By Mufti Taqi Usmani

In the name of Allah, the Most Merciful, the Most Kind.

The legal implications of the ‘Protection of Women Bill’ which was recently passed by the National Assembly of Pakistan can only be known to the people who are well-versed with the intricacies of the legal system. But the picture being painted is that the bill is going to provide a remedy to those women who are facing severe oppression and hardships due to the Hudood Ordinance, and that it will also provide a great relief to countless women. It is also being claimed that the bill does not violate the injunctions of the Qur'an and Sunnah.

Let us take a serious and realistic look at the basic (fundamental) points mentioned in this bill, and observe how much they correspond with the claims being made. If we study the bill we would arrive at the conclusion that the bill contains only two substantive points:

Firstly, the punishment for rape (zina bil jabar) as ordained by the Quran and Sunnah, known as the Hadd, has been completely abolished in this bill. As such, a person who has committed rape cannot be given the punishment according to Shariah law and instead will receive a ta’azeeri punishment according to the Pakistan Penal Code (anything below hadd).

Secondly, the crime declared liable for ta’azeeri punishment in the Hudood Ordinance has been downgraded and declared merely ‘lewdness’, thereby reducing the severity of its punishment. Moreover, proving it has been made nearly impossible.

To abolish the punishment of rape (hadd) is a clear violation of the injunctions given in the Qur'an and Sunnah. However, it is being claimed that the punishment ordained by the Quran and Sunnah is only applicable when both the man and woman commit adultery with mutual consent; and that in the case of rape, the Qur'an and Sunnah have not prescribed any punishment. Let us first examine the extent to which this claim is correct:

1) The Holy Quran prescribes the punishment of adultery in Surah Noor as follows:

The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. (24:2)
In this injunction the word zina is absolute, including both zina bil-raza (adultery) and zina bil jabar (rape). In fact, it is common sense that rape is a more serious offense than what is done with free will (i.e. adultery). Thus, as this is the punishment prescribed for adultery with free will, the punishment for rape would be even more severe.

This injunction is inclusive of the woman who commits adultery, yet further along in the same surah (Noor) those woman who have been raped are exempted from any punishment. Therefore the Holy Quran says:

‘And if one force them (i.e. those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful.’ (24:33)

From this becomes clear that if any woman is forced to commit Zina, then she cannot be punished for this. Rather, only the one who has transgressed is to suffer the prescribed punishment (Hadd) as has been mentioned in Surah Noor, Ayat 2 (24:2).

2. The stated Hadd of 100 stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar it is further proven that a married person is to suffer Rajm, i.e., lapidating in the instance of his committing Zina. The Messenger of Allah sallallahu alaihi wa sallam did, and in this case did not differentiate between Zina bil Jabr (rape) and Zina bir-Radha (adultery with mutual consent).

Sayyidina Wail bin Hajr radiallahu anhu narrated that during the days of Allah’s Messenger sallallahu alaihi wa sallam, a woman had gone out to offer the prayer. On the way a man overcame and raped her. The woman cried for help and the man subsequently ran away. Thereafter the man admitted that he had raped the woman. The Messenger of Allah sallallahu alaihi wa sallam then inflicted the Hadd only upon the man, and not on the woman.

Imam Tirmidhi related this Hadith in his Jami with two different chains of transmission, and he declared the second chain of transmission as reliable. (Jami Tirmidhi, Kitabul Hadd, Bab 22, Hadith nr. 1453, 1454)

3. In the Sahih Bukhari is a tradition according to which a slave had raped a slave-girl. Sayyidina Umar radiallahu anhu then imposed the Hadd upon the slave, yet not upon the slave-girl. (Sahih Bukhari, Kitabul Ikrah, Bab 6)

It is thus proven from the Holy Qur’an, the Sunnah of Allah’s Messenger sallallahu alaihi wa sallam, the verdicts of the Rightly Guided Caliphs and the noble Companions radiallahu anhum that the punishments to be inflicted for both Zina bir-Radha (adultery) and Zina bil Jabr (rape) are the same. It cannot be said that the Hadd mentioned in the Holy Qur’an and the sacred Ahadith is to be inflicted in case of Zina bir-Radh alone; and not in case of Zina bil Jabr.

Now arises the question as to why there is so much insistence on abolishing the shara’i punishment for Zina bil Jabr? The reason for this is the extremely unjust propaganda which certain circles have been busily spreading ever since the Hudood ordinance was implemented. According to this (false) propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she must produce four witnesses to support her claim. If this condition is not met, she is arrested in place of the offender. This claim has been and is being repeated incessantly, such that even educated people have begun to consider it as true. In fact, it is precisely claim which was argued as justification (for the new bill) by our president during his speech.

Now if such propaganda is publicized so much so that even the children on the streets are talking about it, then those who speak out against will be perceived as insane. However, if anyone wishes to analyse the matter objectively, then I would request him to leave all of the propaganda aside for a moment, and consider the following points:

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 case in which a rape victim was punished because she was unable to present four witnesses. It was in fact impossible precisely due to the Hudood Ordinance that this instance did not occur: as according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Shariah punishment (hadd). Yet at the same time clause 10(3) was included to award the taa’zeeri punishment when one did not have four witnesses. Instead, the crime could be proven through one witness, medical examination and a chemical analysis report. Consequently, most rape criminals were awarded punishment due to this clause.

What we need to consider is that if a woman was unable to present four witnesses and was given punishment, which clause of the Hudood Ordinance resulted in this? If anyone claims that she was punished because of Qazaf (false accusation of rape), then the response is that the Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape allegation, she cannot be punished if she is unable to present 4 witnesses. No court of law can be in its right mind to award a punishment to her in this case. The other possibility could be that the woman is awarded punishment for committing adultery with mutual consent. And if the court of law takes such a decision it would not be merely because the woman was unable to present four witnesses, but because the court arrived at this decision after giving due consideration to all the available and alternative evidences. Clearly if a woman accuses a man of raping her but subsequent evidence proves that she committed adultery with her free will, thus proving her allegation to be false, then punishing her will not be against the spirit of justice. But since usually there is a lack of sufficient evidence to prove that the woman is lying, even these such cases are rare. In 99% of cases it so happens that the court of law is not convinced that the woman has been raped, yet since there is lack of sufficient evidence to prove her wilful involvement, she is granted the benefit of doubt and set free.


In fact, this can be verified very easily by doing an analyses of the cases executed under the Hudood Ordinance in the last 27 years. Other judges who have been involved in the proceedings have been of the same opinion: that even when a woman’s character is found to be doubtful she is not punished; only the man is punished.

Since from the very beginning allegations were being raised against the Hudood Ordinance that innocent women were being punished because of it, an American Scholar Charles Kennedy became interested and visited Pakistan in order to conduct a survey of the cases. He analysed all of the data related to the Hudood Ordinance cases and presented the results in the form of a report which has since been published. The results are consistent with the facts mentioned above. He writes in his report:

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 women is exonerated of any wrongdoing due to reasonable doubt rule.
(Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74)

This is what an unbiased non-Muslim scholar who has no sympathies towards the Hudood Ordinance observed with regard to such women who had actually consented to committing Zina, but then due to pressure from their families, tried to declare it as rape. They were not asked to produce four witnesses, but to furnish circumstantial evidence. On being unable to furnish the circumstantial evidence which would verify their claim of having been raped, only the male parties were punished, whilst the female parties went unpunished- as no transgression could be proven on their part. Hence there is no such clause in the Hudood Ordinance that if a woman fails to produce four witnesses to support her claim of having been raped, she is to be punished in place of offender.

It is however possible that during investigations conducted by the police, and before the matter could be brought to the court, some rape-victims were indeed wrongly and without any justification arrested as committers of Zina bir-Radha. This does not, however, stem from a flaw in the Hudood Ordinance. Unfortunately, the police in our country are quite prone to commit such acts of injustice while enforcing the law. This does not necessitate that the law itself be changed. In our country, keeping heroin is a crime. And it happens quite often that the police themselves hide heroin with innocent citizens only to blackmail them afterwards. Should we then—in order to resolve this problem—abolish the law which states that keeping heroin is a crime?

Through its decisions, the Federal Shar’iah Court had several times put an end to maltreatment which rape victims were forced to suffer at the hands of the police. However, if one was to assume that this risk of abuse had not yet been fully eliminated, then one could draft a law stating that no woman claiming to have been raped could be arrested under any article of the Hudood Ordinance, until the court had delivered its final judgment. Even then, one could make further laws prescribing punishment for one who wrongly arrests a rape-victim. But under no circumstances is it permissible to abolish the punishment which the Holy Shari’ah has laid down for Zina bil Jabr (rape).

Hence,

The way in which the bill under discussion abolishes the punishment for rape as prescribed by the Holy Shari’ah is in utter contradiction with the Holy Qur’an and the Sunnah, and is in no way related to the alleged maltreatment of women.

Lewdness:

The second significant feature of this bill is related to those articles which were added under the heading of ‘Lewdness’. The injunctions in the Hudood ordinance were such that if—in accordance with the principles stated by the Holy Shari’ah—there are four witnesses to the act of Zina, then the Hadd shall be inflicted on the offender, as per the fifth article of the Hudood ordinance. And if four witnesses cannot be provided, but the crime is still proven beyond doubt, then the offenders are to be given a ta’zeeri (i.e., discretionary) punishment. Now the Hadd for Zina bir Radha (adultery) for which four witnesses are a prerequisite, prescribed in the fifth article of the Hudood Ordinance, has been retained in the said bill. But in article 8 it states that this kind of offence is no longer under police jurisdiction, and that anyone should take four witnesses and lodge a complaint in the court, meaning that one cannot register a FIR (First Information Report) with the police. Thus the procedure of proving Zina with eligibility for Hadd has become increasingly difficult. Besides that, the discretionary punishment prescribed by the Hudood ordinance when four witnesses are not available has been altered as follows:

1. In the Hudood ordinance, the crime of Zina had called for taa’zeeri punishment. Now in the bill under review, this act is referred to as ‘Fornication’. This change is appropriate, as from the Qur’anic and Sunnah point of view, it is rather difficult to prove this offence as Zina in the absence of four witnesses. Hence, under such circumstances, this act should indeed be referred to as anything less than Zina. This was indeed a weak point in the Hudood ordinance, and the removal of this weakness had been strongly recommended by the scholars.

2. According to the Hudood ordinance, this offence could be awarded a sentence of maximum ten years. Now, the maximum has been reduced to five years. However, since it is a discretionary punishment only, this reduction is not in contradiction with the Qur’an and the Sunnah.

3. According the Hudood ordinance, Zina was an offence that fell under the jurisdiction of the police, whereas according to the bill under review it does not fall under the jurisdiction of the police any more. Now one cannot go to the police station and file an FIR in the case of such an offence, instead one will have to lodge a complaint in court. At the time of lodging the complaint, one will have to produce two eye-witnesses, whose statement under oath shall be immediately recorded by the court. Thereafter, if the court deems to have sufficient reason to further pursue the matter, it will issue a subpoena to the accused. Then, as far as further proceedings are concerned, the court will content itself with demanding a personal relative from the accused to present him/herself at the court. If the court then deems to have insufficient reason to further pursue the matter, the case shall be dismissed then and there.

Thus proving the offence of lewdness has been made so very difficult, that there is almost no way one could get punished for it.

First of all, according to the Islamic injunctions, lewdness and Zina are crimes not just against an individual, but against the whole society and the state. Hence, this crime ought to be under the jurisdiction of the police. No doubt, whilst keeping it under jurisdiction of the police, one must keep in mind the occasionally questionable behaviour of our police, and one must ensure that innocent couples are not put to trouble. The Federal Shari’ah Court has given several judgements after which this risk has been eliminated to a great extent (as said earlier). Throughout those twenty-seven years during which this offence had remained under the jurisdiction of the police, there were hardly any cases where innocent people had been troubled (by them). But in order to further eliminate this risk, there should be a law where this kind of investigation can be made by an officer whose rank is not less than that of an SP. Besides, there should be no arrest without prior order from the court. If one would implement these steps, then the risk would be fully eliminated.

Secondly, obliging the plaintiff to immediately produce four witnesses to enact the Hadd, or two eye witnesses in case of lewdness, seems to be a quite unique feature of our martial law. Nowhere in the whole legal system pertaining to testimony—apart from Hudood—has there been mention of a certain minimum number of witnesses. Sometimes decisions are made in total absence of eye-witnesses, and only on account of circumstantial evidence. Hence in the said offence, the reports of physical examinations and chemical analysis are important pieces of evidence.

From the Shar’iah perspective, taa’zeeri punishment can be awarded even with availability of only one witness and also in presence of circumstantial evidence. Therefore, in the case of taa’zeer, the requirement of two witnesses at the time of complaint registration is practically the same as providing unnecessary protection to the criminals committing lewdness.

As such, making it a condition that from such a criminal the court of law will not be authorized to demand any bail except a personal bond is like impeding justice. Different cases come with different situations, which is why as per the military Act 496 the court is already authorized to free the criminal on personal bond if the situation so warrants and similarly it can ask for additional guarantees if it deems necessary. This authority lies with the court even in case of minor crimes, yet to invalidate it for a crime like lewdness is not at all appropriate. What remains outstanding is that if the court does not find sufficient substance in favor of the case then it will dismiss the case. Hence, the court already has this authority under the Criminal Act clause 203. Why must the same clause be included in this bill again remains a mystery.

4. According to Hudood Ordinance, if the necessary evidence to enforce Hadd is not found against someone, but the crime is in any case proven, then he may be subjected to taa’zeeri punishment as per clause 10(3). But as per the bill under consideration, clause no. 203 which has been added in the Criminal Act (in para 6) states that if someone is acquitted in a case of Hadd, then they cannot be tried in a case of lewdness.

It is now obvious that the extremely strict conditions laid down for enforcement of Hadd are sometimes not fulfilled merely due to technical reasons. In a situation when strong evidence is available to prove the offense, the court dealing with the rape case cannot award any punishment at all (under this new bill). In fact the court cannot even register a case of lewdness against the criminal. What we need to understand is that preventing the courts from registering a case against such a person is nothing but encouraging lewdness.

Similarly, in clause 12 A of the proposed bill it states that if someone is accused of rape, then his case cannot be converted into a case of lewdness at any point in future. As a consequence, if a woman makes an allegation of rape against someone, but some doubt remains in proving that the act was committed by force, the criminal will be released and not even a case of lewdness will be made against him.

At a time when zina bil raza (adultery) was not a crime, the rape criminals used to adopt this excuse that what they did was with the free will of the woman. Therefore, if the court suspected the woman’s connivance, the case would be dismissed and the accused set free. The Hudood Ordinance negated this line of defence for the person accused of rape, because adultery was declared a crime even if it was done consentually. And thus the court which was hearing the case of rape could also award him the taa’zeeri punishment. However, this new amendment has created a situation almost identical to before, that if someone says that he committed adultery with the woman’s consent and succeeds in creating doubts, then none will be able to bring him to justice. The court hearing this case would not be able to take any action due to the above clause (12A) which states that it is no longer authorised to convert a case of rape into a case of lewdness. And if we suppose a case of lewdness is registered afresh, then even if we ignore everything else, it will be impossible to do so for it is mandatory to bring two eye-witnesses along to the court in order to register the complaint, while in this case two eye-witnesses are not available. As a result such a person will go scot-free and no court of law will be able to take any new action against him.

Now arises the question, is the kind of lewdness which has been declared a criminal offence indeed a criminal offence? If yes, then why have such laws come into being which not only protect the offence but also save the offender from punishment as well?

Some further amendments to the Hudood Ordinance

There were made some further amendments made to the Hudood Ordinance, for example:

1. According to one statement of the Noble Prophet sallallahu alaihi wa sallam, if a person has been awarded Hadd as a result of his offence, then no one has the right to reduce or forgive the sentence. Thus according to article 20, point 5 of the Hudood ordinance, the authority of foregoing, altering or reducing a punishment which the law has given the provincial governments, shall not be applicable in case of Hudood. One significant change in the bill under review is that article 20 clause 5 of the Hudood ordinance has been annulled. This means that if any court awards Hadd, then the government is authorized to alter or reduce this punishment. This amendment is clearly against the injunctions of the Holy Qur’an and the Sunnah. In the Holy Qur’an it states:

‘And it becometh not a believing man or a believing woman, when Allah and His messenger have decided an affair (for them), that they should claim any say in their affair.’ (Surah Ahzab, Ayat 36)

There is a well-known incident in which which a high-ranking companion had interceded with the Noble Prophet sallallahu alaihi wa sallam for a woman who had committed theft (as a result of which she deserved Hadd). The Noble Prophet sallallahu alaihi wa sallam reprimanded the companion and said:

‘Had Muhammad’s (sallallahu alaihi wa sallam) daughter committed theft, I would have cut her hand off.’ (Sahih Bukhari, Kitabul Hudood, Bab 12, Hadith nr. 6788)

2. In article 3 of the Hudood ordinance it was stated that the regulations in this ordinance would be given superiority over the other laws, meaning that if there were any contradiction between the regulations in this ordinance and other laws, then the regulations of the Hudood ordinance would be given precedence. This article, which had actually resolved many legal complexities, and because of which oppressed women had been considerably less vulnerable, has now been cancelled in the said bill. So if, for example, a man had divorced his wife, then, according to the (governmental) family law, the divorce would not be enacted until the notice thereof had been sent to the union council- whereas- if seen from the Shar’iah point of view, the woman would be free to remarry once she had passed her iddat (menstrual cycle). The family law however would not recognise such a divorce unless the union council had received a notice in this regard. That means the woman would still be considered as her former husband’s legal wife. Thus, she would be unable contract a new marriage anywhere else. There are many such incidents where the husband did not send a notice to the union council, and the woman, considering herself as a divorcee, contracted a new marriage after having passed her iddat.

Now (consider if) her malicious husband lodges a case of adultery against the women because as per the family law she was still his wife. When such cases were reported, the Shariah bench of the Supreme Court used the Hudood Ordinance and its same clause no. 3 to order release of these women. It would be argued that Hudood Ordinance was been formulated in accordance with the Shariah and Shariah allowed such woman to remarry, therefore, the family law would not be applicable in case of her marriage because the Hudood Ordinance superseded all other laws.

After repealing this clause and especially after annulling the definition of nikah (marriage) from the Hudood Ordinance through this bill, once again there are possibilities that the women will suffer in the new situation.

We raised this issue in the Ulema Committee and had finally agreed that it would be replaced by the following clause:

In the interpretation and application of this Ordinance the injunctions of Islam as laid in the Holy Quran and Sunnah shall have effect, notwithstanding anything contained in any other law for the time being in force.

But this clause is missing from the bill which has now been passed by the National Assembly due to which many problems can now be expected.

3. In the clause 14 of Qazaf Ordinance the procedure of La’an as described in Quran, is mentioned. According to this if a man accuses his wife of adultery and fails to produce 4 witnesses, then on the woman’s demand he must take an oath in the process of La’an. After oaths from both sides have taken place the marriage will dissolve. The Qazf Ordinance states that if the man refuses to undergo La’an he will be kept under arrest until he agrees. In the new bill this clause has been removed meaning that if the man does not agree undergoing the process of La’an, then the woman will be left helpless. She will neither be able to prove her innocence through La’an nor will she be able to dissolve her marriage.

Moreover, the Qazaf Ordinance states that if during the process of La’an the woman admits committing adultery then she will be subjected to the punishment of adultery. The new bill has also removed this part even though it makes no sense to not punish a person after she has pleaded guilty - and this while the process of La’an is initiated at the behest of the woman with no one forcing her to confess. Therefore this part of the bill is also against the injunctions of the Holy Quran and Sunnah.

4. In clause 20 of Hudood Ordinace it was stated that if through evidence it was proven that the offense committed was a crime punishable by a law other than the Hudood Ordinance, then if the crime fell in the jurisdiction of this court it could award punishment to the accused. This clause was to simplify the complex legal procedures. But the bill under discussion has revoked this authority of the court.

The situation is such that all punishable crimes similar to adultery/rape have been taken out of the Hudood Ordinance and incorporated in the Pakistan Penal Code. Hence, the result of this amendment is that if any man has been accused of Zina which calls for Hadd, but after hearing the witnesses it turns out that the man had compelled the woman, or, if Zina could not be proven, but it could be proven that the man had abducted the woman, then the court can neither award a punishment for rape, nor for abduction. Rather, the court will let the culprit go, knowing perfectly well that he had kidnapped the woman and raped her. Thereafter the culprit will either remain free, or another complaint will have to be lodged at a later time, so that the court takes up its proceedings again.

Legislation is a very delicate process which requires one to sit with a calm, unbiased mind and consider all aspects and possible dilemmas. If one changes laws as a consequence of propaganda, or because of being overawed by catchy slogans, then this results in something similar to the (amendments) above. Thus the courts will get entangled with all sorts of legal intricacies and take considerable time to construe and interpret the new laws. Cases will be shuffled between the courts, and it will become near impossible to redress the grievances of the oppressed.

Summary:

Apart from a few deficiencies discussed in detail earlier, the main lacunas of the bill are as follows:

1. The way in which the Hadd of Zina bil Jabr (Rape) has been abolished in the aforementioned bill is completely against the injunctions of Quran and Sunnah. The issue of injusticed committed by police against women could be addressed by declaring the arrest of the complainant under any clause of the Hudood Ordinance to be a criminal offence, until the case is decided by the court.

2. Once a case regarding Hadd is decided by a court but then giving the right to the provincial government to condone or reduce the punishment given by the court is against the Qur'an and Sunnah. Therefore, the right granted to the government to reduce the punishment by removing the clause 20 section 5 of the Zina Ordinance is in disregard of the Qur'an and Sunnah.

3. By declaring adultery (Zina bil Raza), which is liable for Hadd, and lewdness to be beyond the jurisdiction of police, these crimes have been virtually made offences for which punishments cannot be implemented at all.

4. By disallowing a single court to give punishments according to evidences proving multiple or different kinds of offences will only encourage the criminals. As a result cases will switch from one court to another and judicial complications will arise.

5. By amending the Qazaf Ordinance to excuse a man from the procedure of La’an, even on the demand of a woman, thus leaving her astray, is against the injunctions of Qur'an.

6. The amendment in the Qazaf Ordinance that a woman cannot be punished even after a voluntary confession is in disregard of the Qur'an and Sunnah.

We earnestly appeal to the members of the parliament and to those at the helms of affairs to consider these submissions with an open heart to improve the bill and relieve the nation from the dilemma it is faced with. 
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Translated By: Muadh Khan (Globalpeace@gmail.com), Revised by www.islamicawakening.com