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  #21  
Old Monday, December 04, 2006
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salam to all
can we view the original women protection bill passed by NA and CENIT of Pakistan? if any one has then please pm me i will be greate ful to him/her
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  #22  
Old Monday, December 04, 2006
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Thumbs up Text of Bill will be uploaded soon... (Insha Allah)

Wa alaikum as salam to all!
Thanks to amjad bhai for his nice comments.
I had chatted with the owners of the website, HudoodOrdinance.COM. One of them (viz. Dr. Fayyaz Aalam) said that they had the full text of the WPB (passed by NA) in both English and Urdu. They said that they would upload it soon (Insha Allah) to their website. We are all counting on them...

Thanks!

Best regards,
Abdul Rehman.
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  #23  
Old Tuesday, December 05, 2006
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Lightbulb Survey on WPB

Dear Abdul Rehman Brother,

I want to suggest a survey. Is is possible that we should draft a 5 to 10 questions questionnaire about WPB and some of our committed members collect information from various individuals. Then we can compile report on the analysis and put that here on CSSforum.

There might be very simple questions eg.

Did you read the draft WPB? Y/N

Are you in a favour of WPB? Y/N

Will it help the women in the future? Y/N

What are your suggestions or recommends on the bill (give brief whether you agree or not)

.................................................. .................................................. .................................................. .................................................. .................................................. .................................................. ............


There might be a lot of question that can be included, if you senior member agree on that then one member can complete at least 200 forms. As we are from different cities it will reflect the perceptions of different societies/cultures with in the overall one national cultural and in the Islamic perspective.

Please advice on that.

Thanks
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  #24  
Old Thursday, December 07, 2006
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Default Text of so-called "Women Protection Bill"

For all those who are interested in having a look of the text of this notorious piece of legislation, here is the complete text of the "Women Protection Bill", now the Act, as has been signed by the President.

Here it is:

Protection of Women (Criminal Laws Amendment) Act, 2006
A BILL further to amend the Pakistan Penal Code, the Code of Criminal Procedure and other laws

WHEREAS it is necessary to provide relief and protection to women against misuse and abuse of law and to prevent their exploitation;

AND WHEREAS Article 14 of the Constitution ensures that dignity of man and, subject to law, the privacy of home, shall be inviolable;

AND WHEREAS Article 25 of the Constitution guarantees that there shall be no discrimination on the basis of sex alone and that the State shall make provisions for the protection of women;

AND WHEREAS Article 37 of the Constitution encourages promotion of social justice and eradication of social evils;

AND WHEREAS the objective of this Bill is to bring in particular the laws relating to zina and qazf in conformity with the stated objectives of the Constitution and the injunctions of Islam,

AND WHEREAS it is expedient for the aforesaid objectives further to amend the Pakistan Penal Code (Act XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898, the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939), the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), and the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979) and for the purposes hereinafter appearing,

It is hereby enacted as follows:


--------------------------------------------------------------------------------
1. Short title and commencement
(1) This Act may be called the Protection of Women (Criminal Laws Amendment) Act, 2006.

(2) It shall come into force at once.


2. Insertion of new section, Act XLV of 1860
In the Pakistan Penal Code (Act XLV or 1860), hereinafter referred to as the said "Code", after section 365A, the following new section shall be inserted, namely:-
365B. Kidnapping, abducting or inducing woman to compel for marriage etc.-
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also he liable to fine; and whoever by means of criminal intimidation as defined in this Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.".


3. Insertion of new section, Act XLV of 1860:
In the said Code, after section 367, the following new section shall be inserted, namely:
"367A. Kidnapping or abducting in order to subject person to unnatural lust:
Whoever kidnaps, or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine."


4. Insertion of new sections, Act XLV of 1860
In the said Code, after section 371, the following new sections shall be inserted, namely:
"371A. Selling person for purposes of prostitution, etc.
Whoever sells, lets to hire, or otherwise disposes of any person with intent that such a person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such, purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.
Explanations:- (a) When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
(b) For the purposes of this section and section 371B, "illicit intercourse" means sexual intercourse between persons not united by marriage.

371B. Buying person for purposes of prostitution, etc
Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.
Explanation: Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.".


5. Insertion of new sections, Act XLV of 1860:
In the said Code, after section 374, the following new sections 375 and 376 under sub-heading "Rape", shall be inserted, namely:
"375. Rape:-
A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions, (i) against her will.

(ii) without her consent

(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt,

(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or

(v) With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

376. Punishment for rape
(1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten rears or more, than twenty-five years and shall also be liable to fine.

(2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.".



6. Insertion of new section, Act XLV of 1860.
In the said Code, in Chapter XX, the following new section shall be inserted, namely:-
"493A. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
Every man who deceitfully causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty-five years and shall also he liable to fine.".


7. Insertion of new sections, Act XLV of 1860.
In the said Code, after section 496, the following new sections shall be inserted, namely:
"496A. Enticing or taking away or detaining with criminal intent a woman.
Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

496B. Fornication:
(1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.

(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.


496C. Punishment for false accusation of fornication.
Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
Provided that a Presiding Officer of a Court dismissing a complaint under section 203C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence.".


8. Insertion of new sections, Act V of 1898.-
In the Code of Criminal Procedure, 1898 (Act V of 1898), after section 203, the hollowing new sections shall be inserted, namely:
"203A. Complaint in case of Zina.-
(1) No court shall take cognizance of an offence under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1919), except on a complaint lodged in a Court of competent jurisdiction.

(2) The Presiding Officer of a Court taking cognizance of an offence on a complaint shall at once examine, on oath, the complainant and at least four Muslim, adult male eye-witnesses, about whom the Court is satisfied having regard to the requirement of tazkiyah-al-shahood, that, they are truthful persons and abstain from major sins (kabair), of the act of penetration necessary to the offence
Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.
Explanation: In this section "tazkiyah-al-shahood" means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.

(3) The substance of the examination of the complainant and the eye-witnesses shall be reduced to writing and shall be signed by the complainant and the eye-witnesses, as the case may be, and also by the Presiding Officer of the Court.

(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused.

(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the four or more eye-witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.


203B. Complaint in case of Qazf.-
(1) Subject to sub-section (2) of section 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979), no Court shall take cognizance of an offence under section 7 of the said Ordinance, except on a complaint lodged in a Court of competent jurisdiction.

(2) The Presiding Officer of a Court taking cognizance of an offence on a complaint shall at once examine on oath the complainant and the witnesses as mentioned in section 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979) of the act of Qazf necessary to the offence.

(3) The substance of the examination of the complainant and the witnesses shall be reduced to writing and shall be signed by the complainant and the witnesses, as the case may be, and also by the Presiding Officer of the Court.

(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding the Court shall issue summons for the personal attendance of the accused.

(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.


203C. Complaint in case of fornication.
(1) No court shall take cognizance of an offence under section 496A of the Pakistan Penal Code, except on a complaint lodged in a Court of competent Jurisdiction.

(2) The Presiding Officer of a Court taking cognizance of an offence shall at once examine on oath the complainant and at least two eyewitnesses to the act of fornication.

(3) The substance of the examination of the complainant and the eye-witnesses shall be reduced to writing and shall be signed by the complainant and the witnesses, as the case may be, and also by the Presiding Officer of the Court.

(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding the Court shall issue a summons for the personal attendance of the accused:
Provided that the Presiding Officer of a Court shall not require the accused to furnish any security except a personal bond, without sureties, to ensure attendance before the Court in further proceedings.

(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.

(6) Notwithstanding the foregoing provisions, or anything contained in any other law for the time being in force no complaint under this section shall be entertained against any person who is accused of zina under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979) and against whom a complaint under section 203A of this Code is pending or has been dismissed or who has been acquitted or against any person who is a complainant or a victim in a case of rape, under any circumstances whatsoever.".



9. Amendment of Schedule II, Act V of 1898.-
In the Code of Criminal Procedure, 1898 (Act V of 1898), in Schedule II, (i) after section 365A in column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely: 1 2 3 4 5 6 7 8
365B Kidnapping, abducting or inducing woman to compel for marriage etc. Ditto Ditto Ditto Ditto Imprisonment for life and fine. Ditto;


(ii) after section 367 in column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely: 1 2 3 4 5 6 7 8
367A Kidnapping or abducting in order to subject person to unnatural list. Ditto Ditto Ditto Ditto Death or rigorous imprisonment which may extend to twenty-five years and fine. Ditto;


(iii) after section 371 In column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely:- 1 2 3 4 5 6 7 8
371A Selling person for purposes of prostitution, etc. Ditto Ditto Ditto Ditto Imprisonment which may extend to twenty-fve years and fine. Ditto;
371B Buying person for purposes of prostitution, etc. Ditto Ditto Ditto Ditto Imprisonment which may extend to twenty-fve years and fine. Ditto;


(iv) after section 374 the sub-heading "of Rape" shall be inserted;

(v) for the existing entries relating to section 376 in columns 1 to 8, the following shall be substituted, namely :- 1 2 3 4 5 6 7 8
376 Rape May arrest without warrant Warrant Not bailable Not compoundable Death or imprisonment not less than ten years or more than tewnty-five years and fine.

Death or imprisonment for life, if the offence committed by two or more persons in furtherance of common intention.
Court of Sessions;


(vi) after section 493 in column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely:- 1 2 3 4 5 6 7 8
493A Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. May arrest without warrant. Warrant Not bailable. Not compoundable Rigorous imprisonment which may extend to twenty-five years and fine. Ditto;


(vii) in section 494 in column 1, in column 3, for the word "Ditto", the words "Shall not arrest without warrant" shall be substituted;

(viii) after section 496 in column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely :- 1 2 3 4 5 6 7 8
496A Enticing or taking away or detaining with criminal intent a woman May arrest without warrant Ditto Not bailable Ditto Imprisonment of either description which may extend to seven years and fine Court of Sessions or Magistrate of the first class;
496B Fornication Shall not arrest without warrant Summons Bailable Not compoundable Imprisonment which may extend to give years and fine not exceeding ten thousand rupees Magistrate of the first class;
496C False accusation of Fornication Shall not arrest without warrant. Summons Bailable Not compoundable Imprisonment which may extend to five years and find not exceeding ten thousand rupees. Magistrate of the first class;


(ix) under the heading, "OFFENCES AGAINST OTHER LAWS" after the last entry in column 1 and entries relating thereto in columns 2 to 8, the following shall be inserted, namely: 1 2 3 4 5 6 7 8
Section 5 of Ordinance VII of 1979 Zina. Shall not arrest without warrant. Summons Bailable Not compoundable. Stoning to death in case of Muhsan and if not Muhsan whipping not exceeding one hundred stripes Court of Sessions;
Section 7 of Ordinance VIII or 1979 Qazf. Shall not arrest without warrant. Summons Bailable Not compoundable. Whipping numbering eighty stripes. Court of Sessions;



10. Amendment of section 2, Ordinance VII of 1979.-
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), in section 2: (i) after clause (a), the following new clause (aa) shall be inserted, namely:
"(aa) "confession" means, notwithstanding any judgement of any court to the contrary, an oral statement, explicitly admitting the commission of the offence of zina, voluntarily made by the accused before a court of sessions having jurisdiction in the matter or on receipt of a summons under section 203A of the Code of Criminal Procedure, 1898 (Act V of 1898)."; and


(ii) clauses (c) and (e) shall be omitted.


11. Omission of section 3, Ordinance VII of 1979.-
In the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No. VII of 1979), section 3 shall be omitted.

12. Amendment of section 4, Ordinance VII of 1979.-
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No VII of 1979), in section 4, the word "validly" and the explanation at the end of the section shall be omitted.

12A. Insertion of new, section, Ordinance VII of 1979:
In the Offence of Zina (Enforcement of Hudood Ordinance, 1979 (Ordinance No. VII of 1979), after section 5, the following new section shall be inserted, namely:-
"5A. No case to be converted, lodged or registered under certain provisions:-
No complaint of zina under section 5 read with section 203A of the Code of Criminal Procedure, 1989 and no case where an allegation of rape is made shall at any stagy be converted into a complaint of fornication under section 496A of the Pakistan Penal Code (Act XLV of 1860) and no complaint of fornication shall at any stage be converted into a complaint of zina under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No. VII of 1979) or an offence of similar nature under any other law for the time being in force.".


13. Omission of sections 6 and 7, Ordinance VII of 1979:
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), sections 6 and 7 shall be omitted.

14. Amendment of section 8, Ordinance VII of 1979:
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), in section 8, (i) the words and comma "or zina-bil-jabr" shall be omitted; and

(ii) in the marginal note, the words "or zina-bil-jabr" shall be omitted.


15. Amendment of section 9, Ordinance VII of 1979:-
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), in section 9, (i) the words "or zina-bil-jabr" shall be omitted;

(ii) in sub-section (2) the words "or zina-bil-jabr" shall be omitted; and

(iii) sub-sections (3) and (4) shall be omitted.


16. Omission of sections 10 to 16, 18 and 19, Ordinance VII of 1979:
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), sections 10 to 16 and 18 and 19 shall be omitted.

17. Amendment of section 17, Ordinance VII of 1979:-
In the Offence of Zina (Enforcement of Hooded) Ordinance, 1979 (Ordinance No. VII of 1979), in section 17, the words and figure "or section 6" shall be omitted.

18. Amendment of section 20, Ordinance VII of 1979.-
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979), in section 20,- (i) in sub-section (1), the first proviso shall be omitted and in the second proviso, the word "further" shall be omitted;

(ii) sub-section (3) shall be omitted; and

(iii) sub-section (5) shall be omitted.


19. Amendment of section 2, Ordinance VIII of 1979.-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordnance No. VIII of 1979), for clause (a) the following shall be substituted, namely:-
"(a) "adult", "hadd" and "zina" have the same meaning as in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and".


20. Amendment of section 4, Ordinance VIII of 1979:-
In the Offence of Qazf (Enforcement of Hadd) Ordnance, 1979 (Ordinance No. VIII of 1979), section 4 shall be omitted.

21. Amendment of section 6, Ordinance VIII of 1979:-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979), section 6, shall be renumbered as sub-section (1) thereof and after sub-section (1) renumbered as aforesaid, the following new sub-section (2) shall be added, namely:
"(2) The Presiding Officer of a Court dismissing a complaint under section 203A of the Code of Criminal Procedure, 1898 or acquitting an accused under section 5 of the Offense of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979), If satisfied that the offence of qazf liable to hadd has been committed, shall not require any proof of qazf and shall proceed to pass sentence under section 7.".


22. Amendment of section 8, Ordinance VIII of 1979.-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), in section 8, the words, "a report made to the police or" shall be omitted.

23. Amendment of section 9, Ordinance VIII of 1979:-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), in section 9, for sub-section (2), the following shall be substituted, namely:
"(2) In a case which, before the execution of hadd, the complainant withdraws his allegation of qazf, or states that the accused had made a false confession or that any of the witnesses had deposed falsely, hadd shall not be enforced.".


24. Amendment of sections 10 to 13 and 15, Ordinance VIII of 1979:-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), sections 10 to 13 and 15 shall be omitted.

25. Amendment of section 14, Ordinance VIII of 1979.-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), in section 14, subsections (3) and (4) shall be omitted.

26. Omission of section 16, Ordinance VIII of 1979:
In the Offence of Qazf (Enforcement of Hand) Ordinance, 1979 (Ordinance No. VIII of 1979), section 16 shall be omitted.

27. Amendment of section 17, Ordinance VIII of 1979.-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), in section 17, (i) the first proviso shall be omitted;

(ii) for the second proviso, the following shall be substituted, namely:
Provided that an offence punishable under section 7 shall be [ruble by a Coup of Sessions and not by or before a Magistrate authorized under section 30 of the said Code and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court.".


28. Omission of section 19, Ordinance VIII of 1979:-
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of 1979), section 19 shall be omitted.

29. Insertion of new section, Dissolution of Muslim Marriages Act, 1939 (VIII of 1939):-
In the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939), in section 2, after clause (vii), the following new clause shall be inserted, namely:-
(viia) lian
Explanation: Lian means where the husband has accused his wile of zina and the wife does not accept the accusation as true".


STATEMENT OF OBJECTS AND REASONS
One of the avowed constitutional objectives of the Islamic Republic of Pakistan is to enable Muslims to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as laid doom in the Holy Qur'an and Sunnah.

The Constitution, accordingly, mandates that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

The object of this Bill is to bring the laws relating to zina and qazf, in particular, in conformity with the stated objectives of The Islamic Republic of Pakistan and the constitutional mandate and in particular to provide relief and protection to women against misuse and abuse of law.

The offences of zina and qazf are mentioned in the Qur'an. The two ordinances relating to zina and qazf, however, make a number of other acts punishable in spite of the fact that the Qur'an and Sunnah neither define these offences nor has any punishment for there been prescribed. On no principle of qiyas can the punishments for zina and qazf or the procedure identified for their proof can be extended to these offences.

Any offence not mentioned in the Qur'an and Sunnah or for which punishment is not stated therein is Ta'zir which is a subject of State legislation. It is for the State both to define such offences and to fix punishments for these. The exercise of such authority by the State is in consonance with Islamic norms which the State is authorized to both define and punish. Accordingly, all these offences have been removed from the two Hudood Ordinances and inserted in their proper places in the Pakistan Penal Code, 1860 (Act XLV of 1860) hereinafter "PPC".

The offences listed in sections 11 to 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) hereinafter "Zina Ordinance" are Ta'zir offences. All these are being inserted as sections 365B, 367A, 371A, 371B, 493A and 496A of the Pakistan Penal Code, 1860 (Act XLV of 1860). Sections 12 and 13 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 hereinafter 'Qazf Ordinance' are being omitted. This is being done as the definition of qazf in section 3 of that Ordinance is wide enough to cover the qazf committed by printing or engraving or sale of printed and engraved material.

No change is being made in the language of the statutory definition of any of these Ta'zir offences or the punishment provided for these, save one. The punishment of whipping is being deleted (or these Ta'zir offences. As the Qur'an and Sunnah do not provide for any punishment with regard to these offences the State is authorized to make this change in conformity with the Islamic concept of justice. This is in accordance with the scheme of the PPC and the evolving standards of decency which mark the progress of a maturing society.

The Zina and Qazf Ordinances have been a subject of trenchant criticism by citizens in general and scholars of Islam and women in particular. The criticisms are many. These include the lumping of the offence of zina with zina-bil-jabr (rape) and subjecting both to the same kind of proof and punishment. This has facilitated abuse. A woman who fails to prove rape is often prosecuted for zina. The requirement of proof for the maximum punishment of zina-bil-jabr (rape) being the same as that for zina, it has made absolutely impossible to prove the former.

Where a prosecution for rape against a man fails but sexual activity is confirmed by medical examination or on account of pregnancy or otherwise the woman is punished for zina not as Hadd - four eye witnesses not being available - but as Ta'zir. Her complaint is, at times, deemed a confession.

A penal statute must be clear and unambiguous. It must mark the boundaries between the permitted and the prohibited with clarity. The citizens are, thus, put to notice. They can order their life and conduct by following these bright guidelines and steer clear of trouble. The vague definitions in thane and related laws are, therefore, either being clarified and wherever that is not possible, omitted. The object is to protect the unwary and unsuspecting citizens from unwittingly falling foul of penal laws.

The Zina Ordinance also defines "marriage" as a valid marriage. In rural areas, in particular, nikahs generally and divorces particularly are not registered. It becomes difficult for a person charged with zina to establish "valid marriage" as a defence. Non-registration has its civil consequences. These are sufficient. failure to register a nikah or have a divorce confirmed should not entail penal consequences. This is in consonance with the Islamic norm that Hadd should not be imposed whenever there is any doubt about the commission of the offence. The misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful former husbands and other members of society.

A triple talaq is pronounced. The woman returns to her parental home. She goes through her period of iddat. After a while the family arranges another match and she gets married. The husband then claims that sans the confirmation of divorce by the local authorities the marriage is not over and launches a zina prosecution. It is necessary to delete this definition to shut this door.

There is no hadd for the offence of zina-bil-jabr (rape). It is a Ta'zir offence. The definition and punishment of rape is, therefore, being incorporated in the PPC in sections 375 and 376 respectively. The gender neutral definition is being amended to clearly provide that rape IS an offence committed by a man against a woman. As consent of the woman is a defence to the charge of rape it is being provided that such consent would not be a defence if the woman is less than 16 years of age. This accords both with the need to protect the weak, which the Qur'an repeatedly emphasizes, and the norms of international legal obligations.

The punishment for gang rape is death. No lesser punishment is provided. The courts heating such cases have observed that in many situations they are of the opinion that a person cannot be acquitted while at the same time imposing the death penalty is not warranted in the fails and circumstances of the case. The result is that they feel obliged to acquit the accused in Stan cases. To address this concern, the lesser sentence of life imprisonment is being added as an alternative to the death penalty.

The procedure for the prosecution of Ta'zir offences of zina-bil-jabr (rape) and gang rape, like that for all other Ta'zir offences under the PPC, is to be regulated by the Code of Criminal Procedure, 1898 (Act V of 1898) hereinafter "Cr. P.C.".

Lian is a form of dissolution of marriage. A woman who is accused of adultery by her husband and denies the charge can seek dissolution of her marriage. Section 14 of the Qazf Ordinance refers to lian and also provides a procedure for it. A form of dissolution of marriage has no place in a penal statute. Accordingly, lian has been introduced as a ground for divorce under the Disssolution of Muslim Marriages Act, 1939 (VIII of 1939).

The definition of zina and qazf remain the same as in the Zina and Qazf Ordinances. For both zina and qazf the same punishments have been retained, as well.

Zina is a heinous crime that corrupts public morals and destroys the sense of modesty. The Qur'an regards zina an offence against public morality. The requirement of four eyewitnesses is not solely an evidentiary burden of extra-ordinary weight. It is also an assertion that if contrary to the hadith, "Allah loves those who hide their sins", one commits an act in so blatant a fashion that four people see it, the harm to society must be serious indeed. At the same time, the Qur'an protects privacy, prohibits baseless assumptions and inquisition and forbids interference in the life of others. It is for this reason that a failure to prove zina entails punishment for qazf (false accusation of zina). The Qur'an requires the complainant to bring four eye-witnesses to prove the accusation of zina. The complainant and the witnesses must be conscious of the seriousness of this offence and must know that if they make a false accusation or cannot prove the charge beyond doubt they will be punished for qazf. The conviction will follow the failure of the zina prosecution and will not be contingent on the initiation of fresh legal proceedings.

The Zina Ordinance has been abused to persecute women, to settle vendettas and to deny basic human rights and fundamental freedoms. To check such abuse both in the case of zina and qazf the Cr. P.C. is being amended to provide that only the Court of Sessions, on a complaint, may take cognizance of such cases. The offence has been made bailable so that the accused do not languish in jail during trial. The police will have no authority to arrest any one in such cases unless so directed by the Court of Sessions and such directions cannot be issued except either to compel attendance in court or in the event of a conviction.

The primary object of all these amendments is to make zina and qazf punishable only in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, to prevent exploitation, curb abuse of police powers and create a just and egalitarian society.


--------------------------------------------------------------------------------
Source:: Scanned image of the Bill from eteraz.org -

(The Statement of Object and Reasons, as put forth before parliament, although not a part of the enacted statute, but an importnat tool to decipher and interpret the meanings of any legislation, hence included).

In the end, I would say that we should be proud to have brothers like Abdur Rehman, who has been spending his efforts, energy and valuable time to present the other side of the story as well.

Now the Bill (ACT) is in your COURT, go through it and enlighten us with your views.


Meanwhile I shall remain

Sincerely yours

The Lawyer with no good laws to litigate
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  #25  
Old Friday, December 08, 2006
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@Lawyer
A million thanks for providing the text of this bill. Jazak Allah brother! I will analyze it soon (Insha Allah), if I found enough time. I am REALLY busy these days. Thanks a lot again!

Btw, a more readable version of the text of the WPB can be found here.

Best regards,
Abdul Rehman.

************************************************** ************************************************** ****************


Asalam-o-alaikum!
Here is one of my articles about the Protection of Women (C.L.A.) Act, 2006 which got published in yesterday's (i.e. 8th January, 2007) issue of The Frontier Post.

--------------------------------------------------------------------------------------------------------------
A critique of the Women Protection Act
By Abdul Rehman

The list of hotly debated topics now-a-days, include, undoubtedly, the recently passed Protection of Women Act. The act has, since it was tabled in the National Assembly, attracted strong support from the mainstream media. The act has been repeatedly labeled as a ‘relief’ and ‘source of justice’ to women, but, the authenticity of this claim is questionable. A brief discourse on the salient features of the act will itself be sufficient to shatter the veracity of this shallow claim.
First things first, the act has removed the section of ‘zina-bil-jabr’ from the zina ordinance, incorporating a new section into the PPC for ‘rape’. The move, portrayed as a ‘relief’ to women from a tough evidence requirement of four witnesses, has been warmly welcomed by feminist groups. The rationale for this provision, as described by the respected president, was to punish the rapists without the need of four witnesses. A case of rape, according to the supporters of this act, was converted to a case of adultery—without four witnesses—in the old ordinance.
Without going into the depths of legal documents, a single quotation from a case will be sufficient to burst this hollow balloon of mere propaganda. Justice Saeed-ur-Rehman Farrukh ruled, in Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35), that: “It is well-settled that conviction can be based, in rape case, on the solitary statement of the victim of rape if the same is found truthful and confidence inspiring.” Similar judgments of the Federal Shariat Court include, inter alia, Mukhtar Ahmed vs. The State (1996 SD 1), Muhammad Umar vs. The State (1999 P.Cr.L.J. 699), Gulsher vs. The State (2004 SD 159) and Muhammad Zafar Naeem vs. The State (2004 SD 352). The Federal Shariat Court, as early as 1985, had ruled in Mst. Safia Bibi vs. The State (PLD 1985 FSC 120) that in the absence of sufficient evidence, a case of rape will not be converted to a case of adultery. Such judgments & the de jure provisions of the hudood ordinance, deliberately concealed by the media and some other legal experts, have never been brought to the front for the general public. Had it been done, the opinion of a sizable chunk of the population would be much different.
It may be pertinent to note here that under the old hudood ordinance, there were two types of punishments, viz. tazir and hadd. Hadd is to be awarded when the crime of rape stands proved by the testimony of four Shar’ai witnesses or voluntary confession. If such evidence is not available, a tazir is awarded to the accused on the basis of such evidence as may be available, provided the crime is proved beyond reasonable doubt. Apart from medicolegal report (MLR), circumstantial evidence, etc. the acceptable evidence includes the testimony of women witnesses. In Rashida Patel vs. The State (PLD 1989 FSC 95), it was ruled by the FSC bench that women can appear as witnesses before the court and tazir shall be awarded to the accused, on the basis of their evidence. After the passing of the bill, this particular point i.e. not accepting the evidence of women has disappeared in thin air.
Keeping the above discussion in view, it becomes crystal-clear that the act under discussion has simply eliminated the hadd punishment for rape and added death as a tazir, if the court deems fit. Astonishingly, life imprisonment has been added as an option for tazir, in cases of gang rape, whose earlier sole punishment was death. This reflects double standards, as the corroboration provided in the “statement of objects and reasons” is that judges don’t want to punish gang rapists with death in a number of cases. The onus here is that if judges are reluctant to award death in cases of gang rape, will they ever exercise this punishment in cases of rape?
Despite huge slogans of ‘removing ambiguity’, the act is, in fact, a source of ambiguity. While it removes and modifies a number of sections, it is completely silent as to the fate of cases filed in accordance with the old sections. The hearing and judgment in such cases has now become such a question to which none can furnish a satisfactory answer. Cases will have to be filed afresh, as this seems the most probable scenario, which will only increment the suffering and loss of time & money of the complainants.
Contrary to the sweet title, the act removes the punishment for selling or engraving matter of the nature of ‘qazf’. The tazir for qazf has been removed and despite awareness of such a provision, the consequences have not been measured by anyone. The right of punishing a person for committing qazf against a non-Muhsan woman—which include non-Muslim, minor and insane women—has been eliminated. An imputation of ‘zina’, which is true, albeit, is made only for destroying the reputation of a certain woman, is not punishable—thanks to the recent act; the punishment was there in the old ordinance. The question as to whether such women can seek justice under PPC 499 is a matter of law, but, the fact still remains that such criminals will now get lesser punishment.
Embedding tazirat within the PPC is a very oft-iterated recommendation, but, the consequences aren’t pleasing. The impact of such a provision is effectively zero, provided the transfer is transparent and tazir punishments are preserved. Unfortunately, this is not the case with the present act, which removes all forms of whipping from the tazirat. The punishment for buying or selling prostitutes, is an ideal example in this case, which has been decreased from life imprisonment & whipping to simple imprisonment, which must not exceed 25 years—but, it could be as less as the period already undergone by the accused. The question of ‘who’ will get protection from such a provision is a food for thought for the readers.
Among the various amendments in the procedural laws, a few of them are of considerable interest. Firstly, the punishment for attempting to commit an offence, or abetting an offence, has been omitted. Secondly, a criminal conspiracy of any offence, covered by the hudood ordinance, is not punishable anymore. No imprisonment or similar punishment shall be awarded, upon non-payment of fine by criminals, for the offences mentioned in the hudood ordinance. More surprisingly, a sentence of hadd can now be remitted by the provincial government or the president—a provision which defies the open injunctions of Islam.
Filled with lacunae, both the article of fornication and false accusation of fornication, reflect the carelessness with which the draft was prepared. The article of false accusation of fornication lacks the exemptions which are mandatory for such sections. Accusation made in good faith is also punishable and words, such as “intending”, etc. have been avoided altogether.
The article of fornication shares the traits of a hurriedly-drafted product. The phrase “a man and woman” is devoid of any further provisions, such as sanity, maturity, etc. The proviso enshrining penetration to be sufficient to constitute the offence, has not only been omitted, but is explicitly removed from the hudood ordinance. Another loophole left in the definition is that the term “married” is used, instead of the phrase “validly married.” Though, such changes are explicitly brought about in the definition of zina, the exact interpretation of such provisions has been left scot-free. Such changes are not unique to the definition and alien to other parts; the punishment has been decreased a lot too. Imprisoning a person for upto 25 years, for selling prostitutes, but, imprisoning upto only 5 years, for actually committing an illicit intercourse (i.e. fornication) is something to which no meaning can be attached.
Changes in the procedure for filing complaints of zina, fornication and qazf, point unmistakably to the inference that eradicating immodesty & immorality, in the society, is no more a duty of the state. Committing fornication, as enshrined by the new act, is not an offence against the state, as the police have been deprived of any authority in the matter. A complaint in the court of magistrate, by someone who dislikes immorality, in his personal capacity, is the only possible way—a path filled with thorns as well as pitfalls. Two witnesses and four witnesses are required, at the time of filing a complaint of, fornication or zina, respectively—a first of its kind in the whole CrPC. And to add more spices, filing a complaint which is not entertained by the presiding officer, is an offence against the state. The state punishes, in a nutshell, those only who try to eradicate immodesty—but not those who spread it.
A key feature of the act is the inclusion of a provision which debars the conversion of rape cases into adultery, even if adultery is proved beyond the shadow of doubt. Such a provision leads us to another fissure in the act, in that two persons can commit adultery, but lodge an FIR of rape. From the evidence on record, rape would not be proved and since, the case can’t be converted to a zina case, the two offenders will be left free of charge to enjoy another night.
A few may argue that the provisions discussed above will provide relief to the women languishing in jails. Essentially, this argument is based on lack of knowledge, because, the hudood ordinance is not related at all with arresting people—it is the CrPC which is responsible for this. Just for waiting trial, the innocent people who dwell in jail, are actually the victims of the police and the slow judiciary system. The Law Reforms Ordinance, 2006 passed earlier this year, provides that no person shall be arrested for zina barring on an arrest warrant, issued by a court of competent jurisdiction. In addition to this, a case of zina will only be investigated by police officers, who are not lower in rank than an SP. Extending from the premise that no innocent woman was languishing in jail, it is senseless to make such provisions in this regard, which leave lacunae in the curbing of sexual offences.
Despite excessive changes in the procedure of filing complaints for zina and qazf, no change has been made in case of ‘rape’. A point highly capitalized by the media, before the passing of the act, included the miserable state of a woman who had been raped by those police officers, from which she sought help. This point has disappeared in thin air, since the passing of this act, albeit, it has not been remedied yet.
To sum up then, an unbiased view of the whole act will, willingly or unwillingly, turn the compass needle towards the fact that the so-called ‘protection of women’ act is a de facto effort to accumulate all factors for spreading immorality in the whole society.

Abdul Rehman,
Edwardes College Peshawar,
Wednesday, December 20, 2006 C.E.

--------------------------------------------------------------------------------------------------------------

[Available at my website]

Best regards,
Abdul Rehman.
[Contact me]

Last edited by Predator; Wednesday, April 15, 2009 at 03:01 PM.
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Old Thursday, February 01, 2007
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Assalam Alaikum,

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