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Institute of Law
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Introduction to Islamic and Middle Eastern Law FS16
Prof. Dr. Andrea Büchler
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Islamic Criminal Law
History of Islamic criminal lawSources of Islamic criminal lawCategories of crimesGeneral principles EvidencePunishmentPenaltieshudud crimesqisas crimesta’zir crimesIslamic criminal procedure
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History of Islamic criminal lawOrigins
Pre-Islamic Arabia:
Blood revenge against the tribe of the alleged offender as punishment
Severe retaliation
Abatement of a penalty by agreement on compensation
Foundation of Qur’anic criminal law
Islam:
Replaced blood revenge with uniform categories of criminal offences, punishments and procedures
Change of emphasis from individual to collective responsibility
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History of Islamic criminal lawReception of European criminal law
As of the late 18th century the West gained influence over Muslim world due to colonization (except for the Arabian Peninsula)19th century: period of radical law reforms in the Muslim world:
Westernization of state and society entailed the adoption of Western lawsEmergence of modern states with centralized bureaucracies, both in the colonies and in the countries that had preserved their independence. Necessity of new legal systems (of criminal law)
Islamic law was regarded to be arbitrary (ta’zir crimes without clear definitions and punishments), no equal treatment of individuals, the prosecution of qisas crimes depended on the will of the victim, archaic corporal punishments
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History of Islamic criminal lawReforms
Reforms of criminal law during 19th century:Abolition of Islamic criminal law and replacement by Western statute law in colonies (e.g. French law in North Africa)Reform of Islamic criminal law: Islamic criminal law continued to be applied but was subject to a gradual process of change, until it was abolished and replaced by statute law (British colonial policy)Reform of siyasa justice in independent Muslim countries (Egypt and Ottoman Empire)
Dual system of criminal law enforcement: Codification of siyasa justice and creation of specialized courts, while Islamic criminal law continued to be implemented by Shari’a courts1861: corporal punishment officially abolishedDual system of criminal law enforcement came to an end in Egypt in 1883 with the wholesale introduction of French law and the creation of a new national court systemDual system exists in Saudi Arabia, Qatar and Yemen to this daySole remnant of traditional Islamic criminal law: Death sentences must be approved by the State Mufti
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History of Islamic criminal lawCriminal law in the Middle East today
In most Islamic countries, Islamic criminal law has been replaced by modern law (well-defined laws; establishment of courts and public prosecutors)
Exception: Saudi Arabia, Qatar, Yemen (modernization did not affect substantive law, but rather organize courts, redefine procedures and induce codification)
(Re-)introduction of Islamic criminal law as a powerful ideological discourse today is appealing to those, who are opposed to Western influence:
Islamic criminal law provides an effective instrument of control and repression; it introduces a way of dealing with homicide which is closer to notions of popular justice
Symbolic value, cultural and political assertion against Western hegemonies; litmus test for the real Islamization of the legal system; Islamic criminal law holds a promise of eliminating crime and corruption, of providing simple and transparent procedures and of restoring a virtuous society
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History of Islamic criminal lawReintroduction of Islamic criminal law
Re-Islamization: (partially) implemented Islamic criminal law today: Libya: LAW NO. 148 OF 1972 (regarding theft and robbery); LAW NO. 70 OF 1973 (regarding illegal sexual intercourse); LAW NO. 52 OF 1974 (regarding unfounded accusations of fornication); LAW NO. 89 OF 1974 (regarding the drinking of alcoholic beverages); LAW NO. 6 OF 1994 (regarding retaliation and bloodmoney) Pakistan: since 1979 amendments to the constitution and LAW NO. 45 OF 1860, (Pakistan Penal Code) in accordance with Islamic criminal lawIran: Law of 1979 regarding establishment of revolutionary Islamic courts; ISLAMIC PENAL CODE OF IRAN OF 1991; revised recently Northern Sudan: Penal Code of 1983; Criminal Procedure Act of 1983; Judgments (Basic Rules) Act of 1983; Evidence Act of 1983; LAW NO. 8 OF 1991 (Penal Code)United Arab Emirates (1987)Northern Nigeria: Implementation of Islamic criminal law in various states of the federation since 2000 Qatar (2004)
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Sources of Islamic criminal lawPrimary sources
Qur’an
30 verses on penal law, 13 verses on legal jurisdiction and procedure
Sunna
Ijma’
Qiyas
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Categories of crimesOverview
hudud crimesOffences mentioned in the Qur’an which constitute violations of the claims of God; rules of evidence and mandatory punishments as predefined in the Qur’an and Sunna (hadd).
Theft, banditry, unlawful sexual intercourse, the unfounded accusation of unlawful sexual intercourse, drinking alcohol, apostasy
qisas and diyya crimesOffences against persons, i.e. homicide and wounding, subdivided into
those punishable by retaliation (qisas)– those regarding compensation (instead of punishment; private law)
(diyya)Claims of men; prosecution is a private matter, it depends on the will of the victim or their heirs
ta’zir and siyasa offencesDiscretionary punishment of sinful or forbidden behavior or acts endangering public order or state security
The three domains are governed by different rules of procedure and evidence
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General principlesCriminal responsibility and mens rea
Criminal responsibility (for hadd crimes):Islamic criminal law is based on individual responsibility; usually there is no collective punishmentMens rea (for hadd crimes and qisas):Three requirements for the application of legal punishment:
Offender must have had the power to commit or not to commit the act (qudra)He must have known (‘ilm) that the act was an offenceHe must have acted with intent (qasd) (minors and insane people are not held responsible; coercion as possible defense; uncertainty (shubha) as legal defense)
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General principlesMinority, insanity, unconsciousness and uncertainty
Minority, insanity and unconsciousness:There is no mens rea, if the perpetrator lacks the intellectual capacity to fully realize the implications of his conductMinority ends with puberty; puberty is possible between the age of 9 and 18 and is proved by physical signs of sexual maturityInsanityUnconsciousness; unless it was the result of drunkennessUncertainty (shubha) (for hadd crimes and homicide)Uncertainty as to the factsUncertainty as to the law
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General principlesDuress and actus reus
Duress (ikrah):For hadd crimes: A person will not be punished if they get forced to commit a crime under threat of violence to their lives, their children or parents livesFor homicide:
Hanafi: Duress as a possible defense in homicideOther schools: Duress is not a defense in homicide since the offender has a choice and because it is not allowed to sacrifice the life of another person in order to save one’s own lifeActus reus (for homicide and wounding):Behavior must be unlawful in order to have a legal effectSelf-defense or halting a crime in progress may make an act lawful that would normally be a crimeAim: Defense of life, honor or property of oneself or of one’s relative Hanafi, Maliki, Shafii: It is obligatory to defend one’s life against attacks; derived from [2:195]
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General principlesRepentance, complicity and plurality of perpetrators
Repentance (tawba): Punishment is not necessary if the perpetrator is repentant because he proves that he has already been reformed and does not need to be punished anymoreFor apostasy and banditry [5:33] – [5:34]But: Criminal responsibility on the strength of ta’zir remains
Complicity and plurality of perpetrators:There is no general doctrine of complicityParticipants in a punishable offence are liable only if they have individually carried out all elements of the offenceFor hadd crimes: Only form of collective criminal liability is to be found in the doctrine of banditryFor qisas: With regards to homicide only the Maliki school follows the doctrine of collective liability
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General principlesOther doctrines
Civil liability for homicide or wounding: diyya is based on tort; only requirement is that someone caused the damage, not that he was at fault No theory of attempted crime
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EvidenceGeneral information
Rational and formalistic
General rule: Plaintiff must prove his claim by:
Testimony of witnesses: two male or one male and two female adult Muslim witnesses of good reputation in the presence of the qadi
Admission of the defendant
Oath or the refusal to swear an oath
Hanafi, Shafii: qadi’s own knowledge, regardless of how he acquired it
Stricter rules of evidence for hadd crimes and qisas
If a person cannot be sentenced to a fixed punishment for a hudud crime because of lack of evidence they may be sentenced to a discretionary punishment (ta’zir), it is otherwise plausible that they are guilty of it. In such a case the strict rules of evidence do not apply.
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PunishmentOverview
Justification for punishment:
Deterrence (zajr), [5:38]; hadd penalties must be carried out in public in order to deter people from committing crime
Retribution (mainly in qisas crimes); life for a life, eye for an eye, tooth for a tooth
Rehabilitation; main justification for discretionary punishment
Protection of society by incapacitating the offender (by execution, banishment or life imprisonment); main justification for siyasa punishment
Hanbali, Maliki, Shafii Fixed punishments have religious rationale: No punishment needed in the Hereafter for one’s sins since the punishment occurred during life time
Execution of criminal sentences as exclusive competence of the state
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PenaltiesDiscretionary punishment
Penalties mentioned in the books of fiqh (but qadi can impose any suitable penalty for ta’zir offences):
Reprimand (from the qadi)Fines (paid to the state); opinions differ on legal justificationPublic exposure to scorn (tashhir)Imprisonment (habs)Flogging (jald)
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PenaltiesFixed punishment
Penalties for hadd crimesBanishment (nafy, taghrib) for banditry [5:33] and unlawful intercourseImprisonment (habs) for banditryFlogging (jald)Amputation of the right hand (qat’)Cross-amputation (al-qat’ min khilaf) for banditryDeath penalty by stoning (rajm) for unlawful intercourseDeath penalty in combination with or through crucifixion (salb) for banditry [5:33]
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Penaltiesqisas and other punishments
Penalties for retaliation (qisas)Retaliation for injuries (qisas ma dun al-nafs); amputation, infliction of wounds and blindingDeath penalty as retaliation; beheading by sword or execution in the same way as the victim was killed [16:126]
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Hudud crimesIntroduction
hadd crimes = offences with fixed, mandatory punishments based on the Qur’an or the Sunna
Theft (sariqa)Unlawful sexual intercourse: adultery and fornication (zina)Unfounded accusation of unlawful sexual intercourse: slander, calumny, defamation (qadhf)Banditry, highway robbery (hiraaba)Consumption of wine or other intoxicating substances (shrub al-khamr)Controversial: Apostasy (ridda)Controversial: Rebellion (baghi)
Purpose: Deterrence from acts that are harmful to humanity in order to protect public interests (fixed punishments must be carried out in public)Claims of God: fixed punishment cannot be waived, not even by the head of stateSalient feature: 1. strict rules of evidence, 2. extensive use of the notion of uncertainty of facts or legal situation, 3. strict definition of the crimes
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Hudud crimes Theft (sariqa)
Elements: surreptitiously taking awayof (movable) property with a certain minimum value (nisab, 3-10 dirhams)which is not partially owned by the perpetratornor entrusted to himfrom a place which is locked or under guard
Punishment: (Return of the stolen object or compensation for damages)(Discretionary punishment)Fixed penalty: First and second acts of theft: amputation of the hands; third and forth offence: amputation of the feet [5:38]Creates fear, distrust and apprehension in the community
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Hudud crimes Theft in Pakistan ILAW NO. 45 OF 1860, (Pakistan Penal Code)
The Offences Against Property
378.Theft: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
379.Punishment for theft: Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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Hudud crimes Theft in Pakistan IIThe Offences Against Property (Enforcement of Hudood) Ordinance of 1979 4. Two kinds of theft: Theft may be either theft liable to 'hadd' or theft liable to 'tazir'.
5. Theft liable to Hadd: Whoever, being an adult, surreptitiously commits, from any 'hirz', theft of property of the value of the 'nisab' or more not being stolen property, knowing that it is or is likely to be of the value of the 'nisab' or more is, subject to the provisions of this Ordinance, said to commit theft liable to 'hadd'.
Explanation 1: In this section "stolen property" dos not include property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed.
Explanation 2: In this section, "surreptitiously" means that the person committing the theft commits such theft believing that the victim of theft does not know of his action. For surreptitious removal of property it is necessary that, if it is day-time, which includes one hour before sunrise and two hours after sunset, surreption should continue till the completion of the offence and, if it is night, surreption need not continue after commencement of the offence.
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Hudud crimes Theft in Pakistan IIIThe Offences Against Property (Enforcement of Hudood) Ordinance of 19799. Punishment of theft liable to 'hadd': (1) Whoever commits theft liable to 'hadd' for the first time shall
be punished with amputation of his right hand from the joint of the wrist.
(2) Whoever commits theft liable to 'hadd' for the second time shall be punished with amputation of his left foot up to the ankle.
(3) Whoever commits theft liable to 'hadd' for the third time, or any time subsequent thereto, shall be punished with imprisonment for life.
(4) Punishment under sub-section (1) or sub-section (2) shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and, until the punishment is confirmed and executed the convict shall be dealt with in the same manner as if sentenced to simple imprisonment
(5) In the case of a person sentenced to imprisonment for life under sub-section (3), if the Appellate Court is satisfied that he is sincerely penitent, he may be set at liberty on such terms and conditions as the Court may deem fit to impose.
(6) Amputation shall be carried out by an authorized medical officer.
(7) If, at the time of the execution of 'hadd' the authorised medical officer is of the opinion that the amputation of hand or foot may cause the death of the convict, the execution of 'hadd' shall be postponed until such time as the apprehension of death ceases.
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Hudud crimes Theft in Pakistan IVThe Offences Against Property (Enforcement of Hudood) Ordinance of 1979
13. Theft liable to Tazir: Whoever commits theft, which, is not liable to 'hadd' or for which proof in either of the
forms mentioned in Section 7 is not available, or for which 'hadd' may not be imposed or enforced under this Ordinance, shall be liable to Tazir.
14. Punishment for theft liable to Tazir: Whoever commits theft liable to 'tazir' shall be awarded the punishment provided for the
offence of theft in the Pakistan Penal Code (Act XLV of 1860).
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Hudud crimes Banditry, highway robbery (hiraaba)
Elements:
Show of drawn weapons
In order to frighten and prevent people from continuing their journey
Who are travelling on a public road (outside of a city)
Assailants must be superior in strength
Victims cannot escape
Fixed punishment: death penalty, crucifixion, cross-amputation or banishment [5:33], [5:34]
Affects public security; group criminality
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Hudud crimes hiraaba in Pakistan IThe Offences Against Property (Enforcement of Hudood) Ordinance of 197915. Definition of 'Haraabah': When any one or more persons, whether equipped with arms or not, make show of force
for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt such person or persons, are said to commit 'haraabah'.
17. Punishment of 'Haraabah': (1) Whoever, being an adult, is guilty of harrabah in the course of which neither any murder has been committed nor any property has been taken away shall be punished with whipping not exceeding thirty stripes and with rigorous imprisonment until the Court is satisfied of his being sincerely penitent:
Provided that the sentence of imprisonment shall in no, case be less than three years.
(2) Whoever, being an adult, is guilty of haraabah in the course of which no property has been taken away but hurt has been caused to any person shall, in addition to the punishment provided in sub-section (1), be punished for causing such hurt in accordance with such other law as may for the time being are applicable.
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Hudud crimes hiraaba in Pakistan IIThe Offences Against Property (Enforcement of Hudood) Ordinance of 197917. Punishment of 'Haraabah':
(3) Whoever, being an adult, is guilty of haraabah in the course of which no murder has been committed but property the value of which amounts to or exceeds, the nisab has been taken away shall be punished with amputation of his right hand from the wrist and of his left foot from the ankle:
Provided that, when the Offence of haraabah has been committed conjointly by more than one person, the punishment of amputation shall be imposed only if the value of share of each one of them is not less than the nisab:
Provided further that, if the left hand or the right foot of the offender is missing or is entirely unserviceable, the punishment of amputation of the other hand or foot, as the case may be, shall no be imposed, and the offender shall be punished with rigorous imprisonment for a term which may extend to fourteen years and with whipping not exceeding thirty stripes.
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Hudud crimes hiraaba in Pakistan IIIThe Offences Against Property (Enforcement of Hudood) Ordinance17. Punishment of 'Haraabah':
(4) Whoever, being an adult, is guilty of haraabah in the course of which he commits murder shall be punished with death imposed as hadd.
(5) Punishment under sub-section (3) except that under the second proviso thereto, or under sub-section (4), shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and if the punishment be of amputation, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.
(6) The provisions of sub-section (6) and sub-section (7) of Section 9 shall apply to the execution of the punishment of amputation under this section.
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Hudud crimes Adultery (zina)
Sexual intercourse between persons of the opposite sex who are not married to one another is prohibited
Sexual intercourse within a marriage or between a slave and a master is permitted
Penalty:
(Financial compensation: mahr or damages) (man only)
(Discretionary punishment) (man only)
Fixed punishment: (for both)
Married persons (muhsan as special status): stoning to death (hadith) (Qur’an only mentions flogging)
Unmarried persons: 100 lashes [24:2]
Evidence: Four male eyewitnesses or four confessions on four separate occasions by the defendant
Homosexual intercourse is equated to unlawful heterosexual intercourse, but punishment is controversial (death penalty, flogging or discretionary punishment)
A woman who has been raped is not punishable
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Hudud crimes Adultery in Pakistan I
Re-introduction of Islamic criminal law by General Zia ul-Haqq in 1979 (hudud ordinances)Federal Shariat Court introduced in 1983, power to review laws and court of appealZina Ordinance of1979
The Zina Ordinance created the entirely new criminal offenses of adultery and fornication, behavior that had not been treated as criminal under the provisions of the Pakistan Penal Code, and the new punishments of whipping and stoning to deathIts application had a disproportional effect on women, who found themselves increasingly imprisoned as a result of accusations of adultery, frequently made by their husbands. While it was easy to file a case against a woman accusing her of adultery, the Zina Ordinance made it very difficult for a woman to obtain bail pending trial. Worse, in actual practice, the vast majority of accused women were found guilty by the trial court only to be acquitted on appeal to the Federal Shariat Court. By then they had spent many years in jail, were ostracized by their families, and had become social outcastsZina Ordinance caught women who had suffered rape in an insidious legal trap. A rape victim who pressed charges risked prosecution for extra-marital sex. This transformation from victim to criminal took place whenever a woman complained of rape – thereby "confessing" to having been subjected to sexual intercourse – and her accusation did not lead to a conviction of the rapist
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Hudud crimes Adultery in Pakistan II
Several government appointed commissions have recommended its repeal. Most recent: National Commission for the Status of Women in 2003, following an investigation conducted by the Commission’s Special Committee to Review the Hudood Ordinances, and with support of the Council of Islamic IdeologyAchievement: Protection of Women (Criminal Laws Amendment) Act 2006. Objective: "to bring in particular the laws relating to zina and qazf in conformity with the stated objectives of the Constitution and the injunctions of Islam„Elements:
1. returns a number of offenses from the Zina Ordinance to the Pakistan Penal Code (especially rape, also fornication)2. reformulates and redefines the offenses of zina and slander: to prevent the overlap between the offenses of rape and adultery; amendments to the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, which now exposes any complainant who makes a false accusation of adultery to the very real risk of punishment. If the prosecution fails, punishment for slander is close to automatic3. creates an entirely new set of procedures governing the prosecution of the offenses of adultery and fornication
The Zina Ordinance has been hollowed out to its barest essentials. It only deals with one offense, namely adultery liable to a hadd punishment. Procedural and evidential requirements are such that a prosecution is unlikely to succeed
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Hudud crimes Adultery in Pakistan III
On December 22, 2010, the Federal Shariat Court declared certain sections of Protection of Women (Criminal Laws Amendment) Act 2006 in violation of the Constitution. The Federal Government was given until June 22, 2011 to bring the law into conformance as interpreted by the Court:
“All those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by the Holy Quran and Sunnah, including all such acts which are akin, auxiliary, analogous or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood.Its (FSC) jurisdiction in the matters relating to Hudood under Article 203DD of the Constitution is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in such cases.Ten offences, including Zina (adultery, fornication and rape), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of zina), Shurb (alcoholic drinks, intoxications, narcotics etc), Sarqa (theft simpliciter), Haraba (robbery, highway robbery, dacoity and all categories of offences against property as mentioned in PPC), Irtdada (apostasy), Baghy (treason, waging war against state, all categories of offences mentioned in PPC)) Qisasa (right of retaliation in offences against human body) and human trafficking, are covered by the terms Hudood for the purpose of Article 203DD.“
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Hudud crimes Adultery in Pakistan IVLAW NO. 45 OF 1860, (Pakistan Penal Code)
Offences relating to marriage496B.Fornication:
(1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
496C.Punishment for false accusation of fornication:Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
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Hudud crimes Adultery in Pakistan V
The Offence of Zina (Enforcement Of Hudood) Ordinance of 1979
4. ZinaA man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being married to each other.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina.
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Hudud crimes Adultery in Pakistan VIThe Offence of Zina (Enforcement Of Hudood) Ordinance of 1979
5. Zina liable to hadd.(1) Zina is zina liable to hadd if-
(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or
(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.
(2) Whoever is guilty of Zina liable to hadd shall, subject to the provisions of this Ordinance,
(a) if he or she is a muhsan, be stoned to death at a public place; or
(b) if he or she is not muhsan, be punished, at a public place; with whipping numbering one hundred stripes.
(3) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping; until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.
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Hudud crimes Adultery in Pakistan VIIThe Offence of Zina (Enforcement Of Hudood) Ordinance of 1979
8. Proof of zina liable to hadd.Proof of zina liable to hadd shall be in one of the following forms, namely:
(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or
(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-widnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.
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Hudud crimes Adultery in Pakistan VIIIThe Offence of Zina (Enforcement Of Hudood) Ordinance of 1979
9. Case in which hadd shall not be enforced(1) In a case in which the offence of zina is proved only by the confession of the convict, hadd, or such part of it as is yet to be enforced, shall not be enforced if the convict retracts his confession before the hadd or such part is enforced.
(2) In a case in which the offence of zina is proved only by testimony, hadd or such part of it as is yet to be enforced, shall not be enforced if any witness resiles from his testimony before hadd or such part is enforced, so as to reduce the number of eye-witnesses to less than four.
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Hudud crimes Adultery in Pakistan IXThe Offence of Zina (Enforcement Of Hudood) Ordinance of 1979
17. Mode of execution of punishment of stoning to deathThe punishment of stoning to death awarded under section 5 shall be executed in the following manner, namely :-
Such of the witnesses who deposed against the convict as may be available shall start stoning him and, while stoning is being carried on, he may be shot dead, whereupon stoning and shooting shall be stopped.
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Hudud crimes Slander (qadhf)
Elements:
False accusation of
zina (or of the legitimacy of someone‘s child)
Of a Muslim
Fixed punishment: flogging (80 lashes) [24:4] [24:5]
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Hudud crimes Slander in Pakistan ILAW NO. 45 OF 1860, (Pakistan Penal Code)
Defamation499.Defamation:
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said except in the cases hereinafter excepted, to defame that person.
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Hudud crimes Slander in Pakistan IIThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 19793. Qazf
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers an imputation of zina concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit qazf.
First Exception (Imputation of truth which public good requires to be made or published):It is not qazf to impute zina to any person if the imputation be true and made or published
for the public good. Whether or not it is for the public good, is a question of fact. Second Exception (Accusation preferred in good faith to authorized person):
Save in the cases hereinafter mentioned, it is not qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject matter of the accusation.
(a) A complainant makes an accusation of zina against another person in a Court, but fails to produce four witnesses in support thereof before the Court.
(b) According to the finding of the Court, a witness has given false evidence of the commission of zina or zina-bil-jabr.
(c) According to the finding of the Court, the complainant has made a false accusation of zina-bil-jabr
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Hudud crimes Slander in Pakistan IIIThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 1979
5. Qazf liable to haddWhoever, being an adult, intentionally and without ambiguity commits qazf of
zina liable to hadd against a particular person who is a muhsan and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit qazf liable to hadd.
Explanation 1: In this section, "muhsan" means a sane and adult Muslim who either has had no sexual intercourse or has had such intercourse with his or her lawfully wedded spouse.
Explanation 2: If a person makes in respect of another person the imputation that such other person is an illegitimate child, or refuses to recognize such person to be a legitimate child, he shall be deemed to have committed qazf liable to hadd in respect of the mother of that person.
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Hudud crimes Slander in Pakistan IVThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 1979
6. Proof of qazf liable to hadd(1) Proof of qazf liable to hadd shall be in one of the following forms namely:(a) the accused makes before a Court of competent jurisdiction a confession of the
commission of the offence;(b) the accused commits qazf in the presence of the Court; and (c) at least two Muslim adult male witnesses, other than the victim of the qazf, about whom
the Court is satisfied, having regard to the requirements of tazkiyah alshuhood that they are truthful persons and abstain from major sins (Kabair), give direct evidence of the commission of qazf:
Provided that, if the accused is a non-Muslim, the witnesses may be non-MuslimsProvided further that the statement of the complainant or the person authorized by him
shall be recorded before the statements of the witnesses are recorded.(2) The Presiding Officer of a Court dismissing a complaint under section 203A of the
Code of Criminal Procedure, 1898 or acquitting an accused under section 5 of the Offense of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979), if satisfied that the offence of qazf liable to hadd has been committed, shall not require any proof of qazf and shall proceed to pass sentence under section 7.
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Hudud crimes Slander in Pakistan VThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 1979
7. Punishment of qazf liable to hadd(1) Whoever commits qazf liable to hadd shall be punished with whipping
numbering eighty stripes.(2) After a person has been convicted of the offence of qazf liable to hadd, his
evidence shall not be admissible in any Court of law.(3) A punishment awarded under sub-section (1) shall not be executed until it has
been confirmed by the Court to which an appeal from the Court awarding the punishment lies; and, until the provisions of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment.
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Hudud crimes Slander in Pakistan VIThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 19798. Who can file a complaint
No proceedings under this Ordinance shall be initiated except on a complaint lodged in a Court by the following, namely:-
(a) if the person in respect of whom the qazf has been committed be alive, that person, or any person authorised by him; or
(b) if the person in respect of whom the qazf has been committed be dead, any of the ascendants or descendants of that person.9. Cases in which hadd shall not be imposed or enforced
(1) Hadd shall not be imposed for qazf in any of the following cases, namely:(a) when a person has committed qazf against any of his descendants;(b) when the person in respect of whom qazf has been committed and who is a
complainant has died during the pendencey of the proceedings; and(c) when the imputation has been proved to be true.(2) In a case which, before the execution of hadd, the complainant withdraws his
allegation of qazf, or states that the accused had made a false confession or that any of the witnesses had deposed falsely, hadd shall not be enforced.
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Hudud crimes Slander in Pakistan VIIThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 1979
14. Lian(1) When a husband accuses before a Court his wife who is muhsan within the
meaning of section 5, of zina and the wife does not accept the accusation as true, the following procedure of lian shall apply, namely:
(a) the husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of zina against my wife (name of wife)" and, after he has said so four times, he shall say: "Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife)"; and
(b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of zina against me" and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of zina against me".
(2) When the procedure specified in sub-section (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.
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Hudud crimes Slander in Pakistan VIIIThe Offence of Qazf (Enforcement Of Hadd) Ordinance of 1979
14. Lian(3) Where the husband or the wife refuses to go through the procedure specified
in subsection(1), he or, as the case may be, she shall be imprisoned until:(a) in the case of the husband, he has agreed to go through the aforesaid
procedure; or(b) in the case of the wife, she has either agreed to go through the aforesaid
procedure or accepted the husband's accusation as true.(4) A wife who has accepted the husband's accusation as true shall be awarded
the punishment for the offence of 'zina' liable to 'hadd' under the imposition of Hudood for the Offence of 'Zina' Ordinance, 1979.
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Hudud crimes Consumption of wine or other intoxicating beverages (shrub al-khamr)
[2:219], [4:43], [5:90] - [5:91]
hadith: “He who drinks wine, whip him”
The number of lashes is disputed: 40 (Shia) or 80 (Sunni)
By analogy extended to other intoxicating substances
Applies only to Muslims
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Hudud crimes shrub al-khamr in Pakistan IThe Prohibition (Enforcement Of Hadd) Order of 19796. Drinking
Whoever, intentionally and without ikrah or iztirar, takes an intoxicant by any means whatsoever, whether such taking causes intoxicant or not, shall be guilty of drinking.
Explanation: In this Article, (a) "ikrah" means putting any person in fear of injury to the person, property or honour of that
or any person ;and (b) "iztirar" means a situation in which a person is in apprehension of death due to extreme
hunger or thirst or serious illness.7. Two Kinds of drinking
Drinking may be either drinking liable to hadd or drinking liable to tazir.8. Drinking liable to hadd
Whoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking liable to hadd and shall be punished with whipping numbering eighty stripes.
Provided that punishment shall not executed unless it is confirmed by Court to which an appeal from the order of conviction lies; and, until the punishment is confirmed and executed, the convict shall, subject to the provisions of the code of criminal procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment.
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Hudud crimes shrub al-khamr in Pakistan IIThe Prohibition (Enforcement Of Hadd) Order of 19799. Proof of drinking liable to hadd
The proof of drinking liable hadd shall be in one of the following forms, namely:(a) the accused makes before a court of competent jurisdiction a confession of
commission of drinking liable to hadd; and (b) at least two Muslim adult male witness, about whom the court is satisfied, having
regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence of the accused having committed the offence of drinking liable to hadd.
Explanation: In this Article, tazkiyah al-shuhood means the mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness.10. Cases in which hadd shall not be enforced
(1) Hadd shall not be enforced in the following cases, namely:(a) when drinking is proved only by the confession of the convict but he retracts his
confession before the execution of hadd; and (b) when drinking is proved by testimony, but before the execution of hadd, any witness
resiles from his testimony so as to reduce the number of witness to less than two.(2) In a case mentioned in clause (1), the Court may order retrial in accordance with
the Code of Criminal Procedure, 1898.
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Hudud crimes shrub al-khamr in Pakistan IIIThe Prohibition (Enforcement Of Hadd) Order of 1979
11. Drinking liable to tazirWhoever-
(c) being a Muslim, is guilty of drinking, which is not liable to hadd under Article 8 or which proof in either of the forms mentioned in Article 9 is not available and the court is that the offence stands proved by the evidence on the record;
(d) being a non-Muslim citizen of Pakistan, is guilty of drinking, expect as a part of a ceremony prescribed by his religion; or
(e) being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place;
shall be liable to tazir and shall be punished with imprisonment of either description for a term which may extend to three years or with whipping not exceeding thirty stripes, or with both.
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Hudud crimesApostasy (ridda)
[2:217]; hadith
Elements:
A Muslim
Who rejects Islam publicly
By word or deed
Expressly: by abjuring Islam and/or being converted to another religion
Implicitly: by denying Mohammed’s mission or by disrespectful treatment of the Qur’an
Fixed punishment:
Certain time to repent and recant (controversial)
Otherwise death penalty
Yemen and Sudan included a provision on apostasy in their penal codes
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Hudud crimesRebellion (baghi)
[49:9]
hadd and its penalty established by Sunna
Unlawful uprising against the legitimate ruler by use of force;
But entitlement of Muslims to rebel against unjust rulers
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Homicide and bodily harmIntroduction
[2:178], [2:179]; [5:45], [4:92]Elements:
Killing or woundingWithout legal justification
Justification:Lawful executionInterest of Muslim communityVictim lacks legal protection (‘isma)
Punishment (qisas) or financial liability (diyya)
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Homicide and bodily harmCategories and principles
Categories: 1) murder2) intentional killing3) unintentional killing4) intentional wounding5) unintentional woundingPrinciples:Principle of private prosecution (claims of men; plaintiff is dominus litis)Principle of redress consisting in retaliation or financial compensationPrinciple of equivalence
Equivalence between injuries of the victim and those to which the attacker will be subjectedEquivalence between the monetary value of the victim the monetary value of the perpetrator
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Homicide and bodily harmSanctions
Retaliation (qisas): for intentional homicide or bodily harmOnly if victim or next to kin demand it.
Prosecution, execution of the sentence depend upon plaintiff’s willJudge can not interfere; he only supervises the procedure
If retaliation is not possible, state authorities may inflict punishment by way of ta‘zirCompensation / bloodmoney (diyya): for unintentional homicide or bodily harmRetaliation is not possible, but it is proven that defendant has caused death or injuryPayment by the perpetrator’s clan (‘aqila) to the plaintiffAmount is negotiable
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Homicide and bodily harmExamples
qisas:A person can not be sentenced to retaliation if he has killed a person with lower bloodprice:
A free man cannot be executed for having killed a slaveA Muslim cannot be executed for having killed a non-Muslim (dhimmi)A father cannot be put to death for having killed his child
diyya:The bloodprice for a free Muslim man is the standard against which the values of all other categories of persons are measured:
Normal bloodprice, due in cases of unintentional homicide: 100 camels of various specifications or 1000 dinars (4.25 kg gold)Enhanced bloodprice in cases of intentional and semi-intentional homicide: 100 camels of expensive specifications or 1000 dinars
Value of bloodprice varies with the victim‘s sex, religion and legal status. Bloodprice of woman is half that of a man.
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Ta‘zir crimesDiscretionary punishment for forbidden or sinful acts
Categories:All forbidden or sinful acts that are less severe than hadd and qisas crimesInconclusively established or insufficiently proven hadd and qisas charges
Purpose:Restraint from repeating the offenceCoercive measure to force a person to carry out his duties
Sanctions (imposed by qadi and executive authorities):Flogging, reprimand, death penalty, banishment, imprisonment
Critics: The punitive powers of the authorities are hardly restricted; no strict requirements of evidence, assumptions based on reputation
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Siyasa crimesDiscretionary punishment for acts against public order
Categories:All acts threatening the public orderRegardless of whether or not the perpetrator is to be blamed for it
Purpose:Protection of society
Sanctions (imposed by executive authorities):Death penalty, banishment, imprisonment
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Islamic criminal procedureBasic principles
Regardless of the involved crime category the following principles and rights of the accused apply:
No crime without law
No punishment without law
No retroactive application of the criminal law
Presumption of innocence
The right of each person to the protection of life, liberty and property
The right to due process of law
The right to a fair and public trial before an impartial judge
Confrontation and cross-examination of accusers and witnesses
Freedom from compulsory self-incrimination
Protection against arbitrary arrest and detention
Prompt judicial determination
Right of appeal
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Islamic criminal procedureDue process of law
Due process of lawNo arbitrary arrest and detention, pre-trial detention violates the freedom of movementPre-trial interrogation
The accused can refuse to answer questionsHuman treatmentHas to be encouraged to deny his or her giltNo use of torture
Search and seizureRecognition of privacy and sanctity of persons, effects, correspondence and namesRequirements:
By investigative officialsIf required by public interestMaintenance of social order and safetyAuthorized by warrant
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Islamic criminal procedureRules of evidence
Testimony
Male witnesses who are sane and of legal age and of good reputation and character
Cannot testify in cases in which they have an interest
Concurrent, truthful testimony
Confessions
As many times as the number of witnesses required
Detailed
