Women and Justice: Court: Supreme Court of Pakistan

Domestic Case Law

Khaki v. Rawalpindi Supreme Court of Pakistan (2009)

Gender discrimination, LGBTIQ

The Supreme Court of Pakistan considered the social status and injustices caused to the transgender population. The Court noted that under the Constitution of Pakistan, transgender individuals are entitled to enjoy constitutional rights like every other citizen of Pakistan. Over the years, transgender individuals in Pakistan have been deprived of inheritance, other property rights, voting rights, education, and employment due to the stigma and exclusion they have suffered. The Court directed the National Database and Registration Authority to adopt a strategy for recording exact status in the electoral list and the Federal and Provincial Governments to ensure that transgender individuals receive childhood education. The Court directed the Chief Secretaries/Commissioners to consult with the Social Welfare Department to implement the order and prepare a policy that would allow transgender individuals to vote during elections.

Lehdeaho v. SHO, PS Chung, Lahore and others Supreme Court of Pakistan (2017)

Divorce and dissolution of marriage

The petitioner was a mother who moved with her husband, the respondent, to Canada with their three minor children in 2009. The respondent moved back to Lahore, Pakistan and the children stayed with the petitioner in Canada. The respondent wanted the entire family to move back to Lahore. To this end, he approached the Guardian Court in Lahore and declared himself as the guardian of the person and property of his children. When they came to visit him, he refused to let the children go back to Canada. Under the Guardians & Wards Act of 1890, the Guardian Court is any lower court that can hear an application for custody and guardianship of children. The respondent proceeded to file an application for custody of the children before the Guardian Court. The petitioner was in Canada when she received the notice of the proceedings for custody and unable to immediately enter Pakistan as her visa had expired. In her absence, the Guardian Court passed an order giving the custody of the children to the respondent until the petitioner could appear before the Guardian Court. The petitioner filed an application to the High Court for custody of her children, which was dismissed as the matter was still pending before the Guardian Court. The High Court’s reasoning was that because the Guardian Court is where the evidence and witnesses are evaluated, it is the appropriate forum for the case to be heard for custody of children. The Supreme Court of Pakistan considered whether the High Court had jurisdiction to hear the petition on custody matters pending a final decision by the Guardian Court. The Supreme Court observed from previous case law that the Guardian Court is the final arbiter on questions of custody of a child. However, this should not disadvantage a person illegally deprived of custody of a minor child from a remedy to regain custody pending adjudication by the Guardian Court. On this basis, the Supreme Court held that the High Court has the right to pass orders where it would be in the best interest and welfare of the minor. The Supreme Court also held that the High Court has jurisdiction to restore custody to the person lawfully holding such custody while the Guardian Court gives its final orders. After considering that the children wanted to move back to Canada with their mother, the order was passed in her favor.

The Case of Fauzia Parveen Supreme Court of Pakistan (2013)

Sexual violence and rape

Proceedings were initiated on basis of a press clipping dated 4th November, 2013, indicating the gang rape of a deaf dumb woman, Mst. Fauzia Parveen who took it upon herself to go to the Magistrate when no one believed her and submitted an application for a medical examination (which was ultimately granted and conducted clearly revealing evidence of rape). The Court determined that the facts support the allegation of rape and also that the police were negligent in dealing with the matter and tried to cover up their negligence. The Court notes that, regardless of the inconsistency regarding the number of men who raped the victim, “as per the medical report the happening of the incident cannot be denied”. Quite importantly, the Court seeks accountability for the incident and confirms police negligence in handling the complaint (e.g., the victim’s statement was not properly documented by the investigating officers). The Court goes so far as to say, “Prima facie, we are of the opinion that the police has been influenced on account of extraneous reasons, because no action has been taken either by the police or the high ups, despite the fact that the matter was brought to their notice.” The Court directed the Inspector General Police, Punjab to initiate an independent investigation and criminal proceedings against the negligent police officers and involved officials.

The State, Mai and others v. The State, Abdul Khaliq and others Supreme Court of Pakistan (2011)

Sexual violence and rape

In this highly publicised case, the Supreme Court considered ten matters - eight are appeals by the victim against the acquittal of the accused rapists; one appeal has been filed by the convicted and the one is a suo moto action of the Court recalling the judgement in the gang-rape case that acquitted five of the six accused. Fourteen men were indicted in the gang rape of Mukhtar Mai in 2002, undertaken in revenge for an alleged breach of decorum by her brother and sanctioned by a panchayat (village council). Ultimately, eight of the accused were acquitted due to lack of evidence, and the remaining six were given death sentences by the trial court. The High Court then acquitted five of the six and converted the death sentence of the last accused to a life sentence. The petition of the victim asserts that, amongst other things, it is erroneous to hold that the delay in lodging of a complaint is fatal to the prosecution case. The petition also asserts that it is erroneous to hold that the testimony of a rape victim requires corroboration. In this case there was a conclusive medical report confirming rape and the rape did not take place in private (as a matter of fact, the victim was thrown out of the room partially undressed for all to see). The Court set aside the acquittals and sentenced them on each count to imprisonment for ten years, running concurrently.

The Case of Naila Farhat Supreme Court of Pakistan (2009)

Acid violence

The acid violence case of Mst. Naila Farhat was brought in November 2008. In 2003, the perpetrator sprayed acid on the (then) 13 year old victim’s face in retaliation for her refusal of a marriage proposal. Ultimately, he was sentenced to 12 years imprisonment and ordered to pay 1.2 million rupees in damages. However on appeal to the High Court, the Judge stated that if he paid the fine he would not be imprisoned. In April 2009, the victim appealed to the Supreme Court and was the first case on an acid attack to reach the Supreme Court. The case was heard by the Chief Justice at his own initiative on the 20 November 2009, not only highlighting the concept of acid violence (and giving the perpetrator a higher sentence than the first lower court as well as imposing a fine), but there were also important recommendations given to the government for (a) providing free medical treatment and legal aid to acid/burn victims to facilitate their recovery; and (b) the development of relevant legislation to specifically deal with acid violence in Pakistan. The case lead to the creation of the Acid Control and Acid Crime Prevention Bill.

Muhammad Akram Khan v. State Supreme Court of Pakistan (2001)

Harmful traditional practices, Honor crimes (or honour crimes)

The Supreme Court for the first time ever approached the issue of honor killings from a victim's rights perspective. The Court found that no one had the right to take law into their own hands to take a life in the name of ghairat. The Court stated that "neither the land nor the religion permits so-called honour killing, which amounts to murder simpliciter." The Court added that such a murder was a violation of the Fundamental right to life of the victim as enshrined in Article 9 of the Constitution, which states that no person would be deprived of life and liberty except in accordance with law and any custom or usage in that respect is void under Article 8(I) of the Constitution.