Women's Empowerment and Leadership Development for Democratisation

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Pakistan: Zina judgement quashed by court

Sindh High Court Hyderabad ordered the District and Sessions Judge Hyderabad to record the statement of a petitioner under section 164 Criminal Procedure Code (Cr. P.C.) and stopped her arrest under section 11/16 of Zina and Hudood Ordinance.
The right to decide a marriage partner is upheld and zina is quashed by Pakistani court.

HYDERABAD, April 26: The petitioner, a 21 year old girl Fatima Gahelro was represented by Advocate Ayaz Latif Palijo who cited Senior Superintendent of Police Mirpurkhas, SHO of police station Bodar Farm and her father Muhammad Salih as respondents.

The petitioner claimed that she is one of those oppressed
rural girls who have been denied the right to choose and the right to say, who
face death by shooting, burning or killing with axes if they are deemed to have
brought so-called "shame" on the family by daring to marry men of their own free
will or by divorcing forcibly imposed so-called husbands. According to our rural
men it is criminal to marry of one's own free will. They feel sympathy with
lovebirds in novels & movies and show disgust and disapproval to such trends
in real life. They have been killing in the name of so-called honour (Karo Kari)
and they consider a woman's life so worthless that anyone should be allowed to
take it. 

Her lawyer argued that in recent years the media has
achieved some freedom and has focused on the plight of oppressed sections of the
society like the rural women. Newspapers, magazines and Human Rights and Women's
Organizations have also become active imparting awareness to the unaware of
their fundamental, constitutional, legal and human rights in the light of that
information the petitioner also decided to exercise her right to choose and when
her father and other relatives forced her for their ulterior purposes to marry
an elderly sick person, she refused to marry him.

Fatima told the court
that since the day of her refusal the petitioner was kept virtually as a
prisoner against her will in illegal confinement and subjected to hardships and

oppression and was beaten in order to compel her to agree to be taken away by a
sick old man. Due to the above mentioned cruel acts of the relatives the hatred
in the mind of the petitioner reached up to the extent that it became impossible
for her to stay with them and sometimes she even thought about the suicide. In
those moments of depression and hopelessness one Shahnawaz s/o Ali Khan r/o
Village Shahlam Khan, Omarkot appeared as a symbol of hope and trust and the
petitioner decided to marry him.

Ultimately the petitioner left her home
and on 18-03-2002  and the Nikah was performed in Khipro, they were tied
into matrimonial bonds and  an affidavit was also sworn by the petitioner
before the Civil Judge and Ist Class Magistrate Khipro on 18-03-2002. On
28-03-2002 at 7-00 pm her father along with 6 unknown persons armed with pistols
and other weapons attacked at the home of her in-laws in search of the
girl  and told her in laws that they have got a case No. 05/2002 registered
against the petitioner and her husband at PS Bodlo Farm under section 10/16 Zina
and Hudood Ordinance (Islamic Law against the adultery) and they will kill them
as karo and kari.

Since then the police is also raiding their houses and
she apprehends that she would be abducted and killed. Prominent young lawyer
Ayaz Latif palijo argued that the full bench of Honourable  Federal
Shareeat Court has held in PLD  1981 FSC  308 that, "the marriage of a
woman is like the sale of her property. Just as after achieving adulthood she
has right to part with her own property without seeking the permission of anyone
else, so she has the right to give over her person in marriage also without the
consent of any wali."  He further argued that Hon Sindh High Court has also
held in 1999 PCrLJ 648 that, "continuation of the proceedings under FIR u/s 452
PPC and 10 and 11 of offence of zina (Enforcement of Hudood Ord. 1979) would
cause unnecessary harassment and humiliation to the petitioner and her husband,
would deprive them from leading a peaceful and undistributed married life and
amount to abuse of the process of law."

In this historical case
Additional Advocate General appearing on behalf of the police and state opposed
the prayer of Fatima and requested that she maybe sent to Mirpurkhas with police
for legal requirments and the concerned Police Officer present in the
Court  requested for her medical checkup. On this Ayaz Latif Palijo agued
that if she would be sent to Mirpurkhas she will be killed by her relatives.
Later under the instructions of Mr. Justice Atta-U Rehman her statement was
recorded on the same day in the Court of Judicial Magistrate 3 Hyderabad where
she expressed the desire to go with Shah Nawaz thus she was accordingly released
to go with him and the F.I.R. will be disposed of