In an unprecedented move by the state, the FIR registered against the killers of social media celebrity Qandeel Baloch has been tweaked to include Sections 311 and 305 of the Pakistan Penal Code, thereby making the offence unpardonable.
Baloch, whose real name was Fauzia Azeem, was murdered by her 25-year-old brother Waseem Azeem last week because she brought “dishonour” to the family.
Physicist and rights activist Dr Pervez Hoodbhoy, who found Baloch a fearless young woman determined to “break taboos that shackle women in Pakistan’s patriarchal society”, believed she paid the ultimate price for her convictions – being strangled to death.
The need to review the laws has been pending for long.
Her brutal murder has stirred up a conversation on whether the killer will be punished or gets protection on the pretext of forgiveness.
“Change in the FIR is unusual but it has been done before,” said Human Rights Commission of Pakistan Secretary General IA Rehman. Welcoming this, he said bigger changes will happen when the law is changed. “And that cannot be done without adopting the bill pending in parliament,” he added.
Section 305 of the Pakistan Penal Code maintains the wali will be the heirs of the victim, but will exclude the accused or convict in case of Qatl-i-Amd (wilful murder) if committed in the name or on the pretext of honour.
Section 311 is usually invoked after a person has been pardoned by the victim/complainant. “The state may have acted in haste to have invoked this section, but the good thing is that the pressure for change is building up and this step taken by the police makes the state look good,” he said.
Thousands killed in the name of honour
Terming it a murder “most foul”, Rehman blamed the “environment of religiosity, anti-woman biases of society, the mullah lobby and the incentive to killing women for ‘honour’ provided by the relevant laws” for the crime.
“The need to review the laws has been pending for long,” reiterated Rehman, adding that it was “necessary to make all cases of murder offences not only against the victims but also against society.”
The Human Rights Commission of Pakistan estimates that more than 3,000 women were killed in the name of honour between 2008 and 2014.
According to Human Rights Commission of Pakistan chairperson Zohra Yusuf, such killings should be made non-compoundable and no private settlement between parties allowed. She said that while laws may not eradicate killings, some justice would be ensured.
Rights activist Anis Haroon said this move by the police showed that the state was “interested” and hoped it may close all doors leading to compromises in the form of forgiveness and payment of blood money.
But she also hoped it would open up debate on the qisas and diyat ordinance which protects those who kill in the name of honour.
Socially sanctioned murder
Under Islamic law, the punishment for murder, homicide or infliction of injury can either be in the form of qisas (equal punishment for the crime committed) or diyat (monetary compensation payable to the victims or their legal heirs). These concepts are applied in different ways in different Islamic systems.
These provisions were added to the Pakistan Penal Code during the military dictatorship of Ziaul Haq and cannot be amended or repealed without an act of the parliament, explained lawyer Faisal Siddiqi.
“However, the courts have very intelligently tried to sidestep the Q&D [qisas and diyat] law by labelling honour killing as murder,” he added.
There have been attempts, said Haroon, at making the law ineffective even if it cannot be completely scrapped from the statute books, but these remain gathering dust on the shelves of the parliament as no one wants to take them up.
In Baloch’s case, Siddiqi believes the qisas and diyat law would not apply and neither will the waivers set in them. “According to the current law, honour killing is a clear-cut murder, as in the case of Baloch, and will be tried under Taazir (British law) and conviction and sentence given will be based on the kind of evidence produced.”
In the last 15 years, Siddiqi explained, the court had taken a stand not to pardon a killer as it considered murder a “heinous” crime even if the complainant wanted to forgive.
He said that in murder cases, nobody was convicted by invoking the Islamic law as the burden of proof was difficult to establish. But he added that there were other reasons the conviction rate was so appallingly low.
“In most cases the complainant is poor and cannot afford a good lawyer or the prosecutor is not interested in pursuing and wants to wash his hands off the case,” he said. Dr Hoodbhoy suspects that Baloch’s brother, like other honour killers, will escape punishment because murdering a “supposed” dishonourable female is “socially sanctioned” by a majority.
“The case can take as much as 7 to 10 years doing the rounds in the lower court before it reaches the appellate court and by then much time and money has gone without the killer having been sentenced although the latter may have spent that time in prison," said Sarmad Ali, an advocate of the Lahore High Court. "Both sides are tired, and that’s when sham compromises take place.”
In the murder cases he has been involved in, Ali said there is a 50-50 chance of either acquittal or forgiveness. Money is always exchanged but there is no way to prove that as it would be dishonorable to accept money as compensation. The state, too, turns a blind eye and shrugs off its responsibility.
Backlogs and one-night stands
Even Yusuf is uncertain of the outcome. “It is hard to predict the father’s long-term intentions,” she said.
But part of the blame lies with the unwieldy legal system. There is a huge backlog of cases that courts have to dispose of. There were too many cases on the waiting list, including some which were filed back in 2012.
In England, Ali said, the trial procedure in a murder case takes all of seven days; in Pakistan it is normal for it to take anywhere between six to seven years before it can go into appeal.
“Which means, the crime took place at least six to seven years back. And the Lahore High Court will take another four to five years to award the sentence!”
Siddiqi also blames non-governmental organisations for the hue and cry they create and then fall silent. “They just engage in one-night stands, often do not understand the law fully and then just disappear into oblivion,” he said. “I’ve yet to come across an NGO that sees a case through its logical conclusion.”
Earlier this year, after watching Sharmeen Obaid-Chinoy’s Oscar-winning A Girl in the River: The Price of Forgiveness, Prime Minister Nawaz Sharif promised to change laws that allowed families to murder their daughters and get away with it. So far there nothing has been done on that front.
There have been attempts in the past to reform the law, but till diyat remains, killers will continue to buy off their freedom.
This article first appeared on Dawn.