A.Q.

Oudah Shaheed
 of Islam and
the Modern Law. It
essentially consists in an
enquiry into the respective
principles and theories
underlying the Islamic
Laws and other Laws and
aims at identifying the
points of difference and
similarity between them.
 Vol. 3

Abdul Qadir ‘Oudah

Translated by
S. Zakir Aiiaz

INTERNATIONAL ISLAMIC
PUBLISHERS
 CRIMINAL LAW OF ISLAM
VOL. 3

CONTENTS

CHAPTER VII

THE GENERAL NATURE AND PRINCIPLES

OF -PUNISHMENTS
%

438. Punishment and Purpose of Punishment 1

439. The Basic Principles of Punishment 2
440. The Concept of Punishment in Islamic Shariah
Classification of Crimes 3
First Category Crimes with an impact on social life
First Kind
Second Kind
Second Category: Other Crimes
The Reason for Treating the First Category of, Crimes
as Having Bearing on the society
The Reason for Differentiation between Hudood,
offences and Those Involving Qisas and Diyat
441. The Concept of Punishment in Customary Laws 15
442. The Shariah versus the Current Law 20
443. Conditions of Punishment
CHAPTER VIII

KINDS OF PUNISHEMENT
444. Punishments May Be Classified into Four Kinds
on the Basis of Their Correlation'
26
in
 (1) The Primary Punishments
(2) Substitutionary Punishments B: PUNISHMENT OF QAZAF
(3) Subsidiary Punishment 4£5. Lashes and Disqualification fromTestification 40
(4) Complementary Punishments 456. Punishment of Qazaf as Provided for in the
445. Punishments Are Classified into the Following Law in Force 41
Kinds in Relation to Judicial Power as to the
Determination of the Quantum thereof 27 C: PUNISHMENT OF DRINKING WINE
' (1) Punishment with a Single Limit
(2) Punishments with Two Limits 457. The Shariah Has Prescribed Eighty Lashes for
Drinking wine. This is a Punishment with a Single
446. Punishment Are Classified into the Following Kinds
Limit and the Court is not Competent to Reduce or
in Accordance with Obligatory injunction 27
Enhance or Change it. 43
(1) Determined Punishment
458. The Medical and Social Aspect of Drinking Wine 44
(2) Non Determined Punishment
459. The World and Use of Liquor 45
447. Punishments Are Classified into the Following
Kinds in Relation to the Object thereof: 28
D: PUNISHMENT OF LARCENY
448. Punishments Are Classified into the Following
Kinds in Accordance with Offences 28 460. Amputation of Hand 46
461. Punishment of Larceny as provided for in the Laws
in Force 48
SECTION I 462 Wrong Objections 48

449. THE HUDOOD PUNISHMENTS

E: PUNISHMENT OF BLOODSHED
A: PUNISHMENTS OF ADULTERY 463. Punishmentof Blood Guilty 5q
464. Killing 5]
450. Punishment for Adulterer 30
465. Killing and Hanging 5j
451. The Punishment of Whipping and Flogging 30
466. Amputation 53
Punishment of whipping according to the Laws in Force
467. Banishment 54
Punishment of Adultery as Provided for in Laws in
Force
F: PUNISHMENT OF APOSTASY
452. Punishment of Banishment 33
AND REBELLION
453. Stoning to Death 35
468. Punishment of Apostasy
454. A Note on the Punishments Prescribed for Adultery 38
(1) Death Penalty
Confiscation of Property
469. Punishment of Rebellion
IV
 478. Difference between Ta'zeers and Other Punishments 84
SECTION II 479. The Kinds^of Ta'zeers or Penal Punishments 85
480. Capital Punishment 85
PUNISHMENT PRESCRIBED FOR QISAS
481. Punishment of Lashes 88
AND DIYAT CRIMES
The Maximum Limit of the Punishment of Flogging
470. Various Punishments 482. Punishment of Imprisonment 93
471. Qisas 58 483. Limited Imprisonment 93
472. Diyat or Price of Blood 63 484. Unlimited Imprisonment 95
What is Subject to Diyat 485. Banishment 97
Imposition of Diyat in case of Offending Child or 486. Hanging 99
Lunatic 99
487. Admonition, Exhortation etc.
The Reason for the Family Bearing the Burden of 100
488. Boycott.
Diyat
489. Censure 101
473. Expiation or Penance (Kaffarah) 75
490. Warning * J r’ » ” 101
Who is Liable to Penance?
491. Public Exposure 102
Fasting
492. Other Punishments 102
474. Disinheritance 77
493. Fine 103
475. Exclusion from will 79
SECTION V
SECTION III
494. The Shariah Punishments and Statistics Relating
PUNITORY EXPIATIONS Thereto 107
495. Shariah Punishments in the Light of Experience 1 10
476. Expiations (Kaffarah) Is the Punishment Prescribed 81
496. The Shariah Punishment and Human Nature 1 11
First, Setting a Slave Free
Second, Feeding the Poor SECTION VI
Third, Clothing the Poor
Fourth, Fasting PUNISHMENT OF EGYPTIAN LAW AND
THE AMBIT OF THEIR IMPACT
SECTION IV
497. The Kinds of Punishments 113
PENAL PUNISHMENTS OR TA‘ZEERS 498. Power of the court Regarding Application of above
Punishments . «-
477. The Nature of Ta'zeer 83

Vi
 I

499. Reason for Conferring on Court Such Power 116

500. Reason for Court’s Failure in Application of 523. Punishment of an Insane Person 1 ^3
Theory of Parliament 524. Carrying out of Punishment in Public 163
117
501. Failure of Legal Experts in Finding Solution to
Problem of Punishment and Unmistakable CHAPTER XI
Manifestations Thereof 119
1. Suspension of Basic Punishments
RECOMMISSION OF CRIME
2. Inclination Towards Commutation 525. Nature of Re-commission of Crime 165
502. The Reason for Commutation and Suspension of 526. The Shariah’s Position as to the Re-commission of
Punishment 125 Offences 167
503. Are the Punishments of Penal code Successful in
the War against Crime? 126 CHAPTER XII
504. Death Penalty 126
505. Punishments of Imprisonment and Their Drawback
INVALIDATION OF PUNISHMENT
128
(1) Burden on Public Exchequerand Reduction in 527. Causes of Invalidation of Punishment 169
Production 528. Death of Offender 169
(2) Inmates’ Corruption 529. Extinction of the Object of Qisas 171
(3) Lack of Peradventure Factor 530. Offender’s Repentance 172
(4) Loss of Sense of Responsibility 531. Reconciliation 173
(5) Increase in the Power of Criminals 532. Remission 174
(6) Decline of Standard of Health and Morality 533. Hudood Offences and Remission 174
(7) Rise in the Incidence of Crime 534. Remission in Cases of Qisas and Diyat
f 174
506. How to Get Rid of the Drawbacks of the Prevailing 535. Forgiving of Ta ‘zeer Offences
176
Systems 135 536. Inheritance of Qisas
177
537. Lapse of Time
CHAPTER IX 178
First Theory
The Second Theory
MULTIPLICITY OF PUNISHMENTS

507. Multiplicity of Punishments and Multiplicity of Crimes

Difference between Multiplicity of Punishments and
Recommitment of Crime 139
508. Laws in Force and Multiplicity 140

• ft •
VIII
 1 • Combination
2. The Second Method is Known
as ‘Supersession
3. The Third Method Involves Blending
509. The Egyptian Punitive Law
510. The Islamic Shariah and Multiplicity of
Punishments
The Concept of Interpenetration
Raison D’etre of This Principle
Second Principle
Theory of Suppression
511. The Shariah and the Modem Law Compared

CHAPTER X
EXECUTION OF PUNISHMENTS
512. Right of the Execution of Punishment CRIMINAL LAW OF ISLAM
513. Execution of Punishment in the Case of Hudood
Crimes VOL. 3
514. Execution of Ta'zeers
515. Execution of Qisas Punishment
516. The Mode of Qisas for Capital Crime
517. Weapon To Be Used for Qisas
518. Is the Use of a Sharper Weapon than Sword
is Allowed?
519. Can Government in Power Today
Reserve for Itself the Function of
Performing Qisas? .
Execution of Punishment in Case of Mult.pl.city
520.
Application of Punishment to Ailing, Aging an
521.
Insane Persons
Punishment to Pregnant woman
522. Application of
 CHAPTER VII
THE GENERAL NATURE AND PRINCIPLES
OF PUNISHMENTS
Numbers 436 and 437 have been omitted due to re-arrangement of
numbers. No clause has been missed.
438. Punishment and Purpose of Punishment
II

Punishment is the requital for the disobedience of the law­

giver (Allah and the Prophet S.A.W.) laid down in the collective
interest. The object of prescribing punishment for the violation
of the Law Givers’ edict is to reform the society, deliver the
individuals from evils, save them from ignorance, lead them out
of a life of aberration, prevent them from committing sins, and
induce them to obey Allah and His messenger. Allah did not
send His prophets and messengers to establish their ascendancy
over the people and become their rulers. They were rather entrusted
with the duty of conveying and disseminating the divine message
and serve as mercy personified for mankind. Says Allah:
“Thou art not at all a warder over them.” (88:22)
“Thou (O Muhammad) hast not been sent as a compiler
over them.” (50:45)
“We sent thee not save as a mercy for the peoples.”
(21:107)
In short, Allah revealed His Shariah and sent down His
Messenger in order to guide mankind and preach them the revealed
truth and wisdom. Besides, Allah has prescribed punishments for
the infringement of His commands as well as those of His
messenger, so that people may do things benefiting them and
shun those which are harmful. Hence the puipose of punishment
to protect the individuals, the community and the social system be wrong to adopt some particular forms of punishment to the
as a whole. Allah has issued His injunctions for the sake of our exclusion of others. _ 12
3 •j
welfare only, for if the whole mankind inhabiting the globe disobey 4. Revenge is not the purpose of an offender’s
Him, He has nothing to lose; nor has He anything to gain if the chastisement. The purpose is to correct or reform him. And all
whole mankind obeys Him. kinds of punishment, according to the jurists, “are given with a
439. The Basic Principles of Punishment view to reformation and as a warning and chastisement and they
Inasmuch as punishment aims at reformation, safeguard of vary with the nature of crimes.”
collective security and furtherance of social welfare, it must, of Punishments have been enjoined by Allah out of mercy
necessity, be based on such principles as serve the purpose thereof. and benevolence. It follows that the person awarding punishment
The principles by which this objective can be achieved are as to an offender ought to be merciful and benevolent in the same
under: way as a father is to his son in chastising him or a physician is
1. Punishment is to be such as makes the people desist in the treatment of his patient. Besides, chastisement varies with
from the commitment of crimes, serves as a chastisement of the the respective status of the offenders. Thus in passing sentences
offender and a warning to others. The jurists, therefore, have this respectable or well-to-do people are not to be treated at par with
to say about punishments: the vulgar or the commoners. The Holy Prophet enjoins: ‘Condone
“The Shariat punishments actually constitute a curb on the the mistakes of people enjoying social position.’ Again,
commitment of offence and make the offender desist from chastisement is designed to prevent the people from committing
committing them. In other words, once acquainted with the legal crimes. But the people are temperamentally different. There are
position of punishment, one would refrain from committing an some people for whom a rebuke will be enough, while there are
offence and from committing the same offence again one may others who need a slap to be set right and others who cannot be
have been guilty of before.” corrected without getting a nice hiding or being imprisoned .
2. In the delimitation of punishment collective
requirement and public interest has been taken into account. Thus 440. The Concept of Punishment in Islamic Shariah
if the public interest so demands, punishment will be awarded The principles on which punishment is based in is Shariah
with increased severity, but if reduction in punishment is in the stem from two fundamental rules. The one which is in conflict
public interest, it will accordingly be diminished. Hence punishment with crime in total disregard of the offender’s person, and the
should neither be more or less than collective requirement. It other taking into account the offender while being at odds with
should be commensurate with the demands of public interest. the crime at the same time. The first set of principles are primarily
3. Should the collective interest demands that the concerned with the negation of crime to the exclusion of the
offender be exterminated or imprisoned in order to ensure the offender and is designed to safeguard the society against incidence
community’s security against his evil deeds, it will be imperative of crime while the second set relates to the personality of the
to award him capital punishment, a life-imprisonment till his offender and aim at his correction.
death or till he dies, repents or is reformed. It will, therefore, Doubtless the two sets of principles seem to contradict
each other, for if the society is to be protected against crime, the
1. Shark Fath-ul-Qadeer, Vol.4, P. 112.
2. Al Ahkamus Sultania, P. 206; Sharh Fath-ul-Qadeer, Vol. 4, P.212, 215; rateeraM//- 1. Ibid.
Hukkam, Vol.2, P.206; ‘Al Iqna, Vol.4, P.268. 2. * Al Ahkamus Sultania PP. 205. 206
3. Al Iqna, Vol. 4, PP 271-272; Hashia ibn Aabldeen, Vol.5, P.480 and Vol.3, PP.259-60: 3. Shark Fath-ul-Qadeer, Vol. 4, P.212.
Ikhtlarat ibn Taimiyah, P.I78.

2 3
 person of the criminal will have to be overlooked, whereas if the the society. These are further sub-divided into two kinds, whereof
each is subject to a distinct injunction. ’’’I*' "
offender is to be paid due regard to social aspect of the matter
will have to be ignored. First Kind
But the Islamic Shariah has not only founded its punitive Crimes affecting social existence comprise offences liable
system on these seemingly contradictory principles but has also to hudood (punishments ordained by Allah). They are Seven in
taken care to remove the apparent discrepancy between them in number:
order to safeguard the community against crime in all circumstances.
(1) Adultery or Fornication
Nor is this all. In most cases it makes allowance for the offender’s
(2) Imputation of Adultery
personality as well. For the Shariah has adopted the principles of
collective security in an absolute sense and has kept it in view (3) Larceny
in laying down all the punishments. Accordingly every punishment (4) Drinking of Wine
is a sufficient chastisement of the offender in proportion as it (5) Shedding of Blood
prevents him from committing the crime again and serves as a (6) Apostasy and
warning to others so that they may refrain from committing it. (7) Rebellion. {
But if the chastisement of the criminal does not serve the purpose Punishments for the seven foregoing crimes have been
of making the society immune from his baneful influence or the unequivocally prescribed by the Shariah and the court is not
considerations of collective security demand that he should be empowered to make any changes in them. Hence whoever is
eliminated, he shall, of necessity, be exterminated or imprisoned guilty of any one of these crimes shall be punished with the
for life. At any rate, the Shariah disregards the offender’s personality corresponding ‘had’ regardless of the victim’s (aggrieved party’s)
in the case of crimes that undermine social life, inasmuch as it opinion and the personality of the offender. The judge or the
is absolutely essential to do for the protection of the community. person in authority shall have no power to forgive the crime or
However, crimes of this sort are naturally limited. In the case of remit the punishment thereof.
the other crimes, the Shariah pays due regard to the person of In other words, as to hudood offences the Shariah focuses
the criminal. It enjoins upon the court or the person in authority its attention on safeguarding the society against crime in total
that the criminal’s personality, moral character and circumstances disregard of the offender’s person. Accordingly the Shariah is
are to be necessarily kept in view while passing a sentence upon strict about these punishments which it prescribes rigidly and
him. . - allows no powers to the person in authority or the court in respect
thereof.
CLASSIFICATION OF CRIMES The reason for laying down inexorable punishments for
The result of blending the two divergent sets of principles such offences is that they are immensely grave and dangerous
is that every principle requires a separate sphere of its applicability and any laxity in dealing with them would lead to decadence,
without being extensible to any extraneous sphere and the disorder and discontent in the society. Any social set-up falling
distinguishing marks of every sphere is identified for the right a prey to these evils will disintegrate and be disgraced. The object
application of every principle. Hence the Shariah divides crimes of the Shariah by adopting a rigorous attitude towards the above
into two categories: offences is to ensure that the moral fabric of the society, the
social order and peace and collective security is not jeopardized.
First Category: Crimes with an impact on social life. In other words, prescribing harsh punishment for the hudood
Under this category fall all those crimes that badly affect

5
offences public good has been kept above the individual interest, guardian is competent to pardon him. In this category of crimes,
and this is not some thing surprising. Just the contrary would the Shariah authorizes the victim or his lawful guardian to forgive
have been queer indeed. the offender because although the crime affects the community
but it has greater impact on the victim. In fact it affects the
Second Kind
community only through the victim. Hence if the victim or his
The other kind of crimes affecting social life consists of lawful guardian forgives the offender the legal requirement to
offences involving qisas (retaliation) and diyat (blood money or disregard the latter’s personality and to inflict punishment on
compensatory mulct). Such offences constitute cases of homicide him ceases to have any validity, for the danger posed by the
and infliction of wound whether wilful or unintentional. They offence is no longer there and the offence is rendered harm-less
are as under: to the community. As a matter of fact the victim and his lawful
(1) Intentional or felonious homicide. guardian forgive the offender when they either mean to condone
(2) Suspected wilful homicide. him or to gain something material in the form of blood money
(3) Unintentional homicide. or compensation and the Shariah gives their right to do so, the
(4) Wounding intentionally. reason being that condemnation means doing away with the feuds
(5) Wounding unintentionally. and putting an end to animosities. Preference of material gains to
The Shariah prescribes two punishments for these offences: corporal punishment also aims at condemnation and assuaging
Qisas or retaliation and diyat or blood money. If committed the virulence of animosity. There should be no doubt whatsoever
intentionally, the punishment will be Qisas and diyat and if that the victim or his lawful guardian should have the benefit of
committed unintentionally, the punishment will be only diyat. offence as far as possible inasmuch as it is he who bears the
The person in authority or the court does not have the power to brunt of the offence.
reduce or increase and make any other change in the punishment Second Category: Other Crimes
laid down. Thus whoever is guilty of any offence as specified This category comprises offences that do not fall under the
above will be awarded the prescribed punishment regardless of first category or rather consist of crimes whereto the Shariah
the offender’s personality and circumstances. applies unprescribed penalties. Hence they include all those offences
Although the power to forgive is not conferred by the Shariah for which 'tazeers or the penal punishments, are awarded. These
on the person in authority, yet the victim or his lawful heir/ may be further subdivided into the following offences:
guardian has been authorized to forgive. Hence if the latter pardons (a) Any crime which does not come under the category
a wilful offence, qisas stands annulled and diyat replaces it provided of hudood offences as well as those involving retaliation (qisas)
that it is pardoned in lieu of diyat But if such an offence is and blood price (diyat).
forgiven without any compensation then diyat, too, will become (b) Hudood offences for which sentence is not passed
void. The result of the nullification of qisas for a wilful offence
i.e. hudood offences not completely committed as well as those
and of diyat for an unintentional one, will be that the offender
in respect whereof the had stands invalidated.
may be awarded penal punishment taking into account the
c) The qisas and diyat offences for which no sentence
circumstances of the victim.
is passed and which are not liable to qisas or payment of blood
From what has been stated above we learn that the Shariah
price.
focuses its attention on the safeguard of the community to the
exclusion of the crime and the criminal, giving no importance to The crimes classified under second category are not as
the person of the criminal act except that the victim or his lawful dangerous as those falling under the first category and, therefore,

6
7
 the injunction relating to them is different from the one applicable
to the latter. In the case of first category, it is binding upon the The penal punishment, however, does not stand invalidated
court to pass prescribed sentences and it is not empowered to as the result of the pardoning of the offender by the victim because
change, increase or decrease the punishment. As regards the second every punishment involves two rights. The one belongs to the
category, on the contrary, powers have been conferred on the victim and the other to the community. If the victim foregoes his
court to choose any penalty out of the collection of punishments right, the community’s right to punish him is not prejudiced
as it may deem fit. It also has the power to assess the quantum whereas so is not the case with qisas and diyat punishments.
of punishment as well as the circumstances of the offender and These constitute the exclusive right of the victim and his lawful
the causes of offence. If the circumstances of the offender and guardian. Hence if they forgive the offender the punishment in
the causes of offence do not warrant any curtailment in punishment, such a case would become void and be replaced by 'tazeer' or
the court should award him the punishment he deserves. But in penal punishment, for tazeer is the right of the community. That
case if the circumstances of the offender require remitted is why the result of pardoning the tazeer punishments does not
punishment, he is to be awarded lighter punishment in keeping manifest itself in the same way as it does in the case of qisas and
with his personality, character and behaviour. In case if the diyat, the reason being that tazeer involves the right of both the
circumstances in which a crime is committed demand rigorous victim and the community. If the victim’s right becomes void the
punishment, but the circumstances of the offender require remission, right of the community remains intact, qisas and diyat on the
he is to be awarded moderate punishment which should neither contrary, are the exclusive right of the victim. If he foregoes
be too harsh nor too light. them, both the punishments will stand invalidated.
In this category the Shariah applies the principles constituting The Reason for Treating the First Category
the doctrine of punishment keeping in view both the individual of Crimes as Having Bearing on the Society.
and the collective aspects thereof. Thus if the circumstances of
It has already been stated that the Shariah treats with
the offender do not warrant any curtailment of punishment, the
harshness crimes falling under the first category and focuses its
Shariah takes into consideration the safeguard of the community
attention on the protection of the community against such crimes
in the choice of the quantum and the kind of punishment in total
in total disregard of the offender’s personality except that in the
disregard of any other aspect. But if the circumstances of the
case of qisas and diyat offences, the victim may forgive the
offender demand remitted punishment, they will be kept in view
offender. It has also been mentioned that both the kinds of offences
in determining of, the punishment to be awarded. However, should
placed in the first catetory badly affect the community. That is
the circumstances of the offence require rigorous punishment why the Shariah fixes its glance in their case on the safeguard
while those of the offender warrant leniency, then both collective of the community against the possible harm caused by the crime.
security and the personality of the offender will be given due Now the question arises as to how these crimes affect the
consideration in determining the quantity and quality of punishment. community. z
In this category of crimes the position of the victim cannot All the social structures of the world have been raised on
be relied upon and because of his pardoning the offender, the following foundations and will always stand upon them:
punishment will not become void. But pardoning of the offender
(1) The formation of family.
by him does provide a judicial criterion of mitigating punishment.
(2) The basis of individual proprietory right.
Thus if the victim is reconciled with the offender or forgives
him, the court will treat the reconciliation or forgiving as a (3) Social order and
mitigating circumstances in favour of the offender. (4) System of government.

8
 The existence of man and woman, their capacity to procreate, duties of individuals. Every society has a distinct collective system
the dependence of their offspring’s growth on their care and of its ownJEor example, the social system of Islam is based on
upbringing till they grow up, are matters that naturally require a Islamic principles, while the system of non-Islamic societies is
man to reserve for himself a particular woman and attribute to grounded in the principles of communism, socialism and capitalism.
himself the children borne by her. This mode of a human couple’s Again, the existence of society needs a system of government
living together calls for the formation of family and the very wideawake to its affairs, capable of solving its problems, pursuing
constitution of family is the basis of every social order; for a a sound policy to promote common good and a system that
community is another name for a collection of individuals. Every safeguards the social set-up and maintains internal peace and
social pattern of the world including the socialist pattern is grounded external security. However, forms of government vary with
in the institution of family. In other words, family is the basic countries. Some countriesjiave democratic system, while others
unit of any society. have monarchy or dictatorship. Whatever the case, a system of
The basic necessity of human life consists of food, clothing, government is indispensable to the subsistence of a society.
shelter and the complements needed to obtain these things. The There, then, are the four foundations on which social structure
basic human necessity as such requires that man should secure rests. If any one of them is affected the whole social edifice is
and own things that satisfy his want and when the situation is shaken and the pillars on which it stands falls to the ground.
ripe for the emergence of family system he should preserve all The Shariah, therefore, has spared no efforts to provide for
those essential things for his family. This natural requirement of the safeguards of these foundations on which the survival of the
human existence has brought forth the institution of individual or society is entirely dependent and any lapse in this regard would
private ownership just as the demand of human nature and basic result in the collapse of the social system.
needs have given rise to family system. These two institutions The Shariah has restricted dangerous transgression having
family and private ownership - are everlasting. Although socialism bearing on the above foundations of social system to the following
and communism champion collective ownership of property and offences: 'J|
prefer it to individual ownership, yet even the most ardent advocates Hudood offences and crimes involving qisas and diyat, i.e.
of the socialist and communist systems do not favour total abolition adults
of the above institutions; for individual ownership is the fundamental Hudood offences and crimes involving qisas and diyat, i.e. 1
demand of human nature. Every human being must, of necessity, adultery, calumniation, drinking wine, larceny, shedding of blood,
own the things that satisfy his basic needs i.e., food, clothing and apostasy, rebellion, homicide and intentional as well as unintentional
shelter. If the individual has no exclusive right to these things, infliction of wound. |
human life will be impossible. Adultery constitutes an outrage against family system. If it
Family system and the institution of private ownership require is permitted and no punishment is provided for it, everyone will
that the individual’s rights to life, freedom, proprietorship and be free to have relation with any woman and to impute to himself
security of the family is to be safeguarded. But the individual is or deny the parentage of any offspring at will. Such a state of
weak. His wants are countless and resources extremely limited. affairs will finally result in the domination of the weak by the
He is dependent on the cooperation of others. This state of affairs strong; descents will never be traceable and parents and children
gives rise to society. both will be put to shame. This would ultimately lead to the
The formation of a society calls for a social order. That disintegration of the family system.
determines the principles of social setup as well as the rights and
Larceny or theft cuts at the very roots of the institution of

10
 private ownership. If no punishment is awarded for it, every man
punishments designed to safeguard those who build the society
can freely share the food, wine, shelter and clothing of another
and provide peaceful atmosphere for the citizens.
man, so much so that the strong will ultimately be dominant and
Qazaf or calumniation constitutes an outrage against the
deprivation from the basic needs will be the lot of the weak. To
family system. In Shariah 'qazaf* means imputation of adultery.
justify theft would mean negation of private ownership and the
It is tantamount to leveling a false charge against the honour of
individuals would be helpless in the acquisition of the basic
someone. Such a charge is the expression of doubt about the
necessities of life. Thus an important pillar of social set-up would
integrity of family system. It is to impute parentage of a child
be founded and the society will be reduced to nought.
borne by the wife of a man to some male belonging to another
Apostasy is a violation of the social order, for Islam alone family. If the integrity of the family system is called into question
provides the warp and woof of every Islamic social set-up. The the fabric of social life will be enfeebled inasmuch as family
very meaning of apostasy is negation of Islam. It infringes the constitutes the basic unit of social system.
basic principles of Islam and calls into question their validity. As the result of drinking wine, a man’s consciousness is
No social system can subsist when its own members begin to benumbed. In such a state of mind the offender may commit
doubt its legitimacy; for such a sceptical attitude would finally theft, qazaf and adultery. Besides an intoxicated person may lose
result in the dissolution of the whole system. his belongings. Also, drinking is injurious to health and causes
Rebellion is an outrage against the political and administrative progenitive debility. As drinking of wine is an outrage against
setup of a country. It means disobedience of the rulers and revolt the society in every sense of the word and undermines the very
against an established government, or else, its purpose is to foundations of the social edifice, Islam imposes total prohibition
overthrow the government. If such a crime is not contained unrest on it.
will spread in the land and the society will fall a prey to strifes Bloodshed is one of the most dangerous offences. If it is
and civil war. It will split up into warring groups giving rise to committed for the purpose of stealing, it amounts to violation of
bloodshed and wholesale destruction. Breach of peace and chaos the right of private ownership. If such an offence results in murder
will finally wreck the social set-up tooth and nail. it is tantamount to transgression against the builders of the society.
The offences of homicide and infliction of wound are If it terrorizes the victim, it is a breach of collective peace and
transgression against the builders of society on the one hand and tranquillity. An outrage against the people’s life and breach of
against the government on the other. Now the social system is peace constitutes an outrage against social order and system of
responsible for life and property of individuals, while the government. Every social system is under the obligation to safeguard
government is under the obligation to safeguard the social order individuals’ lives, peace and security. This is absolutely essential
as well as maintain peace and tranquillity in the land. Hence any for the survival of the community. In the absence of such protection,
laxity in the prevention of such crimes would result in the the wharp and woof of the society is bound to disintegrate and
domination of the strong over the weak. The individuals would anarchy would inevitably ensue. The reason for this is that the
abandon fruitful activities and indulge in bloodshed and plunder. first pillar of the social edifice would collapse. Protection of the
The law-abiding citizens would be occupied in self-protection. individual’s life against transgression of every kind can only be
Such a state of affairs would lead to the disintegration of society ensured when necessary punishment is enforced for the deterrence
and anarchy. The Shariah does not want things to come to such of such transgressions.
a pass. Hence it prescribes if the crime is committed wilfully The offences we have been dealing with hitherto exercise
and diyat if committed unintentionally. These are deterrent direct impact on the society. The Shariah prescribes severe

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L
punishments to deter them and disregards the personality of the
offender in determining their quantum. However, to assert that and then spread over the whole community. This is true of all the
these crimes have direct bearing on the society, does not mean hudood offences since they are more harmful to the community
that other offences have no bearing thereon. In fact, all offences as a whole than to the individuals. As opposed to them the offences
make impact on the society in some way or the other. But all the of homicide and infliction of wound cause greater harm to the
offences do not directly affect the foundation of the society as individuals than to the community. These offences may as such
the ones discussed above and for which rigorous punishments be described as personal crimes, for by committing murder the
have been raid down in the Shariah. Other offences no doubt do killer wants to kill a particular person and not every person. If
affect social interests but they do not make any impact on the he cannot get hold of that particular person, he will not murder
foundations of social edifice. Even if they do affect those anyone else. On the contrary, if the offender is a thief, he will
foundations, they do not pose direct threat to them. In short, the be after goods wherever he can have it from. If he cannot get
Shariah has adopted a logical and realistic approach by overlooking from one person he will try to steal them from another. His main
the personality of the offender in the case of crimes with direct object is to get hold of goods which are possessed by all individuals.
bearing on the groundwork of social fabric. Besides, the approach Similarly the object of an adulterer is not any particular woman.
of the Shariah is realistic and logical in drawing a line of distinction Any woman will serve his purpose. If he finds it difficult to get
between these and other offences, for there is a difference between hold of one woman, he will seek to have another.
the two kinds of offences inasmuch as their effects are not identical. Inasmuch as the qisas and diyat offences affect the individuals
more than they do the community, the victim and his lawful
The Reason for Differentiation between Hudood guardians have been allowed the choice between qisas and diyat
Offences and Those Involving Qisas and Diyat if the crime is committed wilfully. Diyat actually is a compensation
The Shariah treats the hudood offences and those involving for the loss suffered by victim and his guardian. The victim,
qisas and diyat as crimes affecting the foundations of the society. moreover, has been authorized to forgive both diyat and qisas.
But notwithstanding such an approach, it allows the victim the
441. The Concept of Punishment in Customary Laws
choice to forego punishment in the latter while such a choice has
not been given in the case of hudood offences. The reason for The laws in operation till the end of the eighteenth century
this distinction is that the hudood offences are directly harmful viewed the criminal brutally and the grounds of punishment, fear,
to the society and that their baneful effect on the community as revenge and publicity were exaggerated. The punishments
a whole is greater than on the individuals. On the other hand the acknowledged by the law included burning alive, hanging,
offences involving qisas and diyat, though detrimental to the amputation of joints, pulling out of the ears, tearing of lips and
community, initially harm the individuals more than the community. tongue, marking the body with hot iron putting a chain round the
Thus larceny, bloodshed, calumniation, drinking wine, apostasy offender's neck, banishment and whipping. In most cases the
and rebellion intrinsically constitute a menace to the society as punishments were not commensurate with the offence. Not only
they imperil security and peace and are an outrage to the society were the punishments were horrible, but offender was sometimes
in a far greater degree than to the individuals. For instance if condemned to death for an ordinary offence. For instance, till the
theft is committed in the house of someone, he will be grieved end of the eighteenth century, under the English law the offenders
at loss of his possessions but not so much as he will be apprehensive were given death penalty for two hundred ordinary crimes and
of the likelihood of the rest of his possessions being stolen. Fear these crimes included stealing of more than a shilling. Under the
of larceny will first creep into the people of the neighbourhood French law, capital punishment was awarded for two hundred
and fifteen offences, most of which were ordinary ones.

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 Besides, in those days even the dead, the animal, stones in 1791. In the wake of this came J. Bentham, who propounded
and minerals were held accountable and liable to punishment the utilitarian doctrine. According to him the raison d'etre of
like living human beings. In the eyes of law whether man was punishment was collective utility, for its object is to protect the
alive or dead or whether the thing involved was an animal or society from crime. According to Bentham it is necessary that
inert physical matter was amenable to legal proceedings. As punishment should be adequate to prevent the offender from
warrantable a sentient and sensible living human being was subject committing the crimes as well as to warn the non-criminals.
to any penalty awarded by the court so was also a mentally Bentham was followed by Emanuel Kant who opined that the
handicapped or an apathetic idiot was subject thereto. Nor is this raison d'etre of punishment was justice. Some people have blended
all. Judicial punishment was regarded as warrantable even for the utilitarian doctrine of Bentham with Kant’s concept ofjustice.
animals who are not conscious of a criminal act and incapable of They hold that punishment should not be more than necessary
defending them-selves and for animals who are devoid of any and should not exceed the limits of justice.
sense of crime and the pain involved in the punishment. The distinguishing feature of the foregoing concepts of
The basis of punishment was revenge on the offender and punishment is that they all keep in view the crime regardless of
frightening of the non-criminal. This concept of revenge and fear the personality of the offender and take into account only the
gave rise to severe punishments. From this very concept also nature of the crime and its effects on the community. Hence they
stemmed the practice of disfiguring the offender’s body. It was offer no satisfactory solution to the problem of punishment.
also responsible for treating the dead, the animals and inanimate Next comes the scientific or the Italian view of punishment
things as liable to legal action, although the dead and the non­ which is based on the idea of the total disregard of the offender
living things are absolutely insensitive to any legal proceedings, and exclusive consideration of the offender’s personality. The
although they feel the form of punishment and the pain caused advocates of this view argue that punishment should be in keeping
by it. But the punishment awarded by the court cannot deter with the mental setup of the offender, his structure, historical
them from the act which prompts legal proceedings, because they background and the magnitude of the danger posed by his person.
can understand neither the proceedings nor cause of punishment A person who is criminal by nature should, according to this
awarded to them. However, by subjecting the dead, inanimate scientific view, be isolated from the society for ever or should be
things and animals to legal proceedings and awarding punishments executed, even if the crime committed by him is minor. Habituals
to them, the people could be frightened to a certain degree and also fall under this category. The person who has turned a criminal
the concept of revenge could be presented in a more effective fortuitously or under the compulsion of necessity, should be given
manner. light punishment and the man who commits an offence in the
At the end of the eighteenth century the philosophers and heat of passion should not be awarded any punishment at all.
the sociologists made an attempt to replace this basis of punishments This scientific approach, too, proved no solution to the
with a fresh one. Thus Roseau expounded social contract as the punitive problem, for it takes into consideration only the offender
raison d'etre of punishment and maintained that the purpose of and totally disregards the crimes. Besides, it discriminates between
punishment is to safeguard the society against the harm the criminal the offenders without drawing a clear line of distinction. The
may do. Beccasia justified punishment by treating it as the result is that some offenders escape punishment while others
individual’s right of defence which he foregoes in favour of the guilty of the same offence as the former, are deemed liable to
community and it is designed to chastize the criminal. The severe punishment.
champions of French Revolution were also influenced by these Some legal experts felt that the old punitive doctrines keep
opinions and incorporated them in the French law promulgated

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 I
in view only the crime in total disregard of the offender while
the modern doctrines take into account only the offender, for punishment in the criminal law. Consequently, each country
overlooking the crime, and therefore they have failed to offer has adopted a separate concept as it deemed fit on the basis of
any satisfactory solution to the problem. So these experts prevalent thought.
propounded quite a new doctrine. According to them every crime In view of the multiplicity and variety of the concepts
should comprehend two concepts: the concept of correction and mentioned above, the International Congress of Punitive Laws
warning and the conception of keeping in view the personality of adopted a resolution to profit by experience and declaring that
the offender. But this combined doctrine proved even a greater the most useful system of criminal law is that which proves to
failure than all the previous punitive concepts inasmuch as it was be most effective in the eradication of crime.
grounded in two contradictory ideas. By keeping in view the The framers of the current laws tried their best to harmonize
offender’s personality the purpose of the concept of correction the various concepts and to counter the charges levelled against
and warning would inevitably be defeated, particularly in the them by presenting a purely practical solution of the problem.
case of those dangerous offences which affect the social system, We illustrate our point with reference to the Egyptian law as a
morality and peace and tranquillity, and the concept of social specimen of the current criminal laws and give a summary of the
security in the case of all sorts of crimes is a serious impediment concepts underlying this law:
in taking into consideration the offender’s personality in respect 1) The concept adopted in the criminal law of Egypt is
of dangerous and minor offences alike. that punishment is designed to safeguard the society. On the
It may be said that the main concern of the legal experts basis of this, such punishments have been provided for all the
today is the idea that the object of punishment is the correction crimes as are considered to be adequate for the chastisement and
or reformation of the offender so as to make him acceptable to correction of the offender and a warning to the non-criminal.
the community and a useful citizen of the country. 2) The framers of the Egyptian law have also incorporated
This is a fundamental concept. But there is an implicit idea in it the scientific view as well to a certain extent and have taken
also: if the criminal is incorrigible, then punishment is a means into account the personality of the offender. For each offence,
to purge the community of such a criminal. two punishments have been provided for, whereof one is lighter
There is also a third concept too, and that treats punishment than the other, and two limits have been prescribed for each
punishment. Punishment is to be chosen between the two and the
as a means of safeguarding the society and frightening the person
courts are empowered to change the one for the other in criminal
guilty of a crime. The International Congress of Punitive Law
supports this concept and several European countries, including cases. If punishment does not . exceed the prescribed punitive
limit, i.e. one year, the court can legitimately suspend the execution
Germany, have adopted it.
of the sentence. This means that Egyptian law acknowledges the
The underlying idea of all the above concepts is that with
penalty of the offender, but in the choice of punishment and the
regard to punishment either the crime should be the main concern
determination of the quantum thereof, it is not binding upon the
in total disregard of the offender, or the offender should be kept
court to take into account the offender’s personality. In fact, the
in view to the exclusion of the crime; or else both these ideas
law of Egypt confers on the court that if the circumstances of the
should be combined to form the basis of punishment.
offender so desire, it should make allowance for the offender’s
There are the punitive concepts underlying the modem laws,
person, otherwise he should be disregarded.
and we know that the legal experts hold conflicting views about
them which create difficulties in providing a sound single basis .3) Having incorporated both these concepts in the
Egyptian law it has been opined that in ail the offences, particularly

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the major offences, it may be dangerous to take into consideration
the offender’s personality in awarding him punishment. Hence, Shariah is the promotion of the common good, reformation of
in the case of certain crimes, the court is not competent to award individuals, security of the community and endowing the society
a punishment lighter than the limit prescribed nor can it suspend with the power of defending itself against crime. Besides, the
the execution of punishment. Thus, this principle has been punishments as provided for in the Shariah are commensurate
incorporated in the Narcotics Act of 1928, Defraudation Act of with the requirement of the society, neither more nor less. Thus
1941, and the Arms Act of 1941. Logic demanded that once they are based on justice as well as on the fitness of things.
adopted, this principle should have necessitated amendment in These are the views propounded by Rosseau, Becania, Benthem
the whole Egyptian Penal Code and made it binding upon the and Kant respectively. Again, one of the objects of the Shariah
courts to disregard the circumstances of the offender in criminal punishment is also to reform the offender and do good to him.
cases posing a threat to the security of the community, such as This inevitably requires that the personality of the criminal should
defraudation, trafficking of narcotics and unauthorized possession not be ignored. Such a requirement conforms to the scientific
of arms. But this has not been done with the result that an view.
unfortunate situation has arisen. On the one hand mitigation in Although the Shariah includes all the penal views
punishment or suspension thereof is prohibited by Acts relating incorporated by the laws in force since the eighteenth century
to defraudation, narcotics and keeping arms illegally, while on down to the present day, yet it is free from all the flaws involved
the other hand, in the grave cases of misappropriation, in modem views and is not amenable to the criticism to which
embezzlement, bribery, homicide, adultery and calumniation, both these views are subject.
mitigation and suspension of punishment are warrantable, in spite Perhaps it may astonish some people that the Islamic Shariah
of the fact that all such offences pose greater danger to the existence embraces a comprehensive, scientific and technical theory of
and security of the society than the ones relating to narcotics, punishment, which does not admit of criticism from any angle;
unauthorized arms and cheating. that the modem man-made law has been able to reach the present
This then is the position of the current law with respect to stage of its development by following the example of Islamic
punishment, in which the principle of correction and warning has Shariah and that it has yet to achieve the perfection that
been adopted and considered it necessary to keep in view the characterizes the Shariah. However, from the stage of development
offender’s personality in the determination of the quantum of it has reached at the lines on which the process of its development
punishment, but subsequently the offender is overlooked in certain continues, it may be judged that its evolution will, in future,
offences. So far as the first principle is concerned the law is pursue the course laid down by the Islamic Shariah.
clear but as regards the latter two principles, the law is ambiguous It may now be claimed that there is no difference between
and illogical, as it has failed to delimit the sphere wherein both the Shariah and the modem laws in force so far as the principles
these principles would operate. and elements whereon punishment is based. The difference lies
in the mode and sphere of the adaptation of these principles. The
442. The Shariah Versus the Current Law
Shariah applies all the principles acknowledged by the modem
A study of the Shariah doctrine of punishment and the laws, but it does not combine all of them in all the punishments,
views of punishment incorporated in the laws in operation would nor does it treat all the crimes at par. It delimits a specific sphere
enable the reader to realize that the Shariah embodies all the for each principle, wherein it operates alone or together with
concepts included in the enactment’s since the end of the eighteenth some other principle. At the same time it identifies clearly the
century down to the present day. The object of punishment in the distinguishing marks of each sphere, so that there can be no
mistake about it. The Shadah has thus presented to mankind a
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21
 flawless, logically correct as well as practical doctrine of punishment
which cannot be subjected to criticism. On the contrary, the modem has been applying for the last two centuries only. Still the Shariah
laws combine all principles indiscriminately and treat all the is much ahead of the human thought.
offences on equal footing with the result that the legal experts 443. Conditions of Punishment
have failed to arrive at an acceptable solution to the problem of
The Shariah lays down the following essential conditions
punishment and have not been able to formulate a scientific doctrine
for every penalty:
thereof. No sooner these laws succeed in applying the principles
(1). Punishment should conform to the provisions of the
of punishment in harmony with the expediencies of the society
Shariah. A punishment would be deemed as conforming to the
and the individuals and with the nature of things, than they will
Shariah only when it is warranted by the source of the Shariah,
be constrained to determine a distinct sphere of operation for
i.e. the Holy Quran, the Sunnah, or the consensus, or else it is
each principle and to disregard the offender in crimes affecting
decided by a legislative body. The essential condition of awarding
the society. As soon as they attain to this stage of development,
punishment by the people in authority is that the punishments are
they will be completely in harmony with the Islamic Shariah.
not repugnant to the Shariah provisions; otherwise they would
We consider it essential to mention at this point that towards be void.
the end of the eighteenth century the law in force was inhuman
The result of a punishment being one provided for in the
and barbaric. Under this law the living and dead humans as well
Shariah would be that the court would not be competent to award
as animals and non-living things were all indiscriminately awarded
another punishment, although it may deem such punishment better
the punishment of disfiguration and public exposure of an offender. than the one prescribed in the Shariah. Some people believe that
At the end of the eighteenth century, however, when the law the Shariah has conferred oppressive power on the court or the
adopted the Shariah principle that the basis of punishment is the judge in respect of punishment. This is far from being true. Such
reformation and deterrence designed to safeguard the society, the an impression is the result of ignorance. The truth of the matter
modem law assumed human character. Consequently, disfiguration is that the Shariah classifies punishments into hudood, qisas
and public exposure of the offender was stopped and the practice (retaliation) and ta'zeers (penal punishments). The penalties of j
of legal proceedings against the dead human-beings, animals and hudood and qisas are invariably prescribed. The court has no |
non-living things was given up as it was acknowledged to be power as to these penalties. When the offence is established, it |
futile. This principle was incorporated into the modem law as will have to award them as they have been laid down without
late as the eighteenth century, where as the Islamic Shariah had making any change. For instance, the punishment prescribed for I
embraced this and other principles in the Seventh Century A.D larceny is amputation of hand. If the offence is proved, the court
It was because the principle in question that the Shariah treated cannot pass any sentence other than amputation of hand, unless
only the living humans right from the very first day as liable to there is something contrary thereto in the Shariah, as for example
criminal accountability. It never held dead people, animals or the stealing by the father of some belonging to the son. The I
non-living things accountable, nor did it ever support disfiguration punishment laid down for adultery by unmarried couple is a hundred |
or public exposure of the criminal. In fact, it strictly discarded stripes. After the establishment of such a case of adultery, the J
such obnoxious practice. The Holy Prophet (S.A.W.), for instance, court cannot but award the punishment so prescribed. It has no jl
forbade disfiguration of even a rabid dog. One cannot, therefore, power at all to increase or decrease a single stripe or change the i|
imagine that he could have allowed the disfiguration of a human punishment into some other penalty. Again the punishment I
being. The Shariah can well be proud of the fact that it adopted prescribed for felonious homicide is retaliation (qisas), or execution. I
such a noble principle eleven centuries earlier, whereas mankind

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If the crime is proved, the court is bound to award this punishment the poor, the illiterate and the educated are equal in the eyes of
to the killer. It is not competent to pass any other sentence unless
the Shariah.
there is something in the Shariah incompatible with such a penalty.
However, this complete equality in the Shariah as to
Thus the powers of the court are extremely limited in respect of
punishment, concerns only hudood and qisas; for penalty for the
hudood and qisas.
hudood and qisas offences is determined and as such is not amenable
As regards tazeers the court enjoys wider powers, but they
to change. Therefore, any one who is guilty of such an offence
are not oppressive. In the case of tazeer offences, the Shariah
will get the fixed punishment, whose quantum and nature would
has laid down a collection of penalties which range from rebuke
be the same for all the people.
to the harshest punishment such as life imprisonment or execution.
But if the punishment to be awarded is ta 'zeer, then equality
The court has been empowered to choose any penalty out of the
in its quantum and nature is not essential, for if equality in ta ‘zeers
above collection as it deems fit for the crime and the offender
is treated as inexorable, a ta 'zeer would assume the character of
and determine the quantum of punishment between the maximum
a had. The'point here is that the effect of punishment should be
and the minimum limits. No doubt, by conferring on the court
equal, and the effect produced thereby is deterrence and reformation.
wider powers, it is enabled to give the right verdict and award Some people may possibly be prevented from committing an
such a punishment to the offender as ensures the protection of offence only by intimidation, while others could not be prevented
the community on the one hand, and reformation of the offender only by corporal punishment and imprisonment. Thus if several
on the other. This judicial power, though wide enough, is not people guilty of the same offence are given different punishments
oppressive, for the court is not competent to award a punishment in consideration of their circumstances that make them desist
which is not provided for in the Shariah, nor can it award one from committing the offence, then equality is established
that is not fit for the offender. Probably the wide powers allowed
to the court has given the wrong impression that the judicial
powers provided for in the Shariah are oppressive.
The exercise of extensive powers conferred on the court is
not essential. The person in authority can set a limit on these
powers if the public good so requires. In other words, provision
for extensive powers for the court is also subject to common
good.
(2) Punishment should be personal. Another essential
condition of punishment is that it should be limited to the person
of the offender and should not involve any non-criminal. This
condition is actually one of the principles of Islamic Shariah
which has already been discussed in the context of accountability.
(3) Punishment should be of a general nature. One of the
conditions laid down for punishment is that it should be of a
general nature and could be awarded to all the people alike,
regardless of their status; for the ruler and the ruled, the rich and
1. See article 97 and the sequel.
2. See articles 281,471!

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 committed by him and as such it needs no separate order. Or take
another example: a slanderer is disqualified from giving evidence.
CHAPTER VIII Here too disqualification does not require a separate sentence,
inasmuch as the person who is awarded punishment for slander
is automatically disqualified from giving evidence.
KINDS OF PUNISHMENT
(4) Complementary Punishments:
444. Punishments May Be Classified into Four Kinds on the Basis Complementary punishments are the penalties awarded on
of Their Correlation: the basis of the order regarding primary punishments and for
(1) The Primary Punishments: which a separate sentence is also passed.
The complementary punishments bear affinity to subsidiary
These are penalties originally prescribed for an offence.
punishment inasmuch as both the punishments owe themselves
For example, prescribed punishments for homicide, for fornication
to the sentence of primary punishments. The difference, however,
and theft are retaliation, stoning to death and amputation of hand
is that no separate sentence is needed for the subsidiary punishments,
respectively.
while separate sentence must be passed for complementary
(2) Substitutionary Punishments: punishments. An example of complementary punishment is that
If there is something inhibiting primary punishment, then the amputated hand of a thief is to be hung from his neck till he
some other punishment would be awarded instead of it. Such a is set free. The hanging hand owes itself to the punishment of
punishment would be called substitutionary punishment. For cutting it off, but it is warrantable only when a separate order is
instance, in case of invalidation of qisas, diyat would be substituted. passed for it to be operative.
If had and qisas become null and void, ta 'zeer would take their 445. Punishments Are Classified into the Following Kinds in
place. Relation to Judicial Power as to the Determination of the
These alternate punishments are themselves primary Quantum thereof.
punishments before they are awarded as substitutes. They are
awarded as alternative to harsher punishments when the latter 1) Punishment with a single limit:
cannot be applied. For instance, in case of quasi-homicide, diyat As regards such punishments the court has no power to
is the prescribed original punishment and in case of ta 'zeer offences, enhance or mitigate the quantum thereof, although they may
ta'zeers are the original or primary penalties. But if on grounds naturally admit of mitigation or enhancement, such as rebuke,
of Shariah injunctions a had or qisas punishment cannot be awarded exhortation or flogging.
and instead of it diyat and ta'zeer are awarded, then these
2) Punishments with two limits:
punishments would be substitutionary.
These punishments involve two limits; minimum and
(3) Subsidiary Punishment: maximum. The court has the power to choose any penalty between
Subsidiary punishments are those which the offender has them as it may deem fit; for instance, imprisonment and flogging
to undergo as the result of primary punishments and for which as Ta'zeer.
no separate order is needed; for example, for a killer deprivation 446. Punishments Are Classified into the Following
of inheritance, since disinheritance is a consequence of homicide
Kinds in Accordance with Obligatory Injunction:

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27
 sequel show in two sections the extent to which the Shariah
1) Determined punishment:
punishments are efficacious as well as the degree to which the
Punishments whose nature and quantum have been determined
Egyptian law is efficacious respectively.
by the law-giver and has placed the court under the obligation to
apply them unchanged without enhancement or mitigation. Such
SECTION I
punishments are known as Obligatory Punishments, because the
person in authority is not competent to nullify or remit them.
449. THE HUDOOD PUNISHMENTS
(2) Non-determined punishment:
Hudood punishments are those prescribed for offences calling
Punishments in respect whereof the court is empowered to for hudood. Such offences are seven:
determine the quality and quantity of punishment as it deems fit, (1) Adultery or Fornication
in consideration of the offender’s circumstance. These are known
(2) Qazaf
as ‘Optional Punishments’, since the court has the option to award
(3) Drinking Wine
any of the given penalties.
(4) Larceny
447. Punishments Are Classified into the Following Kinds in
(5) Bloodshed
Relation to the Object thereof:
(6) Apostasy, and
1) . Corporal Punishment, viz.: punishments inflicted on (7) Rebellion.
the human body such as execution, whipping,
The punishment laid down in the Shariah for each of the
imprisonment etc.
above offences is termed as had (the plural whereof is hudood).
2) . Psychical Punishments: Punishments whose object is
Had is a punishment prescribed by Allah and constitutes
the offender’s mind rather than body, such as
His right. It is laid down in the interest of the society. When
exhortation, intimidation and threatening.
jurists say that such and such punishment is the right of Allah,
3) . Pecunary Punishments: Punishments whose object is
they mean that the punishment in question cannot be annulled by
the material possessions of a person, such as diyat,
the society. In other words, any punishment which has been declared
mulct and confiscation.
obligatory in the public interest and is designed to eradicate
448. Punishments Are Classified into the Following Kinds in corruption and ensure peace and security, is the right of Allah.
Accordance with Offences: These punishments are characterized by three peculiarities:
1) . Punishments of Hudood, i.e. prescribed punishments (1) . The object of the hudood punishment is to reform
for hudood offences. the criminal and to serve as a deterrence to others. When awarding,
2) . Punishments of Qisas and Diyat, i.e. punishments the person of the offender is taken into account.
prescribed for offences entailing retaliation and blood (2) . These punishments are treated as penalties with one
money. limit, although some of them admit of two extremes. They are
3) . Punishments of Expiation: Prescribed punishments for treated as having a single limit, since they are invariably fixed
certain qisas and diyat offences as well as certain and obligatory and as such the court is not competent to mitigate
ta'zeer offences. or enhance or change them.
4) . Penal Punishments, viz.: Punishments prescribed for (3) . The punishments have been contrived to counter the
ta'zeer offences. motive at work behind a crime. In other words, they are rounded
This is the most important classification of punishments. on strong psychological ground.
We proceed to dwell on each kind separately. We would in the
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 A. PUNISHMENTS OF ADULTERY psychological factors of adultery by bringing into play the
contradictory psychological factors. Now if the motivating factors
450. Punishment for Adulterer. of adultery get the better of the repulsive factors and the debauchee
There are three punishments laid down in the Shariah for consequently commits adultery, the pain caused by the prescribed
adultery: punishment would make him forget the pleasure derived from
1. Whipping. 2. Banishment. 3. Stoning to death. the offence and he will never think of deriving such pleasure
Whipping and banishment are punishments to be again.
simultaneously awarded to an unmarried adulterer. Stoning to Punishment of whipping according to the Law in Force
death is the punishment of a married adulterer. If the adulterer Till 1937 the Egyptian law acknowledged the utility of the
and adulteress are both unmarried, both of them shall be whipped punishment of whipping and was instrumental in the reformation
and banished. If both of them are married, both shall be stoned of youths. But then, following the precedence of most of the
to death. However, if one is married and the other unmarried, the operative laws in other countries, abolished this punishment.
former shall be stoned to death while the latter shall be whipped
In the modem age, most of the legal experts are trying to
and banished at the same time.
revive the concept of flogging as a punishment. In fact, a proposal
451. The Punishment of Whipping and Flogging has already been presented in France for the restoration of flogging
The Shariah has prescribed the punishment of a hundred for violence and excesses. It has been maintained in the proposal
stripes for an unmarried adulterer and adulteress. This is a ^hat the habits of the people are undergoing revolutionary changes
punishment with a single extreme, although it naturally admits and the masses tend to resort to violence and use of force for the
of two extremes. It involves only a single limit because the Shariah settlement of disputes. Besides, the outward form of crimes, too,
has determined a hundred stripes. Says are remarkably different from what they used to be in the past.
They are getting more and more vehement and acrimonious. Hence
Allah:
the only way to maintain peace and ensure security is to restore
“The adulterer and the adulteress, scourge each of them
corporal punishments, whereof flogging is the best.
with a hundred stripes. And let no pity for the twain withhold
Flogging as a punishment has been opposed on two grounds:
you from obedience to Allah, if ye believe in Allah and the
First, expression of hatred for corporal punishment. Second, flogging
Last Day. And let a party of believers witness their
is repugnant to human dignity. It has, however, been answered
punishment.” (24: 2)
that the peculiarity of flogging is that it is oriented towards the
The raison d'etre of flogging as a punishment is to repulse
criminal motivation by deterrent motivation. This is the raison physical sensibility of the offender. What terrifies the offender
d’etre which we arrive at by the contemplation of crime and most is the physical torture. Hence in order to terrify him, we
punishment. must take advantage of his psychology. As for the objection that
the punishment of flogging is repugnant to human dignity, it is
The motive of adultery is pleasure and the exhilaration that
baseless; for as the offender does not care for his dignity and
follows it. The only motive which counters the motive of pleasure
is pain and torture, for if a man experiences torture, it will not honour, the argument in favour of his dignity carries no weight
be possible for him to be pleased and exhilarated. In other words, at all.
the Shariah has not prescribed for nothing a hundred lashes as The advocates of flogging as a punishment argue that this
punishment for adultery. In fact, this punishment is based on punishment is confined to those offenders on whom other kinds
human nature and psychology. It offsets the operation of the of punishments do not produce the desired effects, whether such

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offenders are adult or juvenile. Some of these criminologists and sense of obedience. It sounds illogical that discipline and
reserve flogging for offences like use of liquor or other intoxicants, obedience of law is necessary for the members of armed forces,
defamation, plunder, theft, demolition of walls, destruction of but not so for the civilians. Do the civilians not belong to the
crops, killing of animals, and all such crimes as manifest callousness same nation as the armed forces do? Is there any harm if all the
and apathy. These experts hold that flogging has been fully individuals of a nation observe discipline and become law-abiding
established to be the best punishment for the reformation of the citizens?
prisoners. This ensures security of system in their vicious group.
Views of law experts belonging to different countries about
It is, therefore, essential according to these criminologists to the punishment of whipping have been explained above. If any
attach fundamental importance in the law of punishment of whipping one objects to punishment in question despite these expert opinions,
and it should be treated as a means of reformation of the non­ he can well contend that the entire world is in the wrong except
prisoners. himself. He may say whatever he likes, but he cannot assert that
Jado regards flogging as an improper punishment. He the punishment of whipping has proved needless pragmatically.
maintains that such a punishment involves the risk of abuse.
Besides, he argues that if flogging is restored, the legislators will Punishment of Adultery As Provided for In Laws In Force
start vying one another to prescribe rigorous punishment. The punishment provided for in the laws in force for adultery
Although the punishment of flogging has been done away is imprisonment. But this punishment does not involve the physical
within the modem criminal law, yet it has been retained in the torture that may goad him to abstain from the carnal pleasure
laws of some countries. For instance, in the criminal law of derived from adultery; nor does z7 bring into play such antidotal
England, flogging is included as one of the basic punishments. In psychological factors that would curb or divert the action of the
U.S.A, prisoners are whipped by way of punishment. In the military motivating factors at work behind sin. As a matter of fact the
and police laws of Egypt and England, too, flogging constitutes punishment of imprisonment adds to immodesty. The teeming
a basic punishment. So also is the case with the laws of many millions in the world shun adultery not for fear of imprisonment
other countries. but because of their religious beliefs and the moral excellence
During the Second World War a majority of the countries engendered by religion.
revived the punishment of whipping. It was also applied to the The distinguishing characteristic of Islamic Shariah is that
civilians found guilty of hoarding and profiteering. The fact that it has provided a psychological antidote to adultery by prescribing
the above countries were compelled to enforce the punishment of lashes as the punishment thereof. This is the only effective remedy
flogging during the war is a strong point in favour of this punishment for it. On the contrary, imprisonment does not bring about any
and is tantamount to admission on the part of the advocates of psychological reformation in the offender. It does not rid him of
the modem law in force that imprisonment alone is of no avail adulterous motivation, nor purifies evil propensities in his feelings.
in making the people abide by the law. Hence the punishment of imprisonment may be effective in other
Acknowledgement of this punishment in the military also offences but not in the case of adultery.
bears testimony to the fact that whipping as a punitive measure 452. Punishment of Banishment
is indispensable to the inculcation of discipline in the troops and
The Islamic Shariah also provides that an unmarried adulterer
goading them to the obedience of law. As far as the civil life is
concerned, the civilian? need this form of punishment more than should be banished for one year after being flogged. The Holy
the troops, for the former are now absolutely devoid of discipline Prophet (S.A.W.) says:
1 A! Mausoo ‘at ul-Jana 'iah, VcL V, p.53 and sequel. “Punishment of a young man and woman found euiltv of

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 adultery is a hundred lashes as well as banishment for one place of offence, for, if he lives in the community wherein he
year.” commits adultery, the memory of offence will remain fresh ill
However, three is no unanimity among the jurists of Islam the memory of the people. w
about this tradition. According to Imam Abu Hanifa and his (2). If the offender is removed from the place of offence,
disciples, this Hadith stands nullified or is at least unknown. he will be guarded against many an odd. For instance^ by living
They opine that if the punishment of banishment is to be treated in the same town, he would not only find it difficult to earn his
as warrantable, it is in the nature of ta 'zeer and does not constitute livelihood, but would also face ignominy and disgrace. In some
a had. Imam or the person in authority may in his individual other town he will not be confronted by such a situation. In fact
judgement add banishment to the prescribed punishment of lashes. it will be possible for him there to start afresh an honourable
Imam Malik is of the view, oil the other hand, that the punishment life.
of banishment is included in the had to be undergone by the From what has been stated above, it may be seen that the
male offender and not the female. Imam Shafi‘ee and Imam Ahmed, offender stands to gain more than the community in the punishment
however, maintain that banishment is included in the had of banishment. Even in the present age of immodesty when an
punishment of both the adulterer and the adulteress. adulterer is made the target of censure, he leaves the place where
The jurists who support the punishment of banishment say he commits the offence in order to avoid infamy and dishonour.
that by banishment is meant the expulsion of the offender guilty 453. Stoning to Death
of adultery from one town to the nearest town situated within the
Adultery committed by a married man or woman is punishable
territory of a Muslim state or Dar-ul Islam.
by 'rajm which means execution by stoning. No verse exists in
Imam Malik is of the opinion that the adulterer will be - the Holy Quran enjoining stoning to death or rajm. For this reason,
imprisoned in the town to which he is to be banished. According the Kharijees or schismatics refuse to acknowledge such a
to Imam Shafi‘ee, he will be kept under observation in the town punishment. They believe that both the married and unmarried
to which he is to be expelled. If it is feared that he would run adulterer and adulteress are liable to the same punishment. But
away from there or return to the town wherefrom he is expelled, all the sects of Ummah with the exception of the Kharijees are
he shall be imprisoned. On the contrary, Imam Ahmed maintains agreed on rajm, inasmuch as the Prophet (S.A.W.) enjoined rajm.
that the banished adulterer shall not be imprisoned. After him there was consensus among his companions on this
The punishment of banishment is actually complementary punishment. An oft-quoted tradition in this context is as follows:
to lashes. There are two reasons for which we hold this opinion: “Killing of a Muslim is lawful for one of three acts:
(1). To make the people forget the offence as soon as infidelity after embracing Islam, adultery after marriage,
possible. For this it is necessary to remove the offender from the and murder of any one without any reason.
According to a tradition the Holy Prophet (S.A. W.) ordered
1. Shark Fath-ul-Qadeer, Vol.4, P.134 and the sequel.
the adulterer and adulteress named ‘Ma’iz and Ghamidia when a
2. Shark ul Zurqani, Vol.8, p.83.
3. Asna-ul-Matalib. Vol. IV, P. 129 and Al Mughni, Vol. .10, PP. 135-144. woman was guilty of adultery with her servant to be stoned to
4. According to Imam Malik the punishment of banishment is intended for a free male. It death. Thus both the edict and practice of the Holy Prophet (S.A. W.)
does not apply to a woman or slave. Imam Ahmed is of the opinion that it is intended for bear testimony to the punishment of rajm.
both a free man and free woman while Imam Shafi‘ee opines that it is applicable to all
free men and women as well as a slave. The basis of rajm is the same as that of lashes prescribed
5. Shark al Zurqani. VoL VIII, P.83. for an unmarried person guilty of adulteiy. But the punishment
6. Asna-ul- Matalib, Vol. IV, P.130.
laid down for a married offender is harsher because of wedlock,
7. Al-Mitghni. VoL 10 P. 136.

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inasmuch as in such a state a man or woman’s mind is generally
purged of the propensity for committing adultery. Now if a married with from the standpoint of both nature and reason, justice demands
person thinks of enjoying a woman or man out of wedlock, it that no excuses should be entertained for the mitigation of
means that he or she is overwhelmed by sexual desift and has an punishment and the married adulterer or adulteress should be
irresistible temptation to derive unlawful carnal pleasure from awarded such a punishment as is appropriate for an incorrigible
adultery. Hence it is necessary to prescribe such a painful and or irreclaimable criminal.
tormenting punishment that if the offender compares the unlawful If those who are so much upset by the death penalty of an
pleasure he wishes to have and the punishment thereof, the dread adulterer ponder the actual position they would realize that the
of pain overcomes the prospective joy. Shariah has prescribed this punishment according to the liking
In the present day the people regard the punishment of of the people. Under the law. in force, adultery by a married
rajm as a bit too harsh. But if any one finds his wife or daughter person is punishable by imprisonment and for an unmarried there
involved in fornication, he kills her along with her paramour. is no punishment if the offence is committed by the mutual consent
The criteria of Shariah with regard to this problem are as subtle of the couple. But are the people happy over this provision?
and just as they are in its other injunctions. A married adulterer They are never, happy nor will they ever be. They have accepted
or adulteress presents the most odious example of sin and the this provision under compulsion as they have accepted the Shariah
injunction volantarily. The people actually retaliate by killing
Shariah would have it eliminated from society, because the Shari *ah
married and unmarried persons guilty of adultery and the methods
stands for chastity, moral excellence, legitimacy of descent and
they adopt for killing are more painful than rajm. For instance,
for a life free from promiscuity and moral aberration. It, therefore,
the adulterer is drowned or burnt alive; his or her joints are
makes it obligatory for every one to keep in control his or her
amputated or bones are broken. In short he is completely disfigured.
sensual desires and gratify it in a lawful manner (i.e. by marriage).
The least painful mode of killing is that the offender is poisoned.
When the upsurge of sensual desire is at its height, marriage is
Fifty percent of the persons killed for various crimes consist of
imperative under the Shariah so that the person concerned does
those guilty of adultery. If the actual position in effect is this,
not go astray and run wild. If he does not marry and the desire
then how can rajm be regarded as dangerous? To adopt the
gets the better of his reason and the gratification thereof becomes
punishment of rajm means acknowledgement of the actual position.
his sole concern, then he is liable to a hundred lashes. This lesser
Such an acknowledgement is not only commendable but also
punishment is warranted by the fact that he takes the wrong
expressive of courage. We ought to accept reality and admit the
course because of delay in marriage. But after being once married,
actual position with regard to rajm.
the Shariah leaves no scope for excuse. That is why it does not
Some people think that rajm is a brutal punishment. We
enjoin wedlock as a perpetual bond so that if the relations between
say that it is actually death penalty, like the capital punishment
man and wife are strained, neither of them becomes’ lewd. The
as provided for various offences in most of the laws in force in
wife is permitted to protect her chastity at the time of nuptials-
She is also allowed to seek divorce if the husband leaves her or the world today. It makes no difference whether death is caused
disappears, falls sick or becomes penniless or she receives any by hanging, slaying with a sword, administering gas, electrocuted,
harm. The husband is free to divorce his wife at any time and shooting or stoning. Death is death, whatever the method of causing
have more than one wife provided that he can be just to his it. If someone thinks that a man is killed quickly by a bullet and
wives. In short, The Shariah has kept open the doors of all the by stones slowly, he is gravely mistaken; for it sometimes happens
lawful courses for a married person while banning all the unlawful that bullet does not hit the target and, therefore, killing is delayed,
courses. When the offence inciting factors have been done away but stones hit the fatal target and death occurs instantaneously.
The number of shooters is very limited, while those who stone
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the offender are numerous. They keep on throwing stones until academic because they have been devised on psychological basis,
the adulterer breathes his last. Just imagine a man being stoned and legal because they are designed to eradicate crime. This is
by hundreds of people. Will he not die more quickly than being characteristic of all the punishments laid down by the Shariah
shot? for crimes involving hudood, retaliation or qisas and diyat. As
Experience has shown that sometimes hanging does not opposed to the Shariah, the law in force is devoid of this quality.
cause the offender to breathe his last and it takes time to put him Doubtless, the only punishment that can serve the purpose
to death. It has also been proved by experience that a single in view would be the one prescribed in consideration of the
stroke of sword fails to decapitate the offender and beheading is offender’s psychology, for such a punishment would root out
not an easy method of execution. Similarly, administration of criminal tendency from his mind. It will not only ensure the
gas and electrocution takes more time to cause death than hanging security of public good but will also fully meet the demands of
and shooting. justice. It will neither do wrong to the offender nor will overtax
his capacity to endure. Obviously, a punishment based on the
As a matter of fact to think of death to occur quickly is
nature and psychology of man can never be oppressive and
incompatible with the concept of punishment, for if death does
transgressive. Also, a punishment of this kind would be in complete
not involve pain and agony, it would turn into the most ordinary
harmony with the principle of justice, for if it does justice to the
punishment, for the people do not dread death so much as they
individual, would certainly be just to the collection of individuals
do the pain and agony associated with it. True that agony and
too. Again, in the punishment prescribed by the Shariah the right
torment is of little consequence for one who is to die but agony
of the society is treated as of paramount importance and the
and torment are absolutely essential to warn and frighten other
community is not sacrificed for the sake of the individual. On
individuals of the community. Obviously it is not in the interest the contrary, a punishment prescribed in the interest of the individual
of the society that its members come to believe that the punishment as opposed to that of the community undermines the interest of
of such and such offence is very light and not to be afraid of. both the individual and the community, inasmuch as it fosters
The Quranic verse relating to adultery explains this point: crimes, causes breach of peace and leads in the ultimate analysis,
“And let not pity for the twain withhold you from obedience to disorder in the society, which in its turn destroys both the
of Allah.” (24:2) individual and the community.
“And let a party of believers witness their punishment.” The punishment of adultery laid down by the Shariah has
(24:2) played a vital role in the eradication of this crime at every place
The reason for this is that if the offenders are treated leniently, and at every time in history. Its impact may be seen even today
they will begin brazenly committing offences; whereas the element in countries where the Shariah had once been in force. In fact,
of pain involved in punishment aims at the chastisement of the its impact is manifest in the situation obtaining even today or
offender on the one hand and warn the non-offender on the other. even in conditions that have been prevalent during the past forty
454. A Note on the Punishments Prescribed for Adultery. to fifty years. It is needless to say that the Shariah has not been
in operation during these years, yet its effects are so intense that
The Shariah punishments for adultery have not been they still inhere in our traditions, morals and habits, though they
prescribed at random. They have in reality been laid down taking are gradually on the wane with the passage of time.
into full account man and his mind, his instincts and feelings.
The difference between the Islamic East and the Western
The interest of the community and the individuals both have
countries also exemplifies the immense impact of the Shariah, in
been kept in view in the determination of these punishments.
spite of the fact that Western laws have been in force since a
Hence they are legal as well as academic penalties. They are

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long time m the East. The Islamic East has been living not only
under the Western-'law but has also been following the West in The motives of slanderous fabrication and lying therein
every sphere, and even in matters relating to morality and honour. may be jealousy, personal grudge and revenge and the object in
Nevertheless the East regards adultery as the most detestable and all these cases is to torture and render contemptible the person
heinous crime and one guilty of it is regarded- as a contemptible to be calumniated.
wretch. With the Easterners no punishment_is too severe for an The punishment prescribed by the Shariah for qazaf is to
adulterer. On the contrary, the people of the West do not generally defeat the purpose thereof. The slanderer wants to inflict mental
care for this offence as they attach little importance to morals torture on his victim and for this reason flogging has been laid
and honour. Hence the difference between the West and the East down so that the slanderer is physically tormented, inasmuch as
in this regard is, in reality, the difference between the Shariah physical torture is opposed by psychological torture. The former
and the modem law. The result is that the just punishment of the torture produces greater effects on the mind and feelings of the
Shariah has brought forth a just and righteous society which is offender, psychological torture is actually a part of physical torment.
based on moral values, whereas the light and benign punishment If the slanderer renders contemptible and mortifies his victim on
prescribed by the modem law has pioduced a corrupt and depraved individual plane, its appropriate requital is that the entire society
society in which lust and sensual desires predominate. should disdain and scorn him and this general contempt should
form a part of his punishment and as the result of general contempt
B. The Punishment of Qazaf the offender should lose his confidence with the result that his
testimony becomes unacceptable and he is declared as an evil
455 Lashes and Disqualification from Testification.
doer for ever.
The Shariah has laid down two punishments for qazaf (false In this punishment also the Shariah has repulsed the motives
imputation of adultery). One of them is primary or basic which of the offence by opposite psychological factors in order that
consists of flogging and the other subsidiary consisting of these factors may overcome the criminal motives and consequently
disqualification of the person guilty of qazaf from bearing witness. the commitment of crime is prevented. In fact, the offender would
The testimony of such an offender has, therefore, no validity. shrink from the very idea of committing the offence.
The punishment of lashes in itself is a penalty with two
limits, but in the case of a slanderer or one guilty of qazaf it 456. Punishment of Qazaf as Provided for in the Law in Force.
entails only a single limit inasmuch as the number of lashes has According to the law in force, qazaf is punishable by either
been determined and the court has no powers to mitigate or enhance imprisonment or mulct or both. Both these punishments are not
or change it. This punishment has been laid down in the following effective deterrent to calumniation. That is the reason why slander
Quranic verse: and abuse is extremely common in present day society and the
“And those who accuse honourable women and bring not people in general and political workers, in particular, accuse and
four witnesses, scourge them with eighty stripes and never abuse one another in a give and take manner. Everybody seems
afterward accept their testimony. They indeed are evil doers.” beset with the thought of disdaining and debasing his opponent
(24:4) and calling into question right and wrong so that the way of his
It must be borne in mind that the Shariah punishment for aggrandisement is clear. This goes on to such an extent that
qazaf is applicable only when the imputation of adultery is a opponents are disgraced and mutual relations are severed. Thus
fabrication and is as such false. But if it is true, such an imputation shameless examples of self aggrandisement are set in the society.
is no offence and, therefore, not punishable. If the law in force is replaced by the Shariah, nobody will
be so audacious as to tell lies against others, for false accusation
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 employer or to get his wages enhanced. He does not shirk his
will be punished by lashes and the slanderer will be cast out of
work, for fear of losing his job.
public life and deprived of leadership, nobility and social status.
As the evidence of liar has no validity under the Shariah, his In short this is the demand of human nature which does not
right to sit in judgement is void. Such a person is not fit for change, although its manifestations vary. Man is always desirous
leadership and governance inasmuch as a wrong-doer and sinner of a reward and avoids whatever entails punishment or loss of
gain. Hence wisdom demands that his nature should be taken
cannot be entrusted with the responsibility of running the affairs
into account in his guidance and chastisement. Shariah, therefore,
of Muslims. ,.
turned human nature to its account and grounded its injunctions
The deplorable situation prevalent in Egypt is to be found
on the basic qualities of fears and hopes and strength and weakness
in almost all the democratic countries of the world. Some thinkers
of human nature. That is why these injunctions are universal
are of the view that this is a sort of temporary phase of democratic
suited to every age and every place. Just as human nature is
life, since difference of opinion is the very essence of democracy. uniform everywhere and is not affected by temporal changes, so
Democracy requires different political parties with their different also was the Islamic Shariah suited to ancient times as it is to the
programmes based on divergent modes of thinking. Other thinkers
present and will be suited to the future.
regard it as a dangerous malady fatal to social order. They maintain
that this unfortunate state of affairs will continue as long as C. PUNISHMENT OF DRINKING WINE
democracy exists. To my mind both the group of thinkers are
wrong. Democracy (consultative body) does not by nature require 457. The Shariah has prescribed eighty lashes for drinking wine.
that offences are committed and people are induced to commit This is a punishment with a single limit and the court is not
them. The truth of the matter is that evil thrives because there is competent to reduce or enhance or change it.
nothing to curb it or there is no deterrent punishment preventing But Imam Shafi'ee, as opposed to all the other Imams,
the people from committing an offence. claims that it is forty lashes. He argues that it is not established
The concept of reward and punishment is universal. It existed that the Prophet (S.A.W.) awarded more than forty lashes and,
in the spiritual days of old as it exists in the modem materialistic therefore, the remaining forty lashes are in the nature of ta ‘zeer
age. The Caliph Hadrat ‘Umar (R.A.A.) did not do justice for rather than hud.
worldly gains. He did it for a reward in the Hereafter. He took The source of this punishment is the following saying of
meticulous care to avoid doing injustice for fear of punishment the Holy Prophet (S.A.W.):
in the Hereafter. The rulers of today do justice for being popular
“The person who drinks wine, scourge him with lashes and
and avoid doing injustice for fear of losing their high positions.
if he drinks it again, lash him again.”
The ancient scholar wrote for the sake of Allah’s pleasure and
The unlawfulness of wine is testified by the Holy Quran
for a reward in the Hereafter. Whatever he left out, he did so for
itself. The position with regard to the quantum of punishment for
fear of Allah’s displeasure. On the contrary, the scholar writes
drinking wine which is nearer the truth is that eighty lashes or
with the intention of becoming popular and famous. He excludes
from his writings whatever he fears to cause people’s resentment, stripes were laid down during the period of Hazrat ‘Umar’s
thereby lowering his market value. Formerly a worker used to Caliphate. Hazrat ‘Umar (R.A.A.) consulted the companions of
work to perform his duty conscientiously towards his employer, the Holy Prophet (S.A.W.) on the quantum of punishment to be
seeking thereby Allah’s pleasure. He never neglected his duty prescribed for drinking wine. Hazrat Ali (R.A.A.) gave the verdict
lest Allah should be displeased with him. But today the worker of eighty lashes and advanced the argument in favour of his
performs his work in order to get quick remuneration from his verdict that the drunkard would start raving when intoxicated

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 — I

and in such a state of mind would calumniate the people. Since

eighty stripes as the punishment for a slanderer has already been country like Egypt use of liquor and wine should be declared
laid down in the Shariah, the person who drinks should also be unlawful. This is the more necessary inasmuch as Islam is the
scourged with eighty stripes. All companions agreed on this. In official religion of this country. Islam has declared drinking of
other words, prohibition of wine is testified by the Holy Quran wine unlawful and has laid down punishment for it. Moreover,
and the punishment thereof is laid down by the Sunnah, while its the harmful consequences of drinking have in effect come to
quantum has been prescribed by the consensus of the Prophet’s light. But the government has not imposed prohibition. In fact
companions. The drunkard drinks wine to forget his psychological under the existing law drinking is no offence. There is no ban on
suffering and to escape from the harsh realities of the world into the sale and purchase of wine. If a drunkard is punished at all,
it is when he appears in public intoxicated. In other words, drinking
a comfortable world of fancy.
and getting intoxicated is not punishable. What is amenable to
The Shariah curbs this motivation by prescribing the
punitive action is iosing one’s senses in public. The punishment
punishment of lashes. The offender tries to escape from his
for this, too, is very mild. It consists of a fine that does not
psychological suffering or anguish. But the punishment of lashes exceed a hundred ‘qursh ’ or the offender is at the most awarded
shocks him back into reality. In fact it adds to his sufferings. He a few weeks’ simple imprisonment. The framer of the law, however,
wants to seek refuge in the comforts of a fanciful world while is not at fault for this, for he is a French who has simply produced
the punishment of lashes does not only send him back to those a copy of the French law. The people to blame are actually those
sufferings but also adds to them corporal pain. It combines the who have accepted this law and have enforced it, in spite of the
torment of reality with the torment of punishment. fact that sections of the law in question which are repugnant to
In other words, the Shariah lays down the punishment of the Shariah are totally void. The fault lies with those individuals
lashes for the drunkard on the strong groundwork of psychology who treat Egypt as a part of France instead of the Islamic East.
r and tries to do away with the psychological factors at work behind These people have absolutely forgotten the fact that there is a
crime by combating them with the opposite psychological factors world of difference between the West and the East. They are
in order that the latter factors might prevent human nature from poles apart in respect of their traditions, cultures, environments
committing the crime. Now if anyone desires to drink wine to and legacies.
forget his anguish he would at the same time be mindful of the
459. The World and Use of Liquor.
painful punishment he might have undergone and would thus
desist from committing the offence. If, however, he cannot resist Islam declared use of liquor unlawful and prescribed
the temptation of drinking, the preventive motivation would certainly punishment for it thirteen (rather fourteen) hundred years ago. In
get the better of criminal motivation subsequent to the infliction imposing prohibition for the so many centuries and enforcing
of the prescribed punishment and he would never drink wine punishment for the violation, Islam stands alone in the history of
again. mankind. It is only in twentieth century that the world has come
to acknowledge the wisdom of Islam, inasmuch as science has
458.The Medical and Social Aspect of Drinking Wine. proved that liquor is the basic cause of evil which undermines
It is established on both the medical and social grounds the intellectual and mental potentials of man and ruins his health.
that consumption of wine or liquor is absolutely unprofitable. It Institutions have sprung up everywhere in the world to induce
is injurious to health and causes sterility and enervation of progeny. the people to give up drinking. They have brought out magazines
Besides, the use of liquor results not only in the waste of money and organized conferences for this purpose. These institutions
but also in the loss of sense of decency. For this reason in a
I. The Egyptian Penal Code, Article No.385.

44
45
particularly exercise considerable influence on the governments
and people in Canada and USA and consequently laws of total of his own labour and covets what others have legitimately earned.
prohibition have been enacted in both these countries. In other He does this in order to spend more, make himself conspicuous,
countries, too, partial prohibition has been enforced, i.e. during and shirk work and thus ensure his future security. In other words,
fixed hours serving and use of wine or liquor has been banned. the purpose of larceny is to earn more and get richer. The Shariah
However, prohibition has not borne fruit in the countries where counters this nefarious tendency by prescribing the punishment
it has been imposed because no effective punishments have been of the amputation of hand and foot, for such a punishment would
prescribed there for the infringement of the law of prohibition. naturally reduce the earning of the thief. His hand and foot which
are the means of earning will be removed and thus because of
Since the world has acknowledged that Islam is perfectly
the decrease in his income his wealth will dwindle whereby his
justified in imposing prohibition on wine, it has only to accept
ability to show himself off and spend extravagantly will be curbed.
the Islamic punishment thereof now. When mankind once enforces
On the contrary, he will have to struggle a great deal for earning
this punishment all the laws of prohibition are sure to be successfully
and his future will also be insecure.
effective and the purpose of prohibition will be fulfilled.
In other words, the Islamic Shariah repels criminal motivation
by deterrent psychological motivation. Suppose the criminal factors
D. PUNISHMENT OF LARCENY get the better, of preventive factors, the severity of punishment
would stimulate the deterrent factors and the offender would
460. Amputation of Hand. desist from committing the crime again.
The Shariah has laid down the punishment of amputation This then is the psychological basis on which the punishment
of hand for the offence of larceny or theft: Says Allah: for theft rests in the Shariah. It is beyond doubt that right from
“As for the thief, both male and female, cut off their hands. the creation of man, down to the present day, no better penalty
It is the reward of their own deeds, an exemplary punishment has ever been prescribed for larceny and that is the reason why
from Allah.” (5:38) the Shariah punishment has proved to be the best and most
The jurists are unanimous that the word ‘Aidi’ occurring in successful. In contemporary Hijaz it is effective and has been
the Quranic verse applies to both hand and foot. If the thief most effective. Owing to the Shariah punishment for larceny
commits the offence for the first time, his right hand will be cut Hijaz where theft, plunder, day-light robbery and chaos was the
off. If he commits it a second time his left foot will be amputated. order of the day is now a heaven where peace and tranquillity
The hand and foot both are to be cut from the ankle joints. reigns supreme. Prior to the enforcement of the Islamic Shariah,
Hazrat Ali (R.A.A.) used to cut half the foot where the lace is Hijaz was regarded as the worst country of the world, for the
bound and would leave the rest for the thief to be able to walk . traveller was in a constant state of fear with the danger of attack
The reason for the amputation of hand for the offence of on him and his dependants as well as his possessions. Even the
larceny is that when the thief intends to commit theft he actually influential people or those wielding power did not feel secure.
desires to add to his earning by depriving some one else of his Half the country’s population consisted of thieves, robbers and
earning. He regards his own earning as scanty and wishes to highway men. But after the enforcement of Islamic Shariah, Hijaz
enhance it by illegitimate gains. He is not content with the wages is the most peaceful land in the globe. No resident or traveller in
1. Majority of Americans have abolished the law of prohibition. But a society named the country faces the danger of any sort. Valuable articles lie on
Prohibition Party is still active and continues to press its demand for prohibition.
2. A! Mughni, Vol. 10, 264 and the sequal.
the road-side. Nobody does so much as to touch it. The police
comes and brings those articles to whomsoever they belong to.

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47
 461. Punishment of Larceny as Provided for in the Law in Force. careful thought simply because someone has made a groundless
Under the law in force, punishment of theft is imprisonment. assertion.
This punishment is ineffective in all crimes in general and in If such an appropriate punishment could be awarded as is
larceny in particular. The reason for this is that imprisonment in harmony with humanity and civilization then imprisonment
does not engender in the thief s mind psychological inhibitions ought to be replaced by amputation of hand, for the latter is
devised on the strong and cogent basis of psychology, human
making him desist from stealing. For imprisonment is a punishment
nature, experience of pain, and logic, and this is the very basis
which simply obstructs the thief s activity and his act of acquiring
of human civilization. The punishment of imprisonment on the
something. Obviously, while in jail, he does not need to acquire
contrary, has no scientific or logical foundation, nor is it in harmony
anything, as his needs are fulfilled there without any effort on
with the nature of things.
his part. But when he is released and is free to earn and add to
The punishment of amputation is rooted in human psychology
his possessions whether lawfully or unlawfully, he would appear and is the outcome of a profound study of human nature. Hence
as gentleman to take the people in confidence and the people it is suited to the individuals and also beneficial for the society,
would help him in his efforts. If he succeeds in this, well and for it causes decline in the incidence of crime and contributes to
good but if his plans do not succeed he loses nothing. maintenance of peace and tranquillity in the community. Obviously .
But amputation of limb deprives the Jthief of his capacity there can be no better punishment than the one which is in the
to act and earn or at least this capacity is immensely reduced. In interest of both the individual and the community.
fact, in most cases he ceases to acquire or grab anything altogether. But some people hold that this is no justification for the
He can neither deceive the people nor win their confidence, since punitive amputation of hand, inasmuch as it is cruel or brutal.
his impaired body bears testimony to his crime and his amputated This is the only argument these people advance in support of

I hand holds up a mirror to his past. In short, in amputation the

element of harm is predominant, whereas in imprisonment the
element of gain outweighs the element of harm. Every human
being, not to speak of the thief, is naturally inclined to do readily
whatever is gainful, and shuns doing whatever is harmful.
their aversion to amputation. But it is absurd and carries no
weight at all, for a punishment characterized by mildness and
leniency is no punishment at all. It is of no avail and nothing
more than mere play. Cruelty is the very essence of punishment.
I would like to pose a question to the compassionate people.
The law in force provides rigorous life imprisonment in certain
462. Wrong Objections. cases of larceny and in certain other rigorous imprisonment for
I wonder at the thinking of those who maintain that fixed periods. How do they bear the miserable plight of the offender
amputation of hand is contradictroy to the contemporary stage of who is deprived of his freedom, and confined in the jail far
human progress. In other words human civilization demands that removed from his family like an encaged bird or a corpse lying
we should save a thief from punishment for committing theft and in the grave? Let them tell us which of the two punishments is
allow him to go on treading the criminal path, while living ourselves more cruel: amputation of the thief s hand and his subsequent
in a constant state of fear; or rather we should toil so that idlers freedom to live with his family or imprisonment involving denial
and thieves might steal the fruits of our labour. of freedom, loss of decency and human qualities and thwarting
I wonder if civilization means to reject logic and science, of masculine potency?
ignore numan nature, long experiences of peoples throw our reason Again, these compassionate people lose sight of the fact
into disuse and to avoid acting on the conclusions drawn by that the law in force also provides for death penalty, which results
in the loss of life and decomposition of body. On the contrary in

48 49
the punitive amputation of hand only a part of the body is
“The only reward of those who make war upon Allah and
dismembered and Jost. These people agree to death penalty but
oppose amputation of hand which is partial punishment. Why His messenger and strive after corruption in the land will
should those who do not treat death penalty as horrible, deem be that they will be killed or crucified, or have their hands
punitive amputation so ghastly? and their feet on alternate sides cut off or will be expelled
out of the land. Such will be their degradation in the world
Thus if the Islamic Shariah has prescribed the punitive
and in the Hereafter theirs will be an awful doom.”
amputation of hand, there is nothing brutal about it. In fact Shariah
(5:33)
is the only law in the world that is totally devoid of brutality.
Whatever has been construed as brutal in the Shariah is actually 464. Killing
its strength and positively. This is a feature of not only its If a plunderer kills his victim, he is liable to be killed. This
punishment but also in its beliefs, forms of worship and rights punitive killing is a had and not qisas because it is not nullified
and duties. Otherwise the words most frequently occur in the by the remission of the guardian or heir of the victim. This
Holy Quran are synonymous with mercy and compassion. The punishment, too, has been prescribed on the basis of the knowledge
Shariah makes it obligatory for every Muslim to begin every act of human nature. The killer is induced to kill by the will to
with the name of Allah the Merciful including the acts of eating, survive and he murders his victim in order to live himself. But
drinking, worshipping, sitting, standing, sleeping and waking. when he comes to know that killing his victim entails killing of
He is also expected to have the impression of Allan’s mercy in himself, he would desist from committing murder. In other words,
his word and deed by mentioning His mercy. The Prophet (S.A.W.) the Shariah provision for punitive killing is designed to repulse
has said: the homicidal motivation by bringing into play the opposite
■ “Allah has mercy on those who have pity (on others).” psychological factors that can deter commission of the offence
i Again, says the Holy Prophet (S.A.W.): by making the killer inevitably realize that commitment of murder
by him would, of necessity, result in his own murder.
“Have pity on the inhabitants of the earth and Allah will
have mercy on you.” 465. Killing and Hanging.
In short, mercy is the origin of the Shariah. The question If the plunderer commits murder as well as robbery, he
of brutality in it does not arise at all. shall be liable to killing and hanging for the offences of both
homicide and robbery, or for the two offences combined or for
E. PUNISHMENT OF BLOODSHED an offence committed for the sake of another offence, i.e. murder
is committed for the sake of gaining something valuable. This
463. Punishment of Blood-guilty.
punishment also constitutes had because it is not invalidated by
The Shariah has laid down four punishments for shedding remission on the part of the lawful guardian of the victim. The
blood: punishment in question, too, has been prescribed on the same
1. Killing. basis as punitive killing. But since in this case commission of
2. Exacution and gallows. homicide is motivated by the desire to grab property, harsher
3. Amputation. punishment would be awarded so that the offender might desist
4. Banishment. from committing the two-fold offence when he ponders the severity
of punishment involved.
The source of all the above four punishments is the following
verse of the Holy Quran: Some jurists opine that the punishment of hanging will

50
51
precede slaying. In other words, the offender will be hanged demands that the punishment of the one should be different from
that of the other.
alive and slain after having been hanged. This group of jurists
argues that hanging is punishment which can be inflicted on a It may well be argued that any punishment coupled with
living person and not on the dead. Other jurists are of the view capital punishment is useless. Hanging, in particular, is of no use
that the offender will be slain or killed first and then hanged. other than terrification. The answer to this question is that every
punishment has two sides of it. On the one hand it chastises the
The argument they advance in support of their position is that in
criminal and on the other it serves as warning to the non-criminals.
the Quranic decree the word meaning killing or slaying occurs
No doubt every punishment after execution is of no avail, but
before hanging and, therefore, killing must precede hanging. They
even a trivial penalty coupled with execution does have utility of
further contend that hanging before killing is tormentation which its own inasmuch as it serves as a deterrent and warning. Hanging
is forbidden by the Shariah. Besides, the punishment of hanging does not produce any effect on the condemned man particularly
does not prevent the attempt to murder, for had it been so, there when it is carried out after killing the man. But this event has
would have been no need in the Shariah for the provision enjoining immense impact on the masses. It rather produces the desired
killing. This group of jurists holds that hanging is designed to effect on common people in general and the plunderers in particular.
warn others by publicity so that they may abstain from the In short, the punishment of hanging has undeniable potential of
commission of the twofold offence. The position first mentioned warning the non-criminals and preventing them from committing
is taken by Imam Malik and Imam Abu Hanifa, while second the crime.
opinion is held by Imam Shafi‘ee and Imam Ahmed.
466. Amputation.
The twin punishment of hanging coupled with killing bears
If the plunderer robs the victim of his goods but does not
close affinity to the modem form of shooting a condemned offender
kill him, he is liable to amputation which means chopping off his
by fastening him to a cross-like board.
right hand and left foot simultaneously. The raison d ’etre of this
The jurists differ on the question of keeping the executed punishment is the same as that of larceny. But since plunder is
offender hanging for quite some time. Some of them fix three committed on roads far removed from population, the plunderer
days; others hold that he ought to remain hanging till his body is often sure of his success and does not face the danger of being
begins to stink and as soon as it emits offensive smell the corpse encountered. This is the factor which reinforces the psychological
should be removed. There are still others who deem hanging factors at work/ behind criminal motivation and curbs the preventive
adequate punishment and no sooner the purpose of hanging is psychological factors originating from the punishment of minor
fulfilled than the dead-body should be brought down. There is, case of theft. It is for this reason that severe punishment has
however, a number of other jurists who think differently. They been prescribed for robbery so that the preventive psychological
opine that the corpse ought to be left hanging until the news of motivation might get the better criminal motivation.
the infliction of punishment is spread far and wide, but it should The punishment of highway-man or way layer is equal to
be taken down before it begins to stink. that of a thief who commits larceny twice. This no doubt is a fair
One of the merits of the Islamic Shariah is that it draws a punishment, because a highway man is as dangerous as a thief
line of distinction between the punishment of homicide and that who is guilty of stealing twice. Besides, the chances of escape
of grabbing goods along with homicide, since the two offences open to such a robber are greater than those of an ordinary thief.
are different and there is no parity between them. Reason, therefore, As opposed to the Shariah which prescribes for a highway
1 Al-Mughni, Vol. 10, P308. man double the quantum of punishment laid down for an ordinary
2 Al-Mughni Vol. 10. P.308. L Al-Mughni. Vol. 10, P.308.

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thief, the Egyptian law provides for five times as much punishment The view to be preferred in this connection is that the
for highway robber as for an offence of ordinary theft. Thus offender is to be banished to the nearest town within Darul Islam
under the Egyptian law theft is punishable for three years’ (Islamic state) and to be imprisoned in that town. The term of
imprisonment while highway robbery is punishable by rigorous imprisonment has not been fixed. The sentence will be served by
imprisonment for life or imprisonment for a fixed period extending him as long as he does not repent and is not reclaimed. On
to fifteen years. This is five times as much as the punishment of repentance he should be released. Those who hold this position
an ordinary thief. But it has been observed that nearly fifty per argue that by sentencing the offender to imprisonment the purpose
cent of the highway-men or bandits sentenced to rigorous of punishment is served; for if he is banished from one town to
imprisonment, commit new crimes the same year they are released. another and left free there, the purpose is not fulfilled, inasmuch
When they are released from the prison, their desire to commit as the highway man will resume robbery in that town also if he
crimes is intensified and, moreover, they come out as skilful is left free there. Hence banishment must be coupled with
3
criminals. When they enter the social life again they pose a serious impnsonment.
threat to peace and tranquillity. This is a fact admitted by all. The punishment of banishment as explained above is similar
But can anybody imagine that a man with amputated limbs would to that of committing a convict to a reformatory under the law
commit theft or robbery again or would benefit from his skill in in force. According to this law the convict is confined within a
committing the crime and his presence would pose a threat to the certain place for an unlimited period on condition that the term
peace and tranquillity of the society? of confinement should not exceed that which is determined in
the law. This kind of punishment is actually the application of
467. Banishment
the doctrine of punishment for unlimited period which is the
This punishment is intended for a highway-man when he latest concept in the modem laws.
creates terror on the roads but does not commit murder or robbery. The doctrine of unlimited punishment was introduced in
The reason for such a punishment is that the robber who the modem laws only towards the end and in the beginning of
simply causes terror without robbing or committing murder actually the nineteenth and twentieth centuries whereas the Islamic Shariah
wants his robbery to be famous. He is to be punished by expulsion had enforced this doctrine Thirteen Hundred years ago. The proof
from the land in order to throw him into oblivion and obscurity. of this is the punishment of banishment discussed above. If anybody
Another possible reason is that since the highway man terrorizes claims that the doctrine in question stemmed from the modem
wayfarers and causes breach of peace, he is to be banished and operative laws, he should know that it is the same old Islamic
deprived of peaceful life. concept which has been adopted in the modem laws. And whoever
Whatever the reason, the Shariah curbs the criminal thinks that the Shariah punishment and concepts are out of time
motivation by preventive motivation. Now, if the highway-man with the modem age, should know from what has been stated
thinks of spreading terror for celebrity, he will at the same time above and from what is to be discussed in the sequel that the
think of the total obscurity resulting from the punishment of his Shariah punishments are quite in harmony with the modem era.
offence. When he considers to terrorize the people and cause
1. Some jurists hold that he should be banished from Darul Islam to Darul Harb (non Islamic
breach of peace, he would also think of his own expulsion and territory) but this is incorrect
consequent deprivation of peace anywhere. This ideational process The distance of nearest town is a day’s journey with moderate pace; as is the position of
would result in the domination of preventive factors over the Imam Malik, Shafi 'ee and Ahmed, but according to Imam, Abu Hanifa, it is three days *
journey while some other jurists fix seventeen miles.
perpetral criminal motivation. Thus the Shariah punishment in
Sharh Al Zurqani, Vol. 8, P. 110; Hidayat-ul-Mufiahid. Vol. 2, p. 381; Asna-ul-Matalib
question is grounded in human psychology. Vol. 4, P, 154;AI-Mughni Vol 10, P.313.

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 F. PUNISHMENT OF APOSTASY AND Confiscation of Property
REBELLION Subsidiary punishment for apostasy is confiscation of
property. However, the jurists differ on this question. According
468. Punishment of Apostasy to Imam Malik and Imam Shafi‘ee and the dominant position
There are two punishments of apostasy: the one is primary taken by the Hanbalites, the entire property of the renegade should
punishment which is death penalty and the other is subsidiary be confiscated. On the contrary, Imam Abu Hanifa and some of
which is the confiscation of property. the Maliki school hold the view that only that portion of the
.
(1) Death Penalty. The Shariah prescribes capital renegade’s property is to be confiscated which he may have acquired
punishment for apostasy. The argument advanced in the Holy after turning an apostate. Property acquired by him prior to
Quran in this context is this: renunciation of Islam belong to the heirs of the renegade. However,
“And whoso becometh a renegade and dieth in his disbelief, according to another view attributed to Imam Ahmed, property
such are they whose works have fallen both in world and acquired after apostisation will not be taken over provided that
the Hereafter. Such are rightful owners of the Fire: They the heirs of the offender believing in the religion (or for that
will therein.” (2:217) matter any atheistic system) to which the apostate changes over
Besides, the Holy Prophet (S.A.W.) enjoins: exist. But this tradition is of incomplete chain.
“Whoever changes his religion, kill him.” 469. Punishment of Rebellion
Apostasy in the Shariah means abandoning the Islamic faith The Shariah has laid down capital punishment for rebellion.
after embracing it. In this sense only a Muslim can be guilty of The basis of this punishment is the following divine decree:
apostasy. “And if two parties of believers fall to fighting, then make
The raison d’etre of capital punishment for apostasy in the peace between them. And if one party of them doeth wrong
Shariah is that apostasy is repugnant to the faith of Islam on to the other, fight ye that which doeth wrong till it return
which the Islamic society is founded. If this offence is taken unto the ordinance of Allah.” (49:9)
lightly, the collective system of Islam may collapse. The severe Besides, the edict of the Holy Prophet (S.A.W.) in this
punishment laid down for it aims at the total elimination of apostasy regard is as follows:
on the one hand and warning and preventing others from committing “Whoever makes commitment of allegiance to his Imam is
it Obviously, capital punishment serves as a more effective deterrent under the obligation to obey him as far as possible. If
than any other punishment. Whatever the factors inciting anyone tries to wrest the leadership of his Imam, behead
commitment of the offence, capital punishment stirs up the
him”
preventive factors in the human psyche and a man refrains as
Again, says the Holy Prophet (S.A.W.):
often as not from committing the offence.
“Such and such offence will be committed. Listen, If my
Most of the modem laws in operation ensure security of
Ummah is united and then some one rises against it, behead him,
the social system by prescribing harshest punishment for those
whoever he may be.”
who violate and destroy the system. The first of such punishments
is death penalty. In other words, modem laws lay down the same The target of the offence of rebellion is the governmental
punishment for causing disorder, safe guarding the social system set up and the rulers. The Shariah adopts a strict attitude in this
as does the Islamic Shariah. respect, because leniency would result in disruption and disorder,

I. Al-Mughni. Vol. 7. P.174.

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resulting finally in the disintegration of the social system. No according to usage and payment unto him in kindness. This is an
doubt execution is the most effective measure against rebellion, alleviation and a mercy from your Lord. He who transgresseth
for the motive of this offence is greed and lust for power. after this will have a painful doom.
All the countries of the world today award capital punishment And there is life for you in retaliation, O men of
for rebellion. This is the very punishment prescribed by the Shariah understanding, that ye may ward off (evil).” (2:178-179)
for the same offence. This is another divine decree in respect to qisas’.
“And We prescribed for them therein: The life for the life,
SECTION n and the eye for the eye and the nose for the nose and the
ear for the ear, and the tooth for the tooth and for wounds
PUNISHMENTS PRESCRIBED FOR QISAS retaliation. But whoso forgoeth it (in the way of charity) it
AND DIYAT CRIMES shall be expiation for him. Whoso judgeth not by that which
Allah hath revealed, such are wrong-doers.” (5:45)
470. Various Punishments The divine decree is substantiated by the edicts of the Holy
As has already been stated, the crimes involving qisas Prophet (S.A.W.):
(retaliation) and diyat (blood money) are as under: “Whoever murders a believer without any reason, he shall
be killed in retaliation thereof, unless the victim’s lawful
(1) Intentional or Felonious Homicide.
heirs forgive him.”
(2) Quasi Intentional Murder
Again,
(3) Unintentional Homicide.
“Whoever is murdered, the members of his or her family
(4) Intentional Infliction of Wound and have the choice either to retaliate or accept blood-money.”
(5) Unintentional Infliction of Wound. No punishment better than qisas has ever been prescribed
The punishments laid down for the above crimes are as in antiquity or in modem times. Can there be a more just punishment
follows: than that which is identical with the criminal act? It is also the
best punishment for ensuring collective peace and security, for if
471. Qisas
the offender is sure that he would be punished in accordance
The Islamic Shariah has prescribed qisas or retaliation as with this offence, he would generally abstain from committing
the punishment for intentional homicide and wound caused the offence. 1 * %■ ? M
intentionally. The meaning of qisas is that the offender is to be It is the offender’s will to struggle for existence and the
awarded punishment identical with his offence: he would be killed desire to dominate which incites him to commit murder or cause
or wounded in the same way as he kills or wounds his victim. injury. Now if the offender is dead sure that he cannot save
The punishment of qisas owes its origin to the Quran and Sunnah.
himself by killing his victim, he will refrain from taking his life
Says Allah:
in order to preserve himself. Besides, if he is certain that the
“0 ye who believe! Retaliation is prescribed for you in the person whom he overcomes by his criminal act today will retaliate
matter of the murdered; the freeman for the freeman, and the by lawful means tomorrow, he will not make such a criminal
slave for the slave, and the female for the female. And for him
attempt. We observe instances of this in everyday life. For example,
who is forgiven somewhat by his (injured) brother, prosecution
when a habitual wrong-doer finds that his opponent is stronger
1 If the rebel is apprehended and imprisoned, his execution is Unwarrantable, except, of than he and is sure to return excess for excess, he would cool
course, be may have killed some one during rebellion.
down and refrain from committing any transgression and doing

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any thing that may lead to a clash. Similarly an armed person
would desist from committing any excess when he finds that his to the same extent. This is the logical subtlety and technical
opponent too is armed and able to retaliate. Similarly wrestlers delicacy of the Shariah, which still remains out of the reach of
and boxers never challenge for a bout to stronger opponents, but the modern law. It is certainly going to incorporate this fine,
they never hesitate to challenge opponents whom they believe to delicate and logical aspect of the Shariah by-and-by, for the
be weaker. This is characteristic of human nature and the Shariah springs of all the laws of the world lie in logic and as the man­
has prescribed its punishment of qisas on the human nature. Thus made laws acknowledge the punishment of retaliation and apply
the opposite motive originating from the punishment of qisas it to homicide, and as logic demands that it should also be applied
to the offence of injury, the modern laws may adopt qisas, at any
curbs criminal motivation and prevents the commitment of offence.
stage, inasmuch as they have already incorporated its preliminaries
This is in harmony with modem psychology also.
and causes.
Although the modem laws in operation do acknowledge
In retaliatory punishment, the victim and his lawful heir
the qisas punishment, yet they apply it to the offence of homicide
have the right to forgive the offender. Hence if they do forgive,
only to the exclusion of the infliction of wounds. The offender
the punishment of qisas would stand invalidated. This remission
guilty of wounding is only fined or imprisoned or is awarded
may either be without compensation or involve blood-money.
both these punishments. No doubt, the Shariah has taken a more
But pardoning or remission does not mean that the person in
logical position in placing at par homicide and injury in the
authority cannot award appropriate penal punishment.
determination of punishment thereof. The modernists, on the
As a rule, the Shariah does not allow the victim the right
contrary, draw a line of distinction between the nature of homicide
to forgive the offender in the case of punishment for general
and injury and have thus grossly deviated from the nature of
offences. But in the case of offences involving qisas and diyat
things. The reason for the treatment of homicide and injury at
(blood-money) such right has been provided for as an exception,
par by the Shariah is that both the offences belong to the same
for these offences are intensely related to the person of the victim
category and the same motive is at work behind their occurrence.
and have far greater bearing on him than on collective security
In most cases injury precedes homicide. What actually happens
and tranquillity. The Shariah sees no danger to peace and tranquillity
is that death results from some wounds and injuries while some
by pardoning on the part of the victim or his lawful heir, for the
wounds heal up and the injured person recovers. In such a case
offences of killing and wounding do not pose a threat to collective
the offence is known as causing wound or injury, while in the
I peace and tranquillity to the extent that they are dangerous to the
case of death, the offence of homicide takes place. When we see
individual. The reason is that everybody is frightened by the
that both the offences belong to the same class then the kind of
I murder or injury to a man with whom he has nothing to do, nor
punishment for both should be the same as well. However, since
does everybody fears that if such and such person has been wronged,
the consequence of one offence is different from the other, the
he too will be wronged, for the offences of homicide and causing
quantum of punishment should also differ and then the quantum
wound and injury are committed with purely personal motives;
so determined should not be increased or decreased. In short,
whereas everybody fears a thief because he knows that the thief
both the offences are of identical nature and their origin is the
does not need the goods of any particular person, but simply
same, i.e. wound. Hence the nature of their punishment is identical
needs goods wherever he can get it.
i.e. qisas or retaliation. The only difference is that one crime
culminates in homicide and the offender is consequently sentenced Even if we admit that owing to the power conferred on the
to death and the other crime culminates in wounding the victim victim or his lawful heirs to forgive, the offender is likely to
for which the offender himself is liable to the infliction of wound adversely affect the public peace, such a situation may arise
when the power so conferred is exercised excessively. But this is
ah

61
most unlikely because sanguinary offence in itself is of personal
On the contrary, the modem law has chosen extremely wrong
nature associated with the victim and it demands severe action
and inappropriate occasion for the application of the above principle.
rather than remission. The actual urge to take vengeance is stronger
In the case of adultery the right .to pardon would result in the
than the urge to forgive the offender. In other words, the strong
dissemination of evil and corruption and the disintegration of the
relationship of the offence with the victim is a guarantee against
family system. The modem law has allowed this right with a
the excessive use of the right to forgive, and this is the fact
view to restore harmony between man and wife for the time
which ensures that remission by the victim will have no impact
being. But if the family breaks up, an important pillar of the
on the public peace.
social edifice would collapse, whereas law is not meant to
In allowing the victim the right to forgive, the Shariah has disintegrate the society. It is, on the contrary, designed to strengthen
taken a logical position, for punishment is primarily designed to and sustain the social order.
eradicate crime, but in most cases punishment does not impede
Since qisas is the punishment of felonious homicide and
the incidence of crime, whereas remission as often as not serves
wilful infliction of injury, its sentence can be passed only if it is
as a deterrent thereto. The offender is pardoned only when the
possible to carry out the sentence and the conditions thereof
parties are reconciled, the minds are purged of animosity and the could be fulfilled. If there is no possibility of enforcing qisas
criminal motivation peters out. Thus pardon virtually plays the
and fulfilling the conditions prescribed for it, then the sentence
role of punishment and succeeds in achieving the result which of qisas would be invalid and would be replaced by blood-money,
punishment fails to achieve. Looked at logically, it may well be even if the victim or his guardian does not demand blood-money,
said that the offences of homicide and infliction of injury are because diyat or blood-money is one of those punishments whose
offences of personal nature, whose springs lie in the victim’s enforcement does not depend on the demand of the individuals.
person and whose motivation too are personal. Besides, these
There is nothing in the Shariah that stands in the way of
offences have much greater impact on the life and person of the
awarding ta'zeer punishment to the offender in the interest of
victim than on the public peace. Hence owing to the close
public good in case if there is no possibility of putting into effect
relationship between the victim’s person and the crime, it is the
the sentence of qisas. As a matter of fact, Imam Malik regards
right of the victim to be taken into consideration in awarding the
the ta'zeer as essential in every case of homicide and injury
punishment.
wherein qisas stands invalidated or its sentence cannot be translated
Just as the Shariah has given the victim the right to pardon ..1
into action.
the offender, so also do the modem laws acknowledge the right
At any rate, qisas is the basic punishment in the case of
in, question, although these laws do not apply this principle to
felonious homicide and wilful infliction of wound and blood.
those offences to which the Shariah extends. For instance, the
Money and ta *zeer are alternate penalties, which replace qisas
modem laws acknowledge the right of the husband to his wife
when it is inhibited or stands invalidated as the result of remission.
guilty of adultery. Hence if the Shariah has allowed the victim
the right of remission, there is nothing novel about it. This principle 472. Diyat or Price of Blood.
has been accepted in the modem laws also. However, the Shariah Diyat has been prescribed by the Shariah as the basic or
stands out in this respect vis-a-vis the modem laws in choosing substantive punishment for quasi-intentional and inadvertent
the most appropriate object for its application; for grant of the homicide or infliction of wound. The source of this punishment
right to pardon in homicide and injury would result in mutual is also the Holy Quran and Sunnah Says Allah:
affection and harmony and motives of revenge would be dissipated.
Consequently the incidence and virulence of crime would decline.
I. Mawahib-ul-Jaleel, Vol. 6, P.268.

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 “It is not for a believer to kill a believer unless (it be) by case of wounds, Imam Shafi‘ee and Imam Abu Hanifa hold that
mistake. He who hath killed a believer by mistake must set the female’s diyat is half of the male’s, whereas according t
free a believing slave and pay the blood-money to the family Imam Malik and Imam Ahmad the diyats of male and female is
of the slain, unless they remit it as a charity.” (4:92) equal, to the extent of one third; but, however, in case the diyat
The Prophet (S.A.W.)’s verdict in this connection is as increase, the female’s blood price would be half of male’s. The
follow: jurists differ on the quantity of non-Muslim’s diyat. Some jurists
“Whoever is killed inadvertently as by flogging or beating hold the diyat of a Muslim and non-Muslim to be equal. Others
with a stick or being hit by a stone, his blood-price is a differentiate between them.
hundred camels.” The Shariah draws a line of distinction between intentional
Diyat is the fixed blood-price which is taken from the offender or felonious homicide and quasi-intentional homicide. It prescribes
and given to the victim or his lawful guardian. Although this qisas for the former and heavy diyat for case of felonious murder,
price is received as a punishment, it is never deposited in the but does not do so in the case of quasi-felonious murder. The
state treasury, but becomes the property or asset of the victim. difference between the two homicidal acts inhibits punitive equality
Looked at thus, it is somewhat similar to compensation. It is for in the two distinct cases of homicide. Besides, the punishment of
this reason that it varies according to the extent of injury and if qisas cannot be applied to quasi-intentional homicide, for qisas
the commitment thereof is intentionally or inadvertently. But in requires complete consistency of the criminal act with the
spite of this close affinity it will be wrong to regard diyat as punishment thereof. But as to quasi-intentional homicide, the
identical with compensation. It is in reality a criminal punishment, victim is not murdered intentionally whereas the offender cannot
the sentence whereof does not depend on the demand of individuals. be put to death without intention. Thus the punishment does not
Thus it constitutes the property of the victim side by side with correspond to the crime. Hence justice and logic both demand
being a punishment or rather it is both the property of the victim that the punishment for intentional homicide should be distinguished
and a punishment. It is punishment because it has been prescribed from the punishment for quasi-intentional homicide.
in lieu of an offence. If the victim forgives the offender, the The Shariah also differentiates between purely intentional
latter can be awarded an appropriate ta 'zeer punishment. Had it and purely inadvertent offences. Thus the punishment prescribed
not been a punishment, the sentence thereof would have hinged for the former is qisas and that prescribed for the latter light
on the claim of the victim and no ta 'zeer punishment would have offence diyat. In this distinction it has been kept in view that the
taken its place in the case of its remission by the victim. It is a offender commits intentional offence wilfully. He thinks over it
compensation because it is purely the property of the victim and and procures the requisite means to commit so that he may achieve
if he forgoes it, he will not be within his right to give a verdict. something substantial or intrinsic for himself. On the contrary,
Diyat is a punishment having a single limit and the court the offender does not commit inadvertent offence wilfully. He
can neither enhance or diminish it. Diyat for a quasi-intentional neither considers it, nor has he any motive to commit it. In such
offence is different from that intended for unintentional offence.
It is, moreover, different according as the nature and extent of 1. Bada'e-wal-Sana'e, Vol.7, P. 3V2yNihayat-ul-Muhtaj, Vol.7, P. 302.
2. Sharh-ul-Durdeer, Vol.4, p. 248, Al Mughni. Vol.9, P.523.
injury varies. Thus there is no difference between the diyat of a 3. With Imam Ahmed this rule is unconditional, but Imam Malik imposes the condition of
child and an adult, the weak and the strong, the low-brows and the unity of action and unity of occasion (ii) See Sharh-ul-Durdeer, Vol.4, P.249;
Mawahib-ul-Jaleel, Vol.6, PP.264-265.
the high-brows, the ruler and the ruled. However, as regards
4. Bada ‘e-wal-Sana 'e. Vol. 7, P. 255; Sharh-ul-Durdeer, Vol. 4, P. 238; Al Mughni, Vol. 9,
female, all the jurists agree that her diyat is half of a male. In the P. 567; Al-Muhazzab, Vol.2, P.211.

64 65
an offence, the criminal act takes places simply due to the neglect damaging the property of others also is to be undergone by
or carelessness of the offender. His mind is completely inattentive compensating with property. It is beyond doubt that this punishment
to the guilt. It follows then that there are two ingredients that go is enough to warn careless persons and induce them to be careful.
to make up an intentional crime: the one is subjective and the We learn from what has been stated above that diyat is the
other is material. The subjective of psychological element consists common punishment for the intentional offence which does not
of the offender's attention to the offence and material element is involve qisas, the quasi-intentional offence and the offence
the actual criminal deed. As opposed to this, an inadvertent offence committed inadvertently. But the quantum of diyat varies in these
constitutes only the criminal to the exclusion of psychological three cases. For the first two offences, the punishment is heavy
expedient. On this ground the inadvertent offence is not identical diyat, while in the unintentional offence it is light diyat.
with a wilful offence. This is the psychological difference between Diyat, as a rule, consists of a hundred camels. The difference
voluntary offender and an erring offender, which has led to between heavy and light diyat is not that of number but the kinds
differentiation between the two sorts of crimes. The psychological and ages of the camels.
difference between the two kinds of offenders has exactly been Thus, generally speaking, diyat means a hundred camels
taken into consideration in the determination of their punishments, and this is known as complete diyat\ whether it is heavy or light.
for if the voluntary offender is divested of the psychological The blood price less than complete diyat is termed as ‘arsh *.
factors at work behind his offence, he will be at par with the
Thus we speak of arsh for hand and arsh for leg. But in the
offender committing the offence inadvertently, and only the material
common usage diyat is meant by arsh as well.
element would remain in his offence. It is for this reason that the
There are two kinds of arsh. The fixed arsh and the Un­
punishment of intentional crime when remitted has been treated
fixed arsh. Fixed arsh is that the quantity whereof has been
in the Shariah as equivalent to that of the offence committed by
determined by the law-giver, for instance so much arsh for finger
mistake, and has in either case prescribed blood-price. In other
and so much for a hand. Unfixed arsh is that, the quantity whereof
words, in the case of intentional offence, remission is related to
has not been prescribed in the Holy Quran or Sunnah, and whose
the subjective element of the offence. If diyat is also remitted,
amount depends on the discretion of the court. This unfixed arsh
then the two sorts of offences would be inter-related by only
is also known as the ruling of the government or the fair judgement.
their material ingredients.
The Shariah does not prescribe the punishment of qisas for What is subject to diyat?
a sanguinary offence committed unintentionally, for in such an As a rule diyat is imposed on the goods or property of the
offence the psychological motives are absent. In this case the offender, whether it is diyat for life or what is less than life. But
offender does not intend to commit the offence nor does he Imam Malik exempts the arsh for those injuries which involve
contemplate such an act. But since the offence comes about because the loss of the offender’s life and on grounds whereof qisas is
of his negligence and carelessness and since such an offence prohibited; for instance, the dismemberment of the thigh or
results in pecuniary or material loss to the victim or his lawful abdominal injury. In such a case Imam Malik gives the verdict
heirs, the Shariah prescribes a punishment for it on both the that one third of the blood price will be paid by the family of the
grounds, which a man cherishes more than anything with the offender, provided that the offence involved is not proved by
exception of life, i.e. property or something valuable. In other confession.
words, the punishment for negligence is the property which the
I. Sharh-ul-Durdeer, Vol.3, P. 50; Bada ’e-wal-Sana 'e, Vol.7, P. 255; Al Mughni Vol.9, P
people desire to possess and try to acquire and punishment for
488;Al Muhazzab, Vol.2, P.210.

66
Imposition of diyat in case of offending child or lunatic. to the payment of more of the prescribed amount of complete
The jurists differ on this question. According to Imam Malik, diyat, is the more liable to the payment of less amount thereof.
Abu Hanifa and Ahmed, diyat is obligatory for a delinquent If the payment of diyat becomes obligatory for ‘Aaqila
child or lunatic and shall be paid by his family, even if the (the members of family), then according to Imam Malik and
offence is committed intentionally, for in the opinion of these Imam Abu Hanifa the offender will bear the amount of diyat as
authorities, the intentional offence of the child or lunatic is actually much as any one individual of the *Aaqila (family) is subject to.
inadvertent offence. The reason is that intention in such a case Imam Shaffee and Imam Ahmed, however, hold that when diyat
is no volition worth the name. Hence intention will be conjoined becomes obligatory for the family, the offender is not under
with inadvertence. The school of Imam Shafi* ee, however, holds obligation to pay it.
two opinions in this regard. One which is preferred to the other As a technical term of jurisprudence ‘Al ‘Aqila' applies to
is the same as the above, while according to the other opinion those people who can bear the burden of diyat, for diyat is a term
the intention of a child and lunatic will be treated as intention exchangeable for ‘Aql inasmuch as it silences the lawful guardian
only; for although qisas is not enforced for the intentional homicide of the murdered person or as such people save or protect the
committed by them, their corrective chastisement is legitimate. killer. Therefore, ‘Aql in this context means protection.
Hence their intention would be tantamount to the intention of a The Aaqila of the killer are his paternal relatives. The
sensible adult, and their property will be subject to the payment term excludes maternal relations, husbands and other relations
of blood-price. who are not paternal.
The jurists also differ on the question of quasi-intentional Paternal relations include all the kinsmen and relations on
sanguinary offence and unintentional offence of this nature. Imam the father’s side, however remote they may be, for if nearest
Malik holds that one third of the diyat payable by the offender relations do not exist then remote ones will be the lawful guardians.
will be borne by the members of his family while the payment There is no condition here that they will be provisional heirs, but
of the remaining two thirds will be incumbent on the offender. any relative who become heirs after the elimination of ‘hujb9
According to Imam Ahmed, the offender will pay less than one (deprivation from inheritance) fall under the head of ‘aaqila.
third of the amount of complete dipat, while his family members Such relations, nevertheless, will not be treated under the
will pay up to one third or more. Imam Abu Hanifa holds that obligation to pay in compensation such property or assets, whose
the offender will pay less than half of one tenth of the diyat due payment becomes a burden upon them, for diyat is imposed upon
and whatever is in excess of this will be paid by the family the ‘aaqila for no fault of their own and as a help and compassion
members of the offender. Imam Shafi’ee’s position on the other for the offender. Thus the burden of diyat on offender will not
hand is that whatever the amount of diyat, it will be borne by the be reduced to wrong or oppress the non-offender. Had such an
offender’s family in its entirety. He argues that whoever is subject1 23456 oppressive price been warrantable, it would have been tantamount
1. Sharh-ul-Durdeer, Vol. 4, P.210; Al-Bahrul Raiq, Vol. 8, P. 341; Al Mughni; Vol. 9, to the wages of the offender’s crime and to a reward for his evil
P.504.
deed. It such a thing is unwarrantable for the offender, how could
2. AiMuhauab. Vol.2, P.210.
3. It may be noted that Imam Malik does not acknowledge quasi-intention homicide or
it have been warrantable for the non-offender?
injury. According to him an offence is either intentional or unintentional. There is no There is a difference of opinion among the jurists as to the
intermediate offence between the two.
amount of diyat to be borne by each individual. Imam Ahmed is
4. Mawahib-ul Jaleel. Vol. 6, P.265.
5. Al Mughni, Vol.9, PP.505-506.
6. Bada'e-wal-Sana’e, Vol. 7, P.255.
1 Al-Muhazzab, Vol. 2, P.227.

68
69
of the view that this depends on the discretion of the judge who
will fix the amount taking into consideration as to how much The Reason for the Family Bearing the Burden of Diyat.
amount an individual can easily pay. The school of Imam Malik Bearing the burden of diyat by the family would mean that
also holds that one dinar should be imposed on each individual those who are not guilty are to bear the brunt of the offender's
while the school of Imam Ahmed also opines that a well-to-do crime, whereas it is said in the Holy Quran:
person should be required to pay half a mithqal and an individual “That no laden one shall bear another’s load,.” (53:38)
belonging to middle class one fourth of a mithqal. This is also But the question of diyat is an exception to this rule. The
the view of Imam Shafi ‘ee. Imam Abu Hanifa, on the other hand, reason for this is, the circumstances of the offender and the victim’s
says that no individual will be charged more than three or four party. On these grounds such an exception is the demand of
dirhams and there will be no discrimination between the well-to- justice and guarantee of the recovery of the dues. The exception
do and one with moderate income. in question is warranted on the following grounds:
No diyat is obligatory for a destitute woman, child and 1. If we apply the rule in its entirety to this question
mentally deranged person, for imposition of diyat on a destitute and suffer every offender to bear the consequences of his act, the
would be an excess. A woman, child and lunatic have no support. result would be that only the well-to-do would be liable to
However, if these are guilty of an offence, diyat will be recoverable punishment, who are small in number and the poor could not be
from them. awarded any punishment who are in majority. Consequently if
There are two opinions in case the offender has no 'aaqila the offender is affluent, the victim or his lawful guardian will
or he is a destitute or the number of his family members is so receive diyat in full and, in case if he happens to be of moderate
stnall that they cannot bear the burden of the whole diyat: The means, diyat could be recovered partially but if he is indigent, as
first opinion is that the public exchequer will take the place of is mostly the case, the victims will get no diyat at all. Thus there
‘aaqila. If there is no ‘aaqila at all or there is one but the person will be no justice between the offenders and the victims. It is for
concerned is penniless, then all the diyat due from him will be the reason that exemption must be given from the general rule
paid by the public exchequer. If the number of the family members relating to the problem under discussion.
is small and cannot pay the whole diyat, the balance will be paid 2. Although diyat constitutes a punishment yet it is also
by the exchequer. This is the opinion held by the schools of the pecuniary right of the victim or his rightful guardian. Allowance
Imam Malik and Imam Shafi‘ee. The apparent position of the has been made in this blood-price for serving as a fair compensation
Hanafites and the Haanbalites is also the same. The second opinion for the offence. Now if the rule mentioned above is extended to
is that diyat will be recoverable from the assets or property of this case in toto and the accused is declared as liable to the
the killer, for in reality the killer alone is responsible for the payment of diyat alone, then a large number of victims will not
payment of diyat. The family bears the burden simply by way of be able to recover diyat for the amount fixed for full diyat is
helping him. Hence if there is no family, the obligation of the beyond the financial means of a common man. The value of a
payment of diyat would revert to the origin. This opinion has hundred camels come to more than a thousand dinar. Obviously,
been quoted by Imam Muhammad with reference to Imam Abu full amount of diyat is not within the means of an average individual.
Hanifa. Some of the Hanbalites also subscribe to this view. Hence if the rule in question is applied in its entirety in this case
and hold the offender also responsible for the results of his act,
t- Boda'e-watSana'e, Vol. 7, P. 256; A!Mughni, Vol. 9, P.520; Mawahib ul Jaleel, Vol.6,
P: 2&;AI Muhazzub, V<A2, P230. tfd Of . ;/, ; the victim’s party will not be able to recover what is due to
them. In this context, therefore, exemption from the general rule
alone would ensure the realization of their dues by the aggrieved
party.
70

71

1
 It should be taken into consideration here that in the case resulting in his grave mistake. The family system and the social
of intentional sanguinary offences the victims are not always system both stand on the firm basis of natural sympathy and
confronted with such a situation. Here the primary or basic mutual cooperation. It is therefore, incumbent on every individual
punishment is qisas, which is changed into diyat only when the of the family to co-operate with and help all the other members
victim or his lawful guardian forgives the offender. No victim’s of the family and this is also obligatory for every individual of
part will remit qisas, unless the recovery of diyat is guaranteed. the society. Making first the family and then the society bear the
If anyone remits qisas and chooses to receive diyat in lieu thereof, consequence of an individual’s inadvertence brings effectively
and the assets or property of the offender turns out to be less into play the spirit of mutual health and fellow feeling. In fact
than the value of diyat, the case is open to the option of the it renews and reaffirms this spirit each and every moment. Thus
victim or his lawful guardian anyone of them is not to suffer a whenever an individual commits one of the unintentional offences,
loss on account of the situation wherein they place themselves. the offender contacts members of his family, and the family
3. The impact of burden on ‘aaqila (family) is associated members in their turn contact members of other families and co­
with inadvertent or quasi-intentional offences, (the latter being operate in this way in the collection of the blood-price. As the
correlated with inadvertent crimes). The offences committed unintentional crimes are very common, reciprocal expression of
unintentionally owe themselves to inattention and carelessness, sympathy and mutual contact and cooperation among the individuals
and both these weaknesses are the result of the lack of right of the society continuous unbroken.
guidance and bad training. Therefore, the people who will be 4. As the result of burdening the offender and his family
held responsible for the guidance and training of the individuals with payment of the diyat due from him, the offenders, in general,
are those related to the offender by blood. As the individual is are treated in a human and benign manner, their punishment is
influenced by the member of his family and bears close affinity mitigated and they are not wronged or oppressed. The reason for
to them in all matters, his negligence and carelessness would be this is that the offender whose family bears the burden of his
attributed to the influence of the family. Family, in its turn, is diyat would at some stage play himself the role of bearing the
subject to the impact of the society. Hence negligence and burden of the diyat due from another individual and since to err
carelessness would be finally treated as social legacy. is human, it is also most likely that the offender would share the
Hence it is necessary that the family and the society both burden of the diyat of another family member to the same extent
should bear the consequences of the individual’s mistakes. If the as this member bears the burden of the offender’s diyat.
‘aaqila cannot afford it to do so, then the society as a whole 5. The fundamental principle of the Shariah is to protect
should bear the burden thereof. the life of the people and to guarantee the safeguard against the
We may say that inattention and carelessness spring from loss thereof without any reason. That is why diyat has been
the consciousness of honour and power and this state of mind prescribed in lieu of life and its loss without any rhyme or reason.
stems from the conjunction of the family and the society, for it Now if every offender alone is held responsible for the payment
has been observed that those who have no family are more careful of his diyat and he is unable to pay it, the victim’s life would
and cautious than those with a family and those with a small turn out to have been lost. Hence exemption from the general
family are more careful and cautious than those having a larger rule is imperative, so that the life of the people may not be lost
family. Hence it is necessary for the family and the society that in vain.
they should bear the brunt of the individual’s inadvertence because In short, these are the justifications for the exemption from
they are the ultimate source of the carelessness and negligence the general rule. This is the only exception to the divine decree
'That no laden one shall bear another’s load9. In the modem

72
legal terminology this is solitary exemption in the individuality have adopted this concept and have earmarked a special fund for
of punishment. The Shariah has allowed this solitary exemption the purpose known as the mulct fund. In this fund those fines are
because it ensures mercy, justice and equality. It guarantees deposited which the courts impose. Income from this fund is
protection of life and complete realization of what is due. reserved for the payment of the mulct of those offenders whose
The question is if the system of 'aaqila can be established possessions and assets are not sufficient to pay the mulct due
in present age, wherein justice and equality between the offender from them. , » bdtbdr.rr.
and the victims is ensured. It is not possible to establish such a The part of 'aaqila system adopted by some European
system because it presupposes the existence of family system. countries is meant to achieve the objectives which the Shariah
But this system has disintegrated. Whatever remains of it consists * takes into account. Now if the system could be established in its
of too small a number of individuals to make them bear the present form -in Europe, it is actually our own system which
burden of diyat. The existence of 'aaqila is possible only when ought to be established among the Muslims, so that the aims of
the people guard their descents and relationships and remain clung the Shariah may be fulfilled under our circumstances.
to their paternal tribes and clans. But in most countries such a
473. Expiation or Penance (Kaffarah)
situation no longer exists. For this reason there is no alternative
but to accept either of the two opinions of the jurists: Either the The Quranic injunction with regard to expiation is as under:
offender be suffered to bear the entire burden of diyat or diyat It is not for a believer to kill a believer unless it be by a
will be paid cut of public treasury. mistake. He who hath killed a believer by mistake must set
If the whole burden of diyat is placed on the shoulders of free a believing slave and pay the blood-money to the family
the offender, the victim’s life would have been wasted (i.e. the of the slain, unless they remit it as a charity. If he (the
offender will not be able to pay diyat) because the offenders are victim) be of a people hostile unto you, and he is a believer,
generally poor. Obviously this is not consistent with the Shariah. then the (penance is) to set free a believing slave. And if
Besides, there is no justice and equality in such a situation. he cometh of a folk between whom and you there is a
On the other hand, should we accept the other opinion, the covenant then the blood-money must be paid unto his folk
public exchequer will be required to bear the burden of diyat. and (also) a believing slave must be set free. And whoso
This would meet the requirement ofjustice, security of life would has not the wherewithal must fast two consecutive months.
be ensured and the aim of the Shariah fulfilled. Hence the burdening A penance from Allah. Allah is Knower, Wise.” (4:92)
of the public exchequer should not stand in the way of the Penance is basic punishment, i.e. setting free a believing
achievement of the objectives of the Shariah. The government slave. If anyone does not have a slave or the price of a slave, he
may rather levy a tax or earmark certain amounts realized through should fast for two months consecutively. In other words, fasting
certain fines for the payment of this kind of compensations. is an alternate punishment. It is awarded when the primary
Moreover, if modem states assume the responsibility of providing punishment cannot be enforced.
social security for the indigent, who can’t take upon themselves It appeals from the Quranic verse cited above that penance
the responsibility of the payment of compensation on behalf of is prescribed in the case of an unintentional offence and also the
the victim and his oppressed heirs? consensus of the jurists is that in such a crime penance is essential.
Some European countries like Germany, Italy and Yugoslavia It is also essential in the case of quasi-intentional offence because
this kind of offence, too, is unintentional because the offender
1. Please see article No.281. does not actually intend to kill the victim when? committing the
2. A! Mausoat-ul-Janai ’ah, Vo 1.5. P. 124. crime. .t

74
75
 As regards expiation for intentional homicide, the jurists
of the view that penance is obligatory only for an adult Muslim,
are not unanimous. Imam Shafi*ee is of the view that penance is
for Shariah (laws) does not address a child or an insane person
obligatory in the case of felonious homicide, because since it is
essential for inadvertent homicide in spite of the fact that no sin and it is not obligatory for a non-Muslim because it comprises
is involved, it should be all the more so in the case of intentional divine worship. It is both worship and penalty.
homicide because it constitutes grievous sin. One of the opinions Imam Shafi‘ee and Imam Ahmed argue that expiation or
attributed to Imam Ahmed is in harmony with Imam Shafi‘ee’s penance is a substantial punishment (involving things having value)
opinion, while the position of his school, is that intentional homicide and although an insane person or a minor is not liable to be held
does not involve penance because the Quranic injunction relating responsible for his acts on criminal grounds, yet they serve as a
to such homicide is devoid of any reference to penance. Imam guarantee against those acts and that expiation is obligatory for
Abu Hanifa holds that intentional homicide does not involve a non-Muslim, for the Quranic injunction is of a general nature.
penance, inasmuch as penance is one of the prescribed punishments Fasting.
and as such it necessarily requires a Quranic provision. As for
The alternative to the primary punishment of setting a slave
Imam Malik, he does not consider penance obligatory in the case
free is the penalty of fasting. The latter punishment, however,
of intentional homicide but at the same time he holds that penance
will be obligatory only when the killer does not have a slave to
is desirable for intentional homicide when retaliation (qisas) is
set free or money in excess of the value of the slave, leaving the
not carried out, whether the cause of such omission is an inhibitory
amount required to meet his own basic needs. If he possesses a
injunction of Shariah or remission on the part of the lawful guardian
slave or equivalent amount, then fasting is not obligatory.
of the victim.
Imam Malik, Imam Shafi ‘ee and Imam Ahmed do not 474. Disinheritance.
differentiate between direct and indirect offences of murder Deprivation from inheritance is a subsidiary punishment. It
involving obligatory penance. Imam Abu Hanifa, on the other is applicable to the offender as a penalty ancillary to the punishment
hand, holds that no penance is obligatory in cases of homicide of homicide. The source of this penalty is a saying of the Holy
committed indirectly, whatever the kind of such a homicide, even Prophet (S.A.W.) which is as under:
if it is unintentional murder.
“A killer has no share in patrimony (inheritance)99.
Who is liable to penance? Again, . r,
According to Imam ShafFee and Imam Ahmed penance is “No right of inheritance is given to a killer subsequent to
obligatory for every murderer whether he is adult or minor, sane the anecdote of a killer in sura Al-Baqara."
or insane, Muslim or non-Muslim. Imam Malik maintains that it Divergence of opinion among the jurists with regard to
is obligatory for minor, adult, sane, or insane provided that the inheritance is so great that no two schools are in agreement. For
offender is a Muslim. There is no penance for a non-Muslim instance, Imam Malik holds that commitment of intentional
because penance involves divine worship. Imam Abu Hanifa is homicide is rebellion entailing disinheritance whether the murder
I. Al Muhazzab, VoL2, P334. 2. Al Mughni, Vol 10, P.40. is committed directly or indirectly and whether or not retaliation
3. Al Bahr-ul-Raiq, VoL8, P291. 4. Mawahib-ul-Jaleel, Vol. 6, PJ68. against the killer has been carried out or qisas is invalidated for
5. Sharh-at-Durdeer. Vol 4, P. 254;AJBahr-ul-Raiq, Vol.8, P. 293^1-MughnL Vol. 10, P.
37;A1 Muhazzab, VoL2, P.234.
any reason whatsoever. But in the case of unintentional homicide
6. ALMughm, VoLlO, P. 38;Nihayat ul-Muhtaj, Vol 7. the killer is not deprived of inheritance. He can, however, be
7. Sharhul-Durdetr, VoL4, P. 254;Mawahibul Jaleel Vol.6, P.286.

76

77
deprived of diyat obligation on account of murder. According to self-defence or retaliation. The explanation offered by Imam
the predominent opinion of Malikite school a child and an insane Ahmed's school to the disinheritance of a child and a person of
person, too, would be disinherited. unsound mind is this that the act committed by either of them is
In the opinion of Imam Abu Hanifa, if murder is committed unlawful, but neither is liable to had punishment because of
directly and as an act of oppression, the killer will be deprived disqualification. But disqualification from qisas is no obstacle to
of inheritance, whatever the kind of murder he is guilty of. But disinheritance. Therefore, to be on the safer side, a child and an
a child and a person of unsound mind will not be deprived of it. insane person guilty of murder should be deprived of patrimony
The jurists belonging to the school of Imam Shafi*ee also in order to safeguard the life of the people.
differ among themselves on the question of disinheritance. Some 475. Exclusion from Will
of them differentiate between the homicide which it is impossible
Exclusion from will is a natural punishment originating
to justify on grounds of Shariah and the homicide warranted by
from the following saying of the Holy Prophet (S.A.W.):
it. If it is not possible to treat a homicide as legitimate, the killer
“Bequest in favour of a killer is not right.”
according to this group stands disinherited, for the victim in such
Again, says the Prophet (S.A.W.):
a case is murdered wrongfully. If the murder could be justified
“There is nothing for the killer.”
by the injunction of the Shariah, the killer according to them
does have the right to inheritance because the victim is killed
Nothing here applies to both patrimony and will.
legitimately. Some jurists hold that if the killer is accused of
murdering the victim because he wanted to acquire patrimony The jurists differ on the interpretation as well as applicability
before long, he will be disinherited, just as one guilty of of both these edicts. The Malikites draw a line of distinction
unintentional homicide or as one against whom the judge gives between intentional and unintentional homicide in this regard.
verdict on his offence havings been proved, for the charge is They are agreed that unintentional homicide does not debar the
brought against the killer of acquiring patrimony earlier than it killer from inclusion in the will and, therefore, he can legitimately
falls due. If such a charge cannot be levelled, then the killer does be given a share in property bequeathed, if the killer does not
not lose his right of inheritance, just as the charge of adultery know that he is his killer. Even if he knows that he is the killer,
against the heir is established on his own confession of the guilt. it is right to bequeath to him both property and blood-price. But
so far as the intentional homicide is concerned, the Malikites
But the preferable opinion of the Shafi‘ee school is at variance
disagree. Some of them opine that if the victim or the person
with the two views mentioned above. According to this opinion,
murdered did not know that the offender was his killer, then
the killer stands disinherited in all cases, whether the homicide
bequest is not valid. However, if the victim knows that he has
committed is intentional or unintentional, the killer is of sound
been murdered by the killer and decides to include him in his
or unsound mind, minor or adult. The jurists holding this opinion
will, then bequest of property is legitimate but that of blood­
maintain that the object of disinheritance is to curb the heir’s
price is invalid, provided that he does so after the offence has
means of acquiring patrimony earlier than it devolves upon him.
been committed. But bequest of blood-price would not be legitimate;
The position of Imam Ahmed is that unjustifiable homicide for diyat or blood-price is an asset * which becomes obligatory
alone annuls the right to inheritance and legitimate homicide after the death of the victim. Besides, if the bequest is made
does not stand in the way of inheritance, for instance, killing in before the commitment of murder, then such a bequest will be
1. Sharh-ul-Durdeer, VolA, P. 254^awahih-ul-Jaleel, Vol.6 P. 286. invalidated following intentional murder, except that the victim
1 X/ Bahnd-Raiq, VoL 8, PP.488-500.
1. Al Iqna, Vol.3, P. 123; Majalla-tul-Qanoon wal Iqtisad, Vol. 6, P. 586.
3. Al Muhiazab, Vol.2. P.26.

78 79
wishes to keep it up. There are others who hold that bequest in
favour of a killer is warrantable whether or not the victim was
in the know that he was his killer. Moreover, bequest is valid
whether it is effected before the murder or after it.
Imam Abu Hanifa is of the view that a killer stands
SECTION III
disinherited whatever the nature of homicide; provided that it is
committed directly and wrongfully and that the killer is adult PUNITORY EXPIATIONS
and a person of sound mind. According to Imam Abu Hanifa if
the lawful heirs of the victim permit, the bequest would be valid 476. Expiation (Kaffarah) is the punishment prescribed for a sin.
but Imam Abu Yousuf opines that the bequest would be invalid It is meant to ward off the evil effects of a sin or to atone
even if the victim’s heirs are agreed, because the obstacle to for a sinful deed. Expiation, in reality, is a sort of worship; for
bequest is homicide and not the heirs’ interest. it consists in setting a slave free, feeding the poor, or fasting. If
As regards the school of Imam Shafi‘ee, there are two Kaffarah is prescribed for or in lieu of an act, it is purely in the
divergent views. First, bequest in favour of a killer is unwarrantable. nature of worship; for instance, if a person does not have the
This position is taken by two groups holding different opinions. strength of fasting, he is to feed the poor instead. However, if it
One group would not acknowledge the legitimacy of bequest becomes obligatory as the result of a sin, it is purely in the
despite the heir’s permission on the ground that bequest is inhibited nature of criminal punishment, for instance Kaffarah prescribed
by homicide and not by any consideration of the heirs’ interest. for murder committed inadvertently. Thus expiation, as laid down
Hence the permission of the heirs amounts to a gift devoid of the in the Islamic Shari'ah, is two-sided: criminal and religious as it
conditions of a gift. The other group opines that with the permission is both punishment and worship. We may term it as punitory
of the heir’s bequest in favour of the killer is valid. worship. ,
According to the other view of the Shafi‘ee school, bequest Expiations are those penalties whose quantum has been
fixed by the Law-giver having laid down the limitations thereof.
in favour of a killer is valid in all circumstances and is not
Expiation is obligatory only in matters wherein the Law giver
subject to the heirs’ permission.1 23*
has declared it obligatory by an unambiguous edict.
The offences for which expiation is imperative are as follows:
1) i Breaking the fast.
2) Violation of the conditions of 'Ahram.9
3) Breaking a vow. . ~
4) Sexual intercourse during menstrual period.
5) Sexual intercourse in the state of ‘zihar9 (what is
tantamount to the effect of divorce particularly saying
to one’s wife, “you are like a mother to me.”)
6) Homicide
Expiation is not the same in the case of all these offences.
1. Mawahib-ul-Jaleel, Vol. 6. P. 3M;Sharh-ul-Durdeer, Vol. 4, P. 379. It varies with the kind of sin and different in respect of nature,
2. Bada'e-wal-Sana’e, Vol. 7, P. 339-340. quantum and the method of atonement.
3. Al Muhazzab Vol. 1, P. 457; Al Aqna ’a Vol. 3, P. 59; Al Sharh-ul-Kabeer, Vol. 9, P. 424-
425. In respect of certain offences expiation is coupled with

80
81
some other prescribed punishment. There are other offences that
involve an unprescribed punishment along with expiation, such
as ta'zeer, for instance in the case of zihar.
The expiations laid down by the Shariah as punishments
are: setting a slave free, feeding the poor, clothing the poor and SECTION IV
fasting.
First, setting a slave free. There are specific conditions of PENAL PUNISHMENTS OR TA‘ZEERS
this expiation. It will be out of place to mention them here.
Besides such conditions, it is stipulated that the slave to be freed 477. The Nature of Ta‘zeer.'
must be in excees of the master's requirements. But if no surplus Ta'zeer means chastisement prescribed for such offences
slave exists and the master has extra amount of money equivalent as do not involve hudood, i.e. offences for which the Shariah
to a slave's price, he should pay it as a penance. does not lay down specific punishments.
In this age of freedom when the institution of slavery does Ta'zeers are a set of unspecified punishments which range
not exist, expiation should be made in surplus cash possessed by from minor punishments such as admonition and warning to severe
the master equal to the price of a slave. punishments like lashes and even capital punishment in the case
Second, feeding the poor. Feeding as in expiation varies of murder. The court is empowered to award any of such
with the nature of offence. For instance, expiation for the violation punishments as it deems fit keeping in view the psychological
of oath is feeding ten destitutes and breaking a fast entails feeding condition and the background of the offender.
sixty destitutes. With the exception of offences involving hudood, qisas
Feeding must be with the average the sinner might be used and diyat for which specific punishments have been laid down,
to feed his family members. It must be done one and the same penal punishments may be awarded in all the offences. These
time. punishments also constitute basic punishments in the case of
Third, clothing the poor. This is prescribed only for breaking hudood and qisas offences when they may be awarded as alternative
one's oath, because the relevant Quranic injunction relates to penalties and so it would be the case when the basic punishments
oaths only. Says Allah: of such offences stand invalidated. For example, when the conditions
of awarding a had is not fulfilled, ta 'zeer may be awarded or a
“The expiation thereof is the feeding of ten of the needy
ta'zeer punishment may be coupled with a basic punishment as
with the average of the wherewith ye feed your own folk, or the
an additional penalty, as for example, Imam Abu Hani fa prescribes
clothing of them.” (5:89)
banishment in the case of adultery, Imam Malik prescribes penal
Fourth, fasting. This expiation is obligatory only when punishments as a requital for causing wounds and Imam Shafi ‘ee
the offender is unable to fulfil the obligations of other expiations. add forty lashes to the had prescribed for drinking wine.
The period of fasting also varies with the sorts of crimes committed.
The punitive approach of Islamic criminal law is unlike the
For instance the ‘yameen’ (Breaking of Oath) expiation involves
modem laws in operation. It does not lay down a definite penalty
three days' fasting and intentional homicide two months’ fasting.
for every ta4zeer offence,
■ • fl* » ft *» a because
M fl1 * if the court is restricted to
It goes without saying that the fasting penance is meant for a

pass definite or specific sentences, the punishments awarded would

the Muslims only. Non-Muslims* expiation in the form of fasting
not produce the desired effect and the spirit of justice cannot be
is not acceptable, because fasting is worship which is not obligatory
maintained, for the circumstance of the offender and those in
for the non-Muslims.
I. Tabsirat-ul-HukJmm, Vol. 2, P. 259; At Muqaddimat Mu!la bin Rushd, Vol.2, P. 151;Asna-
ul-MataUb, Vol. 4, P.162.
82 83
 which offences are committed are so different from one another In fact these punishments can neither be mitigated nor increased,
that if a punishment results in the correction of one offender it even if they be punishments
I with two limits, for their fixed quantum
would bring about corruption of another, and that the same and determination have turned them into single-limit punishments.
punishment may serve as a deterrent to one offender but does not On the contrary, the ta'zeers are not specifically prescribed
do so in the case of another offender. It is for this reason that in relation to offence and the court is empowered to award any
Islamic Shariah has laid down a set of numerous punishments one of such punishments as it deems fit. These punishments carry
ranging from ordinary chastisement to most severe penalties and two limits: the lowest and the highest. The court may choose any |
confers on the court the power to award any of them as it deems of these degrees. Some of them have only one limit such as
fit for the reformation of the offender and safeguard the community admonition and exhortation. But in spite of this it is not binding
against the impact of the offence concerned. Besides, the court on the court to award a particular punishment, except that the
has the power to award one or more penal punishments for a punishment it chooses to award must be appropriate in consideration
crime, and if a punishment corrects two limits, it may reduce it of the offender’s circumstances.
or may suspend a punishment if it considers necessary for the .
(2) Punishments constituting hudood, qisas and diyat are
reformation of the offender or making him desist from committing irremissible and irrevocable, whereas in respect of offences
an offence. involving ta ‘zeers the person in authority or the ruler is competent
The wide powers conferred on the court in respect of ta ‘zeer to forgive the offence, whether it is one making impact on the
punishments poses no danger of producing effects, for generally community or on the individuals.
speaking offences involving ta'zeers are not dangerous. In fact .
(3) In the case of offences involving hudood, qisas and
latitude and leniency in such cases are more likely to reform the diyat, the offence is kept in view and the personality of the
offender, whereas in the case of dangerous offences entailing offender is of no consequence while in respect of ta ‘zeers both
hudood, qisas and blood price the Shariah has specified definite the offence and the offender are taken into consideration.
punishments and when such offences are proved, the court cannot
but award the punishments so specified. 479. The kinds of Ta‘zeers or Penal Punishments
Although the Shariah has identified ta ‘zeer punishments, The Shariah provides for many kinds of ta ‘zeers. Some of
but this does not mean that it does not acknowledge any other them, which the Shariah puts into effect, are stated below. It
punishment. In fact, there is ample scope in the Shariah for any may, however, be borne in mind that the Shariah does prohibit
corrective penalty that may reform the offender and the community any other penalty which serves the purpose of the punishments
is protected against the evil effects of his offence. One of the as laid down by it.
principles of the Shariah is that what-ever punishment serves to
480. Capital Punishment
reform the offender and save the community from the impact of
his sinful acts is a lawful punish merit. One of the pnnciples of the Shariah is that ta ‘zeer is designed
to reform the offender and, therefore, the appropriate ta ‘zeer is
478. Difference between Ta‘zeers and other Punishments
that which poses no threat to the life of the offender. Hence
There are numerous unmistakable differences between penal tazeer punishments should not be mortal. That is why death penalty
punishments and the punishments of hudood, qisas and diyat. and amputation of limb as tazeer is totally disallowed.
Some of them are as follows:
(I) Hudood, qisas and diyat are specifically definite I. Al Bahrul-Raiq, Vol.5, P. 49; Sharh-al-Zurqani. Vol. 8, PP.l 15-116.
2 Ibid; Tabserat-ul-Hukkam. Vol J, P. 264; Al Iqna, Vol. 4. P. 269.
punishments, wherein the court has no power to make any change.

84
 X

But most of the jurists allowing exception to this general not treat it as qisas in the former case and as had in the latter.
rule, maintain that death penalty as ta ‘zeer is warrantable provided On the contrary the other three major Imams, Malik, Shafi‘ee
that public good requires it or that the life of the offender poses and Ahmed would award capital punishment to a killer who used
the danger of perpetration of evil caused by him which can only something weighty for killing as qisas and for one guilty of
be eradicated by his execution, as for example the execution of sodomy as a had. The jurists of Hanbali and Maliki cults treat
a spy or one calling upon the Muslims to accept innovations in execution of a person calling upon the people to accept innovations
their faith, or a dangerous habitual. as a ta'zeer, while other jurists regard one guilty of such an act
Although by allowing exemption from the general rule, as an apostate and call for his execution as a had.
death penalty has been made lawful as a penal punishment, yet In view of the conditions stated above, only a very limited
it will not be widely enforced, nor the decision thereof will be number of crimes involve death penalty as a ta ‘zeer. As has
left to the discretion of the court like other ta ‘zeers. Such offences already been explained, the Shariah has laid down the punishment
as call for the offender’s penal execution will be determined by of hudood for only four offences, and these are: adultery, bloodshed,
the ruler or the person in authority. The jurists have striven apostasy, and rebellion. It has prescribed capital punishment for
strenuously to determine and delimit the ta ‘zeer offences only one of the offences involving qisas and that is intentional
necessitating capital punishment and have allowed execution only homicide. As for the ta ‘zeer offences for which capital punishments
when it is absolutely essential and the offender is so incorrigible are five only. Thus there are in all ten offences for which Shariah
that all endeavours to reform him product no effect, or when it has prescribed death penalty. Some jurists who hold that death
becomes absolutely necessary to exterminate him in order to penalty as ta'zeer is not warrantable and thus in view of their
safeguard the society against the evil effects of his acts. opinion the number of crimes for which death-penalty is prescribed
According to the Hanafites it is improper to award death is reduced to five. The limited number of crimes involving capital
penalty by way of ta‘zeer. They hold that execution in such a punishment is a distinguishing characteristic of the Islamic Shariah
case is killing as chastisement. Some Hanbalites particularly Ibn which it has preserved right from the very beginning. It has not
Taymiah and his pupil Ibn-al-Qayyim as well as some Malikites exceeded proper limits in laying down the death penalty, nor has
also subscribe to this view. it prescribed such penalty unless it is absolutely essential. This
But the offences for which Hanafites award death penalty distinction of the Shariah may well be judged by comparing it to
as a ta'zeer or as a chastisement, are treated differently by other the man-made laws which had provided capital punishment for
schools of jurisprudence. They regard such penalty as had or as many as about two hundred offences till the end of the eighteenth
qisas. The wider scope allowed by the Hanafites in this case is century. The French law prescribed death penalty for one hundred
merely overt in many circumstances. According to the Hanafi and fifteen offences.
jurists, execution as a ta‘zeer for committing homicide with
During the latest period, some western countries made an
something heavy and an act of sodomy is warrantable. They do
attempt to abolish death penalty but in view of the Italian Theory
it had to be abandoned. According to this Theory, if there is no
Hashia Ibn ‘Aabideen, Vol. 3, PP. 247-248; A! Iqna. Vol. 4, P.271; A! Tasqul Hukmiah, hope to reform an offender, the best way to get rid of him is
Ibn Qayyim, P. 106; Al Ikhtiarat Ibn Taymiah. PP. 178-179; Mawahib-ul-Jaleel, Vol. 3,
P. 35/; Al Bahr-ul-Raiq, Vol. 5, P. 45; Mausoat-ul-Rasail, Al Hasabbah P.58. execution. Some countries had in effect even suspended the death
The jurists of the Shafi'ee school and most of those belonging to the Malikee school do penalty, but later it was restored by countries like Italy, Russia
not approve of death penalty as a lazeer. They would prefer to award life imprisonment
and Hungary. The laws of all the major Western countries like
to a dangerous and habitually wrong-doing criminal in order to protect the community
against him. The opinion of these jurists are also suppo rted hy some Hanbalites. England, Germany, France and U.S.A, provide for capital

86
punishment and the most important justification offered for it is
that death penalty is the best and surest way of eradication of with more than a hundred stripes whereas in hudood the most
crime, doing away with the offender and protection of the society severe punishment of lashes does not exceed a hundred stripes.
against the evil caused by it and these were the very justifications
According to Imam Abu Hanifa and Imam Muhammad the
that had already been stated by the jurists of Islam. maximum limit of stripes as a ta 'zeer punishment is thirty nine,
481. Punishment of Lashes while Imam Abu Yousuf prescribes seventy-five stripes. This
limitation is based on the following edict of the Holy Prophet
The punishment of flogging is one of the basic penalties
(S.A.W.):
laid down by the Islamic Shariah, as it constitutes one of the
“Whoever incroporates one had into another is a transgressor.”
hudbod. It is also included in the ta'zeers. As a matter of fact,
it is preferable to all punishments for dangerous ta 'zeer offences. The ground of difference between Imam Abu Hanifa and
The reason for its preference is that it prevents those habituals Imam Muhammad on the one hand and Imam Abu Yousuf on the
other is that according to the former the term hudood occurring
from committing crimes who develop an instinct for criminal
in the above tradition is used as a common nqun, and therefore
behaviour. This is a punishment with two limits and either limit
it may mean any had. Since maximum limit of forty stripes are
may be awarded taking into account the kind of offence and the
prescribed for a slave, deducting one stripe would come to thirty-
person of the offender. _ •
nine stripes, whereas Imam Yousuf takes the word Aad to mean
Besides, the punishment has a quality by virtue whereof eighty stripes as prescribed for free men and, therefore, he agrees
neither the government is unnecessarily burdened nor the offender on the basis of analogy that the maximum limit of stripes as
loses the ability to work. Thus his family is not deprived of ta ‘zeer should be seventy-nine stripes. But since verdict of Hazrat
support and maintenance, as is the case with the punishment of Ali (R.A.A.) exists who has curtailed five stripes and prescribed
imprisonment. As a matter of fact, this is a sentence that could seventy-five stripes, Imam Abu Yousuf too lays down seventy-
be carried out then and there, after which the offender is free to five stripes.
resume usual activities and his family is saved from being deprived There are three opinions in the Shafi‘ee school about the
of resource and support. problem under discussion. The first opinion is in agreement with
The most striking virtue of the punishment of flogging is the position of Imam Abu Hanifa and Imam Muhammad. The
that the offender is saved from the corrupting influence of the second opinion is identical with that of Abu Yousuf. But according
prison with its immoral and unhealthy atmosphere and lethargic to the third opinion that the maximum may be more than seventy-
habits and inertia. five stripes but should not exceed hundred stripes. In this regard
The Maximum Limit of the Punishment of Flogging. eveiy offence involving had should Be considered with another
offence similar thereto. Accordingly ta 'zeer in case of adultery
The jurists differ on this question. The well known position
of the Maliki school is that the determination of the maximum will be less than the had prescribed for adultery even if it is
limit of punishment depends on the discretion of the man in
I. Tabseratul Hukkam, Vol.2, PP. 262-263; Mawahib-ul-Jaleel. Vol. 6, P. 309
authority or the ruler, for ta 'zeer is awarded in consideration of
2 Shark Fath-ul-Qadeer, Vol.4, P.214; Al Bahml Raiq. Vol.5, P. 51.
expediency and is commensurate with the offence. Hence the 3. Nihayat-usl-Muhtaj, Vol. 8, P. 201; Al Ahkum-ul-Sultania, P. 206; Asni-ul-Matalib, Vol.
ruler will exert himself to arrive at the right decision. For this 4, P. 162;
Body of the Shafi *ee jurists hold that the punishment of tazeer would exceed a hundred
reason, Imam Malik maintains that the offender may be scourged
Stripes when no hud is prescribed for the offence concerned.
Please see Majmooath-ul-Rasail Ibn Taymiah, P. 57; Al Faroeeq-ul-Hukmiah P. 106. But
this opinion is not found in the books of the Shafi'ee school.
88

89
more than the had for adultery. And the ta ’zeer for abusing will and those belonging to the same school in this respect owes its
be less than the had for slander. In other words, in the case of origin to two traditions already quoted. We repeat them below:
any offence, ta’zeer of stripes will be less than the number of (1) “Whoever incorporates one had in another, is a
stripes laid down as had for the same offence. Similarly the transgressor.”
ta ’zeer for abusing will be less than the had for slander. (2) “No one is to be scourged with more than ten stripes
Among the Hanbalites there are many divergent views. Of save the limits laid down by Allah.”
these three are identical with those referred to in the context of The first tradition has been rejected by the Malikites on the
the Shafi ’ite school. Besides, they hold two other opinions. One ground that it stands annulled. These jurists maintain that there
of them is that no punishment of lashes for any offence should is no limit to increase in ta ’zeer and if the person in authority
be up to the extent of hud determined by the Shariah for similar thinks it expedient to increase it beyond limit, he may do so.
offence, but it may be that the punishment for the offence exceeds These jurists have also rejected the other tradition also as annulled
the limit of the had prescribed by the Shariah for another kind or have said that it is peculiar to the times of the Prophet (S.A.W.).
of offence. For instance, the had laid down for an unmarried Some Hanbalites have, however, adopted this tradition.
adulterer is a hundred stripes and for a married one is rajm The jurists who consider the first tradition to be authentic,
(stoning to death). It will, therefore, be wrong that in cases of interpret it differently. Thus the interpretation put on it by some
adultery involving carnal embrace and kissing in private by an of them is that ta’zeer should not advance even to the least
unmarried person, the punishment should overlap the had laid punishment of had, whereas other jurists fix eighty stripes as the
down for adultery. However, if the adulterer be a married person lowest limit keeping in view the hudood laid down for free persons.
he may be scourged with more than a hundred stripes because There are others whose interpretation is that the Hadith in question
such a person is liable to rajm, which no maximum quantum of implies general prohibition of any ta ’zeer rising to a degree that
punishment can equal. According to the other opinion referred to it crosses into the limit of a had punishment or that the extent of
above, it should on no account exceed ten lashes. Those who ta ‘zeer for a crime whose class involves a had touches the degree
take this position argue on the ground of the following tradition of a had. In the opinion of these jurists some crimes will be
as narrated by Hazrat Abu Bardah (R.A.A.): considered on the analogy of other crimes and thus any crime
“No person should be scourged with more than ten stripes which is equivalent to drinking wine and slander by virtue of its
save the limits laid down by Allah.” nature and dangerousness will be punishable or amenable to ta ’zeer
Some jurists attribute this opinion to Imam Shafi‘ee also. by less than eighty stripes.
But in the works of the Shafi'ites that I could lay hands on, I Similarly, any crime which is like adultery in its nature
have not come across any such opinion. But the jurists who attribute and in respect of the danger it poses, will be punishable by less
it to Imam Shafi‘ee maintain that as the Imam regards only the than a hundred stripes as ta ’zeer. Besides, some jurists construe
authentic Hadith as his creed, the opinion in question must be the Hadith under consideration as prohibiting ta ’zeer to the extent
presumed to be held by him because it owes itself to an authentic of prescribed had for the kind of a crime involving had. If such
Hadith.12 crime does not involve had, ta ’zeer may be awarded to the extent
The difference of opinion among the jurists of various schools of a had and even more than that. For instance, if an unmarried
man is found on the bed of a woman without copulating with her,
1 Fatawa Ibn Tayimah, Vol. 4, Al Ikhtiarat 187; Al Mughni, Vol. 15, P. 347, Al Turq-ul- it will be wrong to scourge him with a hundred stripes, because
Hukmiah, P. 106; Al uqna’a, Vol. 4, p. 270 and the sequel.
2 Star* Fath-ul-Qadeer, Vol. 4, P. 215; Al Turq-ul-Hukmia, P. 106.
I Shark Fath-ul-Qadeer. Vol.4, P.215, Tabserat-ul-Hukkam, Vol. 2, P. 263.

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more than the had for adultery. And the ta ‘zeer for abusing will and those belonging to the same school in this respect owes its
be less than the had for slander. In other words, in the case of origin to two traditions already quoted. We repeat them below:
any offence, ta'zeer of stripes will be less than the number of (1) “Whoever incorporates one had in another, is a
stripes laid down as had for the same offence. Similarly the transgressor.”
ta 'zeer for abusing will be less than the had for slander. (2) “No one is to be scourged with more than ten stripes
Among the Hanbalites there are many divergent views. Of save the limits laid down by Allah.”
these three are identical with those referred to in the context of The first tradition has been rejected by the Malikites on the
the Shafi’ite school. Besides, they hold two other opinions. One ground that it stands annulled. These jurists maintain that there
of them is that no punishment of lashes for any offence should is no limit to increase in ta'zeer and if the person in authority
be up to the extent of hud determined by the Shariah for similar thinks it expedient to increase it beyond limit, he may do so.
offence, but it may be that the punishment for the offence exceeds These jurists have also rejected the other tradition also as annulled
the limit of the had prescribed by the Shariah for another kind or have said that it is peculiar to the times of the Prophet (S.A.W.).
of offence. For instance, the had laid down for an unmarried Some Hanbalites have, however, adopted this tradition.
adulterer is a hundred stripes and for a married one is rajm The jurists who consider the first tradition to be authentic,
(stoning to death). It will, therefore, be wrong that in cases of interpret it differently. Thus the interpretation put on it by some
adultery involving carnal embrace and kissing in private by an of them is that ta 'zeer should not advance even to the least
unmarried person, the punishment should overlap the had laid punishment of had, whereas other jurists fix eighty stripes as the
down for adultery. However, if the adulterer be a married person lowest limit keeping in view the hudood laid down for free persons.
he may be scourged with more than a hundred stripes because There are others whose interpretation is that the Hadith in question
such a person is liable to rajm, which no maximum quantum of implies general prohibition of any ta 'zeer rising to a degree that
punishment can equal. According to the other opinion referred to it crosses into the limit of a had punishment or that the extent of
above, it should on no account exceed ten lashes. Those who to'zeer for a crime whose class involves a had touches the degree
take this position argue on the ground of the following tradition of a had. In the opinion of these jurists some crimes will be
as narrated by Hazrat Abu Bardah (R.A.A.): considered on the analogy of other crimes and thus any crime
“No person should be scourged with more than ten stripes which is equivalent to drinking wine and slander by virtue of its
nature and dangerousness will be punishable or amenable to ta 'zeer
save the limits laid down by Allah.”
Some jurists attribute this opinion to Im^m Shafi‘ee also. by less than eighty stripes.
But in the works of the Shafi’ites that I could lay hands on, I Similarly, any crime which is like adultery in its nature
have not come across any such opinion. But the jurists who attribute and in respect of the danger it poses, will be punishable by less
it to Imam Shafi‘ee maintain that as the Imam regards only the than a hundred stripes as ta 'zeer. Besides, some jurists construe
authentic Hadith as his creed, the opinion in question must be the Hadith under consideration as prohibiting ta 'zeer to the extent
presumed to be held by him because it owes itself to an authentic of prescribed had for the kind of a crime involving had. If such
Hadith.* 2 crime does not involve had, ta 'zeer may be awarded to the extent
of a had and even more than that. For instance, if an unmarried
The difference of opinion among the jurists of various schools
man is found on the bed of a woman without copulating with her,
/ Fatawa Ibn Tayimah, Vol. 4, Al Ikhtiarat 187; Al Mughni, Vol. 15, P. 347, Al Turq-ul- it will be wrong to scourge him with a hundred stripes, because
Hukmiah, P. 106; Al uqna’a, Vol. 4, p. 270 and the sequel.
2 SAarA Falh-ul-Qadeer, Vol. 4, P. 215; Al Turq-ul-Hukmia, P. 106.
I Shark Faih-ul-Qadeer, Vol.4, P.2I5, Tabserat-ul-Hukkam, Vol. 2, P. 263.

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the had laid down for an unmarried adulterer is a hundred stripes. 482. Punishment of Imprisonment
But if he be a married man, he can legitimately be punished by
There are two kinds of punishment of imprisonment in the
a hundred or even more than a hundred stripes inasmuch as the
Shariah: Limited Imprisonment and Unlimited Imprisonment.
had prescribed for a married adulterer is rajm or stoning to death.
Similarly a thief may be given a hundred lashes, since the had 483. Limited Imprisonment
for theft is amputation of a hand. But if the nature of crime is The Shariah prescribes limited imprisonment for ta 'zeer
such that no had is prescribed for it, then the person in authority offences habitually committed and such a punishment is awarded
may award him as much ta 'zeer punishment as he deems fit. In to habituals. We have already mentioned that the jurists prefer
other words, the import of this Hadith is that no ta 'zeer or penal flogging to other punishments provided that the offences involved
punishment is awarded equivalent to a had for the kind of an are dangerous or the offenders are so dangerous that they cannot
offence for which had is prescribed but the conditions thereof be prevented from committing offences without being flogged.
are not fulfilled, for if this is done a complete offence will be at The minimum term of limited imprisonment may be only
par with an incomplete offence and there will be no difference a day but there is no consensus on unlimited imprisonment. Some
between the act fraught with conditions of a had and that devoid jurists suggest six months, others one year and still others would
of such conditions. Probably this last opinion is preferable from leave maximum term to the decision of the person in authority.
both practical and rational viewpoints. The jurists belonging to the Shafi'ee school limit the term
Some jurists are of the view that the minimum punishment of maximum imprisonment to less than a year on the ground that
of flogging is three lashes and that this quantity is sufficient for the period fixed for banishment as had in a case of adultery is
warning. But other jurists are not in favour of laying down one year. Imprisonment according to them should be less than a
minimum quantum since warning produces different effects on year so that punishment for a non-had offence may not turn into
different people. a had. The point of view of other schools is apparently that
There is nothing in the Shariah inhibiting the punishment imprisonment should not be regarded as analogous to banishment.
of flogging in every offence involving ta 'zeer. However, some Imprisonment and corporal punishment may be combined
jurists would prefer flogging for offences which by nature involve provided that one punishment is felt to be insufficient, but in this
had. Therefore in cases of theft for which had cannot be enforced, case the Shafi'ites impose the condition that two punishments
flogging must be awarded. Similarly, in cases of adultery and can be inflicted only when one punishment is supplemented to
slander that do not entail hads, flogging is to be awarded According the other. For instance, the offender is already scourged with
to these jurists, punishments of flogging etc. as ta 'zeer is to be half the number of stripes awarded as a ta 'zeer, he will be
given for offences which by nature do not involve had as obligatory. imprisoned in lieu of the remaining half. Similarly if one fourth
The advocates of this view maintain that the element of correction of lashes awarded is inflicted, he will have to serve a term of
and prevention from dangerous offences is predominant in punitive imprisonment for the remaining three fourths. But other jurists
flogging and it is settled beyond question that the category for do not impose such a condition. They consider it right to scourge
which hudood are laid down consists ■
of more dangerous offences. the offender with total number of stripes awarded as ta 'zeer and
must also be confined to prison till such time that it is deemed
1. Shark Fath-ul-Qadeer. Vol. 4. P. 215, Al Mughni Vol. 10, P. 348; Badri'e wal-Sana'e,
VoL7, P.94.
fit to reform him as well as to warn others.
9

2. Badai'e-wal-Snai'e, Vol. 7, P.67. The punishment of imprisonment in common with all the
3 Tabserat-ul-Hukkam Vol. 2. P. 284; Shark Fath-ul-Qadeer. Vol. 4, P. 216, Al Ahkam-ul-
Sultania, P. 206; Al Mughni, Vol. 10. P. 348.
1 See article No.98.

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other punishment presupposes correction and reformation of the
together in the day time but should be totally disallowed to talk
offender. If it is more likely than not that imprisonment will not
to one another. But this method involves a lot of additional
serve the purpose of reformation, it ought to be replaced by some expenditure. Besides, in order to prevent them from associating
other punishment. and talking with one another, they have been inflicted painful
The viewpoint of Shariah as to imprisonment is quite different punishment. Another method is to keep every prisoner in strict
from that of the modem laws in operation; for, under the modem isolation. This, too, involves heavy expenditure. Besides, solitary
laws imprisonment is the primary punishment of all offences confinement often results in insanity. Some prisoners even go to
whether minor or serious, whereas in the Islamic Shariah it the lengths of committing suicide in isolation. There is another
constitutes a secondary punishment and is awarded for offences method involving gradual process. This has been devised in Ireland.
of minor nature and the court is empowered to enforce it or not. Under this arrangement the prisoner is initially kept in solitary
If the court is of the view that this punishment will not serve the confinement. After this initial phase extending to a certain length
purpose, it will not be awarded. , of time, he is allowed to mix up with other inmates but is disallowed
The effect of this difference between the Shariah and the to communicate to any of them. This has both the disadvantages
modem laws is that in the countries where the Shariah is operative that characterize the other two methods.
the number of prisoners is comparatively limited and where the But the punishment of imprisonment as envisaged in the
modem laws are in force this number swells immeasurably. Islamic Shariah does not lead to such consequences, for such a
The real situation obtaining today is that one of the most punishment is prescribed for misdemeanors or minor offences
serious problems with which the modern criminologists are and first offenders for a very short term and that too only when
confronted is presented by jails and their inmates. The result of the court feels that imprisonment would do good to the offender.
This is exactly the reason in the Shariah system the number of
treating imprisonment as the basic punishment of all offences is
prisoners is extremely limited and they have to serve a very short
unlimited increase of the prisoners who have filled the jails beyond
term of imprisonment. Besides, those who are sentenced to
capacity. Besides, prisons have turned into centres of conspiracies
imprisonment do not get depraved nor do they turn into habituals.
and training for commitment of offences, notwithstanding the
Thus by the enforcement of the dictates of Islam all those evils
main object of their establishment, that is to protect the society
ensuing from imprisonment under the operative modem laws are
against the offenders. When the prisoners are put together in a
eradicated.
jail, they are provided with the opportunity of getting introduced
to each other. Thus they are able to chalk out programmes of 484. Unlimited Imprisonment
criminal activities and benefit from one another’s knowledge and It is agreed by all that imprisonment for unlimited term is
experience. In other words, it has been practically proved that awarded to offenders guilty of heinous crimes and habituals, i.e.
prisons have failed to teach lesson to the offenders. In fact, simple offenders who habitually commit murder, larceny and violence
offenders guilty of misdemeanours turn into habituals capable of or repeatedly commit atrocities and do not desist from their criminal
committing felonies. activities in spite of undergoing prescribed punishment. Such *
Some people have made attempts to do away with the harmful offenders will ever remain in prison. They will be released only
effects of imprisonment. Methods have been devised to minimize when they repent and mend their ways. Those who cannot be
such effects. But these methods have not served their purpose. reclaimed will spend all their lives in prison and thus the community
They have rather brought in their own disadvantages. For instance, will remain immune from their wickedness.
the inmates were contrived to live in isolation at night and live

94 95
 Some laws in operation lay down the initial limit of the
The jurists are also in total agreement on the question of term but do not specify the maximum period, as for example the
determining the term of unlimited imprisonment. They hold that Italian law which was promulgated in 1980. Other laws like that
the term of such imprisonment will not be fixed in advance for of Egypt prescribe maximum term of ordinary offenders ana
there is no time limit for it. In fact it is life imprisonment which habituals respectively.
continues till the prisoner’s death or till he repents and is reclaimed. As for the insane accused, the Egyptian laws do not lay
The concept of imprisonment for unlimited period was down any limit. It authorizes the public prosecutor that if the
inducted into the modem laws only towards the end of nineteenth accused is confined as a precautionary, he should be sent to
century, whereas the Shariah had adopted it Thirteen Hundred lunatic asylum.
years before. The Italians were the first to introduce it into their Under the Belgian and Italian laws neurastheniacs and drug­
laws. They declared unlimited term of confinement as inevitable addicts are sent away to reserved places for a fixed period.
in view of the dual role of punishment consisting of eradication From the foregoing statement we learn that the Islamic
of crimes and reclamation of the offender. They held that the concept of indefinite imprisonment was introduced into the modem
punishment of a reclaimable offender would be provisional and laws as late as the end of the nineteenth century. Some of these
that of an incorrigible one would be co-extensive with life. laws do not set a limit to the term of imprisonment at all like the
In contemporary criminology imprisonment for indefinite Shariah while others do set a limit and some other laws combine
term is regarded as essential for maintenance of law and order application and limitation. In short, this concept originated from
and is treated as one of the latest punishments devised to reclaim the Islamic Shariah whether or not the modem laws adopted it
offenders by psychological and sociological method. with or without reservation and qualification and application in
There are divergent provisions for indefinite Imprisonment this respect is simply the procedure of adopting the original concept.
in the operative modem laws. Some of these laws provide for To sum up, the Islamic Shariah has undeniably the distinction
unqualified indefinite imprisonment. They require the court to of laying down the best concepts of punishment.
pass sentence of imprisonment without fixing the term to be 485. Banishment
served; The organization responsible for the execution of the
We have already discussed banishment in the context of
sentence will determine the term keeping in view the state of the
the punishments laid down for adultery and have stated that Imam
offender. If the offender is reclaimed* his term will accordingly
Abu Hanifa regards banishment as ta ‘zeer as opposed to other
be reduced, but if he is a hopeless case, he will be kept in jail
Imams who treat it as a had. However, all the jurists are agreed
till his death. In French law promulgated on the 27th of February,
that in cases other than adultery, banishment constitutes ta ‘zeer.
1885, this very concept has been adopted and treating the
Banishment or expulsion is resorted to when the acts of the
punishment of expulsion as indefinite the executive has been
offender are communicable and other people under his influence
empowered to reduce the term of a prisoner if it so deems fit.
develop the tendency for criminal activity to their own detriment.
In some laws relative term of imprisonment is determined.
Some Shafi’ite and Hanbalite jurists are of the opinion that
This is done by fixing the lowest and highest limits which the
the term of banishment as ta ‘zeer should not be one year; for one
punishment is not to be less and more as the case may be. The
year is the period prescribed for banishment as a part of punishment
enforcing organization is allowed the choice to release the offender
for adultery. In order to translate the following edict of the Holy
if he ;s reformed on expiry of the minimum term or suffer him
Prophet (S.A.W.), it is obligatory to award penal punishment of
to serve the maximum term if he is not reclaimed.
expulsion for less than a year:

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 “Whoever incorporates one had into another is a transgressor.” 486. Hanging ’ v
But according to Imam Abu Hanifa punishment of banishment As has already been explained, hanging is prescribed as a
may be more than a year, because he regards it as ta ‘zeer and not had for an offence involving bloodshed and according to some
as had. Imam Malik does treat banishment as had but holds that jurists the offender is to be hanged after being executed while
its term may be more than a year on the ground that the above according to others he is to be hanged alive and then slain. As
Hadith, according to him, stands annulled. Some jurists of the a matter of fact hanging as a had is a punishment of highway
schools of Imam Shafi‘ee and Imam Ahmed subscribe to the robbery and on this ground some jurists have expressed the view
view held by Imam Malik and Imam Abu Hanifa. that hanging may also be a ta 'zeer punishment.
The jurists who hold that the period of banishment may be When an offender is sentenced to hanging as a penal
more than a year do not fix any period for it but treat it as an punishmentl he will not be slain, neither before nor after hanging.
indefinite punishment and empower the ruler to remit the term of He would rather be hanged alive. The condemned man will not
expulsion if the person involved repents and is reformed. be stopped from eating and drinking. He will be allowed to perform
The convict sentenced to banishment will not be imprisoned, ablution, but can offer prayer by gestures only. After being hanged,
although some jurists opine that he is to be kept under observation his body will not remain suspended for more than three days.
and some restrictions are to be imposed upon him. In the same Justification for hanging as ta 'zeer is that the Holy Prophet
way Hazrat ‘Umar (R.A.A.) expeiled Nazr bin Hajjaj from Madinah. (S.A.W.) ordered one Abu Nab to be hanged on a hill.
Majority of modem criminologists are in favour of penal The Shaft 'ee and Maliki jurists place hanging in the category
expulsion, because they feel that the punishment of imprisonment tfta'zeers, but the Hanafites and the Hanbalites do not specify
has proved to be ineffective in reclaiming offenders and sending it as such, but this does not mean that they do not regard hanging
them back into the society as useful citizens. The reason for this as a ta'zeer; for as a general rule, any punishment that is
is that, however repentent a convicted offender may be, he cannot instrumental in the reclamation of an offender and protection of
regain his place in the society, which will always hold him in the community against his baleful influence will be treated as a
contempt. He will consequently join the gangs of other offenders legal (penal) punishment.
and wicked people. By his expulsion, on the contrary, the society In the case of hanging it is a corporal punishment aiming
will be saved from his baleful influence on the one hand and he at the reclamation and public exposure of an offender, such as
will on the other hand have the opportunity to start his life afresh the children are punished by making them stand with their hands
on the right lines in a new place. raised up or bend on their knees. (This punishment involves the
The laws of western countries also provide for penal process of reformation as well as exposure.)
expulsion. England formerly used to expel her offenders to America It must be borne in mind that the penal punishments (ta 'zeers)
and Australia. But this practice was stopped when the colonies in are not obligatory like hudood and qisas. Hence it is up to the
those lands protested against it. According to the French law discretion of the legislative body to provide for the punishment
promulgated in 1810 political leaders found guilty of conspiring ofhanging or omit it. If it considers that this punishment will do
against the established system were liable to expulsion. Similarly good in the case of a crime and for that matter, in the case of all
the French law provided for the expulsion to colonies of offenders the crimes, it may provide for hanging or else leave it out.
sentenced to rigorous imprisonment. Again, under the Italian law,
expulsion is treated as a supplementary punishment and minister 7. Admonition. Exhortation etc.
of justice has the choice either sentence an offender to rigorous Exhortation or admonition is also a ta 'zeer under the Shariah.
imprisonment or expulsion to a colony to be imprisoned.
’’ !• Al Attamul Sultaniah P.206, Tabserat-ul-Hukkam, Vol. 2. P 266.

98 I

99
If the court feels that the offender could be reformed by exhortation,
it may acquit him after exhortation. Admonition has clearly been 489. Censure:
enjoined in the Holy Quran: Censure is also a ta 'zeer provided for in the Shariah. Should
“As for those (women) from whom ye fear rebellion, the court think that the offender would be reformed by Censure,
admonish them.” (3:34) it may have recourse thereto.
In fact the Shariah provides for lesser ta'zeers than The Prophet (S.A.W.) himself had recourse to censure. For
exhortation. Thus if the court simply announces the offence of an instance, Hazrat Abu Zar (R.A.A.) narrated that once he had
offender that too would amount to a ta 'zeer. Even summoning by quarrelled with someone and reproached him by vituperating his
the court constitutes a ta 'zeer. But it must be borne in mind that mother. The Prophet (S.A.W.) rebuked Hazrat Abu Zar (R.A.A.)
such ta 'zeers are meant for those offenders about whom the court and said, ‘Abu Zar, you have called his mother names. You have
feels that they will produce the desired effect and the offenders not yet purged yourself of pagan ignorance.”
will be reformed. According to another tradition Hazrat Abdur Rahman bin
488. Boycott Auf (R.A.A.) quarrelled with a slave in the presence of the Prophet
(SA.W.) and called him the son of a black slave-girl. On hearing
One of the ta 'zeer punishments laid down in the Shariah is
this the Holy Prophet (S.A.W.) was enraged and raising his hand
boycott. Says Allah in connection with the penal punishment of
observed “No white man has the upper hand over any black man
wives:
unless he is in the right.”
“Admonish them and banish them to beds apart.” (4:34)
Ashamed of himself Hazrat Abdur Rahman (R.A.A.) put
During the battle of Tabook three companions of the Prophet his cheek on the ground and asked the slave to trample his face
(S.A.W.) namely Ka’b bin Malik, Murrah bin Ruba’i ul ‘Aamri so that the slave may be gratified.
and Hilal bin Omayyah lagged behind and did not participate in
the battle. The Prophet (S.A.W.) punished them by severing all 490. Warning.
social relations with them. For fifty days no body talked to them Warning is also included in penal punishments which the
and refrained from communicating with them till the following Shariah provides for. But warning should be genuine and it is to
verse of the Holy Quran was revealed: be given when the court feels that it will produce the desired
“To the three also (did He turn in mercy) who were left effect of setting the offender right. Warning as a ta ‘zeer, for
behind, when the earth, vast as it is, was straitened for instance, is this that the court should by way of intimidating the
them, and their own souls were straitened for them till they offender say that if he is found committing the same offence
be thought them that there is no refuge from Allah save again, he will be flogged, imprisoned or awarded even a more
toward Him. Then turned He unto them in mercy that they severe punishment. Another form of warning is that the court
(too) might turn (repentant unto Him). Verily, Allah is having announced a sentence puts off its execution. The modem
Relenting, the Merciful. (9:118) laws also provide for the punishments of admonition and warning.
Hazrat Umar (R.A.A.) instructed the people to have no For instance, in the case of all offences committed for the first
time by the offenders, judicial admonition is treated as a punishment
intercourse with Rabee’ in addition to awarding him the punishments
provided that the court feels that such punishment would be effective
of flogging and banishment. Accordingly nobody talked to him
in the reformation and deterrence of the offenders.
until he repented and the governor of the town reported it to
Hazrat ‘Umar (R.A.A.) who, then, allowed the people to end his Under the modem laws various methods are adopted to
boycott. enforce the punishment of warning. Some of these laws tend to
put it into operation by sentencing the offender to punishment

100
101
 and shen postpone its execution for some time. If the offender is may be enforced for any offence whatsoever, but there are other
found guilty of the offence again, the sentence is put into effect. punishments which are not common and cannot be awarded for
Other laws require the court not to announce the sentence^and every offence. The more important of these are as follows:
defer the execution of its decision for some time. Other laws still
%
(1) Demotion: Those holding public offices whether as
prefer to warn the offender against the commitment of the^offence public servants or in honorary capacity are liable to this punishment.
P* • a w

again. (2) Deprivation: This meaner to deprive the offender of

All these forms of warning under the modem laws are the some of the rights he legally enjoys, for instance the right to wI

various ways applying it as a punishment. They were adopted by testify, holding an office, disinheritance of a share in the booty
the above laws as late as the end of the nineteenth and the beginning to a slain person and invalidation of wife’s expenses for living.
of the twentieth century, whereas the Shariah had included them (3) Confiscation: This applies to all the instruments used
thirteen centuries ago. in committing of an offence and all forbidden things.
(4) Making Amends: It means eradication of the effects
491. Public Exposure
produced by the offenders criminal act, for instance, demolition
One of the penal punishments under the Shariah is the of a building constructed on thoroughfare, destruction of utensils
public exposure of the offender which means hi? offence must be used for drinking wine and mixing water in milk. These punishments
announced. Public exposure is actually resorted to in cases relating are also included in the laws in force and are put into effect.
to the peoples confidence, for example giving false evidence or
defrauding. 493. Fine
In ancient times the method adopted for public, exposure It is an established fact that fine has been imposed as a
was to proclaim the crime committed by an offender at public penal punishment under the Shariah. For instance fine for stealing
places and bazars. But today it is done by making announcements fruit by plucking it from its tree is double the price of the stolen
in the newspapers and putting up handbills at conspicuous places. fruit. The offender will be liable to some appropriate penal
The modem laws in operation provide for the punishment punishment in addition to fine in accordance with the following
of public exposure. Under the Egyptian law, for instance, this edict of the Holy Prophet (S.A. W.): '
e
**
punishment has been awarded for profiteering and defrauding the “Whoever steals something is liable to fine equal to double
• public. j the value as well as punishment.”
Similarly, any one who hides a missing thing will not only
Other Punishments
return it but will also pay the fine equivalent to the value thereof.
The punishments stated above are not the only penal * In the same way a half of the assets of the person will be confiscated
punishments (ta ‘zeers). In fact, there are some other punishments who does not pay the poor due. (
as well. The thing is that penal punishments are not specifically
Nonetheless, the jurists differ on the question whether fine
prescribed penalties. It is rather left to the discretion of the ruler
is such a general punishment that it could be awarded for any
or the legislative authority to retain such punishments as it considers
offence whatsoever. Some jurists are of the opinion that pecuniary
fit for the eradication of crimes and reclamation of the offenders
fine is a general penal punishment while others maintain that it
and abandon those which it regards as fruitless. The only point
to be kept in view in this regard, however, is that the essentials does not constitute a general punishment.
of the doctrine of punishment are not prejudiced. 1. Aghatha-ul-Ahfaz, void, p. 331; Aa'lamu Moqi’een vol.2, p. 220.
2. Ibid; Al-Mughni. vol. 10, p. 348; Al-Iqnaa vol. 4 p. 270, Tabserat ’ul-Hukkaam vol.2,
The punishments mentioned above are important ones and p.261, Sharh-al-Zurqani, vol.8, p. 125 Nihayat ul-Muhtaj, vol. 8, p. 20; Asna-al-Matalib
vol. 4, p. 162; Shark Fath-ul-Qadeer, vol. 4, p. 212, Hashiah ibn ‘Aabideen, vol. 3, p. 246,
Majmo-atur-Ras'ail, p.59.
102 103
7
/
 made to work in lieu of fine or imprisoned, although the modem
Some jurists object to pecuniary fine. They argue that such laws treat imprisonment as a harsher punishment than fine.
fine was valid during the life time of the Prophet (S.A.W.) and
The legal experts admit that there are many flaws in the
that it was abolished later on. Besides, they contend that this is
punishment of fine and that they are trying to remove them. But
not the proper way of eradicating crime, because if imposition of
in spite of all its demerits this punishment has the virtue of
pecuniary fine is allowed, the tyrants will use it as a tool to
avoiding and limiting the demerits inherent in the punishment of
extort money from the people.
imprisonment. In other words, the legal experts have not prescribed
The jurists who allow fine as a general punishment attach the punishment of fine because of its merits but have adopted it
a proviso thereto to the effect that fine should be imposed as an because its demerits are much less than imprisonment. Thus instead
intimidatory penalty. This is to be done by taking the money of adopting a better punishment they have preferred the less
from the offender and withholding it. If he mends his ways the harmful to the more harmful punishment.
amount so received should be refunded or else expended on public According to Shariah it is wrong to imprison an alleged
welfare. offender in lieu of an amount due from him except .that he can
It may be said in favour of the jurists opposed to pecuniary but does not pay it, as is the case with the amount payable for
fine that if such a fine is treated as a basic punishment the haves the maintenance of wife and children. But if he is not in a position
will have the upper hand over the have-nots, as the former will to pay, he cannot be confined in lieu of the amount due, for
be able to pay it easily while the poor will not be able to do so. failure to repay debt is punishable by imprisonment only when
Thus it will not be possible to punish the poor by imposing fine, the debtor is able to pay it. But if he is in no position to pay it,
although such a punishment is the most ordinary penalty as he cannot be confined because the cause for confinement is absent.
compared to other punishments. However, there is nothing in the Shariah inhibiting the realization
In the world today the affairs of the state are run in an of the amount due from the offender by making him do some
organized manner, public finances are in safe hands, the legislative official work and thus pay it out of the wages earned by him.
authority has prescribed the minimum and maximum limits of The viewpoint of the Shariah in this context is both logically and
fine to be imposed and the function of awarding punishment has legally correct for putting the offender to forced labour means
been assigned to the courts. Consequently the danger of extortion that the punishment is applied to his income or assets much as
of money from the people has vanished. Thus the objection raised the only source whereof is his labour. In such a case forced
to the imposition of fine as a punishment no longer carries weight. labour is tantamount to realization of the amount due by force.
Again, in cases of minor offences like misdemeanors the amount But if the offender is unable to pay the fine imposed and is
of fine is so small that most people can pay it easily. The second confined in lieu thereof, it means that he is not really punished
objection, therefore, is also untenable. but confined for being poor. Thus confinement replacing fine
In any case, the jurists who treat pecuniary fine as a common • would come to be exclusively associated with the poor. On the
punishment confine it to minor offences. They have not fixed other hand the essential condition of basic punishment must be
any minimum or maximum limits of fine and have left its all embracive and applicable. If it is not all embracive it will be
determination to the discretion of the court. an illegal punishment.
In the operative modem laws fine is treated as the basis of The Islamic Shariah does not insist on imposing fine nor
most offences and two methods have been laid down for putting does it treat it as a general punishment for all or most of the
it into effect. The first is to deprive the convict of his property offences involving Ta‘zeer, for imprisonment is a secondary
or assets, and the second is that if he has no assets he should be punishment in the Shariah. The basic punishment for most of the

105
104
offences is flogging and that is why the punitive system of the
Shariah is free from the flaws inherent in the punishment of
imprisonment and from the demerits for avoiding which the method
of imposing fine has been adopted in the modem laws in force.
The Shariah, as a general rule, provides a collection of SECTION V
punishment for ta'zeer offences which vary in respect of the
degree of harshness, and the court is empowered to choose out 494. The Shariah Punishments and Statistics Relating There to.
of those whatever penalty it deems fit in consideration of the We have at the outset, discussed the kinds of punishments
offence and the circumstances of the offender. No doubt, some prescribed by the Islamic Shariah and have explained that it has
jurists treat fine as a general punishment but it means that fine laid down a separate penalty for each of the crimes involving
is one of the penal punishments and the court may award it as hudood and qisas. In the case of such punishments the offence
such if it deems fit; but if it is not considered fit for the offence has been regarded as of paramount importance instead of the
and the offender, such punishment is not to be awarded on any personality of the offender and powers of the court have been
account. restricted, making obligatory on it to award an prescribed
punishments without mitigating or increasing them. Besides, the
powers of the legislative authority have also been restricted. It is
not competent to make any change in the prescribed punishment,
remit it or stop its enforcement. It may, however, add some penal
punishment to it in order to punish the offender with increased
degree of severity. For instance the legislative authority cannot
reduce the punishment of qazaf (calumniation) to fifty stripes,
but can add fine or imprisonment to its punishment laid down in
the Shariah. This addition will assume the character of Ta ‘zeer.
The legislative authority is not competent to substitute any other
punishment for qisas, nor can it reduce blood price, but it may
add flogging, imprisonment or any other penal punishment to the
prescribed punishments of qisas and diyat.
The penalties in respect whereof the Shariah keeps in view
the offence in total disregard of the personality of the offender
are offences entailing hudood, qisas and diyat. They are as follows:-
(1) Adultery
(2) Qazaf or Calumniation
(3) Drinking Wine »
(4) Larceny
(5) Highway Robbery
(6) Apostasy
’• See Such articles No. 98.

106 107
 (7) Fellonious Homicide very high in everyday life and that if they are eradicated the
(8) Quasi-Intentional Homicide people will be absolutely oblivious to the occurrence of crimes.
(9) Unintentional Homicide We quote here, for example, the figures of the offences committed
(10) Causing Wound and Injury Intentionally in Egypt. In 1942-43, eight thousand one hundred and seventy
(11) Causing Wound or Injury unintentionally. five crimes were committed in the country. Out of these 752
In other words, the crimes in respect whereof the offender were cases of intentional homicide, 1119 of attempted homicide,
has been overlooked are twelve in number. In the case of crimes 989 were cases of larceny or attempted larceny, 2343 were of
other than these, the offence and the offender both have been defamation and immoral acts, 326 those of fatal injuries, 1196
given due importance. those of grievous injuries resulting in the mutilation of the victims
and 634 were of recurrence of larceny. These are all offences
It seems to be somewhat difficult to understand the wisdom
involving hudood and qisas, their total number being 6270. It
of Shariah in adopting harsh attitude toward the above twelve
means the percentage of such offences in the year referred to was
offences while being lenient in others that run into hundreds.
76.7. The number of violations of law 297557, out of which 9732
The real difficulty lies in looking at these twelve offences in
were cases of larceny, 14828 of inadvertent wounding, 1182 of
comparison to the rest of the offences, for their ratio to the latter
intentional homicide, 60230 of causing injury, 405 of defamation
is insignificant, which can be judged by taking stock of the sections
and abusing, and 4695 were of violence. All these cases involve
of the laws regarding the offences involving hudood, qisas and
hudood, qisas and diyat and their total number comes to 181762.
diyat, and of those relating to other offence.
It means that 61% of crimes amounting to violation of the law
The number of the sections of the Egyptian punitive law

►
in force constitutes offences of hudood etc.
regarding the hudood, qisas and diyat offences are less than fifty,
Ten years back in 1932-1933 the total number of offences
whereas sections concerning other crimes and violations are some
committed was 7831. Out of them 4782 offences were those
three hundred. Besides, there are other laws providing for
involving hudood, qisas and diyat. Thus their percentage was
punishments of many violations Assuming that their number is
61%. During the same year crimes consisting of violation of the
also three hundred, the crimes other than hudood, qisas and diyat
offences would rise to the tune of six hundred (they are actually laws in force, 132611 crimes in all were committed and 93990
more than this). Thus the ratio of offences involving hudood, of these involved hudood, qisas and diyat, and their overall
qisas and diyat to other crimes would be to 1 to 8. This is of percentage was 63.3%.
course extremely small from theoretical viewpoint. These figures do not tell lies. They clearly show that during
The following facts and figures will drive home the wisdom the past twenty years the average of the offences involving hudood,
of the harshness of attitude adoped in the Shariah towards the qisas and diyat has been 72.2% while that of the cases consisting
offences involving, hudood, qisas and diyat. The incidence of of the violation of the law in force has been 63.3%.
these offences is very high whereas the incidence of most of the From the above figures it is manifest beyond a shadow of
other offences is very small. Only a few of such offences take doubt that the great importance attached by the Shariah to the
place frequently but their frequency cannot stand in comparison offences involving hudood, qisas and diyat, despite their limited
with that of the offences entailing hudood etc. number, is designed to eliminate such heinous offences occurring
The wisdom of the Shariah in this regard is also manifest far more frequently than other crimes. In fact, it aims at weeding
in the figures that follow. These figures are a clear indication of out crime altogether, because if these offences are excluded from
the fact that the incidence of the hudood and qisas offences is the total number of crimes what remains is only a few violations
of the law in force which neither result in the breach of peace
108

109
nor exercise evil influence on morality. Only light penal
punishments will suffice for those guilty of such violations. in Saudi Arabia prior to the enforcement of Shariah is a common
knowledge. Peace and tranquility was unknown to the people
The above facts and figures also substantiate our statement
that the Shariah has kept in view three objects in laying down there. The country had become proverbial for the worst kinds of
crime. No person travelling through the land was safe, nor was
the punishments of hudood, qisas and diyat offences, viz.; safeguard
any person secure during his stay. Things had come to such a
of peace and tranquillity, stability of the established political
pass that pilgrims coming from abroad to perform Hajj had to
order and preservation of moral values. The nation which safeguards
bring armed troops of their respective lands to protect their life
these three things ensures the safety of everything and nothing
and limb, but these troops along with the Hijaz’s army were
can stand in the way of its progress. unable to maintain peace and tranquillity and protect the locals
495. Shariah Punishments in the Light of Experience. as well as the pilgrims against the onslaughts and plunder of the
robbers. The law enforcing agencies were simply helpless. But
Prescription of harsh punishments for the eradication of
no sooner was the Shariah enforced than the situation was
crime is not enough to prove that the Shariah has been more
transformed, the people heaved a sigh of relief, peace was restored
successful in weeding out crime than the laws in force. It is
in the land and loot and plunder came to an end, so much so that
necessary to produce evidence of the fact that the Shariah
crimes became a part of history. Those who did not see the
punishments have actually resulted in the eradication of crimes,
miserable plight of Saudi Arabia hardly believed it. The people
for only the means and ends are of no consequence in this respect.
no longer hear any news of crimes being committed. They are
What matters is the extent to which the means have been efficacious
rather given the reassuring tidings of the ideal atmosphere of
in the achievement of ends. The laws in force also have the same
peace. If any one drops his purse full of money, will regain on
purpose in view, i.e. eradication of crime and they also provide
the spot before reporting the matter to the police.
punishments for this purpose, but they have practically failed to
If some one drops his stick on the road, it may possibly
achieve it.
affect the smooth flow of traffic, but nobody will pick it up. The
The only yardstick to measure the success of a criminal
police will arrive and take it away. Similarly if someone loses
legal system is experience. No hollow arguments, however pleasing
his personal effects the police will look for them and no sooner
they may be, will be of any use in this regard. Such arguments
they are traced than they will be handed, over to the owner whether
sometimes prove to be true and sometimes false. I am not expressing
or not he reports the loss. Thus a small number of police is
my own opinion here. It has in fact been expressed by experts on
capable of maintaining peace and tranquillity which a large number
the occasion of the International Law Congress. They unanimously
expressed the view that the best system of criminal law is that of local and foreign troops could not maintain. Enforcement of
Shariah by Saudi Arabia is a comprehensive experiment which
which practically produces better results and it is only through
experience that we can have the knowledge of such a system. bears testimony to the fact that the punitive system of Islam
completely wipes out crimes. That is why it is exactly the system
Latest experience has identified such an excellent system
which the International Conference on law has desiderated.
of criminal law and borne out that it is no other than the Islamic
Shariah. The Islamic Shariah has been evaluated by two kinds of Partial experiments were first made in England, USA, Egypt
experiments. One of them is comprehensive and the other is partial. and some other countries. Later the punishments in question have
The comprehensive experiment was commenced in Hijaz been tried in almost all the countries of the world. There partial
twenty years ago, where the Shariah v/as enforced in totality and experiments have also met with phenomenal success. We describe
has proved to be unprecedented success. The conditions obtaining them as partial because they are limited only to one punishment
prescribed by the Shari'ah i.e. the punishment of flogging. Thus
110

ill
in England the criminal and military laws provide for flogging.
It has also been incorporated in the Egyptian military while in because he fears the harm ensuing therefrom. The harsher the
USA and certain other countries flogging has been prescribed as punishments the more the people will avoid committing crimes,
the basic punishment for offences committed by the prisoners. and the lighter the punishment the more will they be attracted by
Subsequently in the wake of Second World War all the countries them. If we keep the crime in view overlooking the delinquent,
of the world adopted it as the punishment for hoarding, profiteering he will abstain from guilt inasmuch as he will not nourish any
and offences resulting in the breach of peace. This is admission hope of lenient treatment and will thus tread the right path. The
of the fact on international level that flogging is more effective Shariah has taken into consideration human nature and laid down
than all the punishments and that it is the only punishment which punishments on its basis, in particular the punishments of hudood
can ensure the public discipline and obedience of law and that all and qisas. In prescribing these punishments it has fixed its glance
the punishments prescribed in the laws in force cannot stand on the crime in total disregard of the delinquent, inasmuch as
comparison with it. This admission on international level is such offence are heinous and badly affect the social system.
tantamount to the acknowledgement of the Shariah as the only Leniency in the case of these offences would pose a serious
successful law for the extirpation of crime since flogging is one threat to the community, while harsh treatment would lead to a
of the basic punishment laid down by it. decline in the incidence of crime.
The experiment of Egypt on focussing attention on the crime
496.The Shariah punishment and Human Nature
to the exclusion of the offenders’ personality has produced excellent
In short the experiments have proved that the Shariah results. The legislative authority of the country decided to overlook
punishments are practically more effective in the elimination of the person of the offender to a considerable extent where use of
crimes and produced for better results than those provided for in intoxicants was involved. Accordingly Act No.21 of 1928 was
the operative modem criminal laws. The reason for the outstanding promulgated providing for severe punishments for keeping narcotics
success of the Islamic Shariah is that it has kept in view human and intoxicants. Under the Act punishment of such an offences
nature in laying down its punishments. Fear and hope are inherent was doubled, minimum limit thereof fixed and deferring of the
in human nature. Man tends to do everything from utilitarian enforcement of sentence prohibited. As a result of this, use and
point of view. He does not do anything unless be expects to trafficking of intoxicants was remarkably reduced. The gradual
profit by it and does not refrain from doing something unless he decline in the incidence of this crime can well be assessed in the
is apprehensive of its harm. No one jumps out of a running car light of statistics: Tn 1926 a year before the promulgation of the
because of the fear of death although such an act may be profitable. above Act the offences relating to narcotics and intoxicants was
But if the same person feels he will gain by jumping from a tram 21113 in 1928-1929 it was reduced to 11404, in 1929-30 to 8599
or horse back, he will readily do so because it does not involve in 1936-37 it fell down to 1922 and in 1942-43 it was restricted
the danger of coming to much harm. One is not afraid of travelling to 1628.
by a Car as much as one is afraid of travelling by air, of riding The above figures bear it out that in the case of heinous
a tamed horse as much, as of a riding restive one. He will not be crimes overlooking the person of the offender is most effective
afraid of going up an elevator but will be scared of climbing a in the elemination of crimes. The viewpoint of Shariah in this
step hill or cliff. Man tends to weigh the pros and cons of all that respect is absolutely correct. In fact the above statistics are solid
he has and when he finds that disadvantages are greater than and empirical proof of the cogency of the Shariah concept of
advantages he will and wrong man commits crime because he punishment. • z, • • !\ • t t
hopes to achieve something thereby and avoids committing it

112

113
 complete his term in a public jail. Such a jail is situated in the
jurisdiction of a province.
Jail punishment is that the. convict is confined within the
four walls of a prison house and is put on hard labour as specified
by the government (Egyptian Penal Code, Article 16).
The minimum term of hard labour is three years while the
SECTION VI
maximum is fifteen years. It may, however, be more under a
specific section (Egyptian Penal Code Article 14, 16). By the
PUNISHMENT OF EGYPTIAN LAW AND THE punishment of imprisonment is meant that the convict is to be
AMBIT OF THEIR IMPACT confined in a central or public jail for a minimum term of twenty
four hours and maximum term extending to three years. However,
497. The Kinds of Punishments if a provision exists in the law for a more extensive term, it may
Under the Egyptian law crimes vary with punishments. It be enhanced. Imprisonment is to be either simple of rigorous. If
divides crimes into three kinds. The first kind consists of major it is rigorous the prisoner is made to hard labour inside or outside
offences. The second of misdemeanours and the third of the prisdn.
contraventions. Separate punishments have been prescribed for It may be said that hard labour for life or for a fixed term
each of these kinds. For the first kind of crimes termed as major and confinement in a jail are all by nature punishment of
offences various punishments have been laid down which include imprisonment. They are identical in nature But different in respect
death penalty, rigorous life imprisonment, rigorous imprisonment of the length of time. As for the nature and rigour of labour
for a fixed term and confinement in a jail. Punishments for which a convict has to undergo, it does not affect the nature of
misdemeanour comprise imprisonment, custody and mulct or fine imprisonment as confinement. Looked at this the punishments
and the punishment for a contravention is imprisonment and fine for which the Egyptian law provides come to this: death penalty,
as well. The difference between the punishment of misdemeanour confinement, custody and fine.
and contravention is that the term of imprisonment for the latter
Until 1937 provision existed in the Egyptian law for flogging
does not exceed seven days while for the former it extends to
which was reserved for juvenile delinquents but it was later replaced
three years. Similarly fine for contravention does not exceed a
by admonition.
hundred qursh while the fine for misdemeanour may be more
The punitive law of Egypt also included expulsion for life
than that.
E or for a fixed period but in 1904 the provision relating there to
Death penalty means taking the life of an offender. But in
was rescinded on the ground that on account of the modem facilities
civilized countries different methods are in vogue for putting an
of communication this punishment had lost its efficacy.
offender to death. In some countries such as Egypt he is hanged,
Subsequently, however, it was decided to restore punitory expulsion.
in France he is beheaded with a sharp weapon or instrument and
In 1940 during the second world war the government was compelled
in USA he is electocuted.
to adopt such a punishment again. Besides, flogging was prescribed
Acts of hard labour, whether for a fixed term or for life
for the infringement of military rules and regulations, particularly
mean that the prisoner is put in prison on laborious jobs specified
for hoarding and profiteering. In the lase of hoarding and
by the government (Egyptian Penal Code Article 14). If the offender
profiteering the punishment of flogging remained in force till the.
is a female or a male above sixty years of age, she or he is to
end of hostilities.

I
114
115
 One of the basic punishments as provided for in the Egyptian replacement of the punishment prescribed for a major offence
law is commitment to reformatory, which is exclusively intended but confinement in a jail or of life imprisonment with hard labour
for habituals and, juvenile delinquents. The penelty also basically by imprisonment for a fixed term. This practical result is in tune
constitutes confinement, although the system of a reformatory with the outcome of the punishments laid down in article 17 of
differs from that of a jail. the Egyptian Penal Code. In case the term of imprisonment does
not exceed one year the court may defer the enforcement of such
498. Power of the Court Regarding Application of above punishment taking into account the behaviour of the offender,
Punishments. his antecedents, age and other circumstances if it is satisfied that
The Egyptian penal code includes a section for the punishment the offender will not break the law again. (Article 55, Egyptian
of every offence and allowance has been made in respect of each Penal Code). A
punishment for its suitability to respective offence. Apart from
499. Reason for Conferring on Court Such Power
death penalty and admonition almost all the punishments have
two limits: Maximum and minimum. In most cases an offence The legal experts were obliged to provide wide powers for
involves two penalties, the one being higher than the other. The the court because although they are endeavouring to formulate a
court has been allowed extensive powers in the application of practical theory of punishment they are unable to harmonize those
these punishments. For instance, if an offence entails two contradictory elements on which such a theory is to be based.
punishments the court is empowered to choose any punishment Hence in order to solve this problem they have preferred to include
between the manimum and maximum limits as it deems fit for the matter in the function of the court so that it may reconcile the
the correction of the offender taking into consideration the conflicting elements by taking into consideration various principles
circumstances of the case. The court may, subsequently change and all the provisions of the law without losing sight of any
the sentence it passes and award higher penalty should the aspect of the problem. Thus it becomes obligatory for the court
circumstances of the offender so require. But this power of the to take into account the seriousness of the offence, its possible
court is limited to major offences. The court, for instance, can impact on the society, the peculiar circumstances of the offender
replace death penalty by life imprisonment or imprisonment for and those in which the offence is committed and relations of the
a fixed term, life imprisonment or imprisonment for a fixed term offender with the victim as well as the possibility of his
or punishment of confinement in a jail by imprisonment. (Article reconciliation* with him. Keeping in view all these factors if the
717 Egyptian Penal Code). court feels the circumstances of the delinquent and public good
The committing judge is vested with the powers to transfer demand that the person of the offender should be disregarded, it
some cases of majbr offences to a court of misdemeanour so that may do so and award a harsh punishment. But should it feel that
sentence of imprisonment may be passed instead of awarding the circumstances of the delinquent require lenient treatment, it
punishments prescribed for major offences for imprisonment is may deal with him provided that leniency does not prejudice
actually the penalty for misdemeanour, if conversion of major public good.
offences into misdemenours by the committing court is based on It might have been expected that the courts would succeed
specified legal grounds or on circumstances requiring a sentence in translating into practice the general theory which the experts
intended for misdemeanour then there is no curb on the exercise have failed to formulate since the courts deal with the people
of such a power by the court provided that the offence involved individually without being prejudiced by the circumstances whereas
does not entail penalty or hard labour for life. The result of the experts have to formulate, keeping in view all the factors and
conferring this power to the committing court in effect is the circumstances at once such general rules and regulations as may
be enforced in a uniform manner.

116 117
 One of the basic punishments as provided for in the Egyptian replacement of the punishment prescribed for a major offence
law is commitment to reformatory, which is exclusively intended but confinement in a jail or of life imprisonment with hard labour
for habituals and, juvenile delinquents. The penelty also basically by imprisonment for a fixed term. This practical result is in tune
constitutes confinement, although the system of a reformatory with the outcome of the punishments laid down in article 17 of
differs from that of a jail. the Egyptian Penal Code. In case the term of imprisonment does
not exceed one year the court may defer the enforcement of such
498. Power of the Court Regarding Application of above
punishment taking into account the behaviour of the offender,
Punishments.
his antecedents, age and other circumstances if it is satisfied that
The Egyptian penal code includes a section for the punishment the offender will not break the law again. (Article 55, Egyptian
of every offence and allowance has been made in respect of each Penal Code).
punishment for its suitability to respective offence. Apart from
death penalty and admonition almost all the punishments have 499. Reason for Conferring on Court Such Power
two limits: Maximum and minimum. In most cases an offence The legal experts were obliged to provide wide powers for
involves two penalties, the one being higher than the other. The the court because although they are endeavouring to formulate a
court has been allowed extensive powers in the application of practical theory of punishment they are unable to harmonize those
these punishments. For instance, if an offence entails two contradictoiy elements on which such a theory is to be based.
punishments the court is empowered to choose any punishment Hence in order to solve this problem they have preferred to include
between the manimum and maximum limits as it deems fit for the matter in the function of the court so that it may reconcile the
the correction of the offender taking into consideration the conflicting elements by taking into consideration various principles
circumstances of the case. The court may, subsequently change and all the provisions of the law without losing sight of any
the sentence it passes and award higher penalty should the aspect of the problem. Thus it becomes obligatory for the court
circumstances of the offender so require. But this power of the to take into account the seriousness of the offence, its possible
court is limited to major offences. The court, for instance, can impact on the society, the peculiar circumstances of the offender
replace death penalty by life imprisonment or imprisonment for and those in which the offence is committed and relations of the
a fixed term, life imprisonment or imprisonment for a fixed term offender with the victim as well as the possibility of his
or punishment of confinement in a jail by imprisonment. (Article reconciliation* with him. Keeping in view all these factors if the
•• %

717 Egyptian Penal Code). court feels the circumstances of the delinquent and public good
The committing judge is vested with the powers to transfer demand that the person of the offender should be disregarded, it
some cases of majbr offences to a court of misdemeanour so that may do so and award a harsh punishment. But should it feel that
sentence of imprisonment may be passed instead of awarding the circumstances of the delinquent require lenient treatment, it
punishments prescribed for major offences for imprisonment is may deal with him provided that leniency does not prejudice
actually the penalty for misdemeanour, if conversion of major public good.
offences into misdemenours by the committing court is based on It might have been expected that the courts would succeed
specified legal grounds or on circumstances requiring a sentence in translating into practice the general theory which the experts
intended for misdemeanour then there is no curb on the exercise have failed to formulate since the courts deal with the people
of such a power by the court provided that the offence involved individually without being prejudiced by the circumstances whereas
does not entail penalty or hard labour for life. The result of the experts have to formulate, keeping in view all the factors and
conferring this power to the committing court in effect is the circumstances at once such general rules and regulations as may
be enforced in a uniform manner.

116 117
 The question arises; Have the courts come up to the heinous in the superlative degree? Some-times the offender is
expectation? Have not the courts too failed like the legal experts? young, sometimes he is an old man, sometimes he is compelled
The test of success or failure is the extent to which the crimes to commit the offence by the demands of honour and decency
have been eliminated and the delinquents have been prevented and some times he commits it in the heat of emotions, some
from committing the offences. If we examine the yearly statistics times powerful motives are at work behind a criminal act and
relating to incidence of crime, we shall learn that the courts have sometimes political and national motives drive him to commit
failed in the performance of their function just as the legal experts offences. Such are the multitude of pleas with which the offenders
have. and their defenders are armed. Should the court turn a deaf ear
500. Reason for Court’s Failure in Application of Theory of to their pleas? Should it not have pity on any one, should it not
Punishment consider the circumstances of the offender, their coherence and
the commendable way they are presented? No doubt the law
The expectations of those who were optimistic about courts’
permits the court to take into account the circumstances of the
ability to apply the theory of punishment successfully have proved
offender but does not compel it to do so. This justification for
to be a forlorn hope The truth of the matter is that legal experts
keeping in view the person of the offender ceases to be a justification
failed in formulating an ideal doctrine of punishment because
and assumes the character of obligation. The result of
they wanted to combine all the contradictory elements and bring
acknowledgement of circumstances necessitating commutation
them to bear on the application of punishments all at once. Besides
of punishment and its legal impact would be that the court is to
the courts were required to take into account all conflicting elements
accept right of the offender to the admission by the court of the
without exception in dealing with every offence. Obviously no
circumstances calling for mitigation. Obviously no court can
court can simultaneously keep in view the seriousness of an offence
overlook this right nor can it do anything to the prejudice of the
and the circumstances requiring mitigation of punishment at one
offender’s defence. f
and the same time, for whenever a judge takes into consideration
the circumstances of the offender, he will have to reduce the In short the concept of the legal experts that the courts will
severity of punishment necessitated by the heinousness of offence succeed in the application of the idea of punishment as they deal
and consequently award a lighter punishment suited to the with offenders individually has proved to be incorrect. The courts
circumstances of the offender. Due to the decision thus arrived do deal with circumstances of the offenders individually but they
at by the court the offender will escape a harsher punishment and do so on the same basis as the legal experts themselves kept in
such a decision on the other hand, will be prejudicial to peace view i.e. the offence and the offender both have to be taken into
and tranquillity in the society. Consequently the culprits will be account simultaneously.
encouraged by the lightness of punishment and the incidence of If the legal experts do not sacrifice the one for the safeguard
crime will rise enormously, posing a serious threat to the security of the other, the courts too, do the same. They cannot ignore
of the community and the very punishment which is intended to either aspect of the case with the result that they abandon both,
ensure peace and tranquillity, will on account of misapplication and the security of the community is at the same time jeopardized.
become the cause of evil and corruption while the court would In allowing wide powers to the courts the legal experts
be helpless because of legal restrictions. have lost sight of the fact that the judge is after all a human
If the law provides for mitigation of punishment to which being and that human being instinctively seeks escape from
an offender is liable, in view of his circumstances can an offender responsibility. Now if man is given option among several
have grounds to claim such a mitigation in any crime that is responsibilities he would prefer a lighter one. He is constrained

118 119
 of murder proper, while four are attempted murders. In 1936-37
to accept heavy responsibility only when there is no other 3093 murders and attempted homicide occurred and in 1938-39,
alternative. The judge is not exception to this rule. He feels 3211 such cases took place. In other words despite being a heinous
death penalty as lying heavy on his conscience and tries to evade offence its incidence is on the increase. The growing cases of
passing the death sentence. He refrains from passing such a sentence homicide call for strict application of capital punishment. Besides,
as long as he can commute it into life imprisonment. Similarly the very fact that homicide is a heinous crime calls for most
if, he can commute rigorous imprisonment into simple severe punishment, whether or not other factors warrant it.
imprisonment, he regards the former as something that his But it is unfortunate that statistics do not always conform
conscience forbids. The judge, for example, feels disinclined to to logic and reason. They tell us that the incidence of homicide
award punishment of imprisonment and passes the sentence on is progressively on the increase and in spite of this deterrent
grounds of person’s circumstances, whereas he does not feel so decisions of the courts are consistently dwindling. In 1936-1937,'
disinclined when he passes the sentence but suspends its for intense, the criminal courts passed sentences in 138 cases of
enforcement. Similarly the judge does not feel reluctant when he homicide while the number of accused involved was 222 out of
passes a sentence wherein he has no power to change the punishment these only seventeen people were condemned to death. Death
penalty of the rest was commuted. In other words, in cases liable
or to mitigate it. This is not exclusive case with a judge. It is
to condemnation only 8.8 % offenders were condemned to death.
simply the demand of human nature, which is not amenable to
In 1938-39, the criminal courts announced sentences in 150 cases
change so long man remains what he is. If man is expected to
of homicide, while the number of killers involved was 906. Only
violate the demands of nature,, he will be expected to do the
nine were awarded death penalty while the capital punishment of
impossible. the rest was commuted. Thus the percentage of condemned offenders
Failure of Legal Experts in Finding Solution to Problem of stood at. 4.3%. Again, in 1939-40 one hundred and thirty eight
Punishm ent and Unmistakable Manifestations thereof. cases of homicide involving capital punishment were decided,
From what has been stated above it is clear that the experts while the number of accursed was 195. Only six of these were
have failed in finding a judicial solution to the problem of sentenced to death. Capital punishment of others was commuted.
punishment. There are two manifestations of the failure, whose Thus in cases liable to death penalty, only 3.1% were condemned.
importance and effects are evident. During the above four years the percentage of death sentences
stood at 5.9 % which, insignificant as it is, indicates that the
1. Suspension of Basic Punishments number of such sentences is extremely limited, although in the
As the result of the full powers conferred on the courts to case of homicide and other heinous crimes concerned death penalty
choose or alter the punishment of a crime* the basic punishments was obligatory.
have come to be suspended to the degree of recision. As has It will be wrong to think that the figures relating to death
already been seen the court abstains from awarding severe penalty had been greater in the past. In fact, in 1926-27 the
punishment as long it can choose a lighter one and does not percentage of death penalty had been 5.7% and later it came
award a basic punishment as long as it is in a position to award down to 2.9%. This is so small that disorder would set in and
a precautionary one. This position of the court is seldom affected. corruption could reign supreme in the society. The framers of
There are some twenty offences punishable by death, but law might not have the slightest idea that such could be the
death penalty is seldom awarded for such offences. One of them 1. All these statistics have been taken from the Annual Figures issued by the Ministry of
Justice. Only the percentage has been worked out by the author.
is homicide for which the offender’ is condemned to death. But
daily cases of homicide are rare. Five out of nine cases are those
121
120
result of changing severe punishments into lesser ones, otherwise relating to cases is provided and no details are given as to the
they would not have provided for commutation. crimes for which rigorous life imprisonment to be awarded.
It follows from the foregoing statement that although death But we presume that the proportion of such punishment is
penalty is written on the statute book yet virtually it lies suspended, even less than that of death penalty. For instance, in 1936-37
and reality gives the lie to it. charges of attempted murders against 438 offenders were established
What is true of death penalty also holds good in the case but only four of them were given hard labour for life.
of rigorous life imprisonment, This punishment is awarded in As for larceny, proportion of life imprisonment with hard
lieu of death penalty but actually it is not enforced. labour is almost nil. For instance 128 offenders were liable to
For example in 1936-37 the total number of convicts hard labour for life in 1936-37, but none was sentenced thereto.
sentenced to life imprisonment with hard labour stood at 114. In 1937-38, cases of one hundred twenty four offenders were
Out of these nineteen got life long hard labour, as the substantive decided, whereof only two were given life-long hard labour as
punishment and the rest were sentenced thereto in lieu of capital substantive punishment and the sentence was accordingly enforced.
punishment. In 1937-40 the number of offenders sentenced to Thus the proportion of this punishment for larceny comes to
rigorous life imprisonment was 121. Forty eight of them got it as 1.6% only. Again, in 1938-39, 147 thieves were awarded penalties.
substantive punishment while the remaining were awarded this Of these only three got rigorous life imprisonment as substantive
punishment as the commutation of death penalty. In the following punishment. Thus the proportion of punishment for the year comes
year 114 offenders in all were sentenced to rigorous life to be 2%. In the following year the total number of persons who
imprisonment but only 33% of them were sentenced thereto as were found guilty of larceny were awarded punishment. None of
substantive punishment and the rest were condemned criminals them, however, was given hard labour for life. In short, the overall
getting commutation. Similarly in 1939-40 the number of such figures show that for the offences of larceny the proportion of
prisoners stood at 123. The punishment of only 31 of them was life imprisonment with hard labour as substantive punishment
substantive as opposed to the rest whose death penalty was stands at 0.9%.
■

commuted into hard labour for life. Just as capital punishment and life imprisonment with hard
Apart from murders unrelated to circumstances and attempted labour have remained virtually suspended and have not been
murders punishable by death, the criminal courts have seldom awarded for the crimes they were provided for, so has it been the
awarded rigorous life imprisonment. In respect of other offences case with rigorous imprisonment for fixed terms and simple
too, the sentences to lifelong hard labour have been passed in a imprisonment, since the cases for which these punishments are
very limited cases. Thus in 1986-37 and 1939-40 rigorous life awarded are generally transferred to the court of misdemeanour
imprisonment was awarded only for homicide and attempted murder in view of the legal grounds claimed by the accused and his
besides five cases which involved larceny. circumstances necessitating commutation so that they may be
The percentage of life imprisonment with hard labour as decided on the basis of misdemeanour. Such cases are nearly
substantive punishment for murders unrelated to circumstance half of the total number, which means that this constitutes one
stood at 7.8 in 1936-1937, at 15.8 in 1937-38, at 8.9 in 1938-39 third of total number of offences involving rigorous imprisonment
and at 12.9 in 1939-40 respectively. The overall percentage for for fixed terms and simple imprisonment as substantive
these four years comes to 11.3. punishments.
However, it is not easy to give the rate of incidence of The cases assigned to criminal courts are of two kinds. The
attempted murders, inasmuch as only an epitome of statistics first kind of such cases consists of those involving capital
punishment or rigorous life imprisonment wherein the circumstances
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123
of the offender sometimes call for commutation and sometimes and the proportion of the rest of the crimes for which such
do not. The second kind comprises those cases involving punishment is awarded as substantive penalty is only 11.1% The
imprisonment with hard labour for fixed terms and simple percentage of offences for which hard labour for fixed period
imprisonment wherein according to the committing judge the and simple imprisonment are prescribed comes to 35% inasmuch
circumstances of the accused do not call for commutation and as half of them consist of misdemeanour and remaining 30% are
therefore logic demands that the accused are to be awarded decided under the provision providing for punishment of
substantive punishments. But events do not fulfil the demand of misdemeanour.
logic since in such cases mostly simple imprisonment is awarded. The import of all this is that rate of application of punishments
The figures indicate that in 38% of such cases simple imprisonment has fallen by one or two degrees, for capital punishment is replaced
is given in lieu of substantive punishments. by rigorous life imprisonment, and rigorous life imprisonment
The circumstances necessitating commutation are always by hard labour for fixed terms and simple imprisonment and
apparent to the court, although they may not have come to these punishments in their turn by confinement. Thus we that
knowledge in course of investigation. Besides, they present substantive punishments have come to be suspended. What is the
themselves to be deserving commutation. extent of this abeyance and what is its significance?
We now try to ascertain the percentage of punishments for Second: Inclination Towards Commutation
all offences, whether awarded by Criminal Courts or Court of It has already been mentioned that the law provides for
Misdemeanour. In 1936-37 the criminal courts sentenced 3063 two limits of every punishments; the maximum or the most servers
offenders to punishments involved in 2482 offences. Out of these and the minimum or the lightest. The courts have been vested
941 were awarded punishments for misdemeanour. The same year with the powers of determining any punishment between the two.
1416 persons were awarded punishments by the Court of But what actually happens is that courts are inclined to award
misdemeanour involved in 11504 offences. Thus the total number lighter punishments and because of the factors at work already
of offenders against whom sentences were passed stood at 4479 explained, they choose the least severe ones.
out of whom 2357 were given punishment of misdemeanour. In The proof of this inclination is provided only by official
other words for 52.6% crimes punishment of misdemeanour was Statistic^. I
awarded in lieu of substantive punishment. In 1937-38 criminal In 1936-37 rigorous imprisonment for fixed terms was
courts awarded punishments of misdemeanour to 2935 offenders awarded to 1165 offenders. The least of these terms was three
involved in 2408 cases and the same year the court of misdemeanour years which was gives to 33.2% offenders. Offenders getting 10
sentenced 1326 people involving in 1045 cases to the punishment to 15 years terms comprised 15.4% and getting 3 to 10 years or
of misdemeanour. In other words, the number of offenders sentenced onwards comprised 15.4%. The same year 744 offenders were
to punishments for crime proper was 2103, while that of offenders
sentenced simple imprisonment. Those getting the minimum term
getting punishment of misdemeanour was 2194. This means that
of three years were 58%, ten to fifteen years were 1.8% and
in 51% cases of crimes the punishment of misdemeanour was
those getting 3 to 10 years or more 40.2 %. Again, durin­
awarded in lieu of substantive punishment. In 1938-39 this
same years 40090 offenders were sentenced to rigorous
percentage was 49.7% and in 1939-40 it stood at 49.6%. Thus
imprisonment. Out of them 56.3% got three months terms or
the overall percentage for all these years comes to 50.7%.
less, 33.4% got 3 months to 1 year and 10.3% got-more than a
In short, Capital punishment is awarded for only six of the
year. The same year 23925 persons were sentenced to simple
crimes for which such punishment is prescribed. Rigorous life
1. These statistics have been taken from the Annual Reports of the prisons while the
imprisonment is not given in some cases as substantive punishment
percentage has been worked out by the author.

124
imprisonment. Those who got three months or less comprised the two principles as far as possible and in doing so it always
90.6% while those who got more than ninety days comprised tends to decide in favour of the offender, for the offender present
4%. in person entreating mercy, imploring for leniency by describing
Again, in 1938-39 out of the total number of those sentenced his circumstances and justifying his viewpoint whereas the public
to fixed terms of hard labour, the convicts with minimum term good does not present itself with equal emphasis. That is why the
comprised 48.9%. Those with ten to fifteen years were 13A% court does not keep in view the public interest as much as it does
while those getting less than ten years and higher than the minimum the offender’s interest. The result is suspension of punishments
terms were 37.7%. During the same year 69.3% got minimum and commutation.
punishment of simple imprisonment, 1.6% ten to fifteen years
503. Are the Punishments of the Penal Code Successful in the War
and 29.1% got between minimum and maximum terms. This year a

against Crime?
the proportion of those sentenced to rigorous and simple
imprisonment was the same as the previous year. These figures Punishments are prescribed in order to weed out criminals
are clear testimony to the fact that the courts are reluctant to and eliminate crimes. When the law prohibits an act, it provides
award severe punishments and tend to prefer lighter ones. at the same time for a quantum of punishment for the commitment
It should also be borne in mind that by awarding lighter of such an act, which it considers a guarantee of making the
punishment in lieu of substantive punishment, the punishment is people refrain from being guilty thereof. If the punishment so
already commuted. In other words the courts commuted punishment prescribed serves the purpose of preventing the people from doing
twice. First when choosing the punishment accepting circumstances the prohibited act, the punishment obviously is successful and if
necessitating commutation and secondly when determining the it can not, the ruler or the authority lays down harsher punishment
quantum of punishment and passing the sentence. which can ensure prevention of the incidence of crime.
In other words, the test of the efficacy of punishment is the
502. The Reason for Commutation and Suspension of Punishment effect it produces on the criminals. If the incidence of crime and
We have learnt from the foregoing statement how the the number of criminals diminishes the punishment is successful
punishment come to be suspended and how the courts .tend to but if does not, then its replacement by such punishment is
mitigate punishments. The reason for both these phenomena is imperative as is efficacious enough to make the criminals desist
the same. The law has provided for punishment for the purpose from committing the offence.
of correction and deterrence on the one hand and has on the The Egyptian law prescribes death penalty, rigorous life
other acknowledged the impact of the offenders’ circumstances imprisonment, hard labour for fixed terms simple imprisonment
on the punishment to be awarded to him by admitting the importance and confinement for various offences. It is to be seen how far
of his person and has thus made it obligatory for the court to these punishments are successful and what effects do they produce
take into account both the principles at once when awarding on the incidence of crime and on the offenders. Despite their
punishments for both heinous and minor offences. It does not diversity the above punishments are actually two punishment death
disregard the person of the offender in dealing with heinous offences penalty and imprisonment.
affecting the community as does the Islamic Shariah* Now the
two principles mentioned above are contradictory. Correction and 504. Death Penalty
deterrence require severity of punishment and consideration of No doubt death-penalty is preventive punishment. It is
the offenders person demands mitigation of punishment. The court prescribed for a small number of offences and does not practically
is unable to remove this discrepancy. It can, however, accommodate apply to offences other than capital crimes. Keeping in view

126
127
relevant statistics it has been shown that the offences for which
death penalty is laid down constitute only six percent of total cases of even heinous offences affecting the public good and
crimes. This is too small a proportion and as such may even resulting in the individual’s death, circumstances necessitating
incite commitment of offences rather than prevent them. Those commutation of punishment are* taken into account. Had the
who have to deal with judicial business know that today’s killer acceptance of such circumstances been forbidden or had it been
does not care for pleading guilty after committing the offence. ft *
forbidden only in the case of homicide or had the court not been
He rather concentrates on his defence and seeks to have lenient empowered to commute capital punishment, this punishment would
treatment so that he may brazenly escape capital punishment. He have sefved the purpose of reducing the incidence of homicide
generally succeeds in achieving his end. and a dangerpus aspect of criminal problem would have been
I cannot understand how we accept the pleas of callous solved.
killers who turn a deaf ear to the entreaties of the victims. How
is it that we have pity on those who have no pity on the victims? 505. Punishments of Imprisonment and Their Drawbacks.
When a killer takes the life of some one he does not have the Hard labour for life and fixed terms as well as simple
slightest pity and he commits homicide under a premeditated imprisonment and confinement in reality constitute the substantive
scheme. The question arises as to what are the factors and ’ punishment of imprisonment whose difference in respect of the
circumstances that necessitate leniency and magnanimity? The lengths of time is far greater than in respect of their nature. The
law itself draws lines of distinction between premeditated murder punishment of imprisonment is actually the substantive punishment
committed by lying-in-wait, by combining it with other offences, of a majority of offences'. It is awarded to the offender who
by committing it to facilitate other crimes and the homicide commits an offence for the first time as well as for the
committed at random and unwittingly. The law provides for capital unmanageable and habitual offenders. It is awarded to women,
punishment in the first kind of homicide (i.e. the cases of intentional men, young and old people alike. Those guilty of heinous offences
murder) and rigorous imprisonment for the second kind. How as well as those involved in minor ones are equally sentenced to
then, have we come to treat both these matters at par? How is it imprisonment. The application of this punishment thus has led to
that we have limited the capital punishment to a narrow sphere serious consequences and given rise to complicated problems
by treating leniency as warrantable? In 94.1% cases wherein the which are as follows:
offender does not deserve any pity, he is regarded as meriting
(1) Burden on Public Exchequer and Reduction in Production.
leniency and mercy.
The offenders sentenced to imprisonments of various kinds
The proportion of homicide in all the offences committed
live in jails till the expiry of their terms. These jails have different
each year is 35% and its incidence is on the increase. Thus is
names and are of different grades. The first grade consists of
1935-36, 285 murders and attempted murders were committed in
central jail in which convicts with terms of three months or less
the total number of 7976 crimes. In all 1936-37 out of 8618
are kept. The second grade consists of public jail meant for people
offences committed in all 3093 were murders and attempted
with more than three months terms and elderly males and females
murders. The overall figure of offences of crimes in the following
sentenced to rigorous imprisonment. Third grade jails are those
year were 9232 out of which 3319 were murders and attempted
prisons to which convicts with rigorous life imprisonment and
murders. Obviously, leniency with the offender accounted for the
hard labour for fixed terms are committed. There are also
increase in the incidence of homicide.
reformatories intended for male habituals. For young offenders
This flaw in the capital punishment is not intrinsic but separate reformatories exist wherein convicts above seven years
owes itself to application thereof. It comes into play because in of age are kept.

128

129
 The number of offenders who were convicted of various arms or for failing to sow the prescribed quantity of wheat or
offences in 1938-39 was 127090. This figure does not include one apprehended inadvertently. The result of living together in
those convicted by the central courts, whose number increases the same environment is that the germs of guilt spread among all
each year. In 1937-38 the daily average number of prisoners of them. The offender who is pasUmaster of committing crimes
stood at 25515 as against 5974 during the previous year. reveals the secrets of his trade to the innocent inmate and uses
The prisoners are generally healthy and able-bodied. Keeping him as a tool. Consequently the innocent inmates come out of
them in jails means to waste their capabilities and prodigious the jails with crime having taken root in their minds.
powers of labour. If they are awarded punishment other than It has been learnt from experience that when a person is
imprisonment the society would benefit from their capacities and held for an act which is no offence worth the name such as
labour on the one hand and such punishment will be enough to keeping unauthorised arms, he hates the criminals before going
reform and correct them on the other. to jails and shrinks from the very idea of belonging with them.
Doubtless, there are punishment which can be effective But when the same person is released from the jail the germ of
means of reformation and admonition and result in the eradication crime is already rooted deep in his mind. He does not only adopt
of crime. One of such punishments is flogging, which does not the crimjnal way of life but actually prides on it. That is why
affect the offenders’ productivity and daily output. courts are reluctant to pass sentence of imprisonment for offences
of relative nature, which do not have criminal spirit and in case
The prisoners’ productivity is, no doubt, exploited in jails.
the offender is a beginner, he is condoned even if he is found
But only a small number of inmates are put on useful jobs. Other
guilty of a real offence, inasmuch as the courts fear that should
inmates are fed, clothed and provided medical treatment at
the beginner or innocent person be committed to prison he will
government’s expense. Thus they live their lives in vain.
turn into a professional criminal.
In 1938-39 the Egyptian government spent 862125 guineas
The jail, in short, is not an institution where the criminal
(21 English shilling) on jails. The income occurring from the
could be set right. In fact it is a training school for the criminals.
prisoner’s labour amounted to 150000 guineas, thus government
The government is alive to the complexity of this problem
had to incur 712125 guineas on jails. If the deficit caused by the
and is endeavouring to solve it. But the lines on which reformation
confinement of young people is included in this amount, the total
is sought suggests that it is not an effective remedy, for the
deficit the community has had to bear annually comes to 2582285
official mode of thinking is to divide the jails on the basis of the
guineas assuming that the annual output of each prisoner is equal
nature of punishment and classify the offenders on the basis of
to twenty-four guineas.
their age groups. But such a classification is not likely to affect
(2) Inmates’ Corruption the prevalent situation. The reason is that all the offenders getting
identical punishment will gather together, of whom some will be
Had the punishment of imprisonment proved an effective
beginners with little knowledge of crimes and some habituals
means of reforming the inmates of prisons, the society would
and experienced criminals. Their indiscriminate mixing up would
have readily borne this huge deficit. But in reality the inmates
produce the result whose question of remedy poses the present
are not reformed by the punishment of imprisonment. On the
complex problem. It is also no solution to the problem to keep
contrary their criminal disposition is aggravated by it, for inmates
young people in the same jail and people advanced in age in a
consist of all sorts of criminals including habituals, offenders
separate jail, for Statistics show that majority of the offenders
with different criminals specialties as well as those who are not consist of young people. For example, in 1938-39 the number of
criminals in the real sense of the word but are treated by the law young criminals was 55277 and this amounted to 66% of the
as such, for example one who is held for keeping unauthorised
131
 The annual increase in the number of habituals bear testimony
total number of prisoners. Out of these 15050 were aged between to the fact that imprisonment produces hardly any result in the
sixteen to twenty years and the rest were 33 to 23 years. In other effortstoreform the offenders. For instance in 1935-36 the number
words the number of young prisoners was greater than that of the of repeated offences stood at 872, in 1936-37 it was 939, and the
old ones and the association of the youths with experienced culprits following year it rose to 1023. Obviously such offences are
suggests that former must have been steeped in the ways of the committed by those habitual criminals who had already committed
hardened criminals. several offences.
(3) Lack of Preventure Factor (4) Loss of Sense of Responsibility
The punishments of imprisonment has been prescribed under In addition to the fact imprisonment is not a deterrent
the impression that it is a preventive penalty but as a matter of punishment the worst thereof is that the prisoners lose all sense
fact it has proved fruitless. It does not produce any salutary of responsibility and make them fond of idleness. Many prisoners
effect on the minds of the prisoners. Those who are sentenced to spend long years in prisons, where they exult in idleness and
rigorous imprisonment come out of jails as habituals, well enjoy various facilities at the expense of the government such as
conversant with the techniques of crimes. Has it been of any meals, clothing and medical treatments. It has been observed that
good, the convicts would not have been guilty of crimes again after coming out of the jail these people do not feel like doing
and again soon after being released. any work. They are completely torpid with sense of responsibility
We learn from the jail statistics that in 1938-39 forty-five and no sense of duty towards their families. Soon after their
/
percent of the convicts committed offences again within a period release they commit not only because they are accustomed to
of fifteen days to one year, while 43% of those committed to committing them but also because they are desirous of returning
reformatory were guilty of crimes again. This was notwithstanding to indulge in the pleasures of idleness.
the fact that admission to reformatory is the most preventive of
all punishments and the offender is released from it only when (5) Increase in the Power of Criminals
sufficient proof exists for the release of the inmate and for tendency Offenders released from the jail are a drain on the community.
to lead normal life as a useful citizen. The above statistics also They terrorise the people by the crimes committed by them in
tell us that one-third of the inmates of reformatory consists of the past and succeed in robbing them by frightening. Thus they
those who return twice and thrice to the institute. live by generating fear and acquiring goods and money by unlawful
The figures released by the jails also show what impact is means. They are not interested in decent and legitimate source of
made by the jail life on the minds of offenders. For example in income.
1938-39 the number of the reformatory inmates consisted of such The power of the dangerous criminals has overwhelmed
offenders who had already committed crimes five to ten times, today the law-abiding citizen to such an extent that it rivals the
one third of those who had committed them ten to fifteen times power of government itself. It is also common knowledge that
and the rest as many as fifteen to forty times. Had the jail life the government uses the services of these criminals during
served a deterrent to crimes the offenders would never have electioneering campaigns in order to coerce the voters of different
committed them ten, fifteen and forty times. parties into a particular direction.
The same figures, again indicate that the number of such The important place the criminals have thus acquired imbibes
reformatory inmates is progressively on the increase as had already in the young people an inclination for criminal behaviour. They
lived there. Thus in 1916 re-entries were 10.8%, in 1926, 20.6% naturally tend to secure for themselves an important place, and
and in 1936 it swelled to 38.7%. it is in this way that the importance of the offenders has made

132 133
 and for their masculine potentials. The evils resulting from the
its impact on this mass psychology. Hence crimes, which were punishment of imprisonment are not confined to the prisons. They
formerly despised, have now come to be a means of pride and exert their influence outside the jails for, the wives, daughters
honour, and the criminals who were formerly hated have now and sisters of the prisoners corrupt under pressure of necessity.
come to acquire the position of powerful and honourable persons.
They are a power to reckon with in the present day society. (7) Rise in the incidence of crime
Varieties of the imprisonment punishment have been
(6) Decline of Standard of Health and Morality
prescribed with a view to eradication of crime, but the statistics
As the result of the enforcement of imprisonment healthy
show that the incidence of crime is progressively on the increase
males are confined together at the same place for different periods, each year. This is a situation which calls for serious consideration.
where they live deprived of freedom and separated from their
For example in the year 1906 the number of crimes committed
wives. The number of prisoners increase annually but the rate of
stood at 3586, in 1912 it rose to 4008, in 1918-19 to 67793 in
increase in the jail facilities does not keep pace with it with the
1926-27 to 8012 and in 1938-39 it swelled to as many as 9286.
result that the jail administrators are compelled to cram the prisoners Added to this are the 3281 misdemeanours committed in 1906,
up in the rooms like sheep and cattle. Things have come to such
the incidence whereof rose to 93743 in 1912, in 1926-27 to 167677
a pass that the number of inmates actually confined in jail and
and in 1938-39 it swelled 382828. During these thirty two years
lock-ups is generally three or four times higher than the number
the incidence of crime increased three-fold and that of
determined on health grounds. There are generally two rooms in
misdemeanours as much as eleven times.
a central jail. Six persons are kept in each cell. The health facilities
It may be said that increase in misdemeanours is of no
provided in the public jails are lacking in the central jails. Prisoners
consequence because such punishable contraventions of the law
in the whole of Egypt are not provided with even the mats or
are normally on the rise annually and therefore the number of
beds to lie on. They complete their terms sitting all the time and
misdemeanours must inevitably increase. This is of course true
sleeping on the ground. They are not given any sheets either, to
to a certain extent. Hence we ignore the problem of the
cover themselves with.
contraventions and take the offence of larceny as the gauge for
The result of overcrowding the prisoners in the jails and
the determination of the incidence of crime with accuracy.
depriving them of their wives company is that they fall a prey to
various venereal, skin and chest diseases. The statistics for 1939 Thus in the year 1939, 65587 thefts were committed as
against 54326 in 1926, 44110 in 1916, 23834 in 1912, and 15993
relating to the public prisons and jails indicate that 3993 inmates
in 1901 in and 9356 in 1891. This means that during the span of
were suffering form bronchitis, 369 from TB, 422 from gonorrhea,
forty eight years the incidence of larceny increased seven folds.
1160 from syphilis, 4168 from scabies, 1534 from barber itch,
Such all increase cannot be justified on the grounds of increase
5333 from other skin diseases, 219 from carb lice, 861 from
in population nor can any other excuse be offered, for population
tumours and pimples and 926 from rheumatism. Thus in 1939
did not increase even two fold as against seven fold rise in the
seventy-four thousand prisoners contacted or developed various
incidence of larceny. How can, then, increase in the cases of
maladies. The above figures and the kinds of diseases tell us that
contraventions of law and crime by seven times and three times
the prisoners standard of health and morality deteriorates in the
respectively be explained? Whatever else may be said with regard
Egyptian jails. In other words the jails are responsible for the
to the economic factor, I would assert that this factor cannot lead
spread of diseases among the inmates, deterioration of their morality
to rise in the incidence of crime if punishments are really preventive.
1. These statistics have been taken from the Annual Reports of the prisons while the This is evident from the situation obtaining in Hijaz. No doubt, •
percentage has been worked out by the author.

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the social and economic situation of Egypt is much better than better system to substitute for it. We assert that we have such an
that of Hijaz, but the incidence of crime in the latter is less than excellent system to offer which has not been introduced to mankind
the former. Peace reigns supreme in Hijaz as opposed to Egypt for the furtherance of its welfare. This system is no other than
where disorder prevails. There was a time when disorder, chaos, the Islamic order which provides every kind of safeguard to the
high incidence of crime terrorization of the pilgrims and law- society and does not only protect it against crime but also reforms
abiding citizens in Hijaz was proverbial. Perhaps the socioeconomic the criminals. The Islamic system has also proved in practice to
conditions of old chaotic Hijaz was not much different from be the most effective in the elimination of crime.
what it is now. Keeping this fact in view, the difference between
The Islamic system has not only proved a success practically
old and new Hijaz is similar to that which now exists between
but the basis whereon it is established guarantees that it would
Hijaz and Egypt. This difference is manifest in the fact that the
eliminate the faults and drawbacks that characterize the modes
punishments in operation in Hijaz are preventive and these were
of punishments in force and save the mankind all the expenditure
not formerly awarded in that country nor are they awarded in the
incurred and the efforts made by the world today for making
present day Egypt. It is because of the preventive and deterrent
amends for the harmful effects of these punishments.
punishments, there is complete peace in Hijaz, where people have
The first drawback of prevailing legal system is that it
got rid of robbery and plunder and tranquillity of the country
suspends the substantive system and mitigates it. The Shariah,
serves as a model to the rest of the world. If a traveller drops or
on the contrary, lays down the prescribed punishments with
loses something on the way the public recovers it for the owner,
even if the matter is not reported. determined quantum for heinous offences which have bearing on
the society. The courts have no powers to make any change in
In view of this practical instance it will be wrong to attribute
such punishments by increasing or mitigating them, for in the
the upward trend in the incidence of crime to socio-economic
case of heinous offences the Shariah keeps public interest above
conditions or explosion of population. Crime is a disease and its
all other considerations. As for the offences that do not affect the
remedy is punishment. The disease will be rooted out or at least
society, the Shariah authorizes the court to take into account the
its severity will diminish if the ruling class succeeds in providing
person of the offender, and should he be considered amenable to
the right treatment. If they fail to have access to the right remedy,
reformation, commute his punishment in view of his circumstances
the disease will aggravate and assume serious proportions and
warranting commutation.
the community will have to bear its dire consequences.
Another element of the prevalent legal system is that in
506. How to Get Rid of the Drawbacks of the Prevailing Systems most criminal cases it prescribes such punishments as are
We have dwelt on the demerits of the punishments prescribed substantively identical, i.e. imprisonment. The only difference in
by the present legal system and have come to the conclusion that the various kinds of this punishment is the degree of severity.
these punishments are sheer waste of time and energy and result The result of enforcing this punishment is that healthy people
in the deterioration of morality and health of criminals, destroy endowed with energy and power to work hard are confined in
peace and tranquillity and spread disorder and chaos in the society, jails and unproductive expenditure is to be incurred upon them
undermine the dignity of the government and strengthen the hold causing the nation two fold loss: Vain expenditure on keeping
of anti-social elements on the law-abiding citizens. The only way them in jails and wasting their labour force. If the Islamic system
to avoid all these dire consequences of the modes of punishment
is enforced, the nation will be immune from all the damages
in vogue is to change the whole way of life. But people are not
caused by imprisonment for the Islamic punishment of hudood
prepared to effect any change in the system unless they have a
and qisas do not include this punishment. As has been shown
above, the crimes involving hudood and qisas constitute thirds of
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 it means that the criminal tendency persists in him and previous
the lotal number of offences. Apart from these, the Shariah prefers punishments undergone by him have been to no avail.
flogging to imprisonment as ta ‘zeer. It does not prefer imprisonment
Yet another demerit of the modes of punishment in vogue
to the former unless it is awarded for indefinite period so that the
is that the criminal loses sense of responsibility and develops a
offender may be cast away from the community and the community
liking for idleness. He desires to live by extorting money from
may remain safe from his wrong-doing till his death. Besides the
others rather than by the sweat of his brow. The Shariah provides
punishment of indefinite imprisonment is awarded to habituals in
a remedy for this. It is the punishment of flogging which debases
cases of heinous offences. Supposing in the case of the remaining
the offender in his own eyes and shuns from committing the
one third of the offences, flogging is awarded for fifty percent it
crimes again. He is also degraded in the eyes of others as well
must be admitted that punishments of imprisonment, banishment, and therefore the people are not afraid of him. They do not
fine, and several other ta'zeers will be distributed among the regard him as dangerous and so powerful that the government
remaining fifteen percent. What this means is that offences involving cannot lay hands on him.
lashes are heinous ta ‘zeer offences and the remaining offences
If we take stock of the flaws inherent in the punishments
for which punishments other than lashes and indefinite imprisonment
laid down by the laws in force we would realize that the application
are awarded generally constitute minor crimes. For such offences of the punitive modes prescribed by the Islamic Shariah offer
exhortation, admonition and fine are sufficient punishments. The effective remedy for the drawbacks of the above punishments.
outcome will be that imprisonment is awarded in only 5% of all
We have now learnt how the modes of punishment in force
the criminal cases. Such a result can be arrived at only when the
undermine morality and damage health and badly affect peace
Islamic concept of punishment is translated into practice.
and tranquillity. On the contrary the Islamic punitive forms are
When the offences for which imprisonment is awarded are free from such drawbacks. In fact they are a sure remedy for
reduced to such a degree there will be phenomenal decrease in them. Is it then possible for anyone to prefer the modem laws to
the number of prisoners and thus the problems of indiscriminate the Islamic Shariah? If anyone does, we have but to cite the
mixing up of prisoners and of the resultant evils, including following divine decree:
deterioration of the inmates’ health and the spread of crimes will
“For indeed it is not the eyes that grow blind, but it is the
also be resolved. Besides, repetition of offences, too, will decrease
hearts, which are within the bosoms that grow blind.”
inasmuch as the association of prisoners at the same place invites
(22:46)
them to commit offences again.
Again, such offenders as are not dangerous will be sentenced
to imprisonment in very small numbers for limited terms. It follows
that the germs of evil and corruption are not likely to multiply.
Even if evil and corruption do ensue from limited terms of
imprisonment they will not be so dangerous as to affect offenders
or distrub peace and tranquillity, for the prisoners will be limited
in number and will not be dangerous ones. Moreover, the same
offenders will not necessarily be sentenced to imprisonment again.
As for the dangerous offenders whatever the nature of their crimes,
the Shariah provides for them imprisonment for indefinite period,
inasmuch as if a habitual criminal commits even a minor offence,

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 508. Laws in Force and Multiplicity.
In the case of multiplicity of crimes the laws in force provide
for three methods:
1. Combination:
CHAPTER IX
This is the method adopted under the English law. It requires
MULTIPLICITY OF PUNISHMENTS that the offender should be awarded the punishment prescribed
for all the offences he is guilty of.
507. Multiplicity of Punishments and Multiplicity of Crimes. The demerit of this method is excess of punishment.
Punishment multiply side by side with multiplication of Combination of all the punishments results in exceeding severity.
crimes. Crimes multiply when the same offender recommits several For instance, if the punishment of imprisonment for several terms
crimes and he is not prosecuted for any of them. This is the is combined, it will amount to lifelong imprisonment. Similarly
meaning of criminal multiplicity. if several fines are combined it may mean that the entire property
Multiplicity of crimes may be both in form and in substance. of the offender is to be confiscated.
If an offender does the same act more than once having a number 2. The second method is known as ‘supersession’.
of legal implication and more than one section of the law applies
This means that the most severe punishment should revoke
thereto, the commitment of such an act would amount to the
other punishments by superseding them and of the punishments
formal multiplicity; for instance a servant inflicts a blow while
prescribed for the crimes committed by the offender, the harshest
performing his duty, which may possibly constitute confrontation
should be awarded.
and transgression. But if the offenders’ acts are such that each of
them may turn into a substantive crime then such commitment of This method inheres deficiency and relaxation. For instance
several criminal acts is substantial multiplicity. a person guilty of ten offences will get only the most severe
punishment and will not be subject to punishments for the remaining
Differences between multiplicity of punishments and offences. In other words, a person guilty of heinous crime will
recommitment of crime. get severe punishment and will be free to continue committing
Multiplicity of punishments must be distinguished from other crimes till he is awarded and inflicted the severe punishment.
repetition of crime. In the case of multiplicity of crime the offender 3. The third method involves blending.
commits several crimes and no legal proceeding is instituted against
It tries to do away with the drawbacks of the preceding
him for any of the crimes, whereas in the case of repetition of
two methods by blending them together, stipulating that the
crime the offender recommits crime after being previously punished.
punishments may be combined only to a limited degree and that
Logic demands that in the case of multiplicity of crimes maximum punishment is laid down without involving excess,
the offender involved should not be awarded punishment for all and the only one punishment to be awarded should not be hard
the offences he is guilty of although he exhibits natural tendency
beyond a legitimate limit.
for crime; for when he commits the offence, he will not have
been previously convicted, nor have learnt from any previous
In most of the modem laws the two methods have been
punishment. Hence he is different from the habitual offender combined.
who has already been punished and thus warned to lead the right The Egyptian Punitive Law
sort of life.
The Egyptian punitive law is based on the principle of the
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141
multiplicity of punishments. Article 33 of the penal code lays multiplicity of punishments was incorporated in the laws in force
down that punishments restricting freedom may be numerous save in the last century. Before that, multiplication of punishment was
those exempted under articles 35 and 36. Article 35 provides that absolutely unqualified.
rigorous imprisonment sentence with its prescribed term does 510. The Islamic Shariah and Multiplicity of Punishments
away with any punishment of confinement which may have been
The Islamic Shariah was familiar with the doctrine of multiple
awarded prior to passing such sentence. According to section 36,
punishments right from the day of its promulgation. But it has
if a person has committed several crimes before he is convicted
not accepted this doctrine without reservations but rather qualifies
the punishment of hard labour for a fixed term awarded to him
it by two concepts, The concept of interpenetration and the concept
must not exceed twenty years, although such a punishment is
of super-session.
given in the case of multiplicity of punishment. Similarly the
punishment to be served in a jail or that of punishment of jail The concept of Interpenetration,
and confinement must not exceed twenty years. Only the term of This implies that in the event of multiplication, the
simple confinement is not to exceed six years. punishments of various crimes would overlap and only a single
In other words the Egyptian law has incorporated the concept punishment would apply to all the offences on the whole. The
of multiplicity but qualified it in three ways: single punishment would be awarded to the offender as if he has
1. The punishment of rigorous imprisonment with its committed only one offence. This concept is based on two
quantum of term renders ineffective any punishment restricting principles:
the freedom of the convict decided prior to passing of sentence
to rigorous imprisonment. For instance a person is sentenced to First Principle:
ten years’ simple imprisonment and subsequently to another five If the crimes multiply but their nature remains the same, as
years with hard labour. He is to serve hard labour for five years for example thefts, several acts of adultery and calumniation,
plus five years of simple imprisonment. This means that the then punishments would interpenetrate and a single penalty would
Egyptian law has adopted the second method of super session he enough for all of them. However, if the offender commits
but does not follow it in totality. another offence of the same nature after the sentence is passed
2. In the case of the plurality of punishment the maximum he will be subjected to another punishment.
limit of rigorous imprisonment is twenty years, of simple What matters in this context is the enforcement of punishment
imprisonment and confinement is twenty years and simple and the sentence passed. Thus the offence committed would be
confinement is six years. This means that the Egyptian criminal treated as one whose punishment is not yet enforced.
laws adopt the method of combination but not in its totality. According to the prevalent view, if the offences relate to
3. As formal multiplicity, only that punishment will be the same subject they will be treated as being of the same nature
awarded which is more severe in form. In the case of substantial although their ingredients and punishments may be different, for
multiplicity also, the most severe punishment will be applied example theft and dacoity both constitute larceny, although their
provided that crimes are committed for one and the same purpose elements and punishment are different. Similarly adultery committed
and that they are inseparably linked together admitting of no by both married and unmarried persons is identical offence and
analysis. This is provided in article 32 of Criminal Law and the the punishment in both the cases would be severe.
proviso here is based on the method of combination.
It is remarkable that such reservations on the theory of the I. Start Fath-ul-Qadeer, vol. 4, p. 205; Al Zurqani vol. 8, p. 108; Asna-al-Matalib, vol. 4,
p. 157; Al Mughni vol. 10, p. 197. '

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 The Malikites hold that the punishment of drinking wine
Raison D’etre of this principle and the punishment of calumniation will interpenetrate and in
The basis of this is that the object of punishment is case of multiplicity the same punishment will be awarded for
reformation and deterrence and in order to achieve this twofold both the offences. They argue that the purpose of the punishments
purpose a single punishment will be sufficient. Confidence in the for the two offences is identical, for whoever drinks wine will
efficacy of single punishment in the achievement of the object in rave and in his fit of delirium will make false accusations. The
view and for making the offender abstain from recommitting the punishment prescribed for drinking wine is also intended to curb
offence, multiplication of punishment would be unnecessary slander or qazaf. Other schools ofjurisprudence do not subscribe
although it may be rationally possible that the offender may be to this view, for according to them the punishment of Qazaf or
guilty of the offence again, but a mere possibility of such an false accusation is designed to safeguard the people’s honour,
event is insufficient until and unless it is unequivocally established whereas the punishment of drinking wine aims at the protection
that the single punishment applied to him has failed to produce of the mind. Hence the aims of the two punishments are different.
the desired result. If the offender is found guilty and is awarded
Some of the Malikites opine that the interpenetration of
punishment and subsequently commits the offence again then he
the punishments laid down for drinking and qazaf relates to the
must be punished again for the second offence because the first
punishment is not sufficient to prevent the offender from identity of their quantum, since according to them the basis of
recommitting the offence. interpenetration owes itself to the identity of punishment and not
to the identity of the purpose of punishment. But other schools
Second Principle do not seem to subscribe to this view.
If the offences are numerous and are of different nature, all If numerous offences belong to different categories and
the punishments would interpenetrate and only a single punishment their punishments are not harmonized by a single purpose, then
would be enough provided that the purpose of the punishments their punishments will not interpenetrate but will multiply in
prescribed for the offences involved is one and the same, i.e. the keeping with the multiplication of offences.
safeguard of public interest. For instance, some one insults a
government servant, combats and oppresses him, he will be liable Theory of Supersession
to a single punishment for all the three offences, for the purpose The meaning of supersession or ‘Jaab’ in the Shariah is
of punishments is the same i.e. the protection of the government this that being content with a single punishment, enforcement of
servant and government services. Or again, if a person eats the other punishments is stopped by enforcing that one punishment.
flesh of a dead animal, blood and the flesh of swine, he will be In this sense 'Jaab * is applicable to the punishment of homicide,
awarded the same punishment for all the three offences, for the because away enforcement of this punishment invariably does
object of punishments prescribed for these offences is identical away with the enforcement of other punishments. This is the
and that is the protection of the community and the individual’s only punishment which overrides other punishments.
health.
The jurists differ on the concept of 'Jaab For instance
As regards the principle of interpenetration of punishment,
Imam Malik, Imam Abu Hanifa and Imam Ahmed acknowledge
it is the enforcement of punishment that matters and not the
it and Imam Shafi‘ee does not. Again, the jurists who accept it
sentence passed by the court. Hence the offence committed before
the enforcement of punishment will be treated as falling under do not all agree with regard to its application.
the punishment of an offrnce whose punishment has not yet been Imam Malik, for example, opines that the had which
awarded. k Sharh-Al-Zurqani, Vol. 8. p 108.

144 145
 accumulates with homicide on qisas will not remain valid and will be executed. Remaining punishments he is liable to, will
that homicide will put an end to all punishments save the stand invalidated. Should he be married and commits adultery,
punishments of qazaf. For in the case of qazaf, the had for it will levels a false charge, commits theft and drinks wine, he will first
be enforced first and then capital punishment will be put into be subjected to the had for qazafbecause it is the right of individual
effect. Besides, no offender will be awarded any punishment who is wronged. After that he will be stoned to death. Other
along with death penalty but the had of qazaf, lest it should be punishments to which he is liable will cease to be valid. If the
alleged that this had has not been applied. punishment of qisas accumulates with fbesehudood, then the
Imam Ahmed holds that some hudood related to Allah hudood will be invalidated except qisas. However, in either case
including death penalty such as in the case of married person mulct for the goods stolen will be payable . Apparently the view
who is guilty of theft commits adultery also as well as drinks of Imam Abu Hanifa is in tune with that of Imam Ahmed.
wine and commits homicide in a brawl, then execution of such Imam Shafi'ee rejects the doctrine of supersession (Jaab).
an offender will suffice as a punishment of all offences referred He opines that in the absence of interpenetration all the punishments
to while all the other punishments will stand annulled. But if will be put into effect one by one. This would be done in such
these hudood of Allah include* any right of the people (individual) a way that if no capital crime is involved the punishments will
also as well as involve capital punishment will be fulfilled first begin with what is due to the wronged individual, followed by
what is due to the community, provided that this too does not
and then the remaining hudood of Allah will be added to death
involve any capital crime. The offender will finally be executed.
penalty, whether such penalty is in the nature of retaliation or
Suppose, for example, many a hudood accumulate against an
had, for instance, an offender cuts off the finger of a person,
offender: The had of adultery for an unmarried person, that of
levels a false charge against him, drinks wine, commits theft and
qazaf, larceny, robbery and retaliation for homicide. All these
adultery and also kills someone. First of all his finger will be
hudood will be put into effect in this manner: First he will be
amputated in retaliation, followed by the infliction of had for
subjected to had on account of qazaf and then imprisoned. After
qazaf or false charge. Finally he will be executed and all the recuperation he will be flogged as a had for adultery and imprisoned
remaining punishments to which he is liable will stand invalidated. till he recovers. After that his right hand and left foot will be
According to Imam Abu Hanifa, should the hudood amputated as a punishment for theft and robbery. Finally he will
T accumulate, the right of the people will be given precedence (i.e. be put to death. Should he die during the enforcement of these
the right of the individual will be preferred to the right of the hudood, the rights (hudood) of Allah will stand annulled but the
community), for the individual stands in greater need of profiting individuals will have their dues such as the blood price and the
in by his right. If there is no possibility of fulfilling the duties stolen goods. Imam Shafi‘ee assigns last place to execution in
towards Allah after fulfilling the obligations towards the individual, the order of punishments because he does not accept the punitive
then those duties will cease to be valid. However, if it is possible, doctrine of 'Jaab
then they should be fulfilled as far as possible and what remains Some jurists of the Shafi‘ee school hold that if an offender
will stand annulled as the Prophet (S.A.W.) says: is guilty of minor theft and then commits robbery, his hand is not
“Revoke the hudood as much as possible ", to be amputated for theft but he is to be executed for robbery.
For example an unmarried person being guilty of capital Similarly if someone commits adultery before marriage and is
crime commits adultery and then drinks wine such an offender
*• Shark Fath-ul-Qadeer Vol. 4, P. 208; Badae ’wal-Sanae Vol. 7, P. 62.
1. Al Mudawwanah; Vol. 16, p.12.
2. Al Muhazzab. Vol. 2, p. 305.

146
consequently flogged. He commits adultery again before being a single object. Apart from these the Shariah does not apply it
banished, only a single punishment of banishment will be enough. to any other case, because each offence entails one punishment.
If an unmarried person commits adultery and then commits adultery If the offender commits the same offence time and again before
again after being married but before undergoing the punishment he is punished for the first offence he is guilty of, his plea that
of lashes for the first act of adultery the punishment of lashes multiplication of punishment has no sense in the absence of the
would be converted to rajm (stoning to death). As a matter of application of the punishment for the initial offence must be
fact the doctrine of Jaab is not the reason for inhibition as applied accepted. But if he commits different kinds of crime and does
to amputation punishment and flogging. It is rather the application not get punishment for any one crime, this can be no excuse for
of the doctrine of interpenetration; for an ordinary act of stealing exemption from the punishment of another crime, for all crimes
is in itself is a sort of robbery with the only difference that the are severely prohibited acts and each crime entails a separate
former may be termed as a minor case and the latter as a major punishment. Punishment for any one crime has not been laid
case of larceny. Banishment is the punishment of adultery. If this down to prevent the offender from committing all the crimes.
punishment is not enforced in the case of first act of adultery, it Each punishment, on the contrary, has rather been prescribed to
will be enforced in the second act and it would be enough for deter the commitment of a specific offence. Besides, some relative
both the acts. Flogging is the punishment prescribed for an factors have been kept in view in the prescription of each
unmarried adulterer. If he commits adultery again before being punishment, which are not involved in the determination of any
subjected to the prescribed punishment then the second punishment other punishment. For example, in the case of larceny the factors
which is intended for a married adulterer would be enough for taken into consideration are such as may serve as a deterrent to
both the acts of adultery. the incidence of theft. Similarly in the case of flogging and rajm
511. The Shariah and the Modern Law Compared the relative factors taken into consideration are such as may prevent
The basis of strings attached to the multiplicity of punishment adultery. Thus the punishment of qazaf cannot serve as the
by the Islamic Shariah are the same that constitutes the basis of punishment of theft. Likewise the punishment prescribed for theft
conditions laid down in the modem law in force. Both regard the cannot replace the punishment prescribed for homicide, nor can
offender as helpless in the commitment of second offence inasmuch it serve the purpose of making an offender desist from committing
as he is not subjected to the punishment for the first offence homicide. Hence it is essential there should be different punishments
before committing the second. Both of them consider the for different offences and the offender should be given specific
consequences of unqualified multiplication of punishments punishment prescribed for each offence.
inconsistent with reason and logic. However, the laws in force differ from the Shariah on this
In spite of this point of agreement between the Shariah point. They admit of a plea in respect of another crime in the
and the operative law, the application of the doctrine of multiplicity event of non-enforcement of punishment in the case of one crime,
by the Islamic Shariah is far more logical and subtle than by the regardless of fact whether the two crimes are of the same kind
law in force. This subtlety is manifest also in the application of or fall under different categories.
the doctrine of interpenetration, which the Shariah does not apply In the Shariah the scope of the doctrine of interpenetration
without reservations. It rather brings into play this doctrine only is much wider than in the modem law, for the modem laws are
in the cases of such single crime which is recommitted again and acquainted with only one form of interpenetration and that is the
again and also in the case of various offences committed to achieve
case of an offender committing numerous crimes for one and the
1 Asna-al-Malalib, Vol.4. p. 157. same purpose and those crimes are inseparably linked together.
The legal experts interpret this form as actually the application
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149
 of the concept of 'Jaab' or supersession. But in reality this Shariah punishments are amputation of limb and flogging, and
constitutes interpenetration inasmuch as a single punishment is these cannot become indefinite punishments because of multiplicity.
awarded for all the offences. As a rule 'Jaab comes into operation Hence there was no reason in the Shariah to fix the ultimate
after the passing of a sentence whereas interpenetration takes limit of punishments on grounds of multiplicity.
place before as well as after the passing of a sentence. The form Although the Shariah has prescribed imprisonment for fixed
of interpenetration which the modem law accepts is similar to term for certain ta 'zeer offences, yet having accepted the doctrine
the second principle of interpenetration as laid down by the Shariah. of interpenetration there was no need to fix the ultimate limit of
From the foregoing statement it may be inferred that although this punishment, for the offenders are generally used to commit
the laws in force acknowledge the principle of interpenetration, only one offence or offences similar to it. Now if an offender
but they differ from the Shariah in respect of the grounds on recommits the same offence time and again he will be awarded
which the Shariah accepts interpenetration. According to the modem a single punishment under the doctrine of interpenetration. If he
commits similar crimes it will not be possible for him to commit
law the basis of interpenetration of punishment is that the offender
three or four crimes. If he is awarded separate punishments for
commits various offences with a view to obtaining one and the
same object and such offences are commingled to such a degree each of these crimes it is not necessary that all punishments
that they are not amenable to analysis. In the Shariah, on the should be imprisonment. Even if it is presumed that all of them
are punishments of imprisonment their aggregate quantum would
other hand, the basis of interpenetration is the singularity of
purpose for different punishments laid down. This is the basic exceed a reasonable limit, particularly when we keep in view the
purpose between the two. The modem law subjects the doctrine fact that some jurists of Islam fix one year as the maximum limit
of imprisonment or that the competent authority is empowered to
of interperietration to the object in view of the offender for
committing an offence whereas the Shariah subjects it to the fix three years as the maximum limit. Along with all these factors
object kept in view by the law giver in making the law. In this the second principle of the doctrine of interpenetration will operate
respect the law in force is unstable from the logical viewpoint leading to mitigation in punishment. The reason is that the
punishment for similar offences are generally designed to achieve
and self-contradictory from theological viewpoint. The Shariah
on the contrary is logically self-consistent and characterised by one and the same object and therefore punishments for accumulated
offences will interpenetrate.
singularity of purposes.
There is yet another point of divergence between the two. The Shariah and the law in force both acknowledge the
doctrine of 'Jaab * but they differ on the application of this doctrine.
The modem laws determine an ultimate limit of punishments in
the case of their multiplication which they do not overstep. But The Shariah resorts to its application when other punishments
accumulate with capital punishment (as has already been seen)
the Shariah, does not lay down any such rule. Necessity is the
raisond 'etre of this limit in the modem laws, for the substantive whereas the law in force also applies it in the event of rigorous
imprisonment accumulating with a curb to be imposed on the
punishment of these laws is the various kinds of imprisonments.
individuals freedom i.e. confinement. In such a case rigorous
In some cases it is simple imprisonment, in others hard labour
imprisonment will invalidate the individual9s detention. But the
for fixed terms and in still others rigorous life imprisonment.
Shariah does not need to take the second course of action, since
Had the ultimate limit of punishment not been laid down in the
imprisonment is not provided it as the substantive punishment.
law in force in the case of multiplication of punishments, many
Besides, the term of imprisonment provided in it is very short.
imprisonments for fixed terms would have accumulated to turn
Again, as has already been mentioned, there is no possibility
into life imprisonment and the punishments would never have
under the Shariah to convert various punishments into a life long
come to an end. As opposed to the modem law, the substantive

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150 Si

I
 punishment. Over and above all these considerations, the Shariah
does not divide the punishment of imprisonment into various CHAPTER X
kinds. Rather it consists of a single kind and single quantum as
long as its term remains limited. EXECUTION OF PUNISHMENTS
In cases where the Shariah adopts the concept of unlimited
imprisonment in does not qualify this punishment by any condition 512. Right of the Execution of Punishment
except that the prisoner repents in all sincerity and is reformed In respect of the execution of punishments the Shariah
in the real sense of the word. It so being the case there is no classifies the crime into three kinds: crimes involving hudood
reason for the Shariah to limit the term to imprisonment at all. crimes involving qisas and crimes involving penal punishments
If the offender repent and is reformed, he will be automatically (ta'zeers). If any of these crimes is imputed to a person lie will
released. He will not be required to complete any term of be prosecuted against in a court of law. If the charge against him
imprisonment. In both the cases when the offender repents or is established, sentence will accordingly be passed keeping in
remains in the jail till he dies, the point is to protect the society view the prescribed punishment. If the charge cannot be established
against his wrong doing. If he repenents and thus ensures the the accused will be acquitted. If the sentence is passed, the ruler
safety of the society from his evil acts he will secure his release. or the competent authority will be responsible for its execution
If he does not, he will remain in jail till his death and the society in respect of offences involving hudood and penal punishments.
will thus he immune from his criminal activities. In the case of a crime relating to qisas, the victim or his lawful
heir will be within his rights to execute the punishment under
specified conditions. Details about the execution of these punishment
are as under:
513. Execution of Punishment in the Case of Hudood Crimes:
The junsts are agreed that the punishment prescribed for
offences involving hudood can only to be executed by the ruler
or his deputy for had is Allah’s right which has been made
obligatory in the interest of the community. Hence the responsibility
for its execution will be vested in the Imam or the ruler of the
community. Besides, awarding of had of punishment requires
exertion of the mind (ijtihad) and it is likely to exceed the limit
or be less than it. Hence it is to be established by the ruler
himself or depute his representative to do it on his behalf.
The presence of the Imam is not essential for the execution
of a had for the Prophet (S. A.W.) did not consider it necessary
present on the occasion. He ordered it in the case of an adulteress
in the following words:
“6 Anees, go to that woman and if she confesses stone her
to death”.

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 authority or a person deputed by him. Besides, like hudood, ta 'zeers
Similarly the Prophet (S.A.W.) ordered rajm of Ma ’iz, but may also call for careful thought as they involve possibility of
was not himself present on the scene of stoning. overstepping the limit..
When a thief was brought he said: With the exception of the Imam or his deputy, nobody has
"Take him away and amputate his hand. ” the right to put a ta 'zeer punishment into effect, even if such
Permission of the Imam is essential for the execution of a punishment involves killing of the offender. If any one kills an
Had offender who is already sentenced to capital punishment as a
During the Prophet’s lifetime no had was executed without ta'zeer, he will be treated as killer, in spite of the fact that
his permission. In this connection the following tradition is also capital punishment constitutes destruction of life. The difference
Quoted: between a had destructive of life and a ta 'zeer destructive of life
“Four matters are assigned to the rulers: Hudood, Alms, is that the had can neither be forgiven nor annulled nor delayed.
Friday (prayer) and Revenue”. It is a final punishment and its enforcement is imperative; whereas
Although as a general rule, the execution of a had is the ta 'zeer may be condoned by the Imam and as such its execution
responsibility of the Imam or his deputy, yet if some one else is not absolutely essential. It does not do away with the safeguard
executes it, he will not be accountable for doing so provided that of the accused, for may be that the Imam finally decides to pardon
the had amounts to killing the offender or cutting off his limb him.
However, the person who executes the had on his own will be
accountable for encroachment on the power of the competent
authority. But if the had consists of an act other than taking the The punishments of offences involving qisas as a rule, are
offender’s life or destruction of his limb, such as flogging in the also the responsibility of the Imam like other punishments. But
case of adultery and calumniation, the person doing so will be in the case of qisas, exemption is allowed from the rule, for
accountable for flogging and for the injury caused to the offender qisas is to be put into effect through the victim and his lawful
by it and other results thereof. The difference between the two heir. Such an exemption rests on the following divine decree:
cases is that the had involving death and destruction of limb “And slay not the life which Allah hath forbidden save
invalidates the protection of life and limbs and thus the nullification with right. Whoso is slain wrongfully, we have given power
of the protection of life and limb legitimizes killing the offender unto his heir but let him not commit excess in slaying*’
and cutting off his limb, and such acts do not constitute any (17:33)
offence whereas in the case of a had that does not involve taking There is general consensus on this that in the case of
life and amputation of limb, the safeguard of life and limb is not homicide, the victim’s party has the right to put into effect the
invalidated but remains valid. Hence such a had put into effect punishment of qisas provided that it is executed in the presence
by any one other than the person authorised to execute it, will be of the competent authority, for qisas involves ijtihad and is likely
treated as an offence. to result in excess. However, if the aggrieved party puts qisas
514. Execution of Ta‘zeers into effect in the absence of the competent authority it will be
retaliation alright, but the party will be liable to ta 'zeer punishment
Execution of ta 'zeers is the responsibility of the competent
for encroaching on the powers of the latter as it does an act
authority or his deputy inasmuch as these punishments are meant
which it is not allowed on its own. The judge or the competent
for the safeguard of the community. Hence ta 'zeer is the right of
authority will decide whether or not the victim’s lawful heir is
the community and thus it will be executed by the competent
capable of performing qisas in a better manner taking into account
/. ■ Al Sharh-al-Kabeer, Vol. 10, p. 121.
2. Al Iqna ’a, Vol. 4, p. 245.

154 155
his capacity and the knowledge essentially required in such a Even if the victim’s death occurs in consequence of the
case. If he is of the opinion that the heir is not capable of doing fatal effect of cutting his limb, retaliation is to be done with a >
so then he will appoint some suitable person to perform the act sword for when the criminal act occurs it is actually homicide.
on the heir's behalf. For this reason such a homicide is to be retaliated. But if the
There is nothing in the Shariah barring the appointment of offender’s limb is amputated first and then he is beheaded in an
a permanent paid functionary for the enforcement of hudood and attempt at the exact requital for the offence two punishments of
qisas. In fact the appointment of such a functionary would be in amputation and decapitation will accumulate and thus the retaliation
the public interest. will not bear resemblance to the original offence. In a case like
In case if qisas does not involve a capital crime, the victim this, decapitation will not be treated as the complement of
according to Imam Abu Hanifa will perform qisas provided that amputation, for complement of a thing is ancillary to that thing.
he knows how to do it and can do it in a better manner. Otherwise Now decapitation is homicide which is stronger than amputation
he will nominate some one else to perform it for him. The and as such cannot be ancillary to the latter. Besides, if qisas is
Hanbalites quote this opinion of Imam Abu Hanifa as reference. designed to execute the offender and the purpose of execution
Imam Malik and Imam Shafi‘ee (as also some jurists of can be served by decapitation, how can amputation be justified?
the Hanbalite School) hold that in the case of an offence other Amputation in this case is actually torture and not qisas.
than capital crime the victim can on no account perform the act If the lawful heir of the victim wants to kill the offender
of qisas even if he is capable of doing in an efficient manner, for with something other than a sword he cannot legitimately do so.
it is feared that he will commit an excess which could not be However, should he kill him in this manner, he will be liable to
atoned for. It is therefore, in the fitness of thing that in the cases a ta'zeer punishment for resorting to such a wrong method.
of qisas for non-capital offences the act of retaliation should be Nevertheless, the purpose of retaliation will be served alright if
performed by one who knows the technique and that such person he kills the offender by hitting him with a duo or stone, hurling
should be specially appointed for the purpose . him down from a height or pushing him down into a well. The
lawful heir of the victim has the right to retaliate, whatever the
516. The Mode of Qisas for Capital Crime
means by which he does so; but using means other than a sword
According to Imam Abu Hanifa the act of retaliation for is wrong and for this he will be awarded penal punishment .
murder may be performed with a sword. Similar remark is also According to Imam Malik and Imam Shafi‘ee (and a tradition
attributed to Imam Ahmed sword is to be used whether the killer )
attributed to Imam Ahmed also) a killer should be treated in the
slays his victim with a sword or some other weapon. Again sword same way as he treats his victim. If he kills the victim with a
should be used whether the victim is beheaded or dies of a wound sword, he too, will be killed with a sword for, says Allah:
inflicted upon him or is stifled to death or killed by drowning or “One who attacketh, attack him in like ‘manner as he attacked
I
burnt alive or murdered in any other way. This verdict is supported you”. (2:194)
by a saying of the Holy Prophet (S.A.W.) which is as follows: Hence if the offender bums his victim alive, kills him by
“Qisas cannot be executed with anything other than sword”. drowning, hitting with a stone, hurling down from a hill, beats
In this saying the word used is “qood” which is synonymous him to death with a stick or starve him to death, the lawful heir
with qisas and the edict of the Prophet (S.A.W.) means that only
sword is to be used for retaliation and nothing else. L Badae'wal-Sanae’, vol.7 p.246; Al Sharh-al-Kabeer, vol. 9, P. 400; and the sequel.
2- Mawahib-ul-Jaleel, vol. 6, p. 256; Al Muhazzab, vol. 2, p. 196, Al Sharh-al Kabeer.
1. Badae'wal-Sanae', vol. 7. p. 246; Al Sharh-al-Kabeer. vol. 9, pp. 389-99.
vol. 9, p. 400.
2. Mawahib-ul-Jaleel, voL 6. Pp. 256-4; Al Mohazzab, vol. 2, p. 197; Al Shark al-Kabeer,
voL 9, p. 399.

156 157
 inhibiting the use of guillotine or electric chair for qisas which
of the victim may retaliate in the same manner. The divine decree
to this effect is as under: may cause easy and quick death. The use of such instruments
neither disfigures the condemned man nor tortures him. Guillotine
“If ye punish then punish with the like of that where with
is itself a sharp instrument and electric chair causes instantaneous
ye were afflicted” (16:126)
Moreover, qisas is based on resemblance and resemblance death without disfiguring or torturing the person to be executed.
in action is possible. Therefore, retaliation in the above manner 519. Can Government in Power Today Reserve for Itself the
is also right. Function of Performing Qisas?
In all the cases referred to, the victim’s heir may choose to Most of the jurists hold that in the case of an injury which
use a sword for retaliation, for he is allowed to kill as well as is not fatal, the responsibility of retaliation cannot be left to the
torture the offender. Hence if he retaliates by using a sword and
victim or his lawful heir, for this kind of qisas requires experience
renounces some of his right, he may legitimately do so.
and knowledge of technique. If it is left to the aggrieved party
But if the mode of killing in itself is forbidden by the there is every likelihood of torture and transgression. Qisas for
Shariah such as killing any a homosexual act or making the capital crime, of course, may be performed by the victimor his
offender drink wine, then according to the most preferred view,
lawful heir provided that he used the right instrument in the right
the act of qisas will be performed with a sword.
manner. If he is unable to perform the act of qisas in the right
517. Weapon to be used for Qisas way, he will nominal a representative who knows the job. This
Should the lawful heir of the victim perform the act of means that the guardian’s right is subject to the condition of
qisas. It is not enough that he knows the method of doing it but execution and the use of the right instrument.
is also under obligation to see that the weapon he uses for the In ancient times the people used to keep weapons and knew
purpose is not blunt or poisoned or one which is likely to torment how to use them. But today the people do not know use of the
the offender. If any of these conditions is not fulfilled the victim sword in particular and one who keeps a serviceable sword is
will be liable to penal punishment because one of the conditions hardly to be found.
laid down for qisas is that the offender is not tortured and dies Besides, death is instantly caused by hanging, guillotine or
an easy death. Says the Holy Prophet (S.A.W.): electric chair as has been practically proved. These instruments
“Allah presupposes decency in everything. Even if you kill are in the custody of the state and no individual has access to
then kill in a fine manner, slaughter then slaughter in a fine them. ' /
manner: the blade of the knife used should be sharp so that the In view of the above considerations, the circumstances of
animal to be sacrificed may feel relieved”. modem age require that the victim should not exercise his right
518. Is the Use of a Sharper Weapon than Sword Is Allowed? of qisas in person as was done in the past, but the state should
rather appoint functionaries for the purpose. If the lawful guardians
Use of sword for qisas has been prescribed keeping in
want to have qisas they should permit those functionaries to do
view the fact that life can quickly be taken with it, and easily as
the job for them. However, if they want to forgive the offender,
far as far as possible and the offender, is relieved of torture. If
a sharper weapon than sword is available, there is nothing in then they should not permit them to do it.
Shariah disallowing its use. Nor is there anything in the Shariah
!. Al Muhazzab, vol. 2, 198; Al Sharh-al-Kabeer, vol. 9, p. 397. 1. Fatawa Majilis-e-Al Azhar relating to qisas.

2. AlMughni, Vol. 9, P. 412: Al Muhazzab Vol. 2, P. 197; Mawahib-al-Jaiee!, Vol. 6, p 253

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 520. Execution of Punishment in Case of Multiplicity will be followed by the subject to the right of the individual.
The Shariah differs from the laws in force on the question Imam Malik argues that the right of Allah cannot be waived
of accumulated punishments. This difference owes its origin to while the right of the individual can be relinquished. Hence it is
the punitive temper of the two laws. in the interest of the offender to defer the right of the individual.
If we take the Egyptian penal code as an example of the It is however, of little consequence with Imam Malik whether
laws in operation, it provides that in the case of accumulation all the enforcement of punishment begins with a severe sentence or
the punishments will come into effect in accordance with their a lighter one. He leaves it to the lawful guardian to decide as he
magnitude: First of all rigorous imprisonment will be enforced likes.
followed by detention in a jail, confinement with hard labour and Imam Abu Hanifa and Imam Ahmed hold that the
simple confinement respectively. (Article 34 of Penal Code). punishments subject to the individual’s rights are to be preferred
At the time of enforcement, the order of punishments will to those involving the right of Allah. In the case of the former,
not be taken into account. For instance, if an offender is sentenced punishments will precede the harsher ones followed by such
to rigorous imprisonment when serving a jail term or simple punishment bearing on the rights of the community as would do
imprisonment, the latter punishment will cease to operate and away with the remaining punishment.
rigorous imprisonment will come into effect. Imam Shafi‘ee opines that all punishments will be enforced
According to the Egyptian law, punishments will be enforced in order of lightness - lighter ones taking precedence. All
successively in such a way that the expiry of one term will be punishments will be put into effect giving precedence to the
immediately followed by the term of another punishment. On no right of the individuals, for Imam Shafi‘ee does not acknowledge
account will punishment be suspended or put off. Punishment the doctrine of ‘jabb
, will continue to be in operation even the offender is sick or In giving lighter punishment precedence over the harsher
k handicapped. ones, the Shariah is in disagreement with the Egyptian law. But
F This procedure has emerged Out of the temper of punitive the Egyptian penal law is in tune with the spirit of the Shariah
F law. Since the enforcement of the foregoing sentences takes a punishments; for the substantive Shariah punishments are
long time, the order of their execution referred to is invalidated. amputation of limb, flogging and qisas, and these are corporal
It is invalidated as long as sentences of rigorous imprisonment punishments. The enforcement of these punishments must begin
with the length of their terms invalidate every punishment which with the lighter ones so that the offender remains safe without
enforces restraints on a individual’s freedom and which is awarded losing his stamina. Severe punishment will take precedence over
before such sentences and as long as there is likelihood of a the lighter one only when it is such a one as puts an end to the
sentence of hard labour being passed during the term of a remaining punishments. In this respect the Shariah is in harmony
punishment being served by the offender. with the Egyptian law.
In the case of accumulated punishments the procedure laid
down by the Shariah is different from that for the law in operation 521. Application of Punishment to Ailing, Aging and Insane
and every school of Islamic jurisprudence holds a different view Persons
about it. The jurists of the Shariah unanimously hold that if the
According to Imam Malik, in the case of accumulated offender is ill or unfit at the time fixed for the enforcement of
punishments, beginning will be made with the punishment which punishment, as for example, it is too hot or too cold, then infliction
is subject to the right of Allah, i.e. relating to the community. It of qisas, hudood and equivalent ta 'zeers are to be necessarily put
off. They exempt only capital punishment from this rule inasmuch

160 161
 as such punishment aims at killing the offender unlike other successively in such a way that the expiry of one term will be
punishments. Hence punishments other than death penalty should immediately followed by the term of another punishment. On no
not be put into effect in deadly conditions. account will punishment be suspended or put off. Punishment
Some jurists are of the view that punishment should be will continue to be in operation even if the offender is sick or
deferred till the offender regains strength. But other jurists do handicapped.
not subscribe to this view. They would rather prefer to enforce This procedure has emerged out of the temper of punitive
it taking care that it does not cause any harm to him because of law. Since the enforcement of the foregoing sentences taken a
his weakness. For instance, in the case of a sentence of flogging, long time., the order of their execution referred to is invalidated.
a stick with several branches or a switch with many shoots should It is invalidated as long as sentences of rigorous imprisonment
be used and the offender should be struck with it once, twice. As with the length of their terms invalidate every punishment which
for an unconscious person, punishment should not be put into enforces retraint on a individual’s freedom and which is awarded
effect till he regains consciousness. before such sentences and as long as there is likelihood of a
sentence of hard labour being passed during the term of a
522. Application of Punishment to Pregnant Woman punishment being served by the offender.
The Shariah has right from the very beginning acted on- In the case of accumulated punishments the procedure laid
the principle that no pregnant woman will be subjected to the down by the Shariah is different from that for the law in operation
enforcement of punishment. The tradition relating to the woman and every school of Islamic jurisprudence holds a different view
named Ghamidya is unequivocal. When she confessed her guilt about it.
of adultery in the presence of the Holy Prophet (S.A.W.) and
According to Imam Malik, in the case of accumulated
. told him at the same time that she was pregnant, the Prophet
punishments, beginning will be made with the punishment which
L (S.A.W.) said, “Go now and come again after giving birth to
is subject to the right of Allah, i.e. relating to the community. It
your child.” He also said to Hazrat Mu’az “You can have control
will be followed by the subject to the right of the individual.
■ over her but you cannot have control over what is in her womb.”
Imam Malik argues that the right of Allah cannot be waived
’ The punishment prohibited in the case of a pregnant woman
while the right of the individual can be relinquished. Hence it is
is one which is likely to damage her pregnancy, e.g. qisas, rajm in the interest of the offender to defer the right of the individual.
and flogging. It is however, of little consequence with Imam Malik whether
The jurists are unanimous so far as the principle is concerned the enforcement of punishment begins with a severe sentence or
but they differ on its application. a lighter one. He leaves it to the lawful guardian to decide as he
Thus, according to Imam Shafi‘ee if a woman says that she likes.
is pregnant or suspects of being pregnant, she will not be subjected Imam Abu Hanifa and Imam Ahmed hold that the
to the above punishment until the child is bom or unless it is punishments subject to the individual’s rights are to be preferred
confirmed that she is not pregnant. If a wet-nurse is not available to those involving the right of Allah. In the case of the former,
for the child she will be allowed to arrange for one before she is punishments will precede the harsher ones followed by such
executed. punishment bearing on the rights of the community as would do
To this, Imam Abu Hanifa adds that no punishment will be away with the remaining punishment.
applied to a pregnant woman till the end of her confinement even According to Imam Malik, no pregnant woman is to be
if the punishment to be inflicted on her is flogging. subjected to punishment until delivery, and flogging of her will
According to the Egyptian law, punishments will be enforced be put off till the end of confinement. If a wet-nurse is available
I. Shark Fathal-Qadeer, Vol.3, P.185.

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 used for execution should be sharp; that the executioner should
for the child the sentence of death will be carried out, otherwise
be highly experienced and that the method of execution should
her execution will be delayed.
be the same for all the people regardless of their ranks and
Imam Ahmed holds that if capital punishment or stoning to
differences between their offences.
death is obligatory in the case of a pregnant woman or if she
The Shariah has observed these rights right from its inception.
conceives after such punishments become obligatory, she will
It is only now that the modem laws have incorporated them. Till
not be executed until delivery and until she needs to suckle it.
recently there were gradations of capital punishments like the
But if a wet-nurse is available for the child, she will be executed.
punishment of imprisonment and also the kinds of torments varied
It is desirable that the lawful guardian of the victim defers her
with the kinds of offences. For instance, the hand of father’s
execution till the child is weaned from her. In case if no wet-
killer was amputated before putting him to death and the methods
nurse could be arranged for, the convicted woman will suckle the
of punishment varied with ranks of the offenders: respectable
baby for two years and the punishment she is awarded will be
person was punished by decapitation with the sword while a
executed after the child is weaned. The position of Imam Ahmed
commoner was punished by throttling. But after the French
is with that of Imam Malik who defers the punishment of flogging
until the delivery of the pregnant convict. Revolution this procedure was abandoned. A law was promulgated
to the effect that in the enforcement of punishment all men are
523. Punishment of an Insane Person equal and capital punishment will be effected only by taking the
This subject has already been discussed in the context of offender’s life. Other countries got this principle from the French.
the accountability of an insane person and the reader is referred Consequently various states tried to find out how best to take life
back to article 428 of this book. without tormentation. Thus France adopted the method of beheading,
Egypt and England preferred throttling, Italy shooting and USA
524. Carrying Out of Punishment in Public
adopted the method of electrocution.
The principle of the Shariah is that punishment is to be The Shariah has laid it down that after execution the corpse
enforced in public. Says Allah: is to be handed over to the heirs of the deceased, so that they
“And let a party of believers witness their punishment.” may bury it according to their own custom. Says the Holy Prophet
(24:2) (S.A.W.):
Moreover, this has also been the practice. This rule applies “Bury that body also in the same way as you bury your
to capital punishment and other punishments alike. Punishment dead.”
in public has also been the practice under the law in force. Formerly, It is, therefore, obligatory that the body of an executed
the Egyptian law followed the Western laws in the enforcement person is to be buried like the dead bodies. But if the competent
of punishment in public, but later on the condition of public authority fears breach of peace, he may prohibit assembly of
execution has been ignored. In the French law this proviso still
people at the burial.
exists.
The Egyptian law, however, provides that the body of
According to the Shariah, if capital punishment relates to
executed offender shall be handed over to his lawful heirs on
a married adulterer, he or she will be stoned to death.
condition that no assembly of people would be allowed at the
If it is not a punishment for adultery, then the offender will
burial (Criminal Investigation Act, Article 262). Similarly, under
be beheaded. This is the dominant opinion of the jurists.
the Egyptian law, punishment of a pregnant female offender is to
The consensus of the jurists is that the offender should be be put off till her delivery. (Egyptian Criminal Investigation Act,
punished without tormentation and disfiguration; that the instrument
Article 363).

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 Others contend that recommission is general. When the
offender commits a crime again, he is a habitual offender, whether
or not the crime is akin or similar to the previous crime committed
by him.
Similarly the experts differ on the question of the period
CHAPTER XI intervening between offences. Some of them maintain that the
period of recommitment is indefinite so much so that when an
RECOMMISSION OF CRIME offender commits an offence a second time he is a habitual offender
regardless of the length of time intervening between the two
525. Nature of Recommission of Crime
offences. Others hold that recommission depends on a definite
In modem legal terminology the term recommission of crime period intervening between the two offences. If a certain period
applies to the person who commits another crime after the one in elapses after the commitment of an offence and the offender
the case whereof judgment is already passed. In other words, recommits an offence thereafter, this would not be treated as
recommission of an offence is repetition of offences by the same recommission of crime.
person, in the case of one or more of them verdict has already
In the Egyptian penal law all the above principles have
been given by the court.
been commingled. The principle of general recommission of crime
Recommission of crime is different from the multiplication is mentioned in clauses No. one and two of Article 39, specific
of crime, for in the latter case an offender commits the last recommission in clause No.3, recommission after indefinite period
offence committed by him is not decided, whereas in the case of in clause No.l and recommission after the lapse of a definite
recommission of crime, when an offender commits the last offence, period in clauses No. 2 and 3. In all these clauses the nature, and
the cases of one or more offences committed by him are already
period of punishment as well as the nature of offence has also
decided. been stated.
Recommission of a crime after decision of the case of
If an offender is repeatedly guilty of offences, the experts
previous crime bears testimony to the fact that the offender persists of punitive legislation do not regard his action as recommission
in the commitment of offence and punishment for previous offence
of crime. They rather treat the man as a habitual offender and a
has been fruitless. It is, therefore, necessary that harsher punishment
menace to the society. As such, he must be eliminated. The Egyptian
should be awarded to a habitual offender. Some criminologists
law applies this theory to a limited extent and provides for the
were formerly opposed to giving more severe punishment, but
removal of a habitual to a place earmarked for the purpose such
now there are no two opinions about the punishment for
as a reformatory. He will remain there for a period not exceeding
recommission of crime.
six or ten years and released under the orders of minister for \
The experts of punitive legislation do acknowledge justice. (Article 52-53)
punishment necessitated by recommission of crime, but they differ The Italian law promulgated in 1930 provides for the
on the principles by which such recommission is established. transportation of habitual and professional offenders to an
Some of them maintain that recommission of crime implies that agricultural or industrial area where they are to be confined for
the offender will be treated as habitual when the offence he two and three years respectively.
recommits is akin to or similar to the previous one committed by In France a law was promulgated on the 27th of May 1985
him. If the subsequent offence does not bear affinity to the previous
which provided for the expulsion of habituals to colonies.
one, then the commitment thereof is no repetition of crime.

167
 left to the discretion of the competent authority to frame rules in
In short the laws in force apply the above theory in a
this regard as it deems fit in the public interest.
limited ambit.
We have discussed the problem of recommission of offences
In short, the foregoing principles are the basis on which
and the rule’ laid down about it by the Shariah and the modem
the concept of recommission of crime rests. What is note worthy
laws in operation. The only difference is that the Shariah has
in this context is that the principles of the recommission of crime
ceased to be in operation since long and, therefore, the people
have been introduced into the modem laws in force at a very late
have thrown it into oblivion, whereas the modern laws are
stage and the principles devised as to repetition and habit of
continuously in force and the people are familiar with them.
offences have been treated in them laws as modem principles.
At any rate, it is the singular distinction of the Shariah that
526. The Shariah’s Position as to the Recommission of Offences. the rules it formulated thirteen hundred years ago have now come
Perhaps the reader will be surprised to learn that the so- to be the latest principles of modem laws. Another distinguishing
called new principles of the modem laws are no other than those characteristic of the Shariah as compared to the modem laws is
laid down by the Shariah thirteen hundred years ago. In fact the that it prescribes capital punishment and life-imprisonment for
laws in operation have yet to enforce these principles habitual and professional criminals. The experts of modem laws
comprehensively, which the Shariah had already long ago put also seem inclined to favour the two punishments, particularly
into effect. those who believe in measures to safeguard peace and the concept
According to the Shariah an offender ought to be awarded of elimination. These experts hold that the habitual offender should
punishment for the crime committed by him. If he commits it be eliminated from the community or imprisoned for indefinite
again he can be given harsher punishments. If he develops the period so that the society may remain immune from his baneful
habit of committing crimes, he will either be killed or imprisoned influence. But the laws in force do not accept these views without
indefinitely. Thus the community will be immune from the evil reservations. They rather subscribe to the concept of indefinite
caused by him. The competent authority will choose either of the confinement with qualifications which render it imprisonment
two punishments in view of the particulars of the offence and its for fixed terms, as has been illustrated in foregoing pages with
potential impact on the society. If the offender makes it a habit examples from Egyptian Italian and French laws.
to commit crimes and does not desist from committing them In short, the Shariah enjoys precedence in laying down
despite infliction of punishment, he will be put to death in rules with regard to the question of recommission of crimes. It
consideration of the viciousness of the offence and of the fact has also given the lead in prescribing principles regarding the
that repetition of the offence would cause moral deterioration measures of maintenance of peace and the mode of elimination
and corruption in the community. If a thief is accustomed to as well as the pattern of their application which the modem
committing theft, he will be sentenced to imprisonment for life experts desire.
or till such time that he repents.
The Shariah conceives of repetition of crime in absolute
terms. The jurists draw no line of distinction between general
and special recommission of crime just as they do not distinguish
between offences repeated indefinitely and those repeated after
the lapse of definite lengths of time. Thus according to the Shariah
all sorts of recommission of offences, that is general, special
indefinite and provisional may occur in any case and it has been

169
 is not payable out of the killer’s assets; for qisas is imperatively
obligatory, whereas blood-money in lieu of qisas is obligatory
only when the offender so desires. Hence if the offender dies,
CHAPTER XU qisas will be annulled but diyat will not be obligatory because
the offender does not undertake to pay it. It makes no difference
INVALIDATION OF PUNISHMENT whatsoever whether the offender dies as a result of natural calamity
or someone kills him in a legitimate manner. If the offender dies
527. Causes of Invalidation of Punishment of illness, or is killed in consequence of qisas for someone’s life
There are various causes of the invalidation of punishment or put to death as a punishment for adultejy or apostasy, the
but there is no general cause applicable to every punishment. punishment of qisas will stand annulled and payment df diyat
Different reasons affect punishments differently. Some causes will not be obligatory.
invalidate most of the punishments, while others invalidate fewer. According to Imam Malik, if the offender is murdered
Some causes are exclusively linked with certain punishments. wrongfully, the right of qisas will devolve upon the lawful heirs
Causes of invalidation of punishments are as follows: of the person killed ab initio. For instance, somebody murders a
(1) Death of Offender man and the murderer is wrongfully killed by a third person, the
(2) Loss of the Limb Subject to Retaliation right to his blood will vest in the heirs of the person first murdered
(3) Repentance of the Offender and the heirs of the second person wrongfully killed will be
asked to bring the heirs of the initial victim round to agree with
(4) Compromise
them to strike a transaction with the initial killef’s party in respect
(5) Remission
of retaliation or remission as they may choose or take larger
(6) Inheritance of Qisas amount as blood-money than they may have paid. If the person
(7) Lapse of Time (time-barred case). guilty of homicide intentionally is murdered, his blood-money
528. Death of Offender will be due to the lawful heirs of the initial victim.
Corporal punishments and punishments linked with the person Imam Abu Hanifa treats legitimate and illegitimate death
of the offender stand invalidated with the death of the offender, as identical and believes in unqualified invalidation of qisas in
for the object of punishment is the offender himself. When he is both the cases. He does not believe in the payment of diyat out
no more, his punishment is inconceivable. of his assets as being obligatory. If another offender may have
But if punishments involve money or assets such as diyat, committed excess on him, blood-money is not obligatory out of
mulct and confiscation, then they will not be annulled as the his assets either.
result of the offender’s death, for in such a case the object of Imam Shafi* ee and Imam Ahmed are of the view that when
punishment is the property of the offender and not his person. the object of qisas ceases to exist the punishment of qisas stands
Punishment bearing on the offender’s property can be applied invalidated in all cases, whether the offender’s death takes place
posthumously. in a rightful manner or wrongful manner. But blood-money is
7 The jurists differ on the question that if the punishment of payable out of the offender’s assets, for according to them there
qisas is invalidated on the death of the offender, whether or not are either of two factors at work behind homicide: non-retaliatory
payment of blood-money from his assets is obligatory. Imam factor or that which involves diyat. If punishment becomes
Malik and Imam Abu Hanifa hold that when the object of 1. Mawahib-al-Jaleel, Vol. 7, P. 231.
2. Badae-wal-Sanae', Vol. 7, P. 246.
punishment ceases to exist, qisas does stand invalidated but diyat

170 171
ineffective because of the non-existence of any one of the two, that the object of retaliation does not exist and, therefore, the
the other will become obligatory. The reason is that the mulct question of qisas does not arise at all.
which is exchangeable with two causes and the existence of one According to Imam Malik, if the right of qisas becomes
cause is hampered, the other cause will be established. invalid, the aggrieved party has nothing to get inasmuch as in the
The scope of difference between the jurists will be clear in case of qisas the right of the victim is evident; so if qisas stands
the light of the following example: invalidated, the right of the victim is also nullified. If the object
When Zaid kills Ali, the lawful heirs of the latter will of^iftzs is intentionally destroyed, then the transgressors will be
claim retaliation from Zaid. But if Zaid falls ill and dies, then subject to qisas. The details of this have already been stated in
according to Imam Malik and Imam Abu Hanifa, the right of the context of the death of killer.
retaliation will stand annulled and the heirs of the victim will get But Imam Abu Hanifa believes that the intentional cause
nothing. On the contrary Imam Shafi‘ee and Imam Ahmed maintain of qisas is evident. He draws a line of distinction between the
that the heirs of Ali are entitled to diyat from the assets of Zaid. loss of the place of qisas as the result of a disaster or ailment and
But if the death of Zaid occurs in such a way that Khalid murders: the loss thereof in consequence of the exercise of a right such as
him intentionally or is crushed by Khalid’s vehicle by chance, enforcement of punishment or qisas. According to Imam Abu
then in the opinion of Imam Abu Hanifa, right of qisas is annulled Hanifa in the former case nothing is due to the aggrieved party
and the heirs of Ali will get nothing. But Imam Malik is of the because of the loss of the object of qisas; whereas in the latter
view that qisas would become due from Khalid and the heirs of case diyat is due to him instead of qisas, since the offender
Ali may have their retaliation if the murder is intentionally annihilates the limb subject to qisas putting an end to the victim’s
committed and the heirs of Zaid cannot have their retaliation right to retaliation.
against Khalid, without the consent of the heirs of Ali. But if According to Imam Shafi‘ee and Imam Ahmed, if the object
Khalid kills Zaid unintentionally, he will pay blood-money for of qisas no longer exists, the victim will be entitled to diyat,
Zaid to the heirs of Ali. But in the opinion of Imam Shafi‘ee and whatever be the cause of the loss of such object.
Imam Ahmed, qisas will stand invalidated as the result of Zaid’s The reason is that the cause or intention are either of two
death, the heirs of Ali will be entitled to payment of blood­ things and not qisas and diyat in particular. Thus if the object of
money out of Zaid’s assets. qisas ceases to exist, blood-price will become due.
529. Extinction of the Object of Qisas 530. Offender’s Repentance
Qisas in this context means retaliatory punishment for an The leading jurists of Islam are unanimous that the repentance
offence other than homicide. By the extinction of the object of of an offender guilty of a sanguinary crime invalidates the
qisas is meant the loss of limb liable to qisas although the offender punishment for acts having impact on the society Says Allah:
may be alive. In short, because of the loss of the object or the “Save those who repent before ye overpower them. For
place subject to qisas the punishment of qisas for an offence know that Allah is Forgiving, MercifUl.” (5:34)
other than homicide stands invalidated. In short, if the injurer or fighter repents before being
The rule is that the object .qisas for a bloody offence apprehended, the prescribed punishments for offence affecting
other than murder is the limb identical with the object that is the community will stand invalidated. But the punishments for
subjected to the commitment of an offence. If the object or place offences affecting individuals will remain unchanged.
of qisas is annihilated, qisas will stand annulled. The reason is 1. Mawahib-al-Jaleel. Vol. 6. P. 213; Sharh-al-Durdeer. Vol. 2, P. 213.

1. Al Muhazzab. Vol. 2, P. 201; Al Sharh-al-.Kabeer. Vol. 9. P. 714. 2. Vol.7,

Badae wal-al-Sanae1 1 2 PP. 246 and 298.

172 173
 Although the jurists agree that the punishment for a bloody If compromise is arrived at on diyat and not on qisas, then
crime stands invalidated in consequence of repentance on the compromise on more than the prescribed amount of diyat is not
part of the offender provided that his repentance precedes his warrantable, for the amount in excess would be treated as interest.
arrest but they differ as to the extent to which repentance affects For example the prescribed quantum of diyat is a hundred camels
offences other than a bloody one. In this connection they have and therefore compromise on a hundred twenty camels is
expounded three theories which have been dwelt upon in context unwarrantable for that would constitute excess.
of abstinence from offence and, therefore, we need not deal with 532. Remission
them here again.
Remission also invalidates the prescribed punishment.
531. Reconciliation Punishment may be remitted by the victim or his lawful heir, or
the competent Authority. But remission is not the general cause
Reconciliation is one of the causes of invalidation of
punishment. But reconciliation has bearing only on qisas and of the invalidation. It rather is a specific cause which is effective
diyat to the exclusion of other punishments. in certain cases and ineffective in certain others. A general rule
The jurists agree that punishment is invalidated as the result regarding remission is that it has no impact on the hudood offences
of reconciliation. May be that reconciliation on qisas involve and in case of other offences it has bearing thereon according to
diyat in full or more or less than that. the following details:
The basis of reconciliation is the Prophet’s tradition and 533. Hudood Offences and Remission
consensus. Remission is ineffective in cases involving punishment of
‘Amr bin Sho’aib quotes his father and his father quotes hudood, whether remission is granted by the aggrieved party or
with reference to his grandfather that the Holy Prophet (S.A.W.) the competent authority; for in the case of such offence punishment
said, “If a person guilty of intentional homicide is handed over is obligatory and/categorical. The jurists interpret it as the right
to the heirs of the victim, they have the option to kill him or of Allah, and it is wrong to remit or annul His right.
have their retaliation against him and they will be within their The result the ifremissibility of punishment is that the
rights to come to terms with him or whatever amount they choose.” person subject ioaT fatal had will be treated as a wasted life
During the caliphate of Hazrat Moaviya (R.A.A.) one Hudbah because of the imperative^haracter of had. If his life is subject
bin Khashram murdered a man. Thereupon Saeed bin ‘Aas, Hazrat to imperative had, it is worthless and if his limb is subject thereto,
Hasan (R.A.A.) and Hazrat Husain (R.A.A.) offered seven diyats that limb is worthless.
to the son of the victim. But he refused to accept them and killed /
f w

Hudbah.1 2 534. Remission inCases of Qisas and Diyat

As qisas does not involve property, compromise thereon is The Shariah allows the aggrieved party to remit the
warrantable in whatever form possible, since this constitutes the punishments of qisas and diyat. But he is not authorized to forgive
kind of reconciliation which does not admit of bargaining. This punishments falling under this category, as for example, he cannot
is like effecting a compromise on things. That is why agreement forgive the punishment of expiation and any remission on his
may be concluded on diyat more or less in lieu of compromise, pan will not prejudice the powers of the competent authority to
which may be realized at once or on a later date. award a ta 'zeer punishment.
1. If a had punishment is coupled with la'zeer, the competent authority may remit only the
1. See Article 253.
to 'zeer. If, however, enforcement of a had is replaced by ta ’zeer the competent authority
2. Al Mughni, Vol. 9, P. 477
is not empowered to remit such ta 'zeer. h
2. Article No.375 and the sequel.
174

175
 In cases involving qisas and diyat the competent authority According to Imam Malik and Imam Abu Hanifa, qisas
does not have the power to remit the prescribed punishments without compensation stands invalidated and forgoing qisas in
such as retaliation and expiation, but he may, however, remit a lieu of blood-money is reconciliation rather than forgiving; since
ta 'zeer punishment. He may remit a punishment in its entirety or blood-money is due from an offender only when he accepts to
a part thereof. pay it.
The right of the aggrieved party to forgive is limited just In short, Imam Malik and Imam Abu Hanifa regard forgoing
as the power of the competent authority to remit punishment is of qisas in lieu of diyat as reconciliation and not forgiving, since
limited. Neither of them can forgive an offence, that is allow the qisas for intentional injury or homicide with them is exact
commitment of an offence. If any of them forgives an offence, retaliation, inasmuch as in their view diyat becomes due only
the remission will pass on to punishment within the limits already when the offender consents to accept it. Thus if invalidation of
stated. The reason for barring the permission to forgive an offence qisas in lieu of diyat requires mutual consent of both the parties
is that if the aggrieved party is allowed to pardon an offence, involved, it amounts to reconciliation and not remission. Imam
*

then it will not possible to punish an offender at all and this will Shaffee and Imam Ahmed on the other hand treat diyat in lieu
pose a serious threat to the society. Although an offence has of qisas as remission and not reconciliation, because what falls
direct impact on the victim yet the community in any case is due in consequence of intentional injury or homicide is either of
open thereto. Besides, if the competent authority is empowered two things and not exact blood price or exact retaliation. The
to forgive the offence, the right of the victim in cases involving victim or his lawful guardian’s option is not dependant on the
qisas and diyat is likely to be lost. consent of the offender. Besides, since retaliation is harder than
The springs of the competence of the victims or authority blood price, the invalidation of retaliation and the option of blood
to forgive lie in the Quran and Sunnah. Says Allah: price is invalidation pure and simple and compensatory invalidation.
In fact it amounts to the acceptance of a lesser right by forgoing
“O ye who believe! Retaliation is prescribed for you........
a bigger right, and therefore it amounts to forgiving, for invalidation'
And for him who is forgiven somewhat by his (injured)
is effected only unilaterally and is not dependant on the acquiescence
brother, prosecution according to usage and payment unto
of the other patty.
him in kindness.” (2:178)
Just as forgiving of qisas is warrantable, so also is the
Again, having been said:.
forgiving of diyat, even if diyat be substantive punishment, as
“And We prescribe for them therein”.......it has been added:
for example it falls due in the case of an inadvertent murder or
“But whoso forgoeth (qisas) (in way of charity), it shall be
in lieu of qisas.
expiation for him.” (5:45)
As regards Sunnah, Hazrat Anas bin Malik narrates that 535. Forgiving of Ta^zeer Offences
whenever a case of qisas was referred to the Prophet (S.A.W.), The consensus of the jurists is that in cases of ta 'zeer
he enjoined to forgive. offences the competent authority has the full power of remission.
In the opinion of Imam Shafi‘ee and Imam Malik, forgoing He may forgive the offence as well as punishment thereof, and
qisas without receiving compensation or having received blood­ he may remit the entire punishment or some of it. But the jurists
price amounts to remission of qisas. Hence who-ever forgoes differ on the question if the competent authority is empowered to
qisas without any compensation as well as who-ever forgoes it forgive in all the cases of ta'zeer offences or is empowered to
on receiving blood-price, forgives qisas. forgive in some cases and not in others.
1. Al Sharh-al-Kabeer, Vol. 4. P. 230; Al Zela’ee, Vol. 6, PP. 107-108; Al Behral-Raia
I. At Muhazzab, Vol. 2. P. 201; Al Sharh-al-Kabeer, Vol. 9, P. 417
Vol.8, PP.300-301.

176 177
 Thus some jurists hold that in the complete cases of qisas of the person killed is the son of the killer, the right to retaliate
and hudood wherein qisas and had comes to be inhibited, the would be annulled, for qisas is indivisible. Since qisas is not
competent authority does not enjoy the power of forgiving. In obligatory because of the killer’s son, it will cease to be obligatory
such cases, the ta 'zeer punishments will be applied. Neither offence in respect of all the heirs. If one of the sons kills his father, and
will be forgiven nor the punishment thereof. In cases other than another son who is no killer dies and except the killer there is no
these the competent authority may, by rising above personal heir of the father left; the killer himself inherits the right to take
considerations, forgive both the crime and the punishment in the his own life in retaliation. Thus retaliation against him becomes
public interest. obligatory and as such stands invalidated. Similarly, the right of
However, some jurists hold that in the case of all the offences all the other heirs to retaliate is annulled although they may be
involving ta 'zeer, the competent authority may, at his discretion, inheritors of a part of such right. However, the rest of the deserving
forgive both the crime and the punishment. But the opinion of persons will have their share in the blood-money.
the jurists first mentioned accords with the logic of the Shariah 537. Lapse of Time
as far as offences entailing hudood and qisas are concerned.
Lapse of time means that a certain length of time lapses
The ta ‘zeer offences such as affect the person of the victim before the enforcement of sentence resulting in the suspension of
may be forgiven by the victim; as for example beating the victim the punishment. This is another name for a time-barred criminal
or abusing him. But forgiving on his part cannot prejudice the > case.
community’s right to chastize the offender. Hence if the victim The jurists differ on the question of the lapse of time as a
forgives him, this act of his would exclusively relate to his personal cause of invalidation of punishment. Most jurists do not regard
hi
rights. it as a cause of invalidation. Those who do acknowledge it as a
I On the other hand if the competent authority pardons a cause thereof, do not treat it as general cause of invalidation of
Bf crime or punishment thereof in the case of ta ‘zeer, offences, his every punishment. The opinion of the jurists as follows:-
V pardon will not, on any account, have bearing on the rights of the
First Theory
F victim. .
The first theory forms the basis of the cults of Imam Malik,
• We have already dwelt at length on remission in the course
Imam Shafi'ee and Imam Ahmed. The sum and substance of this
of our discussion of the refutation of laws repugnant to the Shariah.
theory is that whatever length of time may elapse, without
536. Inheritance of Qisas enforcement of sentence, punishment cannot be nullified and the
offence does not cease to be an offence; whatever the delay in
If the right to retaliate passes on by inheritance to a person
the institution of legal proceedings, provided that the punishment
who is not entitled to have retaliation against the offender, the
is not in the nature of ta ‘zeer and the offence is one involving
punishment will stand invalidated. Similarly, if the offender himself
ta'zeer, for if the competent authority considers it in the public
inherits the whole right of qisas or a part thereof, the punishment
interests, both ta ‘zeer and ta ‘zeer punishment may be invalidated
of qisas will stand invalidated; as for example one of the heirs
by the case being time barred.
1. Shark Fath al-Qadeer. Vol. 4, PP. 212-213; Al Mughni, Vol. 10. P. 349; Asna-al-Matalib,
Vol. 4, pp. 162-163; Al Ahkaam-al-Sultania, p. 207; Al Iqna, Vol. 4, P. 207; Mawahib-
The Second Theory
al-Jaleel. Vol. 6, P. 320.
On this doctrine the view of the Hanafite school is based.
2. Ibid.
3. Al Ahkam-al-Suhania. P. 2Ql;Mawahib-al-Jaleel. Vol. 4, P. 163.
4. Ibid: also Mawahib-al-Jaleel. Vol. 6. P. 320.
2 V°l’ 7*Sharh-al-Durdeer, Vol. 4. P. 233. AlMohazzab, Vol.
A r. iot, Al Mughni, Vol. 9, P.362.
5. Please see Article No.203.

178 179
The jurists of this school do acknowledge the poncept of the
lapse of time in accordance with the first theory in respect of opinion of Imam Abu Hanifa is corroborated by the observation
ta'zeer punishments but do not believe in such a concept with of Hazrat Umar (R.A.A.) to the effect that the evidence of those
regard to the offences involving diyat and qazaf. However, they who testify after the lapse of time is malafide and as such is
hold that in the case of all the other hudood offences, punishment unacceptable.
is annulled by the lapse of time, this is the opinion of Imam Abu The jurists of the Hanafite school maintain that as other
Hanifa and his disciples, but according to Imam Jafar a had companions of the Holy Prophet (S.A.W.) did not contradict the
punishment is not annulled by the lapse of time. remark of Hazrat ‘Umar (R.A.A.), it amounts to the consensus of
Nevertheless, the Hanafites who believe in the invalidation the Companions. The meaning of what Hazrat ‘Umar (R.A.A.)
of punishment as the result of the lapse of time differentiate observed is that the witness by virtue of delay assumes the character
between the establishment of an offence by an eye-witness evidence of calumniation and the testimony of as slanderer is unacceptable,
and confession. If the proof is evidence given by an eye-witness, as the Holy Prophet (S.A.W.) says:- “The testimony of the opposite
the prescribed punishment will stand invalidated by the lapse of party and slanderer is not acceptable.”
time but if it is confession, the punishment will not be invalidated. Being a slander, an evidence is rejected and logic requires
The basis of this differentiation is that in the case of hudood that if slander ceases to be slander, evidence is not to be rejected
offences the condition laid down by the Hanifites for the acceptance as in the case of an eye-witness delaying his evidence because of
of evidence is that the case is not time-barred, they exempt only Jengthy procedure or illness. But as slander is something secret
the offence of false accusation from this condition, for in the and not amenable to investigation in all circumstances, it will
case of qazaf or false accusation, reference of a case by the turn info a time-barred case and the existence of slander or non-
victim is essential and before he refers his case no eye-witness
existence thereof will be ignored. As the Hanafites accept lapse
can testify; whereas in cases other than qazaf any eye-witness
of time in the establishment of an offence, they also accept it in
may report the occurrence of an offence and testify. His testification
the enforcement of punishment, for according to them execution
does not depend on the reference of a case by the victim.
of sentence as a general rule is the Supplement of the court’s
In a time-barred criminal case the Hanafites argue that an
judgement. Hence th? conditions required to be fulfilled at the
eye-witness has the option to testify, out of sympathy, immediately
time of judgement will also require to be fulfilled at the time of
without being summoned. Says Allah:
putting the sentence into effect. Now since it is essential that
“Keep your testimony upright for Allah.” (65:2)
time should have elapsed at the time of passing the sentence, it
The eye-witness may, however, conceal the incident in
should also have elapsed in the time of the execution of the
conformity to the Prophet’s saying:
sentence. ___
“Allah will overlook the fault of a person who conceals the
Imam Abu Hanifa does not determine the length of time to
fault of his Muslim brother.”
lapse and leaves it to the discretion of the court; for determination
Hence, if an eye-witness remains silent over the occurrence
of the length of time is difficult on various grounds.
of an offence for a long time, it would mean that he prefers to
Imam Muhammad, however, fixes six months for expiry of
conceal it. But if he testifies after the lapse of a long time, it
time. Another tradition has it that he fixed one month for the
would mean that his delayed testimony owes itself to malice and
purpose and this period is also ascribed to Imam Abu Hanifa and
the evidence of such a doubtful witness is not acceptable. This
Imam Abu Yousuf In short, the competent authority may fix the
1. According to some jurists the had for drinking will be annulled by the lapse of time even
if the offence is established by confession.
1. Shark Fath-al-Qadeer. Vol.4, P. 161 and the sequel; Hashia Ibn * Aabideen, Vol. 3, P. 218.

181
I

date for a case to be time-barred and may forbid entertainment

of the case on the expiry of the date so fixed.
The sum and substance of the Hanafites’ view as to the
invalidation of ta’zeer punishments by virtue of a case being
time-barred is that lapse of time invalidates the punishment,
whatever the ground of judgement, and if the proof of offence is
testimony in cases of hudood with the exception of Qazaf the
punishment stands nullified and if the proof is confession, then
according to Imam Abu Hanifa and Imam Yousuf only the Had
for drinking wine is nullified.

1. Shark Fath-ul-Qadeer, Vol. 4, P. 162.

182
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