ISLAMABAD, Aug 19: The Federal Shariat Court has ruled that if a woman is coerced into committing Zina, she shall not be liable to any punishment under Hadd or Tazir.

The court, however, said the other party who causes coercion shall be liable to punishment either of Hadd or of Tazir on the basis of evidence as the case might be.

A three-judge bench in its landmark judgment on the appeal of Zafran Bibi, a woman from Kohat who had been awarded punishment of stoning to death by a Sessions Court of Kohat, has laid down the rule that no woman could be punished mere for the fact that she was part of the act, though forcibly.

The FSC, which had ordered the release of Zafran Bibi through a short order on June 6, 2002, released the detailed judgment on Monday.

“The sentence of Hadd is highly severe and deterrent. Therefore, every pre-caution is ordained to be adopted so that no innocent person gets punished,” the FSC ruled.

The court pointed out that a number of incidents had been reported during the period of holy Prophet (peace be upon him) and in the period of Caliphs that the women who were coerced into committing Zina, were acquitted but the co-accused were convicted and sentenced.

The court also ruled that in case of pregnancy of a woman, either unmarried or in case of being married, having no access to her husband, conceived but pleads that it was the result of commission of rape on her, she could not be awarded punishment of Hadd.

Justice Dr Fida Mohammad Khan, writing for the bench, stated that the eminent jurists like Hanafis and Shafaees held the view that if a woman was subjected to rape, she was not liable to conviction under Hadd. It was further pointed out that Imam Shafaee had also approved the above-stated position but with the condition that the burden of proving her lack of consent by raising alarm or making complaint, shifted to her.

The court ruled that mere pregnancy, in the absence of other evidence to show that it was the result of Zina, was no ground for the imposition of Hadd punishment if she came out with the defence that the pregnancy was the result of the commission of a rape.

“This view finds full support from an incident that was reported to the Holy Prophet (peace be upon him) that a woman was raped but the holy Prophet acquitted her of the charge punishable with Hadd,” the court said.

The FSC, established during the period of Gen Ziaul Haq, quoted two Ahadees of the holy Prophet whose English translation is as under:

a) “Avoid enforcing Hudood as much as you can.”

b) “Keep Hudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (judge) should) err in acquitting someone rather than he should err in punishing someone (who is not guilty)” — Tirmidhi.

The FSC bench, comprising Chief Justice Fazal Ellahi Khan, Justice Dr Fida Mohammad Khan and Justice Ijaz Yousaf, said that Zafran Bibi’s case was an unfortunate one, which received much publicity in the national and international press.

The court held: “On account of disinformation, misunderstanding, lack of knowledge of the facts and circumstances of the case, some organizations resorted to take out processions and demanded repeal of the Hudood laws, without realising that it was not the laws of Hudood (sentences prescribed by holy Quran and Sunnah) but its misapplication that resulted in miscarriage of justice.”

The court held these time-tested Hudood laws mainly aimed at preservation and protection of life, honour and property of the citizens of an Islamic State and dispensation of justice without any discrimination.

It added that like other laws, the prosecution or other components of law-enforcement machinery might err in their application in respect of various facts and circumstances.

“However, the ideal nature of these laws in ensuring maintenance of public law and order besides other deterrent and reformative aspects, is admittedly far superior to the man-made laws on account of its highly-balanced approach to individual and public interest.”

The court stated that some misinformed or disinformed individuals, while looking at the severity and gravity of some of the punishments, raised objections.

“Such individuals fail to appreciate the strict standard of evidence required to prove the offences,” the court observed.

The court said that the depth and wisdom of Hudood laws, was unfathomable.

“One can only well realise the far-reaching effects of the wisdom contained in these laws if one could only visualise oneself stepping in the shoes of the aggrieved individuals and families subjected to the heinous offences.”

The court quoted Sheikh Saddi, saying that “showing mercy to a wolf, in fact, amounts to inflicting cruelty on the sheep.”