Penal Code restricts implementation of Hadd and death penalty: High Court

A ruling from the High Court states that the Penal Code consists of strict procedures which inhibit proving Hadd and death penalty offences.

As per the Penal Code, a convict can be sentenced to death only if there are no contradictions in the statements of the accused and the witnesses, and if the State can prove that his offence is more serious than all other offences.

Shah Alam Mia (Salim), convicted for the murder of Alif Dhaalu Atoll Dhangethi businessman Mahmoodh Abu Bakr, confessed to the crime on repeated occasions during the investigation and trial, but later retracted his confession.

High Court upheld the death sentence passed on Salim last Thursday. In their ruling, they said that the Penal Code is compiled in a manner where the procedures for proving a Hadd (a punishment fixed in the Quran and hadith for crimes considered to be against the rights of God) or Qisas (retributive justice, such as death penalty for murder) cases are made harsh to the point where implementing such sentences become impossible.

It said that while the Penal Code says there should be no contradiction between the statement of the accused and that of the witnesses, this condition cannot be met when the accused has the opportunity to alter their statements at different times.

"This is an impossible condition set on proving Hadd and Qisas offences. Additionally, providing witness statements which do not differ in any way from each other is also beyond human ability and is impossible," the ruling concurred to by two of the judges on the bench read.

The ruling went on to say that the condition that the State must prove that the offence is bigger than all other offences leads to convicts charged with major crimes being freed of these sentences and encourages them to reoffend.

"This takes away from the roles of judges. As far as I have observed, these procedures are not included in penal codes of any judicial system across the world in relation to a death sentence. I also do not see this as a procedure included in proving Hadd and Qisas cases in Islamic Shariah," the ruling penned by Judge Mohamed Niyaz reads.

Hence, this article of the Penal Code must be interpreted with a view towards finding a solution.

High Court upheld the death sentence passed on Salim. The ruling was passed by Judge Niyaz and Judge Fathimath Faruheeza. Judge Hassan Shafeeu dissented, whose stand is that the case be sent for a retrial.