Pakistan: Zafran Bibi case seminar
Source:
Shirkat Gah The Zina (Enforcement of Hadd) Ordinance, 1979.
The following information regarding the zina sections of the Hudood Ordinances is extracted/based on the Commission of Inquiry for Women Report of 1997 (pages 64-75), that was headed by Justice Nasir Aslam Zahid, a serving Justice of the Supreme Court at the time. Prepared by Shirkat Gah for the JAC Meeting Peshawar May 4th 2002 on the Zafran Bibi Case.
1. Zina (Enforcement of Hadd) Ordinance was introduced by General Zia regime in 1979.
- Offences covered under this law are: Zina (both fornication and adultery) rape, kidnapping, abducting or inducing a woman to illicit sex or compelling her to marriage against her will, enticement or detaining a woman with criminal intent, selling or buying a person for purposes of prostitution.
- Under the Zina law, for criminal liability for adults a girl is considered adult at 16 or on attaining puberty while a boy is considered adult at 18 or when pubert.
2. There are two sets of punishments under this law: hadd and tazir. Hadd punishment is fixed leaving no discretion with the court and has very stringent rules of evidence.
- The number and qualification of witnesses is specified in the law. A hadd sentence requires the evidence of four adult male Muslim witnesses (who are truthful persons and abstain from major sins).
- Non-Muslim males can only be witnesses when the accused is a non-Muslim.
Thus the evidentiary requirements for the punishment of hadd are discriminatory against women and non-Muslims.
- The confession of the accused before a competent court is the other form of evidence where the punishment of hadd may be awarded. If before the execution of sentence the accused retracts this confession, hadd cannot be imposed.
3. The Zina Ordinance has been a controversial law since the day it was promulgated. It has been criticised for being derogatory and biased in the context of women. Before the promulgation of this law, women could not be tried for zina since previously zina was only a crime in the form of adultery. The punishment was five years imprisonment or a fine or both. Complaints of adultery could only be made by the husband of the adulteress or in his absence by some person who had care of such woman on his behalf. But females could not be punished under this law. The crime was compoundable and bailable. If the complainant chose to drop the charges, or not to prosecute the offender, criminal proceedings against the accused were automatically dropped.
4. Statistics of appeals filed in the Federal Shariat Court (1980-87) show a high rate of acquittal. This low conviction rate indicates that an extremely large number of zina allegations are either false or based on suspicion. This is only one of the aspects of the exploitative nature of the law.
5. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in the hands of those who wished to exploit women. The former Chief Justice of Pakistan, Justice Mohammad Afzal Zullah, confirmed that 95% of all Hudood cases in the superior courts had been decided in favour of women. (The Muslim, Islamabad, March 9, 1993). Clearly these must have been false cases.
6. Jail figures also confirm that women are frequently victims of this law. In 1988 in Punjab jails out of a total of 657 women in jail, 306 were charged under zina. At 47% this is nearly half of all the women prisoners.
7. It is often argued that false accusations must eventually result in acquittal; that the law of qazf operates as a check on such false accusations of zina; and that any law can be grossly misused. Such arguments are weak and misleading. Since the offence of zina is a cognisable offence, the accused suffers arrest and often imprisonment during the period of trial. In the case of women, the stigma of such accusations and arrests is by itself a heavy penalty. A large number of female prisoners are unable to provide surety or to get legal assistance, particularly when they have been imprisoned at the instigation of their own families. Despite this, courts nevertheless sometimes require women to bring surety of family members who are the complainant party.
Law of Qazf does not act as any deterrent and is a weak law:
- It is a non-cognisable and a bailable offence.
- The complainant cannot straightaway lodge an FIR.
- Majority of women do not have the facilities to initiate Qazf proceedings.
- The courts have ruled that during subsistence of the marriage, a husband cannot be punished on allegations of Qazf.
- Prosecution for qazf have been few and far between. The number of qazf cases is less than 1% of the number of zina cases. The figure is particularly astounding as there is a high percentage of acquittals in charges of zina.
This law is a tool of exploitation in the hands of law enforcing agencies and ‘family members’ of women who are perceived to defy ‘norms’ of society by exercising their legal rights. Most of the FIRs are filed either by the parents because their daughter has married someone of her own choice or by the former husbands on remarriage of their former wives. The COI Report mentions its own review of case law reported in the Pakistan Annual Law Digest of 1995.
Out of the 60 cases looked at by the Commission, 15 pertained to people who had married against the wishes of their families. One woman was accused of Zina even though she possessed and produced records of the Family Court and the High Court to prove that she had been legally divorced before she remarried.
That police officials collude with the families and pursuers of women has been exposed in a number of reported cases, where police officials have held inquiries on allegations of Zina even through intimation by post.
8. In rape cases the victim is often in an impossible situation: if she reports rape, she runs the risk of being accused of Zina, if she does not, her possible pregnancy may result in her being charged of zina anyway.
9. “The argument that every law can be misused may be correct to some extent. But, thus stated, it addresses the wrong question. The relevant test is not whether a piece of legislation can ever be misused but rather whether it is worth enacting at all given the potential for its abuse and the results which its enforcement would produce. This Commission is strongly of the opinion that the zina Ordinance fails this test. Abundant data testifies that the result of this law has been the victimisation rather than the protection of people, and that the law has had a particularly adverse effect on the least privileged members of society.” (COI Report 1997 page 70)
In conclusion the Commission of Inquiry made the following recommendation:
The Commission is convinced that all the Hudood laws were conceived and drafted in haste. They are not in conformity with the injunctions of Islam.
Secondly, these laws have come into direct conflict both with the country’s Constitution (such as of Article 25) and its international commitments (as made at the Fourth World Conference on Women at Beijing and under the UN Convention on the Elimination of All Forms of Discrimination Against Women).
Thirdly, in practical terms too, these laws have demonstrably failed to serve their purpose. They have not been any deterrent against crimes. And they have only led to proliferation of complaints in the courts, which, as it happens, have mostly been false or unjustified and have caused undue hardship.
It is necessary therefore that:
1. The Hudood laws are repealed.
2. The repealed provisions of the Pakistan Penal Code, 1860, are re-enacted with an amendment to make marital rape a penal offence and to impose a severer punishment for rape on a minor wife.
3. If the Parliament considers it necessary to make any further laws in this area, it should to do so after serious debate and by reaching a consensus that the proposed laws are in accordance with the injunctions of Islam. (Page 75)
- Offences covered under this law are: Zina (both fornication and adultery) rape, kidnapping, abducting or inducing a woman to illicit sex or compelling her to marriage against her will, enticement or detaining a woman with criminal intent, selling or buying a person for purposes of prostitution.
- Under the Zina law, for criminal liability for adults a girl is considered adult at 16 or on attaining puberty while a boy is considered adult at 18 or when pubert.
2. There are two sets of punishments under this law: hadd and tazir. Hadd punishment is fixed leaving no discretion with the court and has very stringent rules of evidence.
- The number and qualification of witnesses is specified in the law. A hadd sentence requires the evidence of four adult male Muslim witnesses (who are truthful persons and abstain from major sins).
- Non-Muslim males can only be witnesses when the accused is a non-Muslim.
Thus the evidentiary requirements for the punishment of hadd are discriminatory against women and non-Muslims.
- The confession of the accused before a competent court is the other form of evidence where the punishment of hadd may be awarded. If before the execution of sentence the accused retracts this confession, hadd cannot be imposed.
3. The Zina Ordinance has been a controversial law since the day it was promulgated. It has been criticised for being derogatory and biased in the context of women. Before the promulgation of this law, women could not be tried for zina since previously zina was only a crime in the form of adultery. The punishment was five years imprisonment or a fine or both. Complaints of adultery could only be made by the husband of the adulteress or in his absence by some person who had care of such woman on his behalf. But females could not be punished under this law. The crime was compoundable and bailable. If the complainant chose to drop the charges, or not to prosecute the offender, criminal proceedings against the accused were automatically dropped.
4. Statistics of appeals filed in the Federal Shariat Court (1980-87) show a high rate of acquittal. This low conviction rate indicates that an extremely large number of zina allegations are either false or based on suspicion. This is only one of the aspects of the exploitative nature of the law.
5. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in the hands of those who wished to exploit women. The former Chief Justice of Pakistan, Justice Mohammad Afzal Zullah, confirmed that 95% of all Hudood cases in the superior courts had been decided in favour of women. (The Muslim, Islamabad, March 9, 1993). Clearly these must have been false cases.
6. Jail figures also confirm that women are frequently victims of this law. In 1988 in Punjab jails out of a total of 657 women in jail, 306 were charged under zina. At 47% this is nearly half of all the women prisoners.
7. It is often argued that false accusations must eventually result in acquittal; that the law of qazf operates as a check on such false accusations of zina; and that any law can be grossly misused. Such arguments are weak and misleading. Since the offence of zina is a cognisable offence, the accused suffers arrest and often imprisonment during the period of trial. In the case of women, the stigma of such accusations and arrests is by itself a heavy penalty. A large number of female prisoners are unable to provide surety or to get legal assistance, particularly when they have been imprisoned at the instigation of their own families. Despite this, courts nevertheless sometimes require women to bring surety of family members who are the complainant party.
Law of Qazf does not act as any deterrent and is a weak law:
- It is a non-cognisable and a bailable offence.
- The complainant cannot straightaway lodge an FIR.
- Majority of women do not have the facilities to initiate Qazf proceedings.
- The courts have ruled that during subsistence of the marriage, a husband cannot be punished on allegations of Qazf.
- Prosecution for qazf have been few and far between. The number of qazf cases is less than 1% of the number of zina cases. The figure is particularly astounding as there is a high percentage of acquittals in charges of zina.
This law is a tool of exploitation in the hands of law enforcing agencies and ‘family members’ of women who are perceived to defy ‘norms’ of society by exercising their legal rights. Most of the FIRs are filed either by the parents because their daughter has married someone of her own choice or by the former husbands on remarriage of their former wives. The COI Report mentions its own review of case law reported in the Pakistan Annual Law Digest of 1995.
Out of the 60 cases looked at by the Commission, 15 pertained to people who had married against the wishes of their families. One woman was accused of Zina even though she possessed and produced records of the Family Court and the High Court to prove that she had been legally divorced before she remarried.
That police officials collude with the families and pursuers of women has been exposed in a number of reported cases, where police officials have held inquiries on allegations of Zina even through intimation by post.
8. In rape cases the victim is often in an impossible situation: if she reports rape, she runs the risk of being accused of Zina, if she does not, her possible pregnancy may result in her being charged of zina anyway.
9. “The argument that every law can be misused may be correct to some extent. But, thus stated, it addresses the wrong question. The relevant test is not whether a piece of legislation can ever be misused but rather whether it is worth enacting at all given the potential for its abuse and the results which its enforcement would produce. This Commission is strongly of the opinion that the zina Ordinance fails this test. Abundant data testifies that the result of this law has been the victimisation rather than the protection of people, and that the law has had a particularly adverse effect on the least privileged members of society.” (COI Report 1997 page 70)
In conclusion the Commission of Inquiry made the following recommendation:
The Commission is convinced that all the Hudood laws were conceived and drafted in haste. They are not in conformity with the injunctions of Islam.
Secondly, these laws have come into direct conflict both with the country’s Constitution (such as of Article 25) and its international commitments (as made at the Fourth World Conference on Women at Beijing and under the UN Convention on the Elimination of All Forms of Discrimination Against Women).
Thirdly, in practical terms too, these laws have demonstrably failed to serve their purpose. They have not been any deterrent against crimes. And they have only led to proliferation of complaints in the courts, which, as it happens, have mostly been false or unjustified and have caused undue hardship.
It is necessary therefore that:
1. The Hudood laws are repealed.
2. The repealed provisions of the Pakistan Penal Code, 1860, are re-enacted with an amendment to make marital rape a penal offence and to impose a severer punishment for rape on a minor wife.
3. If the Parliament considers it necessary to make any further laws in this area, it should to do so after serious debate and by reaching a consensus that the proposed laws are in accordance with the injunctions of Islam. (Page 75)
