A
FAQ
About
The Protection
Of
Women Act
2006
DISCLAIMER
Nothing
contained herein is a deliberate or implied, act or speech, intended or likely
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The Protection of Women
(C.L.A.) Act, 2006 has, since it was tabled in the National Assembly,
attracted endorsement from the media, as well as the NGOs, government and many
others beside them. It has been repeatedly labeled as a relief to women and as
an “end to tyranny” by many. But, this claim is pretty shallow & bogus, as the
following discourse explains.
[We have made the following treatise into the form of a dialogue
between the author and a common person, to captivate the attention of the
reader.]
Person: The WPB has been finally
passed! Women have finally been provided relief!
Author: The Criminal Law Amendment
(Protection of Women) Act, 2006 has been passed by the National Assembly and
Senate. What relief has been brought to women?
Person: The WPB has finally provided
relief to women. Previously, women had to produce four witnesses for proving
rape or the rapist will be left scot-free.
Author: This is not true pal! You have
been fooled. The President of the state had also reiterated the same lie during
his address. There were two types of punishments in the old ordinance:-
- Hadd: A punishment fixed by the Quran and
Sunnah. This is awarded only in the most stringent circumstances, when
certain conditions are fulfilled—as a deterrent.
- Tazir: A punishment awarded when the
conditions required for hadd are not fulfilled, but, the crime stands
proved beyond doubt on the basis of any form of evidence.
If you don’t believe me, look at Section 10 of the Offence of
Zina (Enforcement of Hudood) Ordinance (VII of 1979).
|
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. [1] |
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 further corroborate my claim:-
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.
(For a more detailed discussion, see Lies & Distortions by the Media
about Hudood Ordinance.)
Person: I have heard of tazir, but, I
have got a bit confused. Actually, tazir has just gone behind the curtains, due
to the repetition of the above lie, over and over again, in the media.
Author: Yes, you are absolutely right.
Person: But, under the hudood
ordinance, no difference has been made between zina and zina-bil-jabr.
Author: This is again wrong. There are
many differences between zina and zina-bil-jabr in the original ordinance. Here
is a summary of the differences:-
|
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.
(For a more detailed discussion, see my article Lies & Distortions by
Geo TV about Hudood Ordinance.)
Person: Oh... I see... But, again,
under hudood ordinance, a woman who accuses a person of rape will get subjected
to qazf, if she can’t bring four witnesses.
Author: No, my friend. You have been
fooled again. The word “qazf” is defined in Section 3 of the Offence of Qazf
(Enforcement of Hudood) Ordinance, 1979. In the whole section, the word
“zina” has been used, not zina-bil-jabr. The only case where qazf will be
awarded for zina-bil-jabr is when the accusation is proved to be false.
|
(c)
according
to the finding of the Court, a complainant has made a false accusation of
‘zina-bil-jabr’. |
When a
complaint of rape is filed, it will either be proved to be true or it will be
proved to be false. Sometimes, the complaint is neither proved true nor false; this
is due to lack or loss of evidence. In this case, the woman is not punished for
complaining zina-bil-jabr. She is only punished if the court found out that the
accusation was a white lie e.g. intercourse did not occur at all or the hymen
of the vagina is intact, etc.
Person: But, previously, if women
reported rape, it was taken as a confession of adultery. Without four
witnesses, rape case would be converted to adultery. This has been reformed in
the WPB.
Author: This is totally false! Under
the hudood ordinance, allegation was not taken as confession. Take a look at
Section 8 of the old ordinance for yourself:
|
8. Proof of zina or zina-bil-jabr
liable to hadd Proof
of 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; |
Furthermore,
take a look at Section 9(1), which states the following:
|
9. Case in which hadd shall not be enforced (1) In a case in which the offence of zina
or zina-bil-jabr is proved only by the confession of the convict, hadd,
or such part of it as is yet to be enforced, shall not be enforced if the
convict retracts his confession before the hadd or such part is
enforced. |
This is
sufficient for a sane guy to understand that the hudood ordinance in
unequivocal terms, excludes allegation from confession. In fact, there is
nothing more meaningless & illogical than to consider allegation or
pregnancy as rape. How can someone ‘retract confession’ if the confession is an
allegation or pregnancy???
Furthermore, the following judgments prove that allegation or pregnancy was
never taken to mean "confession."
Mst. Safia Bibi vs. The State (PLD 1985 FSC 120)
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in zina-bil-jabr:-
Zina was committed with a blind girl and she was convicted by trial court. She
gave birth to an illegitimate child. 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]
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]
Person: Okay... But, what about cases
like Zafran Bibi case where court convicted her for adultery, only because she
did not had witnesses to support rape? The WPB has added a clear-cut provision
explaining that confession does not mean allegation, but, an actual confession.
Author: I had quoted the text of a
judgment, just a minute ago i.e. Safia Bibi vs. The
State (PLD 1985 FSC 120). In this judgment, it was cleared up by the FSC
that even if no evidence is available for rape than the self-exculpatory
statement of the victim, then she cannot be convicted of adultery. This judgment
was of 1985.
The
Zafran Bibi case was of 2002, where she was convicted by trial court, but even
then, the FSC had reversed the judgment & acquitted her.
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]
As you might have guessed already, the conviction of Zafran Bibi was against
the law. In that case, the police, judge and even her defence lawyer were
corrupted! The government took no action against anyone; neither the judge nor the
police. Why was it so?
(For a more detailed discussion, see Lies & Distortions by the Media
about Hudood Ordinance.)
As for your saying that the WPB has added a new provision, explaining the word “confession”,
then I would like to say that we don’t need to write in the Ordinance that 2 +
2 = 4. That was just an odd excuse for enforcing other un-Islamic provisions of
the bill. In fact, if a definition of “confession” is added to the zina ordinance, it should have also been
added to the remaining hudood ordinances as well as other laws. This is not the
case which proves that it was an odd excuse and to provide base for a bogus
provision.
I
would like to challenge you as well as any person on earth, to bring forth any
English dictionary which includes allegation or pregnancy in the
meaning of the term ‘confession’, if ye are truthful!
Person: Hmm... you
are damn right. Confession is not an ambiguous word.
Author: Yup, a confession is a
confession and nothing else. Had there been any explicit provision in the
hudood ordinance, then it might make any sense to add a new definition of
confession. Presently, this will have no impact at all.
Person: But, still I think that the WPB
has provided relief to women by amending the law pertaining to zina. Women will
not languish in jails for years, due to this WPB. According to previous laws,
they would have dwell in jail for years. You will surely agree with me...
Author: No! The WPB has got nothing
to do with women in jail. Gen. Musharraf had promulgated the Law Reforms
Ordinance, 2006 earlier this year which added Section 156-B to the CrPC.
According to this section, no person can be arrested for ‘zina’ unless
non-bailable arrest warrants are issued by an authorized court of competent
jurisdiction. Furthermore, zina cases will not be investigated by a police
officer lower in rank than a SP.
This means that women, languishing in jail before the WPB, were those whose
non-bailable arrest warrants were issued by the court. Now, in this bill, zina
has been declared a non-cognizable offence, for which no person can ever
be arrested.
Due to this WPB, only those women will escape jail whose non-bailable arrest
warrants were issued. Probably, 99.99% of them will consist of guilty women,
not innocent ones!
Person: Uhh...
what?! I don’t believe this! But, you will still have to agree that the hudood
ordinance had tormented women for at least 26 years.
Author: Again, you have made a mistake
pal. Go & have a look at the original ordinance. It consists of 22 sections
only and it deals with judiciary & courts. It only gives judges the
authority to punish the wrong-doers. It does not deal
with police & arresting people before trial. It is the Code of Criminal Procedure (Act V of
1898) which deals with arrest, police, etc. In fact, it was due to the
hudood ordinance that after lying in jail for several years, these women were
acquitted by the court. The Hudood Ordinance had relieved women from the torments
of the police for 26 years!!!
(For a more detailed discussion, see Lies & Distortions by the Media
about Hudood Ordinance.)
Person: Man! I don’t believe how much
misconceptions I had in my mind about the hudood laws.
Author: Yes, the media is responsible
for staining the name of hudood ordinance with black spots. If you find time,
read the article: Lies & Distortions by the Media about Hudood Ordinance.
It pin-points the lies spread by various news sources, NGOs, etc.
Person: I don’t get it that if the
hudood laws don’t torment women, why the National Assembly has passed this WPB?
Why is everyone cheering as if women have been saved from hell or something of
the like?
Author: Because, a majority of the
Members of National Assembly consist those who don’t understand the laws. They
are just like you, relying on media sources blindly and ignorant of the truth.
I give you one simple example to illustrate this fact.
Section 8 of the old Qazf Ordinance states:-
|
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. |
I highlighted
the word ‘him’ in the above section. Justice (R) Shaiq Usmani, who was a member
of the Special Committee of the NCSW & also, associated with Aurat
foundation, commented 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. |
Probably
relying on the above sources, Ms. Kashmala Tariq, an MNA, proposed in her
recommendations:[2]
|
In Section 8,
it was proposed that the word ‘him’ should be changed with “that person.” |
Before removing
off this misconception, 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 prologue, 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. |
So,
you can simply deduce from this fact, the amount of honesty & literacy in
our lawyers, as well as, MNAs and all.
Person: Thank God that you met me &
clarified these misconceptions. Otherwise, I would have been strayed
by such idiots as well.
Author: Don’t rely on the media.
Research yourself! But, let me ask one simple question: do you still think that
the WPB has provided any relief or protection to women?
Person: After all the above discussion,
I don’t find anything. But, wait! I am reminded of something...
Author: Of what?
Person: Previously, women would go to
police stations and lodge FIR of rape there. Many a times it happened that the
police officials will either not lodge FIR or rape the women themselves! This
was a big defect.
Author: The hudood laws don’t tell
police officers to rape women. As I told you before, the hudood ordinance isn’t
associated with this issue and on top of all, even the CrPC doesn’t tell police
to do such things. It is a defect & corruption in our police system and not
criminal laws.
Person: Okay... but, you have to agree
that the WPB has provided relief to women here.
Author: No, my friend. Where did you
come to know this?
Person: What do you mean?!
Author: I mean that women still have to
go to the same police to lodge FIRs of rape. Nothing has changed here. And
police will still refuse to lodge FIRs, as well as rape women regularly!
Person: So, for what is everyone
cheering about then? Are they gone mad?
Author: No, they aren’t mad. I will
tell you some other time as to why are they cheering so much.
(END OF PART ONE.......)
(START OF PART TWO.....)
Person: Nice to meet you again. I had
read an article about the WPB. Though, many things in the article were those
which you have already clarified, I found a few new things where I think
protection has been given to women.
Author: What now?
Person: According to new laws, a case
adultery may be converted to a case of rape, but not vice versa.
Author: I told you before that women
will not suffer, because, a case of rape cannot be converted to a case of
adultery, if rape is not proved or there is some doubt. 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:[3]
|
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. |
Person: But, now it is bound by law
that a case of rape cannot be converted to adultery in any circumstances
whatsoever. Isn’t this protection to women?
Author: No, my friend! This is not a
protection! According to previous laws, if it was proved beyond doubt that an
allegation of rape is false & that consensual intercourse had taken place,
then the court could convict both persons under 10(2). I 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]
This conversion was done due to solid evidence. Now, such a thing is
impossible.
Person: But, this is protection to
women, right?
Author: Wrong. When it is proved beyond
doubt that zina had taken place, not zina-bil-jabr, then
it is against the canons of morality, justice & law to leave the woman
scot-free. In fact, punishing her in this case, will meet the ends of justice.
The Holy Qur’an states:
“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:[4]
|
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) |
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:[5]
|
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. |
Person: Hmm... I see...
Author: In fact, putting a bar on the
conversion of rape cases to adultery cases is like giving a free path to
adulterous men & women. Such
a provision leads to another fissure in the act, in that two persons can commit
adultery, but lodge an FIR of rape. From the evidence on record, rape would not
be proved and since, the case can’t be converted to a zina case, the two
offenders will be left free of charge to enjoy another night.
Person: You are right... that is indeed
a wide lacuna...
Author: If you do a research and get
the statistics on the number of rape cases which converted to adultery cases,
in the 27 year history of the old ordinance, you will find that the number is
less than 1%. So, there was no need for such a provision.
This provision will even give protection to adulterous men. Consider that two
persons have intercourse consensually and later, the woman files an FIR of rape
to save her reputation. During the trial, the court finds that no element of
coercion was involved. Now, in this case, not only will the woman be left free,
but, the male will also enjoy freedom!!! If someone says that women will be
left on doubt, then what about men? Why are the guilty men being given this
protection?
Person: Okay... there is another thing
which I read in the article about the WPB. Previously, women had to lodge a
separate complaint for qazf. Now, the court will automatically convict the
false accuser without the need of a separate complaint.
Author: This is based on less knowledge
of the Qazf Ordinance. I suggest you to
read my FAQ explaining the above query[6],
in conjunction with this document[7]
for the answer.
If you look closely, a right has been snatched away from people. Previously,
the one who was falsely accused had the right to file a complaint of Qazf if
he/she wanted or forgive the accuser. Now, that person has been deprived of
this right. This right is given by the Shari’ah and consequently, such a provision
is against the Shari’ah.
Person: Come on! This is a sincere effort to protect women, because, previously
cases became too much prolonged.
Author: Read my FAQ first. As for your connotation that "this is a
sincere effort", then let me unveil that this is not.
Person: Why? Please explain.
Author: In the PPC, there is a Section 499, which deals with defamation.
Qazf only deals with false accusations of zina. For false accusations of
other crimes, cases are filed under PPC, 499. Here no one objects that separate
case has to be filed or that cases will be prolonged.
Furthermore, the ones who are asking for this provision are not sincere; they
aren’t even concerned with the protection of women, which is proved from
Section 19 of the WPB. According to previous hudood ordinance, the court
could try & convict the accused for any other offence, if it appeared in
evidence that he/she had committed that offence. Section 19 of the WPB has
removed this provision.
This means that now, if a woman files a complaint of gang rape, but, can’t
prove it, though individual rape is proved, the court will still not convict
the accused. Rather, the woman would have to file a separate case again.
Furthermore, if she failed to prove individual rape, but, it was proved from
evidence that the accused had abducted her, then too a new case would have to
be filed. The court will still leave the accused. This was not the case with
old laws.
Thus it is proved that they are not concerned with women protection at all,
otherwise, they would have not devised double-standards. In fact, they have decreased protection of women in this
case! And
yeah, I will like to re-iterate here, the words of Hamid Mir.
|
"Aik aurat
ki izzat kharab kar di gaey
hai aur uss kay pas paisey bhi nahin hain
aur shawahid mojud bhi hain
aur uss kay 2 chottey bachey hain aur shuhar
bhi nahin hai aur bheek
mang kar aik case file kar liya tha,
tu abh woh auraat kahan
jaey gi??? Ussay kon insaaf
day ga???" (Go and ask Hamid Mir
himself!) |
The reason these people are
dying in case of qazf, is because they want to maximize the factors which would
discourage people from lodging complaint of zina, and thus increase immorality
& immodesty. Let me reproduce an excerpt from another article:-
|
’Changes in the procedure for filing
complaints of zina, fornication and qazf, point unmistakably to the inference
that eradicating immodesty & immorality, in the society, is no more a
duty of the state. Committing fornication, as enshrined by the new act, is
not an offence against the state, as the police have been deprived of any
authority in the matter. A complaint in the court of magistrate, by someone
who dislikes immorality, in his personal capacity, is the only possible way—a
path filled with thorns as well as pitfalls. Two witnesses and four witnesses
are required, at the time of filing a complaint of, fornication or zina,
respectively—a first of its kind in the whole CrPC. And to add more spices,
filing a complaint which is not entertained by the presiding officer, is an
offence against the state. The state punishes, in a nutshell, those only who try to eradicate
immodesty—but not those who spread it.’ |
Person: Hmm... I don’t believe it. They
are decreasing protection of women! I never heard or read about that section of
the bill!
Author: There are many things which
people don’t come to know, only because the media deceives them and they keep
on living in a fool’s paradise.
Person: I have two more doubts.
Author: Yes, tell me please, so that I
can clarify them.
Person: The WPB has eliminated the hadd
for zina-bil-jabr and increased the tazir for ordinary rape, to 25 years
imprisonment (of either description) or death penalty, and also fine.
Author: By eliminating the hadd, they
have converted an Islamic law into an un-Islamic one. The first person to deny
Rajm & the hadd for zina-bil-jabr was Ameen Ahsan Islahi of twentieth
century. Before him, no prominent scholar had ever stated the opposite. In
fact, as Maulana Yusuf Ludhianvi (RA) describes, only the most deviant sects
i.e. the Khawaarij,
Qadiyanis
and Raafidha,
hold such an opinion. The hadd for zina-bil-jabr is proved from many ahadith
like the one in Tirmidhi Sharif, Sunan Abu Daw’ud and others.
Furthermore, I told you before that hadd is there as a deterrent. Tazir can
always be awarded, so, no relief is brought to women by putting Rape &
other tazirat in the PPC. In fact, while doing so, they have lessened the
punishment for various crimes!
Person: They haven’t lessened the
punishment for zina-bil-jabr at least!
Author: Hahaha... that’s an odd excuse.
They lessened the punishment of gang rape from death penalty to death or life
imprisonment. The rationale described in the Statement of Object and Reasons
is that in majority of cases of gang rape, the judges are reluctant to punish
the rapist with death penalty. The question is that if in majority of cases,
judges don’t want to award death penalty to gang rapists: will they ever award
it to individual rapists?
Person: Huh... what do you mean?
Author: In 99.99% of the cases, this
punishment will not be given by judges. So, it was just an odd excuse for
justifying other provisions which are directed at increasing immodesty in the
society. In fact, if they wanted, they could have changed the punishment in S. 10(3)
itself to get the same effect. They didn’t do that!
Person: Hmm...
Author: And your second doubt...?
Person: Protection has been given to
young girls in that intercourse with girls below 16 years of age will always be
considered rape.
Author: This is not in conformance with
the Shari’ah. The Shari’ah has not set a particular age in this matter; rather,
puberty is considered the standard. This is proved from Sunnah, for example, a
tradition found in Musnad ibn abi Shaibah.
Any person, who has attained puberty and commits fornication, deserves to be
punished. In fact, if the evidence requirements for hadd are met, then the
execution of hadd (as Haqqullah) is inevitable. No one has the right to remit
this punishment.
As for tazir, then it may be reduced, keeping in view the puberty & age of
the individual. Making a sensible law in this perspective, which
conforms to the Shari’ah, may be useful. A young person, who does not
understand the implications of zina and commits fornication, should not be
punished. But, such cases are rare and exceptional—and therefore, it is utmost
stupidity to presume every case as a case of rape.
Generally speaking, such cases are heard by judges, which surely aren’t idiots.
In many cases, they reduced or even dropped the tazir punishment, due to the
young age of the offender, as in Muhammad Ashraf vs. The
State (PLD 1987 FSC 33).
Most importantly, how many young people have suffered in the 27 year history
of this law? Not even a few young people.
Person: Ok... I don’t find much in the
WPB after knowing all these things. In fact, there doesn’t seem to be anything
at all.
Author: It contains many things which
would decrease women protection & increase protection of obscenity and
immorality. We shall (Insha Allah) discuss them some other time. Allah Hafiz!
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.