Another set of teeth that cannot bite

Published: November 8, 2016
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The writer is an advocate of the Supreme Court of Pakistan and tweets @BarristerMShah

The writer is an advocate of the Supreme Court of Pakistan and tweets @BarristerMShah

The guilty plea of a father boldly confessing to murder of his daughter in open Court in Lahore and then walking out of prison the very next moment after pardoning himself being legal heir of the deceased, made mockery of the recently inculcated amendments in criminal laws of Pakistan pertaining to honour killing and rape, which were trumpeted by media as well as leaders from all shades of political spectrum as effective deterrence against heinous crimes like rape and honour killing. Now that the nation has come out of the celebratory fervour, it is imperative that these legal reforms be analysed purely from a technical perspective so as to ascertain whether these changes in the law do have any potential to act as shield against sexual offences and murder in the name of so-called honour or is it just another cosmetic measure aimed at creating a facade on the badly tarnished face of women rights in Pakistan.

The strongest selling point used for marketing these amendments to the public is that the right of pardon otherwise vested in the heirs of the deceased in a murder case has been abolished in homicide falling in the ambit of honour killing. Similarly, enhanced mandatory punishments have been prescribed for the people found guilty of killing in the name of honour. These goals are no doubt very lofty but I am afraid translating them into fruition would be rather difficult in view of the lacunae left in the law. The very structure of enhanced punishment and non-compounding of these offences has been erected on the foundation of the term “Honour Killing” which ironically the legislators forgot to define in the law itself. It is left upon the sweet will of the accused to opt whether he would be tried for ordinary murder or murder for honour. The sponsors of the Act are of the view that it is the investigation that would reveal whether the killing is for reasons other than honour. But the question arises how would the police determine whether a murder is honour killing or otherwise, when no yardstick has been enunciated by the law against which the same has to be gauged by the investigators.

By reason of absence of precise legal definition of the term “Honour Killing”, an accused may wriggle out of the effect of these amendments simply by taking a plea that he murdered his sister or daughter for a reason other than the so called “honour” thereby placing his case in the pigeon hole of ordinary Qatl-e-Amd entitling him to all the protections associated with it including the right to pardon by the heirs.

Another reform purportedly brought about by the new amendments is enunciation of three-month time frame for conclusion of a rape trial and disposal of its appeal in six months. Our statute book is already replete with far more strict time frames but if the past is of any guide, conclusion of trials within even double the stipulated time is hardly witnessed. The fate, that the time frames set for conclusion of trials under NAB Ordinance, 1999, Juvenile Justice System Ordinance, 2000 and The Family Courts Act, 1964, meet in our Courts every day are enough to forecast the efficacy of this yet another deadline in the law. Delays in litigation cannot be surmounted unless the inherent factors deeply woven into the very fabric of our criminal justice system are addressed. Over burdened Courts, lack of punitive measures for false prosecutions, never ending lawyers’ strikes, unabated adjournments by lawyers, Police officers’ pre-occupation on other duties etc. are some of the factors that drag the trials to decades.

The reason why this and previously enunciated time frames are not adhered to is lack of retribution. When no penal consequences follow like in case of existing law, it is bound to fail. In order to achieve the goal of speedy trials, it is imperative to strengthen the criminal justice delivery system rather than enacting more and more laws with stricter time frames.

The enhancement of punishment for rape committed by police officers in the precincts of a police station under his command is yet another cosmetic measure having little likelihood of bringing about any positive change in existing state of affairs. Laws like the recent amendments though look very good on the statute book, the question remains as to who will bell the cat? How does one expect the police officers, who could not muster enough moral courage to stop their boss from committing rape in the premises of the police station, dare to investigate him with complete impartially without any fear or favour. If the local police had enough character and sense of duty, the crime would not have occurred in the first instance at the place of their duty. In order to give teeth to the law that can actually bite, a further amendment is imperative whereby cases of custodial rapes by police are investigated by Joint Investigation Team comprising members of other law enforcement agencies so as to prevent Police officials from shielding the crimes of their brothers in arms.

Unless the issues raised above are addressed, women in this land of the pure would continue to be lynched in the garb of honour and get sexually assaulted while their perpetrators would either escape punishment by pardoning themselves or get acquitted by reason of loopholes in existing criminal justice system.

Published in The Express Tribune, November 9th, 2016.

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Reader Comments (17)

  • Ikram sheikh
    Nov 9, 2016 - 7:23PM

    Perfect analysis ever i have read on this issueRecommend

  • Dr. Insha Afridi
    Nov 9, 2016 - 7:23PM

    Commendable analysis….!!!Recommend

  • Zakir Ahmad Shah
    Nov 9, 2016 - 7:53PM

    Very detailed analysis and much needed one.Recommend

  • abhi
    Nov 9, 2016 - 8:05PM

    You don’t keep high hopes from Pakistan, that is the way to proceed.Recommend

  • Shabbir Jadoon
    Nov 9, 2016 - 8:10PM

    Only police is not culprit, the whole nation is responsible for this. I disagree with author. Recommend

  • Yawar Paracha
    Nov 9, 2016 - 8:12PM

    But you must appreciate the initiativeRecommend

  • Mustafa Khan
    Nov 9, 2016 - 8:18PM

    But you must appreciate the initiative sirRecommend

  • Neha
    Nov 9, 2016 - 8:23PM

    Very impressive.. Barrister Sahb you are very thoughtful and generous in your opinion giving. Recommend

  • Saira Muhammad
    Nov 9, 2016 - 8:27PM

    Hence, another chance to courts and lawyers to humiliate victimsRecommend

  • Behroz Khan
    Nov 9, 2016 - 8:47PM

    Honour killing should be addressed but in a better way … not thisRecommend

  • Muhammad waqas khan
    Nov 9, 2016 - 10:24PM

    Constructive article…Recommend

  • Syed Ahmed Shah
    Nov 10, 2016 - 1:38PM

    Very good constructive analysis on the matter. It is indeed a contemporary issue. Very well written!Recommend

  • Ashfaq Khan
    Nov 10, 2016 - 2:58PM

    A very good analysis of the newly enacted law on the subject by Barrister Masroor Shah. Mr Shah has discussed the loopholes in the law in easily understable way so the general people could understand it. Recommend

  • Jameel Qadri
    Nov 10, 2016 - 3:47PM

    Disagree with you. These Honour killing laws are conspiracy of western countries and it seems that people like you take dollars from USA to write such articles.Recommend

  • Rizwana
    Nov 10, 2016 - 3:52PM

    very good. you are the one who discussed flaws of this law. Appreciable and courageous act Recommend

  • Aman Chaudhry
    Nov 10, 2016 - 3:54PM

    Brilliant Mind, Brilliant Thought!!! good work.. Recommend

  • kalpana
    Nov 10, 2016 - 3:56PM

    i am keen in reading such a different research Recommend

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