Criminal Law Assignment by Heeba Shahid

How is the Islamic concept of hadd offences incorporated in the criminal justice system of Pakistan and
what are the implications associated with it?

The Islamic principles are based completely upon the four primary sources of Shariah, the Quran,
Sunnah (or Ahadith), Ijma and Qiyas. The hadd offences being an imperative aspect of the Islamic
principles are derived from the Quran which is the main source. In Pakistan as all the laws are to be
made in compliance with the Quran and Sunnah, one of the laws that was made an act was the Hudood
Ordinance in time of General Zia ul Haq in 1979. This law consists of six different categories of sexual
offences and punishments for each of them. The specific sections of adultery and fornication were
repealed from the Pakistan Penal Code and laws regarding these offences were to be made enforceable
through the Hudood Ordinance. During the reign of Zia, the Federal Shariat Court also came into
existence who had power to review if a law was in accordance with Islamic injunctions or not. It is
noticeable that there have been made efforts to bring in Islamic Laws and enforce it but that is not
possible if all the major laws have been derived from a common law country. This creates confusion
within people and it is difficult to differentiate which law would be applicable in a particular scenario.
Take for example, the hadd offence of theft, which in the Pakistani Penal Code has been derived from
common law even though its punishment is clearly stated in the Quran whereas other hadd offences are
tried in courts and their punishments are given accordingly as given in the Holy Quran.

The Islamic concept of hadd offences is not just derived from the Quran although the punishments and
offences are stated in it. It is also clarified how these offences are to be tried through the Sunnah, Ijma
and Qiyas. Particularly, the implementation was given most attention as these offences have strict
punishments. However, in Pakistan there were issues regarding Hudood ordinance due to which women
specifically suffered. This was because, if rape (which is also known as zina bil jabr) was not proven then
the woman was convicted of committing adultery or fornication as her report was to be taken as a
confession. In addition to this issue, there were other problems as well where laws regarding diyat made
it easier for people to commit murder and get away with it by only paying the family enough. The
Shahzeb Qatl case was one of the most highlighted cases where the family of Shahzeb were paid enough
so they pardoned their 22 year old son’s killer and a point to be noted is that he belonged from quite an
influential family. Not only these, but there were instances where blasphemy laws were used by people
who had personal issues with other religious minorities. The problem as we can see is not in the laws
which were made but with the way they were implemented. The criminal justice system of Pakistan is all
over the place and the implementers are to be blamed for it. The judges have the discretion to draw
clear lines between common law and Shariah law which if they were able to do then there would be a
visible change in the system. Moreover, they must also pursue the issue of these laws not to be used by
people the way they see fit because that would be unjust and the laws should be clear enough
(clarification made by the judges) so that they can only be used to provide justice to the people.

The implications associated with incorporation of hadd offences in the criminal justice system are
numerous. The standard of proof in hadd offences is much higher and that leads to more pressure on
the prosecution to prove the offence being committed beyond a reasonable doubt. In the Aasia Bibi’s
case, where a woman was convicted on the basis of blasphemy and given capital punishment by the
lower courts but later it was found that there was no enough evidence present to carry out that
decision. The honorable Supreme Court overturned the judgment of the lower court and Aasia Bibi was
acquitted. Only this case itself is enough to explain that there are no issues in the statutes, rather the
issues are present in the procedure the case was carried out. Moreover, as blasphemy was a strict
liability offence, the mens rea was not required, only actus reus was required to be proven but the
prosecution failed to do that and Aasia also had a valid defense of provocation due to which she was
acquitted.

Furthermore, there are tazir offences present as well, in which the punishment is at the discretion of the
judge when the offence is related to a private injury. In many cases the judges have utilized this
discretion and given different punishments on the criminal offences based on the circumstances of the
case for fair and just treatment towards the people. Most often the hadd punishments are not given to
the offenders rather judges grant tazir punishments like in cases of Qatl e amd where the hadd
punishments are only qisas and diyat but the judges can still grant life imprisonment to someone who
has committed the offence of qatl. Moreover, in cases of hiraba (which is also another hadd offence) the
judges also have the discretion to give their own punishments and not necessarily what was stated in
the Pakistan Penal Code. The most recent case of highway robbery was of the Lahore Motorway Case
where the judges sentenced the convicts to death on the basis of gang rape, kidnapping, robbery and
terrorism offences.

In addition to the complications with regards to hadd offence cases in Pakistan, there is also difficulty in
the interpretation of all the laws because the judges are the only ones to decide upon a case whereas in
other countries there are jury trials and the jury along with the judge makes decisions on cases. In
Pakistan there have been no jury trials since independence and judgments of criminal trials are based
upon the discretion of few judges only. This creates possibility of subjectivity in their decisions. The
theory Dworkin had given of a reasonable/objective judge might be applicable most in Pakistan as there
is a need of these judges in lower courts as well and to provide people with the justice there has to be
clear concepts of where which sort of law (shariah or common) stands in the criminal justice system.

In conclusion, it is hard to determine whether the law that is in place in Pakistan is itself difficult to
interpret and enforce or because of the addition of Shariah Law in the judicial system it has been made
more difficult. But, whatever the case maybe, now that the system consists of common law and shariah
law, one has to accept the burden of determining the hierarchy of both laws and also that which ones’
application in the cases of these criminal offences is certain. In Pakistan, majority of the people have
favored the Islamic laws being in the justice system so the judges have more pressure upon while giving
the judgments on cases of hadd offences. The only way to overcome these issues is to amend the
system in such a way where there are distinctions on which of the cases are to be decided through
which law present. Also the judges should themselves take up the responsibility of interpreting the law
in such a way that it is certain on the basis of the incorporated hadd offences laws in the Pakistan Penal
Code and should also fill in the lacunas which are present due to the previous standing of court on some
cases of hadd offences. Also, through simple amendments in procedural laws pertaining to criminal
offences can lead to a significant change in the whole criminal justice system of Pakistan.