PREFACE Hudood Ordinance was enforced in 1979. This was an innovative experiment, merging Pakistan Penal Code offences based on Common Law Jurisprudence and criminal procedure with Hudud Laws based on Hanafi jurisprudence. Its implementation has been an instructive experience. During the 27 years since its enforcement the Ordinance has been a subject of controversies. A number of people welcomed it, but considerable critical literature questioned the punishment of Rajm, ambiguity about Zina and Zina bil Jabr, the prescribed discriminatory criminal procedure and definition and identification of Hudud crimes. In media, opinions about the Ordinance have been divided into three groups: those who wanted status quo, those who wanted it to be repealed and those who wanted necessary amendments. The opinion in favor of status quo argued that Hudud laws were divinely revealed and only the Westernized segments of Pakistani society were calling for its repeal. Others argued that Hudud laws were not divine, they were laws framed by the jurists. This report is an outcome of three years deliberations by the Council of Islamic Ideology. An Interim Brief Report was issued by the Council in 2006. The present is the final report. This report consists of eight chapters. The first chapter provides a background history of Hudood Ordinance, 1979 and the second summarizes the discourses about this Ordinance between 1980 and 2006. The third and fourth chapters note amendments to the Ordinance suggested by various commissions and organizations including Protection of Women Act, 2006. The fifth chapter explains the process of review of the Ordinance by the Council during 2004 - 2006, and the sixth provides a summary of this analytical review. The seventh chapter includes Council’s recommendations for further amendments in Hudood Ordinance, 1979. The last chapter consists of the data of Hudood cases in the various Pakistani Courts. This report finds that 1. The definition of Hadd in the ordinance is not derived from the Qur’an and Sunna; it does not even agree with the definitions prescribed by the jurists. 2. The concept and usage of the term Hadd differs from the definition given by Ordinance and the jurists; The Qur’an uses different terms for the idea of punishment (jaza’, ‘adhab). In the Prophetic hadith the term Hadd is used in a general meaning, not in the technical sense in which the jurists use it. 3. The jurist use the term Hadd in the meaning of “fixed punishment”, regardless whether fixed by the Qur’an, Sunna or Ijma‘. 4. The identification and division of crimes as Hudud, Qisas and Ta‘zir has been done by the jurists and it varies. 5. Hudood Ordinance has adopted Fiqhi identification and classification of Hudud offences selectively and arbitrarily and thus added to the confusion between Hudud and Ta‘zir. It has further confused the concept of Hudud by mixing common law criminal procedure and fiqhi procedure, disregarding the need for fine distinctions. 6. Not all Muslim countries are enforcing Fiqhi Hudud laws. 7. Statistics show that Hudood Ordinance has not been effective in reducing the crimes in Pakistan. Although the number of registered cases is not a proper indication of crime statistics, but even that 2 shows the rate of Hudud crimes has not decreased. The total number of cases registered under Hudood Ordinance arose from 75,943 in 2001 to 82,545 in 2002, and from 76, 063 in 2003 to 77,420 in 2004. This increase in the rate of crimes is despite the fact that the rate of conviction has been higher than the acquittal; in 2001, 47, 518 cases ended in conviction against 13,266 in acquittal, in 2002, 46,874 were convicted and 12,753 were acquitted, in2003, 44, 146 convictions and 16,478 acquittals, and in 2004, 36,511 were convicted and 13,212 were acquitted. On the other hand, the conviction rate in cases of Zina has been lesser than the acquittal. The number of registered cases under Zina increased during 2001 -2004 from 3291 to 3522 to 3641 to 3817. In 2001 356 cases ended in conviction and 1123 in acquittal. In 2002, 388 convictions and 1320 acquittals, in 2003 316 convictions and 1318 acquittals, and in 2004 there were 345 convictions and 1093 acquittals. Among other reasons, the weakness of procedural laws is the cause of more acquittals than convictions. 8. Need for amendment to the Ordinance has been expressed by federal Shari’a Court, Council of Islamic Ideology, and several Members of National Assembly. In addition to that, The Commission of Inquiry for Women 1997, National Commission for the Status of Women 2003, Women Aid Trust 2003, and Awrat Foundation. Have also suggested amendments to the Ordinance. Regarding the point that the Hudood Ordinance is protected in the Constitution by Article 270A, it needs to be clarified that under this article only those laws which are included in Schedule 7 cannot be 3 amended or challenged in the court without first amending this article in the constitution. Other laws are not included in the Schedule and can be reviewed by the legislature. The Hudood Ordinance does not conform fully to the Qur’an and Hadith. Partial amendments to this Ordinance cannot bring it to accord with the letter and spirit of the Qur’an and Sunna. A thorough revision of the Hudood Ordinance is necessary in order to make it more responsive to the philosophy of crime and punishment in the Qur’an and Sunna as well as more effective in a modern judicial system. This analytical report, including the Council’s recommendation for amending the Hudood Ordinance 1979, suggests guidelines for the legislators for reviewing Pakistan Penal Code, Pakistan Code of Criminal Procedure and the Hudood Ordinance 1979 in the light of the Qur’an and Sunna. This is also a valuable document for students of Islamic law and those who wish to study modern Islamic legislation. I thank the Research Section, particularly Dr. Ghulam Murtaza Azad, Mr. Muhammad Ilyas Khan, Maulana Inamullah, Maulana Muhammad Khalid Saif, Murad Ali Shah and Maulana Zar Khalil for their assistance. I am also grateful to the staff for typing the several drafts of this report. MUHAMMAD KHALID MASUD 4 CONTENTS Page No. Preface 1 CONTENTS 5 CHAPTERS 1: BACKGROUND OF THE HUDOOD ORDINANCE, 8 1979 1977: The Council of Islamic Ideology reconstituted 11 1978: The Council Drafts the Hudud laws 12 1979: Enforcement 13 Source Material of the Hudood Ordinance, 1979 14 Appendix 1. Text of the Hudood Ordinance 17 Appendix 2. Leading Judgments In Cases Relating Hudood 59 Ordinance, 1979. FEDERAL SHARIAT COURT 59 Offences Against Property (Enforcement of Hudood) 59 Offences of Zina (Enforcement of Hudood) 59 Offence of Qazf (Enforcement of Hudood) 59 Prohibition (Enforcement of Hadd) 60 SUPREME COURT OF PAKISTAN (SHARIAT 60 APPELLATE BENCH) Offences of Zina (Enforcement of Hudood) 60 On Prohibition (Enforcement of Hadd) 60 2: DISCOURSES ON HUDOOD ORDINANCES IN 61 PAKISTAN 1. Debates in the Literature 61 2. Media 67 Summary 69 3: PROPOSED AMENDMENTS 79 1. Courts 79 2. National Assembly 81 3. The Commission of Inquiry for Women, August 1997 82 4. Council of Islamic Ideology 2002 83 5. National Commission for the Status of Women, 2003 85 6. Women Aid Trust 2003 90 7. Awrat Foundation 93 8. Justice Dr. Javid Iqbal, A Critique of the Zina Ordinance 95 (Islamabad, 2006) 9. GEO Television Debate 97 10. Protection of Women Act, 2006 98 4: PROTECTION OF WOMEN ACT, 2006 (TEXT) 99 5: COUNCIL’S REVIEW OF HUDOOD ORDINANCE 122 1. International Workshop 123 2. Constitution of Legal Committee 129 3. Delegations to Islamic Countries 131 4. Consultations 133 5. Interim Report, 2006 134 6: ANALYTICAL REVIEW OF HUDOOD ORDINANCE 135 BY THE COUNCIL 1. Concept and Definition of Hudud 135 Arabic Language 136 Logic 137 Qur’an 137 Hadith 144 Fiqh texts 146 2. Identification of Hudud Crimes and Punishments 151 3. Identification and Classification of Hudud Crimes in 153 Fiqh Text 4. Crimes Identified As Hudud Under Hudood Ordinance 1979 155 6 5. Enforcement of Hudud in Contemporary Muslim Countries 157 6. Summary 157 7: THE RECOMMENDATIONS OF THE COUNCIL OF 160 ISLAMIC IDEOLOGY ON HUDUD LAW 8: STATISTICS 165 Table 1: Cases Registered under Hudood Ordinance, 1979, 165 2002-2004. Table 2: Total Hudood Laws Cases Registered during 2001 166 Table 3: Total Hudood Laws Cases Registered during 2002 167 Table 4: Total Hudood Laws Cases Registered During 2003 168 Table 5: Total Hudood Laws Cases Registered during 2004 169 Table 6: Total Hudood Laws Cases Registered during 2005 170 Table 7: Consolidated Statement Showing the Detailed Data 171 of Hudood Cases Before the District and Subordinate Courts in Sindh for the Period from 01-01-2000 to 31-07- 2005 Table 8: Consolidated Statistics Hudood Cases (Punjab & 173 Islamabad) Table 9:District wise Data of Hudood Cases 2002-2005 174 Table 10:Yearwise Data of Hudood Cases 2002-2005 181 Table 11 Miscellaneous Data 189 7 1 BACKGROUND OF THE HUDOOD ORDINANCE The Council of Islamic Ideology was established in 1962 under the Islamic provisions of the 1962 Constitution. (Article 204) designated as “Islamic Advisory Council”. In 1973, the Council was re-designated as “The Council of Islamic Ideology”. The relevant articles about the Council of Islamic Ideology in the 1973 constitution that defines the composition and functions of the Council are given below. Art. 228: Composition, etc., of Islamic Council: There shall be constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this part referred to as the Islamic Council. The Islamic Council shall consist of such members, being not less than eight and not more than twenty as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Our'an and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan. While appointing members of the Islamic Council the President shall ensure that so far as practicable various schools of thought are represented in the Council; Not less than two of the members are persons each of who are, or has been a Judge of the Supreme Court or of a High Court; Not less than four of the members are persons each of whom has been engaged, for a 'period of not less than fifteen years, in Islamic research or instruction; and At least one member is a woman. Article 229: Reference by Majlis-e-Shoora (Parliament), etc., to Islamic Council: The President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam. Article 230: (1) The Functions of the Islamic Council shall be: (a) To make recommendations to [Majlis-e-Shoora (Parliament)] and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Qur’an and Sunnah; (b) To advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the injunctions of Islam; (c) To make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) To compile in a suitable form, for the guidance of {Majlis-e- Shoora (Parliament)] and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. 9 (2) When, under Article 229, a question is referred by a House, a Provincial Assembly, the President or a Governor to the Islamic Council, the Council shall, within fifteen days thereof, inform the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice. (3) Where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that, in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of Islamic Council is furnished, the law may be made before the advice is furnished, provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House, or as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made. (4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and [Majlis-e-Shoora (Parliament)] and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report. PROGRESS The Council has completed examining laws from 1836 to 1999, and submitted more than twenty reports based on this examination. The Present Council, constituted on 16 June 2004, began reviewing laws introduced since 1977. More than 400 laws have been so far reviewed. The laws issued in 1979 form part of this review. The Council has been responsible for the drafting of most of the 10