- The father of Safia Bibi lodged a complaint on behalf of his daughter, an unmarried twenty-year-old suffering from acute myopia, who had been subjected to Zina-bil- Jabr by Maqsood Ahmed whilst working for his family. Under shock she told her mother about the incident and refused to continue working for this family. Nonetheless, she reluctantly agreed to go back when Mst Rashida Bibi, Maqsood’s mother, “took her away in the absence of her parents.” (Hussain, 122: 6). On this instance the father of Maqsood Ahmad, Muhammad Ali, committed the same offence. From this zina Safia Bibi gave birth to a child who later died in hospital.
- A case was registered by the police against both Safia and Maqsood—Safia for fornication and Maqsood for rape. Chaudry Muhammed Aslam, the Additional Sessions Judge ruled that there was insufficient evidence linking Maqsood with the charge of rape, and that Safia’s testimony was self-exculpatory and accordingly inadmissible. “He sentenced her under section 10(2) of the Zina Ordinance to 3 years imprisonment, 15 stripes, and imposed fine of Rs. 100.” (Kennedy, 1998: 41)
- The case attracted publicity and press intervention which subsequently resulted in the FSC calling for the case to be reheard.
1. Whether it is possible to convict someone of zina using his/ her own self-exculpatory statement alleging rape as grounds of evidence?
“There is also no evidence against Mst Safia Bibi.” (Hussain, 122: 11) She was merely convicted ‘on the ground that there was no evidence that she had ever complained about the commission of the offence by Maqsood Ahmad and had kept quiet for almost 10 months’ (Aftab Hussain, 123: 12).
“This is a clear departure from the well-known principles of criminal law that it is the duty of the prosecution to establish by evidence the offence of an accused person beyond any shadow of doubt. It is settled law that a confession should be read as a whole and the self-exculpatory portions therein cannot be excluded from consideration unless there be evidence on record to prove those portions to be incorrect. The learned Additional Sessions Judge could not hold Mst. Safia Bibi guilty of Zina by consent under section 10(2) of the ordinance, in the absence of any evidence to establish that she and Maqsood Ahmad had any sentimental attachment for and were on intimate terms with one another. No such evidence is forthcoming on record” (Hussain, 123:13).
Moreover, as per the classical Islamic Schools rape absolved the woman of any liability thus her admission that she was raped was sufficient to absolve her.
2. Whether a confession of one accused is sufficient evidence to convict the other of his charge?
Safia “produced three defence witnesses… but their evidence is not at all helpful since they did not throw any light on the occurence” (Aftab Hussain, p. 122). Therefore “it is clear from this evidence that no offence was proved against Maqsood Ahmad as the bare statement of his co- accused was not sufficient for his conviction” (Aftab Hussain, p. 122).
“It would be clear that even in Shariah the confession of one accused against the co-accused is not sufficient for the conviction of the latter. Views differ only on the point whetherthe person denying should be acquitted or the person confessing should also be absolved of the charge. There is no difference on the main point between Fiqh, the Common Law of England or the Law in Pakistan, that the appellant also cannot be convicted on the evidence on record.” (Hussain, 125: 29).
The learned judge lingered on the improbability of a judgement in which only one party was convicted, while the other namely the male, was acquitted. The judge refers to this as “strange” (Hussain, 123: 14).
He then enumerates the circumstances in which only one party was convicted might be understandable:
1. “If there is no evidence of eye-witnesses and the only evidence is for example, a confessional statement (as opposed to a self-exculpatory statement) made by the girl involving the male accused, then in the absence of any other evidence against the male accused, he cannot be convicted but the girl can be convicted on her confession” (Hussain,123: 14).
2. “Another category may be, in which a self- exculpatory statement is made by the girl, as in this case, putting the entire blame for committing rape with her on the male accused. If there is evidence on the record showing that both of them had been seen in amorous position off and on, and that their relationship was of close and intimate lovers negating the possibility of rape, it may be sufficient to hold that the statement of the girl to the extent of self-exculpation, is not correct“.
(It is important to note: This does not mean that parties who share a close relationship as lovers, (prima facie) concludes that the possibility of rape is negated, as rape can take place even between intimate partners who have previously consented to intercourse (as prior consent does not mean consent for all time): what the judge is stating here is that, proof of prior sexual intimacy can challenge the truth of her self-exculpation). “In such a case she may be convicted. But her statement would not be evidence against her paramour under section 30 and in the absence of any other evidence, he may be acquitted” (Hussain, 123: 16).
3. Whether the burden of proof lies with the woman accusing a man of rape?
“If an unmarried woman delivering a child pleads that the birth was the result of commission of the offence of rape on her, she cannot be punished. This is the view of the Hanafis and the Shafis. But Imam Malik said she shall be subjected to Hadd punishment unless she manifested the want of consent on her part by raising alarm or by complaining against it later.”
Thus, applying these views Safia Bibi would be absolved of criminal liability as “information had been given by Mst Safia Bibi to her mother ” of the incident (Hussain, 122: 6). Although the judge did not specifically mention whether the decision would have been the same had she not told her mother, following the fact that he had given the view of Imam Malik less prominence in his judgement, it is possible to infer she may still have been acquitted.
This highlights that the burden of proof does not lie with the woman on accusation of rape.
In the absence of any other evidence other than the statement of Safi Bibi, Maqsood Ahmad was not convicted in respect of Zina- bil- Jabr, but the court also came to the conclusion that Safi Bibi could not be convicted for Zina when she pleaded the pregnancy to be the result of rape. Thus “this being a case of no evidence, the appeal is accepted and she is acquitted” (Hussain, 126: 31).