In his seminal article Honourable Mr. Justice Dr.
Khalid Masud analyses the evidentiary value of DNA in order to establish the
criminal act of rape. He finds that there is no Islamic legal justification for rejecting DNA as circumstantial evidence in rape cases. This view is
supported by various ahadith and
opinions of classical jurists of various schools of thought. This begs the
question that why did Council of Islamic Ideology refuse to endorse the
evidentiary value of DNA in rape cases?
Dr Masud argues that these are the powerful who are
scared of being punished in case DNA is used to prove the crime of rape. This,
he argues, is done by confusing zina
(consensual intercourse) with zina bil
jabar (rape):
“Rape is commonly confused with Zina in Muslim
patriarchal societies in general, and in Pakistan in particular to
save the mighty from shame. Thanks to the sectarian and religious political
affiliations, one need not refer to the original teachings of the Qur’an and
the Sunna of the Prophet because that might scare the mighty.”
He further elaborates this point by contending that in
order to deny the evidentiary value of DNA, the “mighty and the scared” employ
two principles:
1. They refuse to distinguish between rape and fornication.
They call the first Zina bil Jabr and the second Zina, implying that there is
no concept of rape in Islamic law; and
2. They insist on requiring four pious and God fearing
male eyewitnesses in rape cases.
As it is impossible for a victim of rape to produce
four such witnesses in order to establish the crime of rape, the perpetrators
of this heinous crime are acquitted even when they are prosecuted in a court of
law.
Dr Masud shows that Zina is clearly distinguished from
rape and concludes:
“It is not therefore correct to claim that Islamic
legal tradition could not develop the concept of rape and that is why Pakistani
jurists do not distinguish between rape and cases of fornication (Zina). Studying hadith and
Fiqh one finds that the Islamic legal tradition did not require four witnesses
as primary and mandatory procedure for rape; they frequently accepted
circumstantial evidence.”
He then goes on to quote various ahadith and juristic opinions in order to endorse his above views.
He concludes his article with the following observation:
“In societies where rape is used for intimidation,
disgrace, humiliation and subjugation, it is in the interest of the mighty to
confound rape with Zina. It raises doubt about the intent and involvement of
the victim of rape. Even victim’s family abandons her and pleads her to keep
quiet. In some cases, she is silenced in the name of family honour.”
This is an excellent piece of scholarship, which
combines learning of classical Islamic legal texts with sociological knowledge—a
rare but desperately required combination in order to remove the grave
injustices done to the weaker and vulnerable sections of Muslim societies in
the name of Islam. It is unfortunate that the mighty, whose powers should have
been curbed by law and religion, exploit the both in order to subdue the weak
and the poor.
Written in the context of infamous Mazar e Quaid rape
case, Dr Masud’s article has laid down the foundation of a new research
methodology. Its further application by other researchers and scholars will
expose the vested interests behind the whole project of ‘political exploitation
of Islamic law’.
Read the full article of Dr Khalid Masud at:
