Program Transcript

Pachaas Minute

(ZARA SOCHIYAY SPECIAL)

Participants

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 Zina-bil-Jibr.

Do you think Hudood Laws that do not help female victims should be repealed?

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 evidence?

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 else.

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.

Audience Questions:

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.