THE
OFFENCE OF QAZF
(ENFORCEMENT OF HADD)
ORDINANCE
(VIII OF 1979)
[10th February, 1979]
An Ordinance to bring in conformity with the injunctions of
Islam the law relating to the offence of 'qazf’.
Preamble:
Whereas it is necessary to modify the existing law
relating to 'qazf’ so as to bring it in conformity with injunctions of Islam as
set out in the Holy Qur'an and Sunnah; And Whereas the President is satisfied
that circumstances exist which render it necessary to take immediate action;
Now, Therefore, in pursuance of the proclamation of the Fifth day of July,
1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order
No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the
President is pleased to make and promulgate the following Ordinance:-
1. Short title, extent and commencement:
(1) This Ordinance may be called the Offence of 'Qazf’ (Enforcement of Hadd)
Ordinance, 1979.
(2) It extends to the whole of Pakistan.
(3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri,
that is, the tenth day of February, 1979.
2. Definition:
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).
3. Qazf:
Whoever by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes an imputation of 'zina' concerning
any person intending to harm, or knowing or having reason to believe that such
imputation will harm the reputation1, or hurt the feelings, of such person, is
said except in the cases hereinafter excepted, to commit 'qazf'.
Explanation 1: It may amount to 'qazf' to impute 'zina' to a
deceased person, if the imputation would harm the reputation, or hurt the
feelings, of that person if living, and is harmful to the feelings of his family
or other near relatives.
Explanation 2: An imputation in the form of an alternative or
expressed ironically, may amount to 'qazf'.
First exception (imputation of truth which public good requires to be made or
published): It is not 'qazf' to impute 'zina' to any person if the
imputation be true and made or published for the public good.2 Whether or not it
is for the public good is a question of fact.
Second exception (accusation preferred in good faith to authorized person):
Save in the cases hereinafter mentioned, it is not 'qazf' to refer in
good faith an accusation of 'zina' against any person to any of those who have
lawful authority3 over that person with respect to the subject-matter of
accusation:-(a) a complainant makes an accusation of 'zina' against another person in a
Court, but fails to produce four witnesses in support thereof before the Court;
(b) according to the finding of the Court, a witness has given false evidence
of the commission of 'zina' or 'zina-bil-Jabr';
(c) according to the finding of the Court, a complainant has made a false
accusation of 'zina-bil-jabr'.
4. Two kinds of qazf:
'Qazf' may be either 'qazf' liable to 'hadd' or 'qazf' liable to 'tazir'.
5. Qazf liable to 'hadd':
Whoever, being an adult, intentionally and without ambiguity commits 'qazf'
of 'zina', liable to 'hadd' against a particular person who is a 'muhsan' and
capable of performing sexual intercourse is, subject to the provisions of this
Ordinance, said to commit 'qazf' liable to ‘hadd'.
Explanation 1: In this section, "muhsan" means a sane and adult
Muslim who either has had no sexual intercourse or has had such intercourse only
with his or her lawfully wedded spouse.
Explanation 2: If a person makes in respect of another person the
imputation that such other person is an illegitimate child, or refuses to
recognize such person to be a legitimate child, he shall be deemed to have
committed 'qazf' liable to 'hadd' in respect of the mother of that person.
6. Proof of qazf liable to hadd:
Proof of 'qazf' 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;
(b) the accused commits 'qazf’ in the presence of the Court; and
(c) at least two Muslim adult mate witnesses, other than the victim of the
'qazf', about whom the Court is satisfied, having regard to the requirements of
'tazkiyah al-shuhood', that they are truthful persons and abstain from major
sins (kabair), give direct evidence of the commission of 'qazf':
Provided that, if the accused is a non-Muslim, the witnesses may be
non-Muslims:
Provided further that the statement of the complainant or the person
authorized by him4 shall be recorded before the statements of the witnesses are
recorded.
7. Punishment of 'qazf' liable to 'hadd':
(1) Whoever commits 'qazf liable to 'hadd' shall be punished with whipping
numbering eighty stripes.
(2) After a person has been convicted for the offence of 'qazf liable to
'hadd', his5 evidence shall not be admissible in any Court of Law.
(3) A punishment awarded under sub-section (1) shall not be executed until it
has been confirmed by the Court to which an appeal from the Court awarding the
punishment lies; and until the punishment is confirmed and executed, the convict
shall, subject to the provisions of the Code of Criminal Procedure, 1898 (Act V
of 1898) relating to the grant of bail or suspension of sentence, be dealt with
in the same manner as if sentenced to simple imprisonment.
8. Who can file a complaint:
No proceedings under this Ordinance shall be initiated except on a report made to the police or a complaint6 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;7 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.
9. Cases in which 'hadd' shall not be imposed or enforced:
(1) 'Hadd' shall not be imposed for 'qazf' in any of the following cases,
namely:-
(a) when a person has committed 'qazf' against any of his descendants;
(b) when the person in respect of whom 'qazf' has been committed and who is a
complainant has died during the pendency of the proceedings; and
(c) when the imputation has been proved to be true.
(2) In a case in which, before the execution of 'hadd' the complainant8
withdraws his allegation of 'qazf', or states that the accused9 had made a false
confession or that any of the witnesses had deposed falsely and the number of
witnesses is thereby reduced to less than two, 'hadd' shall not be enforced, but
the Court may order retrial or award 'tazir' on the basis of the evidence on
record.
10. Qazf liable to Tazir:
Whoever commits 'qazf' which is not liable to 'hadd'10 or for which proof in
any of the forms mentioned in Section 6 is not available, or for which 'hadd'
may not be imposed or enforced under Section 911, is said to commit 'qazf' liable
to 'tazir'.
11. Punishment for 'Qazf liable to Tazir':
Whoever commits 'qazf liable to 'tazir' shall be punished with imprisonment
of either description for a term which may extend to two years and with whipping
not exceeding forty stripes, and shall also be liable to fine.
12. Printing or engraving matter known to be of the nature referred to in
Section 3:
Whoever prints or engraves any matter knowing' or having good reason to
believe that such matter is of the nature referred to in Section 3, shall be
punished with imprisonment of either description for a term which may extend to
two years, or with whipping not exceeding thirty stripes, or with fine, or with
any two of, or all, the punishments.
13. Sale of printed or engraved substance containing matter of the nature
referred to in Section 3:
Whoever sells or offers for sale any printed or engraved substance containing
matter of the nature referred to in Section 3, knowing that it contains such
matter, shall be punished with imprisonment of either description for a term
which may extend to two years, or with whipping not exceeding thirty stripes, or
with fine or with any two of, or all, the punishments.
14. Lian:
(1) When a husband accuses before a Court his wife who is 'muhsan' within the
meaning of Section 5, of 'zina' and the wife does not accept the accusation as
true, the following procedure of 'lian' shall apply, namely:-
(a) the husband shall say upon oath before the Court:
"I swear by Allah the Almighty and say I am surely truthful in my accusation
of 'zina' against my wife (name of wife)_" and, after he has said so four times,
he shall say:
"Allah's curse be upon me if I am 'liar' in my accusation of 'zina' against
my wife (name of wife)"; and
(b) the wife shall, in reply to the husband's statement made in accordance
with clause (a) say upon oath before the Courts:
"I swear by Allah the Almighty that my husband is surely a 'liar' in his
accusation of 'zina' against me', and, after she has said so four times, she
shall say: "Allah's wrath be upon me if he is truthful in his accusation of
'zina' against me".
(2) When the procedure specified in sub-section (1) has been completed, the
Court shall pass an order dissolving the marriage between the husband and wife,
which shall operate as a decree for dissolution of marriage and no appeal shall
lie against it.
(3) Where the husband or the wife refuses to go through the procedure
specified in subsection (1), he or, as the case may be, she shall be imprisoned
until:
(a) in the case of the husband, he has agreed to go through the aforesaid
procedure; or
(b) in the case of the wife, she has either agreed to go through the
aforesaid procedure or accepted the husband's accusation as true.
(4) A wife who has accepted the husband's accusation as true shall be awarded
the punishment for the offence of 'zina' liable to 'hadd' under the imposition
of Hudood for the Offence of 'Zina' Ordinance, 1979.
15. Punishment for attempt to commit offence punishable under this Ordinance:
Whoever attempts to commit an offence punishable under this Ordinance, or to
cause such an attempt to be committed, and in such attempt does any act towards
the commission of the offence, shall be punished with imprisonment for a term
which may extend to one-half of the longest term provided for the offence, or
with such whipping or fine as is-provided for the offence, or with any two of,
or all, the punishments.
16. Application of certain provisions of Pakistan Penal Code (Act XLV of
I860):
(1) Unless otherwise expressly provided in this Ordinance, the provisions of
Sections 34 to 38 of Chapter II, Sections 63 to 72 of Chapter III and Chapters V
and V-A of the Pakistan Penal Code (Act XLV of 1860), shall apply, mutatis
mutandis, in respect of offences under this Ordinance.
(2) Whoever is guilty of the abetment of an offence liable to 'hadd' -under
this Ordinance shall be liable to the punishment provided for such offence as
'tazir'.
17. Application of the Code of Criminal Procedure, 1898 (Act V of 1898):
(1) Unless otherwise expressly provided in this Ordinance, the provisions of
the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as
the said Code, shall apply, mutatis mutandis, in respect of cases under
this Ordinance:
Provided that if it appears in evidence that the offender has committed a
different offence under any other law, he may, if the Court is competent to try
that offence and award punishment therefore, be convicted and punished for that
offence:
Provided further that an offence punishable under Section 7 of
sub-section (4) of Section 14, shall be triable by, and proceedings under
sub-sections (1) and (2) of the latter section shall be held before a Court of
Session and not by or before a Magistrate authorised under Section 30 of the
said Code and an appeal from an order of the Court of Session shall lie to the
Federal Shariat Court:
Provided further that a trial by, or proceeding before, the Court of
Session under this Ordinance shall ordinarily, be held at the headquarters of
the Tehsil in which the offence is alleged to have been committed or, as the
case may be, the husband who has made the accusation ordinarily resides.
(2) The provisions of the said Code relating to the confirmation of the
sentence of death shall apply, mutatis mutandis, of the confirmation of a sentence
under this Ordinance.
(3) The provisions of sub-section (3) of Section 391 or Section 393 of the
said Code shall not apply in respect of the punishment of whipping awarded under
this Ordinance.
(4) The provisions of Chapter XXIX of the said Code shall not apply in
respect of a punishment awarded under Section 7 of this Ordinance.
18. Presiding Officer of Court to be a Muslim:
The Presiding Officer of the Court by which a case is tried, or an appeal is
heard, under this Ordinance, shall be a Muslim.
19. Ordinance to override other Laws:
The provisions of this Ordinance shall have effect notwithstanding anything
contained in any other law for the time being in force.
20. Saving:
Nothing in this Ordinance shall be deemed to apply to cases pending before
any Court immediately before the commencement of this Ordinance, or to offences
committed before such commencement.
End Notes
1 Refer to Chapter XXI, Section 499 of the PPC (below) for explanation.
2 Such exceptions are not exclusive to this Ordinance; the PPC (Section 499)
also excepts any accusation made in good faith from being liable to a punishment. This
is because such a statement is not considered an allegation or imputation
of 'zina'. Refer to Chapter XXI of the PPC (below) for detailed explanation.
3 Refer to Chapter XXI, Section 499 of the PPC (below) for explanation.
4 It is important to note here that Chapter I, Section 8 of the PPC states:-
Gender: The pronoun "he" and its derivatives are used of any person, whether male or
female.
5 See footnote 4
6
Complaint is defined in the CrPC, Section 4, sub-section (h) as follows:
"Complaint means the allegation made orally or in writing to a Magistrate, with a view to
his taking action, under this Code that some person whether known or unknown, has committed
an offence, but it does not include the report of a police officer."
This definition clearly means that if, for example, a person has accused a chaste lady of
committing 'Zina' in a court and does not have four witnesses to prove it, then he has committed
'qazf' in accordance with Section 1 of the respective Ordinance. Now, if the lady simply
asks the magistrate on the spot to level the punishment of Qazf on him, then she has
lodged a complaint in the court. This means that now, according to the Qazf
Ordinance, the complaint has been lodged and the requirements of Section 8 have been
fulfilled. After this complaint, whether a whole case is started afresh, or if money is to be given
to a lawyer, or something else is done, is clearly NOT an issue of the Qazf
Ordinance. Rather, this is a problem of the judiciary system and those who don't like
this, should object the judiciary system-- not the Hudood laws!
7 See fotenote 4
8 The one who was falsely accused and requested the execution of punishment of Qazf
9 The one who was thought to have made an imputation of 'zina' against someone else
10 For example, someone commits 'qazf' against a person who is a non-Muslim.
11 For example, someone commits 'qazf' against any of his/her descendents.
Pakistan Penal Code
(XLV OF 1860)
Chapter II
GENERAL EXPLANATIONS
52. "Good faith": Nothing is said to be done or believed in "good faith" which is done or
believed without due care and attention.
Chapter XXI
OF DEFAMATION
499. Defamation: Whoever by words either spoken or intended to be read, or
by signs or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm,
the reputation of such person, is said except in the cases hereinafter excepted, to defame
that person:
Explanation 1: It may amount to defamation to impute anything to a deceased person,
if the jmputator would harm the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company
or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may
amount to defamation.
Explanation 4: No imputation is said to harm a person's reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect of his caste or of his
calling or lowers the credit of that person, or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered a disgraceful.
Illustration
(a) A says: Z is an honest man, he never state B's watch, intending to cause it to be
believed that Z did steal B's watch., This is defamation, unless it fall within one of the
exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that
Z stole B's watch. This is defamation unless it falls within one of the exceptions.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z
stole B's watch. This is defamation, unless it falls within one of the exceptions.
First Exception-Imputation of truth which public good requires to be made or published:
It is not defamation to impute anything which is true concerning any person, if it be for
the public good that the imputation should be made or published. Whether or not it is for
the public good is a question of fact.
Second Exception on public conduct of public servants: It is not defamation to
express in good faith any opinion whatever respecting the conduct of a public servant in
the discharge of his public functions, or respecting his character, so far as his character
appears in that conduct, and no further.
Third Exception-Conduct of any person touching any public question: It is not
defamation to express in good faith any opinion whatever respecting the conduct of any
person touching any public question, and. respecting his character, so far as his character
appears in that conduct, and no further.
Illustration
It is not defamation in A to express in good faith any opinion whatever respecting Z's
conduct in petitioning Government on a public question, in signing requisition for a
meeting on a public question, in presiding or attending as such meeting, in forming or
joining any society which invites the public support, in voting or canvassing for a particular
candidate for any situation in the efficient discharge of the duties of which the public is
interested.
Fourth Exception-Publication of reports of proceedings of Courts: It is not
defamation to public a substantially true report of the proceedings of a Court of Justice, or
of the result of any such proceedings.
Explanation: Justice of the peace or other officer holding an enquiry in open Court
preliminary to a trial in a Court of Justice is a Court within the meaning of the above
section.
Fifth Exception-Merits of case decided in Court or conduct of witnesses and other
concerned: It is not defamation to express in good faith any opinion whatever respecting
the merits of any case, civil or criminal, which has been decided by a Court of Justice, or
respecting the conduct of any person as a party, witness or agent, in any such case, or
respecting the character of such person, as far as his character appears in that conduct,
and not further.
Illustration
(a) A says: "I think Z's evidence on that trial is so contradictory that he must be stupid or
dishonest," A is within this exception if he says that in good faith, inasmuch as the opinion
which he expresses respects Z's character as it appears in Z's conduct as a witness, and
no further.
(b) But if A says: "I do not believe what Z asserted at that trial because I know him to be a
man without veracity." A is not within this exception, inasmuch as the opinion which he
expresses of Z's character, is an opinion not founded on Z's conduct as a witness.
Sixth Exception-Merits of public performance: It is not defamation to express in good
faith any opinion respecting the merits of any performance which its author has submitted
to the judgment of the public, or respecting the character of the author so far as his
character appears in such performance, and no further.
Explanation: A performance may be submitted to the judgment of the public expressly or
by acts on the part of the author, which imply such submission to the judgment of the
public.
Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the
public,
(c) An actor or singer who appears on a public stage, submits his acting or singing to the
judgment of the public.
(d) A says of a book published by Z. "Z's book is foolish; Z must be a weak man. Z's book
is indecent; Z must be a man of impure mind." A is within this exception, if he says this in
good faith, inasmuch as the opinion which he expresses of Z respects Z's character only
so far as it appears in Z's book, and no further.
(e) But if A says: I am not surprised that Z's book is foolish and indecent, for he is a weak
man and a libertine. A is not within this exception, inasmuch as the opinion which he
expresses of Z's character is an opinion not founded on Z's book.
Seventh Exception-Censure passed in good faith by person having lawful authority
over another: It is not defamation in a person having over another any authority, either
conferred by law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful authority
relates.
Illustration
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a
head of a department censuring in good faith those who are under this orders; a parent
censuring in good faith a child in the presence of other children; a schoolmaster, whose
authority is derived from a parent, censuring in good faith a pupil in service;' a banker
censuring in good faith, the cashier of his bank for the conduct of such cashier as such
cashier are within this exception,
Eight Exception-Accusation preferred in good faith to authorised person: It is not
defamation to prefer in good faith an accusation against any person to any of those who
have lawful authority over that person with respect to the subject matter of accusation.
Illustration
If A in good faith accuses Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a
child-Z's father A is within this exception.
Ninth Exception-Imputation made in good faith by person for protection of his or
other's interest: It is not defamation to make an imputation on the character of another
provided that the imputation be made in good faith for the protection of the interest of the
person making it, or of any other person, or for the public good.
Illustrations
(a) A, a shopkeeper, says to B, who manages his business—"Sell nothing to Z unless he
pays you ready money, for I have no opinion of his honesty." A is within the exception, if
he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on
the character of Z. Here, if the imputation is made in good faith, and for the good, A is
within the exception.
Tenth Exception-Caution intended for good of person to whom conveyed or for
public good: It is not defamation to convey a caution, in good faith, to one person against
another, provided that such caution be intended for the good of the person to whom it is
conveyed, or of some person in whom that person is interested, or for the public good.
500. Punishment for defamation: Whoever defames another shall be punished with
simple imprisonment for a term which may extend to two years, or with fine, or with both.
501. Printing or engraving matter known to be defamatory: Whoever prints or
engraves any matter, knowing or having good reason to relieve that such matter is
defamatory of any person, shall be punished with simple imprisonment for a term which
may extend to two years, or with fine, or with both.
502. Sale of printed or engraved substance containing defamatory matter: Whoever
sells or offers for sale any printed or engraved substance containing defamatory matter
knowing that it contains such matter, shall be punished with simple imprisonment for a
term which may extend to two years, or with fine, or with both.