AoA

With due respect and prior apology, I would like to type some lines. I had seen this thread time and again and was trying to avoid, but perhaps I was supposed to take hours out of my precious time to type... these lines do not intend to hurt feelings of anybody, and also do not represent any specific fiqah /school of jurisprudence. I am nobody in jurisprudence so have mentioned sources for these lines and anybody interested can read them.

1) my dear fellows, we as a nation and as humans have many problems and defects, one of the problem is we jump at the conclusion without checking to the background history, the context and other aspects of things. This may moreorless relate to an anecdote, 'once a guy was very reactive without getting the point, he used to speak out his own version and his mother was very worried for this. She talked to a scholar (an old mullah), he said sent him to me. So when the guy reached to him, the scholar or mullah said hey young boy where is your ear, oh look that crow has taken it and flying away, go and fetch it before crow disappear. The guy turned and rushed towards the side pointed by mullah sb. All people around burst into laughter and then boy realized his ear is still at its place! So be patient to look into the things before issuing own version of fatwahs!

2) Another problem with us that we do have lot of time to discuss religion, national security, bad governance and political problems. These things are often considered favorite punching bags and everybody who speaks loud and clear against religion fundamentals/fanatics/idiots mullah/old traditions etc is considered to be a liberal, outspoken and a person having conscious. Mullah is bad, he is idiot, he craves for sex, illiterate, cannot think out of box, greeds for money etc. But why is a Mullah like that! If we take examples from current era, in majority of cases, a child who is weak in studies, failure for everything, his parents are poor and cannot send him to big schools or universities etc is sent to become a mullah or an imam of masjid. then what does this mullah do; he leads prayers, give dars to children, lead funeral, give sermons at juma and eid milad un nabi s.a.w, solemnize nikah etc etc and in return he gets a meager amount to fulfill his stomach and raise his family. A mullah who is a good orator get good places and if he vocal against other fiqah is also considered good, and if issues tawez and give advice on religion points then he is also good and successful... Then there are some mullah like Sherani sb, Sami-ul-Haq sb, Fazlur rehman sb, Sajid Naqvi sb etc who get hold of political parties and are considered as successful and simultaneously they represent another form of mullahs for general public. Then when we see some specific followers of madaris, we say oh Ahle Hadees people came, oh Deobandi came, oh green caps/green parrots came etc etc... I am a citizen of this country and often listen these things so developed such feeling as well, once I came across some portion of write up by Qudrat Ullah Shahab perhaps in Shahab Nama (to say another thing, he is considered a person of baba group where many critics term it another brand of polished mullah like Ashfaq Ahmed etc), Q.U Shahab sb wrote about mullah, that it is because of that mullah, islam is keeping up... Because of them it has reached into many parts of world and it is still kept in some form in many other parts. He do not care for cold weather, rain, clothes, money but he goes to ask people for namaz, for Fallah /success. Allah says about a party who invite for good thing and stops from bad and some of the mullahs (in any brand of Islamic fiqah) are following it. To be specific Q.U Shahab sb was referring to a distance place in Orrissa in his early career of civil service when he found this aspect of Mullah!!

I think I am taking much time of my friends and boring them, but to be honest, from last six hours I remained thinking on this topic before mustering courage and energy to write anything on it and from last three hours I am composing, now you people also endure me .. So what things I got from above para is, first Mullah is not every time bad, second Mullahs are illogical and illiterate and insane because majority of brilliant minds do not want to become a mullah or maulvi (most of the times any body having beard is also considered to be a mullah and either he is good or bad, is considered to be bad ), thirdly, we should not generalize mullahs of same mindset if we have seen some specific type of mullahs..

3) Now something about this Hadood Law, this was promulgated in 1979 by General Zia ul Haq sb. It received lot of controversies and it was amended through Women Protection Act of 2006. There remained issues on its applicability and basic principles like four witnesses for rape etc. There might had been some flaws in that law, but it does not mean that islam is like that or it is fully in consonance to the Quran and Islamic laws which were revealed in early years of Hijrah... Some of its clauses were taken as aggressive and oppressive and as per Mufti Taqi Usmani in many times there has not been truths behind allegations and people follow the things as they hear without going into the details (there are many learned Islamic fellows in forum, they can see his words at http://www.darsequran.com/articles/u...udood-taqi.php , to my dismay and may be for dismay of some other nice fellows, Taqi Usmani sb is also a mullah and in this article he has also referred to circumstantial evidence including DNA thing as a good evidence for proving crime of rape). Actually there were two distinct things of zina, one is adultery /fornification and other is rape. one with the will of both parties and the other aggression. Our Hadood Ordinance is probably concentrating on the first part, (many moderates and liberals considered it a shot on the rights of women hence taken it an offense) and extract punishment from surah Nur, while in many Islamic countries second thing/rape is considered under Hirābah /disorder in land and give punishments in the light of surah al-Ma'ida (ayat 33–34). Whatever the case may be, the four witness thing was actually in Surah Nur ayat 2 to 5. Those ayats was revealed in the context of tuhmat on Hazrat Ayesha r.a. and the other party was asked to present four witness, but they were able to present three. Anyhow, that is out of context of this discussion and am not having more time for this... Anybody interested for the basis of hadd and rape punishments and accusations can read the links pasted at the end. ....

For hiraba, many Islamic legal scholars interpreted rape as a crime in the category of Hiraba, which was taken as: ‘a single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women (hatk al ‘arad), killing cattle, or disrupting agriculture.’ Ibn Hazm, Al-Dasuqi, Ibn ‘Arabi etc give sentences and punishments considering rape hiraba. Details are in links given below.


4) As regards the actual reason for this discussion, Council of Islamic Ideology gave some of its version, and it has clearly written in a part of that statement ;

One Mullah, Allama Tahir Mehmood Ashrafi sb is saying that it is certainly a great help in investigation! mean the chapter is not closed, they have said that it will help in getting to the culprit. There may be a need for changing the law from the Parliament or there may be some provisions inside that law to cover it. As quoted above a reference from Taqi Usmani sb, perhaps that Mullah sb is from the makers of that law, he might had been involved in discussions by some body. ... It is written in another article by Taqi Usmani sb, 'But at the same time clause 10(3) was included to award the taazeeri punishment which did not have the condition of four witnesses. Instead the crime could be proven through one witness, medical examination and chemical analysis report. Consequently most of the rape criminals were awarded punishment as per this clause.' Link is given under.

Its there work to do, and we cannot be sure that this is the only place where this sacred law and mullahs are being discussed, they might have been having their tiny minds to think something and they may be doing it, might be slowly but there would be something... If its going to be discussed here, then it does not mean that mullahs or somebody else should be put to dogs. Respect may be a good thing in discussion... Quran is also saying something about it, "You who believe do not let one (set of) people make fun of another set. Do not defame one another. Do not insult by using nicknames. And do not backbite or speak ill of one another." (surah 49:11-12)

5) Dear fellow, if somebody is saying something, it does not mean it is Islamic, nor it mean that it is fatwah, nor it mean that will be implemented. Further, if anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment.

6) Yes, its better to avoid such religious issues because half knowledge is too bad.

Yes, Ijtehad or there may be something already on the thing. And there are some conditions for doing Ijtehad and giving Fatwah, thanks God, no tom dick and harry can do it...

7) -a Little patience my friend. Please do not jump on conclusions. CII issues are discussed above, as regards Federal Shariat Court and land reforms, there are more issues at the level of parliamentarians /fuedals then Shariat Court....

b) It should be pointed out with kind regards that the apparent reason of the four witness in surah Nur was allegations on Hazrat Ayesha r.a. Further, it should also be pointed out with respect that there was concept of rape at that time as well, Hazrat Wa'il ibn Hujr r.a. narrates an incident when a woman was raped. Later, she identified and accused the man of raping her. People seized him and brought him to Allah's messenger, who said to the woman, "Go away, for Allâh has forgiven you," but of the man who had raped her, he said, "Stone him to death." (Tirmidhi and Abu Dawud)

c) Who is this Prophet being referred by the way? I think it is said that there were more than one hundred thousand prophets sent on earth!... As per context , it seems to be about last Prophet AnHazrat Muhammad PBUH, if it is for him, then with due respect and kind regards, it should be noted that in Quran it is narrated that Allah and His angels says darood on Prophet PBUH so it will not be wastage of time or digits to link some darood i.e. PBUH/SAW with His PBUH name!!!!

d) I am nobody , not a scholar not a mullah, but I know one thing that nobody can change the laws of Quran. It is for all the times, however, interpretation can be done or changed, there are around five major fiqahs and interpretations of laws/jurisprudence.

e) the women witness (two women witness against one man witness) thing was perhaps inferred from the ayat 282 of surah bukarah and was not against Quran..

f) For this Hazrat Jibrael thing, it may be correct or incorrect, but Hazrat Jibrael was also a sort of messenger from Allah and he might not had ordered Prophet PBUH for anything.

g) You please leave that matter of Ijtehad, Ijma and Qayaas to them. Do not mix the concepts e.g. "Ijtehad" was not initiated by the Holy Prophet PBUH while approving the reply of Mouz bin jabal, it was Qayaas.

h) Mullahs may be cripple minded, there are many great scholars here, why they do not become Mullah to correct them. As regards living in 3rd Hijri thing, the are not living there... If somebody ask me to take my everything and give me a single minute in 3rd Hijri at Madina, by God, I will not wait for a single second to accept that offer...
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A request; since there are good scholars on islam, I will request them to give some time to these links http://www.wikiislam.net/wiki/Main_Page
http://www.wikiislam.net/wiki/Adulte...itted_in_Islam
http://www.wikiislam.net/wiki/Rape_in_Islam

These are about information on Islam at wikiislam and just contain illogical and wrong interpretations and things. That will be service if they are corrected.

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Kindly regret if somebody has felt anything abusive or wrong.

Regards

Sources:

http://islamqa.info/en/ref/72338
http://www.muslimaccess.com/articles...e_in_islam.asp
http://en.wikipedia.org/wiki/Hudood_Ordinance
http://en.wikipedia.org/wiki/Hirabah
http://islamqa.info/en/ref/41682
http://www.thereligionofpeace.com/Qu...e_adultery.htm
http://qa.sunnipath.com/issue_view.asp?id=12121
http://en.wikipedia.org/wiki/Zina
http://en.wikipedia.org/wiki/Islamic..._jurisprudence
http://www.sunniforum.com/forum/arch...p/t-48040.html
http://www.darsequran.com/articles/u...udood-taqi.php
http://wathakker.info/english/flyers/view.php?id=489

Dear, I quoted him to make my point that such type of unsound people are heading major religious parties here & no one has dare to condemn this mindset.

Regards,

__________________
When you try, you risk failure. When you don’t try, you ensure it.

Yeah numberless Rape cases have brought us worldwide embarrassment but the yardstick being used by some members is not that too mature. People have gone out of their scopes.

Dear member you have mentioned that

"thats why Allah in Quran ordered the condition of four witnesses. at that time there were no concept of RAPE, men and women were involved freely in sex. so this law was to protect the women from being persecution without a proof".

What do you mean man?????? Its too raw a statement??

Only the power of argumentation does not make you a jurist. Everyone can not be allowed to make judgements / free comments in the matters they barely understand.

We are not discussing a cricket match here, please be careful and come with proper knowledge.

I request the Moderators to take a notice of this practice on forum. The forum should not become a source of misconceptions and only the standard matter should come forward. We are not here to make a hotchpotch of things here and cross each other in argumentation without keeping in view the gravity & sensitivity of the matter.

Mr or Ms gypsyfied, may be your views are correct and yes the culprit should be punished but I would request you not to be ignited and burn up. Cuz providing four evidence is an islamic concept and you better not talk against it. For the rest i agree with what ever you say.

__________________
Neither live to eat nor eat to live,
Always be honest, never take and give.

The adulterer and the adulteress — flog each one of them with a hundred stripes…
-(An-Nur 24:3)

…And those who calumniate chaste woman but bring not four witnesses — flog them eighty stripes and do not admit their evidence ever after.
-(An-Nur 24:5)

In these verses, it is made clear that four witnesses are required to prove adultery — and not when the husband is being accused of unfaithfulness, but when the wife is being accused. This onus is meant to protect women from the evils of men who would destroy a woman’s reputation and name out of spite. If their accusation is honest, they are required to produce four impeccable witnesses to back up their claims. If they cannot, the accusers are to be punished severely for falsely accusing a woman and attempting to ruin her, and they are never to be trusted to give evidence again.

without going into details of the controversy, i would like to share with you an article written on admissibility of DNA evidence in US Courts:
The Admission of DNA Evidence in State and Federal Courts by George Bundy Smith and Janet A. Gordon, who conclude the discussion by:

"DNA evidence is a powerful tool for both the prosecutor and the
defense attorney. It is strong evidence of the probability that a person
was present or absent at a crime scene. While the acceptance by
courts of the validity of DNA evidence now seems universal, there may still be problems with the foundation for the admission of such evidence because of inadequate laboratory procedures or because the statistical information is flawed. Whatever the problems, DNA evidence should continue to have a profound effect on criminal litigation for years to come. Finally, it should always be remembered that DNA testing does not prove conclusively that a particular person committed
a crime. The basis of DNA testing is to indicate the probability that a
person with the defendant's genetic makeup committed a crime.
Because DNA evidence may aid both prosecutors and defendants,
an issue arises as to the duty to preserve DNA-related evidence over a
number of years. While there is no universal rule of preservation, this
is an issue that should be addressed by both courts and legislatures".


as far as the issue of Zina and Rape is concerned, it must be cleared that both the crimes does not belong to the same category, Zina is a hadd offence, while rape is a Siyasa offence, and both are different: hadd is violation of the right of Allah, while siyasa is violation of the right of community (a category that modern Law does not recognize, hence confusion). so, four witnesses is a requirement in case of Zina but it is not a requirement in the Case of rape. remember, rape is not translated in isalmic law as zina: its must be called "sexual violence" which will include harrasement of every kind and hence the culprit could be punished for violating the rights of community with any punishment, even death.

Well I think the confusion is not because modern law does not make distinctions between hadd and siyasa etc; the confusion is because of traditions. Under Islam hadd is a very serious offense and therefore the defendant's (or accused) invocation of qadhf serves as a strong shield (the requirements of evidence are clearly described in the sources of shariah), however taazir or siyasa offenses are judged by circumstantial evidence made available to qadi or ruler and thus the defensive shield of qadhf is made weaker. This has some consequence such as giving rise to prosecutions under false accusations of rape, e.g. a woman had consensual sexual intercourse (or relations) with a man and later accuse him of rape (for reasons better known to her ). This seems to be the source of confusion as placing rape under hadd gives advantage to the rapist and vice versa.

In other words what I meant to say was the source of confusion is more political than legal, since the legal complications can be overcome if rape considered as an act of sexual violence as you said. As in the words of Professor A. K. Niazi:

Those who claim that this off ence has been created through the implication of the text (dalatal al-nass) should realize that the attribute of sex has been given priority over bodily harm. This goes against the maqasid al-shari‘ah [the objectives of shariʿah]. Interpretation is undertaken according to the purposes of the shari‘ah (maqasid), and the maqasid maintain that priority must always be accorded to bodily harm over matters of sex. Accordingly, rape, which is an attack on the physical person of the victim (including mental agony),
cannot be included in the offence of zina. It is an offence that falls in the category of hifz ‘ala ’nafs

__________________
The precondition for existence of a higher humanity is not the state, but the nation possessing the necessary ability.

Under the English legal system, which Pakistan inherited from the British Raj, wrongs are divided into two broad categories: civil and criminal. The former is violation of a private right while the latter is violation of a public right. Breach of contract is violation of a private right in personam, while tort is violation of a private right in rem. Sometimes a wrong is deemed violation of both a private right in rem as well as a public right. Thus, at the same time it is both a tort as well as an offence – the so-called “felonious tort”.

Islamic law has an altogether different classification of rights. Thus, it divides the rights into three kinds: rights of individual, rights of community and rights of God. All the punishments in Islamic law are linked to one or more of these rights. Thus, hadd punishments are linked to the rights of God; ta‘zir punishments are linked to the rights of individual; while siyasah punishments are linked to the rights of the community.
Sometimes a wrong is considered violation of the joint right of God and of individual. In such a joint right, sometimes the right of God is predominant – such as in case of the hadd of qadhf – while sometimes the right of individual is deemed predominant – such as in case of qisas.
Modern scholars working on Islamic criminal law have generally considered the right of God synonymous with the right of the community. Perhaps, they were influenced by the binary division of English law – public and private. This has caused several problems. For instance, the government cannot commute or pardon a hadd punishment. The reason for this rule, according to the jurists, is that ╒add is the right of God. Had the right of God been the same as the right of the community, the government would have the right to pardon the hadd punishment.
Another confusion, particularly in Pakistani law, is that the spheres of ta‘zir and siyasah have been merged together. Thus, the punishments, which the hanafi jurists mentioned under the doctrine of siyasah have been called ta‘zir in Pakistan.
The Islamic criminal justice system as envisaged by the jurists consists of three spheres: hadd, ta'zir and siyasah, relating to the rights of God, of individual and of community, respectively. In case of qisas, the first and the second spheres overlap with each other. Now, when this system is compared with the English legal system, the first thing that strikes the mind is that hadd, ta‘zir and qisas are not properly called “offences” because offence in English law is violation of the right of the community. In other words, the nearest match in Islamic law for the English law concept of “offence” is siyasah.
It is really surprising, then, that the modern discourse on Islamic criminal law has generally ignored the doctrine of siyasah and all this confusion and discussion is being generated.

That's what I meant, the state should be secular (i.e. follow secular reasoning) or religious (i.e. follow orthodox religious doctrine) is a political problem, not legal . All the legal complications could be resolved once the political course of the state is set I guess.

__________________
The precondition for existence of a higher humanity is not the state, but the nation possessing the necessary ability.

"think before u talk" formula is better than "lose one's head"
With the passage of time, Everything is getting different shape than before, and it is become at mostly regions in our world of human-being. But it is better to live up to rules and regulations of our religion, if some issues like rape law and four witnesses for it, I see eye to eye with the Islamic social laws and none of us should violate any Islamic law. But here we can discuss any topic, because after discussing we know the real target of any main point of article.

I think the CII's point of view on DNA test for identification of culprit will be better than four witnesses hardness. If our religion give any permission. In my point of view, Islam have given a concept of "Ijtihad (an independent interpretation)" means if some Ullmas of Islam sit together and make a decision according the today's situation, it will be assistive for the law holders. May be, it (/should be) befall in future. According to Ghulam Shahzad Sarwar's book 'An Analytical Approach to PAKISTAN AFFAIRS' In the services of Shah Waliullah fifth main heading(The Universalism of Islam and Local Problems) he wrote,

similarly, in same topic he gave extra information and solution for local problems. the above statement is directing towards Ijtihad.