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11. Availability of Four Witnesses is Impossible

Another lie being spread by Geo TV on a wide scale is that the condition of four witnesses is impossible and will never be fulfilled. The basic argument is similar to the statement of Syed Razi Jaffer Naqvi, as found in the Experts Commentary section:[37]

The truth is that if we think at length about zina bil jabr then it seems impossible that someone can commit this crime in front of four pious and trustworthy people. If a person will want to use force against a woman, then these four people would use their strength to stop such a thing from happening. The perpetrator would not dare to do something like this, and if he is that daring then because these witnesses are expected to be pious, they would use their strength and stop the crime.

First of all, the fore-most thing to be kept in mind is that tazir can always be awarded, so neither the criminals will get a free hand, nor will injustice be caused to women by the condition of four witnesses. Thus the hadd for zina or zina-bil-jabr is there as a rare & hard punishment and consequently, removing it will not have any effect on the status of women whatsoever.

Furthermore, if the above argument is accepted, then it applies equally well for zina, too; since, the four pious persons will not stand to get entertained by a Hollywood movie! Moving further, in case of rape, the woman will shout and some people may gather. The rapist may also have a weapon to keep witnesses away. But, how on earth will four witnesses be available in case of zina, if the above argumentation is acceptable?

On the above issue, there is a golden and well-settled principle of Fiqh: the application of a law depends on the Illat and not on the Hikmat. I quote here an extract from paragraphs 119-121 of Mufti Taqi Usmani’s 1999 judgment on Riba, in the Supreme Court of Pakistan:-

It is a well settled principle of Islamic jurisprudence that there is a big difference between the Illat and the Hikmat of a particular law. The Illat is the basic feature of a transaction without which the relevant law cannot be applied to it, whereas the Hikmat is the wisdom and the philosophy taken into account by the legislator while framing the law or the benefit intended to be drawn by its enforcement. The principle is that the application of a law depends on the Illat and not the Hikmat. In other words, if the Illat (the basic feature of a transaction) is available in a particular situation while the Hikmat (the wisdom) behind is not visualized, the law will still be applicable. This principle is recognized in the secular laws also. Let us take a simple example: The law has made it compulsory for the vehicles running on the roads to stop when the red street light is on. The Illat of this law is the red light, while the Hikmat is to avoid the chances of accident. Now, the law will be applicable whenever the red light is on; its application will not depend on whether or not there is an apprehension of an accident. Therefore, if the red light is on, every vehicle is bound to stop, even though the roads of both sides have no other traffic at all. In this particular case, the basic wisdom (Hikmat) of the law is not discernable, because there is no apprehension of any accident in any way. Still the law will be applicable in its full force, because the red light which was the real Illat of the law is present. To cite another example, the Holy Quran has prohibited liquor. The Illat of the prohibition is intoxication but the Hikmat of this prohibition has been mentioned by the Holy Quran in the following words:

“The Satan definitely intends to inculcate enmity and hatred between you by means of liquor and gambling, and wants to prevent you from remembering Allah. So would you not desist?” (5:91)

The philosophy of the prohibition of Liquor and gambling given by the Holy Quran in this verse is that liquor inculcates enmity and hatred between people and it prevents them from remembering Allah. Can one say that he has been using liquor for a long time but it never resulted in having enmity with any one, and therefore, the basic Illat of prohibition being not present, he should be allowed to use liquor? Or can one reasonably argue that drinking wine has never prevented him from offering prayers at their due times, and therefore, the basic cause of prohibition mentioned by the Holy Quran being absent, the drinking should be held as permissible. Obviously, one can not accept these arguments because the enmity and hatred referred to by the Holy Quran in the above verse is not intended to be the Illat of prohibition. It simply spells out some bad results which the liquor and gambling often produce. They have been mentioned as a Hikmat and the philosophy of the prohibition, but the prohibition itself does not depend on these results.

Thus the wanting of Hikmat behind a commandment of the Shari’ah, in a particular scenario, is no base for dissolving that commandment.

We know, by this time that removing hadd and the condition of four witnesses, will not have any effect on the status of women. It will only add one more to our account of sins that we removed a Quranic law from the statuary books!

Still, some may say that the implementation of hadd on any criminal is ‘impossible,’ because of the strict evidence requirements. They may argue that having a law which would ‘never’ be enforced is stupidity. Let’s discuss this issue of availability of witnesses for zina and zina-bil-jabr.

First of all, we should note that punishments are of four types:-

            (i) Deterrent

            (ii) Retributive

            (iii) Preventive

            (iv) Reformative

Hudood for zina and zina-bil-jabr are deterrent punishments for hardened criminals, which will rarely be awarded. In one of the ahadith, the Prophet () is reported to have said: “Enforcement of a single hadd in the land of Allah is better than rainfall for 40 days (in it).”

Furthermore, hadd is not awarded everyday. During the era of the Prophet () and the four pious caliphs, the hands of only five thieves were amputated. In the same way, four witnesses will not be available everyday, but, it is also wrong to say that they would ‘never’ be available. Such a thing is but conjecture!

In case of zina-bil-jabr, there have been many cases in Pakistan where feudalists and Vaderas would rape girls openly in streets! Here, many times, MORE THAN FOUR witnesses are available. I still remember a case of Multan, which was reported by Geo TV, in which a woman was stripped of her clothes right in the street; the shyless criminal went on further to do the unethical act in public! He even dragged the woman’s naked body through the streets of the village! Similarly, there have been cases where, when a rapist is raping a girl, she starts screaming and four or more persons gather in the place (usually neighbors.) There have been many such incidents in various cities of Pakistan—including Karachi.

In case of zina, the strict punishment is not for people doing such actions in public, since, no one would ever do such a thing. Even if they tried to do that, most likely they would be stopped by people. A few may say that four persons would thus have seen them doing such a thing, but, it’s still too illogical to believe in such a thing.

Hadd in case of zina acts as a deterrent for perverted people, who frequently visit ‘free-sex places’ such as brothels, etc. Many a times, it happens that the police, who may be sometimes accompanied by journalists, visit the place by surprise. Many people are thus caught red-handed doing shameless acts and four or even more people are available as witnesses. [Recall that the FSC ruled in Muhammad Abid vs. The State (PLD 1988 FSC 111) that police officials can be witnesses in cases of zina & zina-bil-jabr.]

I still remember a case of such nature myself; it was reported by GEO's program FIR (First Information Report). The case was not only reported, but, various clips from the brothel were also included. The brothel was camouflaged under the label of Bisma Beauty Parlour. When the police and the Geo FIR team broke in, they caught several people red-handed, in actions! EVEN A TV MODEL NAMED NEHA WAS ARRESTED FROM THE BROTHEL, WHO CAME THERE AS A PROSTITUTE.

Probably, it was due to the above reasons that the Parliamentary Select Committee, consisting of Sher Afgan Khan Nyazee and others, which was reviewing the Protection of Women (C.L.A.) Bill, 2006, restored the enforcement of hadd upon testimony of four witnesses in case of rape.