Zina And Zina-Bel-Jabrs
Q. defince Zina-bil-jaber and state the punishment provided for it in the offence of Zina ordinance what proof is needed to impose hadd in such case.(1998)(1996)(1993)
1. Introduction:
Zina means fornication or adultery. Sexual intercourse not permitted by Muhammadan Law is both word Zina as defined in the ordinces covers both void and irrelegular marriage. Void marriage can fall within definition of Zina liable to hadd and an irregular marriage can fall within definition of Zina liable to Tazir.
2. Relevant Provisions:
Following are the relevant provisions of the concerned topic.
Section 4 to 10 of the offence of Zina (Enforcement of Hudood) ordinance VII of 1979.
3. Offence Of Zina:
(I) General Meaning:
According to hanafis, Zina means intercourse without milk(ownership) or shubat milk.
(II)Meaning U/Sec 4:
A man and a woman are said to commit Zina, if they willfully have sexual intercourse without being validly married to each other.
(III) Ingredients Of Offence Of Zina:
Following ingredients must be prove in order to secure the conviction of an accused person for the offence of Zina.
(i)Between Opposite Sexes:
There should be a man and a woman. This offence is not possible between human being belonging to the same sex or being sexless.
(ii) Not Validly Married:
There must not be a valid married between such man and a woman. The expression valid marriage will imply the requirements of such marriage as required under Muhammadan Law.
(iii)Sexual Intercourse:
A man and a woman should have committed sexual intercourse with each other. Zina is complete if there is sexual intercourse without valid marriage (1989 PCR L J878)
According to explanation of section 4 penetration is sufficient to constitute the sexual intercourse. Penetration means entering of the male organ into the vagina for the offence of Zina.(1985 PCRL J 110)
(iv)Willfully:
A man and a woman must commit sexual intercourse willfully. Willfully signify an act done by design with set purpose. (PLD 1985FSC 126)

(IV) Zina is liable to hadd, if it is committed by a man or a woman who is.
(i)An adult, and according to section 2(a) adult means a person who has attained.
a. If male, eighteen years of age.
b. If female, sixteen years of age or puberty.
(ii)Not Insane
(iii)With the woman or man as the case be, to whom he or she is not and dose not suspect to be married.
(V)Punishment Of Zina U/Sec 5(2):
Whoever is guilty of Zina liable to hadd shall be punished as under.
(i)If Musan:
If he or she is a Muhsan, be stonned to death at a public place.
(ii)If not Musan:
If he or she not a muhsan, be punished at a public place whit whipping numbering one hundred stripes.
Meaning of Muhsan:
According to section2(a), Muhsan means an adult Muslim man or woman who is not insane and has had sexual intercourse with a Muslim adult, who at the time he or she had sexual intercourse with her or him was married to him or her and was not insane. In other words Muhsan means a married men or woman.
Confirmation of Court of Appeal:
Punishment of hadd shall be executed only when it is confirm by the court of appeal.
4.Offence Of Zina-Bil-Jabr U/Sec 6:
A person is said commit Zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be to when he or she is not validly married, under any of the following circumstances.
i. Against the will of the victim
ii. Without the consent of the victim
iii. With the consent of the victim when the consent has been obtained by putting the victim in fear of death or hurt.
iv. With the consent of the victim, when the consent is given under mistake believing that the offender is another person to whom victim is validly married and the offender knows that he is not validly married to the victim.
(I) ZINA-Bil-Jabr Liable To Hadd U/Sec 6(2):
Zina-bil-jaber is liable to hadd if it is committed by a man or woman who is.
i. An adult
ii. Not insane
iii. With a woman or man, as the case may be, to whom he or she is not and dose not suspect to be married.
(II)Punishment Of Zina-Bil-Jabr U/sec 6(3):
Whoever is guilty of Zina-bil-jabr liable to hadd, shall be punished as under.
(i)If Muhsan:
If he or she is Mushan be stonned to death at a public place.
(ii)If Not Muhsan:
If he or she is not Muhsan, be punished with whipping numbering one hundred stripes at a public place and with such other punishment including the sentence of death as the court may deem fit having regard to the circumstances of the case.
Confirmation of Court Of Appeal:
Punishment of hadd shall be executed only when it is confirm by the court of appeal.
5. Punishment Of Zina Or Zina-Bil-Jsbr Where Convict Is Not Adult U/Sec 7:
Whoever, who is not an adult, is guilty of Zina or Zina-bil-jabr be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be awarded the punishment of whipping not exceeding thirty stripes and in the case of Zina-bil-jabr, if the offender is not under the age of 15 years, the punishment of whipping must be awarded.
6. Proof Of Zina Or Zina-Bil-Jabr Liable To Hadd U/Sec 8:
Zina or Zina-bil-jabr liable to hadd shall be proved in any one of the following forms.
(I)confession:
The accused makes before a court of competent jurisdiction a confession of the commission of the offence.
(II)By Evidence Of Witnesses:
It may be proved by the evidence of at-least four witnesses, who give evidence as eye-witnesses of the act of penetration.
i. Requirements Regarding Witnesses:

  1. Witnesses must be male
  2. They must be adult
  3. They must be Muslim but if accused is non-Muslim, the eye-witnesses may be non-Muslim.
  4. The court must be satisfied about them having regard to the requirements of tazkiyah-al-shahood(mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness)that they are

Truthful
Abstain from major sins
7. Zina or Zina-Bil-Jabr Liable To Tazir U/Sec 10:
When Zina or Zina-bil-jabr
(i) is not liable to hadd or
(ii) not proved under section 8 or the punishment of Qazf liable to hadd is not awarded to the complainant, or
(iii) for which hadd may not be enforced under this ordinance. It is liable to tazir.
(I)Pusishment Of Zina Liable To Tazir:
Zina liable to tazir shall be punished with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and with whipping numbering thirty stripes and shall also be liable to fine.
(II)Punishment Of Zina-Bil-Jabr Liable To Tazir:
Whoever commits Zina-bil-jabr liable to tazir, shall punished with imprisonment for a term which shall not be less than fours years nor more than twenty five years and shall also be awarded the punishment of whipping numbering thirty stripes.
(i) When Committed by Two or More Person:
When Zna-bl-jabr to tazir is committed by two or more person in furtherance of common intention of all, each of such person shall be punished with death.
8. Conclusion:
To conclude, I can say, that when a man and a woman who are not validly married to each other willfully commit sexual intercourse, they shall be deemed to have committed the offence of Zina. It is a wider term and includes both fornication and adultery and when it is committed under the circumstances and when sec. 6, it becomes more serious offence.

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