Views of Maulana Abdul Maalik


The Hudood have been placed on us not since 1979, but for the past 1400 years. You say that it’s a period of 27 years, but 27 years is a very short time. Neither have women been sent to jails nor have men have been convicted. There has never been an institution that was created to track down the Zaani men and women. Women have been meted out injustice not only by the Hudood Laws, but also by many other laws. Many have been locked up even before the hearing of their cases. The Police should be removed from this equation as this is a system created by the English. The Police is corrupt and implicates people. The legal system is also under the control of the Police. The Police force is without any knowledge of the Deen and completely ignorant of the Shariat. The Judges sitting in the courts are also ignorant of the words of Allah although they have worldly degrees and have been given the position to impart justice. There should be a Police force that is well aware of the Shariat and religious knowledge while the Judges should also have in-depth knowledge of Quran and Sunnah. The Hudood Laws were applicable in the times of the Holy Prophet and did not present any problem then. The Holy Prophet had strongly urged that the Hudd be resolved within us and they should be brought to him. Four cases were taken to the Holy Prophet pertaining to Hudd but each of them was returned. Hence in my option, the legal system needs to be changed.

Mufti Muneeb-ur-Rehman

The misuse of the Hudood Ordinance can only be stopped when the framework is set according to the Shariat. We have the Anglo-Saxon laws here, where FIR is an important part of it. I want the role of the Police to be finished and people should directly come into the court and approach the Qazi. If someone needs assistance, then he should be provided with it but otherwise, an end should be put making money by blackmailing.


* Should there be a law where an FIR should only be placed if there are four witnesses?

Maulana Abdul Maalik: I agree that an FIR should be only if there are four witnesses. If the Police is satisfied then only should they proceed. Hazart Muhammad has time and again said that the Hudd case should be solved between the people themselves. If the judge knew the Quran and Sunnah, he would have said that the FIR was false and they should not have been sent to jail. If Mufti Muneeb or I had been there in the court, we would have said that they have been arrested illegally and would have asked for four witnesses. If there were no four witnesses, we would have put Qazf on those who had lodged the complaint and would have sent them back as there is no concept of jail in Islam.

* Mufti Sahab do you agree with Maulana?

Mufti Muneeb-ur-Rehman: I say that the proceedings should not begin with the police but with a Qazi. As we are saying here, if there are four witnesses, then only can the case be lodged. In this regard there are two situations, if someone comes in as victim, then also a case would be registered and he/she will be asked for witnesses. If four witnesses walk in and say that the incident took place, then the culprit should be brought to fore.

Javed Ahmed Ghamdi:

The complications that have arisen in Zina are debatable and I agree with Hamid Mir that it should be made compulsory, whether the Hudood Ordinance remains in its present form or is repealed and made in accordance with the Shariat, a case should only be lodged if there are four witnesses who come in and say that they have seen the act of Zina taking place. If a woman comes in saying the Zina-bil-Jibr, there should not be a condition that would make it seem as if she is making an accusation. Infact, she should be heard and there should be prompt action to her complaint. She should be provided justice. In the Quran, it is stated about Zina, that if there are no four witnesses, a case cannot be lodged. This is a protection that has been warded by Allah to men and women. The Quran does not want people to bring such matters to the courts. It insists the mankind to put a cover on them but if there is a need for it to be taken to the court, then the procedure for it is mentioned clearly in the Quran.

Dr. Taufail Hashmi:

In my opinion, there should be no FIR in the case of Zina-bil-Raza. In the times of the Holy Prophet, the case of a woman who had deviated from the path came to him but he never had it investigated. It has always been a case that the victim or the witnesses go to the court to prove the crime and only then can a court take action. There is no role of the Police in the act of Zina-bil-Raza. But as far as Zina-bil-Jibr, theft, Hirba and drunken rage are concerned, the Police is needed there.

* You agree that if there are four witnesses present, only then should a FIR be lodged?

Mufti Muneeb-ur-Rehman: If a FIR is lodged but there are no four witnesses, it is discarded.

* So you say that there should be no FIR without four witnesses?

Mufti Muneeb-ur-Rehman: If four witnesses go to the Qazi, this it self is the lodging of a crime.

* So can a woman be imprisoned on this issue or not?

Javed Ahmed Ghamdi: I feel that a woman should never be jailed. If a case has been lodged, then the proceedings should take place. To put a man or woman in jail before even the hearing had takes place, is against the ethics of justice and also against the injunctions of Shahriyeh.

* What does the Shahriat says about keeping a woman in jail?

Javed Ahmed Ghamdi: In the Shariat, nowhere Allah has stated imprisonment as a punishment. Either the penalties are in the form of physical punishments, where a part of the body is chopped or there are penalties that involve fine and are monetary. In the Sharityat, there is no imprisonment but then again, it’s a question that can be solved through Ijtihaad. In certain crimes, it is important to give careful thought before imprisoning a woman as her lost dignity can not be restored in the eyes of the society and that can lead to problems.

Dr. Taufail Hashmi: In the Holy Quran, it is stated that for women against whom four witnesses testify, should be kept locked up in their homes. No where does it say that they should be jailed. In another ayat, it is stated in the Quran that a married man and women should not be kept apart for more than four months. An issue here is, when you send people to jails, you are feeding them and taking care of them on the money of the tax payers. So the people who have committed crimes against the society are being taken care of by the society. Islam does not promote imprisonment as a solution.


* So you agree that a woman should not be imprisoned in a Zina case?
Mufti Muneeb-ur-Rehman: Before prosecution, there is no concept of this. Only after the Qazi passes a verdict

Maulana Abdul Maalik: In the Fiqah, it is clearly stated that only those be kept in captivity that can create Fitna if they are kept out. Only that person can be kept in jail who can spread Fitna. Otherwise, no other crimes have imprisonment as a punishment.


Opinions on Qazf

Maulana Abdul Maalik: To implement the Qazf law, no news laws are needed. The punishments under the Qazf law have been awarded from the Holy Prophet’s times right up to the British era. The judgments given out by the Holy Prophet are no less than laws themselves and we should follow them. In the times of the Holy Prophet, a man went to him and said that he had committed Zina. The Prophet punished him with 100 lashes. When the Prophet asked the woman involved if she had committed Zina, she said no. The man was unable to come up with witnesses and hence the Prophet punished him with 80 more lashes under the Qazf law. In Islam, the judge or Qazi is also the lawmaker. If a punishment is not defined in Quran and Sunnah, he can act and create one under the Tazir. The judges have Allah and the Holy Prophet’s word for guidance.

* You are saying that if an allegation is proved wrong, then the government should intervene and take measures?

Maulana Abdul Maalik: The person who has been falsely accused, it’s a matter of his/her honour, not the honour of state or the government. On Zina, Qazf is applicable as a person who has been falsely implicated in a case needs to have his/her dignity restored. If the person says that I want the accuser to be punished, than Qazf is used otherwise not.

Muneeb-ur-Rehman: In the Quran, it is sated that those who falsely accuse women have to be punished with 80 lashes. Is that punishment applicable when Aroona says that injustice has been meted out to her or is it the responsibility of the state? If she feels it’s important to restore her dignity, then she should go for Tazkia.

Javed Ahmed Ghamdi: In my opinion, it’s not necessary that a woman comes forward for qazf; the courts have the power to do it and is responsible for the dignity of the Muslims. If a woman has been raped, she can do to the court and it is her right. Similarly, if the court feels that the witnesses are lying or the woman has been falsely implicated, then it can proceed and have the men rounded up. There is nothing against Quran and Sunnah, its all about the procedural laws.

Dr. Taufail Hashmi: In the Qazf Ordinance, there are many discrepancies and are against the teachings of Quran and Sunnah. For instance, for common goals, if a person is put under Qazf, than that’s not a crime. If there is a bad intention in Qazf, it would be a crime, and neither would it not be considered a crime if the intent is good. Qazf is Qazf, whether the intent behind it is good or bad. But a testimony given in a court of law is not Qazf if it proves that a man is guilty. When Hazrat Aisha has Qazf on her, she did not take her petition anywhere but the Holy Prophet put Hudd Qazf. When the governor of Koofa was under Qazf, he took four men with him and when the crime could not be proved, Hazrat Umer did not ask the governor to file in a new petition.

Javed Ahmed Ghamdi: The change that is needed is that if the witnesses are lying, then the court should have a right o prosecute tem. A court should also act upon a case presented by a person and there should be hindrances in this regard.

* Mufti Sahab do you have any questions for Ghamdi sahib in this regard?

Mufti Muneeb-ur-Rehman: The question here is if a man or woman goes to the court and is given relief or dealt with Qazf, is this is the duty of the state to make forces to check on people whether they are lying?

Javed Ahmed Ghamdi: This issue is not under debate! The debate is on the fact that the case has already reached the court, and if it is proven false, what should be done. No force is needed here, the culprits are right here and an action should be taken on this.

* If a woman has spent her life in prison and the case proves to be a false one. Now her dignity and self esteem is lost, she is penniless. Where is she to go?


Maulana Abdul Maalik: The judge is responsible for this who kept the woman in captivity for a month or a year.

* Who will take action against the judge?

Maulana Abdul Maalik: The judge should be prosecuted by other judges. The legal system should be changed. The judge should have the power to see why a woman is being kept in captivity. The Hudood Ordinance acts as a guide and the judge is not bounded by it. Hence, the judge can sense the situation and make a decisions accordingly as he is also the law maker. An assembly where the members are illiterate (in religious sense), cannot legislate. The job of the judge is not only to pass judgments, but also to review and make new laws as it his right. But sadly, the job of making laws has been entrusted to those who do not have any religious knowledge. We should have judges like Mufti Muneeb-ur-Rehman and other learned Ulmea. Those judges who o do not have an education in religion, they cannot be placed on the post of judges. The Holy Prophet had stated that there are there types of judges, one who shall go to paradise due to the justice done by him. The two judges who shall be banished to hell would be those who know the truth but do not do justice or those who commit an injustice.


* Ghamdi sahab please suggest a solution to this issue.

Javed Ahmed Ghamdi: There should be an amendment in the law. The general opinion is that this law is not practical and it should be discarded. There should be the necessary amendments made in the Zabta-e-Faujdari and its faults should be rectified.

Maulana Abdul Maalik: We are totally against this. The Hudood Ordinance should be allowed to function. Who so ever talks against Hudood Allah and the Hudood Ordinance or tries to repeal it, we will protest against this. If someone tries to get rid of it by force, we will never let this happen.

* We are not talking about discarding Hudood Allah.

Maulana Abdul Maalik: They have implied getting rid of the Ordinance. For this, the Women Constitution Committee has been pushing for making Zina-bil-Raza a non- offense like before.

* Ghamdi Sahab are you implying that the Hudood Ordinance should be discarded?

Javed Ahmed Ghamdi: I have said time and again that Hudood Allah and the punishments described in it are everlasting, these are obligatory on all Muslims and no Muslim can dare go against them. All we say is that the Ordinance that is used to implement these laws is faulty.

* Maulana Sahab please talk about Qazf.

Maulana Abdul Maalik: That has been agreed upon and there is no disagreement on it.


* There is a slight confusion here. We are talking about Qazf being automatically applied.
Mufti Muneeb-ur-Rehman: We agree on it.

* Agree on what?

Mufti Muneeb-ur-Rehman: If there is a case in court and is proved false, then Qazf should be applied.

* But the accusation cannot be proved?
Mufti Muneeb-ur-Rehman: Qazf is applicable.

* So Qazf is automatically applicable?
Mufti Muneeb-ur-Rehman: Yes!

* So this issue is resolved?
Javed Ahmed Ghamdi: When someone is stating his point of view, he has every right to make himself clear. I believe that the limits prescribed in Hudd as well as set by Allah and the Holy Prophet the final word and obligatory on us all. No one can put an end to them or discard them or change them but as far as the laws made by man are concerned, they are being criticized by us.

* The question here was related to Qazf. If an accusation is not proven, can there be an inquiry into it and can it lead to punishment?
Mufti Muneeb-ur-Rehman: Ghamdi Sahab says that the Hudd set by Allah in the Holy Quran and the Sunnah are the final words. We all believe in these too. If the Holy Quran and the Hadith are kept in front of a judge and he is told to compile laws. If he does that within the confines of Quran and Sunnah, he will be doing a service to Islam. But we cannot say that the codification done by the Fiqah is useless and throw away all the law books and just use Quran and Sunnah to solve the matters.

Maulana Abdul Maalik: Hudood Ordinance has two parts, one part relates to the Tazir laws and other deals with Hudood Allah. In Tazir, the judge can always make amendments but the 5 sections pertaining to Hudood cannot be repealed and we will not allow this to happen. There is a conspiracy going on, which intends to discard the Hudood Allah under the guise of repealing the Hudood Ordinance. We will object to the discarding of Hudood Ordinance on any forum.

Javed Ahmed Ghamdi: All we are saying is that rather than having this flawed law, there should be better regulations.

Mufti Muneeb-ur-Rehman: Wouldn’t that be man made?

* Mufti Sahab you have accepted that there are ambiguities. We are now talking about Qazf, where an accusation is made but it cannot be proven. We are talking about people who cannot lodge an FIR.

PACKAGE:

Dr. Mehmood Ghazi (Former Minster for Religious Affairs)
After Ijtihaad, the general opinion is that Zina should be differentiated from Zina-bil-Jabr. Both are separate crimes. But according to another Ijtihaadi opinion, Zina and Zina-bil-Jabr are the same crime and hence the punishment accorded is same. This is not the right approach and should be changed.

Professor Dr. Anis Ahmed (Former Director General Dawa Academy)
Zina and Zina-bil-Jabr are two separate acts and in my opinion judging them under the same clause is not at all acceptable. The definitions of Zina and Zina-bil-Jabr are different and they should be supplicated. Taking into account all the evidence, the Ordinance needs suitable amendments.

Is Zina-bil-Jabr under Hudood Allah?

Javed Ahmed Ghamdi: In the Holy Quran, in Surah Maidah’s ayat no. 32, Allah has stated that Haraba is also a crime for which punishments are laid down by Allah. A crime under Haraba is more severe, as in a theft becomes a dacoity, a murder turns into terrorism, and a Zina turns into Zina-bil-Jabr. For such crimes, Allah has prescribed four types of punishments. The first punishment is that they should be killed, in the second punishment they are to be crucified, the third relates to chopping of their limbs while the fourth says that they should be evicted from the area. The Quran has given the court the right to increase or decrease the intensity of the punishments according to the circumstances. In my opinion, Zina-bil-Jabr comes under the limits set up by Allah and hence according to this ayat of the Holy Quran, a court can convict under Haraba.

Mufti Muneedb-ur-Rehman: If four witnesses are there to prove Zina-bil-Jabr, then Rajam should take place for the one who committed the crime while for the victim there is no punishment. But in a scenario where there are no witnesses, the punishments can be strict too under the Tazir law. The penalty could be death even, which is the severest under the Tazir law.

Maulana Abdul Maalik: In the Shahriyah, the definition of Zina is as an act of adultery. Whether it’s done willingly or under force, it’s the same. Dr. Ghazi Mehmood says that there is Ijtihaad on this issue but this isn’t Ijtihaad. Ijtihaad pertains to cases that did not happen in the times of the Holy Prophet. During the Prophet’s time, two or three such cases took place where there was a use of force in Zina. The Holy Prophet pardoned the woman while the man was stoned. I am amazed at the fact as to why Ghamdi sahib is insisting on getting this curtailed from Zina. Haraba itself is not a big punishment; as compared to it Rajam is more severe. Whether its Zina or Zina-bil-Jabr, they both fall within the confines of Hudood Allah. The ayat that says this was there in the time of the Holy Prophet too and the same punishments be carried out now.

Dr. Taufail Hashmi:

Zina-bil-Jabr falls under the radius of Hudood Allah but there is the difference of evidence. In the Quran, there is the requirement of four witnesses but the reference that Maulana Abdul Maalik quotes, it does accept circumstantial evidence.

Many Ulema have said that it is stated in Quran that women belonging to good families should cover themselves properly so that lewd men stay away. Then there is a criterion of evidence is needed for Haraba. Even today, in the Arabic language, “Aghtasaab” is the word used for it.

* So you say that Zina-bil-Jabr does not come within the parameters of Hudood Allah?
Dr. Taufail Hashmi: Zina is a separate offence and Zina-bil-Jabr is another. Zina-bil-Jabr falls into the category of crimes such as terrorism and hence there is a more severe punishment for this offence as compared to that of Zina-bil-Raza. The instructions to chop of various limbs signify the severity of the crime.

* Is Zina-bil-Jabr mentioned in the Holy Quran? What is the punishment for this offence?
Maulana Abdul Maalik: When Zina is mentioned, it includes both.

* What does Islam say clearly about it?
Mufti Muneeb-ur-Rehman: In Zina-bil-Raza, both should be stoned while in Zina-bil-Jabr, the Zani is to be stoned while the victim is not punished.


* What do you say about this Ghamdi Sahab?

Javed Ahmed Ghamdi: Logical thinking says that we have to differentiate between the two. There are cases that can be quoted from the Holy Prophet’s times as well as there are references from the ayats on Quran. Mufti Sahab says that if a bachelor commits Zina, whether he did it under pressure or willingly, he would be punished with 100 lashes while if the Zani is married, whether he/she committed it willingly or was forced into it, then Rajam is the punishment. What we are saying is that there should be a difference between the punishments for the two crimes, nor the marital status of the culprit.

* There is a demand for witness/testimony in Zina-bil-Jabr in the Hudood Ordinance 1979. What do you say about this?

Mufti Muneeb-ur-Rehman: If four witnesses are not there, but there is evidence of the crime, then medical tests, DNA testing and other proofs can be taken into account and lead to death penalty.

Does Zina-bil-Jabr falls in the perimeter of Hudood?

Mufti Muneeb-ur-Rehman: Zina is Zina! The Quran has not differentiated it and the final punishment for it is Rajam. The only thing is that in Zina-bil-Jabr, if there are no witnesses but there are other evidences, it can still lead to death as punishment.

Maulana Abdul Maalik: Whether it’s Zina-bil-Raza or Zina-bil-Jabr, the punishment for both is the same and you cannot make up your own vocabulary.

Dr. Taufail Hashmi: Zina-bil-Jabr falls within the perimeters of Hudood but in my opinion there is a difference between Zina-bil-Raza and Zina-bil-Jabr. Zina-bil-Jabr falls under Haraba and the provision of evidence is different. In Zina-bil-Raza, the punishment for Mohsin and Ghair-Mohsin is different while in Zina-bil-Jabr this criterion is disregarded.

Javed Ahmed Ghamdi: Logic demands that we differentiate between Zina and Zina-bil-Jabr. The Shariat does not differentiate between the two but there are different punishments prescribed for the two acts. Haraba is a comprehensive term that envelopes in itself all the severe crimes. It is a blessing of Allah that he had revealed Surah Maidah, where in we are given guidance to deal with all sorts of crimes. The Quran tells us of punishments that are to be given out. This is an act under Haraba and falls under the jurisdiction of Hudood Allah. Before a punishment is slapped on to it, it needs to be proven.

WHAT ARE THE AMMEDMENTS NEEDED IN THE HUDOOD ORDINANCE?

Mufti Muneeb-ur-Rehman: In my opinion, the section that deals with Tazir should be removed from here and made a part of the Pakistan Penal Code. A judge who is well versed in the religious studies and affairs should be made to judge the proceedings. In Zina-bil-Jabr, the victim is not punished and this should be highlighted while in the case of Hudd-e-Qazf, the ambiguities should be removed. We are in favour of removing the doubts and making amendments but we are against discarding this ordinance.

Javed Ahmed Ghamdi: I believe that the ordinance should be updated keeping in mind the present times. The Tazir section should be made part of Zabta-e-Faujdari. Hudood Allah is final and cannot be changed. There are five things that need to be changed. The first being there should be a differentiation between Zina and Zina-bil-Jabr. Secondly, this ordinance judges on the basis of proof. This is against the ethics of justice and this should be removed. Thirdly, the Ordinance discriminates on the basis of gender and religion, again this should be removed. Fourth thing is to consider the rule set by Allah for using Haraba while fifth is to consider the Shariat in determining punishments while keeping the nature of the crime and the circumstances of the criminal in mind.

Maulana Abdul Maalik: I agree with the changes suggested by Mufti Muneeb-ur-Rehman but I want two additional changes too. Firstly, the police should be educated in religious knowledge and it should not meddle with the case. Secondly, the judges should be those who have degrees in religious studies.

Dr. Taufail Hashmi: I agree with the points mentioned by Mufti Sahab and Ghamdi Sahab. These changes are urgently needed in the Ordinance. I would also like to highlight another thing, any changes that are made should never affect or side step Hudood Allah and this should be assured. Secondly, the new law that would be drafted should not say that these laws are made from Quran and Sunnah. We make a law according to our thinking, and there should always be room for improvement. When we say that this is based on the Word of Allah things tend to get over sensitized.

Closing Comments:

Mufti Muneeb-ur-Rehman: The debate today, regarding the Hudood laws, gave us all ample time to present our opinions. At the end of this discussion, we all know that the laws of Allah are ever lasting. As far as the Ordinance is concerned, it needs amendments and there is room for improvement. The ambiguities should be removed. In the case of Zina-bil-Jabr, the victim should be freed and this clause should be included. Also, before the punishment is awarded, keeping man or a woman in captivity in jail is un-Islamic. When such a crime takes place, the victim should have the option of directly approaching the judge. Laos, we need to bring the legal system in sync with the Islamic laws with our judges being well versed in Islamic knowledge.


Javed Ahmed Ghamdi: In my opinion, this was an extra-ordinary session. This is the first time that a debate was initiated where solution to our religious problems were being sought in a free and fair manner. I would like to congratulate the people who have initiated this debate. We need to listen to others and we need to listen to them in a calm manner without ever doubting the intent of the other person. We need to pray for every person and ask Allah to show us the right path as at the end of the day we all are answerable to Him. Nothing is hidden from Allah, as he is well aware of the intents and thoughts a man bears. I feel that this tradition should be continued as we need to educate our future generations about religious affairs. The final verdict lies with the people. When we present something in front of them, they are the ones to judge what is good for them. If it elects good representatives, then the laws created would be favourable to the public and if there is any amendment needed that would be taken care of too. We all need to pray that God gives us the strength to say what is right and then follow it too.