On 10 February 1979, Ziaul Haq promulgated four ordinances, collectively referred to as the Hudood Ordinances which were crafted to make significant revisions in Pakistan’s criminal law system. Namely, revisions were made in criminal statues bearing upon sex-related crimes (zina) and theft. In addition, new laws were introduced through the vehicle of the ordinances bearing on prohibition and qazf (the wrongful imputation of zina).' In keeping with the Islamic intent of the ordinances, each established distinctions between hadd crimes (crimes expressly defined in the Qur’an and Sunnah), and tazir crimes, both in regard to punishments and evidentiary requirements.
Of particular relevance to this study, the overwhelming majority of cases tried under the Hudood Ordinances have fallen under the rubric of the Zina Ordinance. The Zina Ordinance specifies ten separate sex-related crimes. Of these crimes, two have drawn most of the attention of women’s rights activists: adultery/fornication (section 10[2j), and rape (section 10131).
Critics of the former provision have argued that the enforcement of an adultery/fornication law discriminates against women because unmarried pregnant women or women who give birth to illegitimate children would be/have been singled out for punishment under the law while men (equally "guilty”) would not be charged/would be set free owing to lack of evidence. This argument was given credence and became politicized through the tragic case of Safia Bibi.
Safia Bibi, a severely myopic, unmarried twenty-year-old woman gave birth to a child in July 1982. After the birth Safia’s father lodged a complaint charging her with zina. Subsequently Safia testified that Maqsood Ahmed was responsible for the pregnancy as he had raped her nine months earlier. A case was registered by the police against both Safia and Maqsood — Safia for fornication and Maqsood for rape. In July 1983, the case was heard by Chaudhry Mohammed Aslam, the additional sessions judge, Sahiwal. He ruled that there was insufficient evidence linking Maqsood with the charge of rape, and that Safia’s testimony was self-exculpatory and accordingly inadmissable. He sentenced her under section 10(2) of the Zina Ordinance to three years imprisonment, 15 stripes, and imposed a fine of Rs 1,000.
Before the sentence could be carried out, accounts of the case appeared in Pakistan’s newspapers and news magazines, and in the international press. Such accounts exaggerated the facts of the case. It was reported that Safia Bibi had been awarded stripes (this punishment was never carried out as her case was immediately appealed); that she was only 13 years old; that she was wholly blind; and that she had been the victim of a multiple rape by Maqsood and other members of his “landlord” family (Maqsood’s family owned less than two acres of land). It was also argued that Safia Bibi’s case was typical of the courts’ interpretation of the Zina Ordinance:
Zina can only be committed by two persons, male and female. But whereas the female accused is being convicted, the male counterpart, who has contributed to the crime and has often forced or cajoled the woman, goes free. This is causing panic in society and making women vulnerable to terror. In a number of cases complaints of rape are not filed anyway due to social taboos and the law and order situation. Now the Zina Ordinance is making the filing of complaints of rape even more dangerous and problematic for the female victim.
On the basis of such publicity, the Federal Shariat Court called for the case (a criminal appeal had already been filed) and set Safia Bibi free pending appeal. In December, the FSC heard the case and ruled that the trial judge had erred in disallowing Safia Bibi’s statement that she had been raped. Setting aside the conviction the court found that under Shari'ah “if an unmarried woman delivering a child pleads that the birth was a result of a commission of rape upon her, she cannot be punished.”
This decision merely reiterated a well-established precedent of the FSC’s interpretation of the Zina Ordinance. Namely, in the case of birth or the pregnancy of an unmarried woman and in the absence of circumstantial or corroborative evidence proving wilful zina “doubt should go with the claimant.” Similarly, the Federal Shariat Court has also ruled that the conditions for zina are not proven if a married woman gives birth to a child when the woman’s husband is in jail during the likely period of conception, nor are the conditions for zina met if a woman gives birth to a full-term child shortly after marriage. Further, the FSC has also found that evidence of an unmarried woman’s abortion does not constitute proof of zinau nor does the registration of an illegitimate birth.
In sum, proof of zina is dependent upon direct evidence of sexual intercourse committed by a man and a woman, not validly married to one another, and “wilfully” committed by one or both of the partners. Proof of zina can also be determined by a confession. But, such confessions must be: (a) free of duress; (b) based upon legal council; (c) made by an individual neither physically handicapped nor insane; and (d) repeated on four separate occasions.
The wholesale application of such legal precedents is borne out by an examination of sentencing under the terms of the Zina Ordinance, controlling for gender. If the implementation of section 10(2) was discriminatory to women one would expect that there would be more women convicted under this provision than men. The opposite is the case. Of those convicted under the terms of 10(2) in district courts and in the FSC, 56 percent and 70 percent respectively are men.Therefore, to the extent that gender bias is present in the implementation of this provision of law, it favors women.
Also drawing fire from critics of the Iludood Ordinances have been the rape provisions of the Zina Ordinance. Section 10(3) of the Zina Ordinance replaced section 375 of the Pakistan Penal Code. The dispute concerns whether the new law adequately protects the rights of women. Critics contend that: (a) the testi- mony restrictions for hadd convictions (four adult male witnesses) preclude rape convictions; and (b) that women do not bring charges of rape against their assailants because they fear being countercharged for zinaNeither contention is supported by relevant case law.
First, the superior courts have consistently ruled that the criminal charge of rape (tazir) can be proven based upon the sole testimony of the victim providing that circumstantial evidence supports the allegations. In this regard the courts have not departed in any significant way from the standard of proof that applied to section 375 of the Pakistan Penal Code. Accordingly, the courts have awarded many convictions under section 10(3). The average punishment for such convictions is quite severe: in district courts the mean sentence is twelve years imprisonment, and 22 stripes; in the FSC the mean sentence is eleven years imprisonment and twenty stripes.
Second, as demonstrated above, the courts have consistently not convicted women of zina if there is ‘reasonable doubt’ concerning whether the woman was forced to submit to the crime. Indeed, rather than reducing the number of rape cases filed, the implementation of 10(3) has actually increased the incidence of the charge. This is an unintended (and perhaps perverse) consequence of the interplay of provisions of the Zina Ordinance. Women fearing conviction under section 10(2) frequently bring charges of rape (10131) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, but in possession of evidence proving zina, often convict the male accused under section 10(2). Approximately 30 percent of all convictions under section 10(2) originate as 10(3) cases. In such cases the woman bringing the charges is exonerated of any wrongdoing due to the ‘reasonable doubt’ rule.
Gender-based Testimony Restrictions
Again it is contended that a close examination of distinctions between the value of evidence of men and women as sparked by the implementation of Zia’s Islamization program discloses more smoke than fire. Much of the controversy and confusion stem from draft ordinances on evidence, and qisas and diyat* proposed by the Council of Islamic Ideology during 1980-84. Provisions within the draft ordinances proposed that the testimony of women in most situations be equated with one-half that of a man’s. Such draft ordinances were highly publicized; one was even published in the Gazette of Pakistan. Reaction to such proposed legislation was swift and consistently opposed to the discriminatory provisions against women. Indeed, Zia’s government quickly distanced itself from the council’s draft ordinances. Working through the Law Commission (attached to the Supreme Court) and the Ministry of Justice, the government encouraged the drafting of a far less radical Qanoon-i-Shahadat, and put qisas and diyat legislation on hold. In 1984, the Qanoon-i- Shahadat was promulgated by Zia. In regard to the testimony of women it departed from the provisions of the Law of Evidence Act of 1872 in only one significant particular. Article 17 of the new law provides that:
- In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
- In all other matters, the court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case warrant.
This article was substituted for Article 134 of the 1872 law of Evidence which had stated: “No particular number of witnesses shall in any case be required for proof on any fact.”
Why Article 17 was introduced into the new legislation remains unclear. Most likely it was introduced as “proof’ that the Qanoon-i-Shahadat had made significant departures from the “un-Islamic” Law of Evidence of 1872. The clause may also have been included in order to maintain support from the ulema and the Council of Islamic Ideology.
In practice, the implementation of Article 17 has had at most a minor impact upon the legal system of Pakistan. Article 17 has not had a material bearing on any PLD-reported case brought before the High Courts, the FSC, or the Supreme Court of Pakistan since its introduction (1984-89). Nevertheless, Article 17 remains a major focus of criticism, and Benazir called for its repeal during the 1988 election campaign.
Also deemed discriminatory toward women are gender-based standards of evidence in the Hudood Ordinances. Proof for the imposition of hacid penalties in each of the four ordinances excludes women’s testimony. Zina liable to hadd requires four adult male witnesses. Hadd penalties for prohibition, property, and qazf each require the testimony of two adult male witnesses. In practice, such restrictions have had only a minor impact upon the implementation of law in Pakistan. As I have reported elsewhere, there have only been a handful of hadd cases brought before the district courts, and only two hadd convictions (both property cases) have survived appeal before the Federal Shariat Court. Both of these were later overturned by the Supreme Court. In none of these cases were women material witnesses. Nevertheless, there is considerable sentiment within Pakistan’s legal community, as well as support from the Benazir government, for relevant modifications in the Hudood Ordinances. Rashida Patel, a prominent female attorney, has challenged the gender-based evidence distinctions of the Hudood Ordinances in a series of Shariat petitions before the FSC. The court partially rejected the petitions but the case has been appealed to the Supreme Court.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.