Q What is the difference between hadd and qisas and application of tazir in the cases of offeces described in islam.
Q Define hadd and tazir as punishment in islam
Q What is the difference between tort and crime? Under what circumstances punishment of tazir can be inflicted
Q How had can be distinguished from qisas when punishments in both of them is fixed . what remedies are available to the aggrieved person in the case of qisas.
Crime is an act which violates of public right and it makes offender liable for punishment. When a certain primary public rights are violated the wrong is called maasiat that is crime or offence; and it gives rise to certain substitutory rights in the form of uqabat or punishments. Criminal offences relate mostly to property, human body, reputation, religion, the state, public peace and tranquility decency or morals. Punishment to an criminal act is provided in penal code.
Before partition penal code were introduced by british rulers as Indian Penal Code which still exist in india as Indian Penal Code but in Pakistan it is named as Pakistan Penal Code. However there is no difference between the two because there sections and law is the same. Though in 1979, during period of general Zia-ul-Haq certain Islamic laws were introduced in Pakistan law. In the British law Murder according to sec 302 ppc is punished in same way but Islam differentiate Punishment into three classes:
- Hadd
- Qisas
- Tazir
Hadd: Hadd means measure and, in law it means a punishment, the measure of which has been definitely fixed. Hadd used to be prevalent in arabia at the time of the promulgation of islam and the muhammadan law, while confirming it as the extreme punishment for certain crimes, has laid down conditions of a stringent nature under which such punishments may be inflicted. The policy of law in connection with this offence is to punish only those offenders who defy public decency and openly flaunt their vices. Hence it is, that four male eyewitnesses are required for its proof. Punishment by hadd are of the following forms:
- Theft (sariqah), punishable with amputation of a hand.
- Highway robbery (hiraba), punishable with death, crucifixion, cross-amputation of hand and foot or banishment.
- Adultery or fornication (zina), punishable with stoning to death for adultery and whipping of one hundred lashes for fornication.
- False accusation of adultery or fornication (qadhf), punishable with whipping of 80 lashes.
- Apostasy (riddah), punishable with death and intoxication (sharb al-khamr), punishable with whipping of 80 or 40 lashes.
In case of murder hadd is when neither the murderer knows to whom he is going to kill nor the person killed himself knows the murderer.
Preventions from hadd: following are some limitations and conditions under which the muhammadan law allows infliction (administration) of this form of punishment.
- Error or doubt with respect to the subject of the application of law
- Doubt or error with respect to act
Qisas: Is punishment which is implemented when someone is damaged by another person, for example a man is killed by another person, and in this case the guilty person should be killed (retaliated). This is the law of retaliation. The qisas refer to the offences of bodily injuries and homicide which attract retributive punishments. They raise substantive human rights concerns, due to the provisions for death penalty for homicide and in the case of bodily injuries, the prescription of lex talionis. It is to be noted that the Shariah stipulates four possible options for Qisas offences, ranging from:
- Retaliation for bodily injuries or homicide (Qisas or Qawad);
- Payment of blood money (diya)
- Atonement (kaffarah)
- Pardon (afw).
In case murder a murderer is punished in accordance with qisas when both the parties know each other that is the murderer and the person who is killed knows each other. In this case the person is punished equally means one for one person is killed.
Tazir: Tazir Literally means disgracing the criminal for his shameful act. tazir may be inflicted for offences against human life and body, property, public peace and tranquility decency, morals, religion and so on; in fact the entire criminal law of the muhammadans as prevalent at the present day is based on the principle of tazir. The objects of taazir are the correction of the offended and the prevention of the recurrence of the crime, and it is left to the discretion of the magistrate to determine, in view of the circumstances of each case, the sentence by which the objects of the law would best be achieved. He is to take into account in awarding punishments, the nature of the offence and the circumstances under which it was committed, the previous character and the position in life of the offender and so on. Tazir crimes are less serious than the hadd crimes found in the Quran. Some of most common punishments are comes under Tazir crimes:
1. Counseling (Sulaah)
2. Fines
3. Public or private pressure
4. Imprisonment
5. Seizure of property
6. Confinement (nazarbandi) in the home
7. Lashes
