Thursday, October 22, 2009
One of the avowed constitutional objectives of the Islamic Republic of Pakistan is to enable Muslims to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as laid doom in the Holy Qur'an and Sunnah.
The Constitution, accordingly, mandates that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
The object of this Bill is to bring the laws relating to zina and qazf, in particular, in conformity with the stated objectives of The Islamic Republic of Pakistan and the constitutional mandate and in particular to provide relief and protection to women against misuse and abuse of law.
The offences of zina and qazf are mentioned in the Qur'an. The two ordinances relating to zina and qazf, however, make a number of other acts punishable in spite of the fact that the Qur'an and Sunnah neither define these offences nor has any punishment for there been prescribed. On no principle of qiyas can the punishments for zina and qazf or the procedure identified for their proof can be extended to these offences.
Any offence not mentioned in the Qur'an and Sunnah or for which punishment is not stated therein is Ta'zir which is a subject of State legislation. It is for the State both to define such offences and to fix punishments for these. The exercise of such authority by the State is in consonance with Islamic norms which the State is authorized to both define and punish. Accordingly, all these offences have been removed from the two Hudood Ordinances and inserted in their proper places in the Pakistan Penal Code, 1860 (Act XLV of 1860) hereinafter "PPC".
The offences listed in sections 11 to 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) hereinafter "Zina Ordinance" are Ta'zir offences. All these are being inserted as sections 365B, 367A, 371A, 371B, 493A and 496A of the Pakistan Penal Code, 1860 (Act XLV of 1860). Sections 12 and 13 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 hereinafter 'Qazf Ordinance' are being omitted. This is being done as the definition of qazf in section 3 of that Ordinance is wide enough to cover the qazf committed by printing or engraving or sale of printed and engraved material.
No change is being made in the language of the statutory definition of any of these Ta'zir offences or the punishment provided for these, save one. The punishment of whipping is being deleted (or these Ta'zir offences. As the Qur'an and Sunnah do not provide for any punishment with regard to these offences the State is authorized to make this change in conformity with the Islamic concept of justice. This is in accordance with the scheme of the PPC and the evolving standards of decency which mark the progress of a maturing society.
The Zina and Qazf Ordinances have been a subject of trenchant criticism by citizens in general and scholars of Islam and women in particular. The criticisms are many. These include the lumping of the offence of zina with zina-bil-jabr (rape) and subjecting both to the same kind of proof and punishment. This has facilitated abuse. A woman who fails to prove rape is often prosecuted for zina. The requirement of proof for the maximum punishment of zina-bil-jabr (rape) being the same as that for zina, it has made absolutely impossible to prove the former.
Where a prosecution for rape against a man fails but sexual activity is confirmed by medical examination or on account of pregnancy or otherwise the woman is punished for zina not as Hadd - four eye witnesses not being available - but as Ta'zir. Her complaint is, at times, deemed a confession.
A penal statute must be clear and unambiguous. It must mark the boundaries between the permitted and the prohibited with clarity. The citizens are, thus, put to notice. They can order their life and conduct by following these bright guidelines and steer clear of trouble. The vague definitions in thane and related laws are, therefore, either being clarified and wherever that is not possible, omitted. The object is to protect the unwary and unsuspecting citizens from unwittingly falling foul of penal laws.
The Zina Ordinance also defines "marriage" as a valid marriage. In rural areas, in particular, nikahs generally and divorces particularly are not registered. It becomes difficult for a person charged with zina to establish "valid marriage" as a defence. Non-registration has its civil consequences. These are sufficient. failure to register a nikah or have a divorce confirmed should not entail penal consequences. This is in consonance with the Islamic norm that Hadd should not be imposed whenever there is any doubt about the commission of the offence. The misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful former husbands and other members of society.
A triple talaq is pronounced. The woman returns to her parental home. She goes through her period of iddat. After a while the family arranges another match and she gets married. The husband then claims that sans the confirmation of divorce by the local authorities the marriage is not over and launches a zina prosecution. It is necessary to delete this definition to shut this door.
There is no hadd for the offence of zina-bil-jabr (rape). It is a Ta'zir offence. The definition and punishment of rape is, therefore, being incorporated in the PPC in sections 375 and 376 respectively. The gender neutral definition is being amended to clearly provide that rape IS an offence committed by a man against a woman. As consent of the woman is a defence to the charge of rape it is being provided that such consent would not be a defence if the woman is less than 16 years of age. This accords both with the need to protect the weak, which the Qur'an repeatedly emphasizes, and the norms of international legal obligations.
The punishment for gang rape is death. No lesser punishment is provided. The courts heating such cases have observed that in many situations they are of the opinion that a person cannot be acquitted while at the same time imposing the death penalty is not warranted in the fails and circumstances of the case. The result is that they feel obliged to acquit the accused in Stan cases. To address this concern, the lesser sentence of life imprisonment is being added as an alternative to the death penalty.
The procedure for the prosecution of Ta'zir offences of zina-bil-jabr (rape) and gang rape, like that for all other Ta'zir offences under the PPC, is to be regulated by the Code of Criminal Procedure, 1898 (Act V of 1898) hereinafter "Cr. P.C.".
Lian is a form of dissolution of marriage. A woman who is accused of adultery by her husband and denies the charge can seek dissolution of her marriage. Section 14 of the Qazf Ordinance refers to lian and also provides a procedure for it. A form of dissolution of marriage has no place in a penal statute. Accordingly, lian has been introduced as a ground for divorce under the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939).
The definition of zina and qazf remain the same as in the Zina and Qazf Ordinances. For both zina and qazf the same punishments have been retained, as well.
Zina is a heinous crime that corrupts public morals and destroys the sense of modesty. The Qur'an regards zina an offence against public morality. The requirement of four eyewitnesses is not solely an evidentiary burden of extra-ordinary weight. It is also an assertion that if contrary to the hadith, "Allah loves those who hide their sins", one commits an act in so blatant a fashion that four people see it, the harm to society must be serious indeed. At the same time, the Qur'an protects privacy, prohibits baseless assumptions and inquisition and forbids interference in the life of others. It is for this reason that a failure to prove zina entails punishment for qazf (false accusation of zina). The Qur'an requires the complainant to bring four eye-witnesses to prove the accusation of zina. The complainant and the witnesses must be conscious of the seriousness of this offence and must know that if they make a false accusation or cannot prove the charge beyond doubt they will be punished for qazf. The conviction will follow the failure of the zina prosecution and will not be contingent on the initiation of fresh legal proceedings.
The Zina Ordinance has been abused to persecute women, to settle vendettas and to deny basic human rights and fundamental freedoms. To check such abuse both in the case of zina and qazf the Cr. P.C. is being amended to provide that only the Court of Sessions, on a complaint, may take cognizance of such cases. The offence has been made bailable so that the accused do not languish in jail during trial. The police will have no authority to arrest any one in such cases unless so directed by the Court of Sessions and such directions cannot be issued except either to compel attendance in court or in the event of a conviction.
The primary object of all these amendments is to make zina and qazf punishable only in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, to prevent exploitation, curb abuse of police powers and create a just and egalitarian society.
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