The Penal Law of Islam
The opportunity a man has to exercise his will is one of the greatest favors the Almighty has blessed him with. However, just as this freedom is a source of honor for him, its misuse is a source of dishonor 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:
- 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 man. It was evident from the a priori norms of sense and reason revealed by the Almighty in human nature that the only way to shield man from such evil was to reform the environment and educate and urge people; however, once a crime was committed, the solution was 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 Shari'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. Muharabah and Spreading Disorder.
2. Murder and Injury.
5. Falsely 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 surahs in which these punishments are mentioned were revealed in Madinah where an Islamic state had been established under the rule of the Prophet (sws). Consequently, a group or person who is not at the helm of affairs in a country, then he has no right to administer these punishments. In the 'urf (usage) of the Qur'an, the words 'amputate the hands' and 'flog [the criminal]' of these verses are addressed to the rulers of the Muslims; no one else can be regarded as their addressees. Abu Bakr Jassas writes in his 'Ahkam al-Qur'an':
- 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 'these rulers should flog them'. (Abu Bakr Jassas, 'Ahkam al-Qur'an', 1st ed., vol 3, (Beirut: Daru'l-Kitab al-Arabi, 1325 AH) p. 283)
Similarly, it should also remain clear that these punishments shall be administered not only to the Muslim subjects of an Islamic State, but also to its non-Muslim ones. The way the Qur'an 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 the non-Muslims as well. This is part of the public law of Islam, and no one can be shown any lenience in this regard.
Also, the punishments of the lesser forms of the crimes mentioned above, and the punishments of other crimes have been left by the Shari'ah to the state with one exception: the death sentence, according to the Qur'an, can only to be given to a person who has killed someone or to someone who is guilty of spreading disorder in the land. 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 to a person. The Qur'an says:
- 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 mankind altogether. (5:32)
In the following paragraphs, this writer shall explain the verses of the Qur'an that mention these punishments of the Shari'ah:
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.(5:33-34)
It is obvious from the style of these verses that the meaning implied by Muharabah (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 the Shari'ah is established in a piece of land. Consequently, under an Islamic government, all those criminals who commit rape, or take to prostitution, or become notorious for their ill-ways and vulgarity, or become a threat to honorable people because of their immoral and dissolute practices, or openly 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 and plunder, decoity, robbery, by indulging in hijacking and terrorism and by committing other similar crimes are criminals of muharabah, and spreading such disorder in the society should be severely dealt with.
The following four punishments are specifically prescribed for such criminals in the verse quoted above:
(2) Taslib (crucifixion).
(3) Amputating limbs from opposite sides.
(4) Nafi (exile).
Their explanation follows:
The words 'an yuqattalu' are used for it. They imply that not only should the criminals of this category be executed but that it should be done so in a manner that serves as a severe warning to everyone. The reason is that here the word Taqtil has been used instead of Qatl. In Arabic, Taqtil means to execute someone in such a way that there is severity in the process of killing. Except for burning a criminal in fire and adopting other ways prohibited by the Shari'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 Rajam (stoning to death) is one form of Taqtil. The Prophet (sws) in his own times, in accordance with this directive, administered this punishment to certain criminals guilty of adultery.
This word, like Taqtil, is also from the Taf'il 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 there till death. This form of punishment, no doubt, is exemplary but the word Taslib 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, 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.
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, 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'an 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 the punishments mentioned in the verse are such that each is separated from the other by the particle aaw (or), it is evident that the Qur'an has given an Islamic government 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 lighter punishment of Nafi is placed with the two very severe punishments of Taqtil and Taslib 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 into the marital status of criminals guilty of fornication was also based on this pretext i.e.. 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 Surah Nur) is only for unmarried people. 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 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'an as well as the norms of sense and reason.
In the words of my mentor Imam Amin Ahsan Islahi:
- 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 and by showing any leniency to him, the life and wealth and honor 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 welfare of the society. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 2, (Lahore: Faran Foundation, 1991), pp. 506-507)
Consequently, about certain habitual criminals of fornication, the Prophet (sws) is reported to have said:
- 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, Kitab al-Hudud)
In this Hadith, the reference is to those women about whom the following temporary directive is given in Surah Nisa:
- And upon those of your women who commit fornication, call in as witnesses1 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. (4:15)
The style and construction of the Arabic phrase 'allati ya'tina al-Fahishah' (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 mention2. 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 Surah Nur because of committing fornication and exiled according to verse 33 of Surah Ma'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 Taqtil of the same verse of Surah Ma'idah.
The words 'unsophisticated' or 'unmarried' and 'widower' or 'married' of the Hadith quoted above are meant to explain this very principle. A hundred stripes are mentioned with Rajam (stoning to death) merely to explain the law. Ahadith verify that the Prophet (sws) mentioned this punishment of a hundred stripes with Rajam 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 severely admonish him for his future life and to make him a means of severe warning for the society. 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 judgment but, in practice, only the death sentence is carried out.
The plurals Yas'awna (they strive) and Yuharibuna (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 each criminal but to the gang as a whole. Consequently, if a gang of criminals of this first category is guilty of 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 '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 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 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 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. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 2, (Lahore: Faran Foundation, 1991), p. 507)
The words '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 Muharabah and Spreading Disorder. To quote Imam Amin Ahsan Islahi:
- 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 '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? (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 2, (Lahore: Faran Foundation, 1991), p. 508)
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.
O ye who believe! decreed for you is the Qisas 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'ruf and Diyah 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 Qisas O men of insight! that you may follow the limits set by Allah. (2:178-179)
Just as this directive of Qisas has been given to us, it was given to the previous nations of the Prophets. While referring to the Old Testament the Qur'an says:
- 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 Qisas, not only pertains to murder but also relates to wounding or injuring someone. According to the Qur'an, all these crimes are heinous but as far as murder is concerned, the Qur'an says that murdering a person is like murdering the whole mankind:
- 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 mankind altogether, and he who saved a human being should be regarded as though he saved all mankind. (5:32)
Furthermore, the Qur'an says that a person who commits such a grave offence, particularly against a Muslim, shall face the eternal punishment of Hell:
- And he who intentionally killed 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 Imam Amin Ahsan Islahi:
- Firstly, every such occurrence should create a tumult and commotion in the nation. Until and unless Qisas 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 the 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 only one life has been taken -- rather all the lives have been taken.
- Thirdly, if a person sees 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, bears false evidence in favor 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 Qisas is like giving a life to the slain person because, according to the Qur'an, there is life in Qisas. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 2, (Lahore: Faran Foundation, 1991), p. 503)
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 from such crimes. Writes thus Imam Amin Ahsan Islahi:
- In matters of Qisas, 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 favor to the murderer and his family, which produces many useful results. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 1, (Lahore: Faran Foundation, 1991), p. 433)
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 Qisas would inflict more harm on the inflictor than the harm he himself had caused, they still insist upon limb in place of limb and wound in place of wound.
The Qur'an says:
- 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 Qisas which is mentioned in Surahs Baqarah and Ma'idah is based on the following three clauses:
Firstly, Qisas3 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 Qisas. Hence, if the murderer is a slave, only this slave should be executed and if the murderer is a free man, only this free man should be executed. A person's social status should never create an exception in 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 forgive the criminal and accept Diyah from him. The latter case, according to the Qur'an is a favor and rebate by the Almighty on the criminal. Consequently, their forgiveness shall become an atonement (Kaffarah) 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 Diyah then this should be given to them with goodness and goodwill. In the words of Imam Amin Ahsan Islahi:
- The directive of paying Diyah with goodness has been given because in that period in Arabia, Diyah 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 Diyah 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 Diyah as far as the agreed quantity and weight is concerned, disregarding their quality and nature. This would amount to ignoring the favor done by the aggrieved party by forgiving the murderer. Someone whose life had been left at the mercy of a person by the Shari'ah had been forgiven by him and had agreed to accept some wealth instead. This favor should be answered by favor only, i.e. the payment of Diyah 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 dishonorable. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 1, (Lahore: Faran Foundation, 1991), p. 434)
The basic objective of this law, as is mentioned by the Qur'an, is to protect life. Imam Amin Ahsan Islahi 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 differs: 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 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 effect the whole body. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 1, (Lahore: Faran Foundation, 1991), p. 436-7)
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 Diyah 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, Diyah 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. (4:92-93)
In Islamic law, according to the Qur'an, the punishment of unintentionally murdering or wounding in some cases is Diyah and Atonement (Kaffarah), and in some cases only Atonement 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 Diyah that he atone this 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 Diyah; 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 murder4 is concerned. But it is obvious that the directive of unintentionally injuring someone should also be no different. Hence, in this case also Diyah shall have to be paid and fasts shall have to be kept considering the amount of Diyah paid. For example, if the Diyah of a certain type of wound is fixed at one third of the Diyah 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 Diyah to be given and its methodology.
In verse 92 of Surah Nisa quoted above, the words Diyatun mussalamatun ila ahlihi are used. The word Diyah 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 Diyah means something which in the general custom and usage is called 'Diyah'. And the words Diyatun mussalamatun ila ahlihi simply mean that the family of the murdered person should be given what the general custom and tradition terms as 'Diyah'.
In verse 178 of Surah Baqarah, where the directive of Diyah in case of intentional murder has been given, the word Ma'ruf is used to qualify it:
- Then for whom there has been some remission from his brother, [the remission] should be followed according to the Ma'ruf and Diyah should be paid with goodness. (2:178)
It is evident from the above mentioned verses of Surah Nisa and Surah Baqarah that in case of intentional as well as un-intentional murder, the Qur'an wants Diyah to be paid according to the custom and tradition of the society. It has not prescribed any specific amount for Diyah nor has it obligated us 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 Diyah according to the customs and traditions of the Arabian society during their own times. The quantities of Diyah which have been mentioned in our books of Hadith 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 Diyah in the form of camels nor is it a very wise step to fix the amount of Diyah on this basis. The nature of 'Aaqilah' 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'an is for all times and for every society. Hence, in this regard it has directed us to follow the Ma'ruf which may change with time. By this Qur'anic directive, every society is to obey its customs, and since in our own society no law about Diyah existed 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'ruf. Also, it is obvious that those in authority in any society can revise and re-structure the laws which are based on the Ma'ruf, keeping in view the collective good of the masses.
1. And upon those of your women who habitually commit fornication, call in four people among yourselves to testify over them5; 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)
This is the initial directive of the Qur'an regarding the punishment of fornication. No definite punishment is mentioned here; 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 to the extent of reforming him. This was the punishment of fornication in the Shari'ah before a definite directive was revealed in Surah Nur. Once this was revealed, it repealed the previous directive permanently.
2. 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 idolatress and the woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages. (24:4-9)
These verses repeal the verses of Surah Nisa mentioned above and spell out a permanent punishment of fornication. 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 the Hadith in this regard:
i) The strike should be of medium power and the task of flogging should not be entrusted to cruel, professional executioners; on the contrary, it should be carried out by the wise elders of the society.
ii) 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.6 (Mu'atta of Imam Malik)
iii) The criminal should not be beaten bare-bodied or while tied to a tripod.7
iv) 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 distributed all over the body except for his face and private parts.8
v) A pregnant woman should only be flogged after she has given birth and the period of puerperal hemorrhage (Nafas) has passed.9
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 not to 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.
Writes Amin Ahsan Islahi in his celebrated commentary of the Qur'an:
- 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 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'an, 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 woman or man. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 5, (Lahore: Faran Foundation, 1991), p. 362)
It is with these sentiments of impartiality in the observance of the limits of Allah that the Prophet (sws) had said:
- By God! if Fatimah the daughter of Muhammad had committed this theft, I would definitely have cut off her hand. (Muslim, Kitab al-Hudud)
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'an, 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 wording of the verse clearly forbids 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 linguistic principles dictate; i.e. the words al-zani (male fornicator) and al-zaniyah (female fornicator) of the second verse refer to the al-zani (male fornicator) and al-zaniyah (female 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, those who have been compelled by circumstances or those who are without proper family protection are all exempt from this punishment.
About those women whom their masters force to take to prostitution, the Qur'an says:
- But if anyone compels them, Allah will be Forgiving and Merciful to them. (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 i.e. fifty stripes. The Qur'an says:
- 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 wrongly 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:
- 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, Kitab al-Hudud)
Similarly, he once told a person:
- If you had hidden the crime of this [person], it would have been better for you. (Mu'atta, Kitab al-Hudud)
Those who accuse honorable 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 Oft-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 falsely accusing someone of fornication. Although in these verses only the accusing of women is mentioned, yet in the Arabic language this style which can be termed as 'addressing the dominant element' ('ala sabil al-taghlib) 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 is 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 beginning the hearing, and if the accuser fails to produce them, it regards him as guilty of Qadhf.
According to the Qur'an, 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'an, if there are no witnesses, then the matter shall be decided by pledging oaths. In Islamic law, this case is termed as 'Li'an'. 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 fornication10. 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 idolatress 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.
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. (5:38-39)
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 (Sariq) or female (Sariqah). According to linguistic principles, the words Sariq and Sariqah 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 neighbor'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 said to have said:
- 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'atta, Kitabu'l-Hudud)
This shows that the amputation of hands is the utmost punishment and should only be administered when the criminal does not deserve any mitigation as far as the nature and circumstances of his crime are concerned.
2. This punishment, according to the Qur'an, 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 '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 devotion means that part of the arm which is below the wrist.
3. The objective of this punishment is stated in the words: jaza an bima kasaba nakalan minallah ( as a reward of their deeds and as an exemplary punishment). Imam Amin Ahsan Islahi explains this in the following way:
- (In this verse) two reasons have been 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'an uses the word Nakal 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 the many 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 equally 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 it has also gone a long way in reducing other crimes as well. If by amputating a few hands, the life wealth and honor of thousands of people are safeguarded, then this is not a bad deal at all; in fact, it is a very lucrative one. Regrettably our intellectuals fail to appreciate this. (Amin Ahsan Islahi, Tadabbur-i-Qur'an, 4th ed., vol. 2, (Lahore: Faran Foundation, 1991), pp. 512-3)
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 mends his ways.
(Translated from 'Mizan' by Shehzad Saleem)1. i.e. those who can bear witness that these women are in fact prostitutes who habitually commit fornication.
2. It is by not understanding this fact that the verse has been a subject of an unresolved controversy of interpretation.
3. Qisas is from Qasas which means to follow someone along his footsteps. From this meaning, it was used for the punishment in which the criminal is treated in the same way as he himself had treated the other person while committing the crime. Owing to a great depth in its meanings, it is used both for Qisas in life and Qisas in wealth in the Arabic language.
4. Consequently, without a person's fault, this law shall not relate to such a case. The Prophet (sws), according to this principle, said 'If an animal kills a person, it is not the responsibility of the animal's owner; if a person falls in a well, the owner of the well is not responsible and if an accident occurs in a mine, the owner of the mine cannot be held responsible.' (Bukhari, Kitabu'l-Zakah) ie, in such cases the owner is not to be blamed if his fault has not caused the mishap.
5. Except for calling in four witnesses to deal with prostitutes, as mentioned in this verse, and the insistence on four witnesses to register a case of Qadhf (24:4-9), the Qur'an has not bound a court in any way to prove a crime in a particular manner. All other crimes stand proven in the eyes of the Islamic law the way they stand proven according to the general procedures employed in legal practice.
6. (i) Mu'atta Imam Malik, Kitabu'l-Hudud, (ii) Abu Bakr Jassas, Ahkamu'l Qur'an, vol. 3 (Beirut: Daru'l-Kitab al-Arabi, 1335AH) p.262) (iii) Ibn Arabi, Ahkamu'l Qur'an, 3rd ed., vol. 3, (Beirut: Daru'l-Ma'arifah, 1972), p. 1327.
7. Abu Bakr Jassas, Ahkamu'l Qur'an, vol. 3 (Beirut: Daru'l-Kitab al-Arabi, 1335AH) pp. 261-2)
8. (i) Abu Bakr Jassas, Ahkamu'l Qur'an, vol. 3 (Beirut: Daru'l-Kitab al-Arabi, 1335 AH) p. 260), (ii) Ibn Arabi, Ahkamu'l Qur'an, 3rd ed., vol. 1, (Beirut: Daru'l-Ma'arifah, 1972), p. 1327, (ii) Abu Da'ud, Kitabu'l-Hudud, (iii) Musnad Ahmad Ibn Hambal, vol. 2, p.118
9. Ibn Arabi, Ahkamu'l Qur'an, 3rd ed., vol. 1, (Beirut: Daru'l-Ma'arifah, 1972), p. 406.
10. Here 'punishment' means the punishment that has been mentioned in verse two of Surah Nur (a hundred stripes) just prior to these verses. According to linguistic principles, whenever a noun has been defined by alif-lam and is repeated later, then if something within the context does not pose a hindrance, the repeated noun shall have the same meaning as the first. Consequently, here, no other punishment can be regarded as implied.
Topics: Islam, Islamic Law (Sharia)