8

Crime and Punishment (QasAmah, QisAs, HadUd)

The fourteenth, fifteenth, and sixteenth books all relate to the subject of crime: the forms and categories of crime, the procedure of investigating them, and the punishments resultant from having committed them.

Muslim fiqh (law) divides punishment into three heads: hadd, qisAs, and ta’zIr. Hadd (pl. HadUd) comprises punishments that are prescribed and defined in the QurAn and the HadIs. These include stoning to death (rajm) for adultery (zinA); one hundred lashes for fornication (QurAn 24:2-5); eighty lashes for slandering an ‘honorable’ woman (husun), i.e., accusing her of adultery; death for apostatizing from Islam (irtidAd); eighty lashes for drinking wine (shurb); cutting off the right hand for theft (sariqah, QurAn 5:38-39); cutting off of feet and hands for highway robbery; and death by sword or crucifixion for robbery accompanied by murder.

The law also permits qisAs, or retaliation. It is permitted only in cases where someone has deliberately and unjustly wounded, mutilated, or killed another, and only if the injured and the guilty hold the same status. As slaves and unbelievers are inferior in status to Muslims, they are not entitled to qisAs according to most Muslim faqIhs (jurists).

In cases of murder, the right of revenge belongs to the victim’s heir. But the heir can forgo this right and accept the blood-price (diyah) in exchange. For the death of a woman, only half of the blood-price is due. The same applies to the death of a Jew or a Christian, but according to one school, only one-third is permissible in such cases. If a slave is killed, his heirs are not entitled to qisAs and indemnity; but since a slave is a piece of property, his owner must be compensated with his full value.

The Muslim law on crime and punishment is quite complicated. Though the QurAn gives the broad outline, the HadIs alone provides a living source and image.

Qasamah

The fourteenth book is the ‘Book of Oaths’ (al-qasAmah). QasAmah literally means ‘taking an oath,’ but in the terminology of the sharI’ah, it is an oath of a particular type and taken under particular conditions. For example, when a man is found slain, and the identity of his slayer is unknown, fifty persons from the nearest district take an oath that they neither killed the man nor knew who did it. This establishes their innocence.¹

This was apparently the practice among the pre-Islamic Arabs, and Muhammad adopted it. Once a Muslim was found slain. His relatives accused the neighboring Jews. Muhammad told them: ‘Let fifty persons among you take oath for leveling the charge of murder against a person among them, and he would be surrendered to you.’ They declined to take the oath since they had not witnessed the murder. Then Muhammad told them that ‘the Jews will exonerate themselves by fifty of them taking this oath.’ They replied: ‘Allah’s Messenger, how can we accept the oath of unbelieving people?’ Then Muhammad paid the bloodwite of one hundred camels for the slain man out of his own funds (4119-4125).

Another hadIs specifically tells us that Allah’s Messenger ‘retained the practice of QasAma as it was in the pre-Islamic days’ (4127).

Death Penalty for Apostasy Rebellion

One can accept Islam freely, but one cannot give it up with the same freedom. The punishment for apostasy-for giving up Islam-is death, though not by burning. ‘Once a group of men apostatized from Islam. ‘Ali burnt them to death. When Ibn ‘AbbAs heard about it, he said: If I had been in his place, I would have put them to sword for I have heard the apostle say, Kill an apostate but do not burn him for Fire is Allah’s agency for punishing the sinners’ (TirmizI, vol. I, 1357).²

Eight men of the tribe of ‘Ukl became Muslims and emigrated to Medina. The climate of Medina did not suit them. Muhammad allowed them ‘to go to the camels of sadaqa and drink their milk and urine’ (urine was considered curative). Away from the control of the Prophet, they killed the shepherds, took the camels and turned away from Islam. The Prophet sent twenty ansArs after them with an expert tracker who could follow their footprints. The apostates were brought back. ‘He [the Holy Prophet] got their hands cut off, and their feet, and put out their eyes, and threw them on the stony ground until they died’ (4130). Another hadIs adds that while on the stony ground ‘they were asking for water, but they were not given water’ (4132).

The translator gives us the verse from the QurAn according to which these men were punished: ‘The just recompense for those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified or their hands and their feet should be cut off on opposite sides, or they should be exiled’ (QurAn 5:36).

Qisas

QisAs literally means ‘tracking the footsteps of an enemy’; but technically, in Muslim law, it is retaliatory punishment, an eye for an eye. It is the lex talionis of the Mosaic law.

A Jew smashed the head of an ansAr girl and she died. Muhammad commanded that his head be crushed between two stones (4138). But in another case, which involved the sister of one of the Companions, bloodwite was allowed. She had broken someone’s teeth. When the case was brought to Muhammad, he told her that ‘QisAs [retaliation] was a command prescribed in the Book of Allah.’ She made urgent pleas and was allowed to go free after paying a money compensation to the victim’s next of kin (4151).

A Muslim and the Death Penalty

A Muslim who ‘bears testimony to the fact that there is no God but Allah, and I [Muhammad] am the Messenger of Allah,’ can be punished with the death penalty only if he is a married adulterer, or if he has killed someone (i.e., someone who is a Muslim, according to many jurists), or if he is a deserter from Islam (4152-4155). The translator tells us that there is almost a consensus of opinion among the jurists that apostasy from Islam must be punished with death. Those who think such a punishment is barbarous should read the translator’s justification and rationale for it (note 2132).

Diyat (Indemnity)

Muhammad retained the old Arab practice of bloodwite (4166-4174). Thus, when a woman struck her pregnant co-wife with a tent-pole, causing her to have a miscarriage, he fixed ‘a male or female slave of best quality’ as the indemnity ‘for what was in her womb.’ An eloquent relative of the woman pleaded for the cancellation of the indemnity, arguing: ‘Should we pay indemnity for one who neither ate, nor made any noise, who was just Eke a nonentity?’ Muhammad brushed aside his objection, saying that the man was merely talking ‘rhymed phrases like the rhymed phrases of desert Arabs’ (4170).

Hadud

HadUd, the penal law of Islam, is dealt with in the fifteenth book. The ahAdIs in this book relate to measures of punishment defined either in the QurAn or in the Sunnah. The punishments include the amputation of limbs for theft and simple robbery; stoning to death for adultery; a hundred stripes for fornication; eighty stripes for falsely accusing a married woman, and also for drinking wine; and death for apostasy, as we have already seen.

Punisment for Theft

‘Aisha reports that ‘Allah’s Messenger cut off the hands of a thief for a quarter of dInAr and upwards’ (4175). AbU Huraira reports the Prophet as saying: ‘Let there be the curse of Allah upon the thief who steals an egg and his hand is cut off, and steals a rope and his hand is cut off’ (4185).

The HadIs merely confirms the QurAn, which also prescribes: ‘And as for the man who steals and the woman who steals, cut off their hand as a punishment for what they have done, an exemplary punishment from Allah, and Allah is Mighty and Wise’ (5:38). The translator, in a long two-page note, tells us that ‘it is against the background of this social security scheme envisaged by Islam that the QurAn imposes the severe sentence of hand-cutting as deterrent punishment for theft’ (note 2150).

‘Aisha reports a similar case. At the time of the victorious expedition to Mecca, a woman committed some theft. Although UsAma b. Zaid, the beloved of Muhammad, interceded in her behalf, her hand was cut off. ‘Hers was a good repentance,’ ‘Aisha adds (4188). The translator assures us that after the punishment ‘There was a wonderful change in her soul’ (note 2152).

Adultery and Fornication

Adultery is severely punished. ‘UbAda reports the Prophet as saying: ‘Receive teaching from me, receive teaching from me. Allah has ordained. . . . When an unmarried male commits adultery with an unmarried female, they should receive one hundred lashes and banishment for one year. And in case of a married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death’ (4191).

‘Umar adds his own emphasis: ‘Verily Allah sent Muhammad with truth and He sent down the Book upon him, and the verse of stoning was included in what was sent down to him.’ ‘Umar is emphatic because in the QurAn there is no punishment for adultery as such, though there is one for the larger category of zinA, which means sexual intercourse between parties not married to each other. In this sense, the term includes adultery as well as fornication. And the punishment provided for both is one hundred stripes and not stoning to death as enjoined in the Sunnah for adultery. ‘The whore and the whoremonger. Flog each of them with a hundred stripes,’ preaches the QurAn (24:2).

‘Umar was apprehensive that people might neglect the Sunnah and appeal to the Book as grounds for a lenient punishment for their adultery. Therefore, he said quite emphatically: ‘I am afraid that, with the lapse of time, the people may forget it and may say, ‘We do not find the punishment of stoning in the Book of Allah,’ and thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty laid down in Allah’s Book for married men and women who commit adultery’ (4194).

Self-Confessed Adultery

There are some gruesome cases. A fellow named MA’iz came to Muhammad and told him that he had committed adultery. He repeated his confession four times. Confessing four times stands for the four witnesses who are required to testify in case of adultery. Upon finding that the man was married and also not mad, Muhammad ordered him to be stoned to death. ‘I was one of those who stoned him,’ says JAbir b. ‘Abdullah, the narrator of this hadIs (4196).

After this incident Muhammad harangued his followers: ‘Behold, as we set out for JihAd in the cause of Allah, one of you lagged behind and shrieked like the bleating of a male goat, and gave a small quantity of milk. By Allah, in case I get hold of him, I shall certainly punish him’ (4198). The translator explains that by the metaphor of goat and milk, the Prophet means sexual lust and semen.

Similarly, a woman of GhAmid, a branch of Azd, came to Muhammad and told him that she had become pregnant as a result of fornication. She was spared till she had given birth to her child. An ansAr took the responsibility of suckling the infant and ‘she was then stoned to death’ (4025). Another hadIs tells us how it was done. ‘She was put in a ditch up to her chest and he [Muhammad] commanded people and they stoned her’ (4206). Other traditions tell us that the Prophet himself cast the first stone.

Fornication and Adultery Joined

In a case of zinA in which one party is married and the other party unmarried, the former is punished for adultery and the latter for fornication. AbU Huraira narrates one such case involving a man and woman belonging to desert tribes. A young bachelor found employment as a servant in a certain household and committed zinA with the master’s wife. His father gave one hundred goats and a slave-girl in ransom, but when the case was brought before Muhammad, he judged it ‘according to the Book of Allah.’ He ordered the slave-girl and the goats to be returned and punished the young man for fornication ‘with one hundred lashes and exile for one year.’ The woman was punished for adultery. ‘Allah’s Messenger made pronouncement about her and she was stoned to death’ (4029).

Model Persecution

These cases provide a model for all future persecutions. When a woman is to be stoned, a chest-deep hole is dug for her, just as was done in the case of GhamdIya (the woman of GhAmid), so that her nakedness is not exposed and the modesty of the watching multitude is not offended. No such hole need be dug for a man, as no such hole was dug for MA’iz, the self-confessed adulterer whose case we have just narrated.

The stoning is begun by the witnesses, followed by the imAm or qAzI, and then by the participating believers. But in the case of a self-confessed criminal, the first stone is cast by the imAm or qAzI, following the example of the Prophet in the case of GhamdIya. And then the multitudes follow. The QurAn and the Sunnah, in fact, enjoin the believers to both watch and actively participate in the execution. ‘Do not let pity for them take hold of you in Allah’s religion. . . . and let a party of the believers witness their torment,’ the QurAn urges while prescribing punishment for the fornicators.

A Mosaic Practice Revived

The punishment of stoning to death (rajm) is Mosaic. The Old Testament prescribes it for adultery and fornication (Deuteronomy 22:19-23), and also for those who ‘serve other gods’ (Deuteronomy 13:10). Muhammad retained it for adultery but prescribed death by other means for crimes like apostasy.

Among the Jews themselves, by the time of Muhammad, stoning had fallen into disuse. According to one tradition, a Jew and a Jewess who had committed adultery were brought to Muhammad. He asked the Jews what their Torah prescribed for such offenses. The Jews replied: ‘We darken their [the culprits’] faces and make them ride on a donkey with their faces turned to the opposite direction.’ Muhammad said: ‘Bring the Torah.’ The prescribed punishment was found to be stoning to death. So ‘Allah’s Messenger pronounced judgment about both of them and they were stoned,’ says ‘Abdullah, the son of ‘Umar. ‘I was one of those who stoned them, and I saw him [the Jew] protecting her [the Jewess] with his body,’ he adds (4211).

Another hadIs gives more details about the same incident. The Jews sent the two accused to Muhammad, telling their chiefs: ‘Go to Muhammad; if he commands you to blacken the face and award flogging as punishment, then accept it; but if he gives verdict for stoning, then avoid it.’ Muhammad was grieved at this softening of the Scriptures. But Allah comforted him: ‘O Messenger, the behaviour of those who vie with one another in denying the truth should not grieve you’ (QurAn 5:41). Allah also told him that ‘they who do not judge in accordance with what Allah has revealed-they are indeed wrongdoers, they are the iniquitous’ (5:45, 47). The man and woman were stoned to death at Muhammad’s order, and he was happy and thanked Allah: ‘O Allah, I am the first to revive thy command when they had made it dead’ (4214).

A Slave Adulteress

A more lenient view was taken in cases of adultery involving slave-women. A slave-woman, even if she was married, was not to be stoned to death, and if she was unmarried, she was liable to half the penalty (fifty strokes). If a slave-girl is unprotected (unmarried) and ‘commits adultery, then flog her and if she commits adultery again, then flog her and then sell her even for a rope of hair’ (4221).

Flogging Could Be Postponed

If a woman has just delivered and there is an apprehension that flogging might kill her, she may be spared ‘until she is alright’ (4225).

‘AlI says: ‘O people, impose the prescribed punishment upon your slaves, those who are married and those not married, for a slave-woman belonging to Allah’s Messenger had committed adultery, and he committed me to flog her. But she had recently given birth to a child and I was afraid that if I flogged her I might kill her. So I mentioned that to Allah’s Messenger and he said ‘You have done well’ ‘ (4224). The Prophet was a merciful man.

On the basis of this hadIs, Muslim jurists conclude that flogging can be spread over several days, depending on the physical condition of the offender; and if he is sick, the flogging can be postponed until he recovers.

Punishment for Drinking

The punishment for drinking is equally harsh. Muhammad prescribed ‘forty stripes with two lashes.’ So did AbU Bakr, but ‘Umar came and prescribed eighty stripes (4226).

A man charged with drinking was brought before ‘UsmAn, the third KhalIfa, and ‘UsmAn ordered ‘AlI to lash him. ‘AlI in turn ordered Hasan and then ‘Abdullah b. Ja’far to lash him. While ‘Abdullah was flogging the victim, ‘AlI counted the stripes. When the number forty was reached, ‘AlI said: ‘Stop now. Allah’s Messenger gave forty stripes, and AbU Bakr also gave forty stripes, and ‘Umar gave eighty stripes, and all these fall under the category of the Sunnah, but this one [forty stripes] is dearer to me’ (4231).

Ta’zir

HadUd punishments are prescribed by the QurAn and the HadIs. But there is another class of punishment, called ta’zIr, in which the judge can use his own discretion. In such cases, ‘none should be given more than ten lashes’ (4234). But the majority of later Muslim jurists think differently. They hold that the number of stripes is to, be determined on the basis of the enormity of the crime.

Punishment Has Its Reward

At the end, Muhammad assures the believer that if he committed a crime, and-upon him is ‘imposed the prescribed punishment and that is carried out, that is his expiation for that sin’ (4237).

Judicial Decisions

The sixteenth book deals with judicial decisions (aqdiyya). It is small in size and discusses such matters as the qualities of a good judge and a good witness. A judge ‘should not judge between two persons when he is angry’ (4264). If he does his best and also gives the right judgment, he has two rewards. If he does his best but errs, he still has one reward (4261). The excellent witness is he ‘who produces his evidence before he is asked for it’ (4268).

According to the QurAn, a woman’s testimony (shahadah) has half the weight of a man’s (2:282). In a dispute regarding property or debt, the evidence of two men or of one man and two women is required. In cases involving hadUd, the evidence of a woman is not considered at all. Nor is the testimony of Jews, Christians, and unbelievers considered in a strictly Islamic law court.

A few other matters that are not connected with judicial decisions, such as hospitality, are also discussed in this book. Muhammad says that one should show hospitality to guests but wisely adds that ‘hospitality extends for three days, and what is beyond that is Sadaqa [charity]’ (4286).

Crime With Impunity

The Islamic laws on crime and punishment seem to be foolproof and ironclad, but apparently this is not really so. According to some, Maulana Mohammad Matin Hashmi’s book Islamic HadUd, recently published in Pakistan, is as good as a manual on how to steal without attracting extreme penalties under Islamic law. Hashmi says that the theft of many articles, such as books, birds, and bread, is not covered by Islamic law. Fresh vegetables, fruit and firewood, meat and chicken and musical instruments can be stolen with impunity. Also exempt are bricks, cement, marble, glass, mats, and carpets from mosques, and loaded camels and merchandise from trade centers (PTI, November 15, 1981).

Footnotes:

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1. This injunction is based on the Old Testament. The Mosaic law prescribes that when a man is found slain in open country, and the identity of his killer is unknown, the elders of the town nearest to the slain man take a young heifer to a running brook, break its neck, wash their hands over the heifer, and testify: ‘Our hands did not shed this blood, neither did our eyes see it shed’ (Deuteronomy 21:1-9). ↩

2. Abu Huraira tells us: ‘The Apostle sent us on a raiding mission. He commanded us to burn two men of the Quraish if we encountered them. He gave us their names. But when we went to him to take his leave, he said, ‘Don’t burn them in fire but put them to sword, for to torture by fire is Allah’s prerogative’ ‘ (SahIh BukhArI SharIf, sahIh, 1219). ↩