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 ismuhsan. 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.
