Pakistan Law Site \\Web2\E\Article\1991J8.HTM LAW ON QISAS AND DIYAT AND ITS APPLICATION

LAW ON QISAS AND DIYAT AND ITS APPLICATION

 

By

 

Mr. Justice (Retd.) Mian Qurban Sadiq Ikram

 

The Criminal Law (Second Amendment) Ordinance No.VII of 1990 (hereinafter referred to as the Ordinance) was made and promulgated on September 5, 1990, to come into force on 12th day of Rabi‑ul‑Awwal 1411 A.H. i.e. subject to appearance of moon, on October 3, 1990.

 

Excepting substituted sections 309, 310 and 338‑E, P.P.C. (waiver and compounding of Qisas in Oatl‑i‑Amd and hurt) nothing in Chapter XVI (Offences affecting human body) as amended/substituted by the Ordinance shall apply to cases pending before any Court, immediately before commencement of the Ordinance nor to offences committed before such commencement. This means, firstly, that the Ordinance will not operate retrospectively; secondly, that all pending cases will continue to be tried under existing law; thirdly, that any offence committed before commencement will be tried under repealed law and fourthly that the parties will forthwith, be permitted to avail benefit of substituted sections 309, 310 and 3.38‑E, P.P.C. in pending cases.

 

In the interpretation and application of provisions of this Chapter and in respect of matters ancilliary or akin thereto, as provided in section 338‑F, P.P.C. the Courts shall be guided by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. I recommend two books for all judicial officers and members of Bar:

 

(i) "Al‑Qisas‑Al‑Fiqah Islami"‑‑‑‑‑‑‑‑‑translation by Maulana Syed Abdur Rehman Bokhari, published by Dyal Singh Trust Library, Lahore.

 

(ii) "Qisas and Diyat", published by Idara Tehqiqat Islami, P.O. Box No. 1035, Islamabad.

 

The Ordinance seeks to‑‑‑

 

(i) Substitute section 53, P.P.C

 

(ii) Amend section 109, P.P.C

 

(iii) Substitute sections 299 to 338, P.P.C

 

(iv) Amend sections 337 and 338, Cr.P.C.

 

(v) Amend section 3881, Cr.P.C.

 

(vi) Substitute Schedule II of Cr.P.C. with respect to sections 302 to 338, P.P.C.

 

3. The punishments provided in repealed section 53, P.P.C. are (i) death, (ii) imprisonment for life, (iii) imprisonment which may be rigorous or simple, (iv) forfeiture of property, (v) fine. These have only been re‑numbered as sixthly to tenthly and require no discussion. The substituted section 53, P.P.C. has provided five additional punishments, firstly Qisas, secondly Ta'zir thirdly Diyat, fourthly Arsh and fifthly Daman

 

(A) QISAS

 

4. Qisas has not been defined in the Ordinance. It means "to copy the other" or "to follow the path followed by the other" or "to act like the act of another". The basic principle of Qisas is similarity. If similarity was not possible or could not be ensured Qisas may not be enforceable specially in hurt cases. Qisas, in case of Qatl-Amd, is also a punishment of death as is indicated in clause (a) of substituted section 302, P.P.C. The difference between punishment of Qisas and punishment of death lies in the mode of execution of sentence. The sentence of death will required to be executed under existing provisions of law on the basis of direction in the judgment of trial Court that "the offender shall be hanged by neck till he is dead". Similarly, where Court, after trial, comes to conclusion that in the fads and circumstances of a case the punishment of Qisas need be awarded, it will in the judgment specify the mode of execution of Qisas in Qatl‑i‑Amd. For example if the offender murdered the victim with gun‑fire, the Court may record that "the death of offender be caused in execution of Qisas in Qatl‑i‑Amd of victim by gun‑fire till his death under section 314, P.P.C. in presence of wali". The sentence of death by way of Qisas or Tazir shall be executed after confirmation by High Court. The Qatl‑i‑Amd shall not be "Liable to Qisas" under section 306, P.P.C. when the offender is non‑pubert or insane; when the offender causes death of his child or grandchild howlowsoever and when wali of victim is direct descendant, howlowsoever, of the offender. The Qisas for Qatl‑i‑Amd shall "not be enforced" under section 307, P.P.C. where the offender dies before enforcement of Qisas; when the wali voluntarily and without duress, to the satisfaction of Court, waives the right of Qisas and finally when the right of Qisas devolves on the offender as a result of death of wali of the victim or on a person who has no night or Qisas against the offender.

 

In case of "waiver of right of Qisas" the Court will have to satisfy itself that the waiver by wali was voluntary and without duress. Similar will be the case in compromise and compounding of offences. It may here be observed, firstly, that the question of awarding of punishment of Qisas will be determined after trial according to law; secondly the punishment of Qisas will have to be based either on a voluntary and true confession of commission of offences by the accused or on the evidence as provided in Article 17 of the Qanun‑e‑Shahadat and thirdly right to exact Qisas will accrue after Court awards punishment of Qisas. The punishment of Qisas will not be permissible if the proof of Qatl‑i‑Amd liable to Qisas is not provided in terms of substituted section 304, P.P.C. Same will be the case in hurt case.

 

In case of Qatl-i‑Amd liable to Qisas right to exact Qisas or to waive Qisas or to compromise/compound will rest with wali of victim which means legal heirs of inheritance, If, however, Government is wali or right of Qisas vests in a minor or insane the Qisas shall not be waived. If there are more than one victim, the waiver of the right of Qisas by the wali of one will not affect the right of Qisas of the other victim. Similarly if there arc more than one offenders, the waiver of right of Qisas against one shall not affect right of Qisas against other offender. Where there is only one wali, the right of Qisas shall vest in him. If there arc more than one wali the right of Qisas shall vest in each of them. If the victim has no wall, the Government shall have right of Qisas. In short Qisas in case of Qatl‑i‑Amd liable to Qisas means right to claim death of offender for the death of victim and in case of hurt liable to Qisas means right to claim injury/hurt on the person of offender similar to the injury/hurt suffered by the victim. it also means right to waive or compromise with the offender instead of exacting Qisas. As stated above the punishment of Qisas would be executed by a functionary of the Government and not by the wali or injured himself.

 

(B) TAZIR

 

It means punishment other than Qisas, Diyat, Arsh and include punishment of imprisonment, Daman, forfeiture of property and fine. It will be awarded for various offences substituted by the Ordinance. The Court will not insist on evidence under Article 17 of the Qanun‑e‑Shahadat, as proof of offence, to award this punishment. It will be appreciated that in substance the definition of offences in the Ordinance is not at much variance from the definition of offences in the repealed provisions. As such the existing procedure will continue, except the enforcement of Qisas and Diyat etc.

 

(C) DIYAT, ARSH AND DAMAN

 

There are three kinds of compensations payable by the offender under the Ordinance. Clause (c) of section 299, P.P.C. defines Diyat as "the compensation specified in section 323 payable to the heirs of the victim by the offender". 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 Qatl. and not in cases of hurt. The offence of Oatl‑i‑Amd (intentional murder), if proved by evidence as provided in Article 1.7 of the Qanun‑e‑Shahadat. is punishable under section 302, P.P.C. which does not provide fur imposition of punishment of Diyat, compensation or fine. 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. The Court, may, however, in certain cases award punishment of imprisonment as Tazir in addition to Diyat. It may be stated that the consideration fur compounding or Qisas or for compromise or waiver cannot be classed as Diyat. The said consideration is Badl-e‑Sulh and is settled by the parties themselves subject to condition that Badl‑e-Sulh shall nut he less than the value of diyat. Which means minimum value assessed in substituted section 323, P.P.C. 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 Qatl‑bis‑Sabab he shall be liable to Diyat only. It will be for the Court to fix value of Diyat in each case, keeping in view the financial position of parties and subject to injunctions of Islam. The minimum value of Diyat will, however, be fixed by the Federal Government on first day of July each year. The Diyat shall be disbursed among the heirs of victim according to their respective shares in inheritance. If, however, an heir forgoes his share, the Diyat to the extent of his share shall not be recovered. The Court may order payment of Diyat in lump sum or in instalments spreading over three years from the elate of judgment. The convict will not be required to suffer imprisonment in default of payment of Diyat or any part thereof. If he fails to pay Diyat the convict shall be kept in jail to suffer simple imprisonment "until the Diyat is paid in full". The Court may, however, release the convict on bail if he is able to furnish security equivalent to the amount of Diyat to the satisfaction of Court for its payment. This means that the convict will be lodged in jail till full Diyat is paid. The Court will not fix period of imprisonment in default thereof. If the convict dies before payment of Diyat or any part thereof, it shall be recovered from his estate.

 

(ii) ARSH is "compensation specified in this Chapter to be paid by the offender to the victim or to his heirs". The use of word victim indicates that Arsh is to be received by the victim himself. If the victim dies before receiving Arsh, it shall be paid to his legal heirs. This means that punishment of Arsh is provided for offences relating to various kinds of hurt. The value of Arsh is fixed and specified in the Ordinance. The value of Arsh will be assessed at certain percentage, indicated in various provisions, of the value of Diyat under section 323, P.P.C. The Court while working out the percentage of the value of Diyat will take into consideration the minimum value of Diyat fixed by the Federal Government on the first day of July each year. The Arsh will be payable in lump sum or in instalments spreading over three years from the data of final judgment. The Arsh shall be payable within 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.

 

(iii) DAMAN ‑‑‑The word Daman is actually Dhaman. It means compensation payable by the offender to the victim for causing hurt not liable to Arsh, as determined by Court. Daman is ordered for injuries where punishment of Arsh is not available. The value is not fixed or specified in the Ordinance. Its value will 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 victim. The Daman assessed by Court shall be payable to the victim or, if the victim dies, to his heirs according to their respective shares in the inheritance.

 

In cases of Qatl 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 position of parties fur determination of Diyat, Arsh or Daman. The Courts of criminal jurisdiction will not be required to undertake additional proceedings to determine dispute among the heirs. In case of dispute, the compensation of any form may remain lying in Government treasury with direction to the heirs to have recourse to Civil Courts. In hurt 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 case of dispute his legal heirs may be asked to have recourse to Civil Courts. These three forms of compensation arc quasi‑civil damages.

 

II. In the Pakistan Penal Code as well as the Ordinance the offences affecting human body are divided in two classes; one: offences affecting life, two: offences relating to injuries to body of a person.

 

(A) Culpable homicide either amounts to murder as defined in repealed section 300, P.P.C. and punishable under section 302, P.P.C. or does not amount to murder as defined in exceptions of section 300, P.P.C. and punishable under section 304, P.P.C. In the Ordinance culpable homicide (Qatl) has been classed in two groups:

 

(I) Culpable homicide which amounts to murder, i.e., Qatl‑i‑Amd is defined in substituted section 300, P.P.C. This definition is similar to the definition of murder in the repealed section 300, P.P.C. There is, however, material difference in the punishments provided in two enactments. In section 302, P.P.C. the offender is liable to sentence of death or imprisonment for life and fine. In the substituted section 302, P.P.C. punishments provided are Qisas (if proof under Article 17 of Qanun‑e‑Shahadat is available) or death or imprisonment for life as Tazir or with imprisonment of either description for a term which may extend to 25 years where Qisas is not applicable according to injunctions of Islam. The sentence of fine has been eliminated. There should, therefore, be no difficulty for Courts to administer justice in accordance with the provisions of the Ordinance. If Qatl‑i‑Amd is not liable to Qisas or it is not enforceable, the offender shall be liable to Diyat. The Court, having regard to the facts and circumstances of the case, may in addition to Diyat, punish the offender with imprisonment as Tazir under section 308, P.P.C. which may extend to fourteen years. Similarly, even after waiver or compounding of right of Qisas in a Qatl‑i‑Amd, the Court may in its discretion, having regard to the facts and circumstances of the case punish, an offender, against whom right of Qisas has been waived or compounded with imprisonment as Tazir which may extend to 14 years. The idea behind this provision is the philosophy that there are two aspects of every crime. One relates to Haqooq Allah and second relates to Haqooq‑ul‑Ibad. The wali may waive or compound Qisas but still it may be considered necessary to punish an offender keeping in view the nature of crime committed by him. For example an offender recklessly fires in street murdering and injuring some persons.

 

(2) The culpable homicide which does not amount to murder i.e. Qatl‑i‑Amd is defined in substituted sections 315, 318 and 321, P.P.C. respectively as Qatl Shibh‑i‑Amd, Qatl‑i‑Khata and Qatl‑bis‑Sabab. These kinds of Qatl do not attract punishment of Qisas. These are punishable with imprisonment as Tazir and Diyat. These definitions do not specifically provide for situations contemplated by the exceptions of repealed section 300, P.P.C. but are wide enough to include cases which used to be punished under Part I and Part II of repealed section 304, P.P.C. and section 304‑A, P.P.C.

 

In Qatl Shibh‑i‑Amd, the intention to cause harm to body is necessary. It means that whoever intentionally causes harm to the body or mind of any person which results in death of that or any other person by an act or weapon which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh‑i‑Amd. In Qatl‑i‑Khata intention to cause death or harm is not required as used to be the case in repealed section 304‑II and section 304‑A, P.P.C. Two situations are contemplated in Qatl‑i‑Khata, one: that death is caused by mistake of act; two: that death is caused by mistake of fact, including rash or negligent act, and also rash or negligent driving. Qatl Shibh‑i‑Amd and Qatl‑i‑Khata are liable to punishment of imprisonment and Diyat. The Qatl‑bis‑Sabab is punishable with diyat only. In Qatl‑bis‑Sabab, intention is missing. The essential ingredient is doing of an unlawful act, resulting in unintentional death of or harm to any person.

 

It will thus be appreciated that Courts will find no problem in deciding cases under various provisions of the Ordinance, nor will there be any difficulty in interpreting various definitions in the Ordinance which are comprehensive and more or less identical with the definitions in repealed provisions.

 

III. It will be appropriate to examine some miscellaneous offences provided in the Ordinance before dealing with hurt cases:

 

1. Attempt to commit Qatl‑i‑Amd (murder). The wording of substituted section 324, P.P.C. is identical with first paragraph of repealed section 307, P.P.C. except the later part which provided punishment if hurt is actually caused in the attempt. The second para of section 307, P.P.C. stands repealed by the Ordinance which means that a convict in jail, if commits an offence of attempt to murder, will not be liable to‑enhanced punishment.

 

2. Attempt to commit suicide is punishable under substituted section 325, P.P.C. Its provisions are identical to the provisions of repealed section 309, P.P.C.

 

3. The definition of Thug provided in substituted section 326, P.P.C. is identical with definition in repealed section 310, P.P.C., except that the word Qatl instead of murder has been used in its last line. The punishment for a Thug is provided in substituted section 327, P.P.C. which is identical with repealed section 311, P.P.C.

 

4. The wording of substituted section 328, P.P.C. and repealed section 317, P.P.C. regarding exposure and abandonment of child are identical except that in the explanation instead of the word murder, three kinds of Qatl have been incorporated.

 

5. The provisions of substituted section 329, P.P.C. regarding concealment of birth by secret disposal of dead body are identical with provisions of repealed section 318, P.P.C.

 

6. The provisions of substituted and repealed section 301, P.P.C. are in substance identical.

 

7. The Ordinance defines "Ikrah‑e‑tam" which means putting any person, his spouse, or any of his blood relations within prohibited degree of marriage in fear of instant death, or instant permanent impairing of any organ of body or instant fear of being subjected to sodomy or zina‑bil‑jabr. "Ikrah‑e‑Naqis" means any form of duress which does not amount to Ikrah‑e‑Tam. The two definitions read together arc very wide. These do not state the reasons or object of duress. A Qatl committed in the circumstances of Ikrah‑e‑Tam or Ikrah‑e‑Naqis has been made punishable under substituted section 303, P.P.C. This is a new provision of law. Ikrah‑e‑Tam or Ikrah‑e‑Naqis involve two persons. Firstly, the person who causes Ikrah‑e‑Tam or Ikrah‑e‑Naqis i.e. puts another person under duress, secondly who is subjected to duress i.e. Ikrah‑e‑Tam or Ikrah‑e‑Naqis. Both of them i.e. person committing Qatl under Ikrah‑e‑Tam or Ikrah‑e‑Naqis and the person causing Ikrah‑e‑Tam and Ikrah‑e‑Naqis seem to have been made liable to punishment under section :303, P.P.C. The Court will, therefore, be under onerous duty to determine the precise nature of offence committed by each of them.

 

8. Qatl‑e‑Khata (death) by rash or negligent driving has for the first time been made punishable in substituted 5.320, P.P.C. and Qatl‑e‑Khata by rash or negligent act has been made punishable in substituted S. 319, P.P.C. These both were earlier punishable under 5.304‑A, P.P.C.

 

IV. HURT: In the repealed provisions, simple hurt is defined in S.319, P.P.C. as "bodily pain, disease or infirmity" to any person. The repealed 5.320, P.P.C. defines grievous hurt as: Firstly, Emasculation; Secondly, permanent privation of sight of either eye; Thirdly, permanent privation of hearing of either car; Fourthly, privation of any member or joint; Fifthly, destruction or permanent impairing of the power of any member or joint; Sixthly, permanent disfiguration of head or face: Seventhly, fracture or dislocation of a bone or tooth; and Eighthly, any hurt which endangers life or which causes the sufferer to be, during the space of twenty days, in severe bodily pain or unable to follow his ordinary pursuits.

 

A close examination of repealed and substituted provisions (Ss. 332, 333, 337, 337‑B and 337‑E) would indicate that there is difference of details only. In the repealed sections 319 and 320, P.C. tile definitions of simple anal grievous hurt have been stated in a compact and consolidated form, whereas in tile substituted provisions various organs and parts of human body have been separately defined. Secondly, there is slight difference in the punishments of imprisonment for hurt in the Ordinance, which makes punishments of Arsh/Daman its substantive punishments.

 

In the Ordinance human body has been divided into various sections:‑‑

 

(i) Limbs and organs

 

(ii) Head and face

 

(iii) Trunk

 

(iv) General‑‑ remaining human body.

 

Thus keeping in view various parts of human body, five kinds of hurt have been stated in substituted section 332:‑‑

 

A. (a) Itlaf‑i‑udw

 

The word Itlaf means to `destroy' `to ruin' and `decay'. The word Udw means `limb' or `organ'. Itlaaf‑i‑Udw means to dismember, amputate, sever any limb or organ of body. This definition corresponds with provisions of clauses fourthly and fifthly of repealed section 320, P.P.C.

 

(b) Itlaf‑i‑Salahiyyat‑i‑Udw means destroying or permanently impairing the functioning power or capacity of a person or causing permanent disfigurement of some organ.

 

General: Itlaaf‑i‑Udw and Itlaaf‑i‑Salahiyyat‑i‑Udw, respectively, are defined in substituted sections 333, P.P.C. and 335, P.P.C. and made punishable under section 334 and section 336, P.P.C. These sections provide three kinds of punishments:‑

 

(i) QISAS

 

As stated above, the basic principle of Qisas is "equality" or in common man's language "similarity". If Qisas is not executable keeping in view the principles of equality it will not be exacted. Suppose tin offender inflicts single blow with sword resulting in amputation/dismemberment of one‑fourth of left forearm. The punishment of Qisas will thus be executable only if the authorised medical officer gives an opinion that similar result could possibly be achieved without any additional damage to the ol1'cnder. The person causing such damage will be liable to action. In practice, therefore, it may rather be difficult for any medical officer to opine that Qisas in a particular case was executable keeping in view the principles of equality. The Court will, therefore, in each case of hurt involving punishment of Qisas, require the authorised medical officer, appearing as witness in the case, to give opinion "whether Qisas will be executable keeping in view principles of equality." The punishment of Qisas shall under section 337‑P, P.P.C. be executed (a) in public, (b) by an authorised medical officer and (c) in presence of victim or, if the victim dies before execution of Qisas, in presence of wali of victim.

 

(ii) The second punishment provided in sections 334, P.P.C. and 336, P.P.C. is Arsh. The word `shall' has been used for this punishment. This means that if Qisas is not found executable, the offender shall be punished with Arsh. The Court will have no discretion to decline this punishment. The value of Arsh for various kinds of hurt is given in sections 337‑0 to 337‑W. These are self-explanatory sections and require no discussion. However, one point need be mentioned that in working; out percentage of the value of Diyat to determine the value of Arsh, the minimum value of Diyat fixed by the Federal Government on First day of July each year will be taken in consideration. Arsh is a compensation which is recoverable even from the estate of offender if he dies before payment. The Court will be required to record a direction in the judgment under section 337‑X, P.P.C. that the offender shall be kept in jail until Arsh is paid. This will be simple imprisonment without fixing of time limit. It will be of the kind of civil imprisonment. The Court may on application by an offender order his release on bail if he furnishes security equal to the amount of Arsh to the satisfaction of Court for payment of Arsh. The Court may also order payment of Arsh in instalments spreading over a period of three years from the date of judgment.

 

(iii) Imprisonment as Tazir is the third punishment provided in sections 334 and 330, P.P.C. The words "may also" have been used for this punishment. This means that the Court, for offences of Itlaaf, may or may not award punishment of imprisonment. This is discretion whereas the punishment of Arsh is mandatory.

 

(B) SHAJJAH: It is an Arabic word which means injuries on head or face. These injuries are defined in substituted section 337, P.P.C. The parallel provisions can be seen in clause Sixthly of repealed section 320, P.P.C. The difference between two provisions is that the repealed clause makes mention of "permanent disfiguration of head or face" and the substituted section 337 specifics various kinds of Shajjah, i.e. injuries on the head or face of a person, given as follows:‑

 

(a) Shajjah‑i‑Khaffah means simple hurt by any weapon, on head or face without exposing bone of the victim.

 

(b) Shajjah‑i‑Mudihah means simple hurt by any weapon on head or face where though bone is exposed but no fracture is caused.

 

(c) Shajjah‑i‑Hashimah is grievous hurt by any weapon on head or face, resulting in fracture of bone of victim and without dislocating, it.

 

(d) Shajjah‑i‑Munaqillah is grievous hurt, by any weapon, on head or face, resulting; in fracture and dislocation of bone of victim.

 

(c) Shajjah‑i‑Ammah is grievous hurt by any weapon, causing fracture of the skull of the victim, where the wound touches the membrane of the brain.

 

(f) Shajjah‑i‑Damighah is grievous hurt by any weapon, causing fracture of the skull of the victim, so that the wound touches the membrane of the brain.

 

These six kinds of injuries on head or face previously punishable under repealed sections 323, 324, 325 and 326, P.P.C. are now punishable under substituted section 337‑A, P.P.C. Only Shajjah‑i‑Mudihah is punishable with Qisas or in alternate with Arsh and imprisonment. Shajjah‑i‑Khafifah is punishable with Daman and may also be punished with imprisonment. The value of Daman is not fixed in the Ordinance. It is to be fixed by Court in its discretion. The remaining kinds of Shajjah are punishable with Arsh and may also be punished with imprisonment as Tazir. As stated earlier, the punishment of Arsh is basic and mandatory whereas the punishment of Tazir is discretionary.

 

(C) JURH : The word Jurh is derived from the word Jarooh which means injury. The word Jurh is used for injuries on human body other than injuries on head or face. These injuries primarily on trunk of human body are of two kinds:‑

 

(1) JAIFAH (2) Ghayr Jaifah Jaifah means injury which extends to the body cavity of the trunk. Ghayr Jaifah means injury which does not amount to Jaifah. There are six kinds of ghayr Jaifah Jurh:‑

 

(i) Damiyah means injury with any weapon, on any part of body, except head or face in which skin is ruptured and bleeding occurs.

 

(ii) Badiah means injury with any weapon, on any part of body except head or face, by cutting or incising the flesh without exposing the bone.

 

(iii) Mutalahimah means injury with any weapon on any part of body except head or face by lacerating the flesh.

 

(iv) Mudihah means injury with any weapon, on any part of body, except head or face in which bone is exposed.

 

(v) Hashimah means injury with any weapon, on any part of body, except head or face resulting in fracture of a bone without dislocating it.

 

(vi) Munaqqilah means injury with any weapon on any part of body except head or face resulting in fracture and dislocation of bone.

 

Punishment for Jaifah is provided in substituted section 337‑D, P.P.C. and punishment for Ghayr Jaifah is provided in section 337‑F, P.P.C. The basic punishment for jaifah is Arsh and the offender may also be awarded imprisonment as Tazir. Jaifah is a grievous injury whereas some Ghayr Jaifah are grievous and some simple hurt. All Ghayr Jaifah hurts are punishable with Daman and the offender may also be awarded imprisonment as Tazir:‑‑

 

(D) Other kinds of offences including hurt:‑‑

 

(1) Hurt by rash or negligent driving previously punishable under sections 337 and 338, P.P.C. is now punishable under substituted section 337‑G.

 

(2) Hurt by rash or negligent act other than driving previously punishable under sections 337 and 338, P.P.C. is now punishable under substituted section 337‑H, P.P.C.

 

(3) Hurt caused by mistake is punishable under section 337‑1.

 

(4) Hurt by means of poison previously punishable under sections 327, 329, 330 and 331, P.P.C. is now punishable under substituted section 337‑J, P.P.C.

 

(5) Hurt not mentioned hereinbefore which endangers life or which causes the sufferer to remain in severe bodily pain for 20 days or more or renders him unable to follow his ordinary pursuits for 20 days or more is now punishable with Dhaman and imprisonment under substituted sections 337‑K and 337‑L. This kind of hurt was previously defined in clause Eightly of section 320, P.P.C.

 

(6) Under the provisions of P.P.C. mere rash or negligent driving is punishable under section 279, P.P.C. There is in P.P.C. no specific provision to make death or hurt by rash or negligent driving punishable. It is for the first time in the Ordinance that death by rash or negligent driving has been made punishable, under substituted S.320, P.P.C. Similarly hurt caused by rash or negligent driving has specifically been made culpable for the first time in S.337‑G of the Ordinance.

 

It will be appreciated that in most of hurt cases intention and knowledge are necessary ingredients of offences. Secondly, the principle of enforcement of Qisas is same in all hurt cases. Thirdly, in awarding punishment emphasis is on compensation in the shape of Arsh or Daman which has been made mandatory punishment leaving no discretion with Court whereas punishment of imprisonment is discretionary. Fourthly, specific procedure has been provided to ensure recovery of compensation of every kind under the Ordinance. However, nothing is said about situation if the offender has no property to discharge the said liability and fifthly, value of Arsh for various organs has been fixed in sections 337‑Q to 337‑W. All offences of hurt may be waived or compounded. The word Qisas has not been used in section 338‑E. Instead the word offence has been used. This means that offences may be waived or compounded irrespective of punishment provided for the offence.

 

CODE OF CRIMINAL PROCEDURE

 

The Ordinance has partially amended sections 337 and 338 of the Code of Criminal Procedure. The amendments prohibit grant or tender of pardon to an offender in an offence relating to hurt or Qatl without permission of victim or heirs of victim. The Ordinance has also added a proviso to section 381, Cr.P.C. stating that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment before execution of the sentence. These amendments in the Code of Criminal Procedure shall come into operation immediately, as is evident from substituted section 338‑H, P.P.C. The Ordinance has also amended Schedule II of Cr.P.C. for the figures 302 to 338, P.P.C.

 

GENERAL NOTE

 

1. The relevant AAYATS of QURAN‑UL‑HAKIM regarding QISAS and DIYAT are as follows:‑‑

 

(i) Surah Albaqrah ‑ Aayats 178,179 and 194.

 

(ii) Surah Alnisa ‑ Aayats 29, 92 and 93.

 

(iii) Surah Almaaidah ‑ Aayats 32, 33 and 45.

 

(iv) Surah Alinam ‑ Aayt 151.

 

(v) Surah Bani‑Israel‑ Aayats 31 and 32.

 

(vi) Surah Alfurqan ‑ Aayat 68.

 

2. QISAS is executing of same punishment keeping in view principle of equality and similarity. DIYAT is compensation for human life. ARSH is compensation for organs and parts of body. WALI means legal representative of victim.

 

The Ordinance provides with all details. Its provisions are simple and are to be applied under existing procedural law. In its enforcement Courts or lawyers should not enter in negligible differences between various schools of thought. The difference is not on basic principles but on minor details.

 

3. On "THE DAY OF JUDGMENT" ALLAH the Most Merciful, the Most Beneficent will first of all undertake accountability of Qatl. The Qatil and all those instigating, abetting, assisting or joining a Qatil will be equally accountable. Excepting for (i) death in Qisas, (ii) Qatl of an adulterer and (iii) Qatl of Murtid, the Qatl of a Muslim is completely prohibited. The Qatil cannot inherit property of victim.

 

4. The value of Diyat is not fixed in Holy Qur'an. It is said that Harzat Umar Farooq enhanced value of Diyat fixed during the lifetime of Holy Prophet (PBUH). The value of Diyat is not static. In case the Qatil is not known the Diyat according to Sunnah, is to be paid by the State. It is not so provided in the Ordinance.

 

5. Every crime involves either Haqooq Allah or Haqooq‑ul‑Ibad or both. Islamic Jurisprudence classifies crime in three categories:‑‑

 

1. (1) Hadood

 

(2) Qisas and Diyat

II. (3) Ta'zir

 

The crimes against injunctions of Qur'an are part of Hudood. The punishments are prescribed in Qur'an. The predominent ingredient of Hudood is violation of Haqooq Allah. As for example the offence of theft, robbery, dacoity, illegal sexual intercourse, qazf, etc. To exact and enforce Hadd is right of Allah. State or individual cannot interfere or change punishments provided for Hadd in Quran. These are offences against society and disturb peace and public tranquillity.

 

The offences relating to Qisas and Diyat are offences against individuals affecting human body and Haqooq‑ul‑Ibad. The Holy Quran, therefore, gives right to victim or his Wali to exact Qisas or claim Diyat.

 

The offenders of theft, robbery, dacoity, zina, qazf, treason cannot be pardoned or compromised. The offence of Qatl or hurt may be compromised.

 

6. The punishment for offences involving Hadd or Qisas cat be awarded only if the offence is proved on the basis of evidence of specified quality. The punishment of Qisas can be executed only by State and not by victim or his Wali keeping in view the principle of equality.

 

Diyat is enforceable in cases of Qatl‑e‑Shibah Amd, Qatl‑i‑Khata, Qatl‑bis‑Sabab and‑hurt cases.

 

7. The appreciation of evidence in cases involving Hadd or Qisas will have to be, done keeping in view the specified qualities. In cases other than Hadd or Qisas, the present mode and principles of appreciation of evidence will be followed. The evidence may consist of voluntary confession, eye‑witness account or circumstantial evidence.

 

8. Qisas and Diyat will be right of Wali of victim or the victim. Wali means the person entitled to inherit the estate of victim.

 

9. The parties may enter in compromise i.e. Sulh on mutually agreed terms. The consideration for compromise can be agreed to be payable immediately or at some future time.

 

COMPARATIVE TABLE OF VARIOUS PROVISIONS OF PAKISTAN PENAL CODE AND THE CRIMINAL LAW (SECOND AMENDMENT) ORDINANCE (VII OF 1990)

 

Section 53, P.P.C.

Section 53 of Ordinance.

Section 300, P.P.C,

Section 300 of Ordinance.

Section 301, P.P.C,

Section 301 of Ordinance.

Section 302, P.P.C.

Section 302 of Ordinance.

Section 304, P.P.C.

Sections 316, 319 and 322 of Ordinance.

Section 304‑A, P.P.C.

Sections 319 and 320 of Ordinance.

Section 307, P.P.C.

Section 324 of Ordinance.

Section 306, P.P.C.

Section 325 of Ordinance.

Section 311, P.P.C.

Section 327 of Ordinance.

Section 317, 318, P.P.C.

Sections 328 and 329 of Ordinance.

Sections 319 and 320, P.P.C.

Sections 332, 333, 335 337, 337‑B, 337‑C and 337‑E of Ordinance.

Sections 325 and 326, P.P.C.

Sections 334, 336, 337‑D and 337‑L of Ordinance.

Section 323 to 326, P.P.C.

Section 337‑A, 337‑D and 337‑F of Ordinance.

Sections 337 and 338, P.P.C.

Sections 337‑G and 337‑H of Ordinance.

Section 328, P.P.C.

Section 337‑J of Ordinance.

Sections 327, 329 and 330, P.P.C.

Section 337‑K of Ordinance.

Section 312, P.P.C.

Section 338‑A of Ordinance.

Sections 313 to 316, P.P.C.

Section 338‑C of Ordinance.

 

GENERAL NOTE

 

The Pakistan Penal Code, as stated above, did not specifically provide for the offences of causing of death or hurt by rash or negligent driving. The repealed section 304‑A provided for death by rash or negligent act. As per various judgments of the superior Courts the act of rash or negligent driving was interpreted as a rash or negligent act. As such all cases of death as a result of rash or negligent driving were punished under section 304‑A. P.P.C. Similarly the hurt caused by rash or negligent act were punished under sections 337 and 338, P.P.C. It is for the first time that death (Qatl‑e‑Khata) by rash or negligent driving has been made punishable under substituted section 320, P.P.C. and hurt by rash or negligent act has been specifically made punishable under section 337‑G.

 

The death caused by rash or negligent act previously punishable under section 304‑A, P.P.C. is now punishable under substituted section 319. P.P.C. Similarly, punishment for hurt by rash or negligent act which previously used to be punished under sections 337 and 333, P.P.C. is now punishable under substituted section 337‑H, P.P.C.