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    Monday, 22 September 2014

    Zina and Zina-Bil-Jabar in Hudood Laws

    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 which 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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    Item Reviewed: Zina and Zina-Bil-Jabar in Hudood Laws Rating: 5 Reviewed By: Usman Ali
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