Accepting their appeal, a bench of the Supreme Court comprising Acting Chief
Justice Rana Bhagwandas and Justice Sardar Mohammad Raza Khan ordered release
of Shamail Raj, currently in the Kot Lakhpat jail of Lahore, and Shehzina
Tariq, in the Faisalabad district jail. Their release is subject to surety
bonds of Rs50,000 each.
The couple, through a joint petition in the apex court, had contended that
lifestyle of Shamail over the past 12 years and 'his' beard and moustache
provided sufficient grounds for exoneration on the charges of perjury.
"This is a case of abuse of law by the high court since the couple was
convicted without framing of charges," the legal counsel for the couple, Dr
Babar Awan, argued before the bench.
On May 28, the Lahore High Court had jailed the first publicly-acknowledged
same-sex couple of Pakistan for three years and fined them Rs10,000 each for
perjury, declaring the marriage un-Islamic.
Justice Khawaja Mohammad Sharif of the high court had observed that he was
issuing a lenient sentence, much below the seven-year maximum term, because the
couple had apologised for their behaviour.
Shamail Raj, 31, who was born female but had two operations to remove her
breasts and uterus 16 years ago, and Shehzina Tariq who created waves by
raising issues of homosexuality and trans-sexuality, had married last year but
approached the high court for protection against harassment by Shehzina's
relatives. The court, however, accused them of lying about Shamail Raj's
gender.
In the Supreme Court, the couple's counsel pleaded that the lives of his
clients were in danger because of the scandal, despite the fact that no law in
Pakistan considered living together by same-sex people a crime.
He said that in its order, the high court had assumed the functions of
ministries of interior and law by directing that the couple's name be put on
the exit control list.
"This is a case of reassignment of gender," the counsel said.
Earlier, the report of a special medical board which had examined Shamail Raj
suggested that 'he' was a well-built person, with moustaches and beard and a
hoarse voice.
The couple in their petition had pleaded that they could live together with
their free will and volition even without entering into marriage.
The petitioners said the single judge in the chambers had not considered the
peculiar circumstances of the case and had arbitrarily sentenced them to
three-year jail term.
