Over a decade ago there was no law available for declaring as penal offence the practice of swara, a centuries old custom which permits handing over of girl to rival groups in marriage for settling feuds. Several cases came to limelight at that time but due to non-presence of law the perpetrators of such inhuman acts continued to commit it with impunity.

A lot of sanctity was attached to this practice in parts of Khyber Pakhtunkhwa as well as tribal areas. The informal justice system in vogue in these areas always played important role in giving protection to such like practices. The jirga system, which is an integral part of the informal justice system, considered the practice of swara helpful in ending longstanding disputes and even the minor ages of the children involved in this practice were often ignored.

After drawing a lot of criticism and continuous campaigning by civil society groups and individuals the then government in 2004 tabled a bill for checking the practices of honour-related violence and swara. The Parliament passed the said bill whereby several amendments were made in Pakistan Penal Code and Code of Criminal Procedure.

Through that Criminal Law (Amendment) Act, 2004, which appeared in the official gazette on Jan 11, 2005, the practice of giving females in badal-i-sulah (as exchange of peace) was declared a penal offence. Section 310A was inserted in the PPC and this custom was declared an offence punishable up to ten years but not less then three years imprisonment.

The said section 310A of PPC states: “Whoever gives a female in marriage or otherwise in badal-i-sulah shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than three years.” The offence was declared cognizable and the police was empowered to arrest a person involved in such like crimes without arrest warrants.

The civil society campaigners pointed out several flaw in the said section. One of the major flaws in the section was that the practice of handing over girls in marriages called with different names like swara and vani in different areas was not clearly defined.

A much publicised law, The Prevention of anti-Women Practices (Criminal Law Amendment) Act 2011, was passed by the Parliament and the president assented to it on Dec 22, 2011. The said law also includes a provision for amending Section 310-A of PPC and certain provisions of CrPC.

The new section 310-A of PPC states: “whoever gives a female in marriage or otherwise compels her to enter into marriage, as badal-i-sulah, vani or swara or any other custom or practice under any name, in consideration of settling a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.”

While there is only a little improvement in the law through this new section 310A PPC, the Parliament had extended support to the accused persons in such cases by making this crime non-cognizable and now the police officers are not empowered to arrest a person without permission of the court.

A recent incident that occurred in Upper Dir showed how the law proved helpful to accused persons. A jirga in Hattan Dara area in the jurisdiction of Dir police station decided to marry a minor girl of four to a two-and-a-half year old boy so as to settle a dispute between the two families. An uncle of the girl, Bacha Gul, lodged a complaint with the police alleging that the rival group had now been forcing them to arrange marriage of the girl with the said boy.

Following registration of the case under section 310-A of PPC the police arrested eight members of the said jirga on March 26. Interesting situation emerged when the police sent the case file to the concerned district public prosecutor for legal opinion. An official at the said police station, Ziaur Rehman Khan, informed that the district prosecutor told them about the 2011 law and that they came to know that under the existing provision they had no powers to arrest the suspects.

He said that they were left with no other option but to file a complaint with the concerned court under the CrPC. He added that they had also to show the arrest of the said eight persons under section 107 of the CrPC dealing with maintaining peace in an area instead of section 310-A PPC. The suspects were subsequently bailed out.

In past the Peshawar High Court had also directed the federal and Khyber Pakhtunkhwa governments to enact a special law for dealing with such customary practices. The then chief justice, Dost Mohammad Khan (now a judge of the Supreme Court), had issued the directives in March 2012 while hearing an application of brother of a minor girl, who alleged that his father and brother were killed by their rivals when they had declined to give his sister in swara to them for settling a dispute. However, the directives of the high court fell on deaf ears.

“In its present form the law helps the suspect as the offence is non-cognizable,” said Shahnawaz Khan, an advocate of the Supreme Court. He pointed out that previously the maximum sentence for committing this offence was up to 10 years, but the same had now been reduced to seven years.

“By reducing the maximum prison term the benefit now goes to the suspect as this offence is no longer in the prohibitory clause under section 497 of the CrPC,” he said adding that the offences punishable up to 10 years imprisonment was in the prohibitory clause wherein bail could be granted under exceptional circumstances. He added that if the government feared that the law might be misused by leveling false allegations against rivals, it should introduce a section for dealing with wrong complaints by any person under the law.

Published in Dawn, March 31st, 2015

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