Question 2

Why do the Hudood laws require that one files a separate case/FIR for the execution of punishment of Qazf? Should we not implement the recommendations forwarded by NGOs & Geo TV, e.g. merging of Zina & Qazf ordinances?

 

Answer

The Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979) states in Section 8:-

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[1]; 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.

The word complaint used in the above Section is defined in the CrPC (Criminal Procedure Code), Part I, Chapter I, Section 4, sub-section (h) as follows:-

Complaint: 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 is so clear and self-explanatory that it does not need any explanation. The definitions found in the CrPC are fully applicable in the Qazf Ordinance as it states in Section 2, as follows:-

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).

All this clearly means that if, for example, a person has accused a chaste lady of committing Zina and does not have four witnesses to prove it, then he has committed ‘qazf’ in accordance with Section 3 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.

If someone objects as to why a woman has to ask for it, then our answer is that it is firstly a requirement of the Shari’ah. All the four schools of thought agree upon the issue that in ‘qazf’, the Right of Allah and the Right of Servant is intermingled, but, the Right of Servant is dominant. In fact, the Shafi’ies say that ‘qazf’ is purely a Right of Servant. Therefore, all four schools of thought are agreed upon the issue that there can be ufw (ﻮﻔﻋ) in case of Qazf i.e. it can be pardoned by the one who has been accused. Late Grand Mufti of Pakistan wrote:-

Ruling

The punishment prescribed for Qazf (false accusation of adultery) relates to the right of the person against whom the charge of adultery is leveled. As such the punishment against this crime will be executed only when the person demands the execution of the punishment, otherwise it will be annulled.

[Ma’ariful Qur’an, English Edition, Mufti Muhammad Shafi (RA), Vol.6, p.361]

Some wisdom behind this injunction is that only those people, who were actually falsely accused, will file a complaint of qazf. If a person has truthfully accused someone of zina, but, cannot prove it, then in this case, the accused will not to try to file a complaint of qazf. Thus this requirement, gives a degree of protection to the person who accused another person of zina, but, failed to prove it in the court.

It must also be noted here that most people think that qazf is only awarded when someone files a case of zina, but, fails to prove it. This is not true! Qazf is a separate crime and is treated by the qazf ordinance separately. The punishment, definition, as well as the form of proof required, is different from zina.

At this point, we try to understand the concept of Qazf as found in the respective ordinance.

 

Concept of Qazf in the Qazf Ordinance

Let us first understand the definition & explanation of ‘qazf’ as found in the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979). Section 3 deals with the issue and reads as follows:-

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 reputation, 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. 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 authority 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’.

If you don’t understand the meaning of various terms found in the above section, read the whole Qazf Ordinance first. I have added a brief commentary as well as relevant sections of the PPC in this document. This will assist you in understanding the Ordinance; if you still fail to understand it, drop me an email.

The definition of ‘qazf’ as provided in Section 3 is simple, but, there are two exceptions mentioned which require explanation. First exception states that anyone who makes or publishes an amputation of zina (not zina-bil-jabr) for the public good & which is also true is not said to commit ‘qazf’. This is hardly a debatable exception!

The second exception states that if someone, in good faith, refers an imputation of ‘zina’ against any person to any other person who has lawful authority over him, is not said to commit ‘qazf’. This exception is also important and needs to be there, because, this exempts a witness who is explaining what he saw, in good faith, to a judge, from committing ‘qazf’. It also exempts anyone who reports to the police that so-and-so has committed ‘zina’ or is doing so, etc. If such cases are not exempted, this will lead to great injustice, because, reports, investigations & testimonies would also be considered as ‘qazf’.

Right here, it is noteworthy that the Ordinance itself has expressly stated three special cases which are considered to be ‘qazf’. The first case states that a complainant makes an accusation of ‘zina’ (not zina-bil-jabr) against another person in a court, but fails to produce four witnesses in support thereof before the Court. This is considered as ‘qazf’ as stated by the Shari’ah, although, such ‘qazf’ may or may not be liable to ‘hadd’.

The second case includes a witness who gives false evidence of ‘zina’ or ‘zina-bil-jabr,’ to commit ‘qazf’. (This will not include those witnesses who have given true evidence.)

The last case stated is important and it is the only case which covers imputations of ‘zina-bil-jabr’. Under the Qazf Ordinance, a person (whether male or female) who accuses someone of committing ‘zina-bil-jabr,’ is punishable only when the accusation is a lie. If the accusation was true, it is not ‘qazf’ whether or not the person has four witnesses. It is also not ‘qazf’ if the accusation was neither proved, nor disproved. In case of ‘zina’, if the accusation is not proved, then the person making that accusation is said to commit ‘qazf,’ regardless of whether or not that is a lie.[2]

We shall only discuss the relevant sections here; you can read the full Qazf Ordinance for details. In addition to the two exceptions mentioned in Section 3, there are a few cases where the ‘hadd’ for ‘qazf’ is not enforced, even if the crime of ‘qazf’ liable to ‘hadd’ is proved according to the requirements of Section 6. Such cases are mentioned in Section 9 as follows:-

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 complainant withdraws his allegation of ‘qazf’, or states that the accused 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.

The cases are self-explanatory, but, there is an important point to note here. In the above cases, a person may not be punished with ‘hadd’, but, this does not mean that the accused shall be allowed to go away freely! A person who committed ‘qazf’ [and the crime stands proved], but, ‘hadd’ cannot be enforced, then in such cases ‘tazir’ for ‘qazf’ shall be awarded as provided in Section 10 of the same Ordinance.

The proof required for qazf liable to hadd is also important and mandatory for enforcing the punishment of qazf liable to hadd:

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; or

(c)    at 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 him shall be recorded before the statements of the witnesses are recorded.

 

Explanation: In this section, “tazkiyah al-shuhood” means the mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness.

Coming to section 10, a person if commits ‘qazf’ which is not liable to ‘hadd’, or for which ‘hadd’ may not be enforced under the Ordinance, or for which proof in either of the forms mentioned in Section 6 of the aforesaid Ordinance is not available, then such a person shall face the penalty of 40 stripes, 2 years imprisonment, alongwith fine as ‘tazir’.

In the same way, anyone who prints or engraves such material which contains ‘qazf’ or if someone sells such material, then he shall face penalty of thirty stripes, 2 years imprisonment and with fine too if the court deems fit.

The Qazf Ordinance also contains the commandment of ‘Lian’, but, we shall stick to Qazf only for now.

 

Execution of punishment of qazf

As we have studied, the qazf ordinance treats ‘qazf’ as a full-blown separate crime. If a person has filed a case of zina against another person, but, fails to prove it, then the proceedings may be as follows.

The one who was accused may choose to file a complaint against the complainant. In this case, the court hears the case to find whether the complainant has already committed ‘qazf’ or not. After this is settled, the question as to whether this qazf is liable to hadd or tazir is dealt with. If the requirements of qazf liable to hadd are fulfilled and proof in one of the forms, mentioned in Section 6 is available, hadd for qazf shall be awarded.

If the proof requirements are not met, or if hadd cannot be enforced, then tazir for qazf may be awarded.

In a few cases, it may happen that the punishment for qazf, either hadd or tazir, cannot be awarded to the one who filed the case of zina. In this case too, the court shall convict the complainant u/s 12 of the respective ordinance, taking into consideration the affidavit(s) or other legal documents, containing the complaint (imputation) of zina:

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.

During hearing of the qazf case, a major issue to decide is whether the imputation of zina is true or not. This is required to determine whether hadd can be enforced or not. In the case under discussion, another court would have already determined this fact and thus the case of qazf shall be decided within a few hearings.

Now, if this is not going as it should be or if it is taking years to dismiss the cases, these are problems of the judiciary system and the CrPC. The government should pay attention, in this regard, to such cases to determine what went wrong.

 

Let’s move to the second part of the question!

Recommendations of NGOs & Media

We shall now deal with the recommendations forwarded by various NGOs and media channels, etc. Let us discuss each recommendation serially.

RECOMMENDATION 1

The first recommendation is that an FIR of ‘zina’ should not be dislodged unless there are four witnesses; in fact, such a complainant who does not have four witnesses [and other witnesses], should be punished with 100 stripes at the police station.


ANALYSIS

The recommendation is utopian in essence and if it is implemented, it is only going to give the fornicators & adulterers, a free hand. This recommendation would curb the ability of law-enforcing agencies to even investigate the issue and no one would dare to even report the issue; even the available eye-witnesses would not testify. Furthermore, in majority of cases, innocent people would be unjustly punished; every day, thousands will be striped and consequently, no one would come to make a complaint of fornication/adultery. This will make such a heinous crime to become an ordinary & common act, tolerable by the society.

In fact, this recommendation is meaningless now. Gen. Musharraf has added another Section 156-B in the CrPC, according to which, a person accused of ‘zina’ cannot be arrested unless an arrest warrant is issued by an authorized court of magistrate. Furthermore, according to this section, no police officer below the rank of SP (superintendent) can investigate cases of zina!

RECOMMENDATION 2

A case of ‘zina’ should be heard, but, if it is found that there are less than four witnesses available, ‘qazf’ should be leveled on the complainant and the remaining witnesses.

ANALYSIS

This is again an unjust recommendation; in majority of the cases (not all), four witnesses will not be available. Furthermore, many people due to fear of not fulfilling the conditions of tazkiyah al-shuhood & consequently getting punished, will not come forward to testify. In cases, where there would be three witnesses, the witnesses & the complainant would get punished themselves.

The present situation is the best of all. It firstly treats ‘zina’ & ‘zina-bil-jabr’ separately, so that if an imputation of ‘zina’ is not proved (even by medical evidence, etc.) then the complainant is punished—the witnesses are only punished if they give a fake testimony. Secondly, a complainant of ‘zina-bil-jabr’ is punished only, if the imputation was a lie and was disproved. For example, a lady brings an imputation of rape against a person, but, on her examination, it is found that she is lying (e.g. hymen of vagina is intact). Thus in this case, the falsely accused person can make a complaint and thus get the lady punished.

RECOMMENDATION 3

The Qazf and Zina Ordinance should be merged & Qazf should be leveled automatically.

ANALYSIS

This is a very oft-repeated recommendation, but, a close examination reveals inherent flaws.

Firstly, it is presumed that ‘qazf’ shall always be committed when a person files a case of ‘zina’. This is not the case with the present Ordinance! Under the current Qazf Ordinance, a person who publicly accuses a chaste lady of committing ‘zina’, intending to hurt her feelings or harm her reputation (or knowing it to be likely) has committed ‘qazf’. Thus by merging the two Ordinances, the door for such cases shall be closed.

Furthermore, it is a universal phenomenon in law that whenever there are two different crimes, there are different sections for them in the law. These sections would lay down separate definitions, proof requirements as well as prescribe punishments. Any person who fully studies the Qazf Ordinance can clearly see that the amount of explanation required for this crime, can only be met by having a separate Ordinance.

Moving further, the recommendation of removing Section 8 (i.e. to automatically award the punishment for ‘qazf’), it has been shown previously that it is a requirement of Shari’ah. Secondly, it must be noted here that sometimes, friends, relatives, etc. of the victim of ‘qazf’ may (e.g. in a state of anger) accuse her falsely. She may not want them to be disgraced in public and therefore, pardon the punishment; this will not be possible then.

RECOMMENDATION 4

The words intending to harm and similar words used in the definition of ‘qazf’ in the Ordinance have made the proceedings needlessly complex; such phrases should be removed from the definition of ‘qazf’.


ANALYSIS

Strange, indeed... no one objects the PPC, even though, similar wordings are found in Sections 28, 88, 89, 92, 108, 118, 119, 120, 123, 153, 166, 167, 182, 185, 192, 194, 195, 206, 207, 217, 231, 259, 266, 272, 274, 281, 295, 350, 351, 354, 355, 364, 378, 421, 425, 435, 436, 437, 439, 464, 468, 469, 472, 473, 474, 475, 476, 489, 499, 504 and 509. This may not be a complete list, but, at least 51 out of 511 sections contain similar wordings. In fact, section 295 which deals with the punishment for insulting religious beliefs also reads:-

295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs:

Whoever, with deliberate and malicious intention of outraging the 'religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

Anyways, coming back to this objection, let us discuss the definition of ‘defamation’ as found in Section 499 of the PPC. The full section cannot be quoted here as it is quite lengthy; you can read it online.

In the definition of ‘qazf’, ‘defamation’, or even ‘theft’ (PPC, Section 378) the words “intending to harm” or other such wordings are important. Someone may not be intending to harm or hurt the feelings of a person, for example, people in Punjab, NWFP & other parts of Pakistan too, would abuse each other with severe words but consider it to be simply “gossip” (e.g. one guy calling other as bahen c – h – o – d – e would also become qazf.) Such cases are not ‘qazf’ at all; there are other similar cases where the imputation cannot be considered as ‘qazf’.

 

We hope the above explanation is enough to answer off the various objections raised on the Qazf Ordinance. Thus it is crystal-clear that the Qazf Ordinance does not need to be repealed or even amended!



[1] It is important to note here that Chapter I, Section 8 of the PPC states: “The pronoun ‘he’ and its derivatives are used of any person, whether male or female.”

[2] In some cases, due to lack or loss of evidence, it is not possible to prove or disprove an accusation. In such cases, (a) if the accusation was of ‘zina-bil-jabr’, the person making the accusation has not committed ‘qazf’; or (b) if the accusation was of ‘zina’, the person making the accusation is said to commit ‘qazf’.