ABDUL GHAFOOR Versus FEDERATION OF PAKISTAN

TANZILUR RAHMAN, C.J.‑‑‑ By this petition the provisions of section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, relating to Li'an have been challenged as repugnant to the. Injunctions of Islam. The relevant provisions read as under:‑‑

"14. Li'an .‑‑‑(1) When a husband accuses before a Court his wife who is Muhsan within the‑meaning of section 5, of the Zina and the wife does not accept. the accusation as true, the following procedure of Li'an shall apply, namely:‑‑

(a) the, husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of Zina against my wife (name of wife) and, after he has said so four times, he shall say: "Allah's curse be upon me if I am a liar in my accusation of Zina against my wife (name of wife)"; and

(b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of Zina against me"; and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of Zina against me."

(2) When the procedure specified in subsection (1) has completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as decree for dissolution of marriage and no appeal shall lie against it.

(3) Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the case may be, she shall be imprisoned until‑‑

(a) in the case of the husband, he has agreed to go through the aforesaid procedure; or

(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.

(4) A wife who has accepted the husband's accusation as true shall be awarded punishment for the offence of Zina liable to Hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979."

2. As to the alleged repugnancy of the said provisions of section 14 to the Injunctions of Islam; it has been stated in paragraph 2 of the petition, as under:‑‑

"That the provision of Li'an as framed above is against the law of Qur'an because Li'an will take place only when the husband does not have the evidence. But where the husband charges his wife for Zina and the evidence is available in the form of medical evidence, confession of the wife at an earlier stage and some ocular evidence although of less than 4 witnesses, Li'an will not take place despite the provisions of section 14, because the necessary consequence of the proceedings of Li'an will be the woman will no longer be liable or answerable on the charge of Zina. The proceedings of Li'an can take place only and only where no evidence whatsoever is available. In the provision of Li'an therefore, there is an obvious omission i.e. that the provision. of Li'an should s(art with the words " in the absence of evidence ", so that the provision 14. Li'an (1) will read as follows:‑‑

"14. Li'an .‑‑‑(1) In the absence of evidence when a husband accuses before a Court his wife who is `Muhsan' within the meaning of section 5, of `Zinc' and the wife does not accept the accusation as true, the following procedure of Li'an shall apply, namely:‑‑

..

3. It was, therefore, prayed that the provisions relating to Li'an of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, be declared repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) ‑and that "the Court may supply the obvious omission and direct the Federation of Pakistan to amend the law as suggested in para. 2 above.

4. A written statement was filed on behalf of the Federation of Pakistan, the respondent, wherein it was, inter alia, submitted. that:

(i) The substantive and procedural law relating to Li'an is contained in Holy Qur'an (XXIV: VI‑X) and traditions of Holy Prophet (p.b.u.h.) relating to cases of Aweemar and Hilal bin Umayya. For long, Li'an has been considered to be a form of divorce; at least it has not been considered, treated or, discussed as a subject under Islamic Criminal Law.

In Mishkat Sharif and other books of traditions and leading treatises on Shari'ah Li'an has been discussed with the subject of Talaq and other forms of divorce. For example, Li'an is discussed in Chapter X of Book 1V of Hedaya (by Hamilton). Book IV deals with divorce.

(ii) .................................................

(iii) A false imputation of adultery has been considered a valid ground for the wife to claim dissolution of marriage, though there was no provision in any law for resorting to Li'an: This deficiency was provided for in Ordinance VIII of 1979.

(iv) Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979, incorporates the procedure for Li'an. The perusal of the provision would show that the standard procedure laid down in the books on Shari'ah on Li'an has been incorporated in section 14. The substantive law and various related questions have not been codified in the Ordinance since the same is available in the Holy Qur'an and the Traditions.

(v) The question raised by the petitioner would be of significance only if the section dealt with the substantive law. In the system of codification now being followed, all the substantive law is not incorporated into the statute law, since that would defeat the very purpose of codification. It is submitted that it would not be advisable or possible to incorporate whole of Chapter I of Hedaya into section 14 of the Ordinance.

(vi) .

Under the circumstances, it is prayed that the petition may kindly be dismissed."

5. Mr. Fazal Ellahi Siddiqi, learned Advocate, placed his reliance, in support of the petition, on Verses 6 to 10 of Surah AI‑Noor (XXIV: 6,10) of the Holy Qur'an. On the other hand, Mr. Iftikhar Hussain Ch. learned counsel for the Federation, contended that section 14 prescribes only the procedure of Li'an, thereby implying that this Court has no jurisdiction to examine the said provision, as barred under Article 203‑B(c) of Chapter 3A, inserted in the Constitution of Pakistan, 1973 by President's Order No.1 of 1980. In order to appreciate the contention in its proper prospective, it seems pertinent to state first the salient features of the law relating to Li'an as envisaged in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) and the opinions of great jurists of Islam.

6. Li'an is the root of "La'in" . This word is derived from La'n the literal meaning whereof is "to put away", because one who is subjected to La'n is put away from the all‑pervading mercy of Allah, the Almighty. (Fath al‑Bari by Ibn Hajar `Asqalani, d.852 A.G., pub. Cairo, 1959 A.D., Vol.11, pp. 460‑61). In Shari'ah terminology, making by the husband and denying by the wife of a charge of adultery both on oath and involving the curse and wrath of Allah by each on oneself, is swearing falsely, is called Li'an as stated in AI‑Hidayah, that is:

(Burhanuddin AI‑Marghinani (d.593 A.H.) Qur'an Mahal, Vol.I1, Kitab AI Talaq, p.416).

7. The Li'an revokes and replaces the legal punishment both in case of the husband's false accusation as well as in case of the wife's adultery. If the husband falsely accuses his wife of adultery and is not able to produce four eye witnesses it shall be incumbent upon him either to admit his accusation to be untrue, making himself liable to the legal punishment for false accusation i.e. Qazf, or perform Li'an.

8. The method of performing Li'an is that the husband in presence of the presiding officer of the Court shall say four times, "I swear in the name of Allah that I am assuredly true in what I say about the adultery of this woman (wife)". And at the fifth time the husband, shall say about himself, "Curse of Allah be on me if ‑I am untrue in the accusation of adultery that I have made against this woman (wife)", while pointing towards that woman. After this, the woman (wife) shall say four times, "I swear in the name of Allah that the husband is assuredly a liar in the accusation of adultery that he has made against me." At the fifth time about herself the woman shall say, "Allah's wrath descend on me if the husband is true in the accusation of adultery that he has made against me". (Kitab AI‑`Umm, Imam Shafi'i, (d.204 A.H.), WIN, p.286) (Hidayah: Marghinani (d.593 A.H.) Qur'an Mahal, Vol.11, Kitab Al‑Talaq, p.418) (AI‑Mukhtasar, Allama Abut Hasan Al‑Quduri (d.428 A.H.) Qur'an Mahal, Karachi, p.168).

9. As to the commandment, with respect to Li'an it is laid down in the Holy Qur'an:

(AI‑Qur'an, Surah Al‑Noor (The Lights): XXIV, 6‑9).

"(And for those who launch a charge against their spouses, and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness for four times (with an oath) by Allah that they are solemnly telling the truth. And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie. And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth):'

10. As to the occasion of the Revelation of the above Verses, there is narrative about it that `Uwaymir al‑‑`Ajlani appeared before the Prophet and said, "O' Prophet, if someone finds his wife with someone else in a compromising situation and he beheads that person, would you in turn behead him? If that someone does not behead that the person what should he do in the circumstances?" On this occasion the directive for Li'an was received. (Sunani Abu Da'ud, pub. Wali Muhammad & Sons, Karachi, 1369 A.H. "Bab Al‑Li'an", p.305) (Bidayah AI‑Mujtahid; Ibn Rushd, pub. Egypt, 1379 A.H., Vol.II, p.115).

10‑A. It may, however, be observed that Li'an has been made applicable only in the situation when the husband is unable to produce four witnesses in support of his accusation against his wife. Therefore, when the four eye witnesses of adultery are produced, the Court has no power to pass order for Li'an. The very. words of the Holy Qur'an lay it own expressly: (XXIV.6), have (in support of the accusation) no evidence except their own selves".

11. The effect of Li'an is that the husband's having sexual intercourse with his wife becomes forbidden so long as the Li'an remains in force. If the husband after effecting Li'an retracts, i.e. he proves himself a liar, the prohibitory effect of Li'an shall cease. After Li'an (but before the Qadi effects separation between the couple) if the husband retracts i.e. he confesses that he had falsely accused his wife, in such event it shall be lawful for the husband (without entering into remarriage), to have sexual intercourse with the wife. If the Oadi effects the separation and thereafter the husband admits of his being a liar, the couple, by mutual consent may re‑enter into fresh marriage contract. But if the Li'an continues, the wife, in such event shall continue to remain forbidden to the husband. This is how the matter stands according to Abu Hanifah and Muhammad Al‑Shaybani. According to Abu Yusuf, however, a perpetual prohibition is created on account of Li'an and they can never unite in marriage in any case, as the Prophet (peace be on him), had said: "Those who effect Li'an (both the parties) shall never unite". According to Imam Malik, ShaG'i and Ahmad as well, everlasting separation shall get effected and in no wise they both would be able to reunite. (AI‑Hidayah; Marghinani (d.593 A.H.) Qur'an Mahal, Vo1.2, Kitab Al‑Talaq, pp. 418‑19). But Abu Hanifah maintains that after its falsification neither the Li'an nor the effect of Li'an subsists. Hence the wife can again become lawful to the husband. (AI‑Mizan al‑Kubra; Imam Shi'rani, pub. Egypt, Vol.II, p.127). Of course the hadd Qazf will be inflicted on the false accuser.

12. Al‑Shi'rani, the author of "Al‑Mizan al‑Kubra, writes that the averments of 'Umar, Ali, lbn Mas'ud, Ibn Umar, 'Ata, Zuhri, Awza'i, Thawri and Sa'id b. Judayr are also in accord with that of Abu Hanifah to the effect that on account of Li'an restriction is placed on marital rights. When the husband belies himself i.e. he admits himself to be a liar, the restriction shall get removed.

13. AI‑Shi'rani further writes that according to Malik, and by a report according to Ahmad b. Hanbal, the separation on account of Li'an shall get effected but it should be accompanied by the order of separation from the Qadi. The assertion of Abu Hanifah is to the same effect. It is a well‑known assertion of Ahmad b. Hanbai that separation shall not get effected without the Li'an of the wife and the order of the Qadi. The Qazi shall have. to decree the separation between the two. According to Shafi'i, however, separation shall get effected, on Li'an being effected by the husband, particularly because on husband's Li'an the denial of parentage from the father's side is established. (Al‑Mizan al‑Kubra; Imam Shi'rani, pub. Egypt, Vol.II, p.127).

14. As to separation through Li'an according to Hanafis', when the husband and the wife both have pronounced Li'an the Qadi shall get separation effected between the two. According to Abu Hanifah and the Sahibyan, as long as the Qadi does not effect separation between the two, no separation takes place between the husband and the wife (though the husband's having sexual intercourse with the wife shall be forbidden). Contrary to this, Zufar and Shafi'i arc convinced of separation by Li'an itself. Therefore, according to them, if one of the couple dies after Li'an they shall not inherit each other. (Kitab Al‑Umm: Imam Shafi'i (d.204 A.H.), pub. Maktab al‑Kuliyya al‑Azharia, 1381 A.H., VoIN, p.290).

15. According to Hanafis the event of Li'an shall fall in the order of an irrevocable divorce. According to the three A'immah, however, it shall come under the order of dissolution of marriage. The observance of the terms of probation shall be incumbent upon the wife and she shall be entitled to maintenance and separate residence. (AI‑Mizan al‑Kubra : Allama Shi'rani, pub. Egypt, Vol.II, p.127).

12. According to Malikis, Imam Malik has expressed the opinion that a separation takes place when the husband and ‑the wife have taken the prescribed oaths even before the Qadi's order (Muhammad b. Ahmad; Jawahar al‑'Uqud, p.177).

13. According to Imam Shafi'i the husband's imprecation results in a separation between the parties without any order of the Qadi. (Muhammad b. Ahmad: Jawahar al‑'Uqud, p.178).

14. According to Shi'is the mandate relating to Li'an is established by the Li'an itself. The marriage gets dissolved ipso facto after the parties have taken the oaths. The separation on account of Li'an is Faskh (dissolution) and not a divorce.. (Al‑Hilli: Shara'i 'al‑Islam, Teheran, pp.231‑32, Beirut, Vol.II, pp.81 and 91:

15. Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, provides for dissolution of marriage "on any other ground recognized as valid for the dissolution of marriage under Muslim law". Hence, the wife has to claim the dissolution of her marriage under the doctrine of Li'an both in India and Pakistan. Recognizing the need for Court's decree, the Hanafi rule has been preferred in section 14 of the Qazf Ordinance.

16. The High Courts of erstwhile West Pakistan seem to give no recognition to Li'an. In the case of Mst. Leelan v. Rahim Bakhsh (reported in PLD 1951 B J 91), the High Court of Baghdadul Jadid (Bahawalpur) held that "the procedure prescribed by Muslim law for establishing the legal rights arising from the doctrine of Li'an was not permissible in our Courts for the simple reason that the Muslim Law of Evidence has been superseded by the Evidence Act". In this case Mst. Leelan had sought separation from her husband Rahim Bakhsh on the ground, amongst others, that her husband accused her of having illicit connections with some other person. The husband in his 'written statement had admitted of his accusing the wife of unchastity and of being unfaithful to him.

17. In another case of Lahore High Court, Ghulam Bakhsh v. Hasain Begum (reported in PLD 1957 Lahore p.998), Mr. Justice Kiyani and Mr. Justice B.Z. Kaikaus held: "The procedure for Li'an was the result of circumstances which no longer exist. This procedure would be wholly out of place in the present state of law, and, at the same time there would be no jurisdiction of the Civil Court to compel compliance with it".

18. With due respect to legal accumen of the learned Judges of the erstwhile High Court of West Pakistan, Li'an is not a procedure of evidence, as observed in the aforesaid two judgments.

19. Li'an is a part of substantive law, not that of the procedure included in the Islamic law of evidence. In Islam the accusation of adultery is such a crime that legal punishment is fixed for it, which is called Hadd Qadhf , punishment for slander (falsely accusing one's own wife of adultery). In order to keep safe men from Hadd Qadhf and women from Hadd Zina (punishment for adultery) and to restrict the virulent evil of accusation of adultery from‑spreading in the society Allah the Almighty has particularly ordained the law of Li'an. The Holy Qur'an prescribes the method in which Li'an is administered. That method too by itself has the force of substantive .law. No action under Li'an shall be taken at variance with it. As the word Shahadat (evidence) occurs in the concerned Qur'anic Verses, the learned Judges probably thought Li'an to be a procedure of evidence. The fact is that Li'an in not evidence; it is an oath and assumes the status of substantive law. That is why all the jurists and traditionists have mentioned the Li'an in Kitab Al‑Talaq (Book of Divorce) and not that in Kitab al‑Shahadat (Book of Evidence). The word Shahadat (evidence) for the word 4 Qasam (oath) has also been used at another place in the Qur'an. For example, Allah speaking of Munafiqin (hypocrites) says, "that when the hypocrites come to you they swear that you are the Prophet of Allah," (LXIII:I):‑‑

20. Moreover, the various modes of dissolution of marriage as envisaged in section 2 of the Muslim Personal Law (Shari'at) Application Act, 1937, expressly ,include divorce, Khula,' Mubar'at, Ila', Zihar and Li'an which the Courts have been empowered to enforce. It is although correct to say that our Courts in those days could not, then, enforce the Li'an to avoid Had al‑Qadhf and Had al‑Zina because both those acts were not then crimes in Pakistan. But so far as the dissolution of marriage thought Li'an is concerned, the Courts under the provisions of section 2 of the said Act of 1937 were fully competent to dissolve the marriage on Li'an. (It may be noted that Shariat Act, 1937 was not amended at the time when the said judgments in the above cases were pronounced). The law relating to separation of a couple on account of Li'an then subsisted. Moreover under section 2 of the Dissolution of Muslim Marriages Act, 1939, a marriage could be dissolved on any other ground recognized by Islamic Law. For false accusation of adultery the recourse to Li'an was already available to the spouses.

21. It will not be out of place to mention here that the substantive law is that part of the law which creates, defines and regulates rights whereas the law which governs the manner in which the rights are enforced and wrongs rectified fall within the ambit of procedural law. In fact, substantive law, or one may call it the actual law, is opposed to adjectival or procedural law. (See Black's Law Dictionary, Fifth Edition, Ballentine's Law Dictionary, Third Edition and Osborne's Concise Law Disctionary, Sixth Edition: Procedural Law, Substantive Law).

22. For the aforesaid discussion the contention of the learned Standing Counsel for the Federation that Li'an as provided in section 14 is the law of procedure under Islamic Law, is misconceived.

23. Now, the contention of the petitioner's counsel that recourse to the provision of Li'an can only be had, if the husband does not have the evidence available with him in the form of medical evidence, circumstantial evidence, or some ocular evidence less than the four witnesses prescribed by the Holy Qur'an as such is not tenable.

24. The Holy Qur'an explicitly ordains that there should be at least four eye‑witnesses to prove the guilt of Zina, liable to Hadd , if the husband or the wife, as the case may be, accuses the other spouse of the commission of Zina. (Surah Al‑Nur XXIV:5, 6).

25. The Commentators of the Holy Qur'an traditionists and greater jurists are all unanimous on the point that there must be four eye‑witnesses, to prove the guilt of Zina, whether the accuser is a husband or any other person, otherwise the accuser will be liable to Qazf. The medical evidence or for that matter circumstantial evidence cannot be held to be a substitute of four eye‑witnesses to obviate Li'an.

26. The words of the Holy Qur'an in Surah Al‑Nur XXIV:6 are very clear on the point that the husband who accuses his wife for adultery should produce four eye‑witnesses failing which the resort to the Li'an shall be made. It excludes any other form of evidence, be it medical or circumstatial or whatever it may be, it will not be given any weight. The famous Commentator of the Holy Qur'an AI‑Qurtubi says:

That is the proceeding of Li'an will be obligatory on the failure of husband in producing the required evidence of four (male) witnesses. The majority of the Doctors of Fiqh (Jurists) and a large number of traditionists are unanimous on the point. (AI‑Qurtubi AI‑Jam'i li‑Ahkam al‑Qur an, Vo1.2, p.185).

27. Allama Asad while explaining the relevant Verses writes:

"By obvious implication this injunction applies also to cases where a woman accuses a man of illicit sexual intercourse, and is subsequently unable to prove her accusation legally. The severity of the punishment to be meted out in such case, as well as the requirements of four witnesses instead of the two that Islamic law regards as sufficient in all other Criminal and Civil suits is based on the imperative necessity of preventing slander and off‑hand accusation. As laid down in several authentic sayings of the Prophet (p.b.u.h.) the evidence of the four witnesses must be direct and not merely circumstantial . In other words, it is not sufficient for them to have witnessed a situation which made it evident that sexual intercourse was taking place or had taken place. They must have witnessed the sexual act as such, and must be able to prove this to the entire satisfaction. (The Message of Qur'an, p.533).

28. Mawlana Syed Maududi while explaining the Verse writes that:,

"The Qur an explicitly ordains that there should at least be four eye‑witnesses to prove the guilt. This has been stated in AI‑Nisa (IV:15), and in this Surah Al‑Noor too it has been reiterated twice (XXIV: 4 & 13). A Judge is not authorized to decide the case on the basis of his own knowledge even if he has seen with his own eyes the couple committing the crime." (The Meaning of the Qur'an, Vol. 8, p.71).

29. Mawlana Shabbir Ahmad Usmani also writes that:.

"First (our witnesses shall be demanded of the man who accuses his wife of adultery. If he produced four witnesses, then the women shall be given the punishment of adultery. If he does not bring four witnesses, then he shall be told to say by God four times that he is truthful in the accusation (claim). He did not tell a lie in casting upon his wife the imputation of fornication. In other words, these are the four witnesses on oath in place of four witnesses of men." (Tafseer Usmani, p.1558).,

30. When this issue is examined in the light of the Sunnah of the Holy Prophet (p.b.u.h.) we find that when Hilal bin Umayyah brought a complaint before the Holy Prophet (p.b.u.h.) regarding illicit intercourse of Sharik bin Samha with his wife, the Holy Prophet (p.b.u.h.) ordered to produce four eye‑witnesses and told him in case he fails to produce four witnesses to prove his accusation, then he must be ready to face Hadd punishment:

31. There are a number of Ahadith which emphasize on producing four eye‑witnesses to establish the accusation of Zina, irrespective of the fact that the accuser is a husband or some other person.

32. It is narrated that an Ansari came to the Holy Prophet and said:

"(If a person finds another man with his wife, and utters an accusation, you will enforce the prescribed punishment of Qazf on him; if he commits murder, you will have him killed; if he keeps quiet, he will remain involved in anguish; then what should he do? and the verse of Li'an was revealed" (Sunan Abu Dawood Vol.1, p.352).

The details of the cases which the Holy Prophet (p.b.u.h.) judged in accordance with Law of Li'an which are in fact, interpretation and application of the verses of Surah Al‑Nur, have been related in almost all books of Ahadith. No Muslim is allowed to go beyond the detailed law of Li'an as enunciated by the Holy Prophet (p.b.u.h.) through his several judgments.

33. The first case of Li'an, decided by the Holy Prophet (p.b.u.h.) was that of Hilal bin Umayyah as it is narrated from Hazrat Anas. When Hilal brought his complaint before the Holy Prophet (p.b.u:h.) regarding the involvement of Sharik bin Sahma with his wife; the Holy Prophet (p.b.u.h.) said:

(Four eye‑witnesses, or your back should bear the punishment).

(Al‑Siyuti: Al‑Dur al‑Manthur, Vo1.5, p.23), "

(Al‑Siyuti: Al‑Sunan al‑Nisai, Vo1.6, p.172).

This tradition is very clear that the only requisite standard of proof of adultery in the case of accusation of one's own wife is four eye‑witnesses and nothing else can in any way, prove the accusation.

34. On the failure .of husband to bring four eye‑witnesses and denial of accusation of adultery by the wife, the proceeding of Li'an takes place. Abu Bakr al‑Jassas, a famous Commentator of the Holy Qur'an says, that: (IV:15).

(The proceedings of Li'an between the two spouses is in substitution of Hadd ‑ punishment).

It may further be mentioned that as Li'an results in removing the Hadd , the same standard of witnesses as to their number and quality required for awarding Hadd punishment, has been maintained in the matter of Li'an. That is why in Li'an four oaths of assertion and denial have been prescribed by the Holy Our 'an for effecting Li'an as substitute for four witnesses (Sing, Shahid , witness).

35. It appears that the Holy Prophet (p.b.u.h.) called himself Li'an as Hadd .

(If the Hadd (procedure of Li'an) has already not been completed I would have punished her with stoning to death). (Al‑Jassas: Ahkam al Qur'an, Vo1.3, p.286).

36. It is thus apparent from the Verse of Surah AI‑Nur and Ahadith of the Holy Prophet (p.b.uh) that in the situation when a husband accuses his wife with adultery he will be asked first to bring four eye‑witnesses, and in the case of his failure to do so the procedure of Li'an will take place and no other evidence, whatsoever it may be, will be required to prove the wife guilty.

37. If the accuser (husband) produced three witnesses can his own evidence be considered to fulfil the required number? Imam Abu Bakr al Jassas in his commentary 'Ahkamul Qur'an', Vol.3, p.295, dealing with the point in a separate Chapter (t), 6) under the title "Four witnesses recorded their evidence against 'a woman who committed Zina and one of them is her husband", writes that (IV:15):‑‑‑

That is, according to our Scholars their evidence is acceptable and the, woman will be awarded Hadd punishment. Imam Malik and Shari have maintained that the husband will exercise Li'an and the three N witnesses will be awarded Hadd punishment. Besides their opinion, Hasan, Shabi and Ibn Abbas are of the opinion that the husband will exercise Li'an and the three witnesses will be awarded Hadd punishment. Abu Bakr said Allah Almighty has ordained that: It makes no difference either the husband is among the witnesses or all of them are strangers. Allah Almighty has also mentioned that: (XXIV: 61 if any stranger makes false accusation of Zina against a woman and presented four witnesses, the situation demands to accept their evidence and to ward off Hadd punishment from Qazf and to apply the Hadd on her. Likewise, there is no controversy on the point that the evidence of a husband in respect of his wife is acceptable in all rights including Qisas, Hudood i.e. theft, shurb and Qazf. Therefore, it must be acceptable in Zina also. If it is said that the husband will exercise Li'an if he makes false accusation against his wife and it is not allowed for him to be a witness, then he must be told that if he presents three witnesses in addition to his own, he will not be held as Qazif and Li'an will not be conducted. Li'an will be exercised in the circumstance, when he fails to produce four witnesses after false accusation of Zinaklike a stranger when he makes false accusation of Zina he becomes liable to Hadd punishment, unless he produces four witnesses other than his own giving evidence of committing Zina. If he produced three witnesses and they gave their evidence of committing Zina, then he will not become Qazif. because he, himself is a witness; the same is the case of husband. (AI‑Jassas, Ahkamul Qur'an, Vol.3, p.295).

38. About the condition of four witnesses Wahba Zuhaili says that:‑‑

"When a husband accuses Hs chaste wife of false accusation of adultery, Hadd for Qazf becomes obligatory on him, and there will be an order for his becoming Fasiq and repudiation of his evidence, except that he brings evidence or undergoes Li'an, in case four witnesses arc not produced."

39. The condition of four witnesses is also mentioned by Ibn Qudama that:‑‑

"It is indeed when (the husband) accuses his chaste wife of unchastity, Hadd punishment is obligatory on him that ..in case he does not produce four witnesses."

The same view is expressed by AI‑Sarkhsi in Al‑Mubsut, VOl.VII, p.30 and Abideen Shami in Raddul Muhtar, Vol.II, p.635.

40. It may, however, be added that the Holy Prophet (p.b.u.h.) in a tradition used the word `Bayyina' which means `evidence'. As interpreted by Ibn al‑Qayyim the word `Bayyina' includes ocular, documentary and the circumstantial evidence. But in a tradition narrated by Imam Nas'i instead of the word the words four witnesses arc reported to have been narrated by the Holy Prophet (p.b.u.h.) (See Sunan Al‑Nas'i, Beirut, Vol.5, p.172). The relevant portion of the said tradition reads as under :‑‑

"The Holy Prophet (p.b.u.h.) said: bring four male witnesses, otherwise Hadd al‑Qazf will be inflicted on your back."

(This was repeated a number of times by the Holy Prophet (p.b.u.h.).

It can, therefore, be concluded that in order to prove the accusation of adultery charged by a husband against his wife, he is required to produce four witnesses to obviate the course of Li'an.

41. To sum up, as discussed above, the condition of four eye‑witnesses to prove the accusation of adultery cannot be relaxed for the purpose of Li'an by producing medical or circumstantial evidence. Even controversy amongst the jurists about the evidence of four witnesses including the husband (the accuser) could not be agreed to. The production of medical evidence and circumstantial evidence, therefore, carries no weight.

42. As regards confession, .it stands altogether on a different footing. If the spouse confesses the guilt before a competent Court of Law, there will, then, be no need for having recourse to Li'an. .

43. Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, as such, cannot be held to be repugnant to the Injunctions of Islam, as prayed for. There is, however, a lacuna which may be filled in by adding the words in the beginning of subsection (1) of section 14 that "in the absence of evidence of four eye‑witnesses," the Court shall proceed to record the Li'an.

44. The Federation is, therefore, directed to make the above addition in section 14(1) of the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), within six months from the date hereof. For failure to do so, the said addition shall be deemed to have been made and the same will form part of the said subsection.

45. In result, the petition is disposed of accordingly. Announced today in open Court by me.

(Sd.)

Tanzilur Rahman, C.J.

MIR HAZAR KHAN KHOSO, J.‑‑‑I agree.

(Sd.)

Mir Hazar Khan Khoso, J

FIDA MUHAMMAD KHAN, J.‑‑‑ This Shariat Petition, filed by Capt. Abdul Ghafoor, challenges section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter called the said Ordinance) on the ground that it is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an. This petition was admitted on 9‑2‑1992 and was fixed for regular hearing on 11‑5‑1992 when the learned counsel for the petitioner Mr.Fazal Elahi Siddiqui, Advocate was heard in detail. Mr. lftikhar Hussain Chaudhry, learned Standing Counsel for the Federation was also heard. Then the judgment was reserved and the same is being disposed of now.

2. The impugned section reads as under:‑‑‑

"14.‑‑‑(1) When a husband accuses before a Court his wife who is Muhsan within the meaning of section 5, of the zina and the wife does not accept the accusation as true, the following procedure of Li'an shall apply, namely:‑‑‑

(a) the husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in. my accusation of Zina against my wife (name of wife) and, after he has said so four times, he shall say "Allah's curse be upon me if I am a liar in my accusation of Zina against my wife (name of wife)"; and

(b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of Zina against me"; and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of Zina against me".

(2) When the procedure specified in subsection (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and the wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.

(3) Where the husband or the wife refuses to go through the procedure specified in subsection (1) he or, as the case may be, she shall be imprisoned until:‑‑‑

(a) in the case of the husband, he has agreed to go through the aforesaid procedure; or

(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.

(4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of Zina liable to Hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979."

3. The learned counsel for the petitioner submitted that the provisions of "Li'an" are against the law prescribed by the Holy Qur'an because "Li'an" according to Qur'anic teachings will take place only when the husband does not have the evidence which according to him could be either in the form of confession of the wife at an early stage or some ocular evidence even of less than four witnesses or of medical evidence. In the light of foregoing submissions, the learned counsel submitted that since the impugned provision of "Li'an" does not start with the words "in the absence of evidence" which should have been inserted in the beginning of the sentence in the said section, it was repugnant to the Injunctions of Islam. The learned counsel is of the view that in cases where the husband charges his wife for Zina and the evidence is available in any form as mentioned above, Li'an will not take place. The learned counsel relied on Verses Nos.6 to 10 of Sura al‑Noor.

4. Controverting the above contention, the learned counsel for Federation submitted that "Li'an" has been considered as a form of divorce and it has not been considered, treated or discussed as a subject under Islamic Criminal Law. For this purpose he made references to "Mishkat Sharif' and "Hidaya" where the subject of "Li'an" has been discussed with divorce. The learned counsel submitted that section 14 of the Offence of "Qazf' incorporates the procedure for "Li'an" and the substantive law with various related questions has not been codified in the Ordinance, therefore, the question raised by the petitioner was not significant. He further submitted that the same would have been significant only if the section dealt with the substantive law and hence it would not be advisable or possible to incorporate all the substantive law, as discussed in the Holy Qur'an, traditions and Hidaya, into the statute law because that would give rise to unnecessary controversy about the nature of evidence.

5. We have considered the submissions, made by the learned counsel for the parties, in the light (if Injunctions of Islam as contained in the Holy Qur an and Sunnah of the Holy Prophet (p.b.u.h.). It is pertinent to mention here that "Li'an" literally means mutual cursing. Technically, in Islamic law, it signifies the specific procedure laid down for bearing witness and invoking curse on oath, before a Court of law, by both husband and wife when the former accuses her of committing Zina or denies his paternity to her child/pregnancy (which is known to be his due to the subsistence of their marriage) and the latter refutes his charge. Since after completion, it not only culminates in dissolution of the marriage between the spouses and outright termination of their mutual rights and obligations but also results in removal of punishment from them, it cannot be termed as mere procedure but definitely it forms an integral part of both civil and criminal jurisprudence and is thus a substantive law. Submissions of the learned counsel for Federation in this respect are therefore without any substance.

6. Before dilating upon the subject it seems necessary to reproduce the relevant verses of the Holy Qur'an which arc as under:‑‑‑

"6. And for those who lauch

A charge against their spouses,

And have (in support).

No evidence but their own

Their so evidence

(Can be received) if they

Bear witness four times

(With an oath) by Allah

That they are solemnly

Telling the truth

7. And the fifth (oath)

(should be) that they solemnly

Invoke the curse of Allah

On themselves if they

Tell a fie"

8. But it would avert

The punishment from the wife

If she bear witness

Four times (with an oath)

By Allah, that (her husband) is telling a lie;

9. And fifth (oath)

Should be that she solemnly

Invokes the wrath of Allah

On herself if (her accuser)

Is telling the truth.

10. 1f it were not

For Allah's brace and mercy

On you, and that Allah

Is Oft‑Returning

Full of Wisdom

(Ye would be ruined indeed)".

7. It is also pertinent to mention that prior to the revelation of these verses the preceding verses Nos.4 to.5 of Sura AI‑Noor had been revealed which had prescribed punishment for the person who accuses chaste (man or) woman of Zina but fails to produce four eye‑witnesses to prove his charge. Then a question naturally arose about the person who may find his own wife involved in Zina but has no witnesses to prove the same in a Court of law. This led to a difficulty which in view of its particular nature assumed special significance. The difficulty was explained in a tradition in the following words:

"Abdullah reported: We. were on the night of Friday staying in the mosque when a person from the Ansar came there and said: If a person finds his woman alongwith a man, and he speaks about it, you would lash him, and if he kills, you will kill him, and if he keeps quiet he shall have to consume anger. By Allah 1 will definitely ask about him from Allah's Messenger (may peace be upon him). On the following day he came to Allah's Messenger (peace be upon him) and asked him thus: If a man were to find with his wife a man and if he were to talk about it, you would lash him; and if he killed, you would kill him, and if he were to keep quiet, he would consume anger, whereupon he (the Holy Prophet) said: Allah solve (this problem), and he began to supplicate (before Him) and then the verses pertaining to Li'an were revealed: "Those who accuse their wives and have no witnesses except themselves" (XXIV:6). The person was then put to test according to these verses in the presence of the people. There came he and his wife. in the presence of Allah's Messenger (may peace be upon him), and they invoked curses (in order to testify their claim). The man swore four times in the name of Allah that he was one of the truthful and then invoked curse for the fifth time saying: Let there be curse of Allah upon him if he were among the liars. Then she began to invoke curse. Allah's Messenger (may peace be upon him) said to her lust wail (and curse after considering over it), but she refused and invoked curse and when she turned away, he (Allah's Apostle) said: It seems that this woman shall give birth to a curly‑haired black child. And so she did gave birth to a curly‑haired black child."

(Sahih Muslim: Kitab Al‑Talaq, Vo1.II, pp. 7110‑781), Translation by Abdul Hamid Siddiqui.

8. A natural course open for the husband could be to divorce the woman but in such a situation if the illicit intercourse results in the pregnancy he will have to suffer the burden of bringing up another person's child and also there would be no moral or physical penalty either for the woman or her seducer. This was a problem of a very serious nature and some events actually occurred which highlighted the gravity of such situations. However, the verses mentioned above were revealed and by providing guidance they sorted out the difficulty and resolved the problem. A few traditions that alongwith the above mentioned verses of the Holy Qur an form the basis and source of Islamic law on the subject arc mentioned below:

(a) Ibn Abbas reported that Hilal‑b‑Omayyah imputed adultery to his wife with Sharik‑b‑Sahma'a in presence of the Apostle of Allah. The Prophet said: Proof or ordained sentence on your back (for slander). He said: O! Apostle of Allah! when one of us sees a man over his wife ‑ will he go to seek proof? The Prophet began to say: Proof or else the prescribed punishment on your back. Hilal said: By one who sent you with truth 1 am certainly a truthful man. Let Allah reveal what will prove me not guilty for the ordained sentence. Gabriel then came down and gave him the revelation: As for those who impute unchastity to their wives‑‑‑ (he read till he reached) if you are the truthful ones (24:6). Hilal came and deposed. The Holy Prophet was saying: Allah knows that one of you is a liar. Is there one of you to repent? She got up and testified. When she came near five times, they prevented her and said that it would make (punishment) obligatory. Ibn Abbas said: Then she stopped and delayed till we thought that she would return. Afterwards she said: 1 shall not dishonour my people for all times. Then she went away. The Holy Prophet said: Look at her; if she give birth to a child, black of eye‑balls, perfect of bones and fat of buttocks, it is for Sharik‑b‑Sahma'a. She then gave birth to (one like that). The Messenger of Allah said: But for what is in the Book Allah, it would have been a serious matter for her and for me.

(b) Ibn Omar reported that the Prophet allowed imprecation between a man and his wife. Thus he separated her from her child and made separation between them both. He handed over the child to the woman. And in a tradition narrated by them: The Prophet admonished him, reminded him and informed him that the chastisement of this world is easier than the chastisement of the Hereafter. Then he called her, gave her admonition, reminded her and informed her that the chastisement of this world is easier than the .chastisement of the Hereafter. (Bukhari and Muslim)

(c) Sahl‑b‑Sa'ad reported that Owaimer‑al‑Ajlani asked: O Messenger of Allah, inform me about a man Who found a . man (committing adultery) with his wife, whether he should kill him and so they (heirs of the killed) should kill him, or how he should act. The Messenger of Allah said: Certainly revelation has come about you and your wife. Go and bring her. Sahl said: Then we both took to mutual cursing within the mosque while I was with the people near the Messenger of Allah. When he was free, Owaimer said: If I retain her, I would be lying against her, O Messenger of Allah. Then he gave her three divorces. The Prophet said: Look; if she gives birth to a child, black of eye‑balls, and fat of buttocks and fleshy of hind parts, I will not think of Owaimer but that he has spoken the truth about her. And if she gives birth to a child of reddish colour as if it is a white lizard spotted with redness, I will not think of Owaimer but that he has uttered falsehood about her. Afterwards she gave birth to a child of the descriptions which the Prophet of Allah had stated in support of the veracity of Owaimer. It was afterwards ascribed to its mother. (Bukhari and Muslim)

9. So far as above verses of the Holy Qur'an and the traditions of the Holy Prophet (p.b.u.h.) are concerned they are very clear on the subject. According to them the procedure of "Li'an" is to be adopted only when the required evidence is not available and there is a solitary statement containing accusation of Zina or of illicit pregnancy against his wife by the husband. The Holy Qur'an specifically mentioned and not without reason, the words:

"And have.(in support).

No evidence except themselves" and the Holy Prophet (p.b.u.h.) unequivocally ordained: "Bring evidence" Now the important question before us to be decided is what is meant by the words " and ".

10. In this connection, it may be mentioned that so far as the word is concerned there could be no ambiguity in its meaning because at the time of its revelation, the verses relating to commission of "Zinc" (4:15) and "Qazf' (24:4) had already been revealed and according to those verses "the evidence" clearly meant testimony of four eye‑witnesses: Verses number 13‑I4 of this Surah that follow the verses of "Li'an" again make a reference to the production of four eye‑witnesses. The very verses of "Li'an" have also the same connotation. The factum of four witnesses is clearly confirmed by the number of oaths to be taken by both husband and wife for "Li'an" purposes. The word used in this verse is (plural of' i.e. witness) and; as stated, in the context of its preceding and succeeding verses it could only mean four eye‑witnesses.

11. Regarding the Ahadith it may be noted that as one part of the Holy Qur'an explains its other part, likewise various Ahadith also highlight the meaning of other Ahadith inter se. Accordingly, though in some Ahahdith the word used is some other traditions throw light on the subject and specify the meaning of ` ' in explicit terms. In a tradition narrated by instead of the word the words have been mentioned as under:

"Tile Holy Prophet (peace of Allah be upon him) said: Bring four eye witnesses or (be ready for the ) punishment (of Qazf) on your back."

(repeating to him the same several times)"

There could be no better, authentic, authoritative and unambiguous explanation of the word than this which brings the whole discussion on this point to a final conclusion.

12. In the light of above‑mentioned discussion it becomes crystal clear that to prove his case of accusation, of Zina against his wife, the husband is required to produce four eye‑witnesses if the wife does not make, before a Court of competent jurisdiction, a confession of the commission of the offence. Therefore, submission of the learned counsel that the charge of the offence of Zina should be considered proved by some ocular evidence even of less than four witnesses neither holds any ground nor Finds support from any verse or Sunnah of the Holy Prophet (p.b.u.h.). Similarly his submission regarding use of medical report as corroborative piece of evidence in "Li'an" is also without any legal force as an hostile husband will always be in a better U position to himself manipulate such an evidence and then fabricate it against his wife whenever he may like to do so. So far as his submission regarding the proof of Zina in the form of confession by the wife is concerned that has been duly provided for in subsection (4) to section 14 of the said Ordinance.

13. It is pertinent to mention here that tile very text of Ahadith quoted above confirms beyond any shadow of doubt that no punishment could be awarded to the wife after the proceedings are completed. In the case of Hilal Ibn‑e‑Omayyah when his wife swore for the fifth time the Holy Prophet (p.b.u.h.) passed a decree of dissolution of their marriage and also directed that her child after birth would be attributed to her. Some traditions further contain the ruling that nobody after that would blame or her child so much so that if anybody accused either of them afterwards he would be liable to the punishment of "Qazf.

How could that have been if she wits not honourably acquitted. It is extremely important to note that in the above case in spite of the fact that the child looked very much similar to the male accused of the offence, the Holy Prophet (p.b.u.h.) abstained from awarding punishment to her and maintained in clear terms in the following words:

"If Allah's Book had not settled the matter before this, I would have treated her differently." to another tradition the words are:

"If there had been no swearing of the oath, I would have dealt with this woman most severely."

In another tradition on some other occasion the Holy Prophet (p.b.u.h.) said about a woman who was openly spreading evil in the society, "If 1 could stone anybody without evidence 1 would have stoned her". Therefore, there is not a single precedent neither in the period of Holy Prophet (p.b.u.h.) nor in the Orthodox Caliphate to the effect that after the completion of required procedure of Li'an any wife was awarded any punishment in spite of the availability of some corroborative circumstances in the form of similarity of features of the child after delivery to testify the charge of Zina by the husband.

14. Without going into the technical discussion on the subject that exists between Hanafi and Shaft School of thought, the position that actually emerges from the whole procedure of "Li'an" when simplified is that the punishment of "Qazf" follows on the husband who accuses his wife of "Zinc" and is unable to produce the required number of witnesses. However, that punishment is averted from him when he makes particular statements on oath before a Court of law. As a corollary to that the punishment of "Zina" follows against the wife but when she also makes particular statements on oath for a similar number of times before the Court she also saves herself from the punishment. The verse of the Holy Qur'an contains express injunctions in this respect. It reads as under: "but it would avert

The punishment from the wife

If she bear witness

Four times (with an oath).

By Allah, that (her husband)

Is telling a lie; (Sura Noor, Verse 8)

This view finds fully consistent support from the Islamic commentators (Mufassireen) of the Holy Qur'an of ancient and modern times alike. For details sec:

The late 'grand Mufti of Pakistan, Mufti Muhammad Shari, summing up discussion on the subject of Li'an, writes:

Similary, Maulana Syed A. A. Maudoodi writes:

Here it also seems appropriate to reproduce a para. from that highlighting the difference of opinion between Hanafi and Shaf i Schools of thought regarding some aspects of the subject, also explains the reasons why a wife when accused by husband is to be treated differently. Maulana Maudoodi writes:‑‑‑

Abdullah Yousaf Ali Writes:

"The‑case of married persons is different from that of outsiders. If one of them accuses the other of unchastity, the accusation partly reflects on the accuser as well. Moreover, the link which unites married people, even where differences supervene, is sure to act as a steadying influence against the concoction of false charges of unchastity, particularly where divorce is allowed (as in Islam) for reasons other than unchastity. Suppose a husband catches a wife in adultery. In the nature of things four witnesses ‑‑ or even one outside witness ‑‑ would be impossible. Yet after such an experience it is against human nature that he can live a normal married life: The matter is then left to the honour of the two spouses. If the husband can solemnly swear four times to the fact, and in addition invoke a curse on himself if he lies, that is prima facie evidence of the wife's guilt. But if the wife swears similarly four times and similarly invokes a curse on herself, she is in law acquitted of the built. If she does not take this step, the charge is held proved and the punishment follows. In either case the marriage is dissolved, as it is against human nature that the parties can live together happily after such an incident."

(Holy Qur'an translated and commented by Abdullah Yousaf Ali, Volume 11, page 897).

And finally we may also reproduce herewith translation of verse number 8 alongwith its explanation by Allama Muhammad Asad, an Islamic Scholar of repute. He writes:

"(8) "But [as for the wife, all) chastisement shall be averted from her by her calling God four times to witness that he is indeed telling a lie, and the fifth [time] that God's. curse be upon her if he is telling the truth."

(10) Thus, the husband's accusation is to be regarded as proven if the wife refuses to take an oath to the contrary, and disproved if she solemnly sets her word against his. Inasmuch as this procedure which is called `Li'an' ("oath of condemnation"), leaves the question of guilt legally undecided, both parties are absolved of all the legal consequences otherwise attending upon adultery ‑‑ resp. an unproven accusation of adultery ‑‑ the only consequence being a mandatory divorce."

(The Message of the Qur'an, translated and explained by M. Asad, page 534)

15. 1t may be mentioned that the dissolution of marriage, nullification of lineage of the child/pregnancy, and non‑entitlement to maintenance combined with lowering of public image and damage to social acceptance etc. in itself constitute sufficient punishment for the wife.

16. The concluding verse on the subject of "Li'an" is of particular significance in this connection. It reads as under:

"If it were not

For Allah's grace and mercy

On you, and that Allah is Most Forgiving

Full of Wisdom,

(Ye would be ruined indeed). (24:10)

17. The "Li'an" proceedings obviously open a way out of a very difficult situation for the spouses in which a wife may find herself placed due to the husband's false accusation or a husband due to wife's immorality or illicit pregnancy. This verse highlights that this solution was based on Allah's grace and mercy because He is Most Forgiving and All wise. Commenting on this verse Maulana Shabir Ahmad Usmani writes:

"In the absence of oath‑testimony (Li'an) the husband was liable to punishment of eighty stripes in case he cast imputation on his wife without producing four witnesses, or else he would have to lament for ever, because it is very probable that he might be true in casting imputation. As for a man other than the husband he is not constrained in expression, so he has no such rights in law. On the other side if the case would have been decided on the basis of oaths by the husband the woman had been in distress, because she may be truthful very probably. Similarly if the woman should have been taken as truthful on the basis of her oaths alone, then the husband was liable to punishment according to law, despite that there is every possibility of his being truthful. So the prescription of Oath‑evidence with an open latitude of defence for all, is really the effect of the Divine Grace, Divine Mercy and Divine Wisdom, because the truthful disputant is saved from undue punishment and the liar is given respite in the concealment of his or her sin, haply they may repent. And the acceptance of his repentance is the effect of the Divine Attribute of Turning.

(English translation by Muhammad Ashfaq Ahmad, p.1559).

Allama Muhammad Asad writes:

"This sentence, which introduces the section dealing with the ra condemnation of all unfounded or unproven accusation of unchastity‑ as well as the similar sentence which closes it in Verse 20 is deliberately left incomplete, leaving it to man to imagine what would have happened to individual lives and to society if God had not ordained all the abovementioned legal and moral safeguards against possibly false accusations, or if He had made a proof of adultery dependent on mere circumstantial evidence. This idea is further elaborated in Verses 14‑15."

(The Message of the Quran, translated and explained by M. Asad, p. 534)_

18. In view of the above we are of the firm opinion that so far as the proceedings of Li'an arc concerned, they are to be resorted to only when the husband accuses his wife of Zina or illicit pregnancy before the Court but does not have the required evidence of four eye‑witnesses to the commission of Zina , and his wife denies the allegation. Similarly we also maintain that when after her husband's oaths, the wife refutes the allegation of Zina in the particular manner as laid down in the Holy Qur'an, she takes herself out of the pale of that charge and completely absolves herself from all criminal liability in this connection.

19. Consequently for the abovementioned reasons, we hold that in the impugned section, there is an omission in respect of non‑mentioning of the absence of required evidence when "Li'an" proceedings are to be conducted and hence there is a need to bring it in conformity with the Islamic Injunctions by adding the words: " the absentee of evidence of four eye witnesses " before the words "when a husband accuses before a Court ", in the beginning of section 14(1) of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

20. In this view of the matter, we partly accept this Shariat Petition and direct that the underlined words be added and the impugned section be brought in conformity with the Injunctions of Islam, as mentioned in para. No.19 above, within a period of six months from today, failing which the said addition shall be deemed to have been made to form the part of the said subsection.

M.B.A./734/FSC Order accordingly.