SHARIAsource

The Malaysian Supreme Court case of Che Omar bin Che Soh v. Public Prosecutor arose as an appeal of the mandatory death sentences issued to three men sentenced for either drug or firearms crimes under the Dangerous Drugs Act 1952 or the Firearms (Increased Penalties) Act 1971, respectively. In their appeal, the men argued that their mandatory death sentences were unislamic and therefore unconstitutional under Article 3 of the Malaysian constitution which established Islam as the official religion of Malaysia. Following an analysis of the constitution’s text and the historical context in which the constitution was written, the Supreme Court found that its framers could not have intended Article 3 to mean that all laws contrary to Islam would be void. Thus, the Court rejected the appellants' argument.

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. 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. In a witness statement on the day of the occurrence, the deceased’s parents accused their son (Muhammad Waseem) for killing their daughter. Waseem was arrested and, shortly thereafter, admitted to murdering his sister “in the name of Gairat” during interrogation. The next day, Waseem repeated the confession in front of a Judicial Magistrate in a recorded statement. In December 2018, the State instituted a criminal case against Waseem and five other defendants for the offenses of qatl-i-amd (intentional homicide) and “abetment” of qatl-i-amd. At the onset of trial, Waseem retracted his judicial confession and the victim’s parents waived their right of qisas (retribution) against him. 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. Despite a waiver of qisas (pardoning of the accused) by the deceased’s legal heirs, the court sentenced Waseem to life imprisonment as ta’zir (discretionary punishment). The other defendants were acquitted for lack of sufficient circumstantial evidence against them.

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

In October 2016, Pakistan's 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 honour. The amendments introduce limitations on the waiver of qisas (pardon), available to the perpetrators of Qatl-i-amd (intentional homicide), consistent with Islamic criminal law principles. Specifically, the new law introduces Ta’zir—discretionary judicial punishment—for an offender guilty of fasad-fil-arz (spreading mischief on Earth), particularly if the offence is committed in the name or pretext of honor. Under the new law, a court may punish such offender with imprisonment for life after considering “the facts and circumstances of the case.”