| Answer: The
issue of Islamic punishments is a very critical one. There are many
questions which arise on the interpretation of traditional scholars in this
regard. A contemporary scholar, Mr. Javed Ahmad Ghamidi, after thorough
research in the matter, opines that the traditional view is not acceptable
owing to various reasons. His research has been published in detail in the
Sep2002 issue of the journal. I will answer your question in the light of
his findings.
The
punishment of a fornicator, as prescribed in the Qur’ān is a hundred lashes
in public and a prohibition of marriage with a chaste person. This is
mentioned in Sūrah Nūr 24:2. However, when a fornicator does not simply
commit fornication rather forms a gang of rapists and sets the whole society
in danger or when a woman not only commits fornication but opens a brothel
and promotes and spreads lewdness in the society, the crime remains the same
but its intensity is raised such that it isn’t against an individual but the
whole society is targeted. Such crimes are classed by the Qur’ān as
Muhārabah and Fasād Fi’l-ard (waging war against Allah and spreading anarchy
in the land) for which the Holy Qur’ān has prescribed specific punishments.
The Holy Qur’ān has ordered that these criminals should be executed in an
exemplary manner, or crucified, or an opposite hand and feet should be
amputated, or they should be exiled. These punishments are mentioned in
Sūrah Mā’idah of the Holy Qur’ān (5:33).
Now in the light of foregoing
explanation the answers to your questions are as follows:
i. No such distinction is observed in the Islamic Sharī‘ah. Some Muslim
jurists believe that it does but the words of the Holy Qur’ān don’t accept
this interpretation. These jurists observed that the Prophet (sws) sometimes
flogged the convict and sometimes him (or her) were stoned to death. They
tried to reconcile the matter and came to the conclusion that when the
convict was married the Prophet (sws) stoned him or her to death. This was
because it was reported that in such cases the marital status of the
criminal would be ascertained by the Prophet (sws). As pointed out above the
basis of distinction in punishment was the intensity of the crime. Being
married may make the crime grave in some instances. However, there may be
several other reasons, some of which have been alluded above.
ii. The Sharī‘ah has not devised any punishment for the victim. She deserves
all sympathies and will be dealt as justice demands. The Holy Qur’ān
requires four witnesses in two specific cases only: When someone alleges
that a pious person is guilty of fornication or to establish that some lady
is a prostitute. As Ghamidi has pointed out in his referred to research,
apart from the two cases described above, Islam does not prescribe the need
of four witnesses to prove a crime. A crime can be proven through all the
means that are available to us including the ones which today science has
made possible for us. So when a raped woman approaches the court for justice
she will be dealt with as a victim. She will be provided with protection and
moral and legal support. Obviously, the basic purpose is to punish the
guilty not the innocent victim herself.
iii. You have rightly observed that according to some jurists if a rape
victim cannot prove her allegation, then she will be punished for qadhf. As
stated in (ii), Islamic religious sources have not prescribed any punishment
for the victim. It is only the understanding of some of the jurists.
You are requested please to go through the article I referred to in order to
know what we think the Islamic guidance is this particular case. |