Q. Write a detail note on Arsh.
1. INTRODUCTION.
Under Pakistan Penal Code 1860, there are 2 types of punishment; they are Corporeal Punishments & Compensatory Punishments. In Corporeal Punishments is divided into 2 parts, one is Qisas & 2nd is Tazir. The Compensatory Punishments are divided into 3 parts, Diyat, Arsh & Daman. Now we discuss with detail about type of 2nd part punishment Arsh.
2. RELEVANT PROVISIONS.
Sections 299(b), 323, 334, 336, 337-A, 337-D, 337-G, 337-H, 337-I, 337-J, 337-K, 337-M, 337-Q, 337-R, 337-S, 337-T, 337-V, 337-W, 337-X & 337-Z.
3. MEANING OF ARSH.
Arsh is compensation for offence relating to various kinds of Hurt.
4. DEFINITION OF HURT UNDER SECTION 299(b) OF PAKISTAN PENAL CODE 1860.
"Arsh" means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter.
Note.
Thus Arsh is actually specific percentage of Diyat. So in order to determine the value of Arsh, it is necessary to determine the value of Diyat.
5. VALUE OF DIYAT UNDER SECTION 323 OF PAKISTAN PENAL CODE 1860.
(1). The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of 30630 grams of silver.
(2). For the purpose of sub-section (1), the Federal Government shall, by notification in the official Gazette, declare the value of Silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year.
6. OFFENCES FOR WHICH PUNISHMENT OF ARSH IS AWARDED UNDER PAKISTAN PENAL CODE 1860.
(I). Punishment For Itlaf-i-Udw Under Section 334 of Pakistan Penal Code 1860.
Where offender causes Itlaf-i-Udw of victim & Qisas is not executable then he shall be liable to Arsh value of which shall be determined according to the facts and circumstances of each case keeping in view the principles of equality and Injunction of Islam.
(II). Punishment For Itlaf-i-Salahiyat-i-Udw Under Section 336 of Pakistan Penal Code 1860.
Where offender cause Itlaf-i-Salahiyat-i-Udw of victim and where Qisas is not executable then he shall be liable to Arsh value of which shall be determined according to the facts and circumstances of each case keeping in view the principles of equality and Injunction of Islam.
(III). Punishment For Shajjah Under Section 337-A of Pakistan Penal Code 1860.
Punishment of Arsh is also provided for different kinds of Shajjah as follows;
(i). Punishment For Shajjah-i-Mudihah Under Section 337-A(ii) of Pakistan Penal Code 1860.
Whoever causes Shajjah-i-Mudihah for which Qisas cannot be executable, he shall be liable to Arsh value of which shall be 5% of Diyat.
(ii). Punishment For Shajjah-i-Hashimah Under Section 337-A (iii) of Pakistan Penal Code 1860.
Whoever causes Shajjah-i-Hashima shall be liable to Arsh value of which shall be 10% of Diyat.
(iii). Punishment For Shajjah-i-Munaqqilah Under Section 337-A (iv) of Pakistan Penal Code 1860.
Whoever causes Shajjah-i-Munaqqilah shall be liable to Arsh value of shall be 15% of Diyat.
(iv). Punishment For Shajjah-i-Ammah Under Section 337-A (v) of Pakistan Penal Code 1860.
Whoever causes Shajjah-i-Ammah shall be liable to Arsh value of which shall be 1/3 of Diyat.
(v). Punishment For Shajjah-i-Damighah Under Section 337-A(vi) of Pakistan Penal Code 1860.
Whoever causes Shajjah-i-Damighah shall be liable to Arsh value of which shall be ½ of Diyat.
(IV). Punishment For Jaifah Under Section 337-D of Pakistan Penal Code 1860.
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.
(V). Punishment For Hurt By Rash Or Negligent Driving Under Section 337-G of Pakistan Penal Code 1860.
Whoever causes hurt by rash or negligent driving shall be liable to arsh or Daman specified for the kind of hurt caused.
(VI). Punishment For Hurt By Rash Or Negligent Act Under Section 337-H of Pakistan Penal Code 1860.
Whoever causes hurt by rash or negligent act shall be punished with Arsh or Daman specified for the kind of Hurt the victim suffers as a result of such rash or negligent act.
(VII). Punishment For Causing Hurt By Mistake Under Section 337-I of Pakistan Penal Code 1860.
Whoever causes hurt by mistake shall be punished with Arsh or Daman specified for the kind of hurt the victim suffers as a result of such mistake.
(VIII). Punishment For Hurt By Means of A Poison Under Section 337-J of Pakistan Penal Code 1860.
Whoever causes hurt to any person by means of poison or any other intoxicant shall be liable to Arsh or Daman specified for the kind of Hurt.
(IX). Punishment For Causing Hurt To Extort Confession Under Section 337-K of Pakistan Penal Code 1860.
Whoever causes hurt to any person to extort confession or to compel restoration of any property or valuable security, he shall be punished with Qisas, Arsh or Daman specified for the kind of hurt.
(X). Where Hurt Not Liable To Qisas Under Section 337-M of Pakistan Penal Code 1860.
This section provides that where hurt is not liable to Qisas because the offender is a minor or insane person, then he shall be liable to Arsh.
7. VALUATION OF ARSH FOR DIFFERENT ORGANS.
(I). Arsh For Single Organs Under Section 337-Q of Pakistan Penal Code 1860.
When an offender causes Itlaf of an organ of the victim which is found singly in human body e.g. nose or tongue, the value of Arsh for such Itlaf shall be equivalent to Diyat.
(II). Arsh For Organs In Pairs Under Section 337-R of Pakistan Penal Code 1860.
Where an offender causes Itlaf of an organ of the victim which is found in pairs in human body e.g. arm, leg etc., the value of Arsh for such Itlaf shall be ½ of the value of Diyat in case Itlaf of one of the organ in that pair is caused e.g. Itlaf of one arm out of two. But where the Itlaf of the pair is caused, the value of Arsh shall be equal to the value of Diyat.
(III). Arsh For Organs In Pairs Under Section 337-S of Pakistan Penal Code 1860.
The value of Arsh for causing of Itlaf of organs found in sets of 4 e.g. eyelids shall be as follow.
(i). ¼ of the Diyat, if the Itlaf is 1 of such organs.
(ii). ½ of the Diyat, if the Itlaf is 2 of such organs.
(iii). ¾ of the Diyat, if the Itlaf is of 3 of such organs.
(iv). Full Diyat, if the Itlaf is of all the 4 organs.
(IV). Arsh For Fingers Under Section 337-T of Pakistan Penal Code 1860.
The value of Arsh for causing Itlaf of finger or its joint is as follows;
(i). Itlaf of Finger of Hand Or Foot.
The arsh for causing itlaf of a finger of a hand or foot shall be 1/10 of the diyat.
(ii). Itlaf of A Joint of A Finger.
The arsh for causing itlaf of a joint of a finger shall be 1/13 of the diyat.
(iii). Itlaf of Joint of A Thumb.
Where the Itlaf of the joint of thumb, the value of Arsh shall be 1/20 of Diyat.
(V). Arsh For Teeth Under Section 337-U of Pakistan Penal Code 1860.
(i). Itlaf of A Single Tooth.
The arsh for causing itlaf of a tooth, other than a milk tooth, shall be one-twentieth of the diyat.
(ii). Itlaf of 20 Or More Tooth.
The arsh for causing itlaf of twenty or more teeth shall be equal to the value of diyat.
(iii). Itlaf of A Milk Tooth Where It Impedes The Growth of New Tooth.
Although the punishment for Itlaf of Milk Tooth is Daman with imprisonment, but where such Itlaf obstruct or block the growth of a new Tooth, the punishment shall be Arsh equivalent to 1/20 of Diyat.
(IV). Arsh For Hair Under Section 337-V of Pakistan Penal Code 1860.
(i). Uprooting of All The Hair.
Where anyone uproots all the hair of the head, beard, moustaches eyebrow, eyelashes or any other part of the body shall be liable to arsh equal to diyat and may also be punished.
(ii). Uprooting of One Eyebrow.
One eyebrow shall be liable to arsh equal to one- half of the diyat.
(iii). Uprooting of One Eyelash.
One eyelash shall be liable to arsh equal to one fourth of the diyat
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