Types and Disposition of Cases

The most obvious findings of the research are that the bulk of cases (88 percent) heard on appeal by the FSC were Zina Ordinance-related (see Table 1); and that around 60 percent of these were concerned with appeals againstadultery/fornication tazir and rape tazir cases. Conversely, the court heard very few appeals against prohibition or property cases, and in the sample only one case dealing with qazf. Second, the FSC dealt predominantly with tazir crimes. There were only six cases of hadd appeals in the sample.

A very significant and important finding of our analysis is that the FSC accepts or partially accepts an extraordinarily high percentage of the appeals brought before it. An examination of Table 1 discloses that the FSC “upheld fully” only 19 percent of the convictions brought before it and that it acquitted 52 percent of the appellates. By any standard these figures are extraordinary and warrant closer examination and explanation. A logical explanation is that the Hudood Ordinances were new laws and that the courts of original jurisdiction needed to “learn” the laws or to have them interpreted by the superior courts; hence an unusually large number of decisions of the sessions courts were overturned by the FSC. As plausible as this explanation may be, it is belied by the facts that: (a) the rate of acquittal by the FSC was not significantly different in any of the years of the sample, i.e. the session judges had not “learned” from past mistakes; (b) the great bulk of cases that were overturned (around 90 percent) were reversed because of misappreciation of facts, not misinterpretation of law; and (c) the FSC rarely enhanced sentences meted out by the sessions judges (only two cases in the sample). Further even in cases in which it upheld the conviction of the sessions judge, the FSC was more lenient in its sentencing (see Table 2).

One inescapable conclusion is that the FSC has been less keen to apply the full scope of the Hudood Ordinances than have individual sessions judges, and the net effect of FSC decisions, therefore, has been to moderate substantially the zeal of the sessions judges in enforcing the Hudood statutes. This systemic bias is related to the composition of the FSC, as its membership is drawn primarily from the ranks of “Islamic moderates.” It is also related to the government’s motivation to go slow in the implementation of the Islamization program. Indeed, a convicted Hudood Ordinance offender would be well-advised to appeal conviction, as in over 80 percent of the cases that are appealed the plaint is at least partially accepted, and the mean expected imprisonment of the appellate is reduced by 70 percent.

Because the percentage of acquittals on appeal is so high it is doubly important to note the speed with which cases are disposed by the courts. In fact, one major rationale for the introduction of Islamic legal reforms was to shorten the judicial process. Much to the credit of the FSC the mean time needed for the disposal of cases after they are filed with the court has been reduced from eleven months in 1981 to four months in 1987. Unfortunately, however, the district and sessions courts have not been as successful in expediting the judicial process, and the mean time of disposition of cases after the First Information Report is filed remains around eighteen months. Clearly, justice is not served by such delay, particularly since over one-half of those convicted by sessions judges for Hudood crimes are eventually acquitted by the FSC.

TABLE 1: Disposition of Appeals Against Zina Case Conviction, 1980-84

SOURCE: Compiled by the author from Kennedy file (1987).

KEY: 10(2) = adultery; 10(3) = rape; 11 = kidnapping; 12 = sodomy; 16 = enticement; 18 = attempted rape; 19 = abetment of zina crime; 5 = adultery liable to hadd; 15 = deceitful marriage; 14 = conspiracy to engage in prostitution.

TABLE 2: Mean Sentences for Zina Crimes, 1980-84

SOURCE: Compiled by the author from Kennedy file (1987). KEY:   See       Table 1.

* Life imprisonment was coded as 500 months.

Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.