Answer
Introduction:
Punishment under Islamic Law is indeed very strict and deterred but very strict proof is also required to find guilty. The punishments are not only repressive and restrictive hut also reformative. Islamic Law has also known additional forms of punishment. The man who is convicted of false accusation of fornication for example, is deprived of the right of testimony, a penalty which corresponds to some extent to the loss of civil status which accompanies some convictions today. The offences which fall under aecia of these categories of punishment are well established in Islamic Law.
Definition of Punishment:
According to Black’s Law Dictionary; “Any fine, penalty or confinement inflicted upend a person by the authority of the law and the judgment and sentence of a court, for some crime or offence committed by him or for his omission of a duty enjoined by law”.
Objective of Punishment:
The principal object of punishment is the prevention of offences, and the measure of punishment must, consequently, vary from time to time according to the prevalence of a particular form of crime and other circumstances.
KINDS OF Punishment U/S 53 PPC
After the amendments in Pakistan Penal Code the kinds of punishments have changed and after such amendments the Pakistan Penal Code provides the kinds of punishment as following:
According to S. 53,
I. Qisas
2. Tazir
3. Arsh
4. Diyat
5. Daman
6. Fine
7 Death Punishments
8. Life Imprisonment
9. Forfeiture of property
10. Imprisonment.
1.Qisas
Meaning of Qisas:
“Qisas” means punishment by causing similar hurt at same part of the body of convict as he has caused to the victim or he’ casing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali.
Definition:
“Qisas” has been defined to mean punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali”.
According to S.299 (k) PPC. “Qisas means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death, if he has committed qatl-i-amd in exercise of the right of the victim or a wali.
Principle of Qisas:
The basic principle of Qisas is equality or similarity. It aims at to cause similar hurt at the same part of the body of the convict as far as possible, keeping in view the opinion of the authorized Medical Officer, as the offender has caused to the victim.
Exception of Qisas:
The following are the four cases in which Qisas is not applicable on the offender.
(a) Death of Offender: Where the offender dies before the enforcement of Qisas.
(b) Waiver by Wali: Where right of Qisas is waived by any Wali.
(c) Right of Qisas devolves on offender: When the right of Qisas devolves on the offender as result of the death of the Wali of the victim.
(d) Wali has no right of Qisas: Where right of Qisas devolves on the person who has no right of Qisas against the offender e.g. the son cannot enforce Qisas against his father.
Offences for Qisas:
Some cases of hurt are usually liable to Qisas; it can be awarded as punishment in the following offences:
1. Hurt
2. Qatl-i-Amd
1. Qisas in Hurt Cases: Some cases of hurt are usually liable to Qisas:
Some cases of hurt are usually liable to Qisas.
Exception: S.337-M of PPC provides some exception where hurt shall not be liable to Qisas. These are as follows:
1. when the offender is a minor or insane.
2. When an offender at the instance of the victim causes hut to him.
3.When the offender has caused Itlaf-i-udw of a physically imperfect organ of the victim and the convict does not
suffer from similar physical imperfection of such organ.
4. When the organ of the offender liable to Qisas is missing.
Qisas in QatI-i-Amd Cases:
Qatl-i-Amd is liable to Qisas if a proves by the confession of the accused before a Court of competent jurisdiction to try the offence or by the evidence an provided in Article 17 of the Qanun-e-Shahadat Ordinance.
Exceptions:
These are exceptions, the cases in which Qatl-i-Amd shall be liable to Qisas and where it cannot be enforced:
1. Under S. 306, PPC when the offender is non-puberty or insane.
2. When the offender causes death of his child or grandchild how low so ever and when Wali of victim is direct descendent, how low so ever of the offender.
3. Under S. 307 PPC where the offender dies before enforcement of Qisas.
4. When the Wall voluntarily and without duress, to the satisfaction of Court, waives the right of Qisas
5. When the right of Qisas devolves on the offender as a result of the death of the Wall of the by victim or on a person who has no right of Qisas against the Offender.
2. Tazir
Meaning of Tazir:
“Tazir” means punishment other than qisas
diyat, arsh and daman
According to U/S 299(l):
“Tazir means punishment other than Qisas, Diyat, Arsh or Daman”.
According to Sir Abdul Rahim; “The objects of the Tazir are the correction of the offender and prevention of the recurrence of the crime”. “It is inflicted in respect of those offences which are against human life and body, property, public peace and tranquility, decency, morals, religion, perjury, forgery, gambling and contempt at the present day is based on the principle of Tazir”.
Punishment of Tazir:
Tazir may be inflicted by imposition of fine, imprisonment etc. it is the punishment which is left to the discretion of the judge or court.
Tazir means punishment awarded by the court other than qisas, diyat, arsh and daman. It includes punishment of imprisonment, forfeiture of property and fine. Award of tazir has been left at the discretion of the court which should be exercised in a judicial manner and according to the facts and circumstances of the case.
3. Arsh
Meaning:
“Arsh” means the compensation specified in this chapter (Chapter XVI) to be paid by the offender to the victim or his heirs under this chapter.
According to S.299 (b); “Arsh means the compensation specified in P.P.C. to be paid to the victim or his heirs”.”
Value of Arsh:
The value of Arsh will be assessed at certain percentage indicated various provisions of the value of Diyat U/S 323 P.P.C.
Mode of Payment:
The Arsh will be payable in lumpsum or in installments spreading over three years from the date of final judgment.
Failure to pay Arsh:
In case of default, the offender may be kept in jail to serve the simple imprisonment until Arsh is paid in full. It may be awarded in the following sections.
Arsh for the organs in quadruplicate (S.337-S):
The arsh for causing itlaf of organs found in a human body in a set of four shall be equal to;
(a) one fourth of the diyat, if the itlaf is one of such organs,
(b) One half of the Diyat, if the itlaf is of two of such organs.
(c) There forth of the Diyat, if the itlaf is of three such organs, and
(d) Full Diyat, if the itlaf is of all the four organs
Explanation:
Arsh is compensation specified in the newly added chapter XVI, P.P.C. for offences relating to various kinds of hurt. [t is to be assessed at certain percentage of the value of Diyat. It is to be paid in lumpsum or in installments. In default the convict is liable to simple imprisonment. He may be released on bail against security of on equal amount Arsh can be awarded in addition to tazir. It is liability on the estate of deceased convict, if not paid during his lifetime.
4. Diyat
Meaning:
“Diyat” means the compensation specified in S. 323 payable to the heirs of the victim.
Value of Diyat: According to S.323(1), P.P.C.;
“The court shall, subject to the injunctions of Islam as laid down in the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim; fix the val1ue of Diyat which shall not be les than the value of thirty thousand six hundred six hundred and thirty grams (30, 630) of silver”
According to S.223(2) P.P.C.;
‘For the purpose of sub-section (1), the Federal Government shall, by notification in the official Gazette, declare the value of silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year
Explanation:
The value of diyat should not be less than the value of thirty thousand six hundred and thirty grams of silver. The words payable to the heirs of the victim specify that diyat is payable in case of Qatl-i-Amd not in cases of hurt. In cases of Qatl-i-Amd, diyat can be awarded where the offence committed is proved to be not liable to qisas of where qisas is not enforceable. The consideration in such cases is badl-e-sulh as laid down in S. 310
P.P.C.
Nature of Diyat:
In the definition the words “heirs of victim have been used and not the words “the victim or his heirs”. This means that Diyat is a compensation payable only in cases of Qati and not in cases of hurt.
The Court may. however, in certain cases award punishment of imprisonment as Tazir to addition to Diyat. It may be stated that the consideration for compounding of Qisas for compromise or waiver cannot be classed as Diyat. The said consideration is Badl-e-Sulh and it settled by the parties themselves subject to condition that Badl-eSulh shall not be less than the value of Diyat.
Condition for Application:
The punishment of Diyat is provided where an offender guilty of Qatl-i-Amd is not liable to Qisas or where Qisas is not enforceable.
Offences for Diyat: Diyat can be awarded as punishment in the following offences:
(i) Qatl-i-Amd under S. 302.
(ii) QatI Shibh-i-Amd under S. 316.
(iii) Qatl-i-Khata under S.319.
(iv) QatI-bis-Sabab under S.322.
Cases of QatI-e-Sabab and Qati-bis-Sabab:
The offender in cases of Qatl-e-Shibh-i-Amd and Qatl-i-Khata shall be liable to be punished with Diyat in addition to imprisonment as Tazir, but in Qati-bis-Sabab he shall be liable to Diyat only.
Mode to Fix the Value of Diyat:
In S. 323, for the P.P.C., it is mentioned that how Diyat is valued and who has the right to fix the amount of Diyat.
Power of Court in this regard:
According to S. 323, PPC, the Court shall fix the value of Diyat which shall not be less than the value 9f thirty thousand six hundred and thirty grams of silver.
Payment of Diyat:
Mode of payment of Diyat and consequences for the non-payment of Diyat are discussed under S.
331 of PPC.
Method to Pay Diyat:
The Diyat may be made payable:
(i) in lump sum; or
(ii) in installments spread over a period of three years from the date of the final judgment.
Result of Failure to Pay Diyat:
Where a convict fails to pay Diyat or any part thereof within the period specified earlier then one of the following steps may be taken by the Court.
(i) Simple imprisonment; The convict may be kept in jail and dealt within in the same manner as if sentenced to simple imprisonment until the Diyat is paid full.
(ii) Released on bail:
The convict may be released on bail if he furnishes security equivalent to the amount of Diyat
to the satisfaction of the Court.
In case of death of convict:
Where a convict dies before the payment of Diyat or any part thereof, it shall be recovered from his
Disbursement of Diyat:
Disbursement of Diyat is discussed U/s 330, PPC. According to this section, the Diyat shall be disbursed among the heirs of the victim according to their respective shares in inheritance.
In Case of Forego Share:
This section also provides that where an heir forgoes his share, the Diyat shall not he recovered to the extent of his share.
DIFFERENCE BETWEEN QISAS AND DIYAT
There are many differences between the two. These are the following—
(I) As to Principle:
Punishment under Qisas is always based on the principle of retaliation. On the other hand punishment of Diyat is based on a principle of compensation.
(ii) As to Nature:
Punishment of Qisas is physical in nature whereas Diyat is in form of blood money.
(iii) As to the Application: Normally punishment of Qisas is applicable in QatI and hurt cases.
(iv) As to Right: Qisas is the right of victim or the wali of the victim. On the other hand Diyat is the right of the wali of the victim and may be demanded by them only.
(v) As to defect of Waiver of Right: When wali of the victims waives his right of Qisas, it shall not applicable against convict. On the other hand in case of waving of right of Diyat by any of wali of the victim does not affect the rights of other.
(vi) In case of Qati:
Qisas is applicable only to the Qatl-e-Amd and Diyat is applicable on Qatl-i-Amd, QatIShibh-i-Amd, Qatl-i -Khata and Qata-bis-Sabab.
(vii) As to meaning:
Both terms have been different.
(viii) As to Exceptions:
In Qisas Cases there are certain exceptions but in Diyat cases there is no exceptions.
(ix) As to Substitute Punishment:
In Qisas cases substitite punishment is available in the Code. But this principle is not applicable in Diyat cases.
(x) As to proof:
The Code normally provides some proof in presence of which hurt or qatl becomes liable to Qisas.
But on the other hand Code does not provide specific for the involvement or implication of Diyat.
5. Daman
“Daman” means the compensation determined by the court to be pad by the offender to the victim for causing hurt not liable to arsh. (S.299(d) PPC.
Value of Daman:
The value of daman will he determined by the competent court of jurisdiction keeping in view—
(a) The expenses incurred on the treatment of the victim.
(b) Loss of disability caused in the functioning or power of any organ.
(c) The anguish suffered by the victim.
Explanation:
Daman has been defined.compensation fixed. by court payable by the offender to the victim or causing hurt not liable to Arsh. It is to be paid in lumpsum or in installment. In default the convict is liable to simpler imprisonment. He may be released on bail against security of an equal amount. It can be awarded in addition to tazir. It is liability on the estate of deceased convict if not paid during his lifetime.
6. Fine
Where no specific amount to he imposed as fine is mentioned, it shall be discretionary but not excessive. If punishment awarded for offence is fine only or imprisonment with fine, Court should direct that in default •of payment of the fine, the accused shall be imprisoned for a certain term which should be in addition to
imprisonment already awarded. (Ss. 63 and 64)
7. Death Punishment
in the cases of Qisas, death sentence is given to the accused person.
The Code describes death sentences in the following cases at to discretion of the courts:
(a)Waging war against the Government. (S.121)
(b) Abetment of mutiny committed. (S. 132)
(c) Fabricating or giving false evidence as. a result of which an innocent person suffers death. (S. 194)
(d) Murder (Qatl-e-Amd) (S. 302)
(e) To abet an insane, minor or in conceited to commit suicide (S. 305)
(f) Dacoity with murder (S. 396)
8. Life Imprisonment
There is only the case where death sentence is a must, i.e. when life prisoner in attempt to murder causes hurt. In all other case and life imprisonment is alternative to death sentence. Imprisonment for life for the purpose of calculation means imprisonment for 25 years. (S. 57)
9. Forfeiture of Property
See Ss. 61 and 62 and explain about forfeiture of property.
10. Imprisonment
Imprisonment which is of two descriptions namely:
(i) Rigorous, i.e. with hard labour,
(ii) Simple In case of rigorous imprisonment the prisoner is put to hard labour while in simple imprisonment he is confined to jail only.
There is also a third type of confinement known as solitary confinement. This can only be awarded to persons punished with rigorous imprisonment with the condition that whole period of solitary confinement should not exceed three months. Thus, the solitary confinement can only be awarded for the offences under the Penal Code in most exception cases. Ss. 73 and 74 of the Penal Code lay down the rules about solitary confinement