Here’s the smell of blood still; all the perfumes of
Arabia will not sweeten this little hand.
But many of the human rights activists in Pakistan will.
So long as the hand is not masculine. We have all ‘heard that it was said by
them of old time, Thou shalt not kill’. Now, hear this: [Woman] Thou mayst
kill. Thou mayst take the life of another human and yet live thine.
O Judgement! Thou art fled...
And men have lost their reason
There are many in our society who hailed efforts of the
federal cabinet of the previous government to exempt women from capital
punishment. That government is gone for now. But those who raised victory
signs after the federal cabinet’s decision in June 1996 to have this law
passed are very much there. The issue is therefore alive: Should the Pakistani
woman be exempted from capital punishment?
There is no doubt about the fact that women face many
hardships in our society and that a great part of the work being done by human
rights and women’s rights activists to alleviate the suffering of the average
Pakistani woman is truly worthy of praise in spite of being merely palliative
at best. There is also no doubt that unfortunately many of her troubles are
the result of misinterpretation of Islam. Yet, the solution lies neither in
breaking away from a religion which pervades society nor in using impractical
strategies to implement the directives of such a religion.
What is required is a thorough study of Islam vis-a-vis
the social problems in question so that correct interpretation of religion is
made and viable solutions of the problems are worked out. For this purpose,
religious scholars should also be consulted.
Governments which deviate from religious norms of our
society to solve its problems not only face scorn from many religious
quarters, which have a strong hold on the minds of the masses, but also fail
to realise that in a society as ours it is almost impossible to convince the
majority of people, including the victims of misinterpreted religious
directives, to alienate themselves from long held views.
Similarly, those who, in their haste to score political
wins, resort to badly worked out strategies to implement Islamic laws either
retrieve embarrassingly from their own stance (which, by the way, rarely makes
any difference to them) or unnecessarily make the victims of religious
misinterpretation and their sympathisers averse to Islam.
Without correct interpretation based on thorough
research work on Islam and wise policies for implementing its directives,
social problems as are usually confronted by women in our society are bound to
remain. Those working for women’s rights may have helped many women, but the
cries of thousands of others still remain unheard. How many women -- and their
male relations -- would benefit if it were conclusively proved to our
legislature that at no place does the Qur’ān even concern itself with the
worth of a woman’s testimony in contrast with that of a man’s?
How much confusion could have been avoided if it were known that Diyyah
of a woman is not half that of a man and that the Qur’ān leaves the question
of the amount of Diyyah, whether of a man or of a woman, to equitable
conventions of society? How much
of the embarrassment and pain many young ladies and their families faced could
have been averted if it were clear that the condition of Walī’s
consent in marriage is not one the absence of which makes a contract of
marriage void ab initio (therefore there are no grounds for indicting those
who have had court marriages for fornication), and, that in cases where
deviation is made from this norm of an Islamic society of having Walī’s
consent in marriage, the fate of
the marriage should be decided by the court, which should keep in mind the
principle that in the absence of a general awareness of the correct law, there
is a great room in Islam for lighter penalties and in some cases even for
In all these cases, an in-depth study of the original
sources of knowledge on Islam and greater discretion in the implementation of
its laws would have solved the problems which many had to face unnecessarily.
The idea of exempting women from capital punishment is
also not consistent either with Islam or with dictates of common sense.
The point that needs to be understood here is that in
Islamic law, just as in any other system of law, the punishments for various
crimes are the ultimate form of legal chastisement prescribed, which means
that there is room, on the basis of extenuating circumstances, for lighter
sentences. Whether or not the circumstances in a particular case are
extenuating is a matter for the court to decide.
Among factors on the basis of which allowance may be
given, mental, moral and social condition of the offender, his or her
intention and the elements of coercion and undue influence must also be given
their due weight.
For example, in the following instances, there is an
obvious ground for alleviation:
i) theft of food to assuage pangs of sheer hunger.
ii) killing an assailant who, if left alive, would have
taken the person’s life; in other words, killing for self-defence.
iii) a crime committed in innocence by a mentally
delinquent person or a child.
iv) prostitution by a woman under coercion (see the
v) fornication by a woman brought up in conditions of
such deprivation that she never had a proper chance to imbibe the norms of
morality; for example, only half the punishment for fornication was prescribed
for slave-girls in the Prophet’s time (sws). (See the Qur’ān 4:25)
There is even room for lighter sentences in cases of
recidivists and perverts who become a danger to the society or the state, and
to this category belong the likes of rapists, robbers and serial killers for
whom the punishments in Islam are more harsh than for the ordinary criminal.
For example, a person found guilty of fornication is given a hundred stripes
whereas a pervert who shatters the honour of scores of families is killed in a
ruthless manner (for example by stoning him to death) so that the punishment
may serve as a reminder to all.
But even in such cases, a lighter sentence of banishment may be given if there
is a reasonable basis for such allowance.
In all these cases, the basis for alleviation is
extenuating circumstances, not sex. The context of the relevant verses in the
Qur’ān refuses to accept any distinction in this regard merely on the basis of
gender. In fact, in case of
extramarital sex, the woman has been mention before the man, even though in
this case Women’s Lib workers would probably prefer a deviation from their
cherished principle of Ladies First.
It should be obvious from the points made above that the
severity in meting out these punishments is justified by virtue of the fact
that these punishments are awarded only after it is thoroughly determined that
there is no reasonable basis for any alleviation. Thereafter, acquitting or
exonerating a criminal amounts to condoning his or her crime, and this
attitude often leads to personal vendettas, which shake the foundation of
In Mario Puzo’s novel, The Godfather, Amerigo Bonesera
decides to go to Don Corleone (a Mafia chief) when a New York judge acquits
the two young ruffians -- one of them the son of a powerful politician -- who
had brutally assaulted Amerigo Bonesera’s lovely, young daughter. It is then
that the law-abiding Amerigo Bonesera, who had always believed in America,
says to his uncomprehending wife: ‘They have made fools of us. We must go to
Don Corleone for Justice.’ The Qur’ānic verse ‘in Qisās
there is life for you...’ (2:179) refers to the fact that when the state lets
a criminal walk away and in that way deprives people of justice, more often
than not they go to Don Corleone for it.
The following words of the Prophet of Allah (sws)
indicate how important justice is in such matters:
By God, if Mohammad’s daughter Fātimah had committed
theft, I should have definitely cut off her hand (Muslim, Kitāb-al-Hudūd)
If the Prophet of Allah (sws) was not ready to give
allowance on any basis apart from ‘extenuating circumstances’, no one else has
the right to.
This principle, however, does not mean that due weight
should not be given to other dictates of common sense and good judgement. For
example, while deciding whether a person is guilty of theft or not, it should
not be ignored that the words used by the Qur’ān are Al-Sāriq and Al-Sāriqah
(the thief -- man and woman) not man saraqa (one who commits theft), which
implies that only such a person as can be called a ‘thief’ in the usual sense
of the word be awarded the punishment of amputation. In other words, if a
child takes out a few candies from his or her mother’s cookie jar, it cannot
be said that the child is a ‘thief’ in the usual sense of the word. Similarly,
if a wife takes out a few rupees of her husband, without his permission, to
meet some immediate need, she does not become a ‘thief’.
Any woman -- or man -- deserves alleviation on the basis
of the factors mentioned above. But to say that the Pakistani woman inherently
deserves exemption from capital punishment is tantamount to an insult to her
intellect and to the society as a whole.
Those who advocate a general immunity for women from
capital punishment may be asked many questions before their point of view is
i) Are women to be generally categorised among those
whose intellectual level is close to that of a child or a mentally delinquent
person, who are inherently not liable for their actions?
ii) What if a woman murders a woman? What if no
extenuating circumstances whatsoever exist in case of the murderess? Will she
be exonerated merely because of her femininity?
iii) Wouldn’t it be better to decide the fate of each
criminal -- man or woman -- on a case to case basis rather than granting women
general immunity and then incriminating a woman as an exceptional case when no
basis for any allowance is found?
iv) If our society has deteriorated to the extent that
all women, or most women, live in such deplorable conditions as give them a
reasonable basis to commit murder to allay their suffering, then isn’t much
more required to wipe such an ugly blot from the face of our society than just
legal immunity for a murderess? And if our society has truly degenerated to
that extent, then why even life sentence for a woman?
v) Is the cure for social evils permission to fight them
with greater evil? If a woman is harassed by a man (or a woman -- as is the
case in many domestic disputes), why not make effective laws to punish the man
at that point rather than letting things go so far that the women feel
compelled to do murder and then giving her a life sentence? Why not try to
make her family life better rather than facilitating her in becoming a
murderess? Is this sympathy with women? Is that the kind of mother we are
helping a woman to become?
To allow a lesser evil to avert a greater one is
understandable, but to allow a greater evil to avert a lesser one is simply
beyond comprehension. Isn’t it this perverse line of thinking which makes
people sympathise with a woman who decides to murder her unborn child -- the
consequence of rape -- but does not encourage society to bow down its head in
shame and to show her respect and to regard it a matter of great honour and
privilege if some young, respectable man comes forward to take her hand and
share her grief?
The truth of the matter is that the wisdom in the Divine
law cannot be surpassed. There is no doubt that the Qur’ān has discriminated
between a man and a woman as far as social responsibilities of each are
concerned. But as far as responsibility towards God is concerned, each of
them is liable for his or her actions:
And covet not the thing in which Allah has made some of
you excel others. To men shall be a reward [in the Hereafter] for what they
had done [in the worldly life] and for women a reward for what they had done.
Similarly, the Qur’ān says:
Whoever works evil shall be requited accordingly and he
will not find, besides Allah, any protector or helper. If any do deeds of
righteousness, be they men or women, and have faith, they shall enter Heaven
and not the least injustice shall be done to them. (4:123&124)