Appraisal of The Protection of Women (Criminal Laws Amendment) Act, 20061

APPRAISAL OF THE PROTECTION OF WOMEN (CRIMINAL LAWS AMENDMENT) ACT, 20061 <!--[if gte mso 10]> APPRAISAL OF THE PROTECTION OF WOMEN (CRIMINAL LAWS AMENDMENT) ACT, 20061 THE PROBLEMS WITHIN Amber Darr* A. Introduction 1. On a hot June day in 2002, in the obscure village of Meerwala in southern Punjab, a twelve-year old Gujar boy Shakur is accused of "speaking" to Salma, a twenty-year old woman from the powerful Mastoi Clan. The enraged Mastoi beat and kidnap Shakur, accuse him of raping Salma and hand him to the police. The matter is taken up by the local Jirga of which the Mastoi form a majority. The Jirga, after conferring for several hours, decrees that a woman from Shakur's Gujar Clan should "appear before the Mastoi". Shakur's father chooses Shakur's divorced older sister to carry out the Jirga's mandate. 1. This paper was first presented at an International Conference on Access to Justice: Criminal Justice System held in Karachi from the 17th to the 19th of April, 2008. * The author has a Bachelor of Arts in English Literature and Economics from Bryn Mawr College, Pennsylvania, USA and was called to the Bar at Lincoln's Inn in 1997. She is presently a Partner in the firm of Haidermota & Co., and heads its office in Islamabad. She may be reached at amber.darr@gmail.com <mailto:amber.darr@gmail.com>. 2. After sunset, the sister, escorted by her father and two other male relatives, makes her way to the Mastoi farm. A crowd of angry Mastoi Men greets her on arrival. Five men step forward, aim rifles at the men accompanying her, and halt her progress. Hoping for mercy, she spreads a shawl at their feet and recites a prayer from the Quran. Her efforts are thwarted. The Mastoi do not want an apology they want revenge. The five men drag her to an empty stable and rape her. Does it last all night or only an hour? She does not remember. When they are done with her, the men shove her outside. Covered by little more than a shawl, she makes her way home under the eyes of the villagers, realising even in her numbness, that life for her would never be the same again. 3. A large number of stories of incidents of rape end at this point as the victims commit suicide or retreat into their shame either for lack of courage or of resources or both. This could easily have been the end of this story also. However, the woman in question-Mukhtar Mai-was made of sterner stuff. Instead of slipping into obscurity as she was expected to do, she chose to fight for justice, before the courts and through the media. As her publicly orchestrated drama unfolded it showcased in poignant detail not only her personal tragedy but also the arbitrariness of the tribal justice system, the mishandling of victims by the police and the ability of the rich to buy justice. More importantly however, it exposed the biases of the judicial system against women particularly those who may have been raped, and underscored the unfairness of the Zina and Qazf Ordinances that for twenty-seven years had victimised women in the guise of enforcing Islam. 4. Mukhtar Mai's struggle for personal justice in the years between 2002 and 2005 became a symbol for the struggle of every woman in Pakistan. Women who had otherwise remained silent, joined their voices with those of the women's rights against the injustice of the laws that governed their sexual lives. The media launched an effective, campaign to raise awareness of gender issues and the laws that govern them. Ultimately, it was the furore over the acquittal of Mukhtar's rapists by the Lahore High Court at Multan that brought the twenty-seven year old struggle of women's rights groups to a fever pitch and gave impetus to the movement for the reform of the Zina and Qazf Ordinances. 5. The much needed reform came in the shape of the Protection of Women (Criminal Laws Amendment) Act, 2006 which was finally enacted on 1st December 2006 amid much controversy, debate and even opposition. It was hailed by its champions as the first, most difficult step in the right direction and rejected by its detractors for being un-Islamic. The avowed aim of the Act was to bring the laws relating to Zina and Qazf in conformity with the injunctions of Islam and the principles of social justice enshrined in the Constitution. Whether or not the Act is in accordance with the Injunctions of Islam requires specialized research, which is beyond the scope of this paper. The aim of this paper is to discuss and to determine what the Act actually does for the furtherance of social justice and particularly what it does to protect women. B. The antecedents of the Act 6. In order to understand the full import of the Act it is nearly as important to trace its antecedents, as it is to understand its provisions. The Act primarily amends the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) (the Zina Ordinance) and the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979) (the Qazf Ordinance) both of which were promulgated during by one stroke of General Zia-ul-Haq's pen during his Islamization drive. 7. Interestingly, just as the present Act defines its objectives in the context of Islam, the objectives of the Zina and Qazf Ordinances were also couched in Islamic terms-to modify the then existing law relating to Zina and Qazf so as to bring these into conformity with the "Injunctions of Islam as set out in the Holy Qur'an and Sunnah". 8. The Zina Ordinance therefore repealed six offences from the Pakistan Penal Code, 1860 (the Penal Code): the offence of Adultery defined in section 4971 the offence of rape defined in section 3752, kidnapping, abducting or inducing a woman to compel her marriage etc. in 3663, selling a minor for purposes of prostitution etc. in 3724, purchasing a minor for purposes of prostitution etc. in 3735 and cohabitation caused by a man deceitfully inducing a belief of lawful marriage in 4936 and modified the offence of kidnapping or abducting in order to subject person to grievous hurt slavery or to the unnatural lust of any person etc. defined in section 367 of the Penal Code. The Qazf Ordinance did not repeal any offences as the offence of Qazf-or falsely accusing a person of Zina-was not part of the Pakistani criminal jurisprudence at that time. 9. The offences that the Zina Ordinance repealed were "secular" offences, in that they did not distinguish between Muslim and non-Muslim victims or offenders. However, once these offences were removed from the books altogether, neither Muslim nor non-Muslim victims or offenders could be held liable for them. The solution for this seems to have been that the Zina and Qazf Ordinances should equally apply to Muslims and non-Muslims whether they are the victims or the offenders. In the case of Zina-bil-jabr for instance, if the accused was a non-Muslim the Ordinance allowed the testimony of non-Muslim eyewitnesses. Although the rationale for subjecting non-Muslims to the Islamic punishments of Hadd and Tazir is not immediately apparent, it remained true that once these Ordinances were promulgated there was no other law under which grievances by or against non-Muslims could be addressed. 1. Pakistan Penal Code, 1860 Section 497: Adultery Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man such sexual intercourse not amounting to the offence or rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor. 2. Pakistan Penal Code, 1860 Section 375: Rape A man is said to commit "rape" who except in the cases hereinafter excepted, has sexual intercourse with.a woman under circumstance falling under any of the five following descriptions: Firstly. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. With her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under fourteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape. Pakistan Penal Code, Section 376: Punishment for rape Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished, with imprisonment of either description for a term which may extend to two years, or with, fine or with both. 3. Pakistan Penal Code, Section 366: Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other methods of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. 4. Pakistan Penal Code, Section 372: Selling minor for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation 1. When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall until the contrary is proved be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation 2. For the purpose of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation. 5. Pakistan Penal Code, Section 373: Buying minor for purposes of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution of illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Explanation 1. Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years, shall until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. Explanation 2. 'Illicit intercourse' has the same meaning in section 372. 6. Pakistan Penal Code, Section 493: Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and. to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which .may extend to ten years and shall also be liable to fine. 10. The Zina Ordinance listed eight offences. Of these, the offences of Zina7 and Zina-bil-jabr8 were new offences replacing the Penal Code offences of adultery and rape respectively. Unlike adultery and rape for which only men could be held liable, for Zina and Zina-bil-jabr both men and women were liable to the punishment of Hadd, which entailed whipping or even stoning to death and could be awarded if four male, adult Muslim eyewitnesses gave testimony against the accused (as stated earlier, for non-Muslim accused the testimony of non-Muslim eyewitnesses would suffice). If however the requisite number of eyewitnesses were not available the accused were punishable with tazir only i.e. a maximum imprisonment of ten years for Zina and twenty-five years for Zina-bil-jabr. 7. The Zina Ordinance, Section 4: Zina. A man and a woman are said to commit "zina" if they wilfully have sexual intercourse without being validly married to each other Explanation.---Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina. 8. The Zina Ordinance, Section 6: Zina-bil-jabr (1) A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or a man, as the case may be, to whom he or she is not validly married, in any of the following circumstances namely: (a) against the will of the victim, (b) without the consent of the victim, (c) with the consent of the victim when the consent has been obtained by putting the victim in fear of death or of hurt, or (d) with the consent of the victim when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr. (2) Zina bil jabr is liable to hadd if it is committed in the circumstances specified in subsection (1) of section 5. (3) Whoever is guilty of zina-bil jabr liable to hadd shall subject to the provisions of this Ordinance. (a) if he or she is a muhsan, be stoned to death at a public place; or (b) if he or she is not a muhsan, be punished with whipping numbering one hundred stripes, at a public place and with such other punishment, including the sentence of death, as the Court may deem fit having regard. to the circumstances of the case. (4) No punishment under subsection (3) shall be executed until it has been confirmed by the Court to which an, appeal. from the order of conviction lies; and if the punishment be of whipping, until it is confirmed or executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment. 11. The remaining six listed in the Zina Ordinance were the offences repealed from the Penal Code, with minor modifications in their elements. In the case of these offences, the Zina Ordinance retained the punishment of imprisonment and replaced the fine with the punishment of whipping. All offences listed in the Zina Ordinance were to be tried by the Court of Session or the Magistrates Court on the condition that the presiding officer of the court trying the offence be a Muslim. 12. The Qazf Ordinance focused on the single offence of Qazf. It specified exceptions to the offence e.g. a statement would not amount to Qazf if the imputation of Zina contained in the statement was true and made for the "public good" or if the statement was made in good faith in specified circumstances. Like Zina and Zina-bil-Jabr, the offence of Qazf could be liable to hadd-if it was inter alia, committed against a muhsan i.e. a person who has either not had sexual intercourse or had it only with their spouse-or Ta'zir if it was committed otherwise. The punishment of Hadd entailed eighty stripes whereas Ta'zir entailed a maximum of forty stripes, imprisonment of up to two years and fine. Interestingly, a person guilty of Qazf could only be punished in independent proceedings initiated under the Qazf Ordinance. The victim of Qazf was not a competent witness in such proceedings. 13. The Zina and Qazf Ordinances had the potential to work against women and did, particularly when a woman was raped or married against the will of her family. Women in rural areas were more vulnerable than their urban counterparts. The case of Farman Ali v. The State 2002 YLR 3064 recounted the ordeal of a woman who having been allegedly raped by her neighbours was accused and convicted of Zina because she hid the incident until her pregnancy became obvious. Although the Federal Shariat Court set aside her conviction in appeal, it' set aside the conviction of her rapists also for lack of evidence. In the case of Abdus Samad v. The State 2005 PCr.LJ 1071 the court rejected the appellant's plea that he was validly married to the woman he was accused of committing Zina with and confirmed the conviction of Zina because medical evidence had established that they had sexual relations. In the case of Mukhtar Mai itself the Lahore High Court at Multan overturned the death penalty awarded by the Dera Ghazi Khan Anti-Terrorism Court because the Zina Ordinance did not prescribe a punishment lesser than death and the court did not feel justified-on technical grounds-in awarding the death penalty! 14. It was certainly not possible in these days to even hope for, let alone secure the kind of judgment awarded by the High Court of Sindh at Karachi in the case of Saleh Muhammad v. The State PLD 1966 (W.P.) Karachi 101. In this case, Hon'ble Justice A.S. Faruqi had upheld the conviction of the appellant Saleh Muhammad, an SDO in the Public Works Department, largely on the evidence of the complainant, Miss Tabias Catherine a Luxumberg national who had been raped while travelling through Pakistan. 15. The legal regime of the Zina and Qazf Ordinances was one of fear and of evidential and procedural hardship, which did not inspire confidence in Muslim victims, let alone non-Muslims or foreigners, to approach the courts with impunity. For, the number of cases that finally made it to the appellate courts and whose judgments were reported in law journals there was an even larger number that failed in the early stages for lack of evidence but which nevertheless succeeded in damaging the woman either by falsely accusing her of Zina or in case she had been raped, by allowing her rapists to go free. Every few years a rape case or a case filed against a couple who had married against the wishes of their family, made the headlines only to fizzle out under pressure from the culprits and sometimes even from within the victim's own family. It was Mukhtar Mai's personal determination that brought,, the issues underlying these Ordinances to the fore and caught a hold of national attention. C. The Act itself 16. The Preamble to the Act invokes Article 14 of the Constitution of the Islamic Republic of Pakistan (the Constitution), which ensures that dignity of man and, subject to law, the privacy of home, shall be inviolable. It also invokes Article 25 of the Constitution, which guarantees that there shall be no discrimination on the basis of sex alone and that the State shall make provisions for the protection of women. It finally invokes Article 37 of the Constitution, which encourages promotion of social justice and eradication of social evils. The Preamble then proceeds to state that the objective of the Act is to bring particular laws relating to Zina and Qazf in conformity with the stated objectives of the Constitution and the Injunctions of Islam to which end the Act amends the Zina and Qazf Ordinances, the Pakistan Penal Code, the Code of Criminal Procedure, 1898 and the Dissolution of Muslim Marriages Act, 1939. 17. For ease of understanding the scheme of the Act, its provisions May be divided into four categories. In the first category are offences, which have been removed from the Zina Ordinance and reinserted in the Penal Code. The definition of these offences remains largely the same in their journey from the Penal Code to the Zina Ordinance and then back again to the Penal Code, however there have been changes to the punishment of these offences. In the second category are offences, which have undergone substantial modifications in their definitions as well as in their punishments, in the third are new offences for which there is no direct precedent in the Pakistani criminal jurisprudence and in the, fourth and final categories are changes-both procedural and otherwise-which impact upon the remaining offences in the Zina and Qazf Ordinances. 18. In the first category, the offences that the Act reinserts in the Penal Code are: Kidnapping, abducting or inducing woman to compel for marriage etc.9; Kidnapping or abducting in order to subject person to unnatural lust10; Selling person for purposes of prostitution, etc.11; Buying person for purposes of prostitution, etc.12; Cohabitation caused by a man deceitfully inducing a belief of lawful marriage13 and Enticing or taking away or detaining with criminal intent a woman14. 9. Reinserted as section 365B of the Penal Code 365B. Kidnapping, abducting or inducing woman to compel for marriage etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. 10 Reinserted as section 367A of the Penal Code 367A. Kidnapping or abducting in order to subject person to unnatural lust: Whoever kidnaps or abducts any person' in order that such person. may be subjected, or may be so disposed of as to be put in danger of being subjected to the unnatural lust of any person, or knowing that it to be likely that sucperson who will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend, to twenty-five years and shall also be liable to fine. 11. Reinserted as section 371A of the Pakistan Penal Code 371A. Selling person for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any person with intent that such person shall at any time be employed. or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty five years and shall also be liable to fine. Explanations.- When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. (b) For the purpose of this section and section 371B, "illicit intercourse" means sexual intercourse between parties not united by marriage. 12. Reinserted as section 371B in the Penal Code. 371B. Buying person for purposes of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years and shall also be liable to fine. Explanation.--Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. 13. Reinserted as section 493A in the Penal Code. 493A. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Every man who deceitfully causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty five years and shall also be liable to fine. 14. Reinserted as section 496A in the Penal Code.' 496A. Enticing or taking away or detaining with criminal intent a woman.-Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term-which may extend to seven years and shall also be liable to fine. 19. These reinserted offences are distinct from their repealed Penal Code counterparts in respect of the punishments, which are now greater than the offences that were repealed in 1979. Furthermore, in the case of buying and selling of persons for prostitution the offence is- now not restricted to buying and selling of minors only and in the case of enticing, it is no longer only an offence if the woman so enticed is married. However, the only distinction between these offences and their versions in the Zina Ordinance is in the punishment. These offences are no longer liable to Ta'zir and instead of stripes and fine the accused may now only be imprisoned or fined. 20. There is only one offence in the second category i.e. the offences that the Act substantially modifies, and this is the offence of Zina-bil-Jabr. This offence and its punishment have been deleted from the Zina Ordinance and have been replaced by the offence of rape and its punishment in the Pakistan Penal Code. The definition of the offence is provided in the new section 37515 and its punishment is detailed in section 37616. 15. Penal Code Section 375: Rape.-A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: (i) against her will; (ii) without her consent; (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt; (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) with or without her consent when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape 16. Penal Code Section 376: Punishment for rape.-- (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall-not be less than ten years or more than twenty-five years and shall also be liable to fine. (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life. 21. The offence of rape is distinct from its immediate predecessor, the offence of Zina-bil-Jabr in more than one respect. Firstly, according to its new definition only men may be liable for rape: Even though this aspect of the offence may be seen to benefit women, it may be plausibly argued that it is retrogressive in that it removes protection for men and even for underage boys. Secondly, the new definition allows for the offence of marital rape by not excluding sexual relations between a man and his wife from within the ambit of the definition. In doing so the definition improves upon the definition of Zina-bil-jabr as well as the repealed offence of rape in the Pakistan Penal Code. Finally, while the previous definitions of the offence had set the age of consensual sex at thirteen, the Act raises it to sixteen bringing it in line with international thresholds in this regard. Consequently, sexual intercourse with a girl below the age of sixteen, whether it is with or without her consent is also rape. 22. Even more significant than the substantial changes in the definition of the offence are the changes in the punishments and in the rules of evidence. The punishments of Hadd and Tazir are no longer applicable for the new offence, for which punishment may range from death, to imprisonment for a minimum of ten and a maximum of twenty-five years and fine. It is no longer a requirement of law for a victim to produce four male eyewitnesses to secure the maximum punishment. For persons guilty of gang rape, the Act retains the death penalty but also provides the alternate punishment of life imprisonment. 23. In the third category-new offences-as in the first, there is only one offence: fornication17. The definition of this offence is identical in substance to Zina. However, while Zina may be liable to Hadd, fornication is punishable only with imprisonment extending to five years. In order to prove fornication, the accuser would be required to provide the testimony of two eyewitnesses. If the accusation proves to be false, the accuser may be punished with imprisonment for a term, which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees18. 17. Penal Code Section 496B: Fornication.-A man, and a woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a tcnn which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees 18. Penal Code, Section 496C: Punishment for false accusation of fornication.-Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees: Provided that a Presiding Officer of a Court dismissing a complaint under section 203C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence. 24. In the fourth category are provisions of the Act that deal with procedure. Unlike the Zina and Qazf Ordinances, which required FIRs to be lodged with the police, the Act allows complaints of Zina and fornication to be filed directly in the courts, with the objective perhaps of discouraging frivolous complaints and potential harassment of victims at the hands of the police. The Act allows the Presiding Officer of these courts to proceed with the case only if he determines upon a preliminary inquiry and after examination of witnesses that -there is merit in the matter. D. The Problems within 25. The Act is not a stand-alone law. It is rather an amalgamation of amendments made to a number of laws. The consequent legal scheme is confusing even for the lawyer let alone a layperson trying to understand his or her rights. At the one extreme of the spectrum is the offence of Zina which is governed by ostensibly Islamic rules of evidence and may be liable to Hadd or Ta'zir, whereas on the other extreme of the spectrum is the very similar offence of fornication which may be tried under the mainstream criminal procedure and evidence rules. Somewhere between the two extremes is the offence of rape, which is to be tried in accordance with the mainstream rules of procedure and evidence but without the added safeguards provided to persons accused of Zina. 26. The rationale for maintaining several jurisdictions for these offences and different rules of evidence and procedure is not immediately clear. What is certain however is that these different jurisdictions and rules are likely to create problems for the very persons they seek to protect. Although in cases of Zina, Qazf and fornication the accused may avoid harassment at the hands of the police due to the fact that the Act requires complaints to be lodged before courts, there is no such comfort for victims of rape. 27. The Act does not specify a procedure for filing complaints of rape, which means that these complaints are to be filed in the normal course, at a police station. Consequently, a rape victim would still be required to lodge an F.I.R. with the local police. Not only would this continue to raise issues of personal discomfort for women but would also leave them vulnerable to the allegiances of the police to local influential. Like Mukhtar Mai, a woman may be subjected to harsh treatment at police stations, separated from her family who may have come to support her complaint and even be made to place her thumb impression on a blank piece of paper. Given that it was in fact the discrepancy between the "statement" Mukhtar had recorded before the local police and the one she made before the Judge in Alipur, that allowed the Multan High Court to release her rapists, the Act may have focused more closely on this area. 28. The Act also does not consolidate Zina and Qazf proceedings. Consequently, a woman falsely accused of Zina is still required to file independent proceedings under the Qazf Ordinance to have her accuser punished. It is not clear whether a separate application would be required in case there has been a false accusation of fornication, which offence has been kept beyond the ambit of both the Zina and Qazf Ordinances. Had the Act allowed proceedings to be consolidated, persons falsely accused of Zina would have been in a position to walk away from a court that acquitted them with the comfort that the persons who had wronged them had been punished. There is at present, no such comfort. In order to secure complete justice not only would they be required to muster more resources-which may already be scarce-but more importantly the energy to pursue the matter. It may therefore be the case that a person may falsely accuse another of Zina and may remain unpunished even though the acquittal of the persons accused of Zina itself had established that the accusation had been false. 29. The Act also falters in failing to recognize the difficulty that a woman is likely to experience in facing trial for any of the offences listed in the Act and failing to provide safeguards in such situations. The Act does not relax the evidentiary and procedural rules for women in cases where they are required to be present and to record their testimony. The Act also does not require the court to give due weight to the testimony of the victim, as was done in the case of Saleh Muhammad nor does it mandate the presence of female court officers or attendants at any stage of the court proceedings to assist the female victims. 30. More than all substantive issues that may make reduce the effectiveness of the Act, the Act appears to have failed in its objective. The fact that the Preamble to the Act invokes various Articles of the Constitution and declares that it will bring the laws relating to Zina and Qazf within the. ambit of the Constitution and in conformity with the Injunctions of Islam, casts a shadow on the fundamental constitutionality and Islamic validity of the Zina and Qazf Ordinances. It also raises the important question that if in fact these Ordinances are ultra vires of the Constitution and not even in conformity with the Injunctions of Islam as the Preamble suggests, then why are they not repealed altogether? The Act however stops short of such bold declarations or actions and restricts itself to making limited changes in the existing laws. E. Conclusions 31. Legal reform is only one aspect of social progress. It is not designed to and cannot wipe away social ills with the stroke of the pen. It cannot prevent real or imaginary grievances against women from being "settled" out of court with the axe, the pistol or the trusty kitchen fire or as in the case of Mukhtar Mai, by the verdict of a local Jirga, which directs a father to escort his daughter to her rapists. Nor can it wipe away the age-old stigma attached to rape, which makes it easier for a victim to end her life than to risk further humiliation by approaching the police or the courts. 32. The measure of the success of any law therefore is not its immediate impact on social ills, but its capacity to act as a deterrent and to provide easy access to justice to the persons it seeks to protect. Measured against this yardstick, the absence of reported judgments in matters of Zina suggests that the Act may have curtailed frivolous Zina complaints and therefore succeeded as a deterrent. More disturbingly, the absence of reported judgments in rape cases, suggests that the Act has failed to provide a stimulus to the institution of genuine rape proceedings, and has therefore faltered in providing easy access to justice to the very women it purports to protect. 33. The absence of reported cases does not however conclusively establish that the Act has succeeded as a deterrent and women are now better protected. A simple reason for the absence of judgments may be the endemic delay in the court system which means that a case which starts as a trial before the Magistrate's or the Session's Court may only reach the High Court after a gap of several years and then too only if the victim or the accused has the energy or the resources to file an appeal. It is an indication of the delay in courts that cases filed before the promulgation of the Zina and Qazf Ordinances were decided in' appeal even as late as 2005. 34. What the absence of reported judgments does establish is that the provisions of the Act remain judicially untested and evaluated. Given the exigencies of trials and appeals it may be some time before cases filed under the Act mature to a stage where they can be reported and form part of the jurisprudence on this subject. Until then, a final judgment on the effectiveness of the Act may be withheld. 35. With all its shortcomings, the Act nevertheless marks the first, perhaps most difficult step in affording women the rightful and much needed protection under law and in that lies its value. As long as those of us who are concerned about the rights of women, do not forget that the struggle to ensure women's rights has only now found its feet we will appreciate the Act for its positive contribution but continue to persist for further reform in the laws pertaining to women.