Hazoor Bakhsh Vs. Federation of Pakistan

AFTAB HUSSAIN, MEMBER

Shariat Petitions No.59 of 79 and 62 of 79, both of Lahore, which I propose to •dispose of by this judgment, have been filed to challenge the provisions of Section 5(2) (a) and Section 6(3)(a) of the Offence of Zina (Enforcement of Hadood Ordinance, 1979, which provide for stoning to death a person who commits adultery or rape in case such a person is already married (mohsan or mohsana).

The case was argued by the petitioner personal in S.P.No.62 of 79, and by Mr. Shamim Abbas Bokhari, Advocate, in S.P.No.59 of 79. Mr. Riaz-ul-Hassan Gillani argued in favour of the justification of the provisions about stoning to death in the circumstances referred to above.

The gravamen of the arguments on behalf of the petitioner is that the Holy Quran provides in verse 2 of Surah Noor (24:2) the sentence of one hundred lashes for all persons, whether adulterers or fornicators, married or unmarried. The petitioner in S.P.No.62 of 79 confined his argument only to the Holy Quran and tried to invigo- rate them by referring to SurEah Nisa verse 25 (4.25) which prescribes half the sentence for a married slave girl. Similarly he referred to verse 33:30 in which the wives of the Holy Prophet were warned that in case of manifest lewdness by them they shall be meted out double punishment. He argued that these verses negative the rather bold assertion that the Quran ever conceived the sentence of stoning to death in case of an adulterer who is already married, since such a sentence could neither be halved nor doubled. r.

Mr. Shamim Abbas Bokhari while agreeing with the submissions of the petitioner in S.P.No.62 of 79 further ._. ot added that the word Mohsan or Mohsana has been used in the t

sense of chaste male or female and not in the sense of married person. He referred to the four incidents in which the Holy Prophet had directed married persons committing adultery to be stoned to death. In one of these cases the unmarried accused was directed to be punished with 100 lashes and to be expelled from the city for a period of one year. According to the learned Counsel one of these incidents pertained to Jews and in that case the sentence of stoning to death had been ordered in accordance with the Jewish law. Regarding the three other incidents he submitted that they were all prior to the revelation of Surah Noor. In any case these traditions cannot override the sentence as fixed by the Almighty in verse 2 of Surah Noor. He also did not agree about the authenticity of the tradition in which Hazrat Timer is said to have stated that there was a Quranic verse about stoning to death of a married person who committed adultery. He argued that the Quran is a complete book in which there are specific instances of abrogation of earlier orders. It cannot be conceived that the verse said to have been referred to by Hazrat Umar would not have found place in the Holy Quran itself if it was ever revealed. This would amount to suggesting that the Quran is not a complete book. Alternatively he submitted that if some verse had been qaarked from the Quran, its order could not have remained effective and'unabrogated.

Mr. Riaz-ul-Hassan Gillani submitted that it is clear from the Quran itself that verse 2 of Surah Noor relates only to unmarried persons. According to him all the incidents in which the punishment of stoning to death was awarded by the Holy Prophet pertained to a period after the revelation of the above verse. He further submitted that the intention of the Almighty in favour of the punishment of stoning to

death is clear: 'from the tradition of Obada bin Samit which itself is a revelation CWahi gheir Matlue) and by which a distinctionwas drawn between the sentence of adulterers who were already' married and those who were not married,

-Mr, RiAz-u1.4-lassan Gillani formulated the follow- ing points for his arguments:.-

Only-Yharjis oppose the punishment of stoning to death but all the jurists have 'repelled successfully their arguments.

2., The punishment of adultery was intro- ducedigradually, the "first punishment being thrashing and life long confine- ment, The punishments of flogging and stoning were introduced later, In Surah Noor (24:2) the reference is only to an unmarried male or female.

All the incidents in which the Holy Prophet punished the culprit with stoning to death Accrued after, the reVelation of.theaboveiverSe Of Surah Nopr, The punishment of stoning is proved 'from the Ouran. This Is clear from the traditions of:Hazrat Umar and Hazrat:Imam Jaffa" Saddiq though their sayings required explanations.

The :sentence of stoning to death has always been considered to be a Hadd.

A questionnaire on this issue was sent to several Ulethas namely, Allama Syed Muhammad ..Razi, Maulana Muhammad EAnif Maulana Syed Fir . Karam Shah, Maulana Muhammad Taqi. Usmani and Maulana Najmul Hassan Kararvi. No reply to the said question was received from the last mentioned two Hgentlemen. The other three have given opinion in favour of rajam being a hadd.

It is true that the punishment of offence of adultery. was introduced by stages', In -Bani Israeel verse 32(17:32) It is commanded 'and come not near adultery Lo: it is an abomination and evil way". This warning was administered before the migration of the Holy Prophet to Medina, since Bani Israeel was revealed . at MeocaJhe second order is included in Surah Nisa verse 15(4:15) which was revealed in the 3rd year of Hijra, It is necessary to reproduce that verse as Well as-verse 16 which succeeds it:

"As for those of your women who are guilty of lewdness, call to witness four of you against them. And if they testify. (to the truth of the allegation) then confine them to the houses until death take them or (until) Allah appoint for them a way (through new' legislation)".

"And as for the two of you who are guilty thereof, punish them both.

And if they repent and improve, then let them be. Lo! Allah is relenting, Merciful".

The confinement in the houses until death was prescribed for women guilty of lewdness but it was clarified that this sentence would be operative until death or until Allah appoints for them a way.

Then was revealed verse 2 of Surah Noor (24:2) which is as follow:-

"The adulterer and the adulteress, scourge ye each one of... them (with) a hundred stripes, And.let not pity for the twain withhold.you from obedience of Allah, if ye believe in Allah and the Last Day. And let a party of believers witness their punishment".

It may be recalled that in verse 4:15 there was a promise by the Almighty that a way will be appointed for them later. There is a difference of opinion on the question as to when this way was shown or how the order of punishment in 4:15 was. abrogated. According to one view the abrogation was effected by 24:2 in regard to unmarried persons while the order about married women was repealed by the punishment of stoning. Others are of the view that the abrogation of 4:15 was effected by the traditions of Obada., bin Samie in which the Holy Prophet is stated to have said:- "Listen to me ... take it from me that God has found the way for these women, that the unmarried would be flogged and expelled from their homes for a year and the married ones will be whipped and then stoned to death. This is how the way promised in 4:15 was fulfilled" (Ehkamul Quran by Abu Bakar Jassas vol.II,page 107).

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In the view of the learned commentator the tradition of Obada bin Samit pertains to a period before the revelation of Surah Noor, Some jurists are of the view that verse 2442 applies both to married and unmarried persons but in addition the sentence of stoning should also be pronounced on a'married person.

There are anumber of traditions according to which the Holy Prophet ordered married"persons;guilty of fornication or adultery' to be stoned to death and the 'unmarried 'person to be flogged, The best known examples are as follows:

The 'Jews produced before the Holy, -Prophet a Jew and jeweas•whe were. guilty of adultery, The Prophet asked them about the punishment provided in the Torah, The JeWs did not initially state the truth but during the talk- with than it transpired -that stoning 'to death:was the only punishMent though the "Jews had changed this 'punishment arbitrarily_ What they did was to acquit influential persons and to punish poor persons- in the Community. This was resented by_ the community on which it was decided that a person committing the Offence shall be flogged and will be made to.ride a .donkey with his face blackened. The 'Holy Prophet acting in accordance with the Torah,- directed the culprits to be stoned to death.

2, Matz Aslami confessed his guilt of. commission of adultery: The: 'Prophet first dissuaded him in various, ways froth making the confession in 'order 'to. save him from Eadd but when he - persisted in his confession? the Holy Prophet asked him whether he Was married. On his, reply in the affirmative he was ordered to be Stoned to death, When he was: being stoned he ran away but was caught and again stoned. till: When this was related to the Holy Prophet he :commented that he Should have been allowed to go. A lady (Ohamadya), confessed her gui1477.- and said that she was pregnant as 'a result of...commission of the offence Of adultery., The:Prophet asked . he to return after, the birth of the child. When she came back after the bath she was asked to Suckle her child till the required age upto which feeding on mother's milk was allowed, She was so insistent that she returned, again after her child started living on bread, She Was then stoned to death-..

4.Two personsl came before the Holy Prophet, One made a complaint and asked for decision according to the Book of Allah,. He said that his unmarried son was acting as 'a :labourer in the others' house where he committed adultery with the others' wife. The boy was threatened that he Would ae; tonecicifto,'» death.. f; To c'app e a se: the c othp 1 a 'than t.".: he. hai:ICC

given one hundred goats and one female slave girl to him but after sometime he heard that, his son could be punished only by flogging. He asked the Holy Prophet to decide the matter according to the Book of God which he promised to do. The Holy Prophet directed the resto- ration of goats and the female slave girl to its previous owner and ordered the boy to be flogged with hundred lashes and to be expelled for one year while he directed the woman to be sto- ned to death in case she confessed her guilt. She was really stoned to death on the basis of her confession.

This is the tradition known as 'Aseef'. There is one another case related by Maulana Maudoodi in Tafheem-ul-Quran, vol.III, in his commentary on verse 2 of Surah Noor.

"It is reported by Jabir son of Abdullah (see Abu Daud and Nisaee) that a person., committing adultery was punished with hipping only but when it was Sound that he was married, he was stoned to death". (Also see Abu Dawood, Hadis 1029).

There is an instance from which it appears that Hazrat Ali punished Shuraha first to flogging and then to stoning. She was whipped on Thursday and stoned to death on Friday. This sentence was passed against her only on the basis of her pregnancy. (Bokhari.Vol.III, Hadis No.1716, p.631).

There is also difference of opinion oA. the question whether the incidents in the life time .of the Holy Prophet occuvd before or after the revelation of Surah Noor, verse 2 (24:2).

14.Now reference may' also be made to Surah Nisa verse 25 (4:25) and Surah Afab verse 30 (31:30). These two are as follms:- 4:25 "And whoSo is not able to afford to marry free, believing women, let them marry from the believing maids whom your right hands possess-. Allah knoweth best (concerning) your faith. Ye proceed one from another, so wed them by per- mission of their folk, and:,give unto them their portions in kindness, they being honest, not debauched nor of loose con- duct. And if when:they are honourably married they commit lewdness they shall incur half of the punishment

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(prescribed) for free women (in that case). This is for him among you who fearth to commit sin. But to have patience would be better for you. Allah is Forgiving, Merciful".

33:30 "0! ye wives of the Prophet! Whosoever of you committeth manifest lewdness, the punishment for her will be doubled, and that is easy for Allah".

erh) It was on the basis of these verses that it was argued that if the sentence of Rajm or stoning had been a hadd, these two verses could not be reconciled with it since the sentence of stoning to death can neither be halved nor doubled.

16.The first question is whether the punishment of stoning is provided in the Holy Quran. The learned Counsel for the Federal Government argued in support of v the proposition. He referred to the words jUll andArq,2, in 24:2 and submitted that the prefix ti; is used in Arabic to convert a word. into a proper noun. The prefix ( in61}1evt.A 9. 191 pointedly refers to some other verse and this verse according to him is verse III of - Surah Noor "The adulterer shall not marry save an adulteress or an idolatress, and the adulteress none shall marry save an adulterer or an idolater. All that is forbidden unto believers".

in which also words 6'2/ and ckOdel l have been used. He also referred to a passage at page 166 of Mushkilatul Quran by Maulana Anwar Shah Kashmiri in which he states that in verse 24:2 the reference is to unmarried persons who are directed by 24:3 to marry adulterers or adulteresses. The learned Counsel could not however explain how the prefix di can be explained in 5:38 which provides that as for the thief, both male and female, cut off their hands4 The verse uses the word6%LA,9?'L,Awith prefix ji Similarly be could not explain to which. particular 'camel the verse .,..“40,J , refers since the word' .

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(camel) is preceded in that verse by the prefix JI 9oo The definite article J is used in Arabic to convey several meanings:-

1.To define the genus or species of a thing It is calledi_Lty For example Man is better than woman or )29)6,9e2ii.e.,the spades of man is better than the species of Woman, 2, To point out a particular thing which is understood by both addresSor and the addressee. It is called :,71),Lii)P, For example 001 t,.(What did 'the man -do!) lic) include ill possible kinds of a thing. It is called c.S)24,,'I. For examplept,9) :All (kinds of)praises and thanks belong to Allah. It is also used in the sense of usn1 J.(relative pronoun), According to Imam Razi (d.606 A,H/ 1210 A.D.) and Allama 2Amkhshari (d.538 A.H/ H1114 AJY.)., the definite article used in verse of Surah al-NoorHhas been used in this: meaning. Zamkhshari says: ' ' t?)

96.2 Li-1(0 ) M, J}-9) (j-" JA9 (f)j 1, C;

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2amakhshari, Al Kashihaf (Printed in Beirut) (Pp 1 208? 209), Fakhruddin Razi, Tafsir-i- Eabir;(printed in Cairo): VoL23 page 130. This is: the correct view. The argument is without forte, The reference to 2413 does not solve the problem. that verse 'refers to marriage between an adulterer and an adultereSs but it is not nedessary that marriage should be Only between persons who had neVer married before. The direction may equally apply to an adulterer having legs than four wives. who has a right to marry a fourth one. Similarly the adultress may be a widow. Or again the 'male and female both may. be divorced persons. It would not therefore, be correct to say that 24:3? relates only to persons who have 'committed adultery during virginity or when they were Lreti.5' (unmarried).

Before proceeding further I may clarify this definition of Mohsan so far as it concerns this case. Mohsan for whom the punishment of atoning is prescribed by hadith is defined in fiqh with the as a: per son who: has once married legally and had validly retired

9 tA)-(14 spouse. If he separates from the spouse or becomes a widower or had no opportunity to meetL her for several years he would still be a Mohsan (married) liable •to the punishment of rajam. (7-\ But the criticism of Rashid Raza on this point is Liz enlightening. While dealing with the interpretation of the word Li Walmohsanat ( J_:,t51,) in verse 4:24 (the first word of Part 4 of the Holy Quran) he writes that it is the plural of the word Mohskna ( SeJ ). According to the general version the word is 10'" filsr›..4 ( /1'

derived, dapa, but Kasai reads it as Mohsina ( ) and the word Al-LTasan is derived from Hasana ( fr> ) which Means a protected place where entry is banned. And it is said the word Hasonat-ul-Maraa ( -49kIlba" ) is used in the sense of a pious woman. These words are used in relation to a woman who is married since she comes in the protective custody of a man (her husband) and it is said that as soon as she is married her parents mage her Mohstna ( ?Pe")). It is one of the chracteristic of a married woman that she forbids herself to all othert except her husband in the same manner as she prohibits her husband from going to other women (except his wife). At page 20 while dealing with the word Mohsanat ( ) at the end of verse 4:25, which deals with the punishment of adultery committed by a married slave girl that it would be half-of those who are Mohsanat ( C14;!-,) he refers to the view that a woman becomes Mohstna ( ) when she is once married though she might have been divorced or becomes a widow later. But he does not agree with this view she cannot have the

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advantage of being called Mohseinah if she has no husband who can protect her ( (25:4-1.). Once she is separated In the manner afore- said she cannot be called Mohstna ( ) in the same manner as she cannot be called Motazawwija ( married), or as a traveller who. has returned from his journey can no more be called a traveller or again a patient who regains his health can no more be known as patient.

Rashid Raza further criticises those who cannot Al-Mohsitat ( ) with virginity. According to him her protection (after divorce or widow-hood) is dependent upon her own nature which may fortify her against mixing with men, but this cannot be an equivalent

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of fortification or protection of one whose Marriage subsists,:He is of the opinion that in these circumstances a divorcee lady or a widow should not be administered the punishment of a person whose marriage subsists. In respect of punishment she is like an un- married person, He Writes that according to his research some of the Arabs in Yemen punished virgins as well as married Women with death if they committed adultery but they punished widow or divorcee neither with death nor with whipping since they considered them helpless in this respect.

The wide interpretation of the word Mohsana ( r)j“/ ) is not in the Hadis since there appears to be no data to show that Maaiz or Ghamidia were without wife or husband respectively when they committed the offence. The opinion of Ayat-Ullah Shariat P )) page 468 also Madari (see his Tawzihal Masail ( 0,u,A)C) appears to be the same since he limits the sentence of rajam to cases of married persons whose marriage subsists. According to Mulla Fateh Ullah Kashani (vide Manhaj-ul- Sadiqin Vol. 7111 P. 266) Muhsan/Muhsana means a person who is properly married and who is in a position to enjoy the company of the spouse, It appears from the opinion of Allama Syed Mohammad Razi that fiqh Imamia does not recognise a person as Muhsan whose spouse is not with him/her, This view which is supported by Rashid Raza appears to be more reasonable.

Attempts to prove from the Holy Quran that verse 24:2 applies only to unmarried persons has been made by others also. Maulana Maudoodi in his commentary on verse 2 of Surah Noor (24:2) .referred in this connection to verse 25 of Surah Nisa (4:25)which provides for a married slave girl half the sentence prescribed for a mohsana. The word mohsana has been used twice in this verse in the sense of free woman. Thei verse says that whosoever is not able to marry among free woman (::;//) let him marry from among the slave girls and if she then commits lewdness she shall incur half the above punishment prescribed for free women, c_-_;d). Verse 4:25 has been similarly interpreted by Ibn Qutaiba, Qurtabi (Vol.V.P.145) Fakhruddin Razi (Vol:10, page 60) and Abdul Majid Daryabadi. The same interpretation is found in Madarik and Mualam-ul-Tanzil. Peer Karam Shah holds the same view in his book Sunnat-e-Khair ul Anam P. 238,

The argument of Maulana Maudoodi and the commentators mentioned above is that the word Mohsanat at both the places should be interpreted not only as free women but as free women who are unmarried, It would follow that the sentence prescribed in 24;2 is for unmarried free women only,

lug (.4 In my opinion this would amount to stretching the meaning beyond reasonable limits: The Word Mohsinat. in verse 25 of Surah Nisa (4:25) used in its first part no doubt would mean a free woman who can legally marry but this is on account of the context in which the word is used i.e., a free woman with Whom marriage •can be arranged. Such a woman may be divorce or may be a widow. It would not be correct to stretch it to mean a woman who has never married. However in the later Part of the verse this word is used with reference to the sentence of a married slave •girl. In that context it should mean a married free woman so as to correspond to a married slave 'girl. It would, therefore, be futile to interpret verse 24:2 in the light of the language of 4:25. The converse would, however, be true: The half sentence for a slave girl clearly has reference to the 'sentence •in verse 24:2 which does not discriminate between a married and an unmarried person. Same is the opinion of Rashid Raza. At page 21 of Tafseer-ul-Manar, vol.III, by Rashid Raza, it is said that on the prinCiple that verse of Quran may be. 'interpreted in the light of some other verse, it appears •that a slave girl cannot be subjected to hadd unless she becomes a Mohana (Married), but as far as a free woman is concerned it is clear from verse 2 of Surah Noor :that she will be flogged with one hundred whips whether she is married or is a widow or a divorcee or again whether she is a virgin. He interprets the Word Mohsknat in the light of verse 4:25 in the sense of free women who are married. . He refers to the interpretation by some jurists who on account of the order of rajam in Sunnah for a married women have interpreted the word Mohsknat as virgins on the ground that it is used in comparison with slave girls, bUt he has shown his disagreement with this interpretation on the ground that here there is a comparison with,slave girls who are married and not those who' are unmarried.

I may also refer to the other argument of the learned Counsel with 'reference •to verse 43 of Surah Maida (5:43) which is as follow:- "How come they unto thee for judgment when they have the Torah Wherein Allah hath delivered judgment ( (lint' )(for them)? Yet even after that they turn away. Such .(folk) are not believers".

Relying upon this the learned Counsel argued that the reference to Vice Hukamuilah (order of Allah). in this verse is to the punishment of rajam (stoning) and Quran therefore; recognises rajam as a punishment ordained by Allah. In Adwar-i-Fiqh by Mohammad Shahabe Khorasani 2nd Ed, p.251, this view is attri- buted to Imam Baquir too that the punishment of stoning'in Torah was never abrogated and remained enforceable in Islam.

Even this argument would not be relevant since there is no doubt that being prescribed in the Torah as a punishment for adultery it was a punishment ordained by God. But it cannot mean that it is a punishment in Qurann-also for a married adulterer. In the Torah no distinction was made in regard to punishment of an adulterer whether he was married or unmarried. The distinction is recognised for the first time in the tradi- tion of Obadah bin Samit which according to eminent jurists was abrogated by verse 24:2 and that verse was repealed-by the practice of the holy Prophet in the-cases in which married adulterers were subjected to the sentence of stoning. This argument is not strong enough to dislodge the inference to the contrary which is inherent in the above verse (5:43) which makes pointed reference to the incidents in which the Jews approached the holy Prophet for trial of adulterers among them so as to emphasise its applicability to the Jews only.

An argument on which the sentence of Rajm is treated to be one prescribed by the Holy Quran is a tradition of Hazrat Umar. It is said that Hazrat Umar showed an apprehension that there might come a time when people may deny the existence of the punishment of Rajm in the book of Allah and they might give up the practice of stoning of an adulterer to death. He said Ydalam that a verse pertaining to/was revealed on the holy prophet which "we recited and committed to memory". The holy prophet stoned (culprits) and after him we also stoneeHe recited the verse as e) (If a man and woman of advanced age commit adultery, stone them).

According to a tradition narrated by Imam Ahmad Hazrat Umar said in a sermon that people say that the order of rajm is not in the Book of Allah; the only order in the Book is of whippinglf he had not been afraid of the charge that he had made an addition to the Quran he would have written this verse in the Book.

The Jurists have mostly relied upon this tradition obviously, for holding that this was a verse in the Quran which has been deleted from it but the order in it remains effective for all times to come.

This is a very strange argument. There are instances of repeal and abrogation of verses in the Holy Quran. According to some the number of such verses may be more than five hundred, according to others it is nineteen but in the opinion of Shah Waliullah there are five verses of this type. The fact, however, remains that there are instances of abrogation but tleabrogation in the sense of an abrogated verse becoming totally ineffective is capable of being illustrated. Any concession about certain verses having been deleted from the Quran would logically amount to conceding its absolute abrogation and its order having become totally ineffective and inoperative. It is difficult to agree that the order in a verse deleted from the Holy Book would remain operative. To the same effect is the view of Maulana Ameen Ahsan Islahi in Tadabbarul Quran vide his commentary on Surah Noor,

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Verse it. He is of the view that this tradition appears to have been forged by some unbeliever in order to prove that Quran is not a complete book and consequently the promise of God guranteeing its protection for ever is not true. According to him the language of the tradition referred to above is not similar to that of Quran and very unlike even the language used by the Holy Prophet.

Moreover the words el and mean an old man and

an old woman and not a married man and a married woman though in Mowatta of Imam Malik is recorded the opinion of Imam Malik that they are used to convey the sense of married man and woman.But it is not necessary that all persons of advanced age should marry.

At page 101 of Volume V of Kitab-ul-Fiqh alal Mazahibul arbaa the words (If a man and a woman of advanced age commit adultery stone them both, and extmplary punishment from Allah) are said to be words of the Holy Prophet.

There is another tradition from Abdullah bin Abbas that Hazrat Omar used to say that stoning is in the Book of Allah. It is true that the adulterer whether male or female will be stoned if he is married provided the adultery is either proved by evidence or by pregnancy or by confession (Mowatta, Imam Malik, printed by Islami Academy P. 598).

In this tradition no reference is made to the words of any verse. This is reproduced in greater detail in Abu Daud Vol. 3 Hadis No. 1111 but the actual words of the verse are not reproduced there.

In Ibn Maja published by Dini Kutab Khana, Vol. 2 P. 106 the words of the verse stated by Hazrat Omar aresaid to be it) b •el

11/1 IP,. t; 1, At P. 120 of Vol. II of Kitab:ul-Fiqh alal Ma:zahibil arbaa there is an addition of the following words after the above mentioned words ./;->/414? cecd4 (as penalty for the enjoyment) but in Al Hadis *PA c.f" tC2-'" by Alhaj Fazal Karim-Vol. 2 the addition after the word 2:4) is ri r Ci.

eximplary punishment from Allah, and Allah is powerful and wise).qhus.,eyen the language of the alleged verse

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not uniform, It is also incredible that If these words were ever) part of the Quran they should halve been:known to Hazrat Omar only, At least one thing is eVident from these traditions that in the time of Hazrat Omar too when most of the Companions of the holy Prophet were alive it was, widely believed that rajam 'was not provided: for in the holy Quran (Book of Allah) and the sentence Of whipping was the Only punishment. for 3 . g, It t ayi would therefore be in-correct to say. that Kharjees were the first to deny the divine mature of the command in respect of rajm. The prevalence of: this opinion during the reign of Hazrat Omar is proof against Rajam being A Quranic Hadd, This finds support from the tradition of Hazrat All to which reference will be made later, 'It cannot be accepted that a person of Hazrat Omar's courage and dauntlessnesawho was noted for expressing his views fearlesaly even:before the holy Prophet would be afraid of adding a verse to the :Holy Quran which according to him was ,a part of it. In fact it 'should already have been incorporated in the Quran by HazratHUmar and other Companions Who had helped in the compilation of the Quran during the Caliphate Of Hazrat Abu Baker, The story of Gompilation of the Quran nay-be reproduced from Alfarooq by Shibli Nomani,

"It cannot be denied that the compilation and arrangement of the Quran: the preparation of its corredt copy in order, to guard against (tampering) and (diffusion of its message) by -making its study necessary in all countries;

everything was the result ofyvigilance and care of Hazrat Umar. It is a fact that the Holy Quran had not been compiled during the period Of the Holy Prophet. Its various parts were With various Companions,-Some of them were written On (Shoulder) boneS:(of big animals) others on the leave of date trees and still other On stOne tablets,. No one had memorised the entire Quran. Some persons remembered one chapter_ while the Others rethembered the other, In theHbattleYwitfluskalma the liar (Kazzab) during the reign of.Abu Baker hundreds of Companions including those who had memorised the

Quran had been killed. After the War Hazrat Umar approached Abu Bakar and said. "If those who know the Quran by heart die in this manner, the Quran will be lost". It was, therefore, necessary to arrange and compile it. Hazrat Abu Bakar said "How can I innovate something which was not done by the Prophet of Allah". "Hazrat Timer argued before him the necessity and ex- pediency of this action till Hazrat Abu Bakar agreed with him. Most •of the work of writing revelations had been conducted from among the Companions of the holy Prophet by Zaid bin Sabit. He was, therefore, called and commissioned to carry on this project and to collect the verses or chapters •of the Quran from all sources available. Hazrat Umar made an announcement in the common assembly that whoever had learned any portion of the Quran from the Prophet of Allah should take it to him. It was arranged that whenever any verse was presented by any Companion, it was subjected to scrutiny by the evidence of two other persons who had seen it being scribed during the •life time of the holy Prophet. When all the chapters were thus collected some Companions were appointed to supervise the • writing of the Quran in one Book".

The author has given details of a number of steps taken by Hazrat Umar to make the reading of Quran coMmon and universal. He writes at page 413 that Hazrat Umar ordered that every one should learn atleast the main chapters of the Quran which contained orders and duties i:e, The Cow (Chapter II); The Women (Chapter IV), The Table Spread (Chapter V) and The Light (Chapter 24). The Surah Noor (The Light) was one Of the Chaptets which it was necessary for every Muslim to learn and it is in verse II of this Chapter that the punishment ofimojaam is given. It Is also well known that Hazrat Umar fixed 20 Rakats of Taravih during the Esha Prayer in Ramzan so that the Whole of the Quran may be 'recited in it during Prayers. More- over the copy of the holy Quran compiled by the first Caliph accord- ing to one tradition remained in the :custody of Ummul Momineen Hifsa who was daughter of Hazrat Umar. According to another tradition re- ported in Bokhari in Kitab Fazail ul Quran from Zaid bin Sabit AAA this. copy remained in the custody of Hazrat Umar during his Caliphate and passed on to his daughter after his death. Tairkh-.e-Afkar-o- Ulume Islami by Mohammad Raghib Altabakh translated by Iftikhar Ahmad Balkhi pp, 118,121. Hazrat Umar himself became the second Caliph only 2% years after the 'death Of the hdly,Prophet. In view of this it is not believeable that Hazrat Umar would not incorporate the verse

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about Rajam,in the Holy Quran if it was actually a part of the Book of Allah. It cannot also be believed that he would shirk hia duty of adding to the Quran what was part of it, merely on apprehension of public criticism. He was a leader and guide par excellence and would rather guide his subjects than keep the Book of Allah inncomplete for fear of criticism. 'tot at that time when the Companions of the Holy Prophet were alive unanimity could have been achieved for the addition of this verse if it had been a part of the Quran. I am therefore, in full agreement with the Criticism of Maulana Amin Ahsan Islahi. Even the Commentators of the Quran prominent Jurists and . Ulema do not treat that verse as a part ofthecQuran; They have found it a more convenient contrivance to discover a strange principle of the divine order remaining in force notwithstanding the abrogation and effacement of the verse from the holy Quran.

The words attributed to Hazrat Umar have been critiCised in Tadwin-e‘Quran.(pages 75,76)(which is based on the views of Maulana Manazir Ahsan Gilan9, written by Molvi Ghulam Rabbani.

-Allama Allusi has criticised this at page 70 of volume 18 Maani,"And people have gone to the extent that they treat this verse: 24:2 as having been abrogated by the verse recitation of which Is abolished but its command - is infrorce'. Ibn-e-Hamam says that if the abrogation be by certain and final Sunnah it would be more approved than the abrogation by the verse stated above, because it is not definitely proved that it is Quran and its recitation was stopped. If it is said that Hazrat Umar mentioned it before the people and they kept quit, there is a differenCe whether there can be Ijma by silence and if we assume this to be a definite argument we are not sure whether all the Companions having the capacity of Ijtihad were present.ther.eahere is no doubt that the source of this verse which is taken to Umar is conjectural ( (pb ). For this reason Ali said in the matter of Shuraha that she was whipped according to the Book and stoned according to Sunnah and he did not believe in cutting off the generality of the verse by the principle of abrogation. His opinion is that stoning is an order in addition to whipping in respect of married person and this is proved

from Sunnah".

At page 320 of Adwar-i-Fiqh by Mahmood Shabahe Khorasani Vol. I Ed.II, is cited an interesting view of Abu Muslim that the Offence of adultery is punishable with death vide verse 4:20 (In Pickthall's translation it is verse 4:16)..This verse commandA f.

cas)7' 1 1., ui ;fi, (As for the two of you who are guilty thereof torment them). According .e to Abu Muslim the word Lent,(torment them) means killing; and this command has never been abrogated. But Aasan Basri is of the view that the order of torment in 4:16 is prior p54n the order of confinement of women in 4:15 and stands abrogated by the order of flogging. Various attempts have thus been made to show that rajm is in the Koran.

According to Hazrat Ali on the other hand, stoning is the Sunnah of the Holy Prophet. The relevant tradition No. 1716 of Bokhari Vol. 3 printed by Mohammad Saeed and Sons, at page 631 is as follols:

"Adam, Shaaba bin Kohail, Shaabi narrate from Hazrat Ali that when he (Hazrat A4) stoned a woman on Friday he said "I have stoned her in accordance with the sunnah of the Prophet of Allah".

Some commentators also are of the view that while the Aq0 sentence of flogging Ak ppl4r PIN prescribed by the Quran for unmarried persons the sentence of stoning was prescribed by Hadith. Irt itnt some FlaularlataglidllaiiciperYabadlinhis commentar Y,15

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days after the revelation of that .verse Surah Noor was revealed and specified the sentence of one hundred whips for an adulterer and adultress Apid the Sunnah of the Holy Prophet clarified that this punishment was for unmarried persons while for the married persons the punishment is of stoning. In support he refers to Maalim that An verse 4:15 was evealed before the Had was prescribed.. This was abrogated by the order of whipping and stoning while whipping is in the Quran, the stoning is in the Sunnah.

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The view Of Zahirisde Zaidya, Shias and 'according to one version;of Imam AhMad is •that verse 24:2 applies- both to married and unmarried persons and stoning is proved from Suhnah. Tilka Hudood Ullah by Ibrahim Ahmad Aiwaqfi., p.55. Qurtabi, Zailai and Allama Alusi shares the same Opinions. Qurtabi's Ehkam Ul Quran, vol.5, p.87, Zailais' Tabeen-altqhiq fi Sharat Kanzul Dagaiq. vol.3,• printed in Egypt, 1313 H Edition p.169. Ruh-ul- Maani, vol.18, p.73 by Alusi,Khizri Bak also holds the same view see his Tarikh-i-Fiqh, p.129.

I am of the view that stoning of a married person committim adultery is not proved from the holy Quran nor does verse 24:2 discriminate between a married and an unmarried person in respect of hadd.

Abdullah Yousuf Ali is of the view that while 4:15 does not refer to adultery or fornication but only refers to crimes against the order of nature between women, 4:16 refers to unnatural offences- between the hales-. The Sentence of whipping is however, both for adultery (illegal relations between married persons) and for fornication (similar relations between unmarried persons). The - view of Allama Yousuf Ali about the scope of 4:15, 16 is not, according to TafheeMul Quran, an original view; this was the view of Abu Muslim Isfahani who in his commentary wrote that the first verse 4:15}was about lesbianism while the second one 4:16,, was about homosexual relations between males. Maulana Maudoodi disagreed with the commentary. According to him the companions of' the holy - Prophet did not apply the second verse to homosexuals. Another opinion is that verse 4:15 and 4:16 conceived of sexual offences which fell short of adultery. I however, agree with the ,.general opinion that the 've1±se3refe1'.to adulterers. In the historical contekt the:first step which was takeh by the holy Quran was to denounce adultery, which was rife amongst Arabs, as abominable, vide Bani, Israeel, verse32 (17:32). The second step stp-4-;

of confinement (4:15) and causing torment '(4:16). The next

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queetion., is whether rajam was prescribed as hadd by the Sunnah of the holy Prophet.

There is the tradition of Obada bin Samit. He reported that the Messenger of Allah Said: "Take from me, Take from me." Verily Allah - chalked out nay for theh; (fornication of) a virgin with a virgin-100 stripee and exile for a year: and one married with another married-100 stripes' and stoning to death". (Muslim Printed by Quran Mahal vol.11, p.782 (Hadis 1911)).

In Arabic the tradition:is as follows.:

)jr j (?),2 .:)() o) ) - oP t=

V A )

eL) 2.P L'taj 'f11;11j LIP alj Zlj t' AP. 7)jj jj) (7\., In Mishkat the wordscitivl have been used instead of t;ea'ri but the meaning is the same. (Vol,. II printed by Dini Kutab Khana, Urdu Bazar,'Lahore page 204).

There is another tradition reported from the same source and printed at page 783 of (Hadis 19110"4.1140 in which Obada

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bin Samit is said to have stated that when the Messenger of Allah received any revelation (d5) he used to feel some hardship which • changed his colour. Before saying the words (in the above Hadis No. 1911) "he had undergone the same hardship". The object of this tradition is that the Tradition No. 1911 in Muslim also amounted to a revelation though it was not a part of the Holy Quran.

ic,ML There is a difference of opinion whether the words in the tradition, of. Obadaibin Samit were uttered by the Messenger of Allah contemporaneously with the revelation of Surah Noor (or soon after) or they were uttered before the revelation of Surah Noor -(242). The question is important since in case of contemporaneousness the tradition may be an interpretation of the verse and the latter may be held applicable to unmarried persons only. But in case it is prior in time its order will be considered to have been abrogated by the order in theverse'(24:2) and the Hadd for married and unmarried both will be flogging. ATn The learned Counsel for the Federation was of the view that the revelation of the words in the tradition of Obada bin Samit - coincided with the. revelation of Surah Noor as an explanation by the Almighty Allah of verse'24:2. In support of this'he referred to the opinion of Imam Shafi, in.Ahkam-ul-Quran printed in Beruit Vol. I pages 304 and 305. The purport of'this is "that the punishment in 4:15, 16 about confinement in the house and causing pain to the adulterer was abrogated in respect of each category of adulterer, free or slave, unmarried or married by the hadd imposed by , Allah, and the hadd was imposed by Allah on the unmarried free persons by verse 2 of Surah Noor (24:2). In the tradition of. Obada-bin-Samit

reference is to the verse 4:15 "till either the death Over- takes or a way is proclaimed by Allah". When the verse about hadd was revealed (24:2) the Messenger of Allah said "take it from me. Allah has chalked out a way for them. (Fornication of) a virgin with a virgin(is punishable by) a hundred stripes and expulSion for a year; (adultery by) a married with a married person (shall be punished by) a hundred stripes and stoning°, In support of stoning of the married person and abrogation of the punishment of stripes from him is the hadis of Timer ( ;,..:;lb?t) and hadis of Abu Huraira and Zaid-bin Ithalid that when a man committed adultery with the wife of another person the Measenger. of Allah said he would decide the dispute between them (i.e., between the husband of the Woman and the father of the boy who had comMitted adultery). according to the 'Book of Allah, He punished the boy with hundred stripes and expulsion for a year and ordered the woman in case she confessed the crime to be Stoned, She Was actually stoned on her confession," In Adwar-i7figh by MehMood Shahabe Khorasani, vo1,1 7 (2nd Ed), page 254,,. the Same 'opinion is attributed to AbUl 7atahMinhaq, lbn 2aid, Abdullah Abbas, Mujahid, puttada, Suddy etc, An opinion frOm 'Altibiant ( 1-3.fdtjl) is. cited that" when the verse Was revealed the Prophet said what is recorded in the Eadis-of Obada bin Samit, This view that verse 4:15 was abrogated by .verse 24:2 is also expressed by Abu Daoud at the end of hadis No.1007 at page 376 of the third volume printed by'Muhammad Saeed and Sons, To the same effect is the note bf_Maulana Waheed-uz-Zaman -( translator of Sunnan Abu Daud) which: is according to an opinion of Imam Abu Hanifa.2amakhshris' Al-Kashaf ( th',4 t ), v01,3, page 4.8,

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It appears from Tafheem-ul Quran of Maulana Madoodi also that the hadd of flogging in verse 24:2 was revealed in pursuance of the promise made in verse 4:15 to show the • other way to deal with the offence of adultery. From this it can be deduced that accord- ing to MAULANA Madoodi. verse. 4:.15 was abrogated by .verse 242. Maulana Abdul Majid Daryabadi also agrees with this view.

The view of Imam Jafar Sadiq on this point Is not clear but it appears that according to him the abrogation of verse 4:15 was by the order of stoning a married person and flogging an unmarried one, see Tafseer-e-Mutaqeen on verse 4:15 printed by Shia General -Book Agency. The commentator - has referred for this view to Tafseer-e-Safi, page 105 and Tafseer-e-Eyashi. The view of Maulana Mahmood-ul-Hassan is also vague in this respect since according to his commentary of verse 4:15 that verse was abrogated by Surah Noor which provided for hundred stripes for unmarried woman and stoning for a married one. It has already been seen that the holy Quran does not make any provision of stoning.

The other view that the tradition of Obada bin Samit was much earlier in point of time than the revelation of verse 24:2 is held by a number of Jurists who are of the view' that the order in 4:15. was abrogated by this tradition and not by Surah Noor verse 2. At - page 107 of Ehakam-ul-Quran vol.2 and at page 257 of the 3rd vol of the same book by Abu Bakar, Jassas is recorded the difference of opinion on this point. He states that according to some jurists the verses pro- viding for confinement of women and severe treatment (4:15, 16) were abrogated by Surah Noor .(24:2) in so far as. the punishment of flogging was provided for unmarried persons but in regard to married women tglgf imprisonment

remained in the field which was later on repealed by the order providing for stoning. The other renowned jurists said that verse 4:15 was abrogated by the tradition of Obada Bin Samit in which the Messenger of Allah said "take it from me. 4 Allah

has chalked out a way for them"

,V1(4# ZA(

Or' which is the same promise as made in verse 4:15. He states that this view is correct because Surah Noor had not been revealed by that time. The same view is held by Sarkhasi He says:

"In the begining,the order was to confine in the house and to torture.... Then it was abrogated by the Hadis of Obada bin Samit ' take it from me Allah has chalked out a way for you- unmarried with unmarried - punish them with one hundred whips and exile them for a year and if married commit adultery with a married one CTlii%flthem, with hundred whips and stone them' and this happened before the revelation of Surah Noor for the reason that (the prophet said) ' take it from me.'. If it had been after the revelation (of the surah 24:2) he would have said 'Take it from Allah'. This order (Hadis) was abrogated by the order, of flogging a hundred times'? See -Mehsat f Sarkhasi Vol. 9 page 36_

Ibn Qudama who belongs to Halabli school of thought also states in Mughni Vol. 9 page 3 that verse 4:15 was abrogated by the tradition of Obada bin Samit. He then adds as follow:

"And the question (is) how Sunnah can abrogate Quran. Those who believep in its lawfulness say that all this is from Allah whatever different avenues may have been adapted. But those who do not consider it lawful and do not accept the proposition say that there is no abrogation of the Quran (by Hadith)"

The argument of Sal;khtsi is that in the tradition of Obada Bin Samit the Holy Prophet said "take it from me" If it had been after the revelation of Surah Noor he would have said "take it from Almighty Allah". I would add that reference in this tradition to the promise made in verse 15 of Surah Nisa (4:15) or "Until Allah appoint for them a way" further proves

t

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that the Hadith must have been an inspiration in fulfilment of this promise and must have been prior to the revelation of Surah Noor, since, it starts with the words 'take it from me' Allah has chalked out a way for them. It also proves that the way promised in 4:15 was disclosed in the tradition of Obada bin Samit. a Same comments are given on this Hadith in Sharah-uz-zaili alal matan Vol. 3 page 173 which is quoted in•Nizam-ulJW-e'em-wal Iqab fil Islam by Ali Ali Mansoor. The view that Hadis of Obada bin Samit was prior to the revelation of Surah Noor is more reasonable.

Sarakhsi then adds that after the revelation of Surah Noor the order of whipping remained applicable •to unmarried persons while the order of stoning continued in •respect of. married persons.

According to Sharah-uz-zailai-alal-matan ( ip),r(rr)dier# ) the tradition of Obada Bin Samit was repealed by Surah Noor verse 2. But •the order in that verse about flogg.Sng Was abrogated by the stoning of Ghamidia and Maaiz both of whvgere married persons The arabic text to this effect is as follows: , el •

sy) Ap u comwocr, to) ,11: ,})

Si))0 !“...; pis

)),), " IP }P

i ft

(A__5

u Ai! (..) csu

S 2

di fi cr -1A-))1))(24f•J Q-nd j" cub e dryli

The opinion of the majority is that the Hadis of Obada bin Samit stands abrogated by the principles laid down in the ' incident of Maiz. Fathul Bari Vol 12, Page 119. The view of Allama Alusi is that the order in verse 24:2 is general and is applicable to married and unmarried.persons alike but in respect of married persons it was abrogated by order of Rajam practised by the Holy Prophet. Ruh-ul-Maani, V61. 18, Page 70.

I may again refer. to Ehkam-u1.-Quran by Jassas. His view about the Hadis of Obada bin Samit being prior in time to Surah Noor has already been noticed. According to him this is an argument in favour of abrogation of the Quran by Sunnatat pages

(Tr7)

255-257 of Volume 3 of his above mentioned book he has referred to several views.The first is that the order in verse 4:15, 16 was abrogated by. verse 24:2 in respect of unmarried persons only. In respect of. married persons it was abrogated by the tradition of Obada bin Samit. Now this Hadis is about both i.e. unmarried and married persons and Jassas held the Hadis to be prior to verse 24:2. In view of the opinion about partial abrogation he concludes that the order of exile in the Hadis was also abrogated by the above verse and consequently exile ceased to be a Hadd and . can be administered now by way of Tazir only.

/-11‘ • He refers to the view that verse 4.:15 deals with married women who were ordered to be Onfined while verse 4:16 directing the culprits to be tortured is in respect of unmarried persons. Verse 24:2 only abrogated verse 4:16 which pertained to unmarried persons. The order of confinement in verse 4:15 remained in force till it was abrogated by the order of stoning in the Hadis of Obada bin Samit. ,

S•

This last argument is too mixed up .and ignores firstly En the question whether the Hadis of Obada preceeded or succeeded Surah Moor; and secondly.the language of the Hadis that it

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pertained both to married and unmarried persons. If it Was prior . to surah. Noor and one verse in Surah Nissa.(4.:15) referred to married and. the other (4(16) referred to . unmarried rersons, personsLthe order in both the: verses must undoubtadiy have been sub- the order in the Hadis. This argument does not justify itLi 4.1;

the limitation on verse 24.:2 )504g applicable to,unmarried persons only. Maulana Maudoodi did not agree with this. view which .4ascri d to . Suddy,see'Tafheem-ul-Quran verses 4.:15,. 16.

There has been some difference of opinions on the question whether the incidents in which the Holy Prophet sentenced married persons with stoning preceded Surah Noor or followed it. One view is that all these incidents were prior to the revelation of Surah Noor. The other view which is to the contrary is based interalia on the ground that according to Bukhari, Abu Huraira a4.4 was present at the time of the incident of Aseef fAile Surah Noor

was revealed from the 4th to 6th Hijra, Abu Huraira was converted to Islam and became a companion of the Prophet in the 7th Hijra. Imdat Ul gari Vol. 23 page. 291, Fathul Bari by Ibn Hajar Ascialani, Vol. 12 P, 119, It was also argued before us that in the incident of the Chamidia a stone was thrown on het by Khalid bin Waleed and he became a convert in the 8th Hijra.

The last argument does not appearp to have been noticed by Commentators, - Moreover there :± no unanimity as to when Khalid was converted to Islam, According to the book "sword of Allah" by Maj. Gen;:A,T, Akram page 787 the year of conversion of Khalid is the .8th Eljra but according to Tabari Khalid bin Waleed had already accepted Islam before the treaty of Hudaibia which was written in the 6th. Hijra. Ibn Saad in his Tabaqat says that there are two versions( as to who was sent by the infidels of Mecca with 4 contigent of two'hundred persons to Hudaibia before the treaty. According to one Version he was :Mend bin Waleed but according x to the other the person, commanding the contigent was Ikrama bin Abu jahl, Nothing therefore, turns on this argument.

The assumption that Abu Huraira was present at the time of incident of Aseef is based on the 'version narrated in Bokhari that Abu Huraira and Khalid narrated LA Pl. (and said we were present) similar narration is in Tirmizi and Ibn Maja. But these words are not reproduced in Muslim or some other books including Mishkat. This creates doubt about the authenticity of the above version in Bokhari. It appears to me that the boy must have been sentenced to flogging and exile both in accordance With the direction in the tradition related by Obada bin Samit which was abrogated by surah Noor. The incident of Aseef in all probability was prior to the reVelation of Surah Noor. I find support for this from Musnad Imam Azam printed by "mid and Company, At page 1.61 it is recorded that this incident was of early Islam as Baihaqi has said.The words CA )0-9 in Bokhari cannot be relied upon in layout of theeargliment-7) to the Contrary, Then there is the Madis of Abdulla bin Aufi which throws doubt on - theSe incidents being later to Surah Noor. He said that the holy, Prophet inflicted the sentence of rajam. When asked whether it was. before Surah Noor or after, he said he did not know.

T;

In Adware-ftqh by Mahthood Shabahe Ehoragani Vol.I a passage pertaining to the Chamidia woman is. cited from Al Muntaqua. According to it that incident took place in the ninth Hijra but according to Nizam7u1-Tajtim Wal Iqab fil Islam by Ali Ali Mansur P. 172 lmam..AbuHan.ifaa the authenticity of this Hadis. No effort appears to have been made for at least two Centuries to find out an answer to the question put to Abdulla bin Aufi whether any incident wasiprior to Surah Noor,-The difference in opinion in this matter still persists; It is not possible to answer this question with any amount of certainty.

If, the incidents related to a period before the revelation of Surah Noor, the 'order in them should be taken to be abrogated by Verse' 24:2 since a later verse in the Quran can abrogate Sunnah. Assuming, hOweVer, that at least some incident was later to the above verse the Cpeation would be about its effect. One view is that the Hadts in the form of. the practice of the Holy prophet would abrogate Yerse- 24:2 to the extent of applicability of its command to married persons,

The-probleM; therefore,; becomes crystallised in the question whether the Holy QuranHcan be abrogated by the Sunnab. Th6se Who are in support of this rely upon the following verse:

59:7 and .whatever the 'messenger giveth -you, take it and whatsoever heforbiddeth, abstain (from it)'...

5314 "Nor. .doth he Speak of .(his own) desire" 5314 "It is naught but a revelation that is revealed",

But 'those Who are against the abrogation of Quran by Sunnah 'rely: upon the clear tradition from the Holy Prophet Contd.' VV. ..P/25

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that if there be any conflict between the Quran and the Hadith accept whatever is in accordance with the Quran and do not accept what goes against it. The Shafees who accord great value even to Khabar Ahad are aginst the proposition that Sunnah can ayrogate the Quran. According to them even Sunnah Mutawatara (Sunnah relators of which in each successive e AabourOand Ak truthful) cannot repeal any order cethe Quran and they rely upon the Quranic verse. 0,;,51 o f;,/:7-...1, 41.,-.7 44..1 1 4:refit In this connection reliance is also placed upon the tradition of Maaz bin Jabal that when the Messenger of Allah sent him as a Governor of Yemen and asked him 'How, will you decide, 0 Maaz? He said according to the Book of Allah',(Then the Prophet) said 'if you do not find any thing there? He said according to the Sunnah of the Messenger of Allah'. (The Prophet) said 'if you do not find any thing there also'. He said I will try to decide it in accordance with my own opinion'. It is also argued that Quran is definite (4:1 ;

) While Sunnah is Maznuna cLSurmise)ae4 ...-iw-elluelptien4. There is however, unanimity on'the point that the Sunnah can fill up the vacuum or can be clarificatory in charaCter. This is illustrated by Shafees, 2ahiris and many others. They say that there are orders in the Quran about establishing prayer (91_,PJ ) and payment of Zakat 0,21). Its details and clarification would be to the effect how the prayer is to be offered and how many Rakaats are there to be offered in prayers of different times. And similarly on what property Zakat is payable and to what extent. These details are.a.given in the Sunnah and they do not amount to abrogation of what is written in the Quran. However, it would have been different if the Quran had directed the offering of prayer consisting of two rakaat each day only and.the Holy Prophet had laid down four Rakaat for Zuher 5ø )and Esha and three for Maghrib (":"/?:). In that case there would be abrogation which is not permissible. Thus. the difference between abrogation and clarification is made out by the argument of Shafi and a large number of Jurists.

c,

This is sufficient answer to those who rely upon the answer of Omar bin Abdul Aziz to Zahiris related in Ruh411-Maani Vol.18 P.70 by Allama Alusi. It Is said that "the Zahiris said in the presence Of Omar bin Abdul Aziz that Rajam was not in the Book of Allah. He replied that the number of Rakaata and the

)1,L.

quaLity of Zakat is also not •in the . Quran. This being the practice

A

of the Prophet and the -later Muslims this is also like that'. Obviously the question whether Hadisi can abrogate the Quran was not discussed before Omar. bin Abdul Aziz. The explanation of Shafei directly deals with this question and also furnishes the answer to the above objection.

may clarifythat the reasoning of Omar. bin Abdul Aziz would have been. applicable if the order in the tradition of Obada bin Samit had been issued by the -Holy Prophet soon after the revelation of-verse 2412 or the Verse itself had been silent on the quality and quantum of punishment, There would have been no difficulty in that case in giving the Order in the Eadis the status of interpre- tation or clarification of the verse in the Book of Allah. This would not have, amounted to abro.gation. But that Hadis being prior in time, and the punishMent being clearly revealed the Above principle cannot be applied to-it.. The reasoning would be of no avail since the order in the Hadis was itself repealed by the Order in the verse .(24:2).

I am,'howevet, of the view that, in view Of the Words in verse 15 of Surah Nisa (4:15) "or (Until) Allah appoint for them a way", the tradition of Obada bin -Samit Was in the nature of a complementary binding order. It was not an abrogation of whatever sentence was recorded in the:15th verse of Surah Nissa In that verse it was:clarified that the sentence of confinement of an adulteress :will be a' sentence for life until "Allah appoint for them away (through new legislation), This sentence was only previtionally. fixed.. A new' legislation being promised, the promise could be fulfilled either by providing through Sunnah :or through the Holy Book.-If it was fulfilled through SUnnah by the tradition of Obada Bin Samit, it would not amount to abrogation of the punishment of: confinement but would amount to giving the promised legislation. There being two ways in which to legislate, there can be no objection to the legality of legislation by the Sunnah of the

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L

Holy Prophet.

As seen above the order in the tradition of Obada bin Samit was repealed by verse 2 of Surah Noor (24:2) which IS applicable to /.01 *LA meaning all adulterers, whether married or unmarried.These words were of old origin, During Jahilia too a woman having sexual rela-2 tion with a man otherwise than under a tie of marriage was said to have committed• Zina and for this reason the woman was: called Zania baghia (2)4:fajira ?L'L eahira moahira (f!v) mosafiha (eL-). Tarikhe-Arab Qablal Islam, by Dr. Jawad Ali Vol. 5,P.253 and Al-lissan 6L.-41 ) Vol.6 P.290. The td1,01 being prevalent it must have been used in the same sense in which it was understood by Arabs, that is in the sense of a woman committing adultery whether married or unmarried, I:. have 'already referred to a view of 'tam Ahmad bin Hanbal and others that the order• in Surah Noor is both for married as well as unmarried. This is also the view Of Allama Alusi in Ruh7u1-Maani, Vol. 187 P.707 Khizri Buk in Tarikhe fiqh, P.129. Thus not only those who refuse to act on sunnah in this respeot but even those who have an unbounded respect for Sunnah as a binding force agree with the view, which Should be uneXceptionable, that verse 24:2 is both for married and unmarried persons, This interpretation finds support from the first verse of Surah Noor (24;1) (22fr,t'jc4t'c-ti4A', !4"J21> 1.?"-"el-f4 surah which We have revealed et-I r.:joined; and Wherein We have revealed elea0igns, that haply you' may take heed) Surah Noor consists of Verse 2follow this verse. To curtail its generality by confin- ing it to unmarried. persons would be to.. reduce plainness and Aarity which has been stressed by the prededing vers.e,

V

All the 'Jurists agree that stoning is totally irreconCable - with flogging, There, 'are a few alternatives' for removal of the nomaly or for bringing about the nedeasary redohciliation.

The Hadd as prescribed in the Quran only should be followed sinca:SunnahCannot !repeal QuraP, Sunnah should be followed even though its orders are irredoncilabIe Withthe Quran since Sunnah Can abrogate the lUran;

a, In case alternative No,2 is adopted It is to be seen whether the traditions are )5,,,I:Orriutawatir)X6ontinuous

without break going UP to the Prophet of Allah and related throughout by a large number of narrators) Xj (well known meaning that a number of narrators in each age must be more than twoY or narrated in each age by few persons thoughathan two) or,w) (Ahad) (single or isolated meaning traditions narration of which consists of broken chain of narrators and has been accepted on account of the truthfulness of its narrators, the

4)In case the answer to the first point be inLaffirmative whether there is any method of reconciling the Hadith with the Ouranic commands,

Before proceeding to consider these points I would like to deal with the two versions of the traditions relating to Ghamidia, Thefl facts in the two traditions are common to the extent that the woman was directed by the Holy Prophet to return after the birth of the child and that she did return. • According to one narration the Prophet said that she could not be stoned to death till she suckled her child but one of the Ansars agreed to look after the breast feeding of the child on which she was directed to be immediately stoned, The other narration, however, is that she was directed to go back in order to suckle the child and she was stoned only after the prescribed period for suckling had expired and the child was fit to live on bread. Azzailai has tried to explain the two distinct narrations by saying that they might relate, to two different women and the narrators might have mis-understood the facts, According to Ali Ali Mansoor (page 172 of Nizam-ul-Tajrim wal Aqab fil Islam), Imam Abu Hanifa had repelled the tradition relating to Ghamidia,

(V1 Another view is that all traditions, including the two about ?Loy Maaiz and Ghamidia are in the nature of'(Khabar Ahad) which do not carry as much weight as a presumption but may be levelled down to the category of surmises, On that basis it is said • that verse 2 of Surah Noor prescribed the only Hadd for adulterers and adulteresses whether married or unmarried. This view was very strongly held by no less a person than Abu Zahra who can be said to have few equals in the knowledge of Islamic Sharia,

Ci The third view is that in view of the Practice of the yey

Holy Prophet in stoning those who were married, the Quranic verse 24:2 should be considered to be confined only to persons who are unmarried.

The fourth view is that in view of the traditions of Hazrat Ali who flogged a woman on Thursday and stoned her on Friday, a married person should be flogged in obedience to the Book of Allah and stoned in pursuance of the Sunnah of the Holy Prophet. Similarly an unmarried adulterer should not only be whipped but also expelled for a year. But the Hanafis are against combining two sentences. They favour flogging of an unmarried person and stoning the married one, Then there are two: very important . views which fall under the fourth alternative. One is that in the Hadith in. which two punishments are provided for one person-one in accordance with verse 24:2 and the other in accordance with the Sunnah-the two sentences should be treated to be alternative sentences on the same principles on which the letter (and) is sometime used in the Sense of /1 (or). The sedond view is that the reconciliation between the two sentences one of Quran and the other in Sunnah may be brought out by treating the sentence of stoning to be in the nature Of Tazir and not a Hadd.

In vieW of what has been stated above there are strong reasons in favour of the correctness of the view that Quran cannot be abrogated by Sunnah.' This is very clear from the Hadith of MaaZ who was required tol consult Sunnah when he found no help from the Quran. The reliance on verse• 59:7 /or 5343 and 4 is not well conceived. Verse 5917 is a direction to obey the.. holy Prophet and not that what the prophet says or does would repeal the Quran. In ) Yijoui ) the word 53:3 (4.4(1 e,(llahi) according to Shah Waliullah means Quran, See Shah Wall Ullah aur.unka falsafa by Maulana Obeid- Ullah Sindhi p, 114. The opinions of those who hold to the contrary cannot be relied upon. It appears that for this reason attempts were made by almost all the great Jurists to trace out or discover any/thing in favour of stoning being a Qurahic punishment or &- confinement of the scope of verse 24:2 to unmarried persons only.

Similarly no reliance can be placed upon the view of those who consider the Holy Book to be an exclusive sourife of law. We cannot close our eyes to the facts that there are definite directives in the Quran to obey the Holy Prophet and if we ignore the sunnah, we shall be left without any guidance in relation to offering of prayets' *y2)1) and the payment of Zakat (AO). The Constitution has also provided, for ensuring that no law is repugnant to either of them.

Then there are some who have claimed Ijma or consensus on the. Hadith of Haztat Um4r but firstly the Holy Quran is a complete book and if something is deleted from it it cannot remain operative, secondly it is surprising that the verse referred to by Hazrat Umar in the tradition attributed to him is only known to Hazrat Umar and not even to the ether companions of the Holy Prophet, thirdly the C ktn.-41.9 word land l(have never been assumed to mean married man and married woman, and fourthly if there had been any Ijma on the point x Hazrat Ali would not have subjected married woman to a double sentence one of flogging and the other of stoning.

r:5'11"1:?:Tt There is also no Ijma. on the absolute authenticity of all the traditions about stoning as they are narrated in the different books of Hadith. I have already referred to the two different/versions about the tradition relating to Ghamidia Aed the view of Imam Abu a',40.-ca HanifaLand the attempt of Azzalai to reconcile them. The versions about the confession and execution of Maaiz are also different. In the majority of versions it is stated that Maiz approached the Prophet th,e with a request for self purification. Another version is that/“.1rophet himself interrogated Maiz about the charge of adultery since he had heard the story fro . some other source and before sentencing him

(LA- )

took evidencl Maulana Amin Ahsan Islahi in his commentary of the holy Quran has unfavourably commented upon the general character of Maiz and has reached the conclusion that Maiz was punished with stoning- for remedying mischief (eta '). It is not therefore possible to surmise the circumstances in which Maiz was stoned to death and to infer the . correct legal principles from these traditions. In the tradition 'of Aseef the boy was subjected to the punishment of hundred stripes and expulsion for a year. Imam Abu Hanifa does not agree that the two

sentences Can be. given together, although there is a view 14 that the sentence of expulsion is within the discretion of the Imam. The view of Imam Shafi,is in favour of both sentences being obligatory. Imam Malik is of the view that though expulsion can be ordered in the case of a male but it cannot be ordered in the case of female who cannot be allowed to go all alone to another place. Similarly there is a view that the two sentences of flogging and stoning cannot be given to one person'. In Muslim vol II,below tradition No,1911 of Obada bin Samit is the note of the translator thati "Imam Shafi!s view is that an unmarried person should also be expelled for a year. According to Imam Abu Hanifa this order is repealed in the same manner as the order of first flogging a married person. Maaiz for this reason was stoned and was not flogged first. It is however for the Lnam to pass an order of expulsion also if he finds it expettient". Below the tradition of Aseef (Heath 1930 in Muslim vol.II), it is commented by the translator that in his view expulsion for a year in case of an unmarried person is not a hadd but its administration rests upon expedienc'yc-' and the opinion of the Imam,' The reason is that in verse 24:2 there is no mention of this (expulsion). Mirqat (Sharah Mishqat) has been cited in support., Thus the theory of Ijma is shattered.

As stated above Sheikh Abu Zahra one of the greatest Jurists ofthe 14th Century Hijra did not subs- cribe to stoning being at all a sentence. He expressed this opinion clearly in Nidwat-ul-Tashree-ulIslami held on the .6th of May, 1972, though his books which were published earlier do not show any marked" preference for this view; His view 'was' based on the following:

:1. in/spite of there being ',a provision for the expulsion of unmarried person in addition to his being flogged; Imam Malik did not give:a verdict in favour of the sentence regarding females.

He considered all the traditions including that of Hazrat Umar to be in the nature of Akhbar Aahad.

He relied upon the doubt created by the answer of Abdullah Bin Aofi that he did not know whether all these incidents of stoning took place before or after the revelation of Surah Noor.

He could not believe that the punishment of stoning being a much harsher punishment than even the punishment of Qisas or punishment of Haraba (verse 5:13) which Includes killing and execution by putting on the cross, should not be specified in the Quran or in Sunnat-e-Mucawatera, but should be based only on Khabare Aahad 2(0) -e. Everi Hanafees did not agree with the order of expulsion of an unmarried person since it was not in Surah Noor and this reason is itself sufficient for his:view as:stoning is not in the Kotan. The Hanifees thus repelled •the incident of Aseef being something in excess of Quran. Moreover in view of the doubt of the Companion/ of' the. Holy Prophet whether. the incident of Maaiz and Ghamidia preceded or followed Surah Noor, the benefit of doubt should go to the accused against the harsher punishment. The punishment of a slave'girl is half of the punishment of a free woman It must mean the Mohsanat inverse 4:25 in the second place was used in the sense of married persons and undoubtedly stoningHcannot be halved. He also relied upon the opinion of others including Kharijis l some Shia(and some Moutazilaiin support of this.

(453 There appears to be substance in the conclusion of Abu Zahra that the traditions about stoning are in the nature of Akhbar-i-Ahad. In fact even those who give them a higher status go to the length ofArftying that they are Mutawatir-ul-Maani (continuous in meaning) and not Mutawatir-ul-Lafz,(continuous in words) Ruh-ul-Maani by Allama Alusi, Vol. 18, page 70, Tafsir-e-Mazhari Vol. VIII, P. 234, Allama Alusi writes.

"There is Ijma of. the companions, and Ulemas on the point that the married adulterer will be stoned till death. And the rejection by Khawarij is Batil (incorrect) if they reject the Ijma of the Companions which is ignorance of the worst type. And if they deny the occurrence in the period of the Prophet due to the fact that they deny the authority of Khabar-i-Wahid (isolated or single), it is not correct in this case because the proof of stoning to death is Mutawatir-ul-Maani like the bravery of Ali or generosity of Hatim. The traditions about Rajm are ahad (Isolated or single)- in their appearance and its peculiarities but all the Muslims treated it as Mutawatir-ul-Maani 0;12) in practice which is an equivalent of Mutawatir-ul-Laffl".

,of

r f t

Sb From this quotation it is proved that the opinion of Abu Zahra that these traditions are Akhbar-i-Ahad is correct,.

Before dealing with the question how much binding force Akhbar-i-Ahad have it would be better to define three kinds of traditions namely, - Mutawatir (continuous) Mashhoor (well known) and Ahad (isolated or single). According to Al-hadis by Maulana Fazal Karim Vol. I page 26 Mutawatir is a tradition reported by a large number of people in different times, so as to make it impossible for having any false-hood crept into it. These are commonly accepted to be of unquestionable •authority. Mashhoor meaning well known is a tradition which though known publicly by a great majority of the people does not possess the character of universality. It was narrated through more than 2 channels at every stage.

Ahad is a tradition whose naration consists of broken chain of narrators or a tradition less widely accepted. It is, therefore, less authentic than the former. In kashaf (,,-;1) by Bazudi, c: Vol.II, page 204, it is written that a person who treats them ( Khabkr- e-Ahad) as an equivalent of Mutawatir Hadis (continuous Hadis) commits two fold mistake, viz., his first mistake is that he has raised their status (status of Khabkr-e-Ahad) and the second mistake is that he has lowered the status of the Holy Quran and the Mutawatir (continuous) traditions. At page 369 of the same book is the opinion of Sarakhsi about those who deny the authenticity of Hadis Mashhoor (well known tradition). He writes that such a person cannot be considered to be a heretic. At page 310 is recorded, the view about those who do not act according to Khabar-i-Ahad. It is • said that they will not be punished because the order of such traditions are neither obligatory (farz) nor have the status of approved (gajib).

These opinions are cited in Tadween-e-Hadis by Syed Manazir Ahsan Gilani, page 201. According to him the authenticipy of Khabir-e- Ahad is less than of Mshhoor Hadis.

This. corroborates the view of Abu Zahra about the traditions pertaining int4222:13>to the incidents of Maiz Ghamidya being Akhbar-ul-Ahad.. But I do not agree with him that Rajm is no Sentence

in Islam. This point shall be considered later.

03 While dealing with the question of combining the two sentences of whipping and exiling an unmarried culprit even the Hanafis have expressed,the view that the Hadisebada bin Samit is only 20//1.(Khabar-e-Ahad). and such Hadis cannot abrogate a verse of the Quran. The only Hadd is whipping as enjoined by verse 24:2 and the order of exile which is proved from the above Hadis, even though combined with it by the holy Prophet and his successors, should be considered to be a Tazir only. See Bidayat—ul—Mujtahid Vol 21, page 326, Ehkam-ul-Quran by Jassas Vol.3 P. 255, Fathul Bari Vol.12, P.119, Ruhul Maani by Allama Alusi, Vol 18, P.73, Tilka ;Hudood ullah by Ibrahim Ahmad Al-Wacifi, P. 62. This point requires to be dealt with in greater detail.

The question of the aggregation of two sentences of whipping and exile of an. unmarried person and whipping and stoning of a married one has been the subject matter of interesting dialogue between different Jurists. Thus Imam Shafei and others favoured it while ImamAbu Hanifa opposed it. The former relied upon the :tradition of Obada Bin Samit, the incident of Aseef, in which the boy was sentenced with whipping and exile for aiyear, the incident of Shuraha in which. .she was whipped by Hazrat Ali on ursday in obedience of Allah's command and was stoned to death on Friday according to the Sunnah of the holy 'prophet, and the practice of Hazrat Abu Baker, Hazrat Omar and Hazrat Ali in combining two sentences. Hanafis rely upon the incidents of Ghamidya and Maiz, none of whom was sentence,(to whipping. Imam Shafei says that these two incidents do not prove the total e tinction of the sentence of:whipping. It is possible that it might not have been considered necessary to mention whipping which being the original sentence enjoined by the Almighty Allah might have been administered as a matter of course. Shafei illustrates the point by.the analogy of Umra. If somlone asked the holy Prophet whether he should perform Haj for hisfather and the holy Prophet ordered him to do so, the ission would not amount to extinguishing the permission or order thout Umra. The Hanafis hold that omission means that whipping did

not take place and non-occurance.proves that it is not commanded.

tt) Ibne Hazam, Abi Zar, Ibn Abdul Barr have said that the aggregationbf whipping and stoning is for old men and women only, They rely upon the tradition of Hazrat Omar, And Ayaz says that a group of ahl Hadis are of the same opinion. Nawawi rejects this view as unsound, Ibn Hajar Asqalani has criticised it in Fathul Bari, Vol. 12 P.119,

But those who favour aggregation of both sentences are not :uniform in their approach At least on the question of exile. Imam - Malik says that the order of exile does not apply to women.

Imam Shafei is: of the view that iciapplies them and they shall be sent to exile each with one of the males in the prohibited degrees:. There is difference of opinion on the point as to who Should bear the expenses of the male accompanying the female. Then slaves are also exempted from exile as it would amount to indirectly punishing their masters,

The approach Of the Hanafis is not consistent, While they hold . that whipping is the only Hadd for an unmarried person and the punishment of: exile is an addition to it as Tazir (and not as Hadd) they treat whipping of a married person to be ungalled for, rajam being the onlyjladd . in his. case, One View is that whipping being the lesser sentence should be treated to be included in the harsher sentence and the administration of the lesser sentence becomes meaningless when such: harsh Sentence as stoning to death is: given, On the question whether the - punishment of exile is obligatory they argue that the holy.Quran provides for the sentence of whipping only and that is the full' and complete Hadd, If exile is also treated to be a Hadd whipping will be reduced to the position of half the Hadd, This will be frustrating the divine object. The sentence of exile can at most be treated to be an addition and may be adminisirechby way of Tazir only if the Imam considers its administration expedient. Thus they agree that Hadd and Tazir can be - combined for the same Offence: Though it is the opinion of many of them that verse 24;2 is for married and unmarried alike and does not distinguish between the two categories of accused

c•'5

persons, they do not extend the above argument of one sentence being a-Taziri to the sentence of stoning, On the 'other hand they insist that stoning is the only Hadd for a married person, One of their arguments in favour of exile being a Tazir is that the tradition in support of it is Khabar-i-Wahid and that type of tradition cannot abrogate the Ouran, This reasoning is clear from an extract from P.73 of Ruhulllaani by Allama AIusi "Vol, le.

its "it appears that. verse 24:2/col-mon to married and unmarried alike, According to one view it is abrogated by (Hadis of) Obada bin Samit: But this claim cannot .be correct since there can be no abrogation by Khabar-i- . Wahid, and it is also of no avail to say that it has received universal Acceptance from the Ummah since . did not treat. a portion of it as that of the book. (Motel, - Reference is to the incident of Shuraha in which liazrat Ali said that he had stoned her According to the Sunnah of the Prophet and not According to the book). Even if, it is considered correct in Sanad (authentic) it.will still be, governed by the same principle and it does not. cease to be Khabar-i-Wahid. The result is that. exile in this Hadia is only wajib (approved) but not wajib amounting to Hadd. it is Tazir and Imam- has. a right to enforce it".• And yet this principle has not been extended to the traditions of Maiz.and the. Ghamidya both.of which fall within the ambit of Akhbar-ul- Ahad and the. NIS is persistently adopted that though Akhbar-i-Ahad they aremutawatir, u1Maani. though not: Mutawatir-ul- lafz,• althOugh as seen above the rule is. that by universal acceptance Xhabar-i-Wahid does not. cease to be governed by its . own. principles..

(a r nay refer now. W-11357-1nY,'valuable opinion of anothet very renowned jurist, Sheikh Mustafa Zeno.:

see greater scope of the possibility that the Holy Prophet ordered stoning in these established incidents' by way of Tazir and not by way of Hadd. He saw that the Mohsan Omarried) who should be content with a legal wife required .at that age a stronger deterrent than the detetrent (required by) an unmarried. By this the Holy Prophet wanted to

ektetminate the 'prostitution of the 'days of Ignorance and to make the offensiveness of this horrible, crime deep rooted in the Minds and hearts of the Muslims, This is amattet whose appreciation depends on the discretion of the ruler as it depends in all similar cases which require deterrence: or Tazir which is within the jurisdiction of the ruler,. Now in respect of stoning we can say what is said in respect of: every Tazir: that it ia in 'the discretion of the ruler: he can do what he deema, fit according to: public expediency, If he likes he can impleMent the 'punishment of stoning or he can punish only with Stripeawhich is the Only HadTh If he likes he can administer both'sente'nces by way of kadd and by way of Tazir and 'if he likes :.(considelit nedessary) he can flog the Muhsana(married) by way of Hadd and add to it some deterrent other than Rajm (stoninp) because his Zina is more serious and more obnoxious than the line of an unmarried person. All this will depend upon the discretion (of the ruler) according to expediency, needs and requirements of time and the persons concerned in keeping with the principles of Tazir, We See its parallels in our modern criminal laws' relating to punishments in which 'the Judge ioautherized to adopt one of the two limits, maximum and minimUm; he can award punishment of fine and imprisonment or any one of these two, This rule is also acceptable to the - principle of Tazir in Islam", a:Nit will be intetesting to take note of the opinion of Zailai that if the Holy Prophet did not administer the double sentence of epogging and stoning on Maaiz and Ghamidia it can only mean that ) (and) must have been used in the meaning of ) (or)"meaning either of the two' .puni.shmerij could be administered, In support of this he, "relies1 uponthe luranic verse,' D27 L:d.)-9 ctelci ,1-0-frJ -LP ja/(14 and that it is used in the sense of two or three ...four and not two and three and four,

Ilact there is one Other 'verse Which Can lead to the same conclusion and that is the Verse allowing two or. three, Or four Women in marriage' Of one 'person. There 'also the 'say language is used 'AP 6em C-.4) Liu," Cs tA, In this verse also (and) is. used in the sense 'of "Rot), The opinion of zalai supports: the view that eithet a person can be sentenced , witn)flogging or with stoning, On this view stoning ceases to be an obligatory sentence.

a

The interpretation of Zailai about > (and) being used in the sense of,A{or) does not seem relevant in view of my agreement with the majority's view that the tradition of Obada bin Samit was abrogated by Surah Noor and two different sentences were prescribed for the same accused in that tradition only. This leaves us only with the opinion of Sheikh Mustafa Zarqa. As a principle I would agree with it. I do not feel any doubt that if a Hadd is prescribed in the Quran, an other Hadd cannot be prescribed in Sunnah. A Hadd in Sunnah can be prescribed if there is a vacuum and no Hadd is prescribed in Quran, as was the case of drunkards. It is then only that we can give a correct meaning to the definition of Hadd meaning' "Punishment ordained by the Holy Quran or Sunnah" in the Ordinance relating to Hadood. This being the principle the punishment prescribed in the Sunnah for adultery can only be treated as Tazir. May be it is for this reason that Bokhari did not include the traditions about rajam in Kitabul Hadood, He discussed them in .a different chapter known as Kitab-ul-Maharibeen It. has already been noticed that in the view of Imam Abu Hanifa and other Hanafees expulsion for a year or imprisonment for the same period is not allowed in addition to flogging in respect of an unmarried person. The reason is that it is against Quran. But it is agreed that such sentence may be given by the Imam for itja'y reasonc of expediency which clearly means that these Jurists considered at least the severe sentence of expulsion to be a Tazir. There is no reason why stoning should not be considered Tazir for the same reason of its being opposed to the Hadd in the Holy Quran.

And llajam was not the only punishment administered by the Holy Prophet, In Tath-ul-Bari, Vol, 12 P. 118 are reproduced traditions about the - punishment of incest. A person accused of incest was-brought before Hajjaj, He asked about the sentence of Such A culprit and directed that an inquiry be made from the Companions of the Prophet of Allah, And Abdullah bin Mutrif said "I heard from the Prophet of Allah And he said one whol commits Incest shall be killed with sword. On a reference this was corrobo- rated by Ibn-e-Abbas. Another case was of a man who had married J-as “ .

Hi

in Jahiliya, his father's widow. The Prophet of Allah ordered him to be beheaded. There is one other instance of the same type. Ayat Ullah Shariat Madari is also the exponent of this view. See his Tauzihul Masail deLtie_ 9 ) p.468. He further writes that in case of successive offencsof adultery by the same person he. should be flogged thrice With hundred whips each time and in case he repeats the offence a fourth time he should be put to death. Rajam according to him is for a person who is not only married.but is in'a position to satisfy the sexual cravings with the spouse. There is.no mention in either tradition of the difference of married or unmarried in either of the traditions about beheading.. It may be noted that the sentence of beheading .of.a married culprit is much lighter than the sentence of rajam. These traditions corroborate the conclusion about stoning being only a tazir.

The view also appears to be shared by Maulana Ameen Ahsen Islahi who justifies stoning on the analogy of Haraba (5:33) which provides for several alternative punishments for those who fight God and create mischief, in the land i.e., (1) Killing (2) Crucifixion {3) CUtting of hands and feet on alternative aides (4) expulsion from land or imprisonment..

Reference may also be Made to Tafseer-e-Kabir by Ar- Razi, vOl.VI, pages 215 and 216. In reply to the objection against rajam he says that new orders of Sharia are promulgated in every, age as a measure. DP expediency. It is, therefore, possible that after the revelation of the verses (regarding punishment of adulterers) the sentence of rajam might have been fixed as a measure of expediency. This reasoning of Razi lends support to the view that rajammust have been introduced by the Holy Prophet since he considered it expedient despite the Hadd in the Holy Book. Such:sentence-can only be called ltazir'.

ma, I.also refer to the opinion of Hanapis as reproduced in Kitabul-Fiqah (Urdu translation) by Abdul Rehman Aljazirii vol.V, page 14. It isstated that according to Hanaffis Hadood are those which are proved by the Quran. Such punishments are five:- firstly the punishment of adulteryPhich is proved: by verse 2 of Surahlioor (100 stripes);

secondly punishment of theft;

thirdly punishment of drinking;

fourthly punishment of highway robbery; and fifthly punishment of Tqazaf' .

This opinion, also throws light on the nature of the punishment of rajaM.

Allama. Syed Muhammad Razi has referred to the concensus in respect of the rajam being a hadd. But this opinion ignores the tradition of azrat Ali referred to in Tafseer-&-Minhaj-ul Stdiqin by Maulana Fathulla Kashani,,vol.VI, pp.266 and 267. It is stated there that five accused were brought to Hazrat Ali f.k• who were held to be guilty of adultery.. He ordered one of them to be stoned to death; the second to be subjected to hadd, the third to be sentenced to half Chad& the fourth to be given tazir and the fifth, to be acquitted. An enquiry vas made in regard to the various sentencesAn the case of 4 persons and the reason Of acquittal of the Hazrat Ali answered that one who was directed to be sentenced to.' death was a married person, the other on whom hadd was. enforced was an unmarried person, the third one was a slave and the fourth:to whom tazir wasgiven:was a child. Regarding the:fifth one., he said that heHwas acquitted because he was not in his senses Frourthis tradition it is clear that Hazrat Ali did not equate rajam with hadd.

I accept this petition to the extent of declaring that the punishment of stoning to death is-not a Hadd but can be added to the respective provisions ofYtazir_although the evidence of four witnesse.son the basis:of Tazkiya Shahood mould be necessary to prove it: also. I direct that the necessary amendment be made in the offence of Zina .(Enforcement,of Hadood)Ordinance, 1979, and the_sentence of rajaMbe:deleted from, sections 5(2)(a) and 6(3)(a) thereofi by the 31st July,1981.

JUDGMENT '

ZAKAULLAH LODI J: I had the privilege of going through the leading judgment proposed to be delivered by my learned brother Aftab Hussain J. While agreeing with him that the punishment of "Rajam" (stoning to death) provided by Zina (Enforcement of HadOod) Ordinance,1979 was neither ordained by the Holy Quran nor by the Sunnah of the Holy Prophet (peace be upon him), I beg to differ with him only to the extent of his observation that, it could still be administered under the cover of "Tazir". I also had the advantage of reading the proposed judgment of the learned Chairman and I agree with him also that "Rajam" was not a punishment ordained by the Holy Quran or Sunnah. sat avii/r0qpeetf4LLyidIffer/NIth/kilmyas44rkdtwlyservatiou 92/1zbal2 ipqrviestavente b2/51141ArtMectialeVeiyo,tin.eizied. mn, Vthed AtAtu'Ve4fook/taise 4Y'rfabit . Before recording my views on this point, I may survey the subject with precision.

1.•It ist andisputedr: fact that the Holy Quran was revealed with the purpose that all its directives should be enforced in the society in entity to be created by the Holy Prophet (PBH) in consonance there- with and such model society was to be expanded and its principles followed universally in all times and circumstances and by all/people in future. Such a society was termed by Allama Iqbal as a nuculus for the whole cC), world (Reconstruction of Islamic thougntin Islam). Accordingly some injunctions dealing with matters of basic importance are-given in the Book in clear terms, whereas on most of the matters only basic philosophy/ principles are revealed, leaving the details ( or say bye laws or rules to the discrattion of the framers of law at the relevent time; whose duty is to frame the same keeping in ,view Quranic spirit and policies. Holy Quran thus occupies pivotal place in Conti. ..Pa

Islam. Same was the position of the Books revealed earlier which formed basis for their respective religions) but were subsequently modified by th7:err3 doctors-of law and clergy. In order to substitute their will to the will of God so that the society was transformed into a pattern of their liking. This class as • a vested interest is present in almost all religions and) if. seenf in historical perspective, it would be clear that they have .always defaced and polluted their religions. On this point the Holy Quran says as under:- 5/47: It was We Who revealed The Law (to Moses); therein Was guidance and light.

By its standard have been judged The Jews, by the Prophet Who bowed (as in Islam) *,Allah's Will, by the Rabbis And the Doctrs of Law:

Forrn to them was entrusted The protection of Allah's Book, And they were witnesses thereto:

Therefore fear not men, But fear Me, and sell -not My signs for-a miserable price.

If any do fail to judge By (the light., of) what Allah Hath revealed, they are (No better than) Unvelievers 5/50: Let the People of the Gospel Judge by what Allah hath revealed Therein. If any do fail To judge by (the light of) What Allah hath revealed, They are (not better than) Those who revel.

6/106: Follow what thdu art taught By inspiration from the Lord:

There is no god but He:

And turn aside from those Who join gods with Allah.

12/40: "If not Him, ye worship nothing But names which ye have named, Ye andi your fathers, For. which Allah hath sent you No authority: the CoMmand Is for none. but Allah: He Math cbmmanded that ye worship None but Him: that is The right religion, but Most men understand not...

Conti...P/3

IP) 2/213i- Mankind was one. Single nation, And Allah sent Messengers • With glad tidings and warninls;

And with them He sent The Book in truth, To judge between people In matters wherein They differed;

But the People of the Book, After the Clear Signs Came to them, did not differ Among themselves, Except through selfish contumacy.

Allah by His Grace Guided the Believers To the Truth, Concerning that Wherein they differed.

For Allah guides Whom He will To a path That is straight. : A. kvadlo.19

2.More or less the same treatment was meted out• to Islam following., the pattern of earlier powerful clergy and also out of short sightedness and protection of vested interest during kingship in Islam. It can be 'seen from the stretching of meanings of Quranic verses, cancelling or substituting one verse by another or cancelling it by Hadith. So much so that some orthodox "Mociallids" have gone to the extent.of. saying that Quranic verses and Sunnah could be cancelled by the principles given by law doctors, in case there was no unanimity. between the two (See Tarikhe-Tashriul.Islam - by Allama Mohammadul Khizri, Urdu translation Tarikh-e-Fiqah-e-Islamic printed at Azamgarh Page 421). Such is the case with Y.71.Rajam" which has been forced into Quranic punilsbthents under the cover of "Sunnah" Meaning thereby that Sunnah has cancelled or oyerriden Quran. As ...said by learned Chairthan, Sunnah can not repeal Quran.. I agree with.. him not to this extent but would also say that not a single word of Quran was eVer repeaied or. cancelled. Only its scheme .should be logically appreciated and reasonably understood. Any way, in the matters which keep on changing with the passage of time, places, and people Quran has purposely avoided going into details and this is significktioa. On the other hand in such matters, Conti... .P/4

o

which God AlMighty in his infinitive wisdom considered handful for all types of societies, permanent laws were given. It is this treatment which is responsible to identify Islam with the world " oi..)"(system of life) as against " (-74fr"(Religion). There are limited matters for which Quran has laid. down permanent laws. Categorizing then in commealegal parlance, we can call them laws on the civil side, and laws on criminal side. For instance, on civil side we have laws pertaining to matrimonial relations, inheritance, and will etc. They were necessary, as the basis structure of a harmonious and healthy society depends upon each, healthy principles concerning these subjects. On the criminal side with which we:are presently concerned, we have laws of permanent nature on the subjects of Zina, thefts of various shades and Qazaf. It is for these offences that maximum punishment has been provided by the Holy Quran. Such punishment is generally called "Hadd" as against "Tazir" which is a term signifying punishments not provided by Quran and fixed by the jurists according to the requirement of time. Both these terms are juristic terms. Now there are different shades of the offences with.reference,to varying degrees of gravity involved in .the offences falling into these categories. It Would be for the law makers to enact suitable laws to meet the situation keeping in view the highest punishment provided by the Holy-Quran for the gravest and most he]ln)Dus kind. This is.where a jurist's efforts are attracted to formulate details ( c.:4}7 ), as Quran has left it unattended for reasons heretoforre discussed. It is not the least within the realm of a jurist to lay down a parellel law not justified in Quranic scheme of things. Unfortunately this is what

el has been attempted by the jurists in case of punishment for "Zina" to which I would presently advert. One thing which is obvious from the fact. that Quran provides a punishment for heligous kind of sex offence (say, Hadd) that for less ai-rievod species or shades of this kind of offence a . punishment more severe than Quranic punishment cannot be fixed on any consideration whatsoeVer. Again it would lay in the - discretion of the Judge to award-, maximum punishment provided for any category of sex offences or to award a lesser sentence or even pardon the off endor if there were.chances,of his amend(See

S.XLII/40):

XLII/40: The recompense for an injury. Is an injury equal thereto (In degree): birt if a person Forgive§ and makes reconciliation, His reward is due From Allah : for (Allah) Loveth not those who Do wrong.

It is often argued that "Rajam" has been provided by "Sunnah" and that the Holy Prophet (PBH) (mom and'Hazrat Umar habbeen pracgig it. Not only this but they go to the extent of saying that Hazrat Umar believed that a verse (mentioned by mttrOther Mr.Justice Aftab Hussain) was revealed but it was omitted to be written in the Holy Quran. Besides the facts that ts amounts to saying that Holy Quran is incomplete (although God Almighty guranteed its preservation (See Vesre 12/9), Ofei/-0A-le;12.4,KiCfr:ta/Irkli,*"/Oce s dti et;Pe,fiift,-ir142.

it also amounts to saying that the Holy Prophet had laid down a law of his ownheither on the authority of, Arab Custom or for some other reason,parellel to law

A

of 'God and instead of following the law of God followed his own whims Or that the law of Godpas circumscribed by applying it only to unmarried persons, whereas in case of married persons he and his successors applied Conti...P/6

a law made by them. This is4 short the prevapent state of law amid as is also evident from the Ordinance under challenge.

4.To say that the Holy Prophet and his successors continued., to award "Rajam" to married persons simply amounts to saying that they defied the Holy Quran, to implement which the Holy Prophet was nef- sent on earth as a massenger of God, and who wash a -t, free person to act as suited4his understanding. His successor's duty also was to carry forward the work done by him and they could not budge an inch from Holy Quran. On top of .iti such an unguarded' attitude appears to have gained .ground only on the basis of a "Hadith" which is in the nature of Khabr-e-Ahad. Is this not too much? Even an authentic "Hadith" cannot stand in a ext Conht) position superior to Holy Quralvmuch less a discontinued4 and weak "Hadith" as a Khabr-e-Ahad. "Hadith" consists of the acts done, by the:Holy Prophet (PBH) in constance with the injunctions of Holy Quran. It is true that "Hadith" is second big source of Islamic jurisprudence, but It occupies second position. A "Hadith" cannot lay down a positive laWf.centrary or repugnant to Holy Quran, nor can,. it alter, amend or modify Holy Quran, It is quite clear that for the pUrposes of law laying only those "khadith" are relevant which either explain an existing Quranic law, or reveal.a principle which is abosolutely in keeping with the 'sprit of the Holy Quran. It is thus obvious that the punishment of "Rajam" might have been awarded by the HOly Prophet before the revelation of verse 24:2, 4:25 and 33430 of which first mentioned verse prescribes:' 100 'stripes:: for an adulScerg abiti awe Zormdtemtwons, whether married or unmarried, half punishment for slaves ( a concession allowed in view of the social conditions in which they were usually brought up) and Conti.'. .P/7

the la8t verse deals with the wives of the Holy Prophet and is redundant for out purposes. In brief, we cannot imagine the Holy Prophet - doing a,thing whiCh is not to be found in the Holy Quran, or lay down a parallel law.: I would quote_from the Holy Quran first on this point:

H5/44: 0: ApoStle let not Those grieve thee, who race Each other:into Unbelief: (Whether it be) among those Who aay: "We believe" With their lips but Whose heartsAmve no -faith: Or it be among the Jews, Men who will listen Even to others who have To thee They change the words From their (right) times And places: they say, "If ye ate given this, Take it, but if not, Beware: Itanyones trial Is intended by Allah, thou hast No authority in the least For hint against Allah. For such-it is not Allah's will to purify Their hearts: For them There is disgrace Int-this world, and In the Hereafter:

A heavy punishment 3179: It is not (possible) That a man, to whom Is. given the Book, And Wisdom, And the prophetic office, Should say to people: "Be ye my worshippers RatherHthan On the contrary (He would say):

"Be ye worshippers Of Him Who is truly The Chetisher Of. all: For _ye have taught The, Book and ye Have lstudied,itearnestly."

5142.: But if the thief repent After his crime, And. amend his conducd, Allah turneth to him Inforgivenessj for Allah Is OftForgiving;-Most Merciful.

10115: But when Our Cleat Signs Are rehearsed dntb them, Those who rest not their hope On their meeting with Us, Say: "It. is not for me, Of my own accord, To change it: I follow Naught but what is revealed

Unto me: if I were To disobey my Lord, I should myself fear the Penalty Of a Great. Day (to come)."

(Tvovw,takt,L A The Holy Prophet was :the Central authority of Islam upon whom the duty was cast to enforce Islam, accordingly it. to Holy Quran and directed him.. in these terms:

(veise- 5-/z/ -W • . /,/,- .,‘ z Ckefie4eVA,61 cieal(/'c 1 (Yr

22/4: About the (Evil One) It is decreed that whoever Turns to him_for friendship, he lead astray, And he will guide him To the Penalty of the Fire '16/89: One day We shall raise From all Peoples a witness Against them,.. from', amongst themselves. And We shall bring thee As,a witness against these (Thy peopleP: and We have sent down To thee the Book explaining .All things, a Guide a Mercy, And Glad Tidings to Muslims.

Ealier Prophet.Daud was also: given similar directions behind .which philosophy was same;,namely rule of the book and not the whiAmsof the Prophet. Then see the directions of' the' Holy Prophet in hisA address to the natibn:

L 6

4#1i(7;01jt (f7

4/L %

ejje,CP/50/CY:fraf

1---f a eoyof j (9

It is said that Hazrat Umar also awarded "Rajam" but this too is inbelievable as he was one of the greatest followers of the Holy Quran as is evident from his words: o - / ((r; t, >2 ffArel/tt e /22

(les,c_i - -)• roty t);)

There are may other sayings of Hazrat Umar which will support my point of view and one of these is:

5.In the light of above it is evident that Conti,, .P/9

the Holy Prophet never prescribed or practiced any punishment other, than the guranic punishment which is 100 stripes for all adulterers and fornicators am& strictly. in consonance with the Holy Quran and again the Holy Quran does, not make any distinction between the punishment of a male or female or married or unmarried person. We cannot expect otherwise from the Holy Prophet.or his successors.

JfrM _ In - Uf.rd0 tWAli.Mansoor with reference to-.Abu.Zuhra says:.

Indeed "Rajam" is the extreme punishment and it is more: than. murder as 4qisas" and is-also more than the punishments of treason (5:36)'.;:So it is necessary that it must be. proved., by Holy Quran or Kliabar-e- -MutaWs1tira, and the ahadis.of Rajam are a0 utif tot Mutawatir an&there is-about of falsehood in them.

w.va b) According to Hanafites the hcommon( ((g-) is definiteA.n hisTmeaning. So the aya 24:2 common.forlall.married and unmarried and ca.)17fltbe specified. by the Akhbarul Ahad though-they-have been related in many ways and sources .(in fact these sources are not many). Hanafites.have rejected hadis-e-Asif. ( _ Inspite of the fact that it has .been narrated, by- a group and they say that there is addition in the meaning of Quran in this case and. it can only be done by a source,equal to Quran.

.The confusion:that has always been arising was for two fold reasons..'The,first of this-, is the tendency to revert back Le. reactionary steps. The reason being that the Jews of Arabi4n those. days awarded the punishment of "Rajam" to those who were poor amongst

S,

them. It was practioed.by some Arabic Tribes also who'-' converted to Islam.:Either owing to manipulations of theJews.orduetothetendaricy of reverting back to ancestral practices, efforts were made to revive this punishment by some jurists. The pressure of kingship COhti...P/10

and the changed politico-social order, which igainedt roots soon afterc4 -1 u> can also not be eliminated from, consideration. The second reason is the absence Itte-oN'a of any authenticL as to the history and practices in the earlier period of Islam. It was after 250 years after the demise', of the Holy Prophet that first compilation of history by d? saw the light of the day. Similarly "Sunnah" was collected after about 250 years after, this period and that too was compiled on the basis of sayings; based on the memories of generations and not on chronicles or record; for there was-none. The work of compilation of "Ahadith" and the selection of authentic, continuous and dis-continued.."Ahadith" iWpassed thr90gh 394442kbut that,was humaneffort and cannot be supposed to be free from errorras much water had flown under the bridge by this. time. That is why there is no wonder., f Maulana Maududi a staunch believer ofj1 Ahadith" says. as under with reference to collectors of."Ahadith" in particular.

city.

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Cse Another difficulty which arises inwayofacceptance or CO/herwise, of a "Ahadith" is that neither the facts of the cases decided by the Holy Prophet (PBH) are known to us nor is this fact known as to when a parti- cular act was done or a case decided and how much of Quran was avaiable by then. It is thus impossible to safely use "Ahadith" in law making. Same is the position of other C>PA)concerning the four. Caliphs. To conclude, "Rajam" is not a punishment known to Islam at all. The• punishment for the offence of "Zina" when proved according to Islamic standards of evidence is 100 stripes, subject to further conditions as would be found in above quoted verses. If at all the Holy Prophet (PBH) awarded this punisment, it was before the revelation of Verse 24:2. The practices of Hazrat Umar and Hazrat Ali have also been according to Holy Quran. Here I may also mention that for our purposes all what is necessary to see is that a law stands the test of Holy Quran and "Sunnah" and so we need go beyond this in order to test a law.

In the last paragraph of his judgment my learned brother has said that punishment of "Rajae; though it has no roots either in the Holy Quran or in the Sunnah of the Holy Prophet (PBH) could still be awarded by way of "Tazir". I have already said that the words "Haddl and "Tazir" are not Quranic terms when used in the context of law. These terms were coined out by the jurists of early. period to facilitate distinction between the punishment provided in the Holy Quran and such acts or offences for which Holy Quran did not specify any punishment. Leaving aside other offences,in the taseof4offencei the extreme kind of which is covered by Quranic punishment a different treatment is needed. As said above. in all such cases where Quran provides maximum punignment, lesser punishment- of c.<-7 can be fixed in vielheirintensity or gravity, but Conti...P/13

they should in no case rise above the maximum. In case of "Zina" it has to be some punishment less than 100 stripes to free men and women and less • than 50 stripes—to slaves. It can be in the form of imprisonment, fine, or stripes. There is no logic behind the finding of my learned brother 4a4'ela6w kopmffedi Gbiatmego that in case of most M.fribtus kind of offence, say "Zina", when proved according to Islamic standards of evidence the punishment would be 100 stripes, or so, but when it is lesser in gravity and is also not proved by such evidence, as required,"Rajam" could be awarded. If that is done it would be offending. Holy Quran itself which says punishment according to gravity of offence (Quoted earlier). While fixing the punishment for the later lessIsevere kind of offences the legislator can make use of the following Hadith on which all the 'commentators are unanimous.

tr, • f VC. VOW e (&5 rij5 V i e6:Alj 0

02)74 ;J,(70

8.Finally I am of the view that Sections 5 and 6 of Zina (Enforcement of Hudood) Ordinance are repugnant to Holy Quran and Sunnah as the punishment of Rajam has no nexus with Islam. It can'4; not Woe be awarded by way of "Tazir". Of Course a Conti... .P/14

14 - (qo punishment less- in gravity than 100 stripes can be awarded in cases not attracting Quranic 'tt7;

Punishment. The petitionhareal1Owed.-

21 A>1/4

MEMBER-III ."

Vs. Federal Govt.

Hazoor -Bakheh of Pakistan...

S.P.No.621L of 1979:

M.I. Chaudhary and Others Vs Federal Govt. of Pakistan.

JUDGMENT:

Karimullah Burrani M J: Hazoor Bakhsh s/o Nhuda Bakhsh of Mauza Ghalwan, Distt.

Muzaffarghar in S.P.No.59/L of 1979 and Messers M.I. Chaudhary and IkramcUl-Haq Naseem of Lahore in S.P;No.62/L of 1979 have assailed the , 'Muhsan' and definitions of 'Adult', 'Hadd l

'Tazir l as given under clauses (a), (b), (d) and (e) of Section 2 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (Hereinafter called the Ordinance) and also • Sections 5, 6(2), 8 and 17 of the Ordinance whereby punishment of stoning to death for the Offence of Zina and Zinagbil-Jar liable to 'Hadd;

the mode of proof of the said Offence) and the 4the sentence have been mannerofearrYing tLtS prescribed and have asked for a declaration from .• /A this Court of tha repugnancy of the said provisions of law to the injunctions of Islam as laid down in the holy guran and Sunnsh

P/2...

:P.7771

of the holy Prophet.fPeae'e be upon Him). Q.

2.We have heard at length Mr.Shamim Abbas Bokhary Advocate, on behalf of the Petitioner in S.P.No'.59 of 1979 and Mr. Muhammad Iqbal Chaudhary, a petitioner in S.P.No.62. Mr. Riaz7u1—Hassan Gillanir Advocate, represented the Federation of Pakistan, while Mr. Bashir Ahmadr Advocate, appeared before us on behalf of the Government of the Punjab. it After hearing the parties, we deemedtnecessary to prepare a questionnaire on the different aspects of the subject and to invite more than one learned Scholar of Islamic Ff4b. out of the Panel of Jurisconsults of this Court to express their opinion thereon. Pir Karam Shah Sahib of Bhera Sharif in addition to his comments and answers to the inquiry, sent to us his book on the importance of Sunnah in the tenets of Islam, namely " 4 , .". Allama Syed Mohammad Razii,,gMujtahid of Lahore was also kind enough to send his detailed and well argumented answers to all the questions along with a very learned discourse on the topic as a preliminary thereto. Maulana Mohammad Hanif Nadvi, Deputy I-Dt4rector40Ail;eJttl-r “).cir,Jahore, also took great pains 7,4e in an attempt to satisfy this Court on the matter agitated before it. I will be failing in my duty in not putting on record on my behalf and on behalf of the Court our deep sense of gratitude to the said learned Scholars for their prompt response on the call of this Court to this matter of great importance. But before entering into the discussion on the views of the said learned Scholars, I would like to mention in detail the case of the petitioners in both these petitions and my humble understanding of the question involved.

Contd P/3

1 I

a

3.The whole gambit of the arguments of the petitioners revolves around Verse No.2 of Chapter 24 (eji) of the holy Quran which prescribes 100 lashes as punishment to a (c9.1 i) axle/6r to a (4.121)). This Verse reads as under:

4, a

I all cr../ 4:9 Lopt r -S 11-

oct1,,r,

Translated into English/it would- r-ead: "The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. And let not pity for the twain withhold you from obedience to Allah, if ye believe in Allah and the Last Day. And let a party of believers witness their punishment".

Ithas been translated in Urdu byll,..0-IcieitUp in his C.disdins; Volum IV as under:

C 2 le 1-1;7 _15 1 1)1° C-5c 1 CL . f 1 L) el° t35; -c- P ustr:

e u L1/4 I J-“?-1-4) _19 1 ce.) Jfld,SI LL 2

4.The contention of the petitioners is that in the - presence of 4 clear injunction of the holy which . is_prescribed Quran another punishment excepting that/would not. be permissible. To Stress the point, reliance has been placed over a•number of other Verses of thev,e4M4:

./9-.) as well: as some out of the Chapters of st.ifi(4) (5) I ts:1( 1 7 )

L.IJ9P(33) '

5.Verse NO.f of Chapter 24 has been relied upon by the.petitioners for the contention that the punish- ment prescribed in the above quoted Verse (24:2) for the offence of- Ziha, irrespective of the fact whether it is committed by a married person oian unmarried one is a final word, because by virtue of the first Verse gihis'Xhapter 0.9j1) has been declared mandatory and binding by the use of wordTliin respect thereof. This verse was rendered into English by MOHAMMAD MARMADUKE PICKTHALL as under:

"(Here is) a surah which we have revealed and enjoined, and wherein We have revealed plain tokens, that haply ye may take heed".

It has further been contended on behalf of the petitioners that by virtue of the verse 3 of the same Chapter, a punishment of death either by stoning or some other method cannot be read into law because it has been laid down therein that:

"The adulterer shall not marry save an adulteress or an idolatress, and the adulteress none shall marry save an adulterer or an idolater. All that is forbidden unto believers".

In other words the argument is that unless an - an adulterer ang.oriadulteress is allowed to live after- the 'punishment for the offence is meted out.) twarat,4 his or her marrying in the same category of the- 2 nenderskor of the idolators would not be possible.

6.Verse 25 of Chapter 4 has. been relied upon in support of the contention that the punishment of death could not be for the offence under discussion as Contd....P/5.

I.

this punishment cannot be halved in case of a slave woman who, according to this Verse, has to be awarded half punishment of that which is prescribed for a 'Muhsana'. Similarly, it has been urged that as the wives of the holy Prophet (May God be pleased with them), have been warned of the double punishment in case of their indulgence in ' :4; 6' (Manifest lewdness) it is not possible to double the punishment of death. The punishment, therefore, has to be capable : of being multiplied by two. It has also been contended . that 'Rajm' is nowhere mentioned in the holy Quran as a mode of punishment for any of the offences enutherated therein. Some other Verses out of the rest of the above quoted Chapters have been cited wherein the word 'Muhsan' or 'Muhsana'kgb-Z-Ure in one context or the other in an attempt to show that it does not always mean a married woman or a married man. Hence objection to the definition in Section 2(d) of the Ordinance.

7.When confronted with a number of Ahadith found in almost every compilation constitutOgH%,;part of I reC ' and other compilations wherein the holy Prophet (Peace be upon Him) has been stated to have awarded punishment of 'Rajm' on more than one occasion, it was contended that some of these Ahadith are not authentic while the rest relate to the happenings which took place before the revelation of the 24th Chapter ( J.57:)). As a last resort, it was vehemently contended on behalf of the petitioners that even if these Ahadith had related to the events taking place after the revelation of the said Chapter, in the presence of the ciear injunction of the holy.Quran not be possible to act on these precedents and these will have to be overlooked. In other words the same Contd.:.P/6

.c.

old controversy has once again been tried to be raised through these petitions in this Court which had for sometimein the past agitated the minds of a class of Intelligencia and therefore of some of the framers of the various Constitutions of the Country, and which was to the effect whether the application of Islam in Pakistan should be in accordance with the Quran only or Islam would mean a way of life in accordance with the holy Book and the Ahadith of the holy Prophet Mohammad (Peace be upon Him). This controversy was finally set at rest by the framers of these Constitutions in adopting a formula, whereby Injunctions of Islam were interpreted as those which were in accordance with the holy Quran and Sunnah of the holy Prophet (Peace be upon Him). The same was retained in the Constitution of 1973. A reference to the present constitutional position at this stage would not be irrelevant. The Constitution of 1973 has the following as a part of its Preamble:—

"Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the holy Quran and Sunnah",

Article 2 of the Constitution has t0 be read in the light of the above which lays down that Islam shall be the state religion of Pakistan.

Contd...P/7.

The following ae,&bile .6f the principleE§of p,blicy was. ncro-rposratec*ih%the cans'titutton-esfts Article 31a 31('l): "Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the holy Quran and Sunnah". (Art.31(1)

The Constitution further provides in its Article 227 'that:

"All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions".

8.From the perusal of the above mentioned Articles it is manifestly clear that the Constitution, while taking steps to enable the Muslim citizens of the State to mould their lives in accordance with the tenets of Islam, has given to the expression 'Injunctions of Islam' a ,, AWEJ.i.d.te“)meaning as those Injunctions which are in consonance with the holy Quran and Sunnah. The purpose behind the use of this expression was to bring to an end the controversy as to interpre— tation of Islam for the purposes of Constitution and laws of the Country which were to take guidance from both the holy Quran and the Sunnah of the holy Prophet (Peace be upon Him) and Contd....P/8.

are to be brought in conformity theirwith. While examining Article 203—D, of-te -tat, Constitution in this back—ground and in the light of other provisions of the Constitution, it is not difficult to come to the conclusion that no departure has been made from the above stated position in conferring jurisdiction on this Court to make a declaration of the repugnancy of any larto the Injunctions of Islam, and this expression has, once again, been clearly defined in the Article under reference by incorporating therein the phrase "as laid down in the holy Quran and Sunnah of the holy Prophet" which immediately follows the said expression. Thus jurisdiction of this Court is confined to holding a law or provision of law against the tenets of Islam only when such law or provisiont)of law oannot derive its justification or permissibility either from the holy Quran or the Sunnah. It would, therefore, be futile to ask this Court to overlook the Sunnah of the Holy Prophet(Peace be upon Him) and confine itself to the examination of the impugned law in the context of the holy Book alone. The word 'and' in this article as well as in the other above quoted articles is used both as a conjunctive and as a disjunctive in order to allow the examination of a given proposition of law in the light of both the holy Book and the Sunnah, or if it may become necessary, of either of the two.

This interpretation of the phrase as laid down in the holy Quran and Sunnah of the holy Prophet would not be totally against the rules of interpretation of Statues.

"In ordinary usage, "and" is .conjunctive and "or" disjunctive.

But to carry out the intention of

Contd. • • • • P/9.s. "

I I

the Legislature it may be necessary to read "and" in place of the <bailitiiittfeit_,flor", and vice versa, "The Disabled Soldiers Act 1601, for example, in speaking of property to be employed for the maintenance of "sick and maiMia soldiers," referred 3Ar

to soldiers who were either sick or maimed, and not only to those who were both.

"The expression "local and public authorities" in section 4(2) of the Prevention of Corruption Act 1916 has been held by Winn J. not to "mean authorities which are both local and public...(but) authorities which are either local or public."

( Maxwell onlatabites 2th radon sifiL Pages 232_33)?

" 'And' may be read as 'Or' and 'Or' read as 'and', if the sense requires it".

(Statutory Construction .— Interpretation of laws by Crawford)

P/10....

I

S

In this view of the matter once one comes to the conclusion that authority for a law - or a provision of law formulated by the Legislature can be derived from either of the above 'mentioned two sources of Muslim law 1.e. the Quran or Sunnahxxxflurisdiction of the Court in respect of making a declaration of repugnancy of such law to the Injunctions of Islam would come •to an end.

This brings us to the buedtion as to whether the 'impugned provisions of law derive their authbrityfrom the Sunnah of the Holy Prophet which in itself is a recbgnised source of Islamic law? But - before proceeding to examine Whether the the • ,4h, impugned provisions of "Rajm" in/Ordinance xmuoc are repugnant to the Holy Quran or to the• attelipt to Sunnah, I would like to/determine the correct definition of the term "Hadd" in the 'context of Islamic Injunctions •for the 'purposes of the Ordinance. The definition given by I clause (b) of Section 2 of the Ordinance is as follows:— "Hadd" means punishment ordained

by the Holy Quran or Suhnah.:

L

13: "Hadd" is an Arabic word whichaitetany means prevention, hinderance, an impediment, a withholding,Teaprt3f a debarring, inhibition,.

forbiddance, prohibition, or interdiction; a repelling, or an averting. Edward William Lane in-"419.70C-2", An Arabic-English Lekicon, after giving the above Meaning to the Word further eiebdrAtea the Meaning thereof by referring to its plural :,.°2.1 1ag4gyas used in law:

"The Hadood" of God are of two

kinds: first, those ordinances

prescribed to men respedting

eatables and drinkables and. marriages; what are lawful thereof and what are Unlawful; the 'second kind, castigations, or punishments, prescribed, or appointed, to be inflicted upon him who does that • which he has been forbidden to

do; as the "Hadd" of the thief, which is the cutting off of his right hand for stealing a thing of the value of a quarter of a deenar or more; and that of the fornicator ot fornicatress, which is flogging with A hundred stripes and banishMent

for a year; and that of the adulterer or adulteress, which is stoning; and that of the person whd (falsely) charges an honest or a married woman with adultery, which is flogging with - eighty stripes (as is also that of the person who has committed the crime Of drunkenness): the first kind are 'called "Hadood" because theY denote limits which God has forbidden to transgress: the sedond, because they prevent one's committing again those acts for which they are appointed as punishments; or bedause the limits thereof are determined:

the latter kind of "Hadd" is also explained as being that(eastigation, or punishment) which prevents the criminal from returning •to his crime, and prevents others from committing his crime:"

The learned Compiler further refers to ‘staying of Hazrat Omar (God be 'pleased with Him),

13 II

L

...--Cis

CI ,

Contd.. .....

which According to him means that, "Hadat thou seen him engaged in an affair requiring the infliction of the Hadd".

"Hadd" further means;

"a bar, an obstruction, a partition; or a separation, between: two things, or between two places or between two persons, to prevent their coMmixture, or confusion, •or the encroachment of one upon the other: - Then again its plural form i.e “tta'doodwouid:1 mean a limit, or•bOundary, of a land or territory. When a person eXceedes the proper, due, or commom, 1imit;rbecomes o excessive,, immoderate, beyond measure,' enormous, inordinate, Or exorbitant, then it is called e 1.‹ N>9\p-c2f

(ibid Part 2; page 525).

14.Keeping in view the AboVe - stated litral meanings of the word, "Hade in short would Contd '14.

mean a restraint placed against transgression of a person croWthe proper, due and legal conduct.

To search for the Quranic meaningsof the word under discussion a reference has to be made to a number of Verses in which this word in its plural form i.e. "Hadood' in one context or the other. Some of these Verses are as follows:— In Verse No.187 of Chapter II after' . ,S permittingcico],tilbig52between the spouses in - 61ie nights of Ramzan and laying down themm.ffigflor the observance of fast during the day, it is stated:

,“.6.....,> :4; Ay imthpcmi

.1,which in English would read:

I/

These are the limits

imposed by Allah.S67tVeot transgress them.

Needless to say that in this Verse

the permission and the restraint placed on a believer by God Almighty have been described as limits of Allah. Again in Verse 129 of the same Chapter'' ' this word, with the same meaninarepeatedly for four times. The english rendition of this Contd P/15...

Verse by Marmaduke Pickthall is as under:

N.)

"Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom hereself. These are the limits (imposed by) Allah. Transgress them not. For whoso transgresseth Allah's limits: such are wrong—doers".

The same word with the same meanings and implications is used twice by Allah once again in Verse No.230 of the same Chapter.

17.In all these Verses injunctiOns laid down by God Almighty in His Book have been described

I -

aS "Hadood". 20 this extent there could be no dispute as it is nobody's case that the restraints placed by God Almighty in the holy Book are not i.e. the limits of God, which should not be transgressed. Now the question arises whether those injunctions which do not find their express mention in the holy Book but are derived from the conduct of the holy Prophet (Peace be upon Him) or from his verbal directions would also constitute fe.)W1 i.e. the limits of God. A study of the following Verses of the holy Book would throw Contd P/16. -

ample light on the topic. Verses 13th and 14th of ChaoterIrof the holy Book are as follows:

ji 4.11 tio, ,JJ I Jj

j WC?,

0 as sll toast crjOre_LAI .1

0 cx.--e. 44,42:if?

Translated into English:

13.--PyThe8&,a-re?-2.thaaithitseimposed by) ltahVY:Whoso obeyeth Allah and His messenger. He will make him enter Gardens underneath which rivers flow, where such will dwell for ever. That will be the great success".

14." And whoso disobeyeth Allah and His messenger and transgresseth

His limits. He willmakehiM-r,Onter *c3ire-- where he will dwell for ever; his will be a shameful doom."

18.In a nut shell, whoso obeys Allah and Hii-kessenger remains within the limits of God as against those who disobey Allah and His s JO Prophet (Peace be upon Him)( ttley!1*-Oatantsgress His limits. These Verses therefore, widen the scope of "Hadood" so as to bring the Injunctions - Contd. ...P/17.

ft

of the holy Prophet (Peace be upon Him) also 312P-7". This proposition within the confines of "4:

finds further support from yet another very clear injunction of the holy Book as contained in Verse 80 Of the same Chanter (IV), which is as under:

J.,: L:73.9 din t)-61 W4 1 Liat.

- rt__dis• <1_ I • Li

Which in English means that,

"Nhoso obeyeth the messenger bath obeyed Allah, and whoso turneth away:

We have not sent thee as a warder over them."

19..The final word on the subject is Verse No.36 of the Chapter "C-YAgathich contains clear injunctions to ther.effect,-that tur-7".*

whatever is decided by the holy Prophet (Peace be upon Him) would be as binding as that of Allah and that it is totally forbidden to the believers to haveAalvzsanin the matter Contd. ....P/18.

after such a decision is made. This Verse reads:

. c,f,..1 d1.1 (.5.4a; I .3 I .2.4)

19.9 di fl 41) loart. uJ

The english rendition of the Verse by the above named learned translator is as under:

"And it becometh-nbt a believing man or a believing woman, when Allah and His messenger have

decided an affair ( for them ), that they should ( after that ) claim any say in their affair;

and whoso is rebellious to

Allah and His messenger, he

verily goeth astray in error

manifest."

Contd. ...P/19.

p.

A further, stress is placed on the

following in: the foot—steps of the holy Prophet (Peace be upon Him) by the believers in the following Verse:

. cAicyki a-A1--friir 61&-ly th3 cHG-3 I 4(j'e

" :-Tth1-/415:531 r.SP9 cSzs which means :

"Verily in the messenger of Allah ye have a good example for him who looketh unto Allah and the Last Day, and remembereth Allah much." (33:21)

It was for this reason that every

recognized Ekih of Islamic 'Jurisprudence has defined "Hadd" in:the context of crimes as that punishment which stands prescribed either in the holy Book or by the conduct or the word of the holy Prophet(Peace be upon Him). No sect of the Muslims disputes the dual capacity of the holy Prophet (Peace be upon Him) vis—a—vis the Sharia as of a " "2" as well as of .

". In the former capacity the holy Prophet (Peace be upon Him) is a Legislator and the injunct— ions laid down by His Sunnah constitute a part of the divine law. In hisqatiii7capacity, he is the commentator oft the holy Book. He teaches, explains, defines and propounds law which is revealed to him

P/20

,r

in the holy Book. It is in these capacities that he imparts meanings to the revealed word:

"Therefor (0 Muhammad), bear with

what they say, and celebrate the

praises of thy ItordeUjthe rising

of the suftiand ere the going down thereof.

And glorify Him some hours of the night and at the tIno ends of the day, that

thou mayst find acceptance."

and prescribes the number of prayers as five in a day and (axes the exact timings for saying them. It is.by the his injunctions and conduct that/Ulna learns the manner and mode of the daily prayers. He acts in the capacity of the " i-- when he gives the Nisab of Zakat and he t'fli when he excludes cer— acts in the capacity of a 00‹,

tain chattles from being liable to the incidence of the said Tax. Similarly,'Wheri*God Almighty ordains that the k handOof a male or female be cut off on the commission of the offence of theft:

"As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise."

P/21

QI

Plain meanings of the above Verse would not allow any 'categorisation of thieves so that some may escape the ordained punishmentOathe holy Prophet (Peace be upon Him) defines the limits by prescribing the quantum of the value'of the stolen property for bringing the offence under the pale of the said Ordinance. Ahadith from UMmul Mominin Aisha and Hazrat Ibe—e—Umar that the holy Prophet cut hand of the offender for the theft of the things worth one qmrer of a Dinar,or more (Bukhari and Muslim) refer. Hadd for the offence of -theft thus - becomes laid down in accordance with Quran and Sunnah and through sunnah of the holy Prophet we come to know that an eleOtion to the above stated extent, would be read in the definitlon of " and for a ythief who steals goods of the

value of less than 1/4 of the Dinar.

22.It is, therefore, in the capacity of a that the holy Prophet meted out the punishment of 100 lashea,to unmarried Zanis and Zanias. On the other hand, it was in the role of a " " that he awarded greater punishment of death by stoning to a .;491 r77.7 or or beheaded the perpetrator oftH..

inc-and in doing so he was neither overlooking the Qur partly nic injunctions nor was he treating themes 4revoked.

He was merely defining and explaining by his conduct the applicability of the Verse (24:2) on a definite class of offenders by enforcing it on the unmarried boy and at the same time by awarding the greater sentence of stoning to death to the (Seett- -fmare ,on(thi:+2:—.alater) married femalelheWas'but prescribing greater punishment in an64- favated formroffo'ffinee) r - According to him both these punishmentpwere in consonance with the Book of God as he stated on oath of Allah to the father of the male culprit that he would decide the matter according to the Book of God. This explanation of the holy Prophet can be so interpreted as that both these sentences were according to the spirit of the law ofltht.-:tBook.

23.To understand the word of Godip-thflunnah of the holy Prophet becomes indispensable. The office of the Prophet is explained in these Verses:

11).6ti D I L5:9 is al I '43

rctist rt, . 15-L.t.

4.4/ Hs.

I

yt2 iji4 Li

( JI

Maulana Abdul Majid Daryabadi translates it as under:

"He it is Whb bath raised amdist the unlettered ones an apostle from among themselves, rehearsing unto them His revelations and purifying them and teaching them the Book and Wisdom, Though they have been aforetime in error manifest.

P/23

e

e

q And also others of them who have not yet joined them. And He is the Mighty; the Wise"..

and it was for this purpose that Ibrahim (Peace be upon Him) asked for the blessing of God on the people of Mecca in sending to them a Prophet from amongst themta

rtvis. 113,-) rt.; c-txt 1:1-4J r.

2o.S.,..115,.4 1 racist, Szt 1 k

ihcr.

The same learned translator renders it into English as follows:

"Our Lord! raise up unto them an apostle from among them, Who shall recite unto themlliey revelations, and shall teach them the Book and wisdom, and shall cleanse them. Verily Thou!

Thou art the Mighty,the Wise."

24.Now coming to the office of the Prophet in laying down the divine law by his words and deeds, a reference to some other Verses of the holy Book besides the 13th and 80th Verses of Chapter IV quoted above, would be of some benefit. These Verses enjoin on the believers full obedience to the injunctions and directions of the holy Prophet. This mandate is repeatedly mentioned in case of Contd....P/24.

Ir

It

every Prophet obedience to whom is equated to Jae-obedience to God in the same degree. These Verses are:-

I .Say:pbey Allah and the messenger; But if they turn away, lot Allah loveth not the disbelievers( in His gUidance). ( 3 : 32 ) if777-77-1T7f14 And-oteY7Allahfaa: the messenger, that ye may find mercy.

III 0 ye who believe! Obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last• Day. That is better and more seemly in the end.

( 4 r 59 ) IV The ask thee (0 Muhammad) of the spoils of war. Say:- The spoils of war belong to Allah and the messenger, so keep your duty to Amax, and adjust the matter of your difference, and obey Allah and His messenger, if ye are (true) believers."

V 0 ye Who believe! Obey Allah and His messenger, and turn not away from him When ye hear (him speak).

Cbntd.

VI 'And_obey Allah and His messenger, and dispute not one with another lest ye falter and your strength depart from you; but be steadfast ! Lo ! Allah is with the steadfast.

VII And the believers, men and women, are protecting friends one of another; they enjoin the right and forbid the wrong, and they establish worship and they pay the poor—due, and they obey Allah and His messenger. As for these, Allah will have mercy on them. Lo! Allah is Mighty. Wise.

VIII Say : Obey Allah and obey the messenger. But if ye turn away, then (it is) for him (to do) only that wherewith he hath been charged, and for yo (to do) only that merewith ye have been charged. If ye obey him, ye Will go aright. But the messenger hath no other charge than to convey (the message) plainly.

IX He tho obeyeth Allah and His messenger, and feareth Allah, and keepeth duty (unto Him): such indeed are the victorious.

X And stay in your houses. Bedizen not yourselves with the bedizenment of the Time of Ignorance. Be regular in prayer, and pay the poor—due, and obey Allah and His messenger. Allah's wish is but to remove uncleanness far from you, 0 Folk of the Household, and cleanse you with a thorough cleansing. ( 33 t 33 Y Contd. • • . p/26.

He will adjust your works for you and will forgive you your sins. Whosoever obeyeth Allah and His messenger, helerily hath gained a signal victory.

XII aye who believe! Obey Allah and obey the messenger, and render not your actions vain XIII There iS no blame for the blind, ,nor nor is there blame for the lame>,1 is there blame for the sick (that they go not forth to war). And Whoso obeyeth Allah and His messenger. He will make him enter Gardens underneath Which rivers flow; and Whoso turneth back, him will He punish with a painful doom.

XIV Fear ye to offer alms before your conference ? Then, when ye do it not and Allah hath forgiven you, establish worship and pay the poor—due and obey Allah and His messenger. And Allah is Aware of what ye do.

Obey Allah and -'His messenger; but if ye turn away, then the duty of Our f messenger is only to convey (the message) plainly.

25.From the perusal of the above Verses of the holy Book, which are but few out of a great number, it become)? *crystal clear that faith i.e.

Contd.,

I • •

. J

Verses will have to be kept inglancM,

26.- 'Hadd' in the criminal law of Islam means a fixed punishment for an offence whereby right of God is violated. This punishment would either be fixed in Quran as is in case of offences of Kazif and theft or would be 'Hada' fixed by the Sunnah of holy Prophet (Peace be upon Him) as is in case of Rajm or it would bc fixed by the consensus of the Companions of the holy Prophet (Peace be upon Him) i.e. by'T,tetUen as is the case of Hadd for drinking wine.

Allama Syed Mohammad Razi has quoted the of following passagq(Abdur Rehman Al -Jazari from his ;AI 4J1 a, _11 'L___)16.) page 7 :-

01 kJ Si LI: al ait. sob : Laiull - I cB.1:.401 Lti " r ll—ll I

47.3.r. ..ioJyjitj$c , j u4l

r_e_:...su csk, .36,41 _ 4tfJloL BI,,. 1.1m.15 He has translated the above into Urdu as follows:

&x-e I Li) I" (-kr cli-kel JAI; de.ty:

41-1 1 .), I (

01}(•otjI C.17.44 ) sc cAr Lt. 0-1 r j .1; . j .ti Lre“, 4=9-1"1-'t 4I tie- . LI 47: ci-10 I 4.n reir:

LT.: et.: 4.;:f j.":”" ;P. 4.7.`C • 04€ ji I) Lit° C.) t: P 1 a. k. - c orA t..5-en' et" (11'1-1ol Jar- c1/4.4, in L c5C-,-"1"-° c)Iii ur-C 1-x•ji e J 5° v-:" 1“.)-55 1 dr> . 11-1 cAt• 41 6'0 L14-t-1.2, I e•-%4L9 27. I am further fortified inlifecteinleYtion in regard to 'Hadd' that it may also be fixed by the consensus of the Companions of the holy Prophet(Peace be upon Him) by that what was done in case of 'Hadd' for drinking by 'Qazi Abu Yusaf' as mentioned as in his

P/29.

whereiln he prescribed that whosoever commits the offence of '121 in the month of Ramzan he will be punished with 80 stripes as 'Hadd' and some more as Tazeer, for indulging in this offence during the holy month of Ramzan.According to 'Qazi Abu Yousaf' it was the practice of Caliph Umar (God be pleased with him).

28.It would be interesting to note that the word ',Hadd' in its singular form in reference to the fixed quantum of punishMent has nowhere been used in the holy Book. The Verses quoted elsewhere in this judgment relate to the word 'HadoOd' with the meanings mentioned in its context which does not mean the fixation of amount of punishment for a crime. .7014-04" :in his 'Almabsuts(Vol:5 page 36) defines '1-Tadd':

"'Hadd” ih Shariah is a name of that punishMent which is fixed and which becomes enforcible as a right of God.

It is not called a tazeer because tazeer does not have a fixed quantum. It is also not called ' 0,1411 as ' cote' is a right of man". ' (translation is mine)

29.The same:learned author further clarifies 'Hadd' in case of offence of Zina in spliting it into two kinds one being Rajm for ' and the other being TOO lashes for a hor9married man or woman ' --916/ further proceeds to describe Rajm as 'Hadd' as derived from the Sunnah of the holy Prophet(Peace be upon Him) (ibid page 37). .._:3`6";i4 in his _31/20,11k: (Vol: 7 page 98) defines 'Haddr as being that which restrains from an act and also that which is the punishment of the offence is so called ( as it prevents the OUlprit from going back to the crime and also becomes a restraint for others not to indulge in that sin. According to is called 'Hadd' because it becomes enforcible as a right of God and has fixed quantum as against the tazeer which is not fixed.

Contd. P/30.

30.Needless to say that whenever a transgression of the limits of God occurs the right of Allah stands violated and the tralisgresser becomes liable to its consequence which in certain cases results in corporeal punishment. But it is not always necessary that 4ñ every violation of the right of God the punishment must also be prescribed by Him. Often a penalty for such transgression is provided by the practice of the holy Prophet (Peace be upon Him) or by the consensus of his companions which fixes the quantum of punishment. The punishment itself is called 'Hadd!

yytLJs1 "(LIP Vol.• 3 pp 153-154) while commenting on the use c:f the word and I"- a .51'm 1/21 .64-9-^' i.e. 'penalty' and 'fixed' in y, explains 'Redd' as being that which is i5rdained by Llran and Sunnah and has a fixed quantity. This learned Commentator quoting c 4i from his &Da:7

book . iTe includes Rajm in Hadd as it amounts to death. He further explains the wisdom of these in . haria punishmentsZas 'Hadood l i.e. Rajm in the offence of Zina, cutting off hands as punishment for theft, etc;ci47A4aglia* 7 as the right of God because by virtue thereof paternity, property intel-reb't andC of menkind get protected.

"Pufiishment for criminal acts provided by the quran or the Hadith is called - 'Hada'. Where no such punishment is provided the gazi was entitled to act on the principle of Tazeer and administer such punishment as he considered necessary keeping in view .. the circumstances of each case': _-

P/31.

t

Says Mr.Justice Sh.Aftab Hussain of Lahore High Court (nowdone of my learned colleagues in this Court) in his paper on the 'Contribution of Islam to Religion, Politics and Culture" read out in Colombo in a recent International Conference held in connection with the Celeberation of 15th Century of Hijra.

A distinction at this stage has to be a.

brought out in between the right of God or.right for God and an injunction of God. All those offences which are committed in violation of the former carry 'Hadd' as punishment thereof whether or not directly prescribed in the holy Book. An injunction of God is that ordinance which is expressly provided or prescribed in the Quran. In view of the above discussion, I am of the view that no exception can be taken to the definition of 'Hadd' as given in clause (d) of Section 2 of the Ordinance. The definition in question is rather in exact conformity with the Injunctions of Islam. A number of Ahadith have established that meting out the punishment of death by stoning to the free and married male and a .

free and marri-ed female has undoubtedly remained practice of the holy Prophet. This therefore formed his Sunnah. Now coming to the fixation of the period when this was done by the Apostle of God (Peace be, upon Him) every individual Hadith has to be analysed in the context of its narrator or narrators and of the manner wherein it was understood by the rest of the companions of the Messenger of Allah. So also is to be seen the meanings, interpretation, effect and implication of Verse 2 of Chapter XXIV.

Contd. P/32.

35.>White, examinmng-the-Veree-Crthe-Tunishmentif .,]Zia'dyit would be found that all commentators of'the holy guran of earlier as well as of the later period with the solitary exception of 4MaulanaMohammad Aliit Lahori! Sect of Ahmadisi have held the Smc kk - xx_L3Ps word 11 and "r-sulli-I Selative only to unmarried fornicator or fornicatoress. “r) 36.1,Af 411illethjs6f41cd-vvoi:d- 2:412 as follows:

"the Arabic word denotes sexual intercourse between any man and woman, whether married or not, who do not stand to each other in, the relation of husband and wife, and, as such, has no single-word equivalent in English language. It includes both adultery (i.e. illicit sexual intercourse of the two persons either of whom is . married to a third person) and fornication (i.e., illicit sexual intercourse of unmarried person.)"

Maulana Abdul Majid Daryabadi further: comments on the above quoted Verse as under:

"The practice of the holy Prophet, the Sannah l reatFicts this punishment to the case of 'unmarried offenders. The people who are married and are of free condition and are yet guilty of sexual misconduct are to be punished by stoning. Note that the law of Islam makes absolutely no distinction between a male offender and a female one. Both are equally guilty and equally punishable. The penalty for adultery in the Bible is undoubtedly death, probably by stoning. Of.

both the OT and NT:- And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death.

l(Le.20:10) 1

P/33.

If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman, so shalt thou put away evil from Israel. '(Dt. 22: 22)' If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her, then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die.' ( 22: 24, 25 ) 'Jesus went unto the mount of Olives .... They say unto him, Master, this woman was taken in adulter, in the very act. Now Moses in the law commanded us, that such should be stoned : but what sayest thou?' (.311 8: 1-5) in the OT times, 'unfaithfulness on the part of the bride during the interval between betrothal and marriage was regarded as adultery, and might be punished with death. She was to be stoned, not strangled. '(DB. 1. P.326)' The mode of execution varied with the standing of the woman: a guilty wife was to be put to death, i.e., strangled, along with her paramour, while a betrothed woman who was seduced was to be stoned'. (111. P.273) 'In the c--- law the only recognised form of capital punishment is by stoning..... It fell to the witnesses to cast the first stone. '(EBi.c.2722)'Prostitution by a betrothed virgin, ... and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning. )(JE. 111.P.554)." (Tafseer—i—Quranqinglish), bi'Maularia Abdul Majd DaryabpAii"Veil:II F 338—A7. - -erttsm-- Contd. ....P/34.

37.te-11-,01 . I 1:11.9° whose. Urdu translation of Verse 2 of Chapter (Dr.

24 of the holy Quran has been re-produced in the earlier part of this Judgment after expressing his opinion that the Hadith narrated by lt72.1_,9 old le from the holy Prophet (Peace be upon Him) which beings with the i.e.'take it from me It cannot be words ' relied upon as a source for the validity of the 'Rajm' for the reasons explained by him and also that the words " " occuring in another

Hadith said to have been attributed by 'tp ' to the Caliph Umar (God be pleased with Him) as being the diadS it cancelled Verse of Qurani,as having been spread by c2He t and therefore, not authenticdposesCt a question, inter-alia, as to what is the source of the punishment of 'Rajm' and then proceeds to anSWer the same in the following discussion on the subject:

utrt I .291. k.71 tn.,: 5 u -re LLscArt.

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38.The Maulana further proceeds to state that the punishment for married or unmarried persons is one and the same which is prescribed in 24:2, but at the same time says that the state can award punishment of 'Rajm' in extreme cases as 'Nakal'. Apart from the fact that the learned Scholarjwith profound respect,has contradicted himself by this observation, the view held by the most important Companions of the holy Prophet like the orthodox Caliphs and others of which he himself has stated in the earlier part of the aboVe reproduced commentary that to deny these traditions is to deny everything, is entirely against the conclusions drawn by Maulana Islahi.

Contd..../ 37.

39.Alma Alusi in his commentary on the_ holy Quran, namely 11 (Vol: 16-18 pp68-74) dealing,with the subject, is of the opinion that the Verse under reference is not operative in the case of " " or " " and to that It extent it stands abrogated by Without conceding the principle of abrogation of any part of Quran by any thing other than the holy Book itself, a , referenca,to his further - comments diiiiiiianot be • benefit. Rendered into English these are:4 "but the Ordinanc'e of lashe§it not"

C.).44.11C,

o1 applicable to a " " or " H.

for him or her is mRajm" and for this conclusion even , a single order and act of the holy Prophet (Peace be upon Him) would suffice for us and this order and act of the holy Prophet(Peace be upon'HiM) was repeated several times. Thus C (nuskh) of the holy Book occured by It and the Companions agre6d on it. And the Imams of Muslims and the learned of the " d-' 1 " belonging to , the earlier times all had consensus on that stone is for the " " till g his death and the refusal of the " from this is iv L/14 " because if thec deny the consensus of the Companions oi this issue then it is their ignorance and if they deny that stoning to death neverCoccurred during the lifa.time of, Contd. •..1938.

the holy Prophet (Peace be upon Him) then they are denying alla-til 1 91'. They are not believers in -ST Ahadith. We are not in that category. The proof of 'Rajm' from the holy Prophet (Peace be upon Him) exists by !i ;t '. (repeatedly) as the bravery of Hazrat Ali (God be pleased with Him) or largess of I Ft> I are known to all. Likewise, 'Rajm' is also known to.all. These Ahadith, if looked into separately would eachthe'n ..L.,-1.2141 but collectively these become (repeated)9 .1,(translation is mine One might, with due deference, differ with Alusi on the question of 'Nuskh' of the holy Book by the practice of the Prophet (Peace be upon Him), but the fact remains thatA2e assertions quoted above apart from the principle of 'Nuskh' carry much weight. The matt3r stands much clarified by ILL-Pie.,-,Ln irl. lin his a)t11 &a commentary on the compilation of Bokhari (Vol:13 page 120), who incidently has included rtpse Ajin hisai 1,7M , in that there is no 'Nuskh' of the Verse 24:2 in question or of the holy Book for the matter of that in the matter of Ifiajmg as the Verse of the holy Book only relates to ' crap...x.1 '.

40.Maulana Mohammad Hanif Nadvi in his comments on our questionnaire has very ably thrown light on this subject as under:— J:11~4;41 LI) *Ice, ye t--1; 1 .,1 Oy re j C)e Lnjje-c!cbtr, -661. et?) IC: c--€ L.j)kr1-2-1 Ce B:S1 6 -1-1--,c-erdS.,--a dt •- Ceti!) kc J"--- kik ) j 1.2,40 u -IS a t5" 311 o lEce by_c cp. ai ,&,Icejitz I

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41.It has also been urged before us that punishment of death by stoning does not form one of the modes of the punishments prescribed by7/Ouran. This argument is not tenable because in the last analysis, the stoning is a method for putting a person to death. If in certain cases penalty of death is available in ranic injunctions then objection to a certain method of bringing about this punishment would not be exception- able.

42.Now in Verse No.33 of Chapter IV different types of punishments are prescribed for those culprits who wage war against ".lah.and His opstle and go about in the land corrupting. These are:

To be slain.

To be crucified.

Hand and feet to be cut off on the Opposite sides, and

4.7 Barishment from the land and which according to judgment of this Court in " Mohammad Riaz Vs. Federal Government etc".

(P.L.D. 1980 F.S.C.1)44Cludes imprisonment.

I have held in the above quoted judgment that any offence in which right of God is merged with the rights of men or the element of corrupting land i. e.

'• in society is found

Contd ...... P/40

present it comes under the pale of the above mentioned Verse and the culprit becomes liable to any one of the four punishments prescribed therein.

Now the very first punishment of slaying a culprit i.e. c- 1 is not confined to any particular method of killing. The person liable to this punishment can be put to death in any manner or method whatsoever available at the time. He can be put to death by sword or by firearm; or by pushing down from a height or by hanging by the neck or by stoning and so on and so fourth. The moment it is conceded that for a given crime the punishment of death is available it becomes within the discretion of the Court or the state to use any method whatsoever in bringing about the death of the culprit. In this view of the matter it cannot be said that the punishment of death by stoning is not available for an offender under the Quranic injunctions. As a matter of fact, the people of Ldt(Peace be upon Him) were all stoned to death by God almighty. It was for this reason that when a question was put toc°A;l8>?g, to the affectwhether 'Rajm' was available 440 . Quran, he replied in the affirmativete Moreover the word'Rajml is also used by the people of the language for killing simpliciter (Zahoor Ahmad Azhar, in Chapter on ' eyt in Urdu Encyclopaedia of Islam Tol. 10, page 204).

Contd. .I/41.-;

Q31

When the affence_pf Zina ia_committed,by a and tht- banCtitylPftfierliaiiSbd'_arViciated, married personZit-touches the bouhdries of ' C-55111 c_j>k,i4 1 and corrupts the Society. It is certainly an aggravated form of the offence and attracts one of the punishments prescribed in Verse (5:33) under reference. The word 'Rajm' with its gramatical variations occurs in a number of Verses of the holy Book g:iiT 46t19,2b,(184, c,20:44,-5:.67 and 11:26- are dbnieHbfH, the Verses which have been referred to in this context by Mufti Muhammad Shafi, in his Chapter on 'Rajm' appearing in the above quoted book. The punishment by 'Rajm' is,therefore, not completely foriegn to the text of the holy TPLOok. Caliph , rip 7 Umar-bin-Abdul Aziz, Imam Shari' ln his from the earlier and Shah Wall Ullah in his k--IDAAJLO(Mnd Abdul gadir Oda in his from the later day Scholars,

be;S'$Aes many others are all unanimous in holding 14,2_3 or that the offence of Zina committed by a ( is ,iriaggravated form of the offence and the punishment of 'Rajm' would therefore, 1be:neither crual nor against Shariah.

P/42.

45.This will take us to the question whether the Sunnah of the holy Prophet of punishing a married male or female guilty of Zina by stoning to death relates to pre Sura Noor period or did it continue even after the Verse 2 of the said Chapter was revealed.

46& A.number of traditions have been preserved by " .=71.4-1" which show that the holy Prophet (Peace be upon Him) meted out this punishment on a number of occasions. Traditions relating to (45A,, .e:1as well as that when a couple of Jew offenders of Zina were stoned to death in accordance with the injunctions of 42-*1(Torah);--,z1though termed as"jAblf;1" by some, these are not totally denied. The authenticity of the events have not been doubted by any of the Scholars. It is only the time of occurrence on-Which a some doubts have been cast by some in view of the" of 02,4j/Crwho when asked whether Rajm was carried out by the holy Prophet(Peace be upon Him) before or after the revelation of Chapter 24 replied in the words "C9)0" i.e. I do not know.

rfifi According to "(44kYLIP / " the events of stoning to death of ' under the

orders of the holy Prophet (Peace be upon Him) Contd. ....P/43.

took place after the revelation of the According to him, the period of the revelation of the "-;"'" was either during the years 4 or 5 or 6 after Hijra but because of the presence of "95/tein and HI7rk1l u at the time of the stoning of the culprit; the former of whom embraced Islam 4 in 7 A.H. while the latter came to Madina with his mother in the 9th year after Hijra, both the Ocurrence-)narrated by them took place during the post revelation period of Sura Al-Nbor.

48.WhOhthe three instances of awarding punishment of death by stoning by the holy Prophet (Peace be upon Him) to a married man or a married are.

woman i.e. of dris61 edo(i.

, and CL:.:-Ipappenings

of the period prior to the revelation of Verse 2 of ',//41, -",? All these Ahadith contain internal evidence of the period of the occurrences as being after the revelation of the ' iyJhr, r-1 in that

ifk , was revealed just after the event of ' L-ait i.e. the false accusation of immorality levelled against?'

(-1—tt'C --SEGod be pleased with her).

According to 'CC-tin , this incident took place

during the 6th year after Hijra (Vol: 9 ( ect4,12.17LiY, ) fixes the year of ae' 6 A.H. (P 516)(jUrket.":

"./4.e. in his 0-4/57-=/Places it in the year 5 A.H. Dr.Muhammad Hamidullah in 'The 6th year after Hijra Battlefields of the Prophet Muhammad' also gives Z Contd. ...P/44.

Olt .wEerei "b'occi*larl:9of Hadaibia was signed. The battle of journey Beni Mustang, in the return/wherefrom false Ii

accusation of ts" took place, happened within a few monthOOTOaHudaibia in the same year. Thus it is clear that the ' 1-tr.' under reference was Hijra, revealed sometimes between the years4 and 6th afteff narrated with another by

7%T

ip'4.54:/-11-53 1 who embraced Islam in the 7th year after when 1 /91J)0%r'' had alrecidy formed a part of the by then revealed Book of God. The presenc A--bA at the time of decision of the case is of

doubted by some on the ground that the words .

Ws-LAIattributed to both3tN(r r rrt3L'-a° )1111 'Pi)), the two narrators of this Hadith in the and •

compilation of ..L.S")U'do not find mention in some other compilations. The absence of the words 'we two were before the Prophet (Peace be upon Him)T“rom some compilations would not render the narration doubtful not would this exclude the presence of the narrators because itC17iabIy5va---0)the practice of the narrators to precisely mention the sdlurce wherefrom they heard or{jearnt the narrated saying or the event in case they were not the direct witnesses of the event or had not directly heard the opstle of God saying the words. Whenever the first narrator himself is a witness to the event or has heard it directly from the Prophet (Peace be upon Him) he either mentions that he was present or Ci) ntd. P/45.

he does not at all mention his presence which in that case is presumed. It is once in a while that

.I 7

the first narrator begins with the words(f1;2C.,,,J or ' t....“.." • ' — brder- t6--show-:hit) j

presence with the Messenger of God. The usual form of narration is Yi3 a-adr," (904,-ki )3,7

7'T

i.e. the holy Prophet said or the Messenger of God decided or the appostle of Allah ordered. In this respect Ahadith are of two different categories.

One is called ' and the other is

.where narrator is present the Hadith is '4,4:

and when he has taken it from another than it is called ' ccoff. Again, when the first narrator /tt--1: 17)

is a;companion' then the Hadith itself is called and where the narrattpn of the Hadith ends with someone who has heard it fromtanother..

but does not name the first source then it is

/ J, ,

called a i VP' (171;d1th. A1-1, 7the-ions-o- in one or the other compilation do not (filtirel:an y evidenree..- -- int-,theiwording-, of.,:.the-natratibn of the Hadith as being a ' is'" - or ' ef>i)v i=use osielther_2_42!4.71

.-!..,..?!.._sar-that-illeyd- heard it from anyother source or that they came to-know.of it:-dr that theY•mere told b.' 1 --- --,,- ---“,04frit49-,:,g • ) $omeonVelse. Thc_abs-ence of the wordi k _4:cit'Aus l , 'Yle Y“,..“---

Contd. ....P/46.

from

Q"

%frizEjTirmizi and 'Muslim' or/any other compilation therefore does not effect the stab-9 of the Hadith as being a ‘>A7, - . The second piece of internal

evidence of this Hadith as belonging to the post revelation of ' -j-Sell 'period is that when the father of,)the boy contacted men of learning they told him that his son will be punished with 100 lashes and his co-accused, being a married woman, will have to be stoned to death. The former punishment was , prescribed in '41‘4-111. and the awarences of this punishment Cjthe learned men of the time in that

I

flung area of a Badia would show that Verse in question had already reached them before the event under reference took place.

In ' e?)1:

- Iisit the presence of Khalid Bin

Waleed is noted and a part of the narration related) to his utterance at the time of actual stoning. Nov?

Khalid had embrassed Islam after 6th year after Hijra i.e. after Battle of the Ditch which took place in Ziqada of 5th year. He is a witness to :of Rajm the event: The event/took place in Medina Tayaba Where Khalid came tog;;WIslam and thereafter settled therein. The punishment witnessed by him Contd. P/47.

was t cr-ql:arPi)during his Islam. It is on record that he Mar BiQ Aas were placed at the head of 200 horse by Abu Sufian and given the command of the Rear guard of the non—believers on their return from Madina after the Battle of the Ditch. -Ziqada is last but one month of the year. So at least Khalid had not become a - Muslim till the end of the 5th year A.H.(the month of the year of Battle of Ditch and appointment of Khalid as a taiande-r of the rear guard Of the non—believers is taken from "theiSattlefieldsTiof Prophet Mohammad')Dr.Mohammad Hamidullah gives the'year of Hudaibiya as 6th A.H. while Makram in 'The *Ind of Allah'(PP 78-79) has given the 'date of the conversioh of Khalid, on the authority of Waqidi, as 1st of Safar of the 8th year A.H. Thus it can be safely presumed that the migration and stay of Khalid Bin Walid(May God be pleased with him) in Madina commenced after 6th A.H.

50.Much comments have been offered by one or another Scholar on the Hadith of Hazrat Umar wherein certain words have been attributed to him.

Contd. P/48.

-tohihavehadremained o-

a part of the hcly Quran in regard to punishment of a ' .15?)on their commission of the offence of Many a Scholar like ' (.11119/04/?

from his noteworthy research has come to the conclusion that the words attributed to Hazrat Umar as a revealed word is a mere innovation of a later period. What Hazrat Umar actually said has been recorded by ' in a Hadith narrated

by' Etk y (N0.729, in Urdu Arbic Compilation Vol: 3)

P/49.

It i s j4 the following LtiT/1?1WilB cjp,s_rul lop 0 all

0L l f op 4.) J t L4fl LrSLrLp ‘515.1 j2t; Lbie. c, ‘:-21; 131 cra.32C:1 1,63 Ls; cfro 0.1s, I cmLai Lei yi J.,—) re) -3:91,111 c1-61.--t'sc.A.-;-Pii tuo 15;s•ii 5 1 J----11 c.)16;1 e4-.

" d..iAl cis. 4111 4,1J 1

Which in english would read:.

#C7.1.1

" s'sc-Pitfr narrat ed from I it , he from " "Who in his turn had heard it :from " 4114" .that "(its4-34 " narrated that Umar said I am afraid, a time would come on the people with the passage of time that someone would say he does not find the injunction of "Rajm" in the Book of God, but they will go stray in giving up a Mandate given by God ,13iWkridA it is mandatory on that whoever commits the offence of Zina being in the materimonial stage if evidence becomes available against him or the pregnan-ey) is gohareI,V4) or it is confessed and " C, "'< " said I have so memoraized it as Umar saying here that the Messenger f Gbd awarded punishment of "Rajm" and after him' we have also stoned to death the culprit."

Contd. ...P/50.

51.Some people have formed an opinion from ", who was punished for the --"yofclatc,..7s.,- the 1/42

offence of Zina by Hazrat All (God be pleased with him) on a Thrusday with 100 lashes and was stoned to death on the next day for the one and the same offence, that the fourth Caliph awarded 100 stripes to the lady as O'Hadd l and thereafter stoned her to death in following the Sunnah of the holy Prophet(Peace be upon Him). Thus some doubt according to them is cast on the authenticity of the punishment of Rajm as a 'Hadd'. These doubts have been set at rest by<SfiaL, /who has

clarified the position vis-a-vis the said Hadith in that at the time of awarding punishment of 100 stripes it was not known that ejav r'2,3 was a married woman. It was after the punishment of 100 lashes was meted out to her that, on the next day, it came to light that the lady concerned was married to somebody and was to be treated as a and as such she was stoned to death even after she had received the punishment of 100 lashes This explanation stands to reason because it cannot be imagined that the fourth Caliph, who had

P/51.

a

the distinction of having been raised by the holy Prophet(Peace be upon Him) and taught the knowledge of holy Book by the bearer of the Book himself would not be so clear in his mind on the relevant law as to award two different kinds of punishments in lieu of one and the same offence without having regard to the proposition of law that the lesser punishment th5Fi)in the ra tea

one. This explanation further finds support from yet another Hadith of Hazrat Ali which finds its Cre)t-di place jbviiil& (Vol:6 page 267),

wherein it is narrated that Hazrat Ali treated - five persons who had committed Zina in five different ways when they were brought together before him. One of them who was un-married was given 100 lashes, the second who was a married person was stoned to death while the third who was a slave was awarded 50 stripes. The fourth culprit who had not yet attained puberty was Yv437- -;0-1' awarded lesser punishmentTh3f4azeer in view of his minority and the fifth who happened to be an insane person was not punished at all. Although

P/52.

Ott

an argument from the wording of this Hadith may be built up that 100 stripes were given di 'Had& while 'Rajm' was awarded as Sunnah, the matter becomes clear at least to this extent that even up to the khilafat of Hazrat All the fixed punishment for the offence of Zina for a I L1'25' or was stoning to death. Similarly, Hazrat Umar> Tas statedLearlter4 Lis on the record in saying that the punishment for married man or woman for the offence of Zina is stoning to death and that this was the punishment which was being awarded during the life time of the holy Prophet (Peace be upon Him). This Caliph himself during the period of his Xhilafat was awarding this punishment to Muhsans and Muhsanat.

52.Any doubt on the premissibility of 'R in case of certain types of Z ina as a ' -is -thus;

ramovadj-when the matter is looked from the cTiiihistory Oraftire004 point of vie which shows consensus of all the companions of the holy Prophet(May God he pleased with them) on meting out this punishment to a ' Lt-t31 or a ' ;494 Hazraat Abu Raker,

Ott

• a question due to lack of knowledge, it can-not be taken to mean as if the rest of the (rearnO'd were also not aware of it. It was only to remove such doubts as have noER)agitatingOthe minds of some of the present daY Scholars of Quran, xx,...xxpcx that Hazrat Umar tried in the Hadithd Ibn-e-Abbas to set the minds of the coming generations at rest, by emphi,itically stressing that the punishment of 'Rajm i finds its authority from the .holy Book and from the Sunnah of the Prophet. Incidently, this Hadith although subject to much criticism,does not show the existence of any doubt on the validity of the punishment in question during the time of Hazrat Umar as the occasionl)for uttering the above explantion or warning in the said Hadith was not that.the people had been questioning the vires of the punishment in question. Actually what happened was that some persons had started a whispering ciritja)in a class of 40, Society casting doubts on the validity of the Khalafat of Abu-Bakar As haying alleging itfhadil5ened by chance. Hazrat Umar was told of this propaganda during one of his journeys.

P/55.

He told the informer that on his. TetUra" to Medina he would explain the matter to the populace.C.Whillexaii314-inigethe aagalIti)of the election of ( - he went a step further in explaihing the position of 'Rajm by saying that a time would come when teonle would start entertainingcdoubt on it. The underlined words (underlining 4.s _mine would show that at the time of narration there did not exist any doubt but the Caliph was anticipating some such far thing to happen in a/ future as has happened in the case of the present petitions. The exact words used by Hazrat Umar. are:

uL.A.). Lbse.-0 I s!): J-41;

ulp 11 I 411 I L1/41 5:1

P/56.

LIS

c_

and in english these words would read:

'II fear a time would come when someone would say that we don't find OraMnce of 'Rajm' in the Book of4cd1but theY will go 0-6pu CMakelate astray frOmCV- -Iiitirdained by God. Beware 'Rajm' is compulsory on him who commits Zina (Hadith No.1.703,Vol:3,Bukhari,Page 637).

54.One of the renowned contemporary writers on Islamic law, namely Mr.Justice Ali Ali' Mansoor of the faculity of Sharia of Al Azhar, Carlo in his book '1114 (.33;214fea 1( 1101 Vol:1

on 111111A/Plai.91.1011' at page No.18t under the title frs • I/ • has said that • tisb,,,i1AT • was

asked about the punishment of a Zani and after giving a gist of the reply of Mohammad Abu Zuhera to the questionnaire states that the said Sheikh was not in favour of prescribing the punishment of 'Rajm' for a WOhsan' because he had doubts It'. - about the authenticity of itsaii-1). With profound respect to the learned Authownile going through Books of Imam M.Abu Zuhera“namely

14.111X/1411M- / . /'

\;i4•-y--.0 9 t--9-1.^"I Enda:pit) .,lc "s one cannot...r.-

subscribe to the conclusions drawn by Ali Ali Mansoor. 'Abu Zuhra' in both his above mentioned works is very clear in his mind on the availability of this punishment in case ofioseand of a certain cIabb 6he'Person5being in wedlock.'

Contd. ....P/57.

In his first mentioned book at page 106 under the title 'orljila,- '. He states as under:— ,J1 L52aL.cLLIsLJiiIdu41. (3.6. 0.:1;11-L-5" (and the punishment ( a' ) of Zani fixed by Jurists is either 100 stripes Cr death by stoning) and'hen;II, proceeds in building up the arguments in favour of and against the above proposition.

Finally ,Abu Zuhra comes to the conclusion that in case of commission of the offence by unmarried or divorcee or widowed persons, the lesser of the two punishments namely 100 stripes would be available while on commission of this offence by-a married person the heavier punishment i . e. Rajm will be eatd, Ati page 113 ibid appears his deduction as under:

-IL& lasj:sr'J vL4.15,53 ti csi LI... Lsi..,44 5 ti I al I Ul ;,141-1- 0.7.6411. 4..10UJilid I c..1.152: 40 • _01 .. /kitI A" tykl 1 4°4 (.91.:

CO-CL.9 6)1 Le:315-: I ji I 653 traeLP:. Ii, • c& -6- tu-e 1-A9-kt:A o !it J1JlaJl Ji,VGJ L 1 4.i 2 Lt.JlaisJl

0B..9

- I Engifilt it leousdcPaddih-:::- .-

7And we see from it that there are two kinds of Ek7.7.1-1 rj -111Leatp.t( cf/41.11First Hisan of Bakarat CIAL.1) with which a woman is sheltered and in this case her punishment (of adultery) is stripes due to her shelter and natural (personal) power of defence in itch man and woman are equal. And the second is the Hisan oflpagiaghusband) and ' with this the bliss is completed and thus the punishment is doubled. And the woman who spoils both hisans i.e. chec7;kair tis finished with the marriage and ;then the marriage is finished (with the death of husband) so only her °Inn character is remained (personal character) and thus Contd. P/58.

A • • • •

Qiea l

becomes a case of excuse ( -W); and her punishment is lighter of the two punishments And there is no enas ( ) which forbids it. And the heavy punishment is not imposed in such cases without any nas (&')". Thus it could be seen that he also subscribes to the theory of two punishments in offence of - Zina. These could only be stripes or stoning i as no third punishment is mentioned any where ) in this regard.

Abu Zhura has again expressed similar view in his latter mentionedibook. From the above reference to the works of the learned Author it could2therefore, not be said that Abu Zuhra did not find authenticity in the Hadith of 'Rajm' and that he was not in favour of this punishment.

Another learned Arabic Scholar of the contemporary period4,11.o Lsig, &:_s.J11 the Dean of the faculty of the ' and the teacher of the Islamic Studies at the Conted....P/59.

Mecca University has also thrown light on the question of 'Rajm' in hisu r K>AJIL41.A -.2c4,

(Part II page 21) and has arrived at the conclusion as a result of the very learned discourse on the subject that 'Rajm' stands proved by ' J of the holy Prophet (Peace ibq upon Him). The learned Author in this context further proceeds:

4-41-11 J-a)c,J1 (214c-4 uu tt_L si ,it

1-A)11 .111----4

Let-11 1.76; U

44s 4U1 0 .-11 01 J1j.

-(3 art cy, .1:11,11..c.Lik-J I c.)15 aaUi35 .1)1,.15.1s.5 r ink Ls.; ..3.;...J1 1.3...€ 1,31 Si 0.424, cibm.-11 art JJJ

co ., yap 5 r steii cilb

. 4::c.61; e l1 atti,

LA, . ‘7.1“.:51.11,1 Le,;1411 1.1 1; fa (311 1S..>J1 Lie

b'e

DI cis• cieiy..—..a1 I .a I.11 ic.. )J1 01: )11; ( r ua

fr : Lvi'ks.1.7.jr-et-e 'Cn i eii-t°

I -

Rendered into English it would mean:

"It has been proved by the practice of the holy Prophet (Peace be upon Him) and his sayings and his actions and that is why there is consensus of ' 416:4° ' and ' on it and it has been proved by ":9.) ' which are not capable of any doubt and by the way of consistency that the holy Prophet (Peace be upon Him) enforced the punishment of 'Rajm' on some of his companions like ' (30-1-1 " ' and 4= 1"and that the orthodox Caliphs had also enforced this punishment after him during their times and openly and repeatedly declared that 'Rajm' was 'Hadd' in the offence of Zina when committed by a married person.

Then thereafter all the Jurists of every age and every land became united in that this was a proved injunction and a Sunnah to be followed as the final divine law ' sQ1A4tn-IIL:s.4.74 ' with so forceful arguments as would not allow any possibility of a doubt. This order is continuing till present day and our age and no one has Sosed it excepting a small group ofcxii--.L. (turn coats) from Islam and during the period of as they say the 'Rajm' is againSt 'rlit

The assertionse=of " that it

Contd P/61.

Q

22t7E;.i (ft-

was practice during the period of orthodox Caliphs cx1/(6/ 1 in his is fully .supported from ' rejr174tAg' ' ay-1 (Arabic, Urdu, Edition published by Urdu Bazar, Lahore, page 559) , wherein atsatf 7);_p Yc_u 11-6/ narrates that, "it has come --to him that a woman -came to Usman who had given birth to a child after six months of marriage. Usman - ordered for her to be stoned to death. Ali objected by referring to 2 Verses of the holy guran and proved therefrom one that it was possible for[Lmto give birth to a child after six months of the conception. Usman revoked the order of 'Rajm' but woman could not be saved as she had Igy• then been stoned to death."

-;1>N

It proves that Usman had also been awarding 'Rajm' to According to,Pathul Bari'Sura NeorLiwas/ revealed in 4th year after Hijra or in 5th or in 6th A.H. and ily)OcaribrAo-e_a: Islam in 7th and Ibn-i-Abbas with his mother came over to Nadina in the 9th year after Hijra, who had narrated the E66-eUr6i)416“Thu5 it was after the revelation of the Sura under reference.

Similarly, goes a long goes

way to prove that the same practice was carried out throughout the period of the Last of the ' GP/.46421 i.e. the Fourth Caliph, namely, 1 .2==e,(May God throw light on his face).

From the above narration of Historical facts it is fully established that meting out of Cc

punishment of i.e. death by stoning has remained practice of the hOily .Prophet and after

P/61.

abrogates a mandatory injunction of Quran, the Contd. ....P/62.

argument to my mind is quite irrelevant. As explained above, the case is not that Verse 24:2 stands partially abrogated with awarding punishmmt of 'Rajm' to a '(:".1' or as it is only a matter of interpretation of law laid down by the Verse which has been particularised with unmarried offenders. The Sunnah of the holy Prophet in the context of 'Rajm' does not abrogate or override any part of the Quranic law but supplements it as is the case of the Hadd for theft. Nevertheless, the above mentioned Ahadith might in the quantitative seise be 069,21' These in their quality are 1 -e- Which were followed by all noteworthy companions of . the holy Prophet who were entrusted the administration of justice as Heads of the Muslim State during one time or the other; TheC77 consistency of the practice of the companions of the holy Prophet on 'Rajml and theeemphatic assertion of ' %;97' that ' (294 is the punishment in case of adultery take a.e.m., , a ingthese y-khadith-outerthe category of ' LLto . that of /if'. The solitary instance of (May God bless his soul) in treating the Hadith of ' cl- t1L1S,°-44;-1 (Ma3t God be pleased with Him) as, fA4/1 and that too to the extent of the banishment of the culprit from the land for a period of one year (cre)ki7ECabe taken to mean that he was not certain of the availability of ' P' as Punishment for Zina when committed by married persons or of that it was not aFgriaaduring or after the lifeetime, of the Contd. ...P/63.

;z97

Messenger of God. Who could be better informed of the relevant period of certain practices of the holy Prophet vis-a-vis the periods of revelation of the different parts of the holy Book than his companions Ihho had been witnessing all these events. Had these companions apart from the only ecg-ation of 1J"Litit'a21 entertained any doubt on the fixation of the period of ther7= Ahadith of ' qua the law revealed in Chapter XXIV, they would have never applied these later on. The practice of the companions in awarding 'Rajme to or ' after thPholy Prophet (Peace be upon Him) had passed away from amongest them in itself is sufficient to establish that at least some of the events narrated in the Ahadith in question took place after the revelation of Sura Noor and law did not undergo a change in this respect till the death of the holy Prophet(Peace be upon Him).

61.I shall now revert to the other arguments advanced by the petitioners and mentioned in the beginning of this judgment. In regard to the assertion that the first Verse of the Chapter 'Al-Noor', enjoins obedience to the contents of the Sura by declaring them mandatory by the use of the word ' -111, suffice it to say that no exception has been created by this Verse in the general principle of applicability of the contents of the holy Book as a whole, as every and each Chapter, rather every word of the holy Book indeed is as binding and as mandatory as any other when ordaining an injunction. If an excaption can be created in the application of the Contd. ...P/64.

Verse (5:38) in phe punishment of theft for a petty thief, then there'$s fli no reason to presume tv

that no exgreption for married person can be found in the application of the Verse (24:2) on the penalty of Zina.

•The other argument of the learned counsel for the petitioners is that the punishment for the offence of Zina would be that which is capable of being halved or doubled.. In verse (4:25) referred to above a free voman ratrimastate or out of it has within thet2:

been mentioned against a slave woman of the similar state. The punishment for a free unmarried woman who commits this offence is 100 l!ashes. If a slave woman indulged in this offence she is by virtue of this Verse liable to be punished 50 stripes i.e. half of that.

The word used in the Verse in respect of free women is ' C4;7-3 '. Under the scheme of the holy Book this word is not always used for the omen in the wedlock but a free woman is ce_tlWa.:ys?

called a ' rs 1 and the arguments of the petitioner in respect of this word as being capable of meaning married and unmarried both, mentioned earlier, are correct to this extent. Therefore, this wrd is capable of being interpreted as meaning a free female either married or unmarried. No doubt the punishment rjil ' is stoning for a married woman i.e. the ' to death as against unmarried one who is to be given 100 lashes. In the case of a slave female, either married or unMarried, it is not necessary that each of the to; punishments prescribed for the above two stated categories of 'tn-A;e3 ' be

Ut5-'

capable of being halved because of the concession granted to the slave. Any one of the two punishments Which could be halved would be taken as the basis for the calculation. it is for this reason that in every school of Fiqh, a slave woman has been held liable to 50 lashes both in the offence of fornication as well as of adultery.

The case of the wives of the holy

Prophet (May God be pleased with them) as stated in Verse (33:30) has no bearing on the subject as in the Verse under reference offence of Zina , is not mentioned for inviting double of the normal fixed punishment but the words used are which translated in english are "manifest lewdness".

Manifest lewdness can be in any form of undesirable open immodesty and the punishment warning of which has been given in this Verse, by necessity would mean punishment to be meted out hereafter i.e.

in the next worldcinLwhich a- puniShmehtLcoulpe double or even /ten times of any amount or type • of worldly punishment.

Contd. P/66.

Q:x7 The words ',kat" used in this Verse although capable of meaning corporeal punishment as well as punishment in the life after death, have been used in the Lta context of 'Oantfest lewdness' in the latter sense.

incitggafdttainjunction laid down in Verse 3 of Chapter XXIV, by no stretch of m imigination it could be held as enjoining upon the preservation of the life Of a culprit so that he may marry after going under the punishment. As every offender who is not a ' C.rAlt or is not to be put to death, he could certainly be in a position to marryi after the punishment is meted out to him within the prescribed category of opposite sex. The case of a ' c;-4-43, or ' eJ4Cf l is different as he or she is a married person, whose remarriage in the continuity of the wedlock becomes out of question. Cases of widower or divorcee culprits is of course on different footing, but remarrying after the punishment is not mandatory so as to render stoning to death not permissible. The Verse under reference only permits a Zani or Zania to marry within his or her category of culprits or to marry an adulterer or adulteress. This permission will only be available in cases of those only who are in a position to do so as having not been awarded' the punishment of death by stoning. As an unmarried person is not awarded Rajm and it is an unmarried person who (Ys to marry, this Verse by its necessary intendment relates to non—Muhsans and non—Muhsanat.

Contd....P/68.

Coming to the objection of the petitioners to the definition of the word 'adult' I fail to see any cause of grievance therefor). Their argument is that in Islamic Law.a. person becomes an adult on attaining(puberty),In clause (a) of Section 2 of the Ordinance, the insertion of the phrase ' or has attained puberty' after giving the ages of eighteen and sixteen, respectively for a male and female, clearly means that these ages are to be considered sufficient for attaining puberty in case the exact time when one attained puberty is not ascertainable, otherwise an adult would be that Who- has attained puberty. from the plain 7'tz.

reading of the definition in question it becomes crystal\clear that the stress is not on the age/7) of the males and females but it is on their attaining puberty. In this view of the matter no exception can be taken to this clause as by treating a male of eighteen years of age and a female of sixteen years of age as adults where it is not known when they have become puberts would not be against any Injunctions of Islam although/ 06ntd. ....P/67.

- COURT ORDER,)

By a majority of four to one both the petitions are allowed, and it is declared that the provision of sentence of 'rajam' as hadd in sections 5 and 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, are repugnant to the Injunctions of Islam and that the only hadd is one hundred stripes. Necessary amendments be made in the sections noted above by the 31st of July, 1981.

Chairman

Member- 1' klitinh-----T6:

Member- II

7Me1;

i14: - .......

N ber- III,----

Mem er- tPf IV.

V

Islamabad, the 21st of March, 1981

66.Coming to • the objection of the petitioners to the definition of the word 'adult' I fail to see any cause of grievance thereforv. Their argument is that in Islamic Lan. person becomes an adult on attainingtberty.In clause (a) of Section 2 of the Ordinance, the insertion of the phrase ' or has attained puberty' after giving the ages of eighteen and sixteen, respectively for a male and female, clearly means that these ages are to be considered sufficient for' attaining puberty in case the exact time when one attained puberty is not ascertainable, otherwise an adult would be N1,1g124 likOlhas attained puberty. From the plain e reading of the definition in question it becomes crystaD clear that the stress is not on the age of the males and females but it is on their attaining puberty. In this view of the matter no exception can be taken to this clause as by treating a male of eighteen years of age and a female of sixteen years of age as adults where it is not known when they have become puberts would not be against any Injunctions of Islam although' Ceantd. ....P/67.

it might be against a rule of fiqh of a certain school of theologians. Similarly the definition given to the word 'Muhsan' in clause (d) of Section 2 of the Ordinance is in conformity with the thinking of a number of schools of Fiqh and, therefore, cannot be said to be repugnant to the 'Injunctions of Islam. I also fail to find any fault with the definition of the 'Tazir' given under clause (e) ibid as Tazir in legal terminology' is an unfixed punishment which is left to the discretion of the Qazi or the state. The same is the case with Sections8 and 17 of the Ordinance.

Laying down the quantum and the quality of evidence for bringing home the offence of Zina or Zina—bil—Jabbar liable to Hadd to the accused is not •against any tenet of the holy Book and Sunnah. Rather the position is converse. The mode of execution of punishment laid down under Section 17 also finds ample support from a number of Ahadith and is a recognised provision of law by the orthodox schools of Muslim Law. The provision for bringing to an end the life of the offender , Contd....P/70.

with a fire arm shot after commencement of stoning is also not against the spirit of law in view of what has earlier been discussed concerning Quranic punishments and which need not be repeated here.

67.In view of the above discussion I am clear in my mind that the provisions of 'Rajm' as laid down under Section 5 and 6(2) in the Ordinance are not repugnant to the Injunctions of Islam as laid down in holy Quran and Sunnah of the Prophet Mohammad (Peace be upon Him) and so is the case of the impugned definitions. These petitions are therefore liable to be rejected.

Las

-- COURT ORDER 4)

By a majority of four to one both the petitions are allowed, and it is declared that the provision of sentence of 'rajam' as hadd in sections 5 and 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, are repugnant to the Injunctions of Islam and that the only hadd is one hundred stripes. Necessary amendments be made in the sections noted above by the 31st of July, 1981.

j

Chairman ii

Nember-t.

Member- II

Me ber- III __.----

ri\\0 wrr;

Mem \ er IV.

Islamabad, the 21st of March, 1981

I