Looking at brother angelfalls contribution, how can I stay behind?! Here is a little something for now:-
A FEW CORRECTIONS
Angelfalls wrote in Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979:
Now, I contribute some more things. In sub-section (1) of Section 19 of the concerned Ordinance, it is written:
(XLV of 1860)
6th October, 1860
34. Acts done by several persons In furtherance of common intention: When a criminal act is done by several persons, in furtherance of the common intention of all, each such person is liable for that act in the same manner as if it were done by him alone.
35. When such an act is criminal by reason of its being done with a criminal knowledge or intention: Whenever an act, which is criminal only by reason of its being with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with the knowledge or intention.
36. Effects caused partly by act and partly by omission: Whoever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and pertly by an omission is the same offence.
A intentionally causes Z's death, partly by illegally omitting to give Z food and partly by beating Z.A has committed murder.
37. Co-operation by doing one of several acts constituting an offence: When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.
(a) A and B agree to murder Z by severally and at different times giving him small dose of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them dose an act by which the death is caused, they are both guilty of the offence though their acts are separate.
(b) A and B are joint jailors, and as such, have the charge of Z, a prisoner, alternately for six hours at a time. A and B, intending to cause Z's death, knowingly co-operate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.
(c) A, a jailor, has the charge of Z, a prisoner. A intending to cause Z's death, illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is dismissed from his office, and B succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z with food, knowing that he is likely thereby to cause Z's death, Z dies of hunger. B is guilty of murder, but as A did not co-operate with B, A is guilty only of an attempt to commit murder.
38. Persons concerned in criminal act may be guilty of different offences: Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assist A in killing Z. Here, though A and B are both engaged in causing Z's death, B is guilty of murder, and A is guilty only of culpable homicide.
63. Amount of fine: Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.
64. Sentence of imprisonment for non-payment of fine: In every case of an offence punishable with imprisonment as well. as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender, shall suffer imprisonment for a certain term, which imprisonment shall be. in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
65. Limit to imprisonment for non-payment of fine when imprisonment and fine awardable: The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall, not exceed one-fourth of the term of imprisonment, which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
66. Description of imprisonment for non-payment of fine: The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.
67. Imprisonment for non-payment of fine when offence punishable with fine only: if the offence be punishable with fine only: the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed, one hundred rupees, and for any term not exceeding six months in any other case.
68. Imprisonment to terminate on payment of fine: The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
69. Termination of imprisonment on payment of proportional part of fine: If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.
A is sentenced to fine of one hundred rupees and to four months, imprisonment in default of payment. Here, seventy-five rupees of the fine be paid or levied before the expiration of one month of the imprisonment. A will be discharged as soon as the first month has expired, if seventy-five rupees be paid or levied at the time of the expiration of the first month, or at any later time while .A continues imprisonment. A will be immediately discharged, if fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed, if fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.
70. Fine leviable within six years, or during imprisonment-Death not to discharge property from liability: The fine or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence/and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender dose not discharge from the liability any property which would, after his death, be legally liable for his debts.
71. Limit of punishment of offence made up of several offences: where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything Is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or
Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offence.
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which makes up the whole beating. If were liable to punishment for every blow, they might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here as the blow given to Y is no part of the act whereby A voluntarily cause hurt to Z, A is liable to one punishment, for voluntarily causing hurt to Z, and to another for the blow given to Y.
72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which: In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided, for all.
107. Abetment of a thing: A person abets the doing of a thing, who:
First: Instigates any person to do that thing; or
Secondly: Engages with one or more other person or, persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, And in order to the doing of that thing; or
Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procures a thing to be done, is said to instigate the doing of that thing.
A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully presents to A that C is Z, and thereby intentionally cause A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2: Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the' commission thereof, is said to aid the doing of that act.
108. Abettor: A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same Intention or knowledge as that of the abettor.
Explanation 1: The abetment of the illegal omission-of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2: To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
(a) A instigates B to murder C, B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.
Explanation 3: It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor or any guilty intention or knowledge.
(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A whether the act be committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby, cause Z's death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing ah offence, and had committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house, B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of As instigation. B has committed no offence, but A is guilty, of abetting the offence of setting fire to a dwelling house, and is liable to the punishment provided for that offence.
(d) A intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A includes B to believe that the property belongs to A. B takes the property out of Z's possession in good faith, believing it to be A's property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.
Explanation 4: The abetment of an offence being an offence, the abetment of such an abetment is also an offence.
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and commits that offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and as A instigated B to commit the offence, A is also liable to the same punishment.
Explanation 5: It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
A concerts with B a plan for poisoning-Z. it is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person to administer the poison, but without mentioning A's name. C agrees to procure the poison and procures and delivers it to B for the purpose of its being used in the manner explained. A administer the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has, therefore, committed the offence defined in this section and is liable to the punishment for murder.
[I][108-A. Abetment in Pakistan of offences outside it: A person abets an offence within the meaning of this Code who, in Pakistan, abets the commission of any act without and beyond Pakistan which would constitute an offence committed in Pakistan.]
A, in Pakistan, instigates B, a foreigner in Goa, to commit a murder in Goa, A is guilty of abetting murder.
Sec. 108-A added by the Penal Code Amendment Act IV of 1898
109. Punishment of abetment if the Act abetted committed In consequence and where no express provision is made for its punishment: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code, for the punishment of such abetment, be punished with the punishment provided for the offence:
[Provided that, except in case of Ikrah-i-Tam, the, abettor of an offence referred to in Chapter XVI shall be liable to punishment of ta'zir specified for such offence including death.]
Explanation: An act or offence is said-to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. 6 accepts the bribe. A has abetted the offence defined in Section 161,
(b) A instigates B to give false evidence. B, in consequence of the instigation commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B. in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty, of abetting that offence by conspiracy, and is liable to the punishment for murder.
Proviso added by the Criminal Law (Amendment) Act, II of 1997.
110. Punishment of abetment if person abetted does act with different intention from that of abettor: Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with intention or knowledge of the abettor and with no other.
111. Liability of abettor when one act abetted and different act done: When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly, abetted it:
Proviso: Provided the act done was a probable consequence of the abetment; and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here if the child was acting under the influence of A's instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of.
(b) A instigates B to burn Z's house. B sets fire to the house and at the same time commits theft of property there. A. though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning.
(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery and provides them with arms for that purpose, B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment. A is liable to the punishment provided for murder.
112. Abettor when liable to cumulative punishment for act abetted and for act done: If the act for which the abetter is liable under the last preceding section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences.
A instigates B to resist by force a distress made by a public servant, B in consequence, resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and: if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress A will also be liable to punishment for each of the offences.
113. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor: When an act is abetted with the intention on the part of the abettor of causing a particular effect and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.
A instigates B to cause grievous hurt to Z B, In consequence of the instigation, causes grievous hurt to Z. 2 dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder.
114. Abettor present when offence is committed: Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
115. Abetment of offence punishable with death or imprisonment for life if offence not committed: Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
If act causing harm be done in consequence: And if any act for which the abettor is liable in consequence of the abetment, and which cause hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.
A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or transportation for fife. Therefore A is labile to imprisonment for a term which may extend to seven years and also to a tine; and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine.
116. Abetment of offence punishable with imprisonment-if offence be not committed: Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence; or with both.
If abettor or person abetted be a public servant whose duty it is to prevent offence: And if the abettor or the person abetted is a public servant, whose duty it is, to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B refuses to accept the bribe. A is punishable under this section.
(b) A instigates B to give false evidence. Here, if B does hot give false evidence A has nevertheless committed the offence defined in this section, and is punishable accordingly.
(c) A, police officer, whose duty it is. To prevent robbery, abets the commission of robbery. Here, though the robbery be not committed, A is liable to one-half of the longest term of imprisonment proved for that offence, and also to fine.
(d) B abets the commission of a robbery by H, a police officer, whose duty it is to prevent that offence. Here though the robbery be not committed, B is liable to one-half of the longest term of imprisonment provided for the offence of robbery, and also to fine.
117. Abetting commission of offence by the public or by more than ten persons: Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section.
118. Concealing design to commit offence punishable with death or imprisonment for life if offence be committed: Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment of life, voluntarily conceals by any act or illegal omission, the existence of design to commit such offence or makes any representation which he knows to be false respecting such design,
if offence be not committed: Shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence be not committed, with imprisonment of either description for a term which may extend to three years; and in either case shall also be liable to fine.
A, knowing that dacoity is about to be committed at B, falsely inform the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this section.
119. Public servant concealing design to commit offence which it is his duty to prevent: Whoever, being a public servant intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, if offence be committed: shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both;
if offence be punishable with death, etc: or if the offence be punishable with death or imprisonment for life with imprisonment of either description for a term which may extend to ten years;
if offence be not committed: or, if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both.
A, an officer of police, being legally bound to give information of all design as to commit robbery, which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the commission of that of that offence. Here A has by an illegal omission concealed the existence of B's design, and is liable to punishment according to the provisions of this section.
120. Concealing design to commit offence punishable with imprisonment: Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design,
if offence be committed; if offence be not committed: Shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to oneeighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.
120-A. Definition of criminal conspiracy: When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
120-B. Punishment of criminal conspiracy:
(1) Who ever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
1. Chapter V-A ins. by the Criminal Law (Amdt.) Act, VIII of 1913.
In sub-section (3) of Section 20 of the concerned Ordinance, it is written:
CODE OF CRIMINAL PROCEDURE
(ACT V OF 1898)
An act to consolidate and amend the law relating to the criminal procedure
22nd March, 1899
Preamble: Whereas it is expedient to consolidate and amend the law relating to criminal procedure, it is hereby enacted as follows.
OF THE JURISDICTION OF THE CRIMINAL COURTS OF INQUIRIES AND TRIALS
(Note that the following do not apply!)
198. Prosecution for breach of contract, defamation and offences against marriage:
No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the customs and mariners of the country, ought not to be compelled to appear in public, or were such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf:
Provided further that where the husband aggrieved by an offence under Section 494 of the said Code is serving in any of the armed forces of Pakistan under conditions, which are certified by the commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (I)1 of Section 199-B may, with the leave of the Court, make a complaint on his behalf.
[198-A. Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions:
(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1860) is alleged to have beam committed against the President, the Prime Minister, a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing -made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to accused of the offence alleged to have been committed by him.
(3) No complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction (a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government authorised by him in this behalf; (b) in the case of a Federal Minister or Minister of State, Chief Minister, or Provincial Minister, of any secretary to the Government authorised in this behalf by the Government concerned; (c) in the case of any public servant employed in connection with the affairs of the Federation or of a Province, of the Government concerned.
(4) No Court of Session shall take cognizance of an offence under sub-section (1), unless the -complaint is made within six months from the date on which the offence is alleged to have been committed.
(5) When the Court of Session takes cognizance of an offence under sub-section (1), then notwithstanding anything contained in this Code, the Court of Session shall try the case without the aid of jury or assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrates of warrant cases instituted otherwise than on a police report.
(6) The provisions of this section shall be in addition to, and not in derogation of those of Section 198.]
Section 198-A inst. by Criminal Procedure (Amendment) Act, XXV of 1974, S-7.
(Thank God! The following Section does not apply; had it applied than the society would be filled with shamelessness!)
[199. Prosecution for adultery or enticing a married woman: No Court shall take cognizance of an offence under Section 497 or Section 498 of the Pakistan Penal Code, except--
(a) upon a report in writing made by a police-officer on the complaint of the husband of the woman, or in his absence, by some person who had care of such woman on his behalf at that time when such offence was committed; or
(b) upon a complaint made by the husband of the woman or, in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed:
Provided that, where such husband is under the age of eighteen years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the-leave of the Court, make a complaint on his behalf:
Provided further that where such husband is serving in any of the armed forces of Pakistan, under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorised by the husband in accordance with the provisions of sub-section (1) of Section 199-B may, with the leave of the Court, make a complaint on his behalf.]
S. 199 subs. by Law Reforms Ordinance, XII of 1972.
[199-A. Objection by lawful guardian to complaint by person other than person aggrieved: When in any case falling under Section 198 or Section 199 the person on whose behalf the complaint is ought to be made is under the age of eighteen years or is a lunatic, and the person applying for leave has not been appointed or declared, by competent authority to be the guardian of the person of the said minor or lunatic, and the Court is satisfied that there is a guardian, so appointed or declared, notice shall be given to such guardian, and the Court shall, before granting the application give him a reasonable opportunity of objecting to the granting thereof.]
S.199-A Inst. by the Code of Criminal Procedure (Second Amendment) Act, XVIII of 1923.
[199-B. Form of authorisation under second proviso to Section 198 or 199:
(1) The authorisation of a husband given to another person to make a complaint on his behalf under the second proviso to Section 198 or the second proviso to Section 199 shall be in writing, shall be signed or, otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be" countersigned by the Officer referred to in the said provisos, and shall be accompanied by a certificate signed by that officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.]
(2) Any document purporting to be such an authorisation and complying with the provisions of sub-section (1), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
Section 199-B inst. By the Code of Criminal Procedure (Second Amendment) Act, XVIII of 1943.
In sub-section (4) of Section 20 of the concerned Ordinance, it is written:
(Does not apply)
393. Not to be executed by installments - Exemptions: No sentence of whipping shall be executed by instalments; and none of the following persons shall be punishable with whipping, namely:-
(b) males sentenced to death or to imprisonment for life or to imprisonment for more than five years;
(c) males whom the Court considers to be more than forty-five years of age.
(Does not apply)
In sub-section (5) of Section 20 of the concerned Ordinance, it is written:
OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES
(Note that the following do not apply!)
401. Power to suspend or remit sentences:
(1) When any person has been sentenced to punishment of ah offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Provincial Government, not fulfilled, the Provincial Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(4-A) The provisions of the above subjections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.
(5) Nothing herein contained shaft be deemed to interfere with the right of the President or of the Federal Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment.
(5-A) Where a conditional 'pardon is granted by the President or in virtue of any powers delegated to it by the Federal Government, any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.
(6) The Provincial Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.
402. Power to commute punishment:
(1) The Provincial Government may, without the consent of the person sentenced, commute any one of the following sentences or any other mentioned after it:-
death imprisonment for life, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine.
(2) Nothing in this section snail affect the provisions of Section 54-or Section 56 of the Pakistan Penal Code.
402-A. Sentence of death: The powers conferred by Sections 401 and 402 upon the provincial Government may, in the case of sentences of death, also be exercised by the President.
402-B. Certain restrictions on the exercise of powers by Provincial Government: Notwithstanding anything contained in Section 401 or Sector 402, the Provincial Government shall not except with the previous approval of the President, exercise the powers conferred thereby in a case where the President has passed an order in exercise of his powers under the Constitution to grant pardons, reprieves and respites or to remit, suspend or commute any sentence or of his powers under Section 402-A.
402-C. Remission or commutation of certain sentences not to be without consent: Notwithstanding anything contained in Section 401, Section 402, Section 402-A or Section 402-B, the Provincial Government, the Federal Government or the President shall not, without the consent of the victim, or as the case may be of his heirs suspend remit or commute any sentence passed under any of the sections in Chapter XVI of the Pakistan Penal Code.
Okay! Enough for now!
The Qazf Ordinance
In my previous posts, I gave some incorrect information about the Qazf Ordinance. I mixed the 'qazf' for 'zina' and 'zina-bil-jabr' as well as made a few other mistakes. I will like this post to be an Errata to my previous post(s).
The following FAQ has been taken from my Yahoo! Group for discussion on Hudood Ordinance; you can find many more such goodies in the Files section, but, you must become a member first. Membership is easy; you just need a Yahoo! ID and that's all!
If you read my previous posts then reading this FAQ is recommended and compulsory, otherwise, you may have some incorrect information about the Qazf Ordinance. Generally speaking, I think, the following points must be noted:-
(i) A man CAN file a complaint of 'qazf' against a woman (I heard the opposite earlier from Amanullah Baloch, but, later by reading & interpreting the Ordinance myself, I found it to be incorrect.)
(ii) In case of 'zina', if the accusation could not be proved, that person shall be punished for committing 'qazf'.
(iii) In case of 'zina-bil-jabr', if the accusation is found to be untrue, then that person shall be punished for comitting 'qazf'. If the accusation is neither proved, nor disproved, that person shall not be punishable.
These are only the important points to note, but, it is recommended to read the following completely.
Why do the Hudood laws require that one files a separate case/FIR for the execution of punishment of Qazf? Should we not implement the recommendations forwarded by NGOs & Geo TV, e.g. merging of Zina & Qazf ordinances?
At the outset, it is wrong to say that the Hudood laws require the falsely accused to file a separate FIR for the execution of punishment of Qazf. The Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979) states in Section 8:-
After this complaint, whether a whole case is started afresh, or if money is to be given to a lawyer, or something else is done, is clearly NOT an issue of the Qazf Ordinance. Rather, this is a problem of the judiciary system and those who don't like this, should object the judiciary system, not the Hudood laws!
If someone objects as to why even she has to ask for it, then our answer is that it is firstly a requirement of the Shari'ah. All the four schools of thought agree upon the issue that in 'qazf', the Right of Allah and the Right of Servant is intermingled, but, the Right of Servant is dominant. In fact, the Shafi'ies say that 'qazf' is purely a Right of Servant. Therefore, all four schools of thought are agreed that there can be 'awf' in case of Qazf i.e. it can be pardoned by the one who has been accused. Late Grand Mufti of Pakistan wrote:-
Concept of Qazf in the Qazf Ordinance
Let us first understand the definition & explanation of 'qazf' as found in the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979). Section 3 deals with the issue and reads as follows:-
The definition of 'qazf' as provided in Section 3 is simple, but, there are two exceptions mentioned which require explanation. First exception states that anyone who makes or publishes an amputation of zina (not zina-bil-jabr) for the public good & which is also true is not said to commit 'qazf'. This is hardly a debatable exception!
The second exception states that if someone, in good faith, refers an imputation of 'zina' against any person to any other person who has lawful authority over him, is not said to commit 'qazf'. This exception is also important and needs to be there, because, this excepts a witness who is explaining what he saw, in good faith, to a judge from committing 'qazf'. It also excepts anyone who reports to the police that so-and-so has committed 'zina' or is doing so, etc. If such cases are not excepted, this will lead to great injustice, because, reports, investigations & testimonies would also be considered as 'qazf'.
Right here, it is noteworthy that the Ordinance itself has expressly stated three special cases which are considered to be 'qazf'. The first case states that a complainant makes an accusation of 'zina' (not zina-bil-jabr) against another person in a court, but fails to produce four witnesses in support thereof before the Court. This is considered as 'qazf' as stated by the Shari'ah; although, such 'qazf' may or may not be liable to 'hadd'. The second case states that a witness who gives false evidence of 'zina' or 'zina-bil-jabr' is said to commit 'qazf'. (This will not include those witnesses who have given true evidence.)
The last case stated is important and it is the only case which covers imputations of 'zina-bil-jabr'. Under the Qazf Ordinance, a person (whether male or female) who accuses someone of committing 'zina-bil-jabr', is punishable only when the accusation is a lie. If the accusation was true, it is not 'qazf' whether or not the person has four witnesses. It is also not 'qazf' if the accusation was neither proved, nor disproved. In case of 'zina', if the accusation is not proved, then the person making that accusation is said to commit 'qazf'--whether or not that is a lie.[SUP]2[/SUP]
We shall only discuss the relevant sections here; you can read the full Qazf Ordinance below. In addition to the two exceptions mentioned in Section 3, there are a few cases where the 'hadd' for 'qazf' is not enforced, even if the crime of 'qazf' liable to 'hadd' is proved according to the requirements of Section 6. Such cases are mentioned in Section 9 as follows:-
Speaking of section 10, a person if commits 'qazf' which is not liable to 'hadd', or for which 'hadd' may not be enforced under the Ordinance, or for which proof in either of the forms mentioned in Section 6 of the aforesaid Ordinance is not available, then such a person shall face the penalty of 40 stripes, 2 years imprisonment, alongwith fine as 'tazir'. In the same way, anyone who prints or engraves such material which contains 'qazf' or if someone sells such material, then he shall face penalty of thirty stripes, 2 years imprisonment and with fine too if the court deems fit.
The Qazf Ordinance also contains the commandment of 'Lian', but, we shall stick to Qazf only for now. You must have also understood by now that the Qazf Ordinance gives anyone the right to file a complaint of Qazf, whether he/she is male or female. From the above explanation, you should have understood how the Ordinance deals with Qazf. Let's move to the second part of the question!
Recommendations of NGOs & Media
We shall now deal with the recommendations forwarded by various NGOs and media channels, etc. Let us discuss each recommendation serially.
The first recommendation is that an FIR of 'zina' should not be dislodged unless there are four witnesses; in fact, such a complainant who does not have four witnesses [and other witnesses], should be punished with 100 stripes at the police station.
The recommendation is utopian in essence and if it is implemented, its only going to give the fornicators & adulterers, a free hand. This recommendation would curb the ability of law-enforcing agencies to even investigate the issue and no one would dare to even report the issue; even the available eye-witnesses would not testify. Furthermore, in majority of cases, innocent people would be unjustly punished; every day, thousands will be striped and consequently, no one would come to make a complaint of fornication/adultery. This will make such a henious crime to become an ordinary & common act, tolerable by the society.
In fact, there is no need for this recommendation. Gen. Musharraf, in 2004, had added another Section 156-B in the CrPC, according to which, a person accused of 'zina' cannot be arrested unless an arrest warrant is issued by an authorized court of magistrate. Furthermore, according to this section, no police officer below the rank of superitendent can investigate cases of zina!
A case of 'zina' should be heard, but, if it is found that there are less than four witnesses available, 'qazf' should be levelled on the complainant and the remaining witnesses.
This is again an unjust recommendation; in majority of the cases (not all), four witnesses will not be available. Furthermore, many people due to fear of not fulfilling the conditions of tazkiya al-shuhood & consequently getting punished, will not come forward to testify. In cases, where there would be three witnesses, the witnesses & the complainant would get punished themselves.
The present situation is the best of all. It firstly treats 'zina' & 'zina-bil-jabr' separately, so that if an imputation of 'zina' is not proved (even by medical evidence, etc.) then the complainant is punished--the witnesses are only punished if they give a fake testimony. Secondly, a complainant of 'zina-bil-jabr' is punished only, if the imputation was a lie and was disproved. For example, a lady brings an imputation of rape against a person, but, on her examination, it is found that she is lying (e.g. hymen of vagina is intact). Thus in this case, the falsely accused person can make a complaint and thus get the lady punished.
The Qazf and Zina Ordinance should be merged & Qazf should be levelled automatically.
This is a very oft-repeated recommendation, but, a close examination reveals inherent flaws. Firstly, it is presumed that 'qazf' shall always be committed when a person files a case of 'zina'. This is not the case with the present Ordinance! Under the current Qazf Ordinance, a person who publicily accuses a chaste lady of committing 'zina', intending to hurt her feelings or harm her reputation (or knowing it to be likely) has committed 'qazf'. Thus by merging the two Ordinances, the door for such cases shall be closed. Furthermore, it is a universal phenomenon in law that whenever there are two different crimes, there are different sections for them in the law. These sections would lay down separate definitions, proof requirements as well as prescribe punishments. Any person who fully studies the Qazf Ordinance can clearly see that the amount of explanation required for this crime, can only be met by having a separate Ordinance.
Moving further, the recommendation of removing Section 8 (i.e. to automatically award the punishment for 'qazf'), it has been shown previously that it is a requirement of Shari'ah. Secondly, it must be noted here that sometimes, friends, relatives, etc. of the victim of 'qazf' may (e.g. in a state of anger) accuse her falsely. She may not want them to be disgraced in public and therefore, pardon the punishment; this will not be possible then.
The words intending to harm and similar words used in the definition of 'qazf' in the Ordinance have made the proceedings unwantingly complex; such phrases should be removed from the definition of 'qazf'.
Strange, indeed... no one objects the PPC, even though, similar wordings are found in Sections 28, 88, 89, 92, 108, 118, 119, 120, 123, 153, 166, 167, 182, 185, 192, 194, 195, 206, 207, 217, 231, 259, 266, 272, 274, 281, 295, 350, 351, 354, 355, 364, 378, 421, 425, 435, 436, 437, 439, 464, 468, 469, 472, 473, 474, 475, 476, 489, 499, 504 and 509. This may not be a complete list, but, atleast 51 out of 511 sections contain similar wordings. In fact, section 295 which deals with the punishment for insulting religious beliefs also reads:-
In the definition of 'qazf', 'defamation', or even 'theft' (PPC, Section 378) the words "intending to harm" or other such wordings are important. Someone may not be intending to harm or hurt the feelings of a person, for example, people in Punjab, NWFP & other parts of Pakistan too, would abuse each other with severe words but consider it to be simply "gossip" (e.g. one guy calling other as bahen ch*** would also become qazf.) Such cases are not 'qazf' at all; there are other similar cases where the imputation cannot be considered as 'qazf'.
We hope the above explanation is enough to answer off the various objections raised on the Qazf Ordinance.
Thus it is crystal-clear that the Qazf Ordinance does not require to be repealed or even amended.
[SUP]1[/SUP] It is referring to this post with the title as Objection answered regarding Qazf.
[SUP]2[/SUP] In some cases, due to lack or loss of evidence, it is not possible to prove or disprove an accusation. In such cases, (a) if the accusation was of 'zina-bil-jabr', the person making the accusation has not committed 'qazf'; or (b) if the accusation was of 'zina', the person making the accusation is said to commit 'qazf'.
I would also like to contribute one more document from my Yahoo! group on Hudood Ordinance. It is the whole Qazf Ordinance alongwith a brief commentary by me as well as certain sections of the PPC related to the Ordinance. It is as follows:-
OFFENCE OF QAZF
(ENFORCEMENT OF HADD)
(VIII OF 1979)
[10th February, 1979]
An Ordinance to bring in conformity with the injunctions of Islam the law relating to the offence of 'qazf’.
Whereas it is necessary to modify the existing law relating to 'qazf’ so as to bring it in conformity with injunctions of Islam as set out in the Holy Qur'an and Sunnah;
And Whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;
Now, Therefore, in pursuance of the proclamation of the Fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-
1. Short title, extent and commencement:
(1) This Ordinance may be called the Offence of 'Qazf’ (Enforcement of Hadd) Ordinance, 1979.
(2) It extends to the whole of Pakistan.
(3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri, that is, the tenth day of February, 1979.
In the Ordinance, unless there is anything repugnant in the subject or context-
(a) "adult", "hadd", "tazir", "zina" and "zina-bil-jabr" have the same meaning as in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and
(b) all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code (Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act V of 1898).
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of 'zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation
Explanation 1: It may amount to 'qazf' to impute 'zina' to a deceased person, if the imputation would harm the reputation, or hurt the feelings, of that person if living, and is harmful to the feelings of his family or other near relatives.
Explanation 2: An imputation in the form of an alternative or expressed ironically, may amount to 'qazf'.
First exception (imputation of truth which public good requires to be made or published): It is not 'qazf' to impute 'zina' to any person if the imputation be true and made or published for the public good.
Second exception (accusation preferred in good faith to authorized person): Save in the cases hereinafter mentioned, it is not 'qazf' to refer in good faith an accusation of 'zina' against any person to any of those who have lawful authority
(a) a complainant makes an accusation of 'zina' against another person in a Court, but fails to produce four witnesses in support thereof before the Court;
(b) according to the finding of the Court, a witness has given false evidence of the commission of 'zina' or 'zina-bil-Jabr';
(c) according to the finding of the Court, a complainant has made a false accusation of 'zina-bil-jabr'.
4. Two kinds of qazf:
'Qazf' may be either 'qazf' liable to 'hadd' or 'qazf' liable to 'tazir'.
5. Qazf liable to 'hadd':
Whoever, being an adult, intentionally and without ambiguity commits 'qazf' of 'zina', liable to 'hadd' against a particular person who is a 'muhsan' and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit 'qazf' liable to ‘hadd'.
Explanation 1: In this section, "muhsan" means a sane and adult Muslim who either has had no sexual intercourse or has had such intercourse only with his or her lawfully wedded spouse.
Explanation 2: If a person makes in respect of another person the imputation that such other person is an illegitimate child, or refuses to recognize such person to be a legitimate child, he shall be deemed to have committed 'qazf' liable to 'hadd' in respect of the mother of that person.
6. Proof of qazf liable to hadd:
Proof of 'qazf' liable to 'hadd' shall be in one of the following forms, namely:-
(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence;
(b) the accused commits 'qazf’ in the presence of the Court; and
(c) at least two Muslim adult mate witnesses, other than the victim of the 'qazf', about whom the Court is satisfied, having regard to the requirements of 'tazkiyah al-shuhood', that they are truthful persons and abstain from major sins (kabair), give direct evidence of the commission of 'qazf':
Provided that, if the accused is a non-Muslim, the witnesses may be non-Muslims:
Provided further that the statement of the complainant or the person authorized by him
7. Punishment of 'qazf' liable to 'hadd':
(1) Whoever commits 'qazf liable to 'hadd' shall be punished with whipping numbering eighty stripes.
(2) After a person has been convicted for the offence of 'qazf liable to 'hadd', his
(3) A punishment awarded under sub-section (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarding the punishment lies; and until the punishment is confirmed and executed, the convict shall, subject to the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment.
8. Who can file a complaint:
No proceedings under this Ordinance shall be initiated except on a report made to the police or a complaint
(a) if the person in respect of whom the 'qazf' has been committed be alive, that person, or any person authorized by him;
(b) if the person in respect of whom the 'qazf' has been committed be dead, any of the ascendants or descendants of that person.
9. Cases in which 'hadd' shall not be imposed or enforced:
(1) 'Hadd' shall not be imposed for 'qazf' in any of the following cases, namely:-
(a) when a person has committed 'qazf' against any of his descendants;
(b) when the person in respect of whom 'qazf' has been committed and who is a complainant has died during the pendency of the proceedings; and
(c) when the imputation has been proved to be true.
(2) In a case in which, before the execution of 'hadd' the complainant
10. Qazf liable to Tazir:
Whoever commits 'qazf' which is not liable to 'hadd'
11. Punishment for 'Qazf liable to Tazir':
Whoever commits 'qazf liable to 'tazir' shall be punished with imprisonment of either description for a term which may extend to two years and with whipping not exceeding forty stripes, and shall also be liable to fine.
12. Printing or engraving matter known to be of the nature referred to in Section 3:
Whoever prints or engraves any matter knowing' or having good reason to believe that such matter is of the nature referred to in Section 3, shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, or with fine, or with any two of, or all, the punishments.
13. Sale of printed or engraved substance containing matter of the nature referred to in Section 3:
Whoever sells or offers for sale any printed or engraved substance containing matter of the nature referred to in Section 3, knowing that it contains such matter, shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, or with fine or with any two of, or all, the punishments.
(1) When a husband accuses before a Court his wife who is 'muhsan' within the meaning of Section 5, of 'zina' and the wife does not accept the accusation as true, the following procedure of 'lian' shall apply, namely:-
(a) the husband shall say upon oath before the Court:
"I swear by Allah the Almighty and say I am surely truthful in my accusation of 'zina' against my wife (name of wife)_" and, after he has said so four times, he shall say:
"Allah's curse be upon me if I am 'liar' in my accusation of 'zina' against my wife (name of wife)"; and
(b) the wife shall, in reply to the husband's statement made in accordance with clause (a) say upon oath before the Courts:
"I swear by Allah the Almighty that my husband is surely a 'liar' in his accusation of 'zina' against me', and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of 'zina' against me".
(2) When the procedure specified in sub-section (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.
(3) Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the case may be, she shall be imprisoned until:
(a) in the case of the husband, he has agreed to go through the aforesaid procedure; or
(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.
(4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of 'zina' liable to 'hadd' under the imposition of Hudood for the Offence of 'Zina' Ordinance, 1979.
15. Punishment for attempt to commit offence punishable under this Ordinance:
Whoever attempts to commit an offence punishable under this Ordinance, or to cause such an attempt to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for the offence, or with such whipping or fine as is-provided for the offence, or with any two of, or all, the punishments.
16. Application of certain provisions of Pakistan Penal Code (Act XLV of 1860):
(1) Unless otherwise expressly provided in this Ordinance, the provisions of Sections 34 to 38 of Chapter II, Sections 63 to 72 of Chapter III and Chapters V and V-A of the Pakistan Penal Code (Act XLV of 1860), shall apply, mutatis mutandis, in respect of offences under this Ordinance.
(2) Whoever is guilty of the abetment of an offence liable to 'hadd' -under this Ordinance shall be liable to the punishment provided for such offence as 'tazir'.
17. Application of the Code of Criminal Procedure, 1898 (Act V of 1898):
(1) Unless otherwise expressly provided in this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance:
Provided that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefore, be convicted and punished for that offence:
Provided further that an offence punishable under Section 7 of sub-section (4) of Section 14, shall be triable by, and proceedings under sub-sections (1) and (2) of the latter section shall be held before a Court of Session and not by or before a Magistrate authorised under Section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court:
Provided further that a trial by, or proceeding before, the Court of Session under this Ordinance shall ordinarily, be held at the headquarters of the Tehsil in which the offence is alleged to have been committed or, as the case may be, the husband who has made the accusation ordinarily resides.
(2) The provisions of the said Code relating to the confirmation of the sentence of death shall apply, mutatis mutandis, of the confirmation of a sentence under this Ordinance.
(3) The provisions of sub-section (3) of Section 391 or Section 393 of the said Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.
(4) The provisions of Chapter XXIX of the said Code shall not apply in respect of a punishment awarded under Section 7 of this Ordinance.
18. Presiding Officer of Court to be a Muslim:
The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance, shall be a Muslim.
19. Ordinance to override other Laws:
The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.
Nothing in this Ordinance shall be deemed to apply to cases pending before any Court immediately before the commencement of this Ordinance, or to offences committed before such commencement.
[b]Pakistan Penal Code
(XLV OF 1860)
52. "Good faith": Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
499. Defamation: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said except in the cases hereinafter excepted, to defame that person:
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the jmputator would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered a disgraceful.
(a) A says: Z is an honest man, he never state B's watch, intending to cause it to be believed that Z did steal B's watch., This is defamation, unless it fall within one of the exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation unless it falls within one of the exceptions.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it falls within one of the exceptions.
First Exception-Imputation of truth which public good requires to be made or published: It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception on public conduct of public servants: It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception-Conduct of any person touching any public question: It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and. respecting his character, so far as his character appears in that conduct, and no further.
It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing requisition for a meeting on a public question, in presiding or attending as such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.
Fourth Exception-Publication of reports of proceedings of Courts: It is not defamation to public a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation: Justice of the peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section.
Fifth Exception-Merits of case decided in Court or conduct of witnesses and other concerned: It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and not further.
(a) A says: "I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest," A is within this exception if he says that in good faith, inasmuch as the opinion which he expresses respects Z's character as it appears in Z's conduct as a witness, and no further.
(b) But if A says: "I do not believe what Z asserted at that trial because I know him to be a man without veracity." A is not within this exception, inasmuch as the opinion which he expresses of Z's character, is an opinion not founded on Z's conduct as a witness.
Sixth Exception-Merits of public performance: It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation: A performance may be submitted to the judgment of the public expressly or by acts on the part of the author, which imply such submission to the judgment of the public.
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the public,
(c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.
(d) A says of a book published by Z. "Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind." A is within this exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further.
(e) But if A says: I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine. A is not within this exception, inasmuch as the opinion which he expresses of Z's character is an opinion not founded on Z's book.
Seventh Exception-Censure passed in good faith by person having lawful authority over another: It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under this orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in service;' a banker censuring in good faith, the cashier of his bank for the conduct of such cashier as such cashier are within this exception.
Eight Exception-Accusation preferred in good faith to authorised person: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child-Z's father A is within this exception.
Ninth Exception-Imputation made in good faith by person for protection of his or other's interest: It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
(a) A, a shopkeeper, says to B, who manages his business—"Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the good, A is within the exception.
Tenth Exception-Caution intended for good of person to whom conveyed or for public good: It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
500. Punishment for defamation: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
501. Printing or engraving matter known to be defamatory: Whoever prints or engraves any matter, knowing or having good reason to relieve that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
502. Sale of printed or engraved substance containing defamatory matter: Whoever sells or offers for sale any printed or engraved substance containing defamatory matter knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[/quote]
Amendments to Hudood ordinance
THE Law Reforms Order, 2006 has seen the release process – still in progress — of nearly 1,300 female prisoners from 55 jails all over Pakistan. This direct order by President Musharraf has been acknowledged as a huge step towards improving the justice system for women in Pakistan.
The ruling, which included release and offer of legal aid and protection to the women prisoners, has given the president a ‘softer’ face at least in the eyes of the international community which still views his commitment of de-Talibanising Pakistan somewhat critically.
But the amendments to the Hudood Ordinances approved by the Senate, concurrent to the release order of female prisoners, did not receive the approval the government hoped for, mainly because the modifications simply skim the surface, leaving many lacuna still to be exploited by corrupt forces. The approved amendments to the blasphemy and Hudood laws (of 1979) by the Senate, only raise the level of police investigation which will be carried out by a superintendent of police. They rely on the surety that a woman accused of ‘zina’ shall not be arrested without permission of the court and an enhanced punishment will be metedout in cases of karo kari and other honour-related crimes.
While the MMA members have continued to oppose all amendments on the premise that changes contrary to the injunctions of Islam and the Shariat would not be accepted, the opposition and treasury members have been critical of the ambiguous ruling by the Senate, which accords no clear cut decree to the women arrested in cases of rape, nor has justice been defined for other so called honour crimes.
The sketchy amendments first approved by the Senate appear as an eyewash for those who believe that the MMA’s strong (and growing) presence in the country will never allow any substantial step to be taken regarding the absolute repeal of the Hudood laws, which is the actual need.
When the amendments were approved in the Senate, opposition senators were far from happy at the outcome, even if the president had scored a small victory with regard to the release order of the female prisoners. Senator Farhatullah Babar had stated that the bill was passed without giving any thought to the views of the opposition political parties, the NGOs, the women organisations and members of civil society.
Two weeks ago, the government came up with a draft law in which the proposed amendments outline the removal of ‘zina bil jabr’ from the Hudood Ordinances, to be included instead in the Pakistan Penal Code. The government’s proposed amendments also removes the punishment of ‘taazir’ for ‘zina’ but it allows ‘zina’ to be liable to hadd. The punishment for rape will be death or life imprisonment and the requirement of four witnesses has been overlooked, and indirect and circumstantial evidence will be applicable. This draft bill, however, still awaits its turn for a motion in the National Assembly.
One of the critical points that has not been included in any proposed amendment is the existing clause of ‘qisaas’, which gives relatives the right to waive punishment for the offenders. In cases of karo kari this lacuna has even more serious implications as powerful elements still have the means to easily suppress the victims’ families and thus escape justice. Contained in Section 309 of the Pakistan Penal Code (PPC), this clause still holds as much weight as it did when the ordinance was first made legal. Added to this clause is the provision of ‘sulh badl’ (Section 310 of the PPC) under which the offender can get away by paying a small sum in compensation. This clause too remains unchanged in the present amendments made to the Hudood Ordinances.
Hudood, which in simple Urdu is the plural of hadd, literary translates into ‘boundary’ of a place or ‘extent’ of an action. And to have a command over the actions of the citizens, the Hudood Ordinances were a crucial political weapon of General Ziaul Haq, who devised “the most abused law in the legal history of the country” in 1979 in order to legitimise his dictatorship by proclaiming himself the guardian of Islam and hence the true ruler of an Islamic state.
Even after successive changes in regime since Ziaul Haq’s death, the law could never be repealed, as extreme reactions followed whenever the issue came under discussion or debate. President General Pervez Musharraf, too, had initially referred to it as a ‘sticky issue’ and had criticised the majority’s close-minded attitude and unwillingness to have a debate on it.
With passions running high, there has never been any time when the Hudood Ordinances were discussed rationally and so it remained the ignoble thorn in our justice system. The Shariat courts, which came into existence after the Hudood Ordinances were proclaimed blatantly made their presence felt particularly in the lower classes. Its worst outcome was that it became an avenue through which landowners could extort anything they wanted of their enemies or their tenants (serving as serfs). The means through which it could easily be put to use, was women. Since the laws equated rape with ‘zina’ these elements wreaked havoc with the adultery or zina law within its ambit. Cases against women began to pile. Persecution was unleashed in every way; by parents against daughters who had married of their own will; by husbands whose abused wives sought divorce or whose divorced wives remarried; and by others who wanted revenge and sought it through raping their enemy’s women.
Under the ‘zina’ ordinance which became the most exploited tool of the Hudood Ordinances, the number of women imprisoned multiplied drastically. In 1979, there were 70 women in jails in Pakistan. By 1988 – less than 10 years after the Hudood Ordinances were proclaimed – the recorded number of women in Pakistan jails had reached a shocking of 6,000 with 80 per cent booked under the ‘zina’ laws. According to the 2002 annual report of the Human Rights Commission of Pakistan, more than 200 women were killed by family members in so-called honour killings and 80 per cent of adultery-related Hudood cases were filed without supporting evidence.
Now, with the amendments approved by the Senate and those outlined in the Criminal Law Amendment Bill, 2006, overlooking the deeper implications of the ordinance, the critics are justified in their protests as its inequitable aspects will continue to nurture the evil practised under its legal cover. At the very least, suggestions of the National Commission for the Status of Women should have been included as these were jointly presented by eminent scholars, jurists and specialists comprising the commission.
In its barest form, the law as it still stands states that a woman who has been raped is required to provide four ‘tazkiat-uz-shahood’ (pious muslim men as witnesses) — or else risk being accused of adultery. The hadd punishment which follows adultery is stoning to death, and the ‘taazir’ punishment for ‘zina’ is up to 10 years of imprisonment and whipping – up to 30 lashes and/or a fine. The ‘taazir’ punishment for ‘zina’-bil-jabr is up to 25 years of imprisonment and whipping up to 30 lashes – provided of course the witnesses are at hand. In the case of Mukhtaran Mai this particular clause became the key issue as hundreds knew of her rape ordeal at the time it was happening, there were no apparent ‘aini shahid’ – clear cut witnesses – who had observed the act first hand.
Besides ‘zina’, the blasphemy laws and those for stealing and murder also remain as is and minorities cannot be presented as witnesses or represented by non-Muslim lawyers.
The lower courts have pronounced severe sentences under the Hudood laws over the past three decades and many terrible tales of women’s victimisation have become our legacy. The 13-year-old girl’s saga of rape in 1980, (she was abused and made pregnant by an uncle and his son) resulted in a sentence of 100 lashes which were later reduced to 15 because of her age. In 2002, the case of Zafran Bibi from Kohat gave the foreign press enough spice to malign Islamic extremism at a time when Islamic fundamentalism was under heavy fire anyway. Under the Hudood Ordinances, Zafran Bibi was sentenced to death by stoning for adultery in a case which was initially reported by her as rape at the hands of a neighbour. Apparently, she was used by her relatives to avenge a family feud, and was asked to name her neighbour as the culprit.
There are too many cases that prove that the Hudood Ordinances has been exploited in every way possible. Though most cases have been just convictions with humiliation being the price borne by the victims, there were two or three actual cases of flogging which took place when the laws were first framed. Lal Mai was administered 15 lashes in the year 1983. She was publicly flogged for adultery, before a crowd of 5,000 spectators in Bahawalpur.
After the principle idea of ‘tauheed’, Islam stresses on justice for all. Before Islam, crime had become rampant in heathen Arabia, where almost all of the teachings of the previous religions had been forgotten. Hence, most references found in the Holy Quran are of the practises of the era and of the land when and where the Quran was sent. And knowing that the situations would change greatly after development of civilisations, it was also declared that logic be used and then ‘ijmah’ – consensus after debate – be carried out.
It was Islam that first introduced a revolutionary concept of criminology. While ‘diyat’ (blood money) and ‘taa’zir’ are included as forms of punishment, it also emphasises that first the crime be proved beyond doubt and that there linger no doubt regarding the accused’s crime. With the less than perfect system of criminal justice in Pakistan, the ‘qisaas’ and ‘diyat’ laws need extensive re-designing as per ijtehad, a crucial aspect which has been left out in the recent arbitrary amendments.(Dawn)
This is the sign of 1 who loves GOD that his chief care z goodness n devotion n his words r mostly in praise n glorification of GOD.
Oh No! Not Again!
The Senior Member has done it again! You simply quoted Maheen Rasheed's article Amendments to the Hudood Ordinance published in Jang group's secular The Daily Dawn, issue of 18 Rajab, 1427 AH (14 Aug, 2006) page 6. This is, not at all, pleased me.
Use your intellect, but, atleast know what you are saying! Many people think that whenever someone is discussing the Hudood Ordinance, he is one of those guys looking to torn the draft of this Ordinance into a thousand pieces. No way! I am discussing to remove misconceptions and to aware people of the lies spread by the media--Geo TV tops the list with mountainous lies, both in quantity and quality! Jang Group has lied profusely on so much issues about the Hudood Ordinance!!!!
Anyways, let me point out some extracts from the above article & explain what I really am trying to tell you.
The word in italics is a white lie, because, this is already provided by the Ordinance!!!! The Hudood Ordinance has been quoted on the previous page which clears states the following in Section 10, sub-section (1):-
(a) If the crime is not liable to hadd, it shall be liable to tazir.
(b) If hadd cannot be enforced [in accordance with Section 9] then, the crime shall be liable to tazir.
(c) If proof in either of the forms mentioned in Section 8 [i.e. four Shar'ai witnesses and/or confession by accused] is not available & hadd for Qazf has not been awarded to the complainant [which cannot be awarded in case of zina-bil-jabr, unless the accusation is a lie], then the crime shall be liable to tazir.
This means that if four witnesses are not available and/or the accused has not confessed his crime, but, the court is satisfied that the crime stands proved on other grounds e.g. medicolegal, DNA test, circumstantial evidence, torture marks, pubic hair, etc etc etc. then tazir can still be awarded.
Tazir for gang rape is death, while that for ordinary rape is 25 years imprisonment, 30 stripes & fine.
I have repeated this a million times, but, is there anyone to listen???
(i) 'Zina' and 'Zina-bil-jabr' have separate definitions as well as separate sections
(ii) In the definition of zina, the phrase 'A man and a woman ARE...' is used, whereas, in zina-bil-jabr, the words are: "A person IS said to commit..."
(iii) Hadd punishment for 'zina' is 100 stripes only; for zina-bil-jabr, 100 stripes as 'hadd' plus any 'tazir' punishment including death, as the court deems fit
(iv) Tazir punishment for 'zina' is imprisonment of 4 to 10 years plus 30 stripes; for 'zina-bil-jabr', death in case of gang rape, 25 years imprisonment + 30 stripes + fine in case of ordinary rape, life imprisonment + 30 stripes in case of kidnapping/abducting & selling/buying women, 7 years imprisonment + 30 stripes + fine for enticing away, etc etc.
There is only one common thing between the two crimes in the Ordinance (besides the letters z-i-n-a) and that is the proof required for proving the crime liable to Hadd. This is infact not done by the Ordinance itself; it is proved from Ijma & several ahadith (like that found in Tirmidhi Sharif), etc. But, still this does not mean that the Ordinance has equated the two crimes!
The proof for theft & drinking liquor liable to hadd, is 2 Shar'ai witnesses; can one reasonably argue that the Shari'ah has equated the two crimes?! (Mercy!)
Where? Where? WHERE? WHERE? WHERE? WHERE? O WHERE?! WHERE IS THIS STATED IN THE 22 SECTION ORDINANCE??? QUOTE JUST ONE SECTION TO PROVE & I WILL CHANGE MY NAME TO WHATEVER YOU LIKE!
I have clarified all issues mentioned in the article in my previous posts... The Decision is Yours!
I also want to tell you guys here that I think that I have caught one scandal about this Ordinance i.e. the version of the Ordinance found in police stations differs (at an extremely subtle point) from the version found in the Official Manual. I think that this difference is the real reason why a rape victim is put into jail by the police! I will try to shed light in the up-coming post!
What does the Bill contain?
By Anwar Syed
MUCH has been said about the positions, pro and con, taken by the various political parties and coalitions concerning the Protection of Women (Criminal Law Amendment) Bill that the government moved in the National Assembly a few weeks ago and which appears to be going nowhere. Some observers believe that, unnerved by the opposition, the government has decided to consign the bill to the proverbial “cold storage”.
We do know that the bill was intended to amend certain provisions in The Offence of Zina (Enforcement of Hudood) Ordinance (commonly known as the Hudood Ordinance), promulgated by General Ziaul Haq in February 1979 (less than two months before the execution of Zulfikar Ali Bhutto) largely to project himself as a champion of Islam and to ingratiate himself with the ulema.
Proceeding from the premise that the “hudood” invoked in Ziaul Haq’s ordinance are the word of God and His Prophet (PBUH), the Islamic political parties assembled in the MMA have argued that any amendment of its provisions would be tampering with the Quran and Sunnah and therefore intolerable. They threatened to resign their seats in the National Assembly and withdraw from the coalition government in Balochistan in case the Protection of Women Bill passed in the version recommended by a parliamentary select committee. It wanted to change that version. The proponents of the bill maintained that in no way did it violate the Quran and Sunnah. The Muttahida Qaumi Movement (MQM), a component of the ruling coalition at the centre and in Sindh, vowed to vote against the bill if it incorporated the MMA’s revisions.
So far, we (the newspaper readers and television viewers) have merely been punching the clouds. We have not been told the specifics over which they are fighting. Even reputable newsmen do not seem to know the provisions in the Hudood Ordinance that its critics want to take out and the nature of their objections to the same. Nor has the MMA identified the provisions in the Protection of Women Bill to which it objects and explained how these provisions violate the Quran and Sunnah.
Yet we must know what exactly the issues are if we are to consider them intelligently and constructively. We are thrown back to our own resources in this undertaking. I have located the text of the so-called Hudood Ordinance, studied it, and I will share with the readers my reaction to such of its provisions as might be open to objection.
The Ordinance has the purpose of modifying the existing law relating to zina so as to bring it into conformity with the injunctions of Islam as set out in the Quran and Sunnah. Before proceeding further, we must have a firm grasp of some of the key terms used. (1) An adult is one who is 18 years of age if male, and 16 (or past puberty) if female. (2) “muhsan” is a Muslim adult man or woman, married to a Muslim adult woman or man, and the marriage in each case has been consummated (that is, the party concerned has had sexual intercourse with his/her lawful spouse). (3) “Hudood” are the penalties prescribed by the Quran and Sunnah for named offences. (4) “Tazir” means any punishment other than the hudood. (5) “Zina” is wilfully committed sexual intercourse between a man and a woman who are not validly married to each other; “penetration” being sufficient to establish that the deed has been done.
If the parties to the act of zina are “muhsin” (that is Muslim adults and married, but not to each other, which makes their act “adultery”), they are to be stoned to death in a public place. (After the stoning has begun, the convicted person may be shot dead whereupon the stoning shall stop.) If a party to zina is a single person (unmarried), he/she is to be sentenced to whipping numbering 100 stripes.
We now come to section 6 of the Ordinance, dealing with “zina bil Jabr” (rape), which torments the advocates of women’s rights more than anything else in this document. “Zina bil jabr” may be said to have taken place if one of the following circumstances is present: (1) parties to the sexual intercourse are adults and they are not married to each other; (2) one of them performs the act with the other against the latter’s (victim’s) will or without her consent; (3) the victim’s consent is obtained by putting her in fear of death or hurt in the event of non-compliance; (4) the victim gives her consent in the mistaken belief that the other party (offender) is her husband and the offender knows that to be the case. If the convicted party is a “muhsin” (adult, muslim, and married to a third party), he/she is to be stoned to death; if not a muhsin, he/she is to be whipped (100 stripes) and, at the judge’s discretion, awarded additional penalties, possibly including death.
If the person convicted in a rape case is not an adult, he/she may be awarded imprisonment for five years and, presumably, fine and whipping (30 stripes).
Whipping is required if the convicted person is more than 15 years of age. Note that the penalty in cases of zina and zina bil jabr is to be executed only after the relevant appellate court has confirmed it. Until then the convicted person remains in simple imprisonment.
We come now to the matter of proving that zina or zina bil jabr has been committed. The party concerned may appear before a competent court and confess his/her wrongdoing. Alternatively, the court, in order to convict, must have the testimony of four truthful adult Muslim male witnesses able to say that they have seen with their own eyes the sexual intercourse between the accused parties (actual penetration) taking place. The hadd is not to be applied if at any stage the accused retracts her/his confession, or if any of the pious witnesses resiles from his testimony.
In this event the judge may award punishment under another law (tazir) on the basis of such evidence as he may on record. In rape cases that are not liable to hadd imprisonment for four to 25 years plus whipping (39 stripes) may be awarded. In cases of gang rape, all participants in the act will get the same punishment.
Sections 11 to 13 of the Ordinance prescribe penalties for kidnapping a woman to force her into an unwanted marriage or to engage in sexual intercourse, buying and selling women to give them into prostitution, or abducting a boy to sodomise him.
How do we evaluate the Hudood Ordinance? Not only is it for the most part unenforceable, it seems to misrepresent the objective of the Islamic pronouncements with regard to sex out of wedlock. Leaving aside confession, which in the vast majority of cases is not likely to be forthcoming, the evidence required to establish guilt is extremely difficult to adduce. Various provisions of the Ordinance emphasise that the accused must not be insane if they are to be put through a trial. It is most unlikely that two sane persons in any civilised society will have sexual intercourse in a manner and in a place wherein four adult males can see with their own eyes the act of carnal conjunction.
Why then does Islamic law require evidence virtually impossible to furnish for establishing guilt? This is a question that our ulema do not feel called upon to address. That is the way God’s law is, they will say, and theirs is not to reason why. But this attitude does not make the question go away. It stares us in the face: why have a law if it cannot be enforced? In my interpretation, the law has been so framed because it is not the lawmaker’s objective to get the state and its enforcers get involved with sexual relationships. Let them be a matter between the parties concerned and God, to be settled on the Day of Judgment. The lawmaker is concerned, here and now, with the prevention of a nuisance, that is, performance of sexual intercourse in public places. In this connection, recall also Islam’s emphasis on the individual’s right to privacy.
Forgot to check the thread for weeks!
Asalam-o-alaikum faaroq bhai!
I stopped checking this thread regularly, because, no one had posted here for so long, so, I thought so shall be in the future; but, I was wrong.
I just took an overview of the article and its so simple to answer it... wait for my next post. Due to ramadan, free time is too less & so, my next post may get delayed by a few days.
My e-book Critique of the NCSW Report on Hudood Ordinances has not still been completed yet; I decided to add a few more things including one complete section entitled "A Bad Name Is Worse Than Bad Deeds." In this section, I will try to present the real truth and cause behind such cases as Zafran Bibi Case, Mukhtara Mai Case, etc. (ONLY GOD KNOWS WHEN THE E-BOOK WILL ACTUALLY BE COMPLETED!)
Bye for now!
You'll have to wait...
I haven't yet written a single line in answer to Syed Anwar's article due to less time!
I am a 17 year old FSC pre-medical student, so, I have to study that in the first place. Alhamdulillah, I took 479/550 marks in 1st year and will try to get more in 2nd year. Then, I am planning to take SCJP (Sun Certified Java Programmer) certification exam in mid-Ramadan, so, I have to study for that too. Then, in Ramadan, time shrinks too. On top of all, in this routine, I have to find time to write my book too; currently, it is 199 pages. I also like to read articles on international issues & politics and regularly visit groups like Mike Rivero's What Really Happened. Then, our family is short, consisting of only 4 members. Our father was hit by a stroke earlier and later, he fell & fractured his leg; he can walk with the help of walker now. So, a total of 3 people including me, my brother & mother have to manage all household affairs.
Calculate for yourself how difficult it is to manage all things in such tight routine. I will try to work hard & complete the book as early as possible.
Thanks for your compliments...
Phew... answered 80% of the article
Okay... I know that I am too much late and I'm sorry for that...
As I promised before, I am here to answer off Anwar Syed's article on Hudood Ordinance, which has been posted above by brother Faaroq. Let's waste no more time & start answering off the article...
I really wonder how the Dawn newspaper makes its readers digest and swallow such articles coupled with others. I feel quite shocked when I am reminded that this is the same newspaper which the founder of our couuntry, Quaid-e-Azam (May God grant him Jannah), had founded!
In previous articles, they once would say that a rape case is converted to adultery without four witnesses. Then, in another article, they would say that this is not the case but its impossible to produce four witnesses. In yet another article, they would say that tazir can be awarded on lesser witnesses. I just can't imagine how they can keep on contradicting their own selves and in the same breath, succeed in convincing their readers!
Now, bit-by-bit I take the above article...
Again, the same worn-out stupid old argument has been presented that the Hudood Ordinance was promulgated by Zia-ul-Haq to protect himself.
I cleared up earlier that the Ordinance was drafted in Arabic first by a Committee consisting of the following members:-
(1) Mufti Muhammad Taqi Usmani (Chair-person of the O.I.C. Fiqh Council)
(2) Maulana Zafar Ahmed Ansari (RA)
(3) Pir Karam Shah Al-Azhari (RA)
(4) Dr. Mehmood Ahmed Ghazi
(5) Khalid M. Ishaque
(6) Sharif-ud-din Pir Zada
(7) A. K. Burohi
(8) A. K. Samdani
(9) Muhammad Afzal Cheema
(Help was also sought from Dr. Maruf Dawalibi, former president of Syria, Hanafi jurist of international fame, president of Arab Muslim league and an advisor to King Khalid bin Abdul Walid.)
I described in an earlier post that this Committee prepared the draft after two years of thorough debate and discussion.
Then, it must be noted that the Ordinance did not remain as such. On 11 November, 1985, the National Assembly passed an Act (i.e. by two-third majority) whose name was The Constitution (Eight Amendment) Act, 1985 (XVIII of 1985). This Act modified Article 270-A to the Constitution which provides affirmation to the five Hudood Ordinances. Thereafter, the National Assembles of 1988, 1990, 1992, 1995, 1998 and 2002 never raised on objection these Ordinances!
We will be justified here to pause for a minute and ask Anwar Syed that do you still call this a law pasted by a single man on others?
Furthermore, saying that the law was used by Zia-ul-Haq to protect himself cannot denounce the law in any way, because of the obvious fact that an Ordinance consists of articles and sections which can neither think nor feel. The successive National Assemblies did not raise any objections on these Ordinances; if Anwar Syed can come up with a solid reason for repealing or even amending the Ordinance, then one might give due thought to it.
Some other people say that the Ordinances were not made by Parliamentary Debate and should be repealed for the same reason. The answer to this argument can be two-fold; firstly, the passing of an act by the 1985 National Assembly in support of it & no objections by the successive National Assembles is a clear proof that the law does not contain anything wrong.
Secondly, these Hudood Ordinances cannot be singled out as a major part of the laws of our country are Ordinances, for example, to name a few:-
(1) Police Order, 2002
(2) Income Tax Ordinance, 2002
(3) Legal Framework Order, 2002
(4) Pakistan Arms Ordinance, 1965
(5) Muslim Family Laws Ordinance, 1961
(6) Microfinance Institutions Ordinance, 2002
(7) Microfinance Banking Ordinance, 2001
(8) Banking Companies Ordinance, 1962
(9) Punjab Usurious Loans Ordinance, 1959
(10) Punjab Urban Rent Ordinance, 1959
... and this list can fill whole volumes!
Furthermore, as to my knowledge, MMA has not objected the amendments ONLY because the Government is tampering with the Quran and Sunnah. Justice (R) Khalil-ur-Rehman, Advocate Khalid Ishaque, Maulana Yusuf Ludhianvi Shaheed (RA), Justice (R) Mufti Taqi Usmani and so many others have answered almost all objections on the Ordinances. In fact, late Justice (R) Khalil-ur-Rehman even said: 'The answer to every question about the Islamic law is available.'
But, unfortunately, the media only quotes one or two statements in such a way as to obscure the truth. I can say with confidence that at least 85% of the people of Pakistan don't know that a rapist can be punished in the absence of four witnesses!
To give you a simple example of the above nature, I quote here the statement of Hafiz Salahuddin as presented on Zara Sochieye's website:-
I remember one of his articles entitled Sterile Public Debate in which he quoted someone else as saying:-
This argument itself is usually based on the presumption that unless there are four witnesses, a rapist cannot be punished; since, this is a fallacy, its fairly simple to dispose off this argument.
Furthermore, no person in Pakistan can guarantee or even suggest that in the coming years, the Islamic Shari'ah will be fully implemented in the society, or that all obscenity, immodesty, etc. will end and Islamic dress code, etc. shall be obeyed by all. Thus ending the Ordinances will only facilitate the further corruption of society.
But, the above two points are not enough as the absurdity of this argument is not unveiled yet!
To proceed to analyze this argument, we restate it here.
Putting this in the original argument, we get:-
This is a natural example; we see everywhere that light bulbs, lamps, etc. which are sources of light are used when there is less light. Street lights are turned on at night and not at day. [Of course, my locality Gulbahar in Peshawar is an exception ]
Going the other way around, it means that if x exists in adequate amounts, then there is no need for a source of x. If there is enough light in the room, we need not turn on the lights.
In the same way, if justice already exists in a society, then there is no need for a source of justice. If Islamic norms are being followed by almost each and every person, then there are no crimes or criminals and consequently, there would be no need of a criminal law.
To sum up then, if these hudood laws presume the existence of justice, then this is the greatest, biggest and most ABSURD NON-SENSE ever stated by any jurist in the history of Islamic criminal law!!!!!!
Muhammad Ashraf vs. The State (PLD 1987 FSC 33)
MR. JUSTICE ABDUR REHMAN KHAN KAIF
Puberty how to be determined:-
In determination of the factor of puberty, physical development shall be given preference over the age.
Sarwar vs. The State (PLD 1985 FSC 107)
MR. JUSTICE GUL MUHAMMAD KHAN
The question before full bench was to determine the age of buloogh. It was held that “boys are considered to be sexually potent at the age of puberty which usually occurs at the age of 15/16. There is no doubt that the sense of potency in the medical science and buloogh in Shariah is not different.”
Similarly, in Section 6 of the respective Ordinance, there are four cases in which zina-bil-jabr is said to be committed, not zina. (Refer to the original Ordinance on Page 1 for details.)
I considered it important to clear up this, because, an intercourse which is 'willful' may not still be zina, e.g. if it is not 'consensual' as in the following case.
A woman allowing a man to have intercourse and not resisting, because of the fear of being killed. Here the act is willful, but not consensual and consequently, zina-bil-jabr not zina.
parties to the sexual intercourse are adults and they are not married to each other.
NOT ONLY IS THIS PURE NON-SENSE, BUT, ONLY THE AUTHOR HIMSELF CAN EXPLAIN HOW THIS WOULD TORMENT THE ADVOCATES OF “WOMEN'S RIGHTS” !!! In fact, if this is true, this should torment the advocates of “men's rights”, because, in accordance with Anwar Syed's interpretation of the Ordinance, an adult woman having illicit intercourse will always be considered a “victim” of rape.
I wonder how people still follow the opinion of such people & still believe in such pathetic newspapers!
I am quoting here the actual sub-section (1) of Section 6 of the concerned Ordinance for reference; please refer to this section for the actual definition of rape, circumstances, etc.
(1) Imprisonment is not mandatory; only fine can also be awarded as punishment, instead of imprisonment.
(2) Whipping is mandatory if the offender is 15 years or above in age, but, it must be noted that the phrase used in Section 7 is not exceeding thirty stripes, which means that the punishment of whipping can be as less as a single stripe! But, it must not exceed 30 stripes in any case whatsoever; it is at the discretion of the judge to decide the number of lashes according to the circumstances of the case.
Note: Recall the judgment of the FSC which I quoted a minute ago (i.e. PLD 1985 FSC 107). In this judgment, the court observed that boys have generally attained puberty at the age of 15/16. Age of puberty for females is on average 2 years lesser, so, the punishment of whipping being mandatory at the age of 15 is justifiable.
(3) If imprisonment is awarded as punishment, it may extend to a maximum of 5 years, but, the court can give as small period as it wishes. Usually, the court decides to give punishment equal to the period which the accused has undergone after being arrested; in this case, the person is 'acquitted' in the sense that he will not receive any additional punishment after the judgment.
(i) Either Anwar Syed has given an extremely confusing approach to the Ordinance which keeps several questions unanswered and leaves it up to the reader to interpret them in whatever way they wish; or
(ii) He failed to interpret the Ordinance correctly; most people of the same nature simply skip through Section 10(1) because of its complexity.
Anyways, the incorrect, confusing & inaccurate points in the above extract need to be corrected. We start off one-by-one:-
(i) The act of zina or zina-bil-jabr may be liable to hadd if it is committed in the circumstances specified in Section 5(1) of the concerned Ordinance.
(ii) Hadd punishment shall be awarded if the accussed confesses the crime himself or if four male adult Muslim sane pious eye-witnesses testify of having seen the act.
(iii) Tazir punishment shall be awarded either if: (1) the crime is not liable to hadd; (2) hadd cannot be enforced in accordance with Section 9; (3) proof in either of the aforesaid forms is not available.
(iv) To award Tazir, the court can rely on any form of evidence e.g. medical evidence, DNA test, testimony of lesser people, etc.
From Anwar Syed's writing, apparently it seems that he holds a similar opinion to that of Maheen A. Rasheed i.e. tazir can be awarded if less than four witnesses are available. This is not correct as tazir can be awarded on the basis of any forms of evidence; we shall quote a few judgments in this regard after a while.
The reason why these two as well as several others hold such a view is because of the fact that they fail to interpret Section 10(1). I quote here Sections 9 and 10 of the respective Ordinance for reference:-
This section states that the crime of zina or zina-bil-jabr is liable to tazir in one of the following cases:-
(a) Proof in either of the forms mentioned in Section 8 is not available. (The punishment of qazf liable to hadd cannot be awarded if tazir is awarded for zina or zina-bil-jabr to the accused.)
(b) Crime is not liable to hadd e.g. an insane person committing the crime.
(c) Hadd cannot be enforced e.g. a person retracts his/her confession.
The court itself shall decide whether the crime is proved on the basis of evidence on record or not; any form of evidence is applicable. Maheed A. Rasheed & Anwar Syed both misinterpreted the Ordinance, probably because they skipped Section 10(1). Furthermore, the following judgments in various cases must also be kept in mind while discussing tazir:-
Rashida Patel vs. The State (PLD 1989 FSC 95)
Shariat Petition No. 10/K of 1983 to 14/K of 1983 & 2/L of 1985
To prove the crime of Zina, the condition of four witnesses was necessary. However, if four male witnesses are not available, women can appear before the Court as witnesses, but in the light of their evidence, Hadd punishment shall not be awarded; only Tazir punishment shall be awarded.
[Annual Report of the FSC, 2002, p.33]
Muhammad Abid vs. The State (PLD 1988 FSC 111)
MR. JUSTICE GUL MUHAMMAD KHAN
Evidentiary value of Police Officials as witnesses:-
The police officers who are also Muslims, if they make a statement on oath, it has to be accepted unless it is shown from context that they are telling a lie or they have been declared as unreliable by a Court of competent jurisdiction.
[Annual Report of the FSC, 2002, p.51]
Mumtaz Ahmed vs. The State (PLD 1990 FSC 38)
MR. JUSTICE GUL MUHAMMAD KHAN
Scope and condition of Tazkiyah-al-Shuhood:-
Generally, every Muslim is a competent witness. He is ordained to speak the truth and should give evidence in favour of Allah & no one else, be it his parents, children, relatives or friends. No reason was stated for witness to have falsely involved accused persons. Involvement of accused in the offence thus stood fully proved.
(A very important judgment as it answers off the common misconception that a person who missed even a single Salah does not fulfill tazkiyah al-shuhood; this is totally incorrect.)
[Annual Report of the FSC, 2002, p.52]
Its pertinent to note here that in Section 8, the respective Zina Ordinance defines tazkiyah al-shuhood as follows:-
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in zina-bil-jabr:-
Zina was committed with a blind girl and she was convicted by trial court. She gave birth to an illegitimate child. The Court held that: “In the present case, it is clear that except the self-exculpatory statement of the girl and the statement of her father, who also maintained that she had been subjected to zina-bil-jabr, there is no other evidence. In Shariah, if a girl makes a statement as made in the present case, she cannot be convicted of Zina.”
[Annual Report of the FSC, 2002, p.49]
(Women right's NGOs will be scratching their heads right now as to how authentic their claims are!)
Gulsher etc. vs. The State (2004 SD 159)
MR. JUSTICE S.A. MANAN
Sole testimony of victim of zina would be sufficient to prove zina case against accused when defence was not able to shatter the veracity of victim’s statement.
[Annual Report of the FSC, 2003, p.24]
(It should be noted that no witnesses were available in the above case.)
Muhammad Zafar Naeem vs. The State (2004 SD 352)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement of victim of zina-bil-jabr who is a young girl of 11/12 years which is confidence inspiring would be sufficient for recording conviction/sentence under S.10 (3). Omission to produce shalwar, qameez and dopatta of victim of zina-bil-jabr would not be fatal to prosecution case under S.10 (3), which cannot be thrown away for such omission by prosecution.
[Annual Report of the FSC, 2003, p.24]
(It should be noted that no witnesses were available in the above case.)
Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35)
MR. JUSTICE SAEED-UR-REHMAN FARRUKH
It is well-settled that conviction can be based, in rape case, on the solitary statement of the victim if the same is found truthful and confidence inspiring.
[Annual Report of the FSC, 2003, p.24]
(It should be noted that no witnesses were available in the above case.)
Muhammad Ashraf vs. The State (NLR 1997 SLD 1)
MR. JUSTICE KHALIL-UR-REHMAN
Zina-bil-jabr by father with his daughter:-
Conviction of father for committing zina-bil-jabr with his teen-aged daughter; defence plea that he was substituted for real culprit, could not be accepted in circumstances of case. Conviction of the appellant u/s 10(3) of the Offence of Zina (E.O.H.) Ordinance and sentence of 25 years R.I. (rigorous imprisonment) awarded was proper to meet the ends of justice.
[Annual Report of the FSC, 2002, p.57]
(It should be noted that no witnesses were available in the above case.)
A few natural questions arise at this point in one's mind:-
(1) If this is the truth, then what about cases like Mukhatara Mai, Zafran Bibi, etc ?
(2) Do these newspapers misinterpret the law or do they intentionally portray things incorrectly?
As an answer to question 1, I decided to add a section to my book entitled A Bad Name Is Worse Than Bad Deeds. I present here just a brief account of an actual case viz. Zafran Bibi case.
Instead of writing the history of the case myself, I simply reproduce it from an article.
Mst. Zafran Bibi vs. The State (PLD 2002 FSC 1)
MR. JUSTICE DR. FIDA MUHAMMAD KHAN
Pregnancy and subsequent birth of a child by the accused lady whose husband had been convicted about nine years before in a murder case, and confined in jail; imprisoned husband had submitted an affidavit and made statement on oath, before this Court (FSC) wherein inter alia, he owned legitimacy of the child born during trial. Such being a highly pertinent aspect of the whole case it was certainly noticeable that who else could better testify and be a better judge of the pregnancy/legitimacy of a child of a married lady than that of her husband. Accused lady also confirmed on oath the legitimacy of the child. Hadd sentence on such score awarded to the accused was not maintainable and was set aside.
[Annual Report of the FSC, 2002, pp.61-62]
Now, let me clarify some issues:-
(i) Zafran Bibi's lawyer started defaming her instead of defending her; this is not a problem of the Hudood Ordinance.
(ii) According to records, the FIR which was filed had accused Akmal Khan and not Jamal Khan. It carried Zafran Bibi's thumb impression too, but, the police officer might have taken bribes for doing an ulterior work. (Only God knows!) Recall that its the CrPC which deals with loding of FIR and not Hudood Ordinance. Furthermore, this is not a defect of the law; its a problem in the law-enforcing agencies. Consequently, the law does not require to be changed; the police needs to be corrected.
(iii) Jamal Khan was not called in the court; although, this is not an issue of the Hudood Ordinance, but still, it needs to be pointed out that the judge acted dishonestly and against law.
The only thing in this whole case which is related with the Hudood Ordinance is the judgment passed by the Additional Sessions judge:-
Let's not get involved in hair-splitting and ambiguous discussion as to whether confession includes allegation or not. The most simple method to settle the issue is to see as to how Section 8 was interpreted before this judgment by other courts. We enumerate here a few judgments which are related with confession under Section 8:-
Mst. Safia Bibi vs. The State (PLD 1985 FSC 120)
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in zina-bil-jabr:-
Zina was committed with a blind girl and she was convicted by trial court. She gave birth to an illegitimate child. The Court held that: “In the present case, it is clear that except the self-exculpatory statement of the girl and the statement of her father, who also maintained that she had been subjected to zina-bil-jabr, there is no other evidence. In Shariah, if a girl makes a statement as made in the present case, she cannot be convicted of Zina.”
[Annual Report of the FSC, 2002, p.49]
Conclusion: This judgment clearly expounds the fact that if a woman accuses someone else of zina-bil-jabr, but, no other evidence is available, then she cannot be convicted of zina. This judgment was of 1985 whereas in the case under discussion, the sentence of stoning was passed in 2002. This alone is a sufficient proof that the judge deliberately misinterpreted the law.
Ghulam Ali vs. The State (PLD 1981 FSC 224)
MR. JUSTICE ZAKAULLAH LODHI
Confessional statement of woman against co-accused:-
Prosecution case resting only on confession of woman co-accused, confession of co-accused does not occupy position of a statement on oath before court of law. Such confession cannot be made good ground to support conviction of another co-accused. Appeal accepted.
[Annual Report of the FSC, 2002, p.47]
Arif Nawaz Khan vs. The State (PLD 1991 FSC 53)
MR. JUSTICE TANZIL-UR-REHMAN
Confession of an accused person against co-accused:-
In Islamic law, the confession of an accused against the co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession. Thus a confession only implicates the accused, but not the co-accused. If a person retracts from his confession, his retraction shall be accepted and he shall be absolved from hadd punishment, unless the Hadd punishment is proved by evidence.
[Annual Report of the FSC, 2002, p.52]
Conclusion: The above two judgments answer off the common objection raised by people that a rapist confesses his crime as zina before the court and the woman also gets convicted; this is a fallacy. The above two judgments clearly say that confession of one cannot be made ground for the conviction of co-accused. This is also proved from several ahadith e.g. a hadith found in Kitab al-Hudood of Sunan Abu Dawud.
Mst. Bakhan vs. The State (PLD 1986 FSC 274)
MR. JUSTICE GUL MUHAMMAD KHAN
1. Principle for recording of confession in cases of offence of zina.
2. Four times confession is necessary for a proof of offence of zina.
3. A plea of guilty is not a confession. Ultimate aim of Islamic law is correction and reformation & heavy punishment is provided only for incorrigible cases. Appeal accepted.
[Annual Report of the FSC, 2002, p.49]
Muhammad Sarwar and another vs. The State (PLD 1988 FSC 42)
MR. JUSTICE GUL MUHAMMAD KHAN
When a person wants to confess his guilt in accordance with the Offence of Zina (E.O.H.) Ordinance, Court should record his statement four times at intervals and each time accused should be asked to go out of the view of the Court. Order of the trial Court was set not supported by law and the same was, therefore, set aside.
[Annual Report of the FSC, 2002, p.50]
Ask yourself: Did the Additional Sessions Judge follow the above procedures in Zafran Bibi's case? And how could he follow the above procedures? Will he ask her to accuse someone four times or will Zafran Bibi have to retract her 'accusation' in order to fulfill the provisions of law of retraction of confession?
Don't be irrational! Use your mind! How can anyone on earth consider an accusation as a confession? The above judgments further prove the contrary that the law never meant any such thing.
And of course, I am not narrow-minded and have no problems in appreciating as well as praising all those NGOs which raised protest against this unjust judgment, especially, Ansar Burney Trust without whose efforts, a mother would have been unjustly punished. In my view, such corrupt judges should themselves be stoned to death to get a feel of how painful it is to get stoned to death for a crime which one has not committed!!!
Now, we come to the second question that can the media deliberately lie? The answer is a BIG YES! I will answer this question in somewhat detail later on as this will take us a little far from the real issue i.e. Hudood Ordinance.
The most confusing part of his statement is what he wrote about gang rape. He did say that all get the same punishment, but, he did not mention that the punishment--even under tazir--is death penalty.
The section 10(4) prescribes a penalty of death for gang rape even under tazir and no lesser punishment. This section was not present in the original Ordinance, but, came into being as a result of a judgment given by the Federal Shariah Court in Rashida Patel vs. The State (PLD 1989 FSC 95). In this judgment, the court ruled that gang rape is covered by verse 33 of Surah al-Maida (5).
The section 10(4) remained in the original Zina Ordinance till it was removed from this Ordinance and incorporated into the Anti Terrorism Act, 2002; nevertheless, it is still in force.
Section 12 --> Kidnapping or abducting in order to subject person to unnatural lust [ Ibid ]
Section 13 --> Selling person for purposes of prostitution [ Imprisonment for life + fine + whipping not exceeding 30 stripes ]
Section 14 --> Buying a person for purposes of prostitution [ Ibid ]
Section 15 --> Cohabitation caused by a man deceitfully inducing a belief of lawful marriage [ R.I. extending to 25 years + fine + whipping not exceeding 30 stripes ]
Section 16 --> Enticing or taking away or detaining with criminal intent a woman [ Imprisonment of either description extending to 7 years + fine + whipping not exceeding 30 stripes ]
All these punishments are tazirat i.e. the complainant can pardon the offender, any form of evidence is acceptable, etc. This was not mentioned by Anwar Syed and the reader may get the incorrect impression that witnesses are also required in this case also.
Then, it is a revolting thing to say that these sections are 'unenforceable.' We describe this in a while.
Secondly, in accordance with the Ordinance, insane people are not Muhsan and furthermore, zina or zina-bil-jabr committed by insane person is not liable to hadd. But, of course, it is liable to tazir and insane people can be punished with tazir if the court deems fit; the punishment can be annulled too.
[The issue of availablity of four witnesses will be discussed in my next post. Keep in mind that this issue has got nothing to do with injustice to women as tazir can always be awarded. That's how much I have done uptil now, in the scarce amount of time available to me... I will be answering the remaining part of the article soon. After that, I will (InshAllah) make a detailed post about the Protection of Women Bill in a separate thread.)
A GOOD ARTICLE
Dr. Israr Ahmed, who is the founder of Tanzeem-e-Islami and also, the editor of the magazine Meesaq, included one article in the said magazine. The article Hudood Ordinance per Aitarazat ka Jaiza (Urdu) is also a good & concise article on the issue. It is only about 8 pages and can be easily finished within 10-15 minutes.
Note that the concept of awarding tazir, in the above article, is a little different from the one found in the original Ordinance.
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