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The Doctrine of Siy┐sah in the ╓anaf┘ Criminal Law and Its Relevance for the
Pakistani Legal System

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Islamic Studies 52:1 (2015) pp. 29–55 29

The Doctrine of Siy┐sah in the ╓anaf┘ Criminal Law

and Its Relevance for the Pakistani Legal System
MUHAMMAD MUSHTAQ AHMAD∗

Abstract
The paper argues that a clear understanding of the doctrine of siy┐sah in the ╓anaf┘
criminal law, an ignored area in the deleberations on Islamic criminal law in the
post-colonial world, is of vital importance in resolving the conflicts and
contradictions existing in the Pakistani laws. The basic contention of the paper is that
the classification of rights violated by a crime forms the backbone of the ╓anaf┘
criminal law the ignorance of which causes basic confusions. The paper shows that the
usage of term ta‘z┘r in ╓anaf┘ law covers a broad range of punishments: punishments
laid down by the ruler for offences generally, lesser punishment in cases of ╒ud┴d and
qi╖┐s offences and private disciplinary actions. The last of these categories relates to the
right of individual and as such it should be excluded from the domain of criminal
law. The remaining categories, siy┐sah and ta‘z┘r, relate to the right of the ruler and
they have almost similar consequences, except for the standard of proof and the limit
of punishment. The paper concludes that the doctrine of siy┐sah can offer better
solutions for the complicated problems of the Pakistani criminal justice system, such as
blasphemy, rape and pardon in murder cases as well as admissibility of the testimony
of women.

ι%π

Introduction
Siy┐sah is “the act of the ruler on the basis of ma╖la╒ah [protection of the
objectives of the law], even if no specific text [of the Qur’┐n or the Sunnah]

∗
The author wishes to acknowledge the debt of gratitude he owes to Imran Ahsan Khan
Nyazee, an authority on the ╓anaf┘ law and jurisprudence, whose critical comments on an
earlier draft greatly helped in improving it. Special thanks go to Ahmad Khalid, Judges’
Associate, Supreme Court of Pakistan, Pir Khizar Hayat, Advocate High Court, and Sadia
Tabassum, Lecturer in Law, IIUI, for their valuable suggestions as well as to the Editor, Islamic
Studies for his painstakingly editing the early drafts of the article. The author, however, remains
solely responsible for the content.
can be cited as the source of that act.”1 This authority if used within the
constraints of the general principles of Islamic law, is called siy┐sah ‘┐dilah (just
administration) making the directives issued by the ruler under this authority
binding on the subjects; on the other hand, the violation of these constraints
amounts to siy┐sah ╘┐limah (tyrannical administration) and such directives of
the ruler are invalid.2 The ╓anaf┘ jurists expounded this doctrine in the
context of criminal law and thus provided an effective tool for the smooth
functioning of the criminal justice system within the constraints of the general
principles of Islamic law. In the post-colonial world, however, scholars
working on the doctrine of siy┐sah have generally focused on the works of the
Sh┐fi‘┘ and ╓anbal┘ scholars3 and this has caused distortion in the original
doctrine of siy┐sah as conceived by the ╓anaf┘ school, a doctrine that divides
crimes into three major categories: ╒add, siy┐sah, and ta‘z┘r on the basis of
three different kinds of rights—of God, of community and of individual,
respectively—and then determined on the same basis the legal consequences of
crimes pertaining to the standard of evidence, the extent of punishment, the
enforcing authority and the power of pardon or compromise. The confusion
about siy┐sah in the ╓anaf┘ criminal law stems from two basic reasons:
equating the right of God with the right of the community and equating
siy┐sah with ta‘z┘r. This confusion can be found in the works of the later
╓anaf┘ jurists too, who in their eagerness to make their analysis
comprehensive, include in their classification categories that should be
analyzed separately. For example, while discussing the right of God they
conclude that everything is the right of God. That is correct when one
acknowledges the fact that all obligations and duties are claimed by the
Almighty and as such these are really His rights. This, however, does not help
in analyzing the categories of crimes. Similarly, calling disciplinary matters

1
Zayn al-‘└bid┘n b. Ibr┐h┘m b. Nujaym, al-Ba╒r al-R┐’iq Shar╒ Kanz al-Daq┐’iq (Beirut: D┐r al-
Ma‘rifah, n.d.), 5:11.
2
Mu╒ammad Am┘n b. ‘└bid┘n al-Sh┐m┘, Radd al-Mu╒t┐r ‘al┐ ’l-Durr al-Mukht┐r Shar╒ Tanw┘r
al-Ab╖┐r, ed. ‘└dil A╒mad ‘Abd al-Mawj┴d and ‘Al┘ Mu╒ammad Mu‘awwa╔ (Riyadh: D┐r
‘└lam al-Kutub, 2003), 6:20. For the scope of the general doctrine of siy┐sah, see A╒mad b.
‘Abd al-╓al┘m b. Taymiyyah al-╓arr┐n┘, al- Siy┐sah al-Shar‘iyyah f┘ I╖l┐╒ al-R┐‘┘ wa al-Ra‘iyyah,
ed. ‘Al┘ b.Mu╒ammad al-‘Imr┐n (Jeddah: D┐r ‘└lam al-Faw┐’id, n.d.).
3
For instance, see Fauzi M. Najjar, “Siyasa in Islamic Political Philosophy,” in Islamic Theology
and Philosophy: Studies in Honor of George F. Hourani, ed. Michael E. Marmura (Albany: State
University of New York Press, 1984), 92–110. Also see Bernard Lewis, “Siy┐sa” in In Quest of
Islamic Humanism: Arabic and Islamic Studies in Memory of Mohamed al-Nowaihi, ed. A. H.
Green (Cairo: American University in Cairo Press, 1984), 3–14. For a detailed analysis of the
various aspects of the doctrine of siy┐sah, see Muhammad Khalid Masud, “The Doctrine of
Siyasa in Islamic Law,” in Shari‘ah Today: Essays on Contemporary Issues and Debates in Muslim
Societies (Islamabad: Iqbal International Institute for Research and Dialogue, 2013), 248–279.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
31

ta‘z┘r, such as a father rebuking his minor son for not offering prayer, is a bit
odd because criminal law does not interfere with such purely private matters.
This paper, therefore, focuses on the classical manuals of the ╓anaf┘
School and first analyses the classification of rights in the ╓anaf┘ law that
determines the nature and consequences of various offences in the ╓anaf┘
system. The views of the later ╓anaf┘ jurists have been critically examined so
as to clarify the confusions about the meaning and scope of siy┐sah and ta‘z┘r.
It has been suggested that private disciplinary matters should be excluded from
the scope of criminal law and that ta‘z┘r should be brought under the broader
category of siy┐sah in accordance with the original position of the ╓anaf┘
School.

Comparing Offence and Siy┐

Siy┐sah
Modern scholars generally equate the right of God with the right of the
community. In this regard they may have been influenced by the binary
division of English law—public and private and therein lies the crux of many
problems. For instance, it is an established rule of Islamic law that the
government cannot commute or pardon a ╒add punishment because it relates
to the right of God. Had the right of God been the same as the right of the
community, the government would have the right to pardon the ╒add
punishment.
Under the English legal system, which Pakistan inherited from the British
Raj, legal wrongs are divided into two broad categories: civil and criminal.4
The former is violation of a private right while the latter is violation of a
public right.5 A wrong may be deemed as violation of both a private right and
a public right. Thus, at the same time it is both a tort as well as an offence—the
so-called “felonious tort.”6
The ╓anaf┘ law has an altogether different classification of rights. It
divides rights into three kinds: rights of individual, rights of community and
rights of God.7 All punishments in the ╓anaf┘ law are necessarily linked to
one or more of these rights. Thus, ╒ud┴d punishments are linked to the rights

4
J. Smith and B. Hogan, Criminal Law, 5th ed. (London: Butterworths, 1983), 17.
5
Ibid., 18–9.
6
A good example is that of defamation, which is considered both a tort and a crime. The
aggrieved party has both the right to seek damages from the defendant as well as to file a
criminal case against him and get him punished by the court (see Sections 499 and 500 of the
Pakistan Penal Code, 1860).
7
Modern scholars of Islamic law, in general, have classified rights into two categories: rights of
God and rights of individual (see ‘Abd al-Q┐dir ‘Awdah, al-Tashr┘‘ al-Jin┐’┘ ’l-Islam┘ Muq┐ranan
bi’l-Q┐n┴n al-Wa╔‘┘ (Beirut: D┐r al-K┐tib al-‘Arab┘, n.d.), 1:79).
of God, ta‘z┘r punishments are linked to the rights of individual and siy┐sah
punishments are linked to the rights of the community.
Looking into this classification, it becomes obvious that ╒add, ta‘z┘r and
qi╖┐╖ punishments cannot be equated to what is properly called “offence” in
the English law because it is related to violation of the right of community. In
other words, the nearest match in Islamic law for the concept of “offence” is
siy┐sah.8 Is it not surprising, then, that the modern discourse on Islamic
criminal law has generally ignored the doctrine of siy┐sah?

Siy┐sah in ╓anaf┘ Fiqh Manuals

Siy┐
The ╓anaf┘ jurists generally offer some passing remarks to the doctrine of
siy┐sah while elaborating the rules about ╒ud┴d, qi╖┐╖ and ta‘z┘r.9 By far the
most elaborate discussion on the doctrine of siy┐sah is found in Mu‘┘n
al-╓ukk┐m of ‘Al┐’ al-D┘n Ab┴ ’l-╓asan ‘Al┘ b. Ibr┐h┘m al-║ar┐blus┘
(d. 844/1440) who was a judge in al-Quds.10 Another important work is the
Ris┐lah of the great jurist of the thirteenth/nineteenth century ‘All┐mah
Mu╒ammad Am┘n b. ‘└bid┘n al-Sh┐m┘ (d. 1783 AH/1836 CE) on the issue of
blasphemy. The title of this ris┐lah is very suggestive: Tanb┘h al-Wul┐h wa ’l-
╓ukk┐m ‘al┐ A╒k┐m Sh┐tim Khayr al-An┐m aw A╒ad A╖╒┐bihi ’l-Kir┐m ‘alayhi
wa ‘alayhim al-╗al┐h wa ’l-╗al┐m [Wakeup Call for the Governors and Officials
on the Rules Applicable to the One Who Shows Disrespect for the Best of the
Creatures or Any of His Noble Companions (on him and them blessings and
peace].11 As the ╓anaf┘ School brings the offence of blasphemy committed by
a non-Muslim under siy┐sah, Ibn ‘└bid┘n provides interesting details of this
doctrine. He also refers to a few orders promulgated by different sultans at
various times and comments on their implications. This discussion has some
valuable material for understanding the ╓anaf┘ doctrine of siy┐sah.

8
The Ottoman rulers, for instance, prescribed various punishments for various offences
through what they called “q┐n┴n.” The fuqah┐’, such as Ibn ‘└bid┘n, validated those qaw┐n┘n on
the basis of the doctrine of Siy┐sah (see Mu╒ammad Am┘n b. ‘└bid┘n al-Sh┐m┘, Majm┴‘at al-
Ras┐’il (Damascus: al-Ma═ba‘ah al-H┐shimiyyah, 1325 AH), 1:348–357).
9
Sometimes they refer to it while discussing the law of war in the chapters on siyar (Ab┴ Bakr
Mu╒ammad b. Ab┘ Sahl al-Sarakhs┘, Shar╒ Kit┐b al-Siyar al-Kab┘r, ed. ╓asan Ism┐‘┘l al-Sh┐fi‘┘
(Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1997), 1:147).
10
‘Al┐’ al-D┘n Ab┴ ’l-╓asan ‘Al┘ b. Ibr┐h┘m al-║ar┐blus┘, Mu‘┘n al-╓ukk┐m f┘ m┐ Yataraddad
bayna ’l-Kha╖mayn min al-A╒k┐m (Cairo: n.p., n.d.), 207–217. Mu╒ammad Am┘n b. ‘└bid┘n
al-Sh┐m┘ says that if a person wants to have a deep understanding of the doctrine of siy┐sah, he
should carefully study the work of al-║ar┐blus┘ (al-Sh┐m┘, Radd al-Mu╒t┐r, 6:20).
11
Al-Sh┐m┘, Majm┴‘at al-Ras┐’il, 1:317–370. Recently, this ris┐lah has been edited and published
separately as Tanb┘h al-Wul┐h wa ’l-╓ukk┐m ‘al┐ A╒k┐m Sh┐tim Khayr ’l-An┐m aw A╒ad A╖╒┐bihi
’l-Kir┐m, ed. Ab┴ Bil┐l al-‘Adan┘ and Murta╔┐ b. Mu╒ammad (Cairo: D┐r al-└th┐r, 1428/2007).
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
33

How can one explain this summary treatment of the doctrine of siy┐sah in
the proper manuals of fiqh? Is it because of the “separation between theory and
practice” as asserted by the Orientalists?12 Imran Ahsan Khan Nyazee, in his
Theories of Islamic Law: The Methodology of Ijtih┐d, conclusively refutes this
assertion. Expounding the “division of labour” between the rulers and the
jurists, he envisages a conceptual framework for the Islamic legal system which
comprises of two parts: rigid or fixed and flexible or changing.13 “The law that
is stated explicitly in the texts, the Qur’┐n and the Sunnah, or is derived
through strict analogy (qiy┐s), is more or less fixed.”14 In this fixed part,
Nyazee includes rules regarding rituals (‘ib┐d┐t), inheritance, marriage and
divorce and ╒ud┴d.15 Referring to the “flexible” part, Nyazee says,

If we make laws about income-tax, traffic, new forms of crime and other areas in
accordance with the shar┘‘ah, we might change them through fresh ijtih┐d in a
later age, because these rules are not stated explicitly in the texts.16

Nyazee is of the opinion that the jurists and the rulers divided the work and
concentrated on the fixed and flexible parts of the legal system, respectively.17
At another place in the same work, Nyazee explains the two sphere of
Islamic law with the help of the two doctrines of ╒add: wider and narrower.18
He asserts that in its wider sense the phrase ╒ud┴d All┐h denotes the fixed part
of the law, while in its narrower sense it only denotes the specific punishments

12
For an exposition of this theory, see Ignaz Goldziher, Introduction to Islamic Law and
Theology, trans. Andras Hamori and Ruth Hamori (Princeton: Princeton University Press,
1981); Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: The Clarendon
Press, 1953); Schacht, An Introduction to Islamic Law (Oxford: The Clarendon Press, 1964). See
also Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964);
Coulson, Conflicts and Tensions in Islamic Jurisprudence (Chicago: University of Chicago Press,
1969). Some of the Muslim scholars are also influenced by this theory (for instance, see
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Petaling Jaya: Pelanduk
Publications, 1989), xvii). For a detailed criticism on this theory, see Imran Ahsan Khan
Nyazee, Theories of Islamic Law: The Methodology of Ijtih┐d (Islamabad: Islamic Research
Institute, 1994).
13
Nyazee, Theories of Islamic Law, 52–55. We may add here that matters settled through
consensus (ijm┐‘) are also fixed.
14
Ibid., 55.
15
Ibid.
16
Ibid.
17
Ibid., 53. He explains this relationship by the example of an ever-growing tree: “Like the
trunk of this tree, Islamic law has part that is fixed, and like its branches and leaves, the law has
a part that changes in shape and colour in every season” (ibid., 53).
18
Ibid., 109–26.
for specific crimes.19 Here, he also relates this discussion to the division of
rights into three categories: rights of God, rights of individual and rights of
community; and asserts that the doctrine of ╒add “works hand in hand with
the concept of the right of All┐h.”20 He forcefully asserts that the right of
Allah must not be confused with the right of community. “The right of All┐h
is fixed by All┐h, once and for all and is not subject to legal or judicial review,
that is, it is outside the purview of law. It can never be altered.”21 As far as the
authority of the ruler is concerned, Nyazee brings it under the doctrine of
siy┐sah.22
In another important work General Principles of Criminal Law: Western
and Islamic, Nyazee further explains the three kinds of rights and links the
punishments of ╒ud┴d, qi╖┐╖, ta‘z┘r and siy┐sah to these rights.23 This work
contains some invaluable fresh insights into the criminal justice system in
Islamic law. In yet another work on legal theory Islamic Jurisprudence, Nyazee
gives some more details of how the jurists relate the legal obligations (a╒k┐m
takl┘fiyyah) to the rights of Allah.24
The work of ‘Abd al-Q┐dir ‘Awdah (d. 1954) titled al-Tashr┘‘ al-Jin┐’┘
’l-Isl┐m┘ Muq┐ranan bi ’l-Q┐n┴n al-Wa╔‘┘ is one of the fundamental sources for
scholars working on Islamic criminal law in the post-colonial world. This
work undoubtedly contains some invaluable material on the subject.
However, the issue at hand has not been analyzed in depth in this work.
‘Awdah refers to the fact that the ╒ud┴d punishments are deemed the rights of
God.25 He also points out that one of the legal consequences of considering
╒ud┴d as the rights of God is that these punishments cannot be pardoned by
any human authority.26 Still he does not appreciate the fact that if the rights of
God are deemed equivalent to the rights of community,27 it leads to analytical
inconsistency. Similarly, despite the fact that he mentions the rule that the
authority to enforce the ╒ud┴d punishments is with the government28 and that
the right to enforce qi╖┐╖ is with the heirs of the victim,29 he is not in favour of

19
Ibid., 114.
20
Ibid., 115.
21
Ibid.
22
Ibid., 112.
23
Nyazee, General Principles of Criminal Law: Western and Islamic (Islamabad: Advanced Legal
Studies Institute, 1998), 72–83.
24
Nyazee, Islamic Jurisprudence (Islamabad: Islamic Research Institute, 2000), 93–97.
25
‘Awdah, al-Tashr┘‘ al-Jin┐’┘, 1:78–79.
26
Ibid., 1:79.
27
Ibid.
28
Ibid., 1:755.
29
Ibid., 1:757–58.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
35

giving the individual the right to enforce the ta‘z┘r punishment.30 The reason
for this seems to be that ‘Awdah does not analyse the legal consequences of
relating different punishments to different rights. Had he done so, he would
have no hesitation in asserting that if the individual can enforce the qi╖┐╖
punishment, with the help and supervision of the government, he can also
enforce the ta‘z┘r punishment because qi╖┐╖ is the joint right of God and
individual in which the right of individual is predominant, while ta‘z┘r is the
pure right of individual (at least for the ╓anaf┘ jurists). Moreover, ‘Awdah
does not distinguish between ta‘z┘r and siy┐sah31 and although he does briefly
refer to the ╓anaf┘ doctrine of siy┐sah,32 his analysis of this doctrine is
superficial as he confines his discussion to those cases only where the ╓anaf┘
jurists allow death punishment as siy┐sah. The fact, as will be shown below, is
that the ╓anaf┘ doctrine is much wider than that.33
Not only ‘Awdah, but also most of the scholars working on Islamic
criminal law in the post-colonial world have generally ignored the important
doctrine of siy┐sah. Many of them accepted the thesis of the Orientalists
regarding the “separation of theory and practice” in Islamic legal history. This
is one of the major reasons why some of these scholars suggested a “revisiting”
or even “reconstruction” of the legal thought in Islam.34 Thus, we see some of
the scholars rejecting altogether the division of crimes into ╒ud┴d and ta‘z┘r.35
Others think of changing the standard of evidence required for proving the
╒ud┴d and the qi╖┐╖ offences.36 Still others assert that the ╒ud┴d are not fixed

30
Ibid., 1:756–57.
31
This despite the fact that he asserts that the ta‘z┘r offence is sometimes an encroachment upon
the right of an individual and at others it is encroachment upon the right of the society (ibid.,
1:99).
32
Ibid., 1:688–89.
33
In our view, the roots of this superficial analysis lie in the flawed methodology of talf┘q
(mixing the opinions of the various schools of law). Thus, ‘Awdah summarily deals with the
╓anaf┘ doctrine of siy┐sah and briefly asserts that this doctrine influenced Ibn Taymiyyah and
Ibn al-Qayyim and some M┐lik┘ jurists as well. Then, he asserts that the ╓anaf┘ doctrine is not
that important and novel and that what the ╓anaf┘ jurists call as siy┐sah is included by other
schools either in qi╖┐╖ or ╒ud┴d (ibid.). This is not how a legal issue should be analysed. That is
why we prefer the methodology of takhr┘j, i.e., arguing on the basis of the principles expounded
by the earlier jurists or extending the already existing law to new cases without creating
problems of analytical inconsistency (for details, see Nyazee, Islamic Jurisprudence, 325–53).
34
Syed Riazul Hassan, The Reconstruction of Legal Thought in Islam (Lahore: Law Publishing
Company, 1974).
35
Justice Aftab Hussain who was influenced by the views of Mawl┐n┐ Am┘n A╒san I╖l┐╒┘
(d. 1997) on the punishment of rajm went into great length to prove that the division of offences
into ╒ud┴d and ta‘z┘r is a later development and that it has no foundation in the Qur’┐n and the
Sunnah (Hazoor Bakhsh v. The State, PLD 1983 FSC 1).
36
Mu╒ammad ║ufail H┐shim┘, ╓ud┴d └rdinains Kit┐b-o Sunnat k┘ R┤shn┘ mai╞ (Peshawar:
but maximum punishments.37
This confusion is found in most troubling form in the discussions on the
rules relating to the offence of zin┐ and sexual violence, particularly rape.
Disturbed by the criticism on the strict standard of evidence for proving the
committing the offence of zin┐, some scholars suggested that the offence of
rape should be deemed a sub-category of the offence of ╒ir┐bah, instead of
zin┐.38 This they did without realizing that this suggestion would not only
change the meaning and concept of ╒ir┐bah but also of “property.”39 While
analysing the debate on the offence rape in the context of the Protection of
Women (Criminal Laws Amendment) Act 2006, Muhammad Munir suggests
that this offence should be regulated by the rules of siy┐sh, not those of the
╒add of ╒ir┐bah.40 However, the question of how to change a ╒add offence into
siy┐sah remains unsettled.

Linking Punishments with Rights: Legal Consequences

The most important feature of the ╓anaf┘ criminal law is that it links various
offences and their punishments to various rights. This ensures analytical
consistency in the system. One of the reasons for the confusions regarding the
╓anaf┘ criminal law is that modern scholars do not appreciate this intricate
system of rights and they equated the right of God with the right of the
community.
For instance, the illustrious ‘Al┐’ al-D┘n Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘
(d. 587/1191), while elaborating the nature of the punishment of qadhf says, “If
the evil effects of a wrong reach the general public and the good effects of its
punishment also reach the general public, the obligatory punishment for such

National Research and Development Foundation, 2005), 79–83. For a detailed criticism of this
view, see Mu╒ammad Musht┐q A╒mad, ╓ud┴d Qaw┐n┘n: Isl┐m┘ Na╘riy┐t┘ K┤nsil k┘ ‘Ub┴r┘
Rip┤r═ k┐ Tanq┘d┘ J┐’izah (Mardan: Midr┐r al-‘Ul┴m, 2006), 79–83.
37
J┐vaid A╒mad Gh┐mid┘, M┘z┐n (Lahore: D┐r al-Ishr┐q, 2001), 302.
38
In Pakistan, this idea was first given by Maul┐n┐ Am┘n A╒san I╖l┐╒┘ in his commentary of the
Qur’┐n while commenting on the verses of S┴rat al-M┐’idah regarding the offence of ╒ir┐bah
(Am┘n A╒san I╖l┐╒┘, Tadabbur-i Qur’┐n (Lahore: Faran Foundation, 2002), 3:505–508; 5:361–
377). His disciple J┐vaid A╒mad Gh┐mid┘ (b. 1951) reiterated this position (M┘z┐n, 284). Asifa
Quraishi also preferred this view though she did not acknowledge that the idea came from I╖l┐╒┘
(Asifa Quraishi, “Her Honour: An Islamic Critique of the Rape Provisions in Pakistan’s
Ordinance on Zina,” Islamic Studies 38:3 (1999), 403–31). The Federal Shariat Court also
accepted this view in Begum Rashida Patel v. The Federation of Pakistan, PLD 1989 FSC 95.
39
For a detailed analysis of the issue, see Muhammad Mushtaq Ahmad, “The Crime of Rape and
the Hanafi Doctrine of Siyasah,” Pakistan Journal of Criminology 6:1 (2014), 161–192.
40
Muhammad Munir, “Is Zina bil-Jabr a Hadd, Ta‘zir or Syasa Offence? A Re-appraisal of the
Protection of Women Act, 2006 in Pakistan,” Yearbook of Islamic and Middle Eastern Law 14
(2008–09), 95–115.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
37

wrong is the pure right of Allah, Great is His Majesty.”41 This statement may
be (wrongly) construed to substantiate the claim that the right of God is the
same as the right of the community. This wrong construction ignores the fact
that K┐s┐n┘ uses the word “obligatory” for the punishment which is awarded
as a right of God. The use of this word indicates that the punishment can
neither be commuted nor pardoned. This is what al-K┐s┐n┘ explicitly says in
the next part of the same statement.

The obligatory punishment for such wrong is the pure right of Allah, Great is
His Majesty, so that the benefits of this punishment surely reach the general
public and the general public is surely protected from the evils of that wrong.
This purpose can only be achieved if a human being does not have the authority
to waive this punishment. That is exactly what is meant by ascribing these rights to
Allah, Blessed and High is He.42

Hence, the right of God cannot be deemed equivalent to the right of

community. K┐s┐n┘ further elaborates this point by enumerating the
consequences of considering the ╒add of qadhf as the right of God. Thus, he
says,

Now that it has been proved that the ╒add of qadhf is the pure right of God, or at
least the right of God is predominant in it, we conclude: it cannot be pardoned
because the authority to pardon vests in the one whose right has been violated; it
cannot be waived through compromise or compensation because a person cannot
get compensation for the violation of the right of another; it cannot be inherited
because the rules of inheritance apply to the property owned by the deceased or
his rights… and as nothing of the sort exists, the rules of inheritance will not
apply; and only one punishment will be given even if the wrong was committed
more than once.43

Here, it will not be out of place to briefly compare these important features of
the ╒ud┴d punishments with those of the qi╖┐╖, ta‘z┘r and siy┐sah.
No human authority has the right to pardon the offender in a ╒add case
because the enforcement of ╒add punishment is the right of God. Ta‘z┘r being
the right of individual can be pardoned by the aggrieved individual, or in case
of his death by his legal heirs. In qi╖┐╖, the right of the individual is

41
‘Al┐’ al-D┘n Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘, Bad┐’i‘ al-╗an┐’i‘ f┘ Tart┘b al-Shar┐’i‘, ed. ‘Al┘
Mu╒ammad al-Mu‘awwa╔ and ‘└dil ‘Abd al-Mawj┴d (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 2003),
9:248.
42
Ibid. (emphasis added).
43
Ibid., 9:250.
predominant and as such the individual or his legal heirs have the right to
pardon the offender.44 Hence, the practical effects of qi╖┐╖ and ta‘z┘r are almost
similar.45 Siy┐sah offence involves a right of the community and as such the
right to pardon the offender is with the government.46
Similarly, some forms of mistake of law or of fact (which the jurists call
shubhah47) become obstacle in the way of enforcing the ╒ud┴d as well as the
qi╖┐╖ punishments because they involve a right of God.48 No mistake of law
can suspend a ta‘z┘r punishment (pure right of individual) or a siy┐sah
punishment (right of the community).49 It is worth noting here that English
law considers some mistakes of fact as mitigating factors, but it does not deem
a mistake of law to be a valid defense.50
Another important issue is the standard of evidence, which according to
the ╓anaf┘ jurists has been fixed by the texts of the Qur’┐n and the Sunnah for
the ╒ud┴d, qi╖┐╖ and ta‘z┘r offences. Thus, the testimony of women is not
admissible in cases involving the right of God, i.e., ╒ud┴d and qi╖┐╖.51
Moreover, if the accused is a Muslim, the witnesses have to be Muslims.52 The

44
See Qur’┐n 2:178. As the heirs can pardon the offender, they can waive the punishment after
concluding a compromise with the offender. The Prophet (peace be on him) is reported to have
said: “If a person’s near relative is murdered, he may choose the better of the two options: either
to accept compensation or to get the right of qi╖┐╖ enforced” (Mu╒ammad b. Ism┐‘┘l al-Bukh┐r┘,
╗a╒┘╒, Kit┐b al-Diy┐t, B┐b Man Qutila Lahu Qat┘l fa Huwa bi Khayr al-Na╘arayn). For a
detailed legal analysis of this tradition, see Ab┴ Bakr Mu╒ammad b. Ab┘ Sahl al-Sarakhs┘,
al-Mabs┴═, ed. ╓asan Ism┐‘┘l al-Sh┐fi‘┘ (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1997), 26:68–73; Also
see Burh┐n al-D┘n Ab┴ ’l-╓asan ‘Al┘ b. Ab┘ Bakr al-Margh┘n┐n┘, al-Hid┐yah f┘ Shar╒ Bid┐yat al-
Mubtad┘ (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘, n.d.), 4:442.
45
There are two important distinctions in the legal consequences of ta‘z┘r and qi╖┐╖. Firstly, the
punishment of qi╖┐╖ is suspended by shubhah because of the presence of the right of God, the
╓anaf┘ jurists have explicitly stated that ta‘z┘r is not suspended by shubhah (Zayn al-‘└bid┘n b.
Ibr┐h┘m b. Nujaym, al-Ashb┐h wa ’l-Na╘┐’ir ‘al┐ Madhhab Ab┘ ╓an┘fah al-Nu‘m┐n (Cairo:
Ma═ba‘at Mu╖═af┐ ’l-B┐b┘, n.d.), 152). Secondly, qi╖┐╖ is a fixed punishment like ╒ud┴d, while
ta‘z┘r is generally not fixed, although if ta‘z┘r is to be awarded in the form of lashes, its
maximum limit is also fixed (see below).
46
This point is elaborated in detail later.
47
Shubhah has generally been deemed synonymous to the English law concept of “benefit of the
doubt.” However, even a cursory look at what constitutes shubhah in fiqh tells that it has more
in common with “mistake of law or of fact” than with the “benefit of the doubt” (Nyazee,
General Principles of Criminal Law, 142–43).
48
Mu╒ammad b. ‘├s┐ ’l-Tirmidh┘, al-J┐mi‘, Kit┐b al-╓ud┴d, B┐b m┐ J┐’a f┘ Dar’ al-╓ud┴d.
49
Ibn Nujaym, al-Ashb┐h wa ’l-Na╘┐’ir, 152.
50
Pakistani law accepts this principle and holds that mistake of law is no defence (see Section 79
of the Pakistan Penal Code, 1860).
51
Al-Sarakhs┘, al-Mabs┴═, 16:134; al-Margh┘n┐n┘, al-Hid┐yah, 3:116. This is not to deprive women
of the right to testify, but to save the accused from the punishment of ╒add and qi╖┐╖.
52
Al-Margh┘n┐n┘, al-Hid┐yah, 3:117.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
39

strictest criterion is for the ╒add of zin┐—four adult male Muslim

eyewitnesses53 who fulfill the requirements of the tazkiyat al-shuh┴d.54 For the
rest of the ╒ud┴d as well as for qi╖┐╖, there have to be two adult male
eyewitnesses who fulfill the requirements of the tazkiyat al-shuh┴d.55
As far as a ta‘z┘r crime is concerned, the testimony of two women can
prove it only if their testimony is also corroborated by the testimony of at
least one man.56 Hence, ta‘z┘r cannot be awarded on the testimony of women
alone. Similarly, neither the punishment of ╒add nor that of the qi╖┐╖ or ta‘z┘r
can be awarded on the basis of circumstantial or indirect evidence. It means
that ╒ud┴d, qi╖┐╖ and ta‘z┘r only cover just a small area of criminal law. The
remaining area has been covered by siy┐sah for which the ruler has the
authority to prescribe the standard of evidence and resultantly whatever kind
of evidence satisfies the court can be deemed admissible.57 Thus, the siy┐sah
punishment can be awarded on the basis of the testimony of women alone, or
of non-Muslims alone, or circumstantial evidence.
Yet another important aspect is the extent of the authority of the
government to fix the limit of the punishments. The punishments of the
╒ud┴d and qi╖┐╖ crimes have been fixed by the Divine law and there is no room
for a lesser or alternative punishments in these cases.58 In the same way, the
maximum limit of ta‘z┘r has also been fixed.59 Thus, the court cannot award
more than thirty-nine lashes in ta‘z┘r.60 Under the doctrine of siy┐sah,

53
Qur’┐n 4:15 and 24:4. Also see al-Sarakhs┘, al-Mabs┴═, 16:134; al-Margh┘n┐n┘, al-Hid┐yah, 3:116.
54
The term tazkiyat al-shuh┴d implies secret and open inquiry about the character and
trustworthiness of the witnesses (al-Margh┘n┐n┘, al-Hid┐yah, 3:118).
55
Ibid., 3:316.
56
For ta‘z┘r, the jurists apply the same standard which the Qur’┐n has prescribed for financial
matters (Qur’┐n 2:282). The reason for this is obvious: the financial matters relate to the right of
individual and the same is the case with ta‘z┘r (Ibn Nujaym, al-Ashb┐h wa ’l-Na╘┐’ir, 152). An
important question arises here: If ta‘z┘r is to be applied in ╒aqq All┐h, as the Sh┐fi‘┘ jurists assert
and some of the later ╓anaf┘ jurists have accepted this view, what will be the standard of
evidence for such ta‘z┘r? This issue will be analysed soon.
57
As we shall show below, the jurists cite many examples from the cases decided by the Prophet
(peace be on him) or his Companions wherein the strict criteria of evidence mentioned above
for the ╒ud┴d, qi╖┐╖ or ta‘z┘r, was not applied. In all such cases, the punishment awarded is
termed siy┐sah by the ╓anaf┘ jurists.
58
Some of the contemporary scholars have tried to prove that the ╒ud┴d are not fixed but
maximum punishments (see Gh┐mid┘, M┘z┐n, 302; Also see the interim report of the Council of
Islamic Ideology on the ╒ud┴d law reforms in Pakistan available online on:
www.gov.pk/publications/h.report.pdf, last visited, August 17, 2014).
59
This is the case where ta‘z┘r is awarded in the form of lashes. Ta‘z┘r may take other forms as
well, such as internment, rebuke and the like. In these cases, the judge has to decide the extent
of the punishment keeping in view the facts and circumstances of each case (al-K┐s┐n┘, Bad┐’i‘
al-╗an┐’i‘, 9:271–72).
60
This is the preferred view of ╓anaf┘ school based on Ab┴ ╓an┘fah’s opinion arguing that the
however, the government has the authority to prescribe detailed rules for the
maintenance of public order. It can take preventive measures,61 introduce
different offences, lay down a standard of evidence for proving these and
prescribe punishments for them. The authority under this doctrine is however
subject to the restrictions imposed by the texts of the Qur’┐n and the Sunnah
as well as by the general principles of Islamic law.62
The authority to enforce punishments is also dependent on the right
affected by a particular crime. Thus, the authority to enforce the ╒ud┴d, which
involve a violation of the right of God, is vested in the ruler.63 The same is true
of the siy┐sah punishment because it directly involves the right of the ruler.64
In case of ta‘z┘r, the right of individual is affected which is why the particular
individual has the authority to enforce it and the government will assist him in
doing so.65 It is the duty of the government to ensure that the aggrieved person

least punishment found in the ╒ud┴d related offences is forty lashes awarded to a slave who
commits qadhf offence (half punishment of a freeman i.e., eighty lashes) and as such the
maximum limit for ta‘z┘r is thirty-nine lashes. Ab┴ Y┴suf, on the other hand, holds that the
maximum limit of ta‘z┘r punishment is seventy-five lashes. This opinion is based on freeman’s
punishment of qadhf which is eighty lashes. Ab┴ Y┴suf further argues that since the unit for
reduction of punishment is five lashes as practised by forth caliph ‘Al┘ b. Ab┘ ║┐lib, the
maximum punishment for ta‘z┘r punishment is thus limited to seventy-five lashes (ibid.).
61
The second caliph ‘Umar b. al-Kha══┐b banished Na╖r b. al-╓ajj┐j from Mad┘nah even though
he did not commit any wrong but there was a possibility that if he continued living there a
heinous wrong might be committed. This preventive measure of ‘Umar is justified by the
╓anaf┘ jurists on the basis of the doctrine of siy┐sah (al-Sarakhs┘, al-Mabs┴═, 9:52).
62
For instance, the government cannot change the standard of proof for zin┐ because it has been
explicitly laid down in the texts of the Qur’┐n and the Sunnah and the jurists have a consensus
on it. Thus, changing this standard will amount to destruction of the whole system.
63
Al-K┐s┐n┘, Bad┐’i‘ al-╗an┐’i‘, 9:251–53. It is for this reason that the jurists have asserted that if
the ruler commits a ╒add offence, the punishment cannot be awarded because only the ruler has
the authority to enforce this punishment (al-Sarakhs┘, al-Mabs┴═, 9:121). The same is true of the
╒add of qadhf also because even if it involves violation of the right of individual but the right of
God is predominant in it. If a private person takes the law into his own hands and enforces the
╒add punishment without any legal authority, the jurists discuss the implications and
consequences of this act under the doctrine of iftiy┐t ‘al┐ ╒aqq al-im┐m (encroachment on the
right of the ruler). As such, it will attract the rules of siy┐sah. It may also attract the rules of
╒ud┴d, qi╖┐╖, or ta‘z┘r, depending on the circumstances of the case (for details, see Mu╒ammad
Musht┐q A╒mad, “Tauh┘n-i Ris┐lat k┘ Saz┐: Fiqh-i ╓anaf┘ k┘ R┤shn┘ mai╞,” al-Shar┘‘ah 22:3
(2011), 29–40.
64
Al-K┐s┐n┘, Bad┐’┘‘ al-╗an┐’i‘, 9:251–53.
65
Here, jurists cite the examples that fall under the notion of ta’d┘b (disciplining), such as a
father rebuking his child of ten years for not offering prayer or a master punishing his servant
for not obeying his lawful commands (ibid., 9:253). In such cases, ta‘z┘r is not “punishment
proper” and that is why it can be awarded even to a minor above the age of seven (ibid., 9:270).
As such, it is neither necessary nor convenient for the government to enforce it (ibid., 9:253).
This point will be further elaborated. It may be noted here that the Sh┐fi‘┘ jurists allow the
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
41

does not commit any transgression while enforcing his right. That is why it is
preferred that the punishment is enforced by the government on behalf of the
individual. The same is the case with the qi╖┐╖ punishment which involves the
joint right of God and individual but the right of individual is predominant
and as such the affected individual or his legal heirs have the right to enforce
the punishment.66

Examples of the Siy┐sah Punishments from the Conduct of the Prophet

and His Companions
The ╓anaf┘ jurists include in siy┐sah many punishments awarded by the
Prophet Mu╒ammad or his Companions. After analyzing these instances, one
finds that whenever a punishment was awarded on the basis of circumstantial
evidence, the ╓anaf┘ jurists deem it a siy┐sah punishment. Similarly, whenever
a death punishment was awarded by the Prophet or his Companions and the
punishment lacked any of the characteristic features of both ╒add and qi╖┐╖, the
╓anaf┘ jurists deem it a siy┐sah punishment.
For instance, during the time of the Prophet a woman was found
seriously wounded and when asked about the culprit she could not pronounce
his name; people mentioned many names and on one name she nodded. This
was considered a conclusive proof against the culprit who was given similar
punishment for causing the death of the woman. Ab┴ Bakr Mu╒ammad b. Ab┘
Sahl al-Sarakhs┘ (d. 483/1090), one of the most distinguished ╓anaf┘ jurists,
commenting on this incident, says,

The true purport of this report is that the punishment was awarded as siy┐sah
because the culprit was spreading evil in the society (fas┐d f┘ ’l-ar╔) and was well-
known for such activities. This is evident from the fact that when the woman
was found seriously injured, people asked her about the culprit and mentioned
many name which she rejected by the movement of her head and finally when

master to enforce even the ╒add punishment on their slaves. They also allow some other persons
to enforce ╒ud┴d even in their private capacity. The reason is that the Sh┐fi‘┘ jurists do not
divide ╒ud┴d and ta‘z┘r on the basis of the rights of God and of individual. As noted above, they
deem the ╒add of qadhf as the right of individual and they allow ta‘z┘r even in ╒aqq All┐h. The
╓anaf┘ jurists, however, clearly distinguish between ╒add and ta‘z┘r on the basis of the rights of
God and of individual. This is why the process of talf┘q or joining the pieces of the opinions of
different schools is very defective and misleading. The most serious problem it causes is that of
analytical inconsistency.
66
Qur’┐n 17:33. If the individual commits any wrong while enforcing his right, the issue comes
under the doctrine of fas┐d and all the relevant rules of ╒ud┴d, qi╖┐╖, ta‘z┘r, and siy┐sah will be
applied. For instance, if while enforcing the right of qi╖┐╖ for a hurt, the individual causes the
death of the person, it will attract the rules of qi╖┐╖, diyah, ta‘z┘r, and even siy┐sah (for details, see
A╒mad, “Tauh┘n-i Ris┐lat k┘ Saz┐: Fiqh-i ╓anaf┘ k┘ R┤shn┘ mai╞,” 32–33).
 the name of that Jew was mentioned, she nodded in the affirmative. Obviously,
only those people are named in such a situation who are well-known for such
activities and in our opinion the ruler can give death punishment to such a
person under the doctrine of siy┐sah.67

This passage clearly shows the ╓anaf┘ line of reasoning. The following
example will further explain this point.
The Companions of the Prophet disagreed on the punishment for the
offence of homosexuality. Ab┴ Bakr is reported to have suggested that
homosexuals must be burnt alive; ‘Al┘ b. Ab┘ ║┐lib was of the opinion that
one hundred lashes would be awarded to the culprit if he was unmarried and
would be stoned if he was married; ‘Abd All┐h b. al-‘Abb┐s suggested that
homosexuals be thrown from a high place and then stoned; ‘Abd All┐h b.
al-Zubayr was of the opinion that the culprits be detained in a place where
they would die due to the smell of the garbage.68
Al-Sarakhs┘, while commenting on this disagreement of the Companions,
comes up with a strong case for Ab┴ ╓an┘fah who considered the offence of
homosexuality as a siy┐sah offence.

The Companions agreed on one point: that this act was not covered by the term
zin┐ because they were well aware of [the application of] the text regarding zin┐
and even then they disagreed on the punishment of homosexuality. We cannot
say that they would exercise ijtih┐d in the presence of the text. Hence, their
disagreement on the punishment clearly proves that they agreed that this act did
not amount to zin┐. As application of the ╒add of zin┐ to an act other than zin┐
is not allowed, this act remained an offence for which no specific punishment
was prescribed in the texts. Hence, ta‘z┘r must be awarded in this case. What can
be the nature and extent of that punishment is to be determined by the ruler
under the doctrine of siy┐sah. If the ruler concludes that a particular form of
death punishment should be given in a case, the shar┘‘ah has given him the
authority to do so.69

It is on the basis of these principles that the ╓anaf┘ jurists bring under the
rubric of siy┐sah the death punishment for the one who habitually commits
anal intercourse with his wife, habitual thief, magician and other offenders
who commit widespread fas┐d in the society.70

67
Al-Sarakhs┘, al-Mabs┴═, 26:126.
68
Ibid., 9:90–91.
69
Ibid., 9:91.
70
Al-Margh┘n┐n┘, al-Hid┐yah, 2:346–47.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
43

Misconceptions and Confusions about Siy┐sah and Ta‘z┘r in the Works

of the Later Jurists
Some of the passages in the books of the later ╓anaf┘ jurists give a different
picture of the relationship of siy┐sah and ta‘z┘r with the concepts of ╒add and
qi╖┐╖. These passages sometimes equate the right of God with the right of
individual or with the right of the community. What adds to the confusion is
that these passages at certain occasions demolish the distinction between the
right of individual and the right of the community. This stems from ignoring
the classification of rights envisaged by the ╓anaf┘ School which forms the
backbone of the ╓anaf┘ criminal law.71 In this section, some passages from a
significant manual of the later ╓anaf┘ jurists—Radd al-Mu╒t┐r72—will be
analyzed as illustrative of the confusions of the later jurists on this issue.

Is Ta‘z┘r the Right of God, of the Ruler,

Ruler, or of Individual?
The first significant point about ta‘z┘r in the text of Tanw┘r al-Ab╖┐r is the
following:

Ta‘z┘r is the right of individual (╒aqq al-‘abd) and that is why relinquishment
(ibr┐’) and pardon (‘afw) are allowed in it; moreover, [the various modes of proof
in the form of] oath (yam┘n), testimony on behalf of the original witnesses
(shah┐dah ‘al┐ ’l-shah┐dah) and testimony of one man with two women are
admissible in it.73

This is exactly what the elders of the ╓anaf┘ School have been saying, as noted
above. However, al-Durr al-Mukht┐r—the commentary of Tanw┘r al-Ab╖┐r —
modifies the implications of this statement by adding an adjective: “Ta‘z┘r is
the right of individual—predominantly.”74 Now, this addition can mean two
things:

1. “in most cases,” i.e., ta‘z┘r is the right of individual in most cases, not in all
cases; or

71
What led some of the later ╓anaf┘ jurists to unconsciously deviate from the established norms
of the School? In our analysis, it is the influence of the other Schools, particularly the Sh┐fi‘┘
School, which did it all not only in fiqh but also in u╖┴l al-fiqh (for an analysis of an important
issue regarding the methodology of the jurists, see Mu╒ammad Musht┐q A╒mad, “Ta‘┐ru╛ aur
Raf‘-i Ta‘┐ru╛ k╚ Muta‘alliq ╓anaf┘ Madhhab k┘ Ta╒q┘q,” Fikr-o Na╘ar 50:3 (2013), 29–85.
72
Radd al-Mu╒t┐r is a ╒┐shiyah (glosses/notes) on al-Durr al-Mukht┐r of Mu╒ammad b. ‘Al┘
al-╓a╖kaf┘ (d. 1088/1677), which in turn is the shar╒ (commentary) on the legal text (matn) of
Tanw┘r al-Ab╖┐r of Mu╒ammad b. ‘Abd All┐h b. A╒mad al-Tamart┐sh┘ (d. 1004/1596). The
matn is the authoritative rendering of the expositions of the School.
73
Al-Sh┐m┘, Radd al-Mu╒t┐r 6:123–24.
74
Ibid., 6:123.
 2. ta‘z┘r is predominantly the right of individual, i.e., even if it involves the
right of God, it predominantly affects the right of individual and thus it
attracts the legal consequences of ╒aqq al-‘abd, not ╒aqq All┐h.

The first interpretation changes the whole meaning of Tanw┘r’s text on the
given issue because the next sentence of Tanw┘r starts with “f┐’,” which simply
means: “As ta‘z┘r is the right of individual, so relinquishment and pardon are
allowed in it.” However, if this addition by al-Durr is accepted and it is said
that ta‘zir is the right of individual in most cases, then relinquishment and
pardon would be allowed in most cases, not all cases. Hence, this addition goes
against the matn.
The second interpretation is that ta‘z┘r is the joint right of God and
individual in which the right of the individual is predominant—just the
opposite of qadhf. This is what Ibn ‘└bid┘n prefers.75
Here a question arises: how can one say that ta‘z┘r has the right of God
too? In answer to this question, Ibn ‘└bid┘n refers to the cases listed in
Tanw┘r, such as a person calling another as: ‘o sinner!’ or ‘o thief! These
statements do not amount to qadhf, as they are not allegations of illicit sex
(zin┐).76 These statements, however, violate a fundamental Divine prohibition
of abusing others, asserts Ibn ‘└bid┘n ,77 and as such these are violations of the
right of God too even if the right of individual is predominant. If this
interpretation is accepted, how can one imagine a case where a wrong may
violate the right of an individual without violating the right of God? Ibn
‘└bid┘n gives the example of a child abusing a major person! 78
It means that every violation of law—by a major and sane person—will be
deemed violation of the right of God because in the final analysis each of these
acts will be deemed a sin.79 This too wide interpretation makes the concept of
the right of God ineffective and practically useless because it will not help in

75
Ibid. In the final analysis, everything is the right of God and there is nothing known as the
pure right of individual. Still, when the Elders of the School preferred to consider some rights as
the pure rights of individual, they did have a valid point. They were trying to separate and
distinguish between the consequences of various acts. Bringing everything under the domain of
the right of God demolishes that whole edifice. Ibn ‘└bid┘n was well aware of these issues. The
only reason for Ibn ‘└bid┘n’s preferring this interpretation seems to be that because of his
utmost respect for ╓a╖kaf┘, he did not want to explicitly assert that this was a mistake of him;
otherwise, he should have straightaway declared that this addition is baseless.
76
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:123.
77
Qur’┐n 49:11.
78
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:123.
79
Ta‘z┘r can be awarded even in the absence of a sin (ibid., 6:113). The example of Na╖r b.
al-╓ajj┐j was cited above on the authority of al-Sarakhs┘.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
45

identifying the legal consequences of a crime. This point is further elaborated

below.

Ta‘z┘r Punishment for Violation of the Pure Right

Right of God?
Tanw┘r does not mention ta‘z┘r punishment for violation of the pure right of
God. However, al-╓a╖kaf┘ (d. 1088/1677) in his commentary acknowledges
the existence of such a ta‘z┘r. Thus, he says, “Ta‘z┘r can be given as a right of
God.”80 To illustrate this point, Ibn ‘└bid┘n cites two examples: kissing a
stranger woman and attending a place where sins are committed.81 The
examples are telling. At least apparently, one of them involves an
encroachment on the right of an individual (the woman, if she is a victim and
not a willing partner); and the other example involves a violation of the right
of God, not of individuals, as it is a sin and not a crime.
Can these crimes be pardoned? Al-╓a╖kaf┘ says, “When ta‘z┘r
[punishment] is awarded as a right of God, it cannot be pardoned, except
where the ruler finds that the offender has been deterred.”82 The question is: if
it is the right of God, how can it be pardoned by the ruler? If the ruler can
pardon it, does it not mean that the right of the ruler was violated and that the
punishment was siy┐sah? Ibn ‘└bid┘n comes up with the views of various
jurists on the issue83 and, then, adds another perspective to this discussion. He
raises a question: is it obligatory to enforce ta‘z┘r in the same way as it is
obligatory to enforce ╒add? His conclusion is that the enforcement or waiver
of the ta‘z┘r punishment is the prerogative of the ruler.84 It simply means that
in such cases ta‘z┘r is given not as the right of God, but as the right of the ruler
or the community. In other words, the examples mentioned by Ibn ‘└bid┘n
are not of ta‘z┘r as ╒aqq All┐h; these are examples of siy┐sah.

Who Enforces Ta‘z┘r?

Ta‘z┘r?
Tanw┘r mentions two rules about the enforcement of the ta‘z┘r punishment:

1. during the commission of the ta‘z┘r offence, any Muslim can enforce the
ta‘z┘r punishment;
2. after the commission of the offence, the punishment shall be enforced by
the ruler.85

80
Ibid., 6:124.
81
Ibid.
82
Ibid.
83
Ibid.
84
Ibid., 6:125.
85
Ibid., 6:111.
Ibn ‘└bid┘n says that the first rule relates to only those forms of ta‘z┘r crimes
which violate the right of God. As noted above, it simply means siy┐sah. In
any case, even if this is ta‘z┘r for violating the right of God, how can any
Muslim enforce this punishment at the time of the commission of the offence
when there is a parallel principle of law, acknowledged by the ╓anaf┘ School,
that punishments pertaining to the right of God are enforced by the ruler?
Apparently, by enforcing ta‘z┘r in such cases Ibn ‘└bid┘n actually means
that every Muslim must try to prevent the violation of the law. This is because
he refers here to the famous tradition about the three stages of the duty of
enjoining right and forbidding wrong (al-amr bi ’l-ma‘r┴f wa ’l-nahy ‘an
al-munkar).86 Preventing the commission of a crime, however, does not mean
that individuals should take the law into their own hands. The authoritative
manual of the School, al-Hid┐yah, explicitly says that force for the purpose of
al-amr bi ’l-ma‘r┴f can be used only by the ruling authorities.87
As far as the second rule is concerned—that after the commission of the
offence the punishment is enforced by the ruler—it is based on a very
fundamental principle: that the right of God is enforced by the ruler, as is the
case with the ╒ud┴d.88 However, there are other details which give a very
different picture.
Thus, al-╓a╖kaf┘ says that even ta‘z┘r in the rights of individual can be
enforced only by the ruler. The principle on which he relies is that such a
punishment requires the filing of complaint (da‘w┐) before the judge which
means that individuals cannot enforce it at their will.89 Ibn ‘└bid┘n reports
another opinion here: that it is enforced by the one whose right is violated, as
is the case in qi╖┐╖.90 However, he justifies the opinion of al-╓a╖kaf┘ on the
basis that the individual may commit excess while enforcing his right.91
Yet again, Ibn ‘└bid┘n reaches the real issue but then withdraws from it.
If one considers this issue from the perspective of rights as elaborated by the
Elders of the School, everything becomes so clear. Thus, al-K┐s┐n┘ says that
the right of individual can be enforced by the concerned individual, such as
father enforcing it on his son, or master enforcing it on his slave.92 Similar

86
Ibid.
87
Al-Margh┘n┐n┘, al-Hid┐yah, 4:407.
88
This has been explained above.
89
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:111.
90
Ibid.
91
This again is a flawed argument because it relies on a relatively weaker argument of blocking
the lawful means to unlawful ends (sadd al-dhar┘‘ah). The ╓anaf┘ jurists use this argument only
as a last resort and not as the basis of the whole legal reasoning (for details, see Nyazee, Islamic
Jurisprudence, 250–51).
92
Al-K┐s┐n┘, Bad┐’i‘ al-╗an┐’i‘, 9:253.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
47

cases have been enumerated by al-╓a╖kaf┘ and Ibn ‘└bid┘n, as discussed below.
The only reason for this confusion is ignoring the structure and implications
of the rights and resultantly ta‘z┘r has been mixed up with siy┐sah.

Enforcing Ta‘z┘r in the Right of Individual

Al-╓a╖kaf┘ says that master can enforce ta‘z┘r on his slave and so can a
husband on his wife.93 Ibn ‘└bid┘n explains that here ta‘z┘r is enforced for the
purpose of disciplining (ta’d┘b).94 Al-╓a╖kaf┘ further asserts that husband
cannot enforce ta‘z┘r to wife if she does not offer prayer because its benefits
are confined to her alone.95
After this, al-╓a╖kaf┘ comes up with another case: father can impose ta‘z┘r
on his minor son if he does not offer prayer.96 With this he adds another
important principle: that ta‘z┘r can be enforced on minors—because it is ta’d┘b,
explains Ibn ‘└bid┘n, and that is why he cannot use stick for this purpose.97
Moreover, such ta’d┘b is only permissible (mub┐╒) and as such the general
restriction of due care (sal┐mah) is always there, i.e., this authority must not be
used in a way to harm others.98
Here, a very interesting question arises: when a person enforces ta‘z┘r on
his minor son, does he do so because of violation of his personal right or
violation of the right of God? Can a minor commit a violation of the right of
God? Al-╓a╖kaf┘ has an interesting statement here:

Minority is not an obstacle for ta‘z┘r . . . if it belongs to the right of individual;

however, if it belongs to the right of God, such as when a minor commits illicit
sexual intercourse or theft, his being minor becomes an obstacle for enforcing the
punishment on him.99

Apparently, two conflicting rules emerge here about enforcing ta‘z┘r

punishment on a minor for violating a right of God:

1. If he does not offer prayer, a ta‘z┘r can be enforced on him;

2. If he commits zin┐, he cannot be awarded ta‘z┘r punishment.

93
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:128.
94
Ibid.
95
Ibid., 6:129. This simply means that the husband can take a disciplinary action against his wife
only where his personal right is violated.
96
Ibid., 6:130.
97
Ibid.
98
Ibid., 6:131.
99
Ibid., 6:130.
This analytical inconsistency can be resolved only by presuming that when a
minor does not offer prayer and his father punishes him, he does so for
enforcing his personal right in the form of a disciplinary action against a
person over whom he has legal authority. As far as a minor’s committing
illicit sexual intercourse is concerned, technically, it is NOT zin┐;100 as such, it
cannot attract the rules of zin┐; hence, ╒add punishment cannot be imposed on
it.101 What about giving him ta‘z┘r? If his being minor cannot prevent ta‘z┘r in
the right of individual, why should it not be enforced in this case? The answer
by now should be very clear: because it is punishment-proper; it is not mere
disciplinary action. A child does not have the requisite legal capacity for the
commission of a crime or for enforcing a punishment-proper on him, which is
why he cannot be given any kind of punishment-proper.
To conclude, disciplinary action can be taken against a minor but no
punishment-proper can be imposed on him. Hence, when the jurists assert
that in such cases the minor cannot be given ta‘z┘r punishment:

1. Ta‘z┘r in this case does not mean ta‘z┘r in the right of God; rather, it siy┐sah.
2. Siy┐sah being punishment-proper requires that the culprit must have the
requisite legal capacity, i.e., he must be major and sane at the time of the
commission of the offence.

Standard of Proof for the (so-

(so-called) Ta‘z┘r in the Right of God
Yet again, al-╓a╖kaf┘ mentions two conflicting rules on this issue. Initially, he
says that it requires the same standard of proof as that of the ╒ud┴d generally
save zin┐, i.e., two adult male eye-witnesses. Thus, he asserts that the
complainant can be deemed a witness and punishment can be awarded if his
statement is corroborated by another witness.102 Later, however, he changes
his stance and asserts that complaint of ta‘z┘r in the right of God is not
“testimony” (shah┐dah) but “report” (riw┐yah) only.103 Ibn ‘└bid┘n objects to
this second rule and explains that ╓a╖kaf┘ misunderstood the text from which
he derived this rule.104
Al-╓a╖kaf┘, however, further builds upon this wrong presumption and
asserts that if the “report” of one trustworthy (‘adl) person reaches the judge,
he can award punishment on that basis. He brings another argument at this

100
For the technical definition of zin┐, see al-K┐s┐n┘, Bad┐’i‘ al-╗an┐’i‘, 9:70.
101
Al-Sarakhs┘, al-Mabs┴═, 9:62–63.
102
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:125.
103
Ibid.
104
Ibid.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
49

stage to substantiate his case: that the judge can award punishment in the
rights of God on the basis of his personal knowledge (‘ilm al-q┐╔┘).105
Again, Ibn ‘└bid┘n raises an objection saying that this position
contradicts what al-╓a╖kaf┘ stated earlier that the testimony of the
complainant must be corroborated by the testimony of another witness.
However, he tries to reconcile between the two apparently conflicting rules by
asserting that one of the rules is applicable when the complainant is not
trustworthy, and the other is applicable when the complainant trustworthy.106
This, however, is not tenable.
If the “report” of one person is deemed enough to prove the so-called
“ta‘z┘r in the right of God,” some of its necessary corollaries are:

1. that this “report” is not testimony-proper (shah┐dah);107

2. that it is not required to be made in the court room (majlis al-qa╔┐’), that is
in front of the judge.108

Not only this, the learned Ibn ‘└bid┘n also links it with the personal
knowledge of the judge (‘ilm al-q┐╔┘). Following is the line of argument:

1. The report of one trustworthy person causes ╘ann (probability),109 i.e., one
tends to accept his report as true;
2. ╙ann is deemed enough for practice, not belief, in religious matters, such as
when a trustworthy person reports about the purity of water for the
purpose of making ablution;
3. Hence, the q┐╔┘ has to act on his ╘ann in this religious matter, as it involves
violation of the right of God, or—in other words—commission of a sin!110

Ibn ‘└bid┘n infers from all this that the judge can award ta‘z┘r in the right of
God on the report of a single person who is trustworthy for the judge.
Actually, the learned Ibn ‘└bid┘n wants to avoid a serious objection: how
the judge can award punishment on the basis of the testimony of one person?
His answer is: this report is not testimony and the judge does not award
punishment on the basis of the testimony of one person; rather, he awards
punishment on the basis of his knowledge!

105
Ibid., 6:127.
106
Ibid.
107
Ibid., 6:126.
108
Ibid.
109
Ibid., 6:127.
110
Ibid.
 However, another serious question arises here: can the judge award
punishment in right of God on the basis of his personal knowledge? The
Elders of the ╓anaf┘ School, and even the later jurists, do not allow this.111
What about punishment in the right of individual? The Elders of the School
allow this only if an act is committed in his court in front of the judge.112 Even
that has been disapproved by the later jurists on the ground that this may lead
judges to personal vengeance.113 Hence, the scope of this principle is very
narrow and it is not applicable to the case at bar.
As such, this whole edifice is baseless. The first rule mentioned by
al-╓a╖kaf┘ is valid as it is in conformity with the position of the Elders of the
School as well as with the principles of law upheld by the School. Accepting
another position only leads to analytical inconsistency. Hence, one has to take
a position: either ta‘z┘r is not awarded in the right of God; or if it is awarded in
the right of God, it must require the standard of proof which the law has
prescribed for ╒ud┴d. The present paper takes the first position as the latter is
inconsistent with the established principles of the ╓anaf┘ School.

Relevance of Siy┐sah for the Pakistani

Pakistani Legal System
After the 1977 revolution, the Martial Law regime came up with major
changes in the legal system under the rubric of “Islamisation” of laws.114 The
emphasis, however, was on introducing the provisions of Islamic law relating
to the ╒ud┴d and the qi╖┐╖ cases and in the process most of the already existing
provisions of Pakistani law were termed as ta‘z┘r.115 As explained above,
neither of the ╒ud┴d, qi╖┐╖ and ta‘z┘r can be properly called “crimes” in the
modern sense of the word. ╓ud┴d and qi╖┐╖ are “wrongs against God” and
ta‘z┘r is “wrongs against individual,” while “crimes” in modern parlance denote
“wrongs against the state.” Ignoring the most important and directly relevant
concept of siy┐sah has caused many problems. Some of these problems will be

111
Al-K┐s┐n┘, Bad┐’i‘ al-╗an┐’i‘, 9:240–241.
112
Ibid., 9:112–114.
113
Al-Sh┐m┘, Radd al-Mu╒t┐r, 6:127.
114
For a detailed study of the impact of this process, see Charles Kennedy, Islamization of Laws
and Economy: Case Studies on Pakistan (Islamabad: Institute of Policy Studies, 1996); For
criticism of this process, see Rubya Mehdi, The Islamization of the Law in Pakistan (Richmond,
Surrey: Curzon, 1994).
115
In 1979, “Enforcement of the Hudood” Ordinances and one Order were promulgated; one of
these Ordinances dealt with the offences of theft (sariqah) and robbery (╒ir┐bah) and the other
two dealt with the offences of illicit sexual intercourse (zin┐) and allegation thereof called qazf
(qadhf); while the Prohibition Order dealt with the offence of drinking. The issue of qi╖┐╖
remained pending for a long time and the first Qisas and Diyat Ordiance was promulgated in
1990. For the next seven years, the Government used to re-promulgate this Ordinance and
finally in 1997 the Parliament passed the Qisas and Diyat Act.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
51

highlighted here so as to substantiate the claim that exploring the doctrine of

siy┐sah in the ╓anaf┘ criminal law is the need of the hour.

Issues in Constitutional Law

Before the promulgation of the Qisas and Diyat Ordinance in 1990,116 the
offence of homicide was non-compoundable and as it was primarily deemed an
offence against the state, only state had the power to pardon or commute the
death punishment. With the promulgation of the new law, the situation
changed. Now the legal heirs of the victim can pardon the offender.117 The
state now has a secondary role. It cannot pardon the offender unless the victim
or any of his heirs pardon him. On the other hand, Article 45 of the
Constitution of the Islamic Republic of Pakistan, 1973, declares that the
President has the authority to pardon or commute any sentence passed by any
court.
Obviously, the Constitution is superior in status than the subordinate
legislation such as PPC. As such the relevant provisions of PPC might have
been deemed ultra vires and, hence, null and void. However, the issue was not
that simple. The Eighth Constitutional Amendment inserted Article 2-A in
the Constitution, which made the Objectives Resolution of 1949 the operative
part of the Constitution. This Resolution upholds the principle of God’s
sovereignty, which implies that the rules of Islamic law will be deemed
supreme. Thus, the conflict exists not only between PPC and Constitution;
rather, it also exists between two provisions of the Constitution. In Hakim
Khan v The State, the Supreme Court acknowledged the existence of a conflict
between Article 2-A and Article 45 of the Constitution, but instead of
resolving the conflict it referred the issue to the Parliament.118 The conflict
continues to exist to this day.
The Court even did not appreciate the fact that after the promulgation of
PPC, the law introduces death punishment under two different headings: qi╖┐╖
and ta‘z┘r.119 It is only in case of qi╖┐╖ that Islamic law gives the right of
pardoning the offender to the victim or his heirs. In case of death punishment
as ta‘z┘r, Islamic law gives this right to the ruler because this death punishment
is given under the doctrine of siy┐sah, which is the right of the ruler, even if it

116
The already existing law on “offence affecting human body,” the Pakistan Penal Code (PPC),
was initially “Islamised” through an ordinance in 1990, which was re-promulgated several times
and was finally replaced by the Qisas and Diyat (Criminal Laws Amendment) Act, 1997. These
provisions have been placed in Section 299 to 338 H of PPC.
117
Sections 309–310, PPC.
118
Hakim Khan v. The State, PLD 1992 SC 595.
119
Section 302 (a) and (b), PPC.
has been called ta‘z┘r here because death punishment cannot be awarded as
ta‘z┘r, as explained above.120 Thus, it is only in case of death punishment given
as qi╖┐╖ where a conflict exists between the provisions of Article 2-A and
Article 45 of the Constitution. It is also a fact that in Pakistan death
punishments are generally awarded as ta‘z┘r (rather, siy┐sah), and not as qi╖┐╖.121
Hence, the doctrine of siy┐sah can help in resolving the conflict between two
important constitutional provisions.

Issues in Criminal Law

Understanding the true purport of the doctrine of siy┐sah in the ╓anaf┘
jurisprudence can help resolving several complicated issues faced by the
criminal justice system in Pakistan. These include, inter alia, issues relating to
the offences of blasphemy and sexual violence.
The Pakistani law of blasphemy has attracted a lot of criticism.122 The
Federal Shariat Court declared it a ╒add punishment considering it a grave
form of apostasy, but it did not elaborate as to how a non-Muslim can be given
the punishment for apostasy.123 The ╓anaf┘ jurists have declared that if a non-
Muslim commits this heinous crime, he can be given a reasonable punishment
keeping in view the circumstances of the case, and in some severe cases he can
also be awarded death punishment. Thus, they consider it a siy┐sah offence.124

120
The Pakistani superior judiciary has declared that even under the Pakistani law, the right to
pardon the offender in such a case is with the government, not with the legal heirs of the victim
(Sheikh Muhammad Aslam v. The State, 1997 SCMR 1307).
121
This is because the standard of proof for qi╖┐╖ is very strict and cannot be fulfilled except in
very rare cases.
122
Sections 295 to 298C of the Pakistan Penal Code define various offences against religion and
prescribe punishments for these offences. These provisions, particularly Section 295B relating to
desecration of the Qur’┐n and Section 295C relating to disrespect for the Prophet Mu╒ammad
(peace be on him) have been the target of criticism from various factions. Some insist that these
provisions violate the values of human rights. Others highlight the arbitrary application of these
provisions on some specific sections of the society. Still others point out that some aspects of
this law violate the principles of Islamic law (for a detailed criticism of this law, see David Forte,
“Apostasy and Blasphemy in Pakistan,” Connecticut Journal of International Law 10 (1994),
27–68; For a strong defense of this law, see Mu╒ammad Ism┐‘┘l Quraish┘, N┐m┴s-i Ras┴l aur
Q┐n┴n-i Tauh┘n-i Ris┐lat (Lahore: al-Fai╖al Publishers, 2006); For an exposition of the ╓anaf┘
jurisprudence on this issue, see Ahmad, “Tauh┘n-i Ris┐lat k┘ Saz┐: Fiqh-i ╓anaf┘ k┘ R┤shn┘
mai╞,” 29–40.
123
Ismail Qureshi v. Government of Pakistan, PLD 1991 FSC 10.
124
Ibn ‘└bid┘n has written a detailed manual on this issue proving conclusively that the ╓anaf┘
jurists deem it a siy┐sah offence if it committed by a non-Muslim and that the punishment of this
offence vary in different circumstances and may amount to death punishment in most serious
cases (al-Sh┐m┘, Majm┴‘at Ras┐’il Ibn ‘└bid┘n, 1:313–370); For a summary of this important
work, see Mu╒ammad Musht┐q A╒mad, “Tauh┘n-i Ris┐lat k┘ Saz┐ k╚ Muta‘alliq ╓anaf┘ Maslak:
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
53

This has many important consequences. First of all, the standard of proof
required to prove a ╒add offence will not be applicable to this offense if it is
committed by a non-Muslim. It can be proved through any piece of evidence,
which satisfies the court. Secondly, the court can give lesser punishment if it is
satisfied that the offender deserves some relaxation. Thirdly, it can be
pardoned by the government if the circumstances of the case so demand.
Fourthly, this punishment cannot be enforced by private individuals. Only
the government can enforce this punishment.125
Another very contentious issue in the modern debate on Islamic criminal
law is that of rape. As this offence involves sexual intercourse, the jurists had
to discuss its implications in relation to the ╒add of zin┐. This has given an
impression that because of the strict criterion for proving the offence of zin┐,
Islamic law fails to do justice with the victim in rape case. This is not correct.
What the jurists do is to check whether the rules of zin┐ would apply to a case
of sexual violence or not. If the complainant alleges forceful sexual intercourse,
the rules of zin┐ would apply, although if it is proved that she was coerced, no
punishment can be given to her.126 Similarly, the jurists discuss other
possibilities. What if an injury is caused?127 What if death is caused?128 What if
sexual intercourse occurs, but due to lack of a necessary pre-condition the ╒add
of zin┐ cannot be enforced?129 Thus, they check the application of the rules of
qi╖┐╖, diyah, arsh, ta‘z┘r and, last but not least, siy┐sah.
Some scholars have suggested that the offence of rape should be brought
under the concept of ╒ir┐bah and the Federal Shariat Court also adopted this
position. Similarly, some have suggested that circumstantial evidence or
forensic evidence should be deemed admissible in rape cases. If accepted, these
suggestions will destroy the whole structure of Islamic law as expounded by
the jurists. There is no need to re-invent the wheel as the doctrine of siy┐sah
can offer a good solution to the problem.
If an offence of “sexual violence” is created in PPC in which sexual
intercourse is not deemed an essential element, it will be covered by the
doctrine of siy┐sah and it will not attract the rules of zin┐. It will also cover
other grievous forms of sexual violence such as oral sex, insertion of other
foreign elements, carnal intercourse, which presently are not included in the

‘All┐mah Ibn ‘└bid┘n al-Sh┐m┘ k┘ Ma‘rakah-i └r┐ Ta╒q┘q k┐ Khul┐╖ah,” al-Shar┘‘ah 22:6 (2011),
24–41.
125
For details, see A╒mad, “Tauh┘n-i Ris┐lat k┘ Saz┐: Fiqh-i ╓anaf┘ k┘ R┤shn┘ mai╞,” 29–40.
126
Al-Sarakhs┘, al-Mabs┴═, 9:77.
127
Ibid., 9:86–88.
128
Al-Margh┘n┐n┘, al-Hid┐yah, 2:348–49.
129
Al-Sarakhs┘, al-Mabs┴═, 9:88.
definition of “rape.” Moreover, it will cover sexual violence against men.
Importantly, it can be proved through circumstantial or forensic evidence.
Finally, the court will have the power to award lesser or harsh punishment
keeping in view the circumstances of the case. It may sometimes award death
punishment as well.

Issues
Issues in the Law of Evidence
Pakistani judiciary has declared in many cases that quality of evidence is more
important than its quantity and, thus, even death punishment can be awarded
on the basis of circumstantial evidence, provided it proves the case beyond any
reasonable doubt.130 While this is generally true, it has to be asserted that,
according to the jurists, it is not true for ╒add, qi╖┐╖ and ta‘z┘r. In these cases,
quantity is as much important as is quality.131 What the courts have declared is,
however, true about siy┐sah offences and punishments.

Conclusions
This thorough analysis of the manuals of the ╓anaf┘ School shows that the
╓anaf┘ jurists use the word ta‘z┘r in three different, though somehow
interrelated, meanings: disciplinary action; lesser punishment in cases of ╒ud┴d
and qi╖┐╖; and punishment for offences generally which is laid down by the
ruler—ta’d┘b, ta‘z┘r and siy┐sah. The first of these relate to the right of
individual and the next two relate to the right of the ruler. These latter two
categories, ta‘z┘r and siy┐sah, have almost similar consequences, except for the
standard of proof and the limit of punishment. In Pakistani criminal law, the
spheres of ta‘z┘r and siy┐sah have already been amalgamated. The present paper
substantiates this position. It must be made clear, however, that in cases of
╒ud┴d and qi╖┐╖, ta‘z┘r has a special standard of proof—just a little lighter than
that of ╒add and qi╖┐╖—and its maximum limit of the punishment is fixed—if it
is awarded in the form of lashes. In all other cases, the standard of proof and
the limit of punishment are determined by the ruler. In both categories, the
punishment can only be pardoned by the ruler.
For the sake of clarity, it is suggested that disciplinary action should not
be called ta‘z┘r; it should be termed as ta’d┘b and as it is a private affair, not
punishment-proper, it should be excluded from the discussion on criminal
justice system. It is also suggested that ta‘z┘r in cases of ╒ud┴d and qi╖┐╖ may
continue to have the same title. Finally, ta‘z┘r in criminal law generally may be

130
Muhabbat v. The State, 1990 PCrLJ 73 at 77–78.
131
This is because, as elaborated earlier, the law has also prescribed the number of witnesses in
these cases.
THE DOCTRINE OF SIY└SAH IN THE ╓ANAF├ CRIMINAL LAW
55

called siy┐sah. Determination of standard of proof, extent of punishment and

other related issues are left to the ruler. The bottom line is: that it is the
proper application of the classification of rights that removes all confusions
and puts everything in its right place.

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