The opportunity a man has to exercise
his will is one of the greatest favours the Almighty has blessed him with.
However, just as this freedom is a source of honour for him, its misuse
is a source of dishonour for him because from every instance of misuse
emanates evil and disorder. This is precisely what the angels had feared
when the Almighty informed them about his intention to create man:
Allah! will thou create someone who will spread evil
in the earth and shed blood. (2:30)
In the history of mankind, the first manifestation
of this evil took place through the hands of Cain, the son of Adam. Consequently,
out of this incident arose the need to protect man from the evil of man.
It was evident from the a priori norms of sense and reason revealed by
the Almighty in human nature that the only way to shield man from such
evil was to reform the environment and educate and urge people; however,
once a crime was committed, the solution was to administer appropriate
punishment. What then should be the ways and means adopted for this reproof
and chastisement? Since, in this regard, human intellect could falter and
stumble, and history also bears evidence that it has repeatedly done so,
the Almighty Himself revealed His directives about these issues. Through
His Prophets, He gave mankind His Shari#‘ah,
in which, besides other decrees, He divinely ordained the punishments of
certain grave crimes concerning life, wealth, honour and the collective
system of a society.
These major crimes are:
1. Muh@a#rabah
and Spreading Disorder.
2. Murder and Injury.
3. Theft.
4. Fornication.
5. Falsely accusing someone of Fornication.
It should remain in consideration
at the outset that these punishments can only be administered in an Islamic
State under a properly instituted government. The reason for this condition
is that the su#rahs in which
these punishments are mentioned were revealed in Madi#nah
where an Islamic state had been established under the rule of the Prophet
(sws). Consequently, a group or person who is not at the helm of affairs
in a country, then he has no right to administer these punishments. In
the ‘urf (usage) of the Qur’a#n,
the words ‘amputate the hands’ and ‘flog [the criminal]’ of these verses
are addressed to the rulers of the Muslims; no one else can be regarded
as their addressees. Abu# Bakr Jas@s@a#s@
writes in his ‘Ah@ka#m
al-Qur’a#n’:
Any learned person who comes across these words, immediately
understands that the rulers of an Islamic State are its addressees and
not the common Muslims. Consequently, the implied words, for example, are:
‘the rulers should amputate their hands’, and ‘these rulers should flog
them’. (Abu# Bakr Jas@s@a#s@,
‘Ah@ka#m
al-Qur’a#n’, 1st ed., vol 3, (Beirut:
Da#ru’l-Kita#b
al-Arabi#, 1325 AH) p. 283)
Similarly, it should also remain clear
that these punishments shall be administered not only to the Muslim subjects
of an Islamic State, but also to its non-Muslim ones. The way the Qur’a#n
has mentioned them leaves no room for differentiating between the two.
Consequently, it is a known historical fact that the Prophet (sws) as well
as the Rightly Guided Caliphs gave these punishments to the non-Muslims
as well. This is part of the public law of Islam, and no one can be shown
any lenience in this regard.
Also, the punishments of the lesser
forms of the crimes mentioned above, and the punishments of other crimes
have been left by the Shari#‘ah to
the state with one exception: the death sentence, according to the Qur’a#n,
can only to be given to a person who has killed someone or to someone who
is guilty of spreading disorder in the land. The Almighty has made it amply
clear that except for these two offences neither a person nor an Islamic
government has the right to kill to a person. The Qur’a#n
says:
He who killed a human being without the latter being
guilty of killing another or of spreading disorder in the land should be
looked upon as if he had killed mankind altogether. (5:32)
In the following paragraphs, this writer
shall explain the verses of the Qur’a#n
that mention these punishments of the Shari#‘ah:
1. Muh@a#rabah
and Spreading Disorder
The punishments of those who
wage war against Allah and His Prophet and strive to spread disorder in
the land are to execute them in an exemplary way or to crucify them or
to amputate their hands and feet from opposite sides or to banish them
from the land. Such is their disgrace in this world, and in the Hereafter
theirs will be an awful doom save those who repent before you overpower
them; you should know that Allah is Oft-Forgiving, Ever Merciful.(5:33-34)
It is obvious from the style of these
verses that the meaning implied by Muh@a#rabah
(waging war against Allah and His Prophet (sws)) and spreading disorder
in the land is that a person or a group of persons takes the law in its
hands and openly challenges the system of justice which in accordance with
the Shari#‘ah is established in a piece
of land. Consequently, under an Islamic government, all those criminals
who commit rape, or take to prostitution, or become notorious for their
ill-ways and vulgarity, or become a threat to honourable people because
of their immoral and dissolute practices, or openly disgrace women because
of their wealth and social status, or rise against the government in rebellion,
or create a law and order situation for the government by causing destruction,
by becoming a source of terror and intimidation for people, by committing
mass murder and plunder, decoity, robbery, by indulging in hijacking and
terrorism and by committing other similar crimes are criminals of muh@a#rabah,
and spreading such disorder in the society should be severely dealt with.
The following four punishments are
specifically prescribed for such criminals in the verse quoted above:
(1) Taqti#l.
(2) Tas@li#b
(crucifixion).
(3) Amputating limbs from opposite
sides.
(4) Nafi#
(exile).
Their explanation follows:
Taqti#l
The words ‘an yuqattalu#’
are used for it. They imply that not only should the criminals of this
category be executed but that it should be done so in a manner that serves
as a severe warning to everyone. The reason is that here the word Taqti#l
has been used instead of Qatl. In Arabic, Taqti#l
means to execute someone in such a way that there is severity in the process
of killing. Except for burning a criminal in fire and adopting other ways
prohibited by the Shari#‘ah, an Islamic
government, keeping in view this aspect, can adopt various other ways as
well. In the opinion of this writer, the punishment of Rajam (stoning
to death) is one form of Taqti#l. The
Prophet (sws) in his own times, in accordance with this directive, administered
this punishment to certain criminals guilty of adultery.
Tas@li#b
This word, like Taqti#l,
is also from the Taf‘i#l category.
Consequently, it implies that criminals should be crucified in an exemplary
manner. The cross on which crucifixion takes place is an erected structure
upon which a criminal is nailed through his hands and feet and abandoned
there till death. This form of punishment, no doubt, is exemplary but the
word Tas@li#b
demands that other means which make it still more exemplary may also be
adopted.
Amputating limbs from opposite sides
It is evident that this form of punishment
also serves as a severe warning to others. The purpose of this punishment,
it is also evident, is to make the criminal an example in front of the
society and to incapacitate and disable him from committing evil.
Nafi#
It is obvious that this punishment
of exile is the least in intensity in the punishments of this category.
The first two punishments end a criminal's life. The third punishment though
does not end his life, makes him an example in the society; however, this
fourth punishment without harming his body in anyway, only deprives him
of his house and country. The words of the Qur’a#n
require that in general circumstances this punishment should be carried
out in its true form. However, if in some cases, this is not possible,
the directive shall stand fulfilled if the criminal is confined in a particular
area or kept under house arrest.
Since the punishments mentioned in
the verse are such that each is separated from the other by the particle
aaw (or), it is evident that the Qur’a#n
has given an Islamic government the authority to administer any of these
punishments keeping in view the nature and extent of the crime, the circumstances
in which it has been committed and the consequences which it produces or
can produce in a society. The relatively lighter punishment of Nafi#
is placed with the two very severe punishments of Taqti#l
and Tasli#b so that if circumstances
are such that the criminal deserves any leniency, he should be given it.
Consequently, in accordance with this verse, the Prophet (sws), while taking
into consideration the circumstances and the nature of crime in his own
times, granted remission to certain criminals guilty of debauchery by exiling
them; similarly, while obeying this verse he stoned to death certain others
who did not deserve any leniency.
The Prophet's inquiry into the marital
status of criminals guilty of fornication was also based on this pretext
ie, whether the criminal deserved any leniency. Our jurists have erroneously
inferred from the Prophet’s inquiry that the marital status of a person
was actually the basis of the punishment and on this basis maintain that
the directive of administering a hundred stripes (the punishment of fornication
as mentioned in Su#rah Nu#r)
is only for unmarried people. Actually, the Prophet (sws) while deciding
the fate of such criminals asked many questions to see whether they deserved
any mitigation. The question of an offender’s marital status was one such
question, but our jurists concluded it was the only question asked and,
hence, made it the basis of the punishment. They, thereby, incorporated
in the penal code of Islam a totally baseless addition, which is against
the Qur’a#n as well as the norms
of sense and reason.
In the words of my mentor Imam Ami#n
Ah@san Is@la#h@i#:
In such circumstances, the fact that the criminal gang
has harmed wealth and property is not the only aspect which should be considered;
the objectives of such criminals, the site of their crime, its consequences
and circumstances should also be considered. For example, if the circumstances
are such that a war is going on or lawlessness is rampant, a stern measure
is required. Similarly, if the site of crime is a border area or an abode
of enemy intrigue and conspiracy, again an effective action is needed.
If the leader of the gang is a very dangerous person and by showing any
leniency to him, the life and wealth and honour of many people would become
endangered, then also a severe step is required. In short, the real basis
of selection between these punishments is not the mere happening of such
a crime, but the collective influence of the crime and the welfare of the
society. (Ami#n Ah@san
Is@la#h@i#,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 2, (Lahore: Faran Foundation, 1991), pp. 506-507)
Consequently, about certain habitual criminals
of fornication, the Prophet (sws) is reported to have said:
Acquire it from me, acquire it from me. The Almighty
has revealed the directive about women who habitually commit fornication
about which He had promised to reveal. If such criminals are unmarried
or are the unsophisticated youth, then their punishment is a hundred stripes
and exile and if they are widowers or are married, then their punishment
is a hundred stripes and death by stoning. (Muslim, Kita#b
al-Hudu#d)
In this H~adi#th,
the reference is to those women about whom the following temporary directive
is given in Su#rah Nisa#:
And upon those of your women who commit fornication,
call in as witnesses1 four
people among yourselves to testify over them; if they testify [to their
ill-ways], confine them to their homes till death overtakes them or God
finds another way for them. (4:15)
The style and construction of the Arabic
phrase ‘alla#ti#
ya’ti#na al-Fa#hishah’
(those women who commit fornication) clearly indicates that prostitutes
are being referred to. Since in this case the main offender is the woman,
men are not given any mention2.
The Prophet (sws) while deciding the fate of such criminals said that since
they were not merely guilty of fornication but were also guilty of spreading
disorder in the society as they had adopted profligacy as a way of life,
those among them who deserved any mitigation should be administered the
punishments of a hundred stripes according to the second verse of Su#rah
Nu#r because of committing fornication
and exiled according to verse 33 of Su#rah
Ma#’idah to protect the society
from their dissolute practices, and those among them who did not deserve
any leniency, should be stoned to death according to the directive of Taqti#l
of the same verse of Su#rah Ma#’idah.
The words ‘unsophisticated’ or ‘unmarried’
and ‘widower’ or ‘married’ of the H~adi#th
quoted above are meant to explain this very principle. A hundred stripes
are mentioned with Rajam (stoning to death) merely to explain the
law. Ah@a#di#th
verify that the Prophet (sws) mentioned this punishment of a hundred
stripes with Rajam but never actually administered them. The reason
is that adding any other punishment to the punishment of death is against
legal ethics. The punishments of whipping, jailing the offender and exacting
a fine from him are given for two purposes: to severely admonish him for
his future life and to make him a means of severe warning for the society.
In the case of death sentence, obviously, there is no need for further
admonition. Hence, if a criminal is to be punished for various crimes and
the death penalty is one of the punishments, all the punishments are stated
in the judgement but, in practice, only the death sentence is carried out.
The plurals Yas‘awna (they
strive) and Yuh@a#ribu#na
(they wage war) mentioned in the verse point out that if a gang of
criminals has committed the crime, the punishment shall not be given to
each criminal but to the gang as a whole. Consequently, if a gang of criminals
of this first category is guilty of crimes as murder, hijacking, fornication,
sabotage and intimidating people, there is no need to investigate exactly
who among the gang actually committed the crime. Every member of the gang
shall be held responsible for it and dealt with accordingly. The words
‘such is their disgrace in this world’ used in the verse indicate that
while inflicting punishment upon such criminals no feelings of sympathy
should arise. The Almighty who created them has ordained complete disgrace
and humiliation for them, if they commit such crimes. This is the very
purpose of this punishment and should always be taken in consideration.
In the words of Imam Ami#n Ah@san
Is@la#h@i:
Their humiliation in this world will be a means of severe
warning for others and for those who do not respect the law on the mere
grounds that laws deserve respect and as such are useful in maintaining
order and discipline in the society. In present times, the conceptions
of sympathy and mercy for crimes and criminals have taken the shape of
a whole philosophy. It is due to their courtesy that though today it seems
as if man is developing and progressing in the various fields of life,
yet he is creating for himself a Hell on earth. Islam does not encourage
such absurd philosophies. Its law is not based upon fantasies but upon
human nature. (Ami#n Ah@san
Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed., vol.
2, (Lahore: Faran Foundation, 1991), p. 507)
The words ‘save those who repent before
you overpower them’ of the verse impose the condition that if such criminals
come forward and give themselves up to the law before the government lays
hands on them, then they shall be dealt with as common criminals. They
will not be regarded as criminals of Muh@a#rabah
and Spreading Disorder. To quote Imam Ami#n
Ah@san Is@la#h@i:
These special powers should only be used against those
rebellious people who insist on their rebellion before the government is
able to seize them and the government had to actually subdue them by force.
However, those criminals who repent and mend their ways before any action
by the government shall not be dealt with according to their former status
and shall be dealt with according to the ordinary law about such crimes.
If they have usurped the rights of common citizens, compensation shall
be provided to these citizens.
If the stress of the words ‘you should know’ is understood,
it becomes clear that no measure of retaliation by the government is permitted
if the criminals repent and reform themselves before the government captures
them. The Almighty is Merciful and Forgiving; if He forgives a person who
repents before he comes under the grasp of the law, why should His servants
adopt a different attitude? (Ami#n Ah@san
Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 2, (Lahore: Faran Foundation, 1991), p. 508)
Here, it should remain clear that those
who confess simply because they have no means to escape the law are an
entirely different case. In their case, the government, indeed, has the
authority to refuse any mitigation, if it wants to.
2. Murder and Injury
Intentional
O ye who believe! decreed for
you is the Qis@a#s@
of those among you who are killed such that if the murderer is a free-man,
then this free-man should be killed in his place and if he is a slave,
then this slave should be killed in his place and if the murderer is a
woman, then this woman shall be killed in her place. Then for whom there
has been some remission from his brother, [the remission] should be followed
according to the Ma‘ru#f and
Di#yah should be paid with goodness.
This is a concession and a mercy from your Lord. After this, whoever exceeds
the limits shall be in a torment afflictive. There is life for you in Qis@a#s@
O men of insight! that you may follow the limits set by Allah. (2:178-179)
Just as this directive of Qis@a#s@
has been given to us, it was given to the previous nations of the Prophets.
While referring to the Old Testament the Qur’a#n
says:
And We enjoined for them therein: life for life, eye
for eye, nose for nose, ear for ear, tooth for tooth, wound for wound.
Then he who forgoes [retaliation], his remission shall be an atonement
for the criminal. And those who do not judge according to what Allah has
revealed, it is they who are the wrongdoers. (5:45)
It is evident from this verse that this
directive of Qis@a#s@,
not only pertains to murder but also relates to wounding or injuring someone.
According to the Qur’a#n, all
these crimes are heinous but as far as murder is concerned, the Qur’a#n
says that murdering a person is like murdering the whole mankind:
He who killed a human being without the latter being
guilty of killing another or of spreading disorder in the land should be
looked upon as if he killed mankind altogether, and he who saved a human
being should be regarded as though he saved all mankind. (5:32)
Furthermore, the Qur’a#n
says that a person who commits such a grave offence, particularly against
a Muslim, shall face the eternal punishment of Hell:
And he who intentionally killed a believer, his reward
is Hell. He shall abide therein forever, and the wrath and the curse of
God are upon him. He has prepared for him a dreadful doom. (4:93)
Consequently, the duties and responsibilities
which this type of murder imposes on us as Muslims can be summed up in
the following words of Imam Ami#n Ah@san
Is@la#h@i:
Firstly, every such occurrence should create a tumult
and commotion in the nation. Until and unless Qis@a#s@
is taken from the criminal responsible for it, everyone should feel that
he no longer has the protection of the law he formerly had. The law is
the protector of all and if it has been violated, a single person has just
not been slain, but the lives of all the persons are in danger.
Secondly, to search for the murderer is not just the
responsibility of the heirs of the murdered person, but of the whole nation
as it is not that only one life has been taken -- rather all the lives
have been taken.
Thirdly, if a person sees someone in danger, he should
not ignore the situation by thinking that he is interfering in someone's
affair; rather he should defend and protect him as much as he can, even
if he has to endure difficulties; for a person who defends an aggrieved
and oppressed person, in fact, defends humanity of which he himself is
a part.
Fourthly, a person who hides someone's murder, bears
false evidence in favour of the murderer or stands surety for him, or gives
refuge to him or legally pleads for him, or intentionally excuses him,
in fact, does so for the murder of his own self, his father, his brother,
and his son because the murderer of one is the murderer of all.
Fifthly, to help the government or the heirs of the slain
person in taking Qis@a#s@
is like giving a life to the slain person because, according to the Qur’a#n,
there is life in Qis@a#s@.
(Ami#n Ah@san
Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 2, (Lahore: Faran Foundation, 1991), p. 503)
The Islamic law about this type of murder
is that the real claimant in it is not the government but the heirs of
the murdered person. The government is only obligated to help them and
implement with all force what they want.
A little deliberation shows that it
is this very principle which distinguishes the Islamic Law in this regard
from other systems of law. It not only leaves the criminal’s fate to the
people against whom the crime has been perpetrated in order to appease
their spirit of revenge, but also goes a long way in ridding the society
from such crimes. Writes thus Imam Ami#n
Ah@san Is@la#h@i:
In matters of Qis@a#s@,
the importance which Islam has given to the will and intention of the heirs
of the slain has many aspects of wisdom in it. Leaving the life of the
killer directly at the mercy of the heirs of the murdered person compensates
to some extent the tremendous loss caused. Furthermore, if the heirs of
the slain person adopt a soft attitude at that moment, they do a big favour
to the murderer and his family, which produces many useful results. (Ami#n
Ah@san Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 1, (Lahore: Faran Foundation, 1991), p. 433)
However, this does not at all mean that
the heirs of the slain person in their capacity as heirs should exceed
the limits and, for example, slay others besides the slayer in frenzy of
revenge or out of prejudice for their status and superiority demand the
execution of a free person in place of a slave or a man in place of a woman,
or kill the criminal by torturing him, or take out their venom on his dead
body or adopt those methods of killing which have been prohibited by the
Almighty like burning someone in fire or mutilating his corpse; or in cases
of injury, when there is a strong chance that Qis@a#s@
would inflict more harm on the inflicter than the harm he himself had caused,
they still insist upon limb in place of limb and wound in place of wound.
The Qur’a#n
says:
And whoever is killed wrongfully, We have given his heir
an authority. So he should not exceed the bounds in taking a life, for
he has been helped [by the law]. (17:33)
It is however apparent that in case the
slain person has no heirs or if he has heirs and owing to some reason they
have no interest in his affairs or if their interest resides with the slayer
and his accomplices, the claimant shall, no doubt, be the government and
shall have all the authority which the heirs of the slain person have.
The law of Qis@a#s@
which is mentioned in Su#rahs Baqarah
and Ma#’idah is based on
the following three clauses:
Firstly, Qis@a#s@3
is an obligation imposed by the Almighty on an Islamic State. It guarantees
survival to a society and is, in fact, a Divine Law which can only be breached
by those who wrong their souls. Consequently, it is the responsibility
of the government to search for the murderer, arrest him and implement
the will of the heirs of the murdered person.
Secondly, complete equality should
be observed in taking Qis@a#s@.
Hence, if the murderer is a slave, only this slave should be executed and
if the murderer is a free man, only this free man should be executed. A
person’s social status should never create an exception in this rule of
equality nor should it be given any emphasis in this regard.
Thirdly, the heirs of the slain or
wounded person have only two options: they can either demand life for life,
limb for limb wound for wound or forgive the criminal and accept Di#yah
from him. The latter case, according to the Qur’a#n
is a favour and rebate by the Almighty on the criminal. Consequently,
their forgiveness shall become an atonement (Kaffa#rah)
for the criminal and as a result the government shall not lay hands on
him at all.
Fourthly, if the heirs of the slain
or wounded person agree to accept Di#yah
then this should be given to them with goodness and goodwill. In the words
of Imam Ami#n Ah@san
Is@la#h@i:
The directive of paying Di#yah
with goodness has been given because in that period in Arabia, Di#yah
was generally not given in the form of cash; it was paid in kind or
in the form of animals. Therefore, if the payers of Di#yah
had any ill-intention in their hearts, they could defraud the receiving
party. It is easily possible in case of camels and goats or dates and other
grains to pay Di#yah as far as the
agreed quantity and weight is concerned, disregarding their quality and
nature. This would amount to ignoring the favour done by the aggrieved
party by forgiving the murderer. Someone whose life had been left at the
mercy of a person by the Shari#‘ah
had been forgiven by him and had agreed to accept some wealth instead.
This favour should be answered by favour only, ie, the payment of Di#yah
should be done with such magnanimity and munificence that the heirs of
the slain person should not feel that by accepting camels and goats in
place of the life of a beloved they had committed a mistake or done something
dishonourable. (Ami#n Ah@san
Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 1, (Lahore: Faran Foundation, 1991), p. 434)
The basic objective of this law, as is
mentioned by the Qur’a#n, is
to protect life. Imam Ami#n Ah@san
Is@la#h@i
explains this in the following way:
If a murderer is executed because of his crime, it apparently
seems as if a second life has been taken, but a little deliberation shows
that this punishment is actually a guarantee of the life of the whole society.
If this punishment is not carried out, the mental disorder in which a person
commits this crime is actually transmitted to the society. The extent of
various diseases differs: diseases which result in such heinous crimes
as murder, robbery theft or fornication are like those diseases in which
it is necessary to amputate some limb of the body to save the whole body.
Amputating a limb may seem a callous act, yet a doctor has to be callous.
If by showing sympathy to this limb he does not force himself to this cruelty,
he shall have to bear with the patients death.
A society in its collective capacity is like a body.
At times, its limbs get infected to the extent that the only option is
to cut them from the body through an operation. If sympathy is shown by
considering it to be the limb of a patient, there is all the chance that
this would fatally effect the whole body. (Ami#n
Ah@san Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 1, (Lahore: Faran Foundation, 1991), p. 436-7)
Unintentional
It is unlawful for a believer
to kill a believer except if it happens by accident. And he who kills a
believer accidentally must free one Muslim slave and pay Di#yah
to the heirs of the victim except if they forgive him. If the victim is
a Muslim belonging to a people at enmity with you, the freeing of a Muslim
slave is enough. But if the victim belongs to an ally, Di#yah
shall also be given to his heirs and a Muslim slave shall also have to
be set free. He who does not have a slave, must fast two consecutive months.
This is from Allah a way to repent from this sin: He is Wise, All-Knowing.
(4:92-93)
In Islamic law, according to the Qur’a#n,
the punishment of unintentionally murdering or wounding in some cases is
Di#yah and Atonement (Kaffa#rah),
and in some cases only Atonement except if the wounded person or the heirs
of the slain person forgive the criminal. In this case, life for life,
wound for wound and limb for limb cannot be demanded from a person.
This law is based on three clauses:
Firstly, if the murdered person is
a Muslim citizen of an Islamic State or if he is not a Muslim but belongs
to a nation with which a treaty has been concluded, it is necessary for
the murderer who has not been forgiven to pay Di#yah
that he atone this sin and repent before the Almighty and free a Muslim
slave as well.
Secondly, if the murdered person is
a Muslim and belongs to an enemy country, the murderer is not required
to pay Di#yah; in this case, it is
enough that he only free a Muslim slave.
Thirdly, in both these cases, if the
criminal does not have a slave, he should consecutively fast for two months.
These are the directives as far as
unintentional murder4 is concerned.
But it is obvious that the directive of unintentionally injuring someone
should also be no different. Hence, in this case also Di#yah
shall have to be paid and fasts shall have to be kept considering the amount
of Di#yah paid. For example, if the
Di#yah of a certain type of wound is
fixed at one third of the Di#yah of
murder, twenty fasts as atonement shall also have to be kept.
An important issue in these directives
of intentional and unintentional murder is the amount of Di#yah
to be given and its methodology.
In verse 92 of Su#rah
Nisa# quoted above, the words Di#yatun
mussalamatun ila# ahlihi#
are used. The word Di#yah in these
verses occurs as a common noun, about which we all know that its meaning
is determined by its linguistic and customary usage, and by the context
in which it is used. Nothing other than these are required. Therefore,
in this verse Di#yah means something
which in the general custom and usage is called ‘Di#yah’.
And the words Di#yatun mussalamatun ila#
ahlihi# simply mean that the family of
the murdered person should be given what the general custom and tradition
terms as ‘Di#yah’.
In verse 178 of Su#rah
Baqarah, where the directive of Di#yah
in case of intentional murder has been given, the word Ma‘ru#f
is used to qualify it:
Then for whom there has been some remission from his
brother, [the remission] should be followed according to the Ma‘ru#f
and Di#yah should be paid with
goodness. (2:178)
It is evident from the above mentioned
verses of Su#rah Nisa#
and Su#rah Baqarah that in case
of intentional as well as un-intentional murder, the Qur’a#n
wants Di#yah to be paid according to
the custom and tradition of the society. It has not prescribed any specific
amount for Di#yah nor has it obligated
us to discriminate in this matter between a man or a woman, a slave or
a free man and a Muslim or a non-Muslim. The Prophet (sws) and his Rightly
Guided Caliphs decided all the cases of Di#yah
according to the customs and traditions of the Arabian society during their
own times. The quantities of Di#yah
which have been mentioned in our books of H~adi#th
and Fiqh are in accordance with this custom and tradition, which
itself has its roots in the social conditions and cultural traditions of
the Arabs. However, since then, the wheel of fortune has revolved through
fourteen more centuries and the tide of time has sped past innumerable
crests and falls. Social conditions and cultural traditions have undergone
a drastic change. In present times, it is not possible to pay Di#yah
in the form of camels nor is it a very wise step to fix the amount of Di#yah
on this basis. The nature of ‘Aa#qilah’
has completely changed and various forms of unintentional murder have come
into existence which could never have been imagined before. We know that
the guidance provided by the Qur’a#n
is for all times and for every society. Hence, in this regard it has directed
us to follow the Ma‘ru#f which
may change with time. By this Qur’a#nic
directive, every society is to obey its customs, and since in our own society
no law about Di#yah existed previously,
those at the helm of our state can either continue with the above mentioned
Arab custom or re-legislate in this regard; whatever they do, if the society
accepts the legislation, it will assume the status of our Ma‘ru#f.
Also, it is obvious that those in authority in any society can revise and
re-structure the laws which are based on the Ma‘ru#f,
keeping in view the collective good of the masses.
3. Fornication
1. And upon those of your women
who habitually commit fornication, call in four people among yourselves
to testify over them5;
if they testify [to their ill-ways], confine them to their homes till death
overtakes them or God finds another way for them. And the man and woman
among you who commit fornication, punish them. If they repent and mend
their ways, leave them alone. For God is Oft-Forgiving and Most Merciful.
(4:15-16)
This is the initial directive of the
Qur’a#n regarding the punishment
of fornication. No definite punishment is mentioned here; it is only said
that that until some directive is revealed about women who as prostitutes
habitually commit fornication, they should be confined to their homes,
and the common perpetrators of this crime should be tortured until they
repent and mend their ways. This torture may range from exhorting and reprimanding,
scolding and censuring, humiliating and disgracing the criminal to beating
him up to the extent of reforming him. This was the punishment of fornication
in the Shari#‘ah before a definite
directive was revealed in Su#rah
Nu#r. Once this was revealed, it
repealed the previous directive permanently.
2. The man and the woman guilty
of fornication, flog each of them with a hundred stripes and let not compassion
move you in their case in the enforcement of the law of God, if you truly
believe in Allah and the Last Day. And let a party of the believers witness
their punishment. The man guilty of fornication may only marry a woman
similarly guilty or an idolateress and the woman guilty of fornication
may only marry such a man or an idolater. The believers are forbidden such
marriages. (24:4-9)
These verses repeal the verses of
Su#rah Nisa#
mentioned above and spell out a permanent punishment of fornication. The
directives mentioned in these verses can be explained thus:
1. The man or woman who have committed
fornication, both shall receive a hundred stripes. According to the methodology
adopted by the Prophet (sws) and the Rightly Guided Caliphs and according
to case precedents reported in our books of the H~adi#th
in this regard:
i) The strike should be of medium
power and the task of flogging should not be entrusted to cruel, professional
executioners; on the contrary, it should be carried out by the wise elders
of the society.
ii) Whether a cane is used to flog
a criminal or a lash, in both cases it should neither be very thick and
hard nor very thin and soft.6
(Mu’at@t@a#
of Imam Ma#lik)
iii) The criminal should not be beaten
bare-bodied or while tied to a tripod.7
iv) The criminal should not be flogged
in a manner that wounds him nor should he be flogged on one part of the
body: the flogging should be distributed all over the body except for his
face and private parts.8
v) A pregnant woman should only be
flogged after she has given birth and the period of puerperal haemorrhage
(Nafa#s) has passed.9
2. The criminal should be given this
punishment publicly to humiliate him in front of the people, and to make
him a lesson for those present. The verse directs the government or the
court of justice not to show any lenience in this regard. This harsh treatment
given to the criminal is necessary because the stability of a society relies
on the sanctity of the relationships in a family and on their protection
from every type of disorder. Fornication, a little deliberation shows,
makes a society unstable and turns it into a herd of animals. It, therefore,
deprives a society of its well-being and prosperity. Hence, such criminals
should be dealt with without showing them any compassion.
Writes Ami#n
Ah@san Is@la#h@i
in his celebrated commentary of the Qur’a#n:
No lenience should be shown in the implementation of
this punishment; softness should be shown to neither a woman nor a man,
to neither rich nor poor. The limits set by Allah should be observed without
granting any alleviation or showing partiality, for this is a requirement
of belief in Allah and in the Hereafter. The faith in Allah and the Hereafter
of those who show weakness in this regard cannot be trusted. A noteworthy
point in the statement of this punishment is that the woman is mentioned
before the man. One reason for this is that without a woman's consent fornication
cannot take place; secondly there is a strong possibility that being the
weaker sex, feelings of compassion may arise for her; the Qur’a#n,
therefore, has mentioned her before the man so that it becomes evident
from the style of the verse that in the Almighty's eyes no lenience should
be shown to either woman or man. (Ami#n
Ah@san Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 5, (Lahore: Faran Foundation, 1991), p. 362)
It is with these sentiments of impartiality
in the observance of the limits of Allah that the Prophet (sws) had said:
By God! if Fa#timah
the daughter of Muhammad had committed this theft, I would definitely
have cut off her hand. (Muslim, Kita#b
al-Hudu#d)
3. After this punishment has been carried
out, no chaste man or woman should marry men and women who commit fornication.
According to the Qur’a#n, such
people can only marry among their own sort or among the idolaters. It does
not allow the marriage of a pious woman with a man guilty of committing
fornication nor does it permit a pious man to bring home such a woman in
his house. Consequently, every such marriage is not considered legal in
Islam. The wording of the verse clearly forbids such marriages. However,
as stated earlier, this directive pertains only to the fornicators (both
male and female) who have become liable to punishment once their crime
has been proven. This is what linguistic principles dictate; ie the words
al-za#ni#
(male fornicator) and al-za#ni#yah
(female fornicator) of the second verse refer to the al-za#ni#
(male fornicator) and al-za#ni#yah
(female fornicator) mentioned in the previous one.
4. While stating this punishment,
adjectives are used to qualify the men and women who commit fornication.
This is similar to the statement in which the punishment for theft is mentioned.
It is evident therefore that this punishment is the utmost punishment,
which should be given only when the crime has been committed in its ultimate
form and the criminal does not deserve any lenience as far as the circumstances
of the crime are concerned. Consequently, criminals who are foolish, insane,
those who have been compelled by circumstances or those who are without
proper family protection are all exempt from this punishment.
About those women whom their masters
force to take to prostitution, the Qur’a#n
says:
But if anyone compels them, Allah will be Forgiving and
Merciful to them. (24:33)
Similarly, about the slave women who were
present in the Prophet's times, it says that they also cannot be administered
this punishment because of improper upbringing and education and because
of lack of family protection -- so much so that if their husbands and masters
have done all they can to keep them chaste and inspite of this they commit
the crime, they shall be given only half this punishment ie, fifty stripes.
The Qur’a#n says:
And then when they are kept chaste and they commit fornication,
their punishment is half that of free women. (4:25)
5. The law of wrongly accusing someone
of fornication, as explained below also indicates that the Almighty does
not like that a criminal confess to his crime himself or that those who
are aware of his crime report this matter to the authorities. The Prophet
(sws) has said:
He among you who gets involved in such filth, should
hide behind the veil stretched out for him by Allah, but if he unfolds
the veil, we shall implement the law of Allah upon him. (Mu’at@t@a#,
Kita#b al-Hudu#d)
Similarly, he once told a person:
If you had hidden the crime of this [person], it would
have been better for you. (Mu’at@t@a#,
Kita#b al-Hudu#d)
4. Qadhf
Those who accuse honourable women
and bring not four witnesses as an evidence [for their accusation], inflict
eighty stripes upon them, and never accept their testimony in future. They
indeed are transgressors. But those who repent and mend their ways, Allah
is Oft-Forgiving and Most-Merciful. And those who accuse their wives but
have no witnesses except themselves shall swear four times by Allah that
they are telling the truth and the fifth time that the curse of Allah be
on them if they are lying. But this shall avert the punishment from the
wife if she swears four times by Allah and says that this person is a liar
and the fifth time she says that the curse of Allah be on her if he is
telling the truth. (24:4-9)
This is the directive for Qadhf,
ie falsely accusing someone of fornication. Although in these verses only
the accusing of women is mentioned, yet in the Arabic language this style
which can be termed as ‘addressing the dominant element’ (‘ala#
sabi#l al-taghli#b)
is adopted because normally in a society only women become targets of such
allegations, and the society is also sensitive about them. Consequently,
there is no doubt that on the ground of ‘similarity of basis’ this directive
pertains to both men and women and cannot be restricted to women only.
In the above quoted verses, two forms
of Qadhf are stated:
Firstly, if a person accuses a chaste
and righteous woman or man of fornication.
Secondly, if such an accusation takes
place between a husband and wife.
In the first case, the law of Islam is that the accuser
shall have to produce four witnesses. Anything less than this will not
prove his accusation. Mere circumstantial evidence or mere medical examination
in this case is absolutely of no importance. If a person is of lewd and
loose character, such things have a very important role, but if he has
a morally sound reputation, Islam wants that even if he has faltered, his
crime should be concealed and he should not be disgraced in the society.
Consequently, in this case, it wants four eye-witnesses for the testimony
to beginning the hearing, and if the accuser fails to produce them, it
regards him as guilty of Qadhf.
According to the Qur’a#n,
the details of the punishment of Qadhf are:
1. The criminal shall be administered
eighty stripes.
2. His testimony shall never be accepted
in future in any matter, and as such he shall stand defamed in the society.
Administering eighty stripes and not
considering a person eligible to bear witness are punishments of the Herein,
while in the Hereafter he shall be counted among the transgressors except
if he repents and mends his ways.
In the second case, ie if such an
instance takes place between a husband and wife then according to the Qur’a#n,
if there are no witnesses, then the matter shall be decided by pledging
oaths. In Islamic law, this case is termed as ‘Li‘a#n’.
The husband shall swear four times by Allah that he is truthful in his
accusation and the fifth time he shall swear that the curse of Allah be
on him if he is lying. In reply, if the wife does not defend herself in
anyway, she shall be punished for fornication10.
If she refutes the allegations, she shall only be acquitted from the punishment
if she swears four times by Allah that the person is lying and the fifth
time she says that the wrath of Allah be on her if he is telling the truth.
The same procedure shall be adopted
if the wife accuses the husband.
If such an incident takes place between
a husband and wife, they shall no longer remain in wedlock according to
the verse ‘The man guilty of fornication may only marry a woman similarly
guilty or an idolateress and the woman guilty of fornication may only marry
such a man or an idolater. The believers are forbidden such marriages’
(24:3), and it is essential that a court legally separate them.
5. Theft
As to the thief, male or female,
cut off their hands as a reward of their own deeds, and as an exemplary
punishment from God. For God is Mighty and Wise. But whoever repents and
mends his ways after committing this crime shall be pardoned by Allah.
Allah is Forgiving and Merciful. (5:38-39)
The law which has been stated in the
above mentioned verses is based on the following clauses:
1. The punishment of amputating the
hands is prescribed for a thief, both male (Sa#riq)
or female (Sa#riqah). According
to linguistic principles, the words Sa#riq
and Sa#riqah are adjectives
and denote thoroughness and completeness in the characteristics of the
verb they qualify. Consequently, they can only be used for the type of
Sarqah which can be called a theft and the one who commits it is called
a thief. In other words, if a child steals a few rupees from his father's
pocket, or a wife pinches some money from her husband, or if a person steals
something very ordinary, or plucks some fruit from his neighbour's orchard,
or carries away something valuable which has been left unprotected, or
drives away an unattended grazing animal, or commits this ignoble offence
owing to some need or compulsion, then, no doubt all these are unworthy
acts and should be punished, but, certainly, they cannot be classified
as acts of theft which the above given verse qualifies. Consequently, the
Prophet (sws) is said to have said:
If a fruit is hanging from a tree or a goat is grazing
on a mountain side and someone steals them, then hands should not be amputated
for this. But if the fruit is stacked in a field and the goat is in a pen
fold, then hands should be amputated on the condition that the goat is
at least the price of a shield. (Mu’at@t@a#,
Kita#bu’l-Hudu#d)
This shows that the amputation of hands
is the utmost punishment and should only be administered when the criminal
does not deserve any mitigation as far as the nature and circumstances
of his crime are concerned.
2. This punishment, according to the
Qur’a#n, should be exemplary
in nature. Furthermore, the words of the verse entail the severing of the
right hand, which is actually the instrument of the crime. Although the
words ‘as a reward of their deeds’ make a subtle indication to this, the
profound intellect of the Prophet (sws) inferred this result and made it
a permanent principle; according to it, always the right hand shall be
amputated and the word ‘hand’ on account of definite linguistic denotion
means that part of the arm which is below the wrist.
3. The objective of this punishment
is stated in the words: jaza# an@
bima# kasaba naka#lan@
minalla#h ( as a reward of their
deeds and as an exemplary punishment). Imam Ami#n
Ah@san Is@la#h@i#
explains this in the following way:
(In this verse) two reasons have been stated for the
amputation of hands: firstly, it is the punishment of the crime, and secondly,
the punishment has to be given in an exemplary way which is a means of
a severe warning to others. The Qur’a#n
uses the word Naka#l for such
a punishment. Since both these reasons are stated adjacently without any
conjunction between them, they must be regarded as essentials in carrying
out the punishment ie, a means of retribution of the crime and as a means
of a severe warning for the society. Those who do not simultaneously take
into consideration both these aspects often end up thinking that the punishment
is severer than the crime itself. The actual fact is that this punishment
is not only the retribution of the criminal act, but it is also a means
to putting an end to the many crimes which may be triggered as a result
if the criminals are not totally discouraged by treating them harshly.
Like the craving for sex, the lust for wealth is equally intense in a person.
If this lust is allowed to thrive and prosper, the consequences which arise
may well be observed in our own society by any keen eye. If a list of crimes
committed in the most civilised of countries in one year only because of
theft is prepared, it will be enough to open the eyes. The faint hearts
of these civilised societies are deeply moved if hands are amputated because
of theft, yet the horrendous crimes which result directly or indirectly
through theft fail to rouse any feelings of concern in them. Theft is not
a simple crime: it is a source of many crimes. If this crime is eliminated,
these crimes shall automatically be taken care of. Consequently, it is
a matter of experience that the amputation of hands on account of theft
has not only reduced instances of this crimes it has also gone a long way
in reducing other crimes as well. If by amputating a few hands, the life
wealth and honour of thousands of people are safeguarded, then this is
not a bad deal at all; in fact, it is a very lucrative one. Regrettably
our intellectuals fail to appreciate this. (Ami#n
Ah@san Is@la#h@i,
Tadabbur-i-Qur’a#n, 4th ed.,
vol. 2, (Lahore: Faran Foundation, 1991), pp. 512-3)
4. This is merely a punishment in this
world. As far as the Hereafter is concerned, a person can only attain salvation
if he repents and mends his ways. Repentance and the punishment of this
world are not mutually exchangeable. Consequently, this punishment shall
be administered even if a person repents and reforms himself, and after
receiving this punishment in this world, he shall only be forgiven in the
Hereafter if he repents and mends his ways.
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