The Zina Ordinance and its Application in Pakistan

In 1977, under President Zia-ul-Haq, Pakistan enacted a set of "Hudood"1 Ordinances,

ostensibly to bring the laws of Pakistan into "conformity with the injunctions of Islam" (P.L.D.
1979, 51; Bokhary 1979, 162; Major Acts 1992, 10). These Ordinances, setting forth crimes such
as theft, adultery, slander, and alcohol consumption, became effective in February 1979 (P.L.D.
1979, 51; Bokhary 1979, 164; Major Acts 1992, 10). The "Offence of Zina (Enforcement of
Hudood) Ordinance, VII of 1979" (Zina Ordinance) criminalizes "zina," or extramarital sexual
relations (also a crime under Islamic law).

The Zina Ordinance states:

A man and a woman are said to commit ‘zina’ if they willfully have sexual intercourse without
being validly married to each other.

Zina is liable to hadd punishment if--

(a) It is committed by a man who is an adult and is not insane, with a woman to whom he is not,
and does not suspect himself to be married; or

(b) It is committed by a woman who is an adult and is not insane with a man to whom she is not,
and does not suspect herself to be married (P.L.D. 1979, 52; Bokhary 1979, 176; Major Acts
1992, 11).

A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man,
as the case may be, to whom he or she is not validly married, in any of the following
circumstances, namely:--

(a) against the will of the victim,

(b) without the consent of the victim,

(c) with the consent of the victim, when the consent has been obtained by putting the victim in
fear of death or of hurt, or

(d) with the consent of the victim, when the offender knows that the offender is not validly
married to the victim and that the consent is given because the victim believes that the offender
is another person to whom the victim is or believes herself or himself to be validly married.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of zina-bil-jabr.

Finally, the Zina Ordinance then specifies the evidence required to prove both zina and zina-bil-
jabr:

Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms, namely:--
(a) the accused makes before a Court of competent jurisdiction a confession of the commission
of the offence; or

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard
to the requirements of tazkiyah al-shuhood credibility of witnesses, that they are truthful persons
and abstain from major sins (kaba’ir), give evidence as eye-witnesses of the act of penetration
necessary to the offence (P.L.D. 1979, 53; Bokhary 1979, 182; Major Acts 1992, 12).

the Qur’anic zina verse setting forth the original four-witness

However, the Qur’anic zina verse setting forth the original four-witness requirement is not
exclusive to men.This verse refers to these four witnesses with the Arabic masculine plural,
"shuhada" ("witnesses"), which grammatically includes both men and women, unless otherwise
indicated. The inclusion of the word "male" in the Zina Ordinance thus prompts the question:
was this interpretation taken from Islamic law or is it a Pakistani cultural gloss on the rule?

Despite the Qur’anic use of the plural noun inclusive to both men and women, many Islamic
jurists and scholars have traditionally limited the four witnesses in a zina case to men. In fact, all
major schools of thought have adopted restrictive interpretations of women’s ability to testify as
witnesses in general, although some (significantly including the famous jurists, al-Tabari, Ibn
Taymiyya, and Ibn al-Qayyim) have disagreed. The rationales accompanying this rule are
interesting, however. For example, the Hedaya, states:

Evidence is of several kinds, that of four men, as has been ordained in the Qur’an; and the
testimony of a woman in such case is not admitted; because . . . ‘in the time of the Prophet and
his two immediate successors it was an invariable rule to exclude the evidence of women in all
cases inducing punishment or retaliation’; and also because the testimony of women involves a
degree of doubt, as it is merely a substitute for evidence, being accepted only where the
testimony of men cannot be had; and therefore it is not admitted in any matter liable to drop from
the existence of doubt (Hedaya 1982, 353-54 Bk.XXI, Ch.1).

Although the principle that reasonable doubt should negate convictions of violent crimes is a
laudable one, the reasoning leading to it appears to stem from a condescending patriarchal view
of women. This attitude continues even in more modern texts on Islamic law:

In the case of zina the testimony of four male witnesses is required as a female is weak in
character (Ajijola 1981, 134).

The concern of Islamic law for complete truthfulness of evidence and certainty of proof is
abundantly clear from its rules of evidence. Avoiding conviction only on a single witness
testimony and reluctance to act upon the evidence of women only are indications of the fool-
proof system of guilt-determination prescribed by the Qur’an and Sunna[h] (Menon 1981, 237).
It is to be observed that the evidence of women against men is not admissible in wine drinking
prosecutions because the evidence of females is liable to variation, and they may also be
suspected of absence of mind, or forgetfulness (Siddiqi 1985, 119).

Assumptions such as these of the lack of memory, incompetence, and general weak character of
all women obviously stem from a patriarchal perspective in a male-dominated intellectual
community. The Qur’an, however, does not bear this attitude, as it establishes the equality of
men and women before God and the responsibility of both equally as vicegerents of God on
earth. But where cultures are male-dominated, the absence of the active and intelligent
participation of women in the public sphere naturally might breed such attitudes, and these have
apparently made their way into the analysis and application of Islamic law in such societies and
places in history.

Educated Muslims today, however, would quickly dismiss as simple ignorance any claims that
women are inferior in intellectual capacity, memory, or character. As for the societal harmony
arguments that women do not venture out into public space, Muslim women today, do not
necessarily fit into the mold described in these quotes. Nor, indeed, did all women of Muslim
history. To reason that women should not be witnesses to a zina or zina-bil-jabr case because this
would encourage their going out in public is pointless in a society where, for example, the
medical evidence in a zina prosecution might easily be submitted by a woman doctor, the
prosecuting or defense attorney could be a female litigator, and the presiding judge a woman
jurist. The caution against women entering public space has long been dropped in most parts of
Pakistan and other countries of the modern world.

In the 1970s, some Islamists began a serious reexamination of the dominant conservative
position. They concluded that the inclusion of women in all facets of the political process was
entirely consistent with Islam, that Islam does not require strict segregation of the sexes, and that
much of the conservative position was based on custom rather than on the absolute principles of
Islam (Ghadbian 1995, 27).

Among the many respected leaders of the modern Islamist movement who follow this attitude
are Hasan al-Turabi of Sudan, Rachid al-Ghanouchi of Tunisia, and Muhammad al-Ghazali and
Yusuf al-Qaradawi of Egypt.

The exclusivity of male testimony as an application of cultural male bias to the Islamic law of
zina is unfair. But the exclusion of female testimony becomes appalling when expanded to apply
to zina-bil-jabr as well. It is a clear travesty of justice to deny a victim of rape the right to testify
to this violent attack merely because she is a woman. In applying the exclusively male evidence
rule of traditional zina law to the crime of zina-bil-jabr, Pakistan has transformed what was
merely an unfair antiquated male bias into a direct violation of the human rights of women. The
direct contradiction to the Qur’anic injunctions to stand up firmly for justice is obvious.
Moreover, depriving women as an entire gender of the right to testify in a zina or zina-bil-jabr
case–where a woman’s honor is generally at issue–has serious societal ramifications. First, it
prevents women from fulfilling the Islamic duty to bear witness to the truth, repeatedly
emphasized in the Qur’an.61 But even more significant is the fact that the permanent rejection of
testimony is itself a Qur’anic hadd penalty. That is, in its verse prohibiting slander, the Qur’an
establishes that deprivation of the right to testify is a severe punishment–one of the two
consequences of falsely accusing a woman:

Those who defame chaste women, and do not bring four witnesses, should be punished with
eighty lashes, and their testimony should not be accepted afterwards, for they are profligates
(Qur’an 24:4 (emphasis added)).

A law which disallows women’s testimony in zina cases, then, is tantamount to sentencing all
women to one of the Qur’anic punishments for slander. This is ironic given the fact that the
slander verse is specifically addressed to the preservation of women’s honor--something that is
stripped when one’s testimony is not accepted. As one commentator puts it, "in a Muslim society
the rejection of an individual’s testimony is tantamount to outlawing him, [and thus] the rejection
of the testimony of one who has committed a hadd offence is a deterrent measure" (El-Awa
1982, 34). Elimination of all female testimony in zina cases thus subjects women to part of the
same punishment as if they had committed a hadd crime, the most serious type of offense in
Islamic law. Quite different from honoring women, as the Qur’an dictates, this practice dishonors
all women by insinuating incompetence and weakness of character-–the same qualities attributed
to a slanderous witness.

This is a common argument used by those who usually attempt to make a false analogy with
adultery by inferring from the following Qur’anic injunction:

And those who accuse chaste women [of adultery] and then do not produce four witnesses —
lash them with eighty lashes and do not accept from them testimony ever after. And those are the
defiantly disobedient. Except for those who repent thereafter and reform, for indeed Allaah is
Forgiving and Merciful.”

That this myth was repeated by none other than the former Malaysian Prime Minister Tun Dr.
Mahathir at an UMNO General Assembly meeting had greatly contributed to the misconception
that Islam requires four witnesses for rape:

If four witnesses were to merely watch a woman being raped and not attempt to help her, would
they not be regarded as having sinned (for allowing a woman to be raped) and are not be fit to be
witnesses?” he said. Under Pas’ hudud also, rape victims would in turn become the accused in
the event that she could not make the four witnesses available.
Unfortunately for such people, this fallacy of equivocation has no basis in Islamic jurisdictions
and the punishment for rape (which is defined as forced sexual intercourse) is certainly not
equivalent to the punishment of adultery. Insha’allah, in what follows we aim to deal with this
issue once and for all by breaking it down into several points so as to enable easy understanding.

The claim that rape victims require four witnesses to seek justice for their case is untrue and a
false lie propagated by those who either do not have any knowledge in Islamic law or want to
“prove” a so-called weakness in the hadd laws. Circumstantial evidence is sufficient and the
judge can invoke his judgment based upon takzir (his own discretion).

If a person makes an allegation of adultery against another person (male or female), only then he
or she must produce four witnesses to support such an allegation: “And those who accuse chaste
women [of adultery] and then do not produce four witnesses….”2; otherwise, he or she is guilty
of slandering, which is a grave offense in Islam.

To insist that the raped victim must provide witnesses is akin to inflicting further pain on her. If
anyone refutes her claim of innocence, the onus is on him to provide evidence, and she may
simply deny the claim by making a solemn oath, thus clearing herself in public.

This is based on what the Prophet Muhammad (P) had once said:

“The onus to provide evidence falls on the one who makes a claim, and the one who denies (the
same) can absolve himself or herself by making a solemn oath to the contrary.”

Further, the Prophet (P) was reported to have said that:

“Allah (T) has pardoned my people for the acts they do by mistake, due to forgetfulness and
what they are coerced into doing.”3

An event concerning rape had in fact led towards the Prophet Muhammad (P) punishing a rapist
without demanding or even hinting for four witnesses:

“Narrated Wa’il ibn Hujr: “When a woman went out in the time of the Prophet (P) for prayer, a
man attacked her and overpowered [raped] her. She shouted and he went off, and when a man
came by, she said: That [man] did such and such to me. And when a company of the Emigrants
came by, she said: That man did such and such to me. They went and seized the man whom they
thought had had intercourse with her and brought him to her.

She said: Yes, this is he. Then they brought him to the Apostle of Allah (P).

When he [the Prophet] was about to pass sentence, the man who [actually] had assaulted her
stood up and said: Apostle of Allah, I am the man who did it to her.
He [the Prophet] said to her: Go away, for Allah has forgiven you. But he told the man some
good words [Abu Dawud said: "meaning the man who was seized"], and of the man who had had
intercourse with her, he said: “Stone him to death.“

It should also be noted that it was related by Ibn Abi Shaybah through Târiq b. Shahab that a
woman accused with adultery was taken to Caliph `Umar. The woman pleaded that she was
asleep and woke up to find the man over her. `Umar released the woman.5

Based on the above sayings of the Prophet (P) and the events associated with it, the jurist Ibn
Qudamah had stated as follows in his book al-Mughnî:

“If a woman becomes pregnant without having a husband or a master, she may not be punished
and, in stead, she should be asked about it, if she claimed that she was coerced into it or that she
committed adultery under dubious circumstances, or if she simply does not confess adultery then
she will not be punished. This is the saying of Abu Hanîfah and al-Shâfi`î, because she may be
pregnant as a result of a forceful intercourse or dubious circumstances. Punishment will be
abandoned in case suspicion exists. It is well known that a woman could become pregnant
without committing the real intercourse. The woman may become pregnant if sperm is manually
inserted into her vagina. This would explain how a virgin becomes pregnant.”

We can now see that a testimony of the raped woman suffices in exonerating her from adultery
and that Islam recognises the crime of rape and that a raped woman will not be punished for such
a crime that was inflicted upon her.

According to the majority opinion of Muslim scholars, rape is considered as hirabah (highway
robbery or terrorism) and hence rapists are to be punished according to the hirabah laws, as
highlighted in the Qur’an. This of course is as opposed to what the Bible teaches about the
punishment for rape. For example, we read that:

“If a man is caught in the act of raping a young woman who is not engaged, he must pay fifty
pieces of silver to her father. Then he must marry the young woman because he violated her, and
he will never be allowed to divorce her.”

What kind of lunatic would make a rape victim marry her attacker? Is there any justice in forcing
the raped woman to marry her rapist and bound her to him for the rest of his life? Further we also
read another example that the Bible teaches that the rape victim should be punished with death:

“If within the city a man comes upon a maiden who is betrothed, and has relations with her, you
shall bring them both out of the gate of the city and there stone them to death: the girl because
she did not cry out for help though she was in the city, and the man because he violated his
neighbor’s wife.”
How can four witnesses be brought against the man and woman who commit zina in the present
age?  

Praise be to Allaah.

Firstly: 

The scholars have listed the ways of establishing proof of zina, and there are four ways: 

1-    Testimony of witnesses

2-    Admission by the parties concerned

3-    Pregnancy of a woman who has no husband or master

4-    If the husband engages in li’aan and the wife refuses to take part in li’aan 

With regard to witnesses to zina, they should be four people whose testimony is acceptable, and
they should state that they have seen the zina in clear terms, i.e., they should have seen the man’s
penis in the woman’s vagina.  If some of them only testify that they saw them naked, or they
describe certain positions or movements, that is not sufficient to proof that zina took place. 

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said in al-Sharh al-Mumti’ (6/157): 

They should describe zina in clear terms, such as saying: “I saw his penis in her vagina”. There is
no alternative to that. If they say: “We saw him on top of her and they were naked”, that is not
acceptable. Even if they say “We saw him doing with her what a man does with his wife,” that is
not sufficient as testimony. They must say “We bear witness that his penis was in her vagina.”
And this is very difficult, as the man said who was testified against at the time of ‘Umar: “If you
were among the (four) thighs you would never be able to give this testimony.” Hence Shaykh al-
Islam Ibn Taymiyah mentioned that at his time no case of zina was proven by means of
testimony from the time of the Prophet (peace and blessings of Allaah be upon him) until the
time of Ibn Taymiyah. If no case was proven from that time until the other, then we do not know
of any case that was proven by testimony up till our own times, because it is very difficult. End
quote. 

This strictness with regard to testimony about zina serves only to achieve the purpose aimed at
by sharee’ah, which is to conceal people and not spread immorality, and to make societies avoid
accusations against people’s honour and aspersions on their lineages. 

Al-Qurtubi (may Allaah have mercy on him) said in al-Jaami’ li Ahkaam al-Qur’aan (5/83): 

Allaah has stated that testimony in a case of zina must be given by four people, so as to make it
hard for those who are testifying to such a thing, and to conceal people. End quote. 
Shaykh ‘Abd al-Rahmaan al-Sa’di said in his Tafseer (1/563): “Why did they not produce four
witnesses?” [al-Noor 24:13], i.e., why did the accusers not bring witnesses to the things they
accused them of? “four witnesses” i.e., of good character. “Since they (the slanderers) have not
produced witnesses! Then with Allaah they are the liars” – even if they are certain about that in
themselves, they are liars in Allaah’s judgement, because Allaah has forbidden them to speak of
that without four witnesses. Hence Allaah says: “Then with Allaah they are the liars”, and He did
not say “Then they are the liars”. All of this points to the grave sanctity of the Muslim’s honour,
so it is not permissible to make accusations against it without establishing testimony. End quote. 

See also the answers to questions no. 839 and 6926. 

Secondly: 

With regard to protecting our youth and our societies against this evil, it is essential that there be
a concerted effort on the parts of nations and societies, on various fronts. It is a communal
responsibility, not an individual one. It is not possible to attain the well being of societies without
integrated efforts to adopt the means that will protect them against zina and its effects. These
means include the following: 

1 – Spreading awareness of the seriousness of the sin of zina, and that it is one of the major sins
which common sense and sharee’ah agree is abhorrent and haraam; explaining that it is the cause
of nations’ downfall and that it brings calamities upon this world, and the punishment of Hell on
the Day of Resurrection. 

Imam Ahmad said: After murder, there is nothing worse than zina. Ghadha’ al-Albaab (2/435). 

Allaah says (interpretation of the meaning): 

“And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its
limits: a great sin), and an evil way (that leads one to hell unless Allaah forgives him)”

[al-Isra’ 17:32] 

Shaykh ‘Abd al-Rahmaan al-Sa’di said in his Tafseer (1/457): 

Allaah describes zina and its evil as “a Faahishah (i.e. anything that transgresses its limits: a
great sin” i.e., a sin that is abhorrent according to sharee’ah, common sense and sound human
nature, because it is a transgression against the rights of Allaah, the rights of the woman, the
rights of her family, and the rights of her husband, and it is spreading immorality, confusing
lineages and other evils. The phrase “and an evil way” means it is an evil way for the one who
dares to commit this grave sin. End quote. 

Making the youth aware of the bad effects that result from the spread of this evil, which threatens
the stability of families and societies, such as the spread of fatal diseases, the prevalence of
illegitimate children, disintegration of the family, children not being cared for properly and
having a bad upbringing, increase in the divorce rate, spread of crime and so on. These effects
are felt by the societies in which permissiveness in its worst forms is widespread, which could
lead to disintegration of those societies and the downfall of those civilizations. 

3 – Striving to facilitate the shar’i way to have sexual relationships, which is through halaal
marriage, by encouraging marriage and explaining that sharee’ah encourages it, and that it is the
way of the Messengers, and that the one who gets married has completed half of religion, and
that he will be rewarded for keeping himself and his wife chaste. 

4 – One of society’s responsibilities in this matter is to remove the obstacles that cause delays in
getting married. So they should address the poverty that may be an obstacle to marriage, and
provide the material means to young people who do not possess enough to keep themselves
chaste. In his commentary on the verse (interpretation of the meaning): “And marry those among
you who are single (i.e. a man who has no wife and the woman who has no husband) and (also
marry) the Saalihoon (pious, fit and capable ones) of your (male) slaves and maid-servants
(female slaves). If they be poor, Allaah will enrich them out of His Bounty. And Allaah is
All-Sufficient for His creatures’ needs, All-Knowing (about the state of the people)” [al-Noor
24:32], al-Qurtubi said: Marry those among you who have no spouse, for that is the way to
achieve chastity. End quote (12/239). 

In the book al-Amwaal by Abu ‘Ubayd al-Qaasim ibn Salaam (251) it says that ‘Umar ibn ‘Abd
al-‘Azeez wrote to his governor in Iraq saying: Seek out every unmarried man who has no wealth
and if he wants to get married, then arrange his marriage and give charity to him. 

Ibn Qudaamah (may Allaah have mercy on him) said in al-Mughni (7/587): 

A man must keep his son chaste if he needs to get married, and this is the apparent meaning of
the view of al-Shaafa’i. End quote. 

5 – The least that societies and parents can do with regard to this important issue is to stop going
to extremes with regard to dowries, or showing off and indulging in excess with regard to the
expenses of marriage, or trying to acquire wealth from them. 

‘Umar ibn al-Khattaab delivered a speech from the minbar and said:

“Do not go to extremes with regard to the dowries of women, for if that were a sign of honour
and dignity in this world or a sign of piety before Allaah, then Muhammad (peace and blessings
of Allaah be upon him) would have done that before you. But he did not give any of his wives,
and none of his daughters were given, more than twelve uqiyah.”

Narrated by Abu Dawood (2106); classed as saheeh by al-Albaani in Saheeh Abi Dawood. 
Wise people do not disagree on the point that parents’ going to extremes with regard to their
daughters’ dowries is one of the causes of the spread of corruption and immorality in their
societies. 

Will Durant said, speaking of the spread of immorality in some western societies in some era of
history in his book Mabaahij al-Falsafah (The Pleasures of Philosophy) (127-128): 

There is no dispute that this is to some extent due to the demands for high dowries made by
fathers as the price for their chastity at a time when marriage was, frankly, a commodity to be
bought. End quote. 

6 – One of the most important means by which societies may ward off the evil of zina is
spreading an atmosphere of love between spouses, and striving towards the happiness of families
by means of love, respect, sincerity, loyalty, rights and duties, for happy families and loving
couples are a means of protecting society from deviation and falling into immorality in search of
illusionary happiness. 

7 – Finally, it is essential to strive to establish a conservative and religiously-committed

environment which is connected to Allaah, may He be glorified and exalted, in which wanton
display and unveiling are unknown, and in which ‘awrahs are covered, in which alcohol and
music, which are the promoters of zina, are forbidden, because these things are the fuel for the
fire of immorality, so if the society rids itself of them, it will be safe from that fire.