It is a matter of Ijtehadi opinion whether zina (adultery) and zina bil jabr (rape) should be treated separately or not. One Ijtehadi view is that both zina bil jabr (rape) and zina bil raza are separate. The other Ijtehadi opinion is that they are both the same crime. The Hudood Laws were drafted on the basis of the latter point of view. But experience has taught us that it was not a correct decision. It should be changed.

I think that zina (adultery) and zina bil jabr (rape) have been given the same place in the Hudood Ordinance. This should not happen. It is very important to correct this. The punishments that have been stated in the Quran and Sunnah are for zina (adultery). As far as zina bil jabr (rape) is concerned, the punishments for this crime should be more severe because together with zina (adultery), there is also an element of terror is involved. Therefore, it is important that these two should be differentiated.

In my opinion zina (adultery) and zina bil jabr (rape) are two different kinds of crimes and need to be handled in two separate ways. Unfortunately, the element of force as not been given much attention when it comes to zina bil jabr (rape). It should have been attended to. As a result, the prosecution, and to a big extent, the courts have treated zina (adultery) and zina bil jabr (rape) as one even though it is impossible for them to be of the same kind – especially because their names are different and there is an element of force involved. We should definitely give this attention.

There is a difference between zina bil raza (adultery)and zina bil jabr (rape). When the elements of force and terror are involved, it becomes a different thing. Some of our fiqh scholars and thinkers have also commented on this. For example, some religious scholars say that zina bil jabr (rape) comes under fisad fil arz and say that it should, therefore, be treated separately. They consider it to be kind of hiraba (theft of property). Hiraba is also a fisad fil arz and so is this. As far as the “fisad” is concerned, of course, it exists, but in addition to it when violence enters the equation then it becomes a different crime. Therefore, this heinous act will be seen in one way and the act of zina bil raza (adultery)will be seen in another way.

If the Hudood Ordinance does not differentiate between zina (adultery) and zina bil jabr (rape), then I think it is essential that religious scholars be brought together and requested to take a decision on the matter. If Shariat has treated the two differently then why hasn’t this difference been made apparent in the Ordinance? Why should they have the same punishments whilst in the Shariat they do not?

According to the Quran, there is a big difference between zina bil jabr (rape) and zina bil raza. Both are crimes, but zina bil jabr (rape) is a very big crime. This is why the Quran talks about the punishment of zina bil raza (adultery)in Surah Noor and the punishments of zina bil jabr are given in Surah Maida’s verses 33 and 34. In these verses it has been described as fisad fil arz, for which there are extremely severe punishments. A very big flaw in the Hudood Ordinance present in Pakistan is that zina (adultery) and zina bil jabr (rape) have been placed in the same category. They have the same requirements of evidence and their punishments are also the same. From the spirit of Islam, from the spirit of humanity, from the spirit of common sense and honor, this is very wrong.

Zina (adultery) and zina bil jabr are two separate things and both have different principles. Religious scholars have debated over this issue as it comes under the realm of Ijtehad and they have already formed an Ijtehadi opinion on it. According to that, there is a difference between the two. Even courts have given their remarks on the issue and made observations regarding it and following these, scholars have also clarified this issue on several platforms. If, in the beginning, the difference was not made in the Hudood Ordinance, then it should be reconsidered.

There is a very odd thing in the Hudood Ordinance that the requirements of evidence to prove zina (adultery) and zina bil jabr (rape) are similar. For both, the Ordinance requires four special kind of male witnesses although zina bil jabr (rape) is totally different kind of a crime. Consequently, if a woman has been raped, and she cannot produce four pious, male eye witnesses, then not only is she punished for accepting that she has been involved in the act of zina (adultery), she also become guilty of Qazf (false accusation) because she has wrongly accused someone. She, therefore, becomes charged with two crimes. On the one hand, she is a victim and has turned to a court to seek justice, while on the other she is charged with two crimes and is subjected to double punishment.

The truth is that if we think at length about zina bil jabr (rape) then it seems impossible that someone can commit this crime in front of four pious and trustworthy people. If a person will want to use force against a woman, then these four people would use their strength to stop such a thing from happening. The perpetrator would not dare to do something like this, and if he is that daring then because these witnesses are expected to be pious, they would use their strength and stop the crime.

There is definitely a difference between the two. In Shariat, there is zina (adultery) which is consensual and both parties agree and undertake the action with a plan and of their free will, and then there is zina bil jabr (rape). In the latter the girl has not consented and the man uses force against her. The punishment for this should be very sever. It will come under Tazeer and Tazeer also allows giving the death penalty.

The Zina Ordinance should be made in accordance with the verses of the Quran. I would like to say that the Zina Ordinance in its present form has not been made according to the principles of the Quran verses. According to the Quran only zina bil raza should be included in the Ordinance and the law for zina bil jabr should be made according to the ordinary Penal Code or the law of the State.

As far as my limited knowledge is concerned, there is no such thing in the Hudood Ordinance that it does not differentiate between zina (adultery) and zina bil jabr (rape). These are undoubtedly two different things. So, first of all, the Ordinance does not treat them in a similar way. If the opposite is indeed true, then it can be corrected because zina bil jabr (rape) is a totally different thing and in the case of rape, a woman cannot be punished.

In both cases, a woman has to produce four witnesses to prove that a crime has been committed. This is something to think about. How is it possible that a woman who is subjected to a crime will be able to find four witnesses to it as well? Here, I think that scholars should ponder over the matter and the evidence of those who were present at the time of the crime should be accepted by the court. Also, medical sciences and DNA tests etc., should be used to prove the crime. Anyway, it is a matter that should be looked into by scholars and intellectuals.

There is a common assumption and one that has also been incorporated into the Hudood Ordinance, that whether zina (adultery) is consensual or forced, they are both the same. Although, the truth is that wherever the Quran has mentioned zina (adultery), it is of the consensual kind. zina bil jabr (rape) has been referred to where Allah has mentioned those people who create chaos and put others’ life and property in danger. Those people are said to be the enemies of society and will be punished severely. Unfortunately, this understanding has not been appreciated much and, therefore, wherever the Quran has mentioned the word zina (adultery), people have confined its meaning to be both, consensual and forced zina. In view of the Quran and common sense, this understanding is, however, totally flawed.

I think there is a lack of legal acumen reflected in the way the Hudood Ordinance has treated zina bil jabr (rape) and zina bil raza (adultery)in the same manner. The way each crime is committed makes them both separate from each other and, therefore, their punishments and evidence both should accommodate for these differences. So, in my opinion, there is a lack on understanding as far as this law is concerned and in some cases it leads to injustice for a woman. Our inability to differentiate between the two kinds of zina (adultery) can lead to a high possibility for injustice to be carried out. In fact, experience has shown that this law has oppressed women.

There should be a difference between zina (adultery) and zina bil jabr (rape) but this has not been attended to. When both parties consent, it is zina (adultery) and when one person uses force and the other does not consent, then it is zina bil jabr (rape).

The Hudood Ordinance does not recognize the difference between zina (adultery) and zina bil jabr (rape). This is against the Quran and against Sunnah. This is also against the Hadith. If we consider the decisions given by the Prophet (p.b.u.h) in his lifetime, then it (lack of difference between zina (adultery) and zina bil jabr (rape)) is totally unacceptable and has given Islam a bad name. It distorts the face of Islam and many women, lawyers and judges have felt uneasy and anxious with it. Therefore, it is essential to differentiate between the two. Zina (adultery) is one type of crime and zina bil jabr (rape) is totally separate in its nature.

There is ample difference between zina (adultery) and zina bil jabr (rape) and, therefore, I think it is inappropriate to put them in the same clause. The definition of zina (adultery) is different from the definition of zina bil jabr (rape). A proper change in the Ordinance should be made by determining different requirements of evidence and punishments for both zina (adultery) and zina bil jabr (rape).