OFFENCE OF QAZF (ENFORCEMENT OF HADD) ORDINANCE 1979.

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Whereas it is necessary to modify the existing law relating to qazf so as to bring it in conformity with the injunctions of Islam as set out in the Holy Quran and Sunnah. And whereas the president is satisfied that circumstances exist which render it necessary to take immediate action. Now therefore the pursuance of the proclamation of the fifth day of July 1977 read with the laws (continuance in force)order, 1977 and in exercise of all powers enabling him in that behalf, the president is pleased to make and promulgate the following ordinance.

Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of zina concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation or hurt the feelings of such person is said except in the cases hereinafter excepted to commit qazf.

It is not qazf to impute zina to any person if the imputation be true and made or published for the public good whether or not it is for the public good is a question of fact.

Save in the cases hereinafter mentioned it is not qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.

  • A complainant makes an accusation of zina against another person in a court but fails to produce four witnesses in support thereof before the court.

  • According to the finding of the court a witness has given false evidence of the commission of zina-bil-jaber.

  • According to the finding of the court complainant has made a false accusation of zina-bil-jaber.

Qazf may be either qazf liable to hadd or qazf liable to Tazir.

QAZF LIABLE TO HADD.

Whoever being an adult intentionally and without ambiguity commits qazf of zina liable to hadd against a particular person who is a muhsan and capable of performing sexual inter course is subject to the provisions of this ordinance said to commit qazf liable to hadd.

If a person makes in respect of another person the imputation that such other person is an illegitimate child or refuses to recognize such person to be a legitimate child, he shall be deemed to have committed qazf liable to hadd in respect of the mother of that person.

PROOF OF QAZF LIABLE TO HADD.

Proof of qazf liable to hadd shall be in one of the following forms namely,

  • the accused makes before a court of competent jurisdiction a confession of the commission of the offence.

  • The accused commits qazf in the presence of the court and

  • at least two Muslims adult male witnesses other than the victim of the qazf, about whom the court is satisfied, having regard o the requirements of tazkiyah-alshuhood, that they are truthful persons and abstain from major sins (kabair) gibe direct evidence of the commission of qazf.

  • Provided that if the accused is a Non-Militant, the witnesses may be NonMuslims.

  • Provided that the statement of the complainant or the person authorized by him shall be recorded before the statements of the witness are recorded.

Whoever commits qazf liable to hadd shall be punished with whipping numbering eighty stripes. After a person has been convicted for the offence of qazf liable to hadd his evidence shall not be admissible in any court of law. A punishment awarded under subsection 1 shall not be executed until it has been confirmed by the court to which an appeal from the court awarding the punishment lies; and until the punishment is confirmed and executed the convict shall subject to the provisions of the code of criminal procedure, 1898 relating to the grant of bail or suspension of sentence be dealt with in the same manner as if sentenced to simple imprisonment.

No proceedings under this ordinance shall be initiated except on a report made to the police or a complaint lodged in a court by the following namely—

if the person in respect of whom the qazf has been committed be alive that person or any person authorized by him: or if the person in respect of whom the qazf has been committed be dead any of the ascendants or descendants of that person.

Hadd shall not be imposed for qazf in any of the following cases –

When person has committed qazf against any of his descendants. When the person in respect of whom qazf has been committed and who is a complainant has died during the pendency of the proceedings and when the imputation has been proved to be true.

In a case in which before the execution of hadd, the complainant withdraws his allegation of qazf, or states that the accused had made a false confession or that any of the witness had deposed falsely and the number of witnesses is thereby reduced to less than two hadd shall not be enforced but the court may order retrial or award Tazir on the basis of evidence on record.

QAZF LIABLE TO TAZIR.

Whoever commits qazf which is not liable to hadd, or for which proof in any of the forms mentioned in section 6 is not available or for which hadd may not be imposed or enforced under section 9 is said to commit qazf liable to Tazir.

Whoever commits qazf liable to Tazir shall be punished with imprisonment of either description for a term which may extend to two years and with whipping not exceedings forty stripes and shall also be liable to fine.

LIAN.

When a husband accuses before a court his wife who is muhsan within the meaning of section 5 of zina and the wife does not accept the accusation as true the following procedure of lian shall apply namely–

  • The husband shall say upon oath before the court: i swear by Allah the almighty and say I am surely truthful in my accusation of zina against my wife and after he has said so four times, he shall say Allah’s curse be upon me if I am liar in my accusation of zina against my wife and the shall in reply to the husband’s statement made in accordance with clause (a) say upon oath before the court. I swear the Allah the almighty that my husband is surely a liar in his accusation of zina against me and after she has said so fort times she shall say Allah’s wrath be upon me if he is truthful in his accusation of Zina against me.

  • When the procedure specified in subsection 1 has been completed the court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.

  • Where the husband and the wife refuses to go through the aforesaid procedure or in the case of the wife she has either agreed to go through the aforesaid procedure or accepted the husband’s accusation as true.

  • A wife who has accepted the husband’s accusation as true shall be awarded the punishment for the offence of Zina liable to hadd under the imposition of hadood for the offence of Zina- ordinance 1979.

unless other wise expressly provided in this ordinance the provisions of section s 34 to 38 of chapter 11 section 63 to 72 of chapter 111 and chapter v and VA of the Pakistan penal code shall apply mutatis mutandis, in respect of offences under this ordinance. The presiding officer of the court by which case is tried or an appeal is heard under this ordinance shall be a Muslim. The provisions of this ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.

Nothing in this ordinance shall be deemed to apply to cases pending before any court immediately before the commencement of this ordinance or the offence committed before such commencement.

In the first case, the law of Islam is that the accuser shall have to produce four witnesses. Anything less than this will not prove his accusation. Circumstantial evidence or medical examination in this case are absolutely of no importance. If a person is of lewd and loose character, such things have a very important role, but if he has a morally sound reputation, Islam wants that even if he has faltered, his crime should be concealed and he should not be disgraced in the society. Consequently, in this case, it wants four eye-witnesses to testify and if the accuser fails to produce them, it regards him as guilty of .

In the second case, according to the Quran, if there are no witnesses the matter shall be decided by pledging oaths. In Islamic law, this case is termed as Lillian. The husband shall swear four times by Allah that he is truthful in his accusation and the fifth time he shall swear that the curse of Allah be on him if he is lying. In reply, if the wife does not defend herself in anyway, she shall be punished for fornication. If she refutes the allegations, she shall only be acquitted from the punishment if she swears four times by Allah that the person is lying and the fifth time she says that the wrath of Allah be on her if he is telling the truth.

The same procedure shall be adopted if the wife accuses the husband.

If such an incident takes place between a husband and wife, they shall no longer remain in wedlock according to the verse `The man guilty of fornication may only marry a woman similarly guilty or an idolatress and the woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages’ and it is essential that a court legally separate them.

The Quran says:

“Those who accuse honorable women* and bring not four witnesses as an evidence [for their accusation], inflict eighty stripes upon them, and never accept their testimony in future. They indeed are transgressors. But those who repent and mend their ways, Allah is Oft-Forgiving and Most-Merciful. And those who accuse their wives but have no witnesses except themselves shall swear four times by Allah that they are telling the truth and the fifth time that the curse of Allah be on them if they are lying. But it shall avert the punishment** from the wife if she swears four times by Allah and says that this person is a liar and the fifth time she says that the curse of Allah be on her if he is telling the truth.”

Administering eighty stipes and not considering a person eligible to bear witness are punishments of the Herein, while in the Hereafter he shall be counted among the transgressors except if he repents and mends his ways.

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