Depending on the religion and marital status of the accused, the witness, and the evidence on which the conviction rests, there are two types of punishment under zina laws: Hadd and Tazir.
Hadd
In the case of fornication and adultery:
1. if the accused (male or female) is a muslim
a) confesses or
b) there are four adult, "pious", male muslim witnesses to the act of penetration (four female witnesses' testimony will not suffice for Hadd punishment), and
c) the accused is married,
then the accused must be sentenced to death by stoning.
2. If the accused is a non-muslim or unmarried and
a) confesses or
b) the crime is witnessed as described above, the accused must be sentenced to 100 lashes with a whip.
The maximum Hadd punishment for fornication, adultery or rape is identical. Although Hadd punishments have been imposed, none have been carried out to date. Although the structure of the laws and the nature of evidence required to establish guilt make the lesser punishment of Tazir more likely, if convicted, Hadd or the maximum sentence is mandatory.
Tazir
If the evidence falls short of what is required for maximum punishment but the case is still proven, then the accused is charged under a lesser class of punishment known as Tazir. - Here (unlike in the case of Hadd) women may testify on their own behalf if the judge should so allow it.
- Punishment for adultery or fornication is up to ten years in prison, thirty lashes with a whip and a fine of an indeterminate amount.
-Punishment for rape is up to twenty-five years in prison and thirty lashes. (The amount of punishment is up to the discretion of the judge.)
-For the purposes of Tazir, no distinction is made
between a married and unmarried offender.
-Insufficient evidence to impose a Hadd punishment may still result in conviction under Tazir. (That is, when women are unable to prove rape under Hadd or even Tazir they can be charged with illicit sex under Tazir)
According to advocates Asma Jahangir and Hina Jilani of the Human Rights Commission of Pakistan, Tazir punishments or public whippings occur frequently. They argue that prior penal laws, even though they gave a secondary status to women, protected them somewhat. Previously, only a husband could file a charge of adultery against his wife and he could revoke it any time. With the Hadood laws, rape is subsumed under the category zina so that if coercion cannot be proved, the victim becomes an offender who has enjoyed illicit sexual activity. The raped victim has no right to testify on her own behalf.
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