مِنْ أَجْلِ ذَلِكَ كَتَبْنَا عَلَى بَنِي إِسْرَائِيلَ أَنَّهُ مَن قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (٣٢:٥)
It is this [rebelliousness of man] because of which We laid it down [in the Mosaic sharī‘ah] for the Israelites that he who killed a human being without the latter being guilty of killing another or because of spreading anarchy in the land should be looked upon as if he killed all mankind. (5:32)
It is evident from the above mentioned directive that the life of a human being can only be taken in two instances: when a person has killed someone or when a person while rebelling against the collective system goes after the life, wealth or honour of others. The words “spreading anarchy in the land” refer to this latter practice. Apart from these two instances, every killing is an unjustified act. According to Islam and the Islamic sharī‘ah, such a killing is a crime not only against God but also against the heirs of the murdered person as well as against the society and the government. The Almighty has specified that such criminals will not deserve any lenience from Him in the Hereafter; their faith and deeds will bear no fruit and they will be consigned to the eternal punishment of Hell:
وَمَن يَقْتُلْ مُؤْمِنًا مُّتَعَمِّدًا فَجَزَآؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا (٩٣:٤)
And he who intentionally kills a believer, his reward is Hell. He shall abide therein forever, and the wrath and the curse of God are upon him. And He has prepared for him a dreadful doom. (4:93)
The second party to a murder is the heirs of the victim. The Qur’ān has stated that the Almighty has given them full authority on the life of the murderer. Hence no court of law or government can treat them with any lenience without the consent of the heirs. It is the responsibility of the court and the government that if the heirs insist on qisās, they should help them and implement their will in this regard with full force in a just manner. It is said:
وَلاَ تَقْتُلُواْ النَّفْسَ الَّتِي حَرَّمَ اللّهُ إِلاَّ بِالحَقِّ وَمَنْ قُتِلَ مَظْلُومًا فَقَدْ جَعَلْنَا لِوَلِيِّهِ سُلْطَانًا فَلَا يُسْرِفْ فِي الْقَتْلِ إِنَّهُ كَانَ مَنصُورًا (٣٣:١٧)
Do not wrongfully kill any person whose life has been held sacred by God. And [remember that] whoever is killed wrongfully, We have given his heir an authority. So he should not exceed the bounds in taking a life because he has been helped. (17:33)
The third party to a murder is the Muslim society which is represented by its government. In this regard, the directive of God is that exacting the qisās of a murdered person is mandatory upon the government. Hence a government is bound by the sharī‘ah to trace the murderer of a person killed in the area that lies in its jurisdiction, arrest him and exact qisās from him according to the law. The government has been directed that complete equality must be observed in this regard and the social status of a person should not be given any preference in any way in this matter. The low in status and the high, the rich and the poor, the noble and the ignoble, the master and the slave – all are equal in the eyes of the law in this regard; no discrimination can be made between them. The Qur’ān states:
يَاأَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمْ الْقِصَاصُ فِي الْقَتْلَى الْحُرُّ بِالْحُرِّ وَالْعَبْدُ بِالْعَبْدِ وَالْأُنثَى بِالْأُنثَى … وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَاأُوْلِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ (٢ :١٧٨-١٧٩)
Believers! qisās of those [among you] who are killed has been made mandatory upon you. If such a 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 should be killed in her place … And there is life for you in qisās O men of insight that you may follow the limits set by Allah. (2:178-179)
The mandatory nature of exacting qisās is only revoked when the heirs of the murdered person do not insist on taking life for life and want to treat the criminal with lenience. After this, it is left to the discretion of the court and the government to either insist on exacting qisās and to not accept this relief given by the heirs of the murdered person or to accept this relief keeping in view the nature of the crime and the circumstances in which it was committed and direct the murder to pay diyat to these heirs according to the custom of the society. The succeeding words of the above quoted verse of Sūrah Baqarah (2:178) read:
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ ذَلِكَ تَخْفِيفٌ مِنْ رَبِّكُمْ وَرَحْمَةٌ (٢ :١٧٨)
Then for whom there has been some relief from his brother, then this should be followed according to the custom and diyat should be paid with kindness. This is a kind of concession and a mercy from your Lord. (2:178)
A little deliberation will show that the relief mentioned in this verse has precisely the same style in which relief is mentioned in the verse that states the obligation of fasting. It is mentioned in this verse that fasting is obligatory for the believers; however, if a person is sick or is traveling, he can opt not to fast in which case he will have to make up for the missed fasts later. If both verses are placed parallel to one another, one can see the similarity. At one place, it is said: “Believers! Fasts have been made mandatory upon you.” At the other, the words are: “Believers! Qisās has been made mandatory upon you.” At one place, it is stated: “Then he who is sick or is a traveler.” The words at the other are: “Then for whom there has been some relief from his brother.” At one place, it is said: “He should complete the count in other days.” At the other, the words are: “The relief should be followed according to the custom.” Students of the Qur’ān can see that the construction of both verses is exactly the same and in both verses permission has been given to benefit from the relief granted; however, accepting the relief has not been made mandatory. Hence just as in the case of fasting Muslims are not bound to necessarily give up fasting if they are sick or are traveling, similarly in the qisās verse, the government and the society on whom qisās has been made mandatory have not been bound to necessarily accept the decision of the heirs of the murdered person in case they have decided to show relief. After this relief shown by them, qisās has only lost its mandatory status and become optional; the right to take qisās has not been abrogated in any way. Thus the government and the society have all the right to insist on taking qisās keeping in view the nature of the crime and the circumstances of the criminal and not accept this relief granted.
It is evident from these details that the Qur’ān definitely insists that without the consent of the heirs no lenience can be shown to the murderer; however it does not insist in any way that if the heirs intend to show lenience, then it is essential to not exact qisās from him. This difference has much wisdom in it. If the second of these options is insisted upon, then the right of the society is breeched and the same deplorable situation will arise as the one that has arisen in the cases of Raymond Davis and Shah Rukh Jatoi. If the first of these options is not insisted upon, then the right of the heirs is violated and the whole wisdom underlying the directive is rendered null and void. This wisdom was to extinguish the fire of revenge ignited in the hearts of the victim’s heirs and to heal the wound caused by his death so that if they adopt a soft attitude, this would be a direct favour to the murderer and his family from which very useful results can be expected.
The cardinal mistake committed by our jurists is that they have not taken into consideration this difference and in this way by severing the link of such a heinous crime as murder from the society have made it a dispute between the murderer and the heirs of the victim. The ordinance of qisās and diyat is based on this very opinion of our jurists. It needs to be amended as soon as possible and brought in line with the Book of God in all respects. As per the dictates of our faith and beliefs, we are bound by the Qur’ān and Sunnah and not to a particular interpretation of these sources. We request our scholars to deliberate on our recommendations. This matter relates to God’s religion and should be viewed while rising above all prejudices.
(Translated by Dr Shehzad Saleem)
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