LAHORE, Oct 16: Noted jurist and religious scholar Syed Afzal Haider has said that the Hudood laws were more or less Zulfikar Ali Bhutto specific and were promulgated in 1979 when he was facing trial.
The provision that a woman cannot be a competent witness was incorporated because Gen Ziaul Haq wanted to bar Begum Nusrat Bhutto from testifying in the case.
In an interview with Dawn, Mr Haider, who was associated with the Council of Islamic Ideology (CII) as a member between February 1990 and October 2003, said that what the Zia regime enacted in the name Hudood laws had been imported from Saudi Arabia. Saudi scholar Dr Maroof Dualibi drafted the law which was promulgated through an ordinance. The draft was in Arabic and was translated into English and Urdu by the information ministry.
Mr Haider says the Hudood laws were not consistent with what the CII had originally recommended unanimously. Rather, the regime changed the CII recommendations drastically and deleted a number of important sections of the council’s draft to accommodate its own whims in the law.
The council’s chairperson, Dr Tanzeelur Rehman, later wrote to Gen Zia on Nov 29, 1980 that Hudood laws as recommended by the CII were not fully reflected in the ordinance. He said that the council’s recommendations should be made the basis of the Hudood laws as these were truly consistent with the Quranic injunctions.
He says that malafide of the Zia regime could be established because it did not enforce the law on Qisas (life for life) and Diyat (blood money) along with the Hudood laws, although the CII had prepared these laws as an integral part of the Hudood laws and presented its report in 1978.
The law on Qisas and Diyat contemplated a ‘waiver’ or compounding of the right of Qisas and even forgiveness as proposed by sections 14 and 15 of the draft law. Section 9 of the draft law visualised a situation where death is caused by way of a conspiracy or abetment. The law proposed life imprisonment for the conspirator and the person found guilty of aiding the murder.
“Undoubtedly, the provisions of Qisas and Diyat in the offences against human body are more relevant to the Islamic jurisprudence than what the Zia regime enacted in 1979 in the name of ‘Hudoodullah’ in isolation and which altered punishment for injury to human body in the name of Islam”, Afzal Haider says.
Mr Haider, who was the vice-chairperson of the Pakistan Bar Council in 1988-89 and the president of the Lahore High Court Bar Association in 1983, was the only member of the Council of Islamic Ideology to give a note of dissent on the question of the testimony of women saying that women were as competent witnesses as men.
The original Hudood laws as recommended by the CII, he says, provided for ‘whipping to begin with’ as punishment for rape (zina bil jabr) and not stoning to death. Even otherwise, the Islamic jurisprudence does not contemplate death by stoning. In fact, the Islamic punishment is throwing small stone pebbles as a token of condemnation of the rapists. The spirit of ‘rijm’, as practised during the Haj, is the throwing of pebbles and certainly not causing death.
Section 17 of the Zina ordinance states: “Such of the witnesses who deposed against the convict as may be available, shall start stoning him and, while stoning is being carried out, he may be shot dead, whereupon stoning and shooting shall be stopped”. Nothing like this is ordained in the Quran, Mr Haider says.
Asked about the true interpretation of Islamic provisions on the testimony of women, Mr Haider said that nowhere in the holy Quran the woman has been prohibited from being a competent witness in a criminal case or in a court. He said according to the holy Quran the solitary statement of Zulekha against Syedna Yousuf (AS) was accepted as her allegation. The same court permitted Syedna Yousuf (AS) to defend himself against the allegation (solitary statement) and then decided the dispute on circumstantial evidence.
Similarly, the Quran does nowhere ordain the eye-witness account by four Muslim adult men as the standard evidence in the rape (Zina bil jabr). Citing from the holy Quran, he says that the divine Book envisages this condition to a situation when a person imputes immorality to a woman and does not support his allegation with the evidence of four witnesses.
In this situation, the person levelling the allegation and not the accused is punished. In other words, the condition of four male Muslim witnesses is meant to protect women from accusations about her chastity. Also the situation is not ‘zina’ (adultery) but indecency and the punishment is neither stoning to death nor whipping. But whatever the situation, the holy Quran provides for four male Muslim adult witnesses in a situation which is certainly other than ‘zina’.
He also says that the Islamic jurisprudence has no provisions that if four Muslim adult witnesses are not available and Hadd cannot be enforced, the accused should be convicted under ‘tazeer’. This provision of the Hudood laws is simply a travesty of Islamic way of justice.
Similarly, the Quran does not specifically debar non-Muslim from becoming competent witnesses in a criminal matter.
He also disputed the death penalty in ‘zina’ stating that the punishment stipulated is either fine or imprisonment.
Referring to the holy Quran, Afzal Haider says that in a situation where a slave woman is charged with obscenity, her punishment will be half of the punishment for a free woman.
Similarly, the Quran also ordains that if such acts are committed by a wife of the Prophet (peace be upon him), then the punishment will be double the punishment for other women.
This suggests that the Hadd punishment is not fixed but varies from case to case on the basis of circumstances. But Gen Zia’s Hudood laws, which the MMA and other clergy are defending, does not accept the verdict of the Quran by holding that Hadd is not variable.
Besides, he says, that jurists have yet to agree on the number of offences which entail Hadd punishment. Some say they are five, others list them at six; some others think they are seven or eight and some jurists have gone to the extent of 11 and 17.
The Hudood laws incorporate ‘Zina’ (adultery), ‘Qazf’ (false allegation), ‘Sarqa’ (theft), ‘Khumar’ (drinking alcohol) and ‘Haraba’ (dacoity by four or more). The question arises who authorised Gen Zia and his supporters to select these offences and leave out others? This is certainly not an Islamic classification.
Similarly, the term Hudood has been employed at 14 places in the Holy Quran and not even once has the term Hudoodullah been used in relation to a criminal offence. Such a term has always been used for civil transactions including matters connected with family laws.
He says that the Hudood laws of 1979 had no nexus with divine laws. Not a single person has been awarded Hadd punishment even 27 years after their enforcement.
In all these cases, police and courts take shelter behind ‘Tazeer’ which exposes the uselessness of the Hudood laws which, he says, should be repealed in their entirety.