REVIEW REPORT ON OBJECTIONS RAISED ON PAKISTAN PENAL CODE AND HUDOOD LAWS

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REPORTREPORTREPORTREPORT

FOR REVIEW OF THE OBJECTIONSFOR REVIEW OF THE OBJECTIONSFOR REVIEW OF THE OBJECTIONSFOR REVIEW OF THE OBJECTIONS

RAISED ON PAKISTAN PENAL CODE RAISED ON PAKISTAN PENAL CODE RAISED ON PAKISTAN PENAL CODE RAISED ON PAKISTAN PENAL CODE

PREAPRED BY

ABDUR RAUF &

NOREEN AFZAL

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ForewordForewordForewordForeword The word crime comes from the Latin crimen (genitive criminis), from the Latin root cernō and Greek κρινω =

"I judge". Originally it meant "charge (in law), guilt, accusation."

Informal relationships and sanctions have been deemed insufficient to create and maintain a desired social order, resulting in formalized systems of social control by the government, or more broadly, the State. With the institutional and legal machinery at their disposal, agents of the State are able to compel individuals to conform to behavioural norms and punish those that do not. Various mechanisms are employed to regulate behaviour, including rules codified into laws, policing people to ensure they comply with those laws, and other policies and practices designed to prevent crime. In addition are remedies and sanctions, and collectively these constitute a criminal justice system

Definition

A normative definition views crime as deviant behaviour that violates prevailing norms, specifically, cultural standards prescribing how humans ought to behave. This approach considers the complex realities surrounding the concept of crime and seeks to understand how changing social, political, psychological, and economic conditions may affect the current definitions of crime and the form of the legal, law enforcement, and penal responses made by the State.

Natural law theory

The consistent theoretical problem has been to justify the State's use of force to coerce compliance with its laws. One of the earliest justifications was the theory of natural law. This posits that the standards of morality are derived from or constructed by the nature of the world or of human beings. Thomas Aquinas said: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. William Blackstone (1979: 41) describes the thesis:

"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original."

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Pakistan Penal Code history

Pakistan has an extensive penal code of some 511 articles, based on the Indian Penal Code of 1860, extensively amended during both the pre-independence and the post-independence eras, and an equally extensive Code of Criminal Procedure. Numerous other laws relating to criminal behavior have also been enacted. Much of Pakistan's code deals with crimes against persons and properties.

Pakistani courts can, and do impose the death sentence, as well as imprisonment, forfeiture of property, and fines. Imprisonment is either "rigorous"--the equivalent of hard labor for up to fourteen years--or "simple"--confinement without hard labor. Another form is "banishment," which involves serving in a maximum security prison for periods of seven years to life. In February 1979, Zia ul-Haq issued new laws that punished rape, adultery, and the "carnal knowledge of a virgin" by stoning; first time theft by amputation of the right hand; and consumption of alcohol by eighty lashes. Stoning and amputation, it should be noted, had not been carried out as of early 1994--at least not outside of the tribal area where tribal custom, rather than the Pakistani penal code, is the law of the land.

Article 45 of the constitution bestows on the president the right to grant a pardon or to remit, suspend, or commute any sentence passed by any court. There are also legal provisions for parole.

In principle, articles 9 through 13 of the constitution and provisions of the codes guarantee most of the same protections that are found in British and United States law. These rights include, for example, the right to bail and to counsel, the right of habeas corpus, the right of cross-examination, the right of representation, the right of being informed of charges, the right of appeal, and the right of the prevention of double jeopardy.

The code contains copious provisions for punishment of crimes against the state or against public tranquility. These crimes extend to conspiracy against the government, incitement of hatred, contempt or disaffection toward a lawfully constituted authority, unlawful assembly, and public disturbances. Punishments range from terms of imprisonment to life in prison or death.

In most instances, a person apprehended appears before a magistrate or assistant commissioner, who decides on bail; the magistrate may also try less serious cases. Serious cases are tried before the session courts, which can award punishments up to death. The provincial high court hears appeals and automatically reviews any conviction involving the death penalty. The highest level of appeal for criminal cases is the federal Supreme Court. ))

Under the Suppression of Terrorist Activities (Special Courts) Act of 1975, the government established special courts to try cases involving crimes of a "terrorist" nature (for example, murder and sabotage). In 1987 another ordinance was passed establishing Speedy Trial Courts, which were empowered to hand down a death penalty after a three-day trial in which almost no adjournments were permitted. The jurisdictional authority of both kinds of courts was amended in 1988, but they have continued to operate. In 1991 the Speedy Trial Courts were given new

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jurisdictional authority to try particularly heinous crimes under the constitution's Twelfth Amendment. These courts handle cases that attract widespread public attention, especially those dealing with murder and drug offenses and in which the government believes that justice must be meted out rapidly. Only one appeal is permitted. In 1990 special "accountability" courts were set up to try individuals from Benazir's first administration who were charged with corruption. In late 1993, Benazir announced that her government would stop referring new cases to the special courts and would allow the constitutional authority for these courts to lapse in 1994.

The court system and the provisions of criminal law do not extend into the tribal areas along the Afghan border. These areas are administrated by political agents who work with tribal leaders to maintain law and order according to tribal standards.

Report For Review on The Objections Raised On Pakistan Penal Code.

The report in hand is basically a data base research oriented work. The objections raised on the various sections of Pakistan Penal Code are multidimensional however a triangular approach has been applied by researcher to cop with. Firstly the objections which are based on element of repugnancy to the injections of Quran and Sunnah are sorted out from the Shariat Petitions decided by the Federal Shariat Court of Pakistan exercising its constitutional jurisdiction vested to bring the current laws in conformity with Quran and Sunnah. Secondly the general objections mostly highlighted by the civil societies are based on socio-cultural values of Pakistani society. And thirdly the objections raised by the pro-west NGOs are based on their particular propagandas primarily against the Islamic provisions of the code.

The format of the report is tabular and very simple. Every section of the code objection raised about has been reproduced from the latest version of the code in third column. Fourth column consists of objections raised on the provisions. The source of objection is mentioned at the end and a copy of the referred data is enclosed as relevant annexure for a detailed perusal of the reader. The proposed amendments or suggestion if any, are put in the fifth column whereas fifth column is left blank for the recommendations of the Council of Islamic Ideology (CII), Government of Pakistan.

This research report is prepared by Abdur Rauf and Noreen Afzal in the supervision of Zar Khalil Sahib, Chief Research Officer, CII and is submitted to the Honorable Chairman CII in the hope of appreciation.

Abdur Rauf Khatana MA Philosophy

LL.B (Hons) Noreen Afzal

LLM(Corp)

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REVIEW REPORT ON OBJECTIONS RAISED ON PAKISTAN PENAL CODE AND HUDOOD LAWS

S. No. Section of PPC Legal Provision Objection Proposed Amendment Recommendation by CII

1 Section 67 of

PPC.

Imprisonment for non-payment of fine, when offence punishable with fine only. – If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.

The Commission was of the view that fines were fixed long ago and due to devaluation of currency with the passage of time have become inadequate. The Commission is of the view that it is also imperative that the amount of fine in default of which scale of imprisonment is prescribed in Section 67, may also be enhanced. (Annex – A)

It is therefore, proposed that the scale of fine of Rs 50/- for default of 2 months simple imprisonment is awarded, be enhanced to Rs 1000/- and for Rs 100/- in default of which 4 months simply imprisonment is awarded be enhanced to Rs 2000/-.

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2 155 Liability of person for

whose benefit riot is committed. – Whenever a riot is committed for the benefit or on behalf of any person who is the owner occupier of any land respecting which such riot takes place or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, such person shall be punishable with fine, if he or his agent or manager, having reason to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, shall not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place, and for suppressing and dispersing the same.

Ø Amount of fine is not been specified (Pakistan Law and Justice Commission).

(Annex – A-1)

A fine limit may be prescribed. (Pakistan Law and Justice Commission).

3 156 Liability of agent of

owner or occupier for whose benefit riot is committed. – Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot

Ø Amount of fine is not been specified (Pakistan Law and Justice Commission).

(Annex – A-1)

A fine limit may be prescribed. (Pakistan Law and Justice Commission).

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takes place, or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, the agent or manager of such person shall be punishable with fine, if such agent or manager, having reason to believe that such riot was likely to be committed, hold, shall not use all lawful means in the power to prevent such riot or assembly from taking place and for suppressing and dispersing the same.

4 171-G False statement in

connection with an election. – Whoever with intent to affect the result of an election makes or publishes any statement purporting false or does not believe to be true in relation to the personal character or conduct of any candidate shall be punished with fine.

Ø Amount of fine is not been specified (Pakistan Law and Justice Commission).

(Annex – A-1)

A fine limit may be prescribed. (Pakistan Law and Justice Commission).

5 294 Obscene acts and songs. – Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or words, in or

Ø “Obscene” not defined whether should be understood in Islamic terms or not.

Ø Fashion shows, Mujras, etc are against the Islamic civilization whether fall in the scope

Ø A proviso may be added to define the scope of “obscene”.

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near any public place. Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

of “obscene” or not. Ø The concept of “Peoples

accepted morality” does not form the basis of law in Islam therefore the phrase “to the annoyance of others” is un-Islamic.

(Annex - B) (Website)

6 294 – A Keeping lottery office. – Whoever keeps any office or place for the purpose of drawing any lottery [not being a State lottery or a lottery authorized by the Provincial Government] shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

And whoever publishes any proposal to pay sum, or to deliver any goods, so to do or forbear doing anything for the benefit of any person, on any event or contingency relative or applicable to the drawing of any ticket, lot, number of figure in any such lottery shall be punished with fine which may extend to [three thousand rupees].

Ø The term of the section permit the Provincial Government for the state to operate lotteries which may be against the Injunctions of Islam.

Ø Both the sections 294-A and 294-B held repugnant to the Injunction laid down in Qur’an and Sunnah by Federal Shari’at Court.

Ø It prohibit even the lawful lotteries.

Ø Again Sec. 294-B even does not differentiate between the lawful and un-lawful lotteries. (PLD 1989 FSC 60).

(Annex – C)

Ø The two sections need to be suitably amended in the light of the teachings laid down in Qur’an and Sunnah to bring it in conformity with Islam. (PLD 1989 FCS 60).

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7 294 - B

Offering of prize in connection with trade, etc. – Whoever offers or undertakes to offer, in connection with any trade or business or sale of any commodity, any prize reward or other similar consideration, by whatever name called, whether in money or kind, against any coupon, ticket, number or figure, or by any other device as an inducement or encouragement, to trade or business or to the buying of any commodity, or for the purpose of advertisement or popularizing any commodity, and whoever publishes any such offer, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

-do-

(Annex – C)

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8 295 –C Use of derogatory remarks etc., in respect of the Holy Prophet: Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Ø Alternate punishment of life imprisonment as provided in the section held repugnant to the Injunctions of Qur’an and Sunnah by Federal Shari’at Court. (PLD 1991 FCS 10).

(Annex – D)

Ø Pro-qadianism NGO’s pose the objection that litigants used this provision for their personal interest against the Qadiani and Ahmadi groups.

(Annex – E)

Ø Said words “or imprisonment for life”, may be deleted there from.

Ø A clause may further be added to this section so as to make the same or things when said about other prophets also, offence with the same punishment. (PLD 1991 FCS 10).

9 298 – C Person of Qadiani group, etc., calling himself a Muslim or preaching or propagating his faith. Any person of the Qadiani group or the Lahori group (who call themselves Ahmadis or by any other name,) who, directly or indirectly, poses himself as a Muslims, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites other to accept his faith, by words, either spoken or written, or by visible representations or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine].

Ø Non-Muslim, pro-west NGO’s propagate that this provision is against the fundamental right of freedom of speech and seek the repeal of the same.

(Annex - F) (Website)

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10 Chapter XVI of Offence against Human body of (Offences Affecting Life) Section 299-338

Life of a women is not well safeguarded as, honour killing. (Karo Kari) is neither specifically defined as an offence nor the punishment is provided against such an heinous practice.

Ø Only in the year 1998 the figure of victims of honour killing specially women remained :

i) In Punjab – 286

ii) Sindh - 196

(Annex – F) (Website)

Express and separate provisions may be incorporated to cope with this cruel and inhuman practice against women.

11 302 (Prior to 1980)

Punishment for murder: Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.

Ø No exemption for insane was provided at the time of execution.

Ø Also no exception was provided for parent killing his/her son.

(Annex - G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Qisas and Diyat Act replaced the recommended laws based on Islamic Fiqh.

Sec.302 New amendment: Punishment of qatl-i-amd. – Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be;

(a) Punished with death as qisas;

(b) Punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or

(c) Punished with imprisonment of either description for a term which may extend to twenty-five years,

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where according to the Injunctions of Islam the punishment of qisas is not applicable.

“Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and same shall fall within the ambit of clause (a) or clause (b) as the case may be.”

12 304 (Prior to 1980)

Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.

Ø The section did not provide for composition and payment of Diyat in accordance with the Injunctions of Islam. Objection raised in Shari’at Petition before Federal Shari’at Court.

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.304 New amendments: Proof of qatl-i-amd liable to qisas, etc. – (1) Proof of qatl-i-amd liable to qisas shall be in any of the following forms, namely:

(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or

(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984).

(2) The provision of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas.

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13 304 – A (Prior to 1980)

Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to [ten] years, and shall also be liable to fine.

Ø The section did not provide for composition and payment of Diyat in accordance with the Injunctions of Islam. Objection raised in Shari’at Petition before Federal Shari’at Court. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

14 306 Qatl-i-amd not liable to qisas. – Qatl-i-amad shall not be liable to qisas in the following cases, namely:

(a) When an offender is minor or insane:

Provided that, where a person liable to qisas associates with himself in the commission of the offence a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted form qisas; (b) when an offender

causes death of his child or grandchild how low-so ever; and

(c) when any wali of victim is a direct descendant, how low-so-ever, of the offender.

Ø Penalties are not strictly imposed on the conception of customary privileges.

Ø Husband, father and brother frequently take the lives of women in the name of honour killing and take advantage of the exception provided for being falling in the category of “when the wali is direct descendent of the offender”.

Ø The maximum punishment provided in this case is only 14 years even then offender is granted the privilege of customs and in very less number of cases the offender is punished.

(Annex - H) (Website)

Provision of fisad fil ardh section 311 PPC provides the remedy to some extent where offender is to be held punishable by capital punishment in Taz’ir. But the section may be amended to cope with the situation so that frequent killing of women in the name of extra judicial honour killing could be controlled.

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15 310 Compounding of qisas (Sulh) in qatl-i-amd. - (1) In the case of Qatl-i-amd, an adult sane wali may, at any time on accepting badal-i-sulh, compound his right of qisas

[Provided that a female shall not be given in marriage or otherwise in badal-i-sulh].

(2) Where a Wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badal-i-sulh shall not be less than the value of diyat.

(3) Where the Government is the Wali, it may compound the right of qisas. Provided that the value of badal-i-sulh shall not be less than the value of diyat.

(4) Where the b adal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.

Ø Western based NGO’s observe that wealthy people may under the privilege granted by this section take the innocent lives of ordinary people extra judicially. (Ahmed Waseem, Columnist, 29th Dec., 2006 Website)

(Annex - H)

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(5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.

16 324 (Prior to 1980)

Voluntarily causing hurt by dangerous weapons or means: Whoever, except in the case provided for by Section 334 voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

(Annex – G)

Sec.324 New Amendments: Attempt to commit qatl-il-amd. – Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused:

Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.

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17 325 (Prior to 1980)

Punishment for voluntarily causing grievous hurt: Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.325 New Amendments: Attempt to commit suicide. – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, with fine, or with both.

18 326 (Prior to 1980)

Voluntarily causing grievous hurt by dangerous weapons or means: Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, swallow, or to receive into the blood, or by means of any animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

Ø Section 326 also did not provide for composition in accordance with Islamic Law. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.326 New Amendments: Thug.- Whoever shall have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with qatl, is a thug.

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19 329 (Prior to 1980)

Voluntarily causing hurt, grievous hurt to extort property, or to constrain to an illegal act Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which may facilitate the commission of an offence shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

Ø Section 326 also did not provide for composition in accordance with Islamic Law. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.329 New Amendments: Concealment of birth by secret disposal of dead body. – Whoever, by secretly burying or otherwise disposing of the dead body of a child whether the child dies before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 326, P.P.c is the same as S.218 (old) which formed the Penal Code prior to its amendment. 318. Concealment of birth by secret disposal of dead body. – Whoever, by secretly burying or otherwise disposing of the dead body of a child whether the child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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20 331 (Prior to 1980)

Voluntarily causing grievous hurt to extort confession or to compel restoration of property: Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of an offence of misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property of valuable security, or to satisfy and claim or demand or to give information which may lead to the restoration of any property or valuable security shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

(Annex –G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.331 New Amendments: Payment of diyat. – (1) The diyat may be made payable in lump sum or in instalments spread over a priod of three years from the date of the final judgment.

(2) Where a convict fails to pay diyat or any part thereof with in the period specified in sub-section (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of diyat to the satisfaction of the Court.

(3) Where a convict dies before the payment of diyat or any part thereof, it shall be recovered from his estate.

21 333 (Prior to 1980)

Voluntarily causing grievous hurt to deter public servant from his duty: Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful

Ø Section did not provide for qisas or payment of diyat, compensation, ursh and daman. The objection raised in Shari’at Petition before Federal Shari’at Court and thereby held repugnant to the Injunctions of Islam. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec. 333 New Amendments: Itlaf-i-udw. – Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-udw.

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discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

22 335 (Prior to 1980)

Voluntarily causing hurt on provocation: Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation shall be punished

Ø Section did not provide for payment of diyat thereto held repugnant by the Federal Shari’at Court. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec.335 New Amendments: Itlaf-i-Salahiyyat-i-udw. – Whoever destroys or permanently impairs the functioning, power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause itlaf-i-salahiyyat-i-udw.

23 338 (Prior to 1980)

Causing previous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to [three years, or with fine which may extend to one thousand rupees, or with both].

Ø Section did not provide for payment of diyat thereto held repugnant by the Federal Shari’at Court. (PLD 1980 FSC 1).

(Annex – G)

Ø Existing provision regarding offences against human body and life are not based on the principles of Islamic laws therefore the same are sought to be replaced with Islamic provisions. (Federal Shari’at Court).

Sec. 338 New Amendments: Isqat-i-Haml (miscarriage). – Whoever causes a woman with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman or providing necessary treatment to her, is said to cause isqat-i-haml.

24 Section 354, 354-A and 366 of PPC.

354. Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that

Another objection mentioned by the Law and Justice Commission of Pakistan is that " the offence of Molestation is neither punishable in any section of Pakistan penal code nor any amendment

There is need to suitably amend the provisions of Sections, 354,354-A, 366, and 509 of PPC, with a view to make certain acts/wrong against the children punishable.

20

he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

has been made to make that offence punishable under offence of Zina (Enforcement of Hudood) Ordinance 1979. (Annex – N)

The Commission proposed an amendment in the PPC, in the form of section 354-b, to incorporate the act of "molestation" as offence.

25 354-A Assault or use of criminal force to woman and stripping her of her clothes. Whoever assaults or uses criminal force to any woman and stripes her of her cloths and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine.

-do-

26 366 Kidnapping, abduct-ting or inducing woman to compel her marriage, etc. – Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced reduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten

-do-

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years, and also be liable to fine. And whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other methods of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

27 Section 427, 428, 429&435 of PPC.

Mischief causing damage to the amount of fifty rupees. Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Another objection, prescribed by the Law and Justice Commission of Pakistan is that "punishment prescribed for the aggravated form of mischief, appear to be disproportionate" due to constant devaluation of the currency and the increasing value of the property and animals. (Annex – O)

In Section 427, the value of property of amount of fifty rupees is now too small and the punishment prescribed i.e. imprisonment for up to two years appears to be disproportionately higher, therefore, it is proposed to enhance the said amount to ONE THOUSAND RUPEES. In Section 428, the punishment prescribed is up to two years imprisonment or fine or both for the offence of killing any animal of the value of ten rupees or upwards.

This amount is also too small and needs to be enhanced. It is therefore,

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proposed to enhance the value of the animal to rupees FIVE HUNDRED.

Similarly, in Section 429, the value of the animals fixed as fifty rupees is too inadequate, especially when the other category of animals mentioned are elephant, camel, buffalo etc. It is therefore, proposed to enhance the sum of fifty rupees to FIVE THOUSAND RUPEES. Likewise, in Section 435, the sums of one hundred rupees and ten rupees are also too inadequate, as the price/cost of property has escalated manifold. These sums therefore should also be enhanced to TWO THOUSAND RUPEES and FIVE HUNDRED RUPEES respectively.

28 428 Mischief by killing or maiming animal of the value of ten rupees. – Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term

-do-

23

which may extend to two years, or with fine or with both.

29 429 Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees. – Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

-do-

30 435 Mischief by fire or explosive sub stance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees. – Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or

-do-

24

upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which shall not be less than two years nor more than seven years and shall also be liable to fine.

31 Sec 509 Word gesture or act intended to insult the modesty of a woman. – Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or fine, or with both.

-do-

32 Sec. 4 of Prohibition (of intoxication)

Order of 1997

Owning or possessing intoxicant – Whoever owns, possesses or keeps in his custody any intoxicant Shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding

Ø Prohibition of the possession of the intoxicant upon non-Muslims was objected.

Ø Extension of the President Orders to the non-Muslims considered as un-just in the a

Ø Held not repugnant to the

Injunctions of Islam by Federal Shari’at Court.

Ø Federal Shari’at Court

further directed that trail court should not hesitate in

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thirty strips, and shall also be liable to fine:

Provided that nothing contained in this Article shall apply to a non-Muslim foreigner or to a non-Muslim citizen of Pakistan who keeps in his custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony.

“Provided further that, if the intoxicant in respect of which the offence is committed is heroin, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty strips, and shall also be liable to fine.

Shari’at Petition before Federal Shari’at Court. (PLD 1981 FSC 245).

(Annex - T)

awarding punishment of whipping even to the non-Muslim accused of an offence under the section. (PLD 1981 FSC 245).