How Is Rape Categorized Under the Sexual Offences Laws of Islam? How Successful Is Pakistan’s Legal System in Curbing the Offence of Rape?

Introduction

Rape is a crime committed not only against women but the entire society. 1 It is a collective duty of everyone to work towards changing the societal norms and mindset regarding rape. 2 In Pakistan rape remains the most heinous and hideous act of abuse exercised upon women. 3 An insufficient number of cases are reported in Pakistan, and an extremely modest number of those cases are legally represented in the court. 4 According to statistics from various agencies, “11 new cases are reported per day in Pakistan with over 22,000 cases reported to police in the last six years and only 77 accused rapists had been convicted.” 5 Moreover, it has been reported by the authorities that “only fifty percent of the cases are reported and the original count of rape cases can be totaled up to 60,000 6 ”.

The expanded pace of rape cases in Pakistan spurred me to compose my dissertation on topic, which includes the most recent and unfortunate, motorway gang rape case. This rape case not only caught the attention of the media across the country but also universally 7. In this case, a woman was subjected to rape by multiple men in the presence of her underage children at Lahore to Gujranwala (M-11) Motorway, where police patrolling, service area and petrol pumps were reported to be unavailable 8. In the first chapter of my dissertation, I will discuss the position of rape under Sharia law by defining rape and categorizing it under Sharia law by discussing Zina in detail and quoting Quranic references supporting its importance and explain how Rape was derived from the concept of Zina, as the Quran is silent about the concept of Rape. Later on, the concept of Ikrah (duress) will be discussed in detail. Moreover, I will explore different schools of thought on rape, how the definition of rape under Sharia Law is derived from these schools and the difference between Rape and Zina. Furthermore, I will examine how the punishment of Zina-bil-Jabr is derived from different Hadd Penalties.

Chapter No. 1: Rape and Islamic Law

Zina-bil-Jabr is identified in the Hudood Ordinance 1979 as follows: “A person is said to commit Rape if he or she is involved in illegal sexual intercourse against the will of the victim to whom he or she is not legally married, against the will of the victim, without the consent of the victim, with the consent of the victim fearing severe injury or death and/or if the victim consents under the belief that the victim genuinely believed that the culprit is another person 9.” This means that a person is liable to punishment for rape if the victim has not consented freely, was coerced to have sexual intercourse fearing severe injury or death, or the victim consented believing the offender was someone else i.e. her husband. In the Islamic context, rape is usually associated with Zina (Unlawful sexual Intercourse), as both crimes involve sexual intercourse. Modern Islamic courts often treat rape and zina as similar offences and the victim will be liable of accusations of qadhf (false accusation of adultery) upon failing to provide four eyewitnesses 10. The reason why Rape and Zina are usually associated together will be discussed in detail below by thoroughly examining the offences of zina and rape.

1.1: MEANING OF ZINA

Zina is an Islamic Arabic legal term used to define “unlawful sexual intercourse” between two sane, consenting parties of the opposite gender 11. The Quran admonishes Muslim believers against unlawful sexual intercourse, urging believers to maintain chastity in the following verse, “And those who protect their private parts except from their spouses or those whom their right hand possess, such are without blame. And whosoever desires beyond that, such are transgressors 12. Quran also distinguishes between lawful and unlawful sexual relations, clarifying that only those who engage in intercourse within the bounds of marriage are without blame: “And those who protect their private parts except from their spouses or those whom their right hand possess, such are without blame. And whosoever desires beyond that, such are transgressors 13.” However, these verses from the Holy Quran clarify that sexual relations between two sane consenting parties of the opposite gender are only legally permitted when both are lawfully married. Initially, the punishment of Zina was lifelong detention. Later, this punishment was exceeded by a subsequent revelation of the Quran in Surah 24, Verse 2, where the penalty of flogging was laid out for both, men and women found guilty of zina 14.

1.2: EVIDENTIARY REQUIREMENTS OF ZINA

The Quran sets out the punishment of Zina in the following verse: “The adulteress and adulterer should be flogged a hundred lashes each, and no pity for them should deter you from the law of God, if you believe in God and the last day; and the punishment should be witnessed by a body of believers 15.” This means that the punishment of Zina under Islamic law for both man and woman is, getting flogged with a hundred lashes each. Given the strict punishment of Zina, it is pertinent to note that there are very strict evidentiary requirements to prove the offence of Zina which must be satisfied. This is illustrated in the following verse: “Those who defame chaste women and do not bring four witnesses should be punished with eighty lashes and their testimony should not be accepted afterwards, for they are profligates 16.” This means that the four eyewitnesses must be presented in the court while charging someone for the offence of Zina or there must be a confession that should be repeated four times. Moreover, it is essential that those four eyewitnesses must be regarded as truthful individuals who do not indulge in major sins, as determined by the court 17. Unfortunately, there are no evidentiary requirements of Zina-bil-Jabr (rape) enlisted in the Quran, as the Quran is notably silent on the concept of Zina-bil-Jabr 18.

1.3: RAPE UNDER ISLAMIC LAW:

The core of my thesis examines the crime of Zina-bil-Jabr (rape) as defined and rendered illegal under the Islamic Sharia Law as, discussed below. Zina-bil-Jabr, also known as “al-watt’ bil-ikrah”, is recognized and punished by Islamic law as forced penetration without consent 19. The concept of rape is established by the doctrine of analogy or other forms of legal analysis 20. Therefore, the concept of Rape or Zina-bil-Jabr has been obtained from the Hadith, Sunnah and other forms of legal analysis i.e. Ijma (consensus) Qiyas (analogical reasoning). One must keep in mind the definition of Zina, in legal terms, while defining Rape as most of the Islamic Scholars define rape as committing Zina by coercion 21. To further clarify the definition of rape in terms of Sharia Law we consider the perspectives of different schools of thought:
- According to the Hanafi School of thought, Illegal sexual intercourse comes under rape when the consent of the victim is not involved neither the actions are reciprocated by the victim.
- Maliki’s and Hanbali Schools of thought defines that any sort of unlawful sexual intercourse where consent is not given falls under the rape i.e. coercive Illicit sexual act performed by a man over a woman in absence of consent and free will, as well as to whom he is not legally married 22.

i. Ikrah (Coercion)

It is pertinent to note that the word ‘forced’ used in the definition above plays a vital role while analyzing the elements of rape under Islamic law. Forcefully indulging or coercing someone into sexual intercourse is known as Ikrah under Sharia Law. This means to be involved in coerced illicit sexual intercourse with someone without the consent, which is injurious or harmful to the victim 23. The following Hadith addresses Ikrah/coercion with the words: "Allah has pardoned, for me, my Ummah: (Their) mistakes, (their) forgetfulness, and what they have done under duress 24." The conditions of Ikrah apply only where the victim is coerced to have sexual intercourse fearing death or severe injury; secondly, the threat must be immediate – meaning that the victim actually did believe that the oppressor will kill the victim or cause severe injury 25. This means that the situation of Ikrah exists where the victim believes that the threat will carry out. However, if the victim is threatened with something that is impossible to carry out by the oppressor, conditions of Ikrah will not be applied 26. If the situation of Ikrah exists and is proved, then the victim will not be liable for punishment. However, if the situation under which one is coerced was avoidable i.e. the threat of injury was not severe or serious then one will be liable for punishment and will not be treated under the conditions of Ikrah 27.

ii. Punishment of a Convicted Rapist under Sharia

Law: The penalty of a convicted rapist in Sharia Law is derived from the Hadd (punishment) of Zina and the Hadd of Hirabah as the Quran is particularly silent upon the punishment of rape, as discussed in detail above.

iii. Hadd of Zina as a Penalty of Rape

The punishment of rape under Sharia law is similar to the Hadd (Punishment) of Zina i.e. the capital punishment of stoning to death for anyone legally married (muhsan) while whipping of 100 lashes and banishment for the offenders of the crime who are not legally married(ghair muhsan) 28.

iv. Hirabah as a Penalty for Rape

The present-day approach penalizes rape under the concept of Hirabah (forcible or violent taking).Rapists are categorized as individuals who are dangerous towards the law and order as well as the safety of the community 29. The following verse of the Holy Quran explains the punishment as: “The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off on the opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter 30.” Under the Maliki school of thought, a violent forceful act refers to ‘Hirabah’ even if it does not concern theft or robbery 31. Whereas, some scholars believes that rape is a more serious offence than theft or robbery 32. Rape should be categorized under Hirabah and not under Ta’zir is argued in the following words: “This cursory review of traditional Islamic Shari'ah shows that the crime of rape is not a subcategory of zina, but rather a separate crime of violence under Hirabah. This classification is logical because the taking is of the victims' property (the rape victim's sexual autonomy) by force. In Islam, sexual autonomy and pleasure is a fundamental right of both women and men 33 ”. Crimes classified under Hirabah does not require testimony of four eyewitnesses but rather requires supporting evidence while prosecuting a rape case under hirabah; the accused, the rapist, the physical actions and intend will be kept in mind rather than just keeping focus on the fact if the victim had consented or not 34 However, it is pertinent to note that not all the crimes can fall under Hirabah as the community will refer every mistake or wrongdoing as Hirabah, not only this but it will give an opportunity to the corrupt for penalizing the individuals who express their views and personal rights 35. Moreover, it should be notable that the crimes classified under Hirabah incorporate the punishment in accordance with the intensity of the offence 36. For example, for robbery, the robbers hand must be cut off or where homicide in involved, the mastermind behind the homicide should be killed 37. Religious scholars clearly explain that Hirabah is applied where an offender violates an individual’s right to life or dignity and forcefully takes away valuables 38.

i. Ta’zir as a Penalty of Rape

The present-day researchers categorize rape under the bracket of ta’zir offence—those crimes that are not mentioned in the Quran or Hadith but are punishable under Islamic law are classified under ta’zir crimes. Hence, a number of scholars have presumed that rape should be given ta’zir penalty when circumstantial evidence has been put forward, “Including the stains of blood or semen on the clothing of the victim, and any marks that show infliction of violence on the body of the victim 39 ”.

ii. Compensation Based On Ta’zir

Violence experienced by female in the form of rape goes beyond physical injury extending to include psychological injury, distrust around men, feeling of shame and humiliation accruing from the loss of privacy and social pressures altogether 40. Under the Islamic Tort law, victims can claim damages based on the harm they have suffered 41. The victim can possibly claim moral damages under Islamic Tort Law where the victim’s personal freedom, respect, character, social or financial status is violated 42. Furthermore, as per the principle laid down in Ta’zir, financial penalty can be imposed on the criminal providing justifications to do so, by this way the victim can be financially compensated 43.

1.4: DIFFERENTIATING RAPE AND ZINA:

Undoubtedly, rape and zina are two different offences under Islamic law. Rape is known as Zina-bil-jabr (rape), is not only forced penetration but also a type of assault which leads to bodily harm. For instance, if the victim resists the aggressor, the rapist, in order to fulfill his intention use all his strength, eventually ending up killing the victim 44. The rape victim experiences trauma for a long time which usually remains lifelong as it is an unpleasant experience unlike consensual sexual intercourse, which is not coerced, as it is destructive psychologically 45. Therefore, the victim of rape will not be held accountable but those who indulge in consensual sexual intercourse, under the doctrine of zina will be held liable, rape violates an individual’s honor and self-respect 46. The difference between rape as zina-bil-jabr and consensual zina is crucial. The doctrine of rape in Islam, while sometimes combined with zina, is recognized as a separate offence with its own set of legal implications. Importantly, Islamic teachings clearly establish that a rape victim should not be penalized under laws governing consensual sexual intercourse. Instead, the offender is held liable under the hadd penalty for zina-bil-jabr. Moreover, the compensation for a rape victim under ta’zir has been outlined, further underlining the distinction between rape and zina. While zina comprises consensual acts that violate religious and moral codes, rape is an act of violence that violates an individual's honor and self-respect.

Chapter No. 2: Rape and Pakistan’s Legal System

Firstly, I will introduce Rape laws in Pakistan including the laws enlisted in the Pakistan Penal Code 1860, The Offence of Zina (Enforcement of Hudood) Ordinances 1979 and the Protection of Women’s (Criminal Laws Amendment) Act 2006. Then I will move on to how rape is categorized under the Ta’zir and Siyasah Offence rather than Hadd Offences in Pakistan’s Legal System. After explaining this, I will clarify the relationship between Sharia and laws of Pakistan with regards to rape. I will also discuss Rape with regards to Human Rights and Women Rights under Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) etc. Lastly, I will discuss about the newly enacted Anti-Rape Ordinance 2020.

2.1: RAPE DEFINED IN PAKISTAN AND ITS POSITION:

i. Rape Under The Pakistan Penal Code 1860

The Pakistan Penal Code defines Rape Under Section375 as follows, “a man is said to commit rape who has sexual intercourse with a woman against her will, without her consent, with her consent when the consent has been obtained fearing death or severe hurt, the woman consenting if she genuinely that the man is another person to who she is or believes to be married to and lastly with or without her consent when she is under sixteen years of age 47 ”. This section goes on explaining that “penetration is sufficient to establish sexual intercourse to prove the offence of rape 48.” Furthermore, the punishment of rape is enlisted in Section 376 of the Pakistan Penal Code 1860:
- Section 376 (1): A convicted rapist shall be punished with either the death penalty or imprisonment for a term not less than ten years and extending up to twenty-five years 49.

• Section 376(2): If the rape is committed by more than one person with a common intention, each of such offenders shall be granted capital punishment or imprisonment for life 50.
• Section 376(3): whoever commits rape of a minor, or a person with mental or physical disability, shall be punished with death or imprisonment for life and fine 51.
• Section 376(4) a public servant including a police officer, medical officer or jailor, taking advantage of his official position and power commits rape shall be punished with death or imprisonment for life and fine” 52. Therefore, the punishments enlisted in S.376 (1-4) of the Pakistan Penal Code 1860 proves that whosoever has been held liable for rape shall be punished with either a death sentence or imprisonment regardless of their official position.

ii. Rape Under The Hudood Ordinance 1979

In recent years, the women of Pakistan were subjected to social, domestic and sexual violence 53. The introduction of Zia-ul-Haq’s Islamization process in Pakistan escalated sexual violence and rape cases, largely due to the implementation of the Sharia Laws from 1979 where Islam was used as an instrument by Zia to introduce gender-biased laws which eventually undermined women’s rights. The 1977 Martial Law system by Zia presented the idea of Islamization in Pakistan, which started the cycle of legal discrimination against women in Pakistan through introduction of the Federal Shariat Courts. On February 22, 1979, this process of Islamization let to the promulgation of the Hudood Ordinances 1979 in Pakistan, covering the offence of theft, drunkenness, adultery, rape and bearing false witness 54. The laws with regards to rape or zina-bil-jabr have been extracted from ‘The Offence of Zina (Enforcement of Hudood) Ordinances 1979’ 55. Section 6 of the ordinance states that a person has committed ‘zina-bil-jabr’ if two individuals of opposite gender not legally married to each other has had illegal sexual intercourse without the victim’s consent, or when the consent is coerced through fear of hurt or death, or when the victim gave consent where the victim genuinely thought that the consent was given to the person she is validly married to 56. The ordinance further explains that “the act of penetration is sufficient to constitute the sexual inter- course necessary to the offence of zina-bil-jabr” 57 Grievously, the lawmakers of this ordinance categorized the same penalty for both Zina and Zina- bil-Jabr. Section 8 of the ordinance states and evaluates how evidence or proof of Zina or Zina-bil-Jabr works, which proposes that in the case of an accused making a confession before the court, the proof of zina or zina bil jabr will be liable to Hadd. The testimony of four male eyewitnesses of the act of penetration are to be brought forward to whom the court deems fit in the ambit of tazkiyah-al-shuhood and regard as truthful individuals and who does not have the capability of committing major sins

(kabair) 58. The fact that there is no distinction between Zina and Zina-bil-Jabr has set forth for an intrinsically patriarchal mindset by not only exploiting and oppressing women but also blaming them for being the victim to a crime against their dignity. The Zina Hudood Ordinance 1979 fails to separate the evidentiary requirements between Zina and Zina bil Jabr, resulting in severe injustices. 59 There are several ways to fall under the criterion of evidentiary requirements of Hadd Punishments; firstly, the accused party confesses to commission of their act and secondly, providing the four male witness considered as pious and sane by the courts to give testimony 60. These requirements are enlisted in the Holy Quran. Howsoever, applying this to a Zina-bil-Jabr case is too brutal as typically Pakistani courts move the burden of providing the proof on the victim and an expert opinion is not consulted which has prompted incredible shameful acts rehearsed by the Pakistani Legal System for practically over thirty years 61. Such Treacheries are quite clear from the cases of Jehan Mena in 1982 and Safia Bibi in the year 1985. Zafran Bibi, another victim of this law, was a pregnant lady who was sentenced to death for zina while her rapist was aquitted, despite her pregnancy being a clear result of rape. 62 The fact that it is the responsibility of the prosecution to prove the accused rapist guilty, this can only be found in the crime of rape in Pakistan 63. The Hudood Ordinances 1979 introduced the concept of Hadd, Ta’zir and Shariat Courts into the legal system, which reinforced patriarchy into the system by causing disadvantage to women’s right in Pakistan- a nation founded on the principle of equal rights for all citizens including women. 64 By following the laws listed in the Hudood

Ordinance, women could now be flogged for adultery if they failed to provide enough evidence against the accused are taken as Zina offenders 65. Moreover, the law of evidence has promoted to greater injustice and inequality amongst women, as two women eyewitnesses are regarded as one testimony 66. Zia’s policies, including the theory of “Chadar and Char Devaari” (which confined women to the home), further marginalized women, reducing their societal roles and reinforcing gender Rape was made a crime against the entire state under Zia’s Zina Ordinance, penalizing it by giving capital punishment i.e. stoning to death, implementing sanctions in the name of Islam, violating the women’s rights. 68 Women Rights activists lashed out soon after the unfair and unjust decision taken in the case of ZAFRAN BIBI V THE STATE, where the poor victim was granted capital punishment i.e. death sentence on the charge of ‘Zina’, whereas, the rapist was acquitted. 69 The judgment clearly highlights the necessity of repealing Hudood Ordinance as Zafran Bibi and countless others have and are continuously suffering by this brutal law until the discriminatory law is revoked. 70 Though, the introduction of this ordinance did not resolve all the problems but some changes have been made over the time 71.

iii. Rape Under The Protection Of Women’s Act 2006

Women right’s activists, long fighting against the injustices of the Hudood Ordinances, came as no surprise demanding a shield in the form of new legislation or repealing Hudood laws to protect women from discrimination. After several heated debates in Parliamentand compromises between the parliamentarians and ulema, Protection of Women’s Act, 2006 was introduced.

The National Assembly approved the Protection of the women’s (Criminal laws amendment) Act 2006 on November 15 th and was implemented on 1 st December 2006. 72 Several provisions of the legislation amended the Hudood Ordinance, inserting, deleting and transferring various offences into the Pakistan Penal Code (PPC), which includes laws relating rape and zina. Prior to the enactment of Pakistan Women’s (Criminal Law Amendment) Act 2006, women who accused men of rape were required to give testimony of four eyewitnesses. Failure to do so meant charging women under the offence of zina. The offence of rape, under this act, will be treated beneath the bracket of the Pakistan Penal Code and convictions would be established from evidence believing women would not be charged of zina if they fail to prove their absence of consent. This change was apparent due to the countless efforts made by the Women Right’s activists who demanded abolishing of testimony of the four male eyewitnesses and so now victim shall provide the medical reports to convict an accused. 73 Now the position of rape laws in Pakistan after the enactment of PWA 2006 is that, since Rape is now a Ta’zir offence, the Hadd Punishment was repealed and it is now the rapist will be granted a punishment of either capital punishment or imprisonment for life. 74 This means that now if the victim fails to prove the offence of rape, it will not fall under the offence of Zina. Moreover, this was a relief for the victims/women who were wrongfully being prosecuted instead. 75 The protection of women Act 2006 moved zina crimes and other offences constituted under the Hudood Ordinance back to the Pakistan Penal Code, incorporating under the heading of ta’zir offences. These offences include “kidnapping or abducting a woman to compel her for marriage; kidnapping or abducting someone in order to subject him or her to unnatural lust; selling or buying persons for the purposes of prostitution; cohabitation caused by a man deceitfully inducing a belief of lawful marriage and; enticing or taking away or detaining a woman with criminal intent.” 76 However, it is notable that the Zina Hudood Ordinance 1979 failed to protect the rights of women; correspondingly, the Pakistan Women’s Act 2006 did very little in protecting the rights of men in certain situations. Prior to the Pakistan Women’s Act 2006, if a girl were to be married against her parents’ wishes, the parents could register a First Information Report (FIR) against her and her husband claiming that their daughter was kidnapped and both of them would be arrested. After the enactment of Pakistan Women’s Act 2006, the husband would be arrested and the girl would be set free including the penalty for the man which would be minimum 10 years of

2.2: RELATIONSHIP OF LAWS WITH SHARIA

i. Rape as Ta’zir under Pakistan’s Legal System

The laws prior to the Hudood Ordinance might not be just and ideal but did more to provide protection to women, however, this changed during the tenure of Zia-ul-Haq when the Hudood Ordinances were enacted as women and children became the victim of these absurd laws. 78 Although the Hadd punishments for zina and zina-bil-jabr were not frequently implemented, courts often relied on ta’zir punishments as an alternative, for which the Pakistani courts sometimes overstepped to convert Hadd crimes into Ta’zir offences. According to Sharia law, Hadd cannot be converted into Ta’zir. The reason behind this is that, where Hadd Punishment is applicable, it cannot be substituded/governed in accordance with Ta’zir. 79 Therefore, the issue in hand was that the Pakistani courts were emphasizing on converting Hadd crimes into Ta’zir which is not permissible under Sharia law. When the victim failed to meet the stringent evidentiary requirements, the court would accuse her of committing zina which is apparently punishable under Hadd but by applying Ta’zir as per the court’s discretion, the victim would be granted punishment of Imprisonment, whipping or fine. 80 While converting the conviction of rape is itself very damaging to the victim, Supreme court accepts and supports the compromise between both the parties which is usually coerced developing more distress on the part of the victim. Furthermore, treating a rape victim as an equal consenting party in the crime of is extremely unfair and absurd. 81 Cases relating to zina and zina-bil-jabr are often conflated, since; the police typically refuse to register the misdeed of rape and zina as separate offences because they recognize the said offences as one. 82 As discussed above, Rape can't be even categorized under Ta'zir Offenses, raising a question: under what catagory should rape be classified?

ii. Is Rape A Siyasah Offence?

After the enactment of the Protection of Women Act

(PWA) 2006, there was a constant conflict between the ulema (Islamic scholars) and human rightss activists over whether converting Hadd to Ta’zir was the right course of action. 83 Moreover, the ulema and the women’s right activists had a constant conflict on the fact that this act contradicted in the priciples of Islamic Law. According to the teachings of the Holy Quran, Rape is a Hadd Offence and cannot fall under Ta’zir Offences. 84 Mufti Muhammad Taqi Usmani, a former Supreme Court Judge, referenced the following Hadith to prove the Hadd punishment for rape under the Sharia Law: “It is reported by Wile ibn Hujr (May Allah be pleased with him) that at the time of the Prophet (P.B.U.H) a woman came out of her house to pray [in the mosque], when someone raped her on her way, the man ran away when she raised hue and cry and later on, that man confessed to raping her., so, upon this the Prophet (P.B.U.H) awarded hadd punishment to that man and did not award hadd punishment to [that] woman”. 85

So we still observe that the problem of rape still persists when it is categorized under the Hadd Offences and also when the offence of Rape is categorized under Ta’zir Offences. The solution to the problem does not lie in Hudood Laws neither under Ta’zir Offences. So to prevail equity and administer justice along with protection of women’s rights, it is essential to look on to the concept of Siyasah (discretionary governance). 86

iii. Siyasah Sharia

The Public Islamic Law, as traditionally practiced, had certain loopholes in the law due to which injustices were practiced in the Pakistan’s Legal system, so the legal doctrine of Siyasah Sharia was introduced to provide additional jurisdiction in Islamic Public The term siyasah means ”the administration of justice in accordance to shariah”. 88 This legal framework applies in accordance of the Islamic law by changes adapted from time to time according to the necessities of the Muslim Ummah, these functions are carried out by the head of the Islamic state (The Imam) and who must ensuret that the rules should not be repugnant to the Quran and Sunnah. 89 So we have seen here that some Offences cannot be categorized under Hadd Offenses, and applying them under the doctrine of Ta’zir offences may result in the administration of injustice. So in order to avoid that, such crimes should be assessed under the doctrine of Siyasah. So now the Imam (Head of State) will be able to exercise and impose appropriate punishments for the heinous act.

iv. Instance of Rape as Siyasah Offence

The concept of Siyasah dates back to the era of Prophet Muhammad (P.B.U.H), where justice was administered based on the principles of Sharia but with a degree of discretion suited to the circumstances. An example of siyasah in action can be seen in an incident where strict Hadd punishment was initially delivered to individuals who raped a woman. However, it was later revealed that another individual confessed to the crime, and he was punished by stoning to death. 90 In this event, the punishment awarded to the alleged rapist was not in accordance with the criteria of zina which is a confession or 4 male pious witnesses who can recount the event; however, it was dealt under the concept of Siyasah. 91 Another reported instance of siyasah can be found, when the people of Uraina fell sick, the Holy Prophet (PBUH) advised them to drink milk of camels from charity to regain their health. 92 After recovering, the same people killed the shepherds and ran off with the camels. The Prophet took severe action against them by ordering to cut of their hands and feet from the opposite sides, detach their eyes and leave them in the dessert without water until they perish. 93 This punishment, which involved defacement and abandonment, reflects a siyasah judgment rather than a standard Hadd offence. 94 In these instances, the punishments were not strictly derived from the established Hadd penalties but were instead discretionary actions taken to maintain justice and social order. These examples demonstrate how siyasah can be engaged to address serious crimes like rape when the conventional criteria for Hadd or ta’zir offences are not fully met.

2.3: INTERNATIONAL OBLIGATIONS

The Zina Ordinance, introduced under Zia-ul-Haq’s Islamization of Pakistan had many flaws that favored men over women and had drastic effects on women’s rights 95 Furthermore, the situation was further worsened by the Law of Evidence as it considered the testimony of woman as half that of a man which questioned the stature of women in the society. 96 Also, cases like honor killings and acid attacks required testimonies of a male eye witness or else the victims were prosecuted instead. 97 It was reported by Zafar Imran Kalanauri that the number of rape victims that were prosecuted for fornication under the Zina Ordinance and law of evidence was totaled to over 15000, while their rapists remained free. 98

In 1988, after Zia’s death, Benazir Bhutto was appointed as the first female Prime Minister, who made many promises which included revoking the Hudood Ordinance 1979, but failed to deliver. 99 Additionally, in 1989, efforts were made to concoct Women’s Studies Centers by the Ministry of Women’s Development which however failed due to lack of funding and support by the government. 100 In 1996, in an attempt to work towards the development of women’s rights, Bhutto’s government signed the Convention of Elimination of all forms of Discrimination against Women (CEDAW). However, this move was largely symbolic, aimed at improving Pakistan’s image in the international community, and the convention was not sincerely implemented. 101 Similarly, in 2006, under the government of Musharraf, the Protection of Women’s Bill was passed, which merely served in decreasing the ongoing and aggravating protest by female activists against the Hudood Ordinance. 102

i. The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW):

CEDAW consisted of 30 articles all working towards the improvement of women’s rights and was embraced in 1979 by the UN General Assembly which inscribes various dimensions of public and political life. 103 CEDAW is also known as an international bill that advocates for the rights of women.It is considered a reformist convention where its Article 1 covers discrimination against women which can be defined as excluding, restricting or treating individuals differently based on their gender. Article 2 covers the responsibility that the state holds in “condemning discrimination against woman in all its forms” by committing to pursue all measures necessary for ensuring the safety of women’s rights by promising equality for all genders. 104 CEDAW was incorporated within the legislation of

Pakistan in 1996, during the Benazir Bhutto’s government. 105 However, the testimony given by Pakistan in relation to the treaty rendered the convention ineffective: "The accession by [the] Government of the Islamic Republic of Pakistan to the [said Convention] is subject to the provisions of the Constitution of the Islamic Republic of This registration meant that CEDAW’s provisions were subject to Pakistan’s Constitution and Shariat courts, which considerably weakened the convention’s effect. As a result, without the approval of the Shariat court, the signing of CEDAW became little more than a figurative gesture. It served primarily to quell both domestic and international criticism regarding Pakistan’s treatment of women and failed to meaningfully address or eliminate the Hudood Ordinance from the judicial system. 107

ii. Protection of Women (Criminal Law Amendment)

Act, 2006: Under the tenure of President Musharraf, the National Assembly of Pakistan incorporated the Protection of Women’s Act (PWA) in 2006, amending the Hudood Ordinances. 108 The amendment of Zina Ordinance was of major importance where the penalty of rape (zina-bil-Jabr) was repealed in accordance to Shariat law and has now became the part of the Pakistan Penal Code making rape punishable for 10-28 years of imprisonment and in cases of gang rape it may exceed to life imprisonment. Four male pious eyewitnesses are no more required and instead the courts will rely on Forensic and circumstantial evidence. However, due to growing criticisms by the Shariat Courts, in 2010, it was announced that Sections 11, 25, 28 and 29 of the Protection of Women Act 2006 are in violation of Article 203DD 109 of the constitution of Pakistan 1973, which grants the Federal Shariat Court (FSC) jurisdiction to review laws. The government was given untill June 22, 2011 to amend the law to conform with the court’s interpretation. 110 As per Article 203DD of the Constitution of Pakistan which gives the FSC its provisional jurisdiction, the court can summon and examine the previous record of any case which was prosecuted under the Hudood Ordinances and may also enhance the conviction if the court deems it

In order to protect the rights of women, it is quite essential to completely repeal the Hudood Ordinances; however, this is a huge problem for a nation like Pakistan where Islamic law and teachings are prioritized and idealized. Therefore, such a bill was openly criticized by religious parties such as Majlis-i-Amal (MMA) who accused the government of violating the Islamic teachings and the Holy Quran as well as put a decision on the table to quit the National Assembly by threatening them. 112 Therefore, while progress has been made, the complete repeal of the Hudood Ordinances remains a difficult and contentious issue.

2.4: THE ANTI-RAPE ORDINANCE (2020):

The Anti-Rape Ordinance was enacted in response to the tragic motorway gang rape case in September 2020, which sparked outrage across the country. 113 President Arif Alvi approved the Anti-Rape Ordinance (2020) on the 15 th December 2019. 114

In this ordinance, chemical castration was legalized for convicted rapists in Pakistan. 115 Special courts have been established for rapid trials of the accused rapists, with the expectation that cases will be resolved within the time frame of four months. 116 Moreover, following the incident, Anti-Rape Crisis Cells were established under this Ordinance which would conduct medico-legal examinations within six hours of the incident. 117 Under the ordinance, imprisonment of three years along with fines will be imposed to any individual be it a police or government official found irresponsible and careless in investigating rape cases. Moreover, the ordinance makes the revealing of identity of the rape victim’s identity as a punishable offence and places a ban on such disclosure. The media and social media users should respect survivors/victims right to privacy or right to live as no one should live their life under such a social stigma and distress. However, the question in hand is if it is useful to incorporate new laws in Pakistan’s statute as Pakistani laws are less likely practiced/implemented. 118

In 2012, it was held by the Supreme Court that the victim’s prosecution should not be coerced in order to obtain DNA or other medical tests, since, that would infringe the victim’s personal liberty. It was found that the samples of DNA testing of the victims were not collected and forwarded by the Medical Laboratory Observers (MLO’s) and DNA tests of the accused were frequently neglected. Greater emphasizes is often placed on the semen present on the victim, whereas the DNA may be collected and obtained from the accused is overlooked. 119 By introducing the Anti-Rape Ordinance (2020), the take on victims of sexual violence has been improved but we must refocus and bring about change in our attitude towards a horrific crime side by side seeking assurance that the laws we have made are enforceable and not just written in statute Having examined previous laws, such asThe Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the Protection of Women’s Act (2006), it is observed that the zina laws were deeply biased and unjust, where victims were being penalized for enduring the crime. There seems no justification or explanation on why the victims of this heinous act were exploited. Such flawed and misunderstood concept of rape cannot be even justified under the Islamic Law, despite years of attempts to do so. The newly enacted Anti-Rape Ordinance 2020 represents a step forward, offering fair and just laws that have the potential to curb the offence of rape in Pakistan if properly implemented.

Chapter No. 3: Has Pakistan Succeeded In

CURBING RAPE? In this chapter, I will be going through high-profile rape cases in Pakistan, scrutinizing their case laws in depth. This analysis will help determine whether Pakistan has made any significant progress in restricting rape and protecting victims.I will also be outlining the solutions to the problems faced by victims within the legal system of Pakistan.

3.1: Case Studies

i. Jharna Basak (Shabnam case)

This case involved a Pakistani actress who moved to her homeland Bangladesh after going through a traumatizing event. 121 The facts include, five men entered her house for robbery and then gang-raped her in the presence of her husband and son. The perpetrators were influential individuals. 122 The trail took place under a ‘special military court’ under Section 412 of the PPC. 123 Since these individuals belonged to powerful backgrounds, they found an escape route by bribing the local police to avoid prosecution. 124 Although the accused were sentenced to their respective punishments by the military court, Shabnam and her family were coerced into pardoning them. Moreover, one of the accused, Farooq Bandial, joined the Pakistan Tehreek-e-Insaf (PTI). 125 This news was spread vigorously on social media hence, Bandial, was expelled from the PTI, stating that such culprits has no place in their party. Therefore, this case reflects the challenges of ensuring justice when powerful/influential individuals are involved.

ii. Zafran Bibi v. The State (2002) 126

Another observable miscarriage of justice can be seen in this case, where a married woman’s pregnancy constituted as a proof of rape as she was raped by her brother-in-law who was later not convicted. The courts relied on the Zina Ordinance, due to which it was necessary to provide the testimony of four male eyewitnesses present during the act of penetration. Specifically, the victim failed to provide this, so she was convicted of Zina under Zina Hudood Ordinance. 127 In conclusion, Zafran Bibi was sentenced to death by stoning. 128 The case drew international criticism and highlighted the severe flaws in Pakistan’s laws on rape, particularly the misuse of the Zina Ordinance to punish victims.

iii. Jehan Mina v. State (1983): 129

Discovered from the Pakistani law databases and some relevant articles, was the unfortunate chronicle of Jehan Mina, an orphan, who was thirteen years old, was subjected to rape by her blood relatives, her uncle and his son, which ended up in pregnancy. Since she failed to prove the occurrence of rape, the court granted the ta’zir punishment of lashes including three years of imprisonment for zina, and furthermore, her pregnancy was taken as a proof which confirmed the occurrence of zina. 130

iv. Safia Bibi v. State (decided in 1983, reported in

This case resulted in widespread disrepute of the Hudood laws in the national as well as international media. This was obvious from the instance of SAFIA BIBI V STATE where, Safia Bibi, a 20 year old unmarried woman, who delivered a child after getting raped and was accused of committing “Zina” 132 Safia testified that the accused fathered the pregnancy of her child as she was raped by him, however, police registered a case, against fornication and rape respectively. 133 The case was heard by the judge where he ruled that this instance of rape lacked enough evidence to charge the accused of rape, and her assertion was rendered inadmissible in the court, punishing her with punishment of 15 stripes, three years behind the bars and fine of Rs.1000 under Section 10(2) of the Zina Ordinance. 134

v. Zainab Ansari Case (2018): 135

Zainab Ansari, a six-year-old girl from Kasur,

Punjab, was kidnapped, raped, and murdered in 2018. Her body was found in a garbage dump, igniting nationwide protests and demands for justice. The suspect, Imran Ali, was arrested after his DNA matched samples taken from Zainab's body. The case moved quickly through the courts, and Ali was convicted and sentenced to death. He was executed later that year. The case highlighted the issue of child sexual abuse in Pakistan and led to increased calls for stricter punishments for such crimes.

vi. Motorway Gang Rape Case (2020): 136

The country was raged with resentment in September 2020 as the descriptive analysis of the Motorway gang rape case on the outskirts of Lahore was laid and flooded all over the national and international media and with this already happening, absurd and illogical remarks by the city’s police chief regarding this heinous act added the fuel to the fire. 137 Following this case had occurred, the PM, Imran

Khan, had ordered that uncompromised, strict and firm action should be taken against the hoodlums as well as such individuals who do not hesitate before saying that such episodes were a blotch on the society’s image. 138 The victim was gang raped by two men in front of her children and snatched cash of one lac rupees. 139 The suspects had confessed to have committed the crime in public and moreover the preserved DNA samples were produced by the Punjab Forensic Science Agency which helped to trace and match the Shortly after the incident, nationwide outrage sparked with people wantingthe rapists to be given the most severe punishment to curb the increase of sexual abuse in Pakistan by either granting capital punishment or through castration. 141 However, In November 2020, President Dr. Arif Alvi, approved the enactment of the Anti-Rape Ordinance 2020. This case established the need for swift legal reforms, and the ordinance introduced provisions such as chemical castration for convicted rapists, the establishment of special courts for rapid trials, and the creation of Anti-Rape Crisis Cells. 142

3.2: Is There a Way Out

IS THERE A WAY OUT? Almost all Pakistani women have found themselves lying on the edge of the double standard logic derived from the cultural mentality however it should be noted that the safety of women is entirely in our own hands, the women, where we must protect our bodies by keep ourselves covered and should keep ourselves indoors after dark as men apparently turn into monsters but if we get harassed during the day then that is just a perk of being a woman in our culture as we wouldn’t get harassed if we never stepped out of the house. 143 With the so called protection of chaar dewaari, we, the women face the brush of unwanted male attention so can it be said that we, the women, are not even protected in the so called chaar deewari? 144 Rape Culture in Pakistan emphasizes more on blaming the women for getting them raped. 145 The issue in hand is it is mostly said that men cannot control their impulses in the presence of a woman which has been strangely normalized. Moreover, the idea that a woman is raped because she was all alone without a male figure accompanying her is just barbaric. It is pertinent to note that Women in burqas are raped as well as women wearing jeans are raped, not only this, but women are dug out the graves and raped so there is no proof that the appearance of a woman is the reason behind the act of rape and worst of all is that the rapists have the audacity to rape women and get away with it leaving the victim with lifelong misery, distress and other psychological elements attached, so it could be concluded on the fact that law makers should address these problems while making or amending legislation with regards to rape. As per the law, a rapist has a punishment that may extend to 25 years of imprisonment or death. 146 However, you may ask any victim about how the rape trial is carried out you would realize how poorly the authorities deal with this law. 147 Moreover, apart from the trauma received by the sexual assault, the rape victims have to face severe backlash that often starts with close family. 148 Why do men rape? The Castration law contained in the Anti-Rape Ordinance 2020 suggests that rapists attack and rape woman because they have a sexual organ and if you rid them of it, this problem will end but unfortunately this is not the case as rape occurs so men could satisfy their need of control, dominance and power over women. 149 Rape occurs all over the world and not just Pakistan because women are considered as a sexual object for men or either the property which the male owns so this is why rapists express no sensitivity towards the victim. 150 Hence, the solution of rape is to consider women as an equal human being and not an object as well as giving her the rights bestowed to them by the religion and the constitution only then there can be a positive development in the rape culture. Harassment may occur due to men’s needs but it should be seen through a women’s eye to curb it as no punishment is enough to terminate the rape

Since the offence of rape itself carries forceful sexual intercourse, however, it should not only include the penetration of vagina, but penetration using rectum and the mouth. Rape is constituted by the sexual organ of male but where coercion takes place with a body part other than penis, for instance, fingers, bottles or sticks, an another crime should be established titled as “assault by penetration” constituting a separate felony. 152 To improve laws relating to rape, we should incorporate provisions from other nations, such as, the British law, where there is an established punishment regarding sexual activity without consent. 153 One crucial step is to address aspects not mentioned previously, for instance, coercing a victim to perform sexual acts on themselves (e.g., forced masturbation) or coercing the victim into sexual intercourse with a third party, whether consensual or non-consensual. 154 The rationale behind this is not to confine “rape” to forceful penetration, but also to broaden the ambit of its definition to include female sexual offenders subjecting them to the same laws and punishments so, therefore, the act seems to be complete and protective for the victims’. 155. However the issue that persists is that the legal definition of “consent” is still misconstrued. At present, consent is defined as an individual’s ability to freely make a choice with regard to performing sexual conduct of any sort; this makes the subject of consent insignificant if the victim is underage i.e. under the legal age of 18 or is considered mentally unstable, as in both of these circumstances the victim is highly unable to make sound decisions. Additionally, any consent that is given under the influence of intoxication or fear is deemed void by the courts. 156 The previously mentioned idea of consent should be successful in eliminating the former claims made by the judges of the victim not resisting with all their power to prevent the heinous act of rape. 157 This also implicates that any evidence of prior sexual relations brought forward in the court to tarnish the reputation or weaken the stance of the victim shall be considered invalid. 158 This is to support the concept that even though, adultery is considered a sin, nothing in any way justifies the brutality shown by the offender, nor does it lessen the agony and misery of the Lastly, the aforementioned idea can also be associated with the doctrine of Qadhf (false accusations of rape). However, currently ‘Qadhf’s’ definition according to the Pakistani law does not comply with the definition provided in Islamic law. According to the previous suggestions, the offence of rape should be incorporated under the maxim of Siyasah, so including the laws regarding “Qadhf” (false rape allegations), will be rendered appropriate and should fall within the same category. 160 It has been reported that the government sets up anti-rape cells in every district to curb the growing incidents of sexual assault in Pakistan. 161 Finally, as we investigate the recently passed enactment, the Anti-Rape Ordinance 2020, we might dare to dream that our legal framework adheres to the laws contained in the said enactment as it might achieve change in the country with respect to rape cases. The Anti-Rape Act of 2021 introduced significant reforms, with its rules being further defined in 2022 and 2023. This Act aims to create a more efficient and victim-centered approach to rape investigations and trials. Essential features Anti-Rape Crisis Cells in hospitals to guarantee
- timely medico-legal examinations and proper handling of evidence. Special Sexual Offences Investigation Units
- (SSOIU) for supervision of the investigation of rape cases, ensuring evidence is collected promptly and preserved properly. The requirement for DNA tests and other forensic
- methods to be prioritized over outdated witness- based evidentiary standards. Enhanced accountability measures for police officers
- who fail to properly investigate rape cases The Pakistani Senate approved amendments to the Anti-

Rape (Investigation and Trial) Act in 2023, which strengthened the legal framework. These amendments made DNA testing mandatory and emphasized faster trials to prevent undue delays that often lead to injustice. This aligns with the goal of addressing systemic issues that have allowed rapists to evade punishment. 163 In a cutting-edge case, Pakistan witnessed its first conviction for marital rape in January 2024. While the conviction was precisely for sodomy, it set a significant legal precedent for recognizing non-consensual sex within marriage as a criminal offence. This case challenges deeply entrenched patriarchal norms that have traditionally dismissed marital rape as a non-issue. It signals a shift towards recognizing women’s rights to bodily independence within marriage, marking a critical moment for future legal reforms. The institution of a Sex Offenders Register (SOR) 2023 is another major step forward. The register is designed to track convicted sex offenders and ensure they are monitored after release from any conviction. However, many hurdles may lead to implement it, such as ensuring the proper collection and protection of data, as well as addressing enforcement issues at the local level.

Conclusion

As discussed above, Pakistan’s judiciary and the government are making attempts to address the issue of rape more maturely and positively. Yet the most worrisome are the views of our Prime Minister,on the morality and crimes against women who blamed the escalation of rape cases in Pakistan on so-called fahashi (Obscenity). He stated that according to him the increase in obscenity, “Fahashi”, leads to an increase in crimes relating to sexuality. 164 This statement reveals a backward mindset that is still prevalent in our society. It is especially troubling coming from the very educated and broadminded PM of the nation and how he does not understand the complexity of the situation and ignoring the fact that women are unsafe in Pakistan. 165 Such comments not only trivialize the complexity of this issue but also show a lack of sensitivity towards a serious problem. 166 Statistically, more than 11 rape cases are reported every day in Pakistan and its disturbing that mostly the offenders are close relatives of the victims. 167 Crimes committed against women are not constricted to any particular circumstances, socioeconomic classes, or religious beliefs. 168 Rapists often attempt to make excuses for their acts and blame the women/victims for being raped, but one cannot deviate from the fact that our Prime Minister’s comments further encouraged those who justify punishing the victim. Therefore, the Prime Ministers words not only channeled ignorance towards this preposterous crime but also misguided the nation and failed to identify the real issue behind this barbaric crime. It is quite essential to note that a change in this attitude is required as every passing day unveils a tragic new crime committed against women and children. From the beginning in Pakistan, the devastating history began and concluded for all women on the same page; with a miserable rape story, enduring women for being raped or women violating Islamic law by getting raped and eventually ending up punished. Historically, Islamic law provided examples where the victims attained justice when accusing male for attempting crime against women. However, this story took a turn when groups of feminists raged a war against the monstrous, the enforcement of Zina,

Hudood Ordinances, (law containing the offence of rape), which was troublesome for the women and their rights and as a result the Protection of Women’s Act (PWA) (2006) was enacted to protect women and their rights. The implementation of the Act suggests that the rights of women will be protected as the name of the act initiates but rather did really less in protecting women and their rights as many years passed by and women did not attain the protection they aid, deserved and were promised. Women have always been subjected of the fiction that they will be blamed and punished for being the victims of sexual violence. During this battle where women fought alone for themselves, an enactment was put forward known as the Anti-Rape Ordinance in 2020 which not only promised and suggests victim’s not being punished for being victims but prevailing justice. Indeed, one can only hope for better days to be apparent as it is visible that there seems to be no loophole in this newly enacted law, simultaneously, it suggests that it will provide protection and support to women in battling this war and help overcome with its monstrous trial. Undeniably, the social stigma of women being shamed for being raped cannot be compensated by bribes from the family of the rapists or incentives from the government but rather requires Compassion, love and generous support from public at large for recovering rape survivors from the traumatic event. Yet, in the war against rape; women, suffer with distress, agony, misery and trauma which mostly comes from within the society. As Louise O’Neill, poignantly states in her book ‘Asking for It’: “They are all innocent until proven guilty. But not me. I am a liar until I am proven honest” 169. This quote summarizes the harsh reality faced by rape survivors, not just in Pakistan but around the world. Women continue to bear the burden of proof, often being judged by society even as they seek justice for the crimes committed against them. Legal reforms along with shift in social behavior are required to change this narrative, where survivors are supported and believed, and perpetrators are held accountable.

GLOSSARY: 1. Federal Shariat court: A policy-making court of Pakistan that has the authority to scrutinize and reckon if the ordinances of the country observe the Sharia law. Established in 1980. 2. Ghair Muhsan: An unmarried and virgin Muslim man or woman who has had sexual intercourse out of wedlock. An unmarried adulterer. 3. Hadd: or Hudud as plural; a term used in Islamic Holy scripture to define and implement definite punishments for consequential crimes. 4. Hadith: a compilation of the sayings and customs of the Prophet Muhammad PBUH collected over the course of his life and after, used as guidance for Muslims. 5. Hirabah: a term defined in the Quran as a malefaction to deliberately cause devastation or war. Hudood Ordinances: a repertoire of laws, instituted in 1979 by Zia-ul-Haq. Fixed punishments were defined for crimes such as Theft, Zina, Accusation of Zina, and consumption of Alcohol. 6. Ijma: (Islamic Law) is a global, collective, and mutual settlement or accordance by Islamic scholars on the basis of Islamic decree.

1. Ikrah: When someone is subjected to bullying and threats, his will comes to an end. Though he has a choice in the matter, he has not much choice: he has to commit a crime and harm someone, or he, refusing to go along with the oppressor, has to bear his own personal loss. 8. Kabair: Arabic term used to define major sins. 9. Majlis-i-Amal: A radical union comprising of orthodox, religious, and fascist parties of Pakistan. 10. Muhsan: A sane Muslim adult man who has had sexual intercourse with a sane Muslim adult woman in wedlock and a sane Muslim adult woman who has had sexual intercourse with a sane Muslim adult man in wedlock. Qadhf: Unfounded or false accusation of Zina. 11. Qiyas: In Islamic law, it is a procedure to derive similar reasoning in which the guidance of the Sunnah and the teachings of the Quran are compared in order to construct a new mandate for a given situation or circumstance. 12. Shariah law: Also known as the Islamic Law. It is a religious decree constructing the legal foundation of the religion. It is assimilated from the religious aspects of Islam, mainly from the Quran, Hadith, and fatwas. Its acts as a penal code for Muslims to stay within their respective boundaries of acceptable behavior. 13. Siyasah: The application of the Quran and Hadith which is portrayed as a manual for Muslims on how to live in a community by observing the command of Allah. Siyasah basically means commanding good and forbidding the bad. 14. Siyasah Shariah: a procedure that is assembled by the Quran and Hadith by the governor executing justice and the commoners giving their loyalty and obedience. 15. Sunnah: Sunnah is the body of social and legal customs and practices of the Islamic Community. Derived from the Quran (the Holy Book of Islam) and Hadith (recorded sayings of the Prophet Muhammad). It is a major source of Islamic Law. 16. Ta’zir: A penalty or punishment implemented by the orders of a legal official or the head of state. 17. Tazkiyah al-shuhood: Competence of the witness according to Islamic law. It is a condition practiced to implement the penalty of Hadd. 18. Watt bil Ikrah: Forced Penetration.

Bibliography Legislation and Statutes Protection of Women (Criminal Laws Amendment)
- Act 2006 (Pakistan). The Constitution of Pakistan 1973 (Pakistan).
- The Offence of Zina (Enforcement of Hudood)
- Ordinance 1979 (Pakistan). The Pakistan Penal Code 1860 (Pakistan).
- International Conventions Convention on the Elimination of All Forms of
- Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). Cases Mst Jehan Mina v State [1983] PLD 1983 FSC 183.
- Zafar Bibi v State [2002] PLD 2002 SC 1.
- Muhammad Khalis v State [1997] PCrLJ 1639.
- Safia Bibi v State [1994] PCrLJ 1371. 

Books Asma Jahangir and Hina Jilani, The Hudood
- Ordinances: A Divine Sanction? A Research Study of The Hudood Ordinances and Their Effect on the Disadvantaged Sections of Pakistan Society (Sang-e- Meel Publications 2003). Imran Ahsan Khan Nyazee, Theories of Islamic Law:
- The Methodology of Ijtihad (2nd edn, Islamic Research Institute 1995). Khawar Mumtaz and Fareeda Shaheed, Women of
- Pakistan: Two Steps Forward, One Step Back? (Vanguard Books 1987). Muhammad Taqi Usmani, Amendment in Hudood
- Laws: The Protection of Women’s Rights Bill – An Appraisal (Institute of Policy Studies 2006). Articles and Journals A Chughtai, ‘Zainab’s Murder: Heinous Crimes,
- Speedy Trial and the Challenge of Procedural Rights’ (2018) 4(1) Review of Human Rights 11-29. Azman Mohd Noor, ‘Rape: A Problem of Crime in
- Classification of Islamic Law’ (2010) 24(4) Arab Law Quarterly.

Charles H Kennedy, ‘Islamic Legal Reform and the
- Status of Women in Pakistan’ (1991) 2(1) Journal of Islamic Studies. Munir, ‘Is Zina bil-Jabr a Hadd, Ta'zir or Syasa
- Offence? A Re-Appraisal of the Protection of Women Act, 2006 in Pakistan’ (2008) 14(1) Yearbook of Islamic and Middle Eastern Law https://heinonline.org/HOL/P?h=hein.journals/yislami e14&i=109. Muhammad Adnan Aziz and others, ‘Between Law
- and Society: Exploring the Persistent Rape Problem in Pakistan’ (2024) 4(1) Pakistan Journal of Criminal Justice 24-38. Rahat Imran, ‘Legal Injustices: The Zina Ordinance
- of Pakistan and Its Implications for Women’ (2005) 7(2) Journal of International Women’s Studies. Ruba Saboor, ‘Rape Laws in Pakistan: Will We Learn
- from Our Mistakes?’ (2014) 1(1) Islamabad Law Review. Shahnaz Khan, ‘Locating the Feminist Voice: The
- Debate on the Zina Ordinance’ (2004) 30(3) Feminist Studies.

Online Sources Alefia T Hussain, ‘Anti-Rape Ordinance’ DAWN
- https://www.dawn.com/news/1598830 accessed 22 March 2021. Asian Development Bank, Women in Pakistan:
- Country Briefing Paper https://www.adb.org/documents/women-pakistan- country-briefing-paper accessed 9 March 2021. Charles H Kennedy, ‘Islamic Legal Reform and the
- Status of Women in Pakistan’ (1991) 2(1) Journal of Islamic Studies. ‘Cases of Zina Laws in Pakistan’
- https://zinalaws.tripod.com/ZinaLaws/id1.html accessed 12 April 2021. Farwa Naqvi, ‘Putting an End to Rape’ The News
- (Pakistan, 22 September 2020) https://www.thenews.com.pk/print/717719-putting- an-end-to-rape accessed 22 April 2021. Louise O’Neill, Asking for It
- https://www.goodreads.com/quotes/7342995-they- are-all-innocent-until-proven-guilty-but-not-me accessed 25 April 2021.

Maria Amir, ‘In Pakistan, Rape Culture Is Not Only
- Systemic, It Is Reinforced at Every Level’ DAWN https://www.dawn.com/news/1580011 accessed 21 April 2021. M Ilyas Khan, ‘Pakistan Zainab Murder: Imran Ali
- Hanged for Six-Year-Old’s Death’ BBC News (Islamabad, 17 October 2018) https://www.bbc.com/news/world-asia-45885686 accessed 21 April 2021. Minah Ali Rathore, ‘Women’s Rights in Pakistan:
- The Zina Ordinance and the Need for Reform’ (2015) School of Public Policy Capstones https://scholarworks.umass.edu/cgi/viewcontent.cgi? article=1040&context=cppa_capstones accessed 10 March 2021. Muhammad Mushtaq Ahmed, ‘Tahaffuz-e-Niswan
- Bill 2006 – Aik Tanqeedi Jaiza’ (2006) 17(10) Monthly Al-Shariah http://www.alsharia.org/mujalla/2006/oct/huqooq-e- niswanmushtaq-ahmed accessed 20 March 2021. N Akram and M Yasmin, ‘Media Portrayal of Sexual
- Violence in Pakistan: A Critical Discourse Analysis of the Lahore-Sialkot Motorway Incident’ (2024) 106

Women's Studies International Forum 102955 (Pergamon). Naya Daur, ‘When Actor Shabnam Left Pakistan
- After Being Raped – Raped by Influentials and Denied Justice’ Naya Daur https://nayadaur.tv/2020/06/when-actor-shabnam-left- pakistan-after-being-gang-raped-by-influentials-and- denied-justice/ accessed 1 April 2021. Our Correspondent, ‘Motoway Gang Rape Case
- Shocks the Nation’ The Express Tribune (Lahore, 10 September 2020) https://tribune.com.pk/story/2263375/motorway- gang-rape-shocks-nation accessed 15 March 2021. Press Release, ‘Rapist Should Lose His “Izzat” for
- Committing Heinous Crime: Pakistani Men Against Rape’ The Nation (Pakistan, 23 November 2017) https://nation.com.pk/23-Nov-2017/rapist-should- lose-his-izzat-for-committing-heinous-crime- pakistani-men-against-rape accessed 1 January 2021. Rahat Imran, ‘Legal Injustices: The Zina Ordinance
- of Pakistan and Its Implications for Women’ (2005) 7(2) Journal of International Women’s Studies. Rana Bilal, ‘Lahore ATC Sentences Both Accused to 

Death in Motorway Gangrape Case’ The News https://www.dawn.com/news/1613612 accessed 20 April 2021. Saqib Virk, ‘Govt Sets Up Anti-Rape Cells in Every
- District’ The Express Tribune (Pakistan, 24 March 2021) https://tribune.com.pk/story/2291679/govt-sets- up-anti-rape-cells-in-every-district accessed 24 April 2021. Seth Mydans, ‘Sentenced to Death, Rape Victim Is
- Freed by Pakistani Court’ The New York Times (8 June 2002) https://www.nytimes.com/2002/06/08/world/sentence d-to-death-rape-victim-is-freed-by-pakistani- court.html accessed 7 April 2021. Shaikh Abdul Rasheed, ‘The Anti-Rape Ordinance’
- The News https://www.thenews.com.pk/print/773238- the-anti-rape-ordinance accessed 19 March 2021. Shahnaz Khan, ‘Locating the Feminist Voice: The
- Debate on the Zina Ordinance’ (2004) 30(3) Feminist Studies. Zafar Kalanauri, ‘A Review of Zina Laws in
- Pakistan’ http://www.zklawassociates.com/wpcontent/uploads/

2012/03/A-Review-of-Zina-Laws-in-Pakistan.pdf accessed 1 March 2021. Zahid Hussain, ‘Blaming the Victim’ DAWN
- https://www.dawn.com/news/1616881 accessed 24 April 2021.