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2. No Difference between Zina and Zina bil Jabr

Another misconception being spread on a wide scale is that Hudood Ordinance makes no difference between zina and zina bil Jabr. A person who never saw the Ordinance may believe in such a connotation, but, anyone who has the slightest of knowledge of the Ordinance knows that it has drawn a big line of distinction between the two crimes.

The allegation that the hudood ordinance does not differentiate between zina and zina-bil-jabr is prima de faciá incorrect, as there are two separate sections (i.e. section 4 and 6), which clearly define the two crimes separately. There are different punishments for the two crimes and thus the Ordinance has placed them in separate categories. The text of sections 4 to 8 is given below for reference:-

4. Zina

A man and a woman are said to commit ‘zina’ if they willfully have sexual intercourse without being validly married to each other.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina.

 

5. Zina liable to hadd

(1) Zina is zina liable to hadd if:-

            (a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or

            (b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.

(2) Whoever is guilty of Zina liable to hadd shall, subject to the provisions of this Ordinance:-

            (a) if he or she is a muhsan, be stoned to death at a public place; or

            (b) if he or she is not muhsan, be punished, at a public place; with whipping numbering one hundred stripes.

(3) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping; until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

 

6. Zina-bil-jabr

(1) A person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:-

            (a) against the will of the victim;

            (b) without the consent of the victim;

            (c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt; or

            (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to who the victim is or believes herself or himself to be validly married.

Explanation: Penetration is sufficient to constitute the sexual inter-course necessary to the offence of zina-bil-jabr.

(2) Zina-bil-jabr is zina-bil-jabr liable to hadd if it is committed in the committed in the circumstances specified in sub-section (1) of section 5.

(3) Whoever is guilty of zina-bil-jabr liable to hadd shall subject to the provisions of this Ordinance:-

            (a) if he or she is a muhsan, be stoned to death at a public place; or

            (b) if he or she is not muhsan, be punished with whipping numbering one hundred stripes, at a public place, and with such other punishment, including the sentence of death, as the Court may deem fit having regard to the circumstances of the case.

(4) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping; until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

 

7. Punishment for zina or zina-bil-jabr where convict is not an adult

A person guilty of zina or zina-bil-jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes:

            Provided that, in the case of zina-bil-jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.

 

8. Proof of zina or zina-bil-jabr liable to hadd

Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms, namely:-

            (a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

            (b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence:

            Provided that if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.

Explanation: In this section, “tazkiyah ul-shuhood” means the mode of inquiry adopted by a court as to satisfy itself to the credibility of a witness.

Only an objective analysis of the above sections is sufficient for any unbiased person deduce that the ordinance has clearly distinguished between zina and zina-bil-jabr. If the evidence required for proving the two crimes is similar, this does not mean that the ordinance has equalized the two crimes and dissolved all differences. For most (not all) crimes punishable by way of hadd, at least two Shar’ai witnesses are necessary. Can anyone reasonably argue that God has dissolved the differences between all these crimes?!

These guys and some other fellows spread this misconception on the basis that the evidence is same for both crimes. But, these people themselves tell others that the Ordinance has differentiated between Muhsan and non-Muhsan criminals. It is indeed amazing that when the definitions, evidence, etc. is the same, yet they agree that there is a difference, but, when it comes to zina and zina-bil-jabr, all differences are dissolved!

The differences that the Ordinance has made between the two crimes are listed in the following table:-

 

 

The only thing common between the two is the punishment of Rajm for Muhsan criminals and the proof required for proving the crime, and these things are common between the two, only because God himself has decided so. (Not the ordinance!)

Note: The strict evidence of four male Muslim truthful witnesses is required only for the punishment of Hadd. If the court is convinced that the crime stands proved on other forms of evidence like DNA test, etc. then tazir can be awarded as stated in Section 10 of the concerned Ordinance.

The above extract has provided enough material to refute the flawful assumption that the “Hudood Ordinance places zina and zina-bil-jabr in the same category.”

Now, we must also see whether zina and zina-bil-jabr are two forms of the same crime or two different crimes. For this purpose, we will take help from some other writings:-

“The Special Committee of the National Commission on the Status of Women (NCSW), to review the hudood laws, observes in its draft report:-

While the majority of the Committee members agreed with the arguments of Syed Afzal Haider, Dr. Fareeda Ahmad and Mr. Shahtaj disagreed and were of the view that Surah Noor, verse 2 covers both offences of Zina and Zina-bil-Jabr along with the pre-requisite criterion of four witnesses to prove these offences … Dr. Fareeda Ahmad, Mr. Noor Muhammad Shahtaj and Dr. S.M. Zaman held that the provisions of the Ordinance on the offence of Zina-bil-Jabr, as reflected in Section 8, were in accordance with the Shariah. [NCSW Report, p.9]

I appreciate these members on this issue and they were undoubtedly right in pointing out that four witnesses are required for proving rape liable to hadd; but, their argument seems to have been disfigured by the one who prepared these conclusions. Their actual argument was:-

However, FA (Dr. Farida Ahmed) and NMS (Noor Muhammad Shahtaj) disagreed with that and were of the opinion that it does fall under Hadd and FA relied on a Hadith of Tirmidhi Sharif, according to which bil Jabr if the offence of Zina is proved as per rules of evidence laid down for Zina then the punishment should be Hadd. If not then the punishment could be as per Tazir. [NCSW Report, p.57] (Highlighted text has been distorted by the one who prepared the report.)

It seems most likely that the one who prepared this report was biased, because, he completely distorted the sentence to give a strange picture of the hadith.

The actual sentence if corrected is:

FA relied on a Hadith of Tirmidhi Sharif[4], according to which if the offence of Zina bil Jabr is proved as per rules of evidence laid down for Zina then the punishment should be Hadd. If not then the punishment could be as per Tazir.

Did you see what the actual sentence is?!

It is quite clear from numerous ahadith[5], including the one that has been quoted above that if Zina bil Jabr is proved according to requirements of Hadd-e-Zina, the punishment of Hadd will be awarded to the rapist only, not to the woman.[6]

It is reported in many ahadith that Muhsan persons, who committed zina-bil-jabr, were stoned to death. The point to be noted here is that Rajm is a hadd and moreover, it is NOT mentioned in verse 33 of Surah al-Maida (5).

It is pertinent to note down a few things regarding Zina-bil-Jabr in the Ordinance; in Section 6, sub-section (1), it is written:

A person IS said to commit zina-bil-jabr… (Emphasis ours)

Contrast the above with Section 4:

A man and a woman ARE said to commit zina… (Emphasis ours)

 

So, according to the Ordinance, the woman is not a criminal & is innocent if she has been raped. The differences between the two crimes, as implemented in the Ordinance, have already been discussed before.

There is an issue which is usually discussed & debated viz. whether Zina and Zina-bil-Jabr are two forms of the same crime or not. Actually, this debate is usually heated to exclude or include rape within the ambit of verse 2 of Surah Noor. But, the proof from Sunnah & Ijma is too clear and sticking with this ambiguous discussion is like running in a never-ending circuit.

Similarly, it must also be noted that in Surah Noor, the term ‘zina’ is used. In fiqh and Arabic lexicons, it is taken to mean illicit intercourse. There is no reference to consent or will and thus it is a general term. With this definition in mind, zina may be consensual i.e. zina-bil-raza or forced i.e. zina-bil-jabr. But, both these terms will be covered by the general term ‘zina’.

However, in the ordinance, the word ‘zina’ is defined in the meaning of ‘zina-bil-raza.’ So, the term zina, in the ordinance, excludes zina-bil-jabr. Thus what the ordinance designates as zina is known in the fiqh as zina-bil-raza. This thin difference must be kept in mind, otherwise, confusions & ambiguity may arise.

Coming back to the original issue; to settle this issue we shall consult a dictionary & find the meaning of crime. Merriam-Webster Dictionary, provided with Britannica Encyclopedia 2002 Deluxe Edition, describes the word ‘crime’ as:

An act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law.

In the light of the above definition, if we view zina-bil-raza and zina-bil-jabr, it is quite clear that the two acts are completely different crimes, just like they are dealt in by the Hudood Ordinance. They can never, on earth, be considered to be the same crimes! This is because of the fact that in zina-bil-raza, both the man and woman are not only punished, but, are also involved in the commission of the crime. Whereas, in zina-bil-jabr, only one person is involved in the offence and the woman is not only innocent, but, is also not punished.

Some people forward the argument that just like theft is theft, whether it is with force or not, same is the case here. But, this argument is fallacious on the face of it, because, in theft, the thief is the criminal in both the cases and the one whose money has been stolen is the victim. Whereas, in zina-bil-raza, both are criminals and involved in the offence, but, in zina-bil-jabr, only one is involved in the offence and is liable to punishment.

Furthermore, this issue can be approached in one more way: in zina, both men and women consensually commit an illegal act, whereas, in zina-bil-jabr, only the man commits an illegal act, whose victim is the woman. Therefore, in zina, neither the man nor the woman is a victim—rather both are the offenders. Whereas, in zina-bil-jabr, only the woman is a victim of an illegal act and the man is the offender.

Here, I must remind again that we need to keep the definition of ‘zina’ in mind. If we take ‘zina’ to mean fornication or adultery, then ‘zina-bil-jabr’ is a very different thing. But, if we take ‘zina’ to simply mean illicit intercourse, then fornication/adultery come under the flag of zina-bil-raza, whereas, rape comes under zina-bil-jabr. According to the latter definition of ‘zina’, both zina-bil-raza and zina-bil-jabr are covered by the term zina.

To sum up then, in view of the above arguments, we fully adhere to the view that the proof required for zina or zina-bil-jabr liable to hadd is the same, because, it is a requirement of Shari’ah, proved from Sunnah and Ijma. But, from the point of view of general understanding, zina and zina-bil-jabr are two different crimes, as provided in the Hudood Ordinance.

It is noteworthy here that one of the experts has indeed pointed out this mistake made by the Zara Sochieye team:[7]

Hafiz Yousuf Salahuddin

Advisor Federal Shariat Court

As far as my limited knowledge is concerned, there is no such thing in the Hudood Ordinance that it does not differentiate between zina and zina bil jabr. These are undoubtedly two different things. So, first of all, the Ordinance does not treat them in a similar way.

Geo TV never pointed out that in the Hudood Ordinance, there are separate sections for zina and zina-bil-jabr; separate definitions, punishments, etc. If the evidence for hadd punishment is same, this does not mean that there is no difference between the two. Furthermore, Hafiz Salahuddin’s statement was not shown completely; rather, only a small part was shown. Relying on the false information provided by Zara Sochieye, many scholars gave their statements against the ordinance—never knowing what the actual ordinance was!