hadud cases

Zina

Officially known as "The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)" refers to fornication, adultery and zina bil jabbar (rape). The most controversial of the four ordinances, it has several distinct categories of sexual offences and assigned punishments for each:

·         zina liable to hadd; punishable by

·         stoning to death for the adulterer

·         public whipping of 100 lashes for a fornicator

·         zina liable to tazir; punishable by

·         imprisonment for up to ten years 

·         zina-bil-jabr liable to hadd;

·         zina-bil-jabr liable to tazir;

Further Zina offenses are (or as of 1991 were)

·         kidnapping

·         sodomy

·         enticement

·         attempted rape

·         abetment of zina crime

·         deceitful marriage

·         conspiracy to engage in prostitution

Under hadd, eyewitnesses evidence of the act of penetration by "at least four Muslim adult male witnesses", about whom "the court is satisfied", that "they are truthful persons and abstain from major sins (kabair)" (tazkiyah al-shuhood). Because of this stringent standard, no accused has ever been found guilty and stoned to death in Pakistan, and punishments have been awarded only under the Tazir provision of the Hudood Ordinance.

The ordinance also abolished Pakistan's statutory rape law.

The 2006 Act has now deleted zina bil jabbar from the Zina Hudood Ordinance and inserted sections 375 and 376 for Rape and Punishment respectively in the Pakistan Penal Code to replace it.

In the two and a half decades the law was unchanged, several Pakistani government appointed commissions recommended the Zina Ordinance's repeal (such as the National Commission for the Status of Women in 2003, the Special Committee to Review the Hudood Ordinances, 1979, Commission of Inquiry for Women). Critics of the law alleged that while no one had actually been executed by stoning or had their hand or foot amputated in punishment as a result of the law, the ordinance made it exceptionally difficult and dangerous to prove an allegation of rape. In 1979, before the ordinances went into effect there were 70 women held in Pakistani prisons. By 1988, there were 6000. A 2003 report by the National Commission on Status of Women (NCSW) estimated "80% of women" were incarcerated because "they had failed to prove rape charges and were consequently convicted of adultery. According to legal scholar Martin Lau

While it was easy to file a case against a woman accusing her of adultery, the Zina Ordinance made it very difficult for a woman to obtain bail pending trial. Worse, in actual practice, the vast majority of accused women were found guilty by the trial court only to be acquitted on appeal to the Federal Shariat Court. By then they had spent many years in jail, were ostracized by their families, and had become social outcasts.

A woman alleging rape was required to provide four adult male eyewitnesses of good standing (tazkiyah-al-shuhood) to "the act of penetration". Failure to find such proof of the rape may place her at risk of prosecution for another hudood ordinance, qazf for accusing an innocent man of adultery. Qazf does not require such strong evidence.^[33] In principal, the failure to find such proof of the rape does not place the woman herself at risk of prosecution. According to Mufti Taqi Usmani, who was instrumental in the creation of the ordinances:

If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present four witnesses. No court of law can be in its right mind to award such a punishment.

However, in practice, these safeguards have not always worked. In addition, because the ordinance abolished Pakistan's statutory rape law, girls as young as twelve were prosecuted for having extra-marital intercourse "under circumstances that would previously have mandated statutory rape charges against their assailant," according to Human Rights Watch.

Stories of suffering by women who claimed to have been raped appeared in the press in the years following the passing of the Hudood Ordinance stirring protests by Pakistani activists and lawyers and international human rights organizations. One case was that of Safia Bibi, an unmarried blind woman from the northwest frontier who was prosecuted for zina because of her illegitimate pregnancy. Her rapist was acquitted.

The evidence of guilt was there for all to see: a newborn baby in the arms of its mother, a village woman named Zafran Bibi. Her crime: she had been raped. Her sentence: death by stoning. Now Ms. Zafran Bibi, who is about 26, is in solitary confinement in a death-row cell.

Thumping a fat red statute book, the white-bearded judge who convicted her, Anwar Ali Khan, said he had simply followed the letter of the Qoran-based law, known as hudood, that mandates punishments.

"The illegitimate child is not disowned by her and therefore is proof of zina," he said, referring to laws that forbid any sexual contact outside marriage. Furthermore, he said, in accusing her brother-in-law of raping her, Ms. Zafran had confessed to her crime.

The appeal judgment of the Federal Shariah Court cleared the girl of the accusation of zina.

 Another scenario for some of the accusations of adultery leading to imprisonment was following divorce by the husband and remarriage by the ex-wife.

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 [of a valid marriage] to shut this door.

A number of international and Pakistani human rights organizations argue that Hudood Ordinance goes beyond what is required by sharia. They are opposed by conservative religious parties (Muttahida Majlis-e-Amal (MMA)), who accuse them of departing from Islamic values.

Qazf

Officially known as: "The Offence of Qazf (Enforcement of Hudood) Ordinance of 1979". It described the offence of false accusation of Zina (fornication and adultery) either written, verbal or "by visible representations", with intent to cause harm, and without producing four witnesses in support of the accusation before the Court, or who "according to the finding of the Court", a witness has given false evidence of the commission of zina or rape, or when a complainant has made a false accusation of rape;

·         Proof of "qazf liable to hadd" includes the accused confesses to it in court, the accused committing qazf in court, or if two Muslim adult male witnesses, (other than the victim of the qazf) testify that the defendant committed qazf. (If the accused is a non-Muslim, the witnesses may be non-Muslims.)

·         Punishment of "qazf liable to hadd" will be a whipping numbering 80 stripes.

·         "Qazf liable to Tazir" applies whenever

·         proof in any of the forms mentioned above is not available,

·         or when the perp has committed 'qazf' against any of his descendants,

·         or when the victim of qazf has died during the "pendency of the proceedings";

·         punishment of "qazf liable to tazir" shall be imprisonment for up to two years, a whipping of up to 40 stripes, and may also include a fine.

Prohibition (alcohol)

Officially known as: "The Prohibition (Enforcement of Hadd) Order of 1979", described the offence of producing, importing, selling, owning, possessing or consuming alcohol.

·         Producing, bottling, selling alcohol is punishable by imprisonment of up to five years, or flogging of up to 30 stripes, and may also be fined.

·         Owning or possessing is punishable by imprisonment of up to two years, or flogging of up to 30 stripes, and may also be fined.

·         drinkers liable to hadd are adult Muslims who "takes intoxicating liquor by mouth" if they confess to drinking or evidence is given by "two Muslim adult male witness" of good character.

·         They "shall be punished" with flogging of "eighty stripes".

·         drinkers liable to tazir include

·         non-Muslim citizens of Pakistan who have been drinking (unless it is "part of a ceremony prescribed by his religion"):

·         non-Muslim, non-citizens of Pakistan, who have been drinking in a public place;

·         Muslims for whom "the offence stands proved by the evidence on the record" but not by hadd evidence of two Muslim witnesses, etc.

·         these drinkers shall be punished by imprisonment of up to three years, flogging of up to 30 stripes, or both.

·         owning or possessing heroin, cocaine, opium or coca leaf is also punishable with imprisonment, flogging and fines.

Whipping Ordinance

"The Execution of the Punishment of Whipping Ordinance of 1979" was developed to regulate the punishment of whipping/flogging.

It specifies that whips shall be made of leather, or a cane or a branch of a tree, be no longer than 1.22 meters and no thicker than 1.25 cm. Convict shall be medically examined before flogging to determine if the flogging should be "applied in such manner and with such intervals" that it does not kill the offender being flogged. Flogging may be postponed if the offender is ill, pregnant, or if the weather is too cold, etc. Stripes shall not be applied to "the head, face, stomach or chest or the delicate parts of the body of the convict," and should not lacerate the skin of the convict.