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| December 16, 2005 | Friday | Ziqa’ad 13, 1426 |
Shariat court dismisses petition: Death sentence for rape
ISLAMABAD, Dec 15: The Federal Shariat Court (FSC) on Thursday dismissed a petition challenging capital punishment for the offence of rape on the grounds that sections of the 1979 Zina Ordinances and the 1997 Anti-Terrorism Act (ATA) were repugnant to Islam.
“In its present form, the petition is not maintainable and is dismissed for being misconceived,” a three-member FSC bench decreed. The bench comprised Chief Justice Chaudhry Ejaz Yousaf, Justice Dr Fida Mohammad Khan and Justice Saeedur Rehman Farrukh.
Maulvi Iqbal Haider, Chairman Awami Himayat Tehrik Pakistan, had challenged the vires of Section 10(4) of Zina Ordinance (Enforcement of Hudood laws) 1979 and Section 7 of ATA 1997 under Article 203-D of the Constitution.
The petitioner had requested the court to declare that death sentence under “Tazir” without “Tazkiya-tush-Shuhud” for an offence under Section 10(4) of the Zina Ordinance 1979 was against the injunctions of the Holy Quran and the Sunnah.
He had also pleaded that the offence of “Zina” had not been mentioned in the Schedule of ATA 1997 under Sections 6 and 7, therefore, these sections were in derogation of Articles 2-A (objective resolution to form part of substantive provisions), 5 (loyalty to state and obedience to the constitution and law), 8 (laws inconsistent with or in derogation of fundamental rights to be void), 9 (security of person), 14 (inviolability of dignity of man), 25 (equality of citizens), 35 (protection of family) and 227 (provisions relating to the Holy Quran and Sunnah) of the Constitution.
Both Sections 10(4) and ATA section 7 had been incorporated during Prime Minister Nawaz Sharif’s government in December 13, 1997.
The contentions raised by the petitioner are devoid of force as the verses he quoted from the Holy Quran to supplement his arguments do not at all pertain to the issue under consideration, the order held.
Even the verses, the petitioner had mentioned, suggest not to show leniency to any male or female found guilty of zina (rape), the judgment said.
About awarding of Tazir punishment, the order said, it was not against the Islamic injunctions as contained in the Holy Quran and the Sunnah of Holy Prophet (PBUH).
“There are many instances where Tazir punishment was awarded during the period of the Holy Prophet (PBUH) and during the period of Orthodox Caliphate.
Tazir is used for the punishment, not fixed in the Holy Quran and Sunnah and is left to the discretion of the head of the state, Majlis-e-Shoora (the parliament) or Qazi based on the principles of the Holy Quran and Sunnah,” it said.
In fact Tazir is a penal punishment for reformative deterrence for offences on which Shariah does not prescribe a fixed punishment.
These punishments had also been considered by Muslim jurists, who had held that these were in harmony with Hadd, as their objective was to eradicate social evils prevailing in the society, the order said.
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