Re: Rape victims will not be jailed
**CII agrees death not Islamic punishment
***By Ali Waqar *
LAHORE: The Council of Islamic Ideology (CII) has agreed that the death sentence is not Islamic punishment and/or necessary in Islam, except in cases of fasad fil arz (mischief in land) and murder.
The CII also recommended that the Quranic penalty for rape and theft is to be enforced “only in exceptional cases, otherwise a court/judge can act leniently in accordance with the nature and circumstances of an incident”. It also declared that there should be no gender or religious discrimination in calling or accepting witnesses in cases being tried under the Hudood laws.
Sources told Daily Times on Tuesday that the CII had unanimously agreed on a 10-point recommendation regarding the application of Hudood laws, at its recent 164th meeting. These 10 points are likely to become part of the official minutes to be sent to the prime minister and president. In an official statement, the CII has already announced it unanimous view that a rape (zina bil jabr) victim should not be required to produce four witnesses.
According to details provided by sources, the 10-point recommendation approved by the council on the application of Hudood laws is as follows:
n The maximum punishment for zina and theft is 100 lashes and the amputation of hands respectively, according to the Quran. These punishments should be awarded only when the crime is extraordinary in nature/circumstances and the convict does not deserve any leniency or concession. Courts, if considered appropriate, can be lenient and hand out a lesser sentence, depending on how much leniency the convict deserves.
n Rape and adultery/consensual sex (zina bil raza) are two separate crimes. A victim of rape should not be required to produce four witnesses to file a complaint. In cases of rape, the affected woman should be the complainant, not a defendant. The state should be bound to investigate, arrest the alleged rapist and punish him if the crime is proven.
n A person accused of adultery should be acquitted if the complainant fails to produce four witnesses to prove his/her allegation in court. Once acquitted, the accused person cannot be tried/punished under any other law, unless he/she refuses to give a statement under oath or confesses to the crime. In cases of li’an, where the accused person confesses or denies the charges on oath, courts will decide the cases in view of the circumstances.
n The council decided that only dacoity was not the only crime that should be treated as fasad fil arz and haraba (violence). It said that offences like terrorism and rape were also fasad fil arz and haraba, and the perpetrators of these acts should punished as provided in Sura Maida of the Quran.
n The death sentence/penalty is permissible only for the killing of a human being or in (extreme) cases of fasad fil arz. It is clearly stated in the Quran that the death sentence is unworkable, and cannot be handed out except in cases of fasad fil arz and murder.
n The will/consent of the heir (wali) is not important in qisas cases. Qisas can be enforced even after a wali’s forgiveness. On the other hand, no relaxation/concession can be given without the wali’s consent.
n Diyat is compulsory in qatal-e-khata (unintentional homocide) and qatal-e-amd (deliberate murder), according to Islamic shariah. However, social customs/traditions can be followed to set the amount.
n In shariah, there are five crimes for which sentences have been defined: zina, qazaf, murder, fasad fil arz and theft. Apart from these crimes, all crimes are related to the (maintenance of) collective (social) discipline/order, and a sentence/punishment can be defined/handed out accordingly.
n There is no discrimination against any man/woman, Muslim/non-Muslim in acceptance of statements by any witness. In Islamic shariah, there are no criteria for witness in any crime, except in zina cases. Therefore all Hudood cases should also be argued and proven (in court) as those in the past or as those that will be will be proven in the future.
n It is not necessary for a judge to be Muslim if the law of the land has been formally drafted. Non-Muslim judges, after developing knowledge of the Muslim law, can decide cases of every nature.
http://www.dailytimes.com.pk/default.asp?page=2007\04\04\story_4-4-2007_pg7_10
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