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Thread: Zina bil Jabr

  1. #16
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    Default Re: Zina bil Jabr

    claim of rape against a person

  2. #17
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    Default Re: Zina bil Jabr

    just a point of clarification of my view: witnesses are not required for the hadd punishment for the accused or to determine the veracity of the claim of the accuser.

    The topic discussed is whether witnesses are required to determine the claim for Zina bil Jabr (rape) and would it be still required to impose a punishment on the accused

  3. #18
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    Default Re: Zina bil Jabr

    and eventually to research evidences from the stand point of traditional jurispudence

  4. #19
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    Default Re: Zina bil Jabr

    i believe brother lumumba has taken it as the victim being innocent of accusation of fornication, from the accused, against the claim of rape by the accuser

  5. #20
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    Default Re: Zina bil Jabr

    I came across a hadith earlier which instigated this thread and it was from Prof Dr Anwarullah book “The Criminal Law of Islam” where he writes:

    to some jurists the offence of zina bi al-Jabr (zina under coercion) can be proved by the sole testimony of the victim, ie the woman who is coerced to commit zina.
    based on this hadith:

    It has been related that in the period of the Holy Prophet a woman was going to mosque for prayers early in the morning. As it was darkness a man attacked her and made illicit sexual intercourse with her forcibly and then ran away. Suddenly another man who was also going to mosque met her and she related to him the whole story. That man went in search of the first man who was the offender. Meanwhile a group of persons met that woman and she also explained to them the whole situation.

    They also went in search of the real culprit. These persons while searching the real culprit met the second man who was also searching the real culprit and caught him. He was silent and was in terrible situation. They brought him before that woman and she also confirmed that he was the man who coerced her to commit zina. Thus they brought both of them to the Prophet. The Prophet said to him, ‘Have you committed zina with this woman forcibly.’ He remained silent. On the other side the woman testified before the Prophet that he was the man who committed zina with her forcibly. The Prophet ordered to stone him to death. But as the real offender was present the at that time, he stood and said, ‘I have committed zina with this woman forcibly and not this man.’ On this the Prophet released him.


    and that the only difference among the jurists was based on:

    whether the order of the Prophet for stoning him to death in the above mentioned hadith was solely base on the testimony of the victim woman or was base on other circumstances as well. Allamah Ibn Qayyim after relating the above hadith, states that the order of the Prophet was based on circumstantial evidence – the silence of the accused, his being arrested by the persons who were present and the testimony of the victim woman who was also present.
    meaning that the other jurists based it on circumstantial evidence and not on sole testimony

  6. #21
    Veteran Member lumumba_s's Avatar
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    Default Re: Zina bil Jabr

    These one line replies are confusing... There are two different issues, the act of sexual intercourse and whether or not a crime was committed. The hadd is only implemented when there is absolute certainty, in the presence of doubt, it is abandoned. That being the case, if there is legitimate doubt regarding whether or not the person making the accusations engaged in a willful sexual act, the hadd is not applied. Likewise, if there is legitimate doubt that the accused committed an act of rape and not mere intercourse, the hadd (which according to the circumstance, could be death) is likewise not applied. Otherwise, all a woman would have to do to get revenge at her lover would be to claim that he had raped her and if her testimony alone was sufficient, chaos would be the result.
    "Allah is the point. If it is other-than-Allah, then it is besides the point." - Nuh Ha Mim Keller

  7. #22
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    Default Re: Zina bil Jabr

    Quote Originally Posted by vinod View Post
    I need a lumumba here. In Islamic law who brings the action for rape - the state or the victim?
    I don't understand the question.
    "Allah is the point. If it is other-than-Allah, then it is besides the point." - Nuh Ha Mim Keller

  8. #23
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    Default Re: Zina bil Jabr

    i believe the chaos would be succumbed with evidences during the process of deliberation in a court of law. The above excerpt certainly sheds light on the topic at hand doesn't it?

  9. #24
    Veteran Member lumumba_s's Avatar
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    Default Re: Zina bil Jabr

    I do not believe that four witnesses are required, but minus obvious signs of extreme battery, how can you ascertain that it was actually rape and not merely vigorous intercourse?
    "Allah is the point. If it is other-than-Allah, then it is besides the point." - Nuh Ha Mim Keller

  10. #25
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    Default Re: Zina bil Jabr

    Salaam all,

    and that the only difference among the jurists was based on:


    Quote:
    whether the order of the Prophet for stoning him to death in the above mentioned hadith was solely base on the testimony of the victim woman or was base on other circumstances as well. Allamah Ibn Qayyim after relating the above hadith, states that the order of the Prophet was based on circumstantial evidence – the silence of the accused, his being arrested by the persons who were present and the testimony of the victim woman who was also present.

    meaning that the other jurists based it on circumstantial evidence and not on sole testimony
    There is a big difference here. The silence of the accused was taken as an implicit acceptance of guilt. So, the hadeeth does not apply if the accused denied the charge. In that case, it will have to depend on some other factors:

    1- His testimony vs her testimony. Probably, if he swore to deny it then he will be let free, unless he is a proven untrustworthy person whose testimony is questionable or there is some stronger evidence against him, which is really uncommon. In this case, then one will have to go to other factors.

    2- The quality and veracity of the other circumstantial evidences. It will have to be judged in a case by case basis depending on the evidence. Here, the judge can apply a punishment but it probably should not be a traditional Hadd punishment. Basically, he would resort to Taazir.

    3- The presence or absence of four witnesses.

    Those are my personal thoughts and take care all


    Hussein
    To consider that our logic is logical all the time is actually illogical. To consider that our understanding of the text is correct all the time is also illogical.

  11. #26
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    Default Re: Zina bil Jabr

    i believe the hadd punishment would still be applicable to the accused in cases of Zina bil Jabr as it would in cases of Zina bil-Raza, i can percieve how the element of 4 witnesses to determine guilt would not be a requirement for hadd punishment in cases of Zina bil Jabr as it would in cases with Zina bil-Raza and that other evidences could be used whether forensic or circumstantial to determine the veracity of claims of Zina bil Jabr .

    The accuser in the above hadith had initially accused the wrong person, i dont see it as a formulation of those points youve written but on a much subtler level in that the one remaining silent was trusting in the will of Allah..after all who can be in a better company than Allah and his messenger when relying on justice..

  12. #27
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    Default Re: Zina bil Jabr

    Quote Originally Posted by lumumba_s View Post
    I do not believe that four witnesses are required, but minus obvious signs of extreme battery, how can you ascertain that it was actually rape and not merely vigorous intercourse?
    it could be left upto the determination judge and apart from evidences of battery as you've suggested, it could also be based on other evidences such as prior convictions, moral standing, testimonials of character, circumstances and surroundings, inconsistencies in affadavits, psychological evaluation...nevertheless it still wont be an adhoc lynching, it would be a deliberate attempt to ascertaining the truth within a court of law

  13. #28
    Veteran Member lumumba_s's Avatar
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    Default Re: Zina bil Jabr

    Quote Originally Posted by hasan View Post
    it could also be based on other evidences such as prior convictions, moral standing, testimonials of character, circumstances and surroundings, inconsistencies in affadavits, psychological evaluation...
    None of those are evidences (minus the affidavit inconsistency - potentially), only circumstantial considerations that have no bearing on determining whether or not a crime was committed.
    "Allah is the point. If it is other-than-Allah, then it is besides the point." - Nuh Ha Mim Keller

  14. #29
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    Default Re: Zina bil Jabr

    The use of Zina is improper in the context of rape. There is no such thing as forcible zina. As such there is no zina "bil jabr" and the zina "bil raza. The first is completely contrary to the issue; zina implies "raza" in the first place. I don't understand why they are being used this way.

  15. #30
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    Default Re: Zina bil Jabr

    Quote Originally Posted by lumumba_s View Post
    These one line replies are confusing... .
    second that
    Islamic Thought In the Modern Era of the Islamic Awakening: Dissemination of Islamic research and studies
    al-Mustaqeem Publications
    “The bonds of Islam will be broken one by one. Every time a bond is undone, the people will cling to the bond that follows. The first of these bonds is rulership (khilaafa) and the last is the prayer (salah).” Reported by Ahmad and Tabarani. Al-Hakim stated that the chain is authentic.

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