Answer
Ans:
Kinds of Punishments:
These are the following kinds of Punishments:
1. Qisas:
Qisas means the right of causing death of convict if has committed Qatl-i-arnd or hurt. The term Qisas is literally derived from Al-Qasas which means to follow in some ones foot I its legal sense, Qisas signifies or means to shed blood in repetition or retribution. Qisas is to award an equitable punishment to offender for an intentional crime of homicide or for serving any of the body or injuring it. The divine injunction in the Holy Qur’an is:
“The life for the life, and the eye for the eye and the nose for the nose and the ear for the ear and tooth for the tooth for wounds relation”.( 2: 179)
Again:
‘And one who attacks; attack him in like manner as he attacks you.’ (11:194)
The same injunction has been repeated in another verse.
if you, punish the punish with the like of that, where with you were afflicted’.
The punishment of Qisas is based upon the Islamic principle:
life for life; an eye for an eye. This is the highest form of punishment left at the disposal of the legal heirs and inflicted by the Court. e.g., the punishment of Qatl-i-amd is death as Qisas’.
Execution of Qisas
(I) Execution of Qisas in Qatl-i-Amd
(a) Qisas in Qatl-i-Amd shall be executed by a functionary of the Government by causing death of the convict as the Court may direct.
(b) Qisas shall not be executed until all the wali’ s are present at the time of execution, either persor9lly or through their representatives authorized by them in writing in this behalf:
Provided that where a wali or his representative fails to present himself on the date, time and place of execution of qisas after having been informed of the date, time and place as certified by the Court, and officer authorized by the Court shall give permission for the execution of qisas and the Government shall cause execution of qisas in the absence of such wali.
(c) If the convict is a woman who is pregnant, the Court may, in consultation with an authorized medical officer, postpone the execution of qisas upon a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released she shall be dealt with as if sentenced to simple imprisonment.
(ii) Execution of qisas for hurt:
(a) Qisas shall be executed in public by an authorized medical officer who shall before such execution examine the offender and take due care so as to ensure that the execution of qisas does not cause the death of the offender or exceed the hurt caused by him to the victim.
(b) The wali shall be present at the time of execution and if the wali or his representative is not present after having been informed of the date, time and place by the Court an officer authorized by the Court in this behalf shall give permission for the execution of qisas.
(c) If the convict is a woman who is pregnant the Court may, in consultation with an authorized medical officer, postpone the execution of qisas up to a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released shall be dealt with as if sentenced to simple imprisonment.
2. Diyat:
“Diyat” means the compensation specified in S. 323 payable to the heir of the victim.
The word Diyat has been derived from the Arabic word which means the flow of some liquid. From the word the other word derived is (valley), the place from where the rain-water flows. Applying the principles of Arabic-grammar, the initial word from has been omitted, and the word ‘They’ has been added, whereas, the word Diyat’ has formed.
Diyat is a compensation fixed by Law/Shariat payable to the heir of the victim by the offender. This blood-money is substitutory punishment for Qisas is the form of monetary compensation. It is a fixed punishment implementable as the right of the individual.
Value of Diyat:
According to Section 323. (1) The Court shall subject to the injunctions Islam as laid down in the Holy Qur’an arid Sunnah, and keeping in view the financial position of the convict and the heirs of the victim, fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of Silver.
Limit of Diyat Money:
The Diyat money has to be fixed keeping in view the financial position of the accused, but the same would not be less than Rs.1, 70, 610 equivalents to 30.630 grams of silver.
Payment of Diyat:
Payment of Diyat may be in the following ways, made:
1. The Diyat may be made payable in lump-sum or in installments spread over a period of three years from the date of the final judgment.
2. Where a convict fails to pay Diyat or any part thereof within the period specified in sub-section (1) the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
3. Where a convict dies before the payment of Diyat or any art thereof,b it shall be recovered from his estate.
Diyat can, be given:
In the following cases’ Diyat can be awarded:
1. Sections 306 to 307 Qatl-i-Amd not liable Qisas.
2. Section 321 Qatl-i-Amd after waiver or compounding of Qisas.
3. Section 315 Qati Shaibh-i-amd.
4. Section 318 Qatl Khata.
5. Section 32J QatI-bis-Sahab.
With the exception of Section 321 P.P.C. the Court can award tazir in addition Diyat.
Disbursement of’ Diyat:
The amount’ of Diyat is to be disbursed amongst the heirs of victim according to Shariah. In case were an heir foregoes his share it shall not be recovered. It can be ordered to be paid in lump sum or in installments by the court. In default the convict is liable, to simple imprisonment. He may be released on bail on security equivalent to the amount of Diyat to the satisfaction of the, Court.
Qisas and Diyat Difference:
The remedies for torts as’ recognized by Sharia are retaliation and compensation ‘in cases of infringement ‘of a man’s right to the safety of a person and restitution and compensation are the remedies proved for the violation of man’s proprietary right and for other wrongs of’ similar character.
The individualization, of punishment under Islamic law is fundamental whether as, to Hadd, Qisas or Tazir. The Diyat by contrast, is not strictly punishment, but is in the nature of compensation which must be aid to the victim as reparation for the 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 of equality of all persons before the law irrespective of social status.
When the criminal is poor, his family or his tribe assumes collective reasonability for paying compensation (Diyat) in cases of homicide or assault.
3. Daman:
According to S. 299-D. “Daman” means the compensation determined by the Court to be paid by the offender to the victim of causing hurt not liable to arsh. Daman is ordered for injuries where punishment of Arsh is not available. The value is not fixed or specified in the Ordinance. Its be determined in each case, by the Court keeping in view,
Firstly, expenses incurred on the treatment of victim’
secondly, loss or disability caused in functioning or power of any organ; and
Thirdly, for the anguish suffered by the s’c1irn 1 he Daman .‘d h court shall he payable to the victim or, if he victim dies, to his hair according t their respective shares in the inheritance,
In cases of Qati it will be proper, rather necessary for prosecution to provide the Court with a list of Wali, i.e., legal representatives of the deceased victim, as well as mention financial of parties for determination of Diyat, Arsh or Daman. The arts or criminal jurisdiction will not be required to undertake additional proceedings to determine dispute among the heirs. In the e of dispute, the compensation of any form may remain lying in Government treasury with direction to the heirs have recourse to the civil Courts. In such cases the compensation is to be received by the victim. There will be therefore, no problem about its disbursement. If, however, the victim dies, then in the case of dispute his legal heirs lay be asked to have recourse to the Civil Courts.
Value of Daman:
The value of Daman may be determined by the Court keeping in view
(i) The expenses incurred on the treatment of victim;
(ii) Loss or disability caused in the functioning or power of any organ and
(iii) The compensation for the anguish suffered by the victim.
Non-payment of:
In case of non-payment of Daman, it shall he recovered from the convict and until Daman is paid in full to the extent of his liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may he released on bail if he furnishes security equal to the amount of Daman to the satisfaction of Court.
4. Arsh:
Pakistan Penal Code specifically prescribes the amount of money, which is to be paid by the offender to the victim or to his heirs as compensation in certain cases this specified compensation is known as Arsh’.
Arsh means the compensation specified in Qisas & Diyat Ordinance to be paid by the offender to the victim or his heirs. In the cases of attempt to commit Qati-i-Amd, hlaf-i-Udw, Itlaf-iSalahjyyat-i-Udw, when the Qisas is not executable keeping in view the principles of equality in accordance with the injunctions of Islam, the offender shall be able to Arsh and may also be punished with imprisonment as Ta’azir.
The value of Arsh:
The value of Arsh will be assessed at certain percentage, indicated in various provisions of the value of diyat under Section 323, P.PC. The court while working out the percentage of the value of the diyat will take into consideration the minimum value of diyat fixed by the Federal Government on the first day of July each year.
Payment of Arsh:
The Arsh will be payable in lump-sum or in installments spreading over three years from the date of final judgment. The Arsh shall be payable within the time specified by court and the offender may be kept in jail to serve simple imprisonment until the Arsh is paid in full. The court may release a convict on bail, if he furnishes security equal to the amount of Arsh to the satisfaction of court for its payment. If the convict dies before payment of Arsh, it shall be recovered from his estate.
Disbursement of Arsh or Daman:
The arsh or Daman shall be payable to the victim or, if the victim dies to his heirs according to their respective shares in inheritance.
5. Tazir:
(S. 299(K) PPC). It means the punishment other than Aisas, Diyat, Arsh or Daman. It is the punishment for crimes for which Shariat has not provided the fixed sentence. Its nature and quantum is left to the discretionary jurisdiction of State.
The term Tazir is derived from the word which literally means to prohibit and punish. As stated above, it is a discretionary punishment inflicted by State for chastisement, correction purification or to refine.
Explanation:
Tazir means punishment awarded by the Court other than Qisas, Diyat Arsh or Daman. It includes punishment of imprisonment, forfeiture of property and fine. Award of ta’zir 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 (KLR 1992 Mag. c. 12)
Tazir Punishments:
The law maker empowers the Court to ermine the quantum and choose the kind of penalty so that it will possible for the Court to to into account the motives of offence in man-made laws and the Islamic Shariah being that the latter does recognize the effect of motives in the case of offence categorized Huddod or Qisas. In the case of other offences there is nothing in Shariah inhibiting the Court to take into account the motive of crimes (1991 PSC 29).
6. Wall:
Means a person entitled to clause Qisas. Who is Wall?
(I) Wall: In case of Qati, the Wali shall he
(a) the heirs of the victim, according to his personal law, and
(h) the Government, if there is no heir.
(ii) Wali in hurt cases: In the case of hurt the Wall shall be:
(a) the victim;
Provided that, If the victim is a minor or insane, his right to Qisas shall be exercised by his father or paternal grandfather how-high so-ever;
(b) The heirs of the victim; if the later dies before the execution of qisas; and
(c) The Government, in the absence of the victim or the heir of the victim.