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Petitioner: HAZOOR BAKHSH, M. I. CHAUDHRY AND OTHER VS Respondent: FEDERATION OF PAKISTAN ISLAMIC REPUBLIC OF PAKISTAN
Court Name: Federal Shariat Court Judge(s): Aftab Hussain, Zakaullah Lodhi, Haider, Karimullah Durani Title:HAZOOR BAKHSH, M. I. CHAUDHRY AND OTHER vs FEDERATION OF PAKISTAN
ISLAMIC REPUBLIC OF PAKISTAN Case No.:Shariat Petition No. 59 of 1979 Shariat Petition No. 62 of 1979 Shariat Petition No. 59 of 1979 Date of Judgment:- Reported As: PLD 1981 F SC 145 Result: Petition allowed Judgment Opinion But We substitute Something better or similar Knowest thou not that Allah Hath power over all things ? And similarly in 10 : 15"But when Our Clear Signs Are rehearsed unto them, Those who rest not their hope On their meeting with Say : Bring us a Reading Other than this, or change this." 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).".
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It may also be mentioned here that there is not a single Hadith of the Prophet speaking of abrogation or alteration of any verse of the Qur'an. See the Holy Qur'an of Muhammad A.I note under 2 : 106 which says as follows : "Nor is there a single report traceable to the Prophet (p. b. h.) that such and such a verse was abrogated". That the Holy Qur'an and the Sunnah constitute the Injunctions of Islam is not in dispute, A Muslim must believe in both, and must obey Allah and follow the Holy Prophet. The Ahadith, however, must be considered in the light of the Qur'an, and they do require careful scrutiny as to their authenticity, contents and context, and whether they are consistent with reason. Let us now come to the four cases during the life time of the Holy Prophet in which ---rajm--- was imposed as a punishment for Zina. First of all take the case of the Jews, a Jew male and a Jew female. It appears from Sahih Muslim (Urdu) published by Qur'an Mahal, Karachi, Vol. It, Hadith No. 1932, pages 794 to 795 that `Hadd' was imposed on them in accordance with the direction in Taurat which governs the Jews. This case is, therefore, not relevant for our purposes. The second case is known as Hadith-e-Aseef reported in Sahih Muslim (Urdu) published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1930 pages 793 to 794, Urdu translation of this Haditb is as follows :---- Abu Hanifah calls this Hadith as ---khabro ahad--- and says that it cannot add `expulsion' in as much as `expulsion' is not mentioned in 24 : 2. I may add here that ---rajm--- too, is not mentioned in the said verse, and for the same reason should not have been accepted. Furthermore according to Ahkamul Qur'an by Al-Jasas, Vol. III, pages 256-257 this Hadith is of a period before the revelation of 24 : 2. It may also add that the Hadith does not disclose what was asked of the wife by `Unais' and what was actually the reply given by her. It appears difficult to believe that merely on the report of `Unais' and without calling the woman and questioning heras to the act committed by her so as to clearly prove whether she was guilty of Zina, the Prophet ordered her to be punished with Rajam. The third incident concerns Maiz Bin Malik, a man from Aslam tribe, it appears that Maiz approached the Prophet and confessed to have committed Zina. Some 'Ahadith' said he confessed two times, some said three times, some said four times and some said five times. Some Hadith say that the Prophet first asked Maiz about what the former had heard about the latter. And Maiz asked what had the Prophet heard about him. To this the Prophet replied that he bad learnt that Maiz had committed Zina with a certain slave woman. Maiz replied, `yes' and he confessed four times upon which the Prophet ordered him to be stoned to death. Sahih Muslim printed by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1922, page 787. There are different versions about this same incident as will appear from Shahrah Bukhari by Ibn- e-Hajar Asqalani. Vol. 12, Hadith No. 6815, pages 122 to 127. Furthermore it appears from ---tadbeer quraan--- by Janab Amin Ahsan Islahi, pages 505 and 506, that Maiz was not a man of good character as far as woman was concerned and was perhaps in the habit of committing offences against women. This receives some support from Sahih Muslim Qur'an Mahal, Karachi, Vol. II, Hadith Nos. 1920, 1922, 1923, pages 786 to 788, wherein it appears that during war some men used to stay behind and molest women. The Hadith about Maiz does not show that Rajam was imposed on him in compliance with any direction contained in the Holy Qur'an. It was likely that ---rajm--- was imposed either in accordance with the then custom or as a `Tazir', or as a punishment for ---kharaba--- as prescribed in 5 : 33. The fourth and last incident relates to a woman from Azd tribe (Ghamidiyya). See Bukhari (Published by Muhammad Saeed & Sons, Karachi, Vol. III, page 686 and Sahih Muslim published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1928, page 792) The woman asked the Prophet to make her
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clean. This indicates that she might be a prostitute or addicted to vice. Janab Amin Ahsan Islahi in his ---tadbeer quran--- Vol. IV, page 506 writes thus :- The reference is to Sura Maida, verse 33. Here also might have been imposed as a `Tazir' or in accordance with the then custom or as prescribed for as in 5 : 33. It is of interest to reproduce here the following passage from Tafsir-al-Kabir by Imam Fakhruddin Razi, Vol. VI, page 216: Individually all the four cases are ---khbr alwahad---. The Jurists, like Jafar Sadiq, Abu Hanifa, Malik Shafi and Ahmed, however, say that to Ahadith in respect of Rajam though ---akhbar alahad--- they are in the position of Hadis-e-Mashhoor having been stated by such pious and prominent Soaba. Like. Jaber, Abu Huraira, Abdullah Ibn-e-Abbas and such Ahadith collectively are sufficient to replace a part of the order contained in .The Holy Qur'an namely 24 : 2. It may, however, be mentioned here that have already held that the Qur'an cannot be changed or abrogated by Hadith. It may be noted that the Prophet did not call expulsion for one year in respect of unmarried person as "Hadd" and he called flogging as "Hadd". See Ruhul by Aloosi, Vol. 18, page 73 wherein it is stated :---- I now turn to the Opinions of the Sahaba on the question of Rajam. The following passage occurs in Sahih Muslim published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1915, page 784: From a statement attributed to Saeed Bin Masyyab as contained in Muwatta Imam Malik (Urdu translation by Allama Wahiduz-Zaman published by Islami Academy, Lahore, page 599, the alleged verse has been quoted as follows: "We have; without doubt, Sent down the Message And We will assuredly Guard it (from corruption)." This verse negatives the proposition that the Qur'an has suffered alteration or abrogation or missed something. Commenting on the statements of Abdullah Bin Abbas, Janab Amin Ahsan Islahi in his Vol. III, page 503 says: Janab Amin Ahsan Islahi also proceeded to point out that the alleged Ayat says about old persons and not every 'Zani' and 'Zania'. I agree with his Opinion. It is important to note that the Holy Prophet never said that the alleged Ayat was an Ayat of the Holy Qur'an. It appears from by, Vol. III, page 247 that Hazrat A.I is reported to have said while imposing punishment for Zina that was ordering flogging in accordance with the Injunctions of Qur'an and stoning to death according to the Sunnah of the Holy Prophet. This shows that Hazrat A.I never accepted that Rajam was prescribed as punishment in the Qur'an, and imposed it in deference to the Sunnah. There is another incident which occurred during the time of Hazrat A.I concerning five person; and Hazrat A.I while deciding their cases observed as follows:---- (vide Manhajus Sadeqeen by Molla Fathullah Kashani, pages 266-268). This also showed that Hazrat A.I regarded 'jald' only as 'Hadd', that is the punishment appointed in the Holy Qur'an for the offence of ---zana Apart from the fact that the Hadith cannot override the definite and clear Injunctions of the Qur'an, the Ahadith themselves suffer from infirmities. They are bare and bald in character, and lack in details and in the facts and circumstances of the different cases. It is not clear whether ---rajm--- was imposed in accordance with the then custom or as a 'Tazir' on account of the aggravated nature of the case or case of special significance with reference to its effect on the particular state of society then prevailing. Some of the cases in which it was awarded were of a period before the revelation of 24 : 2. As regards others there are conflicting Opinions. In these circumstances it is
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neither safe nor reasonable to found a grave punishment like that of on such Ahadith, and make it an obligatory rule of law. Whether for the same offence a penalty severer in nature than that of 'Hadd' as prescribed in 24 : 2 can be imposed appears doubtful. It is true that the Jurists are of the Opinion that in every case where, a married person is found guilty of, he or she will invariably be punished with ---rajm---. There are differences among them as to whether the punishment in such a case is ---rajm--- only, or ---rajm--- and ---rajm--- both, and whether in the case of an unmarried person it is ---rajm--- only or ---rajm--- as well as expulsion for one year. They all rely on the same Ahadith for their divergent Opinion. These Ahadith have already been reproduced and discussed above. This Court had formulated certain questions for replies and sent them to five Ulema, appearing on the Court's list of Jurisconsult but only three of them namely Janab Syed Muhammad Razi, Janab Hanif Nadvi and Pir Karam Shah have kindly replied. Both the questions and the replies are put on record. Without going into the details and reproducing them here the matters appearing in their Opinions have already been discussed and dealt with already, and it is needless to go through the exercise all over again. To sum up there is on the one hand the plain unambiguous and definite Injunctions of the Holy Qur'an in 24 : 2 and there is some Hadith that says that there can be not alteration or. Abrogation of any verse of the Qur'an by Hadith, and, on the other, the (not so sure, discrepant, conflicting an indefinite, Ahadis, some of whose existence itself is doubtful, on the question of ---rajm--- as punishment for ---zana---. The Opinions of Jurists, too, are inconsistence and not so sure. In these circumstances and for the reasons already state I consider myself bound and have no hesitation to rely on the Qur'an and to obey in all humility the Injunctions as contained in 24 : 2. Having given my anxious consideration to the question at issue I have arrived at the following conclusion :- The only punishment that may be called 'Hadd' and which can be imposed on a person, whether married or unmarried, guilty of is been hundred stripes to be inflicted in public. To this extent sections 5 and 6 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are repugnant to the Injunctions of Islam, and they must accordingly be brought into conformity with them. JUSTICE AGHA ALI HYDER, MEMBER.--------Petitions Nos. 59 of 1979, and 62 of 1979, call in question, the provision of section 5(2) (a) and section 6(3) (a) of the Offence of Zina (Enforcement of Hudood) Ordinance as violative of the injunctions of Islam, and therefore liable to be struck down. These prescribe the punishment of a married male or female, found guilty of adultery- whether on proof, or confession by stoning to death. The submissions by the petitioner in the first petition and by Mr. Shamim Abbas Bokhari, learned counsel for the petitioner in the latter petition, were that the punishment enjoined in Islam, was just 100 stripes, as to be found in verse 2 of Sura- e-Noor i. e. 24 : 2 and anything in excess thereof must be eliminated. The translation of the verse, as given in the translation and the commentary of Holy Qur'an, by Allama Abdullah Yousuf A.I, reads as under: 24 : 2 The woman and the man Guilty of adultery and fornication- Flog each of them With a hundred stripes; Let not compassion move you Prescribed by Allah, if ye believe And let a party
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Of the Believers Witness their punishment. The said Sura was revealed in the 5th or 6th A. H. When the Islamic polity had taken a definite shape and form, and the affairs of the Believers were being administered in accordance with the code and injunction, as enunciated by Islam. The commandment is in a very clear and firm tone, as can be seen from the words of the opening verse. A Sura which We Have sent down and Which We have ordained: Clear Signs, in order that Ye may receive admonition 2. It is beyond the pale of any controversy that the Holy Qur'an is the foremost source of Islamic Law and jurisprudence. Created or Uncreated a controversy, which assumed serious dimension, especially during the caliphate of Mamun Al-Rashid apart, it is the cardinal belief of every Muslim, that it contains the words of God, as conveyed by Gabriel to our Holy Prophet and that it is the last message to humanity, till eternity. In it are to be found not only the fundamental tenets of the faith, but enlightenment on things and subjects, from the most sublime to the utter common place. The Holy Prophet was entrusted to spread the message enshrined therein, to all the nooks and corners of the world to redeem mankind from the abyss of degradation, to which it had fallen. 3. This is abundantly made out from the text of the Holy Qur'an, some of which might be referred to with advantage. 3 : 79 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 Rather than Allah's": On the contrary (He would say): "Be ye worshippers Of Him Who is truly The Cherisher of all: For ye have taught The Book and ye Have studied it earnestly." 5 : 50 Let the People of the Gospel Judge by what Allah bath revealed Therein. If any do fail To Judge by (the light of) What Allah bath revealed, They are (no better than) Those who rebel. 6 : 106Follow what thou are taught By inspiration from the Lord: There is no god but He:
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And turn aside from those Who join gods with Allah. 10 : 15 But when Our Clear Signs Are rehearsed unto them, Those who rest not their hope On their meeting with Us, Say: "Bring us a Reading Other than this, or change this.' 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)." 16 : 44 (We sent them) with Clear Signs And Books of dark prophecies: And We have sent down Unto the (also) the Message; That thou mayest explain clearly To men what is sent For them, and that they May give thought. 4. The Prophet had himself proclaimed in unequivocal terms that "my words may be abrogated by God's words but I cannot abrogate God's words". He did not hesitate for a moment in changing the direction of the Qibla from Masjid-e-Aqsa to Ka'aba, a practice which bad extended to a number of years, once . The message was received. This happened again, when it came to the implementation of the Treaty of Hudabiya, in regard to the return of the female Believers to the "Kuffars" of Mecca, when be received divine directions to the contrary The Qur'an tells us, as to how a revelation, transmitted. To us-through the Holy Book, was to be abrogated. 2 :106 None of Our revelations Do We abrogate Or cause to be forgotten But We substitute Something better or similar: Knowest thou not that Allah Hath power over all things? 5. Tot that some of our Jurists, have not made assertions to the contrary, but the consensus of Opinion is, that Traditions are the second most important source of law, next, to Qur'an, especially those:- (1) Which are complementary & supplementary to the text of the Qur'an. . (2) Which-clarify a text of the Holy Qur'an. (3) Which notify an order or direction, about which the Holy Book is totally silent.
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6. Dr. Riazul Hasan Gilani, learned counsel for the respondents, maintained that the word `Zani' and 'Zania' meant only unmarried persons, while the punishment of married persons of either sex is to be had from a tradition of the Holy. Prophet narrated by Abadah son of Samit, which was contemporaneous with the revelation of the second verse of Sura-e-Noor, and which is as follows: "Take from me, take from me, verily Allah chalked out a way for them; (fornication of) a virgin with a virgin 100 stripes and exile for a year; and one married with another married, 100 stripes and stoning to death" (Sahib Muslim, Vol. II, printed by Quran Mahal, p. 782 being Haditb No. 1911). 7. According to Al-Jassas's (ahkaam alquraan) Vol. III, p. 257, this belongs to a period prior to the revelation of 24 : 2. I will desist from making any further comments about it at this stage. Suffice it to say, that a command--ment of such vital importance, with such serious consequences, would hardly be revealed only in half, and that too in an ambiguous way, as canvassed. The revelation, as can be seen, is in an unequivocal, and comprehensive terms, inclusive of all classes of men and women. The contention therefore is devoid of all merit and it will be idle to imagine that `Mohsan' and `Mobsanat' had been dealt with elsewhere. 8. The next contention takes us to the so-called (aayat rajm) Shorn of unnecessary details, it is said that there was a verse in the Holy Qur'an which read: Which came to be lost and has become (mansookh alnlawah) (not being read, as it is not there any more). It is said in Musnad-i-Ahmad `Tirmizi' & Abu Daood, that Hazrat Umar made a mention of its existence from the pulpit and none of the companions, who should have known, as to what its implications were, took any objection about the assertion. Tafsir-i-Mazhari, written by Hazrat Allama Qazi Muhammad Sanaullah Usmani Mujaddidi, mention on page 235 that Hazrat Umar, went on to say that he would have got it transcribed on the margin of the Holy Qur'an, if he did not have the apprehension of being accused of making an addition to the text of the Holy Book. 9. A number of Jurists have rejected the authenticity of this Khutba on various grounds; the text of the alleged verse is a tawdry patch on the sonorous and sublime text of the Qur'an; the Qur'an had been systematized in the days of the. Prophet, and properly compiled during the caliphate of Hazrat Abu Bakar; the latter had left a copy with Ummul Mominin Hazrat Hafsa; what is more, God Himself had undertaken to preserve Qur'an and it has ever been the belief of the Ummah that the Holy Book with them, is the same as revealed to the Prophet, in its entirety. So, nothing turns on that either. 10. We are therefore to see, as to what was the punishment, awarded to the married transgressors, during the lifetime of the Prophet--the law as it stands, restricts the scope of our search to the Traditions of the Holy Prophet only. 11. The traditions tell us about 4 instances, which punishment was awarded to the married transgressors, during the days of the Holy Prophet. The case of the Jews (male & female) need not detain us because their clansmen and rabbis bad asked the parties to be judged according to their own judaic law. The old testament prescribed the punishment by stoning to death which was awarded by the Prophet. The matter rests there. 12. The other three reports are about Ma'az Ghamidiyya or Jahiniya and the nomad, who informed the Prophet, as to how his young son, working at the house of his employer was lured by the guiles of the said employer's Wife, into an act of making love with her. This is known as (Hadith-I-Aseef). 13. The versions about Ma'az are conflicting. According to one he bad confessed his own guilt before the Prophet, on 4 different occasions. The traditions record, that once the Prophet turned his face, and enquired, whether he was in his senses. Another time, he gave the impression that he bad not heard him at all. It was when Ma'az persisted and confessed 4 times, that he was ordered to be stoned to death. Ma'az ran away, after be dad been pelted with some stones. He was chased, captured and then showered upon with stones, ending with his death. There are two aspects of the reports which need mention. Some of the traditions show that the Prophet reproached the
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companion, by the name of Sahll who had complained against Ma'az, saying that he need not have removed curtain from the dark deed. The second, is that mentioned in (Tafhimul Qur'an) by Maulana Maudoodi on page 336 (Vol. III) to the effect that the Prophet chided the chasers as to why they did not allow Ma'az to take to his heels; they had better produced him before him (the Prophet). May be God would have accepted his repentance. 14. The Ghamidiyya woman was pregnant. Her condition was easily noticeable. After the sentence was pronounced, she was ordered to go back i.o her home and await delivery. She came back after that event. She was again sent back for the period, she was to suckle her child. She came again and the Prophet, postponed the execution of the sentence till the child had been acclimatized to meals. She managed to get a piece of bread and demonstrated that the child had got used to it. The Prophet still did not want the child to be left unprotected while an infant. But a companion agreed to assume the responsibility. It was then the sentence is said to have been enforced. 15. As for these (hadis aesef) some inherent doubts have been expressed about the events as narrated. 1t is said, that it was improbable in the extreme that the Prophet would have awarded sentence against the offending woman as soon as informed of the happenings, by the rustic. He must have insisted on verification or confession directly from her, which is not clear from the tenor of the tradition. 16. All these traditions, referred to earlier, admittedly are (Hadith-i-Ahad) emanating from one source. There is also nothing to show, that these pertain to a period, subsequent to the revelation of verse No. 2 of Sura-i-Noor. It is also to be remembered, that the Prophet, and the first two Caliphs, were averse to the narration of traditions indiscriminately, lest these led to schisms and cleavage of Opinions. It is also an admitted fact, that there were hundreds of thousands of traditions in circulation, when the narrators, especially the famous Six, took to the compilation thereof. Imam Bukhari and Imam Muslim are the two most esteemed ones out of them. Imam Bukhari, after an indefatigable search lasting his lifetime accepted only four thousand traditions, compiling them in his Sahib and Imam Muslim reduced the number by about one-fourth. The highest number of traditions emanated from Hazrat Abu Huraira (2 out of the 4 relevant for our purpose are from that source). According to a considerable number of Jurists and writers, he had spent only a period of 2 to 3 years in the company of the Prophet and therefore could not remember and retain the exact words of the 5437 traditions that are attributed to him. Apart from some Orientalists, Muslim Scholars like Ustad Ahmed Ameen Misri and Prof. Mohammad Abu Ruyya who wrote ---azwa ali alsnta almahamdya See; have written some pungent things about some of the prolix narrators, in which Hazrat Abu Huraria has been specially mentioned. That can be left alone. All Jurists however agree that Qur'anic verses (unless symbolic in nature, which is not the case here) being definitive and clear cut are preferable to traditions as a class, which had been transmitted from generation generation, till reduced in writing some 2 centuries later. 17. If the punishment of stoning to death remains in the field, a further difficulty will arise in dealing with such offences committed by "girls from among those whom your right hand possesses" (The captives taken in Jihad) whose punishment is half that for free women. That brings us to verse 25 of Sura-i-Nisa: 4 : 25If any of you have not The means where with To wed free believing women They may wed believing Girls from among those
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Whom your right hands possess And Allah hath full knowledge About your Faith. Ye are one from another : Wed them with the leave Of their owners, and give them, Their dowers, according to what Is reasonable : they should be Chaste, not lustful, nor taking Paramours : when they Are taken in wedlock, If they fall into shame, Their punishment is half That for free women. This (permission) is for those Among you who fear sin; But it is better for you That ye practise self-restraint And Allah is Oft-Forgiving, Most Merciful. 18. This is the view, taken by modern jurists like Abu Zuhra and Mustafa Zarqa. (See: They maintain that the punishment of adultery, could not be severer than the punishment for murder or…
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