Is the Right to Compounding of Ta‘zīr Inheritable? Analysing the Provisions of Statutory Law, Case Law and Islamic Law in Pakistan

Abstract

This article critically evaluates the ruling of Honorable Supreme Court of Pakistan in Muhammad Yousaf v The State where the apex Court observed that:

1) the concept of ta‘zīr is secular in origin;

2) it is derived from Anglo-Saxon traditions;

3) ta‘zīr is committed against the State and the society; and

4) the right to compounding of an offence punishable with ta‘zīr does not devolve to the heirs of a deceased victim.

The article presents a fair assessment and evaluation of these observations by the apex Court from the perspective of Islamic law. It concludes that the concept of ta‘zīr, by its nature or origin, is neither a secular law nor it has been derived from the Anglo-Saxon traditions. Instead, ta‘zīr has always been a part and parcel of the Islamic criminal justice system. Furthermore, the right to compounding of ta‘zīr offence depends on the nature of the offence itself, that is, whether the offence is against the State or society at large, or against (an) individual(s). Most importantly, the article finds that in cases where the offence is against an individual, the right to compounding of a ta‘zīr offence is inheritable by the heirs of a deceased victim just as any other inheritable property.

Keywords: Ta‘zīr; Ḥadd; Qiṣāṣ; Compounding; Pakistan Penal Code