The Doctrine of Prescription in Islamic Criminal Law and Its Application in Pakistan: A Contemporary Comparative Study

Abstract

Abstract

This study examines the doctrine of prescription (statute of limitations) in Islamic criminal law, with a focus on its theoretical underpinnings, juristic divergence, and application in Pakistan’s hybrid legal system. It explores the permissibility of time-based limitations in prosecuting ḥudūd (fixed penalties), qiṣāṣ (retribution), and taʿzīr (discretionary punishments), particularly analyzing the divergence between the Ḥanafī school—which permits limitation in certain ḥudūd cases based on evidentiary doubt (shubhah)—and the Mālikī, Shāfiʿī, and Ḥanbalī schools, which reject temporal restrictions for divine rights (ḥuqūq Allāh). The paper highlights the Ḥanafī reliance on the maxim al-ḥudūd tudraʾ bi-l-shubuhāt (“ḥudūd are averted by doubts”) and notes that early Ḥanafī jurists, including Abū Ḥanīfa, proposed specific limitation periods, such as six months. In contrast, the majority jurists maintain that divine rights are timeless and not subject to human procedural constraints. Greater procedural flexibility is observed in taʿzīr cases, especially where public interest (maṣlaḥa) or private pardon is involved. The study further assesses the statutory and procedural landscape in Pakistan, where the Hudood Ordinances (1979) codify ḥudūd punishments without specifying limitation periods, thus creating ambiguity in criminal prosecutions. While the Limitation Act (1908) and the Criminal Procedure Code apply time bars to minor offenses, serious crimes remain exempt—reflecting Anglo-common law influence without harmonization with Islamic jurisprudential principles.

Original Contribution: This research makes a novel contribution by providing a focused comparative analysis of classical Islamic jurisprudence and Pakistani statutory practice concerning criminal limitation. It is the first to argue for integrating shubhah-based limitation doctrines derived from Ḥanafī jurisprudence into Pakistan’s legal framework. By grounding the analysis in both traditional fiqh and contemporary legal standards, the study offers a principled proposal for statutory reform that upholds procedural fairness and aligns legal practice with the higher objectives of Sharīʿah (maqāṣid al-sharīʿah).