Crime and Punishment

Generally, offender is responsible for the offence himself but in certain situations law may hold another person vicariously liable for it.

Islamic jurisprudence has defined different types of discretionary punishments some of which are; admonition (Al-Waz); reprimand (Al-Tawbikh); threat (Al-Tahdid); boycott (Al-Hajr); public disclosure (Al-Tashhir); fines and seizure (Al-Gharamah wal Musadarah); imprisonment (Al-Habs) and banishment (Al-Nafy).

Better to acquit ten guilty persons than to convict a single innocent person.

Basic guiding principle of Islamic law was that the accused shall be granted the benefit of doubt.

In an Islamic State, no one could be subjected to any punishment for committing unlawful sexual intercourse unless that charge was fully established by due evidence

Unless there was definite evidence against someone that he/she was guilty of unlawful sexual intercourse, he/she may not be subjected to the Hadd punishment regardless of all other external sources wherefrom information about the commission of that offence was gathered but was not duly proved in the court of competent jurisdiction, as was required by the Injunctions of Islam laid down in the Holy Quran and Sunnah.

Punishment so inflicted, would act as a deterrent to the criminals and consequently it would bring about peace and tranquility, and thereby would transform the society in to civilized one.

Basic principle of Sharia/Law was that conviction must be based on evidence beyond any shadow of doubt, because the damage resulting from erroneous sentence, was irreversible; and the principle that it was better to acquit guilty person than to punish an innocent one.

Fundamental principles of Islamic jurisprudence on criminal law was to do justice with mercy, being the attribute of Allah Almighty

On earth such attribute had been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution was required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.

Error of a Qazi in acquitting an accused was better than his mistake in recording conviction against an innocent person.

Prior to introduction of Islamic provisions in Penal Code, 1860, acquittal of an accused person could be recorded when prosecution failed to prove its case against him beyond reasonable doubt or when faced with two possibilities, one favouring prosecution and the other favouring defence, Court decided to extend benefit of doubt to accused person

Acquittal could also be recorded under S.249-A, Cr. P. C. or S.265-K, Cr. P. C., when charge against accused person was found to be groundless or there appeared to be no probability of his being convicted of any offence

After introduction of Islamic provisions in Penal Code, 1860, it has now also become possible for accused person to seek and obtain his acquittal in a case of murder either through waiver/Afw under S.309 P.P.C. or on the basis of compounding/Sulk under S. 310 P.P.C.

In case of waiver/Afw acquittal can be earned without any monetary payment to the heirs of deceased but in case of compounding/Sulh an acquittal may be obtained upon acceptance Badal-i-Sulh by the heirs of deceased from the accused person.

Sentence of lashes in Shariah is not severe, its purpose is just to awaken in the convict a realization of his wrong so that he may repent his misdeeds

Shariah also makes sure that neither humiliation takes place nor it remains a permanent scar on him because the execution of sentence followed by repentence washes out the stigma and guarantees the purification of the convict and it is in this light that the sentence, which is obligatory in Islam in some cases, has to be seen.

Any number of accused may escape unpunished for lack of sufficient evidence, but no innocent person should be punished for what he has not done

Doubts repel punishment.

­Concept of punishing an offender is to deter other mischief mongers from committing offences in order to bring harmony and peace in society

Courts of law while administering justice in offences relating to individuals take into consideration reformatory concept of punishment but in offences against society no sympathy can be shown to the wrong doer as the leniency shown sends a massage to the like minds that they can also get away if they are caught

Persons committing such offences should be snubbed at the very outset and be dealt with iron hand at the appropriate time otherwise such malady would plague the whole society.

Under Islamic System of dispensation of justice in a criminal trial, the prosecution was required to produce all the evidence collected by it during the course of investigation before Trial Court for determination of the guilt or otherwise of accused

Prosecution could not be permitted to skip over/withhold any material piece of evidence and ask Trial Court to pronounce its judgment in the case, which would be against a course of action mandated by Holy Qur'an and Sunnah.

Sentence was structured by the case-law, by the circumstances and also by the perception, while the social and economic conditions and grounds realities help in appreciating criminology

Judge is considered to be an expert in this area and not an arbiter who acts capriciously and beyond proportions

Balances were to be kept even in the matter of crime and punishment

High Court disapproved hasty and impulsive decisions and expected the subordinate judiciary to take a breath after an order of conviction was made and then to ponder over the quantum of sentence with cool head while keeping in view the rationale of a crime and principles of sentencing.