The Notion of ‘Daman’ in Islamic Law and Its Application in Pakistani Criminal Law: An Analytical Study

Abstract

Pakistan inherited its legal system from the colonial British India, however, Islamization of laws brought a great body of rules of the Pakistani legal system in compliance with the principles of Islamic law. Similarly, the Chapter related to offences against the human body in Pakistan Penal Code is claimed to be based on the principles of Islamic law. The Islamic law of torts (Daman), which has roots in classical Islamic law, has been widely applied in numerous provisions in the said Chapter and a bulk of case law has evolved consequently upon them. In Pakistan Penal Code, diyat, arsh and daman all are treated as punishments while the position in classical Islamic law is presumed to be different. The approach taken in section 53 of the Pakistan Penal Code regarding Daman is that it has been considered a form of punishment and later on in Section 299 (d) of PPC, Daman is defined as the compensation determined by the Court to be paid by the offender to the victim. This creates doubts in the minds of the jurists that whether or not this approach is valid, requiring analysis in light of the principles of Islamic law as enunciated in the literature of classical Muslim jurists. This paper expounds the notion of ‘Daman’ in Islamic law and its application in Pakistani law. The research is based on qualitative research methods. The analysis in this article finds that though the notion of Daman is treated as a punishment in the Pakistani Penal Code which appears to be contrary is contrary to the classical Muslim jurists. However, rules regarding Daman and the jurisprudence developed by the higher courts in the country have clarified the actual position of Daman that is found in consonance with the principles of Islamic law and jurisprudence.