Interrogating the Plea of Grave and Sudden Provocation In Islamic Criminal Law: Case Study of Pakistan

Musa Usman Abubakar

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Chapter 9 Interrogating the Plea of Grave and Sudden Provocation In Islamic Criminal Law: Case Study of Pakistan

于The Asian Yearbook of Human Rights and Humanitarian Law

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Musa Usman Abubakar

Musa Usman Abubakar
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类型:: 章节

Page Range:: 163–184

DOI:: https://doi.org/10.1163/9789004520806_010

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Abstract

The plea of grave and sudden provocation is one of the popular defences at Common law, and as a result of legal transplantation, courtesy of the colonial rule, it found its way into the corpus of laws of Pakistan around 1835–1837 when the Penal Code of Colonial India was being drafted. The plea remained as defence capable of reducing death sentence to mere term of imprisonment particularly in inter-spousal accusation of infidelity for which women were mostly victims of honour crimes. The Islamisation policy of General Zia ul-Haq introduced Qisas and Diyat Ordinance, which did not recognise the plea of grave and sudden provocation, owing to the groundbreaking judgement of the Supreme Court in Federation of Pakistan v Gul Hassan. However, not long after, some judges using the opening provided in section 338-F of the Pakistan Penal Code, re-introduced the defence ironically justifying it by citing Prophetic Traditions and Practices of the Companions of the Prophet (PBUH). Against this backdrop, this article, using doctrinal method, examines the authorities usually cited by these courts to justify concessions for perpetrators of honour crimes, and finds that these religious authorities were either misquoted or selectively quoted; and that guidance was never sought from the commentaries of the scholars of ḥadīth. The article further finds that liʿān procedure is the only legitimate means of addressing inter-spousal accusation of infidelity, as Islam does not recognise the plea of grave and sudden provocation as a defence. It recommends that judges should always be guided by the commentaries of scholars of ḥadīth and should be wary of attributing to Islam what does not belong to it, otherwise there will be no end to demonisation of Islam as anarchist and not women-friendly.

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The Asian Yearbook of Human Rights and Humanitarian Law

Volume 6

丛编： The Asian Yearbook of Human Rights and Humanitarian Law, 卷： 6

Cover The Asian Yearbook of Human Rights and Humanitarian Law

ISBN:: 9789004520806

出版社:: Brill | Nijhoff

印刷出版日期:: 06 Sep 2022

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Chapter 9 Interrogating the Plea of Grave and Sudden Provocation In Islamic Criminal Law: Case Study of Pakistan

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The Asian Yearbook of Human Rights and Humanitarian Law

Volume 6

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