HUDOOD ORDINANCE: FACTS & FICTION

By Abdul Rehman

 

I wish I could call the entire episode against the Hudood Ordinance a big misunderstanding, but I cannot. Those who have read the Ordinance for themselves and have the basic understanding of the Law would know that our Government, our NGO’s, and our Media, unfortunately, but deliberately, misrepresented some very vital facts which in the end made all the difference in favor of its amendment, if not yet its complete annulment. For me, it was an incredibly well orchestrated propaganda, in which the International Community (especially Donor agencies) took active part to do away with a working Shariah Law to make way for the implementation of U.N.’s Convention for Elimination of Discrimination Against Women (CEDAW) Bill in the country. And this is the Truth as far as I can see it and I plan to prove it in this article as best as I can.

 

There is a tendency in our community 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 as 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 I am all for women’s rights but not so for Women’s Protection Bill (WPB). To question WPB does not automatically tantamount of being unsupportive of women’s cause in Pakistan. This differentiation must be borne in mind before reading from here onwards.

 

Components of Hudood Ordinance:

The Hudood Ordinance is commonly understood as something to do with the Zina Laws, and so the two are referred interchangeably. Actually, the Hudood Ordinance 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]

 

I believe language plays a vital role in successful communication of a message. It is the language which defines us, our cultures, and our beliefs, and as such one should not deviate much from the established mannerisms in speech. Since we all are talking about the “Hudood Ordinance” then I should too talk about the “Hudood Ordinance”, even though, technically speaking, the subject is in fact the Zina Ordinance. Therefore I will now refer to the two interchangeably, unless specified otherwise.

 

Here is the list of 9 arguments that were used against the Hudood Ordinance, along with my rebuttal for each and every one of it.

 

  1. Rape Cannot Be Proven Without Four Witnesses
  2. There Is No Difference between Zina and Zina-bil-Jabr under Hudood Ordinance
  3. Women’s Testimony Is Not Accepted Under Hudood Ordinance
  4. Innocent Women Are Languishing In Jails For Several Years Only Because of Hudood Ordinance
  5. The Case of Zina-bil-Jabr (Rape) Converts to Zina (Adultery) On Failure of Producing 4 Witnesses By the Victim
  6. Misconceptions About Qazf i.e. False Accusation of Zina
  7. Availability of 4 Witnesses Is an Impossible Requirement
  8. Hudood Ordinance Was A Law of One Man Imposed Upon All Of Us
  9. Hudood Laws Presume the Existence of Justice

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


1. Rape Cannot Be Proven Without Four Witnesses:

This perhaps was the main argument used against the Hudood Ordinance. Every television channel and newspaper—local or international—was parroting this same point i.e. the proof of the crime of rape under the Hudood Ordinance which is to produce 4 witnesses is so strict that it is impossible for the victim to get justice.

 

It is unfortunate that no person came forward (or maybe was not let to come forward) to point out the obvious flaw in this claim.

 

For those who have not yet read the Hudood Ordinance for themselves have the right to know the structure of the Law. 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 un-fulfillment of the requirements of Tazeeri punishment i.e. the case transfers from Hadd à Tazir.

 

What the claim is arguing how rape cannot be proven without 4 witnesses in actual means that the Hadd punishment cannot be enforced without 4 witnesses! Here I want to prove that under the Hudood Ordinance, Hadd cases become Tazeeri under unavailability of 4 witnesses.

 

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 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.

 

The crime of Zina or Zina-bil-Jabr is liable to Tazir under any of the following situations:-

 

  1. Proof in either of the forms mentioned in Section 8 (i.e. 4 credible witnesses or 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.: 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 four 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 prove that the notion of crime of rape cannot be proved is a fallacy:-

 

All of these following cases were proved and decided upon based on Tazir when the victim could not 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)

 

2. There Is No Difference between Zina and Zina-bil-Jabr under Hudood Ordinance:

The claim that the Hudood Ordinance makes no distinction between Zina and Zina-bil-Jabr is utterly apocryphal, as two separate sections i.e. Section 4 and Section 6 clearly differentiate between the two crimes.

 

Section 4 defines Zina:

 

Section 4: 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 defines Zina-bil-Jabr:

 

Section 6: 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.

 

The differences between Zina and Zina-bil-Jabr under the Hudood Ordinance are tabularized as follows:-

 

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

4 to 10 years imprisonment, 30 stripes & fine

For gang rape: death penalty; for ordinary rape: 4 to 25 years imprisonment & 30 stripes; for kidnapping: life imprisonment, etc.

Hadd punishment for non-Muhsan criminals

Whipping numbering 100 stripes

Whipping numbering 100 stripes along with any other punishment including death penalty

 

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.

 

It is also important to see whether Zina and Zina-bil-Jabr are the two forms of the same crime or not (i.e. are two separate crimes). This debate is usually concerned with as to whether Zina-bil-Jabr is included or excluded from the ambit of verse 2 of Surah An-Noor.

 

However there is no doubt whatsoever that Hudood Ordinance treats Zina and Zina-bil-Jabr as two separate crimes, as proven earlier.

 

It should be clearly understood that Hudood Ordinance punishes both the man and the woman for Zina, whereas punishes only the offender for Zina-bil-Jabr.

 

Section 4 on Zina states:

 

A man and a woman ARE said to commit Zina…

 

In contrast, section 6(1) on Zina-bil-Jabr states:

 

A person IS said to commit zina-bil-jabr…

 

NOTE: ARE denotes plurality whereas IS denotes singularity. In Section 4, the Hudood Ordinance 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, agrees:

 

“As far as my limited knowledge is concerned, there is no such thing in the Hudood Ordinance 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)

 

3. Women’s Testimony Is Not Accepted Under Hudood Ordinance:

I can vividly remember watching a television advertisement on Hudood Ordinance where a woman was being made to appear as being raped in front of 5-10 women whose feet were chained. A voice commented:

 

“According to the Hudood Ordinance testimony of a woman is note unaccepted… Although a woman is being raped in front of these women, these women cannot testify…”

 

The host of the program Jawab Deh also said:

 

“Even if some 50 women witness a rape unless there are 4 male witnesses, there will be no conviction.”

 

Firstly, there is not a single article in the entire Hudood Ordinance where it is explicitly or even implicitly mentioned that a court cannot accept a female’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 Tazir Section, as have been comprehensively discussed under Rebuttal 1.

 

It should be understood that once when a case is being decided based on Tazir, 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.) along with whipping numbering thirty stripes; in case of gang rape, death penalty only.

 

A more definite rebuttal to the claim is the judgment 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, 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 Tazir punishment shall be awarded.

[Annual Report of the FSC, 2002, p.33]

 

4. Innocent Women Are Languishing In Jails For Several Years Only Because of Hudood Ordinance:

Innocent women are languishing in jails for several years 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 I answer this very important question let me clarify what Hudood Ordinance really deals with and what it does not.

 

The Hudood Ordinance 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 Hudood Ordinance 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

 

This issue of innocent women languishing in jails is the accomplishment of Code of Criminal Procedure (Act V of 1898) which is neither a product of Gen. Zia-ul-Haq 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 Hudood Ordinance. The only “crime” of Hudood Ordinance 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! As such, you should understand that it was because of the slow and outdated judicial process that was keeping these innocent women in jails, and not the Hudood Ordinance. To suggest that Hudood Ordinance should be repealed 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, 2006 earlier, which added Section 156-B to the CrPC. This section provided that a case of Zina will not be investigated by any police officer lower in rank than an SP (Superintendent). Furthermore, no person shall be arrested for Zina UNLESS an order has been issued by a court of competent jurisdiction in the matter. With the enforcement of this ordinance, not even a single woman whosoever was inhabiting jail to await trial under the hudood ordinance; that's the time when the Protection of Women Bill was NOT even tabled in the National Assembly.

 

Despite being cognizant of the afore mentioned 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! Not content with these measures, they deprived the police of even minuscle authority to investigate Zina cases. Today, Zina is not an offence against the state and the state has no concern in eradicating such a pestilence; rather, it is considered a mere personal dispute between two parties. To add more spices, filing a complaint of Zina (or fornication) which is not entertained by the Presiding Officer, is an offence against the state. A person who finds lewdness abominable can neither lodge an FIR nor get any accomodation 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 eye-witnesses by his side and in whom he has 101% confidence they will pass the Tazkiya al-Shudood test, otherwise each of them will get 80 lashes. The state punishes, in a nut-shell, those only who try to eradicate immodesty, but not those, who spread it!

 

You will, I am sure, remind me of the article of fornication. Albeit, its raison detre was presumed to control immodesty, but, as a matter of fact, it is all in holes, which waters down its essential cause. Two eye-witnesses are required at the time of complaint, for a mere summons (not arrest) of the accused, which is a first of its kind in the CrPC. The Presiding Officer if convinced that the case is proved prima de facia may pass a sentence of simple imprisonment for a term which may extend to 5 years and fine not exceeding Rs. 10,000 /- On the other hand, the complainant and eye-witness (if any) may themselves be in the hot seat, if the complaint is not entertained by the Presiding Officer! Again, its noteworthy that a complaint of Zina may neither be converted to a complaint of fornication, nor can a complaint of fornication be lodged against a person being tried or acquitted for Zina, under any circumstance whatsoever. The same rule applies, mutatis mutandis, for complaints of fornication.

 

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 yet again the following crucial points:

 

  1. If a person lodges a complaint a 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 get 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 sentenced! 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. Imprisoning a person for upto 25 years, for selling prostitutes, but, only upto 5 years, for actually committing an illicit intercourse (i.e. fornication) is something to which no meaning can be attached, barring the inference that protection is being given to the fornicators!

 

In sharp contrast to this, under the original Hudood Ordinance, any person could easily lodge an FIR even without the requisite of witnesses. Furthermore, it was an offence against the state, with the police empowered to investigate the issue. It was on the shoulder of the honourable judges to decide the case on the basis of any form of evidence at their disposal.

 

There is another point to which I would like to draw the reader's attention. The National Commission for Status of Women (NCSW) established a special Committee to review the Hudood Ordinance in 2002. The Committee reported a startling statistic on pp. 3 that 80% of the women, languishing in jails, are because of the Hudood Ordinance. I have already clarified that it is not because of the Hudood Ordinance, but instead, a “blessing” of our outdated and slow judicial procedure. But, it should be borne in mind that this figure does not reveal anything about the number of women in jail: only about the cause of being in jail. Yet, I am inclined to believe that the veracity of this figure is spurious. According to my research, in the NWFP, during July 2003, the number of women inhabiting gaols for awaiting trial of narcotics cases were 72, whereas, the number of those for awaiting trial of hudood cases were only 56.[1] From even the Hudood cases, a major portion was that of the prohibition cases and furthermore, the total number of women in jails were 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 acclaimed.

 

5. The Case of Zina-bil-Jabr (Rape) Converts to Zina (Adultery) On Failure of Producing 4 Witnesses By the Victim:

The BBC reported[2]:

 

“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.”

 

The Telegraph published a similar report[3]:

 

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.

 

CBC News observed[4]:

 

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 too pointed out[5]:

 

... Pakistan’s hudood ordinance, 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.

 

I wonder if I am the only person on earth who has actually read the Hudood Ordinance in full. All I want to ask from them is under what section and which article does the crime of Zina-bil-Jabr (when 4 witnesses could not be produced) becomes the crime of Zina? This is but a vociferous lie!

 

Following listed is one crucial ruling by the Federal Shariat Court specifically pertinent to the claim at hand:-

 

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-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]

 

I would once again use this opportunity to remind you how the original Hudood Ordinance actually worked. When a case of Zina-bil-Jabr is first lodged and required evidence for both Hadd (4 witnesses/confession) and Tazir (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 by the Government, the NGO’s, and the Media.

 

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 Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a 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 Hudood Ordinance because according to Hudood Ordinance 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 reminded here of a non-Muslim American scholar & law expert, Charles Kennedy, who visited Pakistan and conducted a survey of the respective cases. He analyzed all the data related to Hudood Ordinance cases 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]

 

Turning to the recently passed act, a key feature to be noted is the inclusion of a provision which debars the conversion of rape cases into adultery, even if adultery is proved beyond the shadow of doubt. 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!

 

6. Misconceptions About Qazf i.e. False Accusation of Zina:

It was being argued that the application for Qazf proceedings could be filed only by men even if the wronged person 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; or

 

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 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 as well.

 

With this important aspect in mind, I must quote Section 8 of the Pakistan Penal Code:-

 

Section 8: Gender

The pronoun ‘he’ and its derivates are used of any person, whether male or female.

 

The argument is now officially dead!

 

But there is yet another issue that needs to be resolved. It is also argued that when a woman reports of being raped but cannot prove it, she is convicted for Qazf.

 

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 punishment.”[6]

 

I would request my dear readers to make an effort to read the entire Section 3 of this Original Ordinance themselves. That would suffice. From there it would become crystal clear on them 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.

 

In some cases, an imputation of Zina-bil-Jabr is neither proved, nor disproved; in such cases, there is lack of evidence, or there has been a loss of evidence. In such cases, only complainants of Zina are said to have committed Qazf; complainants of Zina-bil-Jabr, have not committed Qazf, if they fail to prove their accusation--this is unequivocally stated in Section 3, exemption 2(c) of the Qazf Ordinance. The complainants of Zina-bil-Jabr can only be convicted for Qazf if their accusation was disproved i.e. it was proved to be a lie.

 

7. Availability of 4 Witnesses Is an Impossible Requirement:

This argument was put forward several people including Syed Razi Jaffer Naqvi[7]. 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.”

 

Firstly, what is time and again forgotten is that even if 4 witnesses are unavailable, the Tazeeri punishment can always be awarded, so neither does the rapist get a free hand nor is any injustice done to the women.

 

There is a golden well-established principle in Islamic Fiqh that you should know:-

 

The application of a law depends on the Illat and not on the Hikmat

 

It is only relevant to quote an extract from paragraphs 119-121 written by Mufti Taqi Usmani pertaining to the 1999 Historic Judgment on Riba, in the Supreme Court of Pakistan:-

 

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…

 

Therefore to suggest the removal of the requirement of 4 witnesses because “it’s impossible to produce them,” clearly goes against the Shariah Law.

 

Secondly, there is a need to understand the different types of punishments and 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 punishments. Obviously a person will think a hundred times before committing Zina or Zina-bil-Jabr because he knows if he is caught, he can be awarded death penalty. This Hadd punishment therefore acts as a deterrent.

 

Thirdly, furthermore, you also need to realize that Hadd punishments are not awarded everyday. It is only reserved for hardened criminals. During the time of Prophet Muhammad (pbuh) and the Four Pious Caliphs, the hands of only 5 thieves were amputated.

 

Fourthly, 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 here.

 

Fifthly, and similarly, there had 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 4 witnesses that she required.

 

8. Hudood Ordinance Was A Law of One Man Imposed Upon All Of Us

What I want to ask is that was it really General Zia-ul-Haq who wrote the entire Hudood Ordinance all by himself and imposed it on us?

 

Clearly not! As a matter of fact he actually established a Committee comprising of the following personalities, who were rightly the greatest authorities in their respective fields, to carry out the task:-

 

Ulema

1.       Mufti Muhammad Taqi Usmani (Chair-person 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.       A. K. Burohi

 

Retired judges

1.       A. K. Samdani

2.       Muhammad Afzal Cheema

3.       Justice (R) Salahuddin Ahmed

 

This Committee drafted the four Hudood Ordinances 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, 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 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.

 

You tell me how much of intervention besides signing the Ordinance did General Zia-ul-Haq make to “enforce his views”? This brief discourse of history sheds light on various important aspects of Hudood Ordinance and refutes many common arguments, like:-

 

  1. The Hudood Ordinance 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.

 

Then on 11 November 1985 the National Assembly passed an Act (i.e. by 2/3rd 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 Hudood Ordinances. Moreover, the respective National Assemblies of 1988, 1990, 1992, 1995, 1998, and 2002 never raised any objection on these Ordinances!

 

9. Hudood Laws Presume the Existence of Justice:

Although, this is an entirely absurd claim I will nevertheless try to rebut it rationally.

 

If I ask you as to what the Hudood Laws actually constitute and what are they 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 providing justice to the citizens of the state. In other words, Hudood Laws are 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 lit or when it is dark? Of course, when the room is dark! The point is: when there is a dearth of x, you turn on the source of x to eliminate the 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?

 

 

 

CONCLUSION

The original Hudood Ordinance was not unjust or aberrant in its provisions pertaining to the crimes and punishments of Zina (adultery), Zina-bil-Jabr (rape) and Qazf (false allegations) which have been elaborated to some extent in this article.

 

 

 

COMPARISON OF CRIME TRENDS IN INDIA & PAKISTAN

Apart from the laws regarding fornication and adultery, the laws as well as the status of people and standard of living, in India and Pakistan are nearly equal. Hence, India becomes a promising case for studying crime trends vis-a-vis those of Pakistan.

 

The following table summarizes the statistics of sexual offences in India, during the period 1991-1995.

 

CRIME

1991

1992

1993

1994

1995

INCREASE / DECREASE

Rape

9,793

11,112

11,242

12,353

12,754

30.2% Increase

Abduction

12,300

12,077

11,837

12,998

14,063

14.3% Increase

Murder for bringing less dowry

5,157

4,962

4,817

4,935

5,092

1.3% Decrease

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.

 

CRIME

1991

1992

1993

1994

1995

INCREASE / DECREASE

Rape & Fornication

1,428

1,656

1,564

1,639

1,606

12.5% Increase

Abduction

6,314

6,602

6,284

6,946

6,803

7.8% Increase

Murder for bringing less dowry

None

None

None

None

None

Not even a single case reported

Dr. Shahtaz Iqbal has prepared these statistics from the records of the National Police Bureau (formerly Bureau of Police Research & Development).

 

It is noteworthy that in case of India, the statistics excluded fornication or adultery, albeit, they were included for Pakistan.

 

The following actuarial table summarizes & compares the crime trends in Pakistan and India, during the respective years i.e. 1991-1995.

 

CRIME

COUNTRY

1991

1995

INCREASE / DECREASE

Rape (only)

India

9,793

12,754

30.2% Increase

Zina & Zina-bil-Jabr (Both)

Pakistan

1,428

1,606

12.5% Increase

 

These statistics clearly lay bare the truth that the increase in sexual offences in Pakistan, is not only far less than that of India, but also not related in any way with the Zina laws. Generally speaking, crime trends and statistics are indicators of the effectiveness of law-enforcing agencies in implementing statuary laws and eradicating crimes. Controlling the crime rates, therefore, requires thorough reformation and substantial improvements to the law-enforcing agencies, criminal procedure and related organs--not to the penal code.

 

As I lamented earlier, the hudood ordinance merely defines sexual crimes and fixes the evidence requirements & punishments for those crimes. Thus it is crystal-clear for us to see the truth, unless we choose to close our eyes from the reality, due to preconceived notions and opinionated analyses.

 

 

CONTRAST BETWEEN OLD & NEW LAWS:

The following table summarizes the differences between the old criminal laws as they were before the passing of the Protection of Women (C.L.A.) Act, 2006 and after it was passed:-

 

ISSUE

OLD CRIMINAL LAWS

NEW CRIMINAL LAWS

Punishment for abducting/inducing women for marriage or intercourse

Life imprisonment, fine & whipping not exceeding 30 stripes

Life imprisonment & fine

Punishment for buying/selling prostitutes

Life imprisonment, fine & whipping not exceeding 30 stripes

Fine & imprisonment not exceeding 25 years, but, could be as less as the period already undergone

Punishment for enticing away a woman

Fine, whipping not exceeding 30 stripes & imprisonment upto 7 years

Fine & imprisonment upto 7 years

Hadd for zina-bil-jabr

Stoning in case of Muhsan criminals; in case of non-Muhsan criminals, 100 stripes + discretionary punishment (can be death)

Hadd removed, albeit, tazir punishment made more strict by adding option of death [whipping & stoning removed]

Arresting person in case of Zina & Qazf

Arrest possible only by a SP or higher rank police officer, ONLY upon court’s order [ref. CrPC 156-B]

No one can be arrested in case of Zina or Qazf; summons ONLY if witnesses produced by complainant: 4 in case of Zina, while, 2 in case of Qazf or Fornication

Punishment for gang rape

Death punishment only [ref. S.10(4), later Anti-Terrorism Act]

Life imprisonment or death

Modus Operandi (Qazf & Zina)

Non-bailable; could be investigated by police; report of a police officer worthy of initiating case

Bailable; police cannot investigate; report of a police officer not considered in deciding cases; accused not required to furnish any security except a personal bond, without sureties, to ensure attendance in Court

Role of State in cases of Zina

Offence against the state; anyone can lodge FIR; police can investigate the issue

No role at all; FIR can’t be lodged; police ransacked of any authority; offence NOT against the state; only a complaint in a court, with required number & quality of witnesses, entertained

Rape within marriage

Wife can’t lodge case of rape against husband; case of domestic volence, etc. can be lodged under PPC

Wife can lodge case of rape against her own husband

Proof required for Zina

Hadd awarded upon voluntary confession or testimony of 4 adult male Muslim sane pious eye-witnesses; tazir can be awarded upon ANY form of evidence whatsoever

4 adult male Muslim sane pious eye-witnesses required merely to lodge complaint of Zina; 2 eye-witnesses required in case of fornication; unfulfillment of these requirements, result in the complainant & (any) witnesses, to get sentenced to a punishment of 80 lashes, in case of Zina, or imprisonment upto 5 years & fine upto Rs. 10,000 /- in case of Fornication respectively

Conversion of cases

Rape case can be converted to Zina, IF & ONLY IF proved beyond shadow of doubt, from the evidence on record

A case of rape, or a complaint of Zina or Fornication, can NEVER under any circumstance whatsoever, be inter-converted; a complaint of Zina can NEVER be converted to a complaint of Fornication & VICE VERSA

If it appears in evidence that a different offence is committed

The Presiding Officer can go forth to pass sentence for that offence, in accordance with the respective section/article

The Presiding Officer can NOT punish the offender for that offence; rather, a fresh case will have to be filled in accordance with the respective section/article. Moreover, NO complaint of Fornication can be filed against a person who is accused of Zina, or against whom a complaint of Fornication is pending or has been dismissed or who has been acquitted, or against any person who is a complainant or a victim in a case of rape, under any circumstance whatsoever. The same rule applies, mutatis mutandis, for complaints of Zina.

Punishment for Zina

Hadd: Stoning for Muhsan criminals; 100 Stripes for non-Muhsan criminals; Tazir: 4-10 years R.I., fine & whipping numbering thirty stripes

Hadd for Zina identical; NO tazir for Zina; in case of fornication, fine not exceeding Rs. 10,000 /- and imprisonment not exceeding 5 years, but, could be as less as the period already undergone

Punishment for attempting to commit an offence

Imprisonment of any description provided for the offence for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments

Imprisonment of any description provided for the offence for a term which may extend to one-half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence, or with both

Punishment for committing Qazf against an insane, adult, non-Muslim or adulterous woman

Fine, imprisonment of either description for a term which may extend to two years & whipping not exceeding 40 [not 30] stripes

NO punishment; filing a separate complaint under PPC 499, 500 & 501 is obscure

Discretionary powers of President & Provincial Government

No authority to remit Hadd sentence whatsoever

Can absolve even Hadd sentence

Proceedings of Lian

If either spouse refuses to undergo the procedure of Lian, he/she shall be imprisoned until he/she accepts to undergo the procedure of Lian; if the wife confesses of committing Zina, she shall be punished with hadd

Either spouse can refuse to undergo the proceedings of Lian; even if wife confesses, the Presiding Officer can NOT award the hadd sentence to her

A 12-16 year old girl commits Zina/Fornication

If she has not attained puberty, imprisonment of either description for a term which may extend to five years, or with fine, or with both; otherwise, she shall be punished with Hadd or Tazir, depending on the circumstances, forms of evidence, etc.

NO punishment at all

Sale, printing or engraving matter of the nature of Qazf

Fine, imprisonment of either description for a term which may extend to two years & whipping not exceeding 40 [not 30] stripes

NO punishment; filing a separate complaint under PPC 499, 500 & 501 is obscure

 

 

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] Interim Report on the Hudood Ordinances, In’aamullah, Khalid Masud, CII (Council of Islamic Ideology) 2006, p.176;  http//www.cii.gov.pk/Hudood/HOO_1979.pdf

[2] http://news.bbc.co.uk/2/hi/south_asia/5337752.stm

[3] http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/08/25/wpakistan25.xml

[4] http://www.cbc.ca/news/background/pakistan/mckenna_pakistan.html

[5] http://query.nytimes.com/gst/fullpage.html?res=990CE4DD133BF932A15755C0A9639C8B63

[6] http://www.geo.tv/zs/quickstop.asp

[7] Ibid