CRIME AND PUNISHMENT IN ISLAM

 

         In Islam, social crimes are classified into three different types:

1.      Hudood

2.      Qisas

3.      Ta’zeerat.

 

  1. Hudood

Hudood is plural of Hud in Arabic. Its literal meaning is setting bound, delineate, restrict, check, hinder, etc.

In Shari’ah legal (fiqhi) terminology, a Hud is a punishment or a crime which is set as a right or command of Allah in the Qur’an; and moreover, none, not even the Messenger of Allah, has a right to waive or cancel it.

 

According to Imam Abu Hanifah, Hudood consist of the following five different crimes and/or their punishments:

1. Adultery, Fornication, and Rape: Allah says,

الزانية والزانى فاجلدوا كل واحد منهما مائة جلدة ولا تاخذكم بهما رافة في دين لله ان كنتم تؤمنون بالله واليوم الآخر (النور 2)

(The adulterer or the adulterous, flog each one of them with hundred stripes, and do not show pity to them in the Deen of Allah, if you believe in Allah and the Last Day)

Points to note: 1. The punishment of flogging of a hundred stripes is only for the crime of fornication. For the crime of adultery, the Messenger (S) used to punish the criminals by death.

2. For the crime of rape, only the rapist is to be punished by death: Allah says,

                                                                                                                     ومن يكرههن فان الله من بعد اكراهن غفور رحيم (النور 33)

(If someone forces (rapes) them, then Allah is Forgiver Merciful for the forced one)

A woman was going to a mosque to offer salat. In the way, a man raped her; but because of her cries and resistance, the man ran away. Later on, the man admitted his guilt; the Messenger (S) punished him by Hud and released the woman. (Wael bin Hujr, Tirmidhi)

 

2. Theft or Stealing: Allah says,

                                                                                                    والسارق والسارقة فاقطعوآ ايديهما جزآء بما كسبا نكالا

                                                                                                       من الله  والله عزيز حكيم (المآئده 38)

(Male thief or female thief, cut hands of both, because of what they have earned, as a punishment from Allah; Allah is All-Mighty and Wise)

The Messenger (S) had ordered to cut a hand of a woman thief (See details below).

According to Imam Aby Hanifah, if a person steals something of a value less than one Dinar (a gold coin) or ten Dirham (a silver coin), the Hud will not be applied on him; such person may be punished under Ta’zeer (See details below). Also, no Hud will be applied on stealing haram or forbidden things, such as a pig or a musical instrument or intoxicants, etc. Similarly, no Hud will be applied on a guest who takes away something from his hosts house; however, the thief guest may be punished under Ta’zeer.

 

3. Drinking of Intoxicants: Allah says,

                                                                                                                                                                               انما الخمر والميسر والانصاب والازلام رجس من عمل الشيطان

                                                                                                                                                                                                      فاجتنبوه لعلكم تفلحون (المآئده 90)

(Indeed the intoxicants, the gambling, the offering at stones, and the lottery are evil deeds of Satan, so eschew them, so that you may succeed)

The Messenger (S) used to punish the drinkers of intoxicants with forty beatings of date branches or shoes. (Anas R, Muslim)

4. Nefarious or Iniquitous Activities (Land and Sea Piracy) (Fasad fil Ardh): Allah says,

 (They should be killed or crucified or their opposite hand and foot be cut or be expelled from the land) (Al-Maidah 33)

 

5. Defamation or Calumny (Qadhaf): Allah says,

                                                                                                                                                                              والذين يرمون المحصنات ثم لم ياتوا بأَربعة شهدآء فاجلدوهم ثمانين

                                                                                                                                                                                                جلدة ولا تقبلوا لهم شهادة ابدا )النور 4)

 (Those who defame chaste women and do not produce four witnesses, so flog them with eighty stripes, and do not ever accept their testimony)

 

All the above five crimes are called Hudood, because for these Allah has used the phrase,   تلك حدود الله

Shafaee’ include injuries and rebellion in Hudood. In addition to these, Maliki add recantation (irtedad), too; but most of the Islamic Jurists go by Hanafi list.

 

Why none can waive the Hudood?

         A rich woman of Bani Makhzoum tribe had stolen something. She was brought to the Messenger (S) for the judgment. Osama bin Zaid pleaded with the Messenger on behalf of the people not to cut her hand. The Messenger asked Osama if he had gone to him to plead in the matter of Hudood Allah.  He then addressed the gathering, swore by Allah, and told them that he would never hesitate in applying the Punishment of Allah on even his own daughter Fatimah (Aisha R, Bukhari, Muslim).

         In another hadith, the Messenger (S) has said, “You may forgive each other in Hudood; but if a Hud is brought to me, the punishment is a must.” (Amar bin Shu’ayb, Abu Dawood)

         In another hadith, the Messenger (S) has said, “Any one who intercedes in the punishment of Hudood –ul-Allah has committed rebellion against Allah.” (Abdullah bin Umar, Abu Dawood)

 

2. Qisas

    Qisas is derived from another Arabic word Qass; it means to follow, it also means to cut.

    In Shari’ah terminology (fiqh), Qisas means punishing the criminal same way as he has injured others. It is a right of a person who has suffered because of the crime. The Qur’an, the Sunnah, and the Ijma’ all advocate Qisas. Allah says,

                                                                                                                                                                              ياايها الذين ءامنوا كتب عليكم القصاص فى القتلى الحر بالحر والعبد

                                                                                                                                                                                                        بالعبد والأنثى بالأَنثى (البقره 178)

            (O Believers! Qisas in murder is prescribed on you,

             free for free, servant for servant, female for female)

                                                                                                                                                                                 ولكم فى القصاص حيوة يا لا ولى الالباب لعلكم تتقون (البقره 179)

            (In Qisas, there is life for you, O wise people! Perhaps you may fear God)

It is the injured or affected party that has a right of Qisas on murder or loss of a body part or physical injury or other damages. One is allowed to intercede on behalf of the criminal; however, the affected party has a right to either forgive and forgo or claim proper damages; but only the government has the right and power to implement the settlement. Even if the injured party forgoes ransom, the government still has the right to punish the criminal.

            There are innumerable cases of murder or injury or 

damage; the nature of Qisas will depend upon the nature of the case.

 

3. Ta’zeer

Ta’zeer is derived from another Arabic word ‘azar. ‘Azar means to censure, to rebuke or to reprimand.

In Shari’ah terminology (fiqh), Ta’zeer means censure or reprimand on a crime to stop him from committing the crime again. It is different from Hudood in two respects: 1. it is not necessary to award the same punishment to each person on the same crime; however, the punishment should be lesser in degree than the Hudood punishment, and 2. intercession can be accepted, the punishment can be reduced or waived. In a hadith, the Messenger (S) has said, “You can ignore the error or mistake, but not the Hudood, of a noble person.” (Abu Dawood).

 

(Its contents are extracted from ‘Allama Al-Jazeeri’s Kitab-ul-Fiqh)