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Ijaz Ahmed, Judicial Magistrate,
Pakistan
Although the case
of Zafran Bibi, a rape victim sentenced to death by stoning under Pakistan’s
Zina Ordinance obtained worldwide attention, too little thought has been paid as
to how it is possible for innocent illiterate young victims to be so thoroughly
abused by the country’s judicial system. Given the inherent weaknesses in the
investigation system, with all but a zero per cent chance of punishment to the
assaulter, hardly any rape cases are reported to the police. That in this case
the victim ended up the accused, and was convicted with the maximum punishment
available under any law in the country, speaks to how a rape case can be twisted
to a perverse conclusion under the current legislation. How could it be that the
victim reported that she was subjected to a crime against her will while the
police insisted that she was a consenting party? What were the consequences? To
answer these questions, we must begin with some examination of the law under
which the unfortunate victim was convicted.
The Zina
Ordinance
General
Zia-ul-Haq’s regime introduced the Offence of Zina (Enforcement of Hudood)
Ordinance in 1979. Offences covered under this law are: 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, or selling or buying a person for purposes of
prostitution. The age for criminal liability for an accused girl is 16 or on
attaining puberty, while for a boy it is 18.
There are two sets
of punishments under this law: hadd and tazir. Hadd means
punishment prescribed by God Almighty as revealed in the Holy Quran. Tazir is
punishable under the Pakistan Penal Code, when the offence cannot be proved
under the Hudood Laws. Hadd is fixed prescribed punishment, leaving no
discretion with the court. The confession of the accused before a competent
court allows hadd to be awarded. If before execution of sentence the accused
retracts the confession, hadd cannot be imposed. The number of witnesses and
requirements pertaining to them are also 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.
Under the Hudood
Laws, rape, which is termed zina-bil-jabr, has been differentiated from
wilful sexual intercourse, zina. In order to understand fully the case of
Zafran Bibi it is necessary to note the relevant sections of the Zina Ordinance.
·
Section 4, wilful
sexual intercourse, zina: A man or a woman are said to have committed the
offence if they wilfully have sexual intercourse without being validly married
to each other for which commission penetration is sufficient to constitute the
offence.
·
Section 5,
punishment for zina liable to hadd: The offence is liable to hadd punishment if
it has been committed by a Muslim who is an adult and is not insane with a woman
to whom he is not and does not suspect himself to be married; or vice versa.
Whosoever as aforesaid is guilty of the offence of wilful sexual intercourse be
stoned to death at a public place if he or she is muhsan. If he or she is
not muhsan and is guilty of the offence then he or she is to be punished at a
public place with whipping numbering one hundred stripes. ‘Muhsan’ refers to a
man or a woman who is adult and not insane and has had sexual intercourse with
an adult woman or man respectively who at the time he or she had sexual
intercourse with her or him was married and not insane.
·
Section 6(1), rape,
zina-bil-jabr: A person is said to have committed the offence if he or she has
sexual intercourse with a woman or man as the case may be to whom he or she is
not validly married, in any of the following
circumstances:
a) Against the will of the
victim,
b) Without the consent of the
victim,
c) With the consent of the victim, when
the consent has been obtained by putting the victim in fear of death or of hurt,
or
d) With the consent of the victim, when
the offender knows that the offender is not validly married to the victim and
that the consent is given because the victim believes that the offender is
another person to whom the victim is or believes herself or himself to be
validly married. For this, penetration is sufficient to complete the
offence.
·
Section 6(3),
punishment of rape liable to hadd: The offence is liable to hadd punishment if
it has been committed by a Muslim who is an adult and is not insane with a woman
to whom he is not and does not suspect himself to be married; or it is committed
by a woman who is an adult and is not insane with a man to whom she is not and
does not suspect herself to married. Whosoever is guilty of the offence of rape
will be stoned to death at a public place if he or she is muhsan. If he or she
is not muhsan and is guilty of the offence then he or she will be punished at a
public place with whipping numbering one hundred stripes, and with such other
punishment, including the sentence of death, as the court may deem fit having
regard to the circumstances of the case.
·
Section 8, proof of
zina or zina-bil-jabr: (a) The accused makes a confession of the commission of
the offence before a court or competent jurisdiction; or, (b) At least four
adult male witnesses, about whom the court is satisfied, having regard to the
requirement that the witness is a truthful person and abstains from major sins,
give evidence as eyewitnesses of the act of penetration necessary to the
offence. Provided the accused is a non-Muslim, the eyewitnesses may be
non-Muslim.
·
Section 10, zina or
zina-bil-jabr (rape) liable to tazir punishment: Whosoever commits the offence
of zina or zina-bil-jabr who is not liable to hadd or for which the proof as
mentioned earlier is not available, shall be liable to tazir. In the case of
wilful sexual intercourse liable to tazir it shall be punished with rigorous
imprisonment for a term which may extend to ten years and with whipping
numbering thirty stripes, and shall also be liable to a fine. In a case of
zina-bil-jabr liable to tazir, whoever commits the offence shall be punished
with imprisonment for a term which shall not be less than four years nor more
than twenty five years and shall also be punished by whipping numbering thirty
stripes.
Brief facts of the
case
On 26 March 2001,
it was reported to the police that when Zafran Bibi had gone to cut fodder at a
hill nearby her house Akmal Khan had overpowered her and raped her. The report
states that thereafter she returned to her house and informed her mother-in-law
about the incident. Her mother-in-law advised her to wait for the return of her
father-in-law, who had gone to visit his imprisoned son—Zafran Bibi’s
husband—and report the matter to the police if advised by him to do so. After
making the report, Zafran Bibi was referred to a hospital for an examination.
The medical officer there found her to be over seven weeks pregnant. Given the
discrepancy in the period between the alleged rape and her pregnancy, the police
arraigned Zafran Bibi also as an accused along with Akmal Khan under section
5/8/10 of the Zina Ordinance. The allegation was that she had consented to sex
with Akmal Khan but had only disclosed it when she became pregnant. The
investigation officer then became the complainant in the case, despite there
being no provision for this in the Zina Ordinance, which only stipulates that
victims or witnesses can be the complainants in offences of zina or
zina-bil-jabr.
During the trial,
however, she alleged that the police had recorded a version of her complaint at
the insistence of her father-in-law, which would implicate Akmal Khan. She
maintained that it was in fact Jamal, her brother-in-law, who had raped her
repeatedly, but her father-in-law implicated Akmal Khan to save his son. The
trial court acquitted Akmal Khan and on the basis of circumstantial evidence and
her statement sentenced Zafran Bibi to death by stoning under section 5 of the
Zina Ordinance. The court ruled that she had not been raped but had committed
adultery, which entails this punishment.
When Zafran Bibi’s
in-laws saw that the person whom they had implicated had been acquitted and the
victim was adamant that the actual culprit was her brother-in-law, her husband
gave a new twist to events by telling the superior court through an affidavit
that his wife was pregnant by him. He stated that although he is imprisoned, he
works at the jail superintendent’s house where his wife frequently visited him
and they had sex there, resulting in the pregnancy. If this is the truth then
Zafran Bibi must be insane to have lodged a rape complaint, and not retract her
story throughout the trial. How could it be that the parents would not be aware
that their daughter-in-law had become pregnant by their son? And why did the
husband not submit an affidavit to this effect in the trial court in the first
instance, and put the matter to rest there?
Presumption made against
the complainant
The variance
between the period since the supposed commission of the crime and the period of
pregnancy should have been ascertained by the police in order to implicate the
persons who connived to cover up the offence. Presumption in this case should
have gone against the in-laws and not the victim, because if there were any
wrongful act on the part of the victim she would have never reported the matter
to the police. Anyway, there is no crime in which variance between the said
occurrence and the effects of the crime upon the victim raise a suspicion that
the victim was in connivance with the accused. However, this was the ground upon
which Zafran Bibi was implicated. The prosecution consistently drew a
presumption against the complainant on the basis of delay in the lodging of the
report. It ignored the fact that in a case like this, family honour and
reputation is at stake. Members of the family are normally hesitant to report
promptly to the police about such a case, and usually wait to get the approval
of the senior male members of the family before doing so. On this understanding
alone the superior courts have held that a mere delay in reporting is no basis
for drawing an adverse inference. In this case, the delay has also been
plausibly explained in the First Information Report itself. Zafran Bibi waited
for return of her father-in-law to lodge the report, as advised by her
mother-in-law. Therefore, there was no reason to conclude that her delay in
reporting the matter was on account of her consent to the sexual act and she
only disclosed the occurrence when she came to know that she was pregnant.
Conviction
overturned
The conviction
order of the Additional Sessions Judge was set aside by the Federal Shariat
Court, which hears appeals against orders given in hadd cases. The Court
acquitted Zafran Bibi as there were material irregularities in the procedure in
the lower court, and fundamental aspects of the law had been ignored. The Court
observed that
·
The earlier
conviction was illegal because of insufficient proof as stipulated under section
8 of the Zina Ordinance. The whole case was based on circumstantial evidence,
coupled with the statements made by Zafran Bibi at different stages. The trial
court considered these statements as a confession and, taking into account the
fact of pregnancy and subsequent delivery of a child, the court thought it
sufficient for conviction. However, neither accused had in fact made any
confession of wilful sexual intercourse, nor was the required testimony of four
Muslim adult male witnesses available.
·
Mere pregnancy or
birth of a child is not sufficient for conviction under hadd. If the woman’s
defence is that she was raped and the test of proof contained in the Ordinance
is not met, a conviction cannot be made.
·
The prosecution had
selectively interpreted parts of the statement of the accused in order to
formulate its case. However, according to the established principles of criminal
law the statement had to be accepted in entirety; the prosecution could not
simply take benefit from some absurdity contained in the statement and use it
alone as evidence against the accused.
The Ordinance in the
dock
Although Zafran
Bibi was finally acquitted of wrongdoing, the judgement in the trial court
brought global criticism upon the Zina Ordinance. For its part, the Federal
Shariat Court has stated that
The
ordinance is based on the clear injunctions contained in the Holy Quran and
Sunnah of the Holy Prophet (Peace be upon him). These time-tested laws mainly
aim at preservation and protection of life, honour and property of the citizens
of an Islamic State and dispensation of justice without any discrimination.
Irrespective of the consideration for sex, wealth, religion, creed, colour,
language or any other factor, these laws provide safeguards to enable the
citizens enjoy peaceful environment, free from any encroachment on their
fundamental human rights. Like other laws, the prosecuting or other components
of law-enforcing machinery may err in its application in respect to various
facts and circumstances, however, the ideal nature of these laws in ensuring
maintenance of public law and order, besides its other deterrent and reformative
aspects, is admittedly far-superior to the man-made laws on account of its
highly balanced approach to individual and public interests. In fact the depth
of wisdom of these laws is unfathomable. The brutal offenders who commit murder,
rape or dacoity, therefore need to be dealt with iron hand otherwise their
unbridled activities open the floodgate of innumerable crimes at the cost of
lives, honour and property of innocent people. One can only well realise the
far-reaching effects of the wisdom contained in these laws if one could only
visualise oneself stepping in the shoes of the aggrieved individuals and
families subjected to the heinous offences.
Unfortunately, in its bid to defend
the Ordinance, the Court has overlooked its many inherent ills and weaknesses.
Among these, first, the Hudood Laws are clearly discriminatory, as they exclude
altogether the testimony of female witnesses in awarding the punishment of hadd.
If a woman is raped in the presence of any number of women, the rapist cannot be
punished under the Ordinance. In all cases a victim has to have at least four
male Muslim witnesses meeting the moral standards set by the Ordinance. Rape in
the absence of any witness is no crime at all under the Zina Ordinance.
Therefore, instead of discouraging rape, it does the opposite. Secondly, as the
offence of zina is based on the injunctions of Islam it comes within the domain
of Muslim personal law. Hence, non-Muslims should be exempted from this law,
which at present they are not. Thirdly, the law does not protect a child victim
who has not attained mental maturity. The only criteria set forth by the
Ordinance are that a male be aged 18 years while a female be aged 16 years or
have attained puberty. This means that a 12-year-old girl can be punished with
having had wilful sexual intercourse out of wedlock if she has started
menstruating. The Ordinance does not in any way account for the girl’s mental
maturity, which in criminal law is a fundamental requirement to construe
criminal liability. Finally, the law does not contain a single word about the
compensation or rehabilitation of the victim, neither as a result of being raped
in the first place, nor subsequent to wrongful prosecution and all of the
suffering and anguish that it has caused.
Posted on 2004-07-02
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