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 leniancy1. 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 verse2 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 leniancy3, should be stoned to death according to the directive of taqtīl of the same verse of Sūrah Maidah4.
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 attitude5?" ("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")
________________________
1.
Consequently, the Prophet’s inquiry into the marital status of criminals
guilty of fornication was based on this pretext ie, whether the criminal
deserved any leniancy. Our jurists have erroneously inferred from it that
this 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 Sūrah Nūr) is only for unmarried people. In
other words, 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’ān as well as
the norms of sense and reason.
2. It is by not understanding this fact that the verse has been a subject of an unresolved controversy of interpretation.
3. The words ‘unsophisticated’ or ‘unmarried’ and ‘widower’ or’ married’ of the tradition are meant to explain this very principle.
4. A hundred stripes has been mentioned with rajam (stoning to death) merely to explain the law. Traditions 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 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 judgement but, in practice, only the death sentence is carried out.
5. 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.