THE REALITY OF WOMEN

PROTECTION BILL 2006

by Justice (Retd) Muhammad Taqi Usmani

In the name of Allah the most merciful the most kind

The legal implications of the 'Protection of Women's Rights Bill' which has
recently been passed by the National Assembly can only be known to the people
who
are well versed with intricacies of the legal system. But the picture being
painted is that the bill is going to provide a remedy to those women who faced
severe oppression due to the Hudood Ordinance and that it is going to provide a
great relief to countless women. It is also being claimed that the bill does not
violate the injunctions of Quran and Sunnah. Let us take a serious and realistic
look at the basic points
mentioned in this bill. How much they are in line with the claims being made. If
we study the bill we would arrive at the conclusion that the bill contains only
two substantive points: Firstly the punishment for rape (zina bil jabar) as
ordained by the Quran and Sunnah which is called 'hadd' has been completely
abolished in this bill. As such a person who has committed rape cannot be given
the legal (sharai) punishment and instead he will receive a ta'azeeri
punishment (anything below 'hadd'). Secondly the crime which was declared a
ta'azeeri punishment in the Hudood Ordinance has been downgraded and
declared
'lewdness', thereby reducing the severity of its punishment. Moreover, proving it
has been made all the more difficult. To abolish the punishment of rape
(hadd) is a clear violation of the injunctions given in the Quran and Sunnah. But
it is being said that the punishment ordained by the Quran and Sunnah is only
applicable when both man and woman commit adultery with free will, and that
in the case of rape Quran and Sunnah have not prescribed any punishment.
Let us first test the correctness of this claim:

1) The Holy Quran prescribes the punishment of adultery in Surah Noor as

under
The adulterer and the adulteress, scourge ye each one of them
(with) a hundred stripes. (24:2)

In this injunction the word zina is absolute and includes zina birraza (adultery)
as well as zina bil jabar (rape). In fact it is common sense that rape is a more
serious offense than what is done with free will. Therefore,when this
punishment is prescribed for adultery with free will, the punishment for rape
should be even more severe. Although in this injunction there is also mention of
the woman who commits adultery but in the same surah (Noor) those woman
are raped have been exempted from any punishment. Therefore the Holy Quran
says:
'And if one force them (i.e. those women), then, (unto them)
after their compulsion, Allah is Forgiving, Merciful.' (Surah Nur,
Ayat 33)
From this becomes clear that if any woman is forced to commit Zina, then she
cannot be punished for this, rather the one who transgressed will have to suffer
the prescribed punishment (Hadd) which has been mentioned in Surah Nur,
Ayat 2.

2. The stated Hadd of 100 stripes is to be inflicted on an unmarried offender.

From the Sunnah Mutawatar is further proven that a married person is to suffer
Rajm
i.e. lapidation in case he commits Zina. The Messenger of Allah sallallahu alaihi
wa sallam did, in this case not differentiate between Zina bil Jabr (rape) and
Zina bir-Radha (adultery with mutual consent).

Sayyidina Wail bin Hajr radiallahu anhu narrated that during the days of Allah's
Messenger sallallahu alaihi wa sallam a woman had gone out to offer the prayer.
On
the way a man overcame and raped her. The woman cried for help and the man
ran away. Thereafter the man admitted that he had raped her. The Messenger of
Allah sallallahu alaihi wa sallam then inflicted the Hadd on the man only, and
not on the woman.

Imam Tirmidhi related this Hadith in his Jami with two different chains of
transmission, and he declared the second chain of transmission as reliable. (Jami
Tirmidhi, Kitabul Hadd, Bab 22, Hadith nr. 1453, 1454)

3. In the Sahih Bukhari is a tradition according to which a slave had raped a

slave-girl. Sayyidina Umar radiallahu anhu then imposed the Hadd on the slave,
but not on the slave-girl. (Sahih Bukhari, Kitabul Ikrah, Bab 6)

It is hence proven from the Holy Qur'an, the Sunnah of Allah's Messenger
sallallahu alaihi wa sallam, the decisions of the rightly guided caliphs and the
noble
companions radiallahu anhum that the same punishment which is to be inflicted
in case of Zina bir-Radha is also to be inflicted in case of Zina bil Jabr. It is
by no means in order to say that the Hadd mentioned in the Holy Qur'an and in
the sacred Ahadith is to be inflicted only in case of Zina bir-Radh; and that it
is not applicable in case of Zina bil Jabr.

Now arises the question why is there so much insistence on abolishing the
shara'i punishment for Zina bil Jabr? The reason for this is an extremely
unjust propaganda which certain circles are busily spreading ever since the
Hudood ordinance has been implemented. According to this propaganda, if any
rape
victim intends to sue the offender under the Hudood ordinance, she is asked to
produce four witnesses to support her claim. And if she fails to do so, she
herself is arrested rather than the offender. This claim has been and is repeated
incessantly, so far that even educated people began to consider it as
true. And exactly this point has been used as justification by our president
during his speech.

Now if as a result of such propaganda a certain matter is publicized so much that

even the children on the streets talk about it, then people tend to view anyone
who talks against it as insane. But if anyone wishes to analyze the matter in a
just way, then I would like to request him to leave all propaganda aside for a
while, and consider the following points: The fact of the matter is that I myself
have been directly hearingcases registered under Hudood Ordinance, first as a
Judge of Federal Shariah Court and then for 17 years as a member of Shariah
Appellate Bench of the Supreme Court. In this long tenure, not once did I come
across
a case in which a rape victim was awarded punishment because she was unable
to present four witnesses. It was actually not possible only because of Hudood
Ordinance because according to Hudood Ordinance the condition of four
witnesses was necessary only toenforce the sharai punishment (had). But at the
same
time clause 10(3) was included to award the taazeeri punishment which did not
have the condition of fourwitnesses. Instead the crime could be proven through
one witness, medical examination and chemical analysis report. Consequently
most of the rape criminals were awarded punishment as per this clause.

What we need to think is that if a woman was unable to present four witnesses
and she was given punishment, which clause of Hudood Ordinance was used to
award herthe punishment? If anyone says that she was punished because of
Qazaf (false accusation of rape) then QazafOrdinance, Clause no. 3, Exemption
no. 2 clearly states that if someone approaches the legal authorities with a rape
complaint, she cannot be punished in case she is unable to present 4 witnesses.
No court of law can be in its right mind to award such a punishment. The other
possibility could be that thewoman is awarded punishment for committing
adultery
with free will. And if the court of law takes such a decision it may not be
because the woman was unable to present four witnesses but because the court
arrived
at this decision after giving due consideration to all the available evidence.
Obviously if a woman accuses a man of raping her but subsequent evidence
proves that
she committed adultery with her free will and her accusation proves to be false
then punishing her will not be against the spirit of justice. But since
usually there is lack of sufficient evidence to proof that the woman is lying,
even such cases are rare. In
99% of the cases it so happens that the court of law is not convinced that the
woman has been raped yet since there is lack of sufficient evidence to prove
the willful involvement of the woman, she is given the benefit of doubt and set
free. This can be verified very easily by doing an analyses of the cases executed
under Hudood Ordinance in the last 27 years. Other judges who have been
involved in the proceedings are of the same opinion that even when a woman's
character is found doubtful she is not punished; only the man gets punished.

Since from the very beginning voices are being raised against Hudood
Ordinance that innocent women are being punished because of it, an American
Scholar Charles Kennedy got interested and visited Pakistan to conduct a survey
of the cases. He analysed all the data related to Hudood Ordinance cases and
presented the results in the form of a report which has been published. The
results are very much in line with the above mentioned facts. He writes in his
report: 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 women is exonerated of any wrongdoing due to reasonable doubt
rule. (Charles Kennedy: The Status of Women in Pakistan in Islamization of
Laws page 74)

This is what an unbiased non-Muslim scholar who has got no sympathies

toward the Hudood ordinance, observed with regard to such women who had
actually
consented to committing Zina, and then due to the pressure from side of their
families, tried to declare their deed as Zina bil Jabr. They were not asked to
produce four witnesses, but to furnish circumstantial evidence. On being unable
to furnish circumstantial evidence which would give weight to their claim of
having been raped, only the male parties were punished, whereas the female
parties went unpunished, as no transgression could be proven on their part.
Hence there is no such clause in the Hudood ordinance according to which, if a
woman fails to produce four witnesses to support her claim of having been
raped,
she is to be punished rather than the offender.

It is however possible that during investigations conducted by the police, and

before the matter could be brought to the court, some rape-victims were indeed
wrongly and without any justification arrested as committers of Zina bir-Radha.
However this is no flaw in the Hudood ordinance. Unfortunately the police in
our country are quite prone to commit such acts of injustice while enforcing the
law. But this does not mean that the law has to be changed. In our country,
keeping heroin is a crime. And it happens quite often that the police themselves
hide some heroin with innocent citizens only to pressurize them afterwards.
Should we then -in order to resolve this situation- abolish the law according to
which keeping heroin is a crime? Through its decisions, the Federal Shar'iah
Court had several times set an end to maltreatment which rape-victims had to
suffer at the hands of the police. However, if one was to assume that this risk
has not yet been fully eliminated, then one could draft a law according to which
no woman claiming to have been a victim of rape could be arrested under any
article of the Hudood ordinance, until the court has delivered its final judgement.
Besides, one could make further laws stating the punishment for one who
wrongly arrests a rape-victim. But under no circumstances is it permissible to
abolish the punishment which the Holy Shari'ah has laid down for
Zina bil Jabr.

Hence,
The way in which the bill under discussion abolishes the punishment which the
Holy Shari'ah has prescribed for Zina bil Jabr is in utter contradiction with the
Holy Qur'an and the Sunnah, and it is in no way related to the maltreatment of
the concerned women.

Lewdness

The second significant feature of the said bill is related to those articles which
were added to this bill under the heading of 'Lewdness'. The injunctions
in the Hudood ordinance were such that if –in accordance with the principles
stated by the Holy Shari'ah- there are four witnesses to the act of Zina,
then the Hadd shall be inflicted on the offender, as per the fifth article of the
Hudood ordinance. And if there are no four witnesses, but the crime is proven
beyond doubt, then the offenders are to be given a ta'zeeri (i.e. discretionary)
punishment. Now the Hadd for Zina bir Radha, prescribed in the fifth article of
the Hudood ordinance, and for which four witnesses are a prerequisite, has been
retained in the said bill, but in article 8 has been stated that this kind of
offence is no longer under police jurisdiction that anyone should take four
witnesses and lodge a complaint in the court, and that one cannot register
an FIR with the police. Thus the procedure of proving Zina as an act calling for
Hadd has become even more difficult. Besides that, the discretionary
punishment
prescribed by the Hudood ordinance in case four witnesses could not be
procured has been altered as follows:

1. In the Hudood ordinance, Zina has been referred to as a crime calling for
discretionary punishment.

Now in the bill under review, this act is referred to as 'Lewdness'. This change is
appropriate, as from the Qur'anic and Sunnah point of view, in the absence of
four witnesses; it is rather difficult to prove this offence as Zina. Hence, under
such circumstances, this act should indeed be referred to as anything less than
Zina. This was indeed a weak point in the Hudood ordinance, and the removal
of this weakness had been strongly recommended by the scholars. 2. According
to the Hudood ordinance, this offence could be awarded a sentence of maximum
ten years. Now the maximum is five years. Anyway, since it is a discretionary
punishment only, this reduction is not in contradiction with the Qur'an and the
Sunnah.

3. According the Hudood ordinance, Zina was an offence that fell under the
jurisdiction of the police, whereas according to the bill under review it
does not fall under the jurisdiction of the police.Now one cannot go to the police
station and file an FIR in case of such an offence, rather one will have
to lodge a complaint in the court. At the time of lodging the complaint, one will
have to produce two eye-witnesses, whose statement under oath shall be
immediately recorded by the court. Thereafter, if the court deems to have
sufficient reason to further pursue the matter, it will issue a subpoena to the
accused. Then as far as further proceedings are concerned, the court will
contend itself with demanding a personal bond from the accused to present
him/herself at the court. And if the court deems not to have sufficient reason to
further pursue the matter, the case shall be dismissed then and there.

Thus proving the offence of lewdness has been so very difficult, that there is
almost no way someone could get punished for it.

First of all, according to the Islamic injunctions, lewdness and Zina are crimes
not just against an individual, but against the whole society and the
state. Hence this crime ought to be under the jurisdiction of the police. Well,
now doubt, when keeping this offence under the jurisdiction of the
police, one must keep in mind the occasionally questionable performance of our
police, and one must ensure that innocent couples are not put to trouble.
The Federal Shari'at Court has given several judgements after which this risk
has been eliminated to a great extent. Throughout those twenty-seven years
during which this offence had remained under the jurisdiction of the police,
there were hardly any cases where innocent people had been put to trouble.
But in order to further eliminate this risk, there should be a law according to
which this kind of investigation should be made by an officer whose rank
is not less than that of an SP. Besides, there should be no arrest without prior
order from the court. If one would implement these steps, then this risk would
be fully eliminated.

Secondly, obliging the plaintiff to immediately produce four witnesses in case

of Hadd, and two eye witnesses in case of lewdness, seems to be a quite
unique feature of our martial law. Nowhere in the whole legal system pertaining
to testimony -apart from Hudood- has been made mention of a certain minimum
number of witnesses. At times decisions are made in total absence of eye-
witnesses, only on account of
circumstantial evidence. Hence in the said offence, the reports of physical
examinations and chemical analysis are important pieces of evidence. From the
shariah perspective taazeeri punishment can be awarded even with availability
of one witness and also in presence of circumstantial evidence. Therefore, in the
case of taazeer, presence of two witnesses at the time pf complaint registration
practically the same as providing unnecessary protection to the criminals of
lewdness. As such, making it a condition that from such a criminal the court of
law will not be authorized to demand any bail except a personal bond
is like impeding justice. Different cases come with different situations, which is
why as per the military Act 496 the court is already authorized to free the
criminal on personal bond if the situation so warrants and similarly it can ask for
additional guarantees if it deems necessary. This authority lies with the court
even in case of minor crimes but to invalidate it for a crime like lewdness is not
at all appropriate. It is, but not clear why the clause is added that if the
court does not find sufficient substance in favor of the case then it will dismiss
the case since it is already covered under Military Act clause 203.

4. According to Hudood Ordinance if necessary evidence to enforce had is not

found against someone but the crime is in any case proven then he may be
awarded taazeeri punishment as per clause 10(3). But as per the bill under
consideration , clause no. 203 which has been added in the Military Act in its
para 6
states that if someone is acquitted in a case of had cannot be tried in a case of
lewdness. It is now obvious that the extremely strict conditions laid down
for enforcement of had are sometimes not fulfilled merely due to the technical
reasons. In a situation when strong evidence is available to prove the crime
the court dealing with the rape case cannot award any punishment. In fact it
cannot even register a case of lewdness against the criminal. What we need to
think
is that disallowing the courts registering a case against such a person is nothing
but providing protection to lewdness. Similarly in clause 12 A of
the proposed bill it is stated that if someone is accused of rape his case cannot
be converted into a case of lewdness at any point in time in future.
Consequently if a woman registers a case of rape against someone but some
doubt remains in proving that the act was committed by force, the criminal will
be
released and even a case of lewdness will not be made against him. At a time
when zina bir raza (adultery) was not a crime, the rape criminals used to adopt
this
line that what they did was with the free will of the woman. Therefore if the
court suspected woman's connivance it would dismiss the case and would free
the accused. Hudood Ordinance did not allow this line of defence to the person
accused of rape because adultery was declared a crime even if it was done with
the woman's free will. And the court which was hearing the case of rape could
also award him the tazeeri punishment. But this new amendment has created
nearly
the same situation that if someone says that he has committed adultery with the
woman's free will and he succeeds in creating doubts then noone will be able to
bring him to justice. The court hearing this case will not be able to take any
action because due to the above clause it is no more authorized to convert a
case of rape into a case of lewdness. And if suppose a case of lewdness is
registered afresh then even if we ignore everything else, it will not be possible to
do
so for it is mandatory to bring two eye-witnesses along to the court for
registering the complaint. While in this case two eye-witnesses are not
available. As a result such a person will go scot-free and no court of law will be
able to take any new action against him. Now arises the question, is the
kind of lewdness which has been declared a criminal offence indeed a criminal
offence? If yes, then why do such laws come into being which not only protect
the
offence but also save the offender from punishment? Some further amendments
to the Hudood ordinance There were made some further amendments to the
Hudood ordinance, e.g.

1. According to one statement of the Noble Prophet sallallahu alaihi wa sallam,

if a person has been awarded Hadd as a result of his offence, then no one
has got the right to reduce or forgive the sentence. Thus according to article 20,
point 5 of the Hudood ordinance, the authority of foregoing, altering or
reducing a punishment which the martial law has given the provincial
governments, shall not be applicable in case of Hudood. One significant change
in the bill
under review is that article 20, point five of the Hudood ordinance has been
canceled. This means that if any court awards Hadd, then the government is
authorized to alter or reduce this punishment. This amendment is clearly against
the injunctions of the Holy Qur'an and the Sunnah. In the Holy Qur'an comes:

'And it becometh not a believing man or a believing woman, when Allah and
His messenger have decided an affair (for them), that they should claim any say
in
their affair.' (Surah Ahzab, Ayat 36)

There is a well-known incident according to which a high-ranking companion

had interceded with the Noble Prophet sallallahu alaihi wa sallam for a woman
who
had committed theft (as a result of which she deserved Hadd). The Noble
Prophet sallallahu alaihi wa sallam reprimanded the companion and said:

'Had Muhammad's (sallallahu alaihi wa sallam) daughter committed theft, I

would have cut her hand off.' (Sahih Bukhari, Kitabul Hudood, Bab 12, Hadith
nr. 6788)

2. In article 3 of the Hudood ordinance has been stated that the regulations
stated in this ordinance shall be given superiority over the other laws, that
means if there be any contradiction between the regulations in this ordinance
and the other laws, then the regulations of the Hudood ordinance shall be
followed. This article which had actually resolved many legal perplexities, and
because of which oppressed women had been considerably less vulnerable,
has been cancelled in the said bill. So if, for example, a man has divorced his
wife, then, according to the family law, this divorce will not take effect
until the notice thereof has been sent to the union council, whereas, if seen from
the shara'i point of view, the woman is free to remarry, once she has
passed her iddat. The family law however does not take such a divorce into
account unless the union council receives a notice in this regard. That means the
woman
will still be considered as her husband's legal wife. She cannot contract a new
marriage anywhere else. Now there are many incidents where the husband did
not
send a notice to the union council, and the woman, considering herself as a
divorcee, contracts a new marriage, after having passed her iddat. Now her
malicious husband lodges a case of adultery against the women because as per
the family law she was still
his wife. When such cases were reported, the shariah bench of the Supreme
Court used the Hudood Ordinance and its same clause no. 3 to order release of
these
women. It was stated that Hudood Ordinance has been formulated in accordance
with the shariah and shariah allows this woman to perform second marriage,
therefore, the family law will not be applicable in case of her marriage because
Hudood Ordinance supersedes all other laws.
After repealing this clause and especially after annulling the definition of nikah
from the Hudood Ordinance through this bill, one more time there are
possibilities that the women will suffer in the new situation. We raised this issue
in the Ulema Committee and had finally agreed that it will be replaced by the
following clause: In the interpretation and application of this Ordinance the
injunctions of Islam as laid in the Holy Quran and Sunnah shall have
effect, notwithstanding anything contained in any other law for the time being in
force. But this clause is missing from the bill which has now been passed by
the National Assembly due to which many problems can be anticipated.

3. In the clause 14 of Qazaf Ordinance the procedure of La'an as mentioned in

Quran, is mentioned. According to this if a man accuses his wife
of adultery and fails to produce 4 witnesses then on the woman's demand he will
have to take oath in the process of La'an. After oaths from both sides have
taken place the marriage will dissolve. The Qazf Ordinance states that if the
man refuses to undergo La'an he will be kept under arrest until he agrees. In
the new bill this clause has been removed which means that if the man does not
agree undergoing the process of La'an the woman will be left helpless. She will
neither be able to prove her innocence through La'an nor will she be able to
dissolve her marriage. Moreover, the Qazaf Ordinance states that if during
the process of La'an the woman admits committing adultery then she will be
awarded the punishment of adultery. The new bill has also removed this part
even
though it does not make any sense not to punish a person after she has pleaded
guilty - and while the process of La'an is initiated at the behest of the
woman and no one forces her to confess. Therefore this part of the bill is also
against the injunctions of the Holy Quran and Sunnah.

4. In clause 20 of Hudood Ordinace it was stated that if through evidence it is

proven that the offense committed is a crime punishable by a law other than
the Hudood Ordinance then if the crime falls in the jurisdiction of this court it
can award punishment to the accused. This clause was to simplify the complex
legal procedures. But the bill under discussion has revoked this authority of the
court.

The situation is such that all punishable crimes similar to adultery/rape have
been taken out of the Hudood Ordinance and incorporated in the
Tazeerat-e-Pakistan. Hence, the result of this amendment is that if any man has
been accused of Zina which calls for Hadd, but after hearing the witnesses
it turns out that the man had compelled the woman, or, if Zina could not be
proven, but it could be proven that the man had abducted the woman, then the
court
can neither award a punishment for rape, nor for abduction, rather the court will
let the culprit go, knowing perfectly well that he had kidnapped the woman
and raped her. Thereafter the culprit will either go free, or the complaint will
have to be lodged another time, so that the court takes up its proceedings
again.

Legislation is a very delicate process which requires one to sit with a cool,
unbiased mind and consider all aspects and possible dilemmas. If one changes
laws as
a consequence of propaganda, or because of being overawed by catchy slogans,
then this results in something similar to the above. Then the courts will
get entangled with all sorts of legal intricacies and take considerable time to
construe and interpret the new laws. Cases will be shuffled between the courts,
and it will become near impossible to redress the grievances of the oppressed.