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10. Injustice to Women

Another lie being spread about the Hudood Ordinance is that it is responsible for enormous injustice to women. As we have already discussed, tazir can be awarded even in the absence of witnesses. A case of rape is not converted to a case of adultery, due to lack of evidence, and most importantly, women languishing in jails are not a ‘victim’ of the zina ordinance.

With these things in mind, a natural question arises that if this is the truth, then what about cases like the Zafran Bibi case? Let us take up the Zafran Bibi case and try to locate the real cause behind her unjust conviction.

Instead of writing the history of the case myself, I rely on another article:

Zafran Bibi was married 13 years ago to Naimat Khan of Kari Sher Khan village in Kohat, two kilometers away from her own village of Chorlaki. About a decade ago, her husband was convicted of murder and awarded 25-years imprisonment in Haripur jail. Zafran Bibi continued to live with her in-laws. According to her, she was harassed on numerous occasions by her husband’s brother, Jamal Khan. With nowhere else to turn, she complained about his behaviour to her mother-in-law Zar Bibi, who instead laid the blame squarely on the young woman’s shoulders and ordered Zafran to mend her ways. A few days later, the harassment turned into violence when Zafran Bibi was raped by Jamal Khan. Zafran, now demanded that something be done, otherwise, she would seek help elsewhere. Her father-in-law intervened at this point and assured her of his support. The matter was once again brushed under the carpet, arising only when it was suspected that Zafran had become pregnant.

Meanwhile, Zafran Bibi’s sister-in-law, her husband’s sister, had received a proposal from a man named Akmal Khan, some time back. According to reports, there were differences between the two families and the proposal was refused. These differences had since developed into personal enmity. When Zafran Bibi’s pregnancy came to light, her in-laws allegedly saw the opportunity to kill two birds with one stone: implicate Akmal Khan in a case of adultery with Zafran Bibi, which would get their son off scot free and Akmal Khan thrown into jail; their daughter-in-law, Zafran Bibi’s life, was obviously of no account.

Oblivious to the scheming going on behind the scenes, Zafran Bibi, accompanied by her father-in-law, Zabita Khan, went to the police station to file a First Information Report (FIR). According to records, FIR No. 85 was registered on March 26, 2001, at 8:35 A.M. by Zabita Khan, Zafran’s father-in-law, to which Zafran had affixed her thumb impression. The FIR states that about 11 to 12 days back, when Zafran Bibi was cutting grass on a hill known as Khulgai of Moza Kerri Sheikhan district, a short distance from her house when Akmal Khan grabbed hold of her and raped her. After the registration of the FIR, a medical examination of the victim was carried out at the ‘Women Hospital Singarh’ by a lady doctor named Robina Yasmin, who recorded Zafran Bibi to be at least seven to eight weeks pregnant. The police then arrested both Zafran Bibi and Akmal Khan for adultery on the grounds that if she had indeed been raped, as she said some 12 days ago, her approximately two-month pregnancy could only be explained by the commission of zina (adultery) rather than zina-bil-jabr (rape).

Zafran Bibi, in her statement in court, under oath under section 340 CrPC, said it was her brother-in-law, Jamal Khan, who had raped her and not Akmal Khan. Zafran denied that she had ever accused him of the crime. For his part, Akmal Khan repeatedly denied having anything to do with Zafran and pleaded not guilty, accusing Zabita Khan of trying to frame him. While he was acquitted, Zafran Bibi was even denied bail.

The Additional Sessions Judge, at the time, was Yaqoob Khan Khattak. During the course of the trial, he was replaced by Anwar Ali Khan. Meanwhile, Zafran Bibi’s lawyer, Sher Haider Khan, instead of defending his client, portrayed her in court as a woman of low character involved in a sexual relationship with Akmal Khan, who was now trying to implicate her innocent brother-in-law, Jamal Khan. Zafran Bibi, therefore, requested a change in her lawyer, suspecting that Haider Khan was in collusion with her in-laws. When another lawyer took up her case, Zafran again repeated her earlier statement that she was not guilty of adultery and had been raped by Jamal Khan. However, at no point was Jamal Khan produced in court for questioning.

On April 17, 2002, Additional Sessions Judge, Anwar Ali Khan, pronounced her guilty as charged, sentencing her to death by stoning at a public place “subject to confirmation of this judgment by Federal Shariat Court of Pakistan.”

In the nine-page judgment, he says that Zafran Bibi’s two statements alleging zina “coupled with the presence of an illegitimate female child, amounts to confession of offence as envisaged by section 8 of the offence of Zina (Enforcement of Hudood) Ordinance 1979.”

The conviction provoked expressions of outrage from several lawyers and human rights activists, claiming that Zafran Bibi has not only been wrongly convicted, but that, her conviction does not meet the demands of justice. Proof of rape or adultery liable to hadd punishment can, as stated in section 8, be in either of two forms. One is a confession of the offence by the accused before a court of competent jurisdiction on this basis. However, to take Zafran Bibi’s statements—that had in any case alleged zina-bil-jabr, rather than confessing to zina—and the existence of her illegitimate baby as proof that “amounts to a confession” is clearly an extension of the law.

[THIS IS THE POINT WHERE THE NGO’S UNJUSTLY CONNECT THE HUDOOD ORDINANCE TO THIS ISSUE; WE DISCUSS THIS IN A MOMENT.]

“Either by adultery or by rape, this woman is now the mother of a child. The courts have acquitted the accused Akmal Khan and have not even tried the man Zafran claims is responsible, Jamal Khan,” said Ansar Burney, who has appealed to various quarters—including the president and the Federal Shariah Court—to prevent this cruel punishment from being carried out.

Others have also voiced their criticism of the verdict. Chief Executive of Aurat Foundation, Rakhshanda Naz, said at a news conference that the court heard the case very briefly. “The accused never confessed to the crime nor were there four eye-witnesses (tazkiyah al-shuhood) produced in the court and in her statements Zafran clearly stated that she was raped.” Besides Ansar Burney, two other prominent lawyers, Barrister Masud Kausar and Zafrullah, have filed an appeal in the Federal Shariah Court on Zafran Bibi’s behalf. The Federal Shariah Court expressed their acceptance of Ansar Burney’s appeal in a letter dated April 27, stating that “subsection (3) of section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, inter alia, provides that no punishment shall be executed until it has been confirmed by the court to which an appeal from the order of conviction lies.”

A new twist was added to the story when Zafran’s husband, Naimat Khan, upon his release from Haripur Jail on account of good conduct told Ansar Burney Trust representative Jan Afzal, that he is the father of Zafran’s child. Naimat Khan explained that while behind bars, he had, as a model prisoner been made a ‘mushaqqati’ (a prisoner who, while serving time, is assigned work outside the jail premises—for instance, at the homes of higher security personnel). Almost two years ago, he said that he was working at the superintendent’s house when his wife paid him a visit and they shared intimate moments together, which probably resulted in Zafran’s pregnancy.

Mst. Zafran Bibi vs. The State (PLD 2002 FSC 1)

MR. JUSTICE DR. FIDA MUHAMMAD KHAN

Pregnancy and subsequent birth of a child by the accused lady whose husband had been convicted about nine years before in a murder case, and confined in jail; imprisoned husband had submitted an affidavit and made statement on oath, before this Court (FSC) wherein inter alia, he owned legitimacy of the child born during trial. Such being a highly pertinent aspect of the whole case, it was certainly noticeable that who else could better testify and be a better judge of the pregnancy/legitimacy of a child of a married lady than that of her husband. Accused lady also confirmed on oath, the legitimacy of the child. Hadd sentence, on such score, awarded to the accused was not maintainable and was set aside.
[Annual Report of the FSC, 2002, pp.61-62]

 

Now, let me clarify some issues:

            (1). Zafran Bibi’s lawyer started defaming her, instead of defending her; this is not a problem of the respective ordinance.

            (2). According to records, the FIR which was filed had accused Akmal Khan and not Jamal Khan. It carried Zafran Bibi’s thumb impression too, but, I think that the police officer might have taken bribes for doing an ulterior work. (Only God knows!) Recall that it is the CrPC, which deals with lodging of FIRs, and not the Hudood Ordinance. Furthermore, this is not a defect in the law; it is a problem in the law-enforcing agencies. Consequently, the law does not require to be changed; the police needs to be corrected.

            (3). Jamal Khan was not called in the court; although, this is not an issue of the zina ordinance, but still, it needs to be pointed out that the judge acted dishonestly and against law.

The only thing in this whole case which is related with the Hudood Ordinance is the judgment passed by the Additional Sessions judge:-

In the nine-page judgment, he says that Zafran Bibi’s two statements alleging zina “coupled with the presence of an illegitimate female child, amounts to confession of offence, as envisaged by Section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.”

The NGOs raise protest against the Hudood Ordinance and bring arguments against it from, inter alia, Zafran Bibi case, by saying things similar to this one:-

However, to take Zafran Bibi’s statements—that had in any case alleged zina-bil-jabr rather than confessing to zina—and the existence of her illegitimate baby as proof that “amounts to a confession” is clearly an extension of the law.

Anyone who understands the English language knows that only a subjective analysis of Section 8 and 9(1) of the concerned ordinance is sufficient to prove the fallacy of this statement; a confession of the commission of the offence is extremely different from an allegation. The judge was no doubt corrupt and his statement was not in accordance with the relevant ordinance. The FSC also said the same thing in its judgment that “this is not a defect in the hudood laws.”

 We would like to challenge anyone right here, to bring forth such a dictionary, in which ‘allegation’ or ‘pregnancy’ is included in the ambit of ‘confession’.

A confession is a confession and nothing else. Had there been some explicit provision in the ordinance, stating the contrary, then the verdict might be justifiable. But, no such thing exists and writing something in the ordinance, along the lines, 2 + 2 = 4, is useless.

Let’s not get involved in hair-splitting and abstract discussion. The simplest method to settle the issue is to see as to how Section 8 was interpreted before this judgment by other courts.

We enumerate here a few judgments which are related with confession under Section 8 of the respective ordinance:-

 

Mst. Safia Bibi vs. The State (PLD 1985 FSC 120)

MR. JUSTICE SH. AFTAB HUSSAIN

Status of self-exculpatory statement in zina-bil-jabr:-

The Court held that: “In the present case, it is clear that except the self-exculpatory statement of the girl and the statement of her father, who also maintained that she had been subjected to zina-bil-jabr, there is no other evidence. In Shariah, if a girl makes a statement as made in the present case, she cannot be convicted of Zina.”
[Annual Report of the FSC, 2002, p.49]

 

Conclusion: This judgment clearly expounds the principle that if a woman accuses someone else of zina-bil-jabr, but, no other evidence is available, then she cannot be convicted of zina. This judgment was of 1985, whereas, in the case under discussion, the sentence of stoning was passed in 2002. This alone is a sufficient proof that the judge misinterpreted the law.
 

Ghulam Ali vs. The State (PLD 1981 FSC 224)

MR. JUSTICE ZAKAULLAH LODHI

Confessional statement of woman against co-accused:-

Prosecution case resting only on confession of woman co-accused, confession of co-accused does not occupy position of a statement on oath before court of law. Such confession cannot be made good ground to support conviction of another co-accused. Appeal accepted.
[Annual Report of the FSC, 2002, p.47]
 

 

Arif Nawaz Khan vs. The State (PLD 1991 FSC 53)

MR. JUSTICE TANZIL-UR-REHMAN

Confession of an accused person against co-accused:-

In Islamic law, the confession of an accused against the co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession. Thus a confession only implicates the accused, but not the co-accused. If a person retracts from his confession, his retraction shall be accepted and he shall be absolved from hadd punishment, unless the Hadd punishment is proved by evidence.
[Annual Report of the FSC, 2002, p.52]

 

Conclusion: The above two judgments answer off the common objection raised by people that a rapist confesses his crime as zina before the court and the woman also gets convicted; this is a fallacy. The above two judgments clearly say that confession of one cannot be made ground for the conviction of co-accused. This is also proved from several ahadith e.g. a hadith found in Kitab al-Hudood of Sunan Abu Dawud.

 

Mst. Bakhan vs. The State (PLD 1986 FSC 274)

MR. JUSTICE GUL MUHAMMAD KHAN

1. Principle for recording of confession in cases of offence of zina;
2. Four times confession is necessary for a proof of offence of zina.
3. A plea of guilty is not a confession. Ultimate aim of Islamic law is correction and reformation & heavy punishment is provided only for incorrigible cases. Appeal accepted.
[Annual Report of the FSC, 2002, p.49]

 

Muhammad Sarwar and another vs. The State (PLD 1988 FSC 42)
MR. JUSTICE GUL MUHAMMAD KHAN

When a person wants to confess his guilt in accordance with the Offence of Zina (E.O.H.) Ordinance, 1979, the court should record his statement four times at intervals and each time accused should be asked to go out of the view of the court. Order of the trial court was set not supported by law and the same was, therefore, set aside.
[Annual Report of the FSC, 2002, p.50]

At this point, I appeal the readers to ask their own self: Did the Additional Sessions Judge follow the above judgments in Zafran Bibi’s case? How could he follow the above procedures? Will he ask her to accuse someone four times or will Zafran Bibi have to retract her ‘pregnancy,’ in order to fulfill the provisions of retraction of confession, as laid in Section 9(1)?

The above discussion gives a conclusive proof that the zina ordinance is far away from even the shores of being related with this case & causing injustice to Zafran Bibi!

One important aspect of this case, which is usually not discussed or debated, is that Mst. Zafran Bibi was acquitted by the FSC, on the fact that she became pregnant as a result of having intercourse with her husband. She was not acquitted because Jamal Khan had raped her.

The million-dollar question here is: Why didn’t Zafran Bibi tell others that she had “intimate moments” with her husband??? Did she deliberately try to conceal her pregnancy & take advantage of it?

Only God knows the exact answer to this question. I surely would not like to bear the burden of accusing a chaste lady of a heinous sin, but still, this fact adds a grain of skepticism to the whole case.

Lastly, I would like to clarify that I am not narrow-minded and have no problems in appreciating, as well as praising those NGOs, which raised protest against this unjust judgment. Unfortunately, most of these NGOs, as well as Geo TV itself, try to give the impression to the lay public as if such things are the result of some provision of the ordinance under discussion. This is a heinous allegation against the hudood laws.

 

I would like to end up this issue by quoting here a recent case:[36]

Rape victim booked for adultery: SC Orders Inquiry

ISLAMABAD, Oct 12: The Supreme Court on Thursday took serious notice of a case in which a woman was raped but she was booked by police for zina bil raza (adultery).

A bench comprising Chief Justice Iftikhar Muhammad Chaudhary and Justice Muhammad Nawaz Abbasi ordered a judicial inquiry into the matter.

Complainant Nasreen Mai was kept in illegal confinement for 11 months by Iqbal, a relative of her father and her father’s landlord Ali Muhammad Saamtia. During this period, she was raped by Iqbal as a result of which she became pregnant and gave birth to a child. The two culprits stole her one-month-old child and murdered.

“The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is getting criticism and objections only because of handling of hudood cases by police in such a manner,” the chief justice observed during suo motu hearing of the complaint of Nasreen Mai.

During the hearing, the court was told that 46 rape cases registered under the hudood laws in District Layyah were awaiting investigation for months for want of a senior police officer.

DPO Layyah Nazim Shahid informed the bench that under the law, hudood cases, especially rape matters, could not be investigated by a police officer less than the rank of an SP. He stated a request was sent to the inspector-general Punjab police on July 6, 2006, for appointment of a senior police officer in the district but so far no step had been taken.

“Therefore, Iqbal is still a free man,” the DPO said, adding that being a junior officer, he could not take up the inquiry.

Additional Advocate-General Punjab Syed Azhar Hussain informed the court that Nasreen Mai was married to one Allah Dita but for seven years she remained issueless. After some domestic dispute, she was asked by her father to leave her husband and stay with him.

But Iqbal and Din Mohammad Saamtia, the AAG said, took her away and kept her in illegal detention for eleven months during which she was raped by Iqbal. When she became pregnant and subsequently gave birth to a child, the family members of the landlord killed the baby, the AAG added.

When asked: ‘Why was an adultery case registered against Nasreen?’ The DPO explained that the police registered the case on the basis of the finding of the District and Sessions judge Layyah.

However, the bench noted that the DJ Layyah, while compiling his report, had relied upon the investigation of police instead of conducting an independent judicial inquiry.

The bench remanded the case back to the DJ Layyah with instructions to conduct fresh inquiry and ordered police to register a new case on the basis of new findings of the DJ Layyah.

The bolded out sentences of the above extract, especially, the CJ’s comments on the issue, clearly lay bare the truth that the police & the judges are responsible for the injustice; not the hudood ordinance!