By Hina Hafeezullah Ishaq
The Quanoon-e-Shahadat (Law of Evidence) Order, which is the primary law of evidence in Pakistan, allows production of any evidence that becomes available because of modern devices or techniques
In an utterly ‘brilliant’ move, the Council of Islamic Ideology (CII) recently declared DNA evidence to be secondary evidence in rape cases. Reportedly, it went further to state that conviction in rape cases would require the testimony of ‘Tazkiyah-al-shuhood, at least four, adult, male Muslim witnesses who satisfy the court that they are truthful persons and abstain from major (Kabir) sins give evidence as eyewitnesses of the actual act of penetration! I have no words to express my ‘admiration’ for such a commendable decision. I wonder why the ordinary Muslim woman thought that had Allah wanted victims of rape to produce four pious Muslims — who incidentally watched the rape and took no action to prevent it — He would have made it clear in His ‘Holy Book’. My apologies; apparently, this term has now been forbidden, or through our Prophet (PBUH) in the alternate!
The Quran states: “If any of your women are guilty of lewdness, Take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way” (4:15). According to the law, the only way one can prove zina (adultery) is either through a confession by the accused before a court of competent jurisdiction or through the testimony of Tazkiyah-al shuhood, which refers to the mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness. The words ‘guilty of lewdness’ somehow do not convey the incident of rape but of consensual sex, which is Zina in Islam. How can a victim of rape be guilty of anything, let alone ‘lewdness’?
Personally, to me, the strict requirement in the Quran to prove zina or adultery or consensual sex, is in the nature of a preventive measure. It is virtually impossible that four adult pious Muslim males would have nothing better to do than to watch someone in such a position. There is a Hadith that narrates that Ma’iz bin Malik al-Aslami came to the Prophet (PBUH) and confessed that he had committed Zina and desired purification. The Prophet (PBUH) turned his face away. The next day he returned and again said to the Prophet (PBUH) that he had committed Zina. Again he turned his face away. Ma’iz came back the third time and then the fourth; the Prophet (PBUH) asked him whether anything was wrong with his mind? He answered in the negative. Then he was asked if he was under the influence of alcohol, and he replied in the negative again. Lastly, he was asked whether he was married and he answered in the affirmative. It was only then that the Prophet (PBUH) ordered that he be punished.
The Protection of Women (Criminal Laws Amendment) Act, 2006, was a small step in the right direction. The Act repealed the offence of ‘Zina bil Jabr’ from the Hudood Laws and put the offence of ‘rape’ back into the Pakistan Penal Code. It also changed the procedure for lodging a complaint of Zina. No FIR can be lodged as now a complaint can only be made directly to the Sessions Court where the presiding officer at once examines the complainant, and at least four adult Muslim male witnesses who fulfil the requirement of Tazkiyah-al-shuhood (in case of a non-Muslim accused the eyewitnesses can be non-Muslims). If the presiding officer is satisfied that there is sufficient ground for proceeding with the complaint, he shall issue a summons. This procedure has definitely curtailed the false involvement of people in fabricated cases, but a question that begs attention is why are non-Muslims even being tried under the Quranic law? The Quran makes references to ‘believers’ when it admonishes adultery, so why are non-believers being tried under the Hudood laws?
Another thing that the Act did was that it disallowed cases of rape to be turned into a complaint of fornication, and fornication to be turned into a complaint of Zina. The Quran offers protection to women who are accused by men of adultery or fornication: “And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with 80 stripes; and reject their evidence ever after: for such men are wicked transgressors” (Quran 24:4). “Why did they not bring four witnesses to prove it? When they have not brought the witnesses, such men, in the sight of Allah, (stand forth) themselves as liars!” (Quran 24:13). So, is it possible to believe that a religion that offers such protection would require a woman who has been the victim of a heinous offence like ‘rape’ to produce at least four adult pious Muslim male witnesses in support of her innocence? How about little girls, infants and babies, who are molested, brutalised and raped? Are they too, supposed to fulfil the Tazkiyah-al-shuhood in support of their innocence? Would not the DNA evidence be concrete evidence in such cases or do the CII require them to testify and identify their perpetrators? The Quanoon-e-Shahadat (Law of Evidence) Order, which is the primary law of evidence in Pakistan, allows production of any evidence that becomes available because of modern devices or techniques. While medical evidence can be tendered with the testimony of the expert who collected it and serves as corroborating evidence — the reports of chemical examiner, serologist, etc, do not require expert testimony — so why then can DNA evidence, if obtained through credible means, not serve as the main or ‘primary’ evidence that convicts an accused in a rape case?
Many Islamic scholars have held rape to be a crime that falls within the definition of ‘Hirabah’ or ‘unlawful warfare’. Since the offence of rape constitutes spreading terror and has been compared to highway robbery of something very private and personal, it deserves severe punishment. These jurists are also of the opinion that Hirabah does not fall into the category of Hudood laws, which requires the criteria of Tazkiyah-al-shuhood, and can be proved through medical evidence, expert testimony and the like. It is reported that the Prophet (PBUH) ordered stoning of a rapist on the sole testimony of the victim woman, who was informed that Allah had not ordained punishment for her.
Most of us ordinary people who have read our Holy Book, the Quran, know for a fact that it does not mention rape, only Zina, and logically, it should follow that the criterion of Tazkiyah-al-shuhood is prescribed for consensual sex or ‘lewdness’, and rape is neither. Islam promotes justice and an ordinary believer like me is hard put to understand why it would require victims of rape to bring eyewitnesses in the nature of Tazkiyah-al-shuhood to prove the offence. I, for one, cannot understand the logic behind the CII’s enlightened declaration, which equates rape with Zina and puts it right back within the purview of the Hudood laws. One step forward, two steps back.
Hina Hafeezullah Ishaq is an advocate of the High Court