إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلَافٍ أَوْ يُنفَوْا مِنْ الْأَرْضِ ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ إِلَّا الَّذِينَ تَابُوا مِنْ قَبْلِ أَنْ تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَحِيمٌ (5 :33-4)
The punishments of those who wage war against Allah and His Prophet and in this way strive to spread anarchy 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. (5:33-4)

It is obvious from the style of these verses that the meaning implied by muhārabah and by spreading anarchy in the land which connotes waging war against Allah and His Prophet (sws) and in this way spreading anarchy is that an individual or a group of individuals rebels against the sharī‘ah of the Almighty and attacks the life, wealth, honour and freedom of expression of people. Consequently, under a Muslim government, all those criminals who commit rape, take to prostitution, become notorious for their ill-ways and vulgarity, become a threat to honourable people because of their immoral and dissolute practices, because of their wealth and social status sexually disgrace women, 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, plunder, decoity or robbery, by indulging in hijacking and terrorism and by committing other similar crimes are criminals of muhārabah, and spreading such anarchy in the society should be severely dealt with.

The following four punishments are specifically prescribed for criminals mentioned in the verses quoted above:

  • (1) Taqtīl (تقتيل)
  • (2) Taslīb (تصليب: Crucifixion)
  • (3) Amputating limbs from opposite sides
  • (4) Nafī ( :نفى Exile)

Their explanation follows:\

Taqtīl (تَقْتِيْل)

The words اَنْ يُقَتّلوْا (an yuqattalū) are used for it and imply that not only should the criminals of this category be executed but the execution should be carried out in a manner that serves as a severe warning to others. The reason is that here 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 him. Except for burning a criminal in fire and adopting other means of punishment prohibited by the sharī‘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 rajm (stoning to death) is one form of taqtīl. The Prophet (sws) in his own times, in accordance with this directive, administered this punishment to certain criminals guilty of fornication.

Taslīb (تَصْلِيْب: Crucifixion) This word, like taqtīl, is also from the تَفْعِيْل (taf‘īl) 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 till death. This form of punishment, no doubt, is exemplary but the word taslīb 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 is that if the criminal is allowed to live, then he should serve as a reminder and an example before the society and also remain incapacitated to commit future evil.

Nafi ( :نَفِى Exile)

It is obvious that this punishment of exile is the least in intensity in this category of punishments. 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’ān 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 each of the punishments mentioned in the verse is separated from the other by the particle أَوْ (or), it is evident that the Qur’ān has given an Islamic government the flexible 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 nafī is 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 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 regarding the marital status of criminals guilty of fornication and profligacy was also based on the pretext of 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 Sūrah Nūr) was abrogated for married people who indulged in fornication. 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 that 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. In the words of Imām Amīn Ahsan Islāhī:

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, who if shown any leniency, would endanger the life, wealth and honour of many people, 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 welfare of the society.

Consequently, about certain habitual criminals of fornication, the Prophet (sws) is reported to have said:

خُذُوا عَنِّي خُذُوا عَنِّي قَدْ جَعَلَ اللَّهُ لَهُنَّ سَبِيلًا الْبِكْرُ بِالْبِكْرِ جَلْدُ مِائَةٍ وَنَفْيُ سَنَةٍ وَالثَّيِّبُ بِالثَّيِّبِ جَلْدُ مِائَةٍ وَالرَّجْمُ (مسلم: رقم 1690)

Acquire it from me, acquire it from me. The Almighty has revealed a way for these women. 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, No: 1690)

In this H~adīth, the reference جَعَلَ اللَّهُ لَهُنَّ is to those women about whom the following temporary directive had been given in Sūrah Nisā:

وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِنْكُمْ فَإِنْ شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّاهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلًا (15:4)

And upon those of your women who commit fornication, call in as witnesses 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 formulates another way for them. (4:15)

The style and construction of the phrase وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ (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 mention . 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 Sūrah Nūr because of committing fornication and exiled according to verse 33 of Sūrah Mā’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 taqtīl of the same verse of Sūrah Mā’idah.

The words “unsophisticated” or “unmarried” and “widower” or “married” of the H~adīth quoted above (Muslim, No: 1690) are meant to explain this very principle. A hundred stripes are mentioned with rajm (stoning to death) merely to explain the law. Ahādīth verify that the Prophet (sws) mentioned this punishment of a hundred stripes with rajm 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 make him a means of severe warning for the society and to severely admonish him for his future life. 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 judgement but generally, in practice, only the death sentence is carried out.

The plurals يَسْعَوْنَ (they strive) and يُحَارِبُوْنَ (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 only some of the criminals but to the gang as a whole. Consequently, if a gang of criminals of this first category is guilty of such 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 ذَالِكَ لَهُمْ خِزْىٌ فِى الدُّنيَا (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 Imām Amīn Ahsan Islāhī:

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 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.

The words إِلَّا الَّذِينَ تَابُوا مِنْ قَبْلِ أَنْ تَقْدِرُوا عَلَيْهِمْ (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 muhārabah and spreading disorder. To quote Imām Amīn Ahsan Islāhī:

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 فَاعْلَمُوْا (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 in the grip of the law, why should His servants adopt a different attitude?

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.