Re: A raped woman who cannot produced four witnesses should keep quiet about it
So it needs to be proved that the sex was consensual? What about the other question, are you in favour of laws amending the hudood ordinance, as discussed in this clip.
sorry but i couldnt bring myself to watch the clip, but i know the general perception
inshallah the following will provide you a better insight
THE REALITY OF WOMEN PROTECTION BILL 2006
by Justice (Retd) Muhammad Taqi Usmani
In the name of Allah the most merciful the most kind
The legal implications of the 'Protection of Women's
Rights Bill' which has recently been passed by the
National Assembly can only be known to the people who
are well versed with intricacies of the legal system.
But the picture being painted is that the bill is
going to provide a remedy to those women who faced
severe oppression due to the Hudood Ordinance and that
it is going to provide a great relief to countless
women. It is also being claimed that the bill does not
violate the injunctions of Quran and Sunnah. Let us
take a serious and realistic look at the basic points
mentioned in this bill. How much they are in line 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 which is called 'hadd' has been completely
abolished in this bill. As such a person who has
committed rape cannot be given the legal (sharai)
punishment and instead he will receive a ta'azeeri
punishment (anything below 'hadd'). Secondly the crime
which was declared a ta'azeeri punishment in the
Hudood Ordinance has been downgraded and declared
'lewdness', thereby reducing the severity of its
punishment. Moreover, proving it has been made all the
more difficult. To abolish the punishment of rape
(hadd) is a clear violation of the injunctions given
in the Quran and Sunnah. But it is being said that the
punishment ordained by the Quran and Sunnah is only
applicable when both man and woman commit adultery
with free will, and that in the case of rape Quran and
Sunnah have not prescribed any punishment.
Let us first test the correctness of this claim:
1) The Holy Quran prescribes the punishment of
adultery in Surah Noor as under
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 and includes zina
birraza (adultery) as well as zina bil jabar (rape).
In fact it is common sense that rape is a more serious
offense than what is done with free will. Therefore,
when this punishment is prescribed for adultery with
free will, the punishment for rape should be even more
severe. Although in this injunction there is also
mention of the woman who commits adultery but in the
same surah (Noor) those woman are raped have been
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.' (Surah Nur, Ayat 33)
From this becomes clear that if any woman is forced to
commit Zina, then she cannot be punished for this,
rather the one who transgressed will have to suffer
the prescribed punishment (Hadd) which has been
mentioned in Surah Nur, Ayat 2.
- The stated Hadd of 100 stripes is to be inflicted
on an unmarried offender. From the Sunnah Mutawatar is
further proven that a married person is to suffer Rajm
i.e. lapidation in case he commits Zina. The Messenger
of Allah sallallahu alaihi wa sallam did, in this case
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 ran away. Thereafter the man
admitted that he had raped her. The Messenger of Allah
sallallahu alaihi wa sallam then inflicted the Hadd on
the man only, 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)
- 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 on the slave,
but not on the slave-girl. (Sahih Bukhari, Kitabul
Ikrah, Bab 6)
It is hence proven from the Holy Qur'an, the Sunnah of
Allah's Messenger sallallahu alaihi wa sallam, the
decisions of the rightly guided caliphs and the noble
companions radiallahu anhum that the same punishment
which is to be inflicted in case of Zina bir-Radha is
also to be inflicted in case of Zina bil Jabr. It is
by no means in order to say that the Hadd mentioned in
the Holy Qur'an and in the sacred Ahadith is to be
inflicted only in case of Zina bir-Radh; and that it
is not applicable in case of Zina bil Jabr.
Now arises the question why is there so much
insistence on abolishing the shara'i punishment for
Zina bil Jabr? The reason for this is an extremely
unjust propaganda which certain circles are busily
spreading ever since the Hudood ordinance has been
implemented. According to this propaganda, if any rape
victim intends to sue the offender under the Hudood
ordinance, she is asked to produce four witnesses to
support her claim. And if she fails to do so, she
herself is arrested rather than the offender. This
claim has been and is repeated incessantly, so far
that even educated people began to consider it as
true. And exactly this point has been used as
justification by our president during his speech.
Now if as a result of such propaganda a certain matter
is publicized so much that even the children on the
streets talk about it, then people tend to view anyone
who talks against it as insane. But if anyone wishes
to analyze the matter in a just way, then I would like
to request him to leave all propaganda aside for a
while, 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 awarded punishment
because she was unable to present four witnesses. It
was actually not possible only because of Hudood
Ordinance because according to Hudood Ordinance the
condition of four witnesses was necessary only to
enforce the sharai punishment (had). But at the same
time clause 10(3) was included to award the taazeeri
punishment which did not have the condition of four
witnesses. Instead the crime could be proven through
one witness, medical examination and chemical analysis
report. Consequently most of the rape criminals were
awarded punishment as per this clause.
What we need to think is that if a woman was unable to
present four witnesses and she was given punishment,
which clause of Hudood Ordinance was used to award her
the punishment? If anyone says that she was punished
because of Qazaf (false accusation of rape) then Qazaf
Ordinance, Clause no. 3, Exemption no. 2 clearly
states that if someone approaches the legal
authorities with a rape complaint, she cannot be
punished in case she is unable to present 4 witnesses.
No court of law can be in its right mind to award such
a punishment. The other possibility could be that the
woman is awarded punishment for committing adultery
with free will. And if the court of law takes such a
decision it may not be 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 evidence. Obviously if a woman accuses a
man of raping her but subsequent evidence proves that
she committed adultery with her free will and her
accusation proves to be false then punishing her will
not be against the spirit of justice. But since
usually there is lack of sufficient evidence to proof
that the woman is lying, even such cases are rare. In
99% of the 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
the willful involvement of the woman, she is given the
benefit of doubt and set free. This can be verified
very easily by doing an analyses of the cases executed
under Hudood Ordinance in the last 27 years. Other
judges who have been involved in the proceedings are
of the same opinion that even when a woman's character
is found doubtful she is not punished; only the man
gets punished.
Since from the very beginning voices are being raised
against Hudood Ordinance that innocent women are being
punished because of it, an American Scholar Charles
Kennedy got interested and visited Pakistan to conduct
a survey of the cases. He analysed all the data
related to Hudood Ordinance cases and presented the
results in the form of a report which has been
published. The results are very much in line with the
above mentioned facts. 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
got no sympathies toward the Hudood ordinance,
observed with regard to such women who had actually
consented to committing Zina, and then due to the
pressure from side of their families, tried to declare
their deed as Zina bil Jabr. They were not asked to
produce four witnesses, but to furnish circumstantial
evidence. On being unable to furnish circumstantial
evidence which would give weight to their claim of
having been raped, only the male parties were
punished, whereas the female parties went unpunished,
as no transgression could be proven on their part.
Hence there is no such clause in the Hudood ordinance
according to which, if a woman fails to produce four
witnesses to support her claim of having been raped,
she is to be punished rather than the 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. However this is no flaw
in the Hudood ordinance. Unfortunately the police in
our country are quite prone to commit such acts of
injustice while enforcing the law. But this does not
mean that the law has to be changed. In our country,
keeping heroin is a crime. And it happens quite often
that the police themselves hide some heroin with
innocent citizens only to pressurize them afterwards.
Should we then -in order to resolve this situation-
abolish the law according to which keeping heroin is a
crime? Through its decisions, the Federal Shar'iah
Court had several times set an end to maltreatment
which rape-victims had to suffer at the hands of the
police. However, if one was to assume that this risk
has not yet been fully eliminated, then one could
draft a law according to which no woman claiming to
have been a victim of rape could be arrested under any
article of the Hudood ordinance, until the court has
delivered its final judgement. Besides, one could make
further laws stating the 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.
Hence,
The way in which the bill under discussion abolishes
the punishment which the Holy Shari'ah has prescribed
for Zina bil Jabr is in utter contradiction with the
Holy Qur'an and the Sunnah, and it is in no way
related to the maltreatment of the concerned women.
Lewdness
The second significant feature of the said bill is
related to those articles which were added to this
bill 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
there are no four witnesses, but the crime is proven
beyond doubt, then the offenders are to be given a
ta'zeeri (i.e. discretionary) punishment. Now the Hadd
for Zina bir Radha, prescribed in the fifth article of
the Hudood ordinance, and for which four witnesses are
a prerequisite, has been retained in the said bill,
but in article 8 has been stated that this kind of
offence is no longer under police jurisdiction that
anyone should take four witnesses and lodge a
complaint in the court, and that one cannot register
an FIR with the police. Thus the procedure of proving
Zina as an act calling for Hadd has become even more
difficult. Besides that, the discretionary punishment
prescribed by the Hudood ordinance in case four
witnesses could not be procured has been altered as
follows:
In the Hudood ordinance, Zina has been referred
to as a crime calling for discretionary punishment.
Now in the bill under review, this act is referred to
as 'Lewdness'. This change is appropriate, as from the
Qur'anic and Sunnah point of view, in the absence of
four witnesses; it is rather difficult to prove this
offence as Zina. 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 is
five years. Anyway, since it is a discretionary
punishment only, this reduction is not in
contradiction with the Qur'an and the Sunnah.
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.
Now one cannot go to the police station and file an
FIR in case of such an offence, rather one will have
to lodge a complaint in the 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 contend itself with
demanding a personal bond from the accused to present
him/herself at the court. And if the court deems not
to have sufficient reason to further pursue the
matter, the case shall be dismissed then and there.
Thus proving the offence of lewdness has been so very
difficult, that there is almost no way someone 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. Well, now doubt, when
keeping this offence under the jurisdiction of the
police, one must keep in mind the occasionally
questionable performance of our police, and one must
ensure that innocent couples are not put to trouble.
The Federal Shari'at Court has given several
judgements after which this risk has been eliminated
to a great extent. 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 put to trouble.
But in order to further eliminate this risk, there
should be a law according to which this kind of
investigation should 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 this risk would
be fully eliminated.
Secondly, obliging the plaintiff to immediately
produce four witnesses in case of Hadd, and 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 been made mention of a certain minimum
number of witnesses. At times decisions are made in
total absence of eye-witnesses, 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
shariah perspective taazeeri punishment can be awarded
even with availability of one witness and also in
presence of circumstantial evidence. Therefore, in the
case of taazeer, presence of two witnesses at the time
pf complaint registration practically the same as
providing unnecessary protection to the criminals of
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 but to invalidate it for
a crime like lewdness is not at all appropriate. It
is, but not clear why the clause is added that if the
court does not find sufficient substance in favor of
the case then it will dismiss the case since it is
already covered under Military Act clause 203.
According to Hudood Ordinance if necessary
evidence to enforce had is not found against someone
but the crime is in any case proven then he may be
awarded taazeeri punishment as per clause 10(3). But
as per the bill under consideration , clause no. 203
which has been added in the Military Act in its para 6
states that if someone is acquitted in a case of had
cannot be tried in a case of lewdness. It is now
obvious that the extremely strict conditions laid down
for enforcement of had are sometimes not fulfilled
merely due to the technical reasons. In a situation
when strong evidence is available to prove the crime
the court dealing with the rape case cannot award any
punishment. In fact it cannot even register a case of
lewdness against the criminal. What we need to think
is that disallowing the courts registering a case
against such a person is nothing but providing
protection to lewdness. Similarly in clause 12 A of
the proposed bill it is stated that if someone is
accused of rape his case cannot be converted into a
case of lewdness at any point in time in future.
Consequently if a woman registers a case of rape
against someone but some doubt remains in proving that
the act was committed by force, the criminal will be
released and even a case of lewdness will not be made
against him. At a time when zina bir raza (adultery)
was not a crime, the rape criminals used to adopt this
line that what they did was with the free will of the
woman. Therefore if the court suspected woman's
connivance it would dismiss the case and would free
the accused. Hudood Ordinance did not allow this line
of defence to the person accused of rape because
adultery was declared a crime even if it was done with
the woman's free will. And the court which was hearing
the case of rape could also award him the tazeeri
punishment. But this new amendment has created nearly
the same situation that if someone says that he has
committed adultery with the woman's free will and he
succeeds in creating doubts then noone will be able to
bring him to justice. The court hearing this case will
not be able to take any action because due to the
above clause it is no more authorized to convert a
case of rape into a case of lewdness. And if suppose a
case of lewdness is registered afresh then even if we
ignore everything else, it will not be possible to do
so for it is mandatory to bring two eye-witnesses
along to the court for registering 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 do
such laws come into being which not only protect the
offence but also save the offender from punishment?
Some further amendments to the Hudood ordinance There
were made some further amendments to the Hudood
ordinance, e.g.
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 got 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 martial 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, point five of the
Hudood ordinance has been canceled. 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 comes:
'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 according to 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)
In article 3 of the Hudood ordinance has been
stated that the regulations stated in this ordinance
shall be given superiority over the other laws, that
means if there be any contradiction between the
regulations in this ordinance and the other laws, then
the regulations of the Hudood ordinance shall be
followed. This article which had actually resolved
many legal perplexities, and because of which
oppressed women had been considerably less vulnerable,
has been cancelled in the said bill. So if, for
example, a man has divorced his wife, then, according
to the family law, this divorce will not take effect
until the notice thereof has been sent to the union
council, whereas, if seen from the shara'i point of
view, the woman is free to remarry, once she has
passed her iddat. The family law however does not take
such a divorce into account unless the union council
receives a notice in this regard. That means the woman
will still be considered as her husband's legal wife.
She cannot contract a new marriage anywhere else. Now
there are many incidents where the husband did not
send a notice to the union council, and the woman,
considering herself as a divorcee, contracts a new
marriage, after having passed her iddat. Now 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 was stated that Hudood Ordinance has been
formulated in accordance with the shariah and shariah
allows this woman to perform second marriage,
therefore, the family law will not be applicable in
case of her marriage because Hudood Ordinance
supersedes all other laws.
After repealing this clause and especially after
annulling the definition of nikah from the Hudood
Ordinance through this bill, one more time 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 will 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
be anticipated.
In the clause 14 of Qazaf Ordinance the
procedure of La'an as mentioned 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 will have to take 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 which means
that if the man does not agree undergoing the process
of La'an 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 awarded the punishment of
adultery. The new bill has also removed this part even
though it does not make any sense not to punish a
person after she has pleaded guilty - and while the
process of La'an is initiated at the behest of the
woman and no one forces her to confess. Therefore this
part of the bill is also against the injunctions of
the Holy Quran and Sunnah.
In clause 20 of Hudood Ordinace it was stated
that if through evidence it is proven that the offense
committed is a crime punishable by a law other than
the Hudood Ordinance then if the crime falls in the
jurisdiction of this court it can 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
Tazeerat-e-Pakistan. 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 go
free, or the complaint will have to be lodged another
time, so that the court takes up its proceedings
again.
Legislation is a very delicate process which requires
one to sit with a cool, 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 above. Then 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.
