Critics of the law include those who claim that it equiparates the crime of zina (adultery) and zina bil-jabr (rape). As for the rape, a woman alleging rape is required to provide four adult male eyewitnesses. In principal the failure to find such proof of the rape does not place the woman herself at risk of prosecution. However in practice these safeguards have not always worked.Moreover, to prove rape the female victim has to state that sexual intercourse had taken place, which seems in practice to be viewed judicially as an admission of guilt on her own part, rather than as evidence of rape. If the alleged offender, however, is acquitted for want of further evidence the woman now faces charges for either adultery, if she is married, or for fornication, if she is not married. According to a report by the National Commission on Status of Women(NCSW) "an estimated 80% of women" in jail in 2003 were there as because "they had failed to prove rape charges and were consequently convicted of adultery."
Stories of great personal suffering by women who claimed to have been raped appeared in the press in the years following the passing of the Hudood Ordinance. The case of Safia Bibi is one of this: a blind girl and victim of rape who was prosecuted for the crime of zina because of her illegitimate pregnancy, while the rapist was acquitted. The case stirred many protests from Pakistani activists and lawyers along with international human rights organizations. The appeal judgment of the Federal Shariah Court cleared the girl of the accusation of zina.
The evidence of guilt was there for all to see: a newborn baby in the arms of its mother, a village woman named Zafran Bibi. Her crime: she had been raped. Her sentence: death by stoning. Now Ms. Zafran Bibi, who is about 26, is in solitary confinement in a death-row cell.
Thumping a fat red statute book, the white-bearded judge who convicted her, Anwar Ali Khan, said he had simply followed the letter of the Qoran-based law, known as hudood, that mandates punishments.
"The illegitimate child is not disowned by her and therefore is proof of zina," he said, referring to laws that forbid any sexual contact outside marriage. Furthermore, he said, in accusing her brother-in-law of raping her, Ms. Zafran had confessed to her crime.
However, Mufti
Taqi Usmani, an instrumental figure in making the law, has stated:
If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment.
A number of international and Pakistani human rights organizations still campaign for the law's repeal. Some argue that it goes beyond what is required by Sharia. They are opposed by conservative religious parties, who accuse them of departing from Islamic values. The governments of
Benazir Bhutto and
Nawaz Sharif both set up commissions to investigate the Hudood Ordinance. Both commissions recommended amending certain aspects of the law, but neither government followed through.