Immunity from Qisas in Islamic Law and Pakistani Law

Abstract

This article critically examines the exceptions to Qisas (retributive justice) in both Pakistani and Islamic law, with a primary focus on the age of criminal responsibility for juveniles as stipulated under Sections 82 and 83 of the Pakistan Penal Code, 1860, and the Juvenile Justice System Act, 2018 (JJSA), alongside their equivalents in Islamic law.

The study highlights a significant gap in comparative analysis regarding the treatment of minors and other exceptions, such as insanity, minority, self-defense, duress, and intoxication, between the two legal frameworks, especially in light of the contradictions and ambiguities surrounding the determination of the age of criminal responsibility.

Employing a descriptive, analytical, and comparative methodology, the research draws upon primary sources (legal texts and foundational religious scriptures) and secondary sources (scholarly articles, juristic opinions, and online resources), with libraries serving as crucial centers for data collection.

The findings reveal that although both systems recognize similar exceptions, there are notable differences in their definitions and scope, most prominently concerning the age of criminal responsibility. Pakistani law (JJSA 2018) clearly defines this as 18 years, while Islamic jurisprudence determines it based on puberty, which varies depending on different juristic interpretations.

The study concludes that harmonizing these standards, preferably by adopting the age of 18 years, would promote legal clarity and strengthen the protection of juveniles, thereby addressing the current ambiguities and contradictions that exist across both Pakistani statutory law and Islamic jurisprudence.

Keywords: Qisas, criminal responsibility, insanity, minority, self-defense, intoxication