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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
1 The very first misinformation being propagated through Zara Sochieye is that under the HudoodOrdinance, 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 beavailable? 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.
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 cases3 MR. JUSTICE S.A. MANAN
Sole testimony of victim of zina would be sufficient to prove zina case against accused whendefence 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
2 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-
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