The legal implications of the ‘Protection of Women Bill’ which was recently passed by the National Assembly of Pakistan can only be known to the people who are well-versed with the intricacies of the legal system. But the picture being painted is that the bill is going to provide a remedy to those women who are facing severe oppression and hardships due to the Hudood Ordinance, and that it will also provide a great relief to countless women. It is also being claimed that the bill does not violate the injunctions of the Qur'an and Sunnah.
Let us take a serious and realistic look at the basic (fundamental) points mentioned in this bill, and observe how much they correspond with the claims being made. If we study the bill we would arrive at the conclusion that the bill contains only two substantive points:
Firstly, the punishment for rape (zina bil jabar) as ordained by the Quran and Sunnah, known as the Hadd, has been completely abolished in this bill. As such, a person who has committed rape cannot be given the punishment according to Shariah law and instead will receive a ta’azeeri punishment according to the Pakistan Penal Code(anything below hadd).
Secondly, the crime declared liable for ta’azeeri punishment in the Hudood Ordinance has been downgraded and declared merely ‘lewdness’, thereby reducing the severity of its punishment. Moreover, proving it has been made nearly impossible.
To abolish the punishment of rape (hadd) is a clear violation of the injunctions given in the Qur'an and Sunnah. However, it is being claimed that the punishment ordained by the Quran and Sunnah is only applicable when both the man and woman commit adultery with mutual consent; and that in the case of rape, the Qur'an and Sunnah have not prescribed any punishment. Let us first examine the extent to which this claim is correct:
1) The Holy Quran prescribes the punishment of adultery in Surah Noor as follows:
The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. (24:2)
In this injunction the word zina is absolute, including both zina bil-raza (adultery) and zina bil jabar (rape). In fact, it is common sense that rape is a more serious offense than what is done with free will (i.e. adultery). Thus, as this is the punishment prescribed for adultery with free will, the punishment for rape would be even more severe.
This injunction is inclusive of the woman who commits adultery, yet further along in the same surah (Noor) those woman who have been raped are exempted from any punishment. Therefore the Holy Quran says:
‘And if one force them (i.e. those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful.’ (24:33)
From this becomes clear that if any woman is forced to commit Zina, then she cannot be punished for this. Rather, only the one who has transgressed is to suffer the prescribed punishment (Hadd) as has been mentioned in Surah Noor, Ayat 2 (24:2).
2. The stated Hadd of 100 stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar it is further proven that a married person is to suffer Rajm, i.e., lapidating in the instance of his committing Zina. The Messenger of Allah sallallahu alaihi wa sallam did, and in this case did not differentiate between Zina bil Jabr (rape) and Zina bir-Radha (adultery with mutual consent).
Sayyidina Wail bin Hajr radiallahu anhu narrated that during the days of Allah’s Messenger sallallahu alaihi wa sallam, a woman had gone out to offer the prayer. On the way a man overcame and raped her. The woman cried for help and the man subsequently ran away. Thereafter the man admitted that he had raped the woman.
The Messenger of Allah sallallahu alaihi wa sallam then inflicted the Hadd only upon the man, and not on the woman.
Imam Tirmidhi related this Hadith in his Jami with two different chains of transmission, and he declared the second chain of transmission as reliable. (Jami Tirmidhi, Kitabul Hadd, Bab 22, Hadith nr. 1453, 1454)
3. In the Sahih Bukhari is a tradition according to which a slave had raped a slave-girl. Sayyidina Umar radiallahu anhu then imposed the Hadd upon the slave, yet not upon the slave-girl. (Sahih Bukhari, Kitabul Ikrah, Bab 6)
It is thus proven from the Holy Qur’an, the Sunnah of Allah’s Messenger sallallahu alaihi wa sallam, the verdicts of the Rightly Guided Caliphs and the noble Companions radiallahu anhum that the punishments to be inflicted for both Zina bir-Radha (adultery) and Zina bil Jabr (rape) are the same. It cannot be said that the Hadd mentioned in the Holy Qur’an and the sacred Ahadith is to be inflicted in case of Zina bir-Radh alone; and not in case of Zina bil Jabr.
Now arises the question as to why there is so much insistence on abolishing the shara’i punishment for Zina bil Jabr? The reason for this is the extremely unjust propaganda which certain circles have been busily spreading ever since the Hudood ordinance was implemented. According to this (false) propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she must produce four witnesses to support her claim. If this condition is not met, she is arrested in place of the offender. This claim has been and is being repeated incessantly, such that even educated people have begun to consider it as true. In fact, it is precisely claim which was argued as justification (for the new bill) by our president during his speech.
Now if such propaganda is publicized so much so that even the children on the streets are talking about it, then those who speak out against will be perceived as insane. However, if anyone wishes to analyse the matter objectively, then I would request him to leave all of the propaganda aside for a moment, and consider the following points:
The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was punished because she was unable to present four witnesses. It was in fact impossible precisely due to the Hudood Ordinance that this instance did not occur:
as according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Shariah punishment (hadd). Yet at the same time clause 10(3) was included to award the taa’zeeri punishment when one did not have four witnesses. Instead, the crime could be proven through one witness, medical examination and a chemical analysis report. Consequently, most rape criminals were awarded punishment due to this clause.
What we need to consider is that if a woman was unable to present four witnesses and was given punishment, which clause of the Hudood Ordinance resulted in this? If anyone claims that she was punished because of Qazaf (false accusation of rape), then the response is that the Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape allegation, she cannot be punished if she is unable to present 4 witnesses. No court of law can be in its right mind to award a punishment to her in this case. The other possibility could be that the woman is awarded punishment for committing adultery with mutual consent. And if the court of law takes such a decision it would not be merely because the woman was unable to present four witnesses, but because the court arrived at this decision after giving due consideration to all the available and alternative evidences. Clearly if a woman accuses a man of raping her but subsequent evidence proves that she committed adultery with her free will, thus proving her allegation to be false, then punishing her will not be against the spirit of justice. But since usually there is a lack of sufficient evidence to prove that the woman is lying, even these such cases are rare. In 99% of cases it so happens that the court of law is not convinced that the woman has been raped, yet since there is lack of sufficient evidence to prove her wilful involvement, she is granted the benefit of doubt and set free.
In fact, this can be verified very easily by doing an analyses of the cases executed under the Hudood Ordinance in the last 27 years. Other judges who have been involved in the proceedings have been of the same opinion: that even when a woman’s character is found to be doubtful she is not punished; only the man is punished.
Since from the very beginning allegations were being raised against the Hudood Ordinance that innocent women were being punished because of it, an American Scholar Charles Kennedy became interested and visited Pakistan in order to conduct a survey of the cases. He analysed all of the data related to the Hudood Ordinance cases and presented the results in the form of a report which has since been published. The results are consistent with the facts mentioned above. He writes in his report:
Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)….the women is exonerated of any wrongdoing due to reasonable doubt rule.
[Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74]
This is what an unbiased non-Muslim scholar who has no sympathies towards the Hudood Ordinance observed with regard to such women who had actually consented to committing Zina, but then due to pressure from their families, tried to declare it as rape. They were not asked to produce four witnesses, but to furnish circumstantial evidence. On being unable to furnish the circumstantial evidence which would verify their claim of having been raped, only the male parties were punished, whilst the female parties went unpunished- as no transgression could be proven on their part. Hence there is no such clause in the Hudood Ordinance that if a woman fails to produce four witnesses to support her claim of having been raped, she is to be punished in place of offender.
It is however possible that during investigations conducted by the police, and before the matter could be brought to the court, some rape-victims were indeed wrongly and without any justification arrested as committers of Zina bir-Radha. This does not, however, stem from a flaw in the Hudood Ordinance. Unfortunately, the police in our country are quite prone to commit such acts of injustice while enforcing the law. This does not necessitate that the law itself be changed. In our country, keeping heroin is a crime. And it happens quite often that the police themselves hide heroin with innocent citizens only to blackmail them afterwards. Should we then—in order to resolve this problem—abolish the law which states that keeping heroin is a crime?
Through its decisions, the Federal Shar’iah Court had several times put an end to maltreatment which rape victims were forced to suffer at the hands of the police. However, if one was to assume that this risk of abuse had not yet been fully eliminated, then one could draft a law stating that no woman claiming to have been raped could be arrested under any article of the Hudood Ordinance, until the court had delivered its final judgment. Even then, one could make further laws prescribing punishment for one who wrongly arrests a rape-victim. But under no circumstances is it permissible to abolish the punishment which the Holy Shari’ah has laid down for Zina bil Jabr (rape).
Hence,
The way in which the bill under discussion abolishes the punishment for rape as prescribed by the Holy Shari’ah is in utter contradiction with the Holy Qur’an and the Sunnah, and is in no way related to the alleged maltreatment of women.