15 January 2005	Saturday	04 Zilhaj 1425

LAHORE, Jan 14: The amendments proposed by the Ministry of Law, Justice and Human Rights to make certain provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, non-cognizable , may take much of the biting force away from the Islamic laws.

These laws will, for all practical purposes, be reduced to a statutory position of legal nullity after the stipulated change. Legal experts understand that the government has attempted to effectively dilute the effect of the legislation by divesting the police of the powers to take cognizance of offences after the laws have exceedingly been misused (by police) for more than 25 years.

They also believe that the government has virtually struck the Hudood laws off the statute books by engineering a legal device to avoid criticism by certain sections of society.

Welcoming the proposed amendment, Advocate Manzoor Ahmad Malik believes that the Hudood laws practically mean that they are like a snake without poisonous tooth.

Reducing the offence under these laws as non-cognizable means that police will have no power to register a case, initiate investigation and arrest a person charged under section 10(2) of the Hudood laws.

All such police actions would have to follow a permission by the area magistrate, he said. The police have powers under section 154 of the CrPC to register a case, make arrest and investigate charges in cognizable offences. The Section 155 of the CrPC curtails such powers of the police.

In such cases, the police have to enter in the register complaints the information received and send it to the area magistrate to seek opinion whether a subsequent legal action is necessary.

If the magistrate agrees to the police opinion, he or she will issue a written permission to the department to proceed. The Section 10 of the Hudood laws relates to adultery (by consent) and forced rape. Its sub-section 1 defines the offence and sub-section 2 carries a punishment up to 10 years in prison with 30 stripes.

Sections 13 and 14 of the law, which the government also plans to amend, pertain to selling and buying of girls for prostitution and carry a similar sentence with or without fine.

Civil society organizations have been opposing the authority of the police in taking cognizance of such offences. These powers, they say, have massively been misused to the disadvantage of the weaker sections of society.

In most of the cases, their women were involved in cases under section 10(2) to equip police with an instrument to harass such families to compromise with influential people, who invariably want to settle personal score.

The offence has also been used even by parents against their own daughters for marrying of their own free will in defiance of the family and social taboos. The Lahore High Court has witnessed a number of such cases in the recent past. It has, however, been allowing the newly wed couples to lead a matrimonial life of their choice on the grounds that they have a constitutional right to do so.

Many superior courts have passed stricture against the undue interference of the police in the domestic life and often held that the police have transgressed their legal authority and implicated law-abiding citizens in Hudood cases. However, the subordinate judiciary did not show such a stance throughout the period.

Lawyers have generally accepted in good faith the amendments to this law and many other provisions of the Pakistan Penal Code, the CrPC and the Civil Procedure Code pleading that this is a serious attempt to remove legal bottlenecks and expedite the adjudication process.

Advocate Manzoor Malik welcomed the proposal that seeks to lodge a murder convict in the death cell only after confirmation of death sentence by the high courts. According to him, keeping nine to 10 condemned prisoners in death cells, measuring 10X10 feet, for years is simply inhuman.

Such convicts are shifted to death cells soon after a lower trial court award capital punishment. They have to remain in the dungeon even for years during the period their case is pending with the high court.

The government now plans to change the Section 374 of the CrPC to provide for shifting of murder convicts to death cells only after the high court confirms the punishment.