This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Case Summary
In September 2019, a Multan Sessions Court (state trial court) issued its decision in State v. Muhammad Waseem et al., a high-profile honor killing case in Pakistan.[1] The case involved the killing of Qandeel Baloch, a controversial social media star, who was found strangled to death in her home on July 16, 2016.[2] In a witness statement on the day of the occurrence, the deceased’s parents accused their son (Muhammad Waseem) of killing their daughter.[3] Waseem was arrested and, shortly thereafter, admitted to murdering his sister “in the name of Gairat [honor]” during interrogation.[4] The next day, Waseem repeated the confession in front of a judicial magistrate in a recorded statement.[5] In December 2018, the state instituted a criminal case against Waseem and five other defendants—Haqnawaz (Waseem’s brother), Muhammad Abdul Qavi (a prominent muftī who had interacted with the deceased), Abdul Basit, Aslam Shaheen, and Muhammad Zafar—for the offenses of qatl-i-amd (intentional homicide) and “abetment” of qatl-i-amd.[6]
At the onset of trial, Waseem retracted his judicial confession and the victim’s parents waived their right of qiṣāṣ (retribution) against him.[7] After evaluating the facts, circumstances, and evidence admitted at trial, the court held that the prosecution had proved “beyond shadow of reasonable doubt” that Waseem strangled his sister to death and that this was a case of honor killing.[8] Despite a pardoning of the accused (“waiver of qisās”) by the deceased’s legal heirs, the court sentenced Waseem to life imprisonment as ta‘zīr (discretionary punishment).[9] The other five defendants were acquitted for lack of sufficient circumstantial evidence against them.[10]
Source: State v. Muhammad Waseem et. al, Sessions Case No. 45/S of 2016/2019 (Sept. 27, 2019) (Pakistan).
Analysis
The judgment in State v. Waseem et al. is demonstrative of the evidentiary requirements and the prosecution’s burden of proof in homicide cases, particularly in an honor killing context. Indeed, the bulk of the judgment focuses on the facts and circumstances of the case, chronologically outlining the protracted criminal investigation that ensued.[11] Each item of circumstantial evidence—autopsy and other forensic test results, DNA analysis of samples from the crime scene, defendants’ polygraph tests and interrogation statements, cellphone data records, witness statements, police reports, and certain other documents—admitted at trial is described and analyzed.[12] Significantly, the court states that the retraction of Waseem’s confession “does not affect its evidentiary value” because “no suggestive material [was] brought on the record by the accused that his judicial confession was not voluntary [sic] nor [sic] the result of torture by police, so his defense . . . is not believable” in that regard.[13] While the polygraph tests and interrogation statements are deemed inconclusive, the DNA analysis and judicial confession appear to significantly inform the court’s holding.[14] The court holds that the prosecution proved “beyond shadow of a reasonable doubt” that Waseem strangled his sister to death in the name of honor.[15] While the court’s analysis demonstrates the high burden of proof on the prosecution, the main purpose of the evidentiary analysis in this case is to establish the motive of the killing for the stipulated punishment.
In Waseem, the legal issue of interest is the judicial application of ta‘zīr (discretionary punishment) despite a pardoning of the accused (the legal heirs waived qiṣāṣ). Per constitutional mandate, the Pakistan Penal Code (PPC) incorporates Islamic criminal law principles.[16] Honor killings are tried as qatl-i-amd offenses—the act and result of death are both intended—and the offenders are liable to qiṣāṣ (retribution in the form of capital punishment).[17] However, the victim’s legal heirs may waive (afw) the right of qiṣāṣ, that is, they may choose to pardon the accused to relinquish the infliction of capital punishment.[18] Thus, the law provides considerable discretion to the deceased’s legal heirs, making it their prerogative to either: (1) demand capital punishment for the offender as qiṣāṣ; or (2) to pardon the accused and seek acquittal, if prosecuted or convicted. This legal framework is consistent with the Qur’ān and Sunnah’s emphasis on the virtues of forgiveness and mercy.[19] The application of discretionary punishment varies within the different madhhabs (Islamic legal schools). For qatl-i-amd offenses, some madhhabs recognize the validity of ta‘zīr ordered by a court despite a waiver of qiṣāṣ—the aim is to punish offenders “notoriously known for their misdeeds” or “to refrain them from further commission of the same.”[20] This is primarily a Mālikī view,[21] and there are several disagreements regarding the character and nature of punishment allowed under ta‘zīr among Muslim jurists.[22] Notably, classical Ḥanafī law—widely followed in the subcontinent—does not allow a pardon to drop the punishment for crimes, such as homicide, that are public offenses. Nonetheless, the PPC incorporates ta‘zīr and recent criminal law amendments carve out a stricter ta‘zīr for killings in the name or pretext of honor.[23]
In Waseem, the court diminishes the weight of the waiver of qiṣāṣ by the deceased’s parents. The defense had argued that since the parents, being the legal heirs of the deceased, have pardoned the accused, the defendants are “entitled to acquittal as a matter of right and not as a matter of grace.”[24] While the court acknowledges the pardon as well as an emotional appeal by the mother to the court to “accept the compromise . . . as she has lost her daughter and further does not want to lose [sic] her son,” the law makes the “acceptance of such compromise” subject to “discretion . . . granted to the court.”[25] The claim appears consistent with ta‘zīr subject to judicial regard for facts and circumstances of the case[26] (as well as the unique Ḥanafī stance on private pardons not dropping state claims for hudūd and qiṣāṣ). But the judgment goes a step further by implying that “even if the compromise is accepted,” the court must nonetheless sentence Muhammad Waseem “to undergo imprisonment for life” because “the accused has confessed before the learned Judicial Magistrate while recording his judicial confession that he committed the murder of his sister due to her photographs and videos,” actions which “fall within the ambit of Sec. 311 PPC.”[27] It is unclear whether the statutory construction mandates the specified ta‘zīr once the motive of the homicide (as an honor killing) has been established. Ta‘zīr is inherently discretionary and the judicial decision may be challenged as a departure from that principle.
State v. Waseem et al. is a landmark decision with the potential to impact future prosecutorial outcomes in honor killing cases. Most perpetrators of honor killings in Pakistan are forgiven by the victims’ legal heirs and the murders are rarely investigated or prosecuted; the exclusive focus on forgiveness for offenders has arguably perpetuated the abusive practice. Judge Imran Shafi, who writes the judgment in Waseem, is perhaps cognizant of the detrimental consequences of almost-guaranteed acquittals of those who commit honor killings.[28] However, the viability or adoption of this seminal decision in other honor killing cases remains to be seen.
Notes:
[1] State v. Muhammad Waseem et al., Sessions Case No. 45/S of 2016/2019 (Sept. 27, 2019) [hereinafter “Waseem”].
[2] Id. at 2.
[3] Id.
[4] Id. at 5.
[5] Id. at 6.
[6] Id. at 1.
[7] Id. at 37.
[8] Id. at 37–38.
[9] Id.
[10] Id. at 37.
[11] Waseem, supra note 1, at 2–21.
[12] Id. at 2–37
[13] Id. at 28, 36–37.
[14] Id. at 37.
[15] Id. at 36–38.
[16] The Constitution of Pakistan, Part IX: Islamic Provisions, §227.
[17] Pakistan Penal Code (Act XLV of 1860), § 302 [hereinafter “PPC”].
[18] Id. at §§ 309–10.
[19] See, e.g., Qur’ān (5:45); Qur’ān (42:40); Sunan Ibn-Majah, Kitab al-Diyat, Vol. 2, 898 (“[N]o man would remit from any injury inflicted upon him, but Allāh would elevate his position and forgive his sins.”); Sahih al-Bukhari, Kitab al-Diyat, Vol. 4, 38–39 (“[T]he legal heirs have two options to make against the murderer: to exact qiṣāṣ or pardon him upon diyah.”).
[20] Sayed Sikandar Shah Haneef, Homicide in Islam 177 (2000).
[21] Id. See also Muhammad ‘Ata al Sid Sid Ahmad, Islamic Criminal Law: The Hudud 136 (1995).
[22] Haneef, supra note 20, at 177.
[23] PPC §311; 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.
[24] Waseem, supra note 1, at 22.
[25] Id. at 37.
[26] See PPC §311.
[27] Waseem, supra note 1, at 37–38.
[28] See id. at 22 (noting that the victim was “brutally murdered . . . in the name of Ghairat (honor)” and “the accused persons be dealt [with] in a severe manner”).
(Suggested Bluebook citation: Zainab Hashmi, State v. Wassem et al. – Waiver of Qiṣāṣ and Ta’zīr in Honor Killing, Islamic Law Blog (May 25, 2021), https://islamiclaw.blog/2021/05/25/state-v-waseem-et-al-waiver-of-qi%e1%b9%a3a%e1%b9%a3-and-tazir-in-honor-killing/)
(Suggested Chicago citation: Zainab Hashmi, “State v. Wassem et al. – Waiver of Qiṣāṣ and Ta’zīr in Honor Killing,” Islamic Law Blog, May 25, 2021, https://islamiclaw.blog/2021/05/25/state-v-waseem-et-al-waiver-of-qi%e1%b9%a3a%e1%b9%a3-and-tazir-in-honor-killing/)