Islamic Studies (Islamabad) 29:4 (1990)

Islamic Studies, 29:4 (1990)

PAKISTAN ORDINANCE ON QI$& AND D&M

The following is the text of Ordinance No. VII of 1990
made by the President of Pakistan on September 5,1990.

ORDINANCE No. MI OF 1990

ORDINANCE

further to amend the Pakistan Penul Code and the Code of

Criminul Procedure, 1898.

WHEREAS it is expedient further to amend the Pakistan Penal Code

(Act XLV of 1860), and the Code of Criminal Procedure, 1898 (Act V of
1898), to bring them in conformity with the Injunctions of Islam as laid
down in the Holy Qur'Bn and Sunnuh;

AND WHEREAS the National Assembly is not in session and the

President is satisfied that circumstances exist which render it necessary to
take immediate action;

NOW, THEREFORE, in exercise of the powers conferred by clause

(1) of Article 89 of the Constitution of the Islamic Republic of Pakistan,
the President is pleased to make and promulgate the following Ordinance:-

1. Short Wk and ammemmmt.-41) This Ordinance may be

called the Criminal Law (Second Amendment) Ordinance, 1990.

(2) It shall come into force on the twelfth day of Rabi-ul-Awd

[Rabi' al-Awwulj, 1411 Hijri [Hijrah].

2. Substitution of section 53, Act XLV of 1860.-In the Pakistan

Penal Code (Act XLV of 1860), hereinafter referred to as the said Code,
for section 53 the following shall be substituted, namely:-

"53. Punishments.-The punishments to which offenders areliable

under the provisions of this Code are,-

© Dr Muhammad Hamidullah Library, IIU, Islamabad. http://iri.iiu.edu.pk/

 Islamic Studies, 29:4 (1990)

Secondly, Ta 'zir [Ta 'zir] ;

Thirdly, Diyat [Diyah];

Fourthly, Arsh;

Fifthly, Darnan [Damin];

Sixthly, Death;

Seventhly, Imprisonment for life;

Eighthly , Imprisonment which is of two

descriptions, namely: -

(i) Rigorous i. e., with hard

labour;
(ii) Simple;

Ninthly , Forfeiture of property;

Tenthly, Fine.".

3. Amendment of section 109, Act XLV of 1860.-In the said

Code, in section 109, for the full stop at the end a wlon shall be substituted
and thereafter the following proviso shall be added, namely:

"Provided that, except in case of Zkrah-i-Tarn [Zkriih-i-Tarn]

($ bl$), the abettor of an offence referred to in Chapter XVI shall be
liable to punishment of ta'zir specified for such offence including death.".

4. Substitution of sections 299 to 338, Act XLV of 1860.-(1) In

the said Code, for sections 299 to 338 the following shall be substituted,
namely: -

"299. Definitions.-In this Chapter, unless there is anything repug-

nant in the subject or context,-

(a) "adult" means a person who. has attained, being a

male, the age of eighteen years, or, being a female,
Islamic Studies, 29:4 (1990) 399
the age of sixteen years, or has attained puberty,
whichever is earlier;
"arsh" ( GJ ) means the compensation specified in
this Chapter to be paid by the offender to the victim
or his heirs;
"authorised medical officer" means a medical officer
or a Medical Board, howsoever designated, autho-
rised by the Provincial Government;
"daman" ( bL;. ) means the compensation deter-
mined by the court to be paid by the offender to the
victim for causing hurt not liable to arsh ( $>I );
"diyat" ( +A ) means the compensation specified
in section 323 payable to the heirs of the victim by
the offender;
"Government" means the Provincial Government;
"ikrah-i-tam" ( rL- . I 1 1 ) means putting any per-
son, his spouse or any of his blood relations within
the prohibited degree of marriage in fear of instant
death or instant permanent impairing of any organ of
the body or instant fear of being subjected to sodomy
or zina-bil-jabr [zinci-bi'l-jabr];
"ikrah-i-naqis"[ikrdh-i-ntiqis]( p i L ' 411 ) means any
form of duress which does not amount to Zkrah-i-tam;
"minor" means a person who is not an adult;
"qatl" ( J;i ) means causing death of a person;
"ta'zir" ( ~3) means punishment other than qisas
( ,pLj ), diyat ( ), arsh ( &I ) or daman
( bL;. ); and
"wali" [wali]( J , ) means aperson entitled to claim
qisas.

300. earl-i-amd. ramdl-Whoever, with the intention of causing

death or with the intention of causing bodily injury to a
person, by doing an act which in the ordinary course of nature
is likely to cause death, or with the knowledge that his act
is so imminently dangerous that it must in all probability
cause death, causes the death of such person, is said to com-
mit qatl-i-amd.

301. Causing death of person other than the person whose death
was intended.-Where a person, by doing anything which he
intends or knows to be likely to.cause death, causes death
of any person whose
. . death he neither intends nor knows
 isiamic Studies, 29:4 (1990)

himself to be likely to cause, such an act committed by the

offender shall be liable for.qatl-i-amd.

302. Punishment of qatl-i-amd.-Whoever commits qatl-i-amd

shall, subject to the provisions of this Chapter be-

(a) punished with death asqisas;

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

303. Qatl committed under ikrah-i-tam or ikrah-i-nagis.-Who-

ever commits qat1,-

(a) under ikrah-i-tam shall be punished with imprison-

ment for a term which may extend to twenty-five years
but shall not be less than ten years and the person
causing'ikrah-i-tam shall be punished for the kind of
qatl committed as a consequence of his ikrah-i-tam; or

(b) under ikrah-i-naqis shall be punished for the kind of

gat1committed by him and the person causing ikrah-i-
naqis shall be punished with imprisonment for a term
which may extend to ten years.

304. Proof of qatl-i-amd liable to qisas, etc.-(l) 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 commis-
sion 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, muratis

murandis, apply to a hurt liable to qisas.
Islamic Studies, 29:4 (1990) 401

305. Wa1i.-In case of a qatl, the wali shall be-

(a) the heirs of the victim, according to his personal law;

and

(b) the Government, if there is no heir.

306. Qatl-i-amd not liable to qisas.-Qatl-i-amd shall not be liable

to qisas in the following cases, namely:-

(a) when an offender is a minor or insane:

Provided that, where a person liable to qisas

associates with himself in the commission of the of-
fence a person not liable to qisas with the intention
of saving himself from qisas, he shall not be exempted
from qisas;

(b) when an offender causes death of his child or grand-

child, how low-so-ever; and

(c) when any wali of the victim is a direct descenda~t,how

low-so-ever, of the offender.

307. Cases in which qisas for qatl-i-amd shall not be enforced.-

Qisas for qatl-i-amd shall not be enforced in the following
cases, namely:-

(a) when the offender dies before the enforcement of

qisas;

(b) when any wali, voluntarily and without duress, to the

satisfaction of the court, waives the right of qisas under
section 309 or compounds under section 310; and

(c) when the right of qisas devolves on the o f f a d e r as a

result of the death of the wali of the victim, or on the
person who has no right of qisas against the offender.
 lslamic Studies, 29:4 (1990)

0) A kills Z, the maternal uncle of his son B. Z has

no other wali except B, the wife of A. D has the right of qisas from
A. But if B dies, the right of qisas shall devolve on her son B who
is also the son of the offender A. B cannot claim qisas against his
father. Therefore, the qisas cannot be enforced.

(ii) B kills Z, the brother of her husband A. Z has no

heir except A. Here A can claim qism from his wife B. But if A dies,
the right of qhas shall devolve on his son B who is also son of B,
the qism cannot be enforced against B.

308. Punishment in qatl-i-amd not liable to qisas, etc.-41) Where

an offender of qatl-i-amd is not liable to qism under
section 306 or the qisas is not enforceable under clause (c)
of section 307, he shall be liable to diyat:

Provided that, where the offender is minor or insane,

diyat shall be payable either from his property or, by such
person as may be determined by the court:

Provided further that where at the time of committing

qatl-i-'amdthe offender beiig a minor, had attained suff3cient
maturity or being insane, had a lucid interval, so as to be
able to realise the consequences of his act, he may also be
punished with imprisonment of either description for a term
which may extend to fourteen years as ta'zir:

Provided further that where the qisas is not enforce-

able under clause (c) of section 307, the offender shall be
liable to diyat only if there is any wali other than offender
and if there is no wali other than the offender, he shall be
punished with imprisonment of either description for a term
which may extend to fourteen years as ta'zir.

(2) Notwithstanding anything contained in sub-

section (I), the court having regard to the facts and cir-
cumstances of the case in addition to the punishment of diyat,
may punish the offender with imprisonment of either descrip-
tion for a term which may extend to fourteen years, as ta'zir.
Islamic Studies, 2 9 4 (1990) 403

309. Waiver-Afw ['AH] ( k , ) of 9i.w in qatl-i-'amd.--(l) In

the case of qatl-i-'amd an adult sane wali may, at any time
and without any compensation, waive his right of qism:

Provided that the right of qism shall not be waived-

(a) where the Government is the wali; or

(b) where the right of qisas vests in a minor or insane.

(2) Where a victim has more than one wali, any

one of them may waive his right of qism:

Provided that the wali who does not waive the right
of qism shall be entitled to his share of diyat.

(3) Where there are more than one victim, the

waiver of the right of qism by the wali of one victim shall
not affect the right of qism of the wali of the other victim.

(4) Where there are more than one offenders, the

waiver of the right of 'qkm against one offender shall not
affect the right of q k m against the other offender.

310. Compounding of qism (Sulh) [Sulh] ( $ ) in qatl-i-

' a m d . - ( l )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 only giving a female in marriage shall

not be a valid badol-i-sulh ( $ J+ ).

(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 badol-i-sulh shall not be

less than the value of diyat.

(3) Where the Government is the wali, it may

compound the right of qkm:

Provided that the value of badal-i-sulh shall not be

less than the value of diyat.
 Islamic Studies, 29:4 (1990)

(4) Where the badal-i-sulh is not determined or

is a property or a right the value of which cannot be deter-
mined in terms of money under Shari'ah ( +$ ) the right
of qism shall be deemed to have been compounded and the
offender shall be liable to diyat.

(5) Badnl-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.

Explanation.-In this section badal-i-sulh means the

mutually agreed compensation according to Shari'ah to be
paid or given by the offender to a wali in cash or in kind or
in the form of movable or immovable property.

311. Ta'zir after waiver of compounding of right of qism in

qatl-i-'amd.-Notwithstanding anything contained in section
309 or section 310 the court may, in its discretion having
regard to the facts and circumstances of the case, punish an
offender against whom the right of qism has been waived or
compounded with imprisonment of either description for a
term which may extend to ten years as ta'zic

Provided that the court may punish an offender who

is a previous convict, habitual or professional criminal, with
imprisonment of either description for a term which may
extend to fourteen years as ta'zir.

312. Qatl-i-'amd after waiver or compounding of qism.-Where a

wali commits qatl-i-'amd of a convict against whom the right
of qism has been waived under section 309 or compounded
under section 310 such wali shall be punished with-

(a) qisas, if he had himself waived or compounded the

right of qisas against the convict or had knowledge of
such waiver or composition by another wali; or

(b) diyat, if he had no knowledge of such waiver or wm-

position.

313. Right of qisas in qatl-i-'ad.-41) Where there is only one

wali, he alone has the right of qism in qatl-i-'amd but, if
Islamic Studies, 29:4 (1990) 405

there are more than one, the right of qism vests in each of
them.

(2) If the victim-

(a) has no wali the Government shall have the right of

qism; or

(b) has no wali other than a minor or insane or one of the

wali .is a minor or insane, the father or if he is not
alive the paternal grandfather of such wali shall have
the right of qiras on his behalf:

Provided that, if the minor or insane wali has

no father or paternal grandfather, how high-so-ever,
alive and no guardian has been appointed by the court,
the Government shall have the right of qism on his
behalf.

314. Execution of qism in qatl-i-'amd.-41) Qism in qatl-i-'amd

shall be executed by a functionary of the Government by
causing death of the convict as the court may direct.

(2) Qism shall not be executed until all the wali

are present at the time of execution, either personally or
through their representatives authorised by them in writing
in this behalf:

Provided that where a wali or his representative fails

to present himself on the date, time and place of execution
of qism after having been informed of the date, time and
place as certified by the court, an officer authorised by the
Court shall given permission for the execution of qism and
the Government shall cause execution of qism in the absence
of such wali.

(3) If the convict is a woman who is pregnant, the

court may, in consultation with an authorised medical officer,
postpone the execution of qism upto a period of two years
after the birth of the child and during this period she may
be released on bail on furnishing of security to the satisfaction
6f the court or, if she is not so released she shall be dealt
with as if sentenced to simple imprisonment.
406 Islamic Studies, 29:4 (1990)

315. Qatl shibh-i-'amd.-Whoever, with intent to cause harm to

the body or mind of any person causes the death of that or
of any other person by means of a weapon or an act which
in the ordinary course of nature is not likely to cause death
is said to commit qatl shibh-i-'amd.

Illustration

A in order to cause hurt strikes Z with a stick or stone which

in the ordinary course of nature is not likely to cause death. Z dies
as a result of such hurt. A shall be guilty of qatl shibh-i-'amd.

316. Punishment for gat1 shibh-i-'amd.-Whoever commits gat1

shibh-i-'amd shall be liable to diyat and may also be punished
with imprisonment of either description for a term which
may extend to fourteen years as ta'zir.

317. Person committing qatl debarred from succession.-Where a

person committing qatl-i-'amd or qatl shibh-i-'amd is an heir
or a beneficiary under a will, he shall be debarred from
succeeding to the estate of the victim as an heir or a be-
neficiary.

318. Qatl-i-khata [khapZ].-Whoever, without any intention to

cause the death of, or cause harm to a person, causes death
of such person, either by mistake of act or by mistake of
fact, is said to commit qatl-i-khata.

Illustration

(a) A aims at a deer but misses the target and kills Z

who is standing by. A is guilty of qatl-i-khata.

(b) A shoots at an object to be a boar but it turns out

to be a human being. A is guilty of qatl-i-khata.

319. Punishmentfor qatl-i-khata.-Whoever commits qatl-i-khata

shall be liable to diyat:

Provided that, where qatl-i-khata is committed by any

rash or negligent act, other than rash or negligent driving,
the offender may, in addition to diyat, also be punished with
imprisonment of either description for a term which may
extend to five years as ta'zir.
Islamic Studies. 29:4 (1990) 407

320. Punishment for qatl-i-khata by rash or negligent driving.-

Whoever commits qatl-i-khata by rash or negligent driving
shall, having regard to the facts and circumstances of the
case, in addition to diyat, be punished with imprisonment of
either description for a term which may extend to ten years.

321. Qatl-bis-sabab [bi'l-sabab1.-Whoever, without any inten-

tion to cause death of, or cause harm to, any person, does
any unlawful act which becomes a cause for the death of
another person, is said to commit qatl-bis-sabab.

Illustration

A unlawfully digs a pit in the thoroughfare, but without any

intention to cause the death of, or harm to, any person. B while
passing from there falls in it and is killed. A has committed qatl-bis-
sabab.

322. Punishment for qatl-bis-sabab.-Whoever commits qatl-bis-

sabab shall be liable to diyat.

323. Value of diyat.-41) The court shall, subject to the Injunc-

tions of Islam as laid down in the Holy Qur'rIn and Sunnah
and keeping in view the financial position of the convict and
the heirs of the victim, fix the value of diyat which shall not
be less than one hundred seventy thousand and six hundred
and ten rupees being the value of 30.630 grams of silver.

(2) For the purposes of sub-section (I), the Fed-

eral Government shall, by notification in the official Gazette,
declare the value of silver on the first day of July each year.

324. Attempt to commit qatl-i-'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 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.
 Islamic Studies, 29:4 (1990)

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, or with fine, or with both.

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.

Punishment.-Whoever is a thug, shall be punished with

imprisonment for.life, and shall also be liable to fine.

Exposure and abandonment of child under twelve years by

parent orperson having care of it.-Whoever being the father
or mother of a child under the age of twelve years, or having
the care of such child, shall expose or leave such child in any
place with the intention of wholly abandoning such child,
shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or
with both.

Explanation.-This section is not intended to prevent the

trial of the offender for qatl-i-'amd or qatl-i-shibh-i-'amd or
qatl-bis-sabab, as the case may be, if the child dies in consequ-
ence of the exposure.

Concealment of birth by secret disposalof dead body.-Who-

ever, by secretly burying or otherwise disposing of the dead
body of a child whether such child dies before or after or
during its birth, intentionally conceals or endeavours to con-
ceal the birth of such child, shall be punished with imprison-
ment of either description for a term which may extend to
two years, or with h e , or with both.

Disbursement of diyat.--The diyat shall be disbursed among

the heirs of the victim according to their respective shares
in inheritance:

Provided that, where an heir foregoes his share, the

diyat shall not be recovered to the extent of his share.

Payment of diyat.-41) The diyat may be made payable in

lump sum or in instalments spread over a period of three
years from the date of the final judgment.
Islamic Studies, 29:4 (1990) 409

(2) Where a convict fails to pay diyat or any part

thereof within the period specified in sub-section (I), the
convict may be kept in jail and dealth 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.

332. Hurt.-41) Whoever causes pain, harm, disease, infirmity

or injury to any person or impairs, disables or dismembers
any organ of the body or part thereof of any person without
causing his death, is said to cause hurt.

(2) The following are the kinds of hurt:-

(a) Itlaf-i-udw [Ithif-i-'udw] ( + AYI )

(b) itlaf-i-salahiyyut-i-udw [!aldhiyyut-i-'udw]

(e) all kinds of other hurts.

333. Itlaf-i-udw.-Whoever dismembers, amputates, severes any

limb or organ of the body of another person is said to cause
itlaf-i-udw.

334. Punishmentfor itlaf-i-udw.-Whoever by doing any act with

the intention of thereby causing hurt to any person, or with
the knowledge that he is likely thereby to cause hurt to any
person causes itlaf-i-udw of any person, shall, in consultation
with the authorised medical officer, be punished with qisar,
and if the qism is not executable keeping in view the principles
of equality in accordance with the Injunctions of Islam, the
offender shall be liable to arsh and may also be punished
with imprisonment of-either description for a term which
may extend ten years as ta'zir.
410 Islamic Studies, 29:4 (1990)

335. Ztlaf-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 disfigure-
ment is said to cause itlaf-i-salahiyyat-i-udw.

336. Punishment for itlaf-i-salahiyyat-i-udw-Whoever, by doing

any act with the intention of causing hurt to any person, or
with the knowledge that he is likely to cause hurt to any
person, ?uses itlaf-i-salahiyyat-i-udw, of any person, shall,
in consultation with the authorised medical officer, be
punished with qisas and if the qisas is not executable keeping
in view the principles of equality in accordance with the
Injunctions of Islam, the offender shall be liable to arsh and
may also be punished with imprisonment of either description
for a term which may extend to ten years as ta'zir.

337. Shajjak-41) Whoever causes, on the head or face of any

person, any hurt which does not amount to itlafi-udw or
itlaf-i-salahiyyat-i-udw is said to cause shajjah.

(2) The following are the kinds of shajjah, namely:-

Shajjah-i-khafifah [khaffah] ( 4k;; + )

Shajjah-i-mudihah [mudi'ah] (b9 +)

Shajjah-i-hashimah [hcishimah] (cL;~ +)
Shajjah-i-munaqqilah (L+)

Shajjah-i-ammah [dmmah] (J +) ; and

Shajjah-i-damighah [ddmighah] (&I3 -1

(3) Whoever causes shajjah.

(i) without exposing bone of the victim, is said to cause

shajjah-i-khafifh;

(ii) by exposing any bone of the victim without causing

fracture, is said to cause shajjah-i-mudihah;

(iii) by fracturing the bone of the victim without dislocating

it, is said to cause shajjah-i-hashimah;
 (iv) by causing ftacture of the bone of the victim and there-
by bone is dislocated, is said to cause shajjah-i-munaq-
qilah;

(v) by causing fracture of the skull of the victim so that the

wound touches the membrane of the brain, is said to
cause shajjah-i-am&; and

{vij by causing fracture of the skull of the victim and the

wound ruptures the membrane of the brain is said to
cause shajjah-i-damighah.

337A. ~unbhmentof shajjhh.-whoever, by doing any act with the

intention of thereby causing hurt to any person, or with the
knowledge that he is likely thereby to cause hurt to any
person, causes-

Shajah-i-khaFfah to any person, shall be liable to

daman and may also be punished with imprisonment
of either description for a term which may extend to
two years as ta'dr;

shajjah-i-mudihahto any person, shall, in consultation

with the authorised medical officer, be punished with
qbas, and if the q b m is not executable keeping in
view the principles of equality in accordance with the
Injunctions of Islam, the convict shall be liable to arsh
which shall be five per cent of the diyat and may also
be punished with imprisonment of either description
for a term which may extend to five years as ta'zir;

shajjah-i-hashimah to any person, shall be liable to

arsh which shall be ten per cent of the diyat and may
also be punished with imprisonment of either descrip
tion for a term which may extend to seven years as
to 'zir;

shajjah-i-munaqqilahto any person, shall be liable to

arsh which shall be fifteen per cent of the diyat and
may also be punished with imprisonment of either
description for a term which may extend to ten years
as ta'zir;

shajjah-i-ammah to any person, shall be liable to arsh

 Islamic Studies, 299: (1990)

which shall be one-third of the diyat and may also be

punished with imprisonment of either description for
a term which may extend to ten years as ta'zir; and

(vi) shajjah-i-damighah to any person, shall be liable to

arsh which shall be one-half of diyat and may also be
punished with imprisonment of either description for
a term which may extend to fourteen years as ta'zir.

337B. Jurh.-41) Whoever cause. on any part of the body of a

person, other than the head or face, a hurt which leaves a
mark of the wound, whether temporary or permanent, is
said to cause jurh.

(2) Jurh ( CR ) is of two kinds, namely:-

(a) Jaifah [Jii'fah] ( & ); and

(b) Ghayr-jaifah ( ak 9 ).

337C. Jaifah.-Whoever causesjkrh in which the injury extends to

the body cavity of the trunk, is said to cause jaifah.

337D. Punishment for jaw.-Whoever by doing any act with the

intention of causing hurt to a person, or with the knowledge
that he is likely to cause hurt to such person, causes jaifah
to such person, shall be liable to arsh which shall be one-third
of the diyat and may also be punished with imprisonment of
either description for a term which may extend to ten years
as ta'zir.

337E. Ghayr-jaifah.-(l) Whoever causes jurh which does not

amount to jaifah, is said to cause ghayr-jaifah.

(2) The following are the kinds of ghayr-jaifah,

namely: -

(a) damiyah [~Zmiyah] (+A);

(b) badi'ah [bai'ah] ( 6 4 ) ;

(c) mutalahimah [mutakahimah] ( -%) j

(d) mudihah t +) i
Islamic Studies, 29:4 (1990)

hashimah ( c;b) ; and

munaqqilah (a)
;

Whoever causes ghayr-jaifah-

in which the skin is ruptured and bleeding occurs, is

said to cause damiyah;

by cutting or incising the flesh without exposing the

bone, is said to cause badi'ah;

by lacerating the flesh, is said to cause mutalahi-

mah;

by exposing the bone, is said to cause mudihah;

by causing fracture of a bone without dislocating it, is

said to cause hashimah; and

by fracturing and dislocating the bone, is said to cause

munaqqilah.

337F. Punishment of ghayr-jaifh.-Whoever by doing any act with

the intention of causing hurt to any person, or with the know-
ledge that he is likely to cause hurt to any person, causes-

damiyah to any person, shall be liable to daman and

may also be punished with imprisonment of either
description for a term which may extend to one year
as ta'zir;

badi'ah to any person, shall be liable to daman and

may also be punished with imprisonment of either
description for a term which may extend to three years
as ta'zir;

mutalahimah to any person, shall be liable to &man

and may also be punished with imprisonment of either
description for a term which may extend to three years
as ta'zir;

mudihah to any person, shall be liable to daman and

may also be punished with imprisonment of either
 Islamic Studies, 29:4 (1990)

description for a term which may extend to five years

as ta'zir;

(v) hashimah to any person, shall be liable to &man and

may also be punished with the imprisonment of either
description for a term which may extend to five years;
and

(vi) munaqqilah to any person, shall be liable to &man

and may also be punished with imprisonment of either
description for term which may extend to seven years
as ta'zir.

3376. Punishment for hurt by rash o r negligent driving.-Whoever

causes hurt by rash or negligent driving shall be liable to the
arsh or daman specified for the kind of hurt caused and may
also be punished with imprisonment of either description for
a term which may extend to five years as ta'zir.

337H. Punishment for hurt by rash o r negligent act.-Whoever

causes hurt by rash or negligent act, other than rash or neg-
ligent driving, shall be liable to the arsh or daman specified .
for the kind of hurt caused and may also be punished with
imprisonment of either description for a term which may
extend to three years as ta'zir.

3371. Punishment for causing hurt by mistake (khata).-Whoever

causes hurt by mistake (Khata) shall be liable to arsh or
daman specified for the kind of hurt caused.

3375. Causing hurt by means of apoison.-Whoever administers to,

or causes to be taken by, any person, any poison or any
stupefying, intoxicating or unwholesome drug or such other
thing with intent to cause hurt to such person, or with intent
to commit or to facilitate the commission of an offence, or
knowing it to be likely that he will thereby cause hurt may,
in addition to the punishment of arsh or daman provided for
the kind of hurt caused, be also punished, having regard to
the nature of the hurt caused, with imprisonment of either
description for a term which may extend to ten years.

337K. Causing hurt to extort confession, o r to compel restoration of

property.-Whoever causes hurt for the purpose of extoring
from the sufferer or any person interested in the sufferer any
Islamic Studies, 29:4 (1990) 415

confession or any information which may lead to the detec-

tion of any offence or 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 prop-
erty or valuable security or to satisfy any claim or demand,
or to give information which may lead to the restoration of
any property or valuable security shall, in addition to the
punishment of qisas, arsh or darnan, as the case may be,
provided for the kind of hurt caused, be also punished, having
regard to the nature of the hurt caused, with imprisonment
of either description for a term which may extend to ten
years if for such hurt the punishment of qism cannot be
awarded.

337L. Punishment for other hurt.--(l) Whoever causes hurt, not

mentioned hereinbefore, which endangers life or which
causes the sufferer to remain in severe bodily pain for twenty
days or more or renders him unable to follow his ordinary
pursuits for twenty days or more, shall be liable to darnan
and also be punished with imprisonment of either description
for a term which may extend to seven years.

(2) Whoever causes hurt not covered by sub-sec-

tion (I) shall be punished with imprisonmentof either descrip-
tion for a term which may extend to two years, or with daman
or with both.

337M. Hurt not liable to qisas.-Hurt shall not be liable to qisas in

the following cases, namely: -

(a) when the offender is a minor or insane:

Provided that he shall be liable to arsh; and

also to ta'zir to be determined by the court having
regard to the age of offender, circumstances of the
case and the nature of hurt caused;

(b) when an offender at the instance of the victim causes

hurt to him:

Provided that the offender may be liable to

ta'zir provided for the kind of hurt caused by him;

(c) when the offender has caused itlaf-i-udw of a physi-

 cally imperfect organ of the victim and the convict
does not suffer from similar physical imperfection of
such organ:

Provided that the offender shall be liable to

arsh and may also be liable to ta'zir provided for the
kind of hurt caused by him; and

(d) when'the organ of the offender liable to qisas is miss-

ing:

. Provided that the offender shall be liable to

arsh and may also be liable to ta'zir provided for the
kind of hurt caused by him.

(i) A amputates the right ear of Z, the half of

which was already missing. If A's right ear is perfect, he shall
be liable to arsh and not qisas.

(ii) If in the above illustration Z's ear is physically

perfect but without power of hearing. A shall be liable to
qisas because the defect in Z's ear is not physical.

(iii) If in illustration (i) Z's ear is pierced. A shall

be liable to qisas because such minor defect is not physical
imperfection.

337N. Cases in which qisasfor hurt shall not be enforced.-+) The

qisas for a hurt shall not be enforced in the following cases,
namely: -

(a) when the offender dies before execution of qisas;

(b) when the orgah of the offender liable to qisas is lost

before the execution of qisas:

Provided that the offender shall be liable to

arsh, and may also be liable to ta'rir provided for the
kind of hurt caused by him;

(c) when the victim waives the qisus or compounds the

offence with badal-i-sulh; or
Islamic Studies, 29:4 (1990) 417

(d) when the right of qkas devolves on the person who

cannot claim qkas against the offender under this
Chapter:

Provided that the offender shall be liable to

arsh, if there is any wali other than the offender and
if there is no wali other than the offender he shall be
liable to ta'zir provided for the kind of hurt caused
by him.

(2) Notwithstanding anything contained in this

Chapter, in all cases of hurt, the court may, in addition to
payment of arsh, award ta'zir to an offender who is a previous
convict, habitual or hardened, desperate or dangerous crim-
inal having regard to the kind of hurt caused by him.

3370. Wali in case of hurt.-In the case of hurt the wali shall be-

(a) the victim:

Provided that, if the victim is a minor or insane,

his right of qkas shall be exercised by his father or
paternal grandfather, how-high-so-ever;

(b) the heirs of the victim, if the later dies before the
execution of qkas; and

(c) the Government, in the absence of the victim or the

heirs of the victim.

337P. Execution of qkas for hurt.-41) Qkas shall be executed in

the public by an authorised medical officer who shall before
such execution examine the offender and take due care so as
to ensure that the execution of qkas does not cause the death
of the offender or exceed the hurt caused by him to the victim.

(2) The Wali shall be present at the time of execu-

tion and if the Wali or his representative is not present, after
having been informed of the date, time and place by the
court an officer authorised by the court in this behalf shall
give permission for the execution of qkas.
 Islamic Studies, 29:4 (1990)

(3) If the convict is a woman who is pregnant, the

court may, in consultation with an authorised medical officer,
postpone the execution of qism upto a period of two years
after the birth of the child and during this period she may
be released on bail on furnishingof security to the satisfaction
of the court or, if she is not so released, shall be dealt with
as if sentenced to simple imprisonment.

337Q. Arsh for single organs.-The arsh for causing itlaf of an organ
which is found singly in a human body shall be equivalent
to the value of diyot.

Explanation.-Nose and tongue are included in the

organs which are found singly in a human body.

337R. Arsh for organs in pairs.-The arsh for causing itlaf of

organs found in a human body in pairs shall be equivalent
to tbe value of diyot and if itlaf is caused to one of such
organs the amount of arsh shall be one-half of the diyat:

Provided that, where the victim has only one such

organ or his other organ is missing or has already become
incapacitated the arsh for causing itlaf of the existing or cap
able organ shall be equal to the value of diyat.

Explanation.-Hands, feet, eyes, lips and breasts are in-

cluded in the organ which are found in a human body in pairs.

3373. Arsh for organs in padruplicate.+l) The arsh for causing

itlaf of organs found in a human body in a set of four shall
be equal to-

(a) one-fourth of the diyat, if the itlaf is one of such

organs;

(b) one-half of the diyat, if the itlaf is of two of such

organs;

(c) three fourths of the diyat, if the itlaf is of three of such

organs; and

(d) full diyat, if the itlaf is of all the four organs.

Explanation.-Eyelids are organs which are found in

a human body in a set of four.
blemlc Studles,29:4 (1990) 419

337T. Arsh forfingers.--@) The arsh for causing itlaf of a finger of

a hand or foot shall be one-tenth of the diyat.

(2) The arsh for causing itlaf of a joint of a finger

shall be one-thirtieth of the diyat:

Provided that where the itlaf is of a joint of a thumb,

the arsh shall be one-twentieth of the diyat.

337U. Arsh for teeth.-+) The arsh for causing itlaf of a tooth,
other than a milk tooth shall be one-twentieth of the diyat.

Explanation.-The impairment of the portion of a

tooth outside the gum amounts to causing itlaf of a tooth.

(2) The arsh for causing itlaf of twenty or more

teeth shall be equal to the value of diyat.

(3) Where the itlaf is of a milk tooth, the accused

shall be liable to daman and may also be punished with
imprisonment of either description for a term which may
extend to one year: .

Provided that, where itlaf of a milk tooth impedes the

growth of a new tooth, the accused shall be liable to arsh
specified in sub-section (1).

337V. Arsh for hair.-+) Whoever uproots-

(a) all the hair of the head, beard, moustaches, eyebrow

eyelashes or any other part of the body shall be liable
to arsh equal to diyat and may also be punished with
imprisonment of either description for a term which
may extend to three years as ta'zir;

(b) one eyebrow shall be liable to arsh equal to one-half of

the diyat; and

(c) one eyelash, shall be liable to arsh equal to one-fourth

of the diyat.

(2) Where the hair of any part of the body of the

victim are forcibly removed by any process not covered under
subsection (I), the accused shall be liable to daman and
420 Islamic Studies, 29:4 (1990)

imprisonment of either description which may extend to one

year.

337W. Merger of arsh.-(l) Where an accused causes more than

one hurt, he shall be liable to the arsh specified for each hurt,
separately:

Provided that, where-

(a) hurt is caused to an organ, the accused shall be liable

to arsh for causing hurt to such organ and not for arsh
for causing hurt to any part of such organ; and.

(b) the wounds join together and form a single wound, the
accused shall be liable to arsh for one wound.

Illustrations

(i) A amputates Z's fingers of the right hand and then

at the same time amputates that hand from the joint of his wrist.
There is separate arsh for hand and for fingers. A shall, however, be
liable to arsh specified for hand only.

(ii) A twice stabs Z on his thigh. Both the wounds are

so close to each other that they form into one wound. A shall be
liable to arsh for one wound only.

(2) Where, after causing hurt to a person, the of-

fender causes death of such person by committing gat1 liable
to diyat, arsh shall merge into such diyat:

Provided that the death is caused before the healing

of the wound caused by such hurt.

337X. Payment of arsh.-(l) The arsh may be made payable in a

lump sum or in instalments spread over a period of three
years from the date of the final judgment.

(2) Where a convict fails to pay arsh or any part

thereof within the period specified in subsection (I), the
convict may be kept in jail and dealt within the same manner
as if sentenced to simple imprisonment until arsh is paid in
full or may be released on bail if he furnishes security equal
to the amount of arsh to the satisfaction of the court for
payment of the arsh.
isiamic Studies, 29:4 (1990) 421

(3) Where a conhct dies before the payment of

arsh or any part thereof, it shall be recovered from his estate.

Value of daman.-(l) The value of daman may be deter-

mined by the court keeping in view-

(a) the expenses incurred on the treatment of the

victim;

(b) loss or disability caused in the functioning or power of

any organ; and

(c) the compensation for the anguish suffered by the

victim.

In case of non-payment of d a m , it shall be recovered from

the convict and until daman is paid in W to the extent of
his liability, the convict may be kept in jail and dealt with in
the same manner as if sentenced to simple imprisonment or
may be released on bail if he furnishes security equal to the
amount of daman to the satisfaction of the court for payment
of the daman.

Payment of arsh or &&.-The arsh or daman shall be

payable to the victim or, if the victim dies, to his heirs accord-
ing to their respective shares in inheritance.

Zsqat-i-Homl [Zsqd!-i-Ham4 ( & l l i l ).-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-
hnml'.

Explanation.-A woman who causes herself to mis-

carry is within the meaning of this section.

Punishment for 'isqat-i-haml'.-Whoever cause isqat-i-ham1

shall be liable to punishment as ta'zir-

(a) with imprisonment of either description for a term

which may extend to three years, if isqat-i-ham1 is
caused with theansent of the woman; or
422 Islamic Studies, 29:4 (1990)

(b) with imprisonment of either description for a term

which may extend to ten years if isqat-i-ham1is caused
without the consent of the woman:

Provided that, if as a result of bqat-i-ham1any

hurt is caused to the woman or she dies, the convict
shall also be liable to the punishment provided for
such hurt or death, as the case may be.

338B. Zsqat-i-Janin [Janin] ( b L l ).-Whoever, causes a

woman with child some of whose limbs or organs have been
formed, to miscarry, if such miscarriage is not caused in good
faith for the purpose of saving the life of the woman, is said
to cause bqat-i-janin.

Explanation.-A woman who causes herself to mis-

carry is within the meaning of this section.

338C. Punishment for isqat-i-]anin.-Whoever causes isqat-i-janin

shall be liable to-

(a) one-twentieth of the diyat if the child is born dead;

(b) full diyat if the child is born alive but dies as a result of %

any act of the offender; or

(c) punishment as ta'zir with imprisonment of either

description for a term which may extend to seven
years if the child is born alive but dies otherwise than
as a result of any act of the offender:

Provided that, if there are more than one child

in the womb of the woman, the offender shall be liable
to separate diyat or ta'zir, as the case may be, for
every such child:

Provided further that if, as a result of bqat-i-

janin, any hurt is caused to the woman or she dies,
the offender shall also be liable to the punishment
provided for such hurt or death, as the case may be.

338D. Conjirmation of sentence of death by way of qisas or ta'zir,

etc.-A sentence of death awarded by way of q b m or ta'zir,
or a sentence of qism awarded for causing hurt, shall not be
executed, unless it is confirmed by the High Court.
Islamic Studies, 29:4 (1990) 423

338E. Waiver or compounding of offences.4ubject to the

provisions of this Chapter and notwithstanding any thing
contained in section 345 of the Code of Criminal Procedure,
1898, all offences under this Chapter may be waived or com-
pounded and the provisions of sections 309 and 310 shall,
mutatis mutundb, apply to the waiver or compounding of
such offences:

Provided that, where an offence has been waived or com-

pounded, the court may, in its discretion having regard to the facts
and circumstances of the case, acquit or award ta'dr to the offender
according to the nature of the offence.

338F. Interpretation.-In the interpretation.and application of the

provisions of this Chapter, and in respect of matters ancillary
or akin thereto, the court shall be guided by the Injunctions
of Islam as laid down in the Holy Quran and Sunnah.

3386. Rules.-The Government may, in consultation with the

Council of Islamic Ideology, by notification in the official
Gazette, make such rules as it may consider necessary for
carrying out the purposes of this Chapter.

3388. Saving.+l) Nothing in this Chapter, except sections 309,

310 and 338 E, shall apply to cases pending before any court
immediately before the commencement of the Criminal Law
(Second Amendment) Ordinance, 1990 (VII of 1990), or to
the offences committed before such commencement: and

(2) after section 3388, substituted as aforesaid,

the following new heading shall be inserted, namely:-

"CHAPTER XWA"

5. Amendment of section 337, Act V of 1898.-In the Code of

Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the
aforesaid Code, in section 337, in sub-section (I), for the full stop at the
end a colon shall be substituted and thereafter the following proviso shall
be added, namely:-

"Provided that no person shall be tendered pardon who is

involved in an offence relating to hurt or qatl without permission of
the victim or, as the case may be, of the heirs of the victim.".
424 Isiamic Studies, 29:4 (1990)

6. Amendment d section 338, Act V d 1898.-In the aforesaid

Code, in section 338, for the full stop at the end a colon shall be substituted
and thereafter the following proviso shall be added, namely:-

"Provided that no person shall be tendered pardon who is

involved in an offence relating to hurt or qatl without permission of
the victim or, as the case may be, of the heirs of the victim.".

7. Amendmeot d sectloo 381, Act V d 1898.-In the aforesaid

Code, in section 381, for the full stop at the end a colon shall be substituted
and thereafter the following proviso shall be added, namely:-

"Provided that the sentence of death shall not be executed if

the heirs of the deceased pardon the convict or enter into a com-
promise with him even at the last moment before execution of the
sentence.".

8. Amendment of Schedule 11, Act V d 1898.-In the aforesaid

Code, in Schedule 11, for the figures "302 to 338" occurring in column I
and the entries relating thereto in columns 2 to 8 the following shall be
substituted, namely: -
Section Offence Whether the
Police may
Whether a
w a r r a ~ tor a
Whether
bailable
Whether Punishment under the Pakistan
compound- Panel Code
By what court
triable t
arrest
without
warrant or
summons
shall
ordinarily
or not able or not
%
P
not issue in the t4
first instance .P.
\O
h
1 2 3 4 5 6 7 8
5;
May arrest Warrant Not bailable Compound- Qlsas, o r death, imprisonment Court of Session. 8
v
without ablea for life or imprisonment
warrant. upto twenty-five years.
Qate under h u h - i - t a m . ,, Imprisonment of either descrip-
tion for twenty-five years
but not less than ten years.
Causing of h u h - i - t a m fur ,, Punishment provided for the
commission of q a t e kind of qate committed.
Qate under Iknah-i-naqh. , Punishment provided for the
kind of qate committed.
Causing h u h - i - n a q h fur the ,, Imprisonment of either des-
commission of' g a t e cription fur ten years.

pate-i-garnd nut liable to q h . ,, Uiyat, and imprisonment of

 either description for fourteen
years.

311 Qate-i-*amd when waived compounded. Imprisonment of either des-

cription for ten to fourteen
years.
312 Qate-i-'arnd after compounding of
q.ida6 etc.

1, Diyat, and imprisonment of

either description for
fourteen years.

,I 8. Uiyat, and imprisonment of

either description for five
years.
320 Qate-i-khab by rash or negligent Diyat, and imprisonment of
driving. either description for ten
years.
322 Qate-bis-ktbab.

324 Attempt to qate-i-'arnd. Imprisonment of either des-

cription for ten years and
fine, q h or a& in ' case
of hurt and imprisonment
upto seven years.
325 Attempt to commit suicide. Bailable Not Com- S h l e imvrisonment for one Magistrate o
pundable
 Being a thug. Not ,, Imprisonment for life and Court of Session. 3
bailable fine . $
Exposure of a child under 12 years Not bailable ,, Imprisonment of either des- Court of Session or
of age by parent or person having cription for seven yeen, or Magistrate of the
care of it with intention of wholly
abandoning it.
fine, or both. first class.
b
$
329 Concealment of birth by secret Bailable ,, Imprisonment of either des- Magistrate of the
disposal of dead body. cription for two years, or first class. 9
fine, or both. -a
7 7

Not Compound- Qida6, or a&, and imprison- Court of Session.

Bailable able ment of either description
for ten years.
$
v

, Q&, or a&, and impriwn-

ment of either description
for ten years.
Shall not Summons Bailable Compound- Daman, and imprisonment of Magistrate of the
arrest able either description for two first class.
wlthout years.
warrant.
May arrest Warrant Not ,, @huh, or a&, and imprison- Court of Session or
without bailable ment of either description Magistrate of the
warrant. for five years. 1st Class.
,, A&, and imprisonment of
either description for seven
years.
, 9. ,, A&, and imprisonment of
either description for ten
years.
 ,, A&, and imprisonment of
either description for ten
years.
(vi) Shajjah-i-damighah. ,, A&, and imprisonment of
either description for
fourteen years.

Jai&h. ,, A&, imprisonment of either

description for ten years
and punishment provided for
Itend-i-udw or Iten6-i-
m h k j y a t - i - u d w , if caused.
Shall not Summons Bailable Compound- Daman, and imprisonment of Magistrate of the
arrest able either description for one first class.
without year.
warrant.
May arrest Warrant Not ,, Daman, and imprisonment of
without bailable. either Gescription for three
warrant. years.
,, Daman, and imprisonment of
either description for three
years.
, Daman, and imprisonment of Court of Session or 8'
either description for five Magistrate of the (n
years. first class. 3
h
May arrest Warrant Not ,, Daman, and imprisonment of Court of Session or
without bailable either description for five Magistrate of the g
0
warrant. years. first class.
P
.. Daman, and imprisonment of
either description for seven
years.
 H u t t by rash or negligent drivlng. ,, A&, or daman, and imp--
ment of either description
fur five years.
V)
H u t t by rash or negligent act. ,, A&, or daman, and imprison- Magistrate of the
ment of either description first class.
sQ
for three years.
F
H u t by mistake Ikhatal. Shall not Summons Bailable , A&, or daman for the kind
I
arrest of hurt caused.
without

H u t t by poison.
warrant.

May arrest
without
warrant.
Warrant Not
bailable
, A&, or daman, pnvided for
the kind of hurt caused and
imprisonment of either des-
Court of Session. a
h

cription for ten years.

337K H u t for extorting confession etc. ,, Q ~ A ,a&, or daman, pruvi-

ded for the kind of hurt
caused and imprisonment of
either description for ten
years.
337L (a) Hurts other than specified in , Daman, and imprisonment of Court of Session
sections here-to-before. either description for seven or Magistrate of
years. the first class.
(b) Other hurts not covered he&- Shall not Summons Bailable ,, Daman, or imprisunrnent of Magistrate of the
to-before . arrest either description for two finst class.
without years or with h t h .
warrant.
Hunt not liable t o q h . Ash, C a a z u and punishment
provided for the kind of
hurt caused.
Hurt where q h cannot be enforced. May arrest Warrant Not Adnh, C a b z i t and punishment Court of Session ~ \ r
without bailable provided for. the kind of Magistrate of the
warrant. hurt caused. first class.
Idqat-i-hame with consent. , Imprisonment of either des-
cription for three years and
punishment pruvided for the
kind of hurt o r death, if
caused.
Idqat-i-hame without consent. Imprisonment of either des-
cription for three to ten
years and punishment
provided for the kind of
hurt or death, if caused.
I q a t - i - janin. Viyat, .?ahzit and imprison-
ment of either description
for seven years and
punishment provided for the
kind of hurt o r death, if
caused.