Application of Islamic Law of Crime in Pakistan's Legal System

 

📜 Application of Islamic Law of Crime in Pakistan's Legal System

Pakistan's legal system is a unique blend, rooted in the common law traditions inherited from British India, yet profoundly shaped by its identity as an Islamic Republic. The Islamic law of crime, primarily derived from the Sharia (Islamic canonical law) and implemented through specific legislation, plays a crucial and complex role. This blog post details the application and integration of this law within Pakistan's contemporary legal framework.

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The Constitutional Mandate and Islamicization

The foundational basis for incorporating Islamic law lies in Pakistan's Constitution.

·       Objective Resolution (Article 2A): This serves as the preamble and a substantive part of the Constitution, stating that sovereignty belongs to Allah Almighty and that the laws of Pakistan should be framed according to the teachings and requirements of Islam.

·       Article 227: This mandates that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah, and no law repugnant to such injunctions shall be enacted.

The process of formally integrating Islamic criminal law intensified with the promulgation of the Hudood Ordinances in 1979 by General Zia-ul-Haq.

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Key Areas of Application: The Hudood and Qisas & Diyat Laws

The Islamic criminal jurisprudence applied in Pakistan is broadly divided into three categories:

1.     Hudood (Singular: Hadd): Punishments that are fixed, mandatory, and considered the "Right of God."

2.     Qisas (Retaliation) & Diyat (Blood Money): Punishments for offenses against the human body.

3.     Ta'zir: Discretionary punishments for offenses that do not fall under Hadd or Qisas, or where the evidence for them is insufficient.

1. The Hudood Ordinances (Crimes Punishable as Hadd)

The 1979 Ordinances criminalized certain acts under Hadd and prescribed specific penalties. While controversial and subject to partial amendment, they remain a significant part of the law.

Ordinance	Core Offense	Hadd Punishment
Offence of Zina (Enforcement of Hudood) Ordinance, 1979	Zina (extramarital sexual intercourse), including adultery and fornication.	Stoning to death (Rajm) or lashing, though conviction under Hadd is extremely difficult due to high evidentiary requirements.
Offence of Qazf (Enforcement of Hudood) Ordinance, 1979	Qazf (False accusation of Zina).	Eighty stripes.
Offence of Drinking (Prohibition) (Enforcement of Hadd) Order, 1979	Consumption of intoxicants.	Eighty stripes.
Offence of Theft (Enforcement of Hudood) Ordinance, 1979	Sariqa-e-Hadd (Theft fulfilling specific Sharia conditions).	Amputation of the right hand (rarely enforced).

Note on Amendments: The Protection of Women (Criminal Laws Amendment) Act, 2006 significantly reformed the Zina Ordinance, transferring the offense of Zina from Hadd to Ta'zir (meaning discretionary punishment under the Pakistan Penal Code) unless the high Hadd standards are met. This was a critical step in addressing abuses and difficulties in the law's application.

2. Qisas and Diyat (The Shariat Court Laws, 1990)

The Criminal Law (Amendment) Act, 1997 (incorporating the concepts of Qisas and Diyat) introduced Islamic principles into the laws governing offenses against the human body, replacing aspects of the British Penal Code.

·       Qisas (Retaliation): Applied to intentional murder (Qatl-e-Amd) and intentional hurt. It means "to follow in the footsteps" or "equality." The punishment is an eye-for-an-eye equivalent, but is subject to Waiver (Afw) or Compromise (Sulh) by the victim's heirs.

·       Diyat (Blood Money): This is the financial compensation paid to the legal heirs of the victim in cases of culpable homicide not amounting to Qisas, or where the heirs waive Qisas. Its value is fixed by law, currently defined in terms of silver (usually converting to a substantial amount in PKR).

·       Ta'zir for Homicide: If a crime is not liable to Qisas or where Qisas is not applicable due to legal hurdles (e.g., compounding), the court can impose a discretionary Ta'zir punishment, including imprisonment or death.

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The Role of the Superior Judiciary

The Federal Shariat Court (FSC) and the Shariat Appellate Bench of the Supreme Court of Pakistan are specialized judicial forums established to examine and determine whether any law is repugnant to the injunctions of Islam.

·       Federal Shariat Court (FSC): Has the power to strike down any law that it deems repugnant to Islam. It hears appeals from lower criminal courts regarding convictions under the Hudood Ordinances.

·       Supreme Court's Shariat Appellate Bench: Hears appeals against the decisions of the FSC.

 

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⚖️ Conclusion and Ongoing Legal Discourse

The application of Islamic law of crime in Pakistan is a dynamic and ever-evolving process. While it has established specific Hadd offenses and revolutionized the law of homicide and hurt via Qisas and Diyat, the system remains a hybrid:

·       Major crimes like corruption, terrorism, and most property crimes are primarily handled under the Pakistan Penal Code (PPC), which falls under the category of Ta'zir (discretionary punishment).

·       Procedural Law: The Code of Criminal Procedure (CrPC), largely a common law import, still governs the processes of investigation, trial, and appeal, making the system a challenging synthesis of two distinct legal traditions.

Pakistan's legal system continues its struggle to balance the constitutional aspiration of becoming a truly Islamic society with the demands of a modern, functioning legal state, making the application of Islamic criminal law a central and critical subject of legal, social, and political debate.