Host: Khursheed Nadeem
Panelists:
* Justice (retd.) Dr. Javed Iqbal (Legal Expert)
* Mufti Ghulam Sarwar Qadri (Religious Scholar)
* Dr. Mohmmad Farooq Khan (Religious scholar – Al Mawrid)
* Maulana Mohammad Hanif Jalandhari (President Jamiya Khair-ul-Madaras)

Comment by Khursheed Nadeem
“Zara Sochieye is a formal initiative by GEO that attempts to highlight issues that promote and/or represent imbalance and injustice in our society and have divided us for years. The Hudood Ordinance was enforced in 1979 during the rule of Gen. Zia ul Haq. Since its inception there has been a great debate on the Hudood laws without any resolution, till this day. Time and again, it has been stated that the Hudood Ordinance is based on the word of Allah but the law has proved to be otherwise. A law that gives power to the criminal and further victimizes the victim, has led to complications in society and is a misrepresentation of Islam. 27 years after it is imposition, the Hudood Ordinance has proved to be an important issue facing the Pakistani society.”

The opinion of the experts in a report on Hudood Ordinance:

• In the legal evidence, it is stated that a witness would be taken as an authentic agent only if he satisfies the criteria set in Tazkia-al-Shahood.
  
• If a woman cannot get four males who satisfy the criteria of Tazkia-al-Shahood and give testimony for her in court, she ends up getting a case of adultery lodged on her.
  
• The concept of Hudd in Islam is different. We have to suppose that there is an Islamic society that exists in here, where the existing norms are with in the confines of Islam, only then can it be applicable. If a man cannot bring four witnesses for him, then you cannot put Hudd on a female.
  
• Hudood Ordinance is based on commands of Allah and I am not against it. But its imposition is on the poor class of the society. No rich person, has ever been booked in a Hudood Case and it just the poor who are rounded up.
  
• Hudood Ordinance gives women the protection they never enjoyed before. Hudood Ordinance was created keeping in mind the Hudood Allah and to differentiate between this ordinance and the limits set by Allah is foolish.
  
• The Federal Shariat Court, the Supreme Court and the High Courts have stated that, in accordance with the Hudood Ordinance, the testimony of the victimized woman is more than enough to convict a man.
  
• Islam says that if witnesses are present, then conviction should take place otherwise it cannot.

The ordeal of a woman victimized under the Hudood Ordinance.
Source: report on Hudood Ordinance:
“What worse could happen with a woman who had a roller run over her? What crime did I commit? I was raped! My daughter was raped, my son was abused, but being a woma, I could not get justice.”

* Mufti Sahab, when we look at the Hudood Ordinance, it defines Hudd as the punishments prescribed in the Quran and Sunnah. What is the basic concept here?
Mufti Ghulam Sarwar Qadri: As far as Hudd is concerned, this means the final limits. In accordance with the Islam and Shariyat, Hudd punishments are those that are set by Allah and you cannot make any changes to them. Then there is the justice system of Tazir, wherein a judge can impose a punishment keeping in mind the nature of the crime and the criminal. The punishment given out as such is called Tazeeraat.

*The definitions of Hudd and Tazir that you gave, where do you quote them from?
Mufti Ghulam Sarwar Qadri: The literal meaning of Hudd is limit. When you are talking in terms of Shariat and the laws related to it, the Hudd implies punishments that have been prescribed in the Holy Quran or by the Holy Prophet. You cannot increase or decrease the punishments under Hudd.

* Dr. Sahab, in the light of the Holy Quran, how do we comprehend the word Hudd?
Dr. Mohammad Farooq Khan: The word Hudd has been used 14 times in the Holy Quran and covers all the limits that a Muslim should take care of. For instance, in Nikah, Talaq and Zahar, Hudd is used. In Surah Tuba, it is stated, that those who have not been educated, they have a greater chance of being ignorant to Islamic Hudood. All the things that fall within the radius of Islam, they are under Hudood. The way there are laws set for Nikah and Zahaar, similarly there are limits for crimes too. In a Hadith, the Holy Prophet has used the word Hudd once. He said that no more than ten lashes be awarded in any situation apart from Hudd.

* According to Dr. Mohd. Farooq Khan, the definition of Hudd kept in front of us and the acts on which it is applicable is based on the wisdom of our elders. Has Allah discriminated between Hudd and Tazir?
Justice (retd.) Dr. Javed Iqbal: Yes you can say that there is a differentiation set by Allah. Tazir are those punishments which a man can amend. Hudd, even in its literal English translation means ‘fixed penalties’. The second opinion that is being presented here is that Hudd is an extreme penalty and keeping the circumstances in the mind, the punishment can be reduced. As far as to what Mufti sahib says that Hudd is the final punishment and there can be no compromise, I do not agree with this premise.

* Is it possible to decrease Hudd in a Zina case?
Maulana Mohammad Hanif Jalandhri: In Quran, a word can be used many times but what is important is the context it is used in, so a word may not have the same meaning always. For instance in the Nikah and Talaq issues, Hudd is interpreted in a different manner. All words used in the Holy Quran have been comprehended in the light of Hadith and in the Ahadith, the word Hudd is also used as Tazir. When both of these are used. It means there is some difference between them too. There are the sayings of Sahaba that we are also dependent on. There are many words that have not been described in the Holy Quran or the Ahadith but they have been explained by the learned. The Ummah has had a belief in these for 1400 years.

* In the Quran, 100 lashes are the punishments for Zina. However, there is a differentiation created here regarding the marital status of the Zani, do you think is in accordance with Islam?
Justice (retd.) Dr. Javed Iqbal: Nothing can be said about this. It is a western concept where sex crimes have been dealt with in various categories. One thing is adultery where both the parties are married but have indulged in extra martial sex, and then there is fornication where one party is married while the other is unmarried. Third is the carnal knowledge where a mature man keeps relation with a young girl, fourth is rape where one is forced into the act and then there is eloping where a woman runs away with a man. These are various categories and all have different definitions. In our Hudood Ordinance, Zina is an ambiguous term, where no clear cut difference is made between a rape and extra marital relationship.

As far as the Hudood Ordinance is concerned, it is leading to a lot of problems. The difference between Hudd and Tazir is clear. Our judges are trained in modern jurisprudence in law colleges, where we are taught that if you cannot prove a crime with evidence, you cannot charge a person under another law/ In the Ordinance however, the case is lodged under Hudd but if the crime is not proved, then the case is prosecuted under Tazir laws. This is against the principles of modern jurisprudence.

* Either a crime can be proved or it cannot be proved. How can a middle ground be reached in this regard?
Mufti Ghulam Sarwar Qadri: If four witnesses are not there, then Hudd is not applicable and neither can the case be prosecuted under Tazir.

Maulana Mohammad Hanif Jalandhri: If a Zina case is being registered, than four witnesses are needed and one has to see if the witnesses fulfill the criteria. But it is important to have four witnesses.

* Do you agree with this premise?
Dr. Mohammad Farooq Khan: The biggest flaw in the Hudood Ordinance is that it does not deal with Zina-bil-Jabr and Zina-bil-Raza separately. All of us know that Zina-bil-Jabr is an act that takes place in secluded environs which is safe for the criminal so there cannot be any witnesses. This Ordinance has completely closed the doors of justice for the victims if they cannot get four witnesses and then there is the issue of Qazf. The thing is that Zina-bil-Raza and Zina-bil-Jabr are two different acts. Zina-bil-Jabr comes under Fisad-fil-Arz. The condition of four witnesses is justified in case of Zina-bil-Raza as this puts social pressure on a man and keeps him away from committing such an act.

* What is the impact of this law on the society?
Justice (retd.) Dr. Javed Iqbal: In our society, any law, no matter how sincerely it is created, can be manipulated. For instance, if a woman leaves with her free will and marries a man, her parents will lodge a Zina case and again the police can be manipulated. When the Hudood Ordinance was implemented, I was the Chief Justice in Punjab and during that time I saw countless cases where gross injustice was done using this Ordinance. In Bahawalpur University, a girl went to meet a professor and some students belonging to a religious organisation locked the door of the professor’s office and went to the Imam of the mosque and told him tat Zina was talking place in the office. The Imam accompanied them to the campus. When the door was opened, the professor and the student were naturally very disturbed. The Imam of the mosque gave a testimony saying that Zina occurred. I was on a trip to Bahawalpur and met up with the Imam. I asked him to be honest. He told me that the students belonging to a religious organization stated that Zina was taking place, although he never saw the act and just gave the testimony. He said that the religious party he was affiliated with had told him not to change the statement as Qazf would be applied on him (Imam). I released the girl and the student on bail but the future of both is darkened.

* The use of Hudood Ordinance is casting a shadow. Is it because the law was implemented on us without education the society?
Mufti Ghulam Sarwar Qadri: We are not backing the Hudood Ordinance and we are totally against the misuse of it by the Police. Islam does not tell us to implement punishments till the environment is conducive for laws to be workable. First, we should pave way for the laws to be applicable and then they should be enforced. Take a look at Saudi Arabia, there women are not allowed to roam around in half sleeves or with uncovered heads. There, they have gotten a hold on this practice and then they have enforced the law.

* Dr. Sahab says that Zina-bil-Jabr is an act of terrorism and it should not be treated under the criteria set for Zina. Do you agree with him?
Maulana Mohammad Hanif Jalandhri: Zina-bil-Raza and Zina-bil-Jabr are two different acts and every sane person would know this. In Zina-bil-Jabr, force is used making it a terrorist act. This issue should be looked into and reviewed.

* Hudood Allah and Hudood Ordinance are two different things, what is your opinion about this?
Dr. Mohammad Farooq Khan: It is my mission to spread the light of Islam and defend the Hudood Allah and see that the laws of Islam are enforced. What we are against is that when the Hudood Ordinance was enforced, society was not educated properly and no awareness was there. It has been proved over time that there were many things in the ordinance that are not right or justified.

* For the Islamiziation of the society, do you say these laws are helpful?
Maulana Mohammad Hanif Jalandhri: I think having a dialogue on the issue of Hudood Ordinance is the best option but we have to decide whether we want to review the ordinance under the laws of the land, our cultural traditions or western values. For those who think that this law is being changed under western pressures, they are mistaken. Taking cover of this law, many crimes have taken place and this goes on to show that law is not justified according to the teachings of Islam. It is the duty of the government and related institutions to remove these misconceptions. It is sad that here our emotions have taken a religious shade and suggestion is being touted as revelation.

* Has the Hudood Ordinance led to a division in the society? How can this situation be dealt with?
Justice (retd.) Dr. Javed Iqbal: In my opinion, this ordinance should be discarded and another act should be put in use that is in conformity with our present situation. For instance, a man and woman elope and get married. If they are implicated in a Hudood case and they tell the court that have contracted marriage. But if the Nikah is not registered and the court allows it, then little deference reins between legitimate and illegitimate relations. Zina-bil-Raza an act that takes place with the consensus of both the parties.

Dr. Mohammad Farooq Khan: In Pakistan, the courts have taken to the extremes as pointed out by Dr. Javed Iqbal. Under the Hudood Ordinance, thousands of innocent people were punished, they were kept in captivity for 10 years for no reason. The courts should review and rewrite these laws. They should include clauses that make the laws less harsh. The Holy Prophet has said that if 100 criminals are set free, it is not a big issue but if one innocent person is convicted, then it’s not right. The Hudood Ordinance should be rewritten and made a part of the common laws.

* How can the faults in the Hudood Ordinance be rectified?
Mufti Ghulam Sarwar Qadri: Hudood Ordinance is full of shortcomings. It should be implemented as an ordinance, not the word of Allah. For any system to work, the knowledge for its use should be there but sadly our judges are not acquainted with the system.

Maulana Mohammad Hanif Jalandhri: In my opinion, the Hudood Ordinance should not be discarded. It should be reviewed under the light of Quran and Sunnah and be updated according to the present times.

* The Hudood Ordinance did not lead to a decrease in crimes and in fact the graph has risen. Do you think the laws have done justice?
Dr. Mohammad Farooq Khan: Due to ambiguities in the ordinance, the criminals emerged with more power and the victimization increased. Under the Hudood Ordnance, no one can prove Zina-bil-Jabr given the criteria of witnesses.

Concluding comment by Khursheed Nadeem:
“The discussion on Hudood Ordinance, which was enforced 27 years ago, took note how effective the laws had been in curbing crimes and in the Islamization of our society. All the participants agreed that the Hudood Ordinance is flawed and lacks Islamic identity. The situation probes us to think and act. It is time we review the law and see whether it is in conformity with the Hudood Allah. The Hudood Ordinance is man made law and can be reviewed and repealed.”