PART III PENAL LAWS
(Uqubat or Punishments)
Chapter IX - Criminal Intentional Injury
The third division o the Islamic Law is ‘uqubat or punishments for intentional injury to the following:
- a)Human body, such as murder or causing wound.
- b)Human property, by usurpation, theft or damage.
- c)Human honour, such as by slander.
- d)Breach of public peace, such as rioting, highway robbery, etc.
- e)Offences against religion. Such as non-attendance at prayers, or non-paying zakat (legal alms), etc.
- f)Offences against decency, such as adultery, use of intoxicants, and gambling.
- g)Offences against the established government, which means rebellion.
The extent of punishment for the above-mentioned crimes extends from administering a warning, or the infliction of a fine, or bodily chastisement by means of stripes, to imprisonment, transportation, cutting off of hands, feet, and lastly putting to death.
Guilt is proved when a man acts intentionally to cause injury to another man. If a man is hurt, but the doer never intends to injure him, he is not held responsible for the injury. For example, when a man keeps a dog in his house and a stranger without warning or permission enters it, and is bitten by the dog, its owner is not responsible for the consequences. But when a man leaves his horse on the public road and the horse kicks a passer-by and hurts him, the owner is punished for the same. In the case of murder which is called qisas (in Arabic) or retaliation, though the murderer must be put to death, the Islamic Law does not insist on such punishment. On the other hand, it recommends the relatives of the murdered to accept compensation.
Punishment by way of qisas, or the like of a similar injury, is not permitted in doubtful cases. For example, when a man causes fracture in the bone of another, he cannot be punished by inflicting on him the same kind of injury. Thus, the doctrine of qisas is limited to certain specified cases. The Islamic Law, however, punishes, in milder manner, the guilty in cases of such nature by administering admonition or scorn, by imposing imprisonment, whipping and finally by taking the life of the criminal. It depends upon the character of the offence and the circumstances, under which the offence has been committed, the intention of the party and his age. All these are left to the consideration of the qadi (magistrate whose discretion of judgment is depended upon).
His guide in these matters is the Koran, the hadith.(Traditions of the Prophet) and the legal codes as arranged by eminent scholars learned in the law. Levity may be shown in the infliction of punishment, but once it is pronounced there can be no levity in regard to its being carried out. For instance, the magistrate may show leniency in ordering twenty stripes, instead of fifty, but the twenty ordered stripes must be real hard blows. As the Koran orders: “And let not pity detain you in the matter of ! God’s commandments.”
Crime Of Murder
A murderer must either be put to death by order of the magistrate or if the relations of the murdered man or woman are willing in certain cases to forgive the murderer and forego their claim, the guilty party may be made to pay compensations as ordered by the court with mutual consent of the relatives of the murdered man and the murdered. This is prescribed in the Koran, verses 178 and 179, Chapter 2, which may be rendered as follows:
“Retaliation is prescribed for you in the matter of the slain, the free for the free, and the slave for the slave and the female for the female, but if any remission is made to anyone by his (injured) brother, then prosecution (for the bloodwit) should be made according to usage, and payment should be made to him in a good manner; this (ordinance) is an alleviation from your Lord and a mercy” (II – 178).
“And there is life for you in (the law of retaliation, O men of understanding, that you may guard yourselves.” The meaning is that preservation of life is dependent upon making the law of retaliation work; generally speaking, life cannot be safe unless those who are guilty of homicide are liable to be sentenced to capital punishment.
Qatl (in Arabic), i.e. homicide
is classified into the following:
- Intentional murder : in this case, the offender is to be punished both in this life and in the next.
“Whosoever kills a believer intentionally, his punishment is hell.”
- Analogous cases of murder, i.e. cases when the intention to kill may be inferred. For example, when a man strikes another with a stick, but he may or may not have intended the strike to result in death. If it causes the death of the other, the punishment is that if the intention to kill him is not brought home, then he is fined heavily, but not put to death.
- Murder by mistake : Murder may be committed under a mistake of fact or intention. The former occurs when a man strikes something else but hits the slain man; the latter, when a man has no intention to kill, but his act accidentally causes the death of a person. The following verse bears on this point. It may be interpreted as follows:
“And it does not behave a believer to kill a believer except by mistake, and whoever kills a believer by mistake he should free a believing captive (Or war prisoner) and blood-money should be paid to his people unless they remit it as alms. But if he cannot find a captive to emancipate, he should fast for two months successively, a penance from God, and God is Knowing and Wise” (II-92).
- Murder indirectly causing death : For example, if a man digs a well outside his compound, on a public road, or where there is possibility of people having to cross, and a passer-by falls in it and dies, the man is held liable and made to pay a fine. But if this act per se is not illegal, the dead man having taken the risk, there is no liability for reparation to be made for his death.
According to Islamic Law, the man who kills is alone held responsible for his guilt. It excludes his relatives from retaliation by the relatives of the murdered man, as was the custom among the pre-Islamic Arabs.