For many centuries now, Islamic punishments have remained one of the greatest subjects of debate both inside and outside the Muslim world. ‘Islamic punishments are barbaric’, ‘Death to the death punishment’, ‘Civilized societies do not flog, stone to death or amputate hands’ are a few of the typical slogans and comments that echo and reverberate among the intellectual elite of this Ummah.
Without refuting the fact that Islamic punishments are indeed very severe, two things may perhaps help the modern mind in understanding the nature and logic of this severity.
The first thing that needs to be kept in mind is that if one reflects on the style and linguistic constructions in which these punishments are mentioned in the Qur’ān, it is clear that these punishments indicate the most extreme forms of reproof. They are to be given only if the extent of the crime and the state of the perpetrator of the crime deserve no leniency. In other words, it is not simply a matter of a court determining the culpability of an individual in a particular crime or not; it is equally important that contextual information, for instance, factors which led up to the crime, is taken into account. If this information results in a judge deciding that the crime has been committed with extenuating circumstances, he has the authority to punish the criminal with lesser punishments like fining him or having him beaten up. Precisely, on such grounds, in a particular case, the Caliph ‘Umar (rta) refused to amputate the hand of a person who was forced to steal because of hunger simply because he thought the circumstances were such that the person deserved leniency. It is known that there was a severe drought during his rule and it was in this drought that the incident had taken place. People think that ‘Umar (rta) had abrogated the punishment, whereas, ‘Umar (rta) thought that the criminal deserved leniency. In other words, one can easily conclude that in this particular aspect the Islamic penal code is no different than other penal codes.
The second thing that needs to be taken into consideration is that the purpose of most Islamic punishments is not merely to punish the criminal, but to make his punishment an act of deterrence for any further instance of the crime. Everyone would agree that peace and security of a society occupy fundamental importance if it is to develop and prosper. Societies which are crime ridden and in which people feel insecure obviously soon disintegrate and eventually have no role in the development of culture and civilization. As such, it is the primary responsibility of a government to make sure that the life, wealth and honour of its citizen are protected to the utmost. Besides educating and instructing people so that they have morally sound personalities, it is necessary to severely punish people who, in spite of being provided with the opportunities of life, exceed limits by abusing the life, wealth and honour of others. In order to cleanse a society from crime as much as possible, Islam wants to make an example of people who create nuisance in the society and disrupt its peace and tranquillity. Consequently, the punishments it prescribes are instrumental in bringing to the greatest degree peace and security to a society.
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In recent times, Javed Ahmad Ghamidi (b: 1951) has attempted to derive the principle guidelines that Islam has given on the subject of Islamic punishments. He has documented these guidelines in the form of the penal law of Islam. His research has led him to many important conclusions which directly relate to this law and which have arisen because of some prevailing misconceptions about of Islamic punishments. As such, the research presents a fresh sight on this issue. Besides highlighting the two above discussed premises, some of his major conclusions are summarized below:
1. Islam has prescribed punishments in a limited sphere only. It has prescribed punishments for what it considers to be the five major crimes. They are fasād fi’l-ard (spreading disorder in the society)1, murder, fornication, accusing someone of fornication and theft. The punishments of all other crimes have been left to state authorities to legislate.
2. As far as Diyat (blood money) is concerned, though it is an everlasting law which must be obeyed in all times, yet its quantity, nature and other related affairs have been left upon the customs and traditions of a society. Consequently, no eternal quantity of Diyat has been fixed by Islam, nor has it instructed Muslims in any manner to discriminate between a man or a woman, a free man or a slave and a Muslim or a non Muslim in this matter.
3. It is incorrect to conclude that Islam discriminates between married and un-married men or women who are guilty of fornication. Their punishments are essentially the same. It is only in cases when fornication is compounded by certain other elements, making the nature of the crime more severe that certain other punishments are added to the original form of punishment.
4. As far as criminal evidence is concerned, three things must be kept in consideration:
(i) Islam does not discriminate between a man and a woman. In all criminal cases, it is left to the discretion of the judge whether he accepts someone as a witness or not. If a woman testifies in a clear and definite manner, then her testimony cannot be turned down simply on the basis that there is not another woman and man to testify alongside her.
(ii) Islam does not require four eye-witnesses in ordinary cases of fornication nor has it fixed a quantity of witnesses to prove a crime. Only in two cases has it prescribed a certain quantity. The first of them is regarding prostitutes. In their case, if four witnesses testify to their ill-ways, then this is enough to punish them. The second case concerns accusing chaste and morally sound women of fornication – about whom no one can even imagine that they can commit such a crime. In their case, Islam wants four eye-witnesses to even start the proceedings of a case. In this regard, the purpose is the protection of reputation of a chaste lady. Even if she has faltered, it should be kept hidden from the society, unless of course there are four eye witnesses to this crime.
(iii) In all cases of Islamic law a crime legally stands proven not only by the testimony of the witnesses or by the confession of the criminals themselves but also by any additional or circumstantial evidence. Medical examination, cameras, postmortem reports, finger prints and other similar aids can also be used in proving a crime.
5. The punishment of apostasy (death penalty) was specifically meant for the Idolaters of Arabia under a specific law of the Almighty which applies only in the age of His Messengers. According to this law people who advocated polytheism in spite of being convinced of its falsity were punished by the Almighty Himself through His Messengers. After the departure of the last of the Messengers this punishment has no bearing whatsoever upon any person or nation.
6. The death sentence can only be given in two cases as per the Qur’ān: to a person who has killed someone or to someone who is guilty of spreading lawlessness and disorder in a society. No other person can be punished by death.
7. The jail punishment was never a part of the Islamic penal code. It is an inhuman punishment and should be done away with. It should be replaced with other forms of reproof which actually punish the criminal and not his family.
This issue of the journal has been devoted to the research work carried out by Javed Ahmad Ghamidi on Islamic punishments. For the benefit of the English reader, I have attempted to translate the relevant articles2 on this issue so that our readers can critically assess the views presented.
1. This term encompasses all mischievous acts of criminals who take the law into their own hands, create in the society and become a menace to public safety and social order in any sense.
2. These articles appear in his books Mīzān, 1st ed., Dāru’l-Ishrāq, Lahore, 2001 / Burhān, 1st ed., Dānish Sarā, Lahore, 2000