Penal Code : Islamic Concepts
Presently in Pakistan the criminal justice system is primarily based upon a penal code that was codified by the British in the colonial era of their rule. It includes the Criminal Procedure Code of 1898 and Penal Code of 1860. These codes do not provide for and restorative justice hence they our system does not have any such inherited provisions. Our system is still based upon the accusatorial principle i.e. the state is a party in any criminal transaction. Punishment of the offender as a rule is the only remedy available as opposed to providing for any relief for the victim of the crime. It truly speaks of the underlying objective that the state is interested in maintaining ‘order’ and writ of the state in the society instead of taking care of the victim.
However Pakistan has tried to improve the inherited criminal laws making them beneficial for the society. In brief, these codified changes involve the Qisas and Diyat Ordinance “Crime of retribution and compensation (Diyah) involve homicide, bodily injury or other forms of harm committed against the physical security of the person. Homicide is of three categories: – It may be pre- meditated, involuntary, or voluntary. Pre-meditated homicide involves a penalty under the law of Qisas. Qisas refers to a specified punishment in Quran and Sunnah. They are labeled as such because the punishment imposed is either a just-retributive penalty equivalent to the injury inflicted on the victim, or takes the form of pecuniary compensation (Diyat) for the victim’s injuries. Diyat is imposed only if just- retribution is not executable or the victim waives his right to demand it. The decision whether or not to prosecute rests with the victim and his relatives. In the event of a conviction they have the choice between the retribution, compensation or pardoning the offender altogether. In case of pardoning, the court reserves power of discretionary punishment of the offender.
The Islamic law of just-retribution provides a very effective and practical means to put a stop to murder and safeguard human life. A man, who shows little regard for the life of another, henceforth loses his right to live. The option to pardon allowed to the heirs of the slain person, should not be regarded as likely to encourage murder, for such option is not synonymous with exemption from punishment as in ordinary circumstances the murderer will have to pay the blood-money. Moreover, the murderer does not know whether the relatives of his victim will in fact pardon him therefore the fear of capital punishment remains. Pardon or remission is permissible only where the circumstances are such that the pardon or remission is likely to improve conditions and bring about good results for all concerned parties. Islam seeks to remove the very root-cause of all crimes by working a complete moral reformation in man. The individualization of punishment under Islamic law is fundamental, whether as to Hadd, Qisas or Tazir. The Diyah, by contrast, is not strictly a punishment, but assumes the nature of compensation, which must be paid to the victim for injury. It is sometimes confused with punishment because the amount of compensation is specified in advance. That practice is evidence of the firm adherence to the principle.
Difference between Qisas and Revenge
There is a difference between Qisas and Revenge. In revenge, the punishment inflicted on the offender is neither equal nor similar. In qisas the equality of quantum of crime and of punishment is strictly adhered to. The law requires that a person shall not inflict a greater degree of harm than that which has been inflicted upon him. If equality iby way of qisas is not possible then an alternative punishment will be awarded. Secondly the process of revenge goes on between strong and weak while qisas is awarded by the order of the court and the entire community is under an obligation to help the victim until qisas is executed.
Preference of Diyah over Qisas
As between Qisas (just-retribution) and Diyah (blood money), the Quran clearly indicates the preference for the Diyah and forgiveness. Islam recommends reconciliation in murder cases so that peace and tranquility emerges ultimately. Murder is a compoundable offence under the existing law. Thus, the combination of Diyah and forgiveness produces a powerful material and spiritual inducement to forsake Qisas as retaliation. Consequently, one must interpret the crimes of Qisas as being based on a general deterrence policy which recognizes the victim’s sense of vindictiveness against his aggressor, while limiting the consequences of the penalty to the harm done and establishing the alternative remedies of victim compensation or outright forgiveness.
Qisas in Hurt Cases
The law includes many detailed provisions regarding cases of hurt and “Itlaf” (total or partial damage to any limb or organ of the body) and has provided for “Arsh” “Zaman” and “Diyah” as various modes of compensation.
At times, the full amount of compensation in the form of Diyah is payable to the aggrieved whereas, at other occasions, only a proportionate amount of Diyah is recoverable. If, for instance, the sole organ or limb of a person is totally damaged due to the act of an individual and he is deprived of making use thereof permanently, the full amount of Diyah would be recoverable. The cutting off of the nose etc. of an individual can be quoted as an instance. If both organs or limbs like hands, eyes, feet are damaged, full compensation in the form of Diyah would be payable but if one of the two is damaged then proportionate Diyah to the extent of one-half would be payable. This principle would follow in other cases as well.
It should be noted that in certain circumstances, a fine could only be imposed if the damage caused is of a negligible extent. If a person has, for instance, six fingers of a hand and damage is caused totally or partially to the sixth additional finger, no compensation in the form of Diyah can be recovered. But the aggrieved person can only approach the court that shall award him reasonable compensation by imposing a fine on the offender. Similarly, if certain damage is caused to a sexual organ of an impotent male person, the victim can only be compensated by way of payment of a fine because it cannot be said that he suffered an irreparable loss. The fact cannot, however, be lost sight of that in certain cases a larger amount of compensation by way of Diyah can also be granted if the damage caused is of an extensive nature. If, for instance, one of the teeth out of 32 teeth is initially damaged but the said damage has also adversely affected the remaining 31 teeth, the offender must compensate the victim for the damage caused partially to the said 31 teeth.
Other Expenses Recoverable
It would be an injustice to the victim, if he were not awarded compensation for the injuries sustained, but rather left to expend his own money on the treatment of the inflicted injuries. The present law is not oblivious to the practical difficulties and the hardships of the victim and has specifically provided that the victim must be given adequate relief and compensation for hospital expenses, pain and suffering caused by the injury and pecuniary loss.
Provision for Negligent Driving
Negligent Driving and other rash acts causing hurt entail criminal punishment under the law besides “Arsh” and “Daman” specified for the offence.
Sometimes an offender may be helped by his community to pay the blood money. When death has been caused by negligence or mistake, Aaqilah of the offender i.e. those who have a common interest with the offender arising out of their profession or simple neighborhood or the merchants who occupy premises in the same market, must pay the blood money to heirs of the deceased. The reason is that it is the duty of the person’s Aaqilah to watch over his conduct and the law presumes that the wrongdoer would not have acted in the way he did, unless they neglected their duties. In this way his community has been burdened with the so-called light penalty.
To prevent crime and making every locality conscious of being a helping hand in the overall objective of good order in society another novel concept has been introduced by the law, which is called “Qasamah”. It is a general term for oath. As Qasamah means, “to divide”, we seem to have here the usual transition between the meanings to cut and to decide so that Kasam’ would be the deciding, strong word. If a dead body is found in a certain locality with signs of foul play on it the heirs of the deceased are entitled to select a maximum of fifty inhabitants from the place to take an oath that none of them killed him. If they take the oath then the competent court of jurisdiction has the discretion to nominate several or all of the inhabitants for the payment of blood money. Whoever refuses to take the oath shall be kept in simple imprisonment until the time of his confession, or his willingness to take the oath, or disclosure of information pertaining to the real murderer. Similarly, if a dead body is found at the door of a man’s house he will take the oath and if he swears that he did not kill him, then the court will decide as to whom is liable for the payment of Compensation.
Ghurrah (compensation) is due in the case of destruction of an embryo or a fully formed child still-born as a result of assault suffered by the mother during her pregnancy. Thus the law provides an effective remedy in case of injury to unborn children. From the above discussion, it is vividly clear that the Penal law of the country has provided ample opportunities of compensatory justice to the victim in the shape of Qisas, Diyat, Arsh, Zaman, Aaqila, Qasamah and Ghurrah. As mentioned earlier no homicide, hurt, injury or damage remains uncompensated, but despite the prevalent law, the ideal results in the area of restorative justice are yet to be achieved.
Haddood Ordinances of 1979
Hadd means to check or stop. It also means measure, limit and in law it means a punishment, the measure of which has been definitely fixed by the Holly Quran and Sunnah i.e. by the Holly Prophet (peace be upon him). The major crimes covered under this category are theft, robbery, illegal sexual intercourse, drinking of alcohol etc. Since Islam as a religion carries a full social system in its lap, therefore it has provided a complete societal restorative system for the tranquility, harmony and health of the society as a whole. In Pakistan, offences against the Property Ordinance, Zina Ordinance and Prohibition Order envisage such provisions.In Islam the various categories of punishment have been prescribed according to the nature, type, and its impact on the society or the individual victim. If the offence infringes the rights of Allah or in other words if it is against the good order and welfare of the entire community then the punishment is harsh. If it is a matter concerning the individual then forgiveness or compromise may be adopted.