Penal Law
Among the directives of the shari’ah which relate to the government is punishments prescribed by the Almighty for certain specific crimes. What are these types of punishment? I have detailed them in my treatise Mizan (Islam: A Comprehensive Introduction) in its chapter “The Penal Shari’ah.” What needed further elucidation in this regard has been presented in my treatises Maqamat and Burhan. In the following paragraphs, I am summarizing all the important aspects of this discussion covered in both these books.
1. Punishments are prescribed for only five crimes by the shari’ah. They are: fornication, falsely accusing someone of fornication, theft, murder and injury and creating disorder in the land. It is generally understood that the shari’ah has also prescribed punishment for drinking, apostasy and blasphemy against the Prophet (sws). I have argued that this is totally baseless. There is no punishment for these crimes in the shari’ah. All these issues relate to ijtihad and whatever opinion is formed about them will be on this basis.
2. Our jurists generally opine that if a criminal who has committed intentional murder is forgiven by the heirs of the slain person, then the government is also bound to forgive him. This view is not correct in the opinion of this writer. Thus, in my article “Punishment for Intentional Murder,” I have analyzed all the pertinent verses and shown that in such cases qisas does not become mandatory; however, as an option, it is not ruled out. Thus, keeping in view the nature of the crime and the circumstances of the criminal, the government and the society have the full right to insist in exacting qisas and reject the lenience given by the heirs of the slain person.
3. The punishment for waging war against God and the Prophet (sws) and spreading anarchy in the land mentioned in verses 33-34 of Surah al-Ma’idah is not specific to robbery only. It is meant for all criminals who rebel against the law and attack the life, wealth, honour and freedom of expression of people. Consequently, when murder becomes terrorism, fornication becomes rape and theft assumes the form of armed robbery or people take to prostitution, become notorious for their ill-ways and vulgarity, become a threat to honourable people because of their immoral and dissolute practices, or rise against the government in rebellion, or create a law and order situation for the government by indulging in hijacking, vandalism and intimidation and by committing other similar crimes, then such people are guilty of spreading anarchy in the society. In such cases, a court of law can give any form of the prescribed punishment keeping in view the nature of the crime and the circumstances of the criminal.
4. The death penalty can only be given for murder and for spreading anarchy in the land. The Almighty has explicitly stated that apart from these two crimes, neither an individual nor a government has the right to take the life of a person.
5. Though diyat is an everlasting law which must be obeyed in all times by all Muslim societies, its quantity, nature and other related affairs have been left to the ma’ruf (custom) of a society. According to this directive, each society is bound to follow its own ma’ruf. Since no law about diyat exists in our society, our rulers can adopt the custom of the Arab society or can legislate afresh keeping in view the circumstances and expediencies of our society. No objection whatsoever can be raised against this as per the Islamic shari’ah.
6. The punishment for fornication prescribed by the shari’ah for both married men and women and unmarried ones is a hundred lashes as stated in verse 24 of Surah al-Nur. No doubt, the Prophet (sws) did stone to death some of the criminals of his time who were guilty of fornication. However, this was administered to criminals guilty of rape and profligacy and in accordance with verses 33-34 of Surah al-Ma’idah. It has no connection with the punishment mentioned in Surah al-Nur for common criminals of fornication.
7. The punishment for fornication and theft mentioned in the Qur’an is an extreme punishment for these crimes, and is to be administered to the criminals when the crime has been committed in its complete form and a criminal does not deserve any lenience viz a viz the circumstances in which he committed the crime. The most important thing in this regard is his religious awareness. This punishment cannot be given to those who are non-Muslims or are Muslims by birth but because of a lack of awareness of their religion are akin to non-Muslims. The reason for this is that the purpose of the punishment is not merely to root out the crime but also to inflict the scourge of God on these criminals and make them an example to others. These were people who had submitted themselves to God and His Messenger with full awareness, pledged obedience to them, accepted their religion as their religion. Despite this, they were incriminated with crimes such as theft and fornication to the extent that God exposed them and matters reached the courts of law.
8. The condition of four witness stated in the Qur’an for the punishment for fornication relates to consensual sex. It cannot be applied to rape. Hence a woman who complains of rape is a petitioner and not someone who is accusing someone of fornication. The law is bound to hear her complaint and punish the person found guilty of this heinous crime through any means except if investigation proves that the woman has falsely accused an innocent person of fornication.
9. Except for fornication, crimes for which punishment is prescribed by the shari’ah are proven through all means that are universally accepted by legal ethics. Consequently, circumstantial evidence, medical examinations, post mortem reports, finger prints, DNA tests, testimony of witnesses, confession of criminals, oaths and various other similar means form permissible evidence in the matter of these crimes just as they are in the matter of other common crimes. There is nothing in the Qur’an and Sunnah contrary to this.
