Qatal or murder

Qatal or murder defined as causing death or killing a human being by human

being. There are two broad categories of murder, i.e., lawful murder and
unlawful murder.

Lawful murder is divided into three kinds as follows:

1. Accidental: 2. Justifiable: 3. Excusable:

There are four types of unlawful murders as defined in Qisas and Diyat Ordinance: 1

1. Qatal-i-Amd or intentional murder S. 300: There are five essential

ingredients of Qatal-i-Amd, that are:

a) Causing death of human being;

b) Death should be caused by an act;

c) There must be bodily injury with intention;

d) The act in the ordinary course of nature is likely to cause death; and

e) Knowledge of dangerous act and can cause death.

Further death should be direct result of the injury inflicted to deceased.

Punishment: There are five possible penalties:

a) Death as Qisas;

b) Death or life imprisonment as Taazir;

c) Imprisonment for twenty-five years where Qisas is not applicable. It is

inapplicable in the cases of minors, pregnant women, older people, person on
bed of death etc.; or

d) Imprisonment as under Ikrah-I-tam; or

e) Ikrah-I-naqis shall be punished in one of the three ways mentioned

above, whichever suits.

Qisas means to copy the other or to follow the path followed by other, or act
like the act of another. It is infliction of similar injury to the convict.

ISLAMIC JURISPRUDENCE 1|Page

Qisas is not applicable:

1. Where offender dies before the enforcement of Qisas;

2. Where right of Qisas is waived off by any Wali;

3. Where the right of Qisas devolves on the offender; and

4. Where the right of Qisas devolves on the person who has no right of Qisas
against the offender.

Qisas is not levied on the following four persons:

1. Where offender is minor;

2. Where offender is insane;

3. Where the victim is child of offender, or grandchild, or how-low-so-ever.

4. Where any Wali of the victim is direct descendant how-low-so-ever.

2. Qatal Shibe-i-Amd S. 315: It is also called culpable homicide not

amounting to murder. If act caused death is done with intention of causing
death or bodily injury as is likely to cause death, the punishment will be
greater.

If act caused death is done with knowledge that it is likely to cause death but
without intention to cause death, the punishment will be lesser.

The essential ingredients are:

a) Causing death of a human being;

b) There was an intention to cause harm on body or mind;

c) By means of weapon or an act; and

d) Act is not likely in ordinary course to cause death.

Punishment of culpable homicide not amounting to murder is Diyat, or

imprisonment upto 14 years, or both.

ISLAMIC JURISPRUDENCE 2|Page

3. Qatal-i-Khata S. 318: Ingredients of this offence are:

a) Causing death of a human being;

b) Causing death of a human being unintentionally;

c) Death by mistake of fact; and

d) Death by mistake of act.

Punishment of this murder is obligatory. Sentence of Diyat and imprisonment

for five to ten years may be awarded if the act is rash and negligent.

4. Qatal-i-Bis-Sabab S. 321: Ingredients are as follows:

a) Causing death of a human being;

b) Unintentionally;

c) By an unlawful act; and

d) Unlawful act causes death.

It is punishable with Diyat.

ISLAMIC JURISPRUDENCE 3|Page

Hadd and Tazir? How many hadd offences are there in Islam?.

Introduction: In Islamic law there are two kinds of punishments are given by
Islamic law which is Hadd and Tazir. Hadd refers to punishment for offenses as
mentioned in Holy Quran and judge can’t change them. Tazir refers to
punishment for offences at the discretion of the judge. Aim or objective of
such kind of punishments is to reformation of criminal and disgracing them

Meaning of Hadd: Literal meaning of the Word HADD is limit

Definition of Hadd: Legally Hadd means those punishments whose limit has
been defined in the Holy Quran and Hadith

Meaning of Tazir: Literal meaing of the word Tazir is “ To Punish”

Definition of Tazir: Legally Tazir means those Punishments “where Judge is

authorized to fix the nature of punishment which may be fine, death,
imprisonment, compensation etc against violation of individual rights.

List of Hadd offences Some jurists have presented its seven kinds which are

1. Unlawful sexual intercourse: zina in Islamic is unlawful sexual relations

between Muslims who are not married to one another through a nikah.

Proof of Zina: Offence should be proved by testimony of four eligible

witnesses who present evidence of actual penetration (Dakhool) Or accused
(Mulzim) must confess four times

Punishment of Zina: A. In case of Married In case of married the punishment

for zina is death by stoning

B. In case of Un-married In case of non-married, the punishment is 100 lashes

2: Defamation: Any Person who is competent and adult whether male or

female, slave or free, falsely charges unlawful sexual intercourse without
eyewitness is liable for Qadf.

Proof of Defamation: Offence should be proved by confession Or testimony

of two adult male free Muslims

Punishment of Defamation: Punishment for Qazf is 80 stripes for free person

And 40 stripes for slave

ISLAMIC JURISPRUDENCE 4|Page

3: Drinking of Wine: Muslims are not allowed to drink wine because it will be
considered a sin to have a beer whatever the quantity and this is punishable
act

Proof of drinking wine: Crime should be proved by two adult male eligible
Muslims

4. Theft: This is the action or crime of stealing. If offender takes something

from custody of safe place By stealing property with the value of ¼ dinar
according to majority. He should be punished for theft by Hadd

Punishment: Cutting of right hand from joint of wrist if theft is committed first
time

5. Robbery: The taking of money or goods from the possession of another by

force It may be robbery from travelers who are far away from home It may
be armed entrance into a private home

Punishment: Death by beheading (Sar Qalam Krna) Cutting off hands or foot
Life Imprisonment

6. Apostasy: Act of converting to another religion, by a person who was born in

a Muslim family or who had previously accepted Islam after awareness of
penalty which is death for men and physical punishment for women

7. Rebellion: Rebellion is an act of armed resistance against state and it also

comes into the Hadd , its punishment is death or life imprisonment

Difference between Hadd and Tazir:

Being Muslims, it is obligatory(lazmi) for us to accept wholeheartedly all the

tenets of Islam. Hadd crimes are crimes against ALLAH’s Law. Tazir crimes are
crimes against society. Islam has defined two kinds of punishment namely
Hadd ,Tazir. Punishments for Hadood are integral part of Islam which can’t be
reduced by Judge. In Tazir crimes, judges are authorized to fix the nature of
punishment on their own discretion (Sawabaydeed) Following are the some
point of distinction between hadd and tazir

1. As to Object: The object is hadd is prevention of a crime by following the

principles laid down in the Quran and limits prescribed by ALLAH The object
of Tazir is reformation and correction of the offender

ISLAMIC JURISPRUDENCE 5|Page

 2. As to procedure: The procedure of trial in Hadd is complicated The
procedure of trial in Tazir is Simple, according to some jurists, Judge can
judgment on basis of his own knowledge

3. As to Right: Violation of rights of ALLAH gives raise to Hadood Punishments

Violation of rights of Individual gives raise to Tazir Punishments

4. Change of Sentence: The penalty of Hadd can’t be commuted The

penalty of Tazir can be commuted

5. Pardon of Sentence : Pardon can’t be granted in Hadood cases Pardon

may be granted in Tazir cases

6. Operation of Mistake: Doubt or mistake can effect the penalty of Hadood

cases Doubt or mistake can’t effect the penalty of Tazir cases

7. Rule of testimony: The evidence of women is not acceptable in Hadood

Cases The evidence of women is acceptable in Tazir cases, but the nisab of
one man and two women will have to keep in view

8. Standard of evidence: In hadood ,the standard of evidence is so high as to

number, qualification and conditions of witness because any doubt can
prevent the implementation of hadd punishment In Tazir,Standard of
evidence is not so high

9. Mention of Offences: Some jurists listed seven hadd offences. 1. Murder

2. Apostasy from Islam 3. Robbery 4. Theft 5. Adultery 6. Defamation 7.
Rebellion 8. Alcohol drinking

Tazir offences has not been mentioned because they are innumerable (Angint)

10. As to discretion: In Hadood crimes ,judge can’t exercise his

discretion(Raye/Sawabaydeed) In Tazir crimes, Judge can exercise his
discretion

11. Replacement: Hadd punishment can be dealt with under Tazir In Tazir
the punishment of Hadood can’t be enforced

8) Conclusion : Punishment for Hadd and Tazir is part of Islamic law. Hadd was
implemented in Arabic before promulgation (Ishaat) of Islam as Tazir in
Pakistan. Islamic law does have separate courts for Muslims for RELIGIOUS
CRIMES. Non-religious courts for other criminal and civil matter. Objective of
Islamic law and courts to secure the people of society from offenders

ISLAMIC JURISPRUDENCE 6|Page

What is Hurt and its different kinds? Discuss in details.

1) Introduction: When someone causes an injury to any person or

dismembers any organ of the body of any person, without causing his death, is
called hurt. In case of qatal, the victim gets expire but in case of hurt, victim
remains from death. In case of hurt, various organs and parts of human body
have been defined separately. All injuries have different punishments
according to the nature of hurt

2) Meaning of Hurt: The term hurt is a legal term which means “to cause
physical pain to somebody”

3) Definition of hurt: Hurt is one of the criminal act which causes harm to
human body other than death

4) Essentials of hurt 1) Causing pain, Harm or injury 2) Causing Disease 3)

Causing disabling of any organ without death 4) Causing dismembering of any
organ without death

5) Kinds of hurt

1. Itlaf-e-Udw: When someone dismembers any organ of the body of any

other person without causing his death is called itlaf-e-udw

Punishment: The offender will be punished with Qisas but where Qisas is not
executable, the offender will be punished with imprisonment which can be up
to ten years as tazir

2. Itlaf-i-Salahiyat-i-Udw: When someone destroys the power of any organ of

the body of any other person without causing his death is called iflaf-e-
Salahiyat-Udw

Punishment: in this case, the offender will be punished with Qisas but where
Qisas is not executable, the offender will be punished with imprisonment
which can be up to ten years as tazir

3. Shajjah When someone causes harm on the head or face of the any other
person without causing his death, which does not amount to itlaf-e-udw and
itlaf-e-salahiyat-e-udw, is called Shajjah

Kinds and Punishments For Shajjah (‫) شجہ‬:

1. Shajjah-e-Khafifa: When someone causes harm by weapon on the face or

head of any other person without exposing the bone of victim

ISLAMIC JURISPRUDENCE 7|Page

 Punishment For Shajjah Hafeefa ( ‫) شجہ خفیفہ‬:

The guilty of Shajjah Hafeefa will be held for “Zama’n” (‫ ) ضمان‬and also the
guilty would get imprisonment of either description which can be up to
TWO years.

2. Shajjah-e-Mudihah: When someone causes harm by weapon on the face

or head of any other person, but bone of the victim is exposed

Punishment For Shajjah Mozzaha ( ‫) شجہ موضحہ‬:

The guilty of Shajjah Mozzaha would be held for “Qisa’s” (‫ ) قصاص‬in

consultation with the authorized medical officer and if, keeping in view the
Islamic principles of equity (‫) مساوات‬, the principle of Qisa’s cannot be
implemented then the guilty would be held for “Arsh” (‫ ) ارش‬which would
be 5% of the “Diyyat” (‫ ) دیت‬and imprisonment up to FIVE years of either
description can be awarded as “Tazeer” (‫) تعزیر‬.
3. Shajjah-e-Hashima: When someone causes harm by weapon on the face
or head of any other person, resulting in fracture of bone of the victim
without dislocating it

Punishment For Shajjah Hashma ( ‫) شجہ ہاشمہ‬:

The guilty of Shajjah Hashma would be held for “Arsh” (‫ ) ارش‬which would
be calculated at 10% of “Diyyat” (‫ ) دیت‬and would also get imprisonment
up to TEN years of either description as “Tazeer” (‫) تعزیر‬.
4. Shjjah-e- Munaqillah: When someone causes harm by weapon on the face
or head of any other person, resulting in fracture of bone of the victim
with dislocating it

Punishment For Shajjah Manqla ( ‫) شجہ منقلہ‬:

The guilty of Shajjah Manqla would be held for “Arsh” (‫ ) ارش‬which would be
calculated at 15% of “Diyyat” (‫ ) دیت‬and would also get imprisonment up to
TEN years of either description as “Tazeer” (‫) تعزیر‬.

5. Shajjah-e-Aima: When someone causes harm by weapon on the face or

head of any other person, resulting in fracture of the skull of the victim,
where wound touches the membrane of the brain

ISLAMIC JURISPRUDENCE 8|Page

Punishment For Shajjah Ama’ ( ‫) شجہ آمہ‬:

The guilty would be held for “Arsh” (‫ ) ارش‬which would be calculated at half
the “Diyyat” (‫ ) دیت‬and would also get imprisonment up to TEN years of
either description as “Tazeer” (‫) تعزیر‬.

6. Shajjah-e-Damiyah: When someone causes harm by weapon on the face or

head of any other person, resulting in fracture of the skull of the victim,
where wound breaks the membrane of the brain

Punishment For Shajjah Damgha ( ‫) شجہ دامغہ‬:

The guilty of Shajjah Damgha would be held for “Arsh” (‫ ) ارش‬which would be
calculated at half the “Diyyat” (‫ ) دیت‬and would also get imprisonment up to
FOURTEEN years of either description as “Tazeer” (‫) تعزیر‬

337-B. Jurh:

(1) Whoever causes on any part of the body of a person, other than the head
or face, a hurt which leaves a mark of the wound, whether temporary or
permanent, is said to cause jurh.

(2) Jurh is of two kinds, namely:-

Jaifah : Whoever causes jurh in which the injury extends to the body cavity of
the trunk, is said to cause jaifah.

Punishment for jaifah : Whoever by doing any act with the intention of causing
hurt to a person or with the knowledge that he is likely to cause hurt to such
person, causes jaifah to such person, shall be liable to arsh which shall be one-
third of the diyat and may also be punished with imprisonment of either
description for a term which may extend to ten years as ta'zir.

Ghayr-jaifah : Whoever causes jurh which does not amount to jaifah, is said to
cause ghayr-jaifah.

kinds of ghayr-jaifah, namely

a) damihah (b) badi'ah (c) mutalahimah (d) mudihah (e) hashimah ;

and (f) munaqqilah

Whoever causes ghayr-jaifah— (i) in which the. Skin is ruptured and bleeding
occurs, is said to cause damiyah;

ISLAMIC JURISPRUDENCE 9|Page

(ii) by cutting or incising the flesh without exposing the bone, is said to cause
badi'ah;

(iii) by lacerating the flesh, is said to cause mutalahimah',

(iv) by exposing the bone, is said to cause mudihah;

(v) by causing fracture of a bone without dislocating it, is said to cause

hashimah; and

(vi) by fracturing and dislocating the bone, is said to cause munaqqilah.

Punishment of ghayr-jaifah : Whoever by doing any act with the intention of

causing hurt to any person, or with the knowledge that he is likely to cause
hurt to any person, causes"

(i) damihah to any person, shall be liable to daman and may also be punished
with imprisonment of either description for a term which may extend to one
year as ta'zir,

(ii) badi'ah to any person, shall be liable to daman and may also be punished
with imprisonment of either description for a term which may extend to three
years as ta'zir,

(iii) mutafahimah to any person, shall be liable to daman and may also be
punished with imprisonment of either description for a term which may extend
to three years as ta'zir;

(iv) mudihah to any person, shall be liable to daman and may also be punished
with imprisonment of either description for a term which may extend to five
years as ta'zir,

(v) hashimah to any person, shall be liable to daman and may also be punished
with imprisonment of either description for a term which may extend to five
years as ta'zir, and

(vi) munaqqilah to any person, shall be liable to daman and may also be
punished with imprisonment of either description for a term which may extend
to seven years as ta'zir.

ISLAMIC JURISPRUDENCE 10 | P a g e
Q) What is legal capacity and how it is completed?
1. Introduction
According to the Muhammadan theory, every Muslim is clothed inherently
with legal capacity, which is privileged as well as responsibility this is very
important as the entire general defense in criminal law and possession of
contractual capacity covered under this topic. For having legal capacity there is
a number of conditions that must be fulfilled before the law can operate for or
against a person.
2. Meaning of legal capacity
In Arabic, legal capacity is called dhimma. It may be defined as.
“Dhimma is defined as the quality by which man becomes fit for what he is
entitled to and what he is subject to”.
3. Kinds of legal capacity
It is of two kinds.
(i) Respective legal capacity
(ii) Active legal capacity
(i) Respective legal capacity
It means the capacity for acquisition both rights and obligations, e. g a child yet
to be born has also some capacity which enables him to inherit.
(ii) Active legal capacity
It means the capacity for the exercise of rights and the discharge of
obligations.
4. Types of legal capacity
Muslim jurists divide legal capacity into three types.
a. Complete capacity
Complete respective capacity is found in a human being after his birth which
makes him eligible for the acquisition of all kinds of rights and obligations.
Complete active capacity is established in a human being when he or she
attains full mental development and acquires the ability to discriminate.
b. Deficient capacity
It is that where the basis of legal capacity is not fully developed e. g. the
unborn child, minor.

ISLAMIC JURISPRUDENCE 11 | P a g e
 c. Imperfect capacity
It is that where the basis of legal capacity are present such as being a human
and discretion but some external attribute does not permit the recognition of
the legal validity of certain acts. E. g. evidence of a woman, slaves etc.
5. The stages leading to complete legal capacity
The first stage is from birth till the attainment of partial discretion, which is
considered to be the age of seven years.
The second stage commences from the age of seven and continues up to
actual puberty or the legal age of puberty, whichever is earlier.
The final stage commences from actual physical puberty or the legal age
determined for it, whichever is earlier. On reaching this stage the individual is
assigned complete capacity for execution and becomes eligible for each kind of
khitab.
Conclusion
To conclude, I can say, that legal capacity of a person in his fitness for the
application of law to his actions. There are some circumstances which impair
legal capacity in a general way by their effect on man’s faculties.

ISLAMIC JURISPRUDENCE 12 | P a g e
Q) What are the defects in its legal capacity and its causes?
1. Introduction
According to the Muhammadan theory, every Muslim is clothed inherently
with legal capacity, which is privileged as well as responsibility this is very
important as the entire general defense in criminal law and possession of
contractual capacity covered under this topic. For having legal capacity there is
a number of conditions that must be fulfilled before the law can operate for or
against a person.
2. Meaning of legal capacity
In Arabic, legal capacity is called dhimma. It may be defined as.
“Dhimma is defined as the quality by which man becomes fit for what he is
entitled to and what he is subject to”.
3. Causes of defective legal capacity
The causes affecting capacity are found in those factors that prevent capacity
for Acquisition and capacity for execution, from taking full effect.
(I) Types of causes
The jurists divide the causes of defective capacity or that effects legal capacity
into two kinds.
(a) Natural (Samawi)
(b) Acquired (Maksuba)
a. Natural causes that affect legal capacity
These are causes that are beyond the control of man.’
(I) Minority
It is the state or condition of a human being after birth and before puberty.
(A) Acts of minor
The position of a minor for his acts from the legal point of view is the same in
Islamic law as in English law. The acts of minor may be discussed under the
following heads.
(i) Financial transactions
A minor can enter into financial transactions, through his guardian if it is for his
benefit. He is also liable to any damage caused to another’s property, and for
the maintenance of the wives and near relatives.

ISLAMIC JURISPRUDENCE 13 | P a g e
(ii) Criminal liability
A minor cannot be punished for his acts which turn into offenses.
(iii) Religious liability
The Ibadat is not obligatory on the minor. He is not bound to perform acts of
worship.
(II) Insanity
The legal capacity of an insane person except as to acts done in lucid intervals
is affected in the same way as that of an infant without discrimination. He has
no liability for ibadat or punishments and all his transactions are void.
(III) Idiocy
An idiot is a person who is confused in his speech and peaks sometimes like a
sensible man and sometimes like a Lunatic. He can be permitted by his
guardian to undertake some transactions.
(IV) Sleep
Since man has no control over sleep and cannot use his senses during a state of
sleep, therefore he would not be legal, liable, e. g. If a man falls on a child in
sleep and kills him, there is no liability for punishment.
(V) Forgetfulness
This is a state of lack of memory which is brought about by nature and is not
attributable to man’s acts. A man is not liable in the matters of right of Allah e.
g. eating during fast. But he is certainly liable in the mattes of the right of men
e. g. if he causes injury to another person by violating a private right, his legal
capacity will be considered to be intact.
(VI) Death illness
This is a condition in which the mind of a sick person is dominated by the fact
that he will die because of his illness. It has no effect on the capacity for
acquisition or on the capacity for execution. A person suffering from death-
illness is prohibited from entering into transactions that are in excess of one-
third of his wealth.
Conclusion
To conclude, I can say, that legal capacity of a person in his fitness for the
application of law to his actions. There are some circumstances which impair
legal capacity in a general way by their effect on man’s faculties.

ISLAMIC JURISPRUDENCE 14 | P a g e
Q) What are the legal consequences of various defective legal capacities?
1. Introduction
According to the Muhammadan theory, every Muslim is clothed inherently
with legal capacity, which is privileged as well as responsibility this is very
important as the entire general defense in criminal law and possession of
contractual capacity covered under this topic. For having legal capacity there is
a number of conditions that must be fulfilled before the law can operate for or
against a person.
2. Meaning of legal capacity
In Arabic, legal capacity is called dhimma. It may be defined as.
“Dhimma is defined as the quality by which man becomes fit for what he is
entitled to and what he is subject to”.
4. Acquired causes that affect legal capacity
These are those causes that are created by man or in which human will and
choice are the basic factors.
(I) Intoxication
Intoxication temporarily suspends the proper functioning of the mental faculty.
It does not affect the capacity for acquisition and a drunken person is held
liable for the destruction of life and property and also for all obligations for
maintenance etc. as far as his capacity for execution concerned, he is liable for
all acts if he voluntarily drinks and legal capacity is negated if forced to drink.
(II) Jest
When a person uses words without intending to convey their primary or
secondary meanings, he is said to speak in jest. Jest has no effect on the effect
on the legal capacity.
(III) Coercion and duress
It is a situation in which one is forced to do something without his willingness.
It is of two kinds.
(i) Constraining
It consists of a thread to destroy a man’s life or limb.

ISLAMIC JURISPRUDENCE 15 | P a g e
 (ii) Non-Constraining
It is exercised by imprisoning confining or beating a man.In the case of non-
constraining coercion, a man should not choose to break the law. Coercion
does not affect capacity for acquisition and a person under coercion may be
held liable for committing of Zina or murder under coercion but it does affect
capacity for executing and transactions that depend upon consent like sale
mortgage etc. are irregular.
(IV) Ignorance of law
Generally, ignorance of the law is not held to be an excuse, for it is the duty of
every Muslim to make him acquainted with it.
Exception:
When there are doubts regarding a law or there are lent grounds in a particular
case for an individual to hold an erroneous view with respect to it, such law is
not applicable to him. For instance, if an infidel belonging to non-Muslim state
after embracing Islam happens to come to a Muslim state after embracing
Islam happens to come to a Muslim country and there drinks intoxicating
liquor not knowing that it is forbidden by the religion, he will not incur the
punishment.
(V) Ignorance of facts
It is regarded as an excuse in law. For instance, a pre-emptor right will not be
lost; if he failed to make a demand through ignorance of the fact that his co-
owner or neighbor had sold the property subject to pre-emption.
(VI) Insolvency
If a person becomes insolvent, that is his assets; fall short of his debts and
liabilities, when a court of competent jurisdiction so declares, his legal capacity
becomes defective in the eye of law.
Conclusion
To conclude, I can say, that legal capacity of a person in his fitness for the
application of law to his actions. There are some circumstances which impair
legal capacity in a general way by their effect on man’s faculties.

ISLAMIC JURISPRUDENCE 16 | P a g e
Q) Define the Act and describe its types?

Acts
Acts are first of a fall, classified into natural acts (hissi) and juristic acts
(shara’i). Natural Acts include acts of the body or physical acts (af’alu’l jawarih)
as well as acts of the mind (af’alu’l).
1) Natural Acts and Juristic Acts

1. Mental Acts: Act of mind means such as believing, acknowledging,

intending, wishing, and the like. Human tribunals cannot deal with an act of
the mind by itself, for the simple reason that they cannot seize upon it.
Suppose a man acknowledges in his mind a multiplicity of gods instead of
one God, the magistrate is powerless to deal with the matter and the
Offender can only be held responsible by God himself.

2. Physical Acts: an act of the body consists of the motion of some limb of the
human body, such as utterance of words, eating, drinking, striking, and so
on; one of the obvious properties of such an act is that it is perceptible to
persons other than the doer. Physical acts are broadly divisible into:

a. Acts of utterance (qaul) and acts of conduct (amal or fi’l):

Utterances consist of spoken words, or of such other expressions of the
will as are intended to be substituted for spoken words, such as writings,
gestures, etc.
b. Acts of conduct:
Conduct include all other motions of the body or a limb such as
walking, hunting, striking, threatening
c. Acts of omission:
Omission means to discharge obligations (tark), such as default in
fulfilling one’s contracts.
Juristic Act: A juristic act may be described as an aggregate of more than one
natural act of one or more persons which the law treats as one act, such as an
act of faith or belief, salat or prayer, a contract of sale or hire, an offense of
sedition and the like.
2) Voluntary and Involuntary :
All voluntary acts are called tasarrufat which means the expenditure of one’s
energy or will, and tasarrufat’ush - Shari‘, are acts according to the shara‘, or
lawful acts. An involuntary act is that which is performed with constraint, or
with repugnance, or without the will to do it. An action is involuntary then,
which is performed under duress.

ISLAMIC JURISPRUDENCE 17 | P a g e
3) Originate, Inform, Believe:
Juristic acts generally are divisible into originating acts (insha’at), information
(akhbarat), or acts of faith (I’tiqadat). Originating acts and information’s are
physical acts, while acts of faith are mental acts. The object of an originating
act is the production of a legal result, such as sale, marriage, divorce,
manumission, etc. and the Object of information is to describe an event, such
as testimony (shahadut) of a witness in Court, admission (iqrar) which is
testimony against one’s self, narration of a tradition and the like.
4) Acts creating Rights and acts extinguishing:
Lawful acts generally are again divided into Acts creating ithbatat or creative
acts, that is, acts creating rights, for example, a sale, a lease, a gift, etc. , and
(istaqatat) or acts extinguishing rights, such as release, divorce, manumission,
etc.
5) Acts which can be undone and acts which cannot be undone:
Originating acts are of two kinds, those whose legal effect can be undone, that
is revocable acts such as a sale. Lease, etc., and those whose legal effect
cannot be undone, that is irrevocable acts such as divorce, manumission, and
vow.
6) Contract and acts annulling contracts:
Originating acts as creating legal relations are called uqubat or contracts and
acts canceling or annulling contracts are called fusukhat such as avoidance of a
sale in the exercise of an ‘option’.
7) Acts which are causes of legal assumption :

1. Acts in respect of which there is a pronouncement of the law and which are
also the causes of another command of the law. Example: Whoredom is a
physical act and is pronounced by the Muhammad a law to be forbidden
(haram), and it further gives rise to the sentence of hadd;

2. Acts in respect of which there is a pronouncement of the law, but which do

not form the cause of another command of the law. Example: Eating, which
is regarded in some cases by the law as being obligatory (wajib) as when
eating is necessary for the preservation of life and in some cases as being
forbidden, for instance, eating during a fast. But eating itself is not the
cause of a legal injunction.

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8) Acts classified with respect to their religious purpose:
» Fard – Obligatory: An act commanded by Allah in the Holy Qur'an is known as
Fard. The following explains a Fard in detail:
a. An act that is obligatory to be executed
b. It has been proven by rigorously authenticated texts
c. The denial of any Fard renders one to come out of the folds of Islam.
» Wajib – Necessary: An act that is almost as compulsory as a Fard. The
Messenger of Allah never omitted it. It is a graded second, below a Fard in its
necessity.
a. An act that is compulsory to do.
b. It is proven by religious arguments through ijtihad.
c. One who denies a Wajib is misguided.
d. If one omits a Wajib without any valid shari'i reason, then he is a
transgressor and liable for the punishment of Hell.
» Sunnat-e-Mu'akkadah: "Sunnat" generally means: an act done or liked by
the Messenger of Allah in relation to worship. One shall gain reward for
performing a Sunnah, but there is no sin of on omits it. However, to continually
omit it is a sin, and if one shows dissatisfaction to a Sunnah, then this is kufr
(disbelief).
» Sunnat-e-Ghayr Mu'akkadah:
a. If it is performed one shall reap the reward.
b. The Messenger of Allah had performed such an act but also omitted it
without any reason.
c. To omit a Sunnat-e-Ghayr Mu'akkadah is disliked in the Islamic Law
(Shari'ah). However, one is not punished for this.
» Mustahab – Desirable Acts:
a. An act that is appreciated by the Sacred Islamic Law (Shari'ah)
b. There is no harm if one omits it
c. One gains reward for doing it, but one is not punished for omitting it.
» Mubah:
a. An act that is neither commanded nor prohibited by the Shari'ah.
b. There is no reward for doing it and no punishment or omitting it.
» Haram – Unlawful:
a. Totally forbidden in Islam
b. Proven by rigorously authenticated texts.

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c. Anyone who denies something proven from the Qur'an and Hadith to be
Haram becomes a kafir.
d. If this act is committed deliberately and intentionally, even once, then such
a person is a transgressor (fasiq) and has committed a major sin (Gunah-e-
Kabira). Thus, such a person shall be punished.
e. To refrain from such acts is rewarded.
f. Haram is considered the opposite of Fard.
» Makruh-e-Tehrimi: "Makruh" generally means something that is not
desirable i.e. something that is disliked by the Islamic Law.
a. Makruh-e-Tehrimi is something that is essential to refrain from.
b. To do an act that is Makruh-e-Tehrimi is a sin and against the commands of
the Shari'ah.
c. Anyone who does it is a Fasiq and will be punished.
d. There is a reward to refrain from such acts.
» Makruh-e-Tanzihi:
a. An act that is disliked by the Shari'ah.
b. If this act is done, then there is no sin or punishment. However, it is bad to
make it a habit of doing such an act.
c. One gains reward for not doing it.
d. It is considered the opposite of Sunnat-e-Ghayr Mu'akkadah.

9) Classification of acts with reference to their purpose:

A juristic act is said to exist if it possesses its essential elements (arkan) and
conforms to the necessary conditions (shara’it) insisted on by the law. If it also
possesses such qualities of an extrinsic character as the law takes notice of it is
said to be legally correct (Sahih) otherwise it is regarded as faulty or vitiated in
law (fasid) But if a juristic act be wanting in any of its essential elements or
conditions it is called batil or null and void.
10) Secular transactions are constituted, operative and binding:
A juristic act of the nature of a secular transaction Constituted, (mu’amilat) is
said to be constituted (muna‘qad) if it possesses the necessary elements of
such transaction. An act of this class is said to be Operative (nafid) if it has the
desired legal effect, otherwise, it is called inoperative. A transaction is said to
be binding (lazim), if the person entering into it cannot get rid of its legal
effect, such as a valid waqf contrary to a bequest which the testator is always
at liberty to revoke.

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Q) Define rights and describe its type?
1. Introduction
Islam is a complete code of life. It has prescribed rules for the regulation of
individual as well as collective life. These rules are regarding rights of different
men in different walks of life. These rights reveal what is beneficial and useful
and it also corresponds to a duty on some person.
2. Classification of rights
Rights having regard to the person of inherence are principally classified by
Muslim jurists into following kinds.
(i) Rights of Allah
(ii) Rights of individual
(iii) Rights of community
(iv) Rights of the head of state

3. Public rights
Public rights are those rights, which involve benefit to the community at large
and not merely a particular individual. These are referred to as rights of Allah,
because of the magnitude of the risks involved in their violation and of the
comprehensive benefits which would result from their fulfillment.
1) Rights of Allah

(i) Acts of devotion, pure and simple (ibadat) namely, faith or iman and the
consequential duties that is the saying of prayer (salat) payment of the
poor-rate (zakat), fasting and pilgrimage (hajj) and jihad.
(ii) Punishments (uqubat) of a perfect nature (kamilatun) attached as a
consequence to the commission of certain offenses, for example,
punishments known as hadd, for theft, adultery, drunkenness, and
slander.
(iii) Punishments of an imperfect nature (Qisas) such as depriving a man who
has killed another, of his right of inheritance, if he is an heir of the
person he has killed.
(iv) Matters which have elements of both devotion and punishment, such as
atonement for the non-discharge of certain obligations.
(v) Acts of devotion involving an impost consisting in an obligation to make
payments out of one’s possession. Such as the giving of certainly
appointed alms at Eid-ul-Fier.

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(vi) Imposts having the sense of worship, such as Ushr by a Muslim owner of
land certain description.
(vii) Imposts having a sense of punishment such as Khiraj and land tax,
originally leviable from non-Muslim.
(viii) Acts or a right which exits by themselves. These are the rights in respect
of which there are the rights in respect of which there are no active
duties imposed on any particular individual, for example, one-fifth of the
booty obtained in religious wars which are reserved by law for
distribution among the poor.

2) Rights of the community:

These are the collective rights .it is a public right, not a private right. The right
which is for all e.g, security to your property, body, intellect, and religion.
3) Rights of the head of state:
To obey the people is the right of the head of the state. It is a public right in
which public interest prevails over private interest.
4. Private rights
Private rights are those rights which involve the benefit of an individual.
4) Rights of Individual
The right of the individual comes from by agreement and by law. E.g.:
(i) Rights to the safety of a person
(ii) Right to reputation
(iii) Rights of ownership
(iv) Family right-including
(a) Marital rights
(b) Rights of guardianship
(C) Right of children and poor relatives
(d) Right to succession and inheritance
(v) Right to do lawful acts
(vi) Right to contract

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 5) Witnesses for violation of rights:

a. Rights of Allah: If rights Allah are violated than for punishment there
should be credible and reliable witnesses. He should be male, Muslim,
reliable, adult, sane, credible for the witnesses of hudood violation.

b. Rights of the individual: If the rights of individual are violated there

should be 2 male or 1 male and 2 female as a witness. Who are not
mandatory to credible?

c. The right of the head of state: If rights of the head of state are violated
then in that case 1 female witness is sufficient.

6) General divisions of public and private rights

Public and private rights generally divided into the following classes.
(i) Independent and dependent rights
Independent rights are those which impose no corresponding obligation on
any particular individual, though it is a duty of all alike not to infringe it. In
English jurisprudence, it is called right in rem.
Dependent rights are those, which exist against a particular person who is
under towards the possessor of the right. In English jurisprudence, it is called
right in person.
(III) Original and substitutory rights
The jurists further classified rights into original and substitutory rights. For
instance, the right of God to require the performance of ablutions with water
before he says prayer is an original right, but in case of sickness, ablution by
rubbing one’s hands and face with earth is allowed as a substitute. In English
jurisprudence, this is called antecedent and remedial right.

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Q) Define obligation and define its types?
Obligation
Obligations having regard to their origination may be generally classified as
those arising
(1) By the implication of law (i) towards God or the State, for example,
Obligations to worship, to pay taxes, etc. ; (ii) towards individuals, such as
those arising out of family relations, namely, connubial, parental, filial, and
kinship and out of constructive trusts.
(2) Out of a man’s own acts of utterance that is, rights ex – contractu or by the
admission of another’s claim
(3) By reason of conduct infringing another’s rights relating to (i) personal
safety, (ii) the doing of lawful acts (iii) reputation, (iv) family rights, (v)
ownership and possession.
Obligations of the classes (1) and (2) relate to acts which are designated as
Obligatory (fard) and those of the class (3) arise by the commission of acts
which are forbidden (haram)
Discharge of obligations, specific and non-specific
The discharge of an Obligation may be either specific (ada) or substitutory or
non-specific (qada), it is specific when the very thing which is required has to
be carried out, and non-specific when what has to be carried out is something
similar to what is required. This classification holds good both as to Obligations
which are the right of God as well as of men.

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