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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:
أَتَجْعَلُ
فِيهَا مَنْ
يُفْسِدُ
فِيهَا
وَيَسْفِكُ
الدِّمَاءَ؟
(30:2)ه
[Allah!] will You 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 norms of sense and reason vested by the Almighty
in human nature that the only way to shield man from such evil was to reform
his environment and educate and urge people; however, once a crime is committed,
the solution is 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 are1:
1. Muharabah and Spreading Disorder
2. Murder and Injury
3. Theft
4. Fornication
5. Qadhf (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 surahs in which these punishments are mentioned were revealed
in Madinah where an Islamic state had already been established under
the rule of the Prophet (sws). Consequently, a group or person who is not
at the helm of affairs of a country has no right to administer these punishments.
In the ‘urf (usage) of the Qur’an, the words ‘فاجلدوا’ (fajlidu:
flog [the criminal]) and ‘فاقطعوا’ (faqta‘u: amputate [the hands
of the criminal]) of these verses are addressed to the rulers of the Muslims;
no one else can be regarded as their addressees. Abu Bakr Jassas
writes in his Ahkamu’l-Qur’an:
وقد
علم من قرع
سمعه هذا
الخطاب من
أهل العلم ان
المخاطبين
بذلك هم
الائمة دون
عامة الناس
فكان تقديره :
فليقطع
الائمة
والحكام
ايديهما
وليجلدهما
الائمة و
الحكام
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 ‘the rulers should flog
them’.2
Similarly, it should also remain clear
that these punishments should be administered not only to the Muslim citizens
of an Islamic State, but also to its non-Muslim ones. The way the Qur’an
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 non-Muslims as well. This is part
of the public law of Islam, and no one can be shown any lenience in this
regard.
These are the crimes whose punishments
have been divinely ordained by the Shari‘ah. 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’an, can only be given to a person
who has killed someone or to someone who is guilty of spreading disorder
in the society. 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 a person3. The Qur’an
says:
مَنْ
قَتَلَ
نَفْسًا
بِغَيْرِ
نَفْسٍ أَوْ
فَسَادٍ فِي
الْأَرْضِ
فَكَأَنَّمَا
قَتَلَ
النَّاسَ
جَمِيعًا (32:5)ه
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 all of mankind. (5:32)
In the following paragraphs, I will explain
the verses of the Qur’an that mention these punishments of the Shari‘ah.
1. Muharabah and Spreading Disorder
إِنَّمَا
جَزَاءُ
الَّذِينَ
يُحَارِبُونَ
اللَّهَ
وَرَسُولَهُ
وَيَسْعَوْنَ
فِي
الْأَرْضِ
فَسَادًا
أَنْ
يُقَتَّلُوا
أَوْ
يُصَلَّبُوا
أَوْ
تُقَطَّعَ
أَيْدِيهِمْ
وَأَرْجُلُهُمْ
مِنْ خِلَافٍ
أَوْ
يُنفَوْا
مِنْ
الْأَرْضِ
ذَلِكَ
لَهُمْ
خِزْيٌ فِي
الدُّنيَا
وَلَهُمْ فِي
الْآخِرَةِ
عَذَابٌ
عَظِيمٌ
إِلَّا
الَّذِينَ
تَابُوا مِنْ
قَبْلِ أَنْ
تَقْدِرُوا
عَلَيْهِمْ
فَاعْلَمُوا
أَنَّ
اللَّهَ
غَفُورٌ
رَحِيمٌ (5 :33-4)ه
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. (5:33-4)
It is obvious from the style of these
verses that the meaning implied by Muharabah (waging war against
Allah and His Prophet (sws)) and spreading disorder in the land is when
an individual or a group of individuals take the law into their own hands
and openly challenge 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, take to prostitution, become notorious
for their ill-ways and vulgarity, become a threat to honourable people
because of their immoral and dissolute practices, sexually 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, plunder, decoity or robbery, by indulging
in hijacking and terrorism and by committing other similar crimes are criminals
of Muharabah, and spreading such disorder in the society should
be severely dealt with.
The following four punishments are
specifically prescribed for criminals mentioned in the verses quoted above:
(1) Taqtil (تقتيل)
(2) Taslib (تصليب:Crucifixion)
(3) Amputating limbs from opposite sides
(4) Nafi (نفى:Exile)
Their explanation follows:
Taqtil (تقتيل)
The words ‘ان
يقتّلوا’ (an
yuqattalu) are used for it and imply that not only should the criminals
of this category be executed but the execution should be carried out in
a manner that serves as a severe warning to others. The reason is that
here the word Taqtil has been used instead of Qatl. In Arabic,
Taqtil
means
to execute someone in such a way that there is severity in the process
of killing him. Except for burning a criminal in fire and adopting other
means of punishment 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 Rajm (stoning to death) is one
form of Taqtil. The Prophet (sws) in his own times, in accordance
with this directive, administered this punishment to certain criminals
guilty of adultery.
Taslib (تصليب: Crucifixion)
This word, like Taqtil, is
also from the ‘تفعيل’ (taf‘il) 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 till death.
This form of punishment, no doubt, is exemplary but the word Taslib
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
is that if the criminal is allowed to live, then he should serve as a reminder
and an example before the society and also remain incapacitated to commit
future evil.
Nafi (نفى:Exile)
It is obvious that this punishment
of exile is the least intense punishment in 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’an 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 each of the punishments mentioned
in the verse is separated from the other by the particle ‘او’
(aw: or), it is evident that the Qur’an has given an Islamic government
the flexible 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 Taqtil and Taslib 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 regarding the
marital status of criminals guilty of fornication was also based on the
pretext of 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 Surah Nur) was abrogated for married
as well as unmarried people who indulged in fornication. 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 that 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’an as well as the norms of sense
and reason.
In the words of my mentor Imam
Amin Ahsan Islahi:
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,
who if shown any leniency, would endanger the life, wealth and honour of
many people, 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 welfare of the society.4
Consequently, about certain habitual criminals
of fornication, the Prophet (sws) is reported to have said:
خُذُوا
عَنِّي
خُذُوا
عَنِّي قَدْ
جَعَلَ
اللَّهُ
لَهُنَّ
سَبِيلًا
الْبِكْرُ
بِالْبِكْرِ
جَلْدُ
مِائَةٍ
وَنَفْيُ
سَنَةٍ
وَالثَّيِّبُ
بِالثَّيِّبِ
جَلْدُ
مِائَةٍ
وَالرَّجْمُ
(مسلم: رقم 1690)ه
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: No. 1690)
In this Hadith, the reference ‘جعل
الله لهن’ (ja‘alallahu lahunna) is to those women about whom the following
temporary directive had been given in Surah Nisa:
وَاللَّاتِي
يَأْتِينَ
الْفَاحِشَةَ
مِنْ
نِسَائِكُمْ
فَاسْتَشْهِدُوا
عَلَيْهِنَّ
أَرْبَعَةً
مِنْكُمْ
فَإِنْ
شَهِدُوا
فَأَمْسِكُوهُنَّ
فِي
الْبُيُوتِ
حَتَّى
يَتَوَفَّاهُنَّ
الْمَوْتُ
أَوْ
يَجْعَلَ
اللَّهُ
لَهُنَّ
سَبِيلًا (15:4)ه
And upon those of your women who commit fornication,
call in as witnesses5 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
formulates another way for them. (4:15)
The style and construction of the phrase
‘التى
ياتين
الفاحشة’ (allati ya’tina al-fahishah: 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 mention6.
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 Surah
Nur because of committing fornication and exiled according to verse
33 of Surah 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 Taqtil of the same
verse of Surah Ma’idah.
The words ‘unsophisticated’ or ‘unmarried’
and ‘widower’ or ‘married’ of the Hadith quoted above (Muslim: No.
1690) are meant to explain this very principle. A hundred stripes are mentioned
with Rajm (stoning to death) merely to explain the law. Ahadith verify
that the Prophet (sws) mentioned this punishment of a hundred stripes with
Rajm 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 make him a means of severe warning for
the society and to severely admonish him for his future life. 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 ‘يسعون’
(yas‘awna: they strive) and ‘يحاربون’ (yuharibuna:
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 only some
of the criminals but to the gang as a whole. Consequently, if a gang of
criminals of this first category is guilty of such 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 ‘ذالك
لهم خزى فى
الدنيا’ (dhalika
lahum khizyun fi’l-dunya: 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 Amin Ahsan Islahi:
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 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.7
The words ‘إلا
الذين تابوا
من قبل ان
تقدروا عليهم’ (illalladhina
tabu min qabli ‘an taqdiru ‘alayhim: 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 Muharabah and spreading disorder.
To quote Imam Amin Ahsan Islahi:
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 ‘فاعلموا’ (fa‘lamu:
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 in the grip of the
law, why should His servants adopt a different attitude?8
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
a. Intentional
يَاأَيُّهَا
الَّذِينَ
آمَنُوا
كُتِبَ
عَلَيْكُمْ
الْقِصَاصُ
فِي
الْقَتْلَى
الْحُرُّ
بِالْحُرِّ
وَالْعَبْدُ
بِالْعَبْدِ
وَالْأُنثَى
بِالْأُنثَى
فَمَنْ
عُفِيَ لَهُ
مِنْ أَخِيهِ
شَيْءٌ
فَاتِّبَاعٌ
بِالْمَعْرُوفِ
وَأَدَاءٌ
إِلَيْهِ
بِإِحْسَانٍ
ذَلِكَ
تَخْفِيفٌ
مِنْ
رَبِّكُمْ
وَرَحْمَةٌ
فَمَنْ
اعْتَدَى
بَعْدَ
ذَلِكَ
فَلَهُ
عَذَابٌ
أَلِيمٌ
وَلَكُمْ فِي
الْقِصَاصِ
حَيَاةٌ
يَاأُوْلِي
الْأَلْبَابِ
لَعَلَّكُمْ
تَتَّقُونَ (2
:178-9)ه
O you who believe! decreed for you is the Qisas
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‘ruf and Diyat 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 Qisas
O
men of insight that you may follow the limits set by Allah. (2:178-9)
Just as this directive of Qisas
has been given to us, it was given to the previous nations of the Prophets.
While referring to the Old Testament, the Qur’an says:
وَكَتَبْنَا
عَلَيْهِمْ
فِيهَا أَنَّ
النَّفْسَ
بِالنَّفْسِ
وَالْعَيْنَ
بِالْعَيْنِ
وَالْأَنفَ
بِالْأَنفِ
وَالْأُذُنَ
بِالْأُذُنِ
وَالسِّنَّ
بِالسِّنِّ
وَالْجُرُوحَ
قِصَاصٌ
فَمَنْ
تَصَدَّقَ
بِهِ فَهُوَ
كَفَّارَةٌ
لَهُ وَمَنْ
لَمْ
يَحْكُمْ
بِمَا
أَنزَلَ
اللَّهُ
فَأُوْلَئِكَ
هُمْ
الظَّالِمُونَ
(45:5)ه
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 Qisas, not only pertains to murder but also relates
to wounding or injuring someone. According to the Qur’an, all these
crimes are heinous but as far as murder is concerned, the Qur’an says
that murdering a person is like murdering the whole of mankind:
مَنْ
قَتَلَ
نَفْسًا
بِغَيْرِ
نَفْسٍ أَوْ
فَسَادٍ فِي
الْأَرْضِ
فَكَأَنَّمَا
قَتَلَ
النَّاسَ
جَمِيعًا (32:5)ه
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 all of mankind. (5:32)
Furthermore, the Qur’an says that
a person who commits such a grave offence, particularly against a Muslim,
shall face the eternal punishment of Hell:
وَمَنْ
يَقْتُلْ
مُؤْمِنًا
مُتَعَمِّدًا
فَجَزَاؤُهُ
جَهَنَّمُ
خَالِدًا
فِيهَا
وَغَضِبَ
اللَّهُ
عَلَيْهِ
وَلَعَنَهُ
وَأَعَدَّ
لَهُ
عَذَابًا
عَظِيمًا (93:4)ه
And he who intentionally kills 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 Amin Ahsan Islahi:
Firstly, every occurrence of murder should create
a tumult and commotion in the nation. Until and unless Qisas 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 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 just one life has been taken – rather all the
lives have been taken.
Thirdly, if a person finds 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,
or 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 Qisas is like giving a life to the
slain person because, according to the Qur’an, there is life in
Qisas.9
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
of such crimes. Writes thus Imam Amin Ahsan Islahi:
In matters of Qisas, 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.10
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 Qisas 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’an says:
وَمَنْ
قُتِلَ
مَظْلُومًا
فَقَدْ
جَعَلْنَا
لِوَلِيِّهِ
سُلْطَانًا
فَلَا
يُسْرِفْ فِي
الْقَتْلِ
إِنَّهُ
كَانَ
مَنصُورًا (33:17)ه
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 Qisas which is mentioned
in Surahs Baqarah and Ma’idah is based on the following four
clauses:
Firstly, Qisas11
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 Qisas. Hence, if the murderer is a slave,
only that particular slave should be executed and if the murderer is a
free man, only that particular free man should be executed. A person’s
social status should never create an exception to 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 they can forgive the criminal and accept
Diyat from him. The latter case, according to the Qur’an is a favour
and rebate by the Almighty to the criminal. Consequently, their forgiveness
shall become an atonement (kaffarah) 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 Diyat, then this should be given
to them with goodness and goodwill. In the words of Imam Amin Ahsan
Islahi:
The directive of paying Diyat with goodness
has been given because in that period in Arabia Diyat 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 Diyat 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 Diyat 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 a favour only, ie, the payment of Diyat 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.12
The basic objective of this law, as is
mentioned by the Qur’an, is to protect life. Imam Amin Ahsan
Islahi 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 differ: 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 off 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 affect the whole body.13
b. Unintentional
وَمَا
كَانَ
لِمُؤْمِنٍ
أَنْ
يَقْتُلَ
مُؤْمِنًا
إِلَّا
خَطَأً
وَمَنْ
قَتَلَ
مُؤْمِنًا
خَطَأً
فَتَحْرِيرُ
رَقَبَةٍ
مُؤْمِنَةٍ
وَدِيَةٌ
مُسَلَّمَةٌ
إِلَى
أَهْلِهِ
إِلَّا أَنْ
يَصَّدَّقُوا
فَإِنْ كَانَ
مِنْ قَوْمٍ
عَدُوٍّ
لَكُمْ
وَهُوَ
مُؤْمِنٌ
فَتَحْرِيرُ
رَقَبَةٍ
مُؤْمِنَةٍ
وَإِنْ كَانَ
مِنْ قَوْمٍ
بَيْنَكُمْ
وَبَيْنَهُمْ
مِيثَاقٌ
فَدِيَةٌ
مُسَلَّمَةٌ
إِلَى
أَهْلِهِ
وَتَحْرِيرُ
رَقَبَةٍ
مُؤْمِنَةٍ
فَمَنْ لَمْ
يَجِدْ
فَصِيَامُ
شَهْرَيْنِ
مُتَتَابِعَيْنِ
تَوْبَةً
مِنْ اللَّهِ
وَكَانَ
اللَّهُ
عَلِيمًا
حَكِيمًا (4 :92-3)ه
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 Diyat 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, Diyat 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. (4:92-3)
In Islamic law, according to the Qur’an,
the punishment of unintentionally murdering or wounding in some cases is
Diyat
and Atonement (Kaffarah), and in some cases only Atonement (Kaffarah)
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 Diyat to atone for
his 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 Diyat; 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 murder14 is
concerned. But it is obvious that the directive of unintentionally injuring
someone should also be no different. Hence, in this case also Diyat
shall
have to be paid and fasts shall have to be kept considering the amount
of Diyat paid. For example, if the Diyat of a certain type
of wound is fixed at one-third of the Diyat 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 Diyat to be given
and its methodology. In verse 92 of Surah Nisa quoted above, the
words ‘دية
مسلمة الى
اهله’ (diyatun mussalamatun ila ahlihi) are used.
The word Diyat 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 Diyat means something which in the
general custom and usage is called ‘Diyat’. And the words ‘دية
مسلمة الى
اهله’ (diyatun mussalamatun ila ahlihi) simply mean that the family
of the murdered person should be given what the general custom and linguistic
usage term as ‘Diyat’.
In verse 178 of Surah Baqarah, where the directive
of Diyat in case of intentional murder has been given, the word
‘معروف’ (ma‘ruf: custom) is used to qualify it:
فَمَنْ
عُفِيَ لَهُ
مِنْ أَخِيهِ
شَيْءٌ
فَاتِّبَاعٌ
بِالْمَعْرُوفِ
وَأَدَاءٌ
إِلَيْهِ
بِإِحْسَانٍ
(178:2)ه
Then for whom there has been some remission from
his
brother, [the remission] should be followed according to the Ma‘ruf
and
Diyat should be paid with goodness. (2:178)
It is evident from the above mentioned
verses of Surah Nisa and Surah Baqarah that in case of intentional
as well as un-intentional murder, the Qur’an wants Diyat to
be paid according to the custom and tradition of the society. It has not
prescribed any specific amount for Diyat nor has it directed the
Muslims to discriminate in this matter between a man or a woman, a slave
or a free man and a Muslim or a non-Muslim15.
The Prophet (sws) and his Rightly Guided Caliphs decided all the cases
of Diyat according to the customs and traditions of the Arabian
society during their own times. The quantities of Diyat which have
been mentioned in our books of Hadith 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 Diyat in the form of camels nor is it
a very wise step to fix the amount of Diyat on this basis. The nature
of ‘عاقلة’ (aqilah: community/tribe) 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’an is for all times and for every society. Hence, in
this regard it has directed us to follow the ‘معروف’ (ma‘ruf:
custom) which may change with time. By this Qur’anic directive,
every society is to obey its customs, and since in our own society no law
about Diyat exists 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‘ruf. Also, it is obvious that
those in authority in any society can revise and re-structure the laws
which are based on the ma‘ruf, keeping in view the collective good
of the masses.
3. Fornication
الزَّانِيَةُ
وَالزَّانِي
فَاجْلِدُوا
كُلَّ
وَاحِدٍ
مِنْهُمَا
مِائَةَ
جَلْدَةٍ
وَلَا
تَأْخُذْكُمْ
بِهِمَا
رَأْفَةٌ فِي
دِينِ
اللَّهِ إِنْ
كُنتُمْ
تُؤْمِنُونَ
بِاللَّهِ
وَالْيَوْمِ
الْآخِرِ
وَلْيَشْهَدْ
عَذَابَهُمَا
طَائِفَةٌ
مِنْ
الْمُؤْمِنِينَ
الزَّانِي لَا
يَنكِحُ
إلَّا
زَانِيَةً
أَوْ
مُشْرِكَةً
وَالزَّانِيَةُ
لَا
يَنكِحُهَا
إِلَّا زَانٍ
أَوْ
مُشْرِكٌ
وَحُرِّمَ
ذَلِكَ عَلَى
الْمُؤْمِنِينَ
(24 :2-3)ه
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.
(24:2-3)
The initial directive of the Qur’an
regarding
the punishment of fornication is mentioned in Surah Nisa. No definite
punishment is mentioned there; 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 for the purpose
of reforming him.
وَاللَّاتِي
يَأْتِينَ
الْفَاحِشَةَ
مِنْ
نِسَائِكُمْ
فَاسْتَشْهِدُوا
عَلَيْهِنَّ
أَرْبَعَةً
مِنْكُمْ
فَإِنْ
شَهِدُوا
فَأَمْسِكُوهُنَّ
فِي
الْبُيُوتِ
حَتَّى
يَتَوَفَّاهُنَّ
الْمَوْتُ
أَوْ
يَجْعَلَ
اللَّهُ
لَهُنَّ
سَبِيلًا
وَاللَّذَانِ
يَأْتِيَانِهَا
مِنْكُمْ
فَآذُوهُمَا
فَإِنْ
تَابَا
وَأَصْلَحَا
فَأَعْرِضُوا
عَنْهُمَا
إِنَّ
اللَّهَ
كَانَ
تَوَّابًا
رَحِيمًا (4 :15-6)ه
And upon those of your women who commit fornication,
call in four people among yourselves to testify over them16;
if they testify [to their ill-ways], confine them to their homes till death
overtakes them or God formulates 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 Ever-Forgiving and Most Merciful.
(4:15-6)
This was the punishment of fornication
in the Shari‘ah before a definite directive was revealed in Surah
Nur. Once this was revealed, it repealed the previous directive permanently.
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 Hadith in this regard:
i) 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.17
ii) The criminal should not be beaten
bare-bodied or while tied to a tripod.18
iii) 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 made to spread all over the body except for his face and private
parts.19
iv) A pregnant woman should be flogged only after she
has given birth and the period of puerperal discharge has passed.20
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 to not 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. The words used
by the Qur’an are: ‘لاتاخذكم
بهما رافة فى
دين الله’ (la ta’khuzkum bihima ra’fatun
fi dinillah: let not compassion move you in their case in the enforcement
of the law of God).
Writes Imam Amin Ahsan Islahi
in his celebrated commentary of the Qur’an:
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 in 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’an,
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 the woman or the man.21
It is with these sentiments of impartiality
in the observance of the limits of Allah that the Prophet (sws) is reported
to have said:
وَايْمُ
اللَّهِ لَوْ
أَنَّ
فَاطِمَةَ
بِنْتَ
مُحَمَّدٍ
سَرَقَتْ
لَقَطَعْتُ
يَدَهَا (مسلم:
رقم 1688)ه
By God! If Fatimah the daughter of Muhammad
had committed this theft, I would definitely have cut off her hand. (Muslim:
No. 1688)
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’an, 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 words ‘لا
ينكح’ (la yankih: he should not marry) denote prohibition of such marriages,
and to explain this very aspect, the Almighty says: ‘و
حرم ذالك على
المؤمنين’ (wa hurrima dhalika ‘ala’l-mu’minin: the believers are forbidden
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 grammatical
principles dictate; ie the words ‘ ’ (al-zani la yankih: the
male fornicator should not marry) and ‘الزانى
لا ينكح’ (al-zaniyah la
yankihuha: the female fornicator should not marry) of the second verse
refer to ‘الزانية
لا ينكحها’ (al-zaniyah wa al-zani: the female fornicator
and the male 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,
have been compelled by circumstances, are without the necessary protection
required to abstain from committing a crime, or cannot bear the punishment
are all exempt from this punishment.
About those women whom their masters
force to take to prostitution, the Qur’an says:
وَمَنْ
يُكْرِهُّنَّ
فَإِنَّ
اللَّهَ مِنْ
بَعْدِ
إِكْرَاهِهِنَّ
غَفُورٌ
رَحِيمٌ (33:24)ه
But if anyone compels them, Allah will be Forgiving
and Merciful to them after their being compelled to it. (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 in spite of this they commit
the crime, they shall be given only half this punishment ie, fifty stripes
instead of hundred. The Qur’an says:
فَإِذَا
أُحْصِنَّ
فَإِنْ
أَتَيْنَ
بِفَاحِشَةٍ
فَعَلَيْهِنَّ
نِصْفُ مَا
عَلَى
الْمُحْصَنَاتِ
مِنْ
الْعَذَابِ (25:4)ه
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 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:
مَنْ
أَصَابَ مِنْ
هَذِهِ
الْقَاذُورَاتِ
شَيْئًا
فَلْيَسْتَتِرْ
بِسِتْرِ
اللَّهِ
فَإِنَّهُ
مَنْ يُبْدِي
لَنَا
صَفْحَتَهُ
نُقِمْ
عَلَيْهِ
كِتَابَ
اللَّهِ (مؤطا:
رقم1562)ه
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’atta:
No. 1562)
Similarly, he once told a person:
لَوْ
سَتَرْتَهُ
بِرِدَائِكَ
لَكَانَ
خَيْرًا لَكَ
(مؤطا : رقم1553)ه
If you had hidden the crime of this [person],
it would have been better for you. (Mu’atta: No. 1553)
4. Qadhf
وَالَّذِينَ
يَرْمُونَ
الْمُحْصَنَاتِ
ثُمَّ لَمْ
يَأْتُوا
بِأَرْبَعَةِ
شُهَدَاءَ
فَاجْلِدُوهُمْ
ثَمَانِينَ
جَلْدَةً
وَلَا
تَقْبَلُوا
لَهُمْ
شَهَادَةً
أَبَدًا
وَأُوْلَئِكَ
هُمْ
الْفَاسِقُونَ
إِلَّا
الَّذِينَ
تَابُوا مِنْ
بَعْدِ
ذَلِكَ
وَأَصْلَحُوا
فَإِنَّ
اللَّهَ
غَفُورٌ
رَحِيمٌ
وَالَّذِينَ
يَرْمُونَ
أَزْوَاجَهُمْ
وَلَمْ
يَكُنْ
لَهُمْ
شُهَدَاءُ
إِلَّا
أَنفُسُهُمْ
فَشَهَادَةُ
أَحَدِهِمْ
أَرْبَعُ
شَهَادَاتٍ
بِاللَّهِ
إِنَّهُ
لَمِنْ
الصَّادِقِينَ
وَالْخَامِسَةُ
أَنَّ
لَعْنَةَ
اللَّهِ
عَلَيْهِ
إِنْ كَانَ
مِنْ
الْكَاذِبِينَ
وَيَدْرَأُ
عَنْهَا
الْعَذَابَ
أَنْ
تَشْهَدَ
أَرْبَعَ
شَهَادَاتٍ
بِاللَّهِ
إِنَّهُ
لَمِنْ
الْكَاذِبِينَ
وَالْخَامِسَةَ
أَنَّ غَضَبَ
اللَّهِ
عَلَيْهَا
إِنْ كَانَ
مِنْ
الصَّادِقِينَ
(24 :4-9)ه
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 Ever-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 accusing someone of fornication. Although in these verses only the accusation
of women is mentioned, yet in the Arabic language this style which can
be termed as ‘على
سبيل التغليب’ (‘ala sabil al-taghlib: addressing
the dominant element) 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 are 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 initiate the hearing, and if the accuser fails to
produce them, it regards him as guilty of Qadhf.
According to the Qur’an, 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’an,
if there are no witnesses, the matter shall be decided by pledging oaths.
In Islamic law, this case is termed as ‘لعان’ (Li‘an).
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 fornication22.
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
وَالسَّارِقُ
وَالسَّارِقَةُ
فَاقْطَعُوا
أَيْدِيَهُمَا
جَزَاءً
بِمَا
كَسَبَا
نَكَالًا
مِنْ اللَّهِ
وَاللَّهُ
عَزِيزٌ
حَكِيمٌ
فَمَنْ تَابَ
مِنْ بَعْدِ
ظُلْمِهِ
وَأَصْلَحَ
فَإِنَّ
اللَّهَ
يَتُوبُ
عَلَيْهِ
إِنَّ
اللَّهَ
غَفُورٌ
رَحِيمٌ (5 :38-9)ه
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. (5:38-9)
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 (Sariq) or female (Sariqah).
According to linguistic principles, the words Sariq and Sariqah
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 reported to have said:
لَا
قَطْعَ فِي
ثَمَرٍ
مُعَلَّقٍ
وَلَا فِي
حَرِيسَةِ
جَبَلٍ
فَإِذَا
آوَاهُ
الْمُرَاحُ
أَوْ
الْجَرِينُ
فَالْقَطْعُ
فِيمَا
يَبْلُغُ
ثَمَنَ
الْمِجَنِّ (مؤطا:
رقم1573)ه
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’atta: No. 1573)
This shows that the amputation of hands
is the utmost punishment and should only be administered when the criminal
does not deserve any lenience as far as the nature and circumstances of
his crime are concerned.
2. This punishment, according to the
Qur’an,
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 ‘جزاء
بما كسب’ (jaza an bima kasaba: 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 denotation means that part of
the arm which is below the wrist.
3. The objective of this punishment
is stated in the words ‘جزاء
بما كسب نكالا
من الله’ (jaza an bima kasaba nakalan
minallah: as a reward of their deeds and as an exemplary punishment).
Imam
Amin Ahsan Islahi explains this in the following way:
[In this verse], two reasons are 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’an uses the word ‘نكال’ (nakal)
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 many such 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 also 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 civilized of countries in one year only because of
theft is prepared, it will be enough to open the eyes. The faint hearts
of these civilized 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, but 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
the intelligentsia of this modern age fail to appreciate this.23
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 reforms himself.
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