Introduction
In pre-Islamic period, there were some crimes which were
corroding fabric of human society. Among these crimes, most prominent were zina
and zina-bil-jabr. Due to such crime, dignity of human life was being
destroyed. To check these crimes from corroding dignity of human life. Islam
introduced strict punishment against such crimes.
Definition
According to Offence of Zina (Enforcement of Hudood)
Ordinance, zina means sexual intercourse between a man and woman when they are
not validly married to each other.
Relevant Provisions
Following are the relevant provisions of the concerned
topic. Section 4 to 10 of offence of Zina (Enforcement of
Hudood) ordinance VII of 1979.
Ingredients of offence of Zina
Emulating ingredients must be demonstrate to secure the
conviction of an accused person for the offence of Zina.
(i) Between Opposite Sexes
There should be a man and a lady. This offense is
impractical between human being belonging to the same box or being sexless.
(ii) Not Validly Married
There must not be a valid married between such man and a
lady. The interpretation legitimate marriage will intimate the requirements of
such marriage as requires under Muhammadan Law.
(iii) Sexual Intercourse
A man and a woman should have committed sexual intercourse with
one another. Zina is finished if there is sexual intercourse without valid
marriage (1998 PCRLJ 878).
According to explanation of Sec 4, penetration is
sufficient to constitute the sexual intercourse. It’s means entering of the
male organ into the vagina for the offence of Zina. (1985 PCRLJ 110)
(iv) Wilfully
A man and a woman must commit sexual intercourse wilfull.
Wilfully signify an act done by design with sex purpose. (PLD 1985 FSC 126)
Zina Liable to Hadd Under Section 5
Zina is liable to hadd, if it is committed by a man or woman
who is
v
An adult, and according to Section
2 (a) adult means a person who has attained
(i)
If male, eighteen years of
age
(ii)
If female, sixteen years of
age or puberty
v
Not Insane
v
With the woman or man as
the case may be, to whom he or she is not and does not suspect to be married.
Punishment of Zina Under Section 5(2)
Following punishments as under
v
If Muhsan
if male or femal is a muhsan, be stoned to death at a public place.
v
If Not Muhsan
If
Male or Female is not a muhsan, be punished at a public place with whipping
numbering one hundred stripes.
Meaning of Muhsan
According to Section 2(a), Muhsan means an adult
Mushsan man or woman who is not insane and has had sexual intercourse with a Muslim
young male or female, who at the time he or she had sexual intercourse with her
or him was married to him or her and was not crazy. As it were Muhsan mean a
wedded men or woman.
Offence of Zina Bil Jabr Under Section 6
An human is said to performed zina-bil-jabr if he it she has
sexual intercourse with a woman or man, as the case may be to when he or she is
not validly married, under any of the following circumstances.
v
Against the will of the
victim
v
Without the consent of the
victim
v
with the assent of the victimized
person, when the assent has been obtained by putting the victim in fear of
death or hurt.
v
with the assent of the victimized
person, when the assent is given under mistake believing that the offender is
another person to whom victim is validly married and the offender knows that he
is not validly married to the victim.
Zina-Bil-Jabar Liable to Hadd Under Section 6(2)
Zina-bil-Jabr in liable to hadd if it is committed by a man
or woman who is
v
An adult
v
Not insane
v
with a lady or man, as the
case may be, to whom he or she is not and does not suspect to be married.
Punishment of Zina-Bil-Jabr Under Section 6(3)
Whoever is guilty of Zina-Bil-jabr liable to hadd and
following punishments
v
If Muhsan
If he or she is Muhsan be stonned to death at a public Place.
v
If Not Muhsan
If
Male or Female is not Muhsan, so be punished with whipping numbering one
hundred stripes at a public place and with such other punishment including the
sentence of death as the court may deem fit having regard to the circumstances
of the case.
Punishment of Zina or Zina-bil-jabr where convict is not adult Under Section 7
Anyone, who is not a adult, is blameworthy of Zina or
Zina-bil-Jabr be punished with imprisonment of either description for a term
which may extend to five years or with fine or with both and may also be
awarded the punishment of whipping not exceeding thirty stripes and in the case
of Zina-Bil-Jabr, if the offender is not under the age of 15 years, the
punishment of whipping must be awarded.
Proof of Zina or Zina-bil-Jabr liable to Hadd Under Section 8
Zina or Zina-bil-Jabr liable to hadd shall be provided in
any one of the following forms
(i) Confession
the blamed makes in the eyes of a Court for capable ward
confession of the commission of the offence.
(ii) By evidence of witnesses
It might be proved by the proof of minimum four witnesses,
who give evidence as eye witnesses of the act of penetration.
Requirement Regarding Witnesses
v Witnesses must be male
v They must be adult
v They must be Muslim but if accused in non-Muslim, the
eye-witnesses may be non-Muslim
v The court must be fulfilled about them having regard to the
requirements of tazkiyah-al-shahood (mode of inquiry adopted by a Court to
satisfy itself as to the credibility of a witness that they are “truthful
person” and “abstain from major sins”
Zina or Zina-bil-Jabr liable to Tazir Under Section 10
Following punishments
v
Is not liable to Hadd or
v
Not proved under section 8
or the punishment of Qazf liable to hadd is not awarded to the complainant, or
v
For which hadd may not be
enforced under this law. It is obligated to tazir
Punishment of Zina Liable to Tazir
zina under to tazir should be punish with rigorous
imprisonment for a term which shall not be less than four years nor more than
then years and with whipping numbering thirty stripes and shall also be liable
to fine.
Punishment of Zina-bil-Jabr liable to Tazir
Anyone Male or Female commits Zina-bil-jabr under tazir,
shall punished with imprisonment for a term whichZina Liable to Hadd Under shall not be less than four
years nor more than twenty five years and shall also be awarded the punishment
of whipping numbering thirty stripes.
When Committed by Two or More Persons
When Zina-bil-Jabr under
tazir is Performed by two or more persons in furtherance of common
intention of all each of such person shall be punished with death.
Conclusion
To conclude, I can say, that when a man and a woman who are
not validly married to each other willfully commit sex, they might be regarded
to have committed the offense of Zina. It is a more extensive term and
incorporates both sex and adultery and when it is committed under the
circumstances mentioned in section 6, it becomes more serious offence.
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