Penal laws form
part of the governing rules and regulations in every social and legal system.
Islam, which is a perfect code of life and whose objective is perpetual
happiness of all mankind, has not neglected defense of the individual and the
society against crime. It recognizes that crime is the worst impediment to
moving towards absolute perfection and ascension towards God. The goal of Islam
is the evolution of the perfect man and the
establishment of the righteous state.
Contrary to
schools of thought that consider human beings corrupt by nature and by
instinct, in Islam man by nature is a being seeking righteousness, capable of
both correction and reform. Therefore, Islam sanctions preventive measures to
dry up the economic, social, and cultural roots of crime thereby restoring the
criminal to his previous innocent nature through proper training.
Islam reserves
punishment exclusively for exceptional cases, because punishment has mostly a
negative and superficial role in the reformation of the criminal. This is why
Islam generally concerns itself with the correction of the criminal rather than
the necessity for exploring the crime by means of confession or investigation,
collecting evidence and proof of the attribution of the crime to the offender.
Immediately after the commission of every offense, and after guilt is
established, the prosecution of the offender is arranged. If the judgment
contains severe punishment without taking into account the individual's
material and moral circumstances, and the sentence is executed easily with no
hesitation, then the sentence may be suspended.
Islam, thus,
considers punishment the last resort and not the primary means for combating
crime. The following are the authorities in support of this statement.
(a) Textual
authorities relating to penal laws in the moral and instructional fields in the
-Book and Sunnah are quite few. Likewise, in the works of Muslim scholars we
find very little discussion on matters relating to punishment as compared to
the exercises relating to the purification of the soul and edification of the
self.
) b) Investigation and gathering
information, except in public offenses, are forbidden and prohibited. In circumstances
where an offense is of an individual, private nature and has not been committed
publicly, its disclosure (with intent to cause the offender penalization) is
not only disapproved of, but considered tantamount to the dissemination of vile
deeds and therefore a sin. In case the person divulging it fails to prove his
allegation, through tediously gathering legal evidence, he is sometimes liable
to be sentenced to severe punishment.
A culprit is
himself required to abstain from disclosing what he might have committed in
private, even though by disclosure he desires to receive the divinely
prescribed punishment (Hadd). Rather, he is recommended to make repentance
between himself and God.
Even in case of
public offenses, the culprit should not bring his offense to the knowledge of
others as long as it is possible to make amends without putting himself in
disgrace.
Likewise, it is
the duty of a judge (as far as he can and as long as it does not lead to
emboldening others in the commission of the crime) to prevent the accused from
making a clear confession of guilt (of a misdemeanor) by suggesting excuses to
the accused which he may put forward in his defense. For example, the judge may
ask the accused whether or not he was motivated by indigence or necessity, and
whether or not he knew the punishment prescribed for the act, so that the
accused may repent for what he has done, and thus may cease to be liable for
the Hadd.
(c)-On the basis
of strong religious authorities, the emergence of corruption and commission of
crimes among the masses is the product of the corruption of the privileged
classes, namely, the rulers and the clergy. We find in the tradition of the
holy Prophet, peace be upon Him, the following words :
"There are
two classes in my community of followers. If they are virtuous, my community
shall be virtuous; and if they are corrupt, my community shall be
corrupt." He was asked as to which are those classes. In reply he said:
"They are the jurists and the rulers."
So also Imam
(Khomeini) has clearly declared:
"If the
learned become corrupt, the whole world becomes corrupt. Since the learned are
apparently representatives of the Imam, and if, God forbid, they become
corrupt, they would corrupt all the classes of society. On the other hand, if
they are virtuous, they would make the whole world virtuous. It is the
observation of eye-witnesses that in every part of the world where the learned
were virtuous and honest, the general masses were also virtuous and
honest." (Vide Sahifa-i-Noor, Vol. 11, p. 6 and Vol. 12 pp. 213 and 215)
As a result of
these observations, in Islam reform begins in the privileged classes, and
before their reform is accomplished, it is quite unreasonable to expect any
reform in the lower strata of society. Therefore, it is far
from the standards of equity and justice to punish the latter for deviation
from the right path.
This is why we
find in certain traditions that it is undesirable to enforce the penal laws as
long as the rulers are not righteous. There is so much emphasis on this point
that some jurists are led to suppose that during the Period of Occultation
(ghaybat) or as long as the reins (of the government) are not in the
hands of any of the twelve Imams, the offenders are not liable to any
punishment. But the purpose of those traditions is -and Allah knows better-
that if a society has no just and righteous government to maintain economic and
social justice as well as impart proper education and sound instruction, it
would not be judicious to punish persons accused of committing a number of
offences, as they would have fallen into the abyss of crime due to economic
inequities and social circumstances. Thus the two important elements of
intention and knowledge, which are a pre-requisite for proving a crime, may not
be found to a sufficient extent.
In view of this
fact, there is little justification for inflicting punishment or adopting
violent measures against the weaker sections of society or those who are
economically, socially or educationally backward. Those forced to commit a
crime or a misdemeanor under the pressure of uncontrollable circumstances
(since they are not responsible for creating those circumstances) are, therefore,
acquitted of the liability.
(d)-Although
comparatively severe punishment has been prescribed by the Shari'ah for some
offenses, it is quite difficult to establish them. Thus, while fear of severe
punishment may prove to be an effective deterrent (there would be less people receiving
the punishment) after the charge is established, there are strict conditions
with regards to issuing the sentence and applying the offender's punishment,
which further reduces the number of persons falling in the category of the
convicts.
After issuing the
sentence, there may be several circumstances which may delay the execution or
suspend the sentence.
According to
the jurists:
"Caution must
be observed in case of execution of Hudood, so that whenever there is even a
slight amount, the Hadd should not be inflicted."
We have the
following rule contained in some of reliable traditions:
"As far as
possible, do not execute the Hadd on Muslims, because it would indeed be better
for a ruler to err in forgiving a culprit rather than err in punishing an
innocent person."
This is a
translation of the collection of penal laws amended by the Committee for Legal
Affairs of the Islamic Consultative Assembly (Parliament) of Iran,
following the approval of the Council of the Guardians of the Constitution. This
English translation is designed to introduce Iran's
Islamic laws to those who are unable to read Persian and Arabic legal texts.
English readers are encouraged to use the Glossary for definitions.
Let us hope that
some day the Islamic laws governing political, economic, social, and
educational life will give new energy to the society. That these laws shall be
so comprehensively and effectively enforced, in the Islamic societies, that it
will be possible to enforce the Islamic penal laws which are dependent on the
enforcement of the preceding laws.
Above all, let us
look to a time when the Islamic morality shall purify and illumine the hearts
of Muslims in such a way that there may be no need to apply the Islamic penal
laws and they may be rendered redundant.
The reins of all
affairs are in His hand.
And all seekers of
help seek help from Him!
DIRECTOR
IRAN
- PAKISTAN
PERSIAN STUDIES CENTRE
ISLAMABAD
SYSTEM OF
TRANSLITERATION
The following
system of transliteration is the English translation of the Islamic Penal Code.
With the exception of a few Persian words, we have generally followed the
system of Arabic pronunciation while transliterating the technical legal
terminology.
*Published in the
Official Gazette No. 10988 dated November
16, 1982).
Passed by the Committee for Judicial Affairs
of the Islamic Consultative Assembly on July
12, 1982.
The Penal Code
defines various offenses and their punishments, plus, it provides steps to be
taken for the safekeeping and correction of the offender.
Every commission or omission of an act,
punishable by law or involving security or correctional measures, is considered
an offence; and nothing shall be deemed an offense unless there is some
punishment, security or correctional measures provided by the law.
The Penal Code
applies to all the persons who commit an offense within the territorial
jurisdiction of the Islamic Republic of Iran including land, sea, and air,
except where some other procedure has been provided by the law.
When part of an
offense has been committed in Iran,
and its conclusion takes place outside the territorial jurisdiction of Iran,
or vice versa, or when part of an offense is committed in Iran
and its result is (also) takes place in Iran,
the offense shall be considered to have been committed in Iran.
Every Iranian or
foreigner who commits any of the following offenses outside the territorial
jurisdiction of Iran
shall be punished according to the Penal Code of Islamic Republic of Iran:
An act against the
Government of Islamic Republic of Iran, internal or external security,
territorial integrity or independence of the Islamic Republic of Iran;
Forgery of an
Order, hand-writing, stamps or signature of the Leader (Rahbar) or the
President of the Republic, or making use thereof.
Forgery of the
official documents of Prime Minister, President of the Islamic Consultative
Assembly, Council of Guardians, or Supreme Judicial Council, Chief Justice of
the Supreme Court, Attorney General or any Minister, or making use thereof.
Forgery of the
currency of Iran, or documents of a Bank of Iran, such as bills of exchange
accepted by a Bank, checks issued by a Bank, documents duly guaranteed by a
Bank, forgeries of Treasury documents, credit documents issued or guaranteed by
the government, imitation or counterfeiting in any form of the local currency
or coins.
Every offense by
government employees or foreign nationals employed by the Government of the
Islamic Republic of Iran committed in the capacity of their respective
positions or posts. Likewise, every offence committed by employees of the
diplomatic or consular services of the Government of Iran who enjoy diplomatic
immunity shall be governed by the provisions contained in part B above."
In all cases other
than those mentioned under parts B and C above, every Iranian who commits an
offense outside Iran
and is found in Iran
shall be punished in accordance with the Penal Code.
In cases when,
according to a special law or international treaties, the offender is
prosecuted where he is arrested, if he is arrested in Iran, he shall be
prosecuted and punished in accordance with the laws of the Islamic Republic of
Iran.
A convict shall
return the property obtained through the commission of an offence to its owner,
as long as the property is still there. However, when the property is not
there, the convict shall be liable to pay its equal, and shall also be liable
to pay the damages in consequence of the offense.
In case of
issuance of an Order for non-prosecution or staying prosecution, the inspector
or Public Prosecutor shall decide what should be done with the property which
was the proof of the offence, obtained in consequence of the offence or was
used or meant to be used during the commission of the offence, whether it is to
be returned (to its owner), or confiscated or destroyed. As long as the case is
pending with the Inspector or Public Prosecutor, he is also bound to issue
necessary Orders for the return of the above articles or property on the
request of the interested party, keeping in view the following conditions:
1.It is not
necessary to detain all or some of the articles or property in the office of
the Inspector or Public Prosecutor.
2.The articles or
property are unclaimed.
3.The articles or
property do not fall under the category of articles or property which must be
confiscated or destroyed. In all criminal cases the court, while issuing an
Order or decree, or thereafter, irrespective of the Order of decree being in
respect of conviction, acquittal or staying the prosecution of the accused,
shall also issue a special order regarding the articles or property which was the
proof of the offence, obtained in consequence of the offence, or was used or
meant to be used, and specifically mentioned therein whether the articles or
property are to be returned, confiscated or destroyed.
Explanation 1. The
party affected by decree of the Inspector or Public Prosecutor, or a court
decree or Order filed in any of the criminal courts against their verdict with
respect to the articles or property mentioned in this Article and request for
the review thereof, although a complaint may not lie against the decree or
Order of the Court in a criminal case.
Explanation 2.
When property, whose protection requires an undue expenditure for the
government, or whose detention may cause its destruction or a gross loss in
value, and when it is unnecessary for the office of the Public Prosecutor to
preserve the property, or if the property is perishable or prone to quick
destruction, it shall be sold according to the situation, by the order of the
Public Prosecutor or the court, and the sale proceeds deposited with the
treasury of the court until there is final decision in their regard.
The punishment,
security, and correctional measures should be in accordance with a law enacted
prior to the commission of an offence. No punishment shall be awarded for the
commission or omission of an act in accordance with a law passed subsequent to
the act. In case, however, a law is framed subsequent to the commission of an
offence which involves mitigation or abolition of the punishment or is
favorable to the offender, it shall be applicable to the offences which were
committed before the law was framed and in whose case no final judgment has
been issued by the court. In case a final and binding judgment has been issued
in accordance with the previous law, action shall be taken according to the
following procedure:
1. When an act,
which was considered an offence according to the previous law but is not
considered so in the subsequent law, the final judgment shall not be executed,
and in case it is being executed, its execution shall be suspended. In these
two cases as well as in cases when the judgment has already been executed, no
penal consequences shall take effect. These provisions shall not apply to the laws
framed for a temporary period or for special cases.
2. In case the
subsequent law involves remission in the punishment, the convict may apply for
the revision of the judgment by the court. In any case, the subsequent order
shall not embody a punishment more severe than the previous one.
Explanation. When
the punishment for an offence in accordance with a subsequent law is changed to
security and correctional measures, the sentence shall be confined to such
measures.
Punishments are
divided into four classes according to the types of crimes:
1. Hudood
2. Qisas
3. Diyat
4. Ta'zeerat
Hudood are the
punishments whose nature and amount have been prescribed by the Shari'ah.
Qisas is the
punishment to which an offender is sentenced, and which is equivalent to his
offense.
Diyat is the
monetary compensation prescribed for an offence by the Shari'ah.
Ta'zeer is the
chastisement (ta'deeb) or punishment ('Uqoobat) whose nature and amount has not
been prescribed by the Shari'ah, and it has been left to the discretion of the
judge, such as imprisonment, fine, or lashes which are more lenient than the
amount of Hadd.
The term of all
prison sentences shall begin the day the final and executable judgment is
given. But the time the convict spent detained after he was first arrested and before
the judgment was issued may be effective in the remission of the term of
Ta'zeer sentence.
The mode of
execution of the sentences for punishment and the nature of the imprisonment
shall be the same as prescribed in the Criminal Procedure Code and other
relevant laws and Regulations. The necessary Rules (for carrying these laws
into effect) shall be framed by the Supreme Judicial Council and approved by
the Cabinet.
Every person who
has been given a Ta'zeer sentence for the commission of a voluntary offence may
be deprived of his civil rights for a time in order to supplement the Ta'zeer
sentence, or the court may forbid him to reside at a certain place or force him
to reside at a certain place.
Explanation.
Depriving a person of his civil rights and forcing him to reside at a certain
place shall be for a fixed period of time only and proportionate to the
offence.
When a person
intends to commit an offence and in fact begins to commit it, but due to
circumstances beyond his control, does not complete his act and the offence
does not take place, when the acts or steps the person has initiated fall under
the category of an offence, the person shall be liable to the punishment for
only that offence, otherwise he shall be given a correctional punishment
(ta'deeb).
Explanation.
Correctional punishment (ta'deeb) means a punishment from the category of
Ta'zeer which the court considers appropriate to the circumstances of the criminal.
Mere intention to
commit a crime and performing acts or steps which serve as introduction to the
crime, but have no direct connection with the commission of the crime, shall
not be treated as commencement of a crime, and shall not be punishable by law.
A person who
starts to commit a crime but subsequently stops of his own accord, shall not be
liable to punishment for that crime.
The commencement
of a crime is punishable only when it is specifically mentioned as such in the
law.
When a person who
has been given a Ta'zeer sentence by the court, commits the same offence again
after the execution of the sentence, the court, may enhance the punishment.
Explanation. When,
at the time of passing sentence, the court has no knowledge about the previous
convictions of the offender, but obtains that knowledge afterwards, the Public
Prosecutor may inform the court who has passed sentence, and if the convictions
are established, the court may take action in accordance with the provisions of
the preceding section.
Chapter Six - The Abettors Land
Accessories to a Crime
Every person who,
with due knowledge and information, helps another commit any punishable crime, and
the act of each of them together contributes to the commission of the crime,
whether their respective acts may or may not be sufficient for the commission
of the crime, and whether the effects of their respective acts may be equal or
different, he shall be considered an abettor to the crime and shall be liable
to the punishment of a person who independently commits the crime. When crimes
are committed involuntarily taking place by mistake or misadventure of two or
more persons, the punishment for each of them shall be the same as one given to
a person committing the crime independently. When one person's participation
and independent contribution to a crime is less than others, the court may
mitigate the sentence in proportion to the effect of his/her respective act.
In cases of
punishable crimes, the following persons shall be considered abettors to the
crime and liable to punishment.
1. Every person
who incites, persuades, threats, or entices another to decide to commit a
crime, or through intrigue, deception or trickery causes the commission of a
crime.
2. Every person
who, with due knowledge and information, supplies the means for committing a
crime, or, with due knowledge of the intention of the person committing the
crime, shows him the way to commit the crime.
3. Every person
who, with due knowledge and intention, facilitates the commission of a crime.
Explanation. In
order to prove abetment to a crime there must be existence of unity of purpose,
precedence or coincidence of the acts of the abettor and the person actually
committing the crime.
When the person
committing the crime cannot be prosecuted and punished due to legal
considerations, or the execution of his sentence is suspended due to legal
considerations, it shall have no effect in respect of the accessory to the
crime.
Leadership of a
gang of two or more persons in the commission of a crime, whether the act is
that of an abettor or an accessory to the crime, may be one of the causes of
enhancement of punishment.
In a case of a
plurality of punishable offences, where a single act falls under the category
of several crimes, the sentence awarded shall be the punishment for the crime
with the most severe punishment.
In a case of
plurality of crimes, when the crimes committed are different, separate
punishment shall be awarded for each crime. When the crimes are not different,
a single punishment shall be given, though in such case the plurality of the
crimes may be one of the causes for enhancement of the punishment. If the
aggregate of the crimes committed falls under the category of a particular
crime under the law, the offender shall be liable to the punishment provided
for that crime.
Explanation. The
law for the plurality of crimes in case of Hudood, Qisas and Diyat shall be the
same as provided in the relevant Chapters.
Children committing
an offence enjoy exemption from legal liability. The responsibility for their
correction under the supervision of the court rests with their guardian, and,
when appropriate, with the Children Reform and Training Centre.
Explanation 1. A
child is one who has not attained to the legal age of puberty.
Explanation 2.
When a minor commits a murder, injury or battery his/her 'Aqilah (or close
relatives) shall be liable for compensation, but when a minor is responsible
for loss of property of other persons, the child shall be personally liable for
compensation, and its payment shall be the liability of the child's guardian.
Explanation 3.
When, in case of grave offences, corporal chastisement is considered necessary
for the correction of the child committing the offence, the chastisement shall
be inflicted in a way that it may not incur the liability of Diyat.
Insanity, of any
degree, is just cause to suspend penal liability, so that if a person
committing an offence was insane and in a dangerous state at the time of the
commission of the offence, he shall, by the order of the Public Prosecutor, be
kept in a suitable place until the removal of that condition, and he can be
released only by the order of the Public Prosecutor. The person in custody or
his relatives may, however, may file a complaint against the order of the
Public Prosecutor in court questioning the competency issue with regard to the
actual offence. In such cases, the court shall meet in the presence of the
complainant, the prosecutor or his representative inviting the opinion of a
specialist, and then either issuing the necessary order for the release of the
person under custody or the confirmation of the order of the Public Prosecutor.
This verdict of the court shall be final, but the person under custody or his
relative shall be entitled to submit a complaint against the order of the
Public Prosecutor once in every six months.
Explanation. In
cases of occasional (adwari) insanity, it is mandatory that the person
committing the offence must be insane at time of the commission of the offence.
If it is proved that a person had taken an
alcoholic intoxicant before the commission of the crime, he shall be liable to
the punishment for taking such an intoxicant as well as the punishment for the
commission of the crime.
In case of
punishable offences, whenever a person commits an offence in consequence of
coercion or under compulsion which is intolerable, he shall not be punishment
for it. In such case the person exercising the coercion or compulsion shall be
liable to the punishment for that offence.
If a person
commits an offence to protect his life or property or that of another person in
a seriously perilous situation, such as in a flood or storm, he shall not be
given any punishment, provided he has not caused the perilous situation
deliberately, and the act committed was also proportionate to the risk involved
and was essential for warding off the risk.
Explanation. This
section does not apply to the case of Diyat and financial liability.
The acts for which
punishment is provided shall not be considered an offence in the following
cases:
1. When the act
was ordered by the person legally authorized to do that, and is not against
Shari'ah.
2. When the
performance of the act was important for the enforcement of the law.
3. When the
performance of the act was meant to "direct others to do what is good or
prevent them from doing what is wrong" (amr bil ma 'roof or nahy 'an
al-munkar).
Explanation.
Whenever an offence is committed by the unlawful order of an official
authority, both the person giving the order as well as the person receiving it
shall be liable to the punishment provided by the Shri'ah; but in case a person
receives an order from an authority and obeys it under the misunderstanding
that it is lawful, he shall be liable only to pay the Diyat or monetary
liability.
The following acts
shall not be considered an offence:
1. The acts of the
parents, legal guardians and the guardians of minors and indicted person
(mahjoor) performed by way of chastisement or for the sake of their protection,
provided the chastisement or protection has been exercised within the normal
limits.
2. Every kind of surgical
or medical operation which is essential or performed with the consent of the
person operated upon or his guardians, tutors or legal representatives and is
in keeping with the technical and scientific standards and government
regulations. It is not necessary to obtain consent in cases of emergency.
3. Accidents
arising from athletic exercises, provided the cause of the accident is not in
violation of rules relating to those athletic exercises, and the rules conform
to the standards of the Shari'ah.
A person who
commits an offence, in defense of the life, honor or chastity or physical
liberty of another, shall not be prosecuted or punished under the following
conditions:
1. The defense is
proportionate to the transgression or danger.
2. When resorting
to government (law-enforcing) agencies is practically impossible without loss
of time, or their intervention is not effective in removing the transgression
or danger.
Explanation.
Defense of the life, honor, chastity, property or physical liberty of another
shall be lawful only when that person is unable to defend himself/herself and
needs help.
Resisting security
or law-enforcement forces as they fulfill their official duties shall not be
considered defense, but whenever such forces exceed their jurisdiction, or
according to the available evidence and circumstances there is apprehension
that their action may result in death, injury, or trespass against the honor or
chastity of a person, the defense by the person shall be lawful.
In case of
Ta'zeerat (punishments left to the discretion of the judge), where there are
circumstances in favor of remission of a punishment, the court may remit the
punishment. The circumstances in which a punishment may be remitted include the
following reasons and conditions:
1. Withdrawal of
the case by the complainant or special claimant.
2. Statements or
information supplied by the accused which prove effective in recognition of the
abettors or those providing assistance in an offence or discovery of articles
recovered during the commission of an offence.
3. Special
circumstances in which the accused has committed the offence, such as inciting
words or conduct of the person with whom the offence has been committed or the
existence of an incitement involving honor in the commission of the offence.
4. A statement of
the accused prior to the prosecution, or his confession at the start of the
investigation which is effective in the discovery of the offence.
5. Special
circumstances or previous record of the accused.
6. Efforts on
behalf of the accused that mitigate the effects of the offence, or compensation
of the damages resulting from the offence.
Explanation 1. The
court shall mention explicitly the reasons and conditions for the remission of
the punishment in its judgment
Explanation 2.
When circumstances favor remission of a punishment mentioned in this section,
the court shall not remit the punishment again under the same circumstances.
Explanation 3.In
case of plurality of offences, the court may grant remission in the punishment.
When the prosecution
or the execution of the sentence is suspended by the withdrawal of the case by
the complainant, the withdrawal must be unconditional. No action shall be taken
on a conditional or contingent withdrawal. However, no heed shall be paid if
the man retracts his withdrawal.
Whenever there are
several aggrieved parties to an offence, the prosecution shall start on the
complaint by any one of them, but the suspension of the prosecution and
remission of the punishment shall depend on the pardon of the offence by all
the complainants.
Explanation 1 The
pardon of the offence by a temporary guardian (qayyim) shall not be effective
unless agreed to by the Public Prosecutor.
Explanation 2. The
right to pardon the offence shall be transferred to the heirs to the aggrieved
party, and the execution of the punishment shall be dropped whenever all the
heirs agree to pardon the offence.
There shall be no
objection to the employment of prisoners on their request and with the
permission of the court pronouncing the conviction. In case of persons
committing ordinary offenses, the prisoners may be provided jobs in industrial
or agricultural organizations from the time they enter the prison, provided the
following conditions are fulfilled:
1. Request or consent
of the prisoner.
2. As long as the
prisoner is neither a professional criminal nor a dangerous one.
Explanation 1.
When a person employed in an industrial or agricultural organization commits an
offence, he shall be immediately sent back to the prison, and shall be liable
to complete the remaining term of the sentence for the previous offence from
the date of the commission of the new offence, in addition to the sentence
pronounced for the new offence.
Explanation 2 The
income from the job shall go to the prisoner, except when some other
arrangement has been made.
Explanation 3. In
consideration of the conditions mentioned above in the section relating to both
the employment of persons convicted of ordinary as well as political offenses
and the wages paid, in addition their surveillance shall be in accordance with
the regulations proposed by the Supreme Judicial Council and approved by the
Ministers of Defense, Interior and Justice of the Islamic Republic (of Iran).
The pardon or
remission of punishment of convicts within the limits of Islamic values on the
proposal of the Supreme Court rests with the Leader (Rahbar).
When a person is
sentenced to Ta'zeer imprisonment for the commission of an offence for the
first time, and has undergone half of the sentence, he may be released
conditionally by the order of the court pronouncing the final judgment for his
conviction, provided he fulfills the following conditions:
1. When he has
shown good behavior throughout the period of the sentence.
2. When, in view
of the conditions and circumstances of the convict, it is presumed that he will
not commit an offence after his release.
3. When, the loss
or damage contained in the judgment of the court or agreed upon by the
complainant has been compensated, or he undertakes to compensate it, or when
the convict is sentenced to payment of compensation to the government.
Explanation 1. The
issuance of the order for the conditional release depends on the proposal of
the Assistant Public Prosecutor in charge of the prison and agreement of the
Public Prosecutor of the court pronouncing the sentence, and, in absence of the
Assistant Public Prosecutor, on the proposal of the Public Prosecutor. This
proposal should state whether the person fulfilled the required conditions
mentioned above. In this case the view expressed by the Prisoners Protection
Association shall be considered by the Assistant Public Prosecutor and Public
Prosecutor.
Explanation 2. The
conditional release of those convicted according to the final judgment of the
Martial Law Courts depends on the proposal of the Public Prosecutor of the
court pronouncing the sentence of conviction and the agreement of the Army
Prosecutor and issuance of the order by the court pronouncing the final
judgment. In case the Martial Law Court
issuing the final judgment has been dissolved, or is going to be dissolved, the
conditional release shall depend on the proposal of Army Prosecutor and an
order by the benches of the Permanent Revisionary
Court under the Army Judicial Organization keeping
in view the provisions of this Chapter.
Explanation 3. The
term of the conditional release shall be for the remaining term of the
sentence, but the court may also commute the sentence, though in any case it
shall not be for less than one year or exceed five years, except when the
remaining term of the sentence is for less than one year, in which case the
term of the conditional release shall be for the remaining term of the sentence.
Explanation 4. If,
during the term of the conditional release, the person released commits another
offence and warrants for his arrest shall be issued by the proposal of the
Public Prosecutor concerned for the remaining term of the sentence of the previous
offence in addition to the sentence for the new offence.
Explanation 5.
Whenever a person released shows good conduct and behavior throughout the term
of the conditional release, his release shall become final.
In all cases of
Ta'zeer convictions, the judge may suspend the sentence for two to five years
on the following conditions. In case of other sentences, except in cases where
it is specifically mentioned by the law or the Shari'ah, suspension of the
sentence shall not be lawful.
A. The convict
should not have a record of a major penal conviction, or in case of such
conviction, it has been removed.
B. In view of the
social conditions and previous record of the convict and the circumstances
which led to the commission of the crime, the court may consider it suitable to
suspend the sentence.
C. The convict may
undertake to pursue an honorable life and fully follow the orders of the court.
D. In case the
sentence calls for the payment of a fine, whenever the court is convinced that
the convict is not capable of paying the whole or part of the fine.
Explanation 1.
When sentences call for both imprisonment and a fine, the court may, if it
deems necessary, and in consideration of the provision of this Chapter, suspend
the convict's sentence for imprisonment.
Explanation 2. The
order for the suspension of the sentence shall be issued along with the
judgment of conviction, and the convict, whose sentence has been suspended, if
detained, shall be released immediately.
Explanation 3. The
court shall mention explicitly in its order (for the suspension of the
sentence) the reasons and grounds for suspension, and the instructions which
the convict must follow during the period of suspension of the sentence, and
also specify the period for which the sentence has been suspended according to
the type of the offence, the personal reasons of the offender, and in
consideration of the last part of Section 40 above.
Explanation 4. In
consideration of the conditions and circumstances of the convict and the
context of the case, the court may require the convict to observe the following
instruction during the period of suspension of the sentence, and the convict
shall be liable to follow the instruction of the court.
1. Contact a
hospital or clinic for treatment of addiction.
2. Abstain from
pursuing a specific job or profession.
3. Pursue studies
in an educational institution.
4. Abstain from
gambling, taking alcoholic drinks or associating with persons considered harmful
by the court.
5. Abstain from
visiting specific places.
6. Present himself
after every specified time to a person or authority specified by the Public
Prosecutor of the Shahrestan (or Division).
Explanation 5.
Suspension of the following penal sentences is unlawful:
1.Persons
convicted of importing, producing, or selling narcotic drugs or, providing
shelter to the persons who do.
2. Persons
convicted of embezzlement, bribery, forgery or use of a forged document.
Explanation 6. The
suspension of the sentence shall have no effect on the rights of the private
plaintiffs regarding their loss and damage, and the court decree for the
payment of said damages shall be duly executed.
Explanation 7.
Whenever a convict does not commit a new offence, having been punished as per
Penal Code from the date of the issuance of the order for suspension of the
sentence by the court, the suspended sentence shall be waived off from the
penal record. The penal record documents should be prepared by the office of
the Public Prosecutor immediately after the issuance of the final order of the
court for the convicts whose sentences have been suspended and documents
forwarded to the competent authorities. In all cases when some amendment is
made in the period of suspension, or the order for the suspension of the
sentence is cancelled, the matter should be reported immediately to competent
authorities for registration in the penal record of the convict.
Explanation 8. If,
after the sentence has been suspended, the person commits a new offence, the
suspension of the previous sentence shall be annulled immediately after the
finalization of the latest sentence, provided that the conviction for the new
offence be a major one, and the court who had issued the order of suspension (of
the previous sentence) should notify its annulment, so that the sentence
suspended may also be executed against the convict.
Explanation 9.
When, after the issuance of the order, it is learned that the convict has a
record of previous conviction and the court has suspended his sentence without
taking notice of the said record, the Public Prosecutor shall request the court
to cancel the order (of suspension of the sentence) on the authority of the
previous record of conviction, and the court, after considering the arguments
and verification of the previous record, shall annul the order of suspension of
sentence.
Explanation 10.
When issuing the order to suspend the sentence, the court shall also explicitly
notify the convict of the legal consequences of failure to carry out the
instructions of the court, and impress upon him that if he commits a new
offence (having a major penal sentence) the sentence previously suspended shall
be executed against him in addition to the sentence for the new offence.
Explanation 11.
The provisions relating to the suspension of the sentence shall not be
applicable when the persons who committed several gross offences have been
convicted in consideration of their repeated offences. If several final
sentences have been pronounced by the penal courts against a person including
the suspended sentence, the Public Prosecutor required to execute the sentence
shall be required to request the court to issue the order (of suspension of the
sentence) to annul the order for the suspension of the sentence and execute the
sentence in accordance with the Criminal Procedure Code.
If a person,
sentenced to life imprisonment, suffers from lunacy before the completion of his
term, he shall be shifted to the mental hospital after he has been declared a
mental patient by a medical doctor, with the approval of the person against
whom the sentence has been pronounced, and the time he spends in the mental
hospital shall count in the term of his sentence.
*Published in
the Official Gazette No. 10972 dated 4-8-1361/26-10-1982
(Passed on 3rd Shahrivar
1361/25th August 1982 by the Committee for Judicial Affairs of the
Islamic Consultative Assembly)
Qisas (or
retaliation) is a punishment which is awarded to an offender, and must be
commensurate with the offence.
Two Kinds of
Qisas: Qisas for life and Qisas for a part of human body.
In accordance with
the provisions of this Chapter, a willful murder (qatl-i amd) is punishable by
Qisas (or retaliation) and the heirs to the person murdered (owliya al-dam) may
kill the murderer with the permission of a Muslim ruler (wali) or this
representative in fulfillment on the conditions mentioned below.
A Murder shall be
willful in the following cases:
A. When the
murderer, by the performance of an act, intends to kill another, irrespective
of the act itself being of a type that causes death or not,, but in the results
in death.
B. When the
murderer intentionally commits an act that causes death, although he may not
have intended to kill the other.
C. When the
murderer does not intend to kill another, and the act done by him is also not
the type that usually causes death, but it may cause death, particularly if the
victim has pre-existing conditions (disease, old age, weakness, young age, or
the like) that are known by the murderer.
A homicide
(qatl-i-nafs) is divided into three classes: willful murder (qatl-i-amd),
manslaughter or semblance of willful murder (qatl-i-shibh-i-amd) and homicide
by misadventure (qatl-i-khata),
The laws relating
to the latter two classes are mentioned in the Chapter on Diyat (money compensations).
Compulsion does
not justify the commission of a homicide, if a person is compelled by another
to kill a third person, he should not commit that act, and if he does, he shall
be liable to Qisas while the person compelling him to do it shall be liable to
imprisonment for life.
Explanation 1. If
the person compelled is a minor or an insane person, the person compelling him
to commit the offence shall alone be liable to Qisas.
Explanation 2. If
the person compelled is a minor, he shall not be liable to Qisas but instead
his 'Aqilah (or close relatives) shall pay the Diyat (or money compensation),
while the person compelling the minor to commit the offence shall be liable to
imprisonment for life.
Whenever a Muslim
is killed, the murderer shall be liable to Qisas.
Whenever a Muslim
man willfully murders a Muslim woman, he shall be liable to Qisas, but before
the execution of Qisas, the heir (wali) of the woman shall be paid by the
murderer half of a man's Diyat.
When a non-Muslim
subject of a Muslim state (an infidel dhimmi) willfully murders another infidel
dhimmi, he shall be liable to Qisas, although they may be the followers of two
different faiths (or din). If the person murdered happens to be a woman, her
heir (wali) before the execution of the Qisas, shall be paid half of the Diyat
of a male dhimmi by the murderer.
When two or more
Muslim men jointly kill a Muslim man, the heir to the person murdered
(waliyy-i-dam) may, with the permission of the judge (hakim-i-shar'), subject
all of them to Qisas, but when there are two murderers, each shall pay half of
his Diyat to him, where they be three, two-thirds of Diyat from each, and where
there are four, three-fourth of the Diyat, and where they exceed four, each of
them shall be paid his Diyat in the same proportion.
Explanation 1.The
heir to the person murdered may subject some of the persons involved in the murder
to Qisas, by payment from each of them his Diyat provided in Section 8 above,
and receive from the rest their proportionate Diyat.
Explanation 2.The
same rule shall apply even in case the murderers and the persons murdered
happen to be all infidel dhimmis.
Whenever two or
more persons inflict injury to a person causing his death, whether the injury
is inflicted at the same time or on different occasions, if the death is proved
to be caused by their joint offence, each of them shall be declared murderers,
and they shall be liable to punishment according to the other provisions of
this law in accordance with the relevant conditions.
Abetment of murder
takes place when a person is killed as a result of the blow or injury by a
number of persons, and it is proved that his death has resulted from their
joint act, irrespective of the fact that the individual act of each of them was
sufficient for causing death or not, and whether the effect of their respective
acts has been the same of different.
When a person
inflicts injury upon another, and subsequently yet another kills him, the
second one shall be the murderer, although the former injury alone would have
resulted in the death of that person, so that the first shall only be liable to
Qisas for the injured part of the body or the Diyat for that injury inflicted,
except when in the Qisas for injury there is risk of death, in which case he
shall be liable only to the payment of Diyat.
Whenever injury inflicted
by the first person takes the injured person to the verge of death (and there
is only the last breath of life left in him) and then another person does
something that puts an end to his life, the first one shall be liable to Qisas,
while the second one shall be liable only to the Diyat for his offence against
the dead person.
Whenever an injury
seriously harms a part of body of another resulting in his death, if the injury
was caused by a single blow, it will be sufficient to subject him to Qisas for
murder, and he shall not be liable to pay the Qisas or Diyat for the injury
caused to the part of body (of the deceased).
In every case
where some Diyat is to be paid by the murderer and he is also to be inflicted
Qisas, the payment of the Diyat should take place prior to the execution of the
Qisas.
A person who has
been sentenced to Qisas should be killed with the permission of the heir to the
person murdered (waliyy-i-dam), so that if he is killed by a person without the
permission of the heir to the person murdered, the person killing the murderer
shall be liable for murder punishable by Qisas.
A father or
paternal grandfather who kills his son (or grandson) shall be liable only to
pay the Diyat for the murder to the heirs as a Ta'zeer.
Whenever a lunatic
or a minor kills willfully, it shall be treated as a homicide by misadventure
(qatl-i-khata), and he shall not be liable to Qisas, and his 'Aqilah (or close
relatives) shall be liable to pay the Diyat for homicide by misadventure to the
heir of the person killed.
If a sane person
kills an insane person, he shall not be liable to Qisas and shall only be
liable to pay Diyat to the heirs to the person killed.
Whenever an adult
person kills a minor, he shall be liable to Qisas.
A murder committed
in a state of intoxication is punishable by Qisas, except when it is proved
that the person committing the murder was fully devoid of control and intention
as a result of the intoxication and that he had not intoxicated himself
deliberately just for the commission of the murder.
Whenever a person kills
another (while the killer himself was) in a state of sleep or stupor, he shall
not be liable to Qisas, but he shall be liable to pay Diyat for homicide to the
heirs of the person killed.
A homicide is
punishable by Qisas only in case the person killed has not been sentenced to
death by law, so that if a person is already sentenced to death, the person
killing him should prove before the court that he was entitled to kill him.
At the time of
filing a suit, a complainant must be sane and adult, and in case the suit also
involves payment of money, the mental maturity (rushd) of the complainant shall
also be a condition. But no such condition is required with reference to the
defendant.
The complainant
must have full certainty regarding the subject of the suit, because no suit can
be filed against another on the grounds of suspicion or probability, but, when
there are some indications of an offence, a suit without the commission of an
offence may be entertained.
The person against
whom a complaint is filed must be specified and defined, and when he happens to
be included in a group, he should be properly distinguished.
The subject of the
complaint must be fully specified, so that a person filing a suit for murder
must also mention its kind as to its being a willful or unintentional murder.
If the actual murder is established, but its kind is not fully proved, a
conciliation should be brought between the murderer and the heirs to the person
murdered and his 'Aqilah (or close relatives) and thereby the dispute must be
settled.
Following are the
means for establishing a murder:
1. Confession
2. Evidence
3. Qasamah
4. Intuition of
the Judge.
A willful murder
is established by confession of willful murder, although it is made only once.
A confession shall
be effective in case the person making confession fulfills the following
conditions:
1. Sanity ('aql)
2. Puberty
(bulugh)
3. Free will
(ikhtiyar)
4. Intention
(qasd)
Therefore a
confession made by a lunatic, an intoxicated person, a minor, a person laboring
under compulsion and persons devoid of intention, such as a person making a
confession inadvertently or erroneously (sahi), or by way of joke (hazil), or
in a state of sleep or stupor shall not be legally effective.
A confession of a
willfully committed murder made by a person claiming idiocy or insolvency shall
be legally effective and punishable by Qisas.
If a person
confesses having committed a willful murder (qatl-i-amd) of another, and a
third person confesses having committed a homicide of the same person by
misadventure (qatl-i-khata), the heir to the person murdered (waliyy-i-dam) has
the option to demand the conviction of either of them according to that
person's confession, but cannot demand the award of punishment to both.
If a person
confesses to willfully murdering another, and subsequently a third person makes
a confession of having committed a willful murder of the same person, and the
former later retracts from his confession, both shall not be liable to Qisas or
Diyat, and the Diyat in this case shall be paid from the State Treasury (bayt
al-mal), but it shall be so in case the judge does not have a logical suspicion
that the confession made by the latter was done by way of a contrivance for the
acquittal of the former.
A. A willful
murder (qatl-i-'amd) is proved by evidence of two men of reputed integrity.
B. Culpable
homicide not amounting to murder (or semblance of a willful murder,
qatl-i-shibh-i-'amd) or a homicide by misadventure (qatl-i-khata) is proven by
evidence of two men of reputed integrity or one man and two women of reputed
integrity or one man of reputed integrity and an oath taken by the complainant.
When one of the
two witnesses of reputed integrity testifies that the accused has pleaded
guilty of a willful murder, and the other testifies that the accused has
pleaded guilty of murder, but does not testify that the accused pleaded guilty
of a willful murder, murder itself shall be proven, and the accused is required
to state the type of murder. If he pleads guilty of a willful murder, he shall
be liable to Qisas (or retaliation). If, however, he does not plead guilty of a
willful murder and takes oath to this effect, he shall no be liable to Qisas
(or retaliation).
Whenever an heir
of the deceased (waliyy-i-dam) claims that a willful murder has been committed,
and one of the two witnesses of reputed integrity testifies to the commission
of a willful murder, while the other to the commission of the murder itself,
and the accused pleads not guilty of a willful murder, it shall fall under the
type of loath (or suspicion of involvement) and the complainant shall be
required to prove the murder by qasamah (i.e. taking the required number of
oaths).
Whenever one of
the two witnesses of reputed integrity testifies to the commission of the
murder, and the other testifies to the effect that the accused has pleaded
guilty of murder, murder shall not thereby be proved, and the case shall be
that of a loath (or suspicion of involvement).
Whenever, as a
consequence of circumstances, the judge becomes doubtful about the commission
of the murder, such as the testimony of a single witness, or the presence of a
person with the implements of crime at the site of the offence, then either the
presence of the person murdered at the place shall be rendered doubtful, or the
residence of the persons in question shall fall under the category of loath (or
suspicion of involvement).
In cases of loath
(or suspicion of involvement), the defendant shall initially be asked to
produce reliable evidence. In the event of absence of evidence, the complainant
may invite forty nine men from among his relatives and dependents who have some
knowledge about the commission of the murder, so that they may take oaths
jointly with him proving his claim. In case their number is less than what is
required by law (or nisab, i.e. forty nine), they shall repeat their oath until
it reaches the required number of knowledge (about the case), or they are not
willing to take oath, the complainant himself may repeat his oath fifty times
in order to prove his claim.
Whenever the
complaint fails to execute qasamah, the defendant may in the manner prescribed
in Section 38 above, take up qasamah. In case he refuses to take up the
qasamah, judgment shall be given in favor of the complainant.
The nisab (or the
required number) of qasamah (or oaths) in case of culpable homicide not
amounting to murder (or semblance of a willful murder, qatl-i-shibh-i-'amd), or
homicide by misadventure (qatl-i-khata) shall be twenty five oaths, which shall
be taken in the manner mentioned above.
Qasamah in cases
of injuries of parts of body shall prove Diyat and not Qisas, and its nisab (or
the required number of oaths) shall be as follows:
1. The required
number of oaths is six in case of injuries which entail the liability for full
Diyat.
2. The required
number of oaths is two in case of injuries which entail the liability for
one-third, one-fourth or one-fifth of Diyat.
3. The required
number of oaths is two in case of injuries which entail the liability for
one-third, one-fourth or one-fifth of Diyat.
4. The number of
oaths is one in case of injuries which entail one sixth of a Diyat or less.
If a person is
killed as a result of a crowd, or a dead body is found in a public place (shari
'-i-'am), and there are no legal signs to prove the attribution of murder to
any person or a group of persons, the judge shall pay the Diyat from the
bayt-al-mal (or the State Treasury). If there is some circumstantial evidence
cited before the judge according to whom the murder maybe attributed to a
person or group of persons, it shall be a case of loath (suspicion of
involvement).
Chapter Five - The Procedure for
Execution of the Qisas .
A willful murder
is punishable by Qisas, but with the consent of the heirs of the deceased
(waliyy-i-dam) and the murderer it may be changed into a full Diyat or less or
more than a full Diyat.
Whenever a man
kills a woman, the heirs of the deceased may opt for Qisas with the payment of
half of the full Diyat (of a man) to the murderer, or demand the Diyat of a
woman from the murderer.
Whenever the
person who has committed a willful murder dies, there shall be no Qisas or
Diyat (for the murder committed by the deceased).
Whenever a person
who has committed a willful murder escapes, and is not traceable until he dies,
the Qisas shall change into Diyat which shall be payable from the property of
the murderer. In case he has no property, the Diyat shall be paid from the
property of his closest relatives, the closer being preferred to the remoter.
In case there are no close relatives of the deceased, or they are not able to
pay the Diyat, the Diyat shall be paid from the bayt al-mal (or the State
Treasury).
The heirs to the
deceased (owliya-i-dam) who have the option for Qisas are all the heirs to the
deceased except the husband or wife who have no option for Qisas as to its
pardon or execution.
A pregnant woman
undergoing the sentence of Qisas shall not be punished by Qisas before the
delivery or the child. Even after the delivery, if the Qisas may cause death to
the child, the execution of the Qisas shall be delayed until the danger of
death to the child is removed.
Qisas by a blunt
weapon which may cause torture to the offender is not lawful. Similarly
amputation (muthlih) of the offender is also forbidden.
In case there are
several heirs to the person murdered, there must be unanimity for Qisas among
them. In case all of them opt for Qisas of the murderer, the murderer shall be
subjected to Qisas. If some of them demand Qisas, while others opt for the
payment of Diyat, those demanding Qisas shall have to pay the share of the Diyat
to those opting for Diyat. If some of the heirs pardon the murderer gratis, the
others (demanding Qisas) may execute the Qisas after the payment to the
murderer of the share of those who have pardoned the murderer.
The heir to the
person murdered may, with the permission of the judge (hakim-i-shar') execute
the Qisas personally, or may appoint his agent for this purpose.
If the heir to the
person murdered happens to a minor or a lunatic, his guardian (father, grandfather,
an executor appointed by them or the judge) keeping the interest of the minor
or the lunatic in view, may execute the Qisas or change the Qisas into the
prescribed Diyat, or more or less than the prescribed Diyat. If the heir to the
person murdered is absent, and his absence becomes too long, the judge shall
act in the capacity of his guardian (wali), and shall take necessary decision
in accordance with the interest of the heir.
Whenever a person
or persons cause the release of a person sentenced to Qisas they shall be
imprisoned until the murderer is handed over to the judicial authorities. In
case the murderer dies before he is handed over to the judicial authorities,
the person or persons causing the escape of the murderer shall be liable to pay
the Diyat of the person murdered.
If the person with
whom the offence has been committed (majniyy'alayh) pardons (the offender)
before his death, the Qisas shall not thereby be set aside and the heirs to the
person murdered may, after his death, demand Qisas.
Cutting a part of
human body or inflicting an injury on it, if willful, is punishable by Qisas,
and the person with whom the offence has been committed (majniyy 'alayh) may,
with the permission of the judge subject the offender to Qisas with the
conditions mentioned hereafter.
Cutting a part of
the body or inflicting an injury on it is of three types: willful, semblance of
willful injury and by misadventure. The laws relating to the latter two types
shall be mentioned in the Chapter on Diyat.
Cutting of a part
of body or inflicting an injury on it shall be willful in the following cases:.
(a) When the
offender through the performance of an act intends to cut a part of the body or
inflict an injury on it, whether the act is of a type which is likely to cause
cutting of the part of the body or inflicting an injury on it or not.
(b) When the
offender intentionally performs an act which is of the type which is likely to
cause cutting of the part of the body or inflicting an injury on it, although
he may not have thereby intended to cut the part of the body or inflict an
injury on it.
(c) When neither
the offender intends to cut the part of the body or inflict an injury on it,
nor is the act of a type which is likely to cut the part of the body or inflict
an injury on it, but in relation to the person with whom the offence has been
committed it may, due to his ailment, old age, weakness, young age, or the
like, fall into a type which is likely to cause cutting of the part of the body
or inflicting an injury on it, and the offender should have knowledge about it.
In a Qisas of a
part of the body, besides the conditions relating to the Qisas of life,
following conditions are required to be observed: .
(i) Equality of
the part of the body in matter of soundness.
(ii) Equality of
the parts of the body in matter of being real (as against artificial or
surplus).
(iii) Equality in
the location of the part of the body inflicted.
(iv) The Qisas may
not likely cause the loss of life to the offender.
(v) The Qisas must
not exceed the quantum of offence.
In a Qisas of a
part of human body, man and woman are equal and, therefore, a man committing an
offence causing infirmity in a woman or committing a offence against a woman
shall be punished with Qisas of a similar part of the body of the man, except
when the Diyat of the part subject to infirmity is one-third or more than one-third
of the full Diyat, in which case the woman can execute the Qisas provided she
pays half of the Diyat of the part to the man.
A sound part of
the body shall not be subject to Qisas against an unsound part, and only Diyat
thereof shall be required to be paid, while an unsound part of the body shall
be subjected to Qisas against a sound part.
In case of a Qisas
of a part of the body, equality of the location is to be observed, so that the
part of the body of the right side of the offender shall be subjected to Qisas
against a part of the right side of the body, while the part of the left side
of the body shall be subjected to Qisas against a part of that side.
Explanation. Where
the offender has no right hand, his left hand shall be cut, and if he has even
no left hand his foot shall be cut.
The injury
inflicted as a Qisas must be equal to the injury inflicted by the offender as
regards its length and breadth, except in case of the injury which penetrates
into the bone of the head in which case the customary resemblance shall be
sufficient.
Whenever it is not
possible to observe equality in the Qisas of parts of the human body, as in
case of some of the deep injuries or in case of fracture or displacement of bones,
so that Qisas may leas to the loss of life or may exceed the quantum of
offence, its Diyat must be paid, irrespective of the fact that its amount is
specified by law or by the order of the judge.
The Qisas of a
part of the human body may be executed immediately, and it is not necessary to
wait till the position of the injury becomes clear. So if the Qisas is executed
and the injury leads to the death of the inflicted person, where the offence
had been willful, the offender shall be given death sentence, but before the
execution of the Qisas the Diyat for the injury inflicted on the part of the
offender's body as a Qisas must be paid to him.
In order to
observe equality between the Qisas and the offence, the quantum of the injury
must be fully measured and every thing which may impede the execution of the
Qisas or cause excess in it must be removed.
If due to the
movement of the offender the Qisas may exceed the quantum of offence, the
person executing Qisas shall not be held responsible. In case, however, the
excess is not due to any movement of the offender and be intentional, the
person executing the Qisas shall be liable to pay the Diyat for it.
Where the heat or
cold in temperature is likely to cause infection of the injury, the Qisas must
be executed in a moderate temperature.
The weapon used
for executing the Qisas must be sharp, unpoisoned and suitable for the
execution of the Qisas, because it is not lawful to give pain to the offender
in excess of the quantum of his offence.
Whenever a person
blinds another person in one eye, he shall be subjected to Qisas. When the
offender only has one eye, nothing shall be paid as Diyat.
Whenever a person,
having both the eyes intact, makes another person blind who has only a single
(sound) eye, the inflicted person may subjected the offender to Qisas and may
also receive half of the full Diyat, except in case the inflicted person should
have lost one of this eyes as a result of the execution of Qisas, in which case
he shall be allowed only to execute Qisas, and shall not be entitled to receive
anything else.
If a person should
cause the loss of sight of the eye of another person without damaging his
eye-socket, only the eye sight of the offender shall be subjected to Qisas In
case it is not possible to execute Qisas without damaging the offender's eyes,
there shall be no Qisas, and the offender shall be required to pay its Diyat.
A sound eye shall
be subjected to Qisas against eyes which are not normal as regards their power
of sight.
Whenever a person
cuts a part of another's ear and the inflicted person sticks that part to his
ear, punishment of the Qisas shall not be set aside, and if the offender, after
a part of his ear has been cut as a Qisas (also) sticks that part to his ear,
no one shall cut that part of his ear again in order to maintain the effect of
the Qisas.
The cutting of the
auricle resulting in the loss of the power of hearing shall be considered to be
equal to two offences, and the Diyat of the power of hearing of each ear shall
half of the full Diyat.
Whenever a person
cuts the nose of another, the inflicted person may execute Qisas, although the
nose of the inflicted person may be devoid of the power of smelling.
Whenever a person
cuts the tongue or lip of another, he shall be subjected to Qisas, keeping in view
equality of the amount and location (of the part of the body as well as the
offence).
Whenever a person
breaks or pulls out the tooth of another, he shall be subjected to Qisas
keeping in view the conditions relating to the Qisas for parts of the human
body. If a new tooth grows in place of the broken one or the pulled tooth and
the new tooth is sound, the offender shall not be liable to more than Ta'zeer.
In case, however, the new tooth were defective, the offender shall be liable to
pay the difference between a sound and defective tooth.
If the inflicted
person is a child, the execution of the judgment should be delayed for a usual
period, so that if a new tooth grows to the child, the offender shall be liable
to pay the fine (arsh): otherwise, he shall be sentenced to Qisas.
If the object of
offence is a surplus part of the body and the offender should not be having a
corresponding surplus part, he shall be sentenced to pay Diyat.
Equality in all respects
is to be observed in the Qisas of the parts of the human body, and it can only
be changed with the mutual agreement of both the parties.
Zina consists of
sexual intercourse by a man with a woman who is not lawful for him, although it
may be performed from the backside (unnaturally), except when it is performed
under a semblance of right.
Zina shall be
punishable by Hadd only when the person charged with Zina fulfills the
following conditions: puberty, sanity, free will and maturity.
So when Zina is
performed by a minor, lunatic, one performing it under compulsion, one laboring
under some misunderstanding, or one who without having the knowledge of law
marries a woman with whom marriage is not lawful and performs sexual act with
her, the sexual act shall not cause a liability for Hadd.
Explanation 1.
Whenever a woman has knowledge about the unlawfulness of sexual act with a man,
while that man has no such knowledge and considers sexual act with her to be
lawful and therefore performs such act resulting in penetration, only the woman
and not the man shall be liable to Hadd for Zina, If, however, the man has the
knowledge, while the woman is ignorant, only the man, to the exclusion of the
woman, shall be liable to Hadd for Zina.
Whenever a man or
a woman who has performed sexual intercourse claims to be laboring under a
misunderstanding or ignorance, in case there is likelihood of veracity of the
claim, his or her claim shall be accepted without any witness or oath, and the
Hadd shall be set aside.
If a woman claims
that sexual act has been performed with her under compulsion, in case there is
no proof otherwise, her claim shall be accepted.
Whenever a man or
a woman confesses in four (separate) meetings of having committed Zina, he or
she shall be sentenced to Hadd for Zina, and if he/she makes confession less
than four times, he/she shall be given Ta'zeer punishment.
A confession shall
be legally effective only when the person making confession fulfills the
following conditions: puberty, sanity, free will and intention.
The confession
must be clear and unambiguous, so that there is no likelihood of any logical
contradiction.
Whenever a person
confesses of having committed Zina and subsequently retracts his confession,
the Hadd shall not be set aside, except when he/she confesses of having
committed a Zina punishable by stoning to death or death, and subsequently
retracts his confession, in which case the Hadd of stoning to death or of death
shall be set aside.
Whenever a person
confesses of having committed Zina which is punishable by Hadd and subsequently
repents, the judge may acquit him/her or inflict Hadd on him/her.
Whenever a woman
having no husband conceives, she shall not be inflicted Hadd merely due to the
conception, except when her Zina is established in one of the ways mentioned in
this law.
Zina is proved by
the evidence of four men of reputed integrity ('adl) or three men and two women
all of reputed integrity, whether it is punishable by Hadd of lashes or that of
stoning to death.
In case a Zina is
punishable only by the Hadd of lashes, it shall also be proved by the evidence
of two men and four women all of reputed integrity.
Explanation. The
evidence of women alone or of women accompanied by one man alone shall not be
sufficient to prove Zina, and these witnesses shall be liable for the Hadd of
false accusation of Zina (Qadhf).
The evidence cited
by the witnesses should be clear and unambiguous.
The testimony
cited by the witnesses must be based on personal observation, so that a
testimony based on mere conjecture shall have no legal effect.
Whenever the
witnesses give the details of the matter concerning evidence, there should be
no difference in the details relating to the time, place and such other
matters, as in case of difference in the statements of the witnesses, the Zina
shall not be established, and the witnesses shall be liable to the Hadd of
false accusation of Zina (Qadhf).
The witnesses
shall give evidence without any interval, so that if some of them give evidence
while the others do not appear immediately or fail to give evidence
immediately, the Zina shall not be established, and the witnesses shall be
liable to Hadd for false accusation of Zina (Qadhf).
Whenever a Zina is
proved by evidence or confession, its Hadd shall be executed immediately,
except in cases like sickness or pregnancy.
Whenever a man or
woman committing Zina repents before the evidence is cited, Hadd shall be set
aside, but if he/she repents after the evidence has been cited, the Hadd shall
not be set aside.
The Hadd for Zina
in the following cases is death:
A. Zina committed
with the relatives within the prohibited degrees (maharim) of consanguinity
(nasab).
B. Zina with
father's wife (or step-mother)
C. Zina committed
by a non-Muslim with a Muslim woman, in which case the man committing Zina
shall be given death sentence.
D. Zina committed
by coercion or compulsion, in which case the person exercising coercion or
compulsion shall be given death sentence.
Explanation. In
the above case there shall be no difference between a young or old person,
married (muhsan) or un-married (ghayr-i-muhsan).
The Hadd for Zina
in the following cases shall be stoning to death (rajm):
A. A Zina
committed by a muhsan, or a man having permanent wife whom he has enjoyed
sexually and whom he may enjoy sexually any time he wants, shall be punishable
by stoning to death.
B. A Zina by a
muhsanah, or a woman having a permanent husband, by whom she has been enjoyed
sexually and the woman has always the opportunity of sexual enjoyment with that
husband, and the Zina is committed by her with a man of age (baligh), such Zina
shall be punishable by stoning (her) to death (rajm).
Explanation 1. A
Zina committed by a muhsanah with a minor shall be punishable by lashes and not
by stoning to death.
Explanation 2. A
Zina committed by a man or a woman having a permanent spouse, but due to
travel, imprisonment or such other legally acceptable excuses he/she has no
access to his/her spouse shall not be punishable by stoning to death.
Explanation 3. A
revocable divorce does not liberate a person from ihsan (or status of being
married) before the expiry of the term of 'Iddah. But an irrevocable divorce
causes the liberation (of the spouses) from ihsan (even before the expiry of
the 'Iddah).
A Zina committed
by an old man or woman fulfilling the conditions of ihsan shall be punishable
by lashes before the execution of stoning to death.
The Hadd for Zina
committed by a man or woman not fulfilling the conditions of ihsan is one
hundred lashes.
A married man who
commits Zina (with another woman) prior to sexual enjoyment of his wife resulting
in penetration shall be sentenced to one hundred lashes, shaving of hair of the
head and banishment for one year.
Explanation. In
the above laws there is no difference between a Zina committed with a living
woman and a dead woman.
A repetition of
Zina prior to the execution of the Hadd shall not cause multiplication of the
Hadd, except when the punishment (for the offences) is not of a similar nature,
such as when the punishment for some of them are lashes, while for others it is
stoning to death, in which case before the execution of stoning to death the
person committing Zina, he /she shall undergo the Hadd of lashes.
Whenever a woman
or man commits Zina several times, and every time he/she is awarded the Hadd
punishment, in case he/she repeats it for the fourth time, he/she shall be
punished by death.
The Hadd of
stoning to death shall not be executed if the woman is pregnant or might be
pregnant. And, likewise, she will not be stoned to death subsequent to
delivering the baby in case there is no one to take care of the new-born baby
and there is apprehension of its death. However, if some one is available to
look after the baby, the Hadd shall be executed on her.
In the case of a
pregnant woman, or a woman nursing a baby, when there is apprehension that the
execution of the Hadd of lashes may harm the fetus or the suckling, the
execution of the Hadd shall be postponed till the elimination of the
apprehension.
When a woman,
sentenced to death or stoning to death, is sick or having excessive
menstruation, the Hadd shall be executed on her. If, however, she is sentenced
to lashes, the execution of the Hadd shall be postponed till her recovery from
the illness or the expiry of the excessive menstruation (istihadah).
Explanation.
Menses are not an obstacle in the way of execution of a Hadd.
Whenever there is
no hope of recovery for the patient or when the judge deems it advisable to
execute the Hadd during the sickness, the convict shall be hit with a bundle of
one hundred sticks or twigs only once, although all of the sticks or twigs may
not touch the body of the convict.
Whenever a person
sentenced to a Hadd turns insane or an apostate, his Hadd shall not be set
aside.
The Hadd of lashes
shall not be executed when the weather is extremely cold or extremely hot.
A Hadd cannot be
executed in the territory of enemies of Islam.
Whenever a person
is sentenced to several Hadd, they should be executed in a sequence, so that
the execution of one of them may not destroy the possibility of the execution
of another. For example, if a person has been sentenced to lashes and stoning
to death, the Hadd of lashes should be executed first and subsequently the Hadd
of stoning to death should be executed.
Whenever the Zina
of a person fulfilling the conditions of Ihsan is established by his own
confession, at the time of stoning him to death the judge shall pelt the first
stone on him and he shall be followed by others. If the Zina is proved by
evidence of witnesses, the witnesses shall start pelting stones, and they will
be followed by the judge and then by others.
The Hadd of lashes
shall be executed on a man convicted of Zina while he shall be in a standing
posture and shall have no garments except those covering his privy parts, and
he shall be flogged on all the parts of the body except his head, face and privy
parts, while a woman shall be flogged in a sitting posture with her garments
covering her body.
It is appropriate
for the judge to notify the public as to the time for the execution of the
Hadd, and it is essential that the number of believers present at the time of
the execution of the Hadd should not be less than three.
At the time of
stoning to death a man shall be buried in a pit up to the waist and a woman up
to the chest, and then they shall be stoned to death.
Whenever a person
who has been sentenced to stoning to death escapes from the pit where he is
partially buried, he shall be returned for the execution of the Hadd, but under
certain circumstances he shall not be returned to the pit. When, however, a person
who is sentenced to lashes escapes (from the place of flogging),he shall be
returned for the execution of the Hadd of lashes in any way possible.
The stones for
stoning to death should not be so big that one or two of them may kill the convict,
nor should they be so small that they may not be called "stones".
The judge may act
according to his knowledge in matters relating to Allah as well as those
relating to the people, and execute the Hadd of Allah. It is, however, necessary
that he should mention the source of his knowledge. In matters relating to
Allah, he shall not depend on any one's request, but in matters relating to the
people he shall take action for the execution of a Hadd on the application of
the person whose right has been infringed.
In case a Zina is
committed during any of the sacred days, such as the days having religious
sanctity, the month of Ramadan or Friday, or in a sacred place, such as a
mosque, it shall be awarded Ta'zeer sentence in addition to the Hadd.
The presence of
witnesses at the execution of Hadd of stoning to death (rajm) is essential. If
witnesses are absent, the Hadd shall not be set aside, but if they escape, the
Hadd shall be set aside.
The drinking of an
intoxicant, whether in a small or large quantity, whether it has intoxicated
the person or not, and whether it is pure or mixed, shall be punishable by
Hadd.
Explanation 1. Beer,
even if it is not an intoxicant, falls under the category of liquor, and
drinking it shall be punishable by the Hadd.
Explanation 2.
Drinking grape-juice which becomes fomented by itself, or is boiled on fire, in
the sun or such other heating agents, although prohibited, is yet not
punishable by Hadd.
A Hadd for an
intoxicant shall be applicable to a person who is adult, sane, having free will
and has knowledge about its being an intoxicant and prohibited.
Explanation 1. In
case a person taking liquor claims ignorance of the law or the matter, and
there be likelihood of the veracity of his claim, he shall not be sentenced to
the Hadd.
Explanation 2.
Whenever a person who knows that drinking liquor is prohibited drinks liquor,
he shall be sentenced to the Hadd, even though he may not have the knowledge
that drinking it entails the liability for Hadd.
Whenever a person
in a state of emergency has to take an amount of liquor necessary for saving
himself from death or the treatment of some serious disease, he shall not be
liable to the Hadd.
Whenever a person
makes confession of having taken liquor, he shall be sentenced to the Hadd.
A confession is
legally effective only when the person making it is an adult, sane and having
free will and intention.
The Hadd for
taking liquor is established by the evidence of two men of reputed integrity
('adil).
Whenever one of
the men of reputed integrity testifies to the fact that the man has drunk
liquor and another testifies to the fact that he has vomited liquor, the Hadd
shall be established.
Regarding
testimony to drinking liquor, it is essential that there should be no difference
regarding the time, place or such other detail. Whenever one of the witnesses
testifies to the actual drinking of liquor, while the other to the drinking of
a special kind of liquor, the Hadd shall be established.
Explanation. A
confession or evidence shall entail the liability for the Hadd when there is no
logical likelihood of the person being excusable.
The Hadd for
drinking liquor for a man or a woman is eighty lashes.
Explanation. A
non-Muslim shall be sentenced to eighty lashes only when he is convicted of
drinking liquor in public.
A man shall be
flogged in a standing posture and he shall have no garments except those
covering his privy parts, while a woman shall be flogged in a sitting posture
with her garments covering her body.
Explanation. The
lashes shall not be hit on the head, face and privy parts of the convict.
The Hadd shall be
executed at a time when the convict has recovered from his state of inebriety.
Whenever a person
drinks liquor several times and no Hadd has been executed on him, only one Hadd
shall be sufficient for all (the times he has drunk the liquor).
Whenever a person
drinks liquor several times, and every time Hadd is executed on him, if he is
convicted for the third time, he shall be punished by death.
Whenever a person
sentenced to Hadd turns insane or an apostate, the Hadd shall not be set aside.
Whenever a person
drinking liquor repents before the evidence is cited, his Hadd shall be set
aside, but if the repents after the evidence has been cited, the Hadd shall not
be set aside.
Whenever a person repents
after once making confession of having drunk liquor, the judge may acquit him
or execute the Hadd on him.
Sodomy is the
sexual intercourse with a male.
The person
committing sodomy and the person with whom it has been committed shall both be
liable to the Hadd.
The Hadd for
sodomy is death, but the procedure for executing it depends on the discretion
of the judge.
Sodomy shall be
punishable by death only when the person committing it and the person with whom
it has been committed are both adult, sane and have free will.
Whenever an adult
and sane man commits sodomy with a minor, the person committing sodomy shall be
given death sentence, while the person with whom sodomy has been committed
shall be given Ta'zeer sentence, provided he has not been laboring under
compulsion.
Whenever a minor
commits sodomy with another minor, they shall both be given Ta'zeer sentence,
except when one of them had been laboring under compulsion.
Sodomy shall be
established in respect of the person making confession four times of having
committed sodomy.
A confession shall
be effective only when the person making it is sane and having free will and
intention.
A confession made
less than four times shall not entail liability for the Hadd and shall only
make the person making the confession liable to Ta'zeer.
Sodomy is
established by the evidence of four men of reputed integrity who should have
personally observed the performance of the act.
Whenever there are
less than four witnesses, sodomy shall not be established, and the witnesses
shall be liable to the Hadd for false accusation of sodomy (Qadhf).
The testimony by
women alone or in conjunction with men shall not establish sodomy.
The (Shari'ah)
judge may give his judgment on the basis of his knowledge acquired through the
customary sources.
The Hadd for
tafkheedh (or masturbation through rubbing the male organ between the thighs of
another) and similar acts between two men done without penetration shall be one
hundred lashes to each.
Explanation. If
the person committing the offence happens to be a non-Muslim and the person
with whom the act has been done is a Muslim, the Hadd for the former shall be
death.
If tafkheedh or
similar acts are repeated thrice, and after every time a Hadd has been
executed, after it has been repeated for the fourth time, it shall be
punishable by death.
Whenever two men
who are not related by consanguinity are found naked under a cover without any
emergency, both shall be liable to Ta'zeer punishment.
Whenever a person
kisses another lasciviously, he shall be liable to Ta'zeer punishment.
If a person who
has committed tafkheedh or similar acts, or sodomy, repents before evidence is
cited, the Hadd shall be set aside in his case. However, if he repents after
the evidence has been cited, the Hadd shall not be set aside. If the offence
has been established through the convict's own confession and subsequently he
repents, the judge may pardon him.
Tribadism (lesbian
act), or musahagah is the homosexual act between women by (rubbing) their
sexual organs.
The procedure for
establishing tribadism (lesbian act) is the same as that of establishing
sodomy.
The Hadd for
tribadism (lesbian act) is one hundred lashes to each (of the women).
The Hadd for
tribadism (lesbian act) is established only in case of a person who is adult,
sane and having free will and intention.
Explanation. In
case of tribadism (lesbian act) there is no difference between the active and
passive parties, or a Muslim and a non-Muslim.
Whenever a person
commits tribadism (lesbian act) thrice, and after every time its Hadd is
executed, in the event of its repetition for the fourth time, its Hadd shall be
death.
If a person
committing tribadism (lesbian act) repents before the evidence is cited, the
Hadd shall be set aside in her case, but is she repents after the evidence has
been cited, the Hadd shall not be set aside.
If the a
homosexual practice among women which attempts to simulate heterosexual
intercourse homosexual practice among women which attempts to simulate
heterosexual intercourse has been established by the confession of the woman
committing it and subsequently the woman repents, the Shari'ah judge may pardon
her.
Whenever two women
who are not related to each other by consanguinity are found naked under a cover
without any emergency, they shall be punished by Ta'zeer of less than one
hundred lashes, and in case of repetition of the act and award of the Ta'zeer
for the third time, they shall be flogged a hundred lashes.
Panderism means
uniting and bringing together two or more persons for Zina or sodomy.
Panderism is
established by confession made twice, provided the person making the confession
is adult, sane and having free will and intention.
Panderism is
proved by the evidence of two men of reputed integrity.
The Hadd for
Panderism is seventy-five lashes and banishment from the place for a term to be
determined by the judge.
Explanation. In
case of a woman the Hadd for Panderism shall be seventy-five lashes only.
(False) Accusation
(of Zina, etc.) or Qadhf.
Qadhf means
(false) accusation of another of Zina or sodomy.
The Hadd for Qadhf
is eighty lashes, whether the person committing Qadhf is a man or a woman.
Explanation.
Whenever a person accuses another of some thing other than Zina or sodomy such
as tribadism (lesbian act or a homosexual practice among women which attempts
to simulate heterosexual intercourse) or any similar prohibited acts, he shall
be sentenced to thirty to fifty lashes.
Qadhf should be
made in clear and unambiguous terms, and the person making the Qadhf should
know the meanings of the words, although the listener may not know their
meanings.
Whenever a person
says to the legitimate son: "You are not my son," he shall be liable
to the Hadd for Qadhf.
Whenever a person
says to the legitimate son of another, "You are not his (i.e., your
father's) son," he shall be liable to the Hadd for Qadhf.
Explanation. In
the above cases, whenever the context shows that the intention of the person
has not been Qadhf, the Hadd shall not be established.
Whenever a person
says to another, "You have committed Zina with a woman, or committed
sodomy with a man, "he shall be liable to have committed Qadhf in respect
of the addressee, and the person uttering such words shall be liable to the
Hadd for Qadhf.
Whenever a person
accuses another of Zina says, "Your mother is a whore", he shall be
liable to the Hadd for Qadhf in relation to the person whom he has accused,
while in relation to the addressee whom he has hurt by the abuse, he shall be
liable to Ta'zeer.
In case of every
abuse which hurts a listener, but does not constitute a Qadhf, such as when a
man says to his wife, "At the time of our marriage you were not a
virgin," the person abusing shall be sentenced to ten to fifty lashes.
A Qadhf shall be
punishable by a Hadd only when the person committing it is an adult, sane and
having free will and intention, and the person who has been subjected to Qadhf
is also an adult, sane, Muslim and chaste, so that if the person making the
Qadhf or the person to whom it is addressed does not fulfill any of the above
conditions, the Hadd shall not be established.
Whenever a
discreet minor commits Qadhf against another, he shall be sentenced to ten to
thirty lashes. Likewise, whenever an adult and sane person commits Qadhf
against a minor or a non-Muslim, he shall be punished by Ta'zeer.
If the person
subjected to Qadhf is not chaste (with regard to the accusation) and only
pretends to be, the person making Qadhf shall not be liable to the Hadd or
Ta'zeer.
Whenever close relatives
subject each other to Qadhf, they shall be liable to the Hadd for Qadhf.
Explanation. If a
father or paternal grand-father subjects his son (or grandson) to Qadhf, he
shall be sentenced to Ta'zeer.
Whenever a man
subjects his deceased wife to Qadhf and that woman has no heir but a son from
the same man, the Hadd shall not be established. If, however, the woman has any
other heir, such as a son from another husband, the Hadd shall be established.
Whenever a man
commits Qadhf against several persons separately, he shall be liable to a
separate Hadd for each Qadhf, whether they apply for the execution of the Hadd
jointly or separately.
Whenever a person
subjects several persons to Qadhf by a single formula, if they demand the
execution of Hadd separately, separate Hadd shall be executed for the Qadhf of
each, but if they demand a Hadd jointly only a single Hadd shall be
established.
A Qadhf is
established by a confession made twice.
A confession is
effective only when the person making it is adult, sane and having free will
and intention.
A Qadhf is proved
by the evidence of two men of reputed integrity.
A convict shall be
flogged clothed in his usual garments and the lashes shall be medium and not as
severe as in case of the Hadd for Zina parts of the person convicted of Qadhf.
Whenever a person
commits Qadhf several times and every time the Hadd is executed on him, in case
he commits it for the fourth time, he shall be given death sentence.
Whenever a person
committing Qadhf after the execution of the Hadd says, "What I had said
was true." he shall be given Ta'zeer punishment.
Whenever a person
subjects another to Qadhf several times for the same (immoral) act, such as
Zina, only a single Hadd shall be established.
Whenever a person
subjects another to Qadhf for several (immoral) acts, such as Zina and sodomy,
several Hadds (equal to the number of the accusations) shall be incurred.
The Hadd for Qadhf
shall be set aside in the following cases:
1. Whenever the
person subjected to Qadhf confirms the accusation by the person making Qadhf.
2. Whenever the
witnesses in the number required by law (nisab) testify to the matter involved
in the Qadhf.
3. Whenever the
person subjected to Qadhf or all of his heirs pardon the person making the
4. When a man
subjecting his wife to Qadhf undergoes the process of Li'an (or Imprecation).
Whenever two
persons subject each other to Qadhf, whether their Qadhf is similar or
different, their Hadd shall be set aside they shall be given Ta'zeer
punishment.
If a Hadd is not
executed or condoned, it is transferred to the heir.
The right to
demand the Hadd for Qadhf is transferred to all the heirs except the husband
and wife, and each of the heirs shall be entitled to demand the execution of
the Hadd, although the other heirs may have condoned it.
Section
196 to 218
(Muharabah Ifsad
fi al-Ard)**
Every one who, in
order to create alarm and harassment and disturb public freedom and security,
takes up arms is termed a Muharib.
Explanation 1.
There is no difference between fire-arms and other arms.
Explanation 2. If
a person draws a weapon in public, but due to weakness is unable to harass any
individual, it shall not be termed a muharib.
Explanation 3. If
a person draws a weapon before a particular person or persons, and it has no
general feature, he shall not be termed a muharib.
*Published in the Official Gazette No.
10987 dated 24-8-1361/15-11-1982.
**Understood, though not given in the
Persian text. (Translator).
Explanation 4.
Every individual or group who takes up arms for combating the muharibs or
eradicating corruption from earth shall not be termed a muharib.
Whenever an armed
dacoit or a highway robber (using arms) disturbs the public and highway
security or creates alarm and harassment, he shall be termed a muharib.
If a group or
organized party makes an armed revolt against the Islamic regime, all the
individuals and supporters who have knowledge about the location of the group
or contribute in any way towards the advancement of the objectives of the group
shall be treated as muharib, although they may not be participating in of any
of their regular branches.
Explanation.
Several fronts formed with the various groups or persons shall be considered a
single unit of the original organization.
Every individual
or group who creates a plan for the overthrow of the Islamic regime and
purchases supplies, arms, or explosives, or with full knowledge and free will,
supplies the means, facilities, or arms shall be termed muharib and one engaged
in spreading corruption on earth (mufsid fi al-ard).
Every one who
volunteers for an important post in the coup d'etat government as a part of the
plan for o
