||What is Protection of Women (Criminal Laws Amendment) Act, 2006?|
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
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
The adulterer and the adulteress, scourge ye each one of them (with) a hundred
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
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
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
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).
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.
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
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
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 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.
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.
Translated By: Muadh Khan (Globalpeace@gmail.com),
Revised by www.islamicawakening.com