Mst. Shabnam Dil Muhammad Vs DPO etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.48196/2021 (Shabnam Dil Muhammad vs. District Police Officer, etc.)

JUDGMENT

Dates of 18.10.2022, 20.10.2022, 24.10.2022, 25.10.2022, 26.10.2022, hearing: 03.11.2022, 08.11.2022, 10.11.2022, 16.11.2022, 23.11.2022, 01.12.2022, 07.12.2022 and 22.12.2022

M/s Mian Sohail Ahmad and Mian Shakeel Ahmed, Petitioner by:

Advocates.

Mr. Ahmed Awais, Advocate General Punjab, Mr. Tipu Salman Makhdoom, Additional Advocate General, Rai Shahid Saleem Khan, Ms. Maria Farooq, Ch. Muhammad Arfan Faiz Kalaar and Mr. Muhammad Yar Gondal Assistant Advocates General, Hafiz Asghar Ali and Rai Asif Mehmood Deputy Prosecutors General with Ms. Umme State by: Umaira Maqbool Law Officer, Ahmed Mustajab Karamat, Secretary Social Welfare and Bait-ul-Maal Department and Tariq Ismail Litigation Officer, Ms. Nada Azhar, Secretary Punjab Commission on the Status of Women, Ms. Sumaira Samad, Secretary Women Development Department and Irshad Waheed, Director General Punjab Women Protection Authority.

Ms. Sahar Zareen Bandial and Abu Zar Salman Khan Niazi, Amici Curiae:

Advocates.

Respondent Mr. Asif Shehzad Chaudhary, Advocate.

No.3 by:

Violence against women is perhaps the most shameful human rights violation. And, it is perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As long as it continues, we cannot claim to be making real progress towards equality, development and peace.1

Kofi Annan Ex Secretary-General United Nations on 8th March 1999 on International Women’s Day. available on: https://press.un.org/en/1999/19990308.sgsm6919.html

ALI ZIA BAJWA, J.:- The facts which culminated in rendering this judgment are that the petitioner filed a Habeas Corpus Petition under Section 491 of the Code of Criminal Procedure, 1898 (hereinafter ‘the Cr.P.C.’) for the recovery of her daughter namely Sidra (hereinafter ‘the detenue’), who was stated to be in illegal and improper custody of her husband i.e. respondent No. 2. Detenue was recovered and produced before the Court by the police, who, in unequivocal terms, stated that she was illegally detained by respondent No. 2 and was also subjected to physical and mental torture. Bruises and swelling were visible on her face, therefore, she was sent for medical examination with her consent. The report of the Medical Examiner further confirmed that the detenue was subjected to assault. During the arguments of the learned counsel for both the parties, on the Court query, it transpired that although The Punjab Protection of Women against Violence Act, 2016 (hereinafter ‘the Women Act’) was enacted way back in the year 2016 but it could not be enforced across the province as Section 1 (3) of the Women Act provides that the Act shall come into force on such date as the Government may, by notification, specify and different dates may be so specified for various areas in the Province. The Court was further apprised that the Women Act was enforced in District Multan only and it is yet to be enforced in the rest of the province. In this backdrop, a notice was issued to the Advocate General Punjab under Order XXVIIA Civil Procedural Code, 1908 (hereinafter ‘the C.P.C.’) to assist the Court qua the vires of Section 1(3) of the Women Act as apparently, it seemed violative of equality clause enshrined under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter ‘the Constitution’). The petition filed under Section 491 Cr.P.C. was also converted into a writ petition filed under Article 199 of the Constitution and was numbered by the office accordingly.

2.Violence against women is well-recognized as one of the most prevalent violations of women’s rights throughout the world. It would be unrealistic to think that violence against women only exists in any particular society. It is a menace widespread in all different types of societies in different

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forms the world over and that is the reason that violence against women always remained a matter of great concern for international law. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.2 Pakistan ratified CEDAW in 1996 and assumed the obligation to protect women from gender-based violence. However, CEDAW did not mention the ‘violence against women’ and for that very reason, the 1993 Declaration on the Elimination of Violence against Women (DEVAW) is considered the first international instrument explicitly addressing violence against women, providing a framework for national and international action.3 Article 1 of the DEVAW defines violence against women as infra: -

“For the purposes of this Declaration, the term "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.”

In fact, DEVAW is a further extension of CEDAW, which binds the States to complement and reinforce CEDAW. The United Nations Committee on Elimination of Discrimination against Women has already expressed dissatisfaction with Pakistan’s national policy on women's rights and devolution to the provinces of the responsibility to implement CEDAW, which led to the uneven and dispersed application of policies and programmes.4

3.The Women Act was passed by the provincial legislature on 24 February 2016, assented to by the Governor of Punjab on 26 February 2016 https://www.refworld.org/publisher,CEDAW,CASELAW,PAK,,,0.html Global norms and standards: Ending violence against women available on: https://www.unwomen.org https://www.ohchr.org/en/press-releases/2020/02/committee-elimination-discrimination-against-women- warns-against-uneven

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and was published in the Punjab Gazette on 29 February 2016. The Women Act was a highly welcomed, long-awaited piece of legislation and was seen as a ray of hope for the tormented and oppressed women being the victim of all forms of violence but, unfortunately, could not be enforced across the province promptly.

4.The Women Act is a social welfare legislation and was enacted with the object of providing more effective implementation of the women’s rights guaranteed under the Constitution5 who are victims of various types of violence. The Women Act is a provincial legislation that expanded the judicial tools to combat violence against women and provide protection to women who suffer violent abuses. The Women Act provides extensive measures to protect women against violence to prevent such occurrences in society. The preamble provides the object of the Women Act as under: -

An Act to establish an effective system of protection, relief and rehabilitation of women against violence.

The Women Act further provides that ‘Since the Constitution of the Islamic Republic of Pakistan, while guaranteeing gender equality, enables the State to make any special provision for the protection of women, it is necessary to protect women against violence including domestic violence, to establish a protection system for effective service delivery to women victims and to create an enabling environment to encourage and facilitate women freely to play their desired role in the society, and to provide for ancillary matters.’

5.The term ‘violence’ has been defined6 in the Women Act as any offence committed against the human body of the ‘aggrieved person’ 7 by the ‘defendant’8 including abetment of an offence, domestic violence, sexual violence, psychological abuse, economic abuse, stalking or a cybercrime. The Articles 4, 9, 10A, 14, 34, 35 & 37(d)

Section 2 (1) (r)

According to Section 2 (1) (a) "aggrieved person" means a female who has been subjected to violence.

According to Section 2 (1) (n) “defendant” means a person against whom relief has been sought by the aggrieved person

terms ‘economic abuse’ and ‘psychological violence’ have been further elaborated in the Women Act9 comprehensively. The ‘aggrieved person’ only means a female victim of violence, but the defendant includes both a male and female causing violence to the aggrieved person. The provisions of the Women Act apply not only to the household where a female is a victim of violence, as it is understood in common parlance, but also against any person who causes violence to a female in any manner defined in the Act ibid. The Women Act provides protection against all sorts of violence against females as the definition of violence is comprehensive, inclusive and all-encompassing.

6.Under Section 3 of the Women Act, for its effective implementation, the Provincial Government shall institute a universal toll-free dial-in-number for the aggrieved persons, establish Protection Centers and shelter homes under a phased programme, appoint necessary staff at a Protection Center for mediation and reconciliation between the parties, rescue, medical examination, medical and psychological treatment and legal help of the aggrieved persons as well as proper investigation of offences committed against aggrieved persons. The government shall also arrange for wide publicity of this Act and the protection system in Urdu and, if necessary, in local languages. A mechanism shall be instituted for the periodic sensitization and awareness of the concerned public servants about the issues involving women and the requirements of protection and relief of the aggrieved persons. All necessary measures shall be taken to accomplish the objectives of the Women Act. The Government shall establish a database and software for timely service delivery and monitoring. An evaluation mechanism shall be established in the prescribed manner with a view to achieve the objectives of the Women Act and, where necessary, appropriate reforms shall be introduced for the purpose. The Women Act imposes a bounden duty upon the Government for the effective implementation of the law to make the remedies, available under it, accessible to all the aggrieved persons.

Explanations 1 & 2 to Section 1

7.Under the Women Act, an aggrieved person or any person authorized on her behalf can file a complaint against the defendant before the family court established under the Family Courts Act, 1964 (Act XXXV of 1964) (hereinafter ‘the court’). Flexible territorial jurisdiction has been provided in the Women Act in favour of an aggrieved person. An aggrieved person can file a complaint before the court having territorial jurisdiction where she resides or carries on her business, or where the defendant resides or carries on his/her business, or where an aggrieved person and defendant last resided together. The complaint shall be decided by the court within ninety days through a summary procedure as nearly as possible following the procedure provided for summary trials in Chapter XXII of the Cr.P.C. and if the court arrives at the conclusion that any violence has been committed or likely to be committed, it can issue a protection order in favour of the aggrieved person to protect her from likely further violence. The Women Act further provides the details of protection orders, a court can issue, after entertaining a complaint of the aggrieved person.10

8.An aggrieved person, a victim of domestic violence, shall not be evicted from the house without her consent, save in accordance with the law. The court is fully empowered to restore the position maintained before the eviction of the aggrieved person if she has a right, title or beneficial interest in the house. An aggrieved person may choose to reside in the house or in an alternative accommodation to be arranged by the defendant as per his financial resources or in a shelter home.11 An aggrieved person, a victim of domestic violence, can also obtain a residence order from the court to stay in the house, whereby she will not be evicted from the house except in accordance with the law. She can be relocated from the house to a shelter home established under the Women Act. The defendant or any of his/her relatives can be restrained from entering the shelter home or place of employment or any other place frequently visited by the aggrieved person for her safety. The court can also Sections 4 & 7 of the Women Act

Section 5 of the Women Act

issue a direction to a defendant to arrange an alternative accommodation for the aggrieved person or pay rent for that purpose.12

9.The court may direct the defendant during a trial pursuant to a complaint filed by an aggrieved person to pay her monetary relief to meet the expenses incurred and losses suffered by her. The monetary relief may include such compensation to the aggrieved person for suffering as a consequence of economic abuse, loss of earning and medical expenses, etc. The Women Act exhaustively caters to the financial needs of an aggrieved person and the court can pass an appropriate order to meet those ends.13 The Government shall also constitute a District Women Protection Committee (DWPC) for each district14 for the smooth running of various services and facilitation of an aggrieved person.15 The shelter homes and protection centers shall be established by the Government for the protection of the aggrieved persons.16 In every district, there shall be a Women Protection Officer appointed by the Government to supervise the protection system and facilitate the aggrieved person to achieve the object of the Women Act.17 Penal consequences have also been provided for obstructing a protection officer, filing a false complaint and breach of any order passed by the court.18 Such offences shall be tried through a summary trial as provided under the provision of Chapter XXII of the Cr.P.C.19 However, the Women Act does not criminalize violence against women and provides no penal consequences for such act, rather, it provides only civil remedies.

10.After going through the provisions of the Women Act, it is crystal clear that the legislation is a beneficial one, enacted to eliminate and combat the menace of violence against women and cater to the needs of women who are subjected to violence. The provisions of the Women Act reflect that it is a Section 8 of the Women Act

Section 9 of the Women Act

Section 11 of the Women Act

Section 12 of the Women Act

Section 13 of the Women Act

Section 14 of the Women Act

Sections 18, 19 & 20 of the Women Act

Section 21 of the Women Act

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remedial statute that introduces social reform by improving the conditions of women, victims of violence, who could not have been fairly treated in the past. A remedial statute was defined in the Hooghly Mills Company Case,20 observing that “If we look at the modern legislative trend we will discern that there is a large volume of legislation enacted with the purpose of introducing social reform by improving the conditions of certain class of persons who might not have been fairly treated in the past. These statutes are normally called remedial statutes or social welfare legislation, whereas penal statutes are sometimes enacted providing for penalties for disobedience of laws making those who disobey, liable to imprisonment, fine, forfeiture or other penalty.” Remedial statutes are enacted keeping in view the welfare and benefit of social justice. Such remedial statutes need to be interpreted in a very liberal manner.

11.The Domestic Violence (Prevention and Protection) Act, 2013 (Sindh Act No. XX of 2013), The Baluchistan Domestic Violence (Prevention and Protection) Act, 2014 and The Khyber Pakhtunkhwa Domestic Violence against Women (Prevention and Protection) Act, 2021 were enacted in other provinces. Unlike the Women Act, afore-referred Acts have an identical enforcement clause that provides that ‘it shall come into force at once’. It indicates that the law in the other provinces came into force as soon as assented to by the Governor under Article 116 (4) of the Constitution after being passed by the provincial assemblies. It is only the Women Act that provides under Section 1 (3) that it shall come into force on such date as the Government may, by notification, specify. Section 1 (3) of the Women Act has been reproduced hereinafter:-

(3)It shall come into force on such date as the Government may, by notification, specify and different dates may be so specified for various areas in the Punjab.

12.Nonetheless, the most exclusive and distinguishing feature of the Women Act is that it covers violence against women as a whole, instead of Regional Provident Fund Commissioner v. The Hooghly Mills Company Limited and Ors - 2012 (2) SCC 489 (Supreme Court of India)

only providing remedies against domestic violence as compared to the legislation introduced in other provinces. It is more exhaustive and comprehensive in its application to provide refuge to the women victim of all types of violence and not only to the women victim of domestic violence. It shall not be out of place to refer to The Protection of Women from Domestic Violence Act, 2005 in India and The Domestic Violence (Prevention and Protection) Act, 2010 in Bangladesh, which only protect and provide remedies to the women victim of domestic violence. It has also been observed that all the aforementioned legislative instruments are women-oriented and only provide remedies and safeguards to them, but interestingly, The Baluchistan Domestic Violence (Prevention and Protection) Act, 2014 also includes a male in the definition of an aggrieved person. The definitions of the ‘aggrieved person’ and the ‘accused’ have been provided in sub-sections (a) & (b) of Section 2 of the Act ibid respectively as under: -

"aggrieved person" means any woman, child, man or any vulnerable person who is or has been in a domestic relationship with the accused and who alleges to have been subjected to any act of domestic violence by the accused;

"accused" means a person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act;

The above-quoted provisions of the law make it abundantly clear that in the province of Baluchistan, even a male can be a victim of domestic violence and remedies are available to him under the law against the accused person, which can be a female.

13.I would also like to attend to the legal proposition that where the Government has been empowered to appoint a date for the enforcement of the law by the legislature, can this Court issue a writ in the nature of mandamus directing the government to bring that law into force. If the legislature sets down an objective criterion or test for the enforcement of a law, it is viable to measure, by employing the power of judicial review, the cause of the inaction on the part of the Government. But where the legislature has left the matter

entirely to the discretion of the Government without providing any objective standard, a writ in nature of mandamus cannot be issued but it does not mean that the legislature ever intended that the Government may exercise a veto over its constitutional mandate of making law by not bringing the same into force for an indefinite period. Such conduct of the Government would amount to negating and nullifying the constitutional mandate of the legislature. Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair manner, therefore, Section 1 (3) of the Women Act never bestowed upon the Government an unbridled and uncontrolled discretion to withhold the law as long as it desires, rather, same should have been implemented within a reasonable time. Reliance can be placed on A. K. Roy, Etc v. Union Of India And Anr – AIR 1982 SC 710, Aeltemesh Rein v. Union of India - AIR 1988 SC 1768 & Chairman Regional Transport Authority v. Pakistan Mutual Insurance Company - PLD 1991 SC 14.

14.The reports filed by the Secretary Law and Parliamentary Affairs Department, Government of Punjab and Advocate General Office reflect that although the Women Act was initially enforced in District Multan alone on 22nd March 2017, but thereafter pursuant to the approval of the cabinet in its 3 rd meeting held on 04-11-2022, the enforcement of the Women Act has been extended to the whole province of Punjab vide Notification dated 18-11-2022. Apart from the foregoing, a Bill, namely ‘The Punjab Protection of Women against Violence (Amendment) Bill 2022’ seeking amendment in the Women Act was passed by the Provincial Assembly on 26-10-2022. Thereafter, the Amendment Bill was transmitted to the Governor for assent, but certain amendments were proposed by the Governor in terms of Article 116 (2)(b) of the Constitution. The Amendment Bill was reconsidered by the Provincial Assembly in the light of proposed amendments and finally, it was passed by the Provincial Assembly on 14-11-2022 and also assented to by the Governor in terms of Article 116 (4) of the Constitution. In view of the abovementioned progress, the Women Act has been enforced across the Province of Punjab and protection under its provisions is available to the women victim of various

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forms of violence. It took more than six years to implement the Women Act across the Province. Apparently, no good reason could be furnished by the Government for such an inordinate and unnecessary delay in enforcing a beneficial piece of legislation.

15.The Social Welfare & Bait-ul-Mall Department, Government of Punjab, took no serious steps for the early enforcement of the Women Act. During the course of arguments, no policy document could be produced before the Court reflecting any serious endeavor made for timely enforcement of the Women Act. It is also not out of place to observe that The Punjab Commission on the Status of Women (PCSW) was created by virtue of The Punjab Commission on the Status of Women Act, 2014 as an oversight body to ensure that laws, policies and programs of the Government of Punjab promote women’s empowerment and efforts are made for expansion of opportunities for socio-economic development of women, and discrimination against women in all forms is eliminated. PCSW started functioning in March, 2014.21 However, PCSW played no role at any platform for the speedy enforcement of the Women Act, which could have been vital.

16.The law which cannot be implemented, for one reason or the other, can be termed only a ‘Paper Law’. Paper laws mean the laws, which are ineffective because they are incapable of implementation or because no proper steps are being taken to implement them. These laws are enacted to hide or cover up a problem. At even their best such laws do little more than give an impression of resolute action. They are, therefore, a sham, a deception. An ineffective law fails to achieve the objective for which it was enacted; the evil continues. Worse, the failure of one law shakes the confidence of the people in laws in general as they see malefactors going scot-free.22 Merely, enacting the law, however seemingly effective, to eradicate the social menaces shall have no benefit if that law is not implemented. It’s never too late is the advice for https://wdd.punjab.gov.pk/punjab_commission_on_the_status_of_women#:~:text=The%20Punjab%20Comm ission%20on%20the,are%20made%20for%20expansion%20of

Atul Setalvad, “Paper Laws,” Economic and Political Weekly, Vol. 23, Iss. 29 (July 16, 1988): p. 1467–70. Available at: https://www.jstor.org/stable/4378763.

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the Provincial Government to further ensure the strict implementation of the Women Act, keeping in mind the benefit of social justice and welfare as well as protection of women, which needless to mention was the primary intent of the legislature and any failure on the part of the Provincial Government would amount to defeat such intent.

17.The vires of the various provisions of the Women Act were challenged before the Federal Shariat Court through several Shariat petitions, which were dismissed, authoritatively observing in Para No. 36 of the Judgment that ‘no provision of the impugned Act is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW)’.23 The Federal Shariat Court further directed that the Provincial Government should ensure the proper implementation of the Women Act across the province.

18.In the light of the above discussion, especially, the brief analysis of the Women Act, it reflects that it is a dynamic and vital piece of legislation, which shall go a long way in shielding and protecting women against violence. Since the law has been enforced across the province, therefore, it is the bounden duty of the Provincial Government to take every measure for its strict compliance and implementation in an earnest manner to play its role to ‘orange the world’.24 This petition stands disposed of with an expectation that the needful shall be done without fail.

19.Before parting with the Judgment, I would like to record my appreciation for Ms. Sahar Zareen Bandial, the learned Amicus Curiae for rendering commendable assistance to the Court through her valuable Professor Muhammad Ibrahim Khan (Advocate) and another v. Province of Punjab through its Secretary (Shariat Petition No. 03/I of 2016)

“Orange the World” signifies a world free from violence against women. Orange colour represents a brighter future free of violence against women and girls. The UNiTE campaign has proclaimed the 25th of each month as “Orange Day”, a day to raise awareness and take action to end violence against women and girls. As a bright and optimistic colour, orange represents a future free from violence against women and girls. Available on https://www.unwomen.org/en/what-we-do/ending-violence-against-women/unite/orange-the-world

arguments and extensive research. Learned law officers also rendered their able and candid assistance on various legal issues during the hearing of this petition.

(ALI ZIA BAJWA)

JUDGE

Approved for Reporting

JUDGE

The petition was disposed of on 22.12.2022 in open Court. After dictation and completion of judgment, same was signed on 20.02.2023.

JUDGE

Riaz