The Penal Law of Islam (Part 1/2)
Feature Article
Javed Ahmad Ghamidi /
Shehzad Saleem
The opportunity a man has to exercise his will is one of the greatest favours the Almighty has blessed him with. However, just as this freedom 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 precisely what the angels had feared when the Almighty informed them about his intention to create man:
أَتَجْعَلُ فِيهَا مَنْ يُفْسِدُ فِيهَا وَيَسْفِكُ الدِّمَاءَ؟ (30:2)
[Allah!] will You 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 man. It was evident from the norms of sense and reason vested by the Almighty in human nature that the only way to shield man from such evil was to reform his environment and educate and urge people; however, once a crime is committed, the solution is to administer appropriate punishment. What then should be the ways and means adopted for this reproof and chastisement? Since, in this regard, human intellect could falter and stumble, and history also bears evidence that it has repeatedly done so, the Almighty Himself revealed His directives about these issues. Through His Prophets, He gave mankind His Shari‘ah, in which, besides other decrees, He divinely ordained the punishments of certain grave crimes concerning life, wealth, honour and the collective system of a society.
These major crimes are1:
1. Muharabah and Spreading Disorder
2. Murder and Injury
3. Theft
4. Fornication
5. Qadhf (accusing someone of Fornication)
It should remain in consideration at the outset that these punishments can only be administered in an Islamic State under a properly instituted government. The reason for this condition is that the surahs in which these punishments are mentioned were revealed in Madinah where an Islamic state had already been established under the rule of the Prophet (sws). Consequently, a group or person who is not at the helm of affairs of a country has no right to administer these punishments. In the ‘urf (usage) of the Qur’an, the words ‘ فاجلدوا’ (fajlidu: flog [the criminal]) and ‘فاقطعوا’(faqta‘u: amputate [the hands of the criminal]) of these verses are addressed to the rulers of the Muslims; no one else can be regarded as their addressees. Abu Bakr Jassas writes in his Ahkamu’l-Qur’an:
وقد علم من قرع سمعه هذا الخطاب من أهل العلم ان المخاطبين بذلك هم الائمة دون عامة الناس فكان تقديره : فليقطع الائمة والحكام ايديهما وليجلدهما الائمة و الحكام
Any learned person who comes across these words, immediately understands that the rulers of an Islamic State are its addressees and not the common Muslims. Consequently, the implied words, for example, are: ‘the rulers should amputate their hands’, and ‘the rulers should flog them’.2
Similarly, it should also remain clear that these punishments should be administered not only to the Muslim citizens of an Islamic State, but also to its non-Muslim ones. The way the Qur’an has mentioned them leaves no room for differentiating between the two. Consequently, it is a known historical fact that the Prophet (sws) as well as the Rightly Guided Caliphs gave these punishments to non-Muslims as well. This is part of the public law of Islam, and no one can be shown any lenience in this regard.
These are the crimes whose punishments have been divinely ordained by the Shari‘ah. The punishments of the lesser forms of the crimes mentioned above, and the punishments of other crimes have been left by the Shari‘ah to the state with one exception: the death sentence, according to theQur’an, can only be given to a person who has killed someone or to someone who is guilty of spreading disorder in the society. The Almighty has made it amply clear that except for these two offences neither a person nor an Islamic government has the right to kill a person3 . The Qur’an says:
مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (32:5)
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 all of mankind. (5:32)
In the following paragraphs, I will explain the verses of the Qur’an that mention these punishments of the Shari‘ah.
1. Muharabah and Spreading Disorder
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 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 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 Muharabah (waging war against Allah and His Prophet (sws)) and spreading disorder in the land is when an individual or a group of individuals take the law into their own hands and openly challenge the system of justice which in accordance with the Shari‘ah is established in a piece of land. Consequently, under an Islamic 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, sexually disgrace women because of their wealth and social status, 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 Muharabah, and spreading such disorder in the society should be severely dealt with.
The following four punishments are specifically prescribed for criminals mentioned in the verses quoted above:
(1) Taqtil (تقتيل(
(2) Taslib تصليب : (Crucifixion)
(3) Amputating limbs from opposite sides
(4) Nafi : نفى(Exile)
Their explanation follows:
) Taqtil تقتيل(
The words ‘ان يقتّلوا’ (an yuqattalu) 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 Taqtil has been used instead of Qatl. In Arabic, Taqtil 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 Shari‘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 Taqtil. The Prophet (sws) in his own times, in accordance with this directive, administered this punishment to certain criminals guilty of adultery.
Taslib(تصليب : Crucifixion)
This word, like Taqtil, is also from the ‘تفعيل’ (taf‘il) 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 Taslib 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 :نفى(Exile)
It is obvious that this punishment of exile is the least intense punishment in this category. 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’an 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 ‘او’(aw: or), it is evident that the Qur’an 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 Nafi is placed with the two very severe punishments of Taqtil and Taslib 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 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 Surah Nur) was abrogated for married as well as unmarried 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’an as well as the norms of sense and reason.
In the words of my mentor Imam Amin Ahsan Islahi:
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.4
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 the directive about women who habitually commit fornication about which He had promised to reveal. 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~adith, the reference ‘جعل الله لهن ’ (ja‘alallahu lahunna) is to those women about whom the following temporary directive had been given in Surah Nisa:
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 witnesses5 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 ‘التى ياتين الفاحشة ’(allati ya’tina al-fahishah: 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 mention6. 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 Surah Nur because of committing fornication and exiled according to verse 33 of Surah Ma’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 Taqtil of the same verse of Surah Ma’idah.
The words ‘unsophisticated’ or ‘unmarried’ and ‘widower’ or ‘married’ of the H~adith 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. A^hadith 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, in practice, only the death sentence is carried out.
The plurals ‘يسعون’ (yas‘awna: they strive) and ‘يحاربون’ (yuharibuna: 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 ‘ذالك لهم خزى فى الدنيا ’ (dhalika lahum khizyun fi’l-dunya: 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 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 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.7
The words ‘إلا الذين تابوا من قبل ان تقدروا عليهم ’ (illalladhina tabu min qabli ‘an taqdiru ‘alayhim: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 Muharabah and spreading disorder. To quote Imam Amin Ahsan Islahi:
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 ‘فاعلموا ’ (fa‘lamu: 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?8
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 to.
2. Murder and Injury
a. Intentional
يَاأَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمْ الْقِصَاصُ فِي الْقَتْلَى الْحُرُّ بِالْحُرِّ وَالْعَبْدُ بِالْعَبْدِ وَالْأُنثَى بِالْأُنثَى فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ ذَلِكَ تَخْفِيفٌ مِنْ رَبِّكُمْ وَرَحْمَةٌ فَمَنْ اعْتَدَى بَعْدَ ذَلِكَ فَلَهُ عَذَابٌ أَلِيمٌ وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَاأُوْلِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ (2 :178-9)
O you who believe! decreed for you is the Qisas 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, then this slave should be killed in his place and if the murderer is 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‘ruf and Diyat 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 Qisas O men of insight that you may follow the limits set by Allah. (2:178-9)
Just as this directive of Qisas has been given to us, it was given to the previous nations of the Prophets. While referring to the Old Testament, the Qur’an says:
وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنفَ بِالْأَنفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ فَمَنْ تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَهُ وَمَنْ لَمْ يَحْكُمْ بِمَا أَنزَلَ اللَّهُ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ (45:5)
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)
It is evident from this verse that this directive of Qisas, not only pertains to murder but also relates to wounding or injuring someone. According to the Qur’an, all these crimes are heinous but as far as murder is concerned, the Qur’an says that murdering a person is like murdering the whole of mankind:
مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (32:5)
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 killed all of mankind. (5:32)
Furthermore, the Qur’an says that a person who commits such a grave offence, particularly against a Muslim, shall face the eternal punishment of Hell:
وَمَنْ يَقْتُلْ مُؤْمِنًا مُتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللَّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا (93:4)
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. 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 Imam Amin Ahsan Islahi:
Firstly, every occurrence of murder should create a tumult and commotion in the nation. Until and unless Qisas 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 slain, but the lives of all 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 just one life has been taken – rather all the lives have been taken.
Thirdly, if a person finds 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, or 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 own self, 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 Qisas is like giving a life to the slain person because, according to the Qur’an, there is life in Qisas.9
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 systems of law. It not only leaves the criminal’s fate to 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 of such crimes. Writes thus Imam Amin Ahsan Islahi:
In matters of Qisas, 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 that moment, they do a big favour to the murderer and his family, which produces many useful results.10
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 frenzy of revenge or out of prejudice for 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 or in cases of injury, when there is a strong chance that Qisas 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’an says:
وَمَنْ قُتِلَ مَظْلُومًا فَقَدْ جَعَلْنَا لِوَلِيِّهِ سُلْطَانًا فَلَا يُسْرِفْ فِي الْقَتْلِ إِنَّهُ كَانَ مَنصُورًا (33:17)
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.
The law of Qisas which is mentioned in Surahs Baqarah and Ma’idah is based on the following four clauses:
Firstly, Qisas11 is an obligation imposed by the Almighty on an Islamic State. It guarantees survival to a society and is, in fact, a Divine Law which can only be breached 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 Qisas. Hence, if the murderer is a slave, only that particular slave should be executed and if the murderer is a free man, only that particular free man should be executed. A person’s social status should never create an exception to 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 they can forgive the criminal and accept Diyat from him. The latter case, according to the Qur’an is a favour and rebate by the Almighty to the criminal. Consequently, their forgiveness shall become an atonement (kaffarah) for the criminal 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 Diyat, then this should be given to them with goodness and goodwill. In the words of Imam Amin Ahsan Islahi:
The directive of paying Diyat with goodness has been given because in that period in Arabia Diyat was generally not given in the form of cash; it was paid in kind or in the form of animals. Therefore, if the payers of Diyat 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 Diyat as far as the agreed quantity and weight is concerned, disregarding their quality and nature. This would amount to ignoring the favour done by the aggrieved party by forgiving the murderer. Someone whose life had been left at the mercy of a person by the Shari‘ah had been forgiven by him and had agreed to accept some wealth instead. This favour should be answered by a favour only, ie, the payment of Diyat should be 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.12
The basic objective of this law, as is mentioned by the Qur’an, is to protect life. Imam Amin Ahsan Islahi explains this in the following way:
If a murderer is executed because of his crime, it apparently seems as if a second life has been taken, but a little deliberation shows that this punishment is actually a guarantee of the life of the whole society. If this punishment is not carried out, the mental disorder in which a person commits this crime is actually transmitted to the society. The extent of various diseases differ: diseases which result in such heinous crimes as murder, robbery, theft or fornication are like those diseases in which it is necessary to amputate some limb of the body to save the whole body. Amputating a limb may seem a callous act, yet a doctor has to be callous. If by showing sympathy to this limb he does not force himself to this cruelty, he shall have to bear with the patients death.
A society in its collective capacity is like a body. At times, its limbs get infected to the extent that the only option is to cut them off from the body through an operation. If sympathy is shown by considering it to be the limb of a patient, there is all the chance that this would fatally affect the whole body.13
b. Unintentional
وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِنْ اللَّهِ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا (4 :92-3)
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 Diyat to the heirs of the victim except if they forgive him. If the victim is 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, Diyat 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. (4:92-3)
In Islamic law, according to the Qur’an, the punishment of unintentionally murdering or wounding in some cases is Diyat and Atonement (Kaffarah), and in some cases only Atonement (Kaffarah) 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.
This law is based on three clauses:
Firstly, if the murdered person is a Muslim citizen of an Islamic State or if he is not a Muslim but belongs to a nation with which a treaty has been concluded, it is necessary for the murderer who has not been forgiven to pay Diyat to atone for his sin and repent before the Almighty and 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 Diyat; in this case, it is enough that he only free 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 murder14 is concerned. But it is obvious that the directive of unintentionally injuring someone should also be no different. Hence, in this case also Diyat shall have to be paid and fasts shall have to be kept considering the amount of Diyat paid. For example, if the Diyat of a certain type of wound is fixed at one-third of the Diyat of murder, twenty fasts as atonement shall also have to be kept.
An important issue in these directives of intentional and unintentional murder is the amount of Diyat to be given and its methodology. In verse 92 of Surah Nisa quoted above, the words ‘دية مسلمة الى اهله ’ (diyatun mussalamatun ila ahlihi) are used. The word Diyat in these verses occurs as a common noun, about which we all know that its meaning is determined by its linguistic and customary usage, and by the context in which it is used. Nothing other than these are required. Therefore, in this verse Diyat means something which in the general custom and usage is called ‘Diyat’. And the words ‘ دية مسلمة الى اهله’ (diyatun mussalamatun ila ahlihi) simply mean that the family of the murdered person should be given what the general custom and linguistic usage term as ‘Diyat’.
In verse 178 of Surah Baqarah, where the directive of Diyat in case of intentional murder has been given, the word ‘معروف’ (ma‘ruf: custom) is used to qualify it:
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ (178:2)
Then for whom there has been some remission from his brother, [the remission] should be followed according to the Ma‘ruf and Diyat should be paid with goodness. (2:178)
It is evident from the above mentioned verses of Surah Nisa and Surah Baqarah that in case of intentional as well as un-intentional murder, the Qur’an wants Diyat to be paid according to the custom and tradition of the society. It has not prescribed any specific amount for Diyat nor has it directed the Muslims to discriminate in this matter between a man or a woman, a slave or a free man and a Muslim or a non-Muslim15. The Prophet (sws) and his Rightly Guided Caliphs decided all the cases of Diyat according to the customs and traditions of the Arabian society during their own times. The quantities of Diyat which have been mentioned in our books of H~adith andFiqh 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 Diyat in the form of camels nor is it a very wise step to fix the amount of Diyat on this basis. The nature of ‘عاقلة’ (aqilah: community/tribe) has completely changed and various forms of unintentional murder have come into existence which could never have been imagined before. We know that the guidance provided by the Qur’an is for all times and for every society. Hence, in this regard it has directed us to follow the ‘معروف’ (ma‘ruf: custom) which may change with time. By this Qur’anic directive, every society is to obey its customs, and since in our own society no law about Diyat exists previously, 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‘ruf. Also, it is obvious that those in authority in any society can revise and re-structure the laws which are based on the ma‘ruf, keeping in view the collective good of the masses.