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AMENDMENT IN
HUDOOD LAWS
The Protection of
Women’s Rights Bill
An Appraisal
Mufti Muhammad Taqi Usmani
Former Member, Shariah
Appellate Bench,
Supreme Court of Pakistan
Translation/Adaptation:
Shafaq Hashemi
www.DeenEislam.com
CONTENTS
·
Foreword Senator Prof. Khurshid Ahmad,
Chairman,
Institute of Policy
Studies, Islamabad.
·
Introduction .
·
Zina bil-Jabr
·
Qur’ānic
Injunctions
·
Prophetic
Traditions
·
Abolition
of Hadd and
·
Amendments Repugnant to
the Injunctions
of the
Qur’ān and Sunnah.
·
Amendments Regarding
Fornication and
Their Implications
·
Other
Amendments in
·
Conclusion
FOREWORD
With the
passage of the Protection of Women’s Rights Bill by the Parliament on 15
November, 2006, the ongoing debate in Pakistan
on Hudood Laws has entered a new phase. The official circles insist that the Bill
is in conformity with the Qur’ān and the Sunnah and that the amendments
made in the Hudood Laws would facilitate in providing justice to the oppressed
womenfolk of Pakistan.
The Government was supported in passage of the Bill by the Pakistan People’s Party
MNAs from amongst the Opposition members, while Muttahida Majlis-i-Amal has
been of the view that the Bill was in clear violation of the injunctions of the
Holy Qur’ān and the Sunnah and as such they opposed it tooth and nail.
What exactly is the true position? It
may not be very easy even for the educated, what to say of the common man to
fully grasp the legal nuances of such a legislation. Unfortunately, however,
much dust has recently been raised on the Hudood Laws by a certain segment of
our society in pursuance of its political agenda and with a well-conceived
objective of complicating the entire issue. This has polluted the atmosphere
and made objective evaluation even more difficult. Yet the challenge has to be
faced.
Before
the passage of the Bill, its text remained under review for nearly two months,
first with the Select Committee of the National Assembly and then with the
Ulama Committee formed by the leader of the ruling party and the leader of the
opposition. During this entire process of debate, scrutiny and review, more
than one draft was prepared and discussed. Hon’ble Justice (R) Maulana Muhammad
Taqi Usmani was also a member of this Ulama Committee. He is thus an insider,
who is well aware of the entire proceedings not only of the Committee, but also
of the various drafts which were prepared and thoroughly examined by it.
The Institute
of Policy Studies has earlier
published the text of a lecture by Maulana Muhammad Taqi Usmani on “Hudood Qawaaneen: Maujooda Bahs Aur Aaindah
Laaihai-i-Amal” (Hudood Laws: Current Debate and the Future Course of
Action). We feel privileged to bring out the present tract as a follow-up of
the earlier one. It is based on an indepth review specially written for us by
the learned Justice (R) Maulana Muhammad Taqi Usmani, in which he has discussed
in a simple yet scientific and legal manner the Bill that the National Assembly
passed on 15 November 2006.
The Urdu Version of the write-up has since been released and published by the
national press.
We are
grateful to Maulana Taqi Usmani for the great service he has done in the
supreme national interest by timely contributing to the national debate through
this highly useful article. We hope and pray, it would help in clearing up many
a cobwebs and enabling all seekers of truth to understand the whole issue in
its true perspective.
Prof. Khurshid
Ahmad
Chairman
بسم
اللہ الرحمٰن
الرحیم
The National
Assembly of Pakistan has recently passed the Protection of Women’s Rights Bill,
amending the Hudood 
Laws.
Only those qualified in legal nuances can rightly review the legal implications
of the Bill. Well-calculated attempts are, however, being made to let the public
believe that the Bill is intended to redress the injustices, which the Hudood
Ordinance had allegedly caused to the womenfolk of Pakistan
and now they would have all their rights restored. It is also being claimed
that the Bill contained nothing repugnant to the Qur’ān and the Sunnah.
Let
us sincerely and rationally examine the main points of the Bill and see how far
reaffirm the assertions of its authors and protagonists can hold the ground. An
analytical review of the text brings to fore its following two substantive
aspects:
(i)
The
first important aspect is that the Bill has totally abolished the ultimate
punishment that the Qur’ān and the Sunnah have decreed for Rape (Zina bil- Jabr) and for which the
Qur’ān uses the term ‘Hadd’.
According to the Bill, nobody accused of
Zina bil-Jabr can be awarded the Shariah punishment, but his case would be
handled under the penal laws (Ta’azeer)
only.
(ii)
Secondly, the crime mentioned in the Hudood Ordinance
as permissible under ‘Ta’zeer’,
has now been classified as ‘Fornication’ and its punishment reduced and it
has been made difficult to prove.
Now, let us examine carefully each one of these two
substantive aspects of the Bill in question.
To totally do away with Hadd,
the Shariah punishment of Zina bil-Jabr,
is a clear violation of the injunctions of the 
Qur’ān
and Sunnah. It is being claimed that the Hadd prescribed by the Qur’ān
and Sunnah is applicable only when the man and woman have committed Zina (Fornication or Adultry) by mutual
consent, but there is no Hadd
punishment for the crime committed without the woman’s consent. Let us see how
far this assertion is correct? In Āyah 2 of Surah: 24, Al-Nūr, the Book of God says:
الزانیۃ
والزانی
فاجلدوا کل
واحد منھما
مائۃ جلدۃ
(Those who fornicate — whether
female or male — flog each one of them with a hundred lashes).
The word ‘Zina’ used in this Āyah is absolute
in its meaning and includes both ‘Zina
bil-Jabr’, or Rape, as well as Zina
bil-Ridha’, or Fornication by mutual consent. In fact, the common sense
demands that if the Qur’ānic punishment of Hadd is applicable in case of Fornication, it must also be awarded
rather in a more severe manner, in case of Rape, which is a much more heinous
crime.
The above
Āyah also mentions the female who fornicates, but later on in the same
Surah those women, who have forcibly been molested/raped have been exempted
from the enforcement of Hadd. The Holy Qur’ān says:
ولا تکر
ھوا فتیا تکم
علی البغاء ان
اردن تحصنا
لتبتغو ا عرض
الحیوۃ
الدنیا و
من
یکرھھن فان
اللہ من بعد
اکرٰھھن غفور
رحیم۔
(And do not force
your maids to prostitution for the sake of the benefits of worldly life when
they desire chastity. And if anyone compels them to prostitution Allah is the
Most Pardoning, the Most Merciful) (Surah 24: Al-Nur,
33).
The above Āyah
makes it absolutely clear that a woman who is a victim of forcible sexual act,
or Rape, would not be punished, but the male, guilty of the crime, would face Hadd,
or the punishment of one hundred lashes, as mentioned in Āyah 2 of
Surah Al-Nūr above.
(ii)
The punishment of one hundred lashes has been prescribed for unmarried
persons. As for married individuals found guilty of adultery, they are to face
the punishment of ‘Rajm’, or stoning
to death. This has been decreed by the Sunnah of the Holy Prophet (PBUH) and
reaffirmed by the consensus of the Muslim Jurists through the ages. The Holy
Prophet (PBUH) had enforced this punishment both for those who committed
adultery by mutual consent, as well as in case of the married man found guilty
of forcibly dishonouring a married woman. The following Hadith (Tradition of
the Holy Prophet may be cited in this context:
It has been
narrated by Wā’il bin Hujr that during the life time of Sayyidna
Rasūl Allah a woman set out of her home to perform regular Prayer. A
person forcibly got hold of her in the way and committed adultery. As she
raised hue and cry, the man fled away. Later on, however, he admitted of his
crime. On this the Holy Prophet (PBUH) enforced Hadd of Rajm on him,
while the woman was awarded no punishment.
(Jāmi’e
Imām Tirmizi, Kitāb Al-Hudood, Chapter 22,
Hadith # 1453 &
1454).
(iii) “A slave committed Rape
with a slave woman. The Second Caliph Hadhrat Umar punished him with Hadd but spared the woman who was
wronged without her consent”.
(Sahīh Al-Bukharī,
Kitāb Al-Ikrāh, Chapter 6).
From the foregoing it is established without any doubt that
in the light of the injunctions of the Holy Qur’an and Sunnah and the decrees
of the Holy Prophet (PBUH) and his Rightly Guided Caliphs (Khulafā Al-Rāshidūn), the Hadd of Zina is effective
as much in case of Zina bil-Jabr as
it is in case of Zina bil-Ridhā.
It is, therefore, hardly justified to claim that the punishment of Zina, prescribed by Shariah is
applicable only in case of Fornication with mutual consent and not in case of
Rape.
Now, the question arises why so much pain has
been taken to do away with the Hadd
for Rape? The basic reason for this is the highly misleading propaganda against
the Hudood Ordinance which a particular section of our society has indulged in
since the promulgation of the Ordinance. According to this propaganda, a woman
against whom the crime of Rape has been committed is allegedly required under
the Hudood Ordinance to produce four witnesses in the Court to prove her charge
against the perpetrator of the crime and in case of her failure she is herself
to be held guilty and would be put behind the bar. An absolutely false and
mischievous propaganda like that has been made tirelessly and with all impurity
against the Ordinance, which has led even those occupying positions of
responsibility to succumb to this brazen lie. Even the President in his address
to the nation mentioned this as the sole justification for the so-called
‘Protection of Women’s Rights Bill.
When something, howsoever rubbish and
false, is repeated vociferously through the media and becomes the talk of the
town, even a person of learning and intellectual integrity trying to dispel the
wrong notion and present the real truth is not often heeded. With all sincerity
I would like to invite the attention of those keen to dispassionately look into
the matter to please ignore for a while the propaganda let loose by our
national media and ponder a little over my submissions which follow.
The
factual position is that in my capacity first as the Judge of the Federal
Shariah Court and then as a Member of the Supreme
Court’s Shariah Appellate Bench, a position held for long seventeen years, I
have been dealing with the cases and appeals lodged under the Hudood Ordinance.
For such a long period of time I came across not a single case in which a
woman victim of Zina bil-Jabr might
have been convicted because of her failure to produce four witnesses in support
of her complaint. That was simply not possible under the Hudood Ordinance,
because the condition of four witnesses, or the admission of the guilt by the
accused himself, has been provided for those found guilty of Zina bil-Jabr
liable for Hadd punishment. No such condition is, however, there for Zina
bil-Jabr punishable by Ta’zeer under Section 10(3) of the same
Ordinance. To prove the guilt even a single witness, plus medical
examination and the report of the chemical examiner, would suffice under this
Section to bring the male culprit to book and that is how most of those accused
for Rape were always punished under Section 10(3). The victim (woman) was not
punished at all.
One wonders about the audacity of those
spreading the lie that the female victims of Rape were punished under the
Hudood Ordinance because of their failure to produce four witnesses! Would
they please let us know under which Section of the Ordinance those victims were
punished?
They couldn’t have even been punished under the ‘Qazf Law’, because its Section 3 (2)
clearly states that a person approaching the law authorities with the complaint
of Zina bil Jabr can not be punished
under the ‘Qazf Law’ simply
because he or she has failed to produce four witnesses in support of his/her
petition. No court of law can be expected to be so irrational as to convict a
petitioner on that account. Alternately, she can be convicted for the offence
of Zina bil-Ridha, not due to her failure to produce four witnesses, but
only because the court is convinced after examining the case and the available
witnesses that she is guilty of falsely accusing someone of dishonouring her
forcibly, while the crime has actually been committed by her consent. It is absolutely in keeping with the norms of
justice and fairplay to punish a woman found guilty of falsely implicating a
man for forcibly dishonouring her when it is established by the careful
examination of the case that she was involved in Zina with her full consent. It has, however, been very rare even in
such cases to punish the woman. In almost 99% of such cases, the court, though
not fully convinced about the veracity of her claim about the use of force, has
set her free giving her the benefit of doubt because of the lack of sufficient
evidence justifying her conviction.
An impartial survey of the cases
registered and decided under the Hudood Ordinance during the last 27 years
would confirm that all the Hon’ble Judges, who presided over such cases,
including myself, had generally awarded punishment to the male partners in
spite of the dubious nature of the female characters involved. Women
have always been given benefit of doubt.
The
propaganda against the Hudood Ordinance was launched by a powerful lobby of the
country from the day it was passed. It was repeatedly claimed that the
Ordinance violated the women’s rights and denied them justice. Impressed by
such propaganda, Charles Kennedy, a US Scholar, visited Pakistan
to ascertain the truth and meticulously examined all the cases decided under
the Ordinance during the first five years of its enforcement. As a result of
his painstaking labour he produced a well-researched Report. It was based on
the data of his survey of the Hudood cases decided till then. Charles Kennedy in his Report noted:
“
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
wrong doing due to reasonable ‘doubt rule’.”
(Charles Kennedy, “Islamization
of Laws and Economy:
Case Studies on Pakistan”,
P. 74).
The above findings of an impartial
non-Muslim Scholar, who can’t obviously be expected to have any soft corner for
the Hudood Laws, relate to those women who were evidently guilty of wrong-doing
with their consent, but under the pressure of their family members lodged the
cases of Rape against their male partners. The Federal
Shariah Court did not ask them to produce four
witnesses, but demanded them to furnish circumstantial evidence in support of
their claim. They failed even to do that and convince the FSC of their being
victims of force. In spite of this, they were allowed to go scot-free, while
their male partners were convicted.
This goes to prove that the
much-maligned Hudood Ordinance had no provision whatsoever seeking the female
victims of Rape to produce four witnesses in support of their case, or else
face conviction.
Some exceptions may have been there,
where the Police might have colluded with influential male culprits and tried
to circumvent the law before the case could reach the court and registered a
case of Zina bil-Ridha against the
woman approaching it to lodge FIR for Zina
bil-Jabr. But such police
high-handedness has nothing to do with any flaw in the Hudood Ordinance itself.
Our Police Department is known to commit such violations of the law in respect
of almost all crimes and subvert the hapless victims’ attempts to seek justice.
We know that innocent victims are often put behind the bar on the false charges
of keeping Heroin in their possession and similar other charges. Does
this mean that we must abolish the law banning drug trade, or similar other
offences because of the corruption or misdemeanors of a few Police Officials?
The Federal Shariah Court
through its judgments had, nevertheless, tried its bit against such Police
high-handedness. But to foreclose the chances of all such risks a law can be
enacted to prevent the arrest of the female petitioner of Zina bil-Jabr under the Hudood Ordinance till the announcement of
the final verdict. The law should also provide for exemplary punishment to
anybody found guilty of apprehending the hapless petitioner. There can,
however, be no justification whatsoever to abolish under any pretext the Hadd prescribed by the Qur’ān and
Sunnah for Zina bil-Jabr.
As such it is established without any doubt that the way the Shariah Hadd
for Zina bil-Jabr has been done away with in the so-called Protection of
Women’s Rights Bill is in total violation of the injunctions of the Qur’ān
and the Sunnah. Moreover,
this has no relevance with the
redressal of the wrongs being committed against women.
Another significant aspect of
the Bill in question relates to Sections included in it under the subhead
‘Fornication’. Section 5 of Hudood Ordinance made the fulfillment of the
Shariah condition of four witnesses compulsory to award the Hadd punishment for Zina bil-Ridha.
In case, however, this precondition was not fulfilled but the offence was
otherwise proved, the culprit was to be punished under Ta’zeer. The Bill
in question, while retaining the Shariah punishment for Zina under Section 5 of the Ordinance, for which the condition of
four witnesses was made compulsory, declares through its Section 8 the offence
non-cognizable. It obligates the defendant to directly lodge her/his complaint
in the court. As the offence has been made non-cognizable, no FIR can be
lodged with the Police and that is how the crime of Zina bil-Ridha has safely
been removed from the application of Hadd. Similarly, the Ta’zeer
punishment provided for Zina in the
Hudood Ordinance (in case of the absence of four witnesses) has been diluted by
the following amendments:
(i) The Hudood
Ordinance provided for imprisonment upto ten years for the offence of Zina punishable under Ta’zeer. The
current Bill has reduced that period to five years, which though not contrary
to the Qur’ān and Sunnah, is tantamount to giving further relief to the
perpetrators of the offence.
(ii) Under the Hudood
Ordinance, Zina was a cognizable
offence. Under the Bill in question it has been made non-cognizable and hence
the complainant of this heinous crime, have been denied the right to lodge FIR
with the Police. They have further been burdened
to produce two eye-witnesses while registering their complaint direct in the
Court. The court has been authorized to record their statement under Oath
and if convinced that sufficient grounds existed justifying further action, can
summon the culprits. But the culprit has been spared to provide any
surety to ensure his presence in the court other than his personal undertaking.
In the event no basis is available to proceed with the case further, the
court can dismiss it then and there. That is how the culprit has been
provided the maximum facilities possible to avoid punishment. The offence of Zina (Fornication) has thus been made
too difficult to prove and mild enough for the offender to feel secure, or
rather encouraged.
Those with even the rudimentary knowledge of the
Qur’ān and the Sunnah are well aware that under the Islamic Law Zina and debauchery are crimes against
the society and the state and not just against an individual. This means that
these constitute cognizable offences. However, because of the lack of trust
over the Police in our social set up, it is understandable that the innocent
couples should have also been guaranteed full protection against any
unwarranted Police harassment. The Federal Shariah
Court, in a number of its judgments has actually
made significant recommendations to effectively check such occurrences. Zina
had remained a cognizable offence during the last 27 years and due to the
effective action by the FSC the rate of harassment by the Police had decreased
many fold. In order to totally eliminate the chances of public harassment
by the Police, the Bill in question could have further provided that Zina
should not only be a cognizable offence, but also should be investigated by a
senior Police Officer of the status of SP and no arrest should be made without
the court’s order. Such a provision could have served to totally eliminate the
risk of Police harassment while ensuring better prospects of justice to the
victims. Unfortunately, however, instead of further strengthening the victims’
hands against the offenders and the high-handedness of the Police, the crime
has been made non-cognizable and the criminal awarded ample opportunities to go
scot-free.
Secondly, it is a cruel joke to impose on the petitioner
the responsibility of producing four eye-witnesses in case of Hadd and two in case of Ta’zeer. This
new provision of the Bill is contrary to the norms of justice and sets a new
precedence in the history of our Criminal Law. Pakistan’s
entire system of evidence provides that in the absence of the eye-witnesses
judgments are to be based on the basis of circumstantial evidence. That is why
medical examination and the chemical examiner’s report in such important cases
form an integral part of our Witness System. According to Shariah, punishment
under Ta’zeer can be imparted on the basis of even a single reliable
witness, plus the circumstantial evidence. It is, however, intriguing why the
complainant has further been penalized to compulsorily produce two witnesses
while lodging his or her complaint. Isn’t it tantamount to providing further
protection to the culprit?
Similarly, it is like tying the hands of the court by
giving the culprit the facility of providing his personal undertaking and no
other surety for ensuring his availability in the court. The situation differs
from case to case and that is why Section (496) of Pakistan’s
Criminal Procedure Code authorizes the court either to bail out the culprit on
personal undertaking if the circumstances so demand, or to ask him also to furnish
guarantees from others. The court has been given this option even in minor
offences. It is, however, surprising to see that it has been denied the same
option in case of a much more heinous crime like Fornication (Zina).
As for the provision allowing the court to dismiss the
case in the absence of sufficient ground, Section (203) of the Criminal
Procedure Code already authorizes our courts in this respect. The same
provision has, however, been inserted in the Bill for reasons best known to its
authors.
(iii)
Under the Hudood Ordinance, a person proved guilty of
Fornication, in the absence of the necessary preconditions justifying the award
of the ultimate punishment of Hadd,
could be punished under Ta’zeer according to Section 10(3) of the
Ordinance. According to the Bill in question, however, an addition has been
made in Section (203) of the Criminal Procedure Code and its Clause (6) now
provides that such an offender, though proved guilty of Fornication, could not
be punished under Ta’zeer.
The hard preconditions laid down by the Qur’ān and
Sunnah for awarding Hadd punishment
of Fornication, if not fulfilled, do not evidently allow the culprit to be
spared even though strong circumstantial evidence may exist proving him guilty.
The Shariah Law authorizes the court to award him punishment according to the
severity of his crime. Doesn’t this mean that the Bill in question by
absolving the culprit of all legal actions and preventing the court to proceed
against him has strengthened the hands of the criminals, provided protection to
crime and tried to promote promiscuousness and anti-women offences in the
society?
Similarly section 12A of the bill provides that no case
where an allegation of rape is made shall at any stage be converted into a
complaint of fornication u/s 496B of the Pakistan Penal Code.
Before the passage of the Hudood
Ordinance, those accused of Zina bil-Jabr
often tried to escape punishment by pleading that they did commit Fornication
but with the consent of their female partners. If the court also suspected the
claim to be true, it used to set them free. The Hudood Ordinance had offered
the much-needed respite to the women suffering the worst humiliation of Rape,
and the man guilty of the crime was left with no room to claim that the heinous
act was done with the consent of woman, as Zina,
even if committed by mutual consent, remained a cognizable offence.
Even if the accused pleaded that he had committed zina with
the consent of the woman the court was authorized to punish him of zina liable
to Taazir u/s 10(2) of the Hudood Ordinance 1979 because of his admission that
he had committed the offence with the consent of the woman, while the woman
would not be punished under the same section because her consent was not proved
merely on the admission of the accused.
The amendment proposed in the
recent bill has reversed the situation and restored the earlier position. Now if the culprit of rape declares with all
impunity before the court that he had committed fornication but with the consent
of the woman and creates some doubt in using force against the female he may
well escape any punishment because section 12A of the bill prevents the court
from being converted the charge against him from rape to fornication. The bill is though ambiguous about whether or
not a fresh complaint of fornication may be lodged against him but even if it
is legally possible to lodge a complaint of fornication against the culprit, it
is practically impossible for the woman to pursue such a complaint because it
will be an admission on her part to be a consenting party which is in reality
against the fact. Similarly no one else
can lodge such a complaint against the culprit because the bill requires him or
her to produce two eye-witnesses at the time of lodging the complaint, while in
the situation mentioned above there is only an admission of the accused and not
the eye-witnesses that may prove his offence.
Consequently, the man accused of doing her wrong will be spared to face
a criminal case against him in a court of law.
One may ask the authors and the champions of the
Protection of Women’s Rights Bill the simple question: Whether Fornication is a
crime or not? And if it is a crime, why have they inserted these strange
provisions in support of the crime and offenders?
The Bill in question has brought about some more
amendments in the Hudood Ordinance as briefly noted below:
(i)
According to an injunction of the Holy
Prophet (PBUH), nobody is authorized to commute, or reduce the punishment of a
person sentenced of Hadd by a court
of law. The Hudood Ordinance under Section 2, Clause (5), had, therefore,
provided that the powers given to the Provincial Government in Chapter 19 of
the Criminal Procedure Code to change or reduce a punishment was not applicable
in case of Hadd. The Bill in question
ventures to make yet another significant and serious amendment by abolishing
Section 2(5) of the Ordinance, which simply means that the government of the
day has been empowered to commute or reduce the Hadd punishment awarded to any culprit by a court of law.
The above
amendment is a clear violation of the following injunction of the Holy
Qur’ān:
و ما کان
لمؤمن ولا
مؤمنۃ اذا
قضیٰ ا للہ و
رسولہ
امراً ان
یکون لھم
الخیرۃ من امر
ھم و من یعص
اللہ و رسو لہ
فقد ضل ضلٰلاً
مبینا۔
(It
does not behove a believer, male or female, that when Allah and His Messenger
have decided an affair they should exercise their choice. And whoever disobeys
Allah and His Messenger has strayed to manifest error.).
(S.33: Al-Ahzāb, 36).
This should
remind us of the famous incident when the Holy Prophet (PBUH) had reprimanded
one of the closest and dearest of his Companions Hadhrat Usama bin Zaid for
pleading mercy in case of a woman convicted under Hadd. The Holy Prophet had then declared: “Allah
be the Witness! Even if Fātimah bint Muhammad is proved guilty of
committing theft, I would implement the Hadd punishment by chopping her hand
from the wrist.”
(Sahīh
Al-Bukhārī, Kitāb Al-Hudūd, Chapter 12, Hadith #
6788).
That is why
there is a consensus of the Muslim Ummah that no government, or authority has
the power to commute or reduce a sentence passed by the court of law under Hadd.
The above provision of the so-called
Protection of Women’s Rights Bill is also, therefore, repugnant to the
injunctions of the Qur’ān and the Sunnah.
(ii)
Under Section 3 of the Hudood Ordinance, the provisions
of the Ordinance were made supreme and binding and were to supercede any other
law if found contrary to the Hudood Laws. This
provision was in fact a reiteration of the supremacy of the injunctions of the
Qur’ān and the Sunnah. The Bill in question has done away with this
Section also.
The above provision of
the Hudood Ordinance served to remove many legal complications and went
specially in favour of the hapless women often dragged by their male tormentors
in false cases to the court of law.
To cite an
example, under the Family Laws Ordinance it is required that no divorce would
be effective until its notice is given to the Chairman of the Union Council
concerned. According to the Shariah, a woman divorced by her husband is free to
enter into another marriage contract after completing the period of her Iddat. But in terms of the above
provision of the Family Laws she was legally bound to live as the wife of the
husband who had divorced her and was not permitted to marry another person
without authentication of her divorce by the Union Council. There were cases
when a woman after completing the period of her Iddat entered into marriage contract with another person Her former
husband played twofold mischief against her.
On the one hand, he did not send a notice to the Chairman Union Council
as was due under the Family Law, and on the other hand he filed a complaint
against the divorcee that she had married another person before the divorce
could be effective, and therefore she has committed adultery. When such cases
were brought to appeal before the Shariah Courts, the Appellate Bench came to
her rescue by invoking Section 3 of the Hudood Ordinance, which gives it overriding effect. It was held that the Ordinance being based on
the injunctions of Islam, the word “marriage” must be construed according to Shariah, and since the marriage
of the woman is valid according to Shariah she could not be convicted
regardless of the Family Laws.
Following
the deletion of this Section and specially by removing the definition of
Nikāh as provided in the Ordinance, the Bill in question has again
dragged the women, whose rights it claims to protect, back to the same
predicament of pre-Hudood Laws.
We had raised this issue
in the Ulama Committee as well and it was finally agreed there to insert the
following Clause in the Bill:
“In the interpretation and application of
this Ordinance the injunctions of Islam as laid down in the Holy Quran and the Sunnah
shall have effect, not withstanding anything contained in any other law for the
time being in force.”
The above Clause is,
however, missing from the revised Bill passed by the National Assembly.
(iii) Section 14 of Qazaf Ordinance explains the method of Li’ān as given in the Holy
Qur’ān. Li’ān is a legal
provision to annul marriage contract between the husband and wife. According to
this law, if the husband accuses his wife of Zina and then fails to produce four witnesses, the wife would ask
him to solemnly declare under oath, that his charge was correct and if he was a
liar and was falsely implicating his wife in a heinous offence, God’s curse (La’nah) may fall upon him. To prove
herself innocent, the wife on the other side would also have to declare under
oath that her husband has been telling lie and if she was actually guilty as
claimed by him, she may be accursed by God. Following this proceeding of
Li’ān, the court would annul their marriage. It was provided in the Qazaf
Ordinance that in case the husband refuses to take part in the proceedings of Li’ān, he would be held in custody
so long as he does not agree to cooperate. The
Bill in question omits this provision also, which simply means to give the
husband the license to morally and emotionally torture his wife and allow her
no avenue either to prove herself innocent or get her marriage contract
annulled.
The Qazf
Ordinance further provides that in case of the woman admitting her guilt during
the Li’ān proceedings, she would
be awarded the punishment of Zina.
The current Bill has removed this portion of the Qazf Ordinance as well,
which means that even if a woman makes a voluntary confession, she may not be
punished, while it is she who demanded the procedure of Li’ān.
(iv)
It was stated in Section 20 of Zina Ordinance
that if the court is satisfied
on the strength
of the witnesses that the accused has committed an offence which was liable for punishment under any
law other than the provisions of the Hudood Ordinance, the court could convict
the accused if the crime fell under its jurisdiction. The above Clause was
meant to simplify the legal proceedings. The Bill in question has also taken
away this power from the court.
The Bill in question has
removed from the Hudood Ordinance all criminal offences punishable under Ta’zeer
and shifted it to PPC and the crime of Zina bil- Ridha liable to Hadd alone has
been left within the purview of the Ordinance. As a result of this amendment,
if a man found guilty of Zina is
proved to have committed Rape, or in case the offence of Fornication is not
proved but it is established that he had abducted the woman, the court can now
convict him neither for Rape nor for abduction and it would be compelled to set
him free knowing fully well that he was guilty of abducting the woman and
dishonoring her. Consequently, the culprit will either be let off totally, or a
fresh complaint under PPC will have to be lodged against him which will make
the complainant face the torture of commencing a fresh trial from the
beginning.
Law making is a very sensitive process requiring a cool
and dispassionate mind-set. The law-maker has to keep before himself all
aspects of the matter, free from his personal biases and in an air of impartiality.
But when the law-making is done under duress in an atmosphere vitiated by
hostile propaganda and negative slogans, the result is obviously the same as
evident in the present Bill. The courts are then compelled to get involved in a
long and tortuous process of legal hairsplitting and consequently the cases
continue being transferred from one court to the other much to the detriment of
the aggrieved person, who is denied an easy access to justice.
CONCLUSION
To conclude, we may sum up below
the major failings of the Protection of Women’s Rights Bill, leaving aside the
minor ones discussed in detail earlier:
(i)
Under the Bill in question, the Hadd punishment of ‘Zina bil-Jabr’ has been completely abolished, which is in total
violation of the injunctions of the Qur’ān and the Sunnah.
(ii)
By removing Clause (5) of Section 2 of the
Ordinance, which did not allow any government authority to reduce or commute
the Hadd punishment once awarded by a court of law, the Bill violates
the injunctions of the Qur’ān and the Sunnah.
(iii)
By making Zina
bil-Ridha and Fornication
non-cognizable offence and offering the criminals various safeguards they have
been virtually rendered un-punishable.
(iv)
To compel the courts against awarding
punishments to a culprit found guilty of other crimes as well is tantamount to
encouraging the criminal and complicating the legal process.
(v)
By amending the Qazf Ordinance and
allowing the husband to refuse to participate in the Li’ān
proceedings the women’s rights have been grossly violated which is totally
against the clear injunctions of the Holy Qur’ān.
(vi)
Amendment in the Qazf Ordinance resulting in
exemption from punishment of Hadd for the woman in case of confession of Zina
is also a categorical violation of the clear injunctions of the Qur’ān and the Sunnah.
In the light of these facts, I would
earnestly request in the end all the members of Parliament and specially those
wielding authority to kindly look into these and try to amend the said Bill in
order to bring it in conformity with the injunctions of the Holy Qur’ān
and the Sunnah and also to help the nation come out of the agony of confusion
in which it has been cast.
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