‘Ghairat’ or honour is not helpful.” Very rightly so!
To start with, in this latest, landmark and laudable judgment authored by Justice Qazi Faez Isa for himself and Justice Sardar Tariq Masood of the Pakistan Supreme Court, the ball is set rolling in para 1 wherein it is observed:
“Criminal Miscellaneous Application No. 1636 of 2015: This jail petition has been filed with a delay of 57 days. For the reasons mentioned in the application, the delay is condoned and the petition is entertained for hearing.
Jail Petition No. 499 of 2015: On 20 February 2020 Mr. Tariq Mehmood Bhatt, learned Advocate of the Supreme Court, was appointed to represent the petitioner at State expense, as the petitioner was imprisoned and unrepresented.”
While narrating the brief facts of this notable case, it is then stated in para 2 that, “Muhammad Asghar, the complainant, reported to the police that his sister was killed by her husband, the petitioner. The crime was witnessed by Muhammad Asghai (PW-9) and a neighbor Shahadat (PW-10). The crime was stated to have been committed at 1 am on 17 May 2009 and FIR No. 210 was registered at 5.50 am at Police Station Baraghar, District Nankana Sahib. The petitioner was tried by the learned Sessions Judge, Nankana Sahib and was convicted for the qatl-i-amd (murder) of his wife Mst. Saima Bibi (‘the deceased’ under Section 302(b) of the Pakistan Penal Code (‘PPC’) and sentenced to death. He was also directed to pay compensation of fifty thousand rupees to the legal heirs of the deceased and in default of payment to undergo six months simple imprisonment. Murder Reference, to confirm the death sentence, was submitted to the Lahore High Court, Lahore and the petitioner appealed his conviction and sentence. The learned judges of the High Court upheld the conviction of the petitioner but reduced his sentence of death to one of imprisonment for life because the petitioner had fired only once upon the deceased.”
To state the ostensible, the killing of any person cannot be justified and this is underscored in para 13 wherein the key point is that, “For Muslims the Holy Qur’an is the word of God. Killing a person is abhorrent and a grave sin [Holy Qur’an, surah An-Nisa (4) verse 93 and surah Al-Maidah (5) verse 32]. The Holy Qur’an also does not mandate the punishment of death for the offence of adultery [Holy Qur’an surah An-Nisa (4) verse 15 and surah An-Nur (24) verse 2]. If the petitioner suspected his wife of infidelity he should have followed the path prescribed by the Holy Qur’an and the law of Pakistan to resolve the matter.”
Briefly stated, the key point that is contained in para 14 is that, “Making a false allegation of adultery is an offence under section 496C IPC and also constitutes an offence of qazf under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Published in the Gazette of Pakistan, Extraordinary, Part I, on 9 February 1979). The offence of murder and the offences of false allegation of adultery are separate and distinct offences. The woman or the girl who is killed in the name or pretext of honour has no chance to redeem her honour. She is deprived of both her life and reputation.”
Furthermore, it is then observed in para 15 that, “The petitioner who professes to be a Muslim did not follow the methodology commanded by Almighty Allah and the law of Pakistan to resolve his suspicions about this wife. The petitioner then couched his criminal and un-Islamic conduct by stating he became enraged to see his wife in the company of a man and on account of his ghairat he killed her. Almighty Allah loves those who amongst others restrain their anger [Holy Qur’am surah Al-Imran (3) verse 134]. To become enraged is not an admirable trait nor is ghairat. The word ghairat nor the Arabic ghairatan is used in the Holy Qur’an. The Holy Qur’an also does not permit killing on the ground of adultery, let alone on the ground of ghairat (ghairatun in Arabic), nor prescribes a lesser punishment for such killings. The law of Pakistan also does not permit this. It is inappropriate to interpret Chapter XVI of the PPC, which includes section 302 PPC, by disregarding the requirements of Section 338-F PPC, which necessitates seeking guidance from the Holy Qur’an and Sunnah. Reference may also be made to Article 227 of the Constitution of the Islamic Republic of Pakistan (‘the Constitution’) which mandates that, ‘All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah’.”
Be it noted, the Bench of Supreme Court of Pakistan then concedes in para 16 that, “Pakistan has one of the highest, if not the highest per capita honour killings in the world and predominantly the victims are women. By stating that murder was committed on the pretext of ghairat (honour) the murderer hopes to provide some justification for the crime. It may also elevate the murderer’s social status with those not from familiar with Almighty Allah Commands in the Holy Qur’an. This is unfortunately, more so because there is no honour in such killings. Parliament was rightly concerned with the prevalence of such killings and enacted legislation to dissuade, if not stop such crimes. It did so by ensuring that offenders do not avail of the benefit of section 302(c) PPC, for which the maximum punishment is twenty-five years imprisonment but which does not prescribe a minimum punishment. Parliament specifically stipulated that such crimes attract clause (a) or clause (b) of section 302 PPC, for which the punishment is either death or imprisonment for life. However, the Muhammad Qasim case relied on certain obiter observations in the Muhammad Ameer case and after creating another exception to the erstwhile section 300 PPC this exception was applied to bring the offender’s case within the ambit of section 302(c) PPC, even though the Muhammad Ameer case had held that an honour crime did not come within the ambit of section 302(c) PPC. The language of the proviso read with the definition of fasad-fil-arz is clear. If for the sake of argument it is assumed that there was some ambiguity in the proviso, the statement and objectives introducing it had it removed. The provisos (the one inserted in the year 2005 or the one in year 2016) did not intend to nor created another exception for one who kills in the name or pretext of honour in the erstwhile section 300 PPC, nor did it state that such crimes came within the ambit of section 302(c) PPC; on the contrary it said the opposite.”
In this context, the Bench then also makes it a point to mention in para 17 that, “It may be clarified that we have relied on the law with regard to statement of the accused recorded under section 342 as expounded by this Court in the Faiz case, which was a judgment by a five-member Bench and not on the Mohammad Qasim case, a judgment which was by a three-member Bench. We have also not relied on the obiter observations of another three-member Bench in Muhammad Ameer case. In the Muhammad Qasim case the mandatory requirement to seek guidance from the Holy Qur’an and Sunnah, stipulated in 338-F PPC, was not done, therefore Muhammad Qasim cannot be categorized as having decided a question of law or is based upon or enunciates a principle of law (Article 189 of the Constitution of the Islamic Republic of Pakistan).”
No doubt, the Bench then more significantly points out in para 18 which merits mention particularly the relevant part that, “It needs restating that killing is never honourable. And, a murder should not be categorized as such. It will help deter such killings if the term ghairat is not used to describe them. It is also inaccurate to translate ghairat into English as honour. The word ghairat does not have an exact English equivalent. A more accurate translation of the trait, of ghairat would be ‘arrogance’ and the one with such trait is an ‘arrogant’ person.”
Most significantly, the Bench then further very rightly holds in para 19 that, “Extremism and violence has permeated through Pakistani society and it has been brutalized. Not enough is done to ensure that crimes against women do not take place. Respect and language play an important role to bring about a positive change in society and using terminology such as ghairat or honour is not helpful. The Constitution mandates that ‘tolerance and social justice, as enunciated by Islam, shall be fully observed’ (Preamble and Objectives Resolution of the Constitution of Republic of Pakistan which is required to be given ‘effect’ to (per Article 2A), Almighty Allah commends humility [Holy Qur’an, surah Al-A’raf(7) verse 94], loves kindness [Holy Quran, surah Al-Ma’idah (5) verse 13] and calls upon his slaves to overlook human faults and cultivate gracious forgiveness [Holy Qur’an, surah Al-Hijr (15) verse 85]. One of the Principles of Policy set out in the Constitution requires that, ‘Steps shall be taken to ensure full participation of women in all spheres of national life (Article 34 of the Constitution of the Islamic Republic of Pakistan). Therefore, adverse assumptions, as made in the present case, cannot be permitted. Another Principle is that ‘The State shall protect the marriage, the family, the mother and the child’ (Article 35 of the Constitution of the Islamic Republic of Pakistan). When women and girls are not protected but rather killed in the name or on the pretext of honour the family is destroyed.”
It goes without saying that the Pakistani establishment and the Pakistani ruling party must take serious note of what has been said so clearly, categorically and convincingly by none other than the Supreme Court of Pakistan itself! The whole world should also now take very serious note of it and reputed international organizations instead of taking potshots on Prashant Bhushan’s case should concentrate their energies on what the Pakistan Supreme Court has said so bluntly on honour killings, extremism and hatred that has permeated through Pakistani society! This is the crying need of the hour also!
Needless to say, honour killings and extremism cannot be justified under any circumstances whatsoever! Pakistan is on the verge of being blacklisted because of extremism and violence. It must wake up at least now and start taking reformative steps!
Sanjeev Sirohi