Swat Flogging

Hasan Shabbir · Post by **Hasan Shabbir** » Tue Apr 07, 2009 4:35 pm

Sunday, April 05, 2009

By Ayesha Siddiqa

As the entire Pakistani nation watches video footage of a 17-years-old girl screaming on their television screens during the process of her torture at the hands of the brutal Taliban in Swat, one wonders if the mothers, sisters, daughters and the male members of this nation will ever take time out to think about this system of justice advocated by these men who are not even qualified to interpret the Quran and Sunnah.

How did these men know that she had committed adultery? Or were the men in Iran, who ran a jeep over both the arms of a young boy to punish him for stealing sure about his economic circumstances? Sadly, all this will be justified in certain quarters as upholding of Sharia. But the legal system of any land is meant to do justice which is not just the application of some legal norms, but the application of law in conjunction with sensitivity towards the economic, social and political conditions of a place.

The application of Sharia is extremely complex as it entails a stringent mechanism for evidence. For instance, a witness has to meet certain conditions. The witness has to be one: (a) who has never been punished for any crime, (b) has always said all his prayers in time, (c) never urinated standing up, (d) never eaten from a market place, (e) never committed any major sin, (f) never committed any minor sin, and (g) never failed to carry out obligations prescribed by Quran and Sunnah. These conditions are so stringent that according to Pakistan's former Chief Justice Sajjad Ali Shah even he would not qualify to be a witness.

Referring to the case of the girl flogged in Swat, the fact of the matter is that this is one example of the dire conditions of women in a large number of Muslim societies where there is no legal system for this particular gender to prove their innocence. In Pakistan in particular where the Hudood laws were formulated under the Zia regime, the objective was not to bring justice in the society but to throttle all forms of justice. In this respect, the Taliban in Swat and those who ruled Afghanistan for some time are Zia'children. They use force arbitrarily and apply laws without the real context to enhance their own power.

For those, who think of General Ziaul Haq as an exemplary marde momin, it would be beneficial to read Tahir Wasti's seminal work --- Application of Islamic Criminal Law in Pakistan: Sharia in Practice". The book published in January this year and authored by a man, who has experience of both Islamic law and British common law, is the first detailed research enlisting the ramifications of the application of sharia law in Pakistan. The writer argues that Zia's decision to impose Nizam-e-Islam on February 2 1979 was not a sincere act. Wasti, in fact, argues that had the military dictator been sincere he would have also invoked the law of Qisas and Diyat as part of his Islamic regulations that mainly consisted of the five laws pertaining to: drinking, Zina (adultery), Zakat and usher, highway robbery, and theft. The punishment for some of these crimes is not even prescribed in the Quran.

The reason that Zia left out Qisas and Diyat, which finally became an ordinance in 1990 during Benazir Bhutto's government and finally passed as a law after twenty minutes of debate in parliament under Nawaz Sharif was because he was too eager to hang Bhutto. Such a law would not have allowed for the approver Masood Mehmood, which, in turn, means that Bhutto could not have been sentenced to death.

Not surprisingly, Bhutto had filed a review petition number 5-R of 1979 on 13/02/1979 in the Supreme Court asking that his case be tried under Sharia or Nizam-e-Islam through first invoking the law on Qisas and Diyat. Notwithstanding the fact that while in power Bhutto himself played to the gallery by using religion, in case of his trial his plea to use the religious law was primarily as a legal point that would technically stop the Zia government from sentencing him to death. Interestingly, as Wasti points out in his book, Zia kept returning the draft of this law until he had managed to put Bhutto to death. The Supreme Court justices gave a split decision on the Bhutto case arguing on page 29 of the decision of the said review petition that under section 302 of the PPC read with section 109 of the PPC, this was a case of unintentional murder in which there was no room for the witness of an approver. The decision including the said review petition by Bhutto is reported in PLD 1979 Supreme Court 741 and the two volumes on "Bhutto's Trial Documents" published by Justice Afzal Haider.

Zia's government also challenged other cases in which such a law needed implementation. Unfortunately, the author states, it were judges like Justices Tanzeel-ur-Rehman and Afzal Cheema who helped Zia cheat the entire country by bringing about amendments in the sharia law that suited the military dictator's interests and allowed him not to pass the law on Qisas and Diyat as long as he was alive.

What is even sadder is that such discrepancy in Nizam-e-Islam was never seriously challenged by any quarters. Even after the Qisas and Diyat law came into force, first as an ordinance, and later, as law, no one really pointed out the problem in invoking the said law. As Wasti points out in his book, since it is difficult to find a witness, the law of Qisas was never implemented and the government basically uses tazeer or diyat to pass judgments. Diyat allows for compromise in case of murder, a law which was framed not to bring peace and justice in the society according to religious principles, but to suit the interests of the more powerful. There are cases after cases reported in Wasti's book in which poor and weak people were forced to accept a compromise and forgive the murderers of their loved ones. The law even encouraged exchange of women as part of a settlement. Reportedly, since the law came into force some judges showed their magnanimity by ordering the payment of blood-money in addition to exchange of women. Interestingly, the system was never fully challenged by the legal community due to what senior lawyer and now human rights activist Iqbal Haider termed, on the floor of parliament in 1990, as greed of the legal community. This law permits lawyers to claim their fee without putting in effort that they would otherwise have to do to in defense of their clients.

The screams of the young Swati girl are the knock on the door of the entire society to wake up and not allow these men and others like them, who are at best Zia's children in terms of their sense of legal fairness, to bring violence in this country in the name of religion. This is not just about better treatment of women but also a matter of justice for all and peace and tranquility in the society. What is being presented as sharia is in reality a system that protects the unquestioned power of those who have monopoly over violence and resources in the society. A legal system is an ever-evolving process that needn't mimic the past without taking into account the circumstances. In the words of Maulana Amin Ahsan Aslahi, religion of the past is history of the present which can only be used as a good reference point and no more.

The writer is an Islamabad-based social scientist and author of Military Inc.

Khalida Chughtai · Post by **Khalida Chughtai** » Tue Apr 07, 2009 4:41 pm

Is the Fake Flogging Video an April Fools Joke of Geo TV?

Were feminist actresses or female anchors of Geo News TV, ARY OneWorld

TV, Aaj TV, or Dawn News TV flogged in the fake flogging video (hoax,

fiction and fraud) of Pakistan's Geo Television Network?

http://www.ummatpublication.com/2009/04/07/story3.html

Supreme Court Issues Order On Sawat Girl Lashing Incident

"Possibility cannot be ruled out that some fake CD or

material, with ulterior motives, has been prepared in order to

unnecessarily malign the people of Swat, who now are demanding for

application of Sharia Laws in that area." - Supreme Court of Pakistan.

http://www.ummatpublication.com/2009/04/06/lead8.html

Dated: 6 April 2009

(InformPress.com) - An eight-members Bench headed by the Chief Justice

of Pakistan [Supreme Court], Mr. Iftikhar Muhammad Chaudhry, passed an

order on the Suo Moto case concerning the [alleged] whipping of a

young girl in Sawat [Pakistan]. The other members of the [Pakistan

Supreme Court] Bench were Mr. Justice Javed Iqbal, Mr. Justice Sardar

Muhammad Raza Khan, Mr. Justice Khalil-ur-Rehman Ramday, Mr. Justice

Faqir Muhammad Khokhar, Mr. Justice Mian Shakirullah Jan, Mr. Justice

Raja Fayyaz Ahmed and Mr. Justice Chaudhry Ijaz Ahmed.

Sardar Muhammad Latif Khan Khosa, [PPP] Attorney General for Pakistan;

Mr. Ziaul-Rehman, Advocate General, NWFP; Mr. Abdul Latif Afridi, ASC,

President Bar Association, NWFP; Syed Kamal Shah, Secretary Interior;

Mr. Javed Iqbal, Chief Secretary, NWFP; Malik Naveed Khan, IGP, NWFP;

Mr. Khushal Khan, DCO, Swat, appeared before the [Pakistan Supreme]

Court. The Bench passed the following order:

1. "Learned Attorney General, who appeared on Court's notice stated

that in view of the information, tendered by private TV channels, i.e.

Geo and others, about happening of an incident of flogging, allegedly

took place in Tehsil Kabal, District Swat [Pakistan], police has

already registered a case under sections 365/354-A/342/337-L/121-A/120-

B/122/124-A/148/149 PPC and 7-ATA.

2. Malik Naveed Khan, IGP, NWFP stated that FIR [First Information

(Police) Report], though has been registered, but it is not known

exactly as to where the incident of flogging had taken place. However,

an investigation team - headed by DPO and Acting DIG, Swat, namely

Danishwar, two DSPs and two Inspectors - has been constituted to probe

into the matter. He further stated that, according to the rumors,

there were two incidents of such like cases, happened some time

before, in which one Chand and Moharaja were statedly subjected to

flogging. On coming to know about the present [Geo TV flogging video]

incident, efforts were made to produce Mrs. Chand [Khan] before this

Court, but she appeared alongwith her husband Adalat Khan before the

Commissioner, Syed Muhammad Javed, and Qazi Riaz, Allaqa Qazi

[Jurisdiction Judge], and both of them made statements u/s 164 Cr.P.C,

denying such incident. On our query he stated that the lady is not

willing to appear before media, etc.; therefore, Commissioner and

Allaqa Qazi had gone to her house for recording their statements.

Copies of both the statements have also been placed on record.

3. It is true that on basis of material, i.e. video etc., matter

requires detailed probe to locate the place of incident, application

of the law over there and to ascertain as to whether the sentence of

flogging was awarded lawfully or otherwise; therefore, we consider it

appropriate that a thorough inquiry is required to be conducted in

this behalf. We may further observe here that the investigation team,

besides examining different aspects of the case, may also examine the

notables of the area because according to the statement of Chand and

Adalat Khan, no such incident had taken place; therefore, possibility

cannot be ruled out that some fake CD or

material, with

ulterior motives, has been prepared in order to unnecessarily malign

the people of Swat, who now are demanding for application of Sharia

Laws in that area.

4. We have informed learned Attorney General that this Court is bound

to ensure that law is implemented in its letter and spirit, in

accordance with the provisions of the [Pakistan] Constitution, and if

there is any unlawful order and provisions of the Constitution are

being violated, particularly with regard to the dignity of human

being, then action is required to be taken in exercise of jurisdiction

under Article 184(3) of the Constitution, but if the law has taken its

course and the culprits, whosoever they may be, are booked for this

incident and they are being dealt with in accordance with law, then

the Court is not required to go deep into the matter because it is job

of the investigating agencies headed by officer of the rank of IGP.

Secretary Interior should be overall responsible to ensure the

implementation of law - particularly, Provincially Administered Tribal

Areas, where jurisdiction of this Court has been extended in terms of

Article 247 of the Constitution - and he should ensure that law and

the Constitution are fully implemented, because we feel that IGP and

Chief Secretary represent the Federal Government in the province, and

on behalf of Federal Government he can supervise such matter and

ensure that there should not be any lawlessness and highhandedness.

5. Mr. Latif Khan Afridi, learned Advocate and President, [Peshawar]

High Court Bar Association, also appeared on Court's notice and

explained that there is lot of lawlessness in different parts of NWFP.

However, on this learned Attorney General assured that the Federal

Government as well as Provincial Government fully realize their duties

and they are taking into consideration and going to hold a high

powered meeting headed by [PPP] Prime Minister of the country in order

to ensure that lawlessness is controlled not only in NWFP but all over

the country.

6. To ensure the progress in the case, Secretary Interior also

submitted a report which is duly signed by him as well as Chief

Secretary and IGP, NWFP. Let Interior Secretary, Chief Secretary and

IGP, NWFP submit fortnightly report to the [Pakistan Supreme Court]

Registrar for our perusal in Chambers."

The case was adjourned to a date in office.

Muhammad Bashir Janjua

Deputy Registrar - PRO

Supreme Court of Pakistan