Ali Imtinan is a Lawyer in Lahore, Pakistan and also works as the Human Rights Research Associate at the Centre for Human Rights.
In 2016, when Sharmeen Obaid-Chinoy — a Pakistani film-maker — won an Academy Award for her short documentary on honour killings in Pakistan, she was pilloried by her compatriots for the infamy that her work brought to the country. Much less attention was given to the substance of the documentary — the nefarious practice that annually claims close to a thousand lives in Pakistan.
On the 14th of February this year, the Lahore High Court announced its decision in the Qandeel Baloch murder case — one of such honour killings — whereby it acquitted the accused perpetrator on the premise that he had been pardoned by the victim’s parents. The Court’s verdict appositely captures some of the myriad issues inherent to Pakistan’s criminal justice system: blood pardons, poorly drafted legislation, procedural irregularities, and the restrictive, textual interpretation of the law by the courts. In Qandeel’s case, the combination of these factors culminated in the eventual acquittal of the accused murderer, Muhammad Wasim — Qandeel’s brother.
The fratricide of Qandeel is amongst the most widely reported honour killings in Pakistan, and concomitantly became the first major test case for the recently enacted Criminal Laws (Amendment) (Offences in the name or pretext of Honour) Act 2016 (Anti-Honour Killing Act). However, as is evident from the Lahore High Court’s decision, the law fell short of achieving its objective, that is, to ensure that where evidentiary criterion is met, the murderer in case of an honour killing is convicted irrespective of a blood pardon.
This writing briefly reflects on the inefficiency of the Anti-Honour Killing Act, tracing its connection to the acquittal of the accused perpetrator in Qandeel’s case, and critically examines the judgment of the Lahore High Court, whilst arguing that the Court had sufficient discretion to judicially rectify the vacuum in the law. The Court’s verdict is thereafter analysed from the larger perspective of Pakistan’s traditionally male-centred jurisprudence, which contributes to the non-dispensation of justice in cases of honour crimes.
The Inadequacy in the Law
Cases of homicide in Pakistan seldom result in a conviction. Under the Pakistan Penal Code 1860 (PPC), deliberate murder — or qatl-e-amd — is a compoundable offence against the heirs of the victim. Thus, parties to a case often reach a compromise, resulting in an acquittal in spite of any evidence against the murderer. This created impunity in cases of honour crimes, where perpetrators are usually close relatives of the victim. To redress this, the legislature enacted the Anti-Honour Killing Act, which categorised honour killings as fasad-fil-arz (spreading mischief in the land) under Section 311 of the PPC, making it a crime against the state, which mandates a life sentence regardless of a pardon. This meant that even where the heirs of the victim were unwilling to proceed with the case, the court — in exercising its discretion — could reject the extrajudicial compromise and punish the offender under Section 311.
However, in trying to address an existing loophole in the law, the legislature created yet another — the murderers could simply claim that honour had never been their motive. The burden in turn falls on the prosecution to prove that the murder had indeed been on the pretext of honour. In Qandeel’s case, the trial court established this by relying on the accused’s confession, wherein he identified the ‘photographs and videos’ of Qandeel as the motive for the fratricide, and convicted him despite the pardon from his parents for the murder of his sister.
At the trial stage, the accused had retracted his judicial confession, claiming that he confessed under duress. On appeal, therefore, the main legal question before the High Court was that as the conviction had been made solely on the basis of the confession, was this sufficient evidence for proving that the murder had been on the pretext of honour? At this stage, the commission of the crime was not in question; it had been proven beyond reasonable doubt that the accused, Wasim, did indeed murder Qandeel. The concerned issue was the intent — had honour been the motivation for the murder?
The Court answered in the negative: ‘No doubt that in the last line he gave a reason of murder of his sister due to pictures and videos but still it does not mean that murder was on the pretext of honour killing as the same was not specifically pleaded by appellant in his alleged confession.’ (para 19 of the judgment)
In amalgamation with other material irregularities in the confession — lack of time given for reflection, non-removal of handcuffs, the presence of excess court staff, etc. — the High Court held the confession to be unreliable, having no more value ‘than a piece of paper.’ (para 23 of the verdict) The Court considered the non-removal of handcuffs during the recording of the confession, in particular, to be of material significance for establishing that the confession had been involuntary and made under undue influence.
With ‘photographs and videos’ being insufficient for inferring an honour killing, and the confession itself being procedurally flawed, it could no longer be proven that the murder had been for honour. Hence, Section 311 did not apply, and the original pardon for qatl-i-amd was applicable. Consequently, the accused perpetrator was acquitted.
Defects in the Judgment
The Lahore High Court’s reasoning that for a homicide to constitute an honour killing, the accused must explicitly confess to it, besides allowing murderers to circumvent the law, is counterintuitive and misconceived. The Court by adopting an objective and purposive approach could have deduced that the accused perpetrator perceived the ‘photographs and videos’ of his sister as a violation of his notion of honour, and consequently murdered her on this account.
Similarly, barring the matter of removal of handcuffs during confession, many of the procedural infirmities noted in the judgment are inconsequential and legally immaterial. Even with respect to the issue of handcuffs, there is nothing on record to suggest that these had not been removed, but merely that the statement recorded by the Magistrate was ‘completely silent’ about this fact (para 22 of the judgment).
Furthermore, in instances of legal loopholes, judges can interpret the law in a way that ensures the intent of the parliament is given effect. Therefore, when the Legislature had specifically mentioned in the Statement of Objects and Reasons of the Anti-Honour Killing Act 2016 that the law intended to address the vacuum in the existing law to prevent the furtherance of honour crimes, the Court was bound to actualise this intent.
For the High Court to then give criminal laws a stringent, literal construction, and for it to engage in a pedantic examination of legal issues inherent to the case — in milieu of the high prevalence of honour crimes in Pakistan and the low conviction rate of two per cent in such cases — is highly egregious.
Disposition of the Courts
The Lahore High Court’s conservative approach in Qandeel’s case rests on long-standing jurisprudence that upholds the patriarchal notion of conflating women’s general demeanour and sexuality to her male relatives’ ‘honour’. The practise is rooted in the first laws enacted on honour killing during the British colonial rule. In 1835, a law commission was set up to examine the issue of honour killings, but it refrained from strongly challenging this decadent practice. The commission concluded that if a man could prove to have been provoked by some act of his female relatives that perceivably dishonoured him, the killing should not be considered a murder, rather the lesser offence of manslaughter (Hanley, 2018).
Accordingly, the superior courts of Pakistan have historically distinguished between murder on account of ‘honour’ and murder due to ‘grave and sudden provocation’, treating the latter as a mitigating factor. Even in instances where the accused specifically admits or confesses to murdering forhonour, superior courts often allow the plea of grave and sudden provocation, leading to lesser sentences or an acquittal if the murderer has been pardoned. Consider the case of Muhammad Qasim v. The State (PLD 2018 SC 840), where despite the accused’s admission to murdering the victim for ‘ghairat’ (honour), the Supreme Court of Pakistan held the case to be that of grave and sudden provocation, and resultantly, reduced the punishment from a life sentence.
The defence of provocation was abolished in the United Kingdom through the Coroners and Justice Act 2009, and no longer exists in the PPC either. Yet the superior courts of Pakistan continue to consider it on the basis of past precedent. This is testament to the androcentric approach of Pakistan’s judiciary that sympathises with male murderers and reduces their punishments if they could establish acting under the provocation of being dishonoured by their female relatives.
The judgment of the Lahore High Court, whilst not making any overt reference to provocation, is yet another addition to the list of cases where the male-centred approach of the courts perpetuates and reinforces the impunity of perpetrators of honour crimes.
Amidst the disenchantment with the Lahore High Court’s decision, lies the possibility of a long-term solution. A new law is needed that unequivocally defines honour killings as an offence against the state, so as to make blood pardons invalid — or preferably, prohibits pardons and compromises in cases of deliberate murder entirely. Moreover, such a law must provide an expansive definition of an honour killing that accounts for all possible justifications for the commission of this heinous crime; and the defence of provocation needs to be expressly abolished along with it.
As for Qandeel’s case, with the Ministry of Justice planning to appeal the decision, the matter would inevitably come before the Supreme Court of Pakistan. Whether the apex court flexibly interprets the law to give effect to the Legislature’s intent remains to be seen. What is certain, however, is that even if the trial court’s conviction is restored, this would only be a momentary victory. The larger, fundamental problem will persist — a lack of gender-sensitive and victim/survivor-centric laws. Much needs to be done for ending the impunity of perpetrators in cases of gender-based violence in Pakistan, but an overturning of the Lahore High Court’s ruling will certainly be a step in the right direction.
Disclaimer: Any and all opinions and views represented in this blog are personal and belong solely to the author(s) of the blog and do not represent the opinions or views of the Centre for Human Rights.