PESHAWAR, Nov 30: The Qisas and Diyat law is replete with inherent flaws which allow an accused either to be acquitted or received only a nominal sentence in honour-related cases, legal experts claim.

Lawyers and human rights activists believe that drastic changes were needed to be introduced in the law to properly address the issue of honour-killing.

Moreover, they believe that the general mind-set of the society, specially the attitude of the courts, would have to be changed in such cases. The courts often adopt a lenient view towards an accused on the ground of “grave and sudden provocation” which is no where in the law.

Last week President Gen Pervez Musharraf took a notice of the killing of a woman in Multan in the name of honour and directed the authorities concerned to arrest the culprits.

However, lawyers claimed that during the three-year military rule no efforts were made to amend the law and the statements of successive rulers in this regard were merely an eyewash.

Different sections of the Qisas and Diyat law always helped the accused in trials or in the appellate stages. These sections include 302(c), 306, 307, 309, 310 and 338F.

Initially, through the Qisas and Diyat Ordinance, about 40 sections of chapter XVI of the Pakistan Penal Code, 1860, dealing with offences affecting the human body, were amended in 1990. The ordinance was promulgated on a number of occasions by the successive governments of Nawaz Sharif and Benazir Bhutto, and finally in April 1997 when the same amendments were incorporated in the PPC through the Criminal Law (Amendment) Act of 1997.

Now, under section 309 of the law, an adult sane wali (legal heir) of a deceased could waive his right of Qisas or forgive the accused. Similarly, under section 310, the offence of murder is made a compoundable offence and any wali of a deceased could forgive an accused by compounding his right of Qisas after receiving compensation.

In most of the honour-related murders, either the husband or parents are the wali of the slain woman and as the murder takes place in connivance with almost all the family members, they prefer to waive their right of Qisas and forgive the accused.

Similarly, under section 306(b), an intentional murder is not liable to Qisas when an offender causes death of his child or grand child. Section 306(c) prescribes that an offender is not liable to Qisas if any wali (legal heir) of the deceased is a direct descendent of the offender. When an offender is not liable to Qisas under the said two provisions, he should be liable to pay diyat under section 308 and could not be sentenced to death.

Previously, under Exception (1) to section 300 of the PPC, the provision of “grave and sudden provocation” was available that provided lesser punishment for crimes committed in the name of Gherat (honour). However, that provision was repealed with the introduction of QDO in 1990.

An advocate of the Lahore High Court Hassam Qadir Shah, in a study “There is no honour in killing,” stated that the omission of the provision of “grave and sudden provocation” seemed intentional on the part of the legislature to allow no room in law for any concessions, but the law and judiciary are apparently two different things.

He believed that while the law was clear, some judges of the superior courts had tried to read between the lines to apply the earlier concept of justified anger.

In an another study, Advocate Shela Zia, joint director of Aurat Foundation, pointed out that section 338F gave the courts almost unlimited discretionary powers to interpret the provisions of the Qisas and Diyat law in accordance with their own understanding or interpretation of the injunctions of Islam.

She observed: “This kind of wide discretion can lead to total non-uniformity in the application of the law and widely different judicial responses to similar offences, which violates the basic principles of justice. In cases of honour killing of women, even though the law no longer contains any provision to this effect, courts have re-created the grounds of ‘grave and sudden’ provocation, giving it an Islamic or cultural justification.