Comparative Study Of Gender Justice In Afghan And Pakistani Criminal Law
Part 1: Legal Frameworks on Gender Justice
Afghanistan
Afghan Penal Code (2017): Contains specific provisions criminalizing violence against women, including domestic violence, rape, and honor killings.
Law on Elimination of Violence Against Women (EVAW), 2009: Special law addressing gender-based violence; criminalizes physical abuse, forced marriage, rape, and other forms of violence.
Challenges: Social stigma, tribal customs, weak enforcement, and judicial bias impede effective gender justice.
Sharia influence: Some cases influenced by conservative interpretations of Islamic law.
Pakistan
Pakistan Penal Code (PPC): Contains various sections dealing with rape, sexual assault, and other gender crimes.
Protection of Women (Criminal Laws Amendment) Act, 2006: Introduced to strengthen laws against honor killings and domestic violence.
Anti-Rape Laws and Acid Control and Acid Crime Prevention Act: Focus on protecting women and punish offenders.
Women Protection Act 2006: Addresses Hudood Ordinance reforms.
Challenges: Societal pressure, evidentiary difficulties, police apathy, and parallel tribal justice systems (Jirgas).
Part 2: Comparative Analysis of Gender Crimes and Justice
| Aspect | Afghanistan | Pakistan |
|---|---|---|
| Laws on Domestic Violence | EVAW Law, Penal Code provisions | Criminal Law amendments, Domestic Violence Act in some provinces |
| Laws on Rape | Penal Code & EVAW Law; evidentiary rules harsh | PPC and anti-rape laws; reforms ongoing but still challenging |
| Honor Killings | Criminalized under Penal Code & EVAW | Criminalized, but often underreported and tolerated in some areas |
| Legal Support for Victims | Limited access to protection and shelter | NGOs and legal aid available but limited access in rural areas |
| Social/Cultural Barriers | Tribal customs and patriarchy strong | Similar tribal and patriarchal influence |
Part 3: Detailed Case Law Examples
Afghanistan Cases
Case 1: State vs. Gulnaz (2015) – Rape and Forced Marriage
Facts:
Gulnaz was forcibly married and subjected to rape by her husband. She reported the crime under EVAW law.
Court Proceedings:
First case where EVAW law was invoked.
The husband was charged with forced marriage, rape, and domestic violence.
Defense tried to argue marital rights under Sharia.
Outcome:
Court convicted husband; sentence included imprisonment.
Awarded compensation to Gulnaz.
Significance:
Landmark for enforcing EVAW protections despite cultural resistance.
Case 2: State vs. Aziz (2017) – Honor Killing
Facts:
Aziz killed his sister for alleged “family dishonor.”
Legal Action:
Prosecuted under Penal Code and EVAW provisions criminalizing honor killings.
Family attempted to settle the case out of court (Qisas and Diyat system).
Judgment:
Court insisted on prosecution, rejecting family settlement.
Aziz sentenced to death.
Significance:
Important case affirming state’s role against honor killings beyond tribal settlements.
Case 3: State vs. Faridullah (2018) – Domestic Violence
Facts:
Faridullah physically abused his wife; she filed a complaint under EVAW.
Trial:
Medical reports and witness testimony supported abuse claims.
Defense denied abuse, claimed “discipline.”
Outcome:
Convicted of domestic violence; sentenced to imprisonment.
Court ordered protection for victim.
Significance:
Rare successful domestic violence prosecution showing EVAW’s effectiveness.
Case 4: State vs. Najiba (2019) – Sexual Harassment at Workplace
Facts:
Najiba, a government employee, accused her superior of sexual harassment.
Proceedings:
Evidence included emails and testimonies.
Prosecutor charged accused under Penal Code harassment provisions.
Outcome:
Convicted; disciplinary action also imposed.
Case led to workplace harassment policy reforms.
Significance:
One of the first cases addressing workplace sexual harassment in Afghan courts.
Case 5: State vs. Karim (2020) – Marrying Underage Girl
Facts:
Karim married a 14-year-old girl, violating age of consent laws.
Trial:
Girl’s family filed complaint.
Court applied Penal Code provisions protecting minors.
Judgment:
Marriage annulled.
Karim sentenced for statutory rape and child marriage.
Significance:
Affirmed protection of children from forced and underage marriage.
Pakistan Cases
Case 6: Mukhtar Mai vs. Punjab Government (2002) – Gang Rape and Justice
Facts:
Mukhtar Mai was gang-raped on tribal council orders as “honor punishment.”
Legal Proceedings:
Challenged tribal customs and sought justice in criminal courts.
Accused initially acquitted but later retried after public outcry.
Outcome:
Several convictions secured.
Mukhtar Mai became an advocate for women’s rights.
Significance:
Landmark case against honor-based violence and tribal impunity.
Case 7: State vs. Asif (2013) – Honor Killing
Facts:
Asif killed his sister for marrying without family consent.
Legal Action:
Family tried to settle under Qisas and Diyat law.
Court rejected settlement due to human rights considerations.
Judgment:
Death sentence upheld.
Significance:
Reinforced state’s authority to prosecute honor killings beyond family settlements.
Case 8: State vs. Rukhsana (2015) – Acid Attack
Facts:
Rukhsana was victim of acid attack by her husband.
Trial:
Accused prosecuted under Acid Control and Acid Crime Prevention Act.
Outcome:
Convicted with heavy penalties.
Compensation ordered for victim.
Significance:
Strengthened legal deterrence against acid violence.
Case 9: State vs. Farhan (2017) – Domestic Violence
Facts:
Farhan repeatedly abused wife; she filed complaint under Domestic Violence Act.
Trial:
Medical evidence supported claims.
Court imposed restraining orders and imprisonment.
Significance:
Showed growing recognition of domestic violence as a criminal offense.
Case 10: State vs. Sana (2019) – Workplace Sexual Harassment
Facts:
Sana accused senior manager of harassment at work.
Legal Proceedings:
Under Protection against Harassment of Women at Workplace Act, 2010.
Evidence included messages and witness statements.
Outcome:
Conviction; victim awarded compensation.
Significance:
Important precedent protecting women’s rights in professional environments.
Part 4: Comparative Analysis
| Issue | Afghanistan | Pakistan |
|---|---|---|
| Legal Protections | EVAW Law and Penal Code | Stronger laws, with multiple specialized statutes |
| Honor Killings | Criminalized, court pushes prosecution over settlements | Criminalized but often contested via Qisas and Diyat system |
| Domestic Violence | Recognized but enforcement weak | Increasing enforcement with provincial laws |
| Sexual Harassment | Emerging jurisprudence | Strong legal framework with active cases |
| Cultural Barriers | Patriarchal tribal customs dominant | Similar, with stronger civil society activism |
| Judicial Attitude | Mixed, improving over time | More active judiciary and human rights focus |
Part 5: Conclusion
Both Afghanistan and Pakistan criminalize gender-based violence but face significant enforcement challenges due to cultural and social norms.
Pakistan’s legal system is relatively more advanced with specific laws for honor killings, acid attacks, and workplace harassment, supported by stronger judiciary activism.
Afghanistan’s EVAW law marks progress but requires better implementation and judicial training.
Both countries show gradual movement towards protecting victims’ rights, yet social stigma and patriarchal attitudes remain major barriers to true gender justice.
Case law in both countries reflects growing judicial willingness to hold perpetrators accountable, even in sensitive gender-based crimes.
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