Free will is one of the greatest favours the Almighty has
blessed man with. However, just as this will 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 pecisely what the angels had feared when the
Almighty informed them about his intention to create man:
"Allah! Will thou create someone who will spread evil in
the earth and shed blood." (2:30)
In the history of mankind, the first manifestation of this
evil took place through the hands of Cain, the son of Adam. Consequently, out of
this incident arose the need to protect man from the evil of another man. It was
evident from the a priori norms of sense and reason revealed by the Almighty in
human nature that the only way was to reform the environment and educate and
urge people; but once a crime was committed, the solution was to administer
appropriate punishment. But what should be the ways and means adopted for this
reproof and chastisement? Since, in this task, human intellect could falter and
stumble and history also bears evidence that it has repeatedly done so in this
regard, the Almighty Himself revealed His directives about these issues. Through
the agency of 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. The matter of smaller crimes was
left with a few basic guidelines to the Parliament of an Islamic State for
legislation. This Sharī’ah of the Almighty is with us in its most authentic
shape in the form of the Qur’ān and the Sunnah of the Prophet (sws). Says the
Almighty:
"Then We did set you on a clear Sharī’ah as regards
religion. So follow it and follow not the whims of those who know not." (45:18)
BASIC PRINCIPLE
The basic principle upon which the Sharī’ah has based its
penal law is that since criminals are only of two categories: those who simply
commit a crime and those who commit a crime in a manner that they create a law
and order situation and become a nuisance for the state, therefore, the two
should be dealt with separately.
It is according to this basic principle of the Islamic
Sharī’ah that these two categories of criminals, their punishments and the
conditions of administering these punishments have been mentioned separately in
the Qur’ān.
The criminals of the first category have been classified by
the Qur’ān as those who wage war with Allah and His Prophet (sws) or those who
spread disorder in the land.
The criminals of the second category are those who commit
crimes like injuring someone, theft, adultery and murder in a way which does not
amount to challenging the law as such.
In the following pages, we shall explain the penal code of
Islam concerning these two categories of criminals.
Waging War Against Allah And The Prophet
The meaning implied by waging war against Allah and His Prophet (sws)
and spreading disorder in the land is that a person or a group of persons takes
the law in its hands and openly challenges the system of justice, which in
accordance with Divine Directives, an Islamic Government establishes in a piece
of land. Consequently, all those criminals who take to prostitution, become
notorious for their ill-ways and vulgarity, commit rape, become a threat to
honorable people because of their immoral and dissolute practices, openly
disgrace women because of their social status, cause destruction, are a source
of terror and intimidation for people, are guilty of murder, robbery, decoity
and hijacking, or create a law and order situation for the government by
committing other similar crimes should be severely dealt with. They should be
administered the punishments specifically prescribed in Sūrah Maidah:
"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 alternate sides
or to banish them from the land. Such is their disgrace in this world, and in
the Hereafter theirs will be an awful doom save those who repent before you
overpower them; you should know that Allah is Oft-Forgiving, Ever
Merciful."(5:33-34)
In these verses, four punishments have been mentioned:
(1) Taqtīl.
(2) Taslīb (crucifixion).
(3) Amputating limbs from alternate sides.
(4) Nafī (exile).
Their explanation follows:
Taqtīl
The words ‘ann yuqattalū’ have been used for it. They imply that the
criminals of this category should not only be executed but they should be done
so in a manner that serves as a severe warning to everyone. The reason is that
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.
Except for incinerating a criminal in fire and adopting other ways prohibited by
the Sharī’ah, an Islamic government, keeping in view this aspect, can adopt
various other ways as well. In our consideration, the punishment of rajam
(stoning to death) is one form of taqtīl. The Prophet (sws) in his own time, in
accordance with this directive, administered this punishment to certain
criminals guilty of adultery.
Taslīb
This word, like taqtīl, is also from the taf’īl category. Consequently,
it implies that criminals should be crucified in an exemplary manner. The cross
is a erected structure upon which a criminal is nailed through his hands and
feet and abandoned there till death. This form of punishment, no doubt, is
exemplary but the word taslīb demands that other means which make it still more
exemplary should also be adopted.
Amputating limbs from alternate sides
It is evident that this form of punishment also serves as a severe
warning for others. The purpose of this punishment, it is also evident, is to
make the criminal an example in front of the society and to incapacitate and
disable him from committing evil.
Nafī
It is obvious that this punishment of exile is the least in intensity in
the punishments of this category. The first two punishments end a criminal’s
life. The third punishment though does not end his life, it 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. In general circumstances,
the words of the Qur’ān require that 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.
Certain Stipulations about the above Punishments
The first thing which is evident about these punishments from the verse
is that since each punishment is mentioned such that it is separated from the
other by the particle au (or), an Islamic government has the authority to
administer any of these punishments keeping in view the nature and extent of the
crime, the circumstances in which it has been committed and the consequences
which it produces or can produce in a society. The relatively light punishment
of nafī has been 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 so. 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 leniancy. In
the words of Imam Amin Ahsan Islahi :
"In such circumstances, only the fact that the criminal gang has harmed
certain objects 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 prevails, a stern measure is
required. Similarly, if the site of crime is a border area or is an abode of
enemy intrigue and conspiracy, again an effective action is needed. If the
leader of the gang is a very dangerous person and by showing any leniancy to
him, the life and wealth and honour of many people would become endangered then
also a severe step is required. In short, the real basis of selection between
these punishments is not the mere happening of such a crime, but the collective
influence of the crime and the expediency of the society." ("Tadubbur-i-Qur’ān",
Vol 2, Pg 506-507)
Consequently, about certain habitual criminals of fornication, the
Prophet (sws) said:
"Acquire it from me, acquire it from me. The Almighty has revealed the
directive about women who habitually commit adultery about which He had promised
to reveal. If such criminals are unmarried or are the unsophisticated youth,
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, Kitab-ul-Hudūd)
In this hadith, the reference is to those women about whom a temporary
directive had been given in Sūrah Nisā:
"And upon those of your women who habitually 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 finds
another way for them. And the man and woman among you who commit fornication,
punish them. If they repent and mend their ways, leave them alone. For God is
Oft-Forgiving and most Merciful." (4:15-16)
The style and construction of the Arabic phrases ‘allātī ya’tīnal
fāhishah’ (those women who commit fornication) and ‘allazāni ya’tiyāniha’ (the
man and woman who commit fornication) clearly indicates that habitual criminals
of fornication are being referred to. Two of their types have been mentioned
here: those prostitutes who sell their honour as a profession and that man and
woman whose extra-marital relationship with each other takes the form of
paramourship and after strengthening by passing through many phases becomes an
everyday affair. ‘A woman and his paramour’ are the words we often use for this
relationship. In the first case, it is evident that the main offender is the
woman while in the latter case, both man and woman are the culprits.
Consequently, in the verse
they are stated as two different cases. In some other verses of the Qur’ān,
these two cases have been mentioned by the words ‘openly committing fornication’
and ‘seeking paramours’.
In the tradition we have quoted above, the Prophet (sws) while deciding
the fate of such criminals had said that since they were not merely guilty of
adultery but were guilty of spreading disorder in the land because they had
adopted profligacy as a way of life, therefore, those among them who deserved
any mitigation should be administered the punishments of a hundred stripes
according to verse the second verse of Sūrah Nūr because of committing adultery
and exiled according to verse 33 of Sūrah Maidah to protect the society from
their dissolute practices, and those among them who did not deserve any leniancy,
should be stoned to death according to the directive of taqtīl of the same verse
of Sūrah Maidah.
Consequently, the way in which the punishments for spreading disorder in
the land have been mentioned such that they are separated from one another by
the particle au (or) entails that remission should be given if a criminal
deserves it.
The second thing which the words yas’auna (they strive) and yuhāribūna
(they wage war) point to is that if a gang of criminals has committed the crime,
the punishment shall not be given to each criminal but to the gang as a whole.
Consequently, if a gang of criminals of this first category is guilty of 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 third thing is that the reason for which the words ‘such is their
disgrace in this world’ have been used is 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. 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 merely because of its usefulness
in maintaining order and discipline in the society. In present times, the
conceptions of sympathy and mercy for crimes and criminals have taken the shape
of a whole philosophy. It is due to their courtesy that though today it seems as
if man is developing and progressing in the various fields of life, yet he is
creating for himself a hell on earth. Islam does not encourage such absurd
philosophies. Its law is not based upon fantasies but upon human nature." ("Tadabbur-i-Qur’ān",
Vol 2.Pg 507,508)
The fourth thing which has been mentioned in the verse in the words
‘save those who repent before you overpower them’ is that if such criminals,
before the government lays hands on them, come forward and give themselves up to
the law then they shall be dealt with as common criminals ie, the criminals of
the first category and shall not be considered in the second category. To quote
Imam Amin Ahsan Islahi:
"These special powers shall 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, before any action by the government, repent and mend their ways, 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 sounded by the words ‘you should know’ is understood, it
becomes clear that no measure of retaliation by the government is permitted if
the criminals repent and reform themselves before the government captures them.
The Almighty is Merciful and Forgiving; if He forgives a person who repents
before he comes under the grasp of the law, why should His servants adopt a
different attitude?"
("Tadabbur-i-Qur’ān", Vol 2, Pg 508)
General Crimes
As far as the first category is concerned, only punishments for four
major crimes concerning three important things: life, wealth and honour have
been stated by the Qur’ān and the Almighty has made them the part of His eternal
Sharī’ah. Even for these crimes, as shall become evident later, the prescribed
punishments should only be given if the criminal does not deserve any leniency
and the crime has taken place in its complete form . The matter of lighter forms
of these crimes and other crimes besides these four has been left by the
Almighty at the discretion of the parliament of an Islamic State and they,
according to the principle of amruhum shūrā bainahum, can legislate for such
crimes.
These four major crimes are:
1. Injury and Murder.
2. Theft.
3. Fornication.
4. Falsely accusing someone of Fornication.
_______
The first of these crimes has already been discussed in the previous
issue. In the coming issues, the remaining three shall be elaborated upon.
(Translated from Ghamidi’s"Mīzān")
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