HAZOOR BAKHSH, M. I. CHAUDHRY AND OTHER vs FEDERATION OF PAKISTAN

1. Opinion But We substitute Something better or similar Knowest thou not that Allah Hath power over all things ?

2. And similarly in 10 : 15"But when Our Clear Signs Are rehearsed unto them, Those who rest not their hope On their meeting with Say : Bring us a Reading Other than this, or change this."

3. Say : It is not for me, Of my own accord, To change it : I follow Naught but what is revealed Unto me : If I were To disobey my Lord, I should myself fear the Penalty Of a Great Day (to come).".

4. It may also be mentioned here that there is not a single Hadith of the Prophet speaking of abrogation or alteration of any verse of the Qur'an. See the Holy Qur'an of Muhammad A.I note under 2 : 106 which says as follows : "Nor is there a single report traceable to the Prophet (p. b. h.) that such and such a verse was abrogated".

5. That the Holy Qur'an and the Sunnah constitute the Injunctions of Islam is not in dispute, A Muslim must believe in both, and must obey Allah and follow the Holy Prophet. The Ahadith, however, must be considered in the light of the Qur'an, and they do require careful scrutiny as to their authenticity, contents and context, and whether they are consistent with reason.

6. Let us now come to the four cases during the life time of the Holy Prophet in which ---rajm--- was imposed as a punishment for Zina. First of all take the case of the Jews, a Jew male and a Jew female. It appears from Sahih Muslim (Urdu) published by Qur'an Mahal, Karachi, Vol. It, Hadith No. 1932, pages 794 to 795 that `Hadd' was imposed on them in accordance with the direction in Taurat which governs the Jews. This case is, therefore, not relevant for our purposes.

7. The second case is known as Hadith-e-Aseef reported in Sahih Muslim (Urdu) published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1930 pages 793 to 794, Urdu translation of this Haditb is as follows :---- Abu Hanifah calls this Hadith as ---khabro ahad--- and says that it cannot add `expulsion' in as much as `expulsion' is not mentioned in 24 :

2. I may add here that ---rajm--- too, is not mentioned in the said verse, and for the same reason should not have been accepted. Furthermore according to Ahkamul Qur'an by Al-Jasas, Vol. III, pages 256-257 this Hadith is of a period before the revelation of 24 : 2.

8. It may also add that the Hadith does not disclose what was asked of the wife by `Unais' and what was actually the reply given by her. It appears difficult to believe that merely on the report of `Unais' and without calling the woman and questioning heras to the act committed by her so as to clearly prove whether she was guilty of Zina, the Prophet ordered her to be punished with Rajam.

9. The third incident concerns Maiz Bin Malik, a man from Aslam tribe, it appears that Maiz approached the Prophet and confessed to have committed Zina. Some 'Ahadith' said he confessed two times, some said three times, some said four times and some said five times. Some Hadith say that the Prophet first asked Maiz about what the former had heard about the latter. And Maiz asked what had the Prophet heard about him. To this the Prophet replied that he bad learnt that Maiz had committed Zina with a certain slave woman. Maiz replied, `yes' and he confessed four times upon which the Prophet ordered him to be stoned to death. Sahih Muslim printed by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1922, page 787.

10. There are different versions about this same incident as will appear from Shahrah Bukhari by Ibn- e-Hajar Asqalani. Vol. 12, Hadith No. 6815, pages 122 to 127.

11. Furthermore it appears from ---tadbeer quraan--- by Janab Amin Ahsan Islahi, pages 505 and 506, that Maiz was not a man of good character as far as woman was concerned and was perhaps in the habit of committing offences against women. This receives some support from Sahih Muslim Qur'an Mahal, Karachi, Vol. II, Hadith Nos. 1920, 1922, 1923, pages 786 to 788, wherein it appears that during war some men used to stay behind and molest women.

12. The Hadith about Maiz does not show that Rajam was imposed on him in compliance with any direction contained in the Holy Qur'an. It was likely that ---rajm--- was imposed either in accordance with the then custom or as a `Tazir', or as a punishment for ---kharaba--- as prescribed in 5 : 33.

13. The fourth and last incident relates to a woman from Azd tribe (Ghamidiyya). See Bukhari (Published by Muhammad Saeed & Sons, Karachi, Vol. III, page 686 and Sahih Muslim published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1928, page 792) The woman asked the Prophet to make her clean. This indicates that she might be a prostitute or addicted to vice. Janab Amin Ahsan Islahi in his ---tadbeer quran--- Vol. IV, page 506 writes thus :- The reference is to Sura Maida, verse 33. Here also might have been imposed as a `Tazir' or in accordance with the then custom or as prescribed for as in 5 :

33. It is of interest to reproduce here the following passage from Tafsir-al-Kabir by Imam Fakhruddin Razi, Vol. VI, page 216: Individually all the four cases are ---khbr alwahad---. The Jurists, like Jafar Sadiq, Abu Hanifa, Malik Shafi and Ahmed, however, say that to Ahadith in respect of Rajam though ---akhbar alahad--- they are in the position of Hadis-e-Mashhoor having been stated by such pious and prominent Soaba. Like. Jaber, Abu Huraira, Abdullah Ibn-e-Abbas and such Ahadith collectively are sufficient to replace a part of the order contained in .The Holy Qur'an namely 24 :

2. It may, however, be mentioned here that have already held that the Qur'an cannot be changed or abrogated by Hadith.

14. It may be noted that the Prophet did not call expulsion for one year in respect of unmarried person as "Hadd" and he called flogging as "Hadd". See Ruhul by Aloosi, Vol. 18, page 73 wherein it is stated :---- I now turn to the Opinions of the Sahaba on the question of Rajam. The following passage occurs in Sahih Muslim published by Qur'an Mahal, Karachi, Vol. II, Hadith No. 1915, page 784: From a statement attributed to Saeed Bin Masyyab as contained in Muwatta Imam Malik (Urdu translation by Allama Wahiduz-Zaman published by Islami Academy, Lahore, page 599, the alleged verse has been quoted as follows: "We have; without doubt, Sent down the Message And We will assuredly Guard it (from corruption)."

15. This verse negatives the proposition that the Qur'an has suffered alteration or abrogation or missed something.

16. Commenting on the statements of Abdullah Bin Abbas, Janab Amin Ahsan Islahi in his Vol. III, page 503 says: Janab Amin Ahsan Islahi also proceeded to point out that the alleged Ayat says about old persons and not every 'Zani' and 'Zania'. I agree with his Opinion.

17. It is important to note that the Holy Prophet never said that the alleged Ayat was an Ayat of the Holy Qur'an. It appears from by, Vol. III, page 247 that Hazrat A.I is reported to have said while imposing punishment for Zina that was ordering flogging in accordance with the Injunctions of Qur'an and stoning to death according to the Sunnah of the Holy Prophet. This shows that Hazrat A.I never accepted that Rajam was prescribed as punishment in the Qur'an, and imposed it in deference to the Sunnah.

18. There is another incident which occurred during the time of Hazrat A.I concerning five person; and Hazrat A.I while deciding their cases observed as follows:---- (vide Manhajus Sadeqeen by Molla Fathullah Kashani, pages 266-268).

19. This also showed that Hazrat A.I regarded 'jald' only as 'Hadd', that is the punishment appointed in the Holy Qur'an for the offence of ---zana Apart from the fact that the Hadith cannot override the definite and clear Injunctions of the Qur'an, the Ahadith themselves suffer from infirmities. They are bare and bald in character, and lack in details and in the facts and circumstances of the different cases. It is not clear whether ---rajm--- was imposed in accordance with the then custom or as a 'Tazir' on account of the aggravated nature of the case or case of special significance with reference to its effect on the particular state of society then prevailing. Some of the cases in which it was awarded were of a period before the revelation of 24 :

2. As regards others there are conflicting Opinions. In these circumstances it is neither safe nor reasonable to found a grave punishment like that of on such Ahadith, and make it an obligatory rule of law.

20. Whether for the same offence a penalty severer in nature than that of 'Hadd' as prescribed in 24 : 2 can be imposed appears doubtful.

21. It is true that the Jurists are of the Opinion that in every case where, a married person is found guilty of, he or she will invariably be punished with ---rajm---. There are differences among them as to whether the punishment in such a case is ---rajm--- only, or ---rajm--- and ---rajm--- both, and whether in the case of an unmarried person it is ---rajm--- only or ---rajm--- as well as expulsion for one year. They all rely on the same Ahadith for their divergent Opinion. These Ahadith have already been reproduced and discussed above.

22. This Court had formulated certain questions for replies and sent them to five Ulema, appearing on the Court's list of Jurisconsult but only three of them namely Janab Syed Muhammad Razi, Janab Hanif Nadvi and Pir Karam Shah have kindly replied. Both the questions and the replies are put on record. Without going into the details and reproducing them here the matters appearing in their Opinions have already been discussed and dealt with already, and it is needless to go through the exercise all over again.

23. To sum up there is on the one hand the plain unambiguous and definite Injunctions of the Holy Qur'an in 24 : 2 and there is some Hadith that says that there can be not alteration or. Abrogation of any verse of the Qur'an by Hadith, and, on the other, the (not so sure, discrepant, conflicting an indefinite, Ahadis, some of whose existence itself is doubtful, on the question of ---rajm--- as punishment for ---zana---. The Opinions of Jurists, too, are inconsistence and not so sure. In these circumstances and for the reasons already state I consider myself bound and have no hesitation to rely on the Qur'an and to obey in all humility the Injunctions as contained in 24 : 2.

24. Having given my anxious consideration to the question at issue I have arrived at the following conclusion :- The only punishment that may be called 'Hadd' and which can be imposed on a person, whether married or unmarried, guilty of is been hundred stripes to be inflicted in public.

25. To this extent sections 5 and 6 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are repugnant to the Injunctions of Islam, and they must accordingly be brought into conformity with them.

26. JUSTICE AGHA ALI HYDER, MEMBER.--------Petitions Nos. 59 of 1979, and 62 of 1979, call in question, the provision of section 5(2) (a) and section 6(3) (a) of the Offence of Zina (Enforcement of Hudood) Ordinance as violative of the injunctions of Islam, and therefore liable to be struck down. These prescribe the punishment of a married male or female, found guilty of adultery- whether on proof, or confession by stoning to death. The submissions by the petitioner in the first petition and by Mr. Shamim Abbas Bokhari, learned counsel for the petitioner in the latter petition, were that the punishment enjoined in Islam, was just 100 stripes, as to be found in verse 2 of Sura- e-Noor i. e. 24 : 2 and anything in excess thereof must be eliminated. The translation of the verse, as given in the translation and the commentary of Holy Qur'an, by Allama Abdullah Yousuf A.I, reads as under: 24 : 2 The woman and the man Guilty of adultery and fornication- Flog each of them With a hundred stripes; Let not compassion move you Prescribed by Allah, if ye believe And let a party Of the Believers Witness their punishment.

27. The said Sura was revealed in the 5th or 6th A. H. When the Islamic polity had taken a definite shape and form, and the affairs of the Believers were being administered in accordance with the code and injunction, as enunciated by Islam. The commandment is in a very clear and firm tone, as can be seen from the words of the opening verse.

28. A Sura which We Have sent down and Which We have ordained: Clear Signs, in order that Ye may receive admonition

2. It is beyond the pale of any controversy that the Holy Qur'an is the foremost source of Islamic Law and jurisprudence. Created or Uncreated a controversy, which assumed serious dimension, especially during the caliphate of Mamun Al-Rashid apart, it is the cardinal belief of every Muslim, that it contains the words of God, as conveyed by Gabriel to our Holy Prophet and that it is the last message to humanity, till eternity. In it are to be found not only the fundamental tenets of the faith, but enlightenment on things and subjects, from the most sublime to the utter common place. The Holy Prophet was entrusted to spread the message enshrined therein, to all the nooks and corners of the world to redeem mankind from the abyss of degradation, to which it had fallen.

3. This is abundantly made out from the text of the Holy Qur'an, some of which might be referred to with advantage.

29. 3 : 79 It is not (possible)

30. That a man, to whom Is given the Book, And Wisdom, And the prophetic office, Should say to people: "Be ye my worshippers Rather than Allah's": On the contrary (He would say): "Be ye worshippers Of Him Who is truly The Cherisher of all: For ye have taught The Book and ye Have studied it earnestly."

31. 5 : 50 Let the People of the Gospel Judge by what Allah bath revealed Therein. If any do fail To Judge by (the light of)

32. What Allah bath revealed, They are (no better than)

33. Those who rebel.

34. 6 : 106Follow what thou are taught By inspiration from the Lord: There is no god but He: And turn aside from those Who join gods with Allah.

35. 10 : 15 But when Our Clear Signs Are rehearsed unto them, Those who rest not their hope On their meeting with Us, Say: "Bring us a Reading Other than this, or change this.'

36. Say: "It is not for me, Of my own .Accord, To change it: I follow Naught but what is revealed Unto me: if I were To disobey my Lord, I should myself fear the Penalty Of a Great Day (to come)."

37. 16 : 44 (We sent them) with Clear Signs And Books of dark prophecies: And We have sent down Unto the (also) the Message; That thou mayest explain clearly To men what is sent For them, and that they May give thought.

4. The Prophet had himself proclaimed in unequivocal terms that "my words may be abrogated by God's words but I cannot abrogate God's words". He did not hesitate for a moment in changing the direction of the Qibla from Masjid-e-Aqsa to Ka'aba, a practice which bad extended to a number of years, once . The message was received. This happened again, when it came to the implementation of the Treaty of Hudabiya, in regard to the return of the female Believers to the "Kuffars" of Mecca, when be received divine directions to the contrary The Qur'an tells us, as to how a revelation, transmitted. To us-through the Holy Book, was to be abrogated.

38. 2 :106 None of Our revelations Do We abrogate Or cause to be forgotten But We substitute Something better or similar: Knowest thou not that Allah Hath power over all things?

5. Tot that some of our Jurists, have not made assertions to the contrary, but the consensus of Opinion is, that Traditions are the second most important source of law, next, to Qur'an, especially those:-

(1) Which are complementary & supplementary to the text of the Qur'an. .

(2) Which-clarify a text of the Holy Qur'an.

(3) Which notify an order or direction, about which the Holy Book is totally silent.

6. Dr. Riazul Hasan Gilani, learned counsel for the respondents, maintained that the word `Zani' and 'Zania' meant only unmarried persons, while the punishment of married persons of either sex is to be had from a tradition of the Holy. Prophet narrated by Abadah son of Samit, which was contemporaneous with the revelation of the second verse of Sura-e-Noor, and which is as follows: "Take from me, take from me, verily Allah chalked out a way for them; (fornication of) a virgin with a virgin 100 stripes and exile for a year; and one married with another married, 100 stripes and stoning to death" (Sahib Muslim, Vol. II, printed by Quran Mahal, p. 782 being Haditb No. 1911).

7. According to Al-Jassas's (ahkaam alquraan) Vol. III, p. 257, this belongs to a period prior to the revelation of 24 :

2. I will desist from making any further comments about it at this stage. Suffice it to say, that a command--ment of such vital importance, with such serious consequences, would hardly be revealed only in half, and that too in an ambiguous way, as canvassed. The revelation, as can be seen, is in an unequivocal, and comprehensive terms, inclusive of all classes of men and women. The contention therefore is devoid of all merit and it will be idle to imagine that `Mohsan' and `Mobsanat' had been dealt with elsewhere.

8. The next contention takes us to the so-called (aayat rajm) Shorn of unnecessary details, it is said that there was a verse in the Holy Qur'an which read: Which came to be lost and has become (mansookh alnlawah) (not being read, as it is not there any more). It is said in Musnad-i-Ahmad `Tirmizi' & Abu Daood, that Hazrat Umar made a mention of its existence from the pulpit and none of the companions, who should have known, as to what its implications were, took any objection about the assertion. Tafsir-i-Mazhari, written by Hazrat Allama Qazi Muhammad Sanaullah Usmani Mujaddidi, mention on page 235 that Hazrat Umar, went on to say that he would have got it transcribed on the margin of the Holy Qur'an, if he did not have the apprehension of being accused of making an addition to the text of the Holy Book.

9. A number of Jurists have rejected the authenticity of this Khutba on various grounds; the text of the alleged verse is a tawdry patch on the sonorous and sublime text of the Qur'an; the Qur'an had been systematized in the days of the. Prophet, and properly compiled during the caliphate of Hazrat Abu Bakar; the latter had left a copy with Ummul Mominin Hazrat Hafsa; what is more, God Himself had undertaken to preserve Qur'an and it has ever been the belief of the Ummah that the Holy Book with them, is the same as revealed to the Prophet, in its entirety. So, nothing turns on that either.

10. We are therefore to see, as to what was the punishment, awarded to the married transgressors, during the lifetime of the Prophet--the law as it stands, restricts the scope of our search to the Traditions of the Holy Prophet only.

11. The traditions tell us about 4 instances, which punishment was awarded to the married transgressors, during the days of the Holy Prophet. The case of the Jews (male & female) need not detain us because their clansmen and rabbis bad asked the parties to be judged according to their own judaic law. The old testament prescribed the punishment by stoning to death which was awarded by the Prophet. The matter rests there.

12. The other three reports are about Ma'az Ghamidiyya or Jahiniya and the nomad, who informed the Prophet, as to how his young son, working at the house of his employer was lured by the guiles of the said employer's Wife, into an act of making love with her. This is known as (Hadith-I-Aseef).

13. The versions about Ma'az are conflicting. According to one he bad confessed his own guilt before the Prophet, on 4 different occasions. The traditions record, that once the Prophet turned his face, and enquired, whether he was in his senses. Another time, he gave the impression that he bad not heard him at all. It was when Ma'az persisted and confessed 4 times, that he was ordered to be stoned to death. Ma'az ran away, after be dad been pelted with some stones. He was chased, captured and then showered upon with stones, ending with his death. There are two aspects of the reports which need mention. Some of the traditions show that the Prophet reproached the companion, by the name of Sahll who had complained against Ma'az, saying that he need not have removed curtain from the dark deed. The second, is that mentioned in (Tafhimul Qur'an) by Maulana Maudoodi on page 336 (Vol. III) to the effect that the Prophet chided the chasers as to why they did not allow Ma'az to take to his heels; they had better produced him before him (the Prophet). May be God would have accepted his repentance.

14. The Ghamidiyya woman was pregnant. Her condition was easily noticeable. After the sentence was pronounced, she was ordered to go back i.o her home and await delivery. She came back after that event. She was again sent back for the period, she was to suckle her child. She came again and the Prophet, postponed the execution of the sentence till the child had been acclimatized to meals. She managed to get a piece of bread and demonstrated that the child had got used to it. The Prophet still did not want the child to be left unprotected while an infant. But a companion agreed to assume the responsibility. It was then the sentence is said to have been enforced.

15. As for these (hadis aesef) some inherent doubts have been expressed about the events as narrated. 1t is said, that it was improbable in the extreme that the Prophet would have awarded sentence against the offending woman as soon as informed of the happenings, by the rustic. He must have insisted on verification or confession directly from her, which is not clear from the tenor of the tradition.

16. All these traditions, referred to earlier, admittedly are (Hadith-i-Ahad) emanating from one source. There is also nothing to show, that these pertain to a period, subsequent to the revelation of verse No. 2 of Sura-i-Noor. It is also to be remembered, that the Prophet, and the first two Caliphs, were averse to the narration of traditions indiscriminately, lest these led to schisms and cleavage of Opinions. It is also an admitted fact, that there were hundreds of thousands of traditions in circulation, when the narrators, especially the famous Six, took to the compilation thereof. Imam Bukhari and Imam Muslim are the two most esteemed ones out of them. Imam Bukhari, after an indefatigable search lasting his lifetime accepted only four thousand traditions, compiling them in his Sahib and Imam Muslim reduced the number by about one-fourth. The highest number of traditions emanated from Hazrat Abu Huraira (2 out of the 4 relevant for our purpose are from that source). According to a considerable number of Jurists and writers, he had spent only a period of 2 to 3 years in the company of the Prophet and therefore could not remember and retain the exact words of the 5437 traditions that are attributed to him. Apart from some Orientalists, Muslim Scholars like Ustad Ahmed Ameen Misri and Prof. Mohammad Abu Ruyya who wrote ---azwa ali alsnta almahamdya See; have written some pungent things about some of the prolix narrators, in which Hazrat Abu Huraria has been specially mentioned. That can be left alone. All Jurists however agree that Qur'anic verses (unless symbolic in nature, which is not the case here) being definitive and clear cut are preferable to traditions as a class, which had been transmitted from generation generation, till reduced in writing some 2 centuries later.

17. If the punishment of stoning to death remains in the field, a further difficulty will arise in dealing with such offences committed by "girls from among those whom your right hand possesses" (The captives taken in Jihad) whose punishment is half that for free women. That brings us to verse 25 of Sura-i-Nisa: 4 : 25If any of you have not The means where with To wed free believing women They may wed believing Girls from among those Whom your right hands possess And Allah hath full knowledge About your Faith.

39. Ye are one from another : Wed them with the leave Of their owners, and give them, Their dowers, according to what Is reasonable : they should be Chaste, not lustful, nor taking Paramours : when they Are taken in wedlock, If they fall into shame, Their punishment is half That for free women.

40. This (permission) is for those Among you who fear sin; But it is better for you That ye practise self-restraint And Allah is Oft-Forgiving, Most Merciful.

18. This is the view, taken by modern jurists like Abu Zuhra and Mustafa Zarqa. (See: They maintain that the punishment of adultery, could not be severer than the punishment for murder or Harba (harba) am clearly of the Opinion that the Hadd for adultery by a married person is the one to be found in the Holy Book alone.

19. The next question for consideration is whether it is open to a Ruler or the Head of the State to tag on the punishment of Hadd, with a further punishment by way of Tazir? (Tazir is a punishment left to the Ruler or the Head of a State in his discretion, in a case not covered by Hadd). My answer is in the negative.

20. The punishments, by way of Hadd are for offences, which are deleterious and disruptive of social order. Allah in His Wisdom decided to prescribe punishments for perpetrators thereof, as He deemed fit and proper. Is it open to us, to say, if we want to follow His commandments that it is not enough, and we better add some thing of our own, for the purpose of deterrence? Such a step will be tantamount to flouting the dictates of Allah. A decision or, step to cope up with the problem by some other device and in some other form, is one way, but deviation is not the answer. One has just to fall its line with it. If it is not open to reduce the quantum of punishment, it follows- that enhancement will not be in order. Otherwise whatever else it might be, it is not the Divine Law that is being enforced. The improvement cannot be said to by for the better. It will be for the worse. It has been well said, that if thing is to be done in a particular way it better be done in that particular way or not at all, you cannot approbate and reprobate in the same breath.

21. I have already said, that there was no Tazir for this crime, in the Sunnah of the Prophet. I doubt if it was the Sunnah during the Khilafat-i---Rashida. Assuming it was so one has to compare the setting; the milieu and the mettle of the people then and now. A man could go through polygamous marriages to the extent of 4 wives at a time. Then there were the female captives that could fall to one's lot. There were also the bonds-women The divorcees and the widows also could remarry, and everything else being the same, the right was freely exercised. Their biological needs, were fully appreciated, as will be apparent from an incident I will relate.

22. During the days of his caliphate, it was the practice of Hazrat Umar, to have a daily round of the city of Medina, to acquaint himself with the condition of the populace, and if necessary to help some body in need. One night he heard the sound of some chant coming from the first floor of a house. A lady was pouting out a song. It was a verse, which translated in Urdu, as to be found in Aliama Shibli Nomani's Al Farooq published by Hamid & Co., Urdu Bazar, Lahore reads: The night is dark and getting long and my beloved is not by me that I might enjoy.

23. The rest I will reproduce from the translation of the book in English by Mohammad Salim printed by Sh. Mohammad Ashraf, Lahore pages 229-230: "Her husband bad gone to war and she was singing pathetic songs for his absence. Omar was touched and thought he had done much hurt to the women of Arabia. He asked his daughter Lady Hafsah how long a woman could remain without her husband. She said four months. Next morning the Caliph sent orders throughout the empire that no soldier should be kept away from his family for more than four months."

41. The realities were not glossed over, and if in spite of it, there was a aberration, the chastisement bad to be taken. However it was not flogging with canes, soaked in oil, which when forcefully struck, cuts through the skin and tears the flesh. The instructions were It should be struck in such a way that the armpit should not open. Mostly there used to a book, kept under the arm. Maulana Maudoodi, in his (Tafheem ul quran) Vol. III on page 341 writes, that the fogging used to be done at a cool hour during the summer and at a hot hour during the winter and usually by the Qazi, who knew, that it was being administered not to cause so much pain, as to create notoriety for the dark deed done. If the offender was old or infirm a broom with 100 sticks was considered sufficient, so that just one blow would meet the ends of justice.

24. In the result I hold that stoning to death, whether by way of Hadd, or by way of Tazir, is repugnant to the Injunctions of Islam. The petition is allowed. The parties will bear the costs.

42. JUSTICE AFTAB HUSSAIN, MEMBER.------Shariat Petitions Nos. 59 of 1979 and 62 of 79, both of Lahore, which I propose to dispose of by this judgment, have been filed to challenge the provisions of section 5(2) (a) and section 6(3) (a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which provide for stoning to death a person who commits adultery or rape in case such a person is already married (mohsan or mohsana).

43. The case was argued by the petitioner personally in S. P. No. 62 of 1979, and by Mr. Shamim Abbas Bokhari, Advocate, in S. P. No. 59 of 1979. Mr. Riaz-ul-Hassan Gillani argued in favour of the justification of the provisions about stoning to death in the circumstances referred to above.

44. The government of the arguments on behalf of the petitioner is that the Holy Qur'an provides in verse 2 of Surah Noor (24:2) the sentence of one hundred lashes for all persons, whether adulterers or fornicators, married or unmarried. The petitioner in S. P. No. 62 of 79 confined his argument only to the Holy Qur'an and tried to invigorate them by referring to Surah Nisa verse 25 (4:25) which prescribes half the sentence for a married slave girl. Similarly he referred to verse 33:30 in which the wives of the Holy Prophet were warned that in case of manifest lewdness by them they shall be meted out double punishment. He argued that these verses negative the rather bold assertion that the Qur'an ever conceived the sentence of stoning to death in case of an adulterer who is already married, since such a sentence could neither be halved nor doubled.

45. Mr. Shamim Abbas Bokhari while agreeing with the submissions of the petitioner in S. P. No. 62 of 1979 further added that the word Mohsan or Mohsana has been used in the sense of chaste male or female and not in the sense of married person. He referred to the four incidents in which the Holy Prophet had directed married persons committing adultery to be stoned to death. In one of these cases the unmarried accused was directed to be punished with 100 lashes and to be expelled from the city for a period of one year. According to the learned counsel one of these incidents pertained to Jews and in that case the sentence of stoning to death had been ordered in accord--ance with the Jewish law. Regarding the three other incidents he submitted that they were all prior to the revelation of Surah Noor. In any case these traditions cannot override the sentence as fixed by the Almighty in verse 2 of Surah Noor. He also did not agree about the authenticity of the tradition in which Hazrat Umer is said to have stated that there was a Qur'anic verse about stoning to death of a married person who committed adultery. He argued that the Qur'an is a complete book in which there are specific instances of abrogation of earlier orders. It cannot be conceived that the verse said to have been referred to by Hazrat Umar would not have found place in the Holy Qur'an itself if it was ever revealed. This would amount to suggesting that the Qur'an is not a complete book.

46. Alternatively he submitted that if some verse had been deleted from the Quran, its order could not have remained effective and unabrogated.

47. Mr. Riaz-ul-Hassan Gillani submitted that it is clear from the Qur'an itself that verse 2 of Surah Noor relates only to unmarried persons. Accor--ding to him all the incidents in which the punishment of stoning to death was awarded by the Holy Prophet pertained to a period after the revelation of the above verse. He further submitted that the intention of the Almighty in favour of the punishment of stoning to death is clear from the tradition of Obada bin Samit which itself is a revelation (Wahi Ghair Matlue) and by which a distinction was drawn between the sentence of adulterers who were already married and those who were not married.

48. Mr. Riaz-ul-Hassan Gillani formulated the following points for his arguments :-

(1) Only Kharjis oppose the punishment of stoning to death but all the jurists have repelled successfully their arguments.

(2) The punishment of adultery was introduced gradually, the first punishment being thrashing and life-long confinement. The punishments of flogging and stoning were introduced later.

(3) In Surah Noor (24:2) the reference is only to an unmarried male or female.

(4) All the incidents in which the Holy Prophet punished the culprit with stoning to death accrued after the revelation of the above verse of Surah Noor.

(5) The punishment of stoning is proved from the Qur'an. This is clear from the traditions of Hazrat Umar and Hazrat Imam Jaffar Saddiq though their sayings required explanations.

(6) The sentence of stoning to death has always been considered to be a Hadd.

49. A questionnaire on this issue was sent to several Ulemas namely, Allama Syed Muhammad Razi, Maulana Muhammad Hanif Nadvi, Maulana Syed Pir Karam Shah, Maulana Muhammad Taqi Usmani and Maulana Najmul Hassan Kararvi. No reply to the said question was received from the last mentioned two gentlemen. The other three have given Opinion in favour of rajam being a hadd.

50. It is true that the punishment of offence of adultery was introduced by stages. In Bani Israeel verse 32(17:32) it is commanded "and come not near adultery. Lo! It is an abomination and evil way". This warning was ad--ministered before the migration of the Holy Prophet to Medina, since Bani Israeel was revealed at Mecca. The second order is included in Surah Nisa verse 15(4:15) which was revealed in the 3rd year of Hijra. It is necessary to reproduce that verse as well as verse 16 which succeeds it

(15) "As for those of your women who are guilty of lewdness, call to witness four of you against them. And if they testify (to the truth of the allegation) then confine them to the houses until death take them or (until) Allah appoint for them a way (through new legislation)."

(16) "And as for the two of you who are guilty thereof, punish them both. And if they repent and improve, then let them be. Lo! Allah is relenting, Merciful." '

51. The confinement in the house until death was prescribed for women guilty of lewdness but it was clarified that this sentence would be operative until death or until Allah appoints for them a way.

52. Then was revealed verse 2 of Surah Noor (24:2) which is as follows :- "The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. And let not pity for the twain withhold you from obedience of Allah, if ye believe in Allah and the Last Day.

53. And let a party of believers witness their punishment."

54. It may be recalled that in verse 4:15 there was a promise by the Almighty that a way will be appointed for them later. There is a difference of Opinion on the question as to when this way was shown or how the order of punish--ment in 4:15 was abrogated. According to one view the abrogation was effected by 24:2 in regard to unmarried persons while the order about married women was repealed by the punishment of stoning. Others are of the view that the abrogation of 4:15 was effected by the traditions of Obada bin Samit in which the Holy Prophet is stated to have said :- .

55. "Listen to me take it from me that God has found the way for these women, that the unmarried would be flogged and expelled from their homes for a year and the married ones will be whipped and then stoned to death. This is how the way promised in 4:15 was fulfilled" (Ebkamul Qur'an by Abu Bakar Jassas, Vol. II, page 107).

56. There are a number of traditions according to which the Holy Prophet ordered married persons guilty of fornication or adultery to be stoned to death and the unmarried person to be flogged. The best known examples are as follows :------

(1) The Jews produced before the Holy Prophet a Jew and Jewess who were guilty of adultery. The Prophet asked them about the punishment provided in the Torah. The Jews did not initially state the truth but during the talk with them it transpired that stoning to death was the only punishment though the Jews had changed this punishment arbitrarily. What they did was to acquit influential persons and to punish poor persons in the community. This was resented by the community on which it was decided that a person committing the offence shall be flogged and will be made to ride a donkey with his face blackened. The Holy Prophet acting in accordance with the Torah, directed the culprits to be stoned to death.

(2) Maiz Aslami confessed his guilt of commission of adultery. The Prophet first dissuaded him in various ways from making the confession in order to save him from Hadd but when he persisted in his confes--sion, the Holy Prophet asked him whether he was married. On his reply in the affirmative he was ordered to be stoned to death. When he was being stoned he ran away but was caught and again stoned till he died. When this was related to the Holy Prophet he commented that he should have been allowed to go.

(3) A lady (Ghamadya) confessed her guilt and said that she was pregnant as a result of commission of the offence of adultery. The Prophet asked her to return after the birth of the child.

57. When she came back after the birth she was asked to suckle her child till the required age up to which feeding on mother's milk was allowed. She was so insistent that she returned again after her child started living on bread. She was then stoned to death.

(4) Two persons came before the Holy Prophet. One made a complaint and asked for decision according to the Book of Allah. He said that his unmarried son was acting as a labourer in the others' house where he committed adultery with the others' wife. The boy was threatened that he would be stoned to death. To appease the complainant he had given one hundred goats and one female slave girl to him but after sometime he heard that his son could be punished only by flogging. He asked the Holy Prophet to decree the matter according to the Book of God which he promised to do. The Holy Prophet directed the restoration of goats and the female slave girl to its previous owner and ordered the boy to be flogged with hundred lashes and to be expelled for one year while he directed the woman to be stoned to death in case she confessed her guilt. She was really stoned to death on the basis of her confession.

58. This is the tradition known as `Aseef'.

59. There is one another case related by Maulana Maudoodi in Tafheem---ul-Quran, Vol III, in his commentary on Verse 2 of Surah Noor: "It is reported by Jabir son of Abdullah (see Abu Daud and Nisaee) that a person committing adultery, was punished with whipping only but when it was found that he was married, he was stoned to death." (Also see Abu Dawood, Vol. III, Hadis 1029).

60. There is an instance from which it appears that Hazrat A.I punished Shuraha first to flogging and then to stoning. She was whipped on Thursday and stoned to death on Friday. This sentence was passed against her only on the basis of her pregnancy. (Bokhari, Vol. III. Hadis No. 1716, p. 631).

61. There is also difference of Opinion on the question whether the incidents in the lifetime of the Holy Prophet occurred before or after the revelation of Surah Noor, Verse 2 (24:2).

14. Now reference may also be made to Surah Nisa verse 25 (4:25) and Surah Ahzab verse 30 (33:30). These two are as follows:--- 4:25 "And whoso is not able to afford to marry free, believing women, let them marry from the believing maids whom your right hands possess. Allah knoweth best (concerning) your faith. Ye proceed one from another, so wed them by permission of their folk, and give unto them their portions in kindness, they being honest, not debauched nor of loose conduct. And if when they are bonourably married they commit lewdness they shall incur half of the punishment (prescrib--ed) for free women (in that case). This is for him among you who fearth to commit sin. But to have patience would be better for you. Allah is Forgiving Merciful."

62. 33:30"O, ye wives of the Prophet, Whosoever of you committeth manifest lewdness, the punishment for her will be doubled, and that is easy for Allah."

63. It was on the basis of these verses that it was argued that if the sentence of Rajm or stoning had been a hadd, these two verses could not be reconciled with it since the sentence of stoning to death can neither be halved nor doubled.

16. The first question is whether the punishment of stoning is provided in the Holy Qur'an. The learned counsel for the Federal Government argued in support of the proposition. He referred to the words (alzani) and (alzania) in 24:2 and submitted that the prefix is used in Arabic to convert a word into a proper noun. The prefix in (alzani) and (alzania) pointedly refers to some other verse and this verse according to him is verse III of Surah Noor (24:3)

64. "The adulterer shall not marry save an adulteress or an idolatress, and the adulteress none shall marry save an adulterer or an idolater. All that is forbidden unto believers." in which also words (alzani) and (alzania) have been used. He also referred to a passage at page 166 of Mushkilatul Qur'an by Maulana Anwar Shah Kashmiri in which he states that in verse 24:2 the reference is to unmarried persons who are directed by 24:3 to marry adulterers or adulteresses.

65. The learned counsel could not however explain how the prefix can be explained in 5:38 which provides that as for the thief, both male and female, cut off their hands. The verse uses the word (alsarqa wul sarq) with prefix. Similarly he could not explain to which particular camel the verse, (afla ynzroon ila ilibl kaif khalq) refers since the word (camel) is preceded in that verse by the prefix al.

66. The definite article is used in Arabic to convey several meanings:

(1) To define the genus or species of a thing. It is called (tareef aljins) For example man is better than woman or i.e. (alrjl khair man almrat) the species of man is better than the species of woman.

(2) To point out a particular thing which is understood by both addressor and the addressee. It is called (tareef al ehd) For example (ma fail alrjl) (What did the man do?)

(3) To include all possible kinds of a thing. It is called (istraq) For example (athar allahAll (kinds of) praises and thanks belong to Allah.

(4) It is also used in the sense of (relative pronoun). According to Imam Razi (d. 606 A. H./1210 A. D.) and Allama Zamkhshari (d. 538 A. H/1114 A. D.), the definite article used in verse 2 of Surah al-Noor has been used in this meaning. Zamkhshari says Zamakhshari, Al Kashshaf (Printed in Beirut), Vol. 3 (pp. 208, 209). Fakhruddin Razi, Tafsir-i-Kabir (printed in Cairo), Vol. 23, page 130. This is the correct view. The argument is without force.

67. The reference to 24:3 does not solve the problem, that verse refers to marriage between an adulterer and an adulteress but it is not necessary that marriage should be only between persons who had never married before.

68. The direction may equally apply to an adulterer having less than four wives who has a right to marry a fourth one. Similarly the adultress may be a widow. Or again the male and female both may be divorced persons. It would not therefore, be correct to say that 24:3 relates only to persons who have committed adultery during virginity or when they were (unmarried).

69. Before proceeding further I may clarify this definition of Mohsan so far as it concerns this case.

70. Mohsan for whom the punishment of stoning is prescribed by Hadith is defined in Fiqh as a person who has once married legally and had validly retired with the spouse. If he separates from the s spouse. Or becomes a widower or had no opportunity to meet her for several years he would still be a Mohsan (married) liable to the punishment of Rajam.

71. But the criticism of Rashid Raza on this point is enlightening. While dealing with the interpretation of the word Walmohsanat in verse 4:24 (the first word of Part: 4 of the Holy Qur'an) he writes that it is the plural of the word Mohsina According to the general version the word is derived from Ahsanr.

72. But Kasai reads it as Mohsina and the word AI-Ahsan is derived from Hasana which means a protected place where entry is banned. And it is said the word Hasonat-ul-Maraa is used in the sense of a pious woman. These words are used in relation to a woman who is married since she comes in the protective custody of a man (her husband) and it is said that as soon as she is married her parents make her Mohsina, It is one of the characteristic of a married woman that she forbids herself to all others except her husband in the same manner as she prohibits her husband from going to other women (except his wife) At page, 20 while dealing with the word Mohsanat at the end of verse 4:25, which deals with the punish--ment of adultery committed by a married slave girl that it would be half of those who are Mohsanat he refers to the view that a woman becomes Mohsina when she is once married though she might have been divorced or becomes a widow later. But he does not agree with this view since she cannot have the advantage of being called Mohsinah if she has no husband who can protect her, Once she is separated in the manner aforesaid she cannot be called Mohsina in the same manner as she cannot be called Motazawwija (married), or as a traveller who has returned from his journey can no more be called a traveller or again a patient who regains his health can no more be known as patient. Rashid Raza further criticizes those who cannot A1-Mohsinat (1) with virginity. According to him her protection (after divorce or widow--hood) is dependent upon her own nature which may fortify her against mixing with men, but this cannot be an equivalent of fortification or protection of one whose marriage subsists. He is of the Opinion that in these circumstances a divorcee lady or a widow should not be administered the punishment of a person whose marriage subsists. In respect of punishment she is like an unmarried, person. He writes that according to his research some of the Arabs in Yemen punished virgins as well as married women with death if they committed adultery but they punished widow or divorcee neither with death nor with whipping since they considered them helpless in this respect.

73. The wide interpretation of the word Mohsana is not in the Hadis since there appears to be no data to show that Maaiz or Ghamadi were without wife or husband respectively when they committed the offence. The Opinion of Ayat-Ullah Shariat Madari (see his Tawzihal Masail page 468 also appears to be the same since he limits the sentence of Rajam to cases of married persons whose marriage subsists.

74. According to Mulla Fateh Ullah Kashani (vide Manhaj-ul-Sadiqin, Vol. VIII, p. 266) Muhsan/Muhsana means a, person who is properly married and who is in a position to enjoy the company of the spouse. It appears from the Opinion of Allama Syed Mohammad Razi that fiqh Imamia does not recognise a person as Muhsan whose spouse is not with him/her. This view which is supported by Rashid Raza appears to be more reasonable.

75. Attempts to prove from the Holy Quran that Verse 24:2 applies only to unmarried persons has been made by others also. Maulana Maudoodi in his commentary on verse 2 of Surah Noor (24:2) referred in this connection to Verse 25 of Surah Nisa (4:25) which provides for a married slave girl half the sentence prescribed for a Mohsana. The word Mohsana has been used twice in this verse in the sense of free woman. The verse says that whosoever is not able to marry among free woman () let him marry from among the slave girls and if she then commits lewdness she shall incur half the above punishment prescribed for free women verse 4:25 has been similarly interpreted by Ibn Qutaiba, Qurtabi (Vol. V, p. 145) Fakhruddin Razi (Vol. 10, page 60) and Abdul Majid Daryabndi. The same interpretation is found in' Madarik and. Mualam-ul-Tanzil. Peer Karam Shah holds the same view in his book Sunnat-e-Khair-ul-Anam, p. 238.

76. The argument of Maulana Maudoodi and the commentators mentioned above is that the word Mohsanat at both the places should be interpreted not only as free women but as free women who are unmarried. It would follow that the sentence prescribed in 24:2 is for unmarried free women only.

77. I may also refer to the other argument of the learned counsel with reference to verse 43 of Surah Maida (5:43) which is as follows :- "How come they unto the for judgment when they, have the Torah wherein Allah hath delivered judgment (for them)? Yet even after that they turn away. Such (folk) are not believers."

78. Relying upon this the learned counsel argued that the reference to Hukamullah (order of Allah) in this verse is to the punishment of rajam (stoning) and Quran therefore, recognizes Rajam as a punishment ordained by Allah. In Adwar-i-Fiqh by Muhammad Shahabe Khorasani, 2nd Edn., p. 251, this view is attributed to Imam Baquir too that the punishment of stoning in Torah was never abrogated and remained enforceable in Islam.

79. Even this argument would not be relevant since there is no doubt that being prescribed in the Torah as a punishment for adultery it was a punish--ment ordained by God. But it cannot mean that it is a punishment in Qur'an also for a married adulterer. In the Torah no distinction was made in regard to punishment of an adulterer whether he was married or unmarried. The distinction is recognised for the first time in the tradition of Obadah bin Samit which according to eminent jurists was abrogated by verse 24:2 and that verse was repealed by the practice of the Holy Prophet in the cases in which married adulterers were subjected to the sentence of stoning. This argument is not strong enough to dislodge the inference to the contrary which is inherent in the above verse (5:43) which makes pointed reference to the incidents in which the Jews approached the Holy Prophet for trial of adulterers-among them so as to emphasise its applicability to the Jews only.

80. An argument on which the sentence of Rajm is treated to be one pres--cribed by the Holy Qur'an is a tradition of Hazrat Umar. It is said that Hazrat Umar showed an apprehension that there might come a time when people may deny the existence of the punishment of Rajm in the book of Allah and they might give up the practice of stoning of an adulterer to death. He said that a verse pertaining to Rajam was revealed to the Holy Prophet which "we recited and committed to memory". The Holy Prophet stoned (culprits) and after him we also stoned. "He recited the verse as (If a man and woman of advanced age commit adultery, stone them).

81. According to a tradition narrated by Imam Ahmad Hazrat Umar saru in a sermon that people say that the order of rajm is not in the Book of Allah ; the only order in the Book is of whipping. If he had not been afraid of the charge that he had made an addition to the Qur'an he would have written this verse in the Book.

82. The Jurists have mostly relied upon this tradition obviously, for holding that this was a verse in the Qur'an which has been deleted from it but the order in it remains effective for all times to come.

83. This is a very strange argument. There are instances of repeal and abrogation of verses in the Holy Qur'an. According to some the number of such verses may be more than five hundred, according to others it is nineteen but in the Opinion of Shah Waliullah there are five verses of this type. The fact, however, remains that there are instances of abrogation but the abroga--petition in the sense of an abrogated verse becoming totally ineffective is capable of being illustrated. Any concession about certain verses having been deleted from the Qur'aa would logically amount to conceding its absolute abrogation and its order having become totally ineffective and inoperative.

84. It is difficult to agree that the order in a verse deleted from the Holy Book would remain operative.

85. To the same effect in the view of Maulana Ameen Ahsan islabi in Tadabbarul Qur'an vide his commentary on Surah Noor, Verse II. He is of the view that this tradition appears to have been forged by some unbeliever in order to prove that Qur'an is not a complete book and consequently the promise of God guaranteeing its protection for ever is not true. According to him the language of the tradition referred to above is not similar to that of Qur'an and very unlike even the language used by the Holy Prophet.

86. Moreover the words (alshaikh) and (alshaikht) mean an old man and an old woman and not a married man and a married woman though in Mowatta of Imam Malik is recorded the Opinion of Imam Malik that they are used to convey the sense of married man and woman. But it is not necessary that all persons of advanced age should marry.

87. At page 101 of Volume V of Kitab-ul-Fiqh alal Mazahibul arba'a the words (If a man and a woman of advanced age commit adultery stone them both, and exemplary punishment from Allah) are said to be words of the Holy Prophet.

88. There is another tradition from Abdullah bin Abbas that Hazrat Omar used to say that stoning is in the Book of Allah. It is true that the adulterer whether male or female will be stoned if he is married provided the adultery is either proved by evidence or by pregnancy or by confession (Mowatta, Imam Malik, printed by Islami Academy, p. 598). alshaikh wal alshaikht iza znya far jmooha altba At p. 120 of Vol. I of Kitab-ul-Fiqh alal Mazahibil arbaa there is an addition of the following words after the above-mentioned words (as penalty for the enjoyment) but in Al Hadis by Alhaj Fazal Karim, Vol. 2 the addition after the word (an exemplary punishment from Allah, and Allah is Powerful and Wise). Thus even the language of the alleged verse is not uniform. It is also incredible that if these words were ever part of the Qur'an theyl, should have been known to Hazrat Omar only.

89. At least one thing is evident from these traditions that in the time of Hazrat Omar too when most of the Companions of the Holy Prophet were alive it was widely believed that Rajm was not provided for in the Holy Qur'an (Book of Allah) and the sentence of whipping was the only punish--ment for adultery. It would therefore be incorrect to say that Kharjees were the first to deny the divine nature of the command in respect of rajm. The prevalence of this Opinion during the reign of Hazrat Omar is proof against Rajam being a Qur'anic Hadd. This finds support from the ttadttton of Hazrat A.I to which reference will be made later.

90. It cannot be accepted that a person of Hazrat Omar's courage and dauntlessness who was noted for expressing his views fearlessly even before the Holy Prophet would be afraid of adding a verse to the Holy Qur'an which according to him was a part of it. In fact it should already have been incorporated in the Qur'an by Hazrat Umar and other Companions who had helped in the compilation of the Qur'an during the Caliphate of Hazrat Abu Bakar.

91. The story of Compilation of the Qur'an may be, reproduced from AI-Farooq by Shibli Nomani: "It cannot be denied that the compilation and arrangement of the Qur'an, the preparation of its correct copy in order to guard against (tamper--ing) and (diffusion of its message) by making its study necessary in all countries; every thing was the result of vigilance and care of Hazrat Umar. It is a fact that the Holy Qursn had not been compiled during the period of Holy Prophet. Its various parts were with various Companions. Some of them were written on (shoulder) bones (of big animals) others on the leave of date trees and still other on stone tablets. No one had memorised the entire Qur'an. Some persons remembered one chapter while the others remembered the other.

92. In the battle with Muslima the liar (Kazzab) during the reign of Abu Bakar hundreds of Companions including those who had memorised the Qur'an had been killed. After the War Hazrat Umar approached Abu Bakar and said: "if those who know the Qur'an by heart die in this manner, the Qur'an will be lost". It was, therefore, necessary to arrange and compile it. Hazrat Abu Bakar said "How can I innovate something which was not done by the Prophet of Allah". "Hazrat Umer argued before him the necessity and expediency of this action till Hazrat Abu Bakar agreed with him. Most of the work of writing revelations had been conducted from among the Companions of the Holy Prophet by Zaid bin Sabit. He was, therefore, called and commissioned to carry on this project and to collect the verses or chapters of the Qur'an from all sources available. Hazrat Umar made an announcement in the common assembly that whoever had learned any portion of the Qur'an from the Prophet of Allah should take it to him. It was arranged that whenever any verse was presented by any Companion, it was subjected to scrutiny by the evidence of two other persons who had seen it being scribed during the lifetime of the Holy Prophet. When all the chapters were thus collected some Companions were appointed to supervise the writing of the Qui an in one Book."

93. The author has given details of a number of steps taken by Hazrat Umar to make the reading of Qur'an common and universal. He writes at page 413 that Hazrat Umar ordered that every one should learn at least the main chapters of the Qur'an which contained orders and duties I.e. The Cow (Chapter II). The Women (Chapter IV). The Table Spread (Chapter V) and The Light (Chapter 24). The Surah Noor (The Light) was one of the Chapters which it was necessary for every Muslim to learn and it is in verse 11 of this Chapter that the punishment of adultery is given. It is also well known that Hazrat Umar fixed 20 Rakats of Taravih during the Esha Prayer in Ramazan so that the whole of the Qur'an may be recited in it during Prayers. Moreover the copy of the Holy Qur'an compiled by the first Caliph according to one tradition remained in the custody of Ummul Momineen Hifsa who was daughter of Hazrat Umar. According to another tradition reported in Bokhari in Kitab Fazail-ul-Qur'an from Zaid bin Sabit this copy remained in the custody of Hazrat Umar during his Caliphate and passed on to his daughter after his death. Tairkh-e-Afkark-o-Ulume Islami by Muhammad Raghib Altabakh translated by Iftikhar Ahmad Balkhi, pp. 118,

121. Hazrat Umar himself became the Second Caliph only 7). Years after the death of the Holy Prophet. In view of this it is not lelieveable that Hazrat Umar would not incorporate the verse about Rajam in the Holy Qur'an if it was actually a part of the Book of Allah. It cannot also be believed that he would shirk his duty of adding to the Qur'an what was p p of it, merely on apprehension of public criticism. He was a leader an guide par excellence and would rather guide his subjects than keep the Boo of Allah incomplete for fear of criticism. In fact at that time when the Companions of the Holy Prophet were alive unanimity could have been achieved for the addition of this verse if it had been a part of the Qur'an. I am therefore, in full agreement with the criticism of Maulana Amin Ahsan Islahi. Even the Commentators of the Qur'an, prominent Jurists and Ulema do not treat that verse as a part of the Qur'an. They have found it a more convenient contrivance to discover a strange principle of the divine order remaining in force notwithstanding the abrogation and effacement of the verse from.The Holy Qur'an.

94. The words attributed to Hazrat Umar have been criticized in Tadwin-e-- Qur'an (pages 75, 76) which is based on the views of Maulana Manazir Ahsan Gilani, written by Molvi Ghulam Rabbani.

95. Allama Allusi has criticised this at page 70 of Volume 18 by Ruhul Ma'ani, "And people have gone to the extent that they treat this verse 24:2 as having been abrogated by the verse recitation of which is abolished but its command is in force". Ibn-e-Hamam says that if the abrogation be by certain and final Sunnah it would be more approved than the abrogation by the verse stated above, because it is not definitely proved that it is Qur'an and its recitation was stopped. If it is said that Hazrat Umar mentioned it before the people and they kept quiet, there is a difference whether there can be Ijma by silence and if we assume this to be a definite argument we are not sure whether all the Companions having the capacity of Ijtihad were present there (zanee). There is no doubt that the source of this verse which is taken to Umar is conjectural. For this reason A.I said in the matter of Shuraha that she was whipped according to the Book and stoned according to Sunnah and he did not believe in cutting off the generality of the verse by the principle of abrogation. His Opinion is that stoning is an order in addition to whipping in respect of married person and this is proved from Sunnah".

96. At page 320 of Adwar-i-Fiqh by Mahmood Shabahe Khorasani, Vol. I, Ed. 11, is cited an interesting view of Abu Muslim that the offence of adultery is punishable with death vide Verse 4:20 (In Pickthall's Translation it is Verse 4:16). This verse commands.

97. (As for the two of you who are guilty thereof torment them). According to Abu Muslim the word (torment them) means killing, and this command has never been abrogated. But Hasan Basri is of the view that the order of torment in 4:16 is prior to the order of confinement of women in 4:15 and stands abrogated by the order of flogging. Various attempts have thus been made to show that Rajm is in the Koran.

98. According to Hazrat A.I on the other hand, stoning is the Sunnah of the Holy Prophet. The relevant Tradition No. 1716 of Bokhari, Vol. 3 printed by Muhammad Saeed & Sons, at page 631 is as follows :- -- "Adam, Sha'aba bin Kohail, Sha'abi narrate from Hazrat A.I that when he (Hazrat A.I) stoned a woman on Friday he said "I have stoned her in accordance with the Sunnah of the Prophet of Allah."

99. Some commentators also are of the view that whole the sentence of flogging was prescribed by the Qur'an for unmarried persons the sentence of stoning was prescribed by Hadith. Maulana Abdul Majid Deryabadi in his commentary of Verse 4:15 says that some days after the revelation of that verse Surah Noor was revealed and specified the sentence of one hundred whips for an adulterer and adulteress but the Sunnah of the Holy Prophet clarified that this punishment was for unmarried persons while for the married persons the punishment is of stoning. In support he refers to Ma'alim that Verse 4:15 was revealed before the Hadd was prescribed. This was abrogated by the order of whipping and stoning while whipping is in the Qur'an, the stoning is in the Sunnah.

100. The view of Zahiris Zaidya, Shias and, according to one version, of Imam Ahmad is that Verse 24:1 applies both to married and unmarried persons and stoning is proved from Sunnah, Tilka Hudood Ullah by Ibrahim Ahmad Alwaqfi, p. 55, Qartabi, Zailai and Allama Alusi share the same Opinion.

101. Qartabi's Al-Gamial Ehkam UI Qur'an, Vol. 5, p. 87, Zailais' Tabeen-al-Haqaiq fi Sharat Kan'zul Daqaiq, Vol. 3, printed in Egypt, 1313 H. Edition, p.

169. Ruh-ul-Ma'ani, Vol. 18, p. 73 by Alusi, Kbizri Bak also holds the same view (see his Tarikh-i-Fiqh, p. 129).

102. I am of the view that stoning of a married person committing adultery is not proved from the Holy Qur'an nor does Verse 24:2 discriminate between a married and an unmarried person in respect of Hadd.

103. Abdullah Yousuf A.I is of the view that while 4:15 does not refer to adultery or fornication but only refers to crimes against the order of nature between women, 4:16 refers to unnatural offences between the males, The sentence of whipping is however, both for adultery (illegal relations between married persons) and. For fornication (similar relations between unmarried persons). The view of Allama Yousuf A.I about the scope of 4:15, 16 is not, according to Tafheemul Qur'an, an original view; this was the view of Abu Muslim Isfahani who in his commentary wrote that the first verse, 4:15, was about lesbianism while the second one, 4:16, was about homosexual relations between males. Maulana Maudoodi disagreed with the commentary. According to him the companions of the Holy Prophet did not apply the second verse to homosexuals. Another Opinion is that Verses 4:15 and 4:16 conceived of sexual offences which fell short of adultery. I however, agree with the general Opinion that the verses refer to adulterers. In the historical context the first step which was taken by the Holy Qur'an was to denounce adultery, which was rife; amongst Arabs, as abominable, vide Bani Israeel, Verse 32 (17:32). The second step of sentencing to confinement (4:15) and causing torment (4:16). The next question is whether rajam was prescribed as hadd by the Sunnah of the Holy Prophet.

104. There is the tradition of Obada bin Samit." He reported that the Messenger of Allah said: "Take from me, Take from me." Verily Allah chalked out a way for them; (fornication of) a virgin with a virgin- -100 stripes and exile for a year: and one married with another married-100 stripes and stoning to death", (Muslim Printed by Qur'an Mahal, Vol. II, p. 782 (Hadis 1911).

105. There is another tradition reported from the same source and printed at page 783 of Muslim (Hadis 1911) in which Obada bin Samit is said to have stated that when the Messenger of Allah received revelation (wahi) he used to feel some hardship which changed his colour. Before saying the words (in the above Hadis No. 1911) "he had undergone the same hardship". The object of this tradition is that the Tradition No. 1911 in Muslim also amounted to a revelation though it was not a part of the Holy Qur'an.

106. There is a difference of Opinion whether the words in the tradition of Obada bin Samit were uttered by the Messenger of Allah contemporaneously with the revelation of Surah Noor (or soon after) or they were uttered before the revelation of Surah Noor (24:2). The question is important since in case of contemporaneousness the tradition may be an interpretation of the verse and the latter may be held applicable to unmarried persons only. But in case it is prior in time its order will be considered to have been abrogated by the order in the Verse (24:2) and the Hadd for married and unmarried both will be flogging.

107. The learned, counsel for the Federation was of the view that the revelation of the words in the tradition of Obada bin Samit coincided with the revelation of Surah Noor as an explanation by the Almighty Allah of Verse 24:2. In support of this he referred to the Opinion of Imam Shafi, in Ahkam- ul-Quean printed in Beruit, Vol. I, pages 304 and 305. The purport of this is "that the punishment in 4:15, 16 about confinement in the house and causing pain to the adulterers was abrogated in respect of each category of adulterer, free or slave, unmarried or married by the hadd imposed by Allah, and the hadd was imposed by Allah on the unmarried free persons by verse 2 of Surah Noor (24:2). In the tradition of Obada-bin-Samit reference is to the Verse 4:15 "till either the death overtakes or a way is proclaimed by Allah". When the verse about hadd was revealed (24:2) the Messenger of Allah said "take it from me." Allah has chalked out a way for them. (Fornication of) a virgin with a virgin (is punishable by) a hundred stripes and expulsion for a year; (adultery by) a married with a married person (shall be punished by) a hundred strips and stoning. In support of stoning of the married person and abrogation of the punishment of stripes from him is the hadis of Umer and hadis of Abu Huraira and Zaid-bin Khalid that when a man committed adultery with the wife of another person the Messenger of Allah said he would decide the dispute between them (i.e., between the husband of the woman and the father of the boy who had committed adultery) according to the Book of Allah. He punished the boy with hundred stripes and expulsion for a year and ordered the woman in. Case she confessed the crime to be stoned. She was actually stoned on her confession."

108. This view that Verse 4:15 was abrogated by Verse 24:2 is also expressed by Abu Daoud at the end of Hadis No. 1007 at page 376 of the third volume printed by Muhammad Saeed & Sons. To the same effect is the note of Maulana Waheed-uz-Zaman (translator of Sunnan Abu Daud) which is according to an Opinion of Imam Abu Hanifah. Zamakhshris' Al-Kashaf Vol. 3, page 48.

109. It appears from Tafheem-ul Qur'an of Maulana Maudoodi also that the hadd of flogging in Verse 24:2 was revealed in pursuance of the promise made in Verse 4:15 to show the other way to deal with the offence of adultery. From this it can be deduced that according to Maulana Mandoodi verse 4:15 was abrogated by Verse 24:2. Maulana Abdul Majid Daryabadi also agrees with this view.

110. The view of Imam War Sadiq on this point is not clear but it appears that according to him the abrogation of Verse 4:15 was by the order of stoning a married person and flogging an unmarried one, see Tafseer--e-Mutaqeen on Verse 4:15 printed by Shia General Book Agency. The commentator has referred for this view to Tafseer-e-Safi, page 105 and Tafseer-e-Eyashi. The view of Maulana Mahmood-ul-Hassan is also vague in this respect since according to his commentary of Verse 4:15 that verse was abrogated by Surah Noor which provided for hundred stripes for unmarried woman and stoning for a married one. It has already been seen that the Holy Qur'an does not make any provision of stoning.

111. The other view that the tradition of Obada bin Samit was much earlier in point of time than the revelation of Verse 24:2 is held by a number of Jurists who are of the view that the order in 4:15 was abrogated by this tradition and not by Surah Noor Verse 2. At page 107 of Ehkam-ul-Qur'an Vol. 2 and at page 257 of the 3rd Vol. Of the same book by Abu Bakar Jassas is recorded the difference of Opinion on this point. He states that according to some jurists the verses providing for confinement of women and severe treatment (4:15, 16) were abrogated by Surah Noor (24:2) in so far as the punishment of flogging was provided for unmarried persons but in regard to married women the order of imprisonment remained in the field which was later on repealed by the order providing for stoning. The other renowned jurists said that Verse 4:15 was abrogated by the tradition of Obada Bin Samit in which the Messenger of Allah said "take it from me. Allah has chalked out a way for them (qad jal allah lahn seela) which is the same promise as made in Verse 4:15. He states that this view is correct because Surah Noor bad not been revealed by that time. The same view is held by Sarkhasi. He says :- "In the beginning the order was to confine in the house and to torture . . . . . . . . Then it was abrogated by the Hadis of Obada bin Samit' take it from me Allah has chalked out a way for you- unmarried with unmarried-punish them with one hundred whips and exile them for a year and if married commit adultery with a married one hit them with hundred whips and stone them' and this happened before the revelation of Surab Noor for the reason that (the Prophet said) 'take it from me'. If it bad been after the revelation (of the Surah 24:2) he would have said 'Take it from Allah'.

112. This order (Hadis) was abrogated by the order of flogging a hundred times". See Mahsat of Sarkhasi, Vol. 9, page 36."

113. Ibn Qudama who belongs to Hanbli School of thought also states in Mughni, Vol. 9 page 3 that Verse 4:15 was abrogated by the tradition of Obada bin Samit. He then adds as follows :- "And the question (is) how Sunnah can abrogate Qur'an. Those who believe in its lawfulness say that all this is from Allah whatever different avenues may have been adopted. But those who do not consider it lawful and do not accept the proposition say that there is no abrogation of the Qur'an (by Hadith)."

114. The argument of Sarkhsi is that in the tradition of Obada Bin Samit the Holy Prophet said "take it from me". If it had been after the revelation of Surah Noor he would have said "take it from Almighty Allah". I would add that reference in this tradition to the promise made in Verse 15 of Surah Nisa (4:15) or "Until Allah appoint for them a way" further proves that the Hadith must have been an inspiration in fulfilment of this promise and must have been prior to the revelation of Surah Noor, since, it starts with the words 'take it from me' Allah has chalked out a way for them. It also proves that the way promised in 4:15 was disclosed in the tradition of Obada bin Samit.

115. Same comments are given on this Hadith in Sharah-uz-Zailai-alal-matan Vol. 3, page 173 which is quoted in Nizam-ul-Tajreem-wal Iqab fil Islam by A.I Eli Mansoor. The view that Hadis of Obada bin Samit was prior to the revelation of Surah Noor is more reasonable.

116. Sarakhsi then adds that after the revelation of Surah Noor the order of whipping remained applicable to unmarried persons while the order of stoning continued in respect of married persons.

117. According to Sharah-uz-Zailai-alai-matan (shrah alzeelei ali almtn) the tradition of Obada Bin Samit was repealed by Surah Noor, Verse 2. But the order in that verse about flogging was abrogated by the stoning of Ghamidia and Maaiz both of whom were married persons.

118. The Arabic text to this effect is as follows :----- The Opinion of the majority is that the Hadis of Obada bin Samit stands abrogated by the principles laid down in the incident of Maaiz. Fathul Bari, Vol. 12, page 119. The view of Allama Alusi is that the order in Verse 24:2 is general and is applicable to married and unmarried persons alike but in respect of married persons it was abrogated by order of Rajam practised by the Holy Prophet.

119. Ruh-ul-Ma'ani, Vol. 18, page 70.

120. I may again refer to Ehkam-ul-Qur'an by Jassas. His view about the Hadis of Obada bin Samit being prior in time to Surah Noor has already been noticed. According to him this is an argument in favour of abrogation of the Qur'an by Sunnah. At pages 255--257 of Vol. 3 of his above--mentioned book he has referred to several views. The first is that the order in Verse 4:15, 16 was abrogated by Verse 24:2 in respect of unmarried persons only. In respect of married persons it was abrogated by the tradition of Obada bin Samit. Now this Hadis is about both i.e. Unmarried and married persons and Jassas held the Hadis to be prior to verse 24:2. In view of the Opinion about partial abrogation he concludes that the order of exile in the Hadis was also abrogated by the above verse and consequently exile ceased to be a Hadd and can be administered now by way of Tazir only.

121. He refers to the view that Verse 4:15 deals with married women who were ordered to be confined while Verse 4:16 directing the culprits to be tortured is in respect of unmarried persons. Verse 24:2 only abrogated Verse 4:16 which pertained to unmarried persons. The order of confinement in Verse 4:15 remained in force till it was abrogated by the order of stoning in the Hadis of Obada bin Samit.

122. This last argument is too mixed up and ignores firstly the question whether the Hadis of Obada proceeded or succeeded Surah Noor; and secondly the language of the Hadis and that it pertained both to married and unmarried persons. If it was prior to Surah Noor and one verse in Surah Nissa (4:15) referred to married persons, and the other (4:16) referred to unmarried persons, the order in both the verses must undoubtedly have been substituted by the order in the Hadis. This argument does not justify the limitation on verse 24:2 that it is applicable to unmarried persons only. Maulana Maudoodi did not agree with this view which he ascribed to Suddy see Tafheem-ul-Qur'an Verses 4:15, 16.

123. There has been some difference of Opinions on the question whether the incidents in which the Holy Prophet sentenced married persons with stoning preceded Surah Noor or followed it. One view is that all these incidents were prior to the revelation of Surah .Noor. The other view which is to the contrary is based inter alia on the ground that according to Bukhari, Abu Huraira was present at the time of the incident of Aseef, While Surah Noor was revealed from the 4th to 6th Hijra, Abu Huraira was converted to Islam and became a companion of the Prophet in the 7th Hijra. Imdat UI Qari, Vol. 23, page 291. Fathul Bari by Ibn Hajar Asqalani, Vol. 12, p,.

119. It was also argued before us hat in the incident of the Ghamidia a stone was thrown on her by Khalid bin Waleed and he became a convert in the 8th Hijra.

124. The last argument does not appear to have been noticed by com--mentators. Moreover there is no unanimity as to when Khalid was converted to Islam. According to the book "Sword of Allah" by Maj. --Gen. A. I. Akram page 78, the year of conversion of Khalid is the 8th Hijra but according to Tabari, Khalid bin Waleed had already accepted Islam before the treaty of Hudaibia which was written in the 6th Hijra Ibn Saad in his Tabaqat says that there are two versions as to who was sent by the infidels of Mecca with a contingent of two hundred persons to Hudaibia before the treaty.

125. According to one version he was Khalid bin Waleed but according to the other the person commanding the contingent was Ikrama bin Abu Jahl. Nothing therefore, turns on this argument.

126. The assumption that Abu Huraira was present at the time of incident of Aseef is based on the version narrated in Bokhari that Abu Huraira and Khalid narrated (qala lana) (and said we were present) similar narration is in Tirmizi and Ibn Maja. But these words are not reproduced in Muslim or some other books including Mishkat. This creates doubt about the authenticity of the above version in Bokhari. It appears to me that the boy must have been sentenced to flogging and exile both in accordance with the direction in the tradition related by Obada bin Samit which was abrogated by Surah Noor. The incident of Aseef in a probability was prior to the revelation of Surah Noor. I find support for this from Musnad Imam Azam printed by Hamid & Company. At page 161 it is recorded that this incident was of early Islam as Baihaqi has said. The words in Bokhari cannot be relied upon in favour of the argument to the contrary. Than there is the Hadis of Abdulla bin Aufi which throws doubt on these incidents being later to Surah Noor. He said that the Holy Prophet inflicted the sentence of rajam. When asked whether it was before Surah Noor or after, he said he did not know.

127. If the incidents related to a period before the revelation of Surah Noor, the order in them should be taken to be abrogated by Verse 24:2 since a later verse in the Qur'an can abrogate Sunnah.

128. Assuming, however, that at least some incident was later to the above verse the question would be about its effect. One view is that the Hadis in the form of the practice of the Holy Prophet would abrogate Verse 24:2 to the extent of applicability of its command to married persons.

129. The problem, therefore, becomes crystallised in the question whether the Holy Qur'an can be abrogated by the Sunnah, Those who are in support of this rely upon the following verse: 59:7 " . . . . And whatever the messenger giveth you, take it and whatsoever he forbiddeth, abstain (from it) . . . ."

130. 53:4 "Nor doth he speak of (his own) desire."

131. 53:4 "It is naught but a revelation that is revealed."

132. But those who are against the abrogation of Qur'an by Sunnah rely upon the clear tradition from the Holy Prophet that if there be any conflict between the Qur'an and the Hadith accept whatever is in accordance with the Qur'an and do not accept what goes against it. The Shafe is who accord great value even to Khabar Ahad are against the proposition that Sunnah can abrogate the Qur'an.

133. According to them even Sunnah Mutawatara (Sunnah relators of which in each successive of an abound and are all truthful) cannot repeal any order of the Qur'an and they rely upon the Qur'anic verse. matfaqa) while Sunnah is Maznuna (Surmise and presumption). There, is however, unanimity on the point that the Sunnah can fill up the vacuum or can be clarificatory in character. This is illustrated by Shafees, Zahiris and many others. They say that there are orders in the Qur'an about establishing prayer and payment of Zakat Its details and clarification would be to the effect how the prayer is to be offered and how many Rakaats are there to be offered in prayers of different times. And similarly on what property Zakat is payable and to what extent. These details are given in the Sunnah and they do not amount to abrogation of what is written in the Qur'an. However, it would have been different if the Quran had directed the offering of prayer consisting of two 'rakaat each day only and the Holy Prophet had laid down four Rakaat for Zuher and Esha and three for Magbrib, In that case there would be abrogation which is not permissible. Thus the difference between abrogation and clarification is made out by the argument of Shafe'I and a large number of Jurists.

134. This is sufficient answer to those who rely upon the answer of Omar bin Abdul Aziz to Zahiris related in Ruh-ul-Maani, Vol. 18, p. 70 by Allama Alusi. It is said that the Zahiris said the presence of Omar bin Abdul Aziz that Rajam was not in the Book of Allah. He replied that the number of Rakaats and the quantity of Zakat is also not in the Qur'an. This being the practice of the Prophet and the later Muslims this is also like that". Obviously the question whether Hadis can ablogate the Qur'an was not discussed before Omar bin Abdul Aziz. The explanation of Shafe'i directly deals with this question and also furnishes the answer to the above objections.

135. I may clarify that the reasoning of Omar bin Abdul. Aziz would have: been applicable if the order in the tradition of Obada bin Sam it had been issued by the Holy Prophet soon after the revelation of Verse 24:2 or the verse itself had been silent on the quality and quantum of punishment. There would have no difficulty in that case in giving the order in the Hades the status of interpretation or clarification of the verse in the Book of Allah. This would not have amounted to abrogation. But that Hadis being prior in time, and the punishment being clearly revealed the above principle cannot be applied to it. The reasoning would be of no avail since the order in the Hadis was itself repealed by the order in the Verse (24:2).

136. I am, however, of the view that, in view of the words in Verse 15 of Surah Nisa (4:15) "or (until) Allah appoint for them a way", the tradition) of Obada bin Samit was in the nature of a complementary binding order.) It was not an abrogation. Of whatever sentence was recorded in the 15th verse of Surah Nisa. In that verse it was clarified that the sentence o confinement of an adulteress will be a sentence for life until "Allah appoint for them a way (through new legislation). This sentence was only provisional fixed. A new legislation being the promise, the promise could be fulfill--ed either by providing through Sunnah or through the Holy Book. If it was fulfilled through Sunnah by the tradition of Obada bin Samit, it would no amount to abrogation of the punishment of confinement but would amount to giving the promised legislation. There being two ways in which to legislate, there can be no objection to the legality of legislation by the Sunnah of the Holy Prophet.

137. As seen above the order in the tradition of Obada bin Samit was repealed by verse 2 of Surah Noor (24:2) which is applicable to meaning all adulterers, whether married or unmarried. These words were of old origin. During Jahilia too a woman having sexual relation with a man otherwise than under a the of marriage was said to have committed Zina and for this reason the woman was called baghia fajira, aahira, moabira, mosfiha Tarikhe-Arab Qablal Islam by Dr. Jawad A.I, Vol. 5, p.

138. 253 and Al-lissan, Vol. 6, p. 290. The word being prevalent it mutt have been used in the same sense in which it was understood by Arabs, that is in the sense of a woman committing adultery whether married or unmarried. I have already referred to a view of Imam Ahmed bin Hanbal and others that the order in Surah Noor is both for married as well as unmarried. This is also the view of Allama Alusi in Ruh-ul-Ma'ani, Vol. 18, p. 70, Khizri Buk in Tarikhe Fiqh, p.

129. Thus not only those who refuse to act on Sunnah in this respect but even those who have an unbounded respect for Sunnah as a binding force agree with the view, which should be unexceptionable, that Verse 24:2 is both for married and unmarried persons. This interpretation finds support from the first verse of Surah Noor (24:1) 19 (A Surah which We have revealed on joined, and wherein We have revealed clear signs, that haply you may take heed) Sura Noor consists of, Verse 2 follow this verse. To curtail its generality by confining it to unmarried persons would be to reduce plainness and charity which has been stressed by the preceding verse.

139. All the Jurists agree that stoning is totally irreconcilable with flogging. There are a few alternatives for removal of the anomaly or for bringing about the necessary reconciliation

(1) The Hadd as prescribed in the Qur'an only should be followed since Sunnah cannot repeal Qur'an.

(2) Sunnah should be followed even though its orders are irreconcilable with the Qur'an since Sunnah can abrogate the Qur'an.

(3) In case alternative No. 2 is adopted it is to be seen whether the traditions are (mutawatir)

140. (continuous without break going up to the Prophet of Allah and related throughout by a large number of narrators) (?) (well known meaning that a number of narrators in each age must be more than two, or narrated in each age by few persons though more than two) or (Ahad) (single or isolated) meaning traditions narration of which consists of broken chain of narrators and has been accepted on account of the truthfulness of its narrators.

(4) In case the answer to the first point be in the affirmative whether there is any method of reconciling the Hadith with the Qur'anic commands.

141. Before proceeding to consider these points I would like to deal with the two versions of the traditions relating to Ghamidia. The facts in the two traditions are common to the extent that the woman was directed by the Holy Prophet to return after the birth of the child and that she did return. According to one narration the Prophet said that she could not be stoned to death the she suckled her child but one of the Ansars agreed to look after the breast feeding of the child on which she was directed to be immediately stoned. The other narration, however, is that she was directed to go back in order to suckle -the child and she was stoned only after the prescribed period for suckling 'had expired and the child was fit to live on bread. Azzailai has tried to explain the two distinct narrations by saying that they might relate to two different women and the narrators might have misunderstood the facts. According to A.I A.I Mansoor (page 172 of Nizam-ul-Tajrim wal Aqab fil Islam), Imam Abu Hanifa had repelled the tradition relating to Ghamidia.

142. Another view is that all traditions including the two about Maaiz and Ghamidia are in the nature of (Khabar Ahad) which do not carry as much weight as a presumption but may be levelled down to the category of surmises. On that basis it is said that verse 2 of Surah Noor prescribed the only Hadd for adulterers and adulteresses whether married or unmarried. This view was very strongly held by no less a person than Abu Zahra who can be said to have few equals in the knowledge of Islamic Sharia.

143. The third view is that in view of the Practice of the Holy Prophet in stoning those who were married, the Qur'anic Verse 24:2 should be considered to be confined only to persons who are unmarried.

144. The fourth view is that in view of the traditions of Hazrat A.I who flogged a woman on Thursday and stoned her on Friday, a married person should be flogged in obedience to the Book of Allah and stoned in pursuance of the Sunnah of the Holy Prophet. Similarly an unmarried adulterer should not only be whipped but also expelled for a year. But the Hanafis are against combining two sentences.

145. They favour flogging of an unmarried person and stoning the married one.

146. Then there are two very important views which fall under the fourth alternative. One is that in the Hadith in which two punishments are provided for one person-one in accordance with Verse 24:2 and the other in accordance with the Sunnah the two sentences should be treated to be alternative sentences on the same principles on which the letter 9 (and) is sometime used in the sense of 9 (or). The second view is that the reconciliation between the two sentences one of Qur'an and the other in Sunnah may be brought out by treating the sentence of stoning to be in the nature of Tazir and not a Hadd.

147. Similarly no reliance can be placed upon the view of those who consider the Holy Book to be an exclusive source of law. We cannot close out eyes to the facts that there are definite directives in the Qur'an to obey the Holy Prophet and if we ignore the Sunnah, we shall be left without any guidance in relation to offering of prayers and the payment of Zakat The Constitution has also provided for ensuring that no law is repugnant to either of them.

148. Then there are some who have claimed Ijma or consensus on the Hadith of Hazrat Umar but firstly the Holy Qur'an is a complete book and if something is deleted from it, it cannot remain operative, secondly it is surprising that the verse referred to by Hazrat Umar in the tradition attributed to him is only known to Hazrat Umar and not even to the other companions of the Holy Prophet, thirdly the word and (?) have never been assumed to mean marred man and married woman, and fourthly if there had been any lima on the point Hazrat A.I would not have subjected married woman to a double sentence one of flogging and the other of stoning.

149. There is also no Ijma on the absolute authenticity of all the traditions about stoning as they are narrated in the different books of Hadith. I have already referred to the two different versions about the tradition relating to Ghamidia and the view of Imam Abu Hanifa and the attempt of Azzalai to reconcile them. The versions about the confession and execution of Maiz are also different. In the majority of versions it is stated that Maiz approached the Prophet with a request for self- purification. Another version is that the Prophet himself it-arrogated Maiz about the charge of adultery since he had heard the story from some other source and before sentencing him took evidence. Maulana Amin Ahsan Islahi in his commentary of the Holy Qur'an has unfavorably commented upon the general character of Maiz and has reached the conclusion that Maiz was punished with stoning for remedying mischief (?). It is not therefore possible to surmise the circumstances in which Maiz was stoned to death and to infer the correct legal principles from these traditions. In the tradition of Aseef the boy was subjected to the punishment of hundred stripes and expulsion for a year. Imam Abu Hanifa does not agree that the two sentences can 6e given together, although there is a view that the sentence of explusion is within the discretion of the Imam. The view of Imam Shafi is in favour of both sentences being obligatory. Imam Malik is of the view that though expulsion can be ordered in the case of a male but it cannot be ordered in the case of female who cannot be allowed to go all alone to another place. Similarly there is a view that the two sentences of flogging and stoning cannot be given to one person. In Muslim Vol. 11, below tradition No. 1911 of Obada bin Samit is the note of the translator that: "Imam Shafi's view is that an unmarried person should also be expelled for a year. According to Imam Abu Hanifa this order is repealed in the same manner as the order of first flogging a married person. Maiz for this reason was stoned and was not flogged first. It is however for the Imam to pass an order of expulsion also if he finds it expedient."

150. Below the tradition of Aseef (Hadith 1930, in Muslifn. Vol. 11), it is com--mented by the translator that in his view expulsion for a year in case of an unmarried person is not a hadd but its administration rests upon expediency and the Opinion of the Imam. The reason is that in Verse 24:2 there is no mention of this (expulsion). Mirqat (Sharah Mishqat) has been cited in support. Thus the theory of Ijma is shattered.

151. As stated above Sheikh Abu Zahra one of the greatest Jurists of the 14 Century Hijra did not subscribe to stoning being at all a sentence. He expressed this Opinion clearly in Nidwat-ul- Tashree-ul-Islami held on the 6th of May, 1972, though his books which were published earlier do not show any marked preference for this view. His view was based on the following:-

(1) In spite of there being a provision for the expulsion of unmarried person in addition to his being flogged, Imam Malik did not give a verdict in favour of the sentence regarding females.

(2) He considered all the traditions including that of Hazrat Umar to be in the nature of Akhbar Aahad.

(3) He relied upon the doubt created by the answer of Abdullah Bin A off that he did not know whether all these incidents of stoning took place before or after the revelation of Surah Noor.

(4) He could not believe that the punishment of stoning being a much harsher punishment than even the punishment of Qisas or punishment of Haraba (Verse 5: 33) which includes killing and execution by putting on the cross, should not be specified in the Qur'an or in Sunnat-e-Mutawatera but should be based only on Khabara Aahad. Even Hanafees did not agree with the order of expulsion of an unmarried person since it was not in Surah Noor and this reason is itself sufficient for his view as stoning is not in the Koran. The Hanafees thus repelled the incident of Aseef being something in excess of Qur'an. Moreover in view of the doubt of the Companion of the Holy Prophetth whether the incident of Maaiz and Ghambidia preceded or followed Surah Noor, the benefit of doubt should go to the accused against the harsher punishment.

(5) The punishment of a slave girl is half of the punishment of a free woman. It must mean the Mohsanat in Verse 4:25 in the second place was used in the sense of married persons and undoubtedly stoning cannot be halved. He also relied upon the Opinion of others including Kharijis some Shia and some Moutazila in support of this.

85. There appears to be substance in the conclusion of Abu Zahra that the traditions about stoning are in the nature of Akhbar-i-Ahatia. In fact even those who give them a higher status go to the lenghth of" saying that they are Mutawatir-ul-Ma'ani (continuous m meaning) and not! Mutawatir- ul-Lafz (continuous in words) Ruh-ul-Ma'ani by Allama Alusi 1, Vol. 18, page 70, Tafsir-e-Mazhari, Vol. VIII, p. 234, Allama Alusi writes': "There is Ijma of the companions, and Ulemas on the point that the married adulterer will be stoned till death. And the rejection by Khawarij is Batil (incorrect) if they reject the Ijma of the Companions which is ignorance of the worst type. And if they deny the occurrence in the period of the Prophet due to the fact that they deny the authority of Khabar-i-Wahid (isolated or single), it is not correct in this case because the proof of stoning to death is Mutawatir-ul---Maani like the bravery of A.I or generosity of Hatim. The traditions about Rajm are Ahad (Isolated or Single) in their appearance and its peculiarities but all the Muslims treated it as Mutawatir-ul-Ma`ani in practice which is an equivalent of Mutawatir-ul-Lafzi."

152. From this quotation it is proved that the Opinion of Abu Zahra that these traditions are Akhbar-i- Abad is correct.

87. Before dealing with the question how much binding force Akhbar-i-Ahad have it would be better to define three kinds of traditions namely-- Mutawatir, (continuous) Mashboor (well-known) and Ahad (isolated or single). According to Al-Hadis by Maulana Fazal Karim, Vol. I, page 26 P Mutawatir is a tradition reported by a large number of people in different times, so as to make it impossible for having any falsehood crept into it. These are commonly accepted to be of unquestionable authority. Mashhoor meaning well known is a tradition which though known publicly by a great majority of the people does not possess the character of universality. It was narrated through more than 2 channels at every stage.

153. Ahad is a tradition whose naration consists of broken chain of narrator or a tradition less widely accepted. It is, therefore, less authentic than the former. In Kashaf by Bazudi, Vol. 11, page 204, it is written that a person who treats them (Khabir-i-Ahad) as an equivalent of Mutawatir Hadi (continuous Hadis) commits two fold mistake, viz., his first mistake i. That he has raised their status (status of Khabir-e-Ahad) and the second mistake is that he has lowered the status of the Holy Qur'an and the Mutawatir (continuous) traditions. At page 369 of the same book is the Opinion of Sarakhsi about those who deny the authenticity of Hadis Mashhoor (well-known tradition). He writes that such a person cannot be considered to be a heretic. At page 310 is recorded the view about those who do not act according to Khabar-i-Ahad. It is said that they will not punished because the order of such traditions are neither obligatory (Fart nor have the status of approved (Wajib).

154. These Opinions are cited in Tadween-e-Hadis by Syed Manazir Ahsan Gilani, page 201. According to him the authenticity of Khabir-e-Ahad is less than of Mashboor Hadis.

155. This corroborates the view of Abu Zahra about the traditions pertaining inter alia to the incidents of Maiz, Ghamidya being Akhbar-ul-Ahad. But I do not agree with him that Rajm is no sentence in Islam. This pjiat shall be considered later.

156. While dealing with the question of combining the two sentences of whipping and exiling an unmanied culprit even the Hanafis have expressed the view that the Hadis Obada bin Samit is only (Khabar-e-Ahad) and such Hadis cannot abrogate a verse of the Qur'an. The only Hadd is whipping as enjoined by Verse 24:2 and the order of exile which is proved from the above Hadis, even though combined with it by the Holy Prophet and his successors, should be considered to be a Tazir only. See Hidayat-ul---Mujtahid Vol. 21, page 326, Eh kam-ul-Qur'an by Jassas Vol. 3, p. 255, Fathul Bari, Vol. 12, p. 119, Ruhul Ma'ani by Allam Alusi, Vol. 18, p.. 73, Tilka Hudoodullah by Ibrahim Ahmad Al Waqfi, p.

62. This point requires to be dealt with in greater detail.

157. The question of the aggregation of two sentences of whipping and exile of an unmarried person and whipping and stoning of a married one has been the subject-matter of interesting dialogue between different Jurists. Thus Imam Shafe'i and others favoured it while Imam Abu Hanifa opposed it-- The former relied upon the tradition of Obada Bin Samit, the incident of Aseef, in which the boy was sentenced with whipping and exile for a year, the incident of Shuraha in which she was whipped by Hazrat A.I on Thursday in obedience of Allah's command and was stoned to death on Friday according to the Sunnah of the Holy Prophet, and the practice of Hazrat Abu Baker, Hazrat Omar and Hazrat A.I in combining two sentences Hanafis rely upon the incidents of Ghamidya and Maiz, none of whom was sentenced to whipping. Imam Shafe'i says that these two incidents do nor prove the total extinction of the sentence of whipping. It is possible that it might not have been considered necessary to mention whipping which being the original sentence enjoined by the Almighty Allah might have been, administered as a matter of course. Shafe'i illustrates the point by the analogy of Umra. 1f someone asked the Holy Prophet whether he should perform Haj for his father and the Holy Prophet ordered him to do so, the omission would not amount to extinguishing the permission or order about Umra. The Hanafis hold that omission means that whipping did not take place and non-occurrence proves that it is not commanded.

158. Ibne Hazam, A.I Zar, Ibn Abdul Barr have said that the aggregation of whipping and stoning is for old men and women only. They rely upon the tradition of Hazrat Omar. And Ayaz says that a group of Ahl Hadis are of the same Opinion. Nawawi rejects this view as unsound. 1bn Hajar Asqalani has criticised it in Fathul Bari, Vol. 12, p. 119.

159. But those who favour aggregation of both sentences are not uniform in their approach at least on the question of exile. Imam Malik says that the order of exile does not apply to women. Imam Shafe'i is of the view that it applies to them and they shall be sent to exile each with one of the males in the prohibited degrees. There is difference of Opinion on the point as to who should bear the expenses of the male accompanying the female. Then slaves are also exempted from exile as it would amount to indirectly punishing their masters.

160. The approach of the Hanafis is also not consistent. While they hold that whipping is the only Hadd for an unmarried person and the punishment of exile is an addition to it as Tazir (and not as Hadd) they treat whipping of a married person to be uncalled for, rajam being the only Hadd in his case.

161. One view is that whipping being the lesser sentence should be treated to included in the harsher sentence and the administration of the lesser sentence becomes meaningless when such harsh sentence as stoning to death is given On the question whether the punishment of exile is obligatory they argue that the Holy Qur'an provides for the sentence of whipping only and that is the full and complete Hadd. If exile is also treated to be a Hadd whipping will be reduced to the position of half the Hadd. This will be frustrating the divine object. The sentence of exile can at most be treated to be an addition and may be administered by way of Tazir only if the Imam considers its administration expedient. Thus they agree that Hadd and Tazir can be combined for the same offence. Though it is the Opinion many of them that Verse 24: 2 is for married and unmarried alike and does not distinguish between the two categories of accused persons, they do not extend the above argument of one sentence being a Tazir to the sentence of stoning. On the other hand they insist that stoning is the only, Hadd for a married person.

162. One of their arguments in favour of exile being a Tazir is that the tradition in support of it is Khabar- i-Wahid and that type of tradition cannot abrogate the Qur'an. This reasoning is clear from an extract from page 73 of Ruhul Ma'ani by Ahlama Alusi, Vol. 18: "It appears that Verse 24:2 is common to married and unmarried alike. According to one view it is abrogated by (Hadis of) Obada bin Samit. But this claim cannot be correct since there can be no abrogation by Khabar-i-Wahid, and it is also of no avail to say that it has received universal acceptance from the Ummah since A.I did not treat a portion of it as that of the book. (Note)

163. Reference is to the incident of Shuraha in which Hazrat A.I said that he had stoned her according to the Sunnah of the Prophet and not according to the Book). Even if it is considered correct in Sanad (authentic) it will still be governed by the same principle and it does not cease to be Khabar-i- Wahid. The result is that exile in this Hadis is only Wajib (approved) but not Wajib amounting to Hadd. It is Tazir and Imam has a right to enforce it."

164. And yet this principle has not been extended to the traditions of Maiz and the Gbamidya both of which fall within the ambit of Akhbar-ul-Ahad and the view is persistently adopted that though Akhbar-i-Ahad they are Mutawatir--ul-Ma'ani though not Mutawatir-ul-Lafz, although as seen above the rule is that by universal acceptance Khabar-i-Wahid does not cease to be governed by its own principles.

165. I may refer now to the following valuable Opinion of another very renowned Jurist, Sheikh Mustafa Zarqa: "I see greater scope of the possibility that the Holy Prophet ordered stoning in these established incidents by way of Tazir and not by way of Hadd. He saw that the Mohsan (married) who should be content with a legal wife required at that age a stronger deterrent than the deterrent (required by) an unmarried. By this the Holy Prophet wanted to exterminate the prostitution of the days of Ignorance and to make the offensiveness of this horrible crime deep---rooted in the minds and hearts of the Muslims. This is a matter whose appreciation depends on the discretion of the ruler as it depends in all similar cases which require deterrence; or Tazir which is within the jurisdiction of the ruler. Now in respect of stoning we can say what is said in respect of every Tazir: that it is in the discretion of the ruler: he can do what he deems fit according to public expediency. If he likes he can implement the punishment of stoning or he can punish only with stripes which is the only Hadd. If he likes he can administer both sentences by way of Hadd and by way of Tazir and if he likes (considers it necessary) he can fiog the Muhsana (married) by way of Hadd and add to it some deterrent other than Rajm (stoning) because his Zina is more serious and more obnoxious than the Zina of an unmarried person. All this will depend upon the discretion (of the ruler) according to expediency, needs and require--ments of time and the persons concerned in keeping with the principles of Tazir. We see its parallels in our modern criminal laws relating to punishments in which the Judge is authorized to adopt one of the two limits, maximum and minimum; he can award punishment of fine and imprisonment or any one of these two. This rule is also acceptable to the principle of Tazir in Islam."

166. It will be interesting to take note of the Opinion of Zailai that if the Holy Prophet did not administer the double sentence of flogging and stoning on Maaiz and Ghamidia it can only mean that (and) must have been used in the meaning of it (or) meaning either of the two punishments could be administered. In support of this he relies upon the Qur'anic verse (jael mlaekta raslan aaoli ajnhat mashni waslaas wa raba) and say that it is used in the sense of two or three or four and not two and three and four. sals wo rabi fainfhoo maazab lakum man alnissa masni wo). In this verse also (and) is used in the sense of (or). The Opinion of zalai supports the view that either a person can be sentenced with flogging or with stoning. On this view stoning ceases to be an obligatory sentence.

167. The interpretation of Zailai about (and) being used in the sense of (or) does not seem relevant in view of my agreement with the majority's view that the tradition of Obada bin Samit was abrogated by Surah Noor and two different sentences were prescribed for the same accused in that tradition only. This leaves us only with the Opinion of Sheikh Mustafa Zarqa. As a principle I would agree with it. I do not feel any doubt that if a Hadd is prescribed in the Qur'an, another Hadd cannot be prescribed in Sunnah. A Hadd in Sunnah can be prescribed if there is a vacuum and no Hadd is prescribed in Quran. As was the case of drunkards. It is then only that we can give a correct meaning to the definition of Hadd meaning "Punishment ordained by the Holy Qur'an or Sunnah" in the Ordinance relating to Hudood. This being, the principle the punishment prescribed in the Sunnah for adultery can only be treated as Tazir. May be it is for this reason that Bokhari did not include the traditions about Rajam in Kitabul Hudood. He discussed them in a different chapter known as Kitab-ul Maharibeen.

168. It has already been noticed that in the view of Imam' Abu Hanifa and other Hanafees expulsion for a year or imprisonment for the same period is not allowed in addition to flogging in respect of an unmarried person. The reason is that it is against Qur'an. But it is agreed that such sentence may be given by the Imam for the reason of expediency which clearly means that these Jurists considered at least the severe sentence of expulsion to be a Tazir. There is no reason why stoning should not be considered Tezir for the same reason of its being opposed to the Hadd in the Holy Qur'an.

169. And Rajam was not the only punishment administered by the Holy Prophet. In Fath-ul-Bari, Vol. 12, p. 118 are reproduced traditions about the punishment of incest. A person accused of incest was brought before Hajja,. He asked about the sentence of such a culprit and directed that an inquiry be made from the Companions of the Prophet of Allah. And Abdullah bin Mutrif said "I heard from the Prophet of Allah and he said one who commits incest shall be killed with sword. On a reference this was corroborated by Ibn-e-Abbas. Another case was of a man who had married as in Jahiliya, his father's widow. The Prophet of Allah ordered him to be beheaded. There is one other instance of the same type. Ayat Ullah Shariat Madari is also the exponent of this view. See his Tauzihul Masail p.

468. He further writes that in case of successive offences of adultery by the same person he should be flogged thrice with hundred whips each time and in case he repeats the offence a fourth time he should be put to death. Rajam according to him is for a person who is not only married but is in a position to satisfy the sexual cravings with the spouse. There is no mention in either tradition of the difference of married or unmarried in either of the traditions about beheading. It may be noted that the sentence of beheading of a married culprit is much lighter than the sentence of rajam.

170. These traditions corroborate the conclusion about stoning being only a ta`zir.

171. The view also appears to be shared by Maulana Ameen Ahsan Islahi who justifies stoning on the analogy of Haraba (5 :33) which provides for several alternative punishments for those who fight God and create mischief in the land i.e., (1) Killing, (2) Crucifixion, (3) Cutting of hands and feet on alternative sides, (4) expulsion from land or imprisonment.

172. Reference may also be made to Tafseer-e-Kabir by Ar-Razi, Vol. VI, pages 215 and 216. In r; .Ply to the objection against Rajam he says that new orders of Sharia are promulgated in every age as a measure of expediency. It is, therefore, possible that after the revelation of the verses (regarding punishment of adulterers) the sentence of rajam might have been fixed as a measure of expediency. This rea3oning of Razi lends support to the view that rajam must have been introduced by the Holy Prophet since he considered it expedient despite the Hadd in the Holy Book. Such sentence can only be called `ta'zir'.

173. I may also refer to the Opinion of Hanafis as reproduced in Kitabul---Fiqah (Urdu translation) by Abdul Rehman Aljaziri, Vol. V, page 14. It is stated that according to Hanafis Hudood are those which are proved by the Qur'an. Such punishments are five :- firstly the punishment of adultery which is proved by verse 2 of Surah Noor (104 stripes); secondly punishment of theft ; thirdly punishment of drinking ; fourthly punishment of highway robbery ; and fifthly punishment of `Qazaf'.

174. This Opinion also throws light on the nature of the punishment of Rajam.

175. Allama Syed Muhammad Razi has referred to the concensus in respect of the rajam being a hadd. , But this Opinion ignores the tradition of Hazrat A.I referred to in Tafseer-e-Minhaj-ul-Sidiqin by Maulana Fathulla Kashani, Vol. VI, pp. 266 and 267. It is stated there that five accused were brought to Hazrat A.I who were held to be guilty of adultery. He ordered one of them to be stoned to death, the second to be subjected to hadd, the third to be sentenced to half hadd, the fourth to be given ta---zir and the fifth to be acquitted. An enquiry was made in regard to the various sentences in the case of 4 persons and the reason of acquittal of the fifth, Hazrat A.I answered that one who was directed to be sentenced to death was a married person, the other on whom hadd was enforced was an unmarried person, the third one was a slave and the fourth to whom ta'zir was given was a child. Regarding the fifth one he said that he was acquitted because he was not in his senses. From this tradition it is clear that Hazrat A.I did not equat rajam with hadd.

176. I accept this petition to the extent of declaring that the punishment of stoning to death is not a Hadd but can be added to the respective provisions of tazir although the evidence of four witnesses on the basis of Tazkiya Shahood would be necessary to prove it also. I direct that the necessary amendment be made in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and the sentence or rajam be deleted from sections 5 (2) (a) and 6 (3) (a) thereof, by the 31st July, 1981.

177. JUSTICE ZAKAULLAH LODHI, MLMBER.-I had the privilege of going through the leading judgment proposed to be delivered by my learned brother Afta Hussain, J. While agreeing with him that the punishment of "Rajam" (stoning to death) provided by Zana (Enforcement of Hudood) Ordinance, 1979 was neither ordained by the Holy Qur'an nor by the Sunnah of the Holy Prophet (peace be upon him). I beg to differ with him only to the extent of his observation that, it could still be administered under the cover of "Tazir". I also had the advantage of reading the proposed judgment of the learned Chairman and I agree with him also that "Rajam" was not a punishment ordained by the Holy Qur'an or Sunnah. Before recording my views on this point, I may survey the subject with precision.

1. It is an undisputed fact that the Holy Qur'an was revealed with the purpose that all its directives should be enforced in the society in entity to be created by the Holy Prophet (p. b. h.) in consonance therewith and such model society was to be expanded and its principles followed universally in all times and circumstances and by all people in future. Such a society was termed by Allama Iqbal as a nucleus for the whole world (Reconstruction of Islamic thought in Islam).

178. Accordingly some injunctions dealing with matters of basic importance are given in the Book in clear terms, whereas on most of the matters only basic philosophy/principles are revealed, leaving the details, (jazbaat) or say bye-laws or rules to the discretion of the framers of law at the relevant time ; whose duty is to frame the same keening in view Qur'anic spirit and policies. Holy Qur'an thus occupies pivotal place in Islam. Same was the position of the Books revealed earlier which formed basis for their respective religions, but were subsequently modified in-directed by their doctors of law and clergy in order to substitute their will to the will of God so that the society was transformed into a pattern of their liking. This class as a wasted interest is present in almost all religions and, if seen, in historical perspective, it would be clear that they have always defaced and polluted their religions. On this point the Holy Qur'an says as under :- 5 : 47It was We Who revealed The Law (to Moses) ; therein Was guidance and light.

179. By its standard have been judged The Jews, by the Prophet Who bowed (as in Islam)

180. Allah's Will, by the Rabbis Anal the Doctors of Law For to them was entrusted The protection of Allah's Book, And they were witnesses thereto Therefore fear not men, But fear Me, and sell not My signs for a miserable price.

181. If any do fail to judge By (the light of) what Allah Bath revealed, they are (No better than) Unbelievers.

182. 5 : 50Let the People of the Gospel Judge by what Allah bath revealed Therein. If any do fail To judge by (the light of)

183. What Allah bath revealed, They are (not better than)

184. Those who revel 5 : 106 Follow what thou art taught By inspiration from the Lord : There is no god but He And turn aside from those Who join gods with Allah.

185. 12 : 40 "If not Him, ye worship nothing But names which ye have named, Ye and your fathers, For which Allah hath sent you No authority : the Command Is for none but Allah : He Hath commanded that ye worship .

186. None but Him : that is, The right religion, but Most men understand not 2 : 213 Mankind was one single nation, And Allah sent Messengers With glad tidings and warnings ; And with them He sent The Book in truth, To judge between people They differed; But the People of the Book, After the Clear Signs Came to them, did not differ Among themselves, Except through selfish contumacy.

187. Allah by His Grace Guided the Believers To the Truth, Concerning that ; Wherein they differed.

188. For Allah guides Whom He will To a path That is straight. (Translation : A. Yusuf A.I).

2. More or less the same treatment was meted out to Islam following the pattern of earlier powerful clergy and also out of short sightedness and protection of vested interest during kingship in Islam.

189. It can be seen from the stretching of meanings of Qur'anic verses, cancelling or substituting one verse by another or cancelling it by Hadith. So much so that some orthodox "Moqallids" have gone to the extent of saying; that Quranic verses and Sunnah could be cancelled by the principles given by law doctors, in case there was no unanimity between the two (See I'arikh-e-Tashriul Islam-by Allama \Mohammadul Khizri, Urdu translation Tarikh-e-Fiqah-e-Islamic printed at Azamgarh, page 421). Such is the case with "Rajam" which has been forced into Qur'anic punishments under the cover of "Sunnah" meaning thereby that Sunnah has cancelled or overridden Qur'an. As said by learner Chairman, Sunnah cannot repeal Qur'an. I agree with him not to this extent but would also say that not a single word of Qur'an was ever repealed or cancelled. Only its scheme should be logically appreciated and reasonably understood. Any way, in the matters which keep on changing with the passage of time, places, and people Qur'an has purposely avoided going into details and this is signification. On the other hand in such matters, which God Almighty in, His infinitive wisdom considered harmful for all types of societies, permanent laws were given. It is this treatment which is responsible to identify Islam with the word "" (system of' life) as against " (Religion). There are limited matters for which Qur'an has laid down permanent laws. Categorizing there in common legal parlance, we can call them laws on the civil side, and laws on criminal side. For instance, on civil side we have laws pertaining to matrimonial relations, inheritance, and will etc. They were necessary, as the basic structure of a harmonious and healthy society depends upon such healthy principles concerning these subjects. On` the criminal side with which we are presently concerned, we have laws of permanent nature on the subjects of Zina, thefts of various shades and Qazaf. It is for these offences that maximum punishment has been provided by the Holy Qur'an. Such punishment is generally, called "Hadd" as against "Ta`zir" which is a term signifying punishments not provided by Qur'an and fixed by the jurists according to the requirement of time. Both these terms are juristic terms. Now there are different shades of the offences with reference to varying degrees of gravity involved in the offence falling into these categories. I would be for the law makers to enact suitable laws to meet the situation, keeping in view the highest punishment provided by the Holy Qur'an for the gravest and most heineous kind. This is where jurist's efforts are attracted to formulate details, as Qur'an has left it unattended for reasons heretofore discussed. It is not the least within the realm of a jurist to lay down a parallel law not justified in Qur'anic scheme of things. Unfortunately this is what has been attempted by the jurists in case; of punishment for "Zinc ' to which I would presently advert. One thing which is obvious from the fact that Qur'an provides a punishment for heinous kind of sex offence (say, Hadd) that for less grievous species or shades of this kind of offence a punish--ment more severe than Quranic punishment cannot be fixed on any consider--ation whatsoever, Again it would lie in the discretion of the Judge to award maximum punishment provided for any category of sex offences or to award a lesser sentence or even pardon the offender if there were chances of hi amend (See S. XLII/40): 42 : 40 : The recompense for any injury Is an injury equal thereto (In degree) : but if a person Forgives and makes reconciliation, His reward is due From Allah ; for (Allah)

190. Loveth not those who Do wrong.

3. It is often argued that "Rajam" has been provided by Sunnah" and that the Holy Prophet (p. b. h.) and Hazrat Umar had been practising it. Not only this but they go to the extent of saying that Hazrat Umar believed that a verse (mentioned by my learned brother Mr. Justice Aftab Hussain) was revealed but it was omitted to be written in the Holy Qur'an. Besides the facts that it amounts to saying that Holy Qur'an is incomplete (although God Almighty guaranteed its preservation (See Verse 12/9.

191. It also amounts to saying that the Holy Prophet had laid down a law of his own choice either on the authority of Arab Custom or for other some other reason, parallel to the law of God and instead of following the law of God followed his own whims or that the law of God was circumscribed by apply--ing it only to unmarried persons, whereas in case of married persons he and his successors applied a law made by them. This is in short prevalent state of law and as is also evident from the Ordinance under challenge.

4. To say that the Holy Prophet and his successors continued to award "Rajam" to married persons simply amounts to saying that they defied the Holy Quran, to implement which the Holy Prophet was sent on earth as a messenger of God, and who was not a free person to act as suited to his understanding: His successors duty also was to carry forward the work done by him and they could not budge an inch from Holy Qur'an. On top of it, such an unguarded attitude appears to have gained ground only on the basis of a "Radith" which is in the nature of Khabr-e-Ahad. Is this not too much? Even an authentic "Hadith" cannot stand in a position superior to Holy Qur'an ; much less a discontinued (emanating from only one source) and weak "Hadith" as a Khabr-e-Ahad. "Hadith" consists of the acts done by the Holy Prophet (p.b.u.h.) in constance with the injunctions of Holy Qur'an. It is true that "Haditlh" is second big source of Islamic jurisprudence, but it occupies second position. A "Eladith" cannot lay down a positive law contrary or repugnant to Holy Qur'an, nor can it alter, amend or modify Holy Qur'an. It is quite clear that for the purposes of law laying only those "Ahadith" are relevant which either explain an existing Quranic law or reveal a principle which is absolutely in keeping with the spirit of the Holy Qur'an. It is thus obvious that the punishment of "Rajam" might have been awarded by the Holy Prophet before the revelation of Verses 24 : 2, ,4 : 25 and 33 : 3 of which first mentioned verse prescribes 100 stripes for an adulterer whether married or unmarried, half punishment for slaves (a concession allowed in view of the social conditions in which they were usually brought up) and the last verse deals with the wives of the Holy Prophet and is redundant for our purposes. In brief, we cannot imagine the Holy Prophet doing a think which is not to be found in the Holy Qur'an, or lay down a parallel law.

192. I would quote from the Holy Qur'an first on this point; 5/44 : O ! Apostle ! Let not These grieve then, who raise Each other into Unbelief (Whether it be) among those Who say: "We believe"

193. With their lips but Whose hearts have no faith ; Or it be among the Jews, Men who will listen Even to others who have To the. They change the words From their (right) times And places ; they say, "If ye are given this.

194. Take it, but if not, Beware ! If anyone's trial Is intended by Allah, thou halt No authority in the least For him against Allah.

195. For such-it is not Allah's will to purify Their hearts. For them There is disgrace A heavy punishment.

196. 3 :79 : It is not (possible)

197. That a man, to whom Is given the Book, And Wisdom, And the prophetic office Should say to people "Be ye my worshippers Rather than Allah's On the contrary (He would say) ---Be ye worshippers Of Him Who is truly The Cherisher of all For ye have taught The Book and ye Have studied it earnestly."

198. 5 : 42 :But if the thief repent After his crime, And amend his conduct, Allah turneth to him Is Oft-Forgiving, Most Merciful.

199. 10:15:But when Our Clear Signs, Are rehearsed into them, Those who rest not their hope On their meeting with Us, Say : "It is not for me, Of my own accord, To change it : I follow Naught but what is revealed Unto me : if I were To disobey my Lord, I should myself fear the Penalty Of a Great Day (to come)."

200. (Translation A. Yusuf A.I)

201. The Holy Prophet was the Central authority of Islam upon whom the duty was cast to enforce Islam, accordingly due to Holy Qur'an which directed him in these terms 22:4About the (Evil One)

202. It is decreed that whoever Turns to him for friendship, Him will he lead astray, And he will guide him To the Penalty of the Fire.

203. 16:89One day We shall raise From all Peoples a witness Against them, from amongst themselves.

204. And We shall bring the As a witness against these (Thy people P : and We have sent down To the the Book explaining All things, a Guide a Mercy, And Glad Tidings to Muslims.

205. Earlier Prophet Daud was also given similar direction behind which philosophy was same ; namely rule of the book and not the whims of the Prophet. Then see the directions of the Holy Prophet in his last address to the nation; It is said that Hazrat Umar also awarded "Rajam" but this too is inbeliev--able as he was one of the greatest followers of the Holy Qur'an as is evident from his words.

206. There are many other sayings of Hazrat Umar which will support my point of view and one of these is;

5. In the light of above it is evident that 'the Holy Prophet never pres--cribed or practised any punishment other than the Qur'anic punishment which is 100 stripes for all adulterers and fornicators and strictly in consonance with, the Holy Qur'an and again the Holy Qur'an does not make any distinction between the punishment of a male or a female or married or unmarried person. We cannot expect otherwise from the Holy Prophet or his successors. nizam altahreem wal aqaab fi alislam) by A.I A.I Mansoor with reference to Abu Zuhra says;

(a) Indeed "Rajam" is the extreme punishment and it is snore than the murder as "qisas" and is also mort than the punishments of treason (5 : 36). So it is necessary that it must be proved by-Holy Qur'an or Khabar-e-Mutawatim, and the Ahadis of Rajam and not Mutawatir and there is doubt of falsehood in them.

(b) According to Hanafites the, word common (aam) is definite in his meaning. So the Ayat 24 : 2 common for all married and unmarried and cannot be specified by the Akhbarul Ahad though they have been related in many ways and sources (in fact these sources are not many). Hanafites have rejected Hadis-e-Aseefin spite of the fact that it has been narrated by a group and they say that there is addition in the meaning of Qur'an in this case and it can only be done by a source equal to Qur'an.

207. The confusion that has always been arising was for two-fold reasons. The first of this is the tendency to revert back i.e. Reactionary steps. The reason being that the Jews of Arabia in those days awarded the Punishment of "Rajam" those who were poor amongst them. It was practised by some Arabic Tribes also who were converted to Islam. Either owning to manipula--tions of the Jews at due to the tendency of reverting-back to ancestral prac--tices, efforts were made to revive this punishment by some jurists. The pressure of kingship and the changed politico-social order which gained roots soon after (khlafat rashida) can also not be eliminated from consideration. The second reason is the absence of any authentic record as to the history and practices in the earlier period of Islam. It was after 250 years of the demise of the Holy Prophet that first compilation of history by saw the light of the day. Similarly "Sunnah" was collected after about 250 years after this period and that too was compiled on the basis of sayings based on the memories of generations and not on chronicles or record ; for there was none. The work of compilation of "Ahadith,' and the selection of authentic, continuous and discontinued "Ahadith" had passed through but that was human effort and cannot be supposed to be free from error, as much water had flown under the bridge by this time. That is why there is no wonder if Maulana Maududi a staunch believer of "Ahadith" says as under with reference to collectors of "Ahadith" in particular:

6. Another difficulty which arises in way of acceptance or otherwise; of a "Ahadith" is that neither the facts of the cases decided by the Holy Prophet (p. b. h.) are known to us nor is this fact known as to when a particular act was done or a case decided and how much of Qur'an was available by then. It is thus impossible to safely use "Ahadith" in lawmaking. Same is the position of other concerning the found Caliphs. To conclude, "Rajam" is not a punishment known to Islam at all. The punishment for the offence of "Zina" when proved according to Islamic standards of evidence is 100 stripes, subject to further conditions as would be found in above-quoted verses. If at all the Holy Prophet (p. b. h.) awarded this punishment, it was before the revelation of Verse 24:2. The practices of Hazrat Umar and Hazrat A.I have also been according to Holy Qur'an. Here I may also mention that for our purposes all what is necessary to see is that a law stands the test of Holy Qur'an and "Sunnah" and so we need go beyond this in order to test a law.

7. In the last paragraph of his judgment my learned brother has said that punishment of "Rajam", though it has no roots either in the Holy Qur'an or in the Sunnah of the Holy Prophet (p. b. h.) could still be awarded by way of "Tazir". I have already said that the words "Hadd" and "Tazir" are not Qur'anic terms when used in the context of law. These terms were coined out by the jurists of early period to facilitate distinction between the punishment provided in the Holy Qur'an and such acts or offences for which Holy Qur'an did not specify any punishment. Leaving aside other offences, in the case of an offence, the extreme kind of which is covered by Qur'anic punishment a different treatment is needed. As said above, in all such cases where Qur'an provides maximum punishment, lesser punishment can be fixed in view of their intensity or gravity, but they should in no case rise above the maximum. In case of "Zinc" it ha to be some punishment less than 100 stripes to free men and less than 50 stripes to slaves. It can be in the form of imprisonment, fine, or stripes. There is no logic behind the finding of my learned brother that in case of most heinous kind of offence, say "Zina", when proved according to Islamic standards of evidence the punishment would be 100 stripes, or so, but when it is lesser in gravity and is also not proved by such evidence, as required, "Rajam" could be awarded. If that is done, it would b offending Holy Qur'an itself which says punishment according to gravity of offence (Quoted earlier). While fixing the punishment for the late less severe kind of offences the legislator can make use of the following Hadith on which all the commentators are unanimous.

8. Finally I am of the view that sections 5 and 6 of Zina (Enforcement of Hudood) Ordinance are repugnant to Holy Qur'an and Sunnah as the punishment of Rajam has no nexus with Islam. It can also not be awarded by way of "Tazir" Of course a punishment less in gravity than 100 stripes can be awarded in cases not attracting Qur'anic punishment. The petitions are allowed.

208. JUSTICE KARIMULLAH DURRANI, MEMBER.-Hazoor Bakhsh son of Khuda Bakhsh of Mauza Ghalwan, District Muzaffargarh in S. P. No. 59/1, of 1979 and Messrs M. I. Chaudhary and Ikram-ul-Haq Naseem of Lahore in S. P. No. 62/L of 1.979 have assailed the definitions of 'Adult', 'Hadd', Muhsan and 'Tazir' as given under clauses (a), (b), (d) and (e) of section 2 of the Offence of Zina (Enforcement. Of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) and also sections 5, 6(2), 8 and 17 of the Ordinance whereby punishment of stoning to death for the Offence of Zina and Zina--bil-Jabar liable to 'Hadd', the mode of proof of the said Offence and the manner of carrying out the sentence have been prescribed and have asked for a declaration from this Court of the repugnancy of the said provisions of law to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him).

2. We have heard at length Mr. Shamim Abbas Bokhari, Advocate, on behalf of the petitioner in S. P.

209. No. 59 of 1979 and Mr. Muhammad Iqbal Chaudhary, a petitioner in S. P. No. 62. Mr. Riaz-ul-Hassan Gillani, Advocate, represented the Federation of Pakistan, while Mr. Bashir Ahmad, Advocate, appeared before us on behalf of the Government of the Punjab. After hearing the parties, we deemed it necessary to prepare a question--naire on the different aspects of the subject and to invite more than one learned Scholar of Islamic Fiqh out .Of the Panel of Juris-consults of this Court to express their Opinion thereon. Pir Karam Shah Sahib of Bhera Sharif in addition to his comments and answers to the inquiry, sent to us his book on the importance of Sunnah in the tenets of Islam, namely, "". Allama Syed Muhammad Razi, Mujtahid of Lahore was also kind enough to send his detailed and well-argumented answers to all the questions along with a very learned discourse on the topic as a preliminary thereto. Maulana Muhammad Hanif Nadvi, Deputy Director, "", Lahore, also took great pains in an attempt to satisfy this Court on the matter agitated before it. I will be failing in my duty in not putting on my record on my behalf and on behalf of the Court our deep sense of gratitude to the said learned Scholars for their prompt response on the call of this-Court to this matter of great importance. But before entering; into the discussion on the views of the said learned Scholars, I would like to mention in detail the case of the petitioners in both these petitions and my humble understanding of the question involved.

3. The whole gambit of the arguments of the petitioners revolves around Verse No. 2 of Chapter 24 (alnoor) of the Holy Qur---an which prescribes 100 lashes as punishment to a (zani) and or to a (zanya) This Verse reads as under: Translated into English it would read;--- "The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. And let not pity for the twain withhold you from obedience to Allah, if ye believe in Allah and the Last Day.

210. And let a party of believers witness their punishment."

211. It has been translated in Urdu (maulana ameen ahsan islahi) in his (tadbeer alquraan) as under:- -

4. The contention of the petitioners is that in the presence of a clear injunction of the. Holy Qur'an another punishment excepting that which is prescribed would not be permissible. To stress the point, reliance has been placed over a number of other Verses of the same (soorat) as well as some out of the Chapters of anisa (4),alm(5), (17), (25), (33) and (59).

5. Verse No. 1 of Chapter 24 has been relied upon by the petitioners for the contention that the punishment prescribed in the above-quoted Verse (24:2) for the offence of Zina, irrespective of the fact whether it is committed by a married person or by an unmarried one is a final word, because by virtue of the first Verse this Chapter (alnoor) has been declared mandatory and binding by the use of word (farzanha) in respect thereof. This verse was rendered into English by Muhammad Marmaduke Pickthall as under: "(Here is) a surah which We have revealed and enjoined, and wherein We have revealed plain tokens, that haply ye may take heed.

212. (24:1)

213. It has further been contended on behalf of the petitioners that by virtue of the Verse 3 of the same Chapter, a punishment of death either by stoning or some other method cannot be read into law because it has been laid down therein that: "The adulterer shall not marry save an adulteress or an idolatress, and the adulteress none shall marry save an adulterer or an idolater. All that is forbidden unto believers."

6. Verse 25 of Chapter 4 has been relied upon in support of the contention that the punishment of death could not be for the offence under discussion as this punishment cannot be halved in case of a slave woman who, according to this Verse; has to .Be awarded half punishment of that which is prescribed for a `Muhsana'. Similarly, it has been urged that as the wives of the Holy Prophet (May God be pleased with them), have been warned of the double punishment in case of their indulgence in (Manifest lewdness) it i5 not possible to double the punishment of death. The punishment, therefore, has to be capable of being multiplied by two. It has also been contended that `Rajm' is nowhere mentioned in the Holy Qur'an as a mode of punishment for any of the offences enumerated therein. Some other Verses out of the rest of the above-quoted Chapters have been cited wherein the word `Muhsan' or `Muhsana' occurs in one context or the other in an attempt to show that it does not always mean a married woman or a married man. Hence objection to the definition in section 2(d) of the Ordinance.

7. When confronted with a number of Ahadith found in almost every compilation constituting a part (saha sitta) of and other compilations where--in the Holy Prophet (peace be upon him) has been stated to have awarded punishment of `Rajm' on more than one occasion, it was contended that some of these Ahadith are not authentic while the rest relate to the happenings which took place before the revelation of the 24th Chapter (alnoor). As a last resort, it was vehemently contended on behalf of the petitioners that even if these Ahadith had related to the events taking place after the revelation of the said Chapter, in the presence of the clear injunction of the Holy Qur'an it would not be possible to act on these precedents and these will have to be overlooked. In other words the same old controversy has once again been tried to be raised through these petitions in this Court which had for sometime in the past agitated the minds of a class of Intelligentsia and therefore of some of the framers of the various Constitutions of the Country, and which was to the effect whether the application of Islam in Pakistan should be in accordance with the Qur'an only or Islam would mean a way of life in accordance with the Holy Book and the Ahadith of the Holy Prophet Muhammad (peace be upon him). This controversy was finally set at rest by the framers of these Constitutions in adopting a formula, whereby Injunctions of Islam were interpreted as those which were in accordance with the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him). The same was retained in the Constitution of 1973. A reference to the present constitu--tional position at this stage would not be irrelevant. The Constitution of 1973 has the following as a part of its Preamble :- "Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah."

214. Article 2 of the Constitution has to be read in the light of the above which lays down that Islam shall be the State religion of Pakistan. The following as one of the principles of policy was incorporated in the Constitution as its Article 31(1): "31.--(1). Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and ,basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah". '(Art. 31 (1))

215. The Constitution further provides in its Article 227 that; "All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions."

8. From the perusal of the above-mentioned Articles it is manifestly clear that the. Constitution; while taking steps to enable the Muslim citizens of the State to mould their lives in accordance with the tenets of Islam, has given to the expression `Injunctions of Islam' a definite meaning as hose Injunctions which are in consonance with the Holy Qur'an and Sunnah. The purpose behind the use of this expression was to bring to an end the controversy as to interpretation of Islam for the purposes of Constitution and laws of the Country which were to take guidance from both the Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him) and are to be brought in conformity therewith.

9. While examining Article 203-D of the Constitution in this back--ground and in the light of other provisions of the Constitution, it is not difficult to come to the conclusion that no departure has been made from the above-stated position in conferring jurisdiction on this Court to make a declaration of the repugnancy of any law to the Injunctions of Islam, and this expression has, once again been clearly defined in the Article under reference by incorporating therein the phrase "as laid down in the Holy Qur'an and Sunnah of the Holy Prophet" which immediately follows the said expres--sion. Thus jurisdiction of this Court is confined to holding a law or provision of law against the tenets of Islam only when such law or provision of law cannot derive its justification or permissibility either from the Holy Qur'an or the Sunnah. It would, therefore, be futile to ask this Court to overlook the Sunnah of the Holy Prophet (peace be upon him) and confine itself to the examination of the impugned law in the context of the Holy Book alone. The word `and' in this article as well as in the other above-quoted articles is used both as a conjunctive and as a disjunctive in order to allow the examination of a given proposition of law in the light of both the Holy Book and the Sunnah, or if it may become necessary, of either of the two.

10. This interpretation of the phrase as laid down in the Holy Qur'an and Sunnah of the Holy Prophet would not be totally against the rules of Interpretation of Statutes: "In ordinary usage" `and' is conjunctive and `or' disjunctive. But to carry but the intention of the Legislature it may be necessary to read "and" in place of the conjunction `or', and vice versa.

216. "The Disabled Soldiers Act, 1601, for example, in speaking of property to be employed for the maintenance of `sick and maimed soldiers,' referred to soldiers who were either sick or maimed, and not only to those who were both.

217. "The expression `local and public authorities' in section 4(2) of the Prevention of Corruption Act, 1916 has been held by Winn J. Not to "mean authorities which are both local and public ...(but) authorities which are either local or public."

218. (Maxwell on Interpretation of Statutes, 12th Edition, pages 232-33).

219. " `And' may be read as `Or' and `Or' read as "and', if the sense requires it."

220. (Statutory Construction------ Interpretation of laws by Crawford)

11. In this view of the matter once one comes to the conclusion that authority for a law or a provision of law formulated by the Legislature can be derived from either of the above-mentioned two sources of Muslim law i. e. The Quran or Sunnah jurisdiction of the Court in respect of making a declaration of repugnancy of such law to the Injunctions of Islam would come to as end.

12. This brings us to the question as to whether the impugned provisions of law derive their authority from the Sunnah of the Holy Prophet which in itself is a recognised source of Islamic law?

221. But before proceeding to examine whether the impugned provisions of "Rajm" in the Ordinance are repugnant to the Holy Qur'an or to the Sunnah, I would like to attempt to determine the correct definition of the term "Hadd" in the context of Islamic injunctions for the purposes of the Ordinance.

222. The definition given by clause (b) of section 2 of the Ordinance is as follows :- "Hadd" means punishment ordained by the Holy Qur'an or Sunnah.

13. "Hadd" is an Arabic word which literally means prevention, hindrance, an impediment, a withholding, restraint, a debarring, inhibition forbiddance, prohibition, or interdiction ; a repelling, or an averting. Edward William Lane in. An Arabic-English Lexicon, after giving the above meaning to the word further elaborates the meaning thereof by referring to its plural `Hudood' as used in law; "The Hudood" of God are of two kinds : first, those Ordinances prescribed to men respecting eatables and drinkables and marriages ; what are lawful thereof and what are unlawful ; the second kind, castigations, or punishments, prescribed, or appointed, to be inflicted upon him who does that which he has been forbidden to do ; as the `Hadd' of the thief, which is the cutting off of his right hand for stealing a thing of the value of a quarter of a deenar or more; and that of the fornicator or fornicatress' which is flogging with a hundred stripes and banishment for a year ; and that of the adulterer or adulteress, which is stoning ; and that of the person who (falsely) charges an honest or a married woman with adultery, which is flogging with eighty stripes (as is also that of the person who has committed the crime of drunkenness) : the first kind are called `Hudood' because they denote limits which God has forbidden to transgress : the second, because they prevent one's committing again those acts for which they are appointed as punishments ; or because the limits thereof are determined; the latter kind of `Hadd' is also explained as being that (castigation, or punishment) which prevents the criminal form returning to his crime, and prevents others from committing his crime."

223. The learned Compiler further refers to a saying of Hazrat Omar (God be pleased with him). which according to him means that----- "Hadst thou seen him engaged in an affair requiring the infliction of the Hadd."

224. "Hadd" further means---- "a bar, an obstruction, a partition, or a separation, between two things, or between two places, or between two persons, to prevent their commixture, or confusion, or the encroachment of one upon the other; Then again its plural form i. e. `Hudood' would mean a limit, or boundary, of a land or territory. When a person exceeds the proper, due, or common, limit ; or becomes excessive, immoderate, beyond measure, enormous, inordinate, or exorbitant, then it is called.

14. Keeping in view the above-stated literal meanings of the word, "Hadd" in short would mean a restraint placed against transgression of a, person from the proper, due and legal conduct.

15. To search for the Qur'anic meanings of the word under discussion a reference has to be made to a number of Verses in which this word in its plural form i.e: "Hudood" occurs in one context or the other. Some of these Verses are as follows :- which in English would read : .

225. ". .. ....These are the limits imposed by Allah. So do not transgress them."

16. Needless to say that in this Verse the permission and the restraint placed on a believer by God Almighty have been described as limits of Allah. Again in Verse 129 of the same Chapter this word, with the same meanings occurs repeatedly for four times. The English rendition of this Verse by Marmaduke Pickthall is as under "Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from- women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if "the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For whoso transgresseth Allah's limits such are wrongdoers."

226. The same word with the same meanings and implications is used twice; by Allah once again in Verse No: 230 of the same Chapter. hadood allah) i. e. The limits of God, which should not be transgressed. Now the question arises whether those injunctions which do not find their, express mention in the Holy Book but are derived from the conduct of the Holy Prophet (peace be upon him), or from his verbal directions would also constitute (hadood allah) i. e. The limits of God. A study of the following Verses of the Holy Book would throw ample light on the topic. Verses 13th and 14th of Chapter IV of the Holy Book are as follows;-------- Translated into English;

13. "These are the limits (imposed by) Allah. Whoso obeyeth Allah and His Messenger. He will make him enter Gardens underneath which rivers flow, where such will dwell for ever. That will be the great success."

14. "And whoso disobeyeth Allah and His Messenger and transgresseth His limits. He will make him enter Fire, where he will dwell for ever ; his will be a shameful doom."

227. Which in English means that, "Whoso obeyeth the messenger bath obeyed Allah, and whoso turneth away : We have not sent the as a warder over them."

228. The final word on the subject is Verse No. 36 of the Chapter (ilahazab) (33) which contains clear Injunctions to the effect that whatever is decided by the Holy Prophet (peace, be upon. Him) would be as binding as that of Allah and that it is totally forbidden to the believers to have any say in the matter after such a decision is made. This Verse reads; The English rendition of the Verse by the above-named learned translator is as under : .

229. "And it becometh not a believing man or a believing woman, when Allah and His 'messenger have decided an affair (for them), that they should (after that) claim any, say in-their affair ; and whoso is rebellious to Allah and His messenger, he verily goeth astray in error manifest."

20. A further stress is placed on the following in the footsteps of the Holy Prophet (peace be upon him) by the believers in the following Verse .- which means; "Verily in the messenger of Allah ye have a good example for him who looketh unto Allah and the Last Day, and remembereth Allah much." (33:21)

21. It was for this reason that every recognized Faqih of Islamic. Jurisprudence has defined "Hadd" in the context of crimes as that punishment' which stands prescribed either in the Holy Book or by the conduct or the word of the Holy Prophet (peace be upon him). No sect of the Muslims disputes the dual capacity of the Holy Prophet (peace be upon him) vis-a-vis the Sharia as of a ---sharah--- as well as of a ---sharah---. In the former capacity the Holy Prophet (Peace be upon him) is a Legislator and to injunctions laid down by His Sunnah constitute a part of the divine law. In his latter capacity, he is the commentator of the Holy Book. He teaches explains, defines and propounds law which is revealed to him in the Holy Book. It is in these capacities that he imparts meanings to the revealed word; "Therefore (O Muhammad), bear with what they say, and celebrate the praises of thy. Lord ere the rising of the sum and ere the going down thereof. And glorify Him some hours of the night and at the two ends of the day, that thou mayst find acceptance." (20:130) and prescribes the number of prayers as five in a day and fixes the exact timings for saying them. It is by his injunctions and conduct that the Uma learns the manner and mode of the daily prayers.

230. He acts in the capacity of the when he gives the Nisab of Zakat and he acts in the capacity of a --- sharah--- when he excludes certain chattles from being liable to the incidence of the ---sharah-- - said Tax. Similarly, when God Almighty ordains that the band of a male or female be cut off on' the commission of the offence of theft; "As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, and exemplary punishment from Allah is Mighty, Wise." (5:38).

231. (Plain meanings of the above Verse would not allow any categorisation of thieves so that some may escape the ordained punishment), the Holy Prophet (peace be upon him) defines the limits by prescribing the quantum of the value of the stolen property for bringing the offence under the pale of the said Ordinance. Ahadith from Ummul Mominin Aisha and Hazrat Ibe-e---Umar that the Holy Prophet cut band of the offender for the theft of the things worth one-quarter of a Dinar or more (Bukhari and Muslim) refer. Hadd for the offence of theft thus becomes laid down in accordance with Qur'an and Sunnah and through Sunnah of the Holy Prophet we come to know that an exception to the above-stated extent, would be read in the definition of (sarq) and (sarqa) for a petty thief who steals goods of the value of less than 1/4 of the Dinar.

232. It is, therefore, in the capacity of a ---sharah--- that the Holy Prophet meted out the punishment of 100 lashes to unmarried Zanis and Zanias. On the other hand, it was in the role of a ---sharah--- that he awarded greater punishment of death by stoning to a (mohsan) or (mohsana) or beheaded the perpetrator of incest and in doing so he was neither overlooking the Qur'anic injunction nor was he treating them as partly revoked. He was merely defining and explaining by his conduct the applicability of the Verse (24:2) on a definite class of offenders by inforcing it on the unmarried boy and at the same time by awarding the greater sentence of atoning to death to the married female, (See (hadis aeseef) morn on this (hadis) later) he was but prescribing greater punishment in an aggravated form of offence. According to him both these punishments were in consonance with the Book of God as he stated on oath of Allah to the father of the male culprit that he would decide the matter according to the Book of God. This explanation of the Holy Prophet can be so interpreted as that both these sentences were according to the spirit of the law of the Book.

233. To understand the word of God, the Sunnah of the Holy Prophet becomes indispensable. The office of the Prophet is explained in these Verses; Maulana Abdul Majid Daryabadi translates it as under; "He it is Who hath raised admist they unlettered ones an apostle from among themselves, rehearsing unto them His revelations and purifying them and teaching them the Book and Wisdom, Though they have been aforetime in error manifest.

234. And also others of them who have not yet joined them. And He is the Mighty; the Wise." and it was for this purpose that Ibrahim (Peace be upon him) asked for the blessing of God on the people of Mecca in sending to them a Prophet from among them; The same learned translator renders it into English as follows; "Our Lord ! Raised up unto them an apostle from among them, who shall recite unto them. The revelations, and shall teach them the Book and wisdom, and shall cleanse them. Verily Thou ! Thou art the- Mighty, the Wise." (2:129)

235. Now coming to the office of the Prophet in laying down the divine law by his words and deeds, a reference to some other Verses of the Holy Book besides the 13th and 80th Verses of Chapter IV quoted above, would be of some benefit. These Verses enjoin on the believers full obedience to the injunctions and directions of the Holy Prophet. This mandate is repeatedly mention in case of every Prophet obedience to whom is equated to the obedience to God in the same degree. These Verses are :-

(i) Say: Obey Allah and the messenger. But if they turn away lo! (Allah loveth not the disbelievers (in his guidance). (3 : 32)

(ii) And obey Allah and the messenger, that ye may find mercy. (3 :132)

(iii) O ye who believer Obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last day. That it better and more seemly in the end. (4 : 59)

(iv) The ask the (O Muhammad) of the spoils of war. Say :The spoils of war belong to Allah and the messenger, so keep your duty, to Allah, and adjust the matter of your difference, and obey Allah and His messenger, if ye are (true) believers." (8 : 1)

(v) O ye who believe! Obey Allah and his messenger, and turn not away from him when ye hear (him speak). (8 : 20)

(vi) And obey Allah and His messenger, and dispute not one with another lest ye falter and your strength depart from you; but be steadfast ! Lo! Allah 'is with the steadfast. (8 : 46)

(vii) And the believers, men and women, are protecting friends one of another; they enjoin the right and forbid the wrong, and they establish worship and they pay the poor-due, and they obey Allah and His messenger. As for these, Allah will have mercy on them. Lo! Allah is Mighty. Wise. (9 : 71)

(viii) Say: Obey Allah and obey the messenger. But if ye turn away, then (it is) for him (to do) only that wherewith he hath been charged, and for yo (to do) only that wherewith ye have been charged. If ye obey him, ye will go a right. But the messenger hath no other charge that to convey the message) plainly. (24 : 54)

(ix) He who obeyeth Allah and His messenger, and feareth Allah, and keepeth duty (unto Him) : such indeed are the victorious. (24:52)

(x) And stay in your houses. Bedizon not yourselves with the bedizen--ment of the Time of Ignorance. Be regular in prayer, and pay the poor-due, and obey Allah and His messenger. Allah's wish is but to remove uncleanness far from you, O' Folk of the Household, and cleanse you with a thorough cleansing. (33 : 33)

(xi) He will adjust your works for you and will forgive you your sins. Whosoever obeyeth Allah and.

236. His messenger, he verily hath gained asignal victory. (33 : 71)

(xii) O'ye who believe ! Obey Allah and obey the messenger, and render not your actions vain ; (47 : 33)

(xiii) There is no blame for the blind; nor is there blame for the lame, nor is there blame for the sick (that they go not forth to war). And whoso obeyeth Allah and His messenger. He will make him enter Gardens underneath which rivers flow; and whoso turneth back, him will He punish with a painful doom. (48 : 17)

(xiv) Fear ye to offer alms before your conference? Then, when ye do it not and Allah hath forgiven you, establish worship and pay the poor-due and obey Allah and His messenger. And Allah is Aware of what ye do. (58 : 13)

(xv) Obey Allah and obey His messenger; but if ye turn away, then the duty of Our messenger is only to convey (the message) plainly.

237. From the perusal of the above Verses of the- Holy Book, which are but -few out of a great number, it becomes crystal clear that faith i.e. 'Deen' does not become complete without Obeying the messenger of God and his Sunnah is the other pillar besides the word of God on which the structure of the faith is built up.

238. And this is why almost every Prophet has been made to send this clarion call to those for whose salvation he was striving: Translated in English; 107 : Verily I am unto you an apostle trusted.

239. 108 : So fear Allah and obey me.

240. For no less than 8 times this call is repeated in reference to one of the other Prophet in one and the same Chapter of the Poets and so was the call ---eesa--- of ---nooh--- and to their audiences; "Fear God and obey me."

241. (43 : 63 and 71 : 3)

242. The Holy Prophet's command obedience to themselves by the permission of God : Translated in English; "We sent no messenger save that he should be obeyed by Allah's leave. And if, when they had wronged themselves, they had but come unto the and asked forgiveness of Allah, and asked forgiveness of the messenger, they would have found Allah Forgiving, Merciful". (4:64).

243. While interpreting the word 'Hadd', the above-.Quoted Verses will have to be kept in mind. ; `Hadd' in the criminal law of Islam means a fixed punishment for an offence whereby right of God is violated. This punishment would either be fixed in Qur'an as is in case of offences of Kazif and theft or would be `Hadd' fixed by the Sunnah of Holy Prophet (Peace be upon Him) as is in case of Rajm or it would be fixed by the consensus of the Companions of the Holy Prophet (Peace be upon Him) i.e. By ---ajmah sahaba raziallah--- as is the case of Hadd for drinking wine.

244. Allama Syed Muhammad Razi has quoted the following passage of Abdur Rehman Al-Jazari from his kitab alhadood V.5 alfqah ali almazhab ala rabia page 7;---- I am further fortified in my contention in regard to Hadd' that it may also be fixed by the consensus of the Companions of the Holy Prophet (Peace be upon Him) by that was done in case of `Hadd' for drinking by `Qazi Abu Yusaf' as mentioned as in his wherein he prescribed that whosoever commits the offence of in the month of Ramazan he will be punished with 80 stripes as 'Hadd' and some more as Tazeer for indulging in this offence during the holy month of Ramazan According to `Qazi Abu Yousaf' it was the practice of Caliph Umar (God be pleased with him).

245. It would be interesting to note that the word 'Hadd' in its singular form in reference to the fixed quantum of punishment has nowhere been used in the Holy Book. The Verses quoted elsewhere in this judgment relate to the word 'Hudood' with the meanings mentioned in its context which does not mean the fixation of amount of punishment for a crime. Sarakhsi in his 'Alamabsut' (Vol : 5 page 36) defines 'Hadd; `Had' in Shariah is a name of that punishment which is fixed and which becomes enforcible as a right of God. It is not called a tazeer because tazeer does not have a fixed quantum. It is also not called ---qisas--- as ---qisas--- is a right of man."

246. (Translation is mine).

247. The same learned author further clarifies 'Hadd' in case of offence of Zina in splitting it into two kinds one being Rajm for ---mohsin--- or ---mohsina--- and the other being 100 lashes for a non-married man or woman ---ghair mohsina--- or ---imam surkhasi ghair mohsin--- further proceeds to describe Rajm as 'Hadd' as derived from the Sunnah of the Holy Prophet (Peace be upon Him) ibid page 37). ---Shokani--- in his ---neel alawtar--- (Vol. 7, page 98) defines `Hadd' as being that which restrains from an act and also that which is the punishment of the offence is so called (hadh) as it prevents the culprit from going back to, the crime and also becomes a restraint for others not to indulge in that sin. According to it is called `Hadd' because it becomes enforcible as a right of Clod and has fixed quantum as against the ta`zeer which is not fixed.

248. Needless to say that whenever a transgression of the limits of God occurs the right of Allah stands violated and the transgresses becomes liable to its consequence which in certain cases results in corporal punishment. But it is not always necessary that in every violation of the right of God the punishment must also be prescribed by him. Often a penalty for such transgression is provided by the practice of the Holy Prophet (Peace be upon Him) or by the consensus of his companions which fixes the quantum of punishment. The punishment itself is called 'Hadd.' ---ibn aabdeen--- in ---rdalmuhtaar--- (Vol, 3, pp. 153-154) while commenting on the use of the word and `i.e. `penalty' and 'fixed' in explains 'Hadd' as being that which is ordained by Qur'an and Sunnah and has a fixed quantity. This learned Commentator quoting 'ice' from his book includes Rajm in Hadd as it amounts to death. He further explains the wisdom of these punishments in Sharia as 'Hudood' i.e. Rajm in the offence of Zina, cutting off hands as punishment for theft, etc. As the right of God because by virtue thereof paternity, property and intellect of mankind get protected: "Punishment for criminal acts provided by the Qur'an or the Hadith is called `Hadd'. Where no such punishment is provided the Qazi was entitled to act on the principle of Tazeer and administer such punishment as he considered necessary keeping in view the circum--stances of each case."

249. Says Mr. Justice Sh. Aftab Hussain of Lahore High Court (now one of my learned colleagues in this Court) in his paper on the 'Contribution of Islam to Religion, Politics and Culture" read out in Colombo in a recent International Conference held in connection with the Celebration of 15 Century of Hijra.

250. A distinction at this stage has to be brought out in-between the right of God or right for God and an injunction of God. All those offences which are committed in violation of the former carry `Hadd' as punishment thereof whether or not directly prescribed in the Holy Book. An injunction of God is that ordinance which is expressly provided or prescribed in the Qur'an.

251. A number of Ahadith have established that meting out the punishment of death by stoning to the free and married male and a free and married female has undoubtedly remained practice of the Holy Prophet. This therefore formed his Sunnah.

252. Now coming to the fixation of the period when this was done by the Apostle of God (peat: be upon him) every individual Hadith has to be analysed in the context of its narrator or narrators and of the manner wherein it was understood by the rest of the companions of the Messenger of Allah. So also is to be seen the meanings, interpretation; effect and implication of Verse 2 of Chapter XXIV.

253. While examining the Verse of the punishment of Zina it would be found that all commentators of the Holy Qur'an of earlier as well as of the later period with the solitary exception of "Maulana"

254. Muhammad A.I of Lahore Sect of Ahmadis, have held the word ---alzai--- and ---alzania---as relative only to unmarried fornicator or fornicatoress.

255. After giving meanings of the word ---zana--- in 24:2 as follows;----- "The Arabic word denotes sexual intercourse between any man and woman, whether married or not, who do not stand to each other in the relation of husband and wife, and, as such, has no single-- word equivalent in English language. It includes both adultery (i.e. Illicit sexual intercourse of the two persons either of whom is married to a third person) and fornication (i.e., illicit sexual intercourse of unmarried person.)"

256. Maulana Abdul Majid Daryabadi further comments on the above-quoted Verse as under;- "The practice of the Holy Prophet, the Sunnah, restricts this punishment to the case of unmarried offenders. The people who are married and are of free condition and are yet guilty of sexual misconduct are to be punished by stoning. Note that the law of Islam makes absolutely no distinction between a male offender and a female one. Both are equally guilty and equally punishable. The penalty for adultery in the Bible is undoubtedly death, probably by stoning. Cf. Both the OT and NT:--- And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death. '(Le. 20:10).'

257. If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman, so shalt thou put away evil from Israel. (Dt.

258. 22:22)' If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her, then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die.' (22:24, 25) 'Jesus went unto the amount of Olives . . . . They say unto him, Master, this woman was taken in adulter, in the very act. Now Moses in the law commanded us, that such should be stoned : but what sayest thou? (In. 8: 1-5) in the OT times, 'unfaithfulness on the part of the bribe during the interval between betrothal and marriage was regarded as adultery, and might be punished with death. She was to be stoned, not strangled. '(DB. 1. p. 326)' The mode of execution varied with the standing of the woman: a guilty wife was to be put to death, i.e. Strangled, along with her paramour, while a betrothed woman who was seduced was to be stoned'. (111., p.

259. 213) 'In the Law the only recognised form of capital punishment is by stoning . ---.It fell to the witnesses to cast the first stone. '(EBi.c.2722)'Prostitu--petition by a betrothed virgin, . .And the rebellious son are, accor--ding to the Pentateuchal laws, to be punished with death by stoning. `(J.

260. E. 111 p. 554)." (Tafseer-i-Qur'an (English), by Maulana Abdul Majid Daryabadi, Vol. II, p. 338-A).th ---Maulana ameen ahsan islahi--- whose Urdu translation of Verse 2 of Chapter 24 of the Holy Qur'an has been re-produced in the earlier part of this judgment after expressing his Opinion that the Hadith narrated by ---aebad man samat raziallah--- from the Holy Prophet (Peace be upon Him) which beings with the word ---khzoeni--- i.e. 'take it from me . . . ." cannot be relied upon as a source for the validity of the `Rajm' for the reasons explained by him and also that the words --- alshaikh wal shaikhta iza znya falr jamoo hma altba--- occurring in another Hadith said to have been attributed by (ibn abaas) to the Caliph Umar (God be pleased with Him) as being the cancelled Verse of Qur'an holds it as having been spread by' and therefore, not authentic. He poses a question, inter alia, as to what is the source of the punishment of 'Rajm' and then proceeds to answer the same in the following discussion on the subject; The Maulana further proceeds to state that the punishment for married or unmarried persons is one and the same which is prescribed in 24:2, but at the same time says that the state can award punishment of 'Rajm' in extreme cases as `Nakal'. Apart from the fact that the learned Scholar, with profound respect, has contradicted himself by this observation, the view held by the most important Companions of the Holy Prophet like the orthodox Caliphs and others of which he himself has stated in the earlier part of the above reproduced commentary that to deny these traditions is to deny everything, is entirely against the conclusions drawn by Maulana Islahi.

261. Alama Alusi in his commentary on the Holy Qur'an, namely ---rooh almuani--- "(Vols. 16-18, pp. 68-74) dealing with the subject, is of the Opinion that the Verse under reference is not operative in the case of ---mohsin--- or ---mohsina--- and to that extent it stands abrogated by ---santa-- -. Without conceding the principle of abrogation of any part of Qur'an by any thing other than the Holy Book itself, a reference to his further comments would not be without benefit. Rendered into English these are; "But the Ordinance of lashes is not applicable to a ---mohsin--- or ---mohsina--- for him or her is "Rajm" and for this conclusion even a single order and act of the Holy Prophet (peace be upon him) would suffice for us and this order and act of the Holy Prophet (Peace be upon Him) was repeated several times. Thus (nuskh) of the Holy Book occurred by ---sunt qatia--- and the Companions agreed on it. And the Imams of Muslims and the learned of the ---umma--- belonging to the earlier times all had consensus on that stone is for the ---mohsin--- till his death and the refusal of the ---khwarij--- from this is, ---batil--- because if they deny the consensus of the Companions on this issue then it is their ignorance and if they deny that stoning to death never occurred during the lifetime of the. Holy Prophet (peace be. Upon him) then they are denying all.

262. They are not believers in Ahadith. We are not in that category. The proof of 'Rajm' from the Holy Prophet (Peace be upon Him) exists by(repeatedly) as the bravery of Hazrat A.I (God be pleased with Him) or largess of ---Hatim--- are known to all. Likewise. 'Rajm' is also known to all. These Ahadith, if looked into separately would each be ---khabr wahid--- but collectively these become ---matwatar---(repeated)." (Translation is mine)

263. One might, with due deference, differ with Alusi on the question of 'Nuskh' of the Holy Book by the practice of the Prophet (Peace be upon Him), but the fact remains that his assertions quoted above apart from the principle of 'Nuskh' carry much weight. The matter stands much clarified by - --imam ibn hajr aqslani--- in his ---Fateh albari--- a commentary on the compilation of Bokhari (Vol. 13, page 120), who incidentally has included ---ahadis rajm--- his ---kitab alhadood--- in that there is no 'Nuskh' of the Verse 24 : 2 in question or of the Holy Book for the matter of that in the matter of 'Rajm' as the Verse of the Holy Book only relates to. ---Ghair mohsin--- Maulana Muhammad Hanif Nadvi in his comments on our questionnaire has very ably thrown light on this subject as under :----- It has also been urged before us that punishment of death by stoning does not form one of the modes of punishments prescribed by the Qur'an. This argument is not tenable because in the last analysis, the stoning is a method for putting a person to death. If in certain cases penalty of death is available in the Qur'anic injunctions, then objection to a certain method of bringing about this punishment would not be exceptionable.

264. Now in Verse No. 33 of Chapter IV different types of punishments are prescribed for those culprits who wage war against Allah and His apostle and go about in the land corrupting. These are :

(1) To be slain.

(2) To be crucified.

(3) Hand and feet to be cut off on the opposite sides, and

(4) Banishment from the land and which according to judgment of this Court in Muhammad Riaz v.

265. Federal Government etc. (PLD 1980 F SC 1) includes imprisonment.

266. I have held in the above-quoted judgment that any offence in which right of God is merged with the rights of men or the element of corrupting land i.e. ---fsad--- in society is foundss present it comes under the pale of the above-mentioned Verse and the culprit becomes liable to any one of the four punishments prescribed therein.

267. Now the very first punishment of slaying a culprit i.e. ---taqteel--- is not confined to any particular method of killing. The person liable to this punishment can be put to death in any manner or method whatsoever available at the time. He can be put to death by sword or by firearm ; or' by pushing down from a height or by hanging by the neck or by stoning and so on and so forth. The moment it is conceded that for a given crime the punishment of death is available it becomes within the discretion of the Court or the state to use any method whatsoever in bringing about the death of the culprit. In this view of the matter it cannot be said that the punishment of death by stoning is not available for an offender under the Qur'anic injunctions. As a matter of fact, the people of Lot (Peace be upon Him) were all stoned to death by God Almighty. It was for this reason that when a question was put to (imam jaifar alsadiq aleh islam) to the affect whether 'Rajm' was available from Qur'an, be replied in the affirmative (man la yahzra alfqeeh matlooa quraan mahl jald page 472)

268. Moreover the word 'Rajm' is also used by the people of the language for killing simpliciter (Zahoor Ahmad Azhar, in Chapter on in Urdu Encyclopaedia of Islam, Vol. 10, page 204).

269. When the offence of Zina is committed by a married person and the sanctity of the marital bed is violated, it touches the boundaries of and corrupts the Society. It is certainly an aggravated form of the offence and attracts one of the punishments prescribed in Verse (5 : 33 under reference. The word 'Rajm' with its grammatical variations occur in a number of Verses of the Holy Book, 91 : 11, 46 : 19, 20 : 18, 18 : 35, U 20 : 44, 5 : 67 and 11 : 26 are some of . . . . The Verses which have been U referred to in this context by Mufti Muhammad Shafi, in his Chapter on `Rajm' appearing in the above-quoted book. The punishment by `Rajm' is, therefore, not completely foreign to the text of the Holy Book.

270. Caliph) Umar-bin-Abdul Aziz, Imam Shafi in his ---kitab alaam--- from the earlier and Shah Wali Ullah in his ---hajta allah albalgha--- and Abdul Qadir Oda in his ---altashreeh albghai ilislami-- - from the later day Scholars, besides many others are all unanimous in holding that the offence of Zina committed by a or is an aggravated form of the offence and the punishment of 'Rajm' would therefore, be neither cruel nor against Shariah.

271. This will take us to the question whether the Sunnah of the Holy Prophet of punishing a married male or female guilty of Zina by atoning to death relates to pre Sura Noor period or did it continue even after the Verse 2 of the said Chapter was revealed.

272. A number of traditions have been preserved by ---mohdseen--- which show that the Holy Prophet (Peace be upon Him) meted out this punishment on a number of occasions. Traditions relating to (ghamdeedah jhniyt maghr islmi and as well as that when a couple of Jew offenders of Zina were stone to death in accordance with the injunctions of (Torah), although termed as by some, these are not totally denied. The authenticity of the events have not been doubted by any of the Scholars.

273. It is only the time of occurrence oh which some doubts have been cast by some in view of the of -- -ablullah ibn abi aofi raziallah------hadis---who when asked whether Rajm was carried out by the Holy Prophet (Peace be upon Him) before or after the revelation of Chapter 24 replied in the words ---laidree--- i.e. I do not know.

274. According to ---alama ibn hajr asqlani--- the events of stoning to death of ---Mohsin--- or --- Mohsina--- under the orders of the Holy Prophet (peace be upon him) took place after the revelation of the ---soorat alnoor---. According to him, the period of the revelation ---soorat--- of the was either during the years 4 or 5 or 6 after Hijra but because of the presence of ---abu hareerah raziallah--- and ---ibn abbas raziallah--- at the time of the stoning of the culprit; the former of whom embraced Islam in 7 A.H. While the latter came to Madina with his mother in the 9 year after Hijra, both the occurrence narrated by them took place during the post revelation period of Sura Al-Noor.

275. Whether the three instances of awarding punishment of death by stoning by the Holy Prophet (peace be upon him) to a married man or a married woman i.e. Of ---ghamdeedah maghir slma- -- and ---aseef--- are happenings of the period prior to the revelation of Verse 2 of ---soorat alnoor---? All these Ahadith contain internal evidence of the period of the occurrences as being after the revelation; of the ---soorat alnoor--- is that ---soorat alnoor--- was revealed just after the event of ---afaq--- i.e. The false accusation of immorality levelled against to Ayesha Sadeeqa (God be pleased with her). According to Ibne Hasham this incident took place during the 6th year after Hijra (Vol. 9 Seeratun Nabi)(Ibne Jarir Tabi) fixes the year of Afq as 6 A. H. (p. 516), Mulana Shabli Numani in his Seeratun Nabi places it in the year 5 A. H. Dr. Muhammad Hamidullah in The Battlefields of the Prophet Muhammad also gives 6th year after Hijra wherein the covenant of Hadaibia was signed. The battle of Bani Mustaliq, in the return journey wherefrom false accusation of ---aisha raziallah--- took place, happened within a few months before Hudaibia in the same year. Thus it is clear that the soorat. Under reference was revealed sometimes between the years 4 and 6th after Hijra. The hadis aiseef is narrated with another by abu hurarah who embraced Islam in the 7 year after `Hajra' when ---Soorat alnoor--- had already formed a part of the by then revealed Book of God. The presence of ---Abu hurara--- at the time of decision of the case is doubted by some on the ground that the words "knaand alnabi p.b.u.h" attributed to both ---Abu hurarah--- and ---zaid ibn khalid raziallah--- the two narrators of this Hadith in the compilation of ---Bukhari--- do not find mention in some other compilations. The absence of the words 'we two were before the Prophet (Peace be upon Him) from some compilations would not render the narration doubtful not would this exclude the presence of the narrators because it invariably was the practice of the narrators to precisely mention the source wherefrom they heard or learnt the narrated saying or the event in case they were not the direct witnesses of the event or had not directly heard the apostle of God saying the words. Whenever the first narrator himself is a witness to the event or has heard it directly from the Prophet (peace be upon him) he either mentions that he was present or he does not at all mention his presence which in that case is presumed. It is once in a while that the first narrator begins with the words kunt andalnabi or samt in order to show his presence with the Messenger of God. The usual form of narration is amr resool allah or qaza rasool allah or qala nabi or the Holy Prophet said or the Messenger of God decided or the apostle of Allah ordered. In this respect Abadith are of two different categories. One is called ---samma mushahidi--- and the other is ---smma rawaiti--- where narrator is present the Hadith is called - --mraqooh--- and when he has taken it from another than it is called `Rawayati'. Again, when the first narrator is a companion then the Hadith itself is called `maraqooh' and where the narration of the Hadith ends with someone who has heard it from another but does not name the first source then it is called a ---mursil--- Hadith. All the versions of `---hadis asseef--- occurring in one or theth th other compilation do not have any evidence in the wording of the narration of the Hadith as being a `mursil' or `rawaysti' hadith, because neither 'Abu hurarah' nor `zaid ibne khalid' say that they heard it from any other source or that they came to know of it or that they were told by someone else. The absence of the words 'kna end al nabi p.b.u.h from `Tirmizi' and `Muslim' or from any other compilation therefore does not effect the status of the Hadith as being a `hadis mraqooh`. The second piece of internal evidence of this Hadith as belonging to the post revelation of 'Alnoor' period is that when the father of the boy contacted men of learning they told him that his son will be punished with 100 lashes and his co. Accused, being a married woman, will have to be stoned to death. The former punishment was prescribed in `sorat alnoor' and the awareness of this punishment of the learned men of the time in that far-flung area of a `Badia' would show that Verse in question had already reached them before the event under reference took place. `Hadis ghamdeh' the presence of Khalid Bin Waleed is noted and a part of the narration relates to his utterance at the time of actual stoning. Now Khalid had embraced Islam after 6th year after Hijra i.e. After Battle of the Ditch which took place in Ziqada of 5th year. He is a witness to the event.

276. The event of Rajm took place in Medina Tayaba where Khalid came to embrace Islam and thereafter settled therein. The punishment witnessed by him was therefore, during his Islam. It is on record that he and Amar Bin Aas were placed at the head of 200 horses by Abu Sufian and given the command of the Rearguard of the non-believers on their return from Medina after the Battle of the Ditch. Ziqada is last but one month of the year. So at least Khalid had not become a Muslim till the end of the 5th year A. H. (the month of the year of Battle of Ditch and appointment of Khalid as a Commander of the rearguard of the non-believers is taken from "the Battlefields of Prophet Muhammad"). Dr. Muhammad Hamidullah gives the year of Hudaibiya as 6th A. H. While M. Akram in `The Sword of Allah' (pp. 78-79) has given the date of the conversion of Khalid, on the authority of Waqidi, as Ist of Safar of the 8th year A. H. Thus it can be safely presumed that the migration and stay of Khalid Bin Walid (May God be pleased with him) in Madina commenced after 6 A. H.

277. Much comments have been offered by one or another Scholar on the Hadith of Hazrat Umar wherein certain words have been attributed to him, which according to him have bad remained a part of the Holy Qur'an in regard to punishment of a `shaikh o shekha' on their commission of the offence of adultery. Many a Scholar like `Ameen ahsan islahi--- from his noteworthy research has come to the conclusion that the words attributed to Hazrat Umar as a revealed word is a mere innovation of a latter period. What Hazrat Umar actually said has been recorded by ---imam bukhari--- in a Hadith narrated by `ibne abbas' (No. 729, in Urdu-Arabic Compilation Vol. 3).

278. It is in the following words :-- Which in English would read: " A.I ibne Abdullah narrated from "abu sufian", he from "alzahri " who in his turn had heard it from "abedullah" that "Ibne abbas" narrated that Umar said I am afraid, a time would come on the people with the passage of time that someone would say he does not find the injunction of "Rajm-- - in the Book of God, but they will go stray in giving up a mandate given by God, Beware it is mandatory on that whoever commits the offence of Zina being in the matrimonial stage if evidence becomes available against him or the repugnancy is conceived or it is confessed and "safyan" said I have so memorized it as Umar saying here that the Messenger of God awarded punish--ment of "Rajm" and after him we have also stoned to death the culprit."

279. Some people have formed an Opinion from the shrah hamdaniya of Hadis who was punished for the offence of Zina by Hazrat A.I (God be pleased with him) on a Thursday with 100 lashes and was stoned to death on the next day for the one and the same offence, that the Fourth Caliph awarded 100 stripes to the lady as `Hadd' and thereafter stoned her to death in follow--ing the Sunnah of the Holy Prophet (peace be upon him). Thus some doubt according to them is cast on the authenticity of the punishment of Rajm as a `Hadd'. These doubts have been set at rest by imam sarkhsi whoth has clarified the position vis-a-vis the said Hadith in that at the time of awarding punishment of 100 stripes it was not known that shrah hamdaniya was a married woman. It was after the punishment of 100 lashes was meted out to her that, on the next day, it came to light that the lady concerned was married to somebody and was to be treated as a `Muhsna' and as such she was stoned to death even after she had received the punishment of 100 lashes. This explanation stands to reason because it cannot be imagined that the Fourth Caliph, who had the distinction of having been raised by the Holy Prophet (Peace be upon Him) and taught the knowledge of Holy Book by the bearer of the Book himself would not be so clear in his mind on the relevant law as to award two different kinds of punishments in lieu of one and the same offence without having regard to the proposition of law that the lesser punishment merges in the heavier one. This explanation further finds support from yet another Hadith of Hazrat A.I which finds its place in mla fateh allah kashani by minhaj alsadqeen (Vol. 6, page 267), wherein it is narrated that Hazrat A.I treated five persons who had committed Zina in five different ways when they were brought together before him. One of them who was unmarried was given 100 lashes, the second who was a married person was stoned to death, while the third who was a slave was awarded 20 stripes. The fourth culprit who had not yet attained puberty was awarded lesser punishment by way of tazeer in view of his minority, and the fifth who happened to be an insane person was not punished at all. Although an argument from the wording of this Hadith may be built up that 100 stripes were given as `Hadd' while `Rajm' was awarded as Sunnah, the matter becomes clear at least to this extent that even up to the Khilafat of Hazrat A.I the fixed punishment for the offence of Zina for a mohsin or mohsina was stoning to death. Similarly, Hazrat Umar, as stated earlier, is on the record in saying that the punishment for married man or woman for the offence of Zina is stoning to death and that this was the punishment which was being awarded during the lifetime of the Holy Prophet (Peace be upon Him). This Caliph himself during the period of his Khilafat was awarding this punishment to Muhsana and Muhsanat.

280. Any doubt on the permissibility of 'Rajm' in case of certain types of Zina as a `hadh' is thus removed, when the matter is looked from the point of view of history which shows consensus of all the companions of the Holy Prophet (May God be pleased with them) on meting out this punishment to a `mohsin' or a `mohsina'Hazrat Abu Baker, Umar, Usman, A.I, Umar Ibne Abdul Aziz and all the rest of the Caliphs, Ameers and Qazis have always been awarding this punishment. A single instance of any Qazi or Ruler adopting any other punishment cannot be found anywhere on the pages of Hadith, Fiqha, history or asaar The availability of this punishment and also its validity is, therefore, established by consistency (tawatar). It has been urged before us that even in the days of the companions of the Holy Prophet, a doubt was cast on the validity of `Rajm' in that ---Abdullah ibne abi aofa--- the narrator of a Hadith of `Rajm' was put a question by his listeners as to whether the punishment of `Rajm' was meted out by the Messenger of Allah before the revelation or alnoor or was it thereafter. The narrator used the word la adrimeaning thereby that he was not aware. This single instance of question and answer would not in itself be a proof that the people had by then started questioning the authenticity of the punishment in question. If a single narrator could not satisfactorily reply a question due to lack of knowledge, it cannot be taken to mean as if the rest of the learned were also not aware of it. It was only to remove such doubts as have now started agitating the minds of some of the present day Scholars of Qur'an that Hazrat Umar tried in the Hadith of Ibn-e-Abbas to set the minds of the coming generations at rest, by emphatically stressing that the punishment of `Rajm' finds its authority from the Holy Book and from the Sunnah of the Prophet. Incidentally, this Hadith although subject to much criticism, does not show the existence of any doubt on the validity of the punishment in question during the time of Hazrat Umar as the occasion for uttering the above explanation or warning in the said Hadith was not that the people had been questioning the vires of the punishment in question. Actually what happened was that some persons had started a whispering campaign in a class of Society casting doubts on the validity of the Khalafat of Abu- Bakar alleging it as having happened by chance. Hazrat Umar was told of this propaganda during one of his journey. He told the informer that on his return to Madina he would explain the matter to the populace. While explaining the legality of the election of (abu bakar raziallah) he went a step further in explaining the position of `Rajm' by saying that a time would come when people would start entertaining doubt on it. The underlined* words (underlining* is mine) would show that at the time of narration there did not exist any doubt but the Caliph was anticipating some such thing to happen in a far future as has happened in the case of the present. Petitions. The exact words used by Hazrat Umar are: *[Here in italics] and in English these words would read: "I fear a time would come when someone would say that we don't find Ordinance of `Rajm' in the Book of God but they will go astray from a mandate ordained by God. Beware `Rajm' is compulsory on him who commits Zina . . . . . :'

281. (Hadith No. 1703, Vol. 3, Bukhari, page 637).

282. One of the renowned contemporary writers of Islamic law, namely Mr. Justice A.I A.I Mansoor of the faculty of Sharia of Al Azhar, Cairo in his book nizam altajreem valhaqqab fi ilaislam, Vol. I on alhadood walqasas waldeta at page No. 181 under the title rai faqya muasir has said that `Muhammad abu zuhra' was asked about the punishment of a Zani and after giving a gist of the reply of Muhammad Abu : Zuhera to the questionnaire states that the said Sheikh was not in favour of prescribing the punishment of `Rajm' for a `Muhsan' because he had doubts about the authenticity of its basis. With profound respect to the learned Author while going through the Books of Imam M. Abu Zuhera, namely falsfa alhaqooq fi alfqa and alaqoba one cannot subscribe to the conclusions drawn by A.I A.I Mansoor. `Abu Zuhra' in both his above-mentioned works is very clear in his mind on the availability of this punishment in case of mohsin and mohsina of a certain class i. e. The persons being in wedlock. In his first mentioned book at page 106 under the title `hadalzani'

283. He states as under:- (and the punishment hadh of Zani fixed by Jurists is either 100 stripes or death by stoning) and then proceeds in building up the arguments in favour of and against the above proposition.

284. Finally, Abu Zuhra comes to the conclusion that in case of commission of the offence by unmarried or divorcee or widowed person, the lesser of the two punishments, namely 100 stripes would be available while on commission of this offence by a married person the heavier punishment i. e.

285. Rajm will be awarded. At page 113 ibid appears his deduction as under: "And we see from it that there are two kinds of Hisan First Hisan of Bakarat with which a woman is sheltered and in this case her punishment (of adultery) is stripes due to her shelter and natural (personal) power of defence in which man and woman are equal. And the second is the Hisan of zawaj (husband) and with this the bliss is completed and thus the punishment is doubled. And the woman who spoiled both hisans i. e. Her bakarat is finished with the marriage and then the marriage is` finished (with the death of husband) so only her own character is remained (personal character) and thus becomes a case of excuse (azar), and her punish--ment is lighter of the two punishments. And there is no nas which forbids it. And the heavy punishment is not imposed in such cases without any nas. Thus it could be seen that he also subscribes to the theory of two punishments in offence of Zina. These could only be stripes or stoning as no third punishment is mentioned any where in this regard.

286. Abu Zhura has again expressed similar view in his latter mentioned book. From the above reference to the works of the learned Author it could, therefore, not be said that Abu Zuhra did not find authenticity in the Hadith of `Rajm' and that he was not in favour of this punishment.

287. Another learned Arabic Scholar of the contemporary period alshaikh sabri the Dean of the faculty of the shia and the teacher of the Islamic Studies at the Mecca University has also thrown light on the question of `Rajm' in his "tafseer ayaat alahkaam" (Part II page 21), and has arrived at the conclusion as a result of the very learned discourse on the subject that `Rajm' stands proved by "sunnat matwattar" of the 1Holy Prophet (peace be upon him). The learned Author in this context further proceeds: Rendered into English it would mean: "It has been proved by the practice of the Holy Prophet (peace be upon him) and his sayings and his actions and that is why there is consensus of sahaba and tabaeen on it and it has been proved by saheh rawayat which are not capable of any doubt and by the way of consistency that the Holy Prophet (peace be upon him) enforced the punishment of `Rajm' on some of his companions like maghir aslma and gamdeed and that the orthodox Caliphs had also enforced this punishment after him during their times and openly and repeatedly declared that `Rajm' Was `Hadd' in the offence of Zina when committed by a married person.

288. Then thereafter all the Jurists of every age and every land became united in that this was a proved injunction and a Sunnah to be followed as the final divine law shariat alhiya with so forceful arguments as would not allow any possibility of a doubt. This order is continuing till present day and our age and no one has opposed it excepting a small group of munharfeen (turn coats from Islam and during the period of khwarij as they say the `Rajm' is against shria The assertions of sabooni that it was practice during the period of orthodox Caliphs is fully supported from imam malka rahmatullah in his moota (Arabic, Urdu, Edition published by Urdu Bazar, Lahore, page 559), wherein imam malik rahmtullah narrates that,- "it has come to him that a woman came to Usman who had given birth to a child after six months of marriage. Usman ordered for her to be stoned to death. A.I objected by referring to 2 Verses of the Holy Qur'an and proved therefrom, that it was possible for one to give birth to a child after six months of the conception. Usman revoked the order of `Rajm' but woman could not be saved as she bad by then been stoned to death."

289. It proves that Usman had also been awarding `Rajm' to "mohsina"

290. According to Fathul Bari Sura Noor was revealed in 4year after Hijra or in 5 or in 6 A. H. And Abu hurerah raziallah embraced Islam in 7th and Ibn-i-Abbas with his mother came over to Medina in the 9 Year after Hijra, who had narrated the occurrence. Thus it was after the revelation of the Sura under reference.

291. Similarly, hadis sharah hamdania goes a long way to prove that the same practice was carried out throughout the period of the Last of the khalfaerashideen i. e. The Fourth Caliph, namely ali murtaza raziullah (May God throw light on his face).

292. From the above narration of Historical facts it is fully established that meting out of punishment of `rajm' i. e. Death by stoning has remained y practice of the Holy Prophet and after him of all the four orthodox Caliphs as well as of Umar II. Now who could be more aware of the sequence of events of the life of the Apostle of God and sayaqo sabbaq of the Qur'an vis-a-vis the Sunnah of the Messenger of Allah. If all of them had been following his footsteps in awarding Rajm to offenders, then they certainly possessed the knowledge that even after the revelation of Sura Noor this practice of the Prophet continued. Thus Verse 24: 2 did not amend law in respect of Rajm as was laid down in the Hadith of Ubada-ibn-Samit, regardless of the Question whether it is khabr ahad or Not.

293. It brings me to the last argument advanced against 'Rajm' that Ahadith relating to magir aslama, gamdeeh and of aeseef are akhbar ahad and therefore cannot be acted upon in contradiction or contradistinction of any provisions of the Holy Book. I think I have fully elaborated my point of view in the earlier part of this Judgment on the Nuskh of a part of the Holy Book by anything foreign to it.th th th th While fully supporting the views expressed before us that neither the Ahadith nor the Ejma of any form abrogates a mandatory injunction of Qur'an, the argument to my mind is quite irrelevant. As explained above, the case is not that Verse 24: 4 stands partially abrogated with awarding punishment of 'Rajm' to a mohsin or mohsina as it is only a matter of interpretation of law laid down by the Verse which has been particularised with unmarried offenders. The Sunnah of the Holy Prophet in the context of `Rajm' does not abrogate or override any part of the Quranic law but supplements it as is the case of the Hadd for theft. Nevertheless, the above-mentioned Ahadith, might in the quantitative sense be akhba ahad. These in their quality are mara ahadees which were followed by all noteworthy companions of the Holy Prophet who were entrusted the administration of justice as Heads of the Muslim State during one time or the other. The consistency of the practice of the companions of the Holy Prophet on 'Rajm' and the emphatic assertion of hazrat umar that rajm is the punishment in case of adultery take these Ahadith out of the category of ahad and bring these to that of mashhoor. The solitary instance of imam abu hanifa raziullah (May God bless his soul) in treating the Hadith of 'abadah bin saqat' (May God be pleased with him) as khabr ahad and that too to the extent of the banishment of the culprit from the land for a period of one year taqreeb cannot be taken to mean that he was not certain of the availability of rajm as punishment for Zina. When committed by married persons or of that it was not practised during or after the life time of the Messenger of God. Who could be better informed of the relevant period of certain practices of the Holy Prophet vis-a-vis the periods of revelation of the different parts of the Holy Book than his companions who had been witnessing all these events.

294. Had these companions apart from the only exception of abdulllah ibne abi aofi entertained any doubt on the fixation of the period of the Ahadith of rajm qua the law revealed in Chapter XXIV, they would have never applied these `sonan' later on. The practice of the companions in awarding 'Rajm' to mohsin or mohsina after the Holy Prophet (Peace be upon Him) had passed away from amongst them in itself is sufficient to establish that at least some of the events narrated in the Ahadith in question took place after the revelation of Sura Noor and law did not undergo a change in this respect till the death of the Holy Prophet (peace be upon Him).

295. I shall now revert to the other arguments advanced by the petitioners and mentioned in the beginning of this judgment. In regard to the assertion that the first Verse of the Chapter 'Al-Noor', enjoins obedience) to the contents of the Sura by declaring them mandatory by the use of the word fareezah suffice it to say that no exception has been created by this Verse in the general principle of applicability of the contents of the Holy Book as a whole, as every and each Chapter, rather every word of the Holy Book Indeed as binding and as mandatory as any other when ordaining an injunction. If an exception can be created in the application of the Verse (5: 38) in the punishment of theft for a petty thief, then there is no reason to presume that no exception for married person can be found in the application of the Verse (24 : 2) on the penalty of Zina.

296. The other argument of the learned counsel for the petitioners is that the punishment for the offence of Zina would be that which is capable of being halved or doubled. In verse (4: 25) referred to above a free woman within the matrimonial state or out of it has been mentioned against a slave woman of the similar State. The punishment for a free unmarried woman who commits this offence is 100 lashes. If a slave woman indulged in this offence she is by virtue of this Verse liable to the punished 50 stripes i. e. Half of that.

297. The word used in the Verse, in respect of free women is mohsinat. Under the scheme of the Holy Book this word is not always used for the women in the wedlock but a free woman is always called a mohsina. And the argu--ments of the petitioner in respect of this word as being capable of meaning married and unmarried both, mentioned earlier, are correct to this extent. Therefore, this word is capable of being interpreted as meaning a free femate either married or unmarried. No doubt the punishments for a married woman i.e. mohsinah is atoning to death as against unmarried one who is to be 8 given 100 lashes. In the case of a slave female, either married or unmarried, it is not necessary that each of the two punishment prescribed for the above two stated categories of mohsinat be capable of being halved because of the concession granted to the slave. Any one of the two punishments which could be halved would be taken as the basis for the calculation. It is for this reason that in every school of Fiqh, a slave woman has been held liable to 50 lashes both in the offence of fornication as well as of adultery.

298. The case of the wives of the Holy Prophet (May God be pleased with them) as stated in Verse (33: 30) has no bearing on the subject as in the .Verse under reference offence of Zina simpliciter is not mentioned for inviting double of the normal fixed punishment but the words are fahishta mabeena which translated in English are "manifest lewdness". Manifest lewdness can be in any form of undesirable open immodesty and the punishment warning of which has been given in this Verse, by necessity would mean punishment to be meted out Hereafter i. e. In the next world in which a punishment could be double or even ten times of any amount or type of worldly punishment. The words azzab zaefeen used in this Verse, although capable of meaning corporal punishment as well as punishment in the life after, death, have been used in the context of 'manifest lewdness' in the latter sense. mohsin of mohsinais not to be put to death, he could certainly be in a position to marry after the punishment is meted out to him within the prescribed category of opposite sex. The case of a mohsin or mohsina is different as he or she is a married person, whose remarriage in the continuity of the wedlock becomes out of question. Cases of widower or divorcee culprits is of course on different footing, but remarrying after the punishment is not mandatory so as to render stoning to death not permissible. The Verse under reference only permits a Zani or Zania to marry within his or her category of culprits or to marry an adulterer or adulteress. This permission will only be available in cases of those on who are in a position to do so as having not been awarded the punishment of death by stoning. As an unmarried person is not awarded Rajm and it is an unmarried person who is to marry, this Verse by it necessary intendment relates to non-Muhsans and non-Muhsanat.

299. Coming to the objection of the petitioners to the definition of the word 'adult' I fail to see any cause of grievance therefor. Their argument is that in Islamic Law a person becomes an adult on attaining puberty. In clause (a) of section 2 of the Ordinance, the insertion of the 'phrase or has attained puberty' after giving the ages of eighteen and sixteen, respectively for a male and female, clearly means that these ages are to be considered sufficient for attaining puberty in case the exact time when one attained puberty is not ascertainable, otherwise an adult would be the who has attained puberty. From the plain reading of the definition in question it becomes crystal clear that the stress is not on the age of the males and females but it is on their attaining puberty. In this view of the of matter no exception can be taken to this clause as by treating a male of eighteen years of age and a female of sixteen years of age as adults where it is not known when they have become puberts would not be against any injunctions of Islam although it might be against a rule of Fiqh of a certain school of theologians. Similarly the definition given to the word Muhsan in clause (d) of section 2 of the Ordinance is in conformity with the g thinking of a number of schools of Fiqh and, therefore, cannot be said to repugnant to the Injunctions of Islam. I also fail to find any fault with the definition of the 'Tazir' given under clause (e) ibid as Tazir in legal, terminology is an unfixed punishment which is left to the discretion of the Qazi or the state. The same is the case with, section 8 and 17 of the P Ordinance. Laying down the quantum and the quality of evidence for bringing home the offence of Zina or Zina-bil-Jabber liable to Hadd to the --accused is not against any tenet of the Holy Book and Sunnah. Rather the position is converse. The mode of execution of punishment laid down under section 17 also finds ample support from a number of Ahadith and is a recognised provision of law by the or thodox schools of Muslim. Law. T provision for bringing to, an end the life of the offender with a fire-arm she after commencement of atoning is also not against the spirit of law in view o R what has earlier been discussed concerning Quranic punishments and which need not be repeated here.

300. COURT ORDER By a majority of four to one both the petitions are allowed, and it is declared that the provision of sentence of 'Kajm' as Hadd in sections 5 and 6 of the Offence of Zina (Enforcement of Hudood)

301. Ordinance, 1979, are repugnant to the Injunctions of Islam and that the only Hadd is one hundred stripes. Necessary amendments be made in the sections noted above by the 31 of July, 1981.