GUL SHER Versus ADDITIONAL AND SESSIONS JUDGE/EX OFFICIO JUSTICE OF PEACE, BHOWANA
TARIQ SALEEM SHEIKH, J.--- On 02.04.2015 Faraz, the brother of Respondent No.4, was murdered in respect of which FIR No.168/2015 was registered against Nawaz son of Mahna at Police Station Bhowana. Nawaz was arrested and while he was in jail his family approached the village elders to help broker a compromise with the deceased s legal heirs. They convened a Panchayat which decided that Nawaz would give the hand of his daughter in marriage to the victim party and in the event of default the Petitioner would pay them Rs.10,00,000/- as penalty. Accordingly, the Petitioner gave Cheque No.1556117547 dated 26.09.2019 for the said sum to Respondent No.4. Subsequently Nawaz refused to marry his daughter as per settlement and the Cheque in question also bounced. On 02.10.2021 Respondent No.4 moved an application under section 22-A, Cr.P.C. before the Ex-officio Justice of Peace, Bhowana, contending that the Petitioner was liable to be prosecuted for an offence under section 489-F, P.P.C. (dishonestly issuing a cheque) and prayed that a direction be issued to the Respondent SHO for registration of FIR against him as it was a cognizable offence. The Ex-officio Justice of Peace accepted that application vide order dated 16.10.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution ), the Petitioner has challenged that order before this Court.
2. Heard. Record perused.
3. Article 1 of the Universal Declaration of Human Rights (UDHR) proclaims that all human beings are born free and equal in dignity and rights. Article 2 prohibits distinction in rights on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The UDHR together with the ICCPR 2 and ICESCR 3 are considered the International Bill of Human Rights. On 18 December 1979, the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to focus on all those areas in which women are denied equality with men. This Convention does not explicitly mention violence against women and girls but the CEDAW Committee 4 held in General Recommendation No.19 that gender-based violence (GBV) is a form of discrimination that seriously inhibits women s ability to enjoy rights and freedoms on the basis of equality with men so the definition of discrimination given in Article 1 of CEDAW includes GBV. 5 The 1993 Declaration on the Elimination of Violence against Women (DEVAW) is the first international instrument which specifically addresses the issue of violence against women and provides a framework for national and international action. 6 DEVAW was adopted without a vote by the UN General Assembly through Resolution 48/104 of 20 December 1993. Pakistan ratified CEDAW on 3 December 1996.
4. The 1993 World Conference on Human Rights recognized violence against women as a human rights violation and called for the appointment of a Special Rapporteur in the Vienna Declaration and Program of Action. 7
5. Article 1 of DEVAW explains that violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article 2 adds that the aforementioned expression includes (but is not limited to) the following: a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
6. The Constitution of Pakistan (1973) guarantees equal rights to women and prohibits any discrimination on the basis of sex (Article 25). The Principles of Policy obligate the State to take steps to ensure full participation of women in all spheres of national life (Article 34) and to protect the marriage, the family, the mother and the child (Article 36) and make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment [Article 37 (e)].
7. GBV impairs women s and girls fundamental rights, particularly their rights to life and dignity. In Atif Zareef and others v. The State (PLD 2021 SC 550) the Hon ble Supreme Court of Pakistan held:
[A woman s] right to dignity under Article 14 of the Constitution is an absolute right and not subject to law. Dignity means human worth: simply put, every person matters. No life is dispensable, disposable or demeanable. Every person has the right to live, and the right to live means right to live with dignity. A person should live as person and no less. Human dignity hovers over our laws like a guardian angel; it underlies every norm of a just legal system and provides an ultimate justification for every legal rule. Therefore, [the] right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable.
8. In various parts of Pakistan there is custom of vani or swara under which girls are given in marriage or servitude to an aggrieved family as compensation to end feuds, generally murder and rape. It is a punishment decided by a Jirga (council of tribal elders). The result of vani or swara is that the criminal gets away with his crime and one or more girls have to pay the price of the crime for the rest of their lives. 8 Such nefarious practices cannot be preserved even in the name of culture. In Cooper et al. v. Aaron 358 U.S. 1 (1958), Frankfurter J. said:
Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.
9. The custom of vani or swara is un-Islamic. In Surah Al-Fatir, Ayah 18, the Quran says:
No bearer will bear the burden of any other person.
Similarly, Surah Al-Anaam, Ayah 164 says:
And every soul earns not (blame) except against itself, and no bearer of burdens will bear the burden of another.
10. In Mst. Sakeena Bibi and 2 others (PLD 2022 FSC 57), relying upon the above-mentioned Quranic Verses and the Last Sermon and two other Ahadith (Traditions) of Holy Prophet Muhammad (peace be upon him), the Federal Shariat Court has also declared that vani and swara are un-Islamic. It ruled:
This evil practice of forced marriages of girls in the name of compensation of murder, raping and settling of other disputes has been in prevalence in different parts of Pakistan by different names like vani, swara, sharam, khoon baha, sang chatti and karo-kari, etc. All such evil practices in which females are given in Nikah or otherwise to the victim party in the name of consideration for compromise or badal-i-sulh are un-Islamic and against the principles of Holy Quran and Sunnah.
11. Article 8(1) of the Constitution mandates that all laws, customs and usages which are inconsistent with or in derogation of the Fundamental Rights are void. The custom of vani / swara falls within the mischief of Article 8(1) and cannot, therefore, be practised. In National Commission on Status of Women and others v. Government of Pakistan and others (PLD 2019 SC 218) the Hon ble Supreme Court held that honour killings for retribution of the patriarchal concept of honour or compelling women to be wed without their consent as a means of settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the Constitution which enjoins that no custom in derogation of any fundamental right can prevail under the law. In Muhammad Siddique v. The State (PLD 2002 Lah. 444) a Division Bench of this Court held: No tradition is sacred, no convention is indispensable and no precedent worth emulation if it does not stand the test of the fundamentals of a civil society generally expressed through law and the Constitution.
12. In view of the above, the Legislature has criminalized vani/swara through section 310-A, P.P.C. which reads as under:
310-A. Punishment for giving a female in marriage or otherwise in badla-e-sulh, wanni or swara. Whoever gives a female in marriage or otherwise compels her to enter into marriage, as badal-e-sulh, wanni, or swara or any other custom or practice under any name, in consideration of setting a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.
13. Let s now come to the case at hand. A bare perusal of the application of Respondent No.4 under section 22-A Cr.P.C. shows that the compromise between the accused, Nawaz, and the legal heirs of Faraz deceased was brokered by a Panchayat. In National Commission on Status of Women and others v. Government of Pakistan and others (PLD 2019 SC 218) the apex Court held that the Jirga or Panchayat must operate within the law. It cannot make any decision which is arbitrary, unjust, illegal or contrary to the fundamental rights guaranteed by the Constitution. As regards the criminal cases, the Supreme Court approvingly cited the following excerpt from Hasnain Akhtar v. Justice of Peace (2015 YLR 2294): the law of the land does not countenance/approve of deciding criminal cases through the intercession of the Panchayats/ Arbitration Councils. Even otherwise, it is tantamount to bypassing and short-cutting the procedure provided for under the law.
14. The aforementioned compromise was effected in terms that Nawaz would marry his daughter in the victim party s family and the Petitioner gave Cheque No. 1556117547 as security for due performance of that agreement. The Panchayat, in fact, enforced the custom of vani/swara which is not only un-Islamic but also illegal. Hence, the so-called compromise was void ab initio. The question as to whether this holding would impact the order of acquittal favouring Nawaz has not been raised in these proceedings so I have not considered it.
15. Insofar as Cheque No.1556117547 is concerned, it is also void under section 24 of the Contract Act, 1872, because the consideration therefor is unlawful and against public policy. Respondent No.4 can neither sue the Petitioner on the basis thereof nor invoke section 489-F, P.P.C. for a criminal prosecution.
16. The Ex-officio Justice of Peace has passed the impugned order dated 16.10.2021 in a slipshod manner without considering the facts of the case properly. In view of what has been discussed above, this petition is accepted and that order is set aside. 9
SA/G-24/L Petition accepted.
1 Tahira Ehsas. - Cited in Court Companion on Gender-Based Violence Cases (2021) at p. 78
2 International Covenant on Civil and Political Rights.
3 International Covenant on Economic, Social and Cultural Rights.
4 A committee of experts which assists in the interpretation and implementation of CEDAW.
5 un.org/womenwatch/daw/cedaw/recommendations/recomm.htm
6 Global norms and standards: Ending violence against women . Available at: unwomen.org/en/what-we-do/ending-violence-against-women/global-norms-and-standards
7 ibid
8 Zarizana Abdul Aziz et al., Court Companion on Gender-based Violence Cases (September 2021), p.36.
9 I appreciate the Asian Development Bank for publishing the book Court Companion on Gender-based Violence Cases and acknowledge that it has been of great help to me in writing this judgment. I have used a lot of material from that research work.