Hadd - (literal meaning "limits)

According to Sharia, hadd (Hudood) is the rules stated in the Quran and
the Hadiths. Its violation is deemed in Islam as a crime against ALLAH. It
requires a fixed punishment.
Crimes of hadd:
Theft (amputation of the hand)
Illicit Sexual Relations/Rape (Zina / Zina-bil-jabar) Death by stoning
or 100 lashes.
Making unproven accusations of illicit sex (eighty lashes)
Drinking intoxicants like alcohol (eighty lashes)
Apostasy (death)
Highway robbery (death)

Qisas - (Literal meaning "Retaliation in kind") and Diyat

Blood Money
In Islamic jurisprudence, It is the second category of crimes, where Sharia
specifies equal retaliation (qisas) or monetary compensation (diyyat) as a
possible punishment.
Included in this category is homicide, for example, which Islamic law
treats as a civil dispute between believers.
Qisas principle is available against the accused, to the victim or victim's
heirs. If a Muslim is murdered, suffers bodily injury or suffers property
damage. In the case of murder, qisas means the right of a murder victim's
nearest relative or wali (legal guardian) to, if the court approves, take the
life of the killer.

Tazir - (Literal meaning "To punish")

Sometimes spelled as taazir is the third category, and refers to offense
mentioned in the Quran or the Hadiths. Neither the Quran nor the Hadiths
specify a punishment. In Tazir cases, the punishment is at the discretion
of the state, the ruler, or a qadi (kadi) or court acting on behalf of the
ruler.
Tazir punishment is for actions which are considered sinful in Islam,
undermine the Muslim community, or a threaten public order during
Islamic rule, but those that are not punishable as hadd or qisas crimes.
 The legal restrictions on the exercise of power are not specified in the
Quran or Hadiths and it varies.
Crimes punished by tazir do not require proof that hadd or qisas crimes
require, such as four male Muslim witnesses.
The judge enjoys considerable flexibility in deciding an appropriate form
of punishment, and the punishment does not have to be consistent across
the accused persons or over time.
The ruler or qadi also has the discretion to forgive tazir offenses.

Examples of Tazir offenses

Tazir offenses are broadly grouped into two sub-categories in Islamic
literature.
Offenses that have the same nature but do not exactly meet the
complete requirements of hudood crimes. Examples of such Tazir offenses
include thefts among relatives, or attempted but unsuccessful robbery,
attempted fornication witnessed by four male Muslims, and homosexual
contacts such as kissing that does not result in fornication.
Second sub-category of Tazir offenses relate to offenses committed by an
individual that violate the behavior demanded in the Quran and the
Hadiths. Examples of the second sub-category include false testimony,
loaning money or any property to another person for interest in addition
to principal, any acts that threaten or damage the public order or Muslim
community or Islam.
Other Examples Include:
1. The man who kisses a boy or a woman unrelated to him by marriage
or a very near kinship.
2. The man who flirts without fornication.
3. The man who eats a forbidden thing like blood, or dead animal which
suffers natural death, or meat that is slaughtered in an unlawful manner;
[21]

4. The man who steals a thing lying in open or one whose value is
unclear.
5. The man who debases the commodities such as foodstuffs and
clothes, or who gives short measure of capacity or weight.
6. The man who bears false witness or encourages others to bear false
witness.
7. The judge who judges contrary to what Allah has enjoined.
8. The non-Muslim or Muslim engaged in espionage;[21]
9. The woman who questions or is rude to her husband.
10. The man who questions Qadi's opinion or challenges the views of
other Muslims.

Tazir punishments

Tazir punishments are common in Sharia courts for less serious offenses.
Punishments vary with the nature of crime and include a prison term,
flogging, a fine, banishment, and seizure of property.

Execution is allowed in cases such as habitual homosexuality, practices

which split the Muslim community, propagating heretical doctrines or
espionage on behalf of an enemy of the Muslim state.

Diyat

According to Islamic Law, it is the financial compensation paid to the

victim or heirs of a victim in the cases of murder, bodily harm or property
damage. It is an alternative punishment to qisas (equal retaliation). In
Arabic, the word means both blood money and ransom, and it is spelled
sometimes as diyyat.

Diya compensation rates have historically varied based on the gender

and religion of the victim. Muslim women victims have typically been
compensated at half the rate as Muslim male victims, while non-Muslims
compensation rates have varied between 1/16 to 1/2 of a Muslim, for an
equivalent case.

For women and non-Muslims.

Diyah is not the same for Muslim women and Muslim men
in sharia courts, with Muslim woman's life and diyah compensation
sentence being half as that of a Muslim man's life. [14][15] Muslims and non-
Muslims are treated as unequal in the sentencing process, in cases of
unintentional deaths.[2][3]

Intention
In criminal law, intent is one of three general classes of mens rea
necessary to constitute a conventional, as opposed to strict
liability, crime. Also known as knowledge of wrongdoing.
A person intends a consequence they foresee that it will happen if the
given series of acts or omissions continue, and desires it to happen.
The most serious level of culpability, justifying the most serious levels
of punishment, is achieved when both these components are actually
present in the accused's mind (a "subjective" test).
A person who plans and executes a crime is considered, rightly or
wrongly, a more serious danger to the public than one who acts
spontaneously (perhaps because they are less likely to be caught),
whether out of the sudden opportunity to steal, or out of anger to injure
another.
Offenses requiring basic intent specify a mens rea element that is no
more than the intentional or reckless commission of the actus reus.
The actor either knew (intended) or deliberately closed his mind to the
risk (recklessness) that his action (actus reus) would result in the harm
suffered by the victim.
The crime of battery, for example, only requires the basic intent that the
actor knew or should have known that his action would lead to harmful
contact with the victim.

Mens rea (Mens Rea) is the mental element of a crime. It is a

necessary element of many crimes.
The standard common law test of criminal liability is expressed in
the Latin phrase actus reus non facit reum nisi mens sit rea, i.e. "the act
is not culpable unless the mind is guilty".
In jurisdictions with due process, there must be both actus reus ("guilty
act") and mens rea for a defendant to be guilty of a crime
(see concurrence).
As a rule, someone who acted without mental fault is not liable in criminal
law. Exceptions are known as strict liability crimes.
A fundamental principle of Criminal Law is that a crime consists of both a
mental and a physical element. Mens rea, a person's awareness of the
fact that his or her conduct is criminal, is the mental element, and actus
reus, the act itself, is the physical element.

Actus reus is the Latin term used to describe a criminal act. Every crime
must be considered in two parts-the physical act of the crime (actus reus)
and the mental intent to do the crime (mens rea). To establish actus reus,
a lawyer must prove that the accused party was responsible for a deed
prohibited by criminal law.

Strict Liability
In criminal law, strict liability is liability for which mens rea (Latin for
"guilty mind") does not have to be proven in relation to one or more
elements comprising the actus reus (Latin for "guilty act")
although intention, recklessness or knowledge may be required in relation
to other elements of the offense. The liability is said to be strict because
defendants will be convicted even though they were genuinely ignorant of
one or more factors that made their acts or omissions criminal. The
defendants may therefore not be culpable in any real way, i.e. there is not
even criminal negligence, the least blameworthy level of mens rea.
 Define Hadd and Tazir. What is distinction between these
two?
Define Hadd and Tazir. Discuss the offences punishable by
Hadd.
Introduction:
When certain public rights are violated, the wrong is called Maasiat that
is, crime or offence and it gives rise to certain substitutory public rights in
the form of uqabat punishments that is Hadd and Tazir.
The distinction between Hadd and Tazir is of fundamental and concerns
the doctrine of Hadd itself.
Types of Punishment:
Punishments are divided into two types:
(i) Hadd
(ii) Tazir

Hadd:

Literal Meaning:
The word Hadd literally means prevention, measure, and limit.

Legal Meaning:
Hadd means a punishment which is fixed and enjoined as the right of
Allah.

Origin of hadd punishment:

Hadd used to be prevalent in Arabia at the time of the promulgation of
Islam, and the Muhammadan law laid down conditions of a stringent
nature under which such punishments may be inflicted.

Object of Punishment in Islam:

Case Law - 1999 MLD 2450
It was held that object of punishment is reformation of convicts and not to
penalize them vengeance

Tazir:

Literal Meaning of Tazir:

Tazir literally means disgracing the criminal for his shameful conduct.

Legal meaning:
Punishment that are at the discretion of the judge when the offence is
related to a private injury are called Tazir.
Difference Between Hadd And Tazir:
There is not indication is Sunnah about the difference between Hadd and
Tazir. It would be open to legislature to add to the categories of Hadd and
also enhance the punishment fixed by the Quran and the Sunnah keeping
in view, the circumstances and requirements of an age, thought the
punishments so finds cannot be reduced (PLD 1983 FSC 255) following
are some points of distinction between Hadd and Tazir.

As To Object:
The object of Hadd is prevention of a crime by following the principle of
retaliation and keeps everyone in the limits prescribed by Allah.
To object of Tazir is reformation and correction of the offender.

Procedure:
The procedure of trial in Hadd is complicated.
The procedure of trail in Tazir is simple as according to same jurists judge
can even render judgement based on his own knowledge.
As To Right:
Violation of rights of Allah gives rise to hadd punishments.
Violation of rights of individual gives rise to hudud punishments.

Commuting Of Sentence:
The penality of Hadd cannot be commuted.
The penality of Tazir can be commuted

Pardon Of Sentence:
Pardon cannot be granted in Hudud cases.
Pardon may be granted in Tazir cases.

Operation Of Mistake:
Doubt or mistake has the effect of waiving the penalty of hadd.
Doubt or mistake has effect in Tazir.

Rule Of Evidence:
Evidence of women is not admissible in hudud cases.
The evidence of women is admissible in Taizr cases, but the nisab of one
man and two women has to be maintained.

Standard of evidence:
In Hudood, the standard of evidence is very high as to the number and
qualification of witnesses and the conditions under which hadd may be
imposed and any doubt would be sufficient to prevent the imposition of
hadd.
In Tazir, the standard of evidence is not so high.

Mention Of Offences:
Some jurists list seven hadd offences.
Zine (Zina)
Sariqah (Saraqa)
Hirabah (Haraba)
Qadhf (Qazf)
Shrub (Shurub)
Riddha
Baghy
Tazir offences have not be mentioned exclusively and they are
innumerable.

Discretion:
In Hudood crimes, the judge cannot exercise his discretion.
In Tazir. Judge or head of the state may exercise discretion.

Replacement:
Hadd punishments can be death with under Tazir.
In Tazir the punishment of Hudood cannot be enforced.

Conclusion:
To conclude, it can be said that the punishments of Hadd and Tazir is a
part of Islamic law. Hadd was prevalent in Arabia before the promulgation
of Islam and it is prior to the concept of punishment as Tazir. In Pakistan,
Tazir and Siyasah are both classified under the heading of Tazir. While the
law of Hudood is enforced under the Huddod Ordinance law.

Difference between Crime and Tort:

It is very difficult to draw a clear-cut distinction between a crime and a
tort. A tort today may be a crime tomorrow and vice versa. Tort is a
private wrong or infringement of a civil right while public wrongs are
violations of rights.
If the offence is serious, it may be treated as crime, and if it is not, it may
be treated as tort.
Definition of Crime: Crime is an illegal act or omission prohibited by
and punishable at law, and for which a special procedure is provided at
law to punish the offender.
Definition of Tort: Tortuous liability arises from the breach of a duty
primarily fixed by law; this duty is towards persons generally and its
breach is repressible by an action of un-liquidated damages.

Intention of Wrongs:
Crime is an unlawful act or default which is an offence against the public
and renders the person guilty of the act or default liable to legal
punishment. While a crime is often also an injury to private person, who
has a remedy in a civil action, it is an act or default contrary to the order,
peace, and well-being of society that a crime is punishable by the state.
Action under mistake is not a crime. For example, a policeman goes to
arrest A, but actually he arrests B, thinking to be A. since he has not guilty
mind so he is not responsible, while mistake is not considered in tort at
all.