F:\E\ISLAMICUS\2021\The Abolition of Capital Punishment.pmd Hamdard Islamicus Vol. XLIV, No. 1 145 THE ABOLITION OF CAPITAL PUNISHMENT: AN ANALYSIS OF RELIGIOUSLY INSPIRED CRIMES IN PAKISTAN DR. AISHA TARIQ Department of Law International Islamic University Islamabad, Pakistan Email: aisha.tariq@iiu.edu.pk Recieved on: 22-06-2020 Accepted on: 04-01-2021 Abstract Internationally the focus on abolition of the death penalty has increased during the past few decades. However, 56 countries including Pakistan still hold the punishment as an integral part of their penal systems. Despite the fact, Pakistan uses the particular sentence to settle the fate of offenders in approximately 27 assorted crimes, it still remains unclear what precise reasons provide support to the institutional legitimacy of this penalty. This paper is to explore and share the standpoint of Pakistan as a Muslim retentionist state. Thus the research first expounds the Islamic perspective on the death penalty and later it elucidates how this perspective has been incorporated in the constitutional and legal regime of the state. The paper concludes that Pakistan should re-evaluate its position on retaining death penalty for those crimes which do not clash with the constitutional, religious and social limitations of the state. Keywords: Pakistan, Death Penalty, Retentionist State, Islamic Law 1. Introduction Except only 56 countries, a greater majority of the states has abolished the death penalty either in law (these are the states which not only retain the death penalty in their statutes but also practically execute the punishment; such states are termed as ‘retentionists in practice’) or in practice (the states which though retain the capital punishment in their law books but have not carried out any executions since ten years or more. These countries might be considered, ‘retentionist in law’ or ‘abolitionist de facto’.)1 146 The Abolition of Capital Punishment... The opponents of the death penalty assert that the particular punishment, under any circumstance, violates human rights norms. Its imposition is against the universally accepted ‘right to life’ and that capital punishment is contrary to the prohibition of cruel, inhuman and degrading (or ‘cruel and unusual’) punishment. The death sentences continue to be handed down after trials which allegedly fall short of the international guarantees for a fair trial, including lack of adequate defense during the trials and appeals procedures. Sometimes the legal and procedural lacunas turn into the cause of innocent executions. At the same time they claim that the capital punishment does not fulfill any penological goals and carries no special deterrent affects.2 Despite these firm arguments, retentionist states are not only carrying but forcefully executing the capital sentence. They place social, constitutional/legal and religious reservations against the abolition of the particular punishment. Pakistan is one of those retentionist states which retain the particular punishment in practice. Constitutionally an Islamic state, Pakistan, carries this punishment for approximately twenty seven assorted crimes. The strings of capital sentence for a few of these twenty seven crimes are firmly tied with the Islamic system of punishments. However the increasing worldwide pressures and changing circumstances strained the government of Pakistan to mull over its position on capital sentence in 2008. This happened primarily because the perseverance of the death penalty had materialized as a budding impediment in seeking business from international markets especially from the European states that wanted the abolition of this punishment as one of the guarantees to award Generalised Scheme of Preferences Plus status (GSP + status) to Pakistan.3 To embark upon the conflicting domestic and international scenarios, the government eventually put a provisional stay on execution of capital sentence in September 2008 instead of clearly retaining or abolishing the penalty. However the incident of terrorist attack on a school, situated in Peshawar on December 16, 2014 which took 150 lives of students of age 5 to 16 years allegedly forced the government to reinstate the punishment right away especially to execute those heinous criminals who had been convicted under terrorism charges.4 This study is to discuss the point of view of Pakistan as that ‘Muslim retentionist state’ which maintained, restored and retains the particular punishment despite of all international pressures through especially invoking the religious and security centric reasons. The first part of this paper provides the Islamic perspective of the death penalty. The second part argues about the unusual position of this punishment within the Pakistani Hamdard Islamicus Vol. XLIV, No. 1 147 legal system with special reference to its religious eminence that is strongly backed by the Constitution of Pakistan, 1973 (Constitution hereafter) and which is virtually the major serious stance of the state to retain the capital punishment. The very next segment is an analysis of those issues of law and order which ultimately affect the whole social fabric and which are one kind of the impediments for the abolition of the death penalty in Pakistan. The research concludes that the death penalty has a strong religious significance in Pakistan and since the basic character of the Constitution of Pakistan is Islamic therefore, the complete abolition of the death penalty is possible only through bringing an amendment into this basic character of the Constitution. The espousal of such kind of Constitutional amendment is nearly impossible in Pakistani social scenario. Therefore it is suggested that the Pakistani legislature should reconsider those other two dozen common law crimes which have no religious association and for which the death penalty can be awarded. 2. The Islamic Perspective on the Death Penalty The Holy Qur’Én states” “…take not life, which Allah Almighty has made sacred, except by way of justice and law. Thus, does He command you, so that you may learn wisdom.”5 In Islamic legal corpus, the expression Al-Íaqq is used for the corresponding English word “right”.6 The primary meaning of Íaqq is “an established fact” and its secondary meaning is truth.7 Islam divides the “rights” or “×uqūq” in two broader categories. These are, “×uqūq Allāh” (the rights of Allah Almighty) and “×uqūq al-‘IbÉd” (the rights of humans). All criminal, financial & social laws expounded through Øharī‘Éh ultimately fit in to this categorization of ×uqūq. While in the modern jurisprudence ‘state’ becomes party to the criminal case for the security and benefit of the society at large. In Muslim states, when a case is presented through “State”, it falls in the category of ×uqūq Allāh and is also defended by the state. While in ×uqūq al-‘IbÉd, the individual and private rights of people are discussed.8 Muslim jurists divide the crimes in three types; 148 The Abolition of Capital Punishment... 1. fixed crimes and punishments (×add, plural ×udūd) specified by the foundational texts which generally come under the category of ×uqūq Allāh. They are adultery (Zinā), theft (Sarqah), drinking alcohol (Shurab al-Khamr), slander (Qadhaf), waging war against Allah Almighty (×arābah), apostasy (Irtidād) and transgression or rebellion (Baghi).9 (Hadd with a fixed nature of penalties primarily safeguard the public interest by taking the sanction from the concept of Huqūq Allah. Different from QiÎÉÎ, they might not be waived off by the private persons or by the head of state. According to most of the jurists, the ×add of Qadhaf is the only exception, for which the punishment is regarded as both for ×aqq Allāh and ×aqq al ‘Abd.) 2. Laws of retaliation (QiÎÉÎ) and financial compensation (Diyat) for homicide and personal injury are also drawn from the texts but they are part of the category of ×uqūq al-‘IbÉd. 3. In addition to it, there are penalties for offences not addressed by the texts and which are at the discretion of the state and are dealt through SiyÉsah or ta‘zÊr.10 Now out of the crimes mentioned in the above-cited three sets, there are only five crimes for which the death penalty has been identified as an appropriate punishment in Islamic Criminal Law. Muslim jurists collectively treated a set of four acts as ‘×udūd crimes’ designed for capital punishment, i.e. adultery (ZinÉ), apostasy (IrtidÉd / Ridda) [the jurists held the blasphemy to be equivalent to the apostasy], Highway robbery (×arÉbah or Qat al-tarÊq) and rebellion (BÉghi). And in a separate category from ×udūd, the death penalty is awardable for intentional murder through the law of retaliation (QiÎÉÎ). In Islamic law the death punishment is justified by deterrence, retribution, rehabilitation and to protect the society by incapacitating the offender. 2.1. Death Penalty through the Imposition of ×udūd The unlawful sexual intercourse between two people of opposite sex who are not married to each other is termed as adultery (Zinā). The Holy Qur’Én discusses the crime of adultery whereas its punishment is elaborated by the Sunnah. The penalty for unmarried adulterers is flogging with 100 stripes while for the married, it is stoning to death.11 To inflict the penalty of Zinā. SharÊ‘ah prescribes a very detailed and strict procedure of evidence. The Holy Qur’Én says: Hamdard Islamicus Vol. XLIV, No. 1 149 “Those who accuse chaste women ‘of adultery and fail to  produce four witnesses, give them eighty lashes each . And do not ever accept any testimony from them for they are indeed the rebellious.”12 The Óyat basically deals with ‘×add al Qadhaf’ enforceable against the people who put false accusation of adultery against chaste women. However the jurists have deducted the rule of four witnesses for the enforcement of ×add al Zinā. For this purpose, they say that the four eye witnesses must give complete details of the incident with corroborative evidences. A four time repetition of the narration to the Judge on four different occasions by them is also required or the confession made by the offender (which has not been reverted later on) is necessary to precede the punishment. In case the four witnesses are not available but the crime might be established through the circumstantial evidences, the punishment under ×add shall not be carried out rather a ta‘zīri punishment will be awarded. Nevertheless it is nearly impossible to satisfy the rules of evidence in such cases unless the act is performed at an open public space.13 The crime of Ridda or apostasy is set forth in the Holy Qur’Én. It says, “And whoever of you turns from his religion and dies disbelieving, their works have failed in this world and the next. Those are the inhabitants of fire: therein they will dwell forever.”.14 This verse was interpreted by the Prophet (Øal Allah-u-‘alaihe wa sallam) as constituting a ×add requiring the death penalty. Muslim scholars have long debated over this crime. Some see it as the modern equivalent to high treason while others take it as a rejection of Islam altogether.15 Except the some jurists from ×anafÊ and Shi‘ah school of thoughts, most schools of Islamic law consider the apostasy a ×add crime to be punished with death. They justify their claim that since the apostate becomes a potential enemy combatant therefore he should be penalized with death.16 Some jurists include blasphemy within the meaning of ridda and treat it as a novel and severe form of defamation or Qadhaf). These jurists criminalized apostasy and blasphemy alike.17 However some jurists deemed the blasphemy as a ta‘zÊr.18 The crime of rebellion / transgression (BaghÉwat) is defined in the Holy Qur’Én. It says: 150 The Abolition of Capital Punishment... “If two parties among the believers fall in to a quarrel, make ye peace between them, but if one of them transgresses beyond bonds against the other, then fight ye all against him who transgresses until he complies, then make peace between them with justice and be fair (and just).”19 The commonly agreed definition of BaghÉwat refers to an unlawful uprising against the legitimate ruler (ImÉm) by use of force (equivalent to treason and armed rebellion). However, since the Muslims are entitled to rebel against unjust rulers thus the complexity involves to draw the line between lawful and unlawful rebellion.20 For the crime of ×arabah (Qatl al TarÊq), the Holy Qur’Én has mentioned four penalties in Surat al-Ma’idah which include capital punishment, crucifixion, cross-amputation or banishment. It says: “The penalty of those who wage war against Allah and His messenger and seek corruption in the land is to be killed, or crucified, or to have their hands and feet cut on alternate sides, or to be banished from the land. That is their disgrace in this world, and in the Hereafter they shall have a great punishment.”21 The different punishments deal with different situations arising during BaghÉwat. MÉlikÊ School of Law recommends minimum penalties in each case while judge has the freedom to impose serious punishments if he finds severity in the crime committed. Since in this ×add, sometime a relationship between the ×aqq Allāh (regarding the imposition of ×add) and the ×aqq al ‘Abd (in case of homicide) can arise thus contrary to the general rule about the concurrence of penalties, most schools hold that ×add precedes the QiÎÉÎ. In the case only if ×add lapses, e.g. because of the repentance of the culprit expressed before his arrest then the claims of man can become enforceable. The ShÉfi‘Ê (RaÍmat Allah ‘alaih) however, give priority to QiÎÉÎ over ×add.22 2.2. Death Penalty through the Imposition of QiÎÉÎ QiÎÉÎ or retaliation is another crime for which death penalty is fixed. The word QiÎÉÎ means equivalence. The rule of equal retaliation Hamdard Islamicus Vol. XLIV, No. 1 151 is not only applicable for homicide but also for all types of bodily harms.23 For penal purposes, Islamic law divides the crime of murder in two categories. One is intentional (the willful and intended murder) for which QiÎÉÎ (the killing of the offender in same way) can be claimed and the other is unintentional for which monitory compensation (DiyÉt) is allowed. The crimes amounting to QiÎÉÎ are considered the breach of the ‘right of man’ (×aqq al ‘Abd). Therefore this is the discretion of the family of the victim either to take QiÎÉÎ 24 or to claim the blood money or DiyÉt25. The state or no other person can intervene into or take away this right of the legal heirs of the victim. However this is very clear that the rule of equality and proportionality should be strictly followed in the infliction of QiÎÉÎ.26 Just like ×udËd punishments, Islamic law provides strict evidentiary requirements for the infliction of penalty of death through QiÎÉÎ. There is a requirement of two eye witnesses or a free, voluntary confession made with full understanding and acumen without having any compulsion or coercion upon the person. Additionally, the testimony should be corroborated with evidences. If the evidential requirements are not fulfilled, the death penalty through QiÎÉÎ cannot be inflicted.27 2.3. Death Penalty through the Imposition of Ta‘zīr In addition to these crimes, Islam allows to award death penalty through Ta‘zīr and SiyÉsah (Ta‘zīr and SiyÉsah both signify the punishments awarded by the state. Although both expressions are sometimes used as synonyms however they refer to different concepts. Ta‘zīr can only be imposed for the acts forbidden by the Sharī‘ah while SiyÉysah may be administered for any act which can threaten the public peace.)28 While keeping in regard the principle of legality which stipulates that there is neither any crime nor any punishment without law. Ta‘zīr crimes are lesser of the category of ×udūd and QiÎÉÎ crimes and may be applied; 1. Where the ×add or QiÎÉÎ laws cannot be imposed due to weak evidence; 2. Reduced penalties for inconclusively established, or insufficiently proven ×add and QiÎÉÎ charges where individual or social harm is perceived by the Judge; 3. Regulatory offences where an individual, social or public harm exists.29 152 The Abolition of Capital Punishment... The most prominent imposition of SiyÉsah is to award death sentence to habitual criminals for ‘striving after corruption in the land’. For example, the Holy Qur’Én says, “the only reward of those who make war upon Allah and His messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom”.30 The Óyat further says, “Save those who repent before ye overpower them. For know that Allah is Forgiving, Merciful”.31 2.4. MaqāÎid al-Sharī‘ah As a policy matter for the Muslim rulers, the jurists have classified maÎÉliÍ (benefits) into ÌarËrat or ‘necessary interests’, ÍÉjÉt or ‘supporting interests’, and teÍsinÉt or ‘complementary interests’. ÖarËrat or necessary interests are those without the protection of which there would be anarchy or chaos in the society.32 These are basically founded on the principle of relationship between ‘×ukm and ×ikmat’. One set of these rules ÌarËrat is termed as, MaqāÎid al-Sharī‘ah or the ‘fundamental objectives of SharÊ‘ah (or the ‘higher objectives of SharÊ‘ah) according to which the purpose of revealing the injunction was in fact preservation of certain values, freedoms or rights which are essential for maintenance of balance among society. These MaqāÎid are preservation of faith, life,33 property,34 intellect,35 progeny36 and according to some, it also includes the preservation of reputation.37 “In the detailed scheme of rights and their normative structure, the priorities have been assigned not only with respect to the rights but also with respect to the right holder. In this scheme, everyone possesses rights but no one has a right above the right of Allāh.”38 After this, the right of man of preservation of his life is kept at the highest pedestal. Thus the Muslim rulers should as a matter of policy create circumstances where these MaqāÎid can be safeguarded and preserved in the given hierarchy. Hamdard Islamicus Vol. XLIV, No. 1 153 3. REASONS FOR THE RETENTION OF THE DEATH PENALTY IN PAKISTAN 3.1. Contemporary Legal Reasons The religious grounds are used as the principal plea against the abolition of the capital punishment in Pakistan. In Pakistan, the basic character of the constitution is Islamic. Article 2 of the Constitution declares Islam as the state religion. Whereas Article 2-A affirms the Holy Qur’Én and the Sunnah as the ultimate law of the land. Islamic teachings are made part of public policy through Article 31 while Article 203-A to 203-J require that the legal verdicts should be in accordance with Islamic injunctions. Article 227, which is considered as one of the most influential provision of the Constitution, maintains that no such law should be promulgated which is incompatible with the Islamic injunctions of the Holy Qur’Én and the Sunnah. (Besides Article 227, there are other subsidiary laws such as Enforcement of Sharī‘ah Act 1991, which has specifically been drafted to check the conformity of all minor and major statutes with Sharī‘ah.) The combined effect of all these provisions of the Constitution is that the Islamic imperatives have the superior authority against rest of the statutes. The litmus test to determine the legal validity of every statute is its consonance with the Holy Qur’Én and the Sunnah. In other words, the Holy Qur’Én and the Sunnah are the ground-norms for Pakistani legal system.39 The legal justification for the death penalty given by Pakistan should be examined in the light of the afore-mentioned constitutional scenario. The particular punishment can be awarded against twenty seven crimes in Pakistan. The common law crimes include the commission of immoral and illicit crimes against women (Pakistan Penal Code, 1860 [PPC]40 Section 354-A), crimes relating to property (PPC, Section 365-A), dacoity and murder (PPC, Section 396), hijacking (PPC, Section 402-B), harbouring the hijackers (PPC, Section 402-C), import and export of dangerous drugs (Section 13 of the Dangerous Drugs Act, 1930), various crimes against the state (Sections 24, 26 and 31 of the Pakistan Army Act, 1952), high treason (Section 2 of the High Treason Act, 1973), maliciously hurting or attempting to hurt persons traveling by railway or damaging property belonging to railway (Section 127 of the Railways [Amended] Act, 1995), transportation of specific dangerous arms (Section 13-A of 154 The Abolition of Capital Punishment... the Pakistan Arms (Amendment) Ordinance, 1996), the crime of possessing narcotic substance (Section 9 of the Control of Narcotics Substances Act, 1997) and for the commission of terrorist acts (Section 6, 7 and 8 of the Anti Terrorism Act, 1997). While the death penalty receives authority from direct and indirect Islamic injunctions for intentional murder, adultery and crimes against religion and the respective law has been codified in accordance to these injunctions. The highest numbers of executions are however carried out for intentional murder and for the commission of terrorist acts throughout Pakistan. This is pertinent to elaborate those relevant provisions here which get the punitive sanction from the Islamic injunctions. Under Section 302 of the PPC, the intentional murder with reference to its punishment is further categorized into three kinds: (a) Intentional murder liable to death through following the Islamic rule of QiÎÉÎ under Section 302(a); (b) Intentional murder liable to death or life imprisonment through Ta‘zÊr (the punishment awarded through exercise of discretionary powers of the relevant court) under Section 302(b) (read with Section 311 and 338 [e-1]); (c) Intentional murder punishable with imprisonment of either description for a term which may extend to twenty five years, where the punishment of QiÎÉÎ is not applicable owing to deficient evidentiary requirements. The first two categories that carry the death penalty in one way or another ultimately connect to the Islamic rules of punishment. The first category which is relevant to the rules of QiÎÉÎ (revenge or retaliation) is the most significant one; it is one of those punishments which are specifically provided in the Holy Qur’Én and the Sunnah of the Prophet Muhammad (Øal Allah-u-‘alaihe wa sallam) (refer sec: 1.2). Under the principle of QiÎÉÎ, the matter, after exhaustion of all the rights of appeal by the offender ultimately ensues straightly between the parties to the case. Once the final conviction is pronounced by the court, the right of legal heirs of the deceased to take revenge from the accused (through giving the approval for the execution of judicially approved death penalty) or to let him off becomes operative. At this point they solely can decide about the fate of the offender and the state or the court can exercise no authority over this right.41 If the legal heirs decide to take revenge, the Hamdard Islamicus Vol. XLIV, No. 1 155 court and the state are obliged to honour this decision by executing the death penalty and if they decide not to take vengeance through the way of QiÎÉÎ and agree to compound the offence, they can simply pardon the offender under the principle of Al-’afw (the principle of forgiveness) discussed in Section 309 of the PPC or can receive the blood money as diyat (which means the compensation money fixed by the government (in accordance with the Islamic injunctions) as specified in Section 323 of the PPC payable to the heirs of the victim or the legal heirs can compound their right of QiÎÉÎ by accepting Badl-e-SulaÍ which is the mutually agreed compensation given under Section 310 of the PPC. Since constitutionally the Islamic injunctions are the most superior part of the Pakistani legal system therefore it might be stated that the state cannot use the power to wholesomely abolish the death penalty. Because such usage of power would be against the rules prescribed under the penal law mentioned in the Holy Qur’Én and the Sunnah for the QiÎÉÎ; the Constitution does not allow such bypass. Under the second category of intentional murder, the death penalty might be awarded through ta‘zīr. This category also essentially takes its strength from Islamic law. Here the courts usually use discretionary powers to award death penalty under the principle of fasÉd-fil-arÌ to award death penalty through ta‘zīr.42 This Islamic rule applies to the cases where the killer is a potential danger for the society or where he adopted an extremely atrocious or shocking method of killing which is outrageous to the public conscience at large, or if he has been previously convicted for the same crime or is a habitual offender or a professional criminal.43 Such convict may be sentenced to death by the court in exercise of its discretion which may be gathered through the connecting circumstances under Section 302(b) (read with Section 311 and 338 [e-1]) of the PPC.44 Here through applying this rule, the court may pronounce the death penalty even though a compromise had already taken place between the parties through the operation of the rules of ‘Afw, diyat or badl-e-ÎulÍ.45 Though the offence of adultery or ×add of ZinÉ comes next in this list of crimes for which the death penalty can be pronounced under Islamic law however the Pakistani courts have never awarded capital sentence by applying the particular provisions of ×add of ZinÉ ever since the inception of the crime in offence of ZinÉ (Enforcement of ×udËd) Ordinance in 1979 under Section. This is due to the strict testimony criterion fixed under the law which is basically derived from the Islamic provisions mentioned in the 156 The Abolition of Capital Punishment... Holy Qur’Én and the Sunnah. It requires, either the confession of the accused before a court of competent jurisdiction or at least four Muslim adult male eye witnesses of the act of penetration and who satisfy the requirement of tazkiyah al- shuhūd [that they are truthful persons and abstain from major sins (kabÉ’ir)] (Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.)46 The prosecution could never present the mandatory proofs and evidences before the courts to apply the punishment as prescribed under the ×add of ZinÉ. To tackle this matter, the courts pronounce the death penalty or any other suitable punishment for the crime of adultery under ta‘zÊr. Blasphemy committed against Prophet Muhammad (Øal Allah-u- ‘alaihe wa sallam) is another crime punishable with death through Section 295-C of the PPC. In Pakistan, the topic of blasphemy has held a special position ever since the time of its inception in law in 1986. A strong social relevance and influence which immensely affects the religious sentiments of common people of the country has been observed throughout since 1986 to date. And therefore, every effort to amend the law eventually proved grave.47 The law though contains death penalty for the commission of the crime of blasphemy however the punishment has never been executed for the crime. 3.2. Contemporary Reasons with Regard to Security & Order System There are various reasons behind retention, reinstatement and maintenance of the death penalty in Pakistan. Besides other motives, the statistics prove that it works as a deterrent strategy and such deterrence plays its role in smooth running of the whole society. This claim might be better established through an analysis of crime statistics of Pakistan during the trial-moratorium against the death penalty and after the lifting up of this temporary stay. The Open Crime Data of Pakistan indicates that the crime in the country constantly increased during the six years of ban on the death penalty (from 2008 to 2014) with an average of 17.86% as compared to the figures of 2007. Whereas the total crime increase in these six years was of 27.53%. The crime against person and property shows upward trend with the average of 24.12% in comparison to the figure of 2007.48 While some obvious decrease was seen in the rate of some very serious Hamdard Islamicus Vol. XLIV, No. 1 157 crimes after the reinstatement of the death penalty in December 2014. For example, the death toll through sectarian violence was at 767 in 2013-14 that diminished immediately towards 276 in 2015 and 131 in 2016.49 Pakistan had been facing the most prominent intransigent hostility through terrorism since almost two decades.50 Besides other repercussions such as economic loss, devastation of business industry, uncertainty, and insecure borders etc., the state has also been combating with a very complex frame of mind since 2001 after becoming an ally in ‘war against terror’. This war paved the grounds for allegedly reactionary terror campaign which started spreading like an endemic within the country in the form of frequent bomb blasts. This hostility reached at its peak during 2008 to 2014. According to the ‘National Counter Terrorism Authority (NACTA) Pakistan’, 18,193 terrorist incidents in total took place since 2001 to 2017 in Pakistan, out of which 11,977 occurred only during 2008- 2014. However, in 2015, Pakistan recorded a substantial drop in terrorist activity with 45% lesser attacks, 38% fewer deaths and 54% decrease in injuries than in the previous year. According to the South Asia Terrorism Portal (SATP) Pakistan, total civilian casualties through terrorism declined 47.2% in 2015. This year Pakistan had the third largest decline in deaths. There were 677 fewer deaths in Pakistan. As a result, Pakistan had the lowest number of deaths from terrorism since 2008. 2016-17 are the second and third consecutive years in which Pakistan has seen a reduction in terrorism.51 The afore-mentioned violence industries have their own impact over the entire society with their separate spheres and methodologies to deal and cope with. Pakistan’s stay on executions, being a fix situation, could not muddle through contemporary demands. The pause on death punishment mounted the sense of lack of deterrence in the society which upraised the incidents of terrorism and commission of heinous crimes. The condemned prisoners, particularly the terrorists started the intensification of their net from within the bounds of prison camps and instead they got punished, their associates started haggling and threatening of serious consequences to the government authorities in case of executions of their associated condemned terrorists.52 The members of higher judiciary as, Justice Mushir Alam53 and even the government officials like the then Interior Minister, Mr. Rehman Malik54 had been pointing out the trial-moratorium on death penalty as one of the prime obstacles to maintain peace and security and protection of human rights of the individuals within the country. 158 The Abolition of Capital Punishment... As the fundamental requirement of both, the national law (under the Pakistan Prison Rules No. 224 to 249 of 1978) and the international law, the authorities are required to completely segregate prisoners according to their criminal history sheets and age groups. However in Pakistan, the penitentiaries are overcrowded and convicts (including high profile criminals who are condemned to death) generally intermingle and remain open to inspire, pressurize and influence the other prison fellows. During the pendency of the trial-moratorium the large numbers of 8000 death row prisoners were incarcerated in Pakistani prisons with other low profile offenders. To avoid their negative influence on other offenders, the government, before halting the capital punishment should had constructed the separate prison camps to imprison the potential beneficiaries of moratorium; additionally, reasonable budgets should had been allocated to deploy a special task force for controlling these highly dangerous offenders. Nevertheless no such measures were taken and consequently due to poor security system, the criminal networks and their members had got so powerful, well informed and connected to the dangerous prison inmates during five to six years of moratorium that they repeatedly attacked the prisons and got their hundreds of crime fellows escaped from there.55 As another upshot of the cessation of the death penalty, a clear increase was noticed in the feelings of dejection, hopelessness and helplessness in society in finding justice against the culprits. It grew as a provocation for the legal heirs of the victims to take revenge on personal level who actually had no prior motives to commit crime. And so the six years of trial-moratorium repetitively witnessed the mobs killing the dacoits and culprits under a belief of failure to get the offenders legally punished.56 Thus the people started assuming that they themselves should settle the scores instead of invoking the legal methods. This was a new but very alarming phenomenon. Therefore, it was vital with the law and security point of view to bring back the trust of the common people in state’s legal system by reinstating the capital punishment. 4. PROOF OF THE CLAIM There are 27 crimes labeled with the death penalty in Pakistan. The claim of this paper is that these crimes may be divided into three groups. The first category includes those crimes for which the death penalty is awarded under the Islamic laws in QiÎÉÎ, ×udËd, the blasphemy, etc. Hamdard Islamicus Vol. XLIV, No. 1 159 The second category has in it those crimes which seriously threat the law and order of the state like terrorism, intentional killing, etc. The death penalty for the crimes falling in these two groups should be retained. The third category comprises nearly two dozen crimes like anti-narcotics, crimes against railway, etc. for which the capital sentences is awarded. State should reconsider its position on retaining the highest punishment for these offences. The first prong of the claim is proved by the constitutional sanctity afforded through the injunctions of Islam since to do away with death penalty in these crimes, constitutional amendment is needed (refer sec: 2.1). For the second type of classification, the limb of the claim is proved by the fact that the death penalty falling in this group is prescribed as ‘a tool of deterrence’ against those who sabotage the law and order. The annual crime rates of reliable sources prove these claims (refer sec: 2.2). Whereas, the third classification includes less serious crimes with minor constitutional, legal and social sanctions. Therefore, the logical way to get through the increasing economic pressure of the international community to abolish the death penalty and to serve the domestic needs of the country is that the legislature should revisit its retention policy of the death penalty with reference to this list of crimes. 5. CONCLUSION AND SUGGESTIONS Pakistan got independence on religious grounds primarily. This fact can evidently be noticed in the Constitution of the state which is certainly drafted in accordance with the beliefs of the common people. The Constitution contains a vivid preamble and various specific provisions which declare and affirm that the state of Pakistan ought to follow and operate the Islamic laws and teaching. Hence as a constitutional restriction, no law can be promulgated in the country which goes against the Holy Qur’Én and the Sunnah. The Islamic injunctions allow the state to grant capital punishment in various cases to satisfy the parameters of justice. In this scenario, this is near to impossible for the legislature to abolish the death penalty especially for those crimes which take their authority from the Islamic injunctions. On the other hand, Pakistan has been facing a dreadful kind of terrorism specifically and a critical law and order situation generally to deal with which the legislature regards deterrence as the precise policy. This policy has also been proved successful in previous years after the lifting up of moratorium on executions. Nonetheless, the state of Pakistan, 160 The Abolition of Capital Punishment... being the member of the international community, is facing an utmost pressure against the retention of the death penalty in its law and practice. To cope with the international pressures to abolish the death penalty and to attain the domestic religious, constitutional and security requirements, the government should revisit the provisions dealing with the capital punishment. For this purpose, the reasonable consideration is required to continue those executions which are supported by the religion based provisions and for the offences relating to terrorism; however a review should be made for the remaining list of two dozen crimes carrying the death sentence. Notes and References 1. Amnesty International. October 23, 2018. “Abolitionist and Retentionist Countries (As of July 2018),” Index number: ACT 50/6665/2017, https://www.amnesty.org/ en/documents/act50/6665/2017/en/. Accessed: February 12, 2021. 2. William A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge: Cambridge University Press, 2002); William A. Schabas, The Death Penalty as Cruel Treatment and Torture (Boston: Boston University Press,1996); Shigemitsu Dando, “Toward the Abolition of the Death Penalty,” Indiana Law Journal72, no.1 (1996: 7-19. http://www.repository.law.indiana.edu/ilj/vol72/iss1/ 2 . Accessed: February 18, 2021; Michael L. Radelet, Ronald L. Akers, “Deterrence and the Death Penalty: The Views of the Experts,” Journal of Criminal Law & Criminology 87, no. 1 (1996-1997): 1-17, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6901& context=jclc. Accessed: February 18, 2021. 3. Capital Talk. Geo News, November 13, 2014, http://pkpolitics.com/2014/11/13/capital-talk-13-november-2014 . Accessed: January 2, 2015. 4. “Pakistan school attack: PM Sharif vows to end ‘terrorism,’” BBC News, December 17, 2014, https://www.bbc.com/news/world-asia-30517904; Ahmad Rashid, “Viewpoint: How Peshawar massacre changed Pakistan,” BBC News, December 13, 2015, https://www.bbc.com/news/world-asia-35051628. Accessed: February 18, 2021. 5. The Holy Qur’Én (6:151) 6. Syed Muhammad Anwar, “Normative Structure for Human Rights in Islam”, Policy Perspectives, 10, no. 1 (2013): 79-104. 7. Ibid; Al-Jurjani, Kitaab al Tareefat (Beirut: Dar Al-Kutub Al-Ilmiyyah, 1982), 121-123. 8. Rudolph Peters, Crime and Punishment in Islamic Law, Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge: Cambridge University Press, 2005), 7 9. Burhan Al-Dīn Al-Marghinānī, Al-Hidayah (Cairo: Mustafa Al-Bāb Al-×alabī, n.d), 94; Shamas Al-Dīn Al-Sarakhsī, Al-Mabsum (Beirut: Dār Al-Ma‘ifah, 1986), Hamdard Islamicus Vol. XLIV, No. 1 161 36;Ibn Rushd al Hafid, Bidayat al-mujtahid, (Beirut: Daar-ul-Ma’arfa, 1982), 2, 394-95; Badr al- Din al-‘Ayni, al-Binaya (Beirut: Manshurat Muhammad ‘Ali Baydun, 2000), 6, 190. 10. Intisar A. Rabb, Doubt in Islamic Law, A History of Legal Maxims, Interpretation and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015), 31; Abd al-Qadir ‘Awda, Al Tashri al-Jinai al-Islami (Beirut: Dar al-Kitab al-‘Arabi, 1968); M. Cherif Bassiouni, ed.,The Islamic Criminal Justice System (London: Oceana, 1982); Imran Ahsan Khan Nyazee, General Principles of Criminal Law (Islamic and Western) (Islamabad: Advanced Legal Studies Institute, 2010). 11. Muslim (1690); Abu Dawood (4415); at-Tirmidhi (1434). 12. The Holy Qur’Én (24:4). 13. M. Cherif Bassiouni, “Crimes and the Criminal Process,” Arab Law Quarterly, 12, no. 3 (1997): 280-281. 14. The Holy Qur’Én (5:35) 15. Rudolph Peters, Crime and Punishment in Islamic Law, 277. 16. Ibid 64, 65. 17. Intisar A. Rabb, “Negotiating Speech in Islamic Law and Politics: Flipped Traditions of Expression,”in Islamic law and International Human Rights Law, ed. Anver M. Emon (Oxford: Oxford University Press, 2012), 144-67; Mohammad S. El Awa, Punishment in Islamic law (IndianPolis: American Trust Publication, 1993), 49-56, 61-62; Khaled Abou El Fadl, Rebelion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 32. 18. Rudolph Peters, Crime and Punishment in Islamic Law, 277. 19. The Holy Qur’Én (49:9) 20. Rudolph Peters, Crime and Punishment in Islamic Law, 578. 21. The Holy Qur’Én (5:33) 22. Rudolph Peters, Crime and Punishment in Islamic Law, 58, 59. 23. The Holy Qur’Én (2:178); (5:45); (6:151); Sahih al Bukhari, 9:83:17; Sahih al Bukhari, 9:83:32; Sahih al Bukhari, 9:83:50; Sahih al Bukhari, 1:3:111; Sunan Abu Dawood, 39:4515. 24. The Holy Qur’Én (5:45) 25. Ibid. (4:92) 26. Ibid. (2:186) 27. M. Cherif Bassiouni, “Crimes and the Criminal Process,” Arab Law Quarterly 12, no. 3 (1997): 269-286; Maha Abualfaraj, “Evidence in Islamic Law: Reforming the Islamic Evidence Law based on the Federal Rules of Evidence,”Journal of Islamic Law and Culture13, no. 2-3 (2011): 140-165; Rudolph Peters, Crime and Punishment in Islamic Law, 42, 45, 48. 28. Ta‘zīr and SiyÉsah are justified by a precedent of Caliph Umar who banished Nasr bin Hajjaj from Medina because his beauty was a source of temptation for women. Muhammad al- Babartý, al- Inaya sharh. al-hidaya (Cairo: Dar al-Fikr, n.d.), 5, 245. 29. Taymour Kamel, “The principles of Legality and its Application in Islamic Criminal Justice,” in the Islamic Criminal Justice System, ed. M. Cherif Bassiouni (USA: Oceana Publications, 1982), 149; M. Cherif Bassiouni, “Crimes and the Criminal Process,”Arab Law Quarterly 12 no. 3 (1997): 269-286. 30. The Holy Qur’Én (5:33). 162 The Abolition of Capital Punishment... 31. Ibid. (5:34). 32. Muhammad Munir, “Øhar‘Êah and the Nation-State: The Transformation of Maqasid Al Øhar‘Êah Theory,” Hazarah Islamicus 6, no. 2 (2017). 33. The Holy Qur’Én (2: 178); (6:151); (32:05). 34. Ibid. (2:188); (4:11, 29). 35. Ibid. (2:31-33); (96:3-5). 36. Ibid. (2:205, 233); (6:151). 37. Ibid. (4:148); (49:11, 12). 38. Syed Muhammad Anwar, “Normative Structure for Human Rights in Islam,” Policy Perspective 10 no. 1 (2013): 79-104 (92). 39. Fida hussain vs. Mst. Najma, PLD 46 Quetta 2000. 40. Pakistan Penal Code (Act XLV of 1860). 41. Anwar ul Haq vs. The State, 2010 PCrLJ 1380. 42. The Holy Qur’Én (2:11, 27); (5:33). 43. Hamid Mahmood vs. The State, 1314 SCMR 2013; Muhammad vs. The State, 22 PLD 2012 Quetta. 44. Khalid Iqbal vs. Mirza Khan, PLD 50 SC 2015; Hamid Mahmood vs. The State, SCMR 1314 SC 2013; Dilawar Hussain vs. The State, SCMR 1582 SC 2013; Hassan vs. The State, PLD 793 SC 2013. 45. Micheal Nazir vs. The State, PcrLJ 33 Quetta 2012; Muhammad Tahir Aziz vs. The State, PcrLJ 1787 AJK SC 2010. 46. Section 203-A of Code of Criminal Procedure, 1898 (Act V of 1898). 47. Malik Mumtaz Muhammad Qadri vs. The State and the others, PLD 2016 SC 17.. 48. "Crime Statistics,” Open Data Pakistan, 2020, https://opendata.com.pk/blog/crime-statistics. Accessed: February 18, 2021;”The Crime Report of Five Years Issued,” The News, March 29, 2013. https://www.thenews.com.pk/archive/print/629546-crime-report-of-five-years- issued. Accessed: February 12, 2021. 49. "Fatalities in Terrorist Violence in Pakistan,” South Asia Terrorism Portal.2016. http://www.satp.org/satporgtp/countries/pakistan/database/sect-killing.htm. Accessed: September 12, 2018. 50. "Casualties in Terrorist Violence in Pakistan,” South Asia Terrorism Portal. 2013- 2015. http://www.satp.org/satporgtp/countries/pakistan/database/casualties.htm. Accessed: January 01, 2018. 51. "Global Terrorism Index 2016, Measuring and Understanding the Impact of Terrorism,”Institute for Economics and Peace. NOV 2016 / IEP REPORT, 20, http://economicsandpeace.org/wp-content/uploads/2016/11/Global-Terrorism-Index- 2016.2.pdf. Accessed: March 13, 2017. 52. Mir, Amir, “Implementation of Death Penalty May Be Resumed Soon,” The News, December, 2014, http://www.thenews.com.pk/Todays-News-2-263002-Implementation-of-death- penalty-may-be-resumed-soon. Accessed: March 5, 2015. 53. Siddique, Tahir. “Death Row Convicts Operating from Prisons: CJ,” Dawn News, January 4, 2013, Hamdard Islamicus Vol. XLIV, No. 1 163 http://www.dawn.com/news/1015845/death-row-convicts-operating-from-prisons- cj. Accessed: February 18, 2021. 54. Baloach, Shahzad, “Terrorists were operating their gangs from inside the prisons,” The Express Tribune, October 20, 2011, http://tribune.com.pk/story/277290/terrorists-operating-from-balochistan-prisons- malik/ . Accessed: February 18, 2021. 55. AFP, “Millitants Attack Bannu Jail, Nearly 400 Inmates Escape,” Dawn News, April 15, 2012, http://www.dawn.com/news/710704/militants-attack-bannu-jail-400-inmates- escape. Accessed: February 18, 2021; Sherazi, Zahir Shah. “Pakistani Taliban Free over 175 Inmates in D.I.Khan Jailbreak,”Dawn News, July 30, 2013, https://www.dawn.com/news/1032777. Accessed:February 18, 2021. 56. "Angry mob sets ablaze 2 dacoits”, Dunyanews, last modified July 03, 2016 https://dunyanews.tv/en/Pakistan/343743-Karachi-Angry-mob-sets-ablaze-2- dacoits , “Two alleged robbers set on fire in Karachi”, SAMMA webdesk, posted Jul 3, 2016 https://www.samaa.tv/news/2016/07/two-alleged-robbers-set-on-fire-in-karachi/ ,