Shared by Zafar Khizer
http://dawn.com/2013/05/30/rape-cases-cii-says-dna-data-not-acceptable-as-primary-evidence/
Thinkers' Forum USA
A Site for Intellectual Empowerment and Exchange of Ideas
Shared by Zafar Khizer
http://dawn.com/2013/05/30/rape-cases-cii-says-dna-data-not-acceptable-as-primary-evidence/
Just when you think things cannot get any dumber, they do.
Shoeb
This is an excellent comment.
“Just when you think things cannot get any dumber, they do.”
It is a prime example of Shakespearean quote “Brevity is the soul of wit”.
But sometime too much brevity can be subject to multi-interpretations or may result into some misguided inferences.
A little bit more elaboration from Dr. Shoeb Amin in ref. to this comment would be helpful.
Noor Salik
What CII has said is strictly in accordance with the Islamic edicts. Four
pious adult male Muslims have to testify that they actually saw the physical
act of penetration.
The question is why would pious Muslims not intervene? Is being a witness
more according to the Will and Wish of Allah than saving a woman from
brutality.
And mind you it has to be a Muslim woman as doing whatever to a non-Muslim
woman is permissible, no matter if there four, eight or even sixteen such
witnesses.
E
Dr. S. Akhtar Ehtisham
I would like to analyze Dr. Syed A. Ehtisham’s comment on CII (Council of Islamic Ideology).
Syed Ehtisham’s comment is comprised of three points:
(1) “What CII has said is strictly in accordance with the Islamic edicts. Four
pious adult male Muslims have to testify that they actually saw the physical
act of penetration”.
I think there is no disagreement on this point. If you disagree, please enter your comment here in the website not in the email.
(2) “The question is why would pious Muslims not intervene? Is being a witness
more according to the Will and Wish of Allah than saving a woman from
brutality”.
Here Syed Ehtisham is playing the role of an analytical thinker.
He has questioned the Islamic edict.
He has asked “why would pious Muslims not intervene?”
What do you think? Is it a valid question or not?
Have Islamic jurists raised this point that witnesses to a rape are obligated to intervene and help the victim of rape to rescue her from this ordeal.
A witness to a rape should be just a spectator to the tragic event or he is obligated to intervene and help the victim if possible.
(3) “And mind you it has to be a Muslim woman as doing whatever to a non-Muslim
woman is permissible, no matter if there four, eight or even sixteen such
witnesses”.
I am not sure whether third point is Dr. Ehtisham’s personal reflection on this situation or it is a valid point from Islamic Law/Jurisprudence.
I would welcome other affiliates to comment here if they feel like.
Noor Salik
Declaration of C I I about DNA in rape cases is wise and thoughtful and strictly in accordance with Islamic as well as non Islamic jurisprudences.One must realize that DNA is a circumstantial evidence and in any system specially in British common law currently practiced in USA,BRITISH, CANADA,INDIA,PAKISTAN etc never use DNA as exclusively and conclusively just as ruled by C I I. It is highly commendable that C I I has not denied the use of this (DNA) scientific approach in reaching a fair judgement which must have disappointed some elements.
People should also realize that C I I is not one of the 3 branches of govt and do not bind anyone,it’s only an advisory committee, though very important in modernizing the system In conformity with tenants of Islam. I expected a better reporting by a newspaper with as high stature as DAWN.
I read the comment by Syed Ajaz-ud-Din Shah.
The most commendable aspect of this comment is it is non-conventional, independent and expressing a point of view which different and innovative.
Syed Ajaz-ud-Din Shah says:
” I expected a better reporting by a newspaper with as high stature as DAWN.”
Let me ask a question as a lay person.
Islam was introduced in this world in the early part of 7th century – from 610 to 632.
Four Sunni Imams came and hadith was collected in 8th and 9th centuries approximately.
Normally it is believed that four Male witnesses are required to convict the perpetrator of Rape.
Evidence of DNA is a modern invention – 20th century.
Here is a question for Syed Ajaz-ud-Din Shah.
A woman claims that she was a victim of rape.
She knows the name of the perpetrator Mr. X.
There are no four male witnesses as required by the Islamic Law.
But DNA evidence exists which proves that Mr. X is the perpetrator of this alleged crime.
The question is that simply based on DNA evidence Mr. X can be convicted of the crime of rape in an Islamic court?
Noor Salik
I did not adressed questions by Dr.Ehtesham and Mr.Noor because I believed thy were not relevant to the CII ruling about rape and DNA.Anyway the answer to the Q is yes indeed the perpetrator can be punished,provided all elements of rape are present.Essential elements of rape are
1. Without consent or consent is obtained by force, fraud,coercion,undue influence,misrepresentation etc.or incompetent to consent due to sickness or the subject has not attained the age of puberty.
2. Penetration (if no penetration has taken place it can be different offense e.g fondling)
Qazi/judges have extensive powers,they can take into consideration from eye witness to any kind of forensic evidence including DNA. Judges can also consider any mitigating or aggravating factors while sentencing.
Four witnesses have nothing to do to prove rape they only come into play in cases of fornication and adultery.Actually it is meant to protect women and men both from false accusation of adultery and fornication suppose a women get pregnant as a result of rape and couldn’t prove that penetration was without her consent,she could be exonerated due to lack of 4 witnesses unless she admits herself e.g in the case of a Saudi princes Ms. Mishaal bint e Fahad was charged for zina and was persuaded by her family to deny,there was no witnesses and she could have walked free but she choose to admit and was executed along with her boyfriend in 1977.
It is a misconception that you need 4 witnesses to prove rape,how it is possible that 4 adults are watching such a violent and heinous crime like a show and perpetrator is also calm and collected and has confidence that no intervention is possible by the spectators.
It is also necessary to understand the difference between rape,adultery and fornication in order to understand the degree of culpability.
I disagree with some of Ajaz sahib’s comments. I thought most criminal cases actually hinge on circumstantial evidence. Most murder cases have no witnesses; they are decided by DNA, fingerprints,ballistics, hair, fiber etc.; all of which are circumstantial evidences. On the other hand a lot of people have been released from jail after many years on incarceration on the basis of DNA evidence proving some other person had committed that crime. In any case needing 4 witnesses is very silly; brings up the question, what were those 4 witnesses doing while this heinous crime was being committed? Are they enjoying the scene or waiting for the privilege to be witnesses(this question was originally asked by ehtisham sahib).
DNA evidence should be seen in the proper context of forensic science in criminal prosecution. This includes various types of physical evidence – signs of physical abuse, body fluids, clothing, where and how collected. DNA analysis is the culmination of a professionally rendered process. It has value only when it is properly rendered by a number of professionals. So the old ideas of 4 witnesses has to be seen in that context.
Can Dr. Nasik pl. clarify what his comment means? It seems to me that your comment is saying that in the “right”(my word) context the 4 witness burden makes sense. Even though I am almost sure you are not saying that, I just wanted to make sure.
I’d like to comment on CII declarations first.
1. DNA is not acceptable as the primary as the primary evidence in cases of rape but it is a supporting evidence. It did say Islamic procedure to be adopted in rape cases:
I don’t see where it is saying that 4 witnesses are required in rape cases. It did say islamic procedure to be adopted. What is the islamic procedure in cases of rape? Rape is another form of oppression. DNA is a supporting evidence to prove that Mr. X committed this crime. Next step is to figure out whether it was with consent or without consent. If it was with consent then it is fornication/adultery and that has a different course of action. If it was without consent then it is oppression and it falls in that category. Oppression is prohibited as per the rules of God. Whatever the constitution/law of land determines the punishment for oppression that is what must be practiced. In no way I am saying here that this is how it’s done in an “Islamic State” but I am just analyzing this article.
BTW, from what I have read in Quran not the interpretations, even in cases of adultery, 4 witnesses isn’t a must. If someone accused a woman (not a man) of adultery and cannot produce 4 witnesses to prove then he/she must be punished (24:4). If a man accuses his wife of adultery and he doesn’t have 4 witnesses then he MUST testify four times and fifth time he MUST say, “If I am lying, I will suffer Allah’s wrath”. In a response the wife has the option to plead not guilty by testifying 4 times in her favor and 5th time saying, “If I am lying, I will suffer Allah’s wrath” (24:6-9). If she has done that then she MUST be exonerated. This is islamic procedure.
2. There was nothing wrong with the blasphemy law and it didn’t need amendment:
This law doesn’t have any place in islam. All over Quran, Allah has mentioned how prophets had been mocked and abused. They were called liars, foolish men, fabricators, possessed but nowhere does Quran mention any punishment for it.
3. It declared human cloning illegal because it is against Islam:
I haven’t read anything in Quran about this. There is no evidence in favor of or opposing this. Which by default means, it holds no significance in islam. It’s a natural scientific evolution.
4. The CII directed the Higher Education Commission and other institutions to correct English translation of ‘Allah’, ‘Rasool’ and ‘Masjid’. It said the usage of ‘Holy Book’ and ‘Holy Place’ was illegal.
What is the english translation of Allah? It’s just Allah, right? Rasool is a messenger, Masjid is a mosque. Not sure what they are proposing. On the same lines, is saying Creator ok or does it have to the Arabic word “Khaaliq”?
5. It instructed the Director General, Research, Mohammad Ilyas Khan who is also CII secretary, to send letters to all provinces and Gilgit-Baltistan asking them to ensure Islamic education in their syllabus.
I agree if it’s only Quranic education without adding any interpretive flavors of sects. But as it stands right now, it’s highly unlikely. In which case, the current “Islamic” education/beliefs should not be taught in schools.
In short, CII should be abolished and banned and MUST be replaced by a group of critical thinkers who understand religion and the need of its integration with the ever changing social and moral values.
Noor uncle, with your permission, I’d like to comment on one statement you made;
“Islam was introduced in this world in the early part of 7th century – from 610 to 632.
Four Sunni Imams came and hadith was collected in 8th and 9th centuries approximately”
IMHO, islam was always God’s religion. Islam means “submission” and muslim means “submitter”. If God for Noah, Abraham, Moses, Jesus, Ram, Budha is the same then the only religion they followed is submission and whoever followed submission was and is a submitter. The religion of submission has always been divided/subdivided by its followers resulting in new sects and ideologies. Budaism, Hinduism, Christianity, Judha’ism, Sunni’ism, Shia’ism, Brelvi’ism, Hanafi’ism are some of the examples of these sects.