The punishment of murdering or wounding a person is an important constituent of the penal code of Islam. In the following pages, we present our view about this punishment.
This category of crimes can be of two types as far as its nature is concerned:
Firstly, if someone is intentionally wounded or murdered by someone or if any of his limbs is amputated by someone.
Secondly, if the above mentioned mishaps occur unintentionally owing to someone’s fault.
About the first type, as far as murdering someone is concerned, the Qur’ān says that it is a heinous crime and murdering a single person is like murdering the whole mankind and saving a single person is like saving the whole mankind. The Qur’ān 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, and he who saved a human being should be regarded as though he saved all mankind.” (5:32)
Furthermore, the Qur’ān 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 my mentor, Imam Amin Ahsan Islahi:
“Firstly, every such occurence should create a tumult and commotion in the nation. Until and unless Qisās 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 slayed, 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 not 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 favour 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 ownself, 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 Qisās is like giving a life to the slain person beacause, according to the Qur’ān, there is survival in Qisās.” (“Tadabbur-i-Qur’ān”, Vol 2, Pgs 503-4)
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 sytems of law. It not only leaves the criminal at the mercy of 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 my mentor:
“In matters of Qisās, 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 this moment, they would do a big favour to the killer and his family which produces many useful results.” (“Tadabbur-i-Qur’ān”, Vol 1, Pg 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 the frenzy of revenge or out of prejudice of 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. Similarly, in cases of injury, when there is a strong chance that Qisās would inflict more harm on the inflicter than the harm he himself had caused, they still insist upon limb in place of limb and wound in place of wound.
The Qur’ān 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:
“Anyone who left behind any burden of responsibilities, I [as the ruler of the state] shall discharge them and anyone who left behind any wealth, it is for his heirs. However, I am the heir of a person who has no heirs” (AbūDā’ūd, Kitāb-ul-Farāidh)
This authority has been explained by the Qur’ān in the words that if the heirs want they can insist upon taking life for life, limb for limb, wound for wound or forgiving and forgoing their brother’s crime. The Qur’ān says:
“O ye who believe! decreed for you is the Qisās 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 this slave shall be killed in his place and if the murderer be 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’arūf and Dīyat 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 Qisās O men of insight! that you may follow the limits set by Allah.” (2:178-179)
Similarly, while referring to the Torah in Sūrah Māidah, it has been said:
“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)
The law which has been stated in these verses is based on the following three clauses:
Firstly, Qisās1 is an obligation imposed by the Almighty on an Islamic State. It guarantees survival for a society and is, in fact, a Divine Law which can only be breeched 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 Qisās. 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 Dīyat from him. The latter case, according to the Qur’ān is a favour and rebate by the Almighty on the criminal. Consequently, their forgiveness shall become an atonement (kaffārah) for the criminal2 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 Dīyat then this should be given to them with nicety and goodness. In the words of my mentor:
“The directive of paying Dīyat with nicety and goodness has been given because in that period in Arabia, Dīyat was generally not given in the form of cash; it was generally paid in kind or in the form of animals. Therefore, if the payers of Dīyat 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 Dīyat as far as the agreed quantity and weightage is concerned, disregarding their quality and nature. This would amount to ignoring the favour done by a party by forgiving the murderer. Someone whose life had been left at the mercy of a person by the Sharī’ah had been forgiven by him and had agreed to accept some wealth instead. This favour should have been answered by favour only ie, the payment of Dīyat should have been 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 dishonourable.” (“Tadabbur-i-Qur’ān”, Vol 1, Pg 434)
The words of the Qur’ān leave no room for any exception in this law. However, some jurists have argued for an exception on the basis of two Ahādith ie, `In the Qisās of an Idolator no Muslim shall be executed’ (Dārmi, Kitāb-ud-Dīyāt, Ch 5) and `In the Qisās of a son, the father shall not be executed’ (Dārmi, Kitāb-ud-Dīyāt, Ch 6). We are afraid that they have not interpreted these Ahādith correctly. The first of these relates specifically to the idolators of Mecca who were the Prophet’s (sws) nation and towards whom he was directly sent. For them, the Qur’ān3 clearly states that after 10th Hijri, since the Prophet (sws) had unveiled the truth to them in its ultimate form and they had rejected it out of sheer obstinacy, they shall no longer be given the right to live. The second Hadīth pertains to the particular case when a son is killed while his father is punishing him for some wrong he has committed4.
In Islamic law, this is the punishment for intentionally murdering or wounding a person or amputating any of his limbs. If, however, any such mishap occurs without a person’s fault5 the punishment according to the Qur’ān in some cases is Dīyat and Atonement (kaffārah) 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. The Qur’ān says:
“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 Dīyat to the heirs of the victim except if they forgive him. If the victim be 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, Dīyat 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)
This law is based on three clauses:
Firstly, if the murdered person is a Muslim citizen of an Islamic State or if he belongs to a nation with which a treaty has been concluded, it is necessary that the murderer should pay Dīyat and to atone this sin and to repent before the Almighty, 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 Dīyat; In this case, it is enough if he only frees 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 murder is concerned. But it is obvious that the directive of unintentionally wounding someone should also be no different. Hence, in this case also Dīyat shall have to be paid and fasts shall have to be kept considering the amount of Dīyat paid. For example, if the Dīyat of a certain type of wound is fixed at one third, twenty fasts as atonement shall also have to be kept.
The matters relating to Qisās and Kaffārah in the law of intentional as well as unintentional murder and injury are all evident. However, the following questions arise about the Dīyat which has to be paid in such cases:
(1) How and in what amount should it be paid?
(2) What is the reality of Dīyat as regards its nature? Is it a financial compensation for the loss suffered by the heirs of the slain or by the wounded person himself, or is it the price of life or a limb, or something besides these two?
As far as the first question is concerned, consider the verse of the Qur’ān which we have quoted above. In verse 92 of Sūrah Nisā, the words dīyatun mussalamatun ilā ahlihī have been used. Their most appropriate grammatical analysis in our consideration is to regard them as the inchoative (mubtadā) of a supressed enunciative (khabar) ie, fa ‘alaihi tahrīru raqabatim mu’minatinw wa dīyatum musallamah. The word Dīyat in these verses occurs as a common noun, about which we all know that its meaning is determined by the context in which it is used and by its linguistic and customary usage. For example, consider the Qur’ānic verse: In nallāha ya’murukum an tazbahū baqarah (Verily, God ordains you to sacrifice a cow). The word baqarah is a common noun. Therefore, it is absolutely certain that the Jews were ordained to sacrifice an animal whose name in the linguistic and customary usage of the Arabs was baqarah. If they had sacrificed any cow they would have, no doubt, fulfilled this Divine Directive. On the other hand, let us have a look at the phrase: Aqīmus salāt. The word as-salat occurs in this verse as a proper noun. In technical terms it is mujmalun muftaqirun ilal bayān ie, a compact statement which needs an explanation, and even after ascertaining its meaning from linguistic and customary usage, it is necessary to turn to the Law Giver for an explanation of the meaning it implies. However, had it been mentioned in the Qur’ān as a common noun, the implied meaning would have been evident. We would have clearly understood that we are being directed to establish something which was traditionally denoted in pre-Islamic Arabic language by the word salāt. In other words, if someone obligates us about something and mentions the obligated thing as a common noun, it simply means, that he has directed us to obey the ma`rūf ie, whatever the general custom and tradition is in this regard. Also, since a common noun denotes generality, every meaning associated with it shall be considered as implied, without any specification, lest something within the context poses a hindrance. Therefore, in the above verse `Dīyat’ means something which in the general custom and usage is called `Dīyat’. And the words dīyatum musallamatun ilā ahlihī simply mean that the family of the murdered person should be given what the general custom and tradition terms as `Dīyat’.
In verse 178 of Sūrah Baqarah, where the directive of Dīyat in case of intentional murder has been given, it has been qualified by the word ma`rūf:
“Then for whom there has been some remission from his brother, [the remission] should be followed according to the ma`arūf and Dīyat should be paid with goodness.”[2:178]
It is evident from the above mentioned verses of Sūrah Nisā and Sūrah Baqarah that in case of intentional as well as un-intentional murder, Dīyat should be paid according to the custom and tradition of the society. In his own period the Prophet (sws) obeyed this Qur’ānic injunction by following the prevailing ma`rūf of the Arab Society. Whatever has been stated in the Ahādith is just an explanation of this ma`arūf during that period. It should be clear that no directive of the Prophet (sws) has been mentioned in the Ahādith which obligates us to follow it.
An important question that needs considerable explanation concerns the actual Arab custom about Dīyat. If we study the pre-Islamic Arabic poetry and the recorded account of battles between various Arab tribes, we come to know that the Dīyat of every person whose blood relation with his tribe was sarīh (definite), was fixed at ten camels. The Dīyat of an ally or a maid was half of the sarīh and the Dīyat of a woman was also half that of a man. The author of “Āghāni” while describing the events of a battle between the tribes of Aus and Khazraj writes:
“And in their custom, the Dīyat of a maulā ie, an ally was five camels and that of a sarīh or a person whose blood relation with some tribe is definite was fixed at ten camels.” (Vol 3, Pg 40)
According to Jawād Ali the author of “Al Mufassal Fī Tārīkh il Arab Qablal Islam”:
“If the slain person was a maid’s son, his Dīyat was half that of a sarīh and the Dīyat of a woman was half that of a man.” (Vol5, Pg 592)
Some tribes because of their high social status accepted twice the actual amount of Dīyat, while some paid twice the actual amount as a favour and blessing upon the other tribe. We quote again from “Al-Mufassal”:
“It is said that Ghatārif or the people of the tribe Haris Bin Abdullah Bin Bakar Bin Yashkur used to accept two Dīyats for their slain, and if it became obligatory for them to pay Dīyat, they used to pay a single Dīyat. Likewise, for Bani Amir Bin Bakar Bin Yashkur, whose ancestor Amir was, in fact, called Ghatrif, two Dīyats were fixed, while for the rest of the nation it was single. Similarly, according to most traditions, the tribe of Bani Aswad Bin Razan in pre-Islamic times used to pay two Dīyats to others.” (Vol 5, Pg 593)
Jawād Ali goes on to write:
“This regularity in paying two Dīyats was not because of some weakness but as a favour to the family of the slain.” (“Al-Mufassal”, Vol 5, Pg 593)
The Dīyat of kings called the Dīyat-ul-Mulūk was fixed at a thousand camels. Karād Bin Hansh Assāridi while eulogizing Bani Fazārah says:
Wa nahnu rahannal qausa summut fūdiyat
Bi alfin ‘alā zahril fazāriyyi Aqra’ā
[“And we pledged a bow, and from the wealth of Fazāri a thousand camels were given as remittance for this.”]
Bi’ashri maiīna lil mulūki sa’ā biha
Liyufiya Sayyār ubnu Amrin fa asra’ā
[“ie, ten hundred camels which is the Dīyat of kings. Sayyār Bin Amar strived to carry out this promise and fulfilled the responsibility without delay.”]
A few years before the birth of the Prophet (sws), this custom underwent a drastic change. It is said that Abdul-Muttalib, the grandfather of the Prophet (sws) vowed that if God would bless him with ten sons, he would slaughter one of them as a sacrifice. And when God fulfilled his wish, he set out to fulfil his own pledge. A lot was cast to select which among the ten sons should be sacrificed. It fell upon Abdullah: so, when Abdul Muttalib was on his way to sacrifice him, some people stopped him and suggested to sacrifice a camel instead. We have indicated before that during that time the quantity of Dīyat was fixed at ten camels. Hence, once again, a lot was cast, this time in the name of Abdullah and ten camels. It fell upon Abdullah and the process was repeated until the number of camels reached one hundred. According to the traditions, after this event the quantity of Dīyat among the Arabs, particularly the Quraysh was re-fixed at a hundred camels. In the words of Ibni Abbas:
“During that period, Dīyat was ten camels. It was Abdul Muttalib who first of all fixed it at one hundred camels. As a result, this quantity was adopted by the Quraysh and the Arabs.” (“At-Tabaqāt ul Kubrā”, Ibni Sād, Vol 1, Pg: 89)
Zuhair has mentioned the same amount of Dīyat in his “Mu’allaqah”. While eulogizing two Arab Chiefs, Haram Bin Sanan and Haris Bin Auf, because the two had paid three thousand camels as Dīyat to stop a war between ‘Abas and Fazārah, he says:
Tu’affal kulumu bil ma’īna fa asbahat
[“By means of hundreds camels the wounds shall be healed.
So, those who were just innocent began to pay these camels in small lots.”] It is evident from this couplet that after this war the
Dīyat of the slain was paid in instalments. According to “Aghāni”: “Hence it was three thousand camels which were given in
three years.” (Vol 10, Pg 297) In this “Mu’allaqah” Zuhair has pointed out that `Efāl’ or
young camels were given as Dīyat. Fa asbaha yuhdā fīhim min tilādekum
[From your inherited wealth, camels of various ages which
are `Efāl’ ie, well bred young camels are sent to the families of the slain.] About this specification of `Efāl’ Zauzani, a commentator
of “The Sab`a Mu’allaqāt” writes: “The poet has particularly mentioned young camels because
only two year olds, three year olds and four year olds, were given as Dīyat.” (A
commentary on the Mu’allaqāt-us-Sab`a, Zauzani, Pg 8) The Dīyat of wounds also existed in Arab. A study of
pre-Islamic Arabic reveals that the words `Arsh’ and `Nazr’ were used in this
meaning besides others. According to “The Lisān-ul-Arab”: “The word `Arsh’ is, in fact, `Khadsh’ ie, bruise or
wound. Then it began to be used for the money which was exacted as Dīyat for
wounds. The people of Hejaz used the word `Nazr’ for this.” (Vol 6, Pg 263) We have mentioned above that it was this Arabic custom
which the Prophet (sws) while obeying the Qur’ān, enforced during his own time.
Consequently, in many Ahādith it has been mentioned that the Prophet (sws)
continued with the Arabic custom in the matters of Dīyat, which had existed
before his own Prophethood. To further quote Ibni Abbās: “In the Quraysh and in Arabia, the quantity of Dīyat
adopted was one hundred camels. Consequently, later on the Prophet continued
with it.” (“At-Tabaqāt-ul-Kubrā”, Ibni Sād, Vol 1, Pg 89) In another Hadith, which the scolars of Hadīth present in
support of the word ma`qalah and which has also been reported in slightly
different words in the Musnad of Ahmad Bin Hanbal, this matter has been stated
in the following way: “A treaty between the Ansār and the Quraysh was documented
by the Prophet in which it was written down that the Muhājirīn of the Quraysh
would continue according to their previous state and the matter of Dīyat would
be conducted between them as before.” (“The Lisān-ul-Arab”, Vol 11, Pg 462) On the contrary, in Yemen (southern Arabia), the custom
was that in various forms of murder and in various types of wounds, the amount
of Dīyat was fixed by the ruler. But when Yemen became a part of the Islamic
State during the Prophet’s time, a letter was sent by him to the chiefs of Yemen
in which he fixed the same quantity of Dīyat for them which was enforced in his
own territory. Dr Jawād Ali while writing about this Arabic custom in his book
“Al-Mufassal Fi Tarīkh il Arab Qablal Islam” says: “Dīyat was paid according to the custom in southern Arabia
also, but no regular legislation had been done in this regard; instead the
determination of its amount had been left upon the discretion of the ruler.”
(Vol 5, Pg 593) We reproduce the epistle of the Prophet (sws) which he
wrote to the people of Yemen6: “He who wrongfully kills a Muslim and his crime is legally
proven shall be taken revenge from, except if the heirs of the murdered person
agree to accept Dīyat. In this case, the Dīyat of life is one hundred camels and
that of a nose also when it is completely cut off. The Dīyat of a tongue or lips
or testicles or the male reproductive organ or the back or both eyes is one
hundred camels as well. The Dīyat of a single feet {and hand}7,
however, is half. A wound which reaches the stomach and one which reaches the
brain shall have one third Dīyat. The Dīyat of an injury because of which a bone
is displaced is fifteen camels. For each of the fingers of the hand and feet,
the Dīyat is ten camels, for the teeth it is five and for an injury because of
which a bone is exposed, it is five as well. A man shall be executed in place of
a woman and those who can pay Dīyat only in the form of gold, the Dīyat is one
thousand dīnārs.” (Sunan-i-Nasāi, Kitāb-ul-Qassāmah) After this explanation about the law of Dīyat, it becomes
evident that Islam has not prescribed any specific amount for Dīyat 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 law of Dīyat was in force in Arabia
before the advent of Islam. The Qur’ān has directed us to pay Dīyat just
according to this law both in case of intentional as well as un-intentional
murder. By this Qur’ānic directive, Dīyat, now, has become an eternal law of the
Sharī’ah for all times and for every society; however its quantity, nature and
other related affairs have bīn left by the Qur’ān upon the customs and
traditions of a society. The Prophet (sws) and his Rightly Guided Caliphs
decided all the cases of Dīyat according to the customs and traditions of the
Arab society during their own times. The quantities of Dīyat which have been
mentioned in our books of Hadīth 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 Dīyat in the form of
camels nor is it a very wise step to fix the amount of Dīyat on this basis. The
nature of Āqila has completely changed and various forms of un-intentional
murder have come into existence which could never have been imagined before. We
know that the guidance provided by the Qur’ān is for all times and for every
society. Hence, in this regard it has directed us to follow the ma`rūf which may
change with time. By this Qur’ānic directive every society is to obey its
customs, and since in our own society no law about Dīyat previously exists,
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`rūf. It is obvious that
those in authority in any society can revise and re-structure the laws which are
based on the ma`rūf, keeping in view the collective good of the masses. We quote
from “Nashr-ul-Urf”, the work of a celebrated Hanifite scholar, Ibni Ābidīn: “It should be noted that juristic issues either stand
proven by a categorical injunction which is the first type, or stand proven by
Ijtihād and Opinion [which is the second type]. Most issues of the second
category are based by the Mujtahids upon the customs and traditions of a
particular period in such a way that if they would have been present age which
has a certain custom and tradition, they would have given a different opinion.
Hence, about the conditions of Ijtihād, they also state the condition that it is
necessary to have a clear understanding of the habits and common practices of
the people because with the change in times a lot of the directives change. This
may be due to a number of reasons. For example, a change in the general custom,
requirement of a situation or a fear of disorder in the general condition of the
people that if a directive is continued in its original state it might create
difficulties for them or inflict a loss upon them; this would be against the
principles of the Sharī’ah which are based upon facility, comfort, and
prevention of damage and disorder.” (“Rasāil-i-Ibni Ābidīn”, Pg 125) Consider now the second question ie, what is the nature of
Dīyat? In this matter, there are generally two views. One group of our scholars
regards it as the monetary value of human life, while another group considers it
to be the monetary compensation of the financial loss inflicted by the murderer
upon the family of the murdered person. In our consideration, both these views are incorrect. The
first one is merely based upon a misconception. In the pre-Islamic Arab society,
cases of murder were usually settled by Thār (Revenge), Qisās and Dīyat
respectively. As is evident from the order, Thār was the foremost objective of
the Arabs. They used to believe that the soul of the deceased is transformed
into a bird which flies away, and unless revenge is taken, wanders about in the
wilderness crying out Isqūni! Isqūni! (quench my thirst! quench my thirst!).
Some of them believed that only that slain person remains alive in his grave
whose death had been avenged, and if his murder is not avenged, his soul dies
and darkness descends upon his grave. Due to these beliefs, they always
preferred Thār and accepted Qisās only when they could not help it, not to speak
of Dīyat. Ummi Shamla says: Fa yā shamlu shammir watlubil qauma billazī
[“Therefore, O Shamla! rise and get ready to avenge the
harm inflicted upon you by your enemies and listen! Do not accept Qisās or Dīyat
at any cost.”] Abbās Bin Mirdās, while inciting Amir, a tribesman of the
Khuza’ah tribe to revenge says: Wa lā Tatma’an mā ya’lifunaka innahum
[“And don’t even think about the Dīyat they are tempting
you with, for, inspite of having a blood relationship, they have brought a
deadly poison for you.”] In this matter, the severity of their emotions, even after
accepting Islam can be seen from the following verses of Miswar Bin Ziyādah,
when he was offered seven Dīyats upon the murder of his father by the governor
of Medina, Saeed Bin Al A’as. He says: Aa ba’ad allazī binna’afi na’afi kuwaikibin
[“What! after the person who was burried at the foot of
Mount Kuwaikab in a grave of mud and stone.”] Uzakkaru bilbuqyā ‘alā mun asābanī [“I am being advised to show mercy upon a cruel person who
has inflicted me with this grief. The only mercy I can show is to take revenge
at all costs.”] Fa in lum anal tha’rī minal yaumi āu ghadin
[“O ye the sons of my paternal uncle, it does not matter
if, today or tomorrow, I am not able to take revenge, for this world has a long
life.”] Fa lā yad’unī qaumī laiyaumi karīhatin
[“If, without any hesitation, I do not attack my enemies
or become a target of their attack, my nation should never call me for any
battle.”] Aa nakhtum ‘Alainā Kalkalal harbi marratan
[“You you have placed the chest of war upon us; so listen!
we have also decided that unless we place it upon you, we would not remain at
ease.”] Yaqūlu rijālum mā usība lahum abun
[“Those people are offering me Dīyat and urging me to
accept money, whose fathers and brothers never fell prey to the sword of a
killer.”] Hence, it was a result of these emotions that they
considered the acceptance of Dīyat as shameful, and regarded it to be equivalent
to selling the blood of the murdered person. Rabiya Bin Ubaid, a poet of the
tribe Bani Nasar says: Aa zuwābu Innī lum ahabka wa lam aqum
[“O Zwāb! I have not forgiven your murder; nor in the
midst of business in the market of Okāz am I selling your blood (ie, accepting
your Dīyat.”)] However, it is evident that such emotional utterances have
got nothing to do with the actual nature of Dīyat. They can only be regarded as
sentimental statements over the loss of dear ones, and one often come across
such instances in one’s life. Whoever have tried to ascertain the nature of
Dīyat from them, can only be regarded as those who are devoid of any linguistic
appreciation. They probably did not realize that human life or human limbs are
priceless. No mother, father, brother or son, at any rate, can ever be willing
to accept Dīyat on the pretext that the monetary worth of the deceased son,
brother or father is what is actaully being received. Hence, if we accept this
opinion, the result, obviously, would be that a society would never benefit from
the expediency upon which the law itself is based. On these grounds, we
regrettably reject this opinion. As far as the people are concerned who regard it to be a
monetary compensation of the inflicted economic loss, they must realize that the
basic nature of a thing must exist in every small or large part it constitutes.
Even a cursory look at the law of Dīyat reveals that Dīyat is not given solely
in cases of murder, but in case of loss of a human organ or limb like a nose,
ear, eye and tooth as well. It is quite evident that the loss of such limbs does
not result in any economic loss for the affected person or family. After all, if
a toe or a finger, or even a tooth is lost, what financial damage is incurred?
Apart from other reasons, this internal contradiction in the premises of the
view, is enough to prove it a fallacy. Since both the views about the nature of Dīyat are not
correct, then what is the correct view point? To answer this question, it is
necessary to have a recourse to ancient Arabic traditions for a solution. We find a lot of instances, in which the subject of Dīyat
has been discussed in the pre-Islamic Arabic poetry. Episodes of homicide and
murder were so rampant in the ancient Arab society, that the subjects of `Thār’,
`Qisās’ and `Dīyat’ were often versified in their poetical compositions. No
doubt, they often used to challenge the sense of honour of those who accepted
Dīyat, and provoked them to revenge, but apart from these sentimental
utterances, we find many instances where a more serious treatment of the topic
reveals very clearly their own concepts about the actual nature of Dīyat. A careful study shows that in such instances they used the
word gharāmah or maghram which literally means `fine’ or `penalty’. Just as in
English, these words imply the exaction of fine from an offender as a punishment
for a crime, the word gharāmah denotes this meaning in Arabic. We have indicated
before that the Arab poets used this word in instances when they talked about
the nature of Dīyat. To quote Zuhair: Yunajjimuhā qaumun liqaumin gharāmatan
[“In small lots those camels began to be given by one
nation to the other, as a fine; though the givers did not even shed a drop of
blood among those who were receiving it.”] This same concept about Dīyat continued to persist in
later times as well. Ajīr As-salūli, a poet of the Ummayid period has said: Yasurruka mazlūmun wa yardhīka zālimun [“If you are oppressed he makes you happy by taking
revenge, and if you are the oppressor, he pleases you by taking your side; and
as a result of this oppression, when you are paying a fine (Dīyat), whatever
amount you burden him with, he alone pays it.”] Hence, it is quite evident from this discussion that Dīyat
is neither a monetary compensation for an economic loss nor a monetary worth of
human life. By nature, it is gharāmah ie, a fine or penalty imposed on the
criminal in lieu of Qisās in case of intentional murder and, indeed, in all
cases of un-intentional murder. (Adapted from Ghamidi’s “Mīzān”) ---Shehzad Saleem
Yunajjimuhā mun laisa fīhā bi mujrimi
Maghānemu shattā min efālin muzannami
Usibta wa lā taqbal qisāsanwwa lā ‘aqlā.
Atauka ‘alā qurbāhumu bilmuthammali
Rahīnati ramsin zī turābin wa jandali
Wa buqyāya anni jāhidun ghairu mu’tili
Bani amminā faddahru zū mutatawwali
la in lum u’ajjil zarbatan āu u’ajjali
Fa nahnu munīkhuhā ‘alaikum bikalkali
Wa lā min akhin aqbil ‘alal māli tu’qali
Lilbai’i ‘inda tahadhdhuril ajlābi
Wa lum yuharīqū bainahum mil’a mihjami
Wa yakfīka ma hammaltahu ‘inda maghrami
______________________
1. Qisās is from Qasās 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 Qisās in life and Qisās in wealth
in the Arabic language.
2. The Qur’ān is very emphatic in this regard that after this the government cannot punish the criminal in any way.
3. Taubah 9:5
4. This particular case, as far as a father and son is concerned, obviously, cannot be regarded as intentional murder.
5. 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.’ (Bukhārī, Kitāb-uz-Zakat) ie, in such cases the owner is not to be blamed if his fault has not caused the mishap.
6. A little deliberation shows that the ratios of Dīyats which have been stated in this epistle are the last word as far as justice and fairness are concerned. Our rulers while legislating in this regard should take them into consideration.
7. These words have been taken from another Hadīth in which this epistle has been recorded.