Hudood law against basic rule of jurisprudence: report
PESHAWAR, July 31 2006: The Zina Ordinance has placed the offences of rape and adultery in one category and similar evidences are required for proving both the offences, says a report prepared by former chief justice of the Lahore High Court Dr Javaid Iqbal. He says that the main flaw in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is that it was never presented in the National Assembly or Senate as a legislative bill and it was ratified without any debate by parliament.
“Military dictator Gen Ziaul Haq set the condition that the constitution and democracy would be restored only if the laws promulgated by him were provided legal cover. In other words, these laws were not passed through proper constitutional procedure; rather these were retained as a ‘trade-off’ or ‘give and take’ at the expense of the restoration of the constitution by the then political government,” states Dr Iqbal. The report, ‘A critique of the Zina OrdinanceÂ’, has been written by the author for the Aurat Foundation.
He says there is no record from which it can be determined as to which individuals were consulted while making the law. “It is evident from the nature of this law that the views of Shah Waliullah, Maulana Shibli and Allama Iqbal were not considered while framing it,” he says. He says that the aspect of the ordinance by which women are mostly victimised is the enforcement of the provisions regarding rape. He states that under the Pakistan Penal Code and the Evidence Act, if a woman’s statement is corroborated by medical evidence and chemical report, it is considered sufficient to convict the accused. But under the ordinance and the Qanoon-i-Shahadat, the legal protection that a woman enjoyed as a complainant is no more available.
“The ordinance has ended the basic rule of criminal jurisprudence that the accused shall be considered innocent unless the prosecution has proved without any shadow of doubt that the accused is guilty. The Zina Ordinance has been enforced on the presumption that the court shall deem the plaintiff woman as accused unless she proves herself innocent,” the critique states.
Dr Iqbal says that if a woman complains that a man has committed rape with her, she herself will be deemed to be involved in the offence to the extent that she has admitted the commission of zina. She will be presumed guilty unless she can prove to the satisfaction of the court that she was raped, he report says. It says that an overview of decided cases on the subject reveals that it is almost impossible for a woman to prove a case of rape, since the evidence required for hadd punishment is the eye-witness account of four adult, male, upright Muslims.
The paper states that according to the Zina Ordinance it is no longer a crime to have intercourse with a child wife. It says that in cases where had may be imposed for zina and rape, there is distinction between the evidence of male Muslim and male non-Muslim witnesses and the evidence of women is unacceptable. “A male Muslim accused cannot be convicted and sentenced for hadd punishment on the evidence on non-Muslim or women witnesses,” Dr Iqbal states. He has also discussed the incompatibility of the ordinance with the provisions of the Muslim Family Laws Ordinance, 1962.