Pakistan: Appeal filed against stoning sentence - local groups prioritise local pressure

Although friends in Pakistan clearly stated they wish to pursue this case by prioritising local pressure and working through the Pakistani legal system, local groups have however requested that international friends remain ready to launch an alert for action should the need arise. Pakistani women’s, human rights and lawyers’ groups have mobilised around the case. At this point they are prioritising local pressure and working through the Pakistani legal system as their strategy.
Zafran Bibi case - the legal facts: On 17 April 2002, Additional and Session Judge, Mr. Anwar Ali, sentenced a woman - Zafran Bibi - to stoning to death under Section 5 of Zina (Enforcement of Hadd) Ordinance 1979 in the town of Kohat (located in the North West Frontier Province of Pakistan). Zafrullah WILL appear when case is heard in court. An appeal was filed by a local lawyer Zafrullah, Barrister Masood Kausar will appear on her behalf when the case is heard in court. On 17 April 2002, Additional and Session Judge, Mr. Anwar Ali, sentenced a woman - Zafran Bibi - to stoning to death under Section 8 of Zina (Enforcement of Hadd) Ordinance 1979 in the town of Kohat (located in the North West Frontier Province of Pakistan). The case is under the infamous Hudood Ordinances introduced by General Zia-ul-Haq’s martial law regime in 1979. Human rights and women rights activists have been asking for the repeal of this law since 1981. Under the Pakistani legal system, no such sentence by a trial court can be carried out until it is confirmed by the Federal Shariat Court (whether an appeal is filed or not), and in the case of Zafran Bibi, there are 2 levels of appeal left. An appeal was filed on 24 April 2002 by a local lawyer Zafrullah, while Barrister Masood Kausar also appeared in court on her behalf. According to her statement in court on oath, Zafran Bibi says she was raped by her husband’s younger brother, Jamal, became pregnant as a result and gave birth to a girl. However when her father-in-law took her to the police on 26 March 2001, he accused a third person, Akmal Khan and said the rape took place on 15-16 March 2001. Zafran lodged a complaint with the police on 26 March 2001 which was entered in the Police Diary but a formal FIR was registered AFTER a medical examination. Because Zafran was found to be 7-8 weeks pregnant while the claim was of having been raped 11-12 days earlier, the FIR registered was one of zina.
Current mobilisation in support of Zafran Bibi in Pakistan:

Zafran has met a lawyer and also a woman activist from Aurat Foundation. Others have asked permission to meet her (including Shirkat Gah Women’s Resource Centre, SG). However, the Inspector General Prisons says too many NGOs are requesting permission right now, but that he will grant permission later if necessary. SG will reiterate its request on Monday 29 April.

The National Commission on the Status of Women has been approached. A Seminar on the case and topic will take place in Peshawar (provincial capital of NWFP) on May 4th. We hope this starts a renewed campaign for the repeal of the Hudood Ordinances. Local groups, including the country’s feminist platform, Women’s Action Forum, have been issuing statements and mobilising.

Local groups have sent the following background and legal information:

Zafran Bibi accompanied by her father-in-law approached the police to register a case of rape on 26 March 2001. From Zafran’s subsequent statements in the court it is clear she thought they were going to register a case against her husband’s younger brother, Jamal. However, Zafran’s father-in-law did not nominate his younger son, Jamal, as the accused in the FIR (First Information Report). Instead, he named a third person, Akmal Khan, and gave the date of rape as 15-16 March 2001.

A medical examination that same day revealed that Zafran Bibi was 7-8 weeks pregnant. On the basis of this medical report, the police converted the charge of rape to a charge of adultery, submitted an investigation report to the court against Zafran & Akmal (27 March 2001), and arrested Zafran as an accused.

In court, when the charges were framed both accused pleaded not guilty and asked for a trial. Both made statements under oath. In her statement Zafran exonerated Akmal and said that she was raped by her brother-in-law Jamal, became pregnant as a result and gave birth to a female child. (During this time her husband was, and remains, in jail serving a sentence). She also stated that the police report was lodged by her father-in-law and she, herself, did not give any statement to the police. (The fact that the FIR has her thumbprint but not her signature suggests Zafran is illiterate.) There is no mention in the judgment of the content of Zafran’s statement before the magistrate.

In his judgment, the judge said that it was clear that intercourse had taken place with someone other than her husband and that this was either willful or forced. Then, ignoring Zafran’s statement under oath that she was raped by Jamal he exonerated Akmal for lack of evidence (no action was taken against Jamal because he was not mentioned in any police report nor was he charge-sheeted). Then, on the basis of her own testimony and possibly the discrepancy between the date given in the FIR of the alleged rape (15-16 March 2001) and pregnancy being of 7-8 weeks the judge sentenced Zafran Bibi to the maximum punishment prescribed for married persons under the infamous Hadood Ordinances (1979) i.e. stoning to death.

The decision in the Zafran Bibi case is in complete contradiction with many decisions and principles set out by the Federal Shariat Court (FSC) on such cases. The FSC is the court of appeal and responsible for confirming the death sentence irrespective of whether or not an appeal has been filed. The FSC has established clear guidelines rejecting the existence of pregnancy and medical evidence as sole valid grounds for conviction under zina.

The question of a woman conceiving as a result of alleged rape has been dealt with in a number of cases. These case precedents have established that a woman cannot be convicted of zina, even if she only alleges she was raped as late as at the time of delivery of a child conceived as a result of the rape.

In Zafran’s case, her commission of zina with a person has not been established in the court. She has been sentenced because of her giving birth while her husband was in prison.

In Mst. Rani vs The State (Rani v The State KLR 1996 Shariat cases 150), a division bench of the FSC reviewed all the reported cases on similar issues (some of which had already set certain positive precedents) and after a detailed analysis of Muslim jurisprudence on the issue concluded the following:

- A woman could not be convicted for Zina when she pleaded pregnancy/child birth as result of being raped. The court cited the principle of fiqh (jurisprudence) that a woman will be asked the cause of pregnancy. If she says she was forced to have sex with someone or had sexual intercourse with someone under a false impression of identities, her statement will be accepted (as proof of this not being a wilful act on her part) and she will not be convicted. If an unmarried woman delivering a child pleads that the birth was the result of being raped, she cannot be punished. If the explanation of pregnancy provided by the woman (in her allegation of being raped) is found to be implausible, that implausibility is not sufficient to convict her of zina.

- Where no direct positive evidence was provided by the prosecution to substantiate a charge of zina, the expert evidence of the doctor alone was not sufficient basis for the conviction of zina. At best the medical evidence could only serve as piece of corroborative testimony. In another case it had already been held that “mere pregnancy/abortion of or birth of an illegitimate child by an unmarried girl/widow or a married woman whose husband had no access to her during the relevant period was not sufficient to hold her guilty under section 10 of the 1979 Ordinance”.

- The rule established is that zina is a joint offence requiring positive identification of a man and a woman, distinctly, both of whom are consenting parties to un-lawful sexual intercourse. In case either one of them fails to be so identified, no offence of zina can be made out by the prosecution.

In the Mst. Rani case, the woman was 8 months pregnant when she registered a case of rape against two male accused. Although both were acquitted due to lack of evidence against them, she too was acquitted on the basis of her claim of her being raped.

Zafran's statement before court that has been equated as a confession of wilful extra-martial intercourse does NOT meet the requirements of a confession acceptable by the court.
Shirkat Gah Women's Resource Centre
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