KARACHI: Human rights groups have praised Pakistan for overhauling its Islamic sex laws, but for women like Quratulain Sattar, it is still an uphill battle against trumped-up charges under the harsh legislation. The 25-year-old medical trainee’s father lodged adultery charges against Quratulain and her husband Faraz Shah after failing to force her to marry the man of his choice. Now pregnant and in hiding, she complains that even if she and Faraz are acquitted they remain under threat for disgracing her family’s “honour” under the atavistic tribal system.
“The new amendments eased my legal battle but I am still in fear of my life and have to run from one place to another,” Quratulain told AFP at a shelter run by a charity in Karachi. “We are husband and wife, we love each other and cannot leave each other,” she added.Quratulain married Shah in early 2005. Coming from a conservative ethnic Pashtun background her father filed a case arguing that she was already married to another man and that Shah had kidnapped her and forced her to wed. The couple sheltered at the private Edhi Centre in Karachi. Her family’s accusations are “completely false”, she said. “I was forcibly engaged with my cousin Bilal in Mardan but never married.
They are now coming out with fake witnesses,” she said. “I did nothing wrong as my mother and brothers knew about it. They had even met Faraz and liked him, but then they all changed and followed my father’s attitude, and rejected my husband.”The case is still active and is due to be heard soon at a court in Karachi. President Pervez Musharraf recently changed the 27-year-old Islamic Hudood Laws to make adultery a bailable offence, meaning Quratulain would not go to jail. Quratulain says she will benefit from another change that means witnesses who give false statements can be jailed.
The Nation Be fair to women and Hudood Laws
According to the general impression created by the proponents of the Protection of Women Act, recently passed by the Parliament, it is meant to provide security to the women oppressed by the Hudood Ordinance. Common people having no access to the text of the laws nor to any source to examine their legal implications, have no choice but to believe that the Act ensures well-being of women, while its opponents are striving against their interests. These notions are so widely spread all over the world, that the one who speaks against them is instantly held to be fanatic, extremist and even an obscurantist. Although it is very difficult in such a biased atmosphere to disclose the truth, I would request the people of objective approach, in the name of justice and fairness, to evaluate the Act in the light of its real contents, and not on the basis of the ambiguous remarks appearing in the media.
An impartial appraisal of the Act would reveal that it is only two substantive issues that the Act has dealt with. Firstly, it has totally abolished the extreme punishment of rape prescribed by the Holy Quran and Sunnah, and secondly, it has reduced the punishment of willful fornication, and made it non-cognizable and too difficult to be proved in a court. In order to consider the implications of both these amendments, the following points need attention.
1-The hadd punishment of a rapist, according to the Holy Quran and Sunnah is whipping with 100 stripes, if he is unmarried, and stoning to death, if he is married, and his crime is proved either by his own confession, or by the evidence of four witnesses. Now, according to the new legislation, this punishment can never be awarded to a rapist, even if his offence is proved by his own confession or by any number of witnesses. His punishment is now left to the discretion of a judge who may imprison him for ten years or more or sentence him to death if he deems fit. According to the well-settled Islamic principles, no one has authority to change the hadd punishment, nor can it be left to the discretion of a judge. The law under consideration is, therefore, in clear violation of Surah Al-Nur (24:2) read with verse (24:33) and of the Sunnah reported in JÃ¢mi’ Tirmizi, Hadith 1453 & 1454 and SahÃ®h Al-BukharÃ®, IkrÃ¢h, Chapter 6.
One can only wonder how the reduction in the punishment of a rapist can do any good to women.
2-The only justification offered for the amendment is the highly misleading assumption that a victim of Rape was required under the Hudood Ordinance to produce four witnesses to prove her charge, and in case of her failure she was herself imprisoned for the commission of adultery. Hudood Ordinance is being accused of such a cruel conduct by all those who have launched a campaign against it, but none of them has ever pointed out to any section of the Ordinance that might subject the victim of rape with any punishment, if she did not bring four witnesses, nor has anyone ever referred to a judgment passed under Hudood Ordinance to that effect. Conversely, I have been dealing with the cases under the Hudood Ordinance as the Judge of the Federal Shariah Court and then as a Member of the Supreme Court’s Shariah Appellate Bench, for 17 years. I never came across a single case in which a woman victim of rape was convicted of adultery because of her failure to produce four witnesses. That was simply not possible under the Hudood Ordinance, because the condition of four witnesses, or the confession of the accused, was provided only for the purpose of Hadd punishment. No such condition was there for Ta’zeer under Section 10(3) of the same Ordinance, in which even circumstantial evidence was enough to prove rape and to bring the culprit to book. That is how the rapists were always punished under Section 10(3) of Hudood Ordinance, while there was no question of punishing the woman at all. If someone assumes that they might have been punished under Qazf Ordinance for not proving the charge of rape by four witnesses, it was impossible, because Section 3 (2) of Qazf Ordinance clearly states that the woman approaching the law authorities with the complaint of rape cannot be punished under the ‘Qazf Law’ merely because she has failed to produce four witnesses. There are many cases in which a woman willfully eloped with her paramour, but when restored to her parents, she brought a case of abduction and rape against her male partner. In almost all such cases, the court, though not convinced about the use of force by the male accused, has convicted him for Zina bil-Raza under section 10 (2) and set her free giving her the benefit of doubt because of the lack of sufficient evidence to prove her consent.
Charles Kennedy, a US Scholar, has meticulously examined all the cases decided under the Ordinance during the first five years of its enforcement. In his well-researched Report based on the data of his survey Charles Kennedy noted: “Women fearing conviction under section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC, finding no circumstantial evidence to support the latter charge, convict the male accused under Section 10(2). …. the woman is exonerated of any wrong doing due to reasonable ‘doubt rule’.” This impartial survey conducted by a non-Muslim foreigner is fully in line with our long experience in the Courts, and is enough to refute the misstatement about the cruelty of Hudood Ordinance to women.
3 It is possible that the Police, under the influence of some wrongdoers and in pursuit of its corrupt designs, might have mistreated some victims of rape, and charged them with adultery, but such malpractices are unfortunately found in implementation of every law in our society, and they cannot be attributed to the law itself. Hundreds of women are put by the police behind bars in cases of narcotics, but it does not mean that the law prohibiting narcotics should be repealed. In order to do away with any possibility of the misuse of the law, a proviso might easily be added to the law of Zina-bil-Jabr liable to Hadd to the effect that no complainant of rape can be booked under any provision of Hudood Ordinance until her case against the accused is finally decided by a competent court. Rather, those police officials must be subjected to exemplary punishment who violate the law according to their evil designs. It can by no means justify the annulment of the law itself.
4 The Act under question has retained the Hadd punishment for willful Zina, but the Provincial government is empowered to remit or commute the punishment, which is a flagrant violation of Islamic principles.
5 If a husband accuses his wife of adultery, Hudood Ordinance had, in pursuance of the Holy Quran, empowered the wife to compel the husband to go through the procedure of Li’an whereby the husband is bound either to withdraw his accusation, or to get the marriage dissolved by the court. Under the new Act, the husband is given the liberty to refuse to participate in the procedure and torture his wife, as the wife will neither prove herself innocent, nor can get her marriage dissolved.
6 The new Act has made willful fornication a non-cognizable offence. No FIR can now be lodged against the persons living in adultery. If a person is annoyed, he or she has to go to the Court of Sessions to lodge a complaint, which will not be admissible unless four or at least two eyewitnesses are present right at that time. No circumstantial evidence, like medical evidence, will be acceptable to admit the complaint. Moreover, the complainant and the witnesses must always remain under the fear that the Court may reject their complaint then and there, and they can face the sentence of five years. Even if the court finds some ground to proceed, the accused persons cannot be required to furnish a security to attend the court. Their personal undertaking will be enough to set them free. One can easily visualise the consequences of these unparalleled facilities provided to those living in adultery.
Source: Daily Times