The laws of hudood
By S. A. Khokhar
Currently there is a controversy going on in the electronic media in Pakistan over Hudood Ordinance, which forced me to throw some light on this topic. No doubt, Islam is a universal religion, which is not restricted to any particular era, nation or group, but is applicable throughout the world, to all nations, groups and eras. Therefore, to enact modern law and try for an Ijtihad is not at all allowed.
Here, it is mentioned that in Islam the punishment for zina as laid down in Surah Al-Noor is one hundred lashes. This punishment is for unmarried persons. The punishment for married persons is stoning to death. This was not only ordained and explained by the Holy Prophet (Sall Allaho alaihe wasallam) but practised by him also. There are a number of Ahadith in the most renowned and reputable book of Bokhari in which it has been mentioned clearly that the Holy Prophet (Sall Allaho alaihe wasallam) awarded punishments practically for cases of stoning to death. All Muslims believe that every act and saying of the Holy Prophet (Sall Allaho alaihe wasallam) was with the guidance and approval of the Almighty Allah and we have to obey it without any hesitation or reservation.
There is sufficient evidence to believe that all the four Khulafa-i-Rashideen (Radhi Allaho anhum) agreed that rajm is the punishment for zina for married persons, and they awarded that punishment without any compunction. No Muslim ever objected to that punishment, although many Sahabah, who were well versed in the Holy Qur’aan and teachings of the Holy Prophet, were still alive. Imam Abu Hanifa, Imam Malik, Imam Shafe’i and Imam Jafar hold the same opinion. All the learned compilers of authentic and undisputed Ahadith confirmed that rajm was ordained and practised by the Holy Prophet (Sall Allaho alaihe wasallam) for married persons and one hundred lashes were practised for the unmarried ones.
The contention that this punishment was only awarded to those who accepted their guilt and asked for atonement is the sublime essence of Islamic justice. The Holy Prophet (Sall Allaho alaihe wasallam) and the Khulafa-i-Rashideen (Radhi Allaho anhum) were the most reluctant to award this punishment unless proved beyond a shadow of doubt, which was only possible when the person voluntarily admitted and asked for atonement. The conditions for the charge sheet and qualifications of the witnesses are so stringent that it is next to impossible to convict anyone. Four eyewitnesses who are practising Muslims, bearing good reputation, who have never testified falsely and have no enmity with the accused, have to prove that they have seen the act of intercourse occurring in a manner similar to thread passing through the hole of a needle.
If the charge is proved to be false or frivolous, the accuser risks to be flogged himself and his testimony never to be trusted again. If the accused is insane or intoxicated, he gets the benefit of doubt. With so many things going in favour of the accused and the onus of proof being on the accuser, a good lawyer with thorough knowledge of Islam and Islamic jurisprudence need not fear Hudood Ordinance.
In this context, a few verses of Surah Al-Noor are crystal clear, which throw light how to handle rape cases of married persons in case four eyewitnesses are not available:
And for those who launch a charge against their spouses, and have (in support) no evidence but their own-their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth. And the fifth (oath) should be that they solemnly invoke the curse of Allah on themselves if they tell a lie.
But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie. And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself (if her accuser) is telling the truth. (Al-Noor 24:6-9)
It has also been stated in the Holy Qur’aan:
“So take what the Messenger assigns to you, and deny yourselves that, which he withholds from you, and fear Allah, for Allah is strict in punishment.” (Al-Hashr, 59:07)
The above verse of the Holy Qur’aan clearly stipulates that the Muslims are bound to follow in letter and spirit every act and saying of our Holy Prophet (Sall Allaho alaihe wasallam). To try for an Ijtihad and to discuss in the Parliament such matters is out of question and is not permitted at all. In other words, we can say that this will be an attempt of amending the Islamic laws, which is not allowed by anybody in the world except Allah. To act on the contrary and to call for repeal of Hudood Ordinance is just like inviting Allah’s punishment.
The fact is that it is our milieu, which is at fault where women are treated as possessions/commodities. Violence/heinous crimes against women occur through the length and breadth of the country, but they are commoner in rural and far-flung areas. Although in urban areas where the literacy rate is higher, men have discarded anti-women tribal and feudal customs and traditions to a great extent, still the reports of abuse of women appear in the press frequently. It is women living in the rural areas, however, who have been subjected to the worst kind of violent repression.
In our society, there are many forms of violence against women: they are beaten up; burnt alive; raped, and killed. The most gruesome aspect of the problem is that women are often killed in the name of honour. In the rural areas women are not given their proper status and rights, which have been accorded to them by Islam. Women cannot even marry by their own free will. This poor state of affairs affects the moral fabric of society very badly. The number of cases of physical and sexual abuse of women reported across the country during 2003 was around 6,000, while 979 of them were rape cases, in 1,261 cases women were killed in Karo-kari and women were subjected to harassment at work in 1,500 cases.
This is also a fact that the correct proportion of such crimes cannot be ascertained as many cases go unreported and only a few victims manage to reach the electronic media and the press. Even if a case is registered, criminals go scot-free as the law-enforcement agencies deal quite leniently with them. They are very powerful but are the most corrupt. They are least bothered if somebody gets raped or murdered. All that matters is how they can make money out of it. Do they not believe in the life after death or the fact that they will be held answerable for all deeds?
It is also pertinent to mention here that the Gender Development Index ranks Pakistan 120 of 144 countries, behind many Muslim states – Indonesia, Malaysia, Jordan, Turkey and Egypt. Socio-Economic and political indicators give an idea that women in Pakistan are being discriminated against men. Besides, they also face traditional values, social customs and cultural taboos that keep them away from meaningful economic activity. They are, thus, placed at a disadvantageous position and much behind men in education, health and other opportunities in various walks of life. Feudal values may be their worst enemy as rural women in particular are exposed to honour killing and Karo-kari. Although much has been done for women’s emancipation, still more is needed to ensure them a status, which has so far been denied to them.
Moreover, the literacy rate of women in the country is so pathetically low and seems destined to remain so, or to even decrease, unless our gurus in charge of education prove their worth and get going to raise the literacy rate of both women and men or stand aside and let others, who are competent and qualified, take over. The well being of the women of this nation are as vital and necessary as any other issue. Article 25 of the Constitution, which deals with our fundamental rights, is clear on the point that nothing shall prevent the State from making any special provision for the protection of women.
In such situation absolute importance has to be placed on the basic and important right – women’s right to education which can enable them to understand how and why their fundamental and legal rights apply and how to go about ensuring that they gain and keep these rights. Educated women can transform a society and a country in so many different and advantageous ways.
In this context it is also imperative that the class-system education in the country should be addressed on war footings, otherwise the future of education in Pakistan will be doomed and good governance can only come with education and knowledge. All our efforts and resources should be concentrated on education of the highest quality and on achieving 100 per cent literacy within the shortest possible time. More spending on education would mean that our majority would become literate and can prove to be helpful in making progress technically and scientifically and can put our country on the right track of development.
In the end those who consider that Hudood Ordinance is the most brutal of the lot and the most discriminatory due to the fact that it is practised only against the women, in order to remove their criticism, it is imperative that the guilty must be arrested within 24 hours. Firm and decisive action is needed both against men and women. An excellent beginning would be for the government to announce that the TPOs will be held responsible in case arrest and prosecution are not made within a predetermined period. In the event of failure to meet the deadline, those concerned should at least be transferred forthwith, or preferably suspended. There should be a public announcement every month listing the heinous crimes committed and the remedial action, if any, taken.
In order to achieve salvation in the life to come, we should try to mould our character and conduct according to the preaching and practice of our Prophet (Sall Allaho alaihe wasallam). He showed by personal example that Islam was a natural, perfect and practical religion, providing guidance for all problems, individually and collectively.
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Source: The News
Date:6/18/2004
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