CSS Forums - Hudood Ordinance

Dear Zaman,

This post wast sent on this forum which I had saved in my PC. And I am forwarding it to you; this must be informative for you. May God bless you.

with best regards

Here is those pieces of information which you won't find so easily. Due to lack of time, I am compelled to just copy-paste those posts which I made elsewhere, but, it will be informative and helpful. Sorry, the formatting has been lost due to copy-paste.

[B]FIRST POST[/B]
[B]-----------[/B]
Kay Sadozai wrote: "besides all such trauma [rape] she [victim of rape] is forced to produce 4 Male witnesses who shud be full definition of Tazkia-tul-shahood??? Just think how on earth is she gonna do that?"

For others, remember the following points:-
(1) Under the Hudood Ordinance, there are two types of punishments: (a) Hadd and (b) Tazir.
(2) Hadd is awarded when the person is an adult and there are four Muslim male adult sane truthful witnesses who watched the act of penetration.
(3) Tazir is awarded if the proof for Hadd is not available, but, the court is satisfied; say, a girl was raped but there was no witnesses, but, the DNA test revealed the act. So, the court can award the punishment of 30 stripes, fine and 25 years imprisonment to the rapist as stated clearly in Section 10 of the Offense of Zina (Enforcement of Hudood) Ordinance, 1979. Examples of this form include Malyer Case, Abdul Rehman Case, Kalimullah Case of Karachi, etc.
(3) The Hudood Ordinance is only concerned with three things: (a) Definition of the crimes; (b) Proof required for the crimes; (c) Punishment of the crimes.
(4) The Hudood Ordinance does not deal with dislodging of FIRs, slow judiciary process, keeping women in jail or 5 star hotels. These are problems of: (a) PPC; (b) CPRC (Code of Criminal Procedure, 1898) and (c) Police Major Act.
(5) The Hudood Ordinance contains punishment for a variety of crimes. Major crimes include Zina i.e. consensual illicit intercourse, Zina bil Jabr i.e. rape and Gang rape. Other crimes include cohabiting caused by inducing deceitful belief of marriage, kidnapping, abducting women, enticing away with criminal intent a woman, etc.
(6) Punishment under Hadd for Zina is stoning to death if the person is married, Muslim, sane, free (not slave) and physically mature. If the person is sane, physically mature but not married, the punishment is 100 stripes. The tazir punishment for Zina is 30 stripes, 7 years imprisonment and fine.
(7) Punishment under Hadd for Zina bil Jabr is stoning to death if the person is married, Muslim, sane, free (not slave) and physically mature. If the person is sane, physically mature but not married, the punishment is 100 stripes and any punishment, including death penalty, as the court deems fit. The tazir punishment for Zina bil Jabr is 30 stripes, 25 years imprisonment and fine.
(8) The tazir punishment for Gang rape is DEATH PENALTY. It is interesting to note that those yelling for justice to women i.e. LJCP had proposed to amend this section themselves!!!!!!! LOLZ... TWO-SIDED CHEATERS!
(9) A case of Qazf (False accusation of Zina) cannot be dislodged by a man against a woman under the current Ordinances.
(10) If in a rape case, a crime cannot be proved due to "loss of evidence" or lack of evidence, the case simply ends. The woman is NOT charged with adultery; this is a lie being spread but is not found anywhere in the Ordinance. BBC was also involved in spreading this lie recently; I filed a complaint on their website, but, they have not responded uptil now.
(11) As far as Zara Sochieye is concerned, I have intellectually broken apart their whole effort. If you want to know about this, just join my Yahoo Group and read articles in the Files section of that group.

SECOND POST
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I forgot some things in my previous comment about the PPC. I am simply reproducing an extract from my article "Critique of the NCSW Report on Hudood Ordinance", pages 45-46:-
(Sorry, formatting lost...)

"Furthermore, the proposal to separate everything other than Hadd from the concerned Ordinance will cause injustice; the Islamic system of punishments is inter-connected. Hadd is the maximum punishment for a crime and the conditions for proving it are also strict; it is dropped in case of doubts. Tazir is also very strict and serves in itself as a source of driving away evils. Tazir can be awarded when the crime is not proved by the testimony of four male Muslim truthful people or confession, but, proved by other means like medical evidence or circumstantial evidence, etc. The 5 Ordinances of the Hudood laws are a single legislation and if any Ordinance or section is detached from others, the legislation will be incomplete with holes.
Furthermore, if these penalties are made separate sections of the PPC, the whole judicial process will become a conjecture. In the PPC, each section is a separate thing and if a case filed under one section is not proved, the court itself cannot take action in accordance with a separate section. So, if we assume for a second that the Ta'zirat have been included in the PPC, then this will cause great misery for anyone seeking injustice; consider this example. A case was dislodged in accordance with one section of the PPC for kidnapping a lady with the intent of illicit intercourse. Later, evidence was available to prove that the person had illicit intercourse, so, to punish him for that a separate case would have to be dislodged. Later, more evidence was available for proving a crime of gang rape, so, a new case would have to be dislodged afresh. Take another example where a person filed a case under the Ordinance, but, could not prove it. To punish him under Tazir, a separate case would have to be dislodged; in fact, if evidence is found during hearing that the accused was involved in some other crime, a new case would have to be dislodged afresh. Certainly, this would cause ambiguity and confusions which do not exist when Tazir are included as part of the Ordinance; this is because one cannot severe Hudood from Ta'zirat just like one cannot severe the Qur'an from the Sunnah.
Our proposal is that the Tazir should not be included in the Pakistan Penal Code; Ta'zirat are very important in the Ordinance as they allows us to punish the rapists without the need of witnesses, only on the basis of medical evidence and removing it will cause great injustice to women. This is because the crime will not be proved by any means other than the testimony of four male Muslim truthful people and/or confession, which is akin to saying that it will not be proved in 85-90% of the cases.
It must be noted right here that the Pakistan Penal Code contains no punishment for drinking liquor, unmarried person committing Zina and a married person committing Zina with the consent of her husband/his wife. This is because it was promulgated by the British who don't consider these acts as crimes. Also, the PPC is responsible for a great amount of injustice to women, for example, Qar-o-Qari, home violence, etc. and yet no one is talking about the repeal of this PPC. If a woman is hit severely by his husband, then according to the PPC, an FIR cannot be dislodged unless a bone has been fractured or a cut is one inch deep. In 99% of the cases of domestic violence, the women don't dislodge any complaint therefore. This is the status of the highly praised PPC!!! (Mercy!)"

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Many a times, it happens that a conference is held on "Qar-o-Qari" and the proposal or conclusion is to amend the Hudood Ordinance! (Astaghfirullah)

Also note that the Hudood Ordinance is usually taken to mean "The Offense of Zina (Enforcement of Hudood) Ordinance, 1979." But, there are five (5) Ordinances related to Hudood.

(1) For theft, robbery, etc.
(2) For drinking intoxicating liquor, taking/keeping/selling intoxicants, etc.
(3) For falsely accusing someone of Zina
(4) For Zina & Zina bil Jabr including other sexual crimes...
(5) Details regarding execution of the punishment of whipping...

Most NGOs are talking about repealing all 5, NOT JUST ONE, ORDINANCES without any valid reason whatsoever. Even the Offense of Zina (Enforcement of Hudood) Ordinance, 1979 is great without any faults as I shown above & can prove.

THIRD POST
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OBJECTION:-
In huddod ordinance it is not clear what to do when a woman complains about zina-bil-jabr and NGOs are stating that when they can't bring four witness, they are punished under Qazf (false accusation of Zina.)

ANSWER:-
First of all, you should know that the Hudood Ordinance is concerned with only three things: (a) Definition of the crimes; (b) Evidence required for crimes; and (c) Punishment for the crimes. The issue of how the case is to be investigated, or whether women are to be put in jail, or how the FIR is to be dislodged falls outside the scope of the Hudood Ordinance.
So, at the first place, it is the Code of Criminal Procedure (Act V of 1898) and Police Major Act which deals with the issue of how to deal a complaint of Zina-bil-Jabr.
Secondly, under the Hudood Ordinance, a woman who complains of Zina-bil-Jabr, even if she can't produce any evidence, she is not a criminal. Section 6, sub-section (1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 reads:

"A person [B][U]IS[/U][/B] said to commit zina-bil-jabr..."

Contrast this with Section 4 of the same Ordinance:

"A man and woman [B][U]ARE[/U][/B] said to commit Zina..."

So, at the first place, the woman is not a criminal, but, let me describe the whole process. A woman who complains of rape, her explanation is taken as the First Information Report (FIR) and the police investigates the issue. Usually, the person who was accused is arrested and investigation is done; medical is also done. The case is heard in a court of Magistrate and during the hearing, the woman can describe the whole story; if she feels shy, she can take two female persons for moral support. She is also asked if the one arrested is the same person who raped her; if she says "Yes" then the lawyers start questioning the accused.
Under the Hudood Ordinance, there are two types of punishments: (a) Hadd; and (b) Tazir. If there are four male Muslim adult sane pious persons who witnessed the act of penetration and they testify in the court, then the accused if he is a Muhsan shall be stoned to death and if he is not a Muhsan, he will be awarded punishment of 100 stripes alongwith death penalty, if the court deems fit. [It's impossible that the court wouldn't deem it fit; after all, four people saw him!] If there are four witnesses not available, but, the accused confesses the crime himself and does not resile from his confession, he will be liable to the aforesaid punishment.
If the above conditions of evidence are not met, but, the court is satisfied that the crime stands proved on other forms of evidence (like DNA test, medical evidence, etc.), then Tazir can be awarded to the accused. This is mentioned clearly in Section 10 of the Hudood Ordinance and example of cases where this happened are Kalimullah Case, Abdul Rehman Case of Karachi, etc.
The tazir punishments are as follows:
(a) Gang rape: punishment of death to everyone
(b) Rape by one person: 25 years imprisonment, whipping numbering 30 stripes, fine
(c) Kidnapping: Life imprisonment alongwith 30 stripes
... and there are punishments for other sexual crimes too.
So, by now, you can see that a woman is not expected to produce four witnesses and the criminal can be punished even if there is no witness, but, the crime stands proved by medical examination, etc.
The last issue is that if a case of rape is filed and heard, but, there is not enough evidence available to prove the crime, then what will happen? The case will simply end without punishing anyone. But, it must be noted that if such a case ends without the charge being proved, there are two possibilities:-
(a) The allegation of rape was actually a lie; or
(b) The allegation may or may not be true, but, there is not enough evidence available to prove it or disprove it either; in such a case, there has been "loss of evidence."
[B]NOTE HERE THAT THE OFFENCE OF QAZF (ENFORCEMENT OF HUDOOD) ORDINANCE, 1979 ONLY GIVES WOMEN, NOT MEN, THE RIGHT TO FILE A COMPLAINT OF QAZF. THEREFORE, IF A WOMAN COMPLAINS RAPE BUT CANNOT PROVE IT, SHE CANNOT BE PUNISHED, EVEN IF THE ACCUSED WANTS TO PUNISH HER![/B]

Thus the Hudood Ordinance agress with the view that the verse of Surah Noor is not for everyone. But, there are other jurists who say the opposite like the famous Hanafite book Hedayah and mufassir like Imam Abu Baqr Jassas, in his work Ahkam-ul-Quran. This is a Ijtihadi issue, but, I think that the position of the Hudood Ordinance is better and I fully agree to it. This is because it paves path for justice and prevents possible injustice.
There is one more thing which I want to discuss here: the issue of execution of Hadd-e-Qazf. The punishment of Qazf, according to the Hudood Ordinance, is not awarded unless the accused wants it to be executed. If the accused wants to award punishment to the complainant, he files an application to the court. The court then hears the application and if the court is satisfied that the accusation was indeed false and a lie, the court will rule out the punishment of Qazf.
There are other proposals forwarded by NGOs regarding execution of Hadd-e-Qazf; if you keep aside the Shar'ai issues for a while and take a general view of the approach adopted by the Hudood Ordinance, you will find it to be the best of both worlds! Let us discuss how this is so; the different proposals given by NGOs are:
(a) that if there are less than four witnesses at the time of dislodging of FIR, the complainant should be whipped 80 times at the stop.
(b) that if a case was heard, but, the complainant could not bring four witnesses, he/she should be whipped 80 times (even if he/she was truthful)
(c) that if a case was heard, but, the crime could not be proved (not even on medical basis), then the complainant should be whipped 80 times--automatically, without the request of the accused.
For proposals (a) and (b), they are really utopian, because, if such proposals are implemented, then the door of tazir will be closed; furthermore, the criminals will get a free-hand, because, in 90% of the cases, four witnesses are not available and no one will dare to make a complaint, due to fear of getting whipped himself. The crime rate graph will reach Mount Everest in height!
It must be noted right here that under any law, it is more important to save a single innocent from getting punished than punishing 10 guilty persons. (We will not discuss whether its 10 or 10+1 or 10-1, but, it is far more important to save innocent people!)
For proposal (c), apparently it seems to be very good, but, on a close examination, it is revealed that it is also unjust. As I mentioned before, sometimes it happens that a case ends because of "loss of evidence" and the crime is neither proved, nor disproved. In such a case, it is necessary that before awarding anyone the punishment of Qazf (false accusation of adultery) it is first seen by the court that whether he really lied, or did he made a true accusation, but, failed to prove it.
Under proposal (c), this cannot be done, but, under the current condition of the Hudood Ordinance, this can be done and so, the present condition is the best it can be. If an accusation was a lie, it will be revealed during hearing and if the accusation was true, but, could not be proved, it will also be revealed. Thus the present condition guarantees that no innocent will be punished, whereas, in other proposals, innocents are more likely to be punished. This is because, the evil doers will already refrain from complaining, because, they already know that they will be punished if they try to do anything wrong!
One last doubt raised regarding the execution of Hadd-e-Qazf in the Hudood Ordinance is that the procedure of hearing is too slow, which causes the issue of Qazf to be stretched too much; this makes hurdles in the process of justice and therefore, it is unjust.
But, this reasoning cannot be accepted because of two major reasons. Firstly, the slow judiciary process is not a problem of the Hudood Ordinance; it is a problem of the Code of Criminal Procedure (Act V of 1898) and secondly, the judicial process can be speeded up in two ways:
(a) By making tribunals dedicated to hearing of cases of sexual crimes (just like a tribunal has been made for investigation regarding the Nishtar Park tragedy)
(b) By making appropriate amendments in the CrPC (Criminal Procedural Code), so that the slow process of issuing too much notices and putting off the hearing for weeks & weeks can be stopped.

Now, let me explain to you one more issue which is very important. Most NGOs say and you may have heard them that: "under the Hudood Ordinance, if a woman complains of rape and cannot produce four witnesses, she is charged with Zina." This is totally incorrect, because, as I mentioned before, the Hudood Ordinance does not deal with this issue (the CrPC does) and secondly, the Hudood Ordinance allows Tazir to be awarded in the absence of four witnesses. Furthermore, if a woman can't prove a case of rape, she is not punished; not even under Qazf.
So, what is the whole controversy about? One of the famous cases forwarded by NGOs in support of their argument is that in the Safia Bibi Case of 1983, a 11-year old blind girl who reported rape, was put in jail on charge of fornication. Later, due to a number of protests, the case was investigated by the Federal Shari'ah Court and the girl was allowed to go.
All this happened, not because of the Hudood Ordinance, but, because of the police! Amanullah Baloch, an activist of the Human Rights Commission of Pakistan, during his dialog with Ummat newspaper explained the real reason for such incidents. He said that once he was dealing a case of a 5-year girl who was raped. He took the girl to the police station so that the FIR can be dislodged. While this process was going on, he suddenly saw that the constable writing the FIR had mentioned that Section number of the Hudood Ordinance, which deals with cases of Zina, not Zina-bil-Jabr!!!! He asked the police officer whether a 5-year girl could commit Zina? The reply was "No." He further asked whether this is a case of rape or Zina? The reply was "A rape case." Then, he asked why he wrote that Section number which deals with Zina? On this that idiot police officer came to know that he had made the mountainous mistake of booking a complaint of Zina, instead of Zina bil Jabr!!!!
Had Amanullah Baloch sahib not present there, the ignorant police officer would surely had done a great injustice to the girl. If a complaint of Zina is booked, both man and woman usually are taken away for investigation, medical examination, etc. according to Police Major Act and they remain in jail till the court clears them. Due to the CrPC, such persons remain there for years; when the case is finally heard, they are released from prison! Thus innocent people suffer in this manner, not because of the Hudood Ordinance, but, because of the ignorant police, CrPC and Police Major Act.
Amanullah Baloch further stated that in a few years, in the city of Karachi alone, he had pointed out 40 such cases. Thus you can estimate for yourself how many such incidents would have occured in 27 years throughout Pakistan!

[B]TO SUM UP THEN, THE REASON WHY A VICTIM OF SEXUAL ASSAULT IS PUT IN JAIL, IS BECAUSE OF THE IGNORANT POLICE WHO DO NOT EVEN KNOW WHICH SECTION DEALS WITH ZINA & WHICH SECTION DEALS WITH ZINA-BIL-JABR. The ignorant police officer books and writes a complaint of Zina, instead of rape, due to which the victim is also arrested [under Police Major Act.] CrPC cause further misery due to which they remain there for years, till the court finally clears them. At this time, most NGOs say that the court has freed "a victim of Hudood Ordinance" whereas it is actually the victim of the ignorant police, CrPC, etc. AND THE HUDOOD ORDINANCE IS THE HIDDEN HERO (CHUPPA RUSTAM) UNDER WHICH THE COURT FREES THE INNOCENT![/B]

Unfortunately, the various corrupt Governments have just focused on establishing committees to review the Ordinances, rather than taking initiatives to correctly implement the Ordinances and correct the faults in other parts of the system.

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