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؟ (٣٠:٢)
[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 Sharī‘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. Muhārabah 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 sūrahs in which these punishments are mentioned
were revealed in Madīnah 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’ān, the words ‘فاجلدوا’
(fajlidū: flog [the criminal]) and ‘فاقطعوا’ (faqta‘ū:
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. Abū
Bakr Jassās writes in his Ahkāmu’l-Qur’ān:
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’.
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’ān 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 Sharī‘ah. The punishments of
the lesser forms of the crimes mentioned above, and the punishments of other
crimes have been left by the Sharī‘ah to the state with one exception: the
death sentence, according to the Qur’ān, 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
person. The Qur’ān says:
مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ
أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (٣٢:٥)
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’ān that mention these punishments of
the Sharī‘ah.
1. Muhārabah 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
(٥ :٣٣-٤)
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 Muhārabah (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 Sharī‘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 Muhārabah, 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) Taqtīl (تقتيل)
(2) Taslīb (تصليب:
Crucifixion)
(3) Amputating limbs from
opposite sides
(4) Nafī (
:نفىExile)
Their explanation follows:
Taqtīl (تقتيل)
The words ‘ان
يقتّلوا’ (an yuqattalū) 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 Taqtīl has been used instead of Qatl. In
Arabic, Taqtīl 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 Sharī‘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 Taqtīl. The Prophet (sws) in his own times, in
accordance with this directive, administered this punishment to certain
criminals guilty of adultery.
Taslīb (تصليب: Crucifixion)
This word, like Taqtīl, is
also from the ‘تفعيل’ (taf‘īl) 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
Taslīb 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 ( :نفىExile)
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’ān 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’ān 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 Nafī is placed with the two
very severe punishments of Taqtīl and Taslīb 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 Sūrah Nūr) 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’ān as well as the norms of sense
and reason.
In the words of my mentor
Imām Amīn Ahsan Islāhī:
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.
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
١٦٩٠)
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 Hadīth, the reference
‘جعل الله لهن’ (ja‘alallāhu lahunna) is to those
women about whom the following temporary directive had been given in Sūrah
Nisā:
وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ
مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِنْكُمْ فَإِنْ
شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّاهُنَّ الْمَوْتُ
أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلًا (١٥:٤)
And upon those of your women who commit fornication,
call in as witnesses 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’ (allātī ya’tīna
al-fāhishah: 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 mention.
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 Sūrah Nūr
because of committing fornication and exiled according to verse 33 of Sūrah
Mā’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 Taqtīl of the same verse of Sūrah Mā’idah.
The words ‘unsophisticated’
or ‘unmarried’ and ‘widower’ or ‘married’ of the Hadīth 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. Āhadīth 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’ (yuhāribūna:
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’ (dhālika lahum khizyun fi’l-dunyā: 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 Imām
Amīn Ahsan Islāhī:
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.
The words ‘إلا
الذين تابوا من قبل ان تقدروا عليهم’ (illalladhīna tābū min qabli ‘an
taqdirū ‘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 Muhārabah and spreading disorder. To quote Imām Amīn Ahsan
Islāhī:
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‘lamū: 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?
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 (٢
:١٧٨-٩)
O you who believe! decreed for you is the Qisās 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‘rūf 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 Qisās O men of insight that you
may follow the limits set by Allah. (2:178-9)
Just as this directive of
Qisās has been given to us, it was given to the previous nations of the
Prophets. While referring to the Old Testament, the Qur’ān 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 (٤٥:٥)
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 Qisās, not only pertains to murder but also relates
to wounding or injuring someone. According to the Qur’ān, all these crimes
are heinous but as far as murder is concerned, the Qur’ān 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 (٣٢:٥)
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’ān 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 (٩٣:٤)
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 Imām Amīn Ahsan Islāhī:
Firstly, every occurrence of murder should create a
tumult and commotion in the nation. Until and unless Qisās 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 Qisās is like giving a life to the slain person
because, according to the Qur’ān, there is life in Qisās.
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 Imām Amīn Ahsan Islāhī:
In matters of Qisās, 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.
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 Qisās 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’ān says:
وَمَنْ قُتِلَ مَظْلُومًا فَقَدْ
جَعَلْنَا لِوَلِيِّهِ سُلْطَانًا فَلَا يُسْرِفْ فِي الْقَتْلِ إِنَّهُ كَانَ
مَنصُورًا (٣٣:١٧)
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 Qisās which is
mentioned in Sūrahs Baqarah and Mā’idah is based on the following four
clauses:
Firstly, Qisās
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 Qisās. 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’ān is a favour
and rebate by the Almighty to the criminal. Consequently, their forgiveness
shall become an atonement (kaffārah) 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 Imām Amīn Ahsan Islāhī:
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
Sharī‘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.
The basic objective of this
law, as is mentioned by the Qur’ān, is to protect life. Imām Amīn Ahsan
Islāhī 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.
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 (٤ :٩٢-٣)
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’ān, the punishment of unintentionally murdering or wounding in some
cases is Diyat and Atonement (Kaffārah), and in some cases only Atonement (Kaffārah)
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 murder
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 Sūrah Nisā quoted above, the
words ‘دية مسلمة الى اهله’ (diyatun mussalamatun
ilā 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
ilā 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 Sūrah Baqarah,
where the directive of Diyat in case of intentional murder has been given,
the word ‘معروف’ (ma‘rūf: custom) is used to
qualify it:
فَمَنْ
عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ
إِلَيْهِ بِإِحْسَانٍ (١٧٨:٢)
Then for whom there has been some remission from his
brother, [the remission] should be followed according to the Ma‘rūf and
Diyat should be paid with goodness. (2:178)
It is evident from the above
mentioned verses of Sūrah Nisā and Sūrah Baqarah that in case of intentional
as well as un-intentional murder, the Qur’ān 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-Muslim.
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 Hadīth 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’ (āqilah:
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’ān is for all times and for
every society. Hence, in this regard it has directed us to follow the ‘معروف’
(ma‘rūf: custom) which may change with time. By this Qur’ānic 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‘rūf. Also, it is obvious that those in authority
in any society can revise and re-structure the laws which are based on the
ma‘rūf, 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 (٢٤
:٢-٣)
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’ān regarding the punishment of fornication is mentioned in Sūrah Nisā.
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 (٤
:١٥-٦)
And upon those of your women who commit fornication,
call in 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. 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 Sharī‘ah before a definite directive was revealed in Sūrah Nūr. 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 Hadīth 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.
ii) The criminal should not
be beaten bare-bodied or while tied to a tripod.
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.
iv) A pregnant woman should
be flogged only after she has given birth and the period of puerperal
discharge has passed.
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’ān are: ‘لاتاخذكم بهما رافة فى دين
الله’ (lā ta’khuzkum bihimā ra’fatun fī dīnillāh: let not compassion
move you in their case in the enforcement of the law of God).
Writes Imām Amīn Ahsan Islāhī
in his celebrated commentary of the Qur’ān:
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’ān, 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.
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
١٦٨٨)
By God! If Fātimah 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’ān, 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’ (lā 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 dhālika ‘ala’l-mu’minīn: 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 ‘الزانى
لا ينكح’ (al-zānī lā yankih: the male fornicator should not marry)
and ‘الزانية لا ينكحها’ (al-zānīyah lā yankihuha:
the female fornicator should not marry) of the second verse refer to ‘الزانى
و الزانية’ ( al-zāniyah wa al-zānī: 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’ān says:
وَمَنْ
يُكْرِهُّنَّ فَإِنَّ اللَّهَ مِنْ بَعْدِ إِكْرَاهِهِنَّ غَفُورٌ رَحِيمٌ (٣٣:٢٤)
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’ān says:
فَإِذَا أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى
الْمُحْصَنَاتِ مِنْ الْعَذَابِ (٢٥:٤)
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: رقم١٥٦٢)
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 : رقم١٥٥٣)
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
(٢٤ :٤-٩)
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’ (‘alā
sabīl al-taghlīb: 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’ān, 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’ān, if there are no witnesses, the matter shall be decided by
pledging oaths. In Islamic law, this case is termed as ‘لعان’
(Li‘ān). 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 fornication.
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 (٥ :٣٨-٩)
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 (Sāriq) or female
(Sāriqah). According to linguistic principles, the words Sāriq and Sāriqah
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: رقم١٥٧٣)
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’attā: 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’ān, 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’
(jazā an bimā 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’ (jazā an bimā kasaba nakālan minallāh: as a reward of their
deeds and as an exemplary punishment). Imām Amīn Ahsan Islāhī 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’ān uses the word ‘نكال’
(nakāl) 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.
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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