Haqeeqat.Org

previous article     |     topic index     |     next article

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.”

 

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-bil-jabr 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.

The following cases[3] further prove that the notion of ‘crime never proved’ is a fallacy:-

 

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

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.

[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-shuhood as follows:-

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.