FSC sets guideline for trial courts: Misuse of Zina Ordinance
ISLAMABAD, February 01 2006: In zina cases, delay in lodging of FIR does not necessarily mean that the complaint was false or the complainant was a consenting party, said a Federal Shariat Court (FSC) judgment in a zina case.
Hesitation in reporting such cases is quite natural because even in modern societies where standard of education is higher and women are conscious of their rights, delay in reporting rape cases is a common phenomenon, rather a large number of cases remain unreported. In such cases trial courts and other authorities should not immediately charge a female complainant of zina-bil-jabr (rape) with any offence, said the judgment.
The historic judgment is likely to check misuse of Offence of Zina (Enforcement of Hudood) Ordinance 1979 by investigating agency.
“When an accused is charged by a female for zina-bil-jabr then, notwithstanding delay, pregnancy or any other reason, the female accused should not be, in the first instance, charged under section 10(2) of the ordinance for zina-bil-raza (sexual intercourse by consent) unless material/evidence is available on record,” the FSC Chief Justice Chaudhry Ejaz Yousaf observed in the judgment announced on Tuesday.
When a complainant woman is also charged with zina-bil-raza, the best evidence against the male accused is lost, because zina occurrence hardly takes place in presence of others. In the absence of victim’s statement, trial court finds it extremely difficult, if not impossible, to convict male accused.
The court held that in such cases male accused should be charged accordingly by affording opportunity to the complainant to substantiate her allegation.
The suggested mode of trial, the judgment said, would not only eliminate chances of wrong prosecution of the prosecutrix but would also enable her to come in the witness box and furnish evidence, to be used appropriately.
If the prosecutrix/ complainant is able to prove her case against the accused, then the matter having reached its logical conclusion would end then and there. But if the female herself is found involved in the offence then the male accused could be tried under section 10(2) of the ordinance for committing zina-bil-raza while the female, if required evidence is available, could be prosecuted separately.
The judgment came on petition of a woman who, in her complaint lodged with PS Khan Pur, Haripur district (NWFP) on June 4, 1997, had alleged that she was raped on gun point by one Jamroze, her neighbour after scaling wall of her house when she was alone.
Jamroze also threatened her of dire consequences in case she disclosed the incident. However, when she got pregnant after a few months, she disclosed the entire episode to her father who took her to the police station.
The police registered a case under zina ordinance against accused Jamroze but in the challan the complainant was also shown co-accused and both of them were charged under section 10(2) of the ordinance for committing zina-bil-raza.
Additional Sessions Judge Haripur convicted both of them and sentenced the female accused to five years RI with a fine of Rs10,000. Jamroze however was sentenced to ten years RI with a fine of Rs20,000.
The FSC held that when a female, particularly an unmarried girl, opts to report a case of zina, she in fact takes a great risk because due to loss of chastity, she is likely to carry social stigma attached to a victim of zina for rest of her life and might not be able to have a suitable match.
The injury caused to a victim of zina is not simply physical but is an opprobrious attack on her dignity and integrity as well. That is why most of the victims prefer to bear personal insult and trauma of rape instead of reporting the matter, the court observed.
Against so many odds, if she still chooses to come forward and complain about the incident, then her statement should be given due importance and must not be viewed with suspicion at the very outset, the order said.
When a prosecutrix is also made accused in the same case, the best evidence against male accused is lost, because zina occurrence hardly takes place in view of others. In the absence of victim’s statement, the trial court finds it extremely difficult, if not impossible, to convict male accused.
Therefore it is necessary for the trial courts to be alive of the situation and in cases registered under the Hudood Ordinance, instead of charging the victim along with the male accused, should proceed with the case as per the allegations.
It has been found in some cases, the judgment said, that the victim was arrayed as co-accused by police with malafide intention to oblige and benefit male accused. Thus they killed two birds with one stone because female victim, to save her skin, normally denies or disowns zina when charged of the offence. Or if she is courageous enough to stick to the charges then her statement being the statement of co-accused becomes inadmissible against the male accused.
It adds insult to the injury when the male accused due to “lack of evidence” or “for want of proof” is acquitted and the complainant/female accused on her own admission or on the basis of circumstantial or medical evidence especially in case of pregnancy is convicted.