Sharia rape law

Great Debates
61

The Ordinance is not being used by some in its unmodified form. Read the whole bloody report again. There are two cases. In one it is stated that the Appellants were sentenced to 10 years RI. Well if they were sentenced to 10 years, then it cannot be the Ordinance, since the Ordinance envisages as you said, death by stoning. Clearly they have been convicted under some other law (most likely Section 375 PPC which sets the max prison term at 14 years for rape and 2-10 years for other crimes). In other words, the news report is wrong, dead wrong. I’ll check the Courts Cause List for the week after Eid, but I am pretty sure that it is not as reported.

Again, read the what you are linking, and for good measure learn what you talk about. A “Bill” as stated in the news-report, is a proposed law placed before Parliament. An “Act” is a law passed by the same body. In the news-report it simply states that the Government was in discussion with religious parties over the bill. As it turned out these discussions failed and the Government simply passed the Bill as originally placed. So in future, update!

Yes. But in this case what is ought is also reality.

Benezir Bhutto’s book Daughter of the East was and is good fiction. She never wrote anything positive about Zia if she could help it. Cannot blame her Not a law report, a political memoire from a politician. It is indeed a very famous case, so famous that I have actually cited the case and its citation above, Safia Bibi v The State, PLD 1985 FSC 120 which you would have known had you actually bothered to read what I had written. In this case the Appellant never made any claim that her employer had raped her at all until well after the Trial. The facts of the case were that she became pregnant, it became obvious after a while, she was sent for an examination and pregancy was confirmed. because she would not confirm that why she was pregnant (and in the trial it came out she did not know about sex and its results) she was accused of adultery and charged and convicted. She only raised the plea of rape during her Appeal and anyway it was a case theory raised by her counsel. A horrid state of affairs and she was unfairly and wrongly charged and convicted. But was it an example of a woman claiming rape and being convicted of Adultery? Er no!

I never said any such thing. I said there has not been any case of a rape charge being converted into a charge of adultery. Stop misrepresenting what I said.

I would like to see these “reported cases”. With ideally proper citations and excerpts from the actual judgements not bare assertions by dubious sources. If you can show them to me, then I will gladly change my view. But until and unless I see them, I will stick by what I have said, there is no case on record where a charge of rape was converted to a charge of adultery. It was and is infact legally impossible to do so. As well as practically since a trial is of the accused not the victim.

62

Less snark, more cogent comments, perhaps.

So the largest and oldest English language Pakistani paper has everything wrong from what everybody from the federal court said to what the appellants have argued. So pretty much they just made everything up.
Or, you’re wrong.

More empty snark? Pity. The rape laws (the ones we’ve been discussing) were in effect as the proposal aimed at reforming them. If they weren’t in effect, they wouldn’t have had to be reformed. This is rather basic. Likewise, the nonsense about “bills” and “acts” has nothing to do with anything.

Again, we have actual reality where it’s been reported, versus someone saying it shouldn’t happen.
Much like you claimed that the death penalty is only by hanging, even in the midst of commenting on sentences that called for death by stoning and the 2006 amendment that calls for death by stoning.

Of course, I responded to what you wrote, but snark is easier, I guess. Nice ad hom fallacy as well, as if Bhutto is the only person who pointed out the facts of the case, anyways.
As for there being no claim of rape until “well after the trial”, the allegation was made first, by her father, who reported that she had been raped and had gotten pregnant. It wasn’t until after that that she and her rapist were arrested and tried. Her co-accused (the rapist) was acquitted of rape since she couldn’t prove it (ya know, the charge that brought the case to trial) but she was convicted of zina due to her having gotten pregnant. That is, due to the original charge that she’d been raped and a pregnancy had resulted from it.

[

Ahhh, yes, dubious. Asma Jahangir and Hina Jilani, also dubious. Not like that actual research.

Except of course the already cited case of Safia Bibi. Which was cited and an accurate description given. As well as the case of Jehan Mina, who also filed a report of rape and had that converted to a charge of zina.

Of course, we can offer yet another example of something that’s “impossible”.

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](http://www.nytimes.com/2002/05/17/world/in-pakistan-rape-victims-are-the-criminals.html?pagewanted=all)

[

](http://www.time.com/time/magazine/article/0,9171,238673,00.html)

Convinced yet, by the way, that your claim was false when you said “In any case death sentence in Pakistan is vide hanging not stoning”?

63

Of course I could be wrong. But then the report and its summery of facts does not tend to support the claims made therein. Like I said, will look at the record next week. I actually have a case listed as well.

As stated they had been declared unconstitutional many eons ago. Yes they were still on the statute books at the time as are several other laws which were also declared unconstitutional at various times; yet they are all the same, they have no legal effect. A law that is declared unconstitutional cannot be applied no matter how many google book summaries are shown.

Again, a secondary source. Not the actual judgement. You have the citation. Look it up.
Finally there seems to be some confusion in your mind with respect to how criminal procedure actually operates and seem to have mixed up multiple stages with each other.

  1. The first is obviously a complaint which is filed.

  2. The next step is when the Investigation is launched and a First Investigation Report filed on the basis of the complaint.

  3. After that you have the second report filed by an Investigating Officer (“IO”). It is on the basis of this report that a case is registered and it is at this point criminal proceedings begin and arrests may be made.

  4. The next step is the charge which is read out in court and the Accused asked to give a plea. It is at this point that the actual trial commences.

  5. Prosecution Evidence

  6. Defence Evidence

  7. Final Arguments

  8. Verdict.
    It is important to note here that the Accused does not so become the accused until step three. Before this step the investigation is ongoing and yes it is possible for the police to take both to court on various counts. This in fact happens frequently and not only in rape cases. For example a complaint by one party against another of causing hurt arising out of a fight can and does see police officer or the Prosecutor deciding file a case against both if he is of the opinion that both have broken laws.

However once a Charge is framed then the impossibility that I mentioned earlier attracts. Once the party has been charged and plea entered then the trial commences and is about the accused. You seem to have equated the word “charge” with all aspects of a criminal proceeding which is not the case. In the instances you mentioned the parties in fact did have cases registered against them earlier and were charged.

So to reinterate, it is impossible to convert a charge of rape into one of adultery just as it is impossible to convert the complainant into an accused.

64

No and if I say so, I should lose my licence. The law governing death sentence states clearly that the mode of execution is hanging while the contrary provision that you have put forward has been declared unconstitutional.

And in each of the case that you mentioned it would be pertinent to note that the Appellant were released on Appeal. So even if a judge in a drunken stupor decided to sentence someone to death by stoning, they cannot do it and it would be overturned on appeal.

The seminal case on this is of course Crown v Habibullah PLD 1952 Lah 587 which states that “*Only mode of executing sentence of death is that of hanging by neck till convict is dead-Sessions Judge is bound to issue warrant in prescribed form given in Fifth Schedule at No. XXXV after confirmation of sentence by High Court.”
*

This was most recently confirmed in Secretary N.W.F.P v Muhammad Ayaz Khan PLD 1996 Pesh 76 in which it was stated that "Black warrant issued earlier by Trial Court for the execution of death sentence under the ordinary law was, therefore, a proper lawful warrant under S.368 read with 5.381, Cr.P.C.—Subsequent black warrant issued by Trial Court for the execution of death sentence of the accused by way of “Qisas” was nothing but a patent error on the face of the record and the same was consequently declared to be unlawful and of no legal effect". In other words death sentence; hang the bastard.

In Muhammad Ayaz Khan above, the Trial Court after the appeals process was exhausted had issued a warrant of execution (a “black warrant”) which was then sent to the president of pakistan for confimation. Later a second warrant was issued which allowed the condenmed to be released into the hands of the victims family for execution, this is what led to the case and it was this which was declared unlawful and illegal.

65

So a court hands down a verdict. They sentence the defendant. That sentence is death. That death sentence is to be carried out by stoning.
But it’s not a death sentence by stoning.

And yet judges keep trying to apply it. And the legislators pass laws saying that people should be stoned to death as a penalty. It’s unconvincing to argue that it’s the law of the land, and judges dole out stoning as a death penalty, but so far the cases have failed on appeal. Lucky, that.

Okay, rather than ad hom, which facts do you dispute and what cites do you have to offer that let you do so? Do you dispute that:
-Zafran Bibi went to the police and claimed she’d been raped and the rapist got her pregnant?

  • As a result, she was convicted of adultery and the sentence was to be stoned to death?

Do you claim that it is not accurate that:
-A woman who has been raped can file a report with the police and press charges for rape?
-A woman who has been raped and presses charges can, herself, be charged with a crime for having sex?
-A woman who has been raped and files a report with the police can be charged with a crime and almost certainly convicted if she’s unlucky enough to have been impregnated by her rapist?
-That her pregnancy-by-rape will condemn her, at ‘best’ to imprisonment and at worst to a death sentence that, one hopes, will be appealed?

More importantly, do you believe that the system is any less barbaric if a woman who is raped can be charged with a crime and go to prison if she happens to get knocked up? That it is in any way, shape or form ‘better’ that she won’t go to prison for ‘admitting’ that sex went on between her and her rapist, but being raped and impregnated is good for a prison term? That, more to the point, charging consenting adults with a crime for having sex is, itself, barbaric?

Sure, in response to her trying to get justice in response to a sexual assault a woman can be sent to prison, but technically it was just her reporting the rape and being pregnant that converted her assault into a crime on her part, but at least they didn’t start the trial with a formal allegation of rape and then switch it to zina? Instead they just took her pressing charges for being raped and then charged her with a crime punishable by jail, lashes, or a death sentence (constitutional or not).

66

The sentence is defective and illegal and liable to be vacated. And it will be vacated.

No judges don’t keep trying to apply it. You have listed about three or four cases over about 30 years. Last year alone there were something like half a million criminal cases which began in Pakistan. Granted this means all crimes not just rape. But and this is important. The vast vats majority of cases are decided perfectly properly. It is the exceptions which are appealed and the cases that you have cited are occurred in highly highly exceptional circumstances. The judges applied law incorrectly in the cases that you mentioned which is why they were overturned on appeal. Judges make errors of law all the time, judicial infallibility is a myth that is why you have appeals courts.

And it is not just in rape cases or criminal law that such things happen. Just a few days ago I had an application for freezing of assets of a Defendant in a Civil case turned down, the judge claimed that he had no power to do so at all, despite many many many Supreme Court Judgments to the contrary. Another case is where an application for arbitration was turned down and the judge failed to apply the statutory guidelines at all. Admittedly these are far smaller errors and more excusable. But the illustrate one salient point, judges are human and they do make mistakes.

As for the legislature, as stated the legislature did not pass any such law, it was an Ordinance passed by the executive pursuant to their constitutional power. In anycase it was in 1979 and declared unconstitutional in 1981. Again, not without precedent for laws to remain on the books for many years after being declared unconstitutional, for example several states in the US have or had till recently laws which laid the minimum age for voting to be 21, despite the passage of the 25th (?) Amendment.

In Zafran Bibi, her claims are what got her into trouble. Her husband had been in jail for about 10 years. She reported rape to the police and claimed that it happened about 10-11 days earlier. The police decided on a medical report. The medical report came back and declared interalia that she was pregnant about 7-8 weeks along, which contradicted her story. As a result of this she was also arrested and a cases registered against her as well. She was charged seperatly from the alleged rapist but as the cases arose out of the same facts they were clubbed together for trial. At trial she attempted to explain that she was pregnant due to having had sexual intercourse with her husband while visiting him in prison. The Warden of the jail testified that her claim was impossible; her husband did not enjoy and the prison did not give conjugal visit privileges to inmates.

When the time came for the verdict, the alleged rapists was properly in my view; acquitted. As the alleged rape had taken place nearly a fortnight before, there were no witnesses to the same, and due to delay the medical report was inconclusive, there was insufficient evidence to convict. In her case, as she was pregnant, and could not explain it she was convicted. Wrongly in my opinion. And then the Judge had his brain fart and sentence her to stoning. She appealed and the Appellate forum allowed her appeal as it held based on previous precedents that her conviction on the basis of pregnancy alone could not be maintained, and that stoning was in anyway unconstitutional. They did not revisits the issue of guilt.

(The above is taken from para 1 & 2 of the Appeal court judgement, as well the transcripts of th arguments of 5,6 June 2002 which I have with me.)

Well I would certainly hope that she or anyone else would appeal any death sentence.

Point wise reply

  1. A woman can file a report yes. She cannot press charges. That is the Courts sole prerogative after the Court is satisfied that there is a prima facie case to answer.

  2. At the time of the Zafran Bibi case she could possibly have a case registered against her. Again, it was the Courts prerogative to charge her. Since then the 2006 Act has introduced a procedural change, to commence investigation of a case of Adultery, the police need permission from a Court of Sessions, permission, which the experience of the last five years has shown is rarely if ever given.

  3. Her pregnancy by rape won’t condemn her to anything. The pregnancy and its probative value in a case will depend on the facts of each case. If its a rape case then as the Complainant it may be evidence of sexual activity between the parties. As she is not the accused in the rape case, the only thing the pregnancy will subject her to is the pregnancy symptoms themselves and possibly excuse her from testifying against her attacker in the last trimester. That is it.

A woman who has been raped cannot be charged with a crime relating to that transaction. End of discussion. The issue of Adultery being barbaric or consenting adults sexual intercourse is irrelevant to this discussion.

  1. Corporal Punishment was abolished in Pakistan by the Abolition of Whipping Act 1996.

  2. No. It was not her reporting that converted the “assualt into a crime on her part”. It was the result of the police investigation, in a case with very unusual facts.

67

I think I might be in love with you, FinnAgain

68

Shhhhh! That may be illegal under Pakistani Enlightened Nookie Jurisprudence.

No, actually it’s very close to the heart of the matter. You might find that women would be more willing to quickly report rapes if doing wouldn’t possibly land them in prison. And they might be less likely to lie about the circumstances of a pregnancy (once that rape victim is being charged with zina) if they weren’t at risk of going to prison for ‘improper’ sex. It’s quite germane to the subject. Additionally, any legal system that sends consenting adults to prison for sex cannot claim to have the sanction of moral force let alone justice.

I could ask how a sentence that you’re telling us does not exist can be defective and illegal and such. But I think that most people reading along are clear on the point that the death sentence is given for zina, semantic wordgaming to the contrary.

I could ask how something that keeps happening over a 30 year period doesn’t keep happening because its frequency isn’t high enough. But I’m pretty sure that most people reading along are clear on the fact that since judges continue to sentence people to death for stoning, that it does in fact keep happening.

Yes, you’ve stated lots of things.
Of course, I haven’t stated but I have cited the Protection of Women act, approved and enacted by the National Assembly in 2006, which calls for death by stoning and up to 100 lashes for zina.

I could ask how a law that calls for stoning and whipping for zina doesn’t actually do that and isn’t any such law. But I’m pretty sure that most people reading along can click on the link provided.

Yes, her claim that she was raped. And even if there wasn’t evidence to convict her rapist, she was then charged with a crime (not false reporting, but zina).

And I think that most people would hope that it’s not necessary to appeal a sentence of death for the crime of having had sex, but I haven’t studied the finer, and I’m sure quite-rational-once-you-get-to-know-them. points of Nookie Jurisprudence.

I could ask how a woman being sentenced to zina with the evidence against her being that she is pregnant and can not ‘properly’ explain it is not being condemned by her being pregnant. But I think most people reading along are clear on the point that a woman can be sent to prison for ‘improperly’ going about getting pregnant.

I could ask how you fit this in with the several examples of women being raped, reporting it to the police and then being charged with a crime related to that ‘transaction’. But I’m pretty sure that most people reading alone realize the sophistry inherent in claiming that a rape victim isn’t being charged with zina due to that ‘transaction’, but simply to the ‘improper sex’ that went on during it.

69

You have not even read the Act then. Where the hell does it call for death by stoning and 100 lashes.

70

You’re making this too easy, AK.

[

](Protection of Women (Criminal Laws Amendment) Act, 2006)

71

You really need to know what you are reading then FinnAgain.
The 2006 Act was an amending Act. It does not create new law as such, it amends and modify existing law by deleting certain provisions, modifying others and finally inserting new provisions as well. SO cherry picking phrases here and there without having even the foggiest clue as to what actually is being done is flawed at best, ignorant at worst.

The section that you cite amends Schedule II of the Criminal Procedure Code 1898, which relates to Bail and forum of prosecution. What it did was make Zina and the rest “bailable” meaning that Bail was available as of right and could not be denied under any circumstances. It does not “call for death by stoning”.

You may find Schedule II here at pg 197.

Note the following words which are appended before the schedule begins.

In other words what is written here is not the punishment and description of the offence but rather a reference to the section creating it.

72

So the act didn’t say anything about stoning or lashes, except where it did, but that doesn’t count because it was referencing another bit of law that you’ve said has nothing to do with anything, except when it’s used as the basis for trials and convictions. But the paper made everything up about that, anyways.

So we’ve gone from the act not calling for death by stoning or up to 100 lashes to, okay, it says that but because it’s amending a previous bit, it totally doesn’t count and no backsies either.
Evidently “zina” is a reference to the subject of “zina” but not a full definition or abstract of the definition and “stoning to death or up to 100 lashes” as punishment is a reference to the punishment and not a full definition or abstract of the full scope of punishment. Hardly surprising.

Except for that whole “death by stoning” part. And “the section creating it”… which called for death by stoning or whipping and was of course the 1979 ordinance. Odd of course, that it would have to be modified or even mentioned as it was roughly a quarter of a century (and 120 days) after that ordinance was instituted.

But there’s bail so punishing people for sex is quite civilized.

73

Please refrain from misrepresenting what I have said FinnAgain.

You have completely, purposely and fraudulently misrepresented what I have said. I will repeat myself

There was an Ordinance of 1979

Many of whose provisions were declared unconstitutional and thus of no effect. The Ordinance lapsed after 120 days like all Ordinances, unless re promulgated. As the case was it continued to be re promulgated till 1984 when it was made permanent. No action here incidentally affected the fact that provisions had been held to be unconstitutional by the Federal Court. The provisions which had been declared unconstitutional were interalia the punishments envisaged therein. The Ordinance is still on the books but is ineffective to the extent that it has been declared unconstitutional.

There is a separate law called the Criminal Procedure Code 1898. Schedule II of that law identifies whether an offence is bailable or not and secondly whether the fora it is to be instituted into. The Schedule has seven columns and the entries in the second and seventh columns of this schedule headed respectively “Offence” and “Punishment” under the PPC are not intended as definitions of the offences and punishments described in the several corresponding sections of PPC or even abstracts of those sections, but merely as references to the subject of the sections, the number of which is given in the first column.

This particular schedule of the law has been amended many times and was amended when the Ordinance of 1979 was created to add the new offence.

In 2006 a new law amended the particular part of the schedule as stated above.

We have not gone anywhere. As stated the 2006 Act is an amending act. It amended previous laws and stated how the new provisions should be. It does not “call” for anything.

Fortunately or unfortunately we don’t need a certificate from you to decide who and who is not civilised.

74

That’s okay, I’m sure that by imprisoning innocent people for the crime of sex and raped women for the crime of getting knocked up (but not reporting it ‘soon enough’) is the height of civilized jurisprudence.
In fact, I bet you’re right and jailing people for the dreadful crime of sex, based on the injunctions of a religious text that’s about a millennium and a half old, is the very definition of a non-barbarous conduct.

Wiccans just better watch their asses for when the US gets civilized enough to enforce Exodus 22:18.

Mmmm hmmmmm.

It’s a pity that your quote is misrepresenting your position and saying that it has zero, zilch, nada legal effect. And that it’s already been cited that the 1979 Ordinance was applied as the law in several recent cases (and you claimed that the paper that reported that, which claimed to have spoken to the relevant parties, somehow either invented the comments or was somehow innocently ‘false’ in all respects.)

Also a pity that people are still being sentenced to death by stoning for ‘improper’ sexual conduct. What with that not being a sentence, and all.

75

Again you seem to have no better thing to do than misrepresent what I said. Bugger the rules

GO FUCK YOURSELF.

76

AK84, this is a formal warning for personal insults.