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. 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 instruct people; however, once a crime
was committed, the solution was to administer appropriate punishment. What then
should be the nature and extent of punishment of a specific crime? Since there
is no basis in human intellect to determine these parameters, 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 all the grave crimes concerning life, wealth, honour and the
collective system of a society.
These major crimes are:
1. Muhārabah and spreading anarchy
2. Murder and Injury
3. Theft
4. Fornication
5. Qadhf (accusing someone of Fornication)
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 discretion
of those in authority 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 anarchy in the society. Similarly, it is evident that the
directives of meting out these punishments are not addressed to the Muslims in
their individual capacity; they relate to the whole society and as such they are
addressed to the state authorities.
In the following paragraphs, an these punishments shall be explained.
1. Muhārabah and Spreading Anarchy
If, in the life of the Prophet (sws), people adopted a rebellious attitude
against any of his directives or against his government, then this attitude is
termed as muhārabah against God and His messenger. Similarly, spreading anarchy
(fasād fi al-ard) is a term which refers to the situation when an individual or
a group of individuals rebels against law of the land, the sharī‘ah of the
Almighty and attacks the life, wealth, honour and freedom of expression of
people. Consequently, when murder takes the form of terrorism, fornication
becomes rape and theft assumes the shape of robbery or people take to
prostitution, become notorious for their ill-ways and vulgarity, become a threat
to honourable people because of their immoral and dissolute practices, 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 and by indulging in hijacking and by committing similar
grave offences, then this is called spreading anarchy.
The following four punishments are specifically prescribed for such:
i. They should be killed in an exemplary manner.
ii. They should be crucified in an exemplary manner.
iii. Their limbs should be amputated from opposite sides.
iv. They should be exiled.
Some stipulations about these punishments which constitute certain bounds and
limits for them have been mentioned in the sharī‘ah as follows:
Firstly, 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 exile is placed with the two very severe punishments of killing or crucifying
people in exemplary way so that if circumstances are such that the criminal
deserves any leniency, he should be given it.
Secondly, 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 by spreading anarchy is guilty of such
crimes as murder, hijacking, fornication, sabotage and intimidating people and
similar crimes, 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.
Thirdly, 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 these punishments and should always be taken in consideration.
Fourthly, 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 or
spreading anarchy.
2. Murder and Injury
Taking qisās
for murder and injuries is an obligation imposed by the Almighty on an Islamic
State. It guarantees survival to a society and for Muslims it 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 that if someone is
killed within its area of jurisdiction it should search for the murderers,
arrest them and take qisās from them stipulated by law.
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.
If the heirs of the slain or wounded person do not demand life for life, limb
for limb wound for wound and want to show lenience to the criminal then a judge
can give him a lesser punishment keeping in view the nature and extent of the
crime and the circumstances in which it was committed. This is a favour and
rebate by the Almighty to the criminal. Consequently, if the heirs of the slain
or wounded show this compassion, then this shall become an atonement (kaffārah)
for their sins before the Almighty.
In this case, the heirs of the slain or wounded person will be given diyat.
The Almighty has said that it should be given according to the custom of the
society and with kindness and goodwill.
If someone is unintentionally murdered and the murdered person is a Muslim
citizen of a Muslim 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 according to the custom of the society and as an
atonement for his sin repent before the Almighty and free a Muslim slave as
well. However, if the murdered person is a Muslim belonging 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 to wash his sin. In both these cases, if the criminal
does not have a slave, he should consecutively fast for two months.
3. Fornication
The man or woman who has committed fornication, both shall receive a hundred
stripes if their crime is proven in a court of law.
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 Qur’ān
directs the government of the Muslims or their courts of justice to not show any
lenience in this regard.
After this punishment has been carried out, no chaste man or woman should
marry men and women who commit fornication. The Almighty has forbidden such
marriages.
This prescribed 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 cannot bear the punishment, have been
compelled by circumstances, are without the necessary protection required to
abstain from committing a crime are all exempt from this punishment.
4. Qadhf
There can be two forms of qadhf:
Firstly, a person accuses a chaste and righteous woman or man of fornication.
Secondly, 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. If the accuser fails to produce them, he shall be regarded as
guilty of qadhf. The punishment for such a criminal is that he shall be
administered eighty stripes and his testimony shall never be accepted in future
in any matter. The Qur’ān says that such criminals shall be regarded as the
defiant in the eyes of God except if they repent from their crime and reform
themselves.
In the second case, if no evidence is available, there are no witnesses, the
matter shall be decided by pledging oaths. 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, the prescribed punishment of fornication will be
administered to her. However, 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.
5. Theft
The punishment of amputating the hands is prescribed for a thief. Whether the
thief is male or female, if the crime is proven in a court of law, then his or
her hand shall be cut from the wrist. Like the punishment of fornication, this
punishment is also 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.
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