In October 2016, the Majlis-e-Shoora (Parliament) passed legislation amending the Pakistan Penal Code, 1860 (Act XLV of 1860) and the Code of Criminal Procedure, 1898 (Act V of 1898), in order to deter and prevent offences in the name or pretext of honor. Honor killings claim the lives of hundreds of victims every year and the legislation aimed to address the “loopholes and lacunae in the existing law” to prevent such crimes from being repeatedly committed. The amendments introduce limitations on the waiver of qiṣāṣ (pardon), available to the perpetrators of qatl-i-amd (intentional homicide), consistent with traditional Islamic criminal law principles. Specifically, the new law introduces ta‘zīr—discretionary judicial punishment—for an offender guilty of fasad-fil-arz (spreading mischief on Earth), particularly if the offense is committed in the name or pretext of honor. Under the new law, a court may punish such an offender with imprisonment for life after considering “the facts and circumstances of the case.”
The Criminal Law Amendment, Offences in the Name or Pretext of Honor Act, 2016 (“Anti-Honor Killing Act” or “Act”) does not cite any Islamic sources of law explicitly. The Act adds four important clauses under the qatl-i-amd provisions of the penal code: (1) a “fasad-fil-arz” offense includes offenses committed in the name or on the pretext of honor; (2) for fasad-fil-arz offenses, the waiver of qiṣāṣ and the compounding of the right of qiṣāṣ shall be subject to the ta‘zīr provisions; (3) if a fasad-fil-arz offense has been established, the court may—having regards to the facts and circumstances of the case—punish the offender against whom the right of qiṣāṣ has been waived by the legal heirs of the victim; (4) if the offense has been committed in the name or on the pretext of honor, the (ta‘zīr) punishment shall be imprisonment for life.
2. Interpretive Methodology
a. Offences Against Life (Pakistan Penal Code s. 300 – 314)
Pakistan has an entrenched Islamic criminal law regime, incorporating the principles of the Ḥanafī and Mālikī schools of Sunnī law. The Pakistan Penal Code (Act XLV of 1890) was part of the legacy of British colonial rule (originally the Indian Penal Code) and was adopted upon independence in 1947. In the 1980s, during the government of General Zia-ul-Haq, the seemingly secular penal code was systematically overhauled—pursuant to an “Islamization” program—through a series of amendments in line with the changing political climate. In 1980, a decision by the Shariat Bench of the Peshawar High Court in a homicide case declared certain homicide provisions of the Penal Code repugnant to the injunctions of Islam. The Court stated that, under Islamic law, offences of homicide “could be condoned by pardon on payment of diyah and particularly, a non-pubert [juvenile] could not be subjected to qisas.” The court also declared that ta‘zīr punishment in the form of imprisonment or death sentence could be awarded in cases of intentional homicide, even if heirs of the deceased have pardoned or received diyah. Shortly thereafter, the Parliament passed ordinances amending the offending provisions per the High Court’s decision. The new provisions were drafted under the chairmanship of Retired Justice Afzal Cheema, who premised the draft on classical Ḥanafī law.
The permission to compromise, that is, the right to forgive or pardon the offender, is well articulated in the Qur’ān and Sunnah. These principles are reflected in the qatl-i-amd provisions of the penal code where a “waiver of qisas” or “afw” allows relinquishment of the merited punishment for murder if the victim’s legal heirs provide the needed forgiveness to the accused. If a waiver of qiṣāṣ is established in an honor killing case, a court of law may drop the case entirely and acquit the accused.
b. Anti-Honor Killing Act
The Anti-Honor Killing Act passed after a spate of high-profile so-called honor killings. Most strikingly, the Act amended section 311 of the Penal Code making the crime of honor killing a non-compoundable offence, laying out ta‘zīr—discretionary punishment of imprisonment of life—as a prerogative of the court to institute against an offender (for the crime of an honor killing) despite a waiver of qiṣāṣ by the victim’s legal heirs. Some commentators note the logic and consistency of ta‘zīr with Sharī‘a in the context of intentional homicide; the commission of murder not only culminates in private injury “but it also involves a dreadful threat to society at large, in terms of the chaos and horror it creates in the public mind.” Some contemporary Muslim thinkers believe that “[t]he crime of homicide involves two rights, the private right of the aggrieved, and the public right (because of violating the prohibition of Allāh), thus upon remission of one right the other would not be waived.” Thus, “it is for the authority to determine the kind of punishment in case of the offender who is notoriously known for his/her misdeeds.” Most academics point out that the sanctioning of ta‘zīr is primarily a Mālikī view. The Pakistan Penal Code endorses and incorporates this view.
It is important to note that the Act does not explicitly refer to any Islamic sources or treatises. The Council of Islamic Ideology, a constitutional body that advises the legislature whether or not a certain law is repugnant to Islam, has not formally blessed the passage of the Act but has not opposed it either. Moreover, the Act has not been challenged in front of the Federal Shariat Court, a constitutional court of Pakistan (subject to review by the Supreme Court) with the power to examine and determine whether the laws of the country comply with Islamic law. Most recently, a Sessions court in Multan (in the province of Punjab), sentenced an offender found guilty of an honor killing beyond a shadow of a reasonable doubt to life imprisonment. It remains to be seen if the constitutionality and widespread application of the Anti-Honor Killing Act is formally established.
 Act No. XLIII of 2016: An Act Further To Amend The Pakistan Penal Code, 1860 And The Code Of Criminal Procedure, 1898, Pakistan Gazette (2016), http://www.na.gov.pk/uploads/documents/1481353572_553.pdf.
 Senator Farhatullah, The Criminal Law (Amendment) (Offences In The Name Or Pretext Of Honour) Act: Statement of Objects and Reasons (2016), http://www.na.gov.pk/uploads/documents/1475762285_283.pdf.
 Musa Usman Abubakar, Gender Justice in Islamic Law: Homicide and Bodily Injuries (2018).
 Id. at 112.
 Id. at 113.
 Id. (citing Gul Hassan v. The Government of Pakistan and Another (1980) PLD 1 Pesh. affirmed in Federal of Pakistan v. Gul Hassan (1989) PLD 633).
 Id. at 114.
 The Qur’ān in fact tilts on the side of compromise than qiṣāṣ. See, e.g., Qur’ān (2:178); (5:45); (17:33); and (42:40).
 See Sunan Ibn Majah, Kitab al-Diyat, Vol. 2, 898 (“no man would remit from any injury inflicted upon him, but Allah would elevate his position and forgives his sins”); Al-Zarqani, Sharh al-Muwatta, Vol. 4, 205 (“whoever forgives the retaliation from the killer, would enter paradise”).
 Pakistan Penal Code, s. 310.
 See Kelly Chen et al., Pakistan Passes Legislation Against Honor Killings, CNN (Oct. 8, 2016 12:24AM), https://www.cnn.com/2016/10/06/asia/pakistan-anti-honor-killing-law/index.html.
 Pakistan Penal Code, s. 311.
 Sayed Sikandar Shah Haneef, Homicide in Islam, 176 (2000).
 Id. at 177.
 Id. See also Muhammad ‘Ata al Sid Sid Ahmad, Islamic Criminal Law: The Hudud, 136 (1995).
 See State v. Muhammad Waseem et al., Sessions Case No. 45/S of 2016/2019 (Sept. 27, 2019).
(Suggested Bluebook citation: Zainab Hashmi, Criminal Law (Amendment): Offences in the Name or Pretext of Honor Act, 2016 Passed by Majlis-e-Shoora (Parliament) of Pakistan, Islamic Law Blog (May 18, 2021), https://islamiclaw.blog/2021/05/18/criminal-law-amendment-offences-in-the-name-or-pretext-of-honor-act-2016-passed-by-majlis-e-shoora-parliament-of-pakistan/)
(Suggested Chicago citation: Zainab Hashmi, “Criminal Law (Amendment): Offences in the Name or Pretext of Honor Act, 2016 Passed by Majlis-e-Shoora (Parliament) of Pakistan,” Islamic Law Blog, May 18, 2021, https://islamiclaw.blog/2021/05/18/criminal-law-amendment-offences-in-the-name-or-pretext-of-honor-act-2016-passed-by-majlis-e-shoora-parliament-of-pakistan/)