THE INTERNATIONALNETWORK 
     FOR THE RIGHTS OF FEMALE VICTIMS 
     OF VIOLENCE IN PAKISTAN
  (INRFVVP)
 
Subject: ALL: Zafran Bibi Case Background
Date: Sun, 19 May 2002 01:39:23 -0400

Editor’s Note:  We thank INRFVVP Member Najma Sadeque for sending us the following background information
about the Zafran Bibi case.

From: najmas [mailto:[email protected]
ZAFRAN BIBI CASE Background

Information prepared by Shirkat Gah, Lahore 

April 26, 2002

Zafran Bibi Case (Kohat 2002) - Background & Legal information

Zarfan Bibi Case – Notes

On April 17th 2002, additional and session judge, Mr. Anwar Ali, sentenced a woman Mst Zafran to stoning to death under Section 5 of Zina (Enforcement of Hadd) Ordinance 1979 in Kohat (NWFP province of Pakistan). 

Clarifications:

The case is under the infamous Hudood Ordinances introduced by General Zia-ul-Haq’s martial law regime in 1979. Human rights activists have been asking for the repeal of this law since 1981.

No death sentence can be carried out until it is confirmed by the Federal Shariat Court (irrespective of whether an appeal is filed or not)

An appeal has been filed on April 24th. It is likely that the judgment will be over-turned since it is in complete contradiction to principles established by the Federal Shariat Court in previous cases of a similar nature. (see below)

Zafran has met a lawyer and also a woman activist from Aurat Foundation. Others have asked permission (including SG) but Inspector General Prisons says too many NGOs are requesting permission right now, so to wait and if still felt necessary will grant. SG will reiterate request on Monday 29th. 

Zafran’s husband is serving a several years sentence in jail.

According to her statement in court, 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 March 26th 2001, he accused a third person, Akmal Khan and said the rape took place on 15-16 March 2001. 

Medical examination on 26th March found she was 7-8 weeks pregnant. On 27th March 2001, police changed the charge from rape to one of zina (willful extra-marital intercourse) and arrested Zafran. (This is possible and has repeatedly been done under the Hudood Ordinances)

Pakistani NGOs and activists have been coordinating on this. The National Commission on the Status of Women has been approached, a first seminar on the case and topic will take place. We hope this starts a renewed campaign for the repeal of the Hudood Ordinances will take place in Peshawar (provincial capital of
NWFP). 

The case is as follows:

Zafran Bibi accompanied by her father-in-law approached the police to register a case of rape on 26.3.2001. 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. Instead he named a third person, Akmal Khan, and gave the date of rape as 15-16 March 2001. 

 The complaint was duly entered into the police diary on 26th – but the police immediately asked for medical that found Zafran pregnant by 7-8 weeks so since rape had been alleged to have happened 11-12 days earlier while she was pregnant 7-8 weeks, the police filed an FIR as zina (adultery) under Section 5/10(2) and
arrested Zafran and Akmal the person accused by the father in law (on 27. March 2001).

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 Mst 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 Mst Zafran to the maximum punishment prescribed for married persons under the infamous Hadood Ordinances (1979) i.e. stoning to death. 

An appeal has been filed on 24th April 2002 and it seems likely that the judgment will be over-turned since it is in complete contradiction with the principles set out by the Federal Shariat Court (FSC) through many decisions on similar cases. 

The FSC is the court of appeal and responsible for confirming the death sentence in such cases, irrespective of whether or not an appeal has been filed. The FSC, as enunciated in number of cases, has established clear rules and 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. A woman cannot be convicted of zina, even if she waits until the time of delivery to allege she was raped.

Citations of such cases are: 

Sakina v The State PLD 1981 FSC 320

Mst Siani v The State PLD 1984 FSC 121

Sukhan v The State 1985 P Cr.L.J 110

Safia Bibi v The State NLR 1985 SD 145

Rani v The State KLR 1996 Shariat cases 150

In the case under discussion, Mst Zafran’s commission of zina with a particular 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, a division bench of the FSC reviewed all the reported cases on similar issues and after a detailed analysis of Muslim jurisprudence on the issue concluded the following: 

Referring to the Safia Bibi case where Justice Aftab Hussain (as Chief Justice of the FSC) held that in absence of any evidence other than the statement of the woman the male accused should not be convicted in respect of zina-bil-jabr (rape). With respect to the concerned woman, the court concluded that she could not be convicted for Zina when she pleaded that pregnancy/child birth occurred as a 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 willful 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. 

It was further held that 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 ground to convict her of zina. 

Finally, it was held that in a case of Zina where no direct positive evidence was laid 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 the Siani case, the court observed 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. 

It is to be noted that in the case in which all these principals were laid down, the woman was 8 months pregnant when she registered a case of rape against two male accused. Although both men were acquitted due to lack of evidence against them, she too was acquitted on the basis of her claim of having been raped. 

The other most important aspect of Mst Zafran case is that she has been sentenced on the basis of her admittance of giving birth to a child while her husband was in jail (Section 342 CrPC i.e. statement of accused before the court). However, in zina cases, the statement of the accused under Section 342 CrPC cannot be equated with confession required for sentence of hadd (maximum). 

Also, the Supreme Court has laid down a clear principle regarding the statement of an accused under Section of 342 CrPC . (Sultan Khan vs Sher Khan and others (PLD 1991 SC 520).

It was held that the inculcatory part of the statement of the accused under Section 342 CrPC could not be used against him/her while excluding the exculpatory part, unless there were other circumstances direct or indirect, connecting the accused with the commission of the offence. 


COMMENT: Seems to be something strange since police normally ask whether medical can verify/support charge of being raped OR whether pregnant. Why did police ask whether she was pregnant in this case rather than rape (since that was the complaint?)

Further while the court formally charged them under Section 10(2) which is
zina liable to tazir, the judge sentenced her to hadd (under section 5).  – Farida.

COMMENT : Given the attitude towards women, considering them defiled and unwanted even if innocent victims, it would appear that the father-in-law (who did all the talking on Zafran Bibi's behalf -- culture did not allow otherwise) framed another man and got the lawyer to advise her to 'confess' guilt, as a sure way of permanently getting rid of her -- through arrest and sentencing. Yet no action was taken against the father-in-law for making a false accusation, nor against the lawyer for telling her that she be forgiven and freed if she pleaded guilty. -- Najma

Link to discussion of case
 



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