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Scholars challenges women’s bill

KARACHI: The Women’s Protection Bill is neither Islamic nor will it provide any protection to women, said renowned Islamic scholar Justice (retd) Muhammad Taqi Usmani, an author of more than 40 books, in his recent paper.In his recent paper titled “The reality of Women’s Protection Bill-2006”, he said the legal implications of the ‘Protection of Women’s Rights Bill’, can only be known to the people who are well acquainted with intricacies of the legal system. He challenged the claims that the bill does not violate the injunctions of Qur’aan and Sunnah, or that it was going to provide a great relief to countless women. He said that if we study the bill we would arrive at the conclusion that the bill contains only two substantive points: Firstly, the punishment for rape as ordained by Holy Qur’aan and Sunnah which is called ‘Hadd’ has been completely abolished in this bill.

As such a person who has committed rape cannot be given the legal (Sharai) punishment and instead he will receive a Ta’azeeri punishment (anything below ‘Hadd’).Secondly, he said, the crime, which was declared a Ta’azeeri punishment in the Hudood Ordinance, has been downgraded and declared ‘lewdness’, thereby reducing the severity of its punishment. Moreover, proving it has been made all the more difficult. Justice Usmani said it is being said that the punishment ordained by the Holy Qur’aan and Sunnah is only applicable when both man and woman commit adultery with free will, and that in the case of rape Qur’aan and Sunnah have not prescribed any punishment. He pointed out the Holy Qur’aan prescribes the punishment of adultery in Surah Noor said that adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes.

He said in this injunction the word Zina is absolute and includes Zina bir-Raza (adultery) as well as Zina-bil-Jabr (rape). He said although in this injunction there is also mention of the woman, who commits adultery, but in the same Surah (Noor) those woman, who were raped have been exempted from any punishment. Therefore, the Holy Qur’aan in Surah Nur says and if one forces them (ie those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful. Justice Usmani said from this becomes clear that if any woman is forced to commit Zina, then she cannot be punished for this, rather the one who transgressed will have to suffer the prescribed punishment (Hadd) which has been mentioned in Surah Nur, Ayat 2.

He said that the stated Hadd of 100 stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar is further proven that a married person is to suffer Rajm ie lapidating in case he commits Zina. He said the Messenger of Allah (Peace Be Upon Him), in this case, did not differentiate between the rape and adultery with mutual consent. He said it is proven from the Holy Qur’aan and Sunnah that the same punishment, which is to be inflicted in case of adultery, is also to be inflicted in case of rape. He said that Islam, however, did not punish a woman who is victim of rape. Quoting a Hadith of Wail Bin Hajr (RA), he said in a case where a woman was forcibly raped, Muhammad (Peace Be Upon Him) inflicted the Hadd on the rapist only, and not on the woman.

He said the reason behind so much insistence on abolishing the Shariat punishment for adultery, is an extremely unjust propaganda, which certain circles are busily spreading since long. According to this propaganda, if any rape victim intends to sue the offender under the Hudood Ordinance, she is asked to produce four witnesses to support her claim. And if she fails to do so, she herself is arrested rather than the offender. He said this claim has been and is repeated incessantly, so far that even educated people began to consider it as true. He said he himself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court, and in this long tenure, not once did he come across a case in which a rape victim was awarded punishment because she was unable to present four witnesses.

“It was actually not possible because according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Sharai punishment (Hadd). But at the same time Clause 10(3) was included to award the Ta’azeeri punishment, which did not have the condition of four witnesses. Instead the crime could be proven through one witness, medical examination and chemical analysis report.” “Thus the procedure of proving Zina as an act calling for Hadd has become even more difficult.” He said from the Shariah perspective Ta’azeeri punishment can be awarded even with availability of one witness and also in presence of circumstantial evidence. Therefore, in the case of Ta’azeer, presence of two witnesses at the time of complaint registration practically the same as providing unnecessary protection to the criminals of lewdness.

He said at a time when adultery was not a crime, the rape criminals used to adopt this line that what they did was with the free will of the woman. “Therefore if the court suspected woman’s connivance it would dismiss the case and would free the accused. Hudood Ordinance did not allow this line of defence to the person accused of rape because adultery was declared a crime even if it was done with the woman’s free will. But this new amendment has created nearly the same situation that if someone says that he has committed adultery with the woman’s free will and he succeeds in creating doubts then no one will be able to bring him to justice.”
Source: The News
Date:12/7/2006

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