Monday, May 12, 2014

Lies & Distortions By The Media About Hudood Ordinance

So, according to the Ordinance, the woman is not a criminal & is innocent if she has been raped.
The differences between the two crimes, as implemented in the Ordinance, have already been
discussed before.
There is an issue which is usually discussed & debated viz. whether Zina and Zina-bil-Jabr are
two forms of the same crime or not. Actually, this debate is usually heated to exclude or include rape
within the ambit of verse 2 of Surah Noor. But, the proof from Sunnah & Ijma is too clear and sticking
with this ambiguous discussion is like running in a never-ending circuit.
Similarly, it must also be noted that in Surah Noor, the term ‘zina’ is used. In fiqh and Arabic
lexicons, it is taken to mean illicit intercourse. There is no reference to consent or will and thus it is a
general term. With this definition in mind, zina may be consensual i.e. zina-bil-raza or forced i.e. zina-biljabr.
But, both these terms
will be covered by the general
term ‘zina’.
However, in the ordinance, the word ‘zina’ is defined in the meaning of ‘zina-bil-raza.’ So, the
term zina, in the ordinance, excludes zina-bil-jabr. Thus what the ordinance designates as zina is known
in the fiqh as zina-bil-raza. This thin difference must be kept in mind, otherwise, confusions &
ambiguity may arise.
Coming back to the original issue; to settle this issue we shall consult a dictionary & find the
meaning of crime. Merriam-Webster Dictionary, provided with Britannica Encyclopedia 2002 Deluxe
Edition, describes the word ‘crime’ as:

An act or the commission of an act that is forbidden or the omission of a duty
that is commanded by a public law and that makes the offender liable to
punishment by that law.

In the light of the above definition, if we view zina-bil-raza and zina-bil-jabr, it is quite clear that
the two acts are completely different crimes, just like they are dealt in by the Hudood Ordinance. They
can never, on earth, be considered to be the same crimes! This is because of the fact that in zina-bil-raza,
both the man and woman are not only punished, but, are also involved in the commission of the crime.
Whereas, in zina-bil-jabr, only one person is involved in the offence and the woman is not only
innocent, but, is also not punished.
Some people forward the argument that just like theft is theft, whether it is with force or not,
same is the case here. But, this argument is fallacious on the face of it, because, in theft, the thief is the
criminal in both the cases and the one whose money has been stolen is the victim. Whereas, in zina-bilraza,
both are criminals and involved
in the offence, but, in zina-bil-jabr,
only one is involved in the
offence
and is liable to punishment.
Furthermore, this issue can be approached in one more way: in zina, both men and women
consensually commit an illegal act, whereas, in zina-bil-jabr, only the man commits an illegal act, whose
victim is the woman. Therefore, in zina, neither the man nor the woman is a victim—rather both are the
offenders. Whereas, in zina-bil-jabr, only the woman is a victim of an illegal act and the man is the
offender.
Here, I must remind again that we need to keep the definition of ‘zina’ in mind. If we take ‘zina’
to mean fornication or adultery, then ‘zina-bil-jabr’ is a very different thing. But, if we take ‘zina’ to
simply mean illicit intercourse, then fornication/adultery come under the flag of zina-bil-raza, whereas,
rape comes under zina-bil-jabr. According to the latter definition of ‘zina’, both zina-bil-raza and zina-biljabr
are covered by the term zina.

To sum up then, in view of the above arguments, we fully adhere to the view that the proof
required for zina or zina-bil-jabr liable to hadd is the same, because, it is a requirement of Shari’ah,
proved from Sunnah and Ijma. But, from the point of view of general understanding, zina and zinabil-jabr
are two different crimes, as provided in the Hudood Ordinance.It is noteworthy here that one of the experts has indeed pointed out this mistake made by the
Zara Sochieye team:


7
Hafiz Yousuf Salahuddin
Advisor Federal Shariat Court
As far as my limited knowledge is concerned, there is no such thing in the
Hudood Ordinance that it does not differentiate between zina and zina bil jabr.
These are undoubtedly two different things. So, first of all, the Ordinance does
not treat them in a similar way.

Geo TV never pointed out that in the Hudood Ordinance, there are separate sections for zina
and zina-bil-jabr; separate definitions, punishments, etc. If the evidence for hadd punishment is same,
this does not mean that there is no difference between the two. Furthermore, Hafiz Salahuddin’s statement
was not shown completely; rather, only a small part was shown. Relying on the false information
provided by Zara Sochieye, many scholars gave their statements against the ordinance—never
knowing what the actual ordinance was!

3. Women’s testimony not taken
This is yet another misconception being spread by Zara Sochieye. In one of their advertisements,
they show a woman being raped infront of 5-10 women. The feet of these women are locked in chains,
while a person is commenting:

“According to the Hudood Ordinance, testimony of a woman is not acceptable ... Although, a woman is
being raped in front of these women, but, their testimonies are not acceptable.”

In the program Jawab Deyh, the host went to extreme when he said the following:-

“Some of 50 women witness a rape then there won’t be any convictions as there were no four male
witnesses?”

These are only two sources; this argument is spread by a large number of sources. In fact, even
educated persons, including legal experts, forward this argument. But, is it really so?
In the whole Hudood Ordinance, there is not even a single article which enshrines that the
testimony of women is not acceptable. If four Muslim adult male witnesses who are pious & God
fearing, testify of having seen the crime of zina or zina-bil-jabr, then the deterrent punishment i.e. hadd
will be awarded to the accused. If this condition is not fulfilled, but, there is evidence from other
sources like medical evidence, circumstantial evidence, testimony of women etc. then the rapist will be
punished under tazir, for 4-25 years rigorous imprisonment [henceforth, R.I.] (
ﺖﻗﺸﻣ ﺎﺑ ﺪﻴﻗ) alongwith
any number of strokes of lashes, provided in no case shall the whipping exceed 30 stripes.
In fact, a judgment of the Federal Shariah Court will be enough to shatter the veracity of this
claim:

Rashida Patel vs. The State (PLD 1989 FSC 95)
Shariat Petition No. 10/K of 1983 to 14/K of 1983 & 2/L of 1985
To prove the crime of Zina, the condition of four witnesses was necessary. However, if four male
witnesses are not available, women can appear before the Court as witnesses, but in the light of their
                                             
 evidence, Hadd punishment shall not be awarded; only Tazir punishment shall be awarded.
[Annual Report of the FSC, 2002, p.33]


4. Four Witnesses Required For Punishing a Rapist
Another mountainous lie being spread about the Ordinance by Geo TV is that the rapist will not
be punished unless four witnesses are brought forward by the victim of rape. We have clarified this
issue under the very first heading, Crime never proved, and also cleared up that severe punishment—
without any witnesses, even on the solitary statement of the victim—can be awarded as tazir.

5. Women in jail
Another false accusation being made against the Hudood Ordinance is that it is due to this
Ordinance that many women are dwelling in jails. The NCSW established a Special Committee to
review the Hudood Ordinances in 2002, which wrote in its report, on page 3 that 80% of the women,
languishing in jail, are due to the Hudood Ordinance. Geo TV also re-iterates the same; in fact, several
leading newspapers do the same.

Are women resting in jail for several years due to Hudood Ordinance? Can this be fixed by
8
repealing Hudood Ordinance? The answer is a big NO!
The Hudood Ordinance neither deals with the lodging of FIRs, nor does it deal with how the
cases are to be heard. Therefore, connecting these issues with the Hudood Ordinance or to label it as a
‘torment’ of the Hudood Ordinance is nothing but ignorance!
The Hudood Ordinance merely deals with the following issues:
(a) Definition of sexual crimes
(b) Prescribing punishment for these sexual crimes
(c) Proof required for these crimes
It does NOT deal with the following issues:
(a) Lodging of FIRs
(b) Keeping women in jail or five star hotels or anywhere else
(c) Slow judicial process
(d) Hearing of pending cases, or hearing being too slow, etc.
It may be pertinent to note here that this issue of women lying in jail is a ‘blessing’ of the Code of
Criminal Procedure (Act V of 1898) which was not made by a ‘revengeful’ Zia-ul-Haq or ‘idiot’ ulema.
This was made by the British in 1898 themselves and today, channels like BBC, CNN, etc. and of
course, various Muslim channels are blaming the Hudood Ordinance for this.
Someone may stand up to ask that before 1979, women were not languishing in jails, so, the
Hudood Ordinance must be connected with this issue. The answer to this argument is that the only
thing which the Hudood Ordinance did was to declare zina a crime, because, in the original PPC, zina
bil raza was NOT considered a crime!!! Neither was zina bil raza considered a crime, nor was there
any punishment for drinking wine and/or intoxicating liquor.
These women are languishing in jails for so many years because of the outdated slow judiciary
process, due to which the cases are never heard. At the beginning of 2005, there were 123,640 pending
hudood cases; out of which, more than 78,833 cases were that of the Prohibition Order alone! It is due to
the Code of Criminal Procedure (henceforth, CrPC) and some other defects in our judicial system,
which has caused the hearing of cases to become overly slow. Thus these women are lying in jails
because they were arrested, but, the cases have not been heard; they consist of both—innocent and
                                             

8 For example, see The Daily Dawn, Vol. LX, No. 275, Issue of Saturday, October 7, 2006, p.5; How Hudood Law Is Hurting
Society by Roshaneh Zafar guilty.
I would also like to ask my friends that there are several prisoners, men as well as women, lying
in jails for years, because, their cases have not been heard uptil now. In fact, in a few cases, even after
freeing the prisoners, they still remain in prison. If a person is being held in jail, because, the police
arrested him/her for a cognizable offence, punishable under any section of the PPC: will these people
repeal the PPC for solving that problem?
In fact, suggesting a repeal of the Hudood Ordinance as a remedy for the problem of women
lying in jail, which is actually due to the corrupt police, can rightly be explained with the following
example. A person got infection in a certain organ of his body; instead of curing the infection, he
thought that cutting off the whole organ will solve the
‘infection problem’ for good! Only a fool &
ignorant will be happy with such a solution, because, doing so will cause him to lose a vital part of his
body & even cause his death—alongwith the elimination of the infection.
Surprisingly enough, this is what the NGOs and the media has been asking for i.e. to solve the
problem of slow judiciary process, stop lodging cases unless in rare cases—in Zina, don’t lodge an FIR
unless four male Muslim truthful witnesses are available. This is akin to saying that in 90% of the cases,
the adulterers and fornicators should be given an ‘open sex’ environment.
Their recommendation is further that if any of the four witnesses do not qualify ‘tazkiyah al-
shuhood’ or if the judge is not satisfied with the testimonies, he may acquit the accused & subject all
witnesses and the complainant to a punishment of 80 strokes of lashes! A deep analysis of this
recommendation reveals that this is aimed at discouraging people from even reporting the remaining
10% cases, by terrorizing them of being subject to qazf. For example, if four people saw the heinous act,
they will still abstain from testifying of having seen it, because, if even a single witness did not qualify
the requirements of ‘tazkiyah al-shuhood,’ all of them will be punished with 80 stripes!
I would also like to shed light on a very oft-repeated argument that 80% of the women
languishing in jails, are due to Zina Ordinance. We already discussed that the Hudood Ordinance is
not responsible for this, but, let me warn you further. Don’t get confused by this figure!
Firstly, it does NOT reveal anything about the number of women in jail; it only shows the cause of
being in jail. Furthermore, it is still wrong to say that 80% of the women inhabiting jail are waiting trial
for zina ordinance. In the NWFP jails, during July 2003, the number of women languishing in jail for
trial for narcotics cases was 72, whereas, the number of those for trial under all four hudood ordinances
was 56.
 From even the hudood cases, a major portion is that of the prohibition cases and furthermore,
the total number of women in jail was 172. This means that less than 20% (not 80%) of the women
languishing in jail were waiting trial under zina ordinance. [Source of these statistics is a report
prepared by the Women Aid Trust; see footnotes.]
9 Similarly, during 1988, the number of women prisoners in various jails of Punjab, was 657; out
of these, 306 were languishing for zina cases.
 This, again, gives a figure of 46%, which is nearly half
of the figure claimed by feminist NGOs!
Note:-
10 Gen. Musharraf promulgated the Law Reforms Ordinance, 2006 this year, which added a new
section 156-B to the CrPC. According to this section, zina (not zina-bil-jabr) cases will not be
investigated by a police officer who is lower in rank than a SP (superintendent.) Furthermore, no
person shall be arrested for zina by the police until an arrest warrant has been issued by the magistrate
of a court of competent jurisdiction.6. Case of rape converts to case of adultery
BBC reported regarding the Hudood Ordinance:


11 If a rape victim fails to present four male witnesses to the crime, she herself could
face punishment and be prosecuted for adultery. The government says that
makes it almost impossible to prosecute a rape case.

The Telegraph published a similar report:



12 These [hudood laws] place an almost impossible burden of proof on women by
compelling them to produce four ‘pious’ male witnesses to prove rape or risk
being convicted of adultery and face 100 lashes or death by stoning.

CBC news observed:

13 According to General Zia’s law, if a woman is raped she needs four eyewitnesses 

to prove that she was raped. But if she files a complaint of rape and fails to
produce four eye witnesses then she has confessed to adultery and must be
punished for the crime of adultery.

WLUML noted:

14 Under section 8 of the Ordinance, a rape victim is required to produce at least
four adult male Muslim eyewitnesses, who have physically seen the act of rape
against the victim, in order to prove her case ... But if a woman who claims she
was raped fails to prove her claims she can be convicted of adultery, which is
punishable by death in the most stringent circumstances.

A similar thing was found on the ONLINE International news network:


They [hudood laws] require a female rape victim to produce four male witnesses
to corroborate her account, or she risks facing a charge of adultery.

The Hindu magazine says:

16 Under this law, if a woman is raped, and reports it, the onus is on her to prove
that she was raped. She has to bring along four male eyewitnesses. Only then
will the law consider her case. On the other hand, if she cannot prove that she
was raped, then she could be charged with adultery, a non-bailable offence that
can even invite the death penalty under certain circumstances. ABC news also adhered to the same view:

                                   

                                             


Lies & Distortions By The Media About Hudood Ordinance 1


Explanation: In this section, “tazkiyah al-shuhood” means the mode of inquiry
adopted by a court to satisfy itself as to the credibility of a witness.
2. No Difference between Zina and Zina bil Jabr
Another misconception being spread on a wide scale is that Hudood Ordinance makes no
difference between zina and zina bil Jabr. A person who never saw the Ordinance may believe in such a
connotation, but, anyone who has the slightest of knowledge of the Ordinance knows that it has drawn
a big line of distinction between the two crimes.
The allegation that the hudood ordinance does not differentiate between zina and zina-bil-jabr is
prima de faciá incorrect, as there are two separate sections (i.e. section 4 and 6), which clearly define the
two crimes separately. There are different punishments for the two crimes and thus the Ordinance has
placed them in separate categories. The text of sections 4 to 8 is given below for reference:-

4. Zina
A man and a woman are said to commit ‘zina’ if they wilfully have sexual
intercourse without being validly married to each other.

Explanation: Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of Zina.

5. Zina liable to hadd
(1) Zina is zina liable to hadd if:-
(a) it is committed by a man who is an adult and is not insane with a
woman to whom he is not, and does not suspect himself to be married;
or
(b) it is committed by a woman who is an adult and is not insane with a
man to whom she is not, and does not suspect herself to be, married.
(2) Whoever is guilty of Zina liable to hadd shall, subject to the provisions of
this Ordinance:-
(a) if he or she is a muhsan, be stoned to death at a public place; or
(b) if he or she is not muhsan, be punished, at a public place; with
whipping numbering one hundred stripes.
(3) No punishment under sub-section (2) shall be executed until it has been
confirmed by the Court to which an appeal from the order of conviction
lies; and if the punishment be of whipping; until it is confirmed and
executed, the convict shall be dealt with in the same manner as if
sentenced to simple imprisonment.

6. Zina-bil-jabr
(1) A person is said to commit zina-bil-jabr if he or she has sexual inter-course
with a woman or man, as the case may be, to whom he or she is not
validly married, in any of the following circumstances, namely:-
(a) against the will of the victim;
(b) without the consent of the victim;
(c) with the consent of the victim, when the consent has been obtained by
putting the victim in fear of death or of hurt; or (d) with the consent of the victim, when the offender knows that the
offender is not validly married to the victim and that the consent is
given because the victim believes that the offender is another person to
who the victim is or believes herself or himself to be validly married.

Explanation: Penetration is sufficient to constitute the sexual inter-course
necessary to the offence of zina-bil-jabr.

(2) Zina-bil-jabr is zina-bil-jabr liable to hadd if it is committed in the committed
in the circumstances specified in sub-section (1) of section 5.
(3) Whoever is guilty of zina-bil-jabr liable to hadd shall subject to the
provisions of this Ordinance:-
(a) if he or she is a muhsan, be stoned to death at a public place; or
(b) if he or she is not muhsan, be punished with whipping numbering one
hundred stripes, at a public place, and with such other punishment,
including the sentence of death, as the Court may deem fit having
regard to the circumstances of the case.

(4) No punishment under sub-section (2) shall be executed until it has been
confirmed by the Court to which an appeal from the order of conviction
lies; and if the punishment be of whipping; until it is confirmed and
executed, the convict shall be dealt with in the same manner as if
sentenced to simple imprisonment.

7. Punishment for zina or zina-bil-jabr where convict is not an adult
A person guilty of zina or zina-bil-jabr shall, if he is not an adult, be punished
with imprisonment of either description for a term which may extend to five
years, or with fine, or with both, and may also be awarded the punishment of
whipping not exceeding thirty stripes:

Provided that, in the case of zina-bil-jabr, if the offender is not under the age
of fifteen years, the punishment of whipping shall be awarded with or
without any other punishment.

8. Proof of zina or zina-bil-jabr liable to hadd
Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following
forms, namely:-
(a) the accused makes before a Court of competent jurisdiction a confession of
the commission of the offence; or
(b) at least four Muslim adult male witnesses, about whom the Court is
satisfied, having regard to the requirements of tazkiyah al-shuhood, that
they are truthful persons and abstain from major sins (kabair), give
evidence as eye-witnesses of the act of penetration necessary to the
offence:

Provided that if the accused is a non-Muslim, the eye-witnesses may be non-
Muslims.
 Explanation: In this section, “tazkiyah ul-shuhood” means the mode of
inquiry adopted by a court as to satisfy itself to the credibility of a witness.

Only an objective analysis of the above sections is sufficient for any unbiased person deduce that
the ordinance has clearly distinguished between zina and zina-bil-jabr. If the evidence required for
proving the two crimes is similar, this does not mean that the ordinance has equalized the two crimes
and dissolved all differences. For most (not all) crimes punishable by way of hadd, at least two Shar’ai
witnesses are necessary. Can anyone reasonably argue that God has dissolved the differences between
all these crimes?!
These guys and some other fellows spread this misconception on the basis that the evidence is
same for both crimes. But, these people themselves tell others that the Ordinance has differentiated
between Muhsan and non-Muhsan criminals. It is indeed amazing that when the definitions, evidence,
etc. is the same, yet they agree that there is a difference, but, when it comes to zina and zina-bil-jabr, all
differences are dissolved!
The differences that the Ordinance has made between the two crimes are listed in the following
table:-
 Difference Zina Zina-bil-Jabr Definition Intercourse with will as Criminal Responsibility well as consent & without any deceitful belief, etc.  Definition reads: “A man and woman are…” which shows that both are
criminals Tazir punishment Rigorous imprisonment not exceeding 10 years, thirty stripes along with fine
Hadd punishment for non-Muhsan criminals Whipping numbering hundred stripes Intercourse without will or
consent or by inducing deceitful belief, etc.  Definition reads: “A person is…” which shows that only the rapist is a criminal For gang rape, death
penalty; for ordinary rape, 4 to 25 years rigorous imprisonment & 30 lashes; for kidnapping, life imprisonment, etc. Whipping numbering 100 stripes along with any punishment including death penalty
The only thing common between the two is the punishment of Rajm for Muhsan criminals and
the proof required for proving the crime, and these things are common between the two, only because
God himself has decided so. (Not the ordinance!)
Note: The strict evidence of four male Muslim truthful witnesses is required only for the
punishment of Hadd. If the court is convinced that the crime stands proved on other forms of evidence
like DNA test, etc. then tazir can be awarded as stated in Section 10 of the concerned Ordinance.

The above extract has provided enough material to refute the flawful assumption that the
“Hudood Ordinance places zina and zina-bil-jabr in the same category.”
Now, we must also see whether zina and zina-bil-jabr are two forms of the same crime or two
different crimes. For this purpose, we will take help from some other writings:-
“The Special Committee of the National Commission on the Status of Women (NCSW), to review the hudood laws, observes in its draft report:-

While the majority of the Committee members agreed with the arguments of
Syed Afzal Haider, Dr. Fareeda Ahmad and Mr. Shahtaj disagreed and were of
the view that Surah Noor, verse 2 covers both offences of Zina and Zina-bil-Jabr
along with the pre-requisite criterion of four witnesses to prove these offences …
Dr. Fareeda Ahmad, Mr. Noor Muhammad Shahtaj and Dr. S.M. Zaman held
that the provisions of the Ordinance on the offence of Zina-bil-Jabr, as reflected
in Section 8, were in accordance with the Shariah. [NCSW Report, p.9]

I appreciate these members on this issue and they were undoubtedly right in pointing out that
four witnesses are required for proving rape liable to hadd; but, their argument seems to have been
disfigured by the one who prepared these conclusions. Their actual argument was:-

However, FA (Dr. Farida Ahmed) and NMS (Noor Muhammad Shahtaj) disagreed with that and were of the opinion that it does fall under Hadd and FA relied on a Hadith of Tirmidhi Sharif, according to which bil Jabr if the offence of Zina is proved as per rules of evidence laid down for Zina then the punishment
should be Hadd. If not then the punishment could be as per Tazir. [NCSW Report,p.57] (Highlighted text has been distorted by the one who prepared the report.)

It seems most likely that the one who prepared this report was biased, because, he completely
distorted the sentence to give a strange picture of the hadith.The actual sentence if corrected is:

FA relied on a Hadith of Tirmidhi Sharif, according to which if the offence of  Zina bil Jabr is proved as per rules of evidence laid down for Zina then the punishment should be Hadd. If not then the punishment could be as per Tazir.

Did you see what the actual sentence is?!

5.  It is quite clear from numerous ahadith.
4, including the one that has been quoted above that if
Zina bil Jabr is proved according to requirements of Hadd-e-Zina, the punishment of Hadd will be
awarded to the rapist only, not to the woman.

It is reported in many ahadith that Muhsan persons, who committed zina-bil-jabr, were stoned to
6 death. The point to be noted here is that Rajm is a hadd and moreover, it is not mentioned in verse 33 of
Surah al-Maida (5).
It is pertinent to note down a few things regarding Zina-bil-Jabr in the Ordinance; in Section 6,
sub-section (1), it is written:

A person IS said to commit zina-bil-jabr… (Emphasis ours)
 So, according to the Ordinance, the woman is not a criminal & is innocent if she has been raped.
The differences between the two crimes, as implemented in the Ordinance, have already been
discussed before.
There is an issue which is usually discussed & debated viz. whether Zina and Zina-bil-Jabr are
two forms of the same crime or not. Actually, this debate is usually heated to exclude or include rape
within the ambit of verse 2 of Surah Noor. But, the proof from Sunnah & Ijma is too clear and sticking
with this ambiguous discussion is like running in a never-ending circuit.
Similarly, it must also be noted that in Surah Noor, the term ‘zina’ is used. In fiqh and Arabic
lexicons, it is taken to mean illicit intercourse. There is no reference to consent or will and thus it is a
general term. With this definition in mind, zina may be consensual i.e. zina-bil-raza or forced i.e. zina-biljabr.
But, both these terms will be covered by the general term ‘zina’.
However, in the ordinance, the word ‘zina’ is defined in the meaning of ‘zina-bil-raza.’ So, the
term zina, in the ordinance, excludes zina-bil-jabr. Thus what the ordinance designates as zina is known
in the fiqh as zina-bil-raza. This thin difference must be kept in mind, otherwise, confusions &
ambiguity may arise.
Coming back to the original issue; to settle this issue we shall consult a dictionary & find the
meaning of crime. Merriam-Webster Dictionary, provided with Britannica Encyclopedia 2002 Deluxe
Edition, describes the word ‘crime’ as:

An act or the commission of an act that is forbidden or the omission of a duty
that is commanded by a public law and that makes the offender liable to
punishment by that law.

In the light of the above definition, if we view zina-bil-raza and zina-bil-jabr, it is quite clear that
the two acts are completely different crimes, just like they are dealt in by the Hudood Ordinance. They
can never, on earth, be considered to be the same crimes! This is because of the fact that in zina-bil-raza,
both the man and woman are not only punished, but, are also involved in the commission of the crime.
Whereas, in zina-bil-jabr, only one person is involved in the offence and the woman is not only
innocent, but, is also not punished.
Some people forward the argument that just like theft is theft, whether it is with force or not,
same is the case here. But, this argument is fallacious on the face of it, because, in theft, the thief is the
criminal in both the cases and the one whose money has been stolen is the victim. Whereas, in zina-bilraza,
both are criminals and involved in the offence, but, in zina-bil-jabr,only one is involved in the offence and is liable to punishment.
Furthermore, this issue can be approached in one more way: in zina, both men and women
consensually commit an illegal act, whereas, in zina-bil-jabr, only the man commits an illegal act, whose
victim is the woman. Therefore, in zina, neither the man nor the woman is a victim—rather both are the
offenders. Whereas, in zina-bil-jabr, only the woman is a victim of an illegal act and the man is the
offender.
Here, I must remind again that we need to keep the definition of ‘zina’ in mind. If we take ‘zina’
to mean fornication or adultery, then ‘zina-bil-jabr’ is a very different thing. But, if we take ‘zina’ to
simply mean illicit intercourse, then fornication/adultery come under the flag of zina-bil-raza, whereas,
rape comes under zina-bil-jabr. According to the latter definition of ‘zina’, both zina-bil-raza and zina-biljabr
are covered by the term zina.

To sum up then, in view of the above arguments, we fully adhere to the view that the proof
required for zina or zina-bil-jabr liable to hadd is the same, because, it is a requirement of Shari’ah,
proved from Sunnah and Ijma. But, from the point of view of general understanding, zina and zinabil-jabr
are two different crimes, as provided in the Hudood Ordinance.


Q. What is contract of bailment? Explain fully the rights and duties of the bailee. (1998) (2001)

Contact of bailment

Q. What is contract of bailment? Explain fully the rights and duties of the bailee. (1998) (2001)
1.
 Introduction:
Bailment means a legal relation that arises whenever one person delivers
 possession personal property to another person under an agreement by which the later is under an obligation to return the property to the former.
2. Meaning:
The term bailment is derived from a French word
 ‘baillor’ which means to deliver.
3.
 Definition:
According to contract act Sec 148:
“A bailment is the
 delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them."
4. General
 definition:
A ‘bailment’ is the
 delivery of goods by one person to another for some purpose upon the understanding that the goods shall be returned when the purpose is completed. In a contract of bailment delivery is for temporary purpose.
5. Kinds of bailment:
Following are the kinds of bailment.
(i)
 Deposit:
It is a simple bailment of goods by one person to another person to keep for bailor’s use.
(ii)
 Commodation:
In this kind of bailment goods lent to a friend graits to be used by him.
When the goods are delivered to the bailee for hire.
When goods are delivered to another person by way of security of money borrowed.
When goods are delivered be carried or something to be done about these for reward payable to the bailee.
6. Parties of the contract of bailment:
There are two parties in the contract of bailment.
(a) Bilor:
The person who parties in the contract of bailment.
(b) Bailee:
The person to whom the goods are derived is called bailee.
7. Essentials of contract of bailment:
Following are essential of contract of bailment.
(I) Contract:
It is basic essential for bailment.
(II)
 Moveable property:
Property must be moveable in contract of bailment.
(III)
 Delivery of goods:
The
 delivery of goods should be made for some purpose under a contract.
(IV) Change of
 possession:
In bailment
 possession is changed from one person to another person.
(V) Specific purpose:
The goods are delivered for some specific purpose to another person.
(VI) Ownership is not changed:
The ownership is not change. It remain to bailor.
(VII) Parties of contract:
There are two parties to the contract of bailment bailor and bailer.
(VIII) Returnable:
The goods must be returned to the owner of property are disposed according to the direction of bailor.
8. Duties or responsibilities:
Following are the duties or responsibilities of bailee.
(I) Care of goods:
Bailee is bound to take as much as care as the man take care of his own good.
(II) Act according to the contract:
Bailee is bound to act according to the contract of bailment.
(III) Not deny the title:
Bailee can not deny the title of the goods delivered to him.
 
(IV) Return the goods:
It is the duty of bailee
 to return or deliver the goods to bailor or according to his directions.
(V) Return at proper time:
Bailee should return the goods at proper time.
(VI) Return of profit:
Baliee should return the increase or profit to bailee.
(VII) Proper use of goods:
He should use the goods according to the contract of bailment.
9. Rights of bailee:
Following are the rights of bailee.
(I)
 Recovery of loss:
A bailee is entitled to recover damages if he suffers any loss.
(II)
 Recovery of compensation:
A bailee is entitled to receive
 compensation from the bailor for any loss resulting from the defect of bilor title.
(III)
 Recovery of expenses:
Bailee is entitled to recover all expenses for any purpose of the bailment.
(IV) Rights to retain:
Baailee has right to retain the goods until debtor claim is paid.
(V) Right against third person:
He has right to receive the amount of indemnity from “bailor for any loss which may sustain by reason that the bailor was not entitled to make the bailment.
(VI) Right against third person:
If a third person wrongfully deprives the bailee of the use orpossession
 of the good bailed. He can file suit against such person.
(VII) Right of remuneration:
He is entitled to lawful charge for providing services.
10. Conclusion:
To conclusion it can be said that, the person to whom the goods are delivered under the contract of bailment is called bailee. He is bound to act accordingly the direction of bailee. Bailor and bailee have right and duties under the contract act.

Lies & Distortions By The Media About Hudood Ordinance

DISCLAIMER 



Nothing contained herein is a deliberate or implied, act or speech, intended or likely to outrage 
the feelings of any person, group, sect or organization. Everything contained herein is presented in
good faith, with proper care & attention, and solely for the public good, and not to insult, defame or 
otherwise hurt, any person, group or association whatsoever. Despite best efforts to provide accurate
and correct information, all facts and knowledge contained herein are to be taken at one’s own 
responsibility and the authors, publishers, distributors, sellers or any person associated with them,
shall not be responsible, in any way, for any inaccuracy, misinformation or otherwise any loss or 
damage, etc. caused by any such fact or information.




In the name of Allah, the Most Merciful & Most Graceful


In both cases, no one came forward to rectify that under the Hudood Ordinance, a rapist can be 

punished with tazir, if the crime stands proved on any other evidence, for example, on the basis of

medical evidence only, even if no witnesses are available. 

It will be pertinent to study Section 10 of the Offence of Zina (E.O.H.) Ordinance (VII of 1979) in

this regard:- 

 

10. Zina or zina-bil-Jabr liable to tazir. 

(1) Subject to the provisions of section 7, whoever commits zina or zina-biljabr

which is not liable to hadd,

or for

which proof in either of the

forms

mentioned

in section

8 is not available and the punishment of qazf

liable to hadd has not been awarded to the complainant, or for

which hadd may not be enforced under this Ordinance, shall be liable to tazir. 

(2) Whoever commits zina liable to tazir shall be punished with rigorous

imprisonment for a term which may extend to ten years and with

whipping numbering thirty stripes, and shall also be liable to fine. 

(3) Subject to the provisions of Section 4, whoever commits zina-bil-jabr

liable to tazir shall be punished with rigorous imprisonment for a term

which shall not be less than four years nor more than twenty-five years

and shall also be awarded the punishment of whipping numbering

thirty stripes. 

(4) When zina-bil-jabr liable to tazir is committed by two or more persons

in furtherance of common intention of all each of such persons shall be

punished with death.


 

2 Let us take a closer look at Section 10(1). This section states that the crime of zina or zina-bil-jabr

is liable to tazir, in any one of the following cases:- 

(a) Proof in either of the forms mentioned in Section 8 (i.e. four witnesses or confession by the

accused) is not available. It may be noteworthy that the punishment of qazf liable to hadd

cannot be awarded to the prosecutrix if tazir is awarded to the accused. 

(b) Crime is not liable to hadd i.e. zina or zina-bil-jabr is committed, but, not in the circumstances

listed in Section 5(1), e.g. an insane person committing the crime. 

(c) Hadd cannot be enforced in accordance with Section 9, e.g. a person retracts confession.

The court itself shall decide whether the crime is proved on the basis of evidence on record or 

not; any form of evidence is applicable in deciding this like DNA test, MLR (medicolegal report),

testimony of women, etc. 

 further prove that the notion of ‘crime never proved’ is a fallacy:-


Gulsher etc. vs. The State (2004 SD 159) 

The following cases

3 MR. JUSTICE S.A. MANAN

Sole testimony of victim of zina would be sufficient to prove zina case against accused when 

defence was not able to shatter the veracity of victim’s statement. 

                        This section was not present in the original Ordinance, but, came into being as a result of a judgment given by the Federal

Shariah Court in a case: Rashida Patel vs. The State (PLD 1989 FSC 95). In this judgment, the court ruled that gang rape is 

2covered by verse 33 of Surah al-Maida (5). 

3 All the cases mentioned in this article have been quoted from the Annual Report of the Federal Shariat Court, 2002 & 2003, 

published by the Law & Justice Commission of Pakistan. 

 

In this article, we will try to expose the immense rumors and hollow propaganda being spread
by the media about the hudood ordinance. The media has repeated certain lies over & over again, so
much so that even educated people have been induced to accept them as true. In this article, we will
shed off fiction from facts to present a true & clear picture of the issue. 
Lies and misinformation have been spread by a diverse range of channels & news sources. But
amongst them, Geo TV tops the list—thanks to Zara Sochieye, a very active campaign started by the
channel against the hudood ordinance. Geo TV, inter alia, used several fallacious facts to make the
public against the ordinance, which makes them an ideal case to study for the purpose of our article.
For this purpose, we shall focus mainly on Zara Sochieye, while, at the same time, we shall give
references to other news sources too. 
Please note that throughout this article, we refer to the text of the hudood ordinances as they
were before the passing of the Protection of Women (C.L.A.) Act, 2006.
 We shall refer to this act
henceforth as “WPB”. Furthermore, by the term ‘hudood ordinance’, we refer to the Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979), whereas, the word ‘hudood ordinances’ refer to the
following four ordinances:- 

• Prohibition (Enforcement of Hudood) Order (IV of 1979)
• Offences Against Property (E.O.H.) Ordinance (VI of 1979)
• Offence of Zina (E.O.H.) Ordinance (VII of 1979)
• Offence of Qazf (E.O.H.) Ordinance (VIII of 1979) 

1. Crime never proved 

The very first misinformation being propagated through Zara Sochieye is that under the Hudood
Ordinance, rape is never proved unless there are four witnesses. There are two advertisements in
which this idea has been promoted:- 

(a) In an advertisement showing a physical balance, in the background of which, a person says:
“Can it happen under an Islamic law that a crime is never proved? Can Islam tolerate such an
injustice?” 

The Advertisement
 (b) In the Experts Commentary, Dr. Fazal Ahmed, a learned scholar, said: “If a woman is abducted at 

night and raped, from where will she bring four witnesses and from where will four witnesses be
available? Therefore, the scholars should thing regarding this situation.” 
                                                 
1 Dr. Fazal Ahmed 


In both cases, no one came forward to rectify that under the Hudood Ordinance, a rapist can be 
punished with tazir, if the crime stands proved on any other evidence, for example, on the basis of
medical evidence only, even if no witnesses are available. 
It will be pertinent to study Section 10 of the Offence of Zina (E.O.H.) Ordinance (VII of 1979) in
this regard:- 

10. Zina or zina-bil-Jabr liable to tazir. 
(1) Subject to the provisions of section 7, whoever commits zina or zina-biljabr
which is not liable to hadd,or for which proof in either of the forms mentionedin section
8 is not available and the punishment of qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable
to tazir.
(2) Whoever commits zina liable to tazir shall be punished with rigorous
imprisonment for a term which may extend to ten years and with
whipping numbering thirty stripes, and shall also be liable to fine. 
(3) Subject to the provisions of Section 4, whoever commits zina-bil-jabr
liable to tazir shall be punished with rigorous imprisonment for a term
which shall not be less than four years nor more than twenty-five years
and shall also be awarded the punishment of whipping numbering
thirty stripes. 
(4) When zina-bil-jabr liable to tazir is committed by two or more persons
in furtherance of common intention of all each of such persons shall be
punished with death.


Let us take a closer look at Section 10(1). This section states that the crime of zina or zina-bil-jabr
is liable to tazir, in any one of the following cases:- 
(a) Proof in either of the forms mentioned in Section 8 (i.e. four witnesses or confession by the
accused) is not available. It may be noteworthy that the punishment of qazf liable to hadd
cannot be awarded to the prosecutrix if tazir is awarded to the accused. 
(b) Crime is not liable to hadd i.e. zina or zina-bil-jabr is committed, but, not in the circumstances
listed in Section 5(1), e.g. an insane person committing the crime. 
(c) Hadd cannot be enforced in accordance with Section 9, e.g. a person retracts confession.
The court itself shall decide whether the crime is proved on the basis of evidence on record or 
not; any form of evidence is applicable in deciding this like DNA test, MLR (medicolegal report),
testimony of women, etc. 
 further prove that the notion of ‘crime never proved’ is a fallacy:-

Gulsher etc. vs. The State (2004 SD 159) The following casesMR. JUSTICE S.A. MANAN

Sole testimony of victim of zina would be sufficient to prove zina case against accused when 
defence was not able to shatter the veracity of victim’s statement. 
                                               

 This section was not present in the original Ordinance, but, came into being as a result of a judgment given by the Federal
Shariah Court in a case: Rashida Patel vs. The State (PLD 1989 FSC 95). In this judgment, the court ruled that gang rape is 
covered by verse 33 of Surah al-Maida (5). 
3 All the cases mentioned in this article have been quoted from the Annual Report of the Federal Shariat Court, 2002 & 2003, 
published by the Law & Justice Commission of Pakistan. 

[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Zafar Naeem vs. The State (2004 SD 352)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement of victim of zina-bil-jabr who is a young girl of 11/12 years which is confidence
inspiring would be sufficient for recording conviction/sentence under S.10 (3). Omission to produce
shalwar, qameez and dopatta of victim of zina-bil-jabr would not be fatal to prosecution case under
S.10 (3), which cannot be thrown away for such omission by prosecution.
[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35)
MR. JUSTICE SAEED-UR-REHMAN FARRUKH
It is well-settled that conviction can be based, in rape case, on the solitary statement of the
victim if the same is found truthful and confidence inspiring.
[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Ashraf vs. The State (NLR 1997 SLD 1)
MR. JUSTICE KHALIL-UR-REHMAN
Zina-bil-jabr by father with his daughter:-
Conviction of father for committing zina-bil-jabr with his teen-aged daughter; defence plea that
he was substituted for real culprit, could not be accepted in circumstances of case. Conviction of the
appellant u/s 10(3) of the Offence of Zina (E.O.H.) Ordinance and sentence of 25 years R.I. (rigorous
imprisonment) awarded was proper to meet the ends of justice.
[Annual Report of the FSC, 2002, p.57]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Abid vs. The State (PLD 1988 FSC 111)
MR. JUSTICE GUL MUHAMMAD KHAN
Evidentiary value of Police Officials as witnesses:-
The police officers who are also Muslims, if they make a statement on oath, it has to be accepted
unless it is shown from context that they are telling a lie or they have been declared as unreliable by a
Court of competent jurisdiction.
[Annual Report of the FSC, 2002, p.51]

Mumtaz Ahmed vs. The State (PLD 1990 FSC 38)
MR. JUSTICE GUL MUHAMMAD KHAN
Scope and condition of Tazkiyah-al-Shuhood:-
Generally, every Muslim is a competent witness. He is ordained to speak the truth and should
give evidence in favour of Allah & no one else, be it his parents, children, relatives or friends. No
reason was stated for witness to have falsely involved accused persons. Involvement of accused in the
offence thus stood fully proved.
[Annual Report of the FSC, 2002, p.52]
Personal Note: A very important judgment as it removes the common misconception that a person who missed
even a single Salah does not fulfill the requirements of tazkiyah al-shuhood; this is inaccurate.

It is pertinent to note at this point that in Section 8, the respective ordinance defines tazkiyah al-[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Zafar Naeem vs. The State (2004 SD 352)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement of victim of zina-bil-jabr who is a young girl of 11/12 years which is confidence
inspiring would be sufficient for recording conviction/sentence under S.10 (3). Omission to produce
shalwar, qameez and dopatta of victim of zina-bil-jabr would not be fatal to prosecution case under
S.10 (3), which cannot be thrown away for such omission by prosecution.
[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35)
MR. JUSTICE SAEED-UR-REHMAN FARRUKH
It is well-settled that conviction can be based, in rape case, on the solitary statement of the
victim if the same is found truthful and confidence inspiring.
[Annual Report of the FSC, 2003, p.24]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Ashraf vs. The State (NLR 1997 SLD 1)
MR. JUSTICE KHALIL-UR-REHMAN
Zina-bil-jabr by father with his daughter:-
Conviction of father for committing zina-bil-jabr with his teen-aged daughter; defence plea that
he was substituted for real culprit, could not be accepted in circumstances of case. Conviction of the
appellant u/s 10(3) of the Offence of Zina (E.O.H.) Ordinance and sentence of 25 years R.I. (rigorous
imprisonment) awarded was proper to meet the ends of justice.
[Annual Report of the FSC, 2002, p.57]
Personal Note: It should be noted that no witnesses were available in the above case.

Muhammad Abid vs. The State (PLD 1988 FSC 111)
MR. JUSTICE GUL MUHAMMAD KHAN
Evidentiary value of Police Officials as witnesses:-
The police officers who are also Muslims, if they make a statement on oath, it has to be accepted
unless it is shown from context that they are telling a lie or they have been declared as unreliable by a
Court of competent jurisdiction.
[Annual Report of the FSC, 2002, p.51]

Mumtaz Ahmed vs. The State (PLD 1990 FSC 38)
MR. JUSTICE GUL MUHAMMAD KHAN
Scope and condition of Tazkiyah-al-Shuhood:-
Generally, every Muslim is a competent witness. He is ordained to speak the truth and should
give evidence in favour of Allah & no one else, be it his parents, children, relatives or friends. No
reason was stated for witness to have falsely involved accused persons. Involvement of accused in the
offence thus stood fully proved.
[Annual Report of the FSC, 2002, p.52]
Personal Note: A very important judgment as it removes the common misconception that a person who missed
even a single Salah does not fulfill the requirements of tazkiyah al-shuhood; this is inaccurate.

It is pertinent to note at this point that in Section 8, the respective ordinance defines tazkiyah al-