For many centuries now, Islamic punishments have
remained one of the greatest subjects of debate both inside and outside the
Muslim world. ‘Islamic punishments are barbaric’, ‘Death to the death
punishment’, ‘Civilized societies do not flog, stone to death or amputate
hands’ are a few of the typical slogans and comments that echo and
reverberate among the intellectual elite of this Ummah.
Without refuting the fact that Islamic punishments are
indeed very severe, two things may perhaps help the modern mind in
understanding the nature and logic of this severity.
The first thing that needs to
be kept in mind is that if one reflects on the style and linguistic
constructions in which these punishments are mentioned in the Qur’ān, it is
clear that these punishments indicate the most extreme forms of reproof.
They are to be given only if the extent of the crime and the state of the
perpetrator of the crime deserve no leniency. In other words, it is not
simply a matter of a court determining the culpability of an individual in a
particular crime or not; it is equally important that contextual
information, for instance, factors which led up to the crime, is taken into
account. If this information results in a judge deciding that the crime has
been committed with extenuating circumstances, he has the authority to
punish the criminal with lesser punishments like fining him or having him
beaten up. Precisely, on such grounds, in a particular case, the Caliph
‘Umar (rta) refused to amputate the hand of a person who was forced to steal
because of hunger simply because he thought the circumstances were such that
the person deserved leniency. It is known that there was a severe drought
during his rule and it was in this drought that the incident had taken
place. People think that ‘Umar (rta) had abrogated the punishment, whereas,
‘Umar (rta) thought that the criminal deserved leniency. In other words, one
can easily conclude that in this particular aspect the Islamic penal code is
no different than other penal codes.
The second thing that needs to be taken into
consideration is that the purpose of most Islamic punishments is not merely
to punish the criminal, but to make his punishment an act of deterrence for
any further instance of the crime. Everyone would agree that peace and
security of a society occupy fundamental importance if it is to develop and
prosper. Societies which are crime ridden and in which people feel insecure
obviously soon disintegrate and eventually have no role in the development
of culture and civilization. As such, it is the primary responsibility of a
government to make sure that the life, wealth and honour of its citizen are
protected to the utmost. Besides educating and instructing people so that
they have morally sound personalities, it is necessary to severely punish
people who, in spite of being provided with the opportunities of life,
exceed limits by abusing the life, wealth and honour of others. In order to
cleanse a society from crime as much as possible, Islam wants to make an
example of people who create nuisance in the society and disrupt its peace
and tranquillity. Consequently, the punishments it prescribes are
instrumental in bringing to the greatest degree peace and security to a
society.
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In recent times, Javed Ahmad Ghamidi (b: 1951) has
attempted to derive the principle guidelines that Islam has given on the
subject of Islamic punishments. He has documented these guidelines in the
form of the penal law of Islam. His research has led him to many important
conclusions which directly relate to this law and which have arisen because
of some prevailing misconceptions about of Islamic punishments. As such, the
research presents a fresh sight on this issue. Besides highlighting the two
above discussed premises, some of his major conclusions are summarized
below:
1. Islam has prescribed punishments in a limited sphere
only. It has prescribed punishments for what it considers to be the five
major crimes. They are fasād fi’l-ard (spreading disorder in the society),
murder, fornication, accusing someone of fornication and theft. The
punishments of all other crimes have been left to state authorities to
legislate.
2. As far as Diyat (blood money) is concerned, though
it is an everlasting law which must be obeyed in all times, yet its
quantity, nature and other related affairs have been left upon the customs
and traditions of a society. Consequently, no eternal quantity of Diyat has
been fixed by Islam, nor has it instructed Muslims in any manner to
discriminate between a man or a woman, a free man or a slave and a Muslim or
a non Muslim in this matter.
3. It is incorrect to conclude that Islam discriminates
between married and un-married men or women who are guilty of fornication.
Their punishments are essentially the same. It is only in cases when
fornication is compounded by certain other elements, making the nature of
the crime more severe that certain other punishments are added to the
original form of punishment.
4. As far as criminal evidence is concerned, three
things must be kept in consideration:
(i) Islam does not discriminate between a man and a
woman. In all criminal cases, it is left to the discretion of the judge
whether he accepts someone as a witness or not. If a woman testifies in a
clear and definite manner, then her testimony cannot be turned down simply
on the basis that there is not another woman and man to testify alongside
her.
(ii) Islam does not require four eye-witnesses in
ordinary cases of fornication nor has it fixed a quantity of witnesses to
prove a crime. Only in two cases has it prescribed a certain quantity. The
first of them is regarding prostitutes. In their case, if four witnesses
testify to their ill-ways, then this is enough to punish them. The second
case concerns accusing chaste and morally sound women of fornication – about
whom no one can even imagine that they can commit such a crime. In their
case, Islam wants four eye-witnesses to even start the proceedings of a
case. In this regard, the purpose is the protection of reputation of a
chaste lady. Even if she has faltered, it should be kept hidden from the
society, unless of course there are four eye witnesses to this crime.
(iii) In all cases of Islamic law a crime legally
stands proven not only by the testimony of the witnesses or by the
confession of the criminals themselves but also by any additional or
circumstantial evidence. Medical examination, cameras, postmortem reports,
finger prints and other similar aids can also be used in proving a crime.
5. The punishment of apostasy (death penalty) was
specifically meant for the Idolaters of Arabia under a specific law of the
Almighty which applies only in the age of His Messengers. According to this
law people who advocated polytheism in spite of being convinced of its
falsity were punished by the Almighty Himself through His Messengers. After
the departure of the last of the Messengers this punishment has no bearing
whatsoever upon any person or nation.
6. The death sentence can only be given in two cases as
per the Qur’ān: to a person who has killed someone or to someone who is
guilty of spreading lawlessness and disorder in a society. No other person
can be punished by death.
7. The jail punishment was never a part of the Islamic
penal code. It is an inhuman punishment and should be done away with. It
should be replaced with other forms of reproof which actually punish the
criminal and not his family.
This issue of the journal has been devoted to the
research work carried out by Javed Ahmad Ghamidi on Islamic punishments. For
the benefit of the English reader, I have attempted to translate the
relevant articles on this issue
so that our readers can critically assess the views presented.
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