Act VI of 2006 · 17 pages
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Protection of Women (Criminal Laws Amendment) Act, 2006
12/06/2010
THE PROTECTION OF WOMEN
(CRIMINAL LAWS AMENDMENT)
ACT, 2006
An ACT to further amend the Pakistan Penal Code, the Code of Criminal Procedure and other laws.
WHEREAS it is necessary to provide relief and protection to women against misuse and abuse of law and to
prevent their exploitation;
AND WHEREAS Article 14 of the Constitution ensures that dignity of man and, subject to law, the privacy
of home, shall be inviolable;
AND WHEREAS Article 25 of the Constitution guarantees that there shall be no discrimination on the basis
of sex alone and that the State shall make provisions for the protection of women;
AND WHEREAS Article 37 of the Constitution encourages promotion of social justice and eradication of
social evils;
AND WHEREAS the objective of this Act is to bring in particular the laws relating to zina and qazf in
conformity with the stated objectives of the Constitution and the injunctions of Islam,
AND WHEREAS it is expedient for the aforesaid objectives to further amend the Pakistan Penal Code (Act
XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898), the Dissolution of Muslim Marriages
Act, 1939 (VIII of 1939), the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), and
the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979) and for the purposes hereinafter
appearing,
It is hereby enacted as follows:-
1. Short title and commencement
(1) This Act may be called the Protection of
Women (Criminal Laws Amendment) Act,
2006.
(2) It shall come into force at once.
2. Insertion of new section, Act XLV of 1860
In the Pakistan Penal Code (Act XLV of 1860), hereinafter referred to as the said
“Code”, after section 365A, the following new section shall be inserted, namely:-
365B. Kidnapping, abducting or
inducing woman to compel
for marriage etc.
Whoever kidnaps or abducts
any woman with intent that
she may be compelled, or
knowing it to be likely that
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knowing it to be likely that
she will be compelled, to
marry any person against her
will, or in order that she may
be forced, or seduced to
illicit intercourse, or knowing
it to be likely that she will be
forced or seduced to illicit
intercourse, shall be punished
with imprisonment for life,
and shall also be liable to
fine; and whoever by means
of criminal intimidation as
defined in this Code, or of
abuse of authority or any
other method of compulsion,
induces any woman to go
from any place with intent
that she may be, or knowing
that it is likely that she will
be, forced or seduced to
illicit intercourse with
another person, shall also be
punishable as aforesaid.
3. Insertion of new section, Act XLV of 1860
In the said Code, after section 367, the following new section shall be inserted, namely:-
367A. Kidnapping or abducting
in order to subject person
to unnatural lust
Whoever kidnaps, or abducts
any person in order that such
person may be subjected, or
may be so disposed of as to
be put in danger of being
subjected, to the unnatural
lust of any person, or
knowing it to be likely that
such person will be so
subjected or disposed of,
shall be punished with death
or rigorous imprisonment for
a term which may extend to
twenty-five years, and shall
also be liable to fine.
4. Insertion of new sections, Act XLV of 1860
In the said Code, after section 371, the following new sections shall be inserted, namely:-
371A. Selling person for purposes of
prostitution, etc.
Whoever sells, lets to hire, or
otherwise disposes of any
person with intent that such a
person shall at any time be
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person shall at any time be
employed or used for the
purpose of prostitution or illicit
intercourse with any person or
for any unlawful and immoral
purpose, or knowing it to be
likely that such person shall at
any time be employed or used
for any such purpose, shall be
punished with imprisonment
which may extend to
twenty-five years, and shall
also be liable to fine.
Explanations:
(a) When a female is sold, let
for hire, or otherwise disposed
of to a prostitute or to any
person who keeps or manages
a brothel, the person so
disposing of such female shall,
until the contrary is proved, be
presumed to have disposed of
her with the intent that she
shall be used for the purpose of
prostitution.
(b) For the purposes of this
section and section 371B,
“illicit intercourse” means
sexual intercourse between
persons not united by marriage.
371B. Buying person for purposes
of prostitution, etc.
Whoever buys, hires or
otherwise obtains possession of
any person with intent that
such person shall at any time
be employed or used for the
purpose of prostitution or illicit
intercourse with any person or
for any unlawful and immoral
purpose, or knowing it to be
likely that such person will at
any time be employed or used
for any such purpose, shall be
punished with imprisonment
which may extend to
twenty-five years, and shall
also be liable to fine.
Explanation: Any prostitute or
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Explanation: Any prostitute or
any person keeping or
managing a brothel, who buys,
hires or otherwise obtains
possession of a female shall,
until the contrary is proved, be
presumed to have obtained
possession of such female with
the intent that she shall be used
for the purpose of prostitution.
5. Insertion of new sections, Act XLV of 1860
In the said Code, after section 374, the following new sections 375 and 376 under
sub-heading “Rape”, shall be inserted, namely:-
375. Rape
A man is said to commit rape who
has sexual intercourse with a
woman under circumstances falling
under any of the five following
descriptions:-
(i) against her will;
(ii) without her consent;
(iii) with her consent, when the
consent has been obtained by
putting her in fear of death or
of hurt;
(iv) with her consent, when the
man knows that he is not
married to her and that the
consent is given because she
believes that the man is
another person to whom she is
or believes herself to be
married; or
(v) with or without her consent
when she is under sixteen
years of age.
Explanation: Penetration is
sufficient to constitute the sexual
intercourse necessary to the
offence of rape.
376. Punishment for rape
(1) Whoever commits rape
shall be punished with
death or imprisonment of
either description for a
term which shall not be
less than ten years, nor
more than twenty-five
years and shall also be
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years and shall also be
liable to fine.
(2) When rape is committed
by two or more persons
in furtherance of
common intention of all,
each of such persons
shall be punished with
death or imprisonment
for life.
6. Insertion of new section, Act XLV of 1860
In the said Code, in Chapter XX, the following new section shall be inserted, namely:-
493A. Cohabitation caused by a man
deceitfully inducing a belief of
lawful marriage
Every man who deceitfully
causes any woman who is not
lawfully married to him to
believe that she is lawfully
married to him and to cohabit
with him in that belief, shall be
punished with rigorous
imprisonment for a term which
may extend to twenty-five years
and shall also he liable to fine.
7. Insertion of new sections, Act XLV of 1860
In the said Code, after section 496, the following new sections shall be inserted, namely:-
496A. Enticing or taking away or
detaining with criminal intent a
woman
Whoever takes or entices away
any woman with intent that she
may have illicit intercourse with
any person, or conceals or detains
with that intent any woman, shall
be punished with imprisonment of
either description for a term which
may extend to seven years, and
shall also be liable to fine.
496B. Fornication
(1) A man and a woman not
married to each other are said
to commit fornication if they
willfully have sexual
intercourse with one another.
(2) Whoever commits fornication
shall be punished with
imprisonment for a term which
may extend to five years and
shall also be liable to fine not
exceeding ten thousand
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exceeding ten thousand
rupees.
496C. Punishment for false accusation
of fornication.
Whoever brings or levels or gives
evidence of false charge of
fornication against any person,
shall be punished with
imprisonment for a term which
may extend to five years and shall
also be liable to fine not exceeding
ten thousand rupees.
Provided that a Presiding Officer
of a Court dismissing a complaint
under section 203C of the Code of
Criminal Procedure, 1898 and
after providing the accused an
opportunity to show cause if
satisfied that an offence under this
section has been committed shall
not require any further proof and
shall forthwith proceed to pass the
sentence.
8. Insertion of new sections, Act V of 1898
In the Code of Criminal Procedure, 1898 (Act V of 1898), after section 203, the following
new sections shall be inserted, namely:-
203A. Complaint in case of Zina
(1) No court shall take cognizance of an
offence under section 5 of the Offence
of Zina (Enforcement of Hudood)
Ordinance, 1979 (VII of 1979), except
on a complaint lodged in a Court of
competent jurisdiction.
(2) The Presiding Officer of a Court
taking cognizance of an offence on a
complaint shall at once examine, on
oath, the complainant and at least four
Muslim, adult male eye-witnesses,
about whom the Court is satisfied
having regard to the requirement of
tazkiyah-al-shuhood, that they are
truthful persons and abstain from
major sins (kabair), of the act of
penetration necessary to the offence:
Provided that if the accused is a
non-Muslim, the eye-witnesses may be
non-Muslims.
Explanation: In this section
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Explanation: In this section
“tazkiyah-al-shuhood” means the
mode of inquiry adopted by a Court to
satisfy itself as to the credibility of a
witness.
(3) The substance of the examination of
the complainant and the eye-witnesses
shall be reduced to writing and shall be
signed by the complainant and the
eye-witnesses, as the case may be, and
also by the Presiding Officer of the
Court.
(4) If in the opinion of the Presiding
Officer of a Court, there is sufficient
ground for proceeding, the Court shall
issue summons for the personal
attendance of the accused.
(5) The Presiding Officer of a Court
before whom a complaint is made or to
whom it has been transferred may
dismiss the complaint, if, after
considering the statements on oath of
the complainant and the four or more
eye-witnesses, there is, in his
judgment, no sufficient ground for
proceeding and in such case he shall
record his reasons for so doing.
203B. Complaint in case of Qazf
(1) Subject to sub-section (2) of
section 6 of the Offence of Qazf
(Enforcement of Hadd)
Ordinance, 1979 (VIII of 1979),
no Court shall take cognizance of
an offence under section 7 of the
said Ordinance, except on a
complaint lodged in a Court of
competent jurisdiction.
(2) The Presiding Officer of a Court
taking cognizance of an offence
on a complaint shall at once
examine on oath the complainant
and the witnesses as mentioned
in section 6 of the Offence of
Qazf (Enforcement of Hadd)
Ordinance, 1979 (VIII of 1979)
of the act of Qazf necessary to
the offence.
(3) The substance of the
examination of the complainant
and the witnesses shall be
reduced to writing and shall be
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reduced to writing and shall be
signed by the complainant and
the witnesses, as the case may
be, and also by the Presiding
Officer of the Court.
(4) If in the opinion of the Presiding
Officer of a Court, there is
sufficient ground for proceeding,
the Court shall issue summons
for the personal attendance of
the accused.
(5) The Presiding Officer of a Court
before whom a complaint is
made or to whom it has been
transferred may dismiss the
complaint, if, after considering
the statements on oath of the
complainant and the witnesses
there is, in his judgment, no
sufficient ground for proceeding
and in such case he shall record
his reasons for so doing.
203C. Complaint in case of fornication.
(1) No court shall take cognizance of
an offence under section 496A of
the Pakistan Penal Code, except
on a complaint lodged in a Court
of competent jurisdiction.
(2) The Presiding Officer of a Court
taking cognizance of an offence
shall at once examine on oath the
complainant and at least two
eyewitnesses to the act of
fornication.
(3) The substance of the
examination of the complainant
and the eye-witnesses shall be
reduced to writing and shall be
signed by the complainant and
the witnesses, as the case may
be, and also by the Presiding
Officer of the Court.
(4) If in the opinion of the Presiding
Officer of a Court, there is
sufficient ground for proceeding,
the Court shall issue a summons
for the personal attendance of
the accused:
Provided that the Presiding
Officer of a Court shall not
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Officer of a Court shall not
require the accused to furnish
any security except a personal
bond, without sureties, to ensure
attendance before the Court in
further proceedings.
(5) The Presiding Officer of a Court
before whom a complaint is
made or to whom it has been
transferred may dismiss the
complaint, if, after considering
the statements on oath of the
complainant and the witnesses
there is, in his judgment, no
sufficient ground for proceeding
and in such case he shall record
his reasons for so doing.
(6) Notwithstanding the foregoing
provisions, or anything contained
in any other law for the time
being in force, no complaint
under this section shall be
entertained against any person
who is accused of zina under
section 5 of the Offence of Zina
(Enforcement of Hudood)
Ordinance, 1979 (Ordinance No.
VII of 1979) and against whom a
complaint under section 203A of
this Code is pending or has been
dismissed or who has been
acquitted, or against any person
who is a complainant or a victim
in a case of rape, under any
circumstances whatsoever.
9. Amendment of Schedule II, Act V of 1898
In the Code of Criminal Procedure, 1898 (Act V of 1898), in Schedule II,
(i) after section 365A in column 1 and entries relating thereto in columns 2 to 8, the
following shall be inserted, namely:-
1 2 3 4 5 6 7 8
365BKidnapping, DittoDittoDittoDittoImprisonment Ditto;
abducting for life and
or inducing fine.
woman to
compel for
marriage
etc.
(ii) after section 367 in column 1 and entries relating thereto in columns 2 to 8, the
following shall be inserted, namely:-
1 2 3 4 5 6 7 8
367AKidnappingDittoDittoDittoDittoDeath or Ditto;
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367AKidnapping DittoDittoDittoDittoDeath or Ditto;
or rigorous
abducting imprisonment
in order to which may
subject extend to
person to twenty-five
unnatural years and
list. fine.
(iii) after section 371 In column 1 and entries relating thereto in columns 2 to 8, the
following shall be inserted, namely:-
1 2 3 4 5 6 7 8
371ASelling DittoDittoDittoDittoImprisonment Ditto;
person for which may
purposes of extend to
prostitution, twenty-fve
etc. years and
fine.
371B Buying DittoDittoDittoDittoImprisonment Ditto;
person for which may
purposes of extend to
prostitution, twenty-fve
etc. years and
fine.
(iv) after section 374 the sub-heading “of Rape” shall be inserted;
(v) for the existing entries relating to section 376 in columns 1 to 8, the following shall
be substituted, namely:-
1 2 3 4 5 6 7 8
376RapeMay WarrantNot Not Death or Court of
arrest bailable compoundable imprisonment Sessions;
without not less than
warrant ten years or
more than
twenty-five
years and
fine.
Death or
imprisonment
for life, if the
offence
committed
by two or
more persons
in
furtherance
of common
intention.
(vi) after section 493 in column 1 and entries relating thereto in columns 2 to 8, the
following shall be inserted, namely:-
1 2 3 4 5 6 7 8
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1 2 3 4 5 6 7 8
493ACohabitation May WarrantNot Not Rigorous Ditto;
caused by a arrest bailable compoundable imprisonment
man without which may
deceitfully warrant. extend to
inducing a twenty-five
belief of years and
lawful fine.
marriage
(vii) in section 494 in column 1, in column 3, for the word “Ditto”, the words “Shall not
arrest without warrant” shall be substituted;
(viii) after section 496 in column 1 and entries relating thereto in columns 2 to 8, the
following shall be inserted, namely:-
1 2 3 4 5 6 7 8
496AEnticing or May Ditto Not Ditto Imprisonment Court of
taking arrest bailable of either Sessions
away or without description or
detaining warrant which may Magistrate
with extend to of the first
criminal seven years class;
intent a and fine.
woman
496B FornicationShall SummonsBailable Not Imprisonment Magistrate
not compoundable which may of the first
arrest extend to five class;
without years and
warrant fine not
exceeding ten
thousand
rupees.
496C False Shall SummonsBailable Not Imprisonment Magistrate
accusation not compoundable which may of the first
of arrest extend to five class;
Fornication without years and
warrant. find not
exceeding ten
thousand
rupees.
(ix) under the heading, “OFFENCES AGAINST OTHER LAWS” after the last entry in
column 1 and entries relating thereto in columns 2 to 8, the following shall be
inserted, namely:-
1 2 3 4 5 6 7 8
Section 5 Zina Shall SummonsBailableNot Stoning to Court of
of not compoundable death in Sessions;
Ordinance arrest case of
VII of without Muhsan
1979 warrant and if not
Muhsan,
whipping
not
exceeding
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exceeding
one
hundred
stripes.
Section 7 QazfShall SummonsBailableNot Whipping Court of
of not compoundable numbering Sessions;
Ordinance arrest eighty
VIII or without stripes.
1979 warrant
10. Amendment of section 2, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 2:
(i) after clause (a), the following new
clause (aa) shall be inserted,
namely:-
(aa) “confession” means,
notwithstanding any judgement
of any court to the contrary, an
oral statement, explicitly
admitting the commission of the
offence of zina, voluntarily
made by the accused before a
court of sessions having
jurisdiction in the matter or on
receipt of a summons under
section 203A of the Code of
Criminal Procedure, 1898 (Act
V of 1898); and
(ii) clauses (c) and (e) shall be omitted.
11. Omission of section 3, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No. VII of
1979), section 3 shall be omitted.
12. Amendment of section 4, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No VII of
1979), in section 4, the word “validly” and the explanation at the end of the section shall
be omitted.
12A. Insertion of new, section, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood Ordinance, 1979 (Ordinance No. VII of
1979), after section 5, the following new section shall be inserted, namely:-
5A. No case to be converted, lodged
or registered under certain
provisions
No complaint of zina under
section 5 read with section 203A
of the Code of Criminal
Procedure, 1898 and no case
where an allegation of rape is
made shall, at any stage, be
converted into a complaint of
fornication under section 496A
of the Pakistan Penal Code (Act
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of the Pakistan Penal Code (Act
XLV of 1860) and no complaint
of fornication shall, at any stage,
be converted into a complaint of
zina under section 5 of the
Offence of Zina (Enforcement of
Hudood) Ordinance 1979
(Ordinance No. VII of 1979) or
an offence of similar nature
under any other law for the time
being in force.
13. Omission of sections 6 and 7, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), sections 6 and 7 shall be omitted.
14. Amendment of section 8, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 8,
(i) the words and comma “or
zina-bil-jabr” shall be omitted;
and
(ii) in the marginal note, the words
“or zina-bil-jabr” shall be
omitted.
15. Amendment of section 9, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 9,
(i) the words “or zina-bil-jabr” shall
be omitted;
(ii) in sub-section (2) the words “or
zina-bil-jabr” shall be omitted;
and
(iii) sub-sections (3) and (4) shall be
omitted.
16. Omission of sections 10 to 16, 18 and 19, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), sections 10 to 16 and 18 and 19 shall be omitted.
17. Amendment of section 17, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 17, the words and figure “or section 6” shall be omitted.
18. Amendment of section 20, Ordinance VII of 1979
In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 20,-
(i) in sub-section (1), the first proviso shall be
omitted and in the second proviso, the
word “further” shall be omitted;
(ii) sub-section (3) shall be omitted; and
(iii) sub-section (5) shall be omitted.
19. Amendment of section 2, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordnance No. VIII of
1979), for clause (a) the following shall be substituted, namely:-
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1979), for clause (a) the following shall be substituted, namely:-
(a) “adult”, “hadd” and “zina”
have the same meaning as in the
Offence of Zina (Enforcement
of Hudood) Ordinance, 1979;
and
20. Amendment of section 4, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordnance, 1979 (Ordinance No. VIII of
1979), section 4 shall be omitted.
21. Amendment of section 6, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979), section 6,
shall be renumbered as sub-section (1) thereof and after sub-section (1) renumbered as
aforesaid, the following new sub-section (2) shall be added, namely:-
(2) The Presiding Officer of a Court
dismissing a complaint under
section 203A of the Code of
Criminal Procedure, 1898 or
acquitting an accused under
section 5 of the Offense of Zina
(Enforcement of Hudood)
Ordinance, 1979 (Ordinance VII
of 1979), if satisfied that the
offence of qazf liable to hadd
has been committed, shall not
require any proof of qazf and
shall proceed to pass sentence
under section 7.
22. Amendment of section 8, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), in section 8, the words, “a report made to the police or” shall be omitted.
23. Amendment of section 9, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), in section 9, for sub-section (2), the following shall be substituted, namely:-
(2) In a case which, before the
execution of hadd, the
complainant withdraws his
allegation of qazf, or states that
the accused had made a false
confession or that any of the
witnesses had deposed falsely,
hadd shall not be enforced.
24. Amendment of sections 10 to 13 and 15, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), sections 10 to 13 and 15 shall be omitted.
25. Amendment of section 14, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), in section 14, subsections (3) and (4) shall be omitted.
26. Omission of section 16, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hand) Ordinance, 1979 (Ordinance No. VIII of
1979), section 16 shall be omitted.
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27. Amendment of section 17, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), in section 17,
(i) the first proviso shall be omitted;
(ii) for the second proviso, the
following shall be substituted,
namely:-
Provided that an offence
punishable under section 7 shall
be triable by a Court of Sessions
and not by or before a Magistrate
authorized under section 30 of
the said Code and an appeal from
an order of the Court of Sessions
shall lie to the Federal Shariat
Court.
28. Omission of section 19, Ordinance VIII of 1979
In the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance No. VIII of
1979), section 19 shall be omitted.
29. Insertion of new section, Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)
In the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939), in section 2, after clause
(vii), the following new clause shall be inserted, namely:-
(viia) lian
Explanation: Lian means
where the husband has accused
his wile of zina and the wife
does not accept the accusation
as true.
STATEMENT OF OBJECTS AND REASONS
One of the avowed constitutional objectives of the Islamic Republic of Pakistan is to enable Muslims to order
their lives, in the individual and collective spheres, in accordance with the teachings and requirements of
Islam as laid down in the Holy Qur’an and Sunnah.
The Constitution, accordingly, mandates that all existing laws shall be brought in conformity with the
injunctions of Islam as laid down in the Holy Qur’an and Sunnah.
The object of this Act is to bring the laws relating to zina and qazf, in particular, in conformity with the stated
objectives of The Islamic Republic of Pakistan and the constitutional mandate and, in particular, to provide
relief and protection to women against misuse and abuse of law.
The offences of zina and qazf are mentioned in the Qur’an. The two ordinances relating to zina and qazf,
however, make a number of other acts punishable in spite of the fact that the Qur’an and Sunnah neither
define these offences nor has any punishment for their been prescribed. On no principle of qiyas can the
punishments for zina and qazf or the procedure identified for their proof be extended to these offences.
Any offence not mentioned in the Qur’an and Sunnah or for which punishment is not stated therein is Ta’zir
which is a subject of State legislation. It is for the State both to define such offences and to fix punishments
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which is a subject of State legislation. It is for the State both to define such offences and to fix punishments
for these. The exercise of such authority by the State is in consonance with Islamic norms which the State is
authorized to both define and punish. Accordingly, all these offences have been removed from the two
Hudood Ordinances and inserted in their proper places in the Pakistan Penal Code, 1860 (Act XLV of 1860)
hereinafter “P.P.C.”
The offences listed in sections 11 to 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979
(VII of 1979) hereinafter “Zina Ordinance” are Ta’zir offences. All these are being inserted as sections 365B,
367A, 371A, 371B, 493A and 496A of the Pakistan Penal Code, 1860 (Act XLV of 1860). Sections 12 and
13 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 hereinafter ‘Qazf Ordinance’ are being
omitted. This is being done as the definition of qazf in section 3 of that Ordinance is wide enough to cover the
qazf committed by printing or engraving or sale of printed and engraved material.
No change is being made in the language of the statutory definition of any of these Ta’zir offences or the
punishment provided for these, save one. The punishment of whipping is being deleted for these Ta’zir
offences. As the Qur’an and Sunnah do not provide for any punishment with regard to these offences, the
State is authorized to make this change in conformity with the Islamic concept of justice. This is in
accordance with the scheme of the PPC and the evolving standards of decency which mark the progress of a
maturing society.
The Zina and Qazf Ordinances have been a subject of trenchant criticism by citizens in general and scholars
of Islam and women in particular. The criticisms are many. These include the lumping of the offence of zina
with zina-bil-jabr (rape) and subjecting both to the same kind of proof and punishment. This has facilitated
abuse. A woman who fails to prove rape is often prosecuted for zina. The requirement of proof for the
maximum punishment of zina-bil-jabr (rape) being the same as that for zina, it has made absolutely impossible
to prove the former.
Where a prosecution for rape against a man fails but sexual activity is confirmed by medical examination or
on account of pregnancy or otherwise the woman is punished for zina not as Hadd – four eye witnesses not
being available – but as Ta’zir. Her complaint is, at times, deemed a confession.
A penal statute must be clear and unambiguous. It must mark the boundaries between the permitted and the
prohibited with clarity. The citizens are, thus, put to notice. They can order their life and conduct by following
these bright guidelines and steer clear of trouble. The vague definitions in these and related laws are,
therefore, either being clarified and wherever that is not possible, omitted. The object is to protect the unwary
and unsuspecting citizens from unwittingly falling foul of penal laws.
The Zina Ordinance also defines “marriage” as a valid marriage. In rural areas, in particular, nikahs generally
and divorces particularly are not registered. It becomes difficult for a person charged with zina to establish
“valid marriage” as a defence. Non-registration has its civil consequences. These are sufficient. Failure to
register a nikah or have a divorce confirmed should not entail penal consequences. This is in consonance with
the Islamic norm that Hadd should not be imposed whenever there is any doubt about the commission of the
offence. The misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful
former husbands and other members of society.
A triple talaq is pronounced. The woman returns to her parental home. She goes through her period of iddat.
After a while, the family arranges another match and she gets married. The husband then claims that since,
the confirmation of divorce has not been done by the local authorities, the marriage is not over and launches a
zina prosecution. It is necessary to delete this definition to shut this door.
There is no hadd for the offence of zina-bil-jabr (rape). It is a Ta’zir offence. The definition and punishment
of rape is, therefore, being incorporated in the PPC in sections 375 and 376 respectively. The gender neutral
definition is being amended to clearly provide that rape IS an offence committed by a man against a woman.
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definition is being amended to clearly provide that rape IS an offence committed by a man against a woman.
As consent of the woman is a defence to the charge of rape, it is being provided that such consent would not
be a defence if the woman is less than 16 years of age. This accords both with the need to protect the weak,
which the Qur’an repeatedly emphasizes, and the norms of international legal obligations.
The punishment for gang rape is death. No lesser punishment is provided. The courts hearing such cases have
observed that in many situations they are of the opinion that a person cannot be acquitted while at the same
time imposing the death penalty is not warranted in the fails and circumstances of the case. The result is that
they feel obliged to acquit the accused in certain cases. To address this concern, the lesser sentence of life
imprisonment is being added as an alternative to the death penalty.
The procedure for the prosecution of Ta’zir offences of zina-bil-jabr (rape) and gang rape, like that for all
other Ta’zir offences under the PPC, is to be regulated by the Code of Criminal Procedure, 1898 (Act V of
1898) hereinafter “Cr. P.C.”
Lian is a form of dissolution of marriage. A woman who is accused of adultery by her husband and denies the
charge can seek dissolution of her marriage. Section 14 of the Qazf Ordinance refers to lian and also provides
a procedure for it. A form of dissolution of marriage has no place in a penal statute. Accordingly, lian has
been introduced as a ground for divorce under the Disssolution of Muslim Marriages Act, 1939 (VIII of
1939).
The definition of zina and qazf remain the same as in the Zina and Qazf Ordinances. For both zina and qazf
the same punishments have been retained as well.
Zina is a heinous crime that corrupts public morals and destroys the sense of modesty. The Qur’an regards
zina an offence against public morality. The requirement of four eyewitnesses is not solely an evidentiary
burden of extra-ordinary weight. It is also an assertion that if contrary to the hadith, “Allah loves those who
hide their sins”, one commits an act in so blatant a fashion that four people see it, the harm to society must be
serious indeed. At the same time, the Qur’an protects privacy, prohibits baseless assumptions and inquisition,
and forbids interference in the life of others. It is for this reason that a failure to prove zina entails punishment
for qazf (false accusation of zina). The Qur’an requires the complainant to bring four eye-witnesses to prove
the accusation of zina. The complainant and the witnesses must be conscious of the seriousness of this
offence and must know that if they make a false accusation or cannot prove the charge beyond doubt, they
will be punished for qazf. The conviction will follow the failure of the zina prosecution and will not be
contingent on the initiation of fresh legal proceedings.
The Zina Ordinance has been abused to prosecute women, to settle vendettas and to deny basic human rights
and fundamental freedoms. To check such abuse both in the case of zina and qazf, the CrPC is being
amended to provide that only the Court of Sessions, on a complaint, may take cognizance of such cases. The
offence has been made bailable so that the accused do not languish in jail during trial. The police will have no
authority to arrest any one in such cases unless so directed by the Court of Sessions and such directions
cannot be issued except either to compel attendance in court or in the event of a conviction.
The primary object of all these amendments is to make zina and qazf punishable only in accordance with the
injunctions of Islam as laid down in the Holy Qur’an and Sunnah, to prevent exploitation, curb abuse of police
powers and create a just and egalitarian society.
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Source: Pakistan Code, Ministry of Law and Justice (pakistancode.gov.pk). Text on this page is reproduced verbatim from the official PDF and is provided for reference only. For the authoritative version, always consult the source document or a current reported edition.
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