ISLAMABAD, Oct 3: The Supreme Court was told on Tuesday that the Offence of Zina (Enforcement of Hudood) Ordinance 1979 in its present shape cannot protect women victims of ‘Zina-bil-jabr’ (rape).
Advocate Dr Babar Awan, who was summoned by the Supreme Court as an amicus curiae (friend of the court) to assist it in a rape matter, suggested certain amendments in the Hudood law to provide legal cover to women who are victims of rape. “It is unfortunate that poor girls have to suffer while offenders go scot-free,” he deplored.
“Let there be a full-fledged debate to determine whether the Shariat Appellate Bench of the Supreme Court has the jurisdiction to decide cases involving innocent girls, who are kidnapped and prosecuted against as adulteresses when they become pregnant,” a two-member bench comprising Chief Justice of Pakistan Justice Iftikhar Mohammad Chaudhry and Justice Mohammad Nawaz Abbasi observed.
The bench was hearing a case of a 13-year-old girl called Nazia who was kidnapped by one Zahoor Ahmad and made pregnant during captivity as a result of which she become mother of an illegitimate child.
“Amendments in the Hudood Ordinance as suggested by the counsel cannot be examined unless placed before the Shariat appellate bench of the apex court,” the chief justice observed and asked Attorney General Makhdoom Ali Khan to assist it on this sensitive issue on November 1, 2006, the next date of hearing.
President Supreme Court Bar Association (SCBA) Malik Mohammad Qayyum who was also summoned by the court to help it, however stated that the jurisdiction of the Shariat appellate bench should be determined first before fixing the matter for determination.
In his formulations, Babar Awan suggested that section 10 (4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 was against the injunctions of Islam as well as the principles of justice as this was contradictory to other provisions of section 10 of the ordinance where lesser punishment had also been provided for similar offences.
This section should be amended in a way that the trial court should award punishment other than death to meet the ends of justice, the counsel emphasized.
In the present form every accused under sub-section 4 of section 10 is bound to face singular penalty of death or is liable to be acquitted, he said, adding this provision was also violative of Article 25 (equality of citizens) of the constitution and infringed upon different fundamental rights guaranteed in the Constitution.
This also provides a punishment under Tazir (penal code), greater than the Hudood, thus violating Islamic laws.
He also suggested that section 11 should also be amended in a way that if a woman conceives pregnancy, the man responsible for such pregnancy should deem to be a father of the child allowing the child to enjoy all rights in the estate and legacy of such a man. For determination of parentage of such a child, the court may order for a DNA test.
Section 2 (definitions) of the ordinance should also be amended by saying that complainants means a woman against whom offence of rape or gang-rape was committed. Similarly, Section 8 should also be amended in a way that no woman should be punished unless she makes a true, voluntary confession of the commission of offence before a court competent to try the offence. Such confession should also be made thrice before such a court with reasonable intervals of time.
It should also provide that no woman will be arrested, prosecuted or punished for becoming pregnant against her will, no matter whether the offender responsible for such pregnancy is traceable or not, he suggested.
He also suggested amendments in Sections 9, 11, 12 and 17 of the Hudood Ordinance.
Referring to the Nazia case, Additional Advocate General Punjab Khadim Hussain Qaiser told the court that a first information report (FIR) earlier registered on the complaint of the girl had been amended and a separate case had been booked against the culprit at the Okara.
However, he himself was of the view that there was no need of a new case when already a case had been registered at the Police Station Sattu Qatla (Lahore) on June 23, 2005 under Section 11 of the Hudood Ordinance. After the recovery of the abductee, the case should proceed on the basis of the case that had been registered earlier, he said.
However, the court allowed the state to continue in whichever manner it deemed fit under the law. The court was also told that the physical remand of Zahoor Ahmed and his wife had been taken and they were being investigated.
On Tuesday, the Supreme Court again admonished the police officers concerned for poor handling of the case and directed them not to assign field jobs to the Superintendent Police (SP) Investigation Lahore Ali Arsalan and former SP Lahore Dr Inam and complete inquiry into the matter within a week.
At the last hearing the apex court had ordered to send the two police officers back to the federal government while the provincial chief secretary and the inspector general were asked to take proper steps in this regard.
So far, except writing a letter to the secretary establishment by the advocate general Punjab informing him about court orders, no step has been taken, the bench noted and ordered the chief secretary to pursue the matter.
