Hadd vs Tazir

Quote one recent case law each on the above two terms.

Basitur Rahman.
Student of Bachelor of Law (Five Years)
6th semester
Roll No: 14
Criminal Law II.

Department of Law
Abdul Wali Khan University Mardan
Khyber Pakhtunkhwa Pakistan.
 Table of Contents

1. INTRODUCTION.
2. KINDS OF PUNISHMENT.
3. HADD.
a) Meaning of Hadd.
b) Definition of Hadd.
c) Origin of Hadd Punishment.
d) Nature of Hadd Punishment.
e) Object of Hadd.
4. OBJECT OF PUNISHMENT IN ISLAM.
5. TAZIR.
a) Meaning of Tazir.
b) Definition of Tazir.
6. DIFFERENCE BETWEEN HADD & TAZIR.
a) As To Meaning.
b) As To Object.
c) As To Procedure.
d) As To Right.
e) A s To Commuting of Sentence.
f) As To Proof of Sentence.
g) As To Operation of Mistake.
h) As To Rule of Evidence.
i) As To Mention of Offences.
7. Cases.
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INTRODUCTION:
Hadd is the punishment which is fixed by the God & Tazir is the
punishment
which is given by the Judge; it’s purely discretion of the Judge or Court.
When certain public rights are violated the wrong is called maasiat that is
 crime or offence and it gives rise to certain substitutory public rights in the
form of Uqa,bat or punishments Viz Hadd & Tazir. The distinction between
Hadd & Tazir is of fundamental importance and concerns doctrine of Hadd
itself.

KINDS OF PUNISHMENT:
Following are 2 kinds of punishment.
(I). Hadd.
(II). Tazir.
HADD.
Meaning of Hadd:
The word Hadd means prevention, measure, and limit.
Definition of Hadd.
Hadd means a punishment which is fixed and enjoyed as the right of Allah.
Origin of Hadd Punishment.
Hadd used to be prevented in Arabia at the time of the promulgation of
islam and the Muhammamadan law has laid down conditions of a stringent
nature under which such punishments may be inflicted.
Nature of Hadd Punishment:
Hadd in Islam is the nale of that punishment which is fixed by the Holy
Quran or the Sunnah of the Holy Prophet (PBUH) it is enforceable as a
right of God and is liable to be changed neither by the legislature nor by the
courts.

Object of Hadd:
The object of Tazir is reformation & correction of the offender.
OBJECT OF PUNISHMENT IN ISLAM.
Case Law.
1999 MLD 2450.
It was held that object of punishment is reformation of convicts and not to
penalize them in vengeance.
TAZIR.
Meaning of Tazir.
Tazir means disgracing the criminal for his shameful conduct.
Definition of Tazir.
 Tazir is the punishment that are at the discretion of the judge when the
offence is related to a private injury are called Tazir.
OR.
Tazir means punishment other than Qisas, Diyat, Arsh or Daman.

DIFFERENCE BETWEEN HADD & TAZIR.

a. As To Meaning:
Hadd is punishment fixed by Allah.
Tazir is punishment at the discretion of Judge.
b. As To Object.
The object of Hadd is prevention of a crime by following the principle of
retaliation and keeps everyone in the limits prescribed by Allah.

The object of Tazir is reformation & correction of the offender.

c. As To Procedure

The procedure of trial in Hadd is complicated.

The procedure of trial in Tazir is simple as according to some jurists judge

can even render judgment on the basis of his own knowledge.

d. As To Right:

Violation of rights of Allah gives rise to Hadd punishments.

Violation of rights of individual gives rise to Tazir punishments.

e. As To Commuting of Sentence:

The penalty of Hadd cannot be commuted.

The penalty of Tazir can be commuted.

f. As To Proof of Sentence:

Pardon cannot be granted in Hudud cases.

Pardon may be granted in Tazir cases.

g. As To Operation of Mistake:

Doubt or mistake has the effect of waiving the penalty of Hadd.

Doubt or mistake has no effect in Tazir.

h. As To Rule of Evidence:

Evidence of women is not admissible in Hudud cases.

The evidence of women is admissible in Tazir cases, but the nisab of 1 man
and 2 women has to be maintained,

i. As To Mention of Offences:
Hadd.
(i). Zina
(ii). Sariqah.
(iii). Hirabah.
(iv). Qazf.
(v). Shurb.
(vi). Riddha.
(vii). Bigamy.
Tazir.
Tazir offences have not been mentioned exclusively and they are
innumerable.

.Case I
2020 P Cr. L J 103
[Supreme Court (AJ&K)]
Present Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

FAYYAZ KHAN and another_____________________________________________Appellants

Vs
WASIM KHADIM and 3
others__________________________________________Respondents

:Counsel for the Appellants

Raja Sajjad Ahmed Khan, Advocate for Appellants

Counsel for the Respondents.

Barrister Humayun Nawaz, Advocate for Respondents Nos.2 and 3.

Council for the State:

Ch. Shoukat Aziz, Additional Advocate-General for the State.

Date of hearing: 4th December 2020.

:Brief Facts

1. The captioned appeal is addressed against the judgment of the Shariat Court dated

13/4/2020 whereby criminal revision filed by the complainant/appellants has been
dismissed.
2. The precise summary of facts necessary for disposal of this appeal is that a case
under sections 302, 337-V and 109, A.P.C. was registered against the accused-
respondents on 5-2-2019 at Police Station, Thorar, under F.I.R. No.8 of 2019.
3. The Police registered the case and after investigation, found the accused-
respondents guilty of the offences and submitted challan under sections 302, 322,
337-V, 451, 109, 34, A.P.C. and section 13 of Arms Act, 1965 against the accused
to face the trial before the Court of competent jurisdiction. The complainant moved
 an application on 10-6-2019, wherein it was prayed that the accused, Wasim
Khadim, may be charge-sheeted under section 302, A.P.C. After hearing the learned
counsel for the parties, the trial Court discharged the accused-respondents from the
offences in which they were challaned vide order dated 10-6-2019.
4. The complainant-appellants, feeling dissatisfied from the order of the trial Court
approached the Shariat Court through Criminal Revision No.170 of 2020The
learned Judge in the Shariat Court, after hearing the learned counsel or the, parties,
dismissed the revision petition, hence this appeal.
5. Raja Sajjad Ahmed Khan, the learned counsel for the complainant-appellants, after
brief statement of facts seriously attacked the impugned judgment of the Shariat
Court. He argued that the judgment of the Shariat Court is not maintainable on the
ground that the evidence collected by the Investigating Officer clearly reveals that
the accused-respondents were fully involved in the alleged offences but both the
Courts below have failed to examine the evidence. He next argued that respondent
No.1., Wasim Khadim, was responsible for the occurrence and due to his illegal acts
the murder of Mst. Misbah Khatoon was committed, but both the Carts below have
failed to appreciate the facts of the case. Both the Courts below have also failed to
appreciate that sections 322 and 451, A.P.C. were fully attracted against the
accused-respondents. He further argued that the complainant-appellants filed an
application before the learned District Criminal Court for framing the charge against
the respondents under section 302, A.P.C., but the lower Courts have neither
considered the application nor disposed off the same in accordance with law. The
learned Judge in the Shariat Court has failed to appreciate the scope of sections 249-
A and 265-K, Cr.P.C. He further argued that without recording the evidence, the
findings of the trial Court as well as the Shariat Court are premature, therefore, the
judgments of both the Courts below are not maintainable.
6. While controverting the arguments of the-learned counsel for the appellants,
Barrister Humayum Nawaz, the learned counsel for accused-respondents Nos.2 and
3, forcefully defended the impugned judgment of the Shariat Court. He argued that
the instant appeal is not appeal in its present form. The complainant-appellants have
challenged an order of the Hon'ble Shariat Court under the provisions of section 25
 of the Islamic Penal Laws (Enforcement) Act, 1974. This order was only
challengeable in revisional jurisdiction of this Court and not in appellate
jurisdiction. The appeal merits dismissal on this sole ground. He further argued that
the accused-respondents Nos.2 and 3, who are parents of the principal accused, have
been roped in the case just to take revenge and put the whole family under a huge
burdon. He further argued that the prosecution failed to collect even single evidence
against these accused-respondents. He further submitted that the prosecution has
badly failed to bring on record any material to connect the accused-respondents
Nos.2 and 3 with the alleged offences because it is not a case of prosecution that the
accused-respondents Nos.2 and 3 are the abettor of the alleged offences. Even if at
all the allegation levelled in the F.I.R. is accepted then too the Courts have to see
whether the constituent elements for attraction of section 107, A.P.C. are, prima
facie, made out or not.

:Order

The result of the above discussion is that the judgments of District Criminal Court,
Rawalakot dated 10-6-2019 as well as that of the Shariat Court dated 13-4-2020 are maintained
to the extent of accused-respondents Nos.2 and 3 and while partially accepting the appeal to the
extent of accused-respondent No.1, judgments of District Criminal Court, Rawalakot dated 10-6-
2019 as well as that of Shariat Court dated 13-4-2020 are set aside

Case II

IN THE PESHAWAR HIGH COURT, PESHAWAR,

JUDICIAL DEPARTMENT.
Present: ROOH-UL-AMIN KHAN, J

Khushdil ___________________________________________________________Appellant.
Vs
State stc___________________________ _________________________________Respondents
:Counsel for the Appellants
M/s Shabbir Hussasin Gigyani & Syed Bilal Jan, Advocates
Counsel for the Respondents.
Mr. Sana Ullah Khan, Advocate.
Council for the State:
Mr.Waqar Ahmad,, Additional Advocate-General for the State.

Date of hearing: 07.11.2016.

Brief Facts:
1. This single judgment shall decide the instant Jail Criminal Appeal No. 84-
P/2012 as well as connected Jail Criminal Appeal No. 85 P/2012 being the
outcome of the same judgment dated 24.01.2012 rendered by learned
Additional Sessions Judge-II, Charsadda, during a trial held in case FIR No.
448 dated 19.8.2009 under section 17(4) Haraba/413/414 PPC Police Station
Sardheri, whereby the appellants were convicted and sentenced under
section 396 PPC to undergo life imprisonment with fine of Rs.100,000/-
each or in default to suffer simple imprisonment for six months, however
benefit of section
382-B Cr.PC was extended to them.

2. On receipt of information about lying of an unknown corpse in the fields

near to Nisata Road, the local police rushed there and found a dead body of
man
being murdered through fire arm and lodged report Ex.PA/1 against
unknown accused(s). On 14.11.2009, Mst. Nazia widow of deceased
recorded her statement
under section 164 Cr.PC, wherein she charged the appellants alongwith co-
accused for commission of the offence.

3. Learned counsel representing the appellants, while refuting the preliminary

objection raised by the learned Addl; AG argued that though the appellants
 have been indicted under-section 17(4), Offence Against Property
(Enforcement of Hudood Ordinance, VI of 1979) read with section 413 and
414 of Pakistan Penal Code, but the learned Additional Sessions Judge on
conclusion of the trial has convicted and sentenced them under section 396
& section 412 PPC as the charge against the appellants under section 17(4)
Haraba (Enforcement of Hudood Ordinance, VI of 1979) could not be
proved, therefore the forum of appeal would be the High Court and not the
Federal Shariat Court.

4. Having heard the learned counsel for the parties, perusal of record would
reveal that a dead body of an unknown person was recovered by ASI namely
Mukhtiar Khan in the fields of one Mar Jan Khan, who drafted the mad
report which was ultimately culminated into the FIR under section 302 PPC
against the unknown accused. The appellants were arrested on 8.11.2009,
who were lateron charged by widow of the deceased namely Mst. Nazia in
her statement got recorded under section 164 Cr.PC on 14.11.2009. During
investigation it was noticed that the deceased was murdered by the
appellants and other after snatching his vehicle, therefore, they were charged
under section 17(4) Haraba read with 413 and 414 PPC. After conclusion of
necessary investigation, challan was put in Court under section 17(4) Haraba
Offences Against Property ( Enforcement of Hudood) Ordinance, 1979 read
with 413 and 414 PPC before the learned Additional Sessions Judge-II,
Charsadda, where the appellants were convicted and sentenced under section
396 PPC and sentenced to undergo life imprisonment, as mentioned in the
preceding para

5. The order of conviction was challenged through the instant jail appeals
before this Court, under misconception that the appellants have been
convicted and sentenced under the Pakistan Penal Code. Undisputedly, the
charge against the appellants was framed under section 17(4) Haraba of the
Offences Against Property ( Enforcement of Hudood) Ordinance, 1979. The
august Supreme Court of Pakistan has settled the law in cases titled
Muhammad Abbas and another .vs. The State (1984 SCMR 129), Atta
Muhammad .vs. The State (1984 SCMR 1109), Muhammad Sharif .vs.
The State ( PLD 1999 SC 1063 and Khizar Hayat .vs. Noor and other ( 2004
SCMR 209),
 6. according to which if an accused person is charged with an offence under
the
Hudood Laws, then in case of conviction or acquittal the form of appeal
would be the Federal Shariat Court and not the High Court. The Shariat
Appellate Bench of august Supreme Court of Pakistan Jurisdiction in Sharif
Khan’s case on scanning the entire law on the subject, was pleased to hold
that in such a situation for the purpose of Prohibition Order and Order VI of
1979, the word referred in section 417 Cr.PC in the context would mean the
Federal Shariat Court and the appeal filed before the Federal Shariat Court
would be competent. The above referred view was reiterated by the Sindh
High Court in case titled Ijaz and another..vs..the State ( 2016 P Cr. LJ 130)
and it was held that through the FIR and charge were framed under the
Hudood laws but the sentence was awarded under the PPC. Mere passing of
sentence under “Tazir” was not the determining factor for forum of appeal,
rather it would be the “charge” that determined the forum of appeal.

Order:
This and the connected Jail Criminal Appeal No. 85/2012, filed before this
court are not maintainable, and is therefore transferred to Honourable Federal
Shariat Court of Pakistan. The Additional Registrar (Judicial) of this Court is
directed to send these appeals alongwith record of the case to the Honorable
Federal Shariat Court. Copy of memorandum of each appeal be retained for office
record. Order accordingly.