(ZARA SOCHIYAY SPECIAL)
Justice (retd) Nasira Javed Iqbal
Member Law and Justice Commission of Pakistan
Dr. Mohammad Ashraf Asif Jilali
Principal Jama’ Jalaliya
Ibtesam Illahi Zaheer
Director General, Idara Tarjuman-o-Sunnah
Dr. Tufail Mohammad Hashmi
- Professor of Islamic Studies
* If you have been following news papers and the Pakistani
TV channels then one incident that must have caught your eye
would be that of a couple who were locked up for five years
in prison. The couple was locked up on the doubt that their
case could come under the Hudood. Later, the court declared
that they had not committed a crime and were set free. The
reason I am mentioning this incident is that the couple faced
this turmoil as they had no Nikhanama and hence lacked proof
of marriage. This might have been a cause that led to their
imprisonment. Another incident involved a kid who was only
11 years old but was booked under the Hudood Ordinance while
his family says that he is not even mature as yet. Now issues
such as these bring to the fore the fact that there should
be a discussion on the Hudood Ordinance and the kind of witnesses
that should be chosen. Ulema from various schools of thoughts
have often doubted the Hudood Ordinance as they do not take
into consideration the difference between Zina (adultery)
and Zina-bil-Jibr (rape).
* When we take a look at the Hudood Laws, there is the issue
of female witness which the law does not take into account.
Also no difference is kept between Zina and Zina-bil-Jibr.
What do you say about this?
Justice (retd) Nasira Javed Iqbal: The Hudood Ordinance does
not consider the witness of and in a Hud case, four men required.
If we take this clause away from Had, then there is the Tazeer.
If a woman is not convicted under Hudood, she might be punished
under the Tazeer laws. I feel that a victim’s testimony
should be admissible.
When an issue arises whereby the rape has to be proven, a
medical report can state whether rape occurred or not. If
you go according to the witnesses, there are four aspects
to it. Testimony is just one of the aspects, we have to keep
in mind the other factors too in order to establish Zina or
Do you think Hudood Laws that do not help female victims should
Dr. Mohammad Ashraf Asif Jilali: As far as the testimony of
a woman is concerned, it is not admissible as the Quran only
talks about testimony of men. According to a Riwayat by Hazart
Amir (RA), “women cannot testify”. The reason
for this is that Hudood come into use when there is “no
doubt” and in the Quran, a woman’s testimony is
half of that of a man’s.
Isn’t a woman’s testimony equal to half related
to business purpose only?
Dr. Mohammad Ashraf Asif Jilali: There are certain issues
that relate to parentage. A judge can put Tazeer in use and
as far as a medical report goes, even that cannot prove rape.
The judge may not put Had-e-Qazf but if she has put blame
on some one, then Had-e-Qazf should be applied.
There is this incident during Hazrat Ali’s time. A woman
said she was raped but when the soiled clothing was drenched
with water, the stains turned out to be nothing more than
egg white. Now, there are technological advancements, then
why is there so much emphasis on witness rather than scientific
Dr. Mohammad Ashraf Asif Jilali: It has got nothing to do
with Hud. The Shariah has laid down the rule for testimony,
and that too from a mature, Muslim male. The medical reports
can have their share of faults. What if a particular machine
isn’t functioning properly, and the outcome of the report
may be different. That is why these things are not considered
with the folds of Islam.
According to a report, there are some 327 women locked up
in jails in Punjab and they are kept in inhumane conditions.
Don’t you think that after Ijtihaad, the laws can be
changed or is the woman’s testimony worth only what
we just heard?
Ibtesam Illahi Zaheer: As far as the judgment goes, it will
be based on the testimony of four men but a wronged woman
has every right to pursue her case. As far as what Dr, Ashraf
said, I disagree with him. I feel that a woman who has been
a victim of such a heinous crime should be given justice.
If she says that she has been raped, then no four witnesses
are required and the woman should go the courts. I feel that
the Hudood Ordinance is being exploited by some and in many
cases it’s the police that do it. The ordinance is not
faulty, it’s the implementation that is.
Do you think after Ijtihaad, there can be any changes?
Ibtesam Illahi Zaheer: No compromise on Hudood Allah but
if a man admits his crime, then there is no room for anything
In the society we live in, there is little chance that man
will owe up to his crimes.
Ibtesam Illahi Zaheer: Our police can make anyone confess
whether he has committed the crime or not. When the circumstantial
evidence is pointing to such a deed then the Police should
work on it and make him confess to his crime.
What do you say about this Taufail Sahab?
Dr. Tufail Mohammad Hashmi: Zina-bil-Jibr and Zina-bil-Raza
are two different acts. The criteria for proofs and punishments
again are different. Four witnesses are required in Zina-bil-Raza
while even the Prophet shunned this deed. He used to say that
this act should be hidden. Meanwhile, Zina-bil-Jibr, is altogether
a different deed. A woman who is forced upon is not to be
treated under the same laws as one who commits a sin. In Surah
Al Ahzab, it is clearly stated that when women step out of
the house, they should be covered. Its says that in Madina,
some men ganged up on women and teased them, the Quran in
this regard states that if these people do not give up their
misdeeds, they should be killed when caught in the act. Due
to this reference, four witnesses are not needed. There was
the case of a woman in Holy Prophet’s time, as mentioned
in Sunnan-e-Kubra, that although the evidence was against
her, she recognized the rapist and hence he was convicted.
The pointers set in the Zina Ordinance about the witnesses
and testimony is totally against Quran and Sunnah. As far
as Fiqah goes, Imam Malik says that Zina-bil-Jibr is a case
of Haraba and is Fisad-ul-Arz, isn’t a Zina case. Quran,
Sunnah and most of the Fiqqah says that this case is different
and should be dealt with differently. The differences in the
acts of Zina-bil-Raza and Zina-bil-Jiber should be taken into
consideration and the law be changed accordingly.
What is preventing this?
Ibtesam Illahi Zaheer: Allah says in the Quran that those
girls who have been forced into such acts and an income is
generated through this, Allah will disregard their sins and
as such they have not been held guilty. As far as Zina-bil-Jibr
goes, there should be a provision that provides cover to the
victim. As I stated earlier that the victimized women should
be given a chance to prove their point. A medical examination
can conclude whether a rape has occurred but in this condition,
Hud is not applicable.
The Hudood Ordinance does not differentiate between Zina-bil-Jibr
and Zina-bil-Raza; can the law not be changed keeping in the
flaws in mind?
Ibtesam Illahi Zaheer: As I stated earlier, the Hudood Ordinance
is not Hudood Allah and hence is not the final word. Hudood
Ordinance has various things that have to repealed, for instance
there is the lashing, which is against the Islamic injunctions.
These should be changed as for the Hudood Allah; there is
no provision for change.
Justice (retd) Nasira Javed Iqbal
One thing that has to be considered here is that there are
many cases where in women have been falsely implicated and
booked under the Hudood Law. If a girl marries out for choice,
her uncles, brothers or parents register a case against the
couple, with the girl usually landing up in jail. In this
regard, three Judicial Commissions have given the suggestion
that the Hudood Ordinance should be repealed.
This law was created by a dictator and not the Parliament.
Technically it should not be there as it is unconstitutional.
The biggest flaw in it is that it is anti women. If a woman
marries out of her choice, she has not committed a sin yet
no Qazf is enforced against the people who register an F.I.R.
against her. This ordinance is not just. The Parliament should
bring in a new ordinance in its place that is in the spirit
of Quran and Sunnah.
If the Parliament can make laws, then why is there an uproar
in the case of Hudood Ordinance and why is not being repealed?
Ibtesam Illahi Zaheer: The Parliament has people who are educated
and well versed in many subjects but not in Islam. Whether
it’s someone from the People’s Party or the Muslim
League, everyone can see their approach. If they are given
a right to make laws on Hudood, then it would be nothing more
than a child’s play. I believe that apart from the experts
on the subject, no one should be allowed to talk on it.
Justice (retd) Nasira Javed Iqbal : When a law is drafted
in the Parliament, then all things are considered. Everyone’s’
opinion is considered, then a committee calls in the experts
who again share their opinion. I say that people like Maulana
Hashmi can be included in the committee and a new law can
be made, the right of which the Parliament has.
If the victim is a Muslim and the criminal a non-Muslim, where
will the case stand and how will the proceedings take place?
Dr. Mohammad Ashraf Asif Jilali: Given such a scenario, the
government should get the aggrieved party relief by using
the deep rooted feudal systems in the areas.
Dr. Tufail Mohammad Hashmi: In such a scenario, there is no
difference. In an Islamic state, the rights of the non-Muslims
are greater than those of the Muslims. Hazrat Umer has said
that if a non-Muslim is murdered by the entire Yemen, then
each and everyone in Yemen would be dealt with Qasaas. We
have a duty towards our non-Muslim brethren, and we should
look after their lives and property as well as their honour.