Lies
&
Distortions
By
The Media
About
Hudood Ordinance
DISCLAIMER
Nothing contained herein is a deliberate or
implied, act or speech, intended or likely to outrage the feelings of any
person, group, sect or organization. Everything contained herein is presented
in good faith, with proper care & attention, and solely for the public
good, and not to insult, defame or otherwise hurt, any person, group or
association whatsoever. Despite best efforts to provide accurate and correct
information, all facts and knowledge contained herein are to be taken at one’s
own responsibility and the authors, publishers, distributors, sellers or any
person associated with them, shall not be responsible, in any way, for any
inaccuracy, misinformation or otherwise any loss or damage, etc. caused by any
such fact or information.
In
this article, we will try to expose the immense rumors and hollow propaganda
being spread by the media about the hudood ordinance. The media has repeated
certain lies over & over again, so much so that even educated people have
been induced to accept them as true. In this article, we will shed off fiction
from facts to present a true & clear picture of the issue.
Lies
and misinformation have been spread by a diverse range of channels & news
sources. But amongst them, Geo TV tops the list—thanks to Zara Sochieye, a
very active campaign started by the channel against the hudood ordinance. Geo
TV, inter alia, used several
fallacious facts to make the public against the ordinance, which makes them an
ideal case to study for the purpose of our article. For this purpose, we shall
focus mainly on Zara Sochieye, while,
at the same time, we shall give references to other news sources too.
Please
note that throughout this article, we refer to the text of the hudood
ordinances as they were before the
passing of the Protection of Women
(C.L.A.) Act, 2006.[1] We shall refer to this act
henceforth as “WPB”. Furthermore, by the term ‘hudood ordinance’, we refer to
the Offence of Zina (Enforcement of
Hudood) Ordinance (VII of 1979), whereas, the word ‘hudood ordinances’
refer to the following four ordinances:-
·
Prohibition (Enforcement of Hudood) Order (IV of 1979)
·
Offences Against Property (E.O.H.) Ordinance (VI of 1979)
·
Offence of Zina (E.O.H.) Ordinance (VII of 1979)
·
Offence of Qazf (E.O.H.) Ordinance (VIII of 1979)
1. Crime never proved
The
very first misinformation being propagated through Zara Sochieye is that
under the Hudood Ordinance, rape is never proved unless there are four
witnesses. There are two advertisements in which this idea has been promoted:-
(a) In an advertisement showing a
physical balance, in the background of which, a person says: “Can it happen under an Islamic law that a
crime is never proved? Can Islam tolerate such an injustice?”
The Advertisement
(b) In the Experts Commentary,
Dr. Fazal Ahmed, a learned scholar, said: “If
a woman is abducted at night and raped, from where will she bring four
witnesses and from where will four witnesses be available? Therefore, the
scholars should thing regarding this situation.”
Dr. Fazal Ahmed
In
both cases, no one came forward to rectify that under the Hudood Ordinance, a
rapist can be punished with tazir, if the crime stands proved on any other evidence,
for example, on the basis of medical evidence only, even if no witnesses are available.
It
will be pertinent to study Section 10 of the Offence of Zina (E.O.H.)
Ordinance (VII of 1979) in this
regard:-
|
10.
Zina or zina-bil-Jabr liable to tazir. (1)
Subject
to the provisions of section 7, whoever commits zina or zina-bil-jabr
which is not liable to hadd, or for
which proof in either of the forms mentioned in section 8 is not available
and the punishment of qazf liable to hadd has not been awarded to the
complainant, or for which hadd may not be enforced under this
Ordinance, shall be liable to tazir. (2)
Whoever
commits zina liable to tazir shall be punished with rigorous
imprisonment for a term which may extend to ten years and with whipping
numbering thirty stripes, and shall also be liable to fine. (3)
Subject
to the provisions of Section 4, whoever commits zina-bil-jabr liable
to tazir shall be punished with rigorous imprisonment for a term which shall
not be less than four years nor more than twenty-five years and shall also be
awarded the punishment of whipping numbering thirty stripes. (4)
When zina-bil-jabr liable to tazir is committed by two
or more persons in furtherance of common intention of all each of such
persons shall be punished with death.[2] |
Let us take
a closer look at Section 10(1). This section states that the crime of zina or
zina-bil-jabr is liable to tazir, in any one of the following cases:-
(a)
Proof
in either of the forms mentioned in Section 8 (i.e. four witnesses or
confession by the accused) is not available. It may be noteworthy that the
punishment of qazf liable to hadd cannot be awarded to the prosecutrix if tazir
is awarded to the accused.
(b)
Crime
is not liable to hadd i.e. zina or zina-bil-jabr is committed, but, not in the circumstances
listed in Section 5(1), e.g. an insane person committing the crime.
(c)
Hadd
cannot be enforced in accordance with Section 9, e.g. a person retracts confession.
The court
itself shall decide whether the crime is proved on the basis of evidence on
record or not; any form of evidence is applicable in deciding this like DNA test,
MLR (medicolegal report), testimony of women, etc.
The
following cases[3]
further prove that the notion of ‘crime never proved’ is a fallacy:-
Gulsher
etc. vs. The State
(2004 SD 159)
MR. JUSTICE S.A. MANAN
Sole testimony of victim of zina would be
sufficient to prove zina case against accused when defence was not able to
shatter the veracity of victim’s statement.
[Annual Report of the FSC, 2003, p.24]
Personal
Note: It should be noted
that no witnesses were available in the above case.
Muhammad Zafar Naeem vs. The State (2004 SD 352)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement
of victim of zina-bil-jabr who is a young girl of 11/12 years which is
confidence inspiring would be sufficient for recording conviction/sentence
under S.10 (3). Omission to
produce shalwar, qameez and dopatta of victim of zina-bil-jabr would not be
fatal to prosecution case under S.10 (3), which cannot be thrown away for such
omission by prosecution.
[Annual Report of the FSC, 2003, p.24]
Personal
Note: It should be noted
that no witnesses were available in the above case.
Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35)
MR. JUSTICE SAEED-UR-REHMAN FARRUKH
It is well-settled that conviction can be
based, in rape case, on the solitary statement of the victim if the same is
found truthful and confidence inspiring.
[Annual Report of the FSC, 2003, p.24]
Personal
Note: It should be noted
that no witnesses were available in the above case.
Muhammad Ashraf vs. The State (NLR 1997 SLD 1)
MR. JUSTICE KHALIL-UR-REHMAN
Zina-bil-jabr by father with his daughter:-
Conviction
of father for committing zina-bil-jabr with his teen-aged daughter; defence
plea that he was substituted for real culprit, could not be accepted in circumstances
of case. Conviction of the appellant u/s 10(3) of the Offence of Zina (E.O.H.)
Ordinance and sentence of 25 years R.I. (rigorous imprisonment) awarded was
proper to meet the ends of justice.
[Annual Report of the FSC, 2002, p.57]
Personal
Note: It should be noted
that no witnesses were available in the above case.
Muhammad
Abid vs. The State
(PLD 1988 FSC 111)
MR. JUSTICE GUL MUHAMMAD KHAN
Evidentiary value of Police Officials as witnesses:-
The police
officers who are also Muslims, if they make a statement on oath, it has to be
accepted unless it is shown from context that they are telling a lie or they
have been declared as unreliable by a Court of competent jurisdiction.
[Annual Report of the FSC, 2002, p.51]
Mumtaz Ahmed vs. The State (PLD 1990 FSC 38)
MR. JUSTICE GUL MUHAMMAD KHAN
Scope and condition of Tazkiyah-al-Shuhood:-
Generally, every Muslim is a competent witness. He is ordained to speak
the truth and should give evidence in favour of Allah & no one else, be it
his parents, children, relatives or friends. No reason was stated for witness
to have falsely involved accused persons. Involvement of accused in the offence
thus stood fully proved.
[Annual Report
of the FSC, 2002, p.52]
Personal
Note: A
very important judgment as it removes the common misconception that a person
who missed even a single Salah does not fulfill the requirements of tazkiyah
al-shuhood; this is inaccurate.
It is
pertinent to note at this point that in Section 8, the respective ordinance
defines tazkiyah al-shuhood as follows:-
|
Explanation:
In this section,
“tazkiyah al-shuhood” means the mode of inquiry adopted by a court to satisfy
itself as to the credibility of a witness. |
2. No Difference between Zina and Zina bil Jabr
Another
misconception being spread on a wide scale is that Hudood Ordinance makes no
difference between zina and zina bil Jabr. A person who never saw
the Ordinance may believe in such a connotation, but, anyone who has the
slightest of knowledge of the Ordinance knows that it has drawn a big line of
distinction between the two crimes.
The
allegation that the hudood ordinance does not differentiate between zina and zina-bil-jabr
is prima de faciá incorrect, as there
are two separate sections (i.e. section 4 and 6), which clearly define the two
crimes separately. There are different punishments for the two crimes and thus
the Ordinance has placed them in separate categories. The text of sections 4 to
8 is given below for reference:-
|
4. Zina A man
and a woman are said to commit ‘zina’ if they wilfully have sexual intercourse without being
validly married to each other. Explanation: Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of Zina. 5. Zina liable to hadd (1)
Zina
is zina liable to hadd if:- (a)
it is
committed by a man who is an adult and is not insane with a woman to whom he
is not, and does not suspect himself to be married; or (b)
it is
committed by a woman who is an adult and is not insane with a man to whom she
is not, and does not suspect herself to be, married. (2)
Whoever
is guilty of Zina liable to hadd shall, subject to the provisions of this
Ordinance:- (a)
if he
or she is a muhsan, be stoned to death at a public place; or (b)
if he
or she is not muhsan, be punished, at a public place; with whipping
numbering one hundred stripes. (3)
No
punishment under sub-section (2) shall be executed until it has been
confirmed by the Court to which an appeal from the order of conviction lies;
and if the punishment be of whipping; until it is confirmed and executed, the
convict shall be dealt with in the same manner as if sentenced to simple
imprisonment. 6. Zina-bil-jabr (1)
A
person is said to commit zina-bil-jabr if he or she has sexual
inter-course with a woman or man, as the case may be, to whom he or she is
not validly married, in any of the following circumstances, namely:- (a)
against
the will of the victim; (b)
without
the consent of the victim; (c)
with
the consent of the victim, when the consent has been obtained by putting the
victim in fear of death or of hurt; or (d)
with
the consent of the victim, when the offender knows that the offender is not
validly married to the victim and that the consent is given because the
victim believes that the offender is another person to who the victim is or
believes herself or himself to be validly married. Explanation: Penetration is sufficient to constitute
the sexual inter-course necessary to the offence of zina-bil-jabr. (2)
Zina-bil-jabr is zina-bil-jabr liable to hadd
if it is committed in the committed in the circumstances specified in
sub-section (1) of section 5. (3)
Whoever
is guilty of zina-bil-jabr liable to hadd shall subject to the
provisions of this Ordinance:- (a)
if he
or she is a muhsan, be stoned to death at a public place; or (b)
if he
or she is not muhsan, be punished
with whipping numbering one hundred stripes, at a public place, and with such
other punishment, including the sentence of death, as the Court may deem fit
having regard to the circumstances of the case. (4)
No
punishment under sub-section (2) shall be executed until it has been
confirmed by the Court to which an appeal from the order of conviction lies;
and if the punishment be of whipping; until it is confirmed and executed, the
convict shall be dealt with in the same manner as if sentenced to simple
imprisonment. 7. Punishment for zina or zina-bil-jabr
where convict is not an adult A
person guilty of zina or zina-bil-jabr shall, if he is not an
adult, be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both, and may also be awarded
the punishment of whipping not exceeding thirty stripes: Provided that, in the case of zina-bil-jabr, if the offender is not
under the age of fifteen years, the punishment of whipping shall be awarded
with or without any other punishment. 8. Proof of zina or zina-bil-jabr
liable to hadd Proof
of zina or zina-bil-jabr
liable to hadd shall be in one of the following forms, namely:- (a)
the
accused makes before a Court of competent jurisdiction a confession of the
commission of the offence; or (b)
at
least four Muslim adult male witnesses, about whom the Court is satisfied,
having regard to the requirements of tazkiyah al-shuhood, that they are
truthful persons and abstain from major sins (kabair), give evidence
as eye-witnesses of the act of penetration necessary to the offence: Provided that if the accused is a non-Muslim, the eye-witnesses may
be non-Muslims. Explanation: In this section, “tazkiyah ul-shuhood”
means the mode of inquiry adopted by a court as to satisfy itself to the
credibility of a witness. |
Only an objective
analysis of the above sections is sufficient for any unbiased person deduce
that the ordinance has clearly distinguished between zina and zina-bil-jabr.
If the evidence required for proving the two crimes is similar, this does not
mean that the ordinance has equalized the two crimes and dissolved all
differences. For most (not all) crimes punishable by way of hadd, at least two Shar’ai witnesses are
necessary. Can anyone reasonably argue that God has dissolved the differences
between all these crimes?!
These guys and
some other fellows spread this misconception on the basis that the evidence is
same for both crimes. But, these people themselves tell others that the
Ordinance has differentiated between Muhsan
and non-Muhsan criminals. It is
indeed amazing that when the definitions, evidence, etc. is the same, yet they
agree that there is a difference, but, when it comes to zina and zina-bil-jabr,
all differences are dissolved!
The
differences that the Ordinance has made between the two crimes are listed in
the following table:-
|
Difference |
Zina |
Zina-bil-Jabr |
|
Definition |
Intercourse
with will as well as consent & without any deceitful belief, etc. |
Intercourse
without will or consent or by inducing deceitful belief, etc. |
|
Criminal Responsibility |
Definition
reads: “A man and woman are…”
which shows that both are criminals |
Definition
reads: “A person is…” which shows
that only the rapist is a criminal |
|
Tazir punishment |
Rigorous imprisonment
not exceeding 10 years, thirty stripes alongwith fine |
For gang rape,
death penalty; for ordinary rape, 4 to 25 years rigorous imprisonment &
30 lashes; for kidnapping, life imprisonment, etc. |
|
Hadd punishment for non-Muhsan criminals |
Whipping
numbering hundred stripes |
Whipping
numbering 100 stripes alongwith any punishment including death penalty |
The only
thing common between the two is the punishment of Rajm for Muhsan criminals
and the proof required for proving the crime, and these things are common
between the two, only because God himself has decided so. (Not the ordinance!)
Note: The strict evidence of four male Muslim truthful witnesses is
required only for the punishment of Hadd.
If the court is convinced that the crime stands proved on other forms of
evidence like DNA test, etc. then tazir
can be awarded as stated in Section 10 of the concerned Ordinance.
The above
extract has provided enough material to refute the flawful assumption that the
“Hudood Ordinance places zina and zina-bil-jabr in the same category.”
Now, we must
also see whether zina and zina-bil-jabr are two forms of the same
crime or two different crimes. For this purpose, we will take help from some
other writings:-
“The Special
Committee of the National Commission on the Status of Women (NCSW), to review
the hudood laws, observes in its draft report:-
|
While
the majority of the Committee members agreed with the arguments of Syed Afzal
Haider, Dr. Fareeda Ahmad and Mr. Shahtaj disagreed and were of the view that
Surah Noor, verse 2 covers both offences of Zina and Zina-bil-Jabr along with
the pre-requisite criterion of four witnesses to prove these offences … Dr.
Fareeda Ahmad, Mr. Noor Muhammad Shahtaj and Dr. S.M. Zaman held that the
provisions of the Ordinance on the offence of Zina-bil-Jabr, as reflected in
Section 8, were in accordance with the Shariah. [NCSW Report, p.9] |
I appreciate
these members on this issue and they were undoubtedly right in pointing out
that four witnesses are required for proving rape liable to hadd; but, their
argument seems to have been disfigured by the one who prepared these
conclusions. Their actual argument was:-
|
However, FA (Dr. Farida Ahmed) and NMS (Noor Muhammad Shahtaj)
disagreed with that and were of the opinion that it does fall under Hadd and FA relied on a Hadith of Tirmidhi Sharif,
according to which bil Jabr if the offence of Zina
is proved as per rules of evidence laid down for Zina then the punishment
should be Hadd. If not then the punishment could be as per Tazir. [NCSW Report, p.57] (Highlighted text has
been distorted by the one who prepared the report.) |
It seems
most likely that the one who prepared this report was biased, because, he
completely distorted the sentence to give a strange picture of the hadith.
The actual
sentence if corrected is:
|
FA relied on a Hadith of Tirmidhi Sharif[4],
according to which if the offence of Zina bil Jabr is proved as per rules of
evidence laid down for Zina then the punishment should be Hadd. If not then
the punishment could be as per Tazir. |
Did you see what the actual sentence is?!
It is quite
clear from numerous ahadith[5],
including the one that has been quoted above that if Zina bil Jabr is proved
according to requirements of Hadd-e-Zina, the punishment of Hadd will be
awarded to the rapist only, not to the woman.[6]
It is
reported in many ahadith that Muhsan
persons, who committed zina-bil-jabr,
were stoned to death. The point to be noted here is that Rajm is a hadd and
moreover, it is not mentioned in verse 33 of Surah al-Maida (5).
It is
pertinent to note down a few things regarding Zina-bil-Jabr in the Ordinance;
in Section 6, sub-section (1), it is written:
|
A person IS said to commit zina-bil-jabr… (Emphasis ours) |
Contrast the
above with Section 4:
|
A man and a
woman ARE said to commit zina… (Emphasis ours) |
So,
according to the Ordinance, the woman is not a criminal & is innocent if
she has been raped. The differences between the two crimes, as implemented in
the Ordinance, have already been discussed before.
There is an
issue which is usually discussed & debated viz. whether Zina and Zina-bil-Jabr are two forms of the same crime or not. Actually,
this debate is usually heated to exclude or include rape within the ambit of
verse 2 of Surah Noor. But, the proof from Sunnah & Ijma is too clear and
sticking with this ambiguous discussion is like running in a never-ending circuit.
Similarly,
it must also be noted that in Surah Noor, the term ‘zina’ is used. In fiqh and Arabic lexicons, it is taken to
mean illicit intercourse. There is no
reference to consent or will and thus it is a general term. With
this definition in mind, zina may be
consensual i.e. zina-bil-raza or
forced i.e. zina-bil-jabr. But, both
these terms will be covered by the general term ‘zina’.
However, in
the ordinance, the word ‘zina’ is defined in the meaning of ‘zina-bil-raza.’ So,
the term zina, in the ordinance, excludes zina-bil-jabr.
Thus what the ordinance designates as zina
is known in the fiqh as zina-bil-raza. This thin difference must be kept in mind, otherwise, confusions & ambiguity
may arise.
Coming back
to the original issue; to settle this issue we shall consult a dictionary &
find the meaning of crime. Merriam-Webster Dictionary, provided with Britannica
Encyclopedia 2002 Deluxe Edition, describes the word ‘crime’ as:
|
An act or the
commission of an act that is forbidden or the omission of a duty that is
commanded by a public law and that makes the offender liable to punishment by
that law. |
In the light
of the above definition, if we view zina-bil-raza
and zina-bil-jabr, it is quite clear
that the two acts are completely different crimes, just like they are dealt in
by the Hudood Ordinance. They can never, on earth, be considered to be the same
crimes! This is because of the fact that in zina-bil-raza,
both the man and woman are not only punished, but, are also involved in the
commission of the crime. Whereas, in zina-bil-jabr,
only one person is involved in the offence and the woman is not only innocent,
but, is also not punished.
Some people
forward the argument that just like theft is theft, whether it is with force or
not, same is the case here. But, this argument is fallacious on the face of it,
because, in theft, the thief is the criminal in both the cases and the one
whose money has been stolen is the victim. Whereas, in zina-bil-raza, both are criminals and involved in the offence, but,
in zina-bil-jabr, only one is
involved in the offence and is liable to punishment.
Furthermore,
this issue can be approached in one more way: in zina, both men and women consensually commit an illegal act,
whereas, in zina-bil-jabr, only the
man commits an illegal act, whose victim is the woman. Therefore, in zina, neither the man nor the woman is a
victim—rather both are the offenders. Whereas, in zina-bil-jabr, only the woman is a victim of an illegal act and the
man is the offender.
Here, I must
remind again that we need to keep the definition of ‘zina’ in mind. If we take
‘zina’ to mean fornication or adultery, then ‘zina-bil-jabr’ is a very
different thing. But, if we take ‘zina’ to simply mean illicit intercourse, then fornication/adultery come under the flag
of zina-bil-raza, whereas, rape comes
under zina-bil-jabr. According to the
latter definition of ‘zina’, both zina-bil-raza
and zina-bil-jabr are covered by the
term zina.
To sum up then, in view of the above
arguments, we fully adhere to the view that the proof required for zina or zina-bil-jabr liable to hadd
is the same, because, it is a requirement of Shari’ah, proved from Sunnah and
Ijma. But, from the point of view of general understanding, zina and zina-bil-jabr are two different crimes, as provided in the Hudood
Ordinance.
It is
noteworthy here that one of the experts has indeed pointed out this mistake
made by the Zara Sochieye team:[7]
|
Hafiz Yousuf Salahuddin Advisor Federal Shariat Court As far as my limited knowledge is concerned, there is no such thing
in the Hudood Ordinance that it does not differentiate between zina and zina
bil jabr. These are undoubtedly two different things. So, first of all, the
Ordinance does not treat them in a similar way. |
Geo TV never
pointed out that in the Hudood Ordinance, there are separate sections for zina
and zina-bil-jabr; separate definitions, punishments, etc. If the evidence for hadd punishment is same, this does not
mean that there is no difference between the two. Furthermore, Hafiz Salahuddin’s statement was not
shown completely; rather, only a small part was shown. Relying on the false
information provided by Zara Sochieye, many scholars gave their statements
against the ordinance—never knowing what the actual ordinance was!
3. Women’s testimony not taken
This
is yet another misconception being spread by Zara Sochieye. In one of
their advertisements, they show a woman being raped infront of 5-10 women. The
feet of these women are locked in chains, while a person is commenting:
“According to the Hudood
Ordinance, testimony of a woman is not acceptable ... Although, a woman is
being raped in front of these women, but, their testimonies are not
acceptable.”
In
the program Jawab Deyh, the host went to extreme when he said the
following:-
“Some of 50 women witness a rape then there
won’t be any convictions as there were no four male witnesses?”
These
are only two sources; this argument is spread by a large number of sources. In
fact, even educated persons, including legal experts, forward this argument.
But, is it really so?
In
the whole Hudood Ordinance, there is not even a single article which enshrines
that the testimony of women is not acceptable. If four Muslim adult male
witnesses who are pious & God fearing, testify of having seen the crime of
zina or zina-bil-jabr, then the deterrent punishment i.e. hadd will be
awarded to the accused. If this condition is not fulfilled, but, there is
evidence from other sources like medical evidence, circumstantial evidence,
testimony of women etc. then the rapist will be punished under tazir, for 4-25 years rigorous
imprisonment [henceforth, R.I.] (ﺖﻗﺸﻣ ﺎﺑ ﺪﻴﻗ) alongwith any number of
strokes of lashes, provided in no case shall the whipping exceed 30 stripes.
In
fact, a judgment of the Federal Shariah Court will be enough to shatter the
veracity of this claim:
Rashida
Patel vs. The State
(PLD 1989 FSC 95)
Shariat Petition No. 10/K of 1983 to 14/K of 1983 & 2/L of 1985
To prove the
crime of Zina, the condition of four witnesses was necessary. However, if four
male witnesses are not available, women
can appear before the Court as witnesses, but in the light of their
evidence, Hadd punishment shall not be awarded; only Tazir punishment shall be awarded.
[Annual Report of the FSC, 2002, p.33]
4. Four Witnesses Required For Punishing a Rapist
Another
mountainous lie being spread about the Ordinance by Geo TV is that the rapist
will not be punished unless four witnesses are brought forward by the victim of
rape. We have clarified this issue under the very first heading, Crime never
proved, and also cleared up
that severe punishment—without any witnesses, even on the solitary
statement of the victim—can be awarded as tazir.
5. Women in jail
Another
false accusation being made against the Hudood Ordinance is that it is due to
this Ordinance that many women are dwelling in jails. The NCSW established a
Special Committee to review the Hudood Ordinances in 2002, which wrote in its
report, on page 3 that 80% of the women, languishing in jail, are due to the
Hudood Ordinance. Geo TV also re-iterates the same; in fact, several leading
newspapers do the same.[8]
Are
women resting in jail for several years due to Hudood Ordinance? Can this be
fixed by repealing Hudood Ordinance? The answer is a big NO!
The Hudood
Ordinance neither deals with the lodging of FIRs, nor does it deal with how the
cases are to be heard. Therefore, connecting these issues with the Hudood
Ordinance or to label it as a ‘torment’ of the Hudood Ordinance is nothing but ignorance!
The Hudood Ordinance merely deals with the following issues:
(a) Definition
of sexual crimes
(b) Prescribing
punishment for these sexual crimes
(c) Proof
required for these crimes
It does NOT deal with
the following issues:
(a) Lodging
of FIRs
(b) Keeping
women in jail or five star hotels or anywhere else
(c) Slow
judicial process
(d) Hearing
of pending cases, or hearing being too slow, etc.
It may be pertinent to note here that this issue of women lying
in jail is a ‘blessing’ of the Code of
Criminal Procedure (Act V of 1898) which was not made by a ‘revengeful’
Zia-ul-Haq or ‘idiot’ ulema. This was made by the British in 1898 themselves
and today, channels like BBC, CNN, etc. and of course, various Muslim channels
are blaming the Hudood Ordinance for this.
Someone may stand up to ask that before 1979, women were not
languishing in jails, so, the Hudood Ordinance must be connected with this
issue. The answer to this argument is that the only thing which the Hudood
Ordinance did was to declare zina a
crime, because, in the original PPC,
zina bil raza was NOT considered a crime!!! Neither was zina bil raza considered
a crime, nor was there any punishment for drinking wine and/or intoxicating
liquor.
These
women are languishing in jails for so many years because of the outdated slow
judiciary process, due to which the cases are never heard. At the beginning of
2005, there were 123,640 pending hudood
cases; out of which, more than 78,833 cases were that of the Prohibition Order alone! It is due to
the Code of Criminal Procedure (henceforth, CrPC) and some other defects in our
judicial system, which has caused the hearing of cases to become overly slow. Thus
these women are lying in jails because they were arrested, but, the cases have
not been heard; they consist of both—innocent and guilty.
I would also
like to ask my friends that there are several prisoners, men as well as women,
lying in jails for years, because, their cases have not been heard uptil now.
In fact, in a few cases, even after freeing the prisoners, they still remain in
prison. If a person is being held in jail, because, the police arrested him/her
for a cognizable offence, punishable under any section of the PPC: will these
people repeal the PPC for solving that problem?
In fact, suggesting
a repeal of the Hudood Ordinance as a remedy for the problem of women lying in
jail, which is actually due to the corrupt police, can rightly be explained with
the following example. A person got infection in a certain organ of his body; instead
of curing the infection, he thought that cutting off the whole organ will solve
the ‘infection problem’ for good! Only a fool
& ignorant will be happy with such a solution, because, doing so will cause
him to lose a vital part of his body & even cause his death—alongwith the
elimination of the infection.
Surprisingly
enough, this is what the NGOs and the media has been asking for i.e. to solve
the problem of slow judiciary process, stop lodging cases unless in rare cases—in
Zina, don’t lodge an FIR unless four male Muslim truthful witnesses are
available. This is akin to saying that in 90% of the cases, the adulterers and fornicators
should be given an ‘open sex’ environment.
Their
recommendation is further that if any of the four witnesses do not qualify ‘tazkiyah
al-shuhood’ or if the judge is not satisfied with the testimonies, he may
acquit the accused & subject all witnesses and the complainant to a
punishment of 80 strokes of lashes! A deep analysis of this recommendation
reveals that this is aimed at discouraging people from even reporting the
remaining 10% cases, by terrorizing them of being subject to qazf. For example,
if four people saw the heinous act, they will still abstain from testifying of
having seen it, because, if even a single witness did not qualify the
requirements of ‘tazkiyah al-shuhood,’ all of them will be punished with 80
stripes!
I would also
like to shed light on a very oft-repeated argument that 80% of the women
languishing in jails, are due to Zina Ordinance. We already discussed that the
Hudood Ordinance is not responsible for this, but, let me warn you further. Don’t get confused by this
figure!
Firstly, it does NOT reveal anything about the number of women in jail; it only shows the cause of
being in jail. Furthermore, it is still wrong to say that 80% of the women inhabiting
jail are waiting trial for zina ordinance. In the
NWFP jails, during July 2003, the number of women languishing in jail for trial
for narcotics cases was 72, whereas, the number of those for trial under all
four hudood ordinances was 56.[9] From even the hudood
cases, a major portion is that of the prohibition
cases and furthermore, the total number of women in jail was 172. This means that less than 20% (not 80%) of
the women languishing in jail were waiting trial under zina ordinance. [Source of these statistics is a report
prepared by the Women Aid Trust; see
footnotes.]
Similarly,
during 1988, the number of women prisoners in various jails of Punjab, was 657;
out of these, 306 were languishing for zina
cases.[10] This, again, gives a figure of 46%, which is nearly half of the figure
claimed by feminist NGOs!
Note:-
Gen.
Musharraf promulgated the Law Reforms Ordinance,
2006 this year, which added a new section 156-B to the CrPC. According to
this section, zina (not
zina-bil-jabr) cases will not be investigated by a police
officer who is lower in rank than a SP (superintendent.) Furthermore, no person
shall be arrested for zina by the
police until an arrest warrant has been issued by the magistrate of a court of
competent jurisdiction.
6. Case of rape
converts to case of adultery
BBC
reported regarding the Hudood Ordinance:[11]
|
If a rape
victim fails to present four male witnesses to the crime, she herself could
face punishment and be prosecuted for adultery. The government says that
makes it almost impossible to prosecute a rape case. |
The Telegraph published a similar report:[12]
|
These [hudood
laws] place an almost impossible burden of proof on women by compelling them
to produce four ‘pious’ male witnesses to prove rape or risk being convicted
of adultery and face 100 lashes or death by stoning. |
CBC
news observed:[13]
|
According to
General Zia’s law, if a woman is raped she needs four eyewitnesses to prove
that she was raped. But if she files a complaint of rape and fails to produce
four eye witnesses then she has confessed to adultery and must be punished
for the crime of adultery. |
WLUML noted:[14]
|
Under section 8
of the Ordinance, a rape victim is required to produce at least four adult
male Muslim eyewitnesses, who have physically seen the act of rape against
the victim, in order to prove her case ... But if a woman who claims she was
raped fails to prove her claims she can be convicted of adultery, which is
punishable by death in the most stringent circumstances. |
A similar
thing was found on the ONLINE
International news network:[15]
|
They [hudood
laws] require a female rape victim to produce four male witnesses to
corroborate her account, or she risks facing a charge of adultery. |
The Hindu magazine says:[16]
|
Under this law,
if a woman is raped, and reports it, the onus is on her to prove that she was
raped. She has to bring along four male eyewitnesses. Only then will the law consider
her case. On the other hand, if she cannot prove that she was raped, then she
could be charged with adultery, a non-bailable offence that can even invite
the death penalty under certain circumstances. |
ABC
news also adhered to the same view:[17]
|
The
widely criticized Hudood Ordinance law, based on Islamic tenets, requires a
woman, who claims she’s been raped, to produce four witnesses ... A woman who
claims she was raped, but fails to prove her case, can be convicted of
adultery, punishable by death. |
The Australian observes the same:[18]
|
Under the
ordinances, unless the complainant in a rape case produces four male
witnesses to support her claims, she will herself face punishment. |
Zee News says:[19]
|
As per this
ridiculous ordinance, a woman to prove that violence has indeed been
committed on her must be armed with at least 4 witnesses ... According to
this ordinance which claims to be inspired by Islam, if a woman is raped then
the onus of proving the same rests with her and if she is unable to prove it
then she is tried for adultery and imprisoned while her rapist is left
scot-free. |
The Times (London) published:[20]
|
Hundreds of
women have been jailed under the laws which made a rape victim liable to
prosecution for adultery if she failed to produce four male witnesses. |
The Independent notes:[21]
|
The law also
makes prosecution in rape cases virtually impossible as rape victims must
produce four male witnesses to prove the charge. |
Al-Jazeera aired the following, regarding the Ordinance:[22]
|
The law makes
prosecution in rape cases virtually impossible as a rape victim must produce
four pious, male Muslim witnesses in court to prove the charge. If the woman
fails to provide proof, she faces the charge of adultery and imprisonment ... |
The New York Times is a disciple of the same:[23]
|
... Pakistan’s
hudood ordinance, which requires either a confession by the rapist or the
eyewitness testimony of four Muslim adult males to the act of penetration. A
woman who brings a charge of rape without either of these proofs herself
risks punishment for adultery. |
The NCSW’s
Special Committee’s draft report observes on pages 9 to 10:[24]
|
The
basic concern is that where the victim of zina bil jabr is unable to produce
the required number of witnesses, she is often booked under the offence of
Zina, and her complaint is erroneously and negatively viewed and determined
as sexual intercourse that was consensual. Hence, despite being a victim of
rape, she is charged with the offence of Zina. |
Geo TV did
not remain behind in spreading this misconception. In the Experts Commentary section of Zara
Sochieye, Dr. Tufail Hashmi, said:[25]
|
|
All of these
sources are spreading rumors, without knowing the actual ordinance or even a
few real cases. I have already discussed that a rapist can be punished on the
basis of medical evidence, circumstantial evidence, less than four witnesses,
female testimony, etc. under the current
Hudood Ordinance!!!
It may be
pertinent to quote here an important ruling of the Federal Shariat Court, regarding
this matter:-
Mst. Safia Bibi vs. The State
(PLD 1985 FSC 120)
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in
zina-bil-jabr:-
The
Court held that: “In the present case, it is clear that except the
self-exculpatory statement of the girl and the statement of her father, who
also maintained that she had been subjected to zina-bil-jabr, there is no other
evidence. In Shariah, if a girl makes a
statement as made in the present case, she cannot be convicted of Zina.”
[Annual Report
of the FSC, 2002, p.49]
(It
could hardly be clearer!)
Under the
Ordinance, if a case of zina-bil-jabr has been lodged and enough evidence is
not available to prove this (e.g. due to loss of evidence), then the case simply ends without punishing
the woman, as in the above case. The
woman is NOT
charged for zina. The woman can only
be booked under the offence of Zina, if there is evidence available to prove this and the court
is satisfied. If there is not enough evidence available to show
whether it was Zina or Zina bil Jabr, the judge simply ends the case without
punishing anyone.
It is
noteworthy here that an American (non-Muslim) legal expert, Charles Kennedy,
carried out a survey of hudood cases in Pakistan. His unbiased research, based
on material facts, concludes the following:[26]
|
Women
fearing conviction under Section 10(2) frequently bring charges of rape under
10(3) against their alleged partners. The FSC finding no circumstantial
evidence to support the latter charge, convict the male accused under Section
10(2). The woman is exonerated of any wrong doing due to reasonable doubt. |
Now, we
quote such a case in which a complaint of rape was converted to adultery, not
because the girl had no evidence, but, because of the fact that solid evidence
was available to prove that she was a consenting party to the immorality:-
Muhammad
Asghar vs. The State (2004 P.Cr.L.J. 201)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement of
the victim regarding her having been subjected to sexual intercourse was
supported by medical report. Vaginal swabs of the victim were found stained
with semen. Victim girl did not appear before the Investigating Officer for
more than six days and no marks of violence were found on any part of her body.
No weapon was recovered from the accused. Cumulative effect of the said facts
and circumstances could lead to the only inference that the victim was a
consenting party to the commission of zina and she having attained puberty was
adult within the meaning of S.2 (a) of the said Ordinance. During course of
investigation, a number of Investigating Officers found the victim to be a
consenting party. Conviction of accused under S.10 (3) of the said Ordinance
was consequently altered to S.10 (2) and his sentence was reduced to the
imprisonment already undergone by him in circumstances which was more than two
years.
[Annual Report of the FSC, 2003, p.21]
When it is proved
beyond doubt that zina, not zina-bil-jabr, had taken place, then it is against
the canons of morality, justice & law to leave the woman scot-free. In
fact, punishing her, in this case, will be mandatory to meet the ends of
justice. The Qur’an enshrines:-
“Let not
compassion withhold you in their (fornicators’) case...” [Surah an-Noor 24:2]
Furthermore, the
provision of converting of rape cases to adultery—on the basis of solid evidence,
is based on intellect & wisdom. On this issue, instead of saying something
based on my own thoughts, I will turn to the experts in the respective field
for help.
Bernard Knight, a renowned Professor of Forensic Pathology at
the University of Wales, College of Medicine, writes:[27]
|
The genuineness of
allegations of sexual assault This is an extremely difficult topic, with strong emotive,
social and feminist overtones. The fact is that a
significant proportion of allegations of rape and indecent assault reported to the police are found to be
untrue. This is often hotly denied by
women’s groups, but is an indisputable fact, proven by many subsequent
admissions by girls that no such attack took place. (Emphasis
ours) |
|
The examining doctor must be aware of false allegations and
not necessarily believe in everything that he is told. This is not to say
that he or she should begin with a suspicious attitude, but must be impartial
and arrive at a decision on objective aspects of the history and examination. |
|
False stories may be due to delusions or even drugs—the author
has met two such instances in female medical staff where mental abnormality
led to unjustified accusations against innocent males. Another more common
reason is where a girl gives consent to intercourse then later denies that
she agreed and accuses the man of rape or other sexual misbehaviour. This may
be due to fear of pregnancy, venereal infection, but more often to a
break-down in the relationship (such as being ‘jilted’), where motives of
revenge or mischief are present. |
This is absolutely correct and in fact, Dr. K.C. Parikh, an
eminent professor of India and Editor of the famous Journal of Medical
Profession in India (Bombay), wrote in explicit terms:[28]
|
False Accusations: The
possibility of false accusation must be kept in mind. In reality, if it were not for the fact that
rape can take place from fear, the problem might be fairly easy to solve for “a
fully conscious woman of normal physique will resist having her legs
separated by one man against her will.” (Emphasis ours) |
|
One
girl who had connection several times with her fiancée became alarmed at some
blood on her garments. She therefore alleged that after he had left her, she
was attacked and had amnesia till she regained consciousness to find her
underclothes blood stained. As her fiancé had left her in the passage outside
her house where they had been talking from 1.00 a.m. till 2.00 a.m.; it
seemed unrealistic to incriminate a third party. Suspicion was strengthened
by her repeated statements that her fiancé would never do such a thing and
she could trust him anywhere. She finally admitted her involvement with him,
and then asked what she was to tell her mother! A girl alleged victim of
rape, was asked if she struggled to her utmost to which she said she did. She
was asked if she shouted to which she said she did not. When asked, why not,
she stated that she was afraid of waking up her mother who slept in the next
room! |
|
Vulval and vaginal injuries may be maliciously produced in
children by instruments or fingers and a false charge of rape brought against
an individual with a view to take revenge or extort money from him.
Artificial bruises may be produced by using marking nut juice. The vagina may
be irritated by using chillis. Sometimes, frog’s or fowl’s blood may be used
for staining the clothes and private parts. Solutions of starch or egg
albumin may be used to stain the clothes and such stains simulate seminal
stains. Sometimes, the girl is a consenting party, and it is only
after the act that she becomes frightened and brings a charge to save her
reputation. |
|
When a woman’s husband is away and she becomes pregnant, she
may claim rape to help cover up her activities during his absence. |
|
Often, the victim’s story gives a strong indication of the
falsity of the charge. The girl who tells of a cloth smelling of chloroform
bring placed over her mouth after which she immediately became unconscious
and on recovering her senses found her clothes in disorder, and complains
that she has been raped, is likely to be an hysterical one, rather than a
victim of rape. The statement of a woman who presents no signs of struggle
and who appears to have offered no resistance to her assailant that she was
under the influence of a drug must be accepted with great caution. Probably,
she is making an attempt to clear herself at the expense of her partner. In
such a case, a close inquiry must be made in to the history of the case, the
manner in which the drug was given, whether in food or in drink, the amount
taken, the special taste if any noted, the time elapsing before symptoms
arose, and the nature of the symptoms. The complainant must be pressed for
details and the story may be so clear that drugging may be ruled out! Blood
and urine should be preserved for chemical examination if deemed necessary. |
By all these extracts, we don’t want to (ﷲﺍﺎﺑ ﺬﻮﻌﻧ) accuse anyone of committing any crime or
the like. All these excerpts have been given to prove that sometimes, a case maybe
a de jure case of rape, but, a de facto case of adultery. Of course, this—in no way—justifies the corroboration
that “a woman is charged with adultery if rape is not proved.” Nothing can be more changed from the truth!
7. Misconceptions about Qazf
Geo
TV, inter alia, is spreading a lot of
misconceptions about Qazf i.e. false accusation of zina. Let us deal with them serially.
First
of all, I would like to answer off a common misconception about the Offence of Qazf (E.O.H.) Ordinance (VIII of
1979) that it does not allow women to file a complaint of Qazf.
The
Christian Post (Pakistan) objects:[29]
|
The application
for Qazf proceedings could be filed only by men even if the wronged person
was a woman. |
Section 8 of
the relevant ordinance may be quoted here:
|
8. Who can file a complaint: No
proceedings under this Ordinance shall be initiated except on a report made
to the police or a complaint lodged in a Court by the following, namely:- (a) if the
person in respect of whom the ‘qazf’ has been committed be alive, that
person, or any person authorized by him;
or (b) if the
person in respect of whom the ‘qazf’ has been committed be dead, any of the
ascendants or descendants of that person. |
Justice (R)
Shaiq Usmani, a member of the Special Committee, established by the NCSW, also
argued on the above section:
|
Justice
(R) Shaiq Usmani observed that the exclusion of the term “her” [in the above
section] means that it is only a man against whom Qazf is committed is
eligible to file a compliant. |
Ms. Kashmala
Tariq, an MNA, had also proposed:[30]
|
In Section 8,
it was proposed that the word ‘him’ should be changed with “that person.” |
Before answering
off this argument, I would like to quote Section 2 of the respective ordinance:
|
2.
Definitions In the
Ordinance, unless there is anything repugnant in the subject or context- (a) ‘adult’, ‘hadd’, ‘tazir’, ‘zina’ and ‘zina-bil-jabr’ have
the same meaning as in the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979; and (b) all other terms and expressions not defined in this
Ordinance shall have the same meaning as in the Pakistan Penal Code (Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act V of
1898). |
This means
that all expressions, terms and explanations given in the PPC are equally
applicable in the Qazf Ordinance too. With this important thing in mind, we
quote here, Section 8 of the Pakistan Penal Code:
|
8. Gender The
pronoun ‘he’ and its derivates are used of any person, whether male or
female. |
The argument
is dead already!
Another
widespread misconception is that a woman,
who reports rape but cannot prove it, is convicted for qazf. Dr. Tufail Hashmi, in his statement to Zara Sochieye, said: [31]
|
|
This argument
is completely meaningless to say the least; quoting Section 3 of the original
ordinance will suffice:
|
3. Qazf Whoever
by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes an imputation of ‘zina’ [not zina-bil-jabr]
concerning any person intending to harm, or knowing or having reason to
believe that such imputation will harm the reputation, or hurt the feelings,
of such person, is said except in the cases hereinafter excepted, to commit
‘qazf’. (a)
a
complainant makes an accusation of ‘zina’ [not zina-bil-jabr] against
another person in a Court, but fails to produce four witnesses in support
thereof before the Court; (b)
according
to the finding of the Court, a witness has given false evidence of the
commission of ‘zina’ or ‘zina-bil-jabr’; (c) according to the finding of the Court, a complainant has made a
false accusation of ‘zina-bil-jabr’. |
From the
above section, it is crystal-clear that the only situation, in which, a
complainant of zina-bil-jabr, will receive the punishment of qazf, is when he or she, as the case
maybe, falsely accuses someone; in other words, that person (the complainant)
tells a lie.
In some
cases, an imputation of zina-bil-jabr is neither proved, nor disproved; in such
cases, there is a lack of evidence, or there has been a loss of evidence. In such cases, only complainants of zina are said to have committed qazf;
complainants of zina-bil-jabr, have not
committed qazf, if they fail to prove. They can only be convicted for qazf if their accusation is a lie, e.g.
if the hymen (of vagina) is intact & no intercourse took place.
The above discussion proves that Dr. Tufail
Hashmi’s statement is a white lie!
The last
argument forwarded against the respective ordinance is that if complainants fail
to prove their accusation of zina against
someone else, the accused will have to file a separate case against the
complainant. It is usually said that such a thing is un-Islamic and unjust.
To refute
this argument, I would request the reader to read my FAQ about the Qazf
Ordinance[32],
paralleled by another writing[33]
which contains the Qazf Ordinance alongwith a small commentary & relevant
sections of the PPC.
8. Statement of scholars
In
some cases, Geo TV has distorted the meanings of the statements of scholars,
while, in other cases, they fooled them by giving false information about the
Ordinance. Such scholars, not knowing well about the Ordinance, were deceived
by Geo TV and gave their statements on the basis of fallacious information
about the Ordinance. For more information, see my article entitled Commentary
on the Experts’ Commentary.[34]
9. Mufti
Muneeb-ur-Rehman’s Statement & Incorrect Conclusions
It is
important to discuss a statement made by Mufti Muneeb-ur-Rehman during the Zara Sochieye Debate on Geo TV. He said:
|
Punishing
a man or woman, in advance, with imprisonment before hearing of the case i.e.
keeping them in Police’s custody, is un-Islamic and unjust. |
Firstly,
it must be noted that an arrest warrant does not contain a commandment to
“punish the accused with imprisonment till hearing of the case.” Arrest
warrants issued by feminist NGOs and Geo TV might contain such provisions :)
Will someone explain which court has punished an accused with imprisonment till
hearing of the case, before the case is even heard?
The
definition of arrest can be understood easily by the Urdu word ﺮﺎﺘﻓﺮﮔ which means to take something in one’s
custody/security. This means that the police arrests people, on the basis of a
report (i.e. FIR—First Information Report) or some other solid evidence, for
example, the police arrested a person showing weapons to terrorize others or
two people committing fornication infront of a police officer. They have to
keep these arrested people somewhere and the prescribed place is jail. If the
people of this country do not like it and if they have enough resources, they may
put them wherever they like. Clearly, this keeping in jail, is not a
‘punishment of imprisonment!’
It should be
noted here that crimes are divided into two categories: (a) cognizable offence;
and (b) non-cognizable offence. Cognizable offence is an offence for which the
police can arrest a person without an arrest warrant, on the basis of evidence
or a credible report. Some cognizable offences are bail-able, whereas, others
are not. Non-cognizable offences are those for which, the police does not have the
authority to arrest anyone until an arrest warrant has been issued by an
authorized court of magistrate.
By now, the
argument that keeping arrested people in jail is unjust, has been cleared up.
Mufti sahib (probably) arrived incorrectly at this conclusion, because, he
equalized the police station with a court of magistrate (ﺖﻟﺍﺪﻋ ﻰﻛ ﻰﻀﺎﻗ) and lodging of FIR with hearing of the
case. This was apparent when he said: “If four witnesses have come/arrived to a
Qadi, this in itself is the
registration of a case.” (God knows better!)
It
is also pertinent to note here that Geo TV has deduced a totally incorrect
& absurd conclusion from the above statement, which is included in their Declaration Statement i.e. women should not be put in jail at all.
Firstly, it is not related with the Hudood Ordinance and secondly, this is a
distortion of Mufti Muneeb-ur-Rehman’s statement!
Mufti
Muneeb-ur-Rehman’s statement, if correct and acceptable, would mean that men
and women BOTH should not be
arrested for ANY CRIME WHATSOEVER. It is important to note that his edict
dealt with keeping people in jail, before conviction by a court. The
impact of this edict, if accepted, would be that all people which were arrested
by the police, would be left free of charge to ruin public peace! One can
easily approximate from this fact, the authenticity of his statement.[35] He seems to be flawed in his
understanding of criminal law and judicial system; to err is human.
10. Injustice to women
Another lie being spread about the Hudood Ordinance is that it is
responsible for enormous injustice to women. As we have already discussed, tazir
can be awarded even in the absence of witnesses. A case of rape is not converted to a case of adultery,
due to lack of evidence, and most importantly, women languishing in jails are
not a ‘victim’ of the zina ordinance.
With these things in mind, a natural question arises that if this is
the truth, then what about cases like the Zafran Bibi case? Let us take up the
Zafran Bibi case and try to locate the real cause behind her unjust conviction.
Instead of writing the history of the case myself, I rely on another
article:
|
Zafran Bibi was
married 13 years ago to Naimat Khan of Kari Sher Khan village in Kohat, two
kilometres away from her own village of Chorlaki. About a decade ago, her
husband was convicted of murder and awarded 25-years imprisonment in Haripur
jail. Zafran Bibi continued to live with her in-laws. According to her, she
was harassed on numerous occasions by her husband’s brother, Jamal Khan. With
nowhere else to turn, she complained about his behaviour to her mother-in-law
Zar Bibi, who instead laid the blame squarely on the young woman’s shoulders
and ordered Zafran to mend her ways. A few days later, the harassment turned
into violence when Zafran Bibi was raped by Jamal Khan. Zafran, now demanded
that something be done, otherwise, she would seek help elsewhere. Her
father-in-law intervened at this point and assured her of his support. The
matter was once again brushed under the carpet, arising only when it was
suspected that Zafran had become pregnant. Meanwhile,
Zafran Bibi’s sister-in-law, her husband’s sister, had received a proposal
from a man named Akmal Khan, some time back. According to reports, there were
differences between the two families and the proposal was refused. These
differences had since developed into personal enmity. When Zafran Bibi’s
pregnancy came to light, her in-laws allegedly saw the opportunity to kill
two birds with one stone: implicate Akmal Khan in a case of adultery with Zafran
Bibi, which would get their son off scot free and Akmal Khan thrown into
jail; their daughter-in-law, Zafran Bibi’s life, was obviously of no account. Oblivious
to the scheming going on behind the scenes, Zafran Bibi, accompanied by her
father-in-law, Zabita Khan, went to the police station to file a First
Information Report (FIR). According to records, FIR No. 85 was registered on
March 26, 2001, at 8:35 A.M. by Zabita Khan, Zafran’s father-in-law, to which
Zafran had affixed her thumb impression. The FIR states that about 11 to 12
days back, when Zafran Bibi was cutting grass on a hill known as Khulgai of
Moza Kerri Sheikhan district, a short distance from her house when Akmal Khan
grabbed hold of her and raped her. After the registration of the FIR, a
medical examination of the victim was carried out at the ‘Women Hospital
Singarh’ by a lady doctor named Robina Yasmin, who recorded Zafran Bibi to be
at least seven to eight weeks pregnant. The police then arrested both Zafran
Bibi and Akmal Khan for adultery on the grounds that if she had indeed been
raped, as she said some 12 days ago, her approximately two-month pregnancy
could only be explained by the commission of zina (adultery) rather than
zina-bil-jabr (rape). Zafran
Bibi, in her statement in court, under oath under section 340 CrPC, said it
was her brother-in-law, Jamal Khan, who had raped her and not Akmal Khan.
Zafran denied that she had ever accused him of the crime. For his part, Akmal
Khan repeatedly denied having anything to do with Zafran and pleaded not
guilty, accusing Zabita Khan of trying to frame him. While he was acquitted,
Zafran Bibi was even denied bail. The
Additional Sessions Judge, at the time, was Yaqoob Khan Khattak. During the
course of the trial, he was replaced by Anwar Ali Khan. Meanwhile, Zafran
Bibi’s lawyer, Sher Haider Khan, instead of defending his client, portrayed
her in court as a woman of low character involved in a sexual relationship
with Akmal Khan, who was now trying to implicate her innocent brother-in-law,
Jamal Khan. Zafran Bibi, therefore, requested a change in her lawyer,
suspecting that Haider Khan was in collusion with her in-laws. When another
lawyer took up her case, Zafran again repeated her earlier statement that she
was not guilty of adultery and had been raped by Jamal Khan. However, at no
point was Jamal Khan produced in court for questioning. On April
17, 2002, Additional Sessions Judge, Anwar Ali Khan, pronounced her guilty as
charged, sentencing her to death by stoning at a public place “subject to
confirmation of this judgment by Federal Shariat Court of Pakistan.” In the
nine-page judgment, he says that Zafran Bibi’s two statements alleging zina
“coupled with the presence of an illegitimate female child, amounts to
confession of offence as envisaged by section 8 of the offence of Zina
(Enforcement of Hudood) Ordinance 1979.” The
conviction provoked expressions of outrage from several lawyers and human
rights activists, claiming that Zafran Bibi has not only been wrongly
convicted, but that, her conviction does not meet the demands of justice.
Proof of rape or adultery liable to hadd punishment can, as stated in section
8, be in either of two forms. One is a confession of the offence by the
accused before a court of competent jurisdiction on this basis. However, to take Zafran Bibi’s
statements—that had in any case alleged zina-bil-jabr, rather than confessing
to zina—and the existence of her illegitimate baby as proof that “amounts to
a confession” is clearly an extension of the law. [THIS
IS THE POINT WHERE THE NGO’S UNJUSTLY CONNECT THE HUDOOD ORDINANCE TO THIS
ISSUE; WE DISCUSS THIS IN A MOMENT.] “Either by
adultery or by rape, this woman is now the mother of a child. The courts have
acquitted the accused Akmal Khan and have not even tried the man Zafran
claims is responsible, Jamal Khan,” said Ansar Burney, who has appealed to
various quarters—including the president and the Federal Shariah Court—to
prevent this cruel punishment from being carried out. Others
have also voiced their criticism of the verdict. Chief Executive of Aurat
Foundation, Rakhshanda Naz, said at a news conference that the court heard
the case very briefly. “The accused never confessed to the crime nor were
there four eye-witnesses (tazkiyah al-shuhood) produced in the court and in
her statements Zafran clearly stated that she was raped.” Besides Ansar
Burney, two other prominent lawyers, Barrister Masud Kausar and Zafrullah,
have filed an appeal in the Federal Shariah Court on Zafran Bibi’s behalf.
The Federal Shariah Court expressed their acceptance of Ansar Burney’s appeal
in a letter dated April 27, stating that “subsection (3) of section 5 of the Offence of Zina (Enforcement of Hudood)
Ordinance, inter alia, provides
that no punishment shall be executed until it has been confirmed by the court
to which an appeal from the order of conviction lies.” A new
twist was added to the story when Zafran’s husband, Naimat Khan, upon his
release from Haripur Jail on account of good conduct told Ansar Burney Trust
representative Jan Afzal, that he is the father of Zafran’s child. Naimat
Khan explained that while behind bars, he had, as a model prisoner been made
a ‘mushaqqati’ (a prisoner who, while serving time, is assigned work outside
the jail premises—for instance, at the homes of higher security personnel).
Almost two years ago, he said that he was working at the superintendent’s
house when his wife paid him a visit and they shared intimate moments
together, which probably resulted in Zafran’s pregnancy. |
The FSC
later acquitted Zafran Bibi:-
Mst.
Zafran Bibi vs. The State (PLD 2002 FSC 1)
MR. JUSTICE DR. FIDA MUHAMMAD KHAN
Pregnancy
and subsequent birth of a child by the accused lady whose husband had been
convicted about nine years before in a murder case, and confined in jail; imprisoned
husband had submitted an affidavit and made statement on oath, before this
Court (FSC) wherein inter alia, he owned legitimacy of the child born
during trial. Such being a highly pertinent aspect of the whole case, it was
certainly noticeable that who else could better testify and be a better judge
of the pregnancy/legitimacy of a child of a married lady than that of her
husband. Accused lady also confirmed on oath, the legitimacy of the child. Hadd
sentence, on such score, awarded to the accused was not maintainable and was
set aside.
[Annual Report of the FSC, 2002, pp.61-62]
Now, let me
clarify some issues:
(1)
Zafran
Bibi’s lawyer started defaming her, instead of defending her; this is not a
problem of the respective ordinance.
(2)
According
to records, the FIR which was filed had accused Akmal Khan and not Jamal Khan.
It carried Zafran Bibi’s thumb impression too, but, I think that the police
officer might have taken bribes for doing an ulterior work. (Only God knows!)
Recall that it is the CrPC, which deals with lodging of FIRs, and not the
Hudood Ordinance. Furthermore, this is not a defect in the law; it is a problem
in the law-enforcing agencies. Consequently, the law does not require to be
changed; the police needs to be corrected.
(3)
Jamal
Khan was not called in the court; although, this is not an issue of the zina
ordinance, but still, it needs to be pointed out that the judge acted
dishonestly and against law.
The only
thing in this whole case which is related with the Hudood Ordinance is the judgment
passed by the Additional Sessions judge:-
|
In the
nine-page judgment, he says that Zafran Bibi’s two statements alleging zina
“coupled with the presence of an illegitimate female child, amounts to
confession of offence, as envisaged by Section 8 of the Offence of Zina
(Enforcement of Hudood) Ordinance, 1979.” |
The NGOs
raise protest against the Hudood Ordinance and bring arguments against it from,
inter alia, Zafran Bibi case, by
saying things similar to this one:-
|
However, to
take Zafran Bibi’s statements—that had in any case alleged zina-bil-jabr
rather than confessing to zina—and the existence of her illegitimate baby as
proof that “amounts to a confession” is clearly an extension of the law. |
Anyone who
understands the English language knows that only a subjective analysis of
Section 8 and 9(1) of the concerned ordinance is sufficient to prove the
fallacy of this statement; a confession of the commission of the offence is
extremely different from an allegation. The judge was no doubt corrupt and his
statement was not in accordance with
the relevant ordinance. The FSC also said the same thing in its judgment that
“this is not a defect in the hudood laws.”
We
would like to challenge anyone right here, to bring forth such a dictionary, in
which ‘allegation’ or ‘pregnancy’ is included in the ambit of ‘confession’.
A confession
is a confession and nothing else. Had there been some explicit provision in the
ordinance, stating the contrary, then the verdict might be justifiable. But, no
such thing exists and writing something in the ordinance, along the lines, 2 +
2 = 4, is useless.
Let’s not
get involved in hair-splitting and abstract discussion. The simplest method to
settle the issue is to see as to how Section 8 was interpreted before this
judgment by other courts.
We enumerate
here a few judgments which are related with confession under Section 8 of the
respective ordinance:-
Mst. Safia
Bibi vs. The State
(PLD 1985 FSC 120)
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in zina-bil-jabr:-
The Court
held that: “In the present case, it is clear that except the self-exculpatory
statement of the girl and the statement of her father, who also maintained that
she had been subjected to zina-bil-jabr, there is no other evidence. In
Shariah, if a girl makes a statement as made in the present case, she cannot be
convicted of Zina.”
[Annual Report of the FSC, 2002, p.49]
Conclusion: This judgment clearly expounds the principle that if a woman
accuses someone else of zina-bil-jabr, but, no other evidence is available,
then she cannot be convicted of zina. This judgment was of 1985, whereas, in
the case under discussion, the sentence of stoning was passed in 2002. This
alone is a sufficient proof that the judge misinterpreted the law.
Ghulam Ali vs. The State (PLD 1981 FSC 224)
MR. JUSTICE ZAKAULLAH LODHI
Confessional statement of woman against co-accused:-
Prosecution
case resting only on confession of woman co-accused, confession of co-accused
does not occupy position of a statement on oath before court of law. Such
confession cannot be made good ground to support conviction of another
co-accused. Appeal accepted.
[Annual Report of the FSC, 2002, p.47]
Arif Nawaz Khan vs. The State (PLD 1991 FSC 53)
MR. JUSTICE TANZIL-UR-REHMAN
Confession of an accused person against co-accused:-
In Islamic
law, the confession of an accused against the co-accused is not acceptable and
if there is no other proof against him, he will not be punished on the said
confession. Thus a confession only implicates the accused, but not the
co-accused. If a person retracts from his confession, his retraction shall be
accepted and he shall be absolved from hadd punishment, unless the Hadd
punishment is proved by evidence.
[Annual Report of the FSC, 2002, p.52]
Conclusion: The above two judgments answer off the common objection
raised by people that a rapist confesses his crime as zina before the court and
the woman also gets convicted; this is a fallacy. The above two judgments
clearly say that confession of one cannot be made ground for the conviction of
co-accused. This is also proved from several ahadith e.g. a hadith found in
Kitab al-Hudood of Sunan Abu Dawud.
Mst. Bakhan vs. The State (PLD 1986 FSC 274)
MR. JUSTICE GUL MUHAMMAD KHAN
1. Principle for recording of confession in cases of offence of zina;
2. Four times confession is necessary for a proof of offence of zina.
3. A plea of guilty is not a confession. Ultimate aim of Islamic law is
correction and reformation & heavy punishment is provided only for
incorrigible cases. Appeal accepted.
[Annual Report of the FSC, 2002, p.49]
Muhammad Sarwar and another vs. The State (PLD 1988 FSC 42)
MR. JUSTICE GUL MUHAMMAD KHAN
When a
person wants to confess his guilt in accordance with the Offence of Zina (E.O.H.) Ordinance, 1979, the court should record
his statement four times at intervals and each time accused should be asked to
go out of the view of the court. Order of the trial court was set not supported
by law and the same was, therefore, set aside.
[Annual Report of the FSC, 2002, p.50]
At this
point, I appeal the readers to ask their own self: Did the Additional Sessions
Judge follow the above judgments in Zafran Bibi’s case? How could he follow the
above procedures? Will he ask her to accuse someone four times or will Zafran
Bibi have to retract her ‘pregnancy,’ in order to fulfill the provisions of
retraction of confession, as laid in Section 9(1)?
The above discussion gives a
conclusive proof that the zina ordinance is far away from even the shores of
being related with this case & causing injustice to Zafran Bibi!
One
important aspect of this case, which is usually not discussed or debated, is
that Mst. Zafran Bibi was acquitted by the FSC, on the fact that she became
pregnant as a result of having intercourse with her husband. She was not
acquitted because Jamal Khan had raped her.
The million-dollar question here is: Why didn’t Zafran Bibi tell
others that she had “intimate moments” with her husband??? Did she deliberately try to conceal her
pregnancy & take advantage of it?
Only God
knows the exact answer to this question. I surely would not like to bear the
burden of accusing a chaste lady of a heinous sin, but still, this fact adds a
grain of skepticism to the whole case.
Lastly, I
would like to clarify that I am not narrow-minded and have no problems in
appreciating, as well as praising those NGOs, which raised protest against this
unjust judgment. Unfortunately, most of these NGOs, as well as Geo TV itself,
try to give the impression to the lay public as if such things are the result
of some provision of the ordinance under discussion. This is a heinous allegation against the hudood laws.
I would like
to end up this issue by quoting here a recent case:[36]
|
Rape victim booked for adultery: SC Orders Inquiry ISLAMABAD, Oct
12: The Supreme Court on Thursday took serious notice of a case in which a
woman was raped but she was booked by police for zina bil raza (adultery). A bench
comprising Chief Justice Iftikhar Muhammad Chaudhary and Justice Muhammad
Nawaz Abbasi ordered a judicial inquiry into the matter. Complainant
Nasreen Mai was kept in illegal confinement for 11 months by Iqbal, a
relative of her father and her father’s landlord Ali Muhammad Saamtia. During
this period, she was raped by Iqbal as a result of which she became pregnant
and gave birth to a child. The two culprits stole her one-month-old child and
murdered. “The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is
getting criticism and objections only because of handling of hudood cases by
police in such a manner,”
the chief justice observed during suo
motu hearing of the complaint of Nasreen Mai. During the
hearing, the court was told that 46 rape cases registered under the hudood
laws in District Layyah were awaiting investigation for months for want of a
senior police officer. DPO Layyah
Nazim Shahid informed the bench that under the law, hudood cases, especially
rape matters, could not be investigated by a police officer less than the
rank of an SP. He stated a request was sent to the inspector-general Punjab
police on July 6, 2006, for appointment of a senior police officer in the
district but so far no step had been taken. “Therefore,
Iqbal is still a free man,” the DPO said, adding that being a junior officer,
he could not take up the inquiry. Additional
Advocate-General Punjab Syed Azhar Hussain informed the court that Nasreen
Mai was married to one Allah Dita but for seven years she remained issueless.
After some domestic dispute, she was asked by her father to leave her husband
and stay with him. But Iqbal and
Din Mohammad Saamtia, the AAG said, took her away and kept her in illegal
detention for eleven months during which she was raped by Iqbal. When she
became pregnant and subsequently gave birth to a child, the family members of
the landlord killed the baby, the AAG added. When asked: ‘Why was an
adultery case registered against Nasreen?’ The DPO explained that the police
registered the case on the basis of the finding of the District and Sessions
judge Layyah. However, the bench noted that
the DJ Layyah, while compiling his report, had relied upon the investigation
of police instead of conducting an independent judicial inquiry. The bench
remanded the case back to the DJ Layyah with instructions to conduct fresh
inquiry and ordered police to register a new case on the basis of new
findings of the DJ Layyah. |
The bolded
out sentences of the above extract, especially, the CJ’s comments on the issue,
clearly lay bare the truth that the police & the judges are responsible for
the injustice; not the hudood ordinance!
11. Availability of four witnesses is impossible
Another lie
being spread by Geo TV on a wide scale is that the condition of four witnesses
is impossible and will never be fulfilled. The basic argument is similar to the
statement of Syed Razi Jaffer Naqvi, as found in the Experts Commentary section:[37]
|
The truth is
that if we think at length about zina bil jabr then it seems impossible that
someone can commit this crime in front of four pious and trustworthy people.
If a person will want to use force against a woman, then these four people
would use their strength to stop such a thing from happening. The perpetrator
would not dare to do something like this, and if he is that daring then
because these witnesses are expected to be pious, they would use their
strength and stop the crime. |
First of
all, the fore-most thing to be kept in mind is that tazir can always be
awarded, so neither the criminals will get a free hand, nor will injustice be
caused to women by the condition of four witnesses. Thus the hadd for zina
or zina-bil-jabr is there as a rare & hard punishment and consequently,
removing it will not have any effect on the status of women whatsoever.
Furthermore,
if the above argument is accepted, then it applies equally well for zina,
too; since, the four pious persons will not stand to get entertained by a
Hollywood movie! Moving further, in case of rape, the woman will shout and some
people may gather. The rapist may also have a weapon to keep witnesses away. But, how on earth will four witnesses be
available in case of zina, if the
above argumentation is acceptable?
On the above
issue, there is a golden and well-settled principle of Fiqh: the application
of a law depends on the Illat and not on the Hikmat. I quote here an
extract from paragraphs 119-121 of Mufti Taqi Usmani’s 1999 judgment on Riba,
in the Supreme Court of Pakistan:-
|
It
is a well settled principle of Islamic jurisprudence that there is a big
difference between the Illat and the Hikmat of a particular law. The Illat is
the basic feature of a transaction without which the relevant law cannot be
applied to it, whereas the Hikmat is the wisdom and the philosophy taken into
account by the legislator while framing the law or the benefit intended to be
drawn by its enforcement. The principle is that the application of a law
depends on the Illat and not the Hikmat. In other words, if the Illat
(the basic feature of a transaction) is available in a particular situation
while the Hikmat (the wisdom) behind is not visualized, the law will still be
applicable. This principle is recognized in the secular laws also. Let us
take a simple example: The law has made it compulsory for the vehicles
running on the roads to stop when the red street light is on. The Illat of
this law is the red light, while the Hikmat is to avoid the chances of
accident. Now, the law will be
applicable whenever the red light is on; its application will not depend on
whether or not there is an apprehension of an accident. Therefore, if the red
light is on, every vehicle is bound to stop, even though the roads of both
sides have no other traffic at all. In this particular case, the basic
wisdom (Hikmat) of the law is not discernable, because there is no
apprehension of any accident in any way. Still the law will be applicable in
its full force, because the red light which was the real Illat of the law is
present. To cite another example, the Holy Quran has prohibited liquor. The
Illat of the prohibition is intoxication but the Hikmat of this prohibition
has been mentioned by the Holy Quran in the following words: “The Satan
definitely intends to inculcate enmity and hatred between you by means of
liquor and gambling, and wants to prevent you from remembering Allah. So
would you not desist?” (5:91) The philosophy
of the prohibition of Liquor and gambling given by the Holy Quran in this
verse is that liquor inculcates enmity and hatred between people and it
prevents them from remembering Allah. Can one say that he has been using
liquor for a long time but it never resulted in having enmity with any one,
and therefore, the basic Illat of prohibition being not present, he should be
allowed to use liquor? Or can one reasonably argue that drinking wine has
never prevented him from offering prayers at their due times, and therefore,
the basic cause of prohibition mentioned by the Holy Quran being absent, the
drinking should be held as permissible. Obviously, one can not accept
these arguments because the enmity and hatred referred to by the Holy Quran
in the above verse is not intended to be the Illat of prohibition. It simply
spells out some bad results which the liquor and gambling often produce. They
have been mentioned as a Hikmat and the philosophy of the prohibition, but
the prohibition itself does not depend on these results. |
Thus the
wanting of Hikmat behind a
commandment of the Shari’ah, in a particular scenario, is no base for
dissolving that commandment.
We know, by
this time that removing hadd and the
condition of four witnesses, will not have any effect on the status of women.
It will only add one more to our account of sins that we removed a Quranic law
from the statuary books!
Still, some
may say that the implementation of hadd on any criminal is ‘impossible,’
because of the strict evidence requirements. They may argue that having a law
which would ‘never’ be enforced is stupidity. Let’s discuss this issue of
availability of witnesses for zina and zina-bil-jabr.
First of
all, we should note that punishments are of four types:-
(i)
Deterrent
(ii)
Retributive
(iii) Preventive
(iv) Reformative
Hudood for zina and zina-bil-jabr are deterrent
punishments for hardened criminals, which will rarely be awarded. In one of the
ahadith, the Prophet (
)
is reported to have said: “Enforcement of a single hadd in the land of Allah is better than rainfall for 40 days (in
it).”
Furthermore,
hadd is not awarded everyday. During the era of the Prophet ()
and the four pious caliphs, the hands of only five thieves were amputated. In
the same way, four witnesses will not be available everyday, but, it is also
wrong to say that they would ‘never’ be available. Such a thing is but
conjecture!
In case
of zina-bil-jabr, there have been many cases in Pakistan where feudalists and Vaderas
would rape girls openly in streets! Here, many times, MORE THAN FOUR witnesses are
available. I still remember a case of Multan, which was reported by Geo TV, in
which a woman was stripped of her clothes right in the street; the shyless
criminal went on further to do the unethical act in public! He even dragged the
woman’s naked body through the streets of the village! Similarly, there have
been cases where, when a rapist is raping a girl, she starts screaming and four
or more persons gather in the place (usually neighbors.) There have been many
such incidents in various cities of Pakistan—including Karachi.
In case of
zina, the strict punishment is not for people doing such actions in public,
since, no one would ever do such a thing. Even if they tried to do that, most
likely they would be stopped by people. A few may say that four persons would
thus have seen them doing such a thing, but, it’s still too illogical to
believe in such a thing.
Hadd in case of zina acts as a deterrent for
perverted people, who frequently visit ‘free-sex places’ such as brothels, etc.
Many a times, it happens that the police, who may be sometimes accompanied by
journalists, visit the place by surprise. Many people are thus caught
red-handed doing shameless acts and four or even more people are available as
witnesses. [Recall that the FSC ruled in Muhammad
Abid vs. The State (PLD 1988 FSC 111)
that police officials can be witnesses in cases of zina & zina-bil-jabr.]
I still
remember a case of such nature myself; it was reported by GEO's program FIR
(First Information Report). The case was not only reported, but, various clips
from the brothel were also included. The brothel was camouflaged under the
label of Bisma Beauty Parlour. When the
police and the Geo FIR team broke in, they caught several people red-handed, in
actions! EVEN A TV MODEL NAMED NEHA WAS ARRESTED
FROM THE BROTHEL, WHO CAME THERE AS A PROSTITUTE.
Probably, it was due to the above reasons that the
Parliamentary Select Committee, consisting of Sher Afgan Khan Nyazee and
others, which was reviewing the Protection
of Women (C.L.A.) Bill, 2006, restored the enforcement of hadd upon
testimony of four witnesses in case of rape.
12. A law of one man imposed on others
One of the
most widespread misconceptions in our country is that the hudood ordinance was
a law made by a ‘horrible’ Zia-ul-Haq, as a political weapon and to impose his
distorted Islam on the hapless nation.[38]
At the outset, it is indeed amazing that the media & NGOs themselves yell
not to politicize this issue and yet, they themselves present such an
objection!
Gen.
Zia-ul-Haq is no more between us, but, these laws are. These laws are composed
of sections & articles and do not think or feel; so, we have to discuss
these laws and not who promulgated them. Whatever were the motives for
enforcing these Ordinances, Allah alone knows best (since we can’t peep into
anyone’s heart) & above all, it does not matter now.
After
refuting the above argument, we now come to unveil the most widespread rumor
i.e. hudood laws were made by a single man. After the third military takeover
in the history of Pakistan, Gen. Zia-ul-Haq was destined to be the ruler of
Pakistan. He reconstituted the CII (Council of Islamic Ideology) in 1977, after
which, it consisted of the following members:
|
1.
Justice
(R) Muhammad Afzal Cheema [Chairperson] 2.
Justice
(R) Salahuddin Ahmed 3.
A. K.
Burohi (d. April 2, 1978) 4.
Khalid
M. Ishaque, Advocate 5.
Maulana
Mohammad Yousaf Binori (d. October 4, 1977) 6.
Khuwaja
Qamar-ud-din Siyalwi 7.
Mufti
Muhammad Hussain Naeemi 8.
Maulana
Zafar Ahmed Ansari 9.
Maulana
Muhammad Taqi Usmani 10. Mufti Jaffer Hussain Mujtahid 11. Maulana Hanif Nadvi 12. Dr. Ziauddin Ahmed 13. Tajammul Hussain Hashmi (later replaced by
S. M. A. Ashraf & then, by I. A. Imtiazi) 14. Maulana Shams-ul-Haq Afghani 15. Allama Syed Muhammad Razi 16. Dr. Mrs. Khawar Chisti |
Later, a
Committee consisting of the following members was established to prepare the
draft of the hudood laws:
|
Ulema 1.
Mufti
Muhammad Taqi Usmani (Chair-person of the O.I.C. Fiqh Council) 2.
Maulana
Zafar Ahmed Ansari (RA) 3.
Pir
Karam Shah Al-Azhari (RA) 4.
Dr.
Mehmood Ahmed Ghazi Law Experts 5.
Khalid
M. Ishaque 6.
Sharif-ud-din
Pir Zada 7.
A. K.
Burohi Retired
judges 8.
A. K.
Samdani 9.
Muhammad
Afzal Cheema 10. Justice (R) Salahuddin Ahmed |
After
holding 15 meetings in different cities of the country during 29 September 1977
and 20 December 1978, the Committee prepared the drafts of the four hudood ordinances. Gen. Zia-ul-Haq was
far away from even the shores of preparing these drafts!
In the
preparation of these drafts, the Council sought assistance and consultation
with Dr. Ma’aroof al-Dawalibi, a jurist of international fame, formerly Prime
Minister of Syria, President of the World Muslim League and an Advisor to the
His Majesty, Khalid bin Abdul Walid, the King of Saudi Arabia. The drafts
laws about Hudood were first prepared in Arabic language; later, they were
translated into English and Urdu. Gen. Zia-ul-Haq did not understand Arabic; at least as far
as I know!
A special
Committee consisting of Mir Muhammad Ali (Draughtsman), and Sheikh Asadullah
(Joint Secretary), later replaced by Justice (R) Amjad Ali was appointed to
edit it in the modern legal language & to make necessary amendments. The
drafts had been completed in 1978, and General Zia ul Haq decided to enforce
them on 10 February, 1979 as an Ordinance.
The above
brief discourse on the history of the ordinances sheds light on various
important aspects and refutes many common arguments, namely:-
(a)
The
Hudood Ordinances were made by one man;
(b)
The
Hudood Ordinances have never been discussed rationally;
(c)
The
Hudood Ordinances were Zia-ul-Haq’s distorted interpretation of the Quran and
Sunnah.
The
Ordinances did not remain as such forever. On 11
November, 1985, the National Assembly passed an Act (i.e. by two-third
majority) whose name was The Constitution (Eight Amendment) Act, 1985 (XVIII
of 1985). This Act modified Article 270-A to the Constitution, which
provides affirmation to the five Hudood Ordinances. Thereafter, the National
Assembles of 1988, 1990, 1992, 1995, 1998 and 2002 never raised on objection
these Ordinances!
We will be justified here to pause for a minute and
ask our friends that do you still call this a law pasted by a single man on
others?
A few others
say that the Ordinances were not made by parliamentary debate and should be
repealed for the same reason. The answer to this argument can be twofold. The
passing of an act by the 1985 National Assembly in support of it & no
objections by the successive National Assemblies will implode this argument on
its own feet.
Secondly,
these Hudood Ordinances cannot be singled out for this reason, as a major part of
the laws of our country are ordinances, for example, to name a few:-
|
(1)
Police
Order, 2002 (2)
Income
Tax Ordinance, 2002 (3)
Legal
Framework Order, 2002 (4)
Pakistan
Arms Ordinance, 1965 (5)
Muslim
Family Laws Ordinance, 1961 (6)
Microfinance
Institutions Ordinance, 2002 (7)
Microfinance
Banking Ordinance, 2001 (8)
Banking
Companies Ordinance, 1962 (9)
Punjab
Usurious Loans Ordinance, 1959 (10)
Punjab
Urban Rent Ordinance, 1959 ... and
this list can fill whole volumes! |
From the
above discussion, we have refuted a lot of arguments raised on the hudood
ordinance as well as exposed many fake facts, being spread at a large scale, by
the media.
13. Hudood laws presume the existence of justice
Some people
forward the argument that “these hudood laws presume the existence of an
Islamic society based on justice and social & economic equality.”[39]
Anwar Syed, a columnist, extending from the above premise, said that ‘this is
akin to postponing the hudood laws indefinitely.’
The above
argument has got undue popularity even among sincere & educated persons;
some ulema even forward this argument. Now’s the time to trash this argument!
This
argument itself is usually based on the presumption and forwarded by those who
think that unless there are four witnesses, a rapist cannot be punished; since,
this is a fallacy, it is fairly simple to dispose off this argument.
Furthermore,
no person in Pakistan can guarantee or even suggest that in the coming years,
the Islamic Shari’ah will be fully implemented in the society, or that all
obscenity, immodesty, etc. will end & Islamic dress code, etc. shall be
obeyed by all. Thus ending the Ordinances will only facilitate the further
corruption of society.
But, the
above two points are not enough as the absurdity of this argument is not
unveiled yet!
To proceed
to analyze this argument, we restate it here.
|
These hudood
laws presume the existence of justice... |
If I ask you
as to what do the hudood laws constitute? Your reply will surely be that these
laws are a part of the criminal law. Thus the argument becomes:-
|
A part of
the criminal law presumes
the existence of justice. |
If I ask:
what is the criminal law for? Your reply might be that it is for punishing the
evil-doers, etc. If I ask you further, you will surely state that the criminal
law is for providing justice to the citizens of a state. In other words, the
criminal law is a source of justice.
Putting this
in the original argument, we get:-
|
The source
of justice presumes the
existence of justice. |
This
argument thus is based on the following general principle:-
|
The source of x
presumes the existence of x. |
And if that
didn’t quite take you away, take a look at a more familiar & specific
application of the principle:-
|
This light bulb
(source of light) presumes the existence of light in a room. |
We will be
justified here to ask as to when do people use light bulbs or turn them on?
Yes! In dark conditions i.e. where there is a deficiency of light. When there
is a deficiency of x, you turn on the source of x to eliminate
the deficiency.
This is a
natural example; we see everywhere that light bulbs, lamps, etc. which are
sources of light are used when there is less light. Street lights are turned on
at night and not at day.
Going the
other way around, it means that if x exists in adequate amounts, then
there is no need for a source of x. If there is enough light in the
room, we need not turn on the lights.
In the same
way, if justice already exists in a society, then there is no need for a source
of justice. If Islamic norms are being followed by almost each and every
person, then there are almost no crimes or criminals and consequently, there
would be no need of a criminal law.
To sum up then, if these hudood laws presume the existence of
justice, then this is one of the most absurd
arguments, the world has ever witnessed.
14. Hudood Ordinance is defaming Islam
Many
people are worried today that the hudood laws are defaming Pakistan & Islam
in the eyes of the international community. They argue that the image of Islam
has been stained with black spots due to this ‘un-Islamic’ law. Many cases have
been renowned in this regard like Mukhtara Mai case & Dr. Shazia Case.
Let
us peep into the reality of this argument; we quote here an extract from Dr.
Abdullah’s article on the ordinance:[40]
|
|
This is
further strengthened by another fact, quoted by Dr. Abdullah, in the same
article:[41]
|
|
I don’t
believe in everything which I read and therefore, I decided to do some research
on my own. I WAS SHOCKED
TO FIND THAT HE WAS NOT LYING!!!
By
doing a brief search on the net, I came across the donor’s website.[42] Searching on their
website, I found a document[43] entitled EN final report IPC 02 juli 03 inside
which, inter alia, a list of various
organizations, which participated for evaluation for funding, was given. I was
shocked to find the name of Aurat
Foundation as given on page 26.
|
|
I
continued my research and contacted the relevant person[44] from their website, to
provide me with details of the funding given to Aurat foundation. He did not reply back.
By doing
more research, I found from the CII’s Interim Report on the Hudood
Ordinances that the Aurat foundation had, since then, prepared the
following books:-
1.
Hudood Ordinance, Kitab-o-Sunnah ki Roshni
mein by Dr. Muhammad Tufail
Hashmi (Aurat Foundation, Peshawar : 2004)
2.
Hudood-o-Qisas-wa-Diyat
Ordinance ka Tanqidi Jaiza, Quran-o-Sunnah ki Roshni mein by Dr. Muhammad Farooq Khan (Aurat
Foundation, Peshawar : 2004)
3.
Qanun-i-Zina
per aik Nazar by Justice
Javed Iqbal (Aurat Foundation, Peshawar : 2004)
Thus one has to indeed confess that the Aurat Foundation received
funds in late 2002 from the Western donor, ICCO, for nothing other than
criticizing the Hudood laws. (God knows better!)
Here a
question arises as to why are the Western countries objecting the hudood laws?
The answer, at the very base, is for paving path for their unipolar world,
imperialism, etc. under the veil of a New World Order. For establishing
this new world order, they want a clash of civilizations & also spread
Islamophobia to justify the invasion of sovereign Muslim states, to get a
million troops on their land, to rob away their oil resources, to commit a
Muslim holocaust and make it appear like sectarian violence & finally,
establish a puppet government to control the states remotely.
According to
an article, written by Professor Edwards of Lebanon, which appeared in The
Times (London), April 1979: “In a span of just 150 years, 60,000 books were
written against Islam.” If we calculate, this means that on average, every day more
than one book is written against Islam. This is an article of 1979 when there
was no 9/11, Al-Qaeda, Osama, etc. Now-a-days, the figures would be even
mind-blowing!
This
missionary nature of the West is also seen from the fact that on minimal things
related to hudood, special attention is given by European and US media. One
example as already described was that of the Mukhtara Mai Case.
Similarly,
when Gen. Musharraf passed the Law
Reforms Ordinance, 2006, BBC earnestly reported[45]
this “international event” of “utmost importance.” Even a minimal Zara
Sochieye Debate on Geo TV was such an “important development” that the
Zionist controlled newspaper New York Times gave it special attention.[46]
Surprisingly, it was titled “After TV debates, Pakistan may ease laws
regarding reporting rape.”
How could these Zionists be so sure that Pakistan would ease
laws when it hadn’t done so after the recommendations of NCSW & so many
other NGOs? Did they know in advance about this development or did they
themselves draw the map for this development? (God knows better!)
What is even
more interesting is the fact that those Western countries which are involved in
criticizing this Ordinance are those who completely deprive women of their
modesty, respect, economic security etc. They were involved in publishing
blasphemous caricatures of a Prophet of Allah and the status of women in their
countries in nothing more than that of a commodity for fulfilling sexual
desires. With every third marriage ending in a divorce, women wearing nothing
at all, free sex in every hotel room & park, lesbianism & sodomy
legalized and common, one can approximate the amount of modesty and morality possessed
by them. They criticized other countries while forget what is happening in
their own countries: tens of thousands of women being sentenced to death,
hanged till death, frozen in freezing chambers and receiving electric shocks.
On the contrary, in Pakistan, no woman, uptil now, has ever been hanged till
death.
The love for
humanity in the hearts of such people can be seen by their attitude towards the
Asians, Muslims, Africans and blacks; testing their nuclear deterrents by
murdering tens of thousands of innocent women, children, old, patients,
disabled ones & other citizens of Hiroshima and Nagasaki; sitting on their
cruise missiles & electromagnetic bombs and talking about world peace is
enough joke. Issuing executive orders for Iraqi POW abuse[47]
and making Iraqi prisoners chew the private parts of others is enough justice.
Attacking Iraq when Hans Blix—the head of UNMOVIC—pointed out in his report of
27 January, 2003 that no evidence is available to prove that WMDs exist in
Iraq, reflects their love of Muslims. Planning out 9/11[48]
to justify invasion of Muslim countries and stopping public investigations when
cross-intelligence reports reveal that two of the 7/7 terrorists were under
MI-5 surveillance[49],
unveils the reality of their war on terror.
Their
atrocities are innumerable, especially, in the case of Palestine:[50]
violating the Sykes-Picot agreement, shattering Sherif-McMahon correspondence,
passing a Balfour Declaration to sell out a piece of Ottoman Empire—without
having any sovereign rights or consulting the people—adding this declaration—which
was illegal—in their Mandate, ignoring the rights given to Palestinians
by the Sykes-Picot agreement, ignoring the Joint Anglo-French Declaration,
ignoring the King-Crane commission report, ignoring the Peel Commission Report,
allotting 57% of the land of Palestine to 5.6% of illegally immigrated
population without the consent of the Palestinians—at the expense of 1.5
million Palestinians being converted into refugees ...ah. And there are many
other stories which can be narrated here, but, time does not permit, so, we should ignore the criticism of such people.
I
would also like to refute those Muslims here, who are spending their energies
in pleasing the West.
The
Qur‘an
says:
“Never will
the Jews, nor the Christians, be pleased with you (Muslims) till you follow
them...” [Al-Baqarah 2:120]
“This day,
those who disbelieved have given up all hope of your religion, so fear them
not, but fear Me.” [Al-Maida 5:3]
In other
words, Muslims should stop spending their energies in pleasing the West; all of
us should please Allah, The Al-Mighty God!
15. New Interpretation is not misguidance
This view is
being preached at a wide scale in our society, but, is completely wrong. Geo TV
is also very active in spreading this view. Here is one of their advertisements
being shown for preaching this view:
What do they
want to say if not that Tafseer bil Ra‘y is
permissible and blessing? Let us discuss this issue in a little detail.
The Holy
Qur‘an says:-
“Then, it is on Us (Allah) to explain it (i.e. Tafseer
of the Qur‘an).”
(Surah Qiyamah 75:19)
This
explanation is not given to us directly, but, to the Prophet ()
who described the actual Tafseer of the Holy Qur‘an. The Qur‘an says:-
And We have sent down unto you () the reminder and the advice (the Qur‘an), that you may explain clearly to men what is
sent down to them, and that they may give thought.
(Surah An-Nahl 16:44)
From this
ayah, two things are clear: (1) The Holy Prophet knows and describes the correct explanation of
the Qur‘an; (2) Giving thought and using one’s own intellect, in tafseer,
comes after the Prophet’s sayings.
That’s why
anyone, without having knowledge of Usul-e-Tafseer (i.e. the Science of
Interpretation of the Holy Qur‘an), if starts interpreting the Qur‘an, will end
up astray. Specifically, these ahadith should be kept in mind:
Whoever says
anything about the Qur‘an
without knowledge then he should make his abode in Hell. [Al-ltqan fil Ulum al-Qur‘an 2/179]
Narrated
Jundub 
that the Prophet said: If anyone interprets the Book of
Allah in the light of his own opinion, even if he is right, he has erred. [Sunan Abu Daw‘ud, Mishkat-ul-Masabih]
After the
Prophet ,
the sayings and actions of the Companions ,
Tabi‘een and Tabi‘ Tabi‘een are also a source of interpretation. Thus if I
enumerate the sources of interpretation of the Holy Qur‘an, these are:
(a) The Holy Qur‘an itself
(b) The Sayings of the Prophet
(c) The Reports of the Companions
(d) The Reports of the Successors (Tabi‘een)
(e) The Arabic Language
(f) Deliberation and Deduction
Late Grand
Mufti of Pakistan, Mufti Muhammad Shafi Usmani (R.A.) wrote in one of his
articles[51]
that:
|
So, should a
person, while explaining the Qur‘an, come out with a subtle point or
independent judgment which is contrary to the Qur‘an and Sunnah, Consensus
(Ijma‘), Language, or the statements of Companions (RAA) and Successors, or
stands in conflict with another principle of Shari‘ah, that will then have no
credence. |
From the
above explanation, it is clear that if a person is doing a “new”
interpretation of the Qur‘an which is repugnant to that of the Prophet ,
Companions and Tabi‘een and Tabi‘ Tabi‘een, then he is
completely deviant.
NOTE: The above explanation only applies to Ayat-ul-Ahkamaat & ‘Aqaid i.e. the verses dealing with
commandments of Shari’ah and fundamental beliefs. Verses which deal with, for
example, scientific knowledge, may be interpreted in a manner which is
different from that of the previous scholars.
It is
forbidden to even listen to a person who is doing Tafseer bil Ra’y. It is
useful to quote here an extract from Ma‘ariful Qur‘an:[52]
From the
saying of Ibn Abbas ,
it is abundantly clear that coining a new interpretation of any verse of the
Qur‘an—which deals with the commandments of the Shari’ah—and which stands in
conflict with the interpretation of the Prophet ,
Companions ,
Tabi‘een, Tabi‘ Tabi‘een, Consensus of Ummah or any other well-settled
principle of Shari‘ah, “then it will have no
credence” and it will be open deviance.
It
is noteworthy here that one of the reasons why the previous nations earned the
torment of Allah was that they did scripture twisting i.e. Tehreef.
We would
also like to point out here that Ijtihad is not done to change the Shari‘ah according
to one’s carnal desires. The objective of Ijtihad is to find the commandment of
Allah and not to change the
commandments of Allah to fit our needs. The slogan of “re-interpretation of the
Islamic Shari‘ah, according to the spacetime forces” is nothing more than a
sugar coating for a bitter toffee of Tehreef. The previous Ummah viz. the Jews
or Children of Israel, used to do scripture-twisting, as the Qur‘an points
out:-
They (Jews) change the words from their (right)
places. [Surah al-Maida 5:13]
AND
And their (Jews’) taking of Riba (interest)
though they were forbidden from taking it…
[Surah an-Nisa 4:161]
We are doing
the same, as the Prophet had
prophesized; we do scripture-twisting, but, label it as reinterpreting the text
according to the space-time conditions prevailing. As our Prophet has
taught, we should not be driven away by space-time forces; rather we should stand
like a rock and control the space-time forces, according to our will!’
Changing
the Shari‘ah as one deems fit also comes under following the desires
of one’s Nafs and is strictly
prohibited by the Shari‘ah. There are many
verses and sayings which can be found in this regard.
Other Rumors
It must be
noted here that the above rumors were only a few selected ones. The total
number of lies being spread by Geo TV and other feminist NGOs is more than
difficult to accumulate in a single article.
Abdul Rehman,
Peshawar, Pakistan,
27 Ramadan, 1427 A.H.,
October 21, 2006 C.E.,
References
The following is a list of resources, other
than the Holy Qur’an and authentic hadith books, consulted and referred to,
during the preparation of this article. This list also includes a few resources
which will be helpful to those interested & seeking more information about
the issue.
·
Dr. Muhammad Taqi-ud-din al-Hilali, Dr.
Muhammad Muhsin Khan, The Noble Qur’an
·
Hafiz
Abu Fida Isma’il ibn Kathir, at-Tafsir
ibn-e-Katheer
·
Mufti Muhammad Shafi Usmani, Ma’ariful Qur’an, Darul Uloom Karachi
(Karachi : Pakistan)
·
Dr. Zakir Abdul Karim Naik, Women Rights in Islam, Islamic Research
Foundation (India)
·
Dr. Israr Ahmed, Bayan-ul-Qur’an, Quran Academy (Lahore : Pakistan)
·
Riffat Hasan, Islam and Human Rights in Pakistan : A Critical Analysis of the
Positions of Three Contemporary Women, University of Durham (England)
·
Mufti Muhammad Taqi Usmani, The Authority of Sunnah, Kitab Bhavan (New
Delhi : 1991)
·
Mufti Nizam-ud-din Shamzi, Khutbaat-e-Shamzi, Maulana Qutb-ud-din
Abid (Mufti Mehmood Academy : Karachi)
·
Imran Ahsan Khan Nyazee, General Principles of Criminal Law (Islamic
and Western), Advanced Legal Studies Institute (Dec. 7, 2000)
·
Naved Ahmed, Hudood Ordinance Per Aitarazat ka Jaiza, Quran Academy; monthly Meesaq, Issue of Sept. 1, 2006
·
Dr. Allama Muhammad Iqbal, Reconstruction of Religious Thought in Islam,
Publishers Emporium (Lahore : 2003)
·
Maulana Syed Abul Ala Maududi, Tafheem-ul-Qur’an
·
Mufti Muhammad Rafi Usmani, Fiqh mein Ijma ka Maqam, Idara
al-Ma’arif (Karachi : Pakistan)
·
Ibrahim B. Syed, Zina and Rajm, Islamic Research Foundation International
(Louisville : USA)
·
Maulana Yusuf Ludhianvi, Shahab-um-Mubin-li-Rajm-ash-Shiyatin : Rajm
ki Shari’i Haisiyyat, Maktaba-e-Ludhianvia (Karachi : Pakistan)
·
GEO Television News Network, Zara Sochieye Debate, Jang group; website:
http://www.geo.tv/zs/
·
Maulana Aslam Sheikhupuri, Just Think, Dars-e-Quran website: http://www.darsequran.com/articles/sochiay.php
·
Justice Dr. Javed Iqbal, A Critique of the Zina Ordinance,
Islamabad : 2006
·
Nur Ahmed Shahtaz, Tarikh-e-nifadh-e-hudood, Karachi : 1998
·
Dr. Tufail Hashmi, Hudood Ordinance : Kitab-o-Sunnat ki Roshni mein, Aurat Foundation
(Peshawar : 2004)
·
Special
Report (NCJ-154348), Violence Against
Women: Estimates from the Redesigned Survey August 1995, 1995 National
Crime Victimization Survey of the U.S. Department of Justice
·
Maulana Syed Shehanshah Hussain Naqvi, Huqooq-e-Niswan Bill ka Qur’an-o-Sunnat ki
Roshni mein Aik Jaiza, Imam of Mosque Bab-ul-Ilm (Karachi : Pakistan)
·
Federal Bureau of Investigation, Crime in the United States, Crime Report
of 2003 & 2002, URL: http://www.fbi.gov/
·
Dr. Abdullah, Amanullah Baloch, Hudood Ordinance Per Media Ki Yalghar :
Aakhir Kyun?, Fehm Publication (Karachi)
·
Bernard Knight, Simpson’s
Forensic Medicine
10th Ed., Butler and Tanner Ltd. (London : 1992)
·
Dr.
K. C. Parikh, Parikh’s Textbook of
Medical Jurisprudence, Forensic Medicine and Toxicology 8th Ed.,
CBS Publishers (New Delhi : 2004)
·
Draft
Report on the Meetings of the Special Committee to Review the Hudood Ordinances,
Commission on the Status of Women of Pakistan, Govt. of Pakistan, URL: http://ncsw.gov.pk/pdf/draft_report_on_hudood_ordinance.pdf
·
Federal Shariat Court, Annual Report 2002 and Annual
Report 2003, Law and Justice Commission of Pakistan
·
Council of Islamic Ideology, Interim Brief Report on the Hudood
Ordinances, In’aamullah, Dr. Khalid Masud, Govt. of Pakistan, available at:
http://www.cii.gov.pk/hudood/HOO_1979.pdf
·
Mufti Muneeb-ur-Rehman, Tahafuz-e-Huqooq-e-Niswan Bill :
Quran-o-Sunnat ki Nazar mein, Tanzeem al-Madaris
·
Report
of the Commission of Inquiry for Women, headed by
Justice Nasir Aslam Zahid, August, 1997
·
Women Aid Trust, Hadd-e-Zina Ordinance, 1979 : Aitarazat ki Haqeeqat, Islamabad :
2003
·
Jehangir Hanif, Hudood Ordinances : Ghamidi’s Views, Institute of Islamic Sciences:
al-Mawrid
·
Maulana Abdul Malik, Deen mein Tarmim ka Bill, Jami’at Itihad-ul-Ulema
·
Hussain Khan, Hudood Ordinance Amended on a Bogus Claim, Against all Canons of
Democracy and Against Constitution, Tokyo : Japan; read at: http://www.hudoodordinance.com/article_hussain_khan_japan.htm
·
Justice (R) Muhammad Taqi Usmani, Kya Hudood Ordinance Mein Tabdeeli Mumkin
Hai?
·
Prof. Khurshid Ahmed, Hudoodullah kay Khilaf Ailan-e-Jang, monthly Terjuman-ul-Qur’an, Dec. 1, 2006
·
Maulana Muhammad Hasan Jan, Tahafuz-e-Huqooq-e-Niswan Bill kay Islam say
Mutasadim Pehlu, monthly Muhaddith
(Lahore)
·
Newspapers including, but not limited to, Dawn, The News, Daily Jang, New York Times, The Times (London), Christian
Post, Washington Post, Ha’aretz, Jerusalem Post, Ummat and
The Frontier Post.
