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Pakistan
Islamic Provisions
The process of Islamization that has taken place in Pakistan,
especially in the Zia years, has raised considerable concern about
criminal law. In February 1979, President Zia promulgated a new
legal code for Pakistan based on Islamic law and established the
Federal Shariat Court to hear appeals arising from the new code.
The Federal Shariat Court also has extensive other powers (see
Role of Islam , ch. 4). It lies within the discretion of the court
of first instance to decide whether to try a case under civil
or sharia law. If the latter, then the appeals process goes to
the Federal Shariat Court, rather than to the high courts.
Sharia law was not intended to replace the criminal code but
to bring specific parts of it into accordance with the Quran and
the sharia. Its most notable provisions are contained in the hudood
(sing., hadd) ordinances promulgated in 1979. The first
ordinance deals with offenses against property, the second with
zina (adultery) and zina-bil-jabr (rape), the
third with qazf (false accusation of zina),
and the fourth with prohibition of alcoholic beverages. Under
the ordinances, there are two levels of cases: hudood
cases, which have particularly strict Islamic evidentiary requirements
and call for specific "Islamic" punishments; and tazir
cases, where the evidence requirements are less strict and the
punishments less draconian.
A later decision by the Federal Shariat Court has made defiling
the name of the Prophet Muhammad punishable by a mandatory death
penalty. This decision has raised concerns in Pakistan's small
Christian community and especially among the badly persecuted
Ahmadiyya religious minority. Orthodox Pakistani Muslims consider
Ahmadiyyas heretical, and the group has been prohibited from asserting
any claim to being Muslim--even the use of everyday Islamic greetings.
As a hadd crime, rape is punishable by hanging; adultery
and fornication, as well as qazf, by stoning to death.
Crimes against property of substantial value call for amputation
of hands or feet. Public drunkenness and, in the case of Muslims,
any consumption of alcohol, is punishable by flogging.
For the most part, Islamic punishments have not been carried
out, the sole exception being flogging, which has been imposed
primarily for tazir crimes, as well as for narcoticsrelated
crimes. In addition, alleged political crimes also resulted in
flogging during the last period of martial law (1977- 85). Hudood
sentences of amputation have been passed but either have been
reversed on appeal or have not been carried out. Occasional stonings
for adultery have always taken place in tribal and other rural
areas, but no sentence of stoning under the 1979 hudood
laws has been carried out.
The Federal Shariat Court has been involved mainly with noncriminal
matters, aside from the review of hudood convictions,
which in most cases the Federal Shariat Court has reversed. In
other matters, such as provision of equal treatment under the
law and requirement for a standard of evidence, its application
of Islamic principles has even served as a liberalizing factor,
including in the military justice system. Overall, as of early
1994 Islamic legal intrusions have had only a limited effect on
criminal law, although the potential for growth is there, especially
under the more activist leadership that the Federal Shariat Court
has shown since 1990.
Among the more notable peculiarities of the new enactments is
the issue of rape (zina-bil-jabr). On the one hand, the
crime is rarely proven because four adult Muslim males of good
reputation must appear as witness to the act. If the charge fails,
then the woman who has brought it can be punished for false accusation
(qazf) or, more commonly, for adultery (zina)
herself because through her charge she has admitted an illicit
sexual act. In 1991 two-thirds (some 2,000) of the women imprisoned
in Pakistan were being held on such charges. This treatment, of
course, has a very chilling effect on women who are raped.
Laws passed in the 1980s give the victim of a murder or other
violence, or the victim's heirs, the right to inflict an equivalent
harm. At the same time, however, there is a legal alternative
in payment of blood money, which enables wealthy Pakistanis to
avoid punishment by paying money. Under the law, only half of
the amount must be paid if the victim is female.
In 1984 parts of the Indian Evidence Act of 1872 were changed
with much fanfare to meet Islamic criteria, but there was little
substantial change. Demands by Islamic enthusiasts that the testimony
of two women be considered the equivalent of that of one man were
met only symbolically. The hudood ordinances, however,
do contain evidential provisions that discriminate sharply against
women.
In May 1991, the National Assembly passed the Shariat Bill, intended
to bring the entire justice system into accord with Islamic norms.
These norms had not yet been established, and, as of early 1994,
no serious attempt had been made to draft and pass the laws and
constitutional amendments that would be required. Many observers
believed that the act was meant as an empty sop to Islamist extremists,
but it seemed likely that there would be constant pressure to
implement the act more fully.
Data as of April 1994
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