CHAPTER  XVI
OF OFFENCES AFFECTING THE HUMAN BODY

Of Offences Affecting Life

299.  Definitions.--(i) In this Chapter, unless there is anything repugnant in the subject or context,--

(a)        "adult" means a person who has attained, being a male, the age of eighteen years;

(b)        "arsh" means the compensation specified in this Chapter to  be paid by the offender to the victim or his heirs under this Chapter;

(c)        "authorised medical officer" means a medical officer or a Medical Board, howsoever designated, authorised by the Provincial Government;

(d)        "daman" means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh;

(e)        "diyat" means the compensation specified in Section 323 payable to the heirs of the victim;

(f)         "Government' means the Provincial Government;

(g)        "ikrah-i-tam" means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or zina-bil-jabr;

(h)        "ikrah-e-naqis" means any form of duress which does not amount to ikrah-i-tam;

(i)         "minor" means a person who is not an adult;

(j)         "qatl" means causing death of a person;

(k)        "qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qat-i-amd, in exercise of the right of the victim or a wali;

(l)         "taz'ir" means punishment for other than qisas, diyat, arsh or daman; and

(m)       "wali"  means a person entitled to claim qisas (other than the person who was murdered the victim).

"Offence committed in the name or on the pretext of honour means an offence committed in the name or on the pretext of or similar other customs or practices."

COMMENTARY

1. Arsh. Arsh is compensation specified in the newly added Chapter XVI, P.P.C. for offences relating to various kinds of hurt. It is to be assessed at certain percentage of the value of Diyat. It is to be paid in lump sum or in instalments in default the convict is liable to simple imprisonment. He may be released on bail against security of an equal amount. Arsh can be awarded in addition to ta`zir. It is a liability on the estate of deceased convict, if not paid during his life time.

2.  Diyat. The amount of diyat is to be disbursed amongst the heirs of victim according to Shariah. In case where an heir foregoes his share it shall not be recovered: It can be ordered to be paid in lump sum or in instalments by the Court. In default, the convict is liable to simple imprisonment. He may be released on bail on security equivalent to the amount of diyat to the satisfaction of the Court. Diyat, Arsh and Daman are compensatory in nature but non-the-less they remain substantive punishments. [PLD 2002 Lah 482] Punishments for Qatl-i-Amd are prescribed in S. 302, PPC and Diyat is not one of the punishments which can be awarded u/S. 302. [2004 YLR 2719]

3.  Qisas. The right of Qisas means the right of causing death of the convict if he has committed qatl-i-amd. Where life imprisonment is awarded the question of the heirs of the victim compounding their right of qisas does not arise. Such a case would fall under the provision of section 345 (2) Cr.P.C. as amended, which is compoundable under section 310 P.P.C. by an adult sane Wali at any time by accepting Badal-i-Sulh. PLD 1991 S.C. 202. Qisas is a right like property inheritable and is executable by the legal heirs. Such right accrues to those legal heirs who are entitled to inherit the legacy of the deceased/wronged persons according to rules of Muslim Inheritance. Rule of priority of blood tie and the principle of Ta`sib does apply in the case of Qisas/Diyat/Afw. 2000 PCr.LJ 1688. Scope and applicability. 2000 PCr.LJ 1688.

Deceased Shia by faith, having children and parents who fall within the first class of heirs as per Shia law. Brothers and sisters also the descendents, however, stand excluded by the first class. Widow being sharer is entitled to inherit alongwith said category of heirs. [2004 YLR 2719].

Applicant was minor within meaning of Clause (a) read with (i) to Section 299, P.P.C. and as such was not liable to qisas as contemplated under clause (a) to Section 306 P.P.C.. In that event even if the applicant is found guilty of `Qatl-i-amd' he will be liable to diyat. PLJ 2002 Cr.C. (Karachi) 968.

4. Ta`zir. Ta`zir means punishment awarded by the Court other than qisas, diyat, arsh or daman. It includes punishment of imprisonment, forfeiture of property and fine. Award of ta`zir has been left at the discretion of the Court which should be exercised in a judicial manner and according to the facts and circumstances of the case.

Neither from the reasons of some of Juris-consults nor from the opinion noted in the judgment and observations made in Gul Hussain`s case, PLD 1989 SC 633, it follows that an unguided and unlimited power should be vested in Courts to award punishment of imprisonment by way of ta`zir after grant of forgiveness or receipt of Badal-i-Sulh by the victim or the heirs of the victim as the case may be. PLD 1991 Lah. 346.

5.  Ss. 299-338H. Provision not extended to Malakand Division, Court may get guidance. NLR 1998 SD 164.

6.  Adult. Accused sixteen years of age-not an adult. 2000 PCr.LJ 139.