Capt.AbdulGhafoor Vs. Federation of Pakistan

1mmmm.."

N._ --A.-

IN THE FEDERAL SHARIAT COURT

( ORIGINAL JURISDICTION )

PRESENT

MR.JUSTICE DR.TANZILUR RAHMAN CHIEF JUSTICE

MR.JUSTICE DR.FIDA MUHAMMAD KHAN

MR.JUSTICE MIR HAZAR KHAN KHOSO

SHARIAT PETITION NO. 85/I OF 1991

Capt.Abdul Ghafoor son of Petitioner R All Gohar Khan, r/o Magri, Tehsil and Distt. Haripur.

Versus,

Federation of Pakistan Respondent through Mb o Law, Justice & Parliamentary Affairs, Govt. of Pakistan, Islamabad

Counsel for the Mr.Fazal Elahi Siddiqui, petitioner Advocate

Counsel for the Mr.Iftikhar Hussain Chaudhry, Federation - Standing Counsel.

Date of Institution in •• 24.11.1991 this Court

Date of Admission 4 9.2.1992 Date of Hearing 11.5.1992

Date of decision • • •

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S.P.NO:85/I191

JUDGMENT:

DR. TANZILUR-RAHMAN , CHIEF JUSTICE. - By this Petition the provisions of section 14 of the Offence of Qazf (Enforcement of an have been challenged as Hadd) "Ordinance, 1979, relating to Lit - repugnapt to,the Injunctions of Islam. The relevant provisions read as under :-

"14. M'a-n- (1) When a husband accuses before a Court Ms wife who is muhsan within the meaning of section 5, of the zina and the wife does not accept the accusation as true, the following procedure of Win shall apply, namely:- the husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of zina against my wife (name of wife) and, after he has said so four times, he shall say: "Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife)"; and

the wife shall, in reply to the husband's statement made in accordance with clause(a), say upon oath 'before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of zina against me"; and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of zina against me".

When the procedure specified in sub-section(1) has completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.

Where the husband or the wife refuses to go through the procedure specified in sub-section(1), he or, as the case may be, she shall be imprisoned until - _

(a)in the case of the husband, he has agreed to go through the aforesaid procedure: or

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(b)in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.

(4)A wife who has accepted the husband's accusation as true shall be awarded in punishment for the offence of zina liable to hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979."

2.As to the alleged repugnancy, of the said provisions of section 14 to the Injunctions of Islam, it has been stated in paragraph-2 of the Petition, .aSinndert, :_-

"That the provision of Li'an as framed above is against the law of Qur'an because Li'an will take place only when the husband does not have the evidence. But where the husband charges his wife for zina and the evidence is available in the form of medical evidence, confession of the wife at an earlier stage and some ocular evidence although of less than 4 witnesses, Li'an will not take place despite the provision of section 14, because the necessary consequence an will be the woman will no longer of the proceedings of Li'- be liable or answerable on the charge of zina. The proceed- ings of Li'an can take place only and only where no evidence whatsoever, is available. In the provision of Li'an, therefore, there is an obvious omission-i.e. that the provision of Li'an should start with the words "in the absence of evidence", so that provision 14. Li'an(l) will read as follows:- "14. Li'an (1) In the absence of evidence when a husband accuses before a Court his wife who is 'muhsan' within the meaning of section 5, of 'zina' and the wife does not accept the accusation as true, the following procedure of 'Li'an' shall apply, namely:-

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It vvas , therefore, prayed that the provisions relating to Li'a-n of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, be declared repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet ( stic. tit i Lo) and that "the Court may supply the obvious omission and direct the Federation of Pakistan to amend the law as suggested in para-2 above".

4.A written statement was filed on behalf of the Federation of Pakistn,• the respondent, wherein it was, inter-alia, submitted that:

"(i) 'The Substantive and procedural law relating to LiCan is contained in Holy Qur'an (XXIV: VI-X) and traditions of Holy Prophet (P .B . U . H . ) relating to cases of Aweemar and Hilal bin Umayya. For long, Lita-n has been considered to be a form of divorce; at least it has not been considered, treated or, discussed as a subject under Islamic Criminal Law.

In Mishkat Sharif and other books of traditions and leading treatises on Shari'ah, Lita-n has been discussed with the subject of Talaq and other forms of divorce. For example, Li'a-n is discussed in Chapter X of Book IV of hedaya (By Hamilton). Book IV deals with divorce.

(ii)

(iii)A false imputation of adultery has been considered a valid ground for the wife to claim dissolution of marriage, though there was no provision in any law for resorting to Li'a-n. This deficiency was provided for in Ordinance VIII of 1979.

(iv)Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979, incorporates the procedure for Li'an. The perusal of the provision would show

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that the standard procedure laid down in the books on Shari'ah on Li'a-n has been incorporated in section 14. The substantive law and various related questions have not beencodified in the Ordinance since the same is available in the Holy Qur'an and the Traditions.

The question raised by the petitioner would be of signi- f- ficance only if the section dealt With the substantive law. In the system of codification now being followed, all the substantive law is not incorporated into the statute law, since that would defeat the very purpose of codifica- tion. It is submitted that it would not be advisable at possible to incorporate whole of Chapter I of Hedaya into section 14 of the Ordinance.

Under the circumstances, it is prayed that the petition may kindly be dismissed.

5.Mr. Fazal Ellahi Siddiqi, learned Advdeatel, 7placedi his:reliance, in support of the Petition, on Verses 6 to 10 of Surah Al-Noor (XXIV:6,10) of the Holy Qur'an. On the other hand, Mr . Iftikhar Hussain Ch.

learned counsel for the Federation, contended that section 14 prescribes only the procedure of Li'an, thereby implying that this Court has no jurisdiction to examine the said provision, as barred under Article 203B(e) of Chapter 3A inserted in the Constitution of Pakistan, 1973 by President's Order No.1 of 1980. In order to appreciate the contention in its proper prospeetiVe, it seems pertinent to state fithlthe salient features of the law relating to Lifin as envisaged in the Holy Qur'an and the Sunnah of the Holy Prophet ( aS di) I L,Lo ) and the opinionsof great jurists of Islam.

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6.Min is the root of "LaMin" ( ). This word is derived from La'n ( cyal ), the literal meaning whereof is "to put away," becaus!

one who is subjected to La'n ( ) is put away from the all-pervading mercy of Allah, the Almighty. (Fath al-Bani by Ibn Hajar 'Asqalitni, d.852 A.G. pub.Cairo, 1959 A.D. Vol:11, pp.460-61). In Sharrah terminology, making by the husband and denying by the wife of a charge of adultery both on oath and involving the curse and wrath of Allah by each on oneself, is swearing falsely, is called Ligin ) as etated in Al:Hidayah that is,

cyan; lira. ; ;I als-t c,,L.J./ 1'01 ja •

(Burhanuddin Al-Marghinani (d.593 A.H.) Qur'an Mahal,Vol:II, Kitab Al-Talaq, p.416)

The Liia-n revokes and replaces the legal punishment both in case of the husband's false accusation as well as in case of the wife's adultery. If the husband falsely accuses his wife of adultery and is not able to produce four eye witnesses it shall be incumbent upon him either to admit his accusation to be untrue, making himself liable to the legal punishment for false accusation i.e. Qazf, or perform Litin.

The method of performing Lita-n is that the husband in presence of the presiding officer of the Court shall say four• times, "I swear in the name of Allah that I am assuredly true in what I say about lthe adultery of this woman (wife)". And at the fifth time the husband shall say about himself, "Curse of Allah be on me if I am untrue in the accusation of adultery that I have made against

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this woman (wife)", while pointing towards that woman. After this, the woman (wife) shall say four times, "I swear in the name of Allah that the husband is assuredly a liar in the accusation of adultery that he has made against me." At the fifth time about herself the woman shall say, "Allah's wrath descend on me if the husband is true in the accusation of adultery that he has made against me".

(Kitab AHUmm, Imam Shiifit (d.204 A.H.) Vol:V, p.286) (Hidayah:

Marghinani (d.593 A.H.) Qur'an Mahal, Vol:II, Kitab Al-Talaq, p.418) (Al-Mukhtasar, Allama Abul Hasan Al-Quduri (d.428 A.H.) Qur'an Mahal, Karachi, p.168).

an it is laid As to the commandment, with respect to Li'-

down in the Holy Qur'an :

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cra ic I 41.0 LEH Q.L.L.J 01 L..W15 • c.ti-11.41.11 0..1 4;1 DL c..IaLst, LEI JIsts-t cu 1 am.= 01 cr. 1 dal 1 1_94.a. 1L 3 • c.v.: 1.C1 1 • 1.4.11 015 c.,1 1_41s. all ae 0i 1j

(Al-Qur'an, Surah Al-Noor(The Lights): XXIV:6-9).

"(And for those who launch a charge against their spouses, and have (in suppori) no evidence but their own, their solitary evidence (can be received) if they bear witness for four times (with an oath) by Allah that they are solemnly telling the truth. And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie. And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth)"

As to the Occasion of the Revelation ( )

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of the above Verses, there is a narrative about it that twaymir al-'Ajlitni appeared before the Prophet and said, "0' Prophet, if someone finds his wife with someone else in a compromising situation and he beheads that person, would you in turn behead him? If that someone does not behead that person what should he do in the circumstances?"

On this occasion the directive for Li'an was received. (Sunan:Abu Da'ud, pub.Wali Muhammad & Sons, Karachi, 1369 A.H. "Bab Al-Li'an" p.305) (Bidayah Al-Mujtahid; Ibn Rushd, pub.Egypt, 1379 A.H.

Vol:II, p.115).

It may, however, be observed that LP- an has been made

applicable only in the situation when the husband is unable to produce four witnesses in support of his accusation against his wife. Therefore, When the four eye witnesses of adultery are produced, the court has no power to pass order for Li'an. The very words of the Holy Qur'an. lay it down expressly (X XIV: 6)', 1 (Ai cA ti 5" thai is3 "have (in support of the accusation) no-evidence _except ;their ownselves". j The effect of Li'an is that the husband's having sexual intercourse with his wife becomes forbidden so long as the Li'an remains in force. If the husband after effecting Li'an retracts, i.e. he proves himself a liar, the prohibitory effect of Li'an shall cease. After Li'an (but before the Qa-di effects separation between the couple) if the husband retracts i.e. he confesses that he had falsely accused his wife, in such event, it shall be lawful for the husband (without entering into re-marriage), to have sexual intercourse with the wife. If the

Qs:di effects the separation and thereafter the husband admits of his being a liar, the couple, by / mutual consent, may re-enter into fresh marriage contract. But if the li'Un continues, the wife, in such event, shall continue to remain forbidden to the husband. This is how the matter stands according to Abu Hanifah and Muhammad Al-ShaybUni. According to Abu Yusuf, however, a perpetual prohibi- tion is created on account of Li'in and they can never unite in marriage in any case, as the Prophet peace be on him, had said, "Those who effect Litin (both the parties) shall never unite". According to Imam Malik, Shafi'i and Ahmed as well, everlasting separation shall get effected and in no wise they both would be able to reunite. (Al-Hidayah;

Marghinani (d.593 A .H. ) Qur'an Mahal, Vol:2, Kitab Al-Talaq , pp .418-19) .

But Abu Hanifah maintains that after its falsification neither the nor the effect of -Li'an subsists. Hence, the wife can again become lawful to the husband. (Al-Miza-n al-Kubra-: Imam Shirra-ni, pub.Egypt, Vol: II , p .127),. 1,0f course, the badd Qazf will be inflicted (xi the false accuser.

12.Al-Shitriini, the author of Al-MizUn al-Kubri, writes that the averments of 'Umar, Ali, Ibn Mas'ud, Ibn Umar, 'Ata, Zuhri, Awza'i, Thawri and Sa'id b. Jubayr are also in accord with that of Abu Hanifah to the effect that on account of Li'Un restriction is placed on marital rights. When the husband belies himself i.e. he admits himself% to be a liar, the restriction shall get removed.

13.Al-ShitrUni further writes that according to Malik, and

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by a report according to Ahmad b. Hanbal, the separation, on account of Liga-n shall get effected but it should be accompanied by the order of separation from the Qadi. The assertion of Abu Hanifah is to the same effect. It is a well known assertion of Ahmad b. Hanbal that separation shall not get effected without the Saran of the wife and the order of the Qadi. The Qazi shall have to decree the separation between the two. According to Sh -afig , however, separation shall an ' being effected by the husband, particularly get effected, on LP-

because on husband's Liett-n, the denial of parentage from the father's side is established. (Al-Miziin al-Kubrii; Imam Shilrani, pub.Egypt , Vol:II, p.127).

14.As to separation through Li`a-n, according to Hanafis', when the husband and the wife both have pronounced Li'in,the Qadi shall get separation effected between the two. According to Abu Hanifah and the Sa-hibyan, as long as the Qadi does not effect separation between that two, no separation takes place between the husband and the wife (though the husband's having sexual intercourse with the wife shall be forbidden). Contrary to this, Zufar and Sint-fig are convinced of separation by Lita-n itself. Therefore, according to them, if one of the couple dies after Li'an they shall€not inherit each other. UKitabAlynitirt Shafl'il:(4:2941..A -:,H.f.:)pub,Maktgb al-Kuliyya al-Azharia.,1381 Aztl: iVolt , .2900.`., , According-0j H a' nafiec.the event, of :1,Pa-nhall the order of an irrevocable divorce. According to the :three Alimmah,

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however, it shall come under the order of dissolution of marriage.

The observance of the term of probation shall belneumbent upon the wife and she shall be entitled to maintenance and separate residence.

(Al-Mizan al-Kubrit Allama ShiTritni , pub . Egypt , Vol: II , p .127) .

According to Malilds, Imam Malik has expressed the opinion that a separation takes place when the husband and the wife have taken the prescribed oaths even before the Qadi's order(Muhammad b.

Ahmad : Jawahar al-tqad, p.177).

According to Imam Shafi'i the husband's imprecation results in a Separation between the parties without any order of the Qadi.(Muhammad b. Ahmad: Jawahar p.178).

According to ShPiTS,the mandate relating to Li'an is estab- lished by the Li'an itself. The marriage gets dissolved ipso facto after the parties have taken the oaths. The separation on account of Wan is faskh (dissolution) and not a divorce.(Al-Hilln SharaThi 'al-Islam, Tehran, pp.231-32, Beirut, Vol,II,pp. 81 and 91 :

Li)4 ()law ict • • Fit Lyst: c)uul

Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, provides for dissolution of marriage "on any other ground recognized as valid for the dissolution of marriage under Muslim law". Hence, the wife has to claim the dissolution of her marriage under the doctrine of Li'an, both in India and Pakistan. Recognizing the need for Court's decree, the Hanafi rule has been preferred in,section14, of thelQazf Ordinance.

The High Con'ts of erstwhile Weit.Pakistari seen.to give no recognition to Lita-n. In the case of Mst.Leelan Vs. Rahim Bakhsh (reported in PLD 1951 B & J 91), the High Court of Baghdadul Jadid (Bahawalpur) held that "the procedure prescribed by Muslim law for establishing the legal rights arising from the doctrine of Liitt-n was not permissible in our courts for the simple reason that the Muslim Law of Evidence has been superseded by the Evidence Act." In this case Mst.Leelan had sought separation from her husband Rahim Bakhsh on the ground, amongst others, that her husband accused her of having illicit connections with some other person. The husband in his written statement had admitted of his accusing the wife of unchastity and of being unfaithful to him.

In another case of Lahore High Court, Ghulam Bakhsh Vs. Hasain Begum (reported in PLD 1957 Lahore p.998), Mr.Justice Kiyani and Mr . Justice B . Z . Kaikaus held, "The procedure for Liga-n was the result of circumstances which no longer exist. This procedure would be wholly out of place in the present state of law, and, at the same time there would be no jurisdiction of the civil court to compel compliance with it."

- With due respect th. :legal accumen of the learned Judges of the erstwhile High Court of West Pakistan, Li'a-n is not a procedure a evidence, as observed in the aforesaid two judgments.

LiCan is a part of substantive law, not that of the procedure , included in the Islamic law of evidence. In Islam the accusation of

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adultery is such a crime that a legal punishment is fixed for it, which is called Hadd Qadhf, punishment for slander (falsely accusing one's own wife of adultery). In order to keep safe men from Hadd Qadhf and women from Hadd Zina (punishment for adultery) and to restrict the virulent evil of accusation of adultery from spreading in the society Allah the Almighty has particularly ordained the law of Li'itn. The an is administered. That Holy Qur'an prescribes the method in which Li'-

method too by itself has the force of substantive law. No action-under adat (evidence) - shall be taken at variance with it. As,the word Shah- Litan

occurs in the concerned Qur'anic Verses, the learned Judges probably thought Li'a-n to be a procedure of evidence. The fact is that Lit - an

is not evidence; it _ is an oath and assumes the status of substantive law. That is why all the jurists and traditionists have mentioned the Lilitn in Kitab (Book of Divorce) and not that in Kitab al- Shahadat, (Book of Evidence). The word Shahadat (evidence) for the word Qasam (oath) has also been used at another place in the Qur'an.

For example, Allah speaking of Munafiqin, (hypocrites) say, "that when the hypocrites come to you they swear that you are the Prophet of Allah," (LXIII:I):-

4111 iNS) • • . 1)1•; ‘ 5.14 L, un

20.Moreover, the various modes of dissolution of marriage as envisaged in section 2 of the Muslim Personal Law (Shari'at) Applica- tion Act, 1937, expressly include divorce, Khula, Mubarat, Zihar and

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LiCan which the courts have been empowered to enforce. It is although correct to say that our courts in those days could not, then / enforce the Lica-n to avoid Hadd al-Qadhf and Had al-Zina because both those acts were not then crimes in Pakistan. But so far, as the dissolution of marriage through Lican is concerned, the courts under the provisions of section 2 of the said Act of 1937 were fully competent to dissolve the marriage on (It may be noted that Sharitat Act, 1937 was not amended at the time when the said judgments in the above cases were pronounced). The law relating to separation of a couple on account of Li'in then subsisted. Moreover, under section 2 of the Dissolution of Muslim Marriage Act, 1939, a marriage could be dissolved on any other ground recognized by Islamic Law. For false accusation of adultery the recourse to Win was already available to the spouses.

It will not be out of place to mention here that the substantive law is that_part of the law which creates, defines and regulates rights whereas the law which governs the manner in which the rights are enforced and wrongs rectified fall within the ambit of procedural law. In fact, substantive law, or one may call it the actual law, is opposed to adjectival or procedural law. (See Black's Law Dictionary,Fifth Edition, Ballentine's Law Dictionary, Third Edition and Osborn's Concise Law Dictionary, Sixth Edition: Procedural Law, Substantive Law).

For the .aforesaid discussion, the contention of the learned Standing Counsel for the Federation •that Li'un as provided in section 14 is the law of procedure under Islamic Law, is misconceived.

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Now, the contention of the petitioner's counsel that recourse to the provision of Li'-an can only be had, if the husband does not have the evidence available with him in the form of medical evidence, circum- stantial evidence, or some ocular evidence less than the four witnesses prescribed by the Holy Qur'an as such, is not tenable, The Holy Qur'an explicitly ordains that there should be at least four eye witnesses to prove the guilt of zina , liable to Hadd , if the husband or the wife, as the case may be, accuses the other spouse of the commission of zina. ( Surah Al-Nur XXIV : 5,6)

The Commentators of the Holy Qur'an ( ),

traditionists (crtt ) and great jurists are all unanimous on the point that there must be four eye witnesses to prove the guilt of zina , whe,ther the accuser is a husband or any other person, otherwise the accuser will be liable to Qazf. The medical evidence or for that matter circumstantial evidence cannot be held to be a substitute of four eye- at- witnesses to obviate Wan.

The words of the Holy Qur'an in Surah Al-Nur XXIV : 6 are very clear on the point that the husband who accuses his wife for adultery should produce four eye witnesses failing which the resort to the Li'a-n shall be made. It excludes any other form of evidence, be it medical or circumstantial or whatever it may be, it will not be given any weight.

The famous Commentator of the Holy Qur'an Al-Qurtubi says :

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LL•J I _oat., j__ _A ri ç • I

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That is the proceeding of Ll'an will be: obligatorron the failure of husband in producing the required evidence of four (male) witnesses. The majority of thp Doctors of figh(Jurists) and a large number of traditionists are unanimous on the point. (Al-Qurtubi: Al-Jam li-Ahkam al-Qur'an, Vol .2 , p .185 ) .

wr Allama Asad while explaining the relevant verses writes:

"By obvious implication, this injunction applies also to cases where- a woman accuses a man of illicit sexual inter- course, and is subsequently unable to prove her accusation legally. The. severity of the punishment to be meted out in such case, as well as the requirements of four witnesses instead of the two that Islamic law regards as sufficient in all other Criminal and Civil suits is based on the impera- tive necessity of preventing slander and off hand accusation. As laid down in several authentic sayings of the Prophet ( (1--) 41.1.0 &EH uka ) , the evidence of the four- witnesses must be direct and not merely circumstantial: In other words, it is not sufficient for them to have witnessed a situation which made it evident that sexual intercourse was taking place or had taken place. They must have witnessed the sexual act as such, and must be able to prove this to the entire satisfaction . (The Message of Qur'an, p.533).

Mawlana Syed Maududi while explaining the Verse writes that :

"The Qur'an explicitly ordains that there should at least be four eye witnesses to prove the guilt. This has been stated in Al-Nisa (IV: 15) , and in this Surah Al-Nur too

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it has been reiterated twice ( XXIV: - 4 & 13) . A Judge, is not authorized to decide the case on the basis of his own knowledge even if he has seen with his own eyes the couple committing the crime." (The Meaning of the Qur'an, Vol:8, p.71).

Mawlana Shabbir Ahmad Usmani also writes that:

"First four witnesses shall be demanded of the man who accuses his wife of adultery. If he produced four witnesses, then the women shall be given the punishment of adultery. If he does not bring four witnesses, then he shall be told to say by God four times that he is truthful in the accusation (claim) . He did not tell a lie in casting upon his wife the imputation of fornication. In other words, these are the four witnesses on oath in place of four witnesses of men." (Tafseer Usmani , p .1558) .

When this issue is examined in the light of the Sunnah of the Holy Prophet 41.6 trii 01.0 ) we find that when Hilal bin Umayyah brouglit a complaint before the Holy Prophet ( Avis 411 01.0 ) regarding illicit inter-course of Shank bin Samha with his wife, the Holy Prophet dticz trl 1 oi-i° ) ordered to produce four eye witnesses and told him in case he fails to produce four witnesses to prove his accusation, then he must be ready to face Hadd punishment:

(WC" c Jo La—,1J Jill I (II-, I t. 1,7_11 ) 1,_ tst ;Lau • Thore arot!ct -nuinbet. of (Alip.dith,.whichrempliasize: .tionpriziclueing four key.e2/witne.s so n-stei Jata.blish cOte 0.'cusatio.n _zina• .irreZpe.ctiVO;

the labt'alkat.: the/:Erdeuser:‘,is:;a- bileband-oF cgorrio. Otheis.:-peisson It is narrated that an Ansari came to the Holy. Prophet

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and said:

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"(If a person finds another man with his wife, and utters an accusation; you will enforce the prescribed punishmentof qazf bh him ; if he.pommits;murdpr r ynuvill14tve -him if-he,keeps quiet, he will regigininyply,ed in, anguish;

Cuc then what .should he do?. and, the verse of Li!Tan Was revealee( Sunan Abu.. D.awood nVol. 1 ,p .3 2) .

The details of the cases which the Holy Prophet ( d—rls judged in accordance with Law' of LiCan , which are, in fact, interpreta- tion and application of the Verses of Surah Al-Nur,, have been related in almost all books of Ahadith. No Muslim is allowed to go beyond the detailed Law of Lifitn as enunciated by the Holy Prophet( (43 4.4s. 4.1) 101.0 through his several judgments.

33.The first case of Li'itn, decided by the Holy Prophet AD I cisio ) was that of Hilal bin Umayyah as it is narrated from Hazrat Anas . When Hilal brought his complaint before the Holy Prophet ( (14,1ii. . alj. I cit.° ) regarding the involvement of Shank bin Sahma with his wife, the Holy Prophet ( (1_1 01) LpLa ) said:

ei ji+ cr./ ;aw l

(Four eye-witnesses, or your back should bear the punishment) . (Al-Siyuti: Al-Dnr al-Manthur Vol. 5 , p.23), I al I ) (Al-Siyuti: Al-Sunan al-Nisai, Vol. 6 , p .172) .

This tradition is very clear that the only requisite standard of proof of adultery in the case of accusation of one's own wife is four eye-

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witnesses and nothing else can, in any way, prove the accusation.

34.On the failure of husband to bring four eye-witnesses and denial of accusation of adultery by the wife, the proceeding of Li'- an takes place. Abu Bakr al-Jassas, a famous Commentator of the Holy Qur'an, says that:

cA-1 c5J 1 cri cj I.,JJ I 01

(The proceedings of Li'an between the two spouses is in substitution of Hadd-punishment).

It may further be mentioned that as Lita-n results in removing the Hadd, the same standard of witnesses as to their number and quality required for awarding Hadd punishment, has been maintained in the matter of Lita-n. That is why in Li'a-n four oaths ( ) of assertion and denial have been prescribed by the Holy Qur'an for effecting Liia-n, as substitute for four witnesses ' ' (Sing.

Shahid, witness).

It appears that the Holy Prophet ( r1-3 4:

called himself Li'in as Hadd.

- (If, the Hadd (procedure of LP- an) has already not been

completed I would have punished her with stoning to death). (AI-Jassas:Ahkam al Qur'an Vol:3, p.256)• It is thus apparent from the Verse of Surah Al-Nur and Ahadith of the Holy Prophet ( 4111 -Lt1-0 ) that in the situation

S.P.No.85/1/91 - 20 -

when a husband accuses his wife with adultery he will be asked first to bring four ,eye-witnesses, and in the case of his failure to do so the procedure of Wan will take place and no other evidence, whatsoever it may be, will be required to prove the wife guilty.

37.If the accuser (husband) produced three witnesses can his own evidence be considered to fulfil the required number? Imam Abu Bakr al-Jassas in his commentary 'Ahkamul Qur'an' Vol .3 , P .295 , dealing ' with the point in a separate Chapter ( jai ) under the title "Four witnesses recorded their evidence against a woman who committed Zina and one of them is her husband",(Lost 3..; roasaI 4Jç ; ole. 4.$9..t. is.:j ) writes that : -

II

Lei .ii 0.1.p 4."-J1 - 41L JU,4, ;;L:- rscJiaz,

J5J5 gx----:-11) cr..") ct og.)1.1

(.911--: 4Li jts,,t,J J IS • LI:aiti I 4-.1/4 odNe. VI I ix' .1-:s 4:4 os• Lth."1-`"7 1 kt•-"!" Cv-: rebt-i ots- 3.; 1 ( 41,7 rm 4.1...-14 •Ia.: Lai); k,zie 1

rse J1_91,4 j1).“7- is1.611 cjill •çAJI L.tj t., •Lar , ;cat ciji ; J1_61-4 01 1S13 14.0 4,1-t1/4 1, 341411 0s. ,3 Cr* 11— oi ,)01..aii1 1 0; 1;1_ oi 41 01s. 7,91,7 I Jvi)i • L.?) I Ls° 4:)51: raj' 1 1 4-11

ji JI-; • I J-t":1 I...) I ir-t tid - I LILL" i 10 L.:13 41/4.1.9. 0W J Ai: iite Jyrth. %ea ° It

kra., 4.; 1 4I )11.C. 1.1 Lk/J.9 1 41 4) 014/1

jJ ,14;11., JS. 41.71.1 Lk.° . I Y1JIat,is rt, LI)

; tip ell ace: 4_99,L,“ )S UJU

S.P.No.85/1/91

I

That is, according to our Scholars ( ) their evidence is acceptable and the woman will be awarded Hadd ( j.. ) punishment. 'Imam Malik and Shafi'i have maintained that the husband will exercise Li'zin ( ) and the three witnesses will be awarded Hadd punishment. Besides their opinion, Hasan, Shdbi and 1bn Abbas are of the opinion that the husband will exercise Liya-n and the three witnesses will be awarded Hadd ( 4-- punishment . Abu Bakr said Allah Almighty has ordained that :

(1V(15) ;au' (Jst1/41.0 L:_: .1.:_..1111 is )U I • It makes no difference either the husband is among the witnesses or all of them are strangers. Allah Almighty has also mentioned that :

oixiv:64 cx.: Li (sty ..d..4i •TJ Law 5L d c_. L.oa.JI nn :u 5.

If any stranger makes false accusation of Zina against a woman and presented four witnesses, the situation demands to accept their evidence and to ward off. Hadd punishment from Qazif ( ) and• to apply the Hadd on her. Likewise, there is no controversy on the point that the evidence of a husband in respect of his wife is acceptable in all rights including Qisas, Hudood i.e. theft, shurb and Qazf. Therefore, it must be acceptable in zina also. If it is said that the husband will exercise Li'an if he makes false accusation against his wife:and:it is not allowed for him to be a witness, then he must be told that if he presents three witnesses in addition to his own, he will not be2helds as Qazif ( ) and Liva-n will not be conducted. Litan will be exercised in the circumstance, when he fails to produce four witnesses after false

S.P.NN/1/91 - 22 -

accusation of Zina like a stranger when he makes false accusation of Zina he becomes liable to Hadd punishment, unless he produces four witnesses other than his own giving evidence of committing Zina. If he produced three-witnesses and they gave their evidence of committing Zina, •then he will not become Qazif ( ) because he, himself is a witness; the same is the case of husband. (Al-JassEis, Ahkamul Qur'an, +17o1.3, p.295).

About the condition of four witnesses-Wahba Zuhaili says that :-

I J..- etio tr.", I j I ..1.;IiV c,,i

("Y Yca )1... 1 an) • 01.J.AA

"When a husband accuses his chaste wife of false accusation of adultery, Hadd for Qazf becomes obligatory on him, and there will be an order for his becoming fasiq ( ) and repudiation of his evidence, except that he brings• evidence or under-goes Liran, in case, four witnesses are not produced."

The condition of four witnesses is also mentioned by Ibn -Qudama that :-

4...J1 cis 4....") J3;

t" • Y I ..6 “9.:-;..J I ) s '1-.,s2

"It is indeed when (the husband) accuses his chaste wife of unchastity, Hadd punishment is obligatory on him that in case he does not produce four witnesses."

S.P.No.85/I/91

The same view is expressed by Al-Sarkhsi in Al-Mubsut Vol:VII, p.30 and Ibn Abideen Shami in Raddul Muhtar, Vol:II, p.635.

It may, however, be added that the Holy Prophet (1., 46 ,)-0 ) in a tradition used the word 'Bayyina' ( ;

which means 'evidence'. As interpreted by Ibn al-Qayyim the word !Bayyina' ( ) includes ocular, documentary and the circumstantial evidence. But in a tradition narrated by Imam Nas'i instead of the word ' ' the words ' ' four witnesses are reported to have been narrated by the Holy Prophet ( ' 4.41.p ) (See Sunan Al-Nas'i, Beirut, Vol:5, p.172). The relevant portion of the said tradition reads as under

Jib:. Lev I (Let) dtig. 01.0 crj I J •••

dvic -; .N& dinie

"The Holy Prophet ( ri-j d.r11 13l...0) said: bring four male witnesses, otherwise Hadd al-Qazf ) will be inflicted on your back".

(This was repeated a number of times by the Holy Prophet r1----5 4,1p JD I old )

It can,therefore, be concluded that in order to prove the accusation of adultery charged by a husband against his wife, he is required to produce .four witnesses ('1-J-44-2 I),' to obciate the courseirof To sum up, as discussed above, the condition of four eye witnesses to prove the accusation of adultery cannot be ielaxed for an by producing medical or circumstantial evidence. the purpose of LP-

S.P.No.85/1/91

Even controversy amongst the jurists about the evidences of four witnesses including the husband (the accuser) could not be agreed to.

The production of medical evidence and circumstantial evidence, therefore, carries no weight.

As regards confession, itstaiidscaltogether on a different footing.

If the spouse confesses the guilt before a competent Court of Law, there will, then, be no need for having recourse to Li'a-n.

43.Section 14 of the Offence of Qazf (Enforcement of Hadd), as such;.cannot dae.heldoto'be, repugnant :to:the. Injunctiimis of- I slam- prayed , for.

Therais “however ;.m..lacuriarWhichl May Jae.' ftllethip“.by ad.ding-Ahe words in the beginning of Sub-section(1)-of SectiOn 14 that "in-theMbience of 1f- evidence of four eye-witnesses," the Court shall proceed to record the Li;a-n.

The Federation is, therefore, directed to make the above addition in section 14(1) of the Offence of Qazf (Enforcement of Hadd), Ordinance VIII of 1979, within six months from the date hereof. For failure to do so, the said addition shall be deemed to have been made and the same will form part of the said sub-section.

In result, the Petition is disposed of accordingly.

Announced today' in open Court by me.

( Dr. Tanzilur-Rahman ) % cV19- Chief Justice i' I.

Chief Justice

Mir Hazar?,khari Khdso,J. ragree. ( Mir Hazar Khan Khoso ) Judge

Approved for reporting.

Islamabad,

Naseer. CHIEF JUSTICE

S.P.No.85/I of 1991

JUDGMENT

DR.FIDA MUHAMMAD KHAN,J.- This Shariat

Petition,filed by Capt.Abdul Ghafoor, challenges section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance,1979 (hereinafter called the said Ordinance) on the ground that it is repugnant to the Injunctions of Islam as laid down in the Holy Quran. This petition was admitted on 9.2.1992 and was fixed for regular hearing on 11.5.1992 when the learned counsel for the petitioner Mr.Fazal Elahi Siddiqui, Advocate was heard in detail. Mr.Iftikhar Hussain Chaudhry, learned standirig counsel for-r ithe Federation was also heard. Then the judgment was reserved and the same is being disposed of now.

2.The impugned section reads as under:-

14: (1) When a husband accuses before a Court his wife who is muhsan within the meaning of section 5,of the zina and the wife does not accept the accusation as true, the following procedure of lian shall apply, namely:-

the husband shall say upon oath before the Court:"I swear by Allah the Almighty and say I am surely truthful in my accusation of zina against my wife (name of wife) and, after he has said so four times,he shall say "Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife)"; and

the wife shall,in reply to the husband's state- ment made in accordance with clauge(a), say upon oath before the Court: "I swar by Allah the Almighty that my husband is surely a liar in his accusation of zina against me"; and,after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his actusation of zina against me".

S.P.No.85/I of 1991

(2)When the •procedure specified in sub-section(1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.

(3)Where the husband or the wife refuses to go through the procedure specified in sub-section(1) he or,as he case may be,she shall be imprisoned until -

in the case of the husband,he has agreed to go through the aforesaid procedure; or

in tne case of the wife,she has either agreed , to go through the aforesaid procedure'or accepted the husband's accusation as true.

(4)A wife, who has accepted the husband's accusa- tion as true shall be awarded the punishment for the offence of zina liable to hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979".

3.The learned counsel for the petitioner submitted that the provisionsof "Lian" are against the law prescribed by the Holy Quran because "Lian" according to Quranic teachings will take place only when the husband does not have the evidence which ,according to him could be either in the form of confession of the wife at an early stage or some ocular evidence even of less than four witnesses or of medical evidence In the light of foregoing submissions,the learned counsel submitted that since the impugned provision of "Lian" does not start with the words "In the absence of evidence" which should have been inserted in the beginning of the sentence in the said section, it was repugnant to the Injunctions of Islam.

The learned counsel is of the view that in cases where the husband charges his wife for zina and the evidence is available

S.P.No.85/I of 1991

in any form as mentioned above, Lian will not take place.

The learned counsel relied on 'verses No.6 to 10 of Sura al-Noor.

4.Controverting the above contention, the learned counsel for Federation submitted that "Lian" has been considered as a form of divorce and it has not been considered, treated or,discussed as a subject under Islamic Criminal Law.

For this purpose he made references to "Mishkat Sharif" and "Hidaya" where the subject of "Lian" has been discussed with divorce. The learned counsel submitted that section 14 of the Offence of "Qazf" incorporates the procedure for "Lian" and the substantive law with various related questions has not been codified in the Ordinance, therefore, the question raised by the petitioner was not significant. He further submitted that the same would have been significant only if the section dealt with the substantive law and hence it would not be advisable or possible to incorporate all the substantive law, as discussed in the Holy Quran, traditions and Hidaya, into the statute law because that would give rise to unnecessary controversy about the nature of evidence.

5.We have considered the submissions, made by the learned counsel for the parties, in the light of Injunctions of Islam as contained in the Holy Quran and Sunnah of the

S.P.No.85/I of 1991

Holy Prophet( L3 a...1ca_IJI ...L.). It Oinent to mention here Ls

that "Lian" literally means mutual cursing. Technically,in Islamic law, it signifies the specific procedure laid down for bearing witness and invoking curse on oath, before a court of law, by both husband and wife when the former accuses her of committing zina or denies his paternity to her child/pregnancy (which is known to be his due to the subsistence of their marriage) and the latter refutes his charge. Since after completion, it not only culminates in dissolution of the marriage between the spouses and outright termination of their mutual rights and obligations but also results in removal of punishment from them, it cannot be termed as mere procedure but definitely it forms an integeral part of both civil and criminal jurisprudence and is thus a substantive law. Submissions of the learned counsel for Federation in this respect are therefore without any substance.

6.Before dilating upon the subject it seems necessary to reproduce the relevant verses of the Holy Quran which are as under:-

ete I sji &SI 11 P1 So.• fo.031 0$9,1 uLaJ I J siaS112A... • fzel aLcs: &il a_U I j.s....#3 J.. 01,S 01 utail &ilhJII3SJI La:as I

L-A,J.: c,, Luul 0.9_1 6.16111.io oLS

a-LJI ,•) I 3 4;-.--0.2.3 3 e-ciac 3-1-11 Jja-i - Lro

5 I

()•=: Yr J.9.11)

36 "6: And for those who lauch A charge against their spouses, And have (in support) No evidence but their own, - Their solitary evidence (Can be received) if they (Cont'd....P/6)

S.P.No.85/I of 1991

Bear witness four times (With an oath) by Allah That they are solemnly Telling the truth"

1:7: And the fifth (oath) (should be) that they solemnly Invoke the curse of Allah On themselves if they Tell a lie".

: But it would avert The punishment from the wife If she bear witness Four times (With an oath) By Allah, that (her husband) Is telling a lie; •

::9: And fifth (oath) Should be that she solemnly Invokes the wrath of Allah On herself if (her accuser) Is telling the truth".

: 10: If it were not For Allah's grace and mercy On you,and that Allah Is Oft-Returning, Full of Wisdom, (Ye would be ruined ;indeed):nrm:

7.It is alSo pertinent:to mention that prior to the revelation , - of these verses the preceding verses No.4 to 5 of Sura Al-Moor had been revealed which had prescribed punishment for the person who accuses chaste (man or) woman of zina but fails to produce four eye witnesses to prove his charge. Then a question naturally arose about the person who may find his own wife involved in zina but has no witnesses to prove the same in a

S.P.No.85/I of 1991

court of law. This led to a difficulty which in view of its particular nature assumed special significance. The difficulty was explained in a tradition in the following words:

::!Abdullah reported: We iNere ,on the night of Friday staying in the mosque when a person from the Ansar came there and said: If a person finds his woman alongwith a man,and he speaks about it, you would lash him,and if he kills,you will kill him, and if he keeps quiet he shall have to consume anger. By Allah I will definitely ask about him from Allah's Messenger (may peace be upon him). On the following day he came to Allah's Messenger (peace be upon him) and asked him thus: If a man were to find with his wife a man and if he were to talk about it, you would lash him; and if he killed, you would kill him, and if he were to keep quiet, he would consume anger, whereupon he (the Holy Prophet) said: Allah solve (this problem), and he began to supplicate (before Him), and then the verses pertaining to li'an were revealed: "Those who accuse their wives and have no witnesses except themselves" (xxiv:6). The person was then put to test according to these verses in the presence of the people. There came he and his wife in the presence of Allah's Messenger (may peace be upon him), and they invoked curses (in order to testify their claim). The man swore four times in the name of Allah that he was one of the truthful and then invoked curse for the fifth time saying: Let there be curse of Allah upon him if he were among the liars. Then she began to invoke curse. Allah's Messenger (may peace be upon him) said to her: Just wait (and curse after considering over it), but she refused and invoked curse and when she turned away, he (Allah's Apostle) said: It seems that this woman shall give birth to a curly-haired black child. And so she did•gavebirth to a curly- haired black child."

(Sahih Muslim:Kitab-Al Talaq,vol.11,page 780-781 ) Translation by Abdul Hamid Siddiqui.

S.P.No.85/I of 1991

8.- - Atat&ral course:open for the husband could be to divorce the woman but in such a situation:- if the illicit intercourse results in the pregnancy he will have to suffer the burden of bringing up another person's child dnd also there would be no moral or physical penalty either for the woman or her seducer. This was a problem of a very serious nature and some events actually occurred which H i rvi highlighted the gravity of such situations.However the verses mentioned above were revealed and by providing guidance they sorted out the difficulty and resolved the problem. A few traditions that alongwith the above mentioned verses of the Holy Quran form the •basis and source of Islamic law on the subject are mentioned below:

(a)Ibn Abbas reported that Hilal-b-0Mayi-fah imputed adultery to his wifb. with Sh;rik-b-Sahma'a ir fresence Of the Apostle'of Allah. The Prophet said: Proof or ordained sentence.on your back (for slander).He said:0 Apostle of Allah! when one of us sees a man over his wife - will he go to seek proof? The Prophet began to say: Proof or else the prescribed punishment on your back.Hilal said: By one who sent you with truth I am certainly a truthful man.Let Allah reveal what will prove me not guilty for the ordained sentence. Gabriel then came down and gave him the revelation:As for those who impute unchastity to their wives - (he read till he reached) if you are of the truth- ful ones(24:6).Hilal came and deposed.The Holy Prophet was saying:Allah knows that one of you is a liar.ls there one of you to repent? She got up and testified.When she came near five times,they prevented her and said that it would make (punishment) obligatory.lbn Abbas said:Then she stopped and delayed till we thought that she would return.Afterwards she said:I shall not dishonour; my peopb for all times.Then she went away.The Holy Prophet said: Look at her; if she give birth to a child,black of eyeballs, perfect of bones and fat of buttocks,it is for Sharik-b- Sahma'a.She then gave birth to (one like that.TheMessenger of !Allah•said:But for what is in the Book,Allah,it would have been a serious matter for her and for me. eirn Lts, ,,/.1 cli %to r <lithe/ 9-4' 1

S.P.No.85/I of 1991

1bn Omar reported that the Prophet allowed imprecation between a man and his wife. Thus he separated her from her child and made separation between them both. He handed over the child to the woman. And in a tradition narrated by them: The Prophet admonished him, reminded him and informed him that the chastise- ment of this world is easier than the chastisement of the Hereafter. Then he called her, gave her admonition, reminded her and informed her that the chastisement of this world is easier than the chastisement of the Hereafter.(Bukhari-EAltisHm) Sahl-b-Sa'ad reported that Owaimer-al-Ajlani asked: 0 Messenger of Allah, inform me about a man who found a man (commiting adultery) with his wife, whether he should kin him and so they (heirs of 'the j killed),should kin him,or how he should act, The Messenger of Allah said: Certainly revelation has come about you and your wife. Go and bring her. Sahl said: Then we both took to mutual cursing within the mosque while I was with the people near the Messenger of Allah. When he was free,Owalmer said: If I retain her, I would be lying against her, 0 Ms.of Allah. Then he gave her three divorces. The Prophet said: Look; if she gives brith to a child,black of eye-balls, and fat of buttocks and fleshy of hind parts, I will not think of Owaimer but that he has spoken the truth about her. And if she gives birth to a child of reddish colour as if it is a white lizard spotted with redness, I will not think of Owaimer but that he has uttered falsehood about her. Afterwards she gave birth to 'a child of the descriptions which the Prophet of Allah had stated in support of the veracity of Owaimer. It was afterwards ascribed to its mother. (Bukhari and Muslim) fl ".• )

0,4 it.,

9% SO:fae.as.aboiVe verses of the Holy Quran and the trad(tibns of the Holy Prophet( r1 4 Li co-, ) are concerned they are

very clear on the subject. According to them the procedure of

S.P.No.85/1' of 1991

"Lian" is to be adopted only when the required evidence is not available and there is a solitary statement containing accusation of zina or of illicit pregnancy against his wife by the husband.

The Holy Quran specifically mentioned and not without reason the words:

_ eJthi r-1.9

"And have (in support) No evidence except themselves"

and the Holy Prophet( a_Js aJJ I isaa) unequivocally ordained: "Bring;evidence" ( ) Now the important question before us to be decided is what is meant by the words " " and IT "

10.In this connection,it may be mentioned that so far as the word " 51.26—.." is concerned there could be no ambiguity in its meaning because at the time of its revelation,the verses relating to commission of zina (4:15) and Qazf (24:4) had already been revealed and according to those verses "the evidence" clearly meant testimony 6f. f o u '-e e cw i t rie sie Verses number 13-14 of this Surah that follow the verses of Lian again make a reference to the production of four eye witnesses. The very verses of Lian have also/the same connotation. The factum of four witnesses is clearly confirmdd• by the number of oaths to be taken by both husband and wife

S.P.No.85/I of 1991

for Lian purposes. The word used in this verse is " slus.“tfig (plural of ' i.e.witness) and, as stated, in the context of its preceding and succeding verses it could only mean four eye witnesses.

1,1. Regarding the Ahadith it may be noted that as one part of the Holy Quran explains its other part, likewise various Ahadith also highlight the meaning of other Ahadith interse.

Accordingly, though in some Ahadith the word used is ' 411.1 " some other traditions throw light on the subject and specifies the meaning of ' • in explicit terms. In a tradition narrated by " L5L1---11 ", instead of the word the words " ilr“,i1" have been mentioned as under:

1 .L.S:o j I 4:fi a,J.c a-1-11 a—La Ls,•-;..J I a-J jLii • " • "

7 I )1 JJ .L.>1 I 3

"The Holy Prophet(Peace of Allah be upon Him) said: Bring four eye wiXneses..on;

ready f,or the) punishment (of Qazf) on your back".

(irepeating to him the same several times)"

( 3SSJ1131...3 g iZy u-eL.:-.J1 ;23..,J1 _ LJl There could be no better, authentic, authoritative and unambi- guous explanation of the word " " than this which brings the whole discussion on this point to a final conclusion.

12.In the light of above mentioned discussion it becomes crystle clear that to prove his case of accusation of zina against

S.P.No.85/I of 1991

his wife, the husband is required to produce four eye witnesses if the wife does not make, before a Court of competent jurisdiction, a confession of the commission of the offence. Therefore, submission of the learned counsel that the charge of the offence of zina should be considered proved by some ocular evidence even of less than four witnesses neither holds any ground nor finds support from any verse or Sunnah of the holy Prophet ( (4-3 3-1-I I Lqao • Similarly his submission regarding use of medical report as corroborative piece of evidence in "Lian" is also without any legal force as an hostile husband will always be in a better position to.himself manipulate such an evidence and then fabricate it against his wife whenever he may like to do so. So far as his submission regarding the prqtif of zina in the form of confession by the wife is concerned that has been duly provided for in sub-section 4 to' section 14 of the said Ordinance.

13.It is pertinent to mention here that the very text of Ahadith quoted above confirm beyond any shadow of doubt that no punishment could be awarded to the wife after the "Lian" proceedings are completed. In the case of Hilal Ibn-e- Omayyah when his wife swore for the fifth time the Holy

S.P.No.85/I of 1991

Prophet( e-1-3 a—ac a—lj ) passed a decree of dissolution of their marriage and also directed that her child after birth would be attributed to her. Some traditions further contain the ruling that nobody after that would blame her or her child so much so that if any body accused either of them afterwards he would be liable to the punishment of Qazf:

tsaj 3 1 1-1" J L.P4 t C tss*-J-a .9 Le "•1 • • • • , l kr1LG9 rpr uo, c II ..3514 .9.01) _ a.,Js.A ".9.)•e-e€ How could that have been if she was not honourably acquitted.

It is extremely important to note that in the above case inspite of the fact that the child looked very much similar to the male accused of the offence, the Holy Prophet ( f-Lj ) abstained from awarding puniM'ament to her and maintained in clear terms in the following words:

L&J J LS.J a-CJI 1.9_J

"If Allah's Book had not settled the matter before this,I would have treated her differently"..

Insanother. tradtion the wobrds are:

LL Let-I3 ‘5,J c,Lulcj 1_0;111 / .9_J

"If there had been no sweariiag of the oath, I would have dealt with this woman most severely".

In another tradition on some other occasion the Holy Prophet ( a_dc aaJI ) said about a woman who was openly spreading evil in the society, "If I could stone anybody without

S.P.No.85/I of 1991

evidence I would have stoned her". Therefore, there is not a single precedent neither in the period of Holy Prophet a_r_11 sic ) nor in the Orthodox Caliphate to the effect that after the completion of required ,procedure of Lian any wife was awarded any punishment inspite of the availability of some corroborative circumstances in the form of similarity of features of the child after delivery to testify the charge of zina by the husband.

14.Without going into the technical discussion on the subject that exists between Hanafi and Shafi School of thought, the position that actually emerges from the whole procedure of Lian when simplified is that the punishment of Qazf follows on the husband who accuses his wife of zina and is unable to produce the required number of witnesses. However, that punishment is averted from him when he makes particular statements on oath before a Court of law. As a corollary to that the punishment of zina follows against the wife but when she also makes particular statements on oath for a similar number of times before the Court she also saves herself from the punishment. The verse of the Holy Quran contain express injunctions in this respect. It reads as under:

SrJ .- ac-JI Lasac I 5.)..1“&9

— a“.../aLSJ I &l al-rJL "but it would avert The punishment fromi.the wife If she bear witness Four times (With an oathr, By Allah,that (her husband) ic toilinn a lip. 1Sura Noor Verse 81

S.P.No.85/I of 1991

This view finds fully consistent support from the Islamic commentatorsAMufassireen) of the Holy Quran of ancient and modern times alike. (For details see:

Ls-a C)kth-11 ( ri • (,) Lsi, s _ JIA uo U c

NIc-11 i i-11 ZIT* I Jth-113., I — I VIA — VII uo 1"• c

IA c• IVZ• Les.41 j,°-"‘° kSal I -9-1 JUL...A 4 •• cya

I'll— no uoy. Y c : •Ls. sth•-0

L 4I V—M aLL:ac Jo 1.43-o — Le1,5 t.4#3J cLL

ifms rpf cs..stLo uaL L.J 7.,1_0J1-7‘t L4.9.4 tL,. 101) a5c..,JL-7;. a;Lii

L; LS"

The late grand Mufti of Pakistan, Mufti Muhammad Shafi, summing up discussion on the subject of Lian, writes;

l at 1-5 0Q1 Lz.fria? cj i 4-5

Lrol Lsic lit ,s5 L,aa .g.0 L;

SI a Jc3

— LS.94° Lsgs. L.aS L3111 -di 41 thi3 3-5 6r,1 5-Li%th fas.3 Li4x 0-1-0 ath-olii Jsccb 01-0 saii" ktko-ith osbi 4.

Similarly, Maulana Syed A. A. Mawdoodi writes:

s J.9 1 4J,te 'kithi..ni-uaa, 1.9-:C`c* 4jar Ca 4-Ss' CI ' /":1;1 Li G'S LILc—in

S.P.No.8511 -of VI991

or° i..91 c'ac : crelb a÷ic atha*

“to fral 4 LS' LrAmioilj eS 4.5

L'a ‘th jb Ls.S.1#1_,.& LS LS

- LS9.i3 LS L) L3 ai J.9 1 jjlj0S-11 € Li 31 3; 1.43/6 ‘3.0. j smS LiA L.53-11.3.J3 .9S 4.5 col “el S 0..9.3.9.4iLS.....:0 _9se &i LL9.÷S 4S 0,1 ,z-J3 CS oLc-1 Le l J.C,. 4.5 LA-I

LSys LS A 6j U 4.JS . aJl_sl Li e

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Abthillah Yousaf All writes:

"The case of married persons is different from that of outsiders. If one of them accuses the other of unchastity,the accusation partly reflects on the accuser as well. Moreover,the link which unites married people,even where differences supervene,is sure to act as a steadying influence against the concoction of false charges of unchastity, particularly where divorce is allowed (as in Islam) for reasons other than unchastity. Suppose a husband catches a wife •in adultery. In the nature of things four witnesses - or even one outside witness-- would be impossible. Yet ,after such an experience it is against human nature that he can live a normal married life. The matter is then left to the honour of the two spouses. If the husband can solemnly swear four times to the fact, and in addition invoke a curse on himself if he lies, that is prima facie evidence of the wife's guilt. But if the wife swears similarly four times and similarly invokes a curse on herself,she is in law acquitted of the guilt. If she does not take this step,the charge is held proved and the punishment follows. In either case the marriage is dissolved,as it is against human nature that the parties can live together happily after such an incident."

(Holy Quran Translated & Commended by Abdullah Yousaf Ali,volume-II, page 897).

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And finally we may, also reproduce herewith translation of verse number 8 alongwith its explanation by Allahria Muhammad Asad, an Islamic scholar of repute. He writes:

cc 8:"But [as for the wife,a11] chastisement shall be averted from her by her calling God four times to witness that he is indeed telling a lie, and the fifth [time] that God's curse be upon her if he is telling the truth". (10)

(10):Thus,the husband's accusation is to be regarded as proven if the wife refuses to take an oath to the contrary,and disproved if she solemnly sets her word against his. Inasmuch as this procedure which is called 'Lian' ("oath of condemnation"), leaves the question of guilt legally undecided, both parties are absolved of all the legal conser quences otherwise attending upon adultery - resp. an unproven accusation of adultery - the only consequence being a mandatory divorce." (The Message of the Quran,Trns1.8 Explained by M.Asad Page 534) 15? It may be mentioned that the dissolution of marriage, nullification of lineage of the child/pregnancy, and non- entitlement to maintehance combined with lowering of public image and damage to social acceptance etc. in itself constitute sufficient punishment for the wife.

The concluding verse on the subject of Lian is of particular significance in this connection. It reads as under;

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"If it wei^e not For Allah's grace and mercy On you,and that Allah Is Most Forgiving Full of Wisdom, (Ye would be ruined indeed). (24:10)

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17.The "Lian" proceedings obviously open a way out of a very difficult situation for the spouses in which a wife may find herself placed due to the husband's false accuskitinn or a husband due to wife's immorality or illciit pregnancy.

This verse highlights that this solution was based on Allah's grace and mercy because He is Most Forgiving and All wise.

Commenting on this verse Maulana Shabir Ahmad Usmani writes:

"In the absence of oath-testimony (Li'an) the husband was liable to punishment of eighty stripes in case he cast imputation on his wife without producing four witnesses, or else he would have to lament for ever, because it is very probable that he might be true in casting. As for a man other than the husband he is not constrained in expression, so he has no such rights in Law. On the other side if the case would have been decided on the basis of oaths by the husband the woman had been in distress, because she may be truthful very probably. Similarly if the woman should have been taken as truthful on the basis of her oaths alone,then the husband was liable to punishment according to law, despite that there is every possibility of his being truthful. So the prescription of Oath-evidence (c)12r.-1), with an open latitude of defence for all, is really the effect of the Divine Grace, Divine Mercy and Divine Wisdom, because the truthful 'disputant is saved from undue punish- ment and the liar is given respite in the concealment of his or her sin, haply they may repent. And the acceptance of his repentance is the effect of the Divine Attribute of Turning ( ).

(English Translation by Mohammad Ashfaq Ahmad)page 1559)

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AIlama Mohammki. Asad writes:

"This sentence,which introduces the section dealing with the condemnation of all unfounded or unproven accusation of unchastity - as well as the similar sentence which closes it in verse 20 - is deliberately left incomplete, leaving it to man to imagine what would have happened to individual lives and to society if God had not ordained all the above-mentioned legal and moral safeguards against possibly false accusa- tions,or if He had made a proof of adultery dependent on mere circumstantial evidence.This idea is further elaborated in verses 14-15." (The Message of the Quran,Trans1.5 Explained by 'M.Asad,page 534).

In view of the above we are of the firm opinion that so far as the proceedings of Lian are concerned,they are to be resorted to only when the husband accuses his wife of zina or illicit pregnancy before the court but does not have the required evidence of four eye witnesses to the commission of zina and his wife denies the allegation. • Similai- ly we also maiAtainn that when after her husband'a , oaths, the wife refutes the allegation of zina in the particular manner as laid down in the Holy Quran, she takes herself out of the pale of that charge and completely absolves herself from all criminal liability in this connection.

Consequently for the above-mentioned reasons, we hold that in the impugned section, there is an omission in respect of non-mentioning of the absence of required evidence when Lian proceedings are to be conducted and

S.P.No.85/I of 1991

hence there is a need to bring it in conformity with the Islamic injunctions by adding the word: "In the absence of evidence of four eye-witnesses" before the words "when a husband accuses before a court " in the beginning of section 14(1) of the Offence of Qazf (Enforcement of Hadd) * Ordinance, 1979.

20.In this view of the matter, we partly accept this Shariat Petition and direct that the underlined words be added and the impugned section be brought in conformity with the injunctions of Islam, as mentioned in para No.19 above, within a period of six months from today, failing which the said addition shall be deemed to have been made to form the part of the said sub-section.

(DR.FIDA MUHAMMAD KHAN)

Judge

Islamabad, /M.Arshad Khan/