May issue 2002
In a cramped, airless cell, Zafran Bibi, 28, sits listlessly in semi-darkness with her seven-month-old baby daughter next to her. A fan slowly churns high above her head, barely making any difference to the stifling heat. This is the ‘condemned prisoners ward’ in Kohat jail, NWFP, and Zafran Bibi has been sentenced to death by stoning for committing adultery.
She may well have already been put to death, considering that the conditions she is forced to live in have deprived her of every shred of human dignity. The cell has no lavatory and an overpowering stench hangs in the air. A tiny window at one end of the room is opened for a mere half-hour a day. She is given food of even lower quality than that served to the regular inmates. As is the practice with condemned prisoners, she is not allowed to wear an izarband, lest she decide to hang herself with it. Says human rights lawyer, Ansar Burney: “The ward is a man-made version of hell.” There is in our society however, no shortage of humans playing god.
Zafran Bibi was married 13 years ago to Naimat Khan of Kari Sher Khan village in Kohat, two kilometres away from her own village of Chorlaki. About a decade ago, her husband was convicted of murder and awarded 25-years imprisonment in Haripur jail. Zafran Bibi continued to live with her in-laws. According to her, she was harassed on numerous occasions by her husband’s brother, Jamal Khan. With nowhere else to turn, she complained about his behaviour to her mother-in-law Zar Bibi, who instead laid the blame squarely on the young woman’s shoulders and ordered Zafran to mend her ways. A few days later, the harassment turned into violence when Zafran Bibi was raped by Jamal Khan. Zafran now demanded that something be done, otherwise she would seek help elsewhere. Her father-in-law intervened at this point and assured her of his support. The matter was once again brushed under the carpet, arising only when it was suspected that Zafran had become pregnant.
Meanwhile, Zafran Bibi’s sister-in-law, her husband’s sister, had received a proposal from a man named Akmal Khan some time back. According to reports, there were differences between the two families and the proposal was refused. These differences had since developed into personal enmity. When Zafran Bibi’s pregnancy came to light, her in-laws allegedly saw the opportunity to kill two birds with one stone: implicate Akmal Khan in a case of adultery with Zafran Bibi, which would get their son off scot free and Akmal Khan thrown into jail. Their daughter-in-law Zafran Bibi’s life, was obviously of no account.
Oblivious to the scheming going on behind the scenes, Zafran Bibi, accompanied by her father-in-law, Zabita Khan, went to the police station to file an First Information Report. According to records, FIR No 85 was registered on March 26, 2001, at 8: 35 a.m. by Zabita Khan, Zafran’s father-in-law, to which Zafran had affixed her thumb impression. The FIR states that about 11 to 12 days back, when Zafran Bibi was cutting grass on a hill known as Khulgai of Moza Kerri Sheikhan district, a short distance from her house when Akmal Khan grabbed hold of her and raped her. After the registration of the FIR, a medical examination of the victim was carried out at the ‘Women Hospital Singarh’ by a lady doctor named Robina Yasmin, who recorded Zafran Bibi to be at least seven to eight weeks pregnant. The police then arrested both Zafran Bibi and Akmal Khan for adultery on the grounds that if she had indeed been raped as she said some 12 days ago, her approximately two-month pregnancy could only be explained by the commission of zina (adultery) rather than zina-bil-jabr (rape).
Zafran Bibi, in her statement in court under oath under section 340 CrPc, said it was her brother-in-law, Jamal Khan who had raped her and not Akmal Khan. Zafran denied that she had ever accused him of the crime. For his part, Akmal Khan repeatedly denied having anything to do with Zafran and pleaded not guilty, accusing Zabita Khan of trying to frame him. While he was acquitted, Zafran Bibi was even denied bail.
The Additional Sessions Judge at the time was Yaqoob Khan Khattak. During the course of the trial, he was replaced by Anwar Ali Khan. Meanwhile, Zafran Bibi’s lawyer, Sher Haider Khan, instead of defending his client, portrayed her in court as a woman of low character involved in a sexual relationship with Akmal Khan, who was now trying to implicate her innocent brother-in-law Jamal Khan. Zafran Bibi therefore requested a change in her lawyer, suspecting that Haider Khan was in collusion with her in-laws. When another lawyer took up her case, Zafran again repeated her earlier statement that she was not guilty of adultery and had been raped by Jamal Khan. However, at no point was Jamal Khan produced in court for questioning.
On April 17, 2002, Additional Sessions Judge Anwer Ali Khan pronounced her guilty as charged, sentencing her to death by stoning at a public place “subject to confirmation of this judgement by Federal Shariat Court of Pakistan.”
In the nine-page judgement, he says that Zafran Bibi’s two statements alleging zina “coupled with the presence of an illegitimate female child, amounts to confession of offence as envisaged by section 8 of the offence of Zina (Enforcement of Hudood) Ordinance 1979.”
The conviction provoked expressions of outrage from several lawyers and human rights activists, claiming that Zafran Bibi has not only been wrongly convicted but that her conviction does not meet the demands of justice. Proof of rape or adultery liable to hadd punishment can, as stated in the afore mentioned section 8, be in either of two forms. One is a confession of the offence by the accused before a court of competent jurisdiction on this basis. However, to take Zafran Bibi’s statements — that had in any case alleged zina-bil-jabr rather than confessing to zina — and the existence of her illegitimate baby as proof that “amounts to a confession” is clearly an extension of the law.
“Either by adultery or by rape, this woman is now the mother of a child. The courts have acquitted the accused Akmal Khan and have not even tried the man Zafran claims is responsible, Jamal Khan,” said Ansar Burney, who has appealed to various quarters — including the president and the Federal Shariat court — to prevent this cruel punishment from being carried out.
Others have also voiced their criticism of the verdict. Chief Executive of Aurat Foundation, Rakhshanda Naz said at a news conference that the court heard the case very briefly. “The accused never confessed to the crime nor were there four eye-witnesses (tazkia-al-shahood) produced in the court and in her statements Zafran clearly stated that she was raped.” Besides Ansar Burney, two other prominent lawyers, Barrister Masoud Kausar and Zafrullah, have filed an appeal in the Federal Shariat Court on Zafran Bibi’s behalf. The Federal Shariat Court expressed their acceptance of Ansar Burney’s appeal in a letter dated April 27, stating that “subsection (3) of section 5 of the offence of zina (Enforcement of Hudood) ordinance interalia provides that no punishment shall be executed until it has been confirmed by the court to which an appeal from the order of conviction lies.”
A new twist was added to the story when Zafran’s husband, Naimat Khan, upon his release from Haripur Jail on account of good conduct told Ansar Burney Trust representative Jan Afzal, that he is the father of Zafran’s child. Naimat Khan explained that while behind bars, he had, as a model prisoner been made a ‘mushaqqati ‘ (a prisoner who, while serving time, is assigned work outside the jail premises — for instance, at the homes of higher security personnel). Almost two years ago, he said that he was working at the superintendent’s house when his wife paid him a visit and they shared intimate moments together, which probably resulted in Zafran’s pregnancy.
Aside from the conviction, tragedy seems to be stalking the couple. Naimat Khan and Zafran Bibi had three children besides the infant daughter. The eldest, a 12-year-old son, recently died, reportedly from illness brought on by his distress over the news that his mother had been given a death sentence.
Although recent developments may well lead to Zafran Bibi’s acquittal by the appellate court, the case once again illustrates how the Zina Ordinance can be used by mysogynistic judges to punish women, while the male accused get the benefit of doubt. Although so far no punishment of stoning to death has yet been upheld by the Federal Shariat Appellate court, the very existence of the Hudood laws renders women vulnerable to victimisation in a country where women are traditionally regarded as repositories of family honour.