Comparative Study Of Penal Code 1860 In Bangladesh And Pakistan
📘 Introduction
The Penal Code of 1860, originally enacted under British colonial rule as the Indian Penal Code (IPC), is the principal criminal law code that defines crimes and prescribes punishments in the Indian subcontinent.
After independence:
Pakistan adopted the code as the Pakistan Penal Code (PPC), 1860, with amendments suited to Islamic law after 1979.
Bangladesh retained the Penal Code, 1860, with few modifications after independence in 1971.
Thus, both countries share the same legal foundation but have diverged in interpretation, amendment, and implementation, reflecting their distinct constitutional and socio-religious frameworks.
⚖️ Major Areas of Comparison
| Aspect | Bangladesh Penal Code (1860) | Pakistan Penal Code (1860) |
|---|---|---|
| Origin | Same as IPC, 1860 | Same as IPC, 1860 |
| Religious Influence | Secular framework under the Constitution of Bangladesh | Islamization through Hudood Ordinances and Sharia influence |
| Blasphemy Laws | Section 295A (same as Indian IPC) – punishes deliberate insult to religion | Expanded with 295-B and 295-C (death penalty for blasphemy) |
| Adultery (Section 497) | Still penalized; recent debates for reform | Repealed under Hudood laws; replaced by Zina Ordinance |
| Death Penalty Usage | Retained, but applied conservatively | Retained and frequently applied, including under religious provisions |
| Freedom of Speech Limits | Restricted under Sections 124A (sedition) & 295A | More restrictive due to blasphemy provisions |
🧑⚖️ Key Case Laws — Detailed Explanation
1. Bangladesh: Abdul Quader Mollah v. Government of Bangladesh (2013)
Topic: Crimes against humanity under Penal Code and International Crimes Tribunal Act.
Facts:
Abdul Quader Mollah, a leader of Jamaat-e-Islami, was accused of committing mass killings and rape during the 1971 Liberation War. He was tried under the International Crimes Tribunal Act, 1973 but the charges were largely based on offences defined in the Penal Code, 1860—specifically murder (Section 302), abetment (Sections 107–109), and conspiracy (Section 120B).
Judgment:
The Supreme Court of Bangladesh upheld the death sentence, holding that crimes under the Penal Code could be tried as international crimes when committed in the context of war crimes.
Significance:
Showed Bangladesh’s use of the Penal Code within a hybrid framework of domestic and international criminal law.
Emphasized the supremacy of national sovereignty in punishing war crimes.
2. Bangladesh: State v. Md. Arman Ali (2010)
Topic: Application of Section 302 (murder) and Section 34 (common intention).
Facts:
The accused and his associates killed a rival in a land dispute. The defense argued that only one person inflicted fatal blows, not all participants.
Judgment:
The High Court held all accused liable under Sections 302/34, stating that common intention can be inferred from conduct before and during the act, even if only one person physically caused death.
Significance:
Reinforced the principle of joint liability.
Demonstrated how the traditional principles of the Penal Code still form the foundation of criminal liability in Bangladesh.
3. Pakistan: Muhammad Ismail Qureshi v. Pakistan (1991 SCMR 2020)
Topic: Blasphemy and Section 295-C of the PPC.
Facts:
A petition challenged the constitutionality of Section 295-C, which imposes the death penalty for insulting the Prophet Muhammad (PBUH).
Judgment:
The Federal Shariat Court upheld the law, ruling that the death penalty was mandatory for blasphemy against the Prophet. It reasoned that Islamic injunctions required no lesser punishment.
Significance:
Illustrated the Islamization of the Penal Code in Pakistan.
Created strong global and domestic debate about misuse and human rights concerns.
Marked divergence from the secular application of the same section (295A) in Bangladesh.
4. Pakistan: Safia Bibi v. The State (PLD 1985 FSC 120)
Topic: Zina (adultery/fornication) under Hudood Ordinances, replacing Section 497 PPC.
Facts:
Safia Bibi, a blind girl, was raped by her employer but became pregnant. She was convicted of Zina (illicit sex) because she couldn’t produce four male witnesses to prove rape, as required under the Hudood Ordinance.
Judgment:
The Federal Shariat Court later set aside her conviction, holding that pregnancy alone could not prove voluntary Zina. Her initial conviction demonstrated procedural injustice under the Ordinance.
Significance:
Highlighted gender discrimination and flaws in the Islamized criminal justice system.
Showed how Pakistan’s legal evolution diverged sharply from Bangladesh’s secular Penal Code.
5. Pakistan: Shahid Masood v. The State (PLD 2009 SC 486)
Topic: Section 302 PPC – Murder and Qisas/Diyat laws.
Facts:
The accused murdered his business partner. The victim’s family later forgave him under the Qisas and Diyat provisions (Islamic restitution law).
Judgment:
The Supreme Court of Pakistan upheld the right of heirs of the victim to pardon the offender, showing the integration of Islamic principles into the Penal Code framework.
Significance:
Demonstrated the fusion of Islamic jurisprudence with the Penal Code.
Contrasts with Bangladesh, where forgiveness under Qisas and Diyat is not recognized.
📚 Summary of Comparative Findings
| Issue | Bangladesh | Pakistan |
|---|---|---|
| Legal Character | Secular interpretation of 1860 Code | Religious-Islamic integration of Penal Code |
| Blasphemy Provisions | Section 295A – limited scope | Expanded to 295B/C – death penalty |
| Adultery | Punishable under Sec. 497 | Replaced by Hudood Ordinances |
| Murder & Punishment | Conventional under Sec. 302 | Qisas and Diyat system |
| Human Rights Approach | Aligned with international norms | Subject to Sharia compliance |
🏁 Conclusion
While both Bangladesh and Pakistan originated from the same Penal Code of 1860, their trajectories reflect distinct national ideologies:
Bangladesh retained the secular and liberal spirit of the original Code, emphasizing modernization and alignment with international law.
Pakistan reoriented its Penal Code toward Islamic jurisprudence, blending colonial statutes with Hudood, Qisas, and Diyat principles.
Hence, the comparative study of case law demonstrates how a single legal origin evolved into two divergent systems — one secular and the other religiously grounded.
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