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Hudood’s(1979 – 2006) Ordeal
BY ABDUR REHMAN The Women’s Protection Bill claims to have addressed all the shortcomings of its predecessor (HO). The question is: were there really any to begin with? What if there weren’t and what if there were—in either case, does this mean that our women are now better off than before? This article reveals just exactly what HO was and what it was made to appear as.
CRITIC November ‘07
erhaps the worst aspect in the entire controversy surrounding the HO was not whether the Ordinance was in accord with the Divine Shariah or not, but rather what confusion it created amongst the masses as to whether the Shariah is in fact straight-forward or not, or is subject to continuous interpretations. This has seriously damaged the true position of Quran as the Law-Giver in the minds of everyday Muslims who now see ambiguity even in the most simplistic and crystal-clear Commandments as open to free interpretations. It has also given the people the notion that Shariah can be modified to suit the changing needs of the time i.e. it can outdate. No wonder we have these geniuses arguing and trying to prove all the time that Islam needs to align itself with modernity and come in terms with the requirements of today’s needs and demands, not understanding that it should actually be the other way round.
Components of HO:
Section 4 of HO defines Zina: A man and a woman are said to commit Zina if they willfully have sexual intercourse without being validly married to each other. Section 6 of HO defines Zina-bil-Jabr: 1. A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse 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 whom the victim is or believes herself or himself to be validly married. Tabularized (TABLE A) are the differences between Zina and Zina-bil-Jabr: It is also important to see whether Zina and Zina-bil-Jabr are two forms of the same crime or not (i.e. are they two separate crimes)? This is a theological debate and is usually concerned with as to whether Zina-bil-Jabr is included or excluded from the ambit of verse 2 of Surah An-Noor. The HO however clearly treats Zina and Zinabil-Jabr as two separate crimes (See Table A). The Ordinance rightly punishes both the man and the woman for Zina whereas punishes only the offender in the case of Zina-bil-Jabr. Section 4 on Zina states: A man and a woman ARE said to commit Zina… In spectacular contrast, section 6(1) on Zinabil-Jabr states: A person IS said to commit Zina-bil-Jabr… NOTE: ARE denotes plurality whereas IS denotes singularity. In Section 4, the HO
The HO is commonly understood as something to do with the Zina Laws, and so the two are referred interchangeably. Actually, the HO comprises of 1 abrogated and 4 working Ordinances, namely:1. Prohibition (Enforcement of Hudood) Order (IV of 1979); 2. Offences Against Property (E.O.H.) Ordinance (VI of 1979); 3. Offence of Zina (E.O.H.) Ordinance (VII of 1979); 4. Offence of Qazf (E.O.H.) Ordinance (VIII of 1979); 5. Execution of Punishment of Whipping, Ordinance (IX of 1979) [Abolished]
Charge-Sheet Against HO:
There is a tendency in our country to perceive ill of those who dissent from the communis opinio. Likewise in America, post 9-11, post war in Afghanistan, during the war in Iraq, a slogan ‘Support the Troops’ was devised and made popular through the media. Any American found questioning the morality of the war was forthright labeled unsupportive and unpatriotic. It was Noam Chomsky who first identified the emptiness of the slogan and wrote that Americans support the troops but not the policy. Similarly, I too would appreciate if my dear readers (especially females) would understand that while I am all for women’s rights, it is not so without reservations or on unconditional terms. It is not a question of questioning the right of a woman to exercise her rights, but of what actually constitutes her rights or as in this case the means that will actually empower her, emancipate her, and protect her. We must therefore rethink HO and reexamine WPB for ourselves and not flow with the tide of mainstream opinions and judgments if we indeed are sincere and honest to ourselves, to our work, and to our religion. Needless to say but my time, my efforts, and my money spent on this research itself prove how equally concerned I am with the state of current women affairs in our country just as you are. Needless to say, again, but it is this that has led me to pen down my findings and share it with you the untold Truth about HO. Needless it may be for some now that WPB has already been enacted in replacement of HO, but it was and is my responsibility as a Muslim, as a Pakistani, and as a pro-women’s rights activist to keep this debate alive and active as much as I can for as long as I can until we all eventually rectify this grave mistake.
The HO was alleged to be prejudicious against the interests of the women by requiring them to produce 4 witnesses in the event of rape (no other alternative) failing which would mean confession to the crime of adultery and filing a false complaint! So it was argued that, firstly, it is realistically impossible to produce 4 witnesses and secondly, as a result of which, innocent women were languishing in jai ls. Furthermore, it was also claimed that HO does not really differentiate between Adultery and Rape; that women’s testimonies are not accepted; and that the application for false allegation can only be filed by men and not by women.
The categorical list of charges against HO is as follows: 1.There is no difference b/w Zina & Zina-bil-Jabr; 2.Zina-bil-Jabr cannot be proven without 4 witnesses; 3.Availability of 4 witnesses is impossible; 4.Automatic confession of Zina if 4 witnesses are not produced; 5.The problem with Qazf; 6.Innocent women were being jailed; 7.Women’s testimony is not accepted; 8.HO was a law of one man imposed on all of us; and 9.HO presumes the existence of Justice.
1. THERE IS NO DIFFERENCE B/W ZINA & ZINA-BIL-JABR
The claim that the HO makes no distinction between Zina and Zina-bil-Jabr is simply not true, as two separate sections i.e. Section 4 and Section 6 clearly differentiate between the two crimes.
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clearly levies the charge of Zina on both the man and the woman, whereas in Section 5, the charge of Zina-bil-Jabr is levied only against a single person i.e. obviously the offender. Hafiz Yousuf Salahuddin, Advisor Federal Shariat Court, consents: “As far as my limited knowledge is concerned, there is no such thing in the HO that it does not differentiate between Zina and Zina-bil-Jabr. These are undoubtedly two different things (crimes). So, first of all, the Ordinance does not treat them in a similar way.” (www.geo.tv/zs/quickstop.asp)
TABLE A: DIFFERENCES B/W ZINA & ZINA-BIL-JABR
NOTE: If the evidence required for proving the crime is similar this does not mean that the Ordinance has equalized the two crimes and dissolved all the differences.
2. ZINA-BIL-JABR CANNOT BE PROVEN WITHOUT 4 WITNESSES:
This perhaps was the main argument put forward in the local and international electronic and print media against the HO. The claim however is not true. The Ordinance clearly specifies two categories of punishment: the Hadd (fixed by Shari’ah) and the Tazeeri (discretionary). It further clarifies that if the Hadd punishment cannot be enforced (lack of proof), the case is then decided based on the fulfillment or the unfulfillment of the requirements of Tazeeri punishment i.e. the case transfers from Hadd Tazeer. Understand that it is not rape which cannot be proven without 4 witnesses but the enforcement of Hadd punishment! Rape can still be proven with the Tazeeri provision as have already been mentioned. This is stated in Section 10(1) of the Offence of Zina (E.O.H) Ordinance (VII of 1979).
Section 10: Zina or Zina-bil-Jabr (Rape) Liable to Tazeer. 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 Tazeer.
voluntary confession by the accused) is not available. 2. Crime is not liable to Hadd in the circumstances listed under Section 5(1) e.g.: to an insane person 3. Hadd cannot be enforced in accordance with Section 9, e.g.: 4. when a person retracts his/her confession. The court itself shall decide, in accordance with the Qanun-e-Shahdat Order (X of 1984), whether the crime has been proven based on the evidence on record or not. DNA Test, MLR (Medicolegal Report), testimony of women, circumstantial evidence etc, are all valid and acceptable means of evidence as enshrined by the Qanun-e-Shahdat Order (X of 1984). The strict evidence-requirement of 4 credible eye-witnesses or voluntary confession, as given in section 8 of the ordinance, is ONLY applicable to sections 5(2) and 6(3) i.e. Zina or Zina-bil-Jabr liable to hadd. The following cases further disprove the notion that rape cannot be proven without 4 witnesses. NOTE: All these cases were proved and judged based on Tazeer when the victim was unable to produce 4 witnesses: 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] Other similar cases include that of:Muhammad Zafar Naeem vs. The State (2004 SD 352) Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35) Muhammad Ashraf vs. The State (NLR 1997 SLD 1) Muhammad Abid vs. The State (PLD 1988 FSC 111)
3. AVAILABILITY OF 4 WITNESSES IS IMPOSIBLE:
This argument was put forward by several people including Syed Razi Jaffer Naqvi1. He said:
“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.”
The crime of Zina or Zina-bil-Jabr is liable to Tazeer under any of the following situations:1. Proof in either of the forms mentioned in Section 8 (i.e. 4 credible witnesses or
Firstly, as have already been said, if the 4 witnesses are not available, the case can still be decided based on the Tazeeri provision in HO which ensures that neither does the rapist get a free hand nor is any injustice done to the women.
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Secondly, there is a well established principle in Islamic F iqh which needs to be understood:
The application of a law depends on the Illat and not on the Hikmat
Thirdly, there is a need to understand the different types and categories of punishments in order to see where the punishment for Zina and Zina-bil-Jabr fits in:1. Deterrent punishment 2 Retributive 3. Preventive 4. Reformative Hudood for Zina and Zina-bil-Jabr falls into the category of deterrent punishment i.e. it is meant to prevent a person or at least make him think a hundred times over before committing a crime like Zina or Zina-bil-Jabr for the consequences of being caught is only fatal. Fourthly, one also needs to realize that Hadd punishments are not awarded everyday. It is only reserved for hardened criminals.
4. AUTOMATIC CONFESSION OF ZINA IF 4 WITNESSES ARE NOT PRODUCED:
The BBC reported2:
“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.”
This principle can best be understood by the explanation provided by Mufti Taqi Usmani in the 1999 Historic Judgment on Riba, in the Supreme Court of Pakistan, paragraphs 119-121:
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… To cite an 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…
The Telegraph published a similar report3:
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.
A key feature of the recently passed act is the inclusion of a provision which debars the conversion of rape cases into adultery even if adultery is proved beyond any shadow of doubt! This has serious implications as can be understood from the possibility of two adulterers lodging an FIR of rape knowing perfectly well that since rape cannot be proven in their case and the fact that the case will not be converted to adultery, they will be left off the hook free of charge of any crime!
During the time of Prophet Muhammad (PBUH) and the Four Pious Caliphs, the hands of only 5 thieves were amputated. Fifthly, and most importantly, in cases of Zina-bil-Jabr, there have been occasions where the Feudalists and Vederas have raped girls openly in the streets making more than 4 witnesses to the crime! This law of 4 witnesses can easily be applied there. Sixthly, and similarly, there have also been cases when a rapist was raping a woman when the sound of her screams for help attracted the nearby people to the place of crime (usually the neighbors). This provided the victim the 4 witnesses that she required to enforce the Hadd punishment on the offender.
CBC News observed4:
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.
The New York Times also pointed out5:
... Pakistan’s HO, 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 observed on pp 9-10:
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. All these allegations and more failed to provide the reference from the HO to substantiate their claim. As such these are all baseless and unproven statements. On the contrary, I can provide direct references from the HO and from the various rulings by the Federal Shariat Court proving that the case of Zina-bil-Jabr in the event of
This principle clearly explains why the suggestion for the removal of the requirement of 4 witnesses is simply absurd and against the Shariah Law even if it is difficult or impossible to produce them.
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unavailability of 4 witnesses does not automatically makes the victim an adulterer (Zani). Following is a crucial ruling by the Federal Shariat Court dismissing the claim that the victim is automatically considered an adulterer in the event she is unable to produce 4 witnesses:Ms. 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-bilJabr, 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] When a case of Zina-bil-Jabr is first lodged and required evidence for both Hadd (4 witnesses/confession) and Tazeer (any other evidence) is unavailable, the case simply ends, and the woman is let gone free, as in the case of Ms. Safia Bibi vs. The State (PLD 1985 FSC 12). The woman is NOT charged with Zina as being claimed. Justice (R) Muhammad Taqi Usmani, a renowned Muslim scholar and chair-person of the Jeddah-based Fiqh Council of the OIC, who also remained a Judge of the Federal Shariah Court for 2 years and thereafter, a member of the Shariah Appellate Bench of the Supreme Court for 17 years, pointed out: The fact of the matter is that I myself have been directly hearing cases registered under HO, 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 single 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 HO because according to HO the condition of four witnesses was necessary only to enforce the Shariah punishment (Hadd). But at the same time clause 10(3) was included to award the Tazeeri
punishment which did not have the condition of four witnesses. 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. I am also being reminded here of a nonMuslim American scholar & law expert, Charles Kennedy, who visited Pakistan and conducted a survey of the respective cases related to HO. He analyzed all the data and prepared a report which was published in the Oxford Journal of Studies. An excerpt from his report will be sufficient to shatter the veracity of the objection under discussion: 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 wrongdoing due to reasonable doubt rule. A woman who claims rape can ONLY be booked under the offence of Zina if there is solid evidence available to prove that the woman was a consenting party to the crime. Then only the case of Zina-bil-Jabr is rightly converted to the case of Zina. I quote here such a case: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]
5. THE PROBLEM WITH QAZF:
It was being argued that the application for Qazf proceedings could be filed only by men even if the person wronged was a woman. Section 9 needs to be quoted here:Section 9: 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; The answer is given in the Section 2 of this respective Ordinance:Section 2: Definitions In the Ordinance, unless there is anything repugnant in the subject or contexta. ‘adult’, ‘hadd’, ‘Tazeer’, ‘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 as well. With this important rule in mind, I must quote Section 8 of the Pakistan Penal Code:Section 8: Gender The pronoun ‘he’ and its
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derivates are used of any person, whether male or female. The argument is thus resolved! The next issue is the argument that when a woman reports of being raped but is unable to prove it, she is convicted for Qazf i.e. false allegation: Dr. Tufail Hashmi, in his statement to Zara Sochieye said:“If a woman has been raped, and she cannot produce four pious, male eye witnesses, then not only is she punished for accepting that she has been involved in the act of Zina, she also become guilty of Qazf (false accusation) because she has wrongly accused someone. She, therefore, becomes charged with two crimes. On the one hand, she is a victim and has turned to a court to seek justice, while on the other she is charged with two crimes and is subjected to double punishment6.” I would request you to make an effort to read the entire Section 3 of this Original
Ordinance yourself as that would suffice as a rebuttal to this argument. From there it would become crystal-clear that the complainant of Zina-bil-Jabr will only be charged with the crime of Qazf, if, and only if, she has falsely accused someone and not otherwise. In some cases the imputation of Zina-bilJabr is neither proved nor disproved either due to lack of evidence or the loss of it. In such cases, only the complainants of Zina are said to have committed Qazf and not the complainants of Zina-bil-Jabr (as stated in Section 3, exemption 2(C) of Qazf Ordinance). The complainants of Zina-bilJabr can only be convicted for Qazf if their accusation is categorically disproven.
The HO only deals with the following issues:1. Definition of punitive sexual crimes; 2. Proofs required for the establishment of these crimes; and 3. Prescription of punishments for them The HO does NOT deal with the following issues:1. Lodging of FIRs; 2. Keeping women in jails; 3. Slow judicial process; and 4. Hearing of pending cases or hearing process being too slow, etc The issue that innocent women are being jailed is an exclusive accomplishment of the Code of Criminal Procedure (Act V of 1898) which is neither a product of Gen. Zia-ulHaq or of the Ulemas. It was formulated by the British Imperialists. How unfortunate it is that the failures of Criminal Procedure are being attributed to HO. The only “crime” of HO was to criminalize the act of Zina which was not so in the original PPC. At the beginning of 2005, there were 123,460 pending Hudood cases, out of which more than 78,833 were that of Prohibition Order alone! This was because of the slow and outdated judicial process that was keeping these innocent women in jails, and not the HO. To suggest that HO should be repealed
6. INNOCENT WOMEN WERE BEING JAILED:
Innocent women were being and are languishing in jails because they were arrested for cognizable offences under the Criminal Code and whose cases are still pending to be heard. Whose fault is this? Before this question can be answered it is imperative to clarify what HO really deals with and what with it does not.
COMPARISON OF CRIME TRENDS IN INDIA & PAKISTAN
Apart from the laws regarding fornication and adultery, the laws, the status of people and standard of living in India and Pakistan are almost equal. Therefore, India is a promising case for studying and analyzing crime trends against those of Pakistan. The following table summarizes the statistics of sexual offences in India, during the period 1991-1995
Adapted from Tarikh-e-Nifadh-e-Hudood by Dr. Shahtaz Iqbal, who has obtained these statistics from Dr. James Vadackumchery and Dr. Jacob John Kattakayam’s report, Crime and Society: Current Issues and Trends.
The following tabularizes the respective crime statistics of Pakistan during the same period.
Dr. Shahtaz Iqbal has prepared these statistics from the records of the National Police Bureau (formerly Bureau of Police Research & Development). NOTE: The crime
of fornication and adultery is excluded from the Indian statistics and not from the Pakistani statistics.
The following table summarizes & compares the crime trends in Pakistan and India during 1991 and 1995.
These statistics reveal how the sexual offences in Pakistan are not only far less than that of India but also that it is not related in any way with the Zina Laws.
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CRITIQUE TABLE B: CONTRAST B/W OLD & NEW HUDOOD LAWS:
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CONTRAST B/W OLD & NEW HUDOOD LAWS: (continued)
is like suggesting amputation of the left arm for a curable infection in the right leg! It will be pertinent here to point out that the respected President enforced the Law Reforms Ordinance, earlier in 2006, which added Section 156-B to the CrPC. This section stated that a case of Zina will not be investigated by any police officer lower in rank than an SP (Superintendent). Furthermore, it also stated that no person shall be arrested for Zina UNLESS an order has been issued by a court of competent jurisdiction in the matter. W ith the enforcement of this ordinance, all those women who were awaiting trial under the Zina Ordinance were freed. Only those women were arrested thereafter for whom a court order of competent jurisdiction had issued orders (after considering the evidence/reports etc). Thus with the promulgation of the aforementioned ordinance, the issue of innocent women languishing in jails was resolved. By that time, no one had presented or even heard of any Women Protection Bill (WPB). However, later, the Government claimed that it was this Bill that actually freed these women. D e s p i t e b e i n g c o g n i za n t o f t h e aforementioned vital facts, the Government & NGOs decided to make the registration of a Zina complaint altogether so stringent that only a miraculous circumstance would allow it! Furthermore, they also deprived the police of even minuscule authority to investigate Zina cases. As for the article of fornication which
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Today, Zina is no longer considered an offence against the State. The State is not concerned with eradicating such a pestilence from the society. Instead, it is now considered a mere personal dispute between two parties. Additionally, filing a complaint of Zina (or fornication), which is not entertained by the Presiding Officer, is also now an offence against the State. A person who finds lewdness abominable can neither lodge an FIR nor get any accommodation from the police to investigate the issue. He (or she) can only file a complaint against the offenders, provided he has four adult sane Muslim male credible eyewitnesses by his side and in whom he has 101% confidence that they will all pass the Tazkiya al-Shudood test, otherwise each one of them, including her/him self, will get 80 lashes. In a nutshell, the State punishes only those who try to eradicate immodesty and not those who spread it!
assumes to presume the role of controlling immodesty in the society, is also impractical and flawed. Two eye-witnesses are required at the time of complaint for a mere summon (not arrest) of the accused, which is a first of its kind in the CrPC. If the Presiding Officer is convinced that the case is proved prima de facia, he may pass a sentence of simple imprisonment for a term which may extend up to 5 years and a fine not exceeding Rs. 10,000/-. It is noteworthy that a complaint of Zina cannot be converted to a complaint of fornication, nor can the complaint of fornication be lodged against the person being tried or acquitted of Zina under any circumstance whatsoever. The same rule applies, mutatis mutandis, for the complaints of fornication also. It is actually true that Pakistan will now turn into a free-sex zone, simply so because no person will dare to lodge a complaint of Zina (or fornication) and neither will any witness be willing to testify. Consider again the following crucial points: 1. If a person lodges a complaint for Zina or fornication, as the case maybe, and cannot produce the required number and quality of witnesses, he/she will straight-away be awarded 80 strokes of lashes (or fine & imprisonment); 2. If a person lodges a complaint believing that he/she has fulfilled the pre-requisites, but instead turns out that one of the witnesses fails the Tazkiya al-SHudood test, not only that person, but the rest of the witnesses too, will all be subjected to punishment; and
3.If any witness wants to testify, he first has to be 101% sure that the other witnesses will pass the Tazkiya al-Shudood test as well, otherwise, again, they will all be whipped! No person will therefore dare to take this risk because there will always be this element of uncertainty and a constant looming fear of lashes in his mind. 4.It is completely illogical and impractical to imprison a person for selling prostitutes for up to 25 years and only upto 5 years for committing illicit sexual intercourse (i.e. fornication)! It is something to which no meaning can be attached barring the inference that protection is actually being meant for the fornicators through this law (WPB). On the contrary, under the original HO, any person could easily lodge an FIR without the witnesses in hand. The police were also empowered to investigate the issue as it was considered an offence against the State. The responsibility of finding evidence for the crime was squarely on the shoulders of the court, and not on the victim. It is also important to point out that the National Commission for Status of Women (NCSW) established a special committee to review the HO in 2002 which reported a startling statistic on p. 3 that 80% of the women are presently languishing in jails. I have already clarified that it is not HO but rather our outdated and slow judicial procedure which is to be blamed for this. Secondly, the figure itself is also questionable. According to my research, in the NWFP, during July 2003, the no. of women in jail awaiting their trial for narcotics were 72, whereas, the no. of those women awaiting their trial for Hudood cases was only 567. From even the Hudood cases, a major portion was that of the prohibition cases and furthermore, the total number of women in jails was 172. This means that around 20% (not 80%) of the women languishing in jail were waiting trial under Zina Ordinance. Similarly, during 1988, the number of women prisoners in various jails of Punjab, was 657; out of these, 306 were languishing for Zina cases. This, again, gives a figure of 46%, which is nearly half of the figure claimed.
Translation: In the service of Gen. Pervez Musharraf: Congratulations on the passage of Women’s Rights Bill!. (We will) be most thankful if you pass a bill for Men’s Rights also. (It is) very difficult to “drink” and “get drunk”
‘It is completely illogical and impractical to imprison a person for selling prostitutes for up to 25 years and only up to 5 years for committing illicit sexual intercourse (i.e. fornication)! It is something to which no meaning can be attached barring the inference that protection is actually being meant for the fornicators through this law (WPB).’
7. WOMEN’s TESTIMONY IS NOT ACCEPTED:
I remember watching a television advertisement on HO in which a woman was made to appear as being raped in front of 5-10 women whose feet were chained when a voice commented: “According to the HO, testimony of a woman is not accepted… Although this woman is being raped in front of these women, they cannot testify…” The host of the program Jawab Deh also claimed the same: “Even if some 50 women witness
a rape unless there are 4 male witnesses, there will be no conviction.” This argument too fails to mention its source of information. The fact is that there is not even an implicit mention let alone an explicit law in HO stating that a court shall not accept the women’s testimony. The requirement for 4 male witnesses is exclusively reserved for the enforcement of Hadd punishment i.e. death penalty. If these 4 male witnesses are unavailable (and there is no voluntary confession of the crime), the case is further proceeded under the Tazeer Section, as already discussed earlier. It should be understood that when a case is being decided based on Tazeer, any
evidence including that of: medical, circumstantial, testimonies, etc can be readily used by the court to prove or disprove the crime. Once the crime stands proven beyond any reasonable doubt, the following Tazeeri punishment can be prescribed: 4 to 25 years of rigorous imprisonment (R.I.) and 30 lashes; and in case of gang rape: death penalty. A more definite rebuttal to the claim that women’s testinony is not accepted is the judgement of the Federal Shariat Court: 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,
CRITIC Magazine | January ‘08
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 Tazeer punishment shall be awarded. [Annual Report of the FSC, 2002, p.33]
Language and only later were translated into English and Urdu. A special Committee consisting of Mir Muhammad Ali (Draghtsman) and Sheikh Asadullah (Joint Secretary) later replaced by Justice (R) Amjad Ali was appointed to edit it in the modern legal language. The drafts were then completed in 1978 and General Zia-ul-Haq enforced it on 10 February 1979 as an Ordinance. Then on 11 November 1985 the National Assembly passed an Act (i.e. by 2/3 rd majority) titled The Constitution (Eight Amendment) Act, 1985 (XVIII of 1985). This Act modified Article 270-A of the Constitution and provided affirmation to the 5 HOs. Moreover, the respective National Assemblies of 1988, 1990, 1992, 1995, 1998, and 2002 never raised any objection on these Ordinances! This brief discourse of history sheds light on various important aspects of HO and refutes many common arguments, like:1. The HO was made by one man; 2. That it was never discussed rationally; or 3. That it was Zia-ul-Haq’s distorted interpretation of the Shariah Law.
lit or when it is dark? Of course, when the room is dark! The point is: when there is a shortage of x, you turn on the source of x to eliminate that deficiency. That is why streets lights are turned on at night and not on day! Riding on the same argument, understand that if x exists in adequate amounts, then there is no need for a source of x i.e. if there is enough light in the room, we need not to turn on the light-bulb. In the same way, if Justice already exists in the society, then there is no need for a source of Justice! Do you now understand the absurdity of this claim?
8. HO WAS A LAW OF ONE MAN IMPOSED ON ALL OF US:
The argument that “since it was Gen. Ziaul-Haq—a dictator—who passed the Law, therefore HO is invalid” is an illogical statement to say the least. Besides, does the same logic not also apply to WPB which has been imposed by Gen. Pervez Musharraf? The merits and demerits of HO or for that matter any other Law should only be judged by its contents and not by the person who formulated it or by the person who legalized it. Since I have already discussed the contents of HO I shall now focus on the people who were behind its formulation for a wider perspective into the debate. It is found that Gen. Zia-ul-Haq established a Committee comprising of the following personalities to draft the Hudood Laws. All these individuals were authorities in their own respective fields. Ulema 1. Mufti Muhammad Taqi Usmani (Chairperson 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 1. Khalid M. Ishaque 2. Sharif-ud-din Pir Zada 3. K. Burohi Retired judges 1. K. Samdani 2. Muhammad Afzal Cheema 3. Justice (R) Salahuddin Ahmed This Committee drafted the four HOs after holding as many as 15 meetings in different parts of the country from 29 September 1977 to 20 December 1978. In preparation of these drafts the Committee sought assistance from and consultation with Dr. Ma’aroof al-Dawalibi who is Jurist of International fame, a former Prime Minister of Syria, President of the World Muslim League, and an Advisor to his majesty Khalid bin Abdul Walid, the King of Saudi Arabia. The drafts were first prepared in the Arabic
CRITIC Magazine | January ‘08
OTHER VITAL, BUT UNATTENDED ISSUES:
The following is a list of those issues which far from being remedied were & are not even discussed or mentioned by the media:1. Back in 1979, when the HO was enforced, it contained a clear provision stating that it shall not apply to the cases being heard or pending in any court, something which the Women Protection Bill has not done. While it removes and modifies a number of sections, it is completely silent as to the fate of those cases filed in accordance with the old sections. The hearing and judgment in such cases has now become such a question to which none can furnish a satisfactory answer. Cases will have to be filed afresh as this seems the most probable scenario which will only increment the suffering and loss of time & money of the complainants. 2. One of the biggest lacunae in the old ordinance, as well as in the new ordinance, was that the decision of a Court of Sessions had practically no value whatsoever. All sentences had to be “confirmed” by the Federal Shariah Court which is an absurd notion as it nullifies the earlier hearing. Normally, a sentence by a lower court is enforceable inter se, unless a stay order has been issued by a higher court. Coming back to the HO, the sentence not only has to be confirmed by the FSC but a decision of the FSC can be further demolished by appealing in the Supreme Court! The impact of such a modus operandi in our judicial system has been that the disposal rate has drastically slowed down and access to justice confined to a minimum. 3. The Women Protection Act brought radical changes in the procedure for filing complaints of Z ina and Qazf, but
9. HO PRESUMES THE EXISTENCE OF JUSTICE:
Even though this is an entirely absurd argument I will nevertheless still try to rebut it rationally. If I ask you as to what the Hudood Laws actually constitute and what is it trying to achieve: your reply would more or less be that these are part of the Criminal Law meant to punish the evil-doers and provide justice to the citizens of the State. In other words, Hudood Laws is a “source of Justice”—correct? Thus the argument now becomes:The source of Justice presumes the existence of Justice. Which can be translated into as:The source of x presumes the existence of x A specific application of the principle can be:This light-bulb (source of light) presume the existence of light in the room My question is: when do people turn on their light-bulbs? When the room is already
surprisingly, no change has been made in case of rape. A point highly capitalized by the media before the passing of the act included the miserable state of a woman who had been raped by those police officers from which she had sought help. Ironically, this point disappeared in thin air ever since the passing of this act. 4. One of the most basic but completely neglected issue included the procedure for lodging FIRs in case of rape. In the West, it may not concern a rape victim to narrate & depict the whole scene of her rape but that is not the case at least for Asian women—particularly Pakistani women. At present, a woman who has already undergone the trauma of sexual assault has to face further insult by narrating the whole incident before a male police officer whom she has never seen and whose amiability and literacy is known to everyone. It will be pertinent here to remind the reader that there are several women police stations and modest women police force in our country but they do not have the authority to lodge any FIRs. Unfortunately, this issue was never raised in the media. 5. Another issue of considerable concern is the progeny which is born of an illicit relationship. This is yet another aspect which although deserves our immediate attention but unfortunately hasn’t received any. No definite legislation for the upbringing of such children means that they are at the mercy of our society. FOOTNOTES:
1. http://www.geo.tv/zs/quickstop.asp 2. http://news.bbc.co.uk/2/hi/south_asia/5337 752.stm 3.http://www.telegraph.co.uk/news/main.jht ml?xml=/news/2006/08/25/wpakistan25.xml 4.http://www.cbc.ca/news/background/pakist an/mckenna_pakistan.html 5.http://query.nytimes.com/gst/fullpage.html? res=990CE4DD133BF932A15755C0A9639C8 B63 6. http://www.geo.tv/zs/quickstop.asp 7. Interim Report on the HOs, In’aamullah, Khalid Masud, CII (Council of Islamic Ideology) 2006, p.176; http//www.cii.gov.pk/Hudood/HOO_1979.pdf
There is no difference b/w Zina and Zina-bil-Jabr: HO defines Zina separately in Section(4) and Zina-bil-Jabr in Section(6). See Table A for differences. Rape cannot be proven without 4 witnesses: It is Hadd that cannot be proven without 4 witnesses, rape can. Section 10(1) of HO states that if Hadd cannot be enforced, the court must use any circumstantial evidence, testimonies (single, m/f), DNA test, MLR etc to prove or disprove the case of rape. The following case was proved and judged without the 4 witnesses: Gulsher vs. the State (2004 SD 159), Automatic Confession to Z ina if 4 W itnesses are not produced: One ruling by FSC in the case of Ms. Safia Bibi vs. the State (PLD 1985 FSC 120) is sufficient as a proof that the case of rape is NOT converted to adultery. A woman claiming to be raped can ONLY be booked for Adultery if there is solid evidence to prove that she was a consenting partner in the act. See Muhammad Asghar vs. the State (2004 P.Cr.L.J. 201) The problem with Qazf: It is argued that when a woman reports of being raped but is unable to prove it, she is convicted for Qazf. For this read Section (3) of HO. The woman who reports of being raped can only be convicted for Qazf if her accusation is proved to be false, and not otherwise. Innocent Women were being jailed: Women languishing in jails were not because of HO but because of Code of Criminal Procedure (Act V of 1989). This issue is entirely related with the slow and outdated judicial process and not the HO. Women’s testimony is not accepted: In the case of Rashida Patel vs. the State (PLD 1989 FSC 95), the FSC accepted the woman’s testimony thus nullifying this claim. See Table B for Differences b/w HO and WPB
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CRITIC Magazine | January ‘08
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