Zina and Zina Bil Jabr Liable to Hadd in Law

Zina in Law:

Zina is an offence which is defined in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It means fornication or adultery. It is a commission of sexual intercourse without being validly married to a man and woman.

Definition of Zina:

According to Section 4 of the Offence of Zina (Enforcement of Hudood), 1979;

“A man and a woman are said to commit ‘Zina’ if they willfully have sexual intercourse without being validly married to each other.”

There must be penetration to constitute the sexual intercourse necessary to the offence of Zina.

Essential Ingredients of Zina:

There are following five essential ingredients as given in section 4, which the prosecution should prove for securing a conviction for Zina.

There should be a man and a woman.
Such a man and woman were not validly married to each other.
Such a man and woman should have committed sexual intercourse with each other
Such man and woman should have committed sexual intercourse willfully
There should be penetration.

Zina Liable to Hadd:

According to Section5(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

a). Zina shall be liable to Hadd if it is committed by a man who is;

i). An adult

ii). Not insane

With a woman

i). Who is not his wife or

ii). He does not suspect himself to be her husband

And

b). If it is committed by a woman who is,

i). An adult

ii). Not insane

with a man

i). Who is not her husband or

ii). She does not suspect herself to be his wife.

Definition of Zina Bil Jabr:

According to Section 6(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

“A person is said to commit ‘Zina bil Jabr’ if he or she has sexual intercourses with a woman or man, as the case may be, to whom he or she is not validly married if any of the following circumstances namely;

a). against the consent of the victim

b). without the consent of the victim

c). with the consent of the victim when the consent has been obtained by putting the victim in fear of death or of hurt or;

d). with the consent of the victim, when the offender knows that the offender is not validity married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married”.

Essential elements of Zina Bil Jabr:

According to Section 6(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

Following are the essentials of the offence of Zina bil jabr;

i). There should be a man or a woman.

ii). Such a man and woman should not be validly married to each other.

iii). Such a man and woman should have committed sexual intercourse with each other.

iv). Such sexual intercourse should be against the will or without the consent of the victim; or

v). Consent obtained by

a). putting the victim in fear of injury; or

b). by obtaining consent in the belief that the offender is validly married to him or her.

vi). There should be penetration.

Zina Bil Jabr Liable to Hadd:

According to Section 6(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

“If all the conditions mentioned in section 5(1) are fulfilled, Zina bil jabr shall be liable to Hadd.”

Proof of Zina or Zina Bil Jabr Liable to Hadd:

According to Section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

Zina or Zina bil jabr can be proved in the following forms;

1). By the Confession of the Accused Before the Court of Competent Jurisdiction:

Zina or Zina bil jabr is proved when the accused himself makes a confession of the commission of his offence before a court of competent jurisdiction.

2). By Four Muslim Adult Male Witnesses’ Evidence:

When at least four Muslim adult male witnesses give evidence as eye-witnesses of the act of penetration, after satisfying the court regarding the requirements of Tazkiyah-al-Shuhood, the offence gets proved and Hadd can be enforced.

Punishment of Zina Liable to Hadd:

According to Section 5(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

i). If the Guilty is Muhsan:

If the guilty of it liable to Hadd is a Muhsan shall be stoned to death at a public place.

ii). If the Guilty is Not a Muhsan:

If the guilty of it liable to Hadd is not a Muhsan, he or she shall be punished with whipping numbering one hundred strips at a public place.

Punishment of Zina Bil Jabr Liable to Hadd:

According to section 6(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

i). If the Guilty is Muhsan:

If the guilty of it liable to had is Muhsan, he or she shall be stoned to death at a public place, after the confirmation of the court to which an appeal from the order of conviction lies.

ii). If the Guilty is Not Muhsan:

If the guilty of it liable to Hadd is not a Muhsan, he or she shall be punished with

i). Whipping numbering one hundred strips at a public place, or

ii). With such other punishment, including sentence to death as the court may deem fit in accordance with the circumstances of the case.

Who is Muhsan?

According to Section 2(d) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

Muhsan means

A Muslim adult man who is not insane and has had sexual intercourse with a Muslim adult woman who, at the time he had sexual intercourse with her, was married to him and was not insane; or
A Muslim adult woman who is not insane and has had sexual intercourse with a Muslim adult man who, at the time she had sexual intercourse with him, was married to her and was not insane.

Cases Where Hadd shall not be enforced:

According to Section 9 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

Hadd shall not be enforced in cases of Zina or zina bil jabr in the following situation;

i). Retraction of Convict from his Confession:

When the offence of Zina or Zina bil Jabr is proved only by the confession of the convict and before the execution of Hadd punishment, the convict retracts his confession, had shall not be enforced.

ii). Resile of any of the four witnesses from his statement:

When the offence is proved by the testimony of witnesses and any witness resiles from his statement before enforcement of had, so that the number of witnesses is reduced to less than four, had shall not be enforced.

Zina or Zina bil Jabr Liable to Tazir:

According to Section 10(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

“Whoever commits Zina or Zina bil Jabr which is not liable to Hadd, shall be liable to tazir.”

Punishment for Zina:

According to Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance,1979;

Whoever commits it liable to tazir shall be punished with

i). Rigorous imprisonment for a term which may extend to ten years, and

ii). With whipping numbering thirty stripes, and

iii). Shall also be liable to fine.

Punishment for Zina bil Jabr Liable to Tazir:

According to Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979;

Whoever commits it liable to tazir shall be punished with

i). Imprisonment for a term which shall not be less than 4 years and more than twenty-five years; and

ii). With whipping numbering thirty stripes.

Conclusion:

It is concluded that Zina is the willful sexual intercourse between a man and a woman without being validly married. While Zina bil Jabr is the sexual intercourse between a man and a woman without being validly married and without the consent of one party whether it is a man or a woman. There are some circumstances which also constitute Zina bil Jabr.