A landmark judgment

IN what indeed is a landmark judgment, the Federal Shariat Court has ruled that a woman who is a victim of rape is not liable to punishment; instead, it is the rapist who must stand trial under the Hadd or Tazir. The ruling, thus, reverses the judgment in the case of Zafran Bibi, who had been sentenced to stoning to death by a sessions court. The FSC judgment avers that while the Islamic laws relating to punishment for sex out of wedlock are “highly severe and deterrent,” they also lay down strict standards of evidence and precautions so that no innocent person is punished. Section 8 of the Hudood Ordinance itself says that the ground for a case for Zina requires either a confession or the evidence of four people. In Zafran Bibi’s case, the court has observed, there was “no testimony of even one eyewitness.” The court has quoted a saying of the Holy Prophet to the effect that “it is much better that an imam (judge) err in acquitting someone rather than he should err in punishing someone” who is not guilty. That is why, the court says, during the times of the Holy Prophet and the Pious Caliphs, women who were coerced into sex were acquitted, but the perpetrators of the crime were punished.

The decision also dwels on the question of pregnancy and questions the validity of judgments which presumed a female, married or unmarried, to be guilty if she became pregnant as a result of rape. The FSC judgment quotes founders of the Hanafi, Shafaee and Maliki schools of Islamic jurisprudence to prove the point that a victim of rape is not liable to conviction. The judgment thus establishes one basic principle: a woman who has been raped is innocent; it is the person or persons who coerced her into the act who should be tried and, if found guilty, punished. This way, the FSC verdict serves to highlight the horrendous miscarriage of justice in many rape cases since the Hudood laws were enforced by the Ziaul Haq regime. Invariably, whenever a female reported rape, she was the first to have been arrested and charged.

Ever since they have been enacted and enforced as part of his so-called Islamization process, the Hudood laws have been controversial, because they are contrary to an essential principle of Islamic law — justice tempered with mercy. Punishment of women who were victims of rape and who deserved society’s sympathy made a joke of the very concept of law. The present verdict, thus, correctly notes that it was not the Islamic law as contained in the Holy Quran and Sunnah but “its misapplication that resulted in miscarriage of justice.” Most observers of the Pakistani scene during the Ziaul Haq days have pointed out that one reason for the severity with which the Hudood laws were enforced was to terrorize the people, especially the regime’s opponents. The same holds true of the blasphemy laws under which many Muslims and non-Muslims have been convicted on flimsy evidence. These controversial laws served to create an atmosphere of bigotry in the country. This has enabled semi-literate and narrow-minded clerics to incite mobs to lynch innocent people on mere suspicion, or sometimes to settle personal scores. While this interim government is in no position to scrap these laws, one hopes that the one that takes charge after the October election will have all such controversial laws reviewed, and repeal or replace those that are flawed or are liable to be abused.

Her tragic plight

NOTHING can be worse than languishing in jail on questionable charges in a foreign land and being forgotten. The ordeal of Gulzar Asgher, a Pakistani mother of two and expecting a third child, is worsened by the uncertainty of her fate. According to her parents and the Human Rights Commission of Pakistan, she was falsely accused of adultery by her in-laws and booked under Saudi law five months ago. Despite pursuance of her case by the parties concerned, her fate remains uncertain. Ever since her marriage in 1998 and shifting to Saudi Arabia, Gulzar has been treated cruelly by her in-laws because of her failure to bring the dowry they had expected of her. Still more shocking, her father-in-law, living in Madina, has the effrontery to demand one million rupees as dower money to withdraw the charges he brought against her.

Quite clearly Gulzar is a victim of greed pursued with criminal remorselessness. She needs to be rescued out of her misery — and soon. Given our peculiar customs and traditions — for good or for bad — the Saudi authorities cannot be expected to understand the complexity of Gulzar’s situation as revealed by her family in Pakistan. Five months is a long time to be left incommunicado in prison and that too in a foreign country, especially when the accused is in an advanced stage of pregnancy. Given the sensitive nature of the case and the delicacy of Gulzar’s mental and physical state, the only hope lies in Islamabad formally taking up the matter with Riyadh for the extradition of the entire family to Pakistan. Any delay or dithering on this score may not only prove harmful for the woman in distress but also have an encouraging effect on other criminally-minded expatriates to take advantage of local laws to persecute targets of their wrath. The government must move quickly to engage the Saudi authorities at the highest level for an end to the suffering of hapless Gulzar. Islamabad owes this much to a citizen in distress abroad.

Regulating bus stands

ACCORDING to a report, of the 171 inter-city bus stands in Karachi only three are legal. The 168 stands that are illegal are either built on encroached plots or on the side of roads. Now, there are several aspects to this matter. The first obviously relates to the transport requirements of a city as heavily populated and sprawling as Karachi. Clearly, three bus stands would seem too insignificant for a huge and growing fleet of inter-city and inter-district buses and trucks. On the other hand, this does not mean that providers of inter-city transport services be allowed a free rein in the city, or that their terminals should be restricted to city outskirts. What is needed is a balanced approach — one that takes into the account the interests of transporters, travellers, road users, and residents who live nearby. The problem is that at the moment there is no discernible policy approach as to the proper location of terminal points.

The city administration, in part because of the close nexus between sections of transporters and police officers, seems to have abdicated its responsibility of ensuring that bus stands and terminals do not mushroom or follow a chaotic pattern as to their number and locations. Banishing these out of the city will not help either because that would inconvenience inter-city travellers. A more feasible option could be for city planners to sit down with the transporters and identify all possible locations where bus stands could be set up without causing problems of traffic congestion or general disruption.