3.11 Penal Laws

The penal laws of Islam are called hudud in the Hadith and Jurisprudence books. In the parlance of jurists, the word hudud is limited to punishment for crimes mentioned in the Holy Qur’an or the Hadith, while other punishments left to the discretion of the Imam or the ruler are spoken of as ta‘zir (lit., chastisement).

It should be pointed out at the very beginning of a discussion on the penal laws of Islam, that all violations of Divine limits in a general sense are not punishable by the state; punishment is inflicted only in those cases in which there is violation of other people’s rights. For instance, neglect of prayer, or omission to keep fasts or perform pilgrimage is not punishable; but in the case of zakat there is a difference. Zakat is a charity as well as a tax, and the Holy Prophet appointed official collectors to collect the zakat, which was received in the state treasury (bait al-mal), thus showing that its collection was a duty of the Muslim state. Hence it was that when, after the death of the Holy Prophet, certain Arab tribes refused to pay, Abu Bakr the first Caliph sent out troops against them, this step being taken because the withholding of zakat on the part of an entire tribe was tantamount to rebellion.

The punishable crimes in Islamic law are those which affect society; and those spoken of in the Holy Qur’an are murder, dacoity or highway robbery, theft, adultery or fornication (zina) and accusation of adultery. Before discussing in detail the various punishments prescribed in these cases, it may be stated that the Holy Qur’an lays down a general law for the punishment of offences in the following words: “And the recompense of evil (sayyi’ah) is punishment (sayyi’ah) like it, but whoever forgives and amends, he shall have his reward from Allah” (42:40). This golden rule is of very wide application, since it applies both to individual wrong done by one person to another and to offences of a less particular nature: offences against society. Similar instructions as to the punishment of offenders are given elsewhere in the Holy Qur’an: “And if you take your turn (‘aqabtum), then punish (‘aqibu) with the like of that with which you were afflicted. But if you show patience, it is certainly best for the patient” (16:126); “And whoever retaliates (‘aqaba) with the like of that with which he is afflicted (‘uqiba) and he is oppressed, Allah will certainly help him” (22:60); “Whoever acts aggressively (i‘tada) against you, inflict injury (i‘tadu) on him according to the injury he has afflicted on you” (2:194).

While in the verses quoted above and similar other verses, a golden rule is laid down for the individual wronged, that he should in the first instance forgive the offender provided the latter amends by forgiveness, the basis also is ordained of penal laws in general for the protection of society, and that basis, according to all these verses, is that the punishment of evil should be proportionate thereto. Every civilized code of penal laws is based on that principle, and by enunciating this general rule, ample scope is given to Muslim peoples and states to formulate their own penal laws. It is for this reason that the Holy Qur’an does not go into many details, and speaks of punishment only in cases of the most glaring offences against person and property. It should be further noted that the Holy Qur’an generally adopts the same word for punishment as for the crime. Thus in 42:40, both evil and its punishment are called sayyi‘ah (evil): in 16:126 and 22:60, it is a derivative of ‘uqubah (punishment); and in 2:194, it is i‘tida’ (aggression). The adoption of the same word evil for the crime and its punishment indicates that punishment itself, though justified by the circumstances, is a necessary evil.

Undoubtedly the greatest crime known to society is taking away of the life of another man (qatl). It is a crime denounced in the earliest revelations: “And kill not the soul which Allah has forbidden except for a just cause” (17:33; 6:151).”And they who … slay not the soul which Allah has forbidden except in the cause of justice … and he who does this shall meet a requital of sin — The chastisement shall be doubled to him on the day of Resurrection, and he shall abide therein in abasement” (25:68-69).

The punishment of murder is, however, prescribed in a Madinah revelation: “O you who believe, retaliation (qisas) is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave and the female for the female. But if remission is made to any one by his (aggrieved) brother, prosecution (for blood-money) should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whoever exceeds the limit after this, will have a painful chastisement. And there is life for you in (the law of) retaliation, O men of understanding, that you may guard yourselves” (2:178, 179).

The word qisas rendered as retaliation, is derived from qassa meaning he cut it or he followed his track in pursuit and it comes therefore to mean retaliation by slaying for slaying, wounding for wounding and mutilating for mutilating (LL.). The law of qisas among the Israelites extended to all these cases, but the Holy Qur’an has expressly limited it to cases of murder (fil-qatla). It speaks of retaliation in wounds as being an ordinance of the Mosaic law (5:45), but it is nowhere prescribed as a law for the Muslims, who are required to observe retaliation only in the case of the slain (2:178). In some hadith it is no doubt mentioned that the Holy Prophet ordered retaliation in some cases of wounds, but this was in all likelihood due to the fact that he followed the earlier law until he received an express commandment to the contrary.

The law of retaliation in murder cases is followed by the words “the free for the free, the slave for the slave and the woman for the woman,” which have sometimes been misunderstood as meaning that if a free man has been murdered, a free man should be murdered in his place and so on. This is falsified by the very word qisas which requires that the murderer should be killed and not an innocent man. The words were meant to abolish an old Arab custom, for the Arabs before Islam used to insist, when the person killed was of noble descent, upon the execution of others besides the murderer. So it was made clear that whoever it might be, a free man or a slave or a woman, the murderer himself was to be slain.

An alleviation is, however, allowed in case the person who suffers from the death of the murdered person makes a remission and is satisfied with diyah or blood-money. Another case in which blood-money takes the place of a death sentence is that of unintentional killing. The Holy Qur’an says: “And a believer would not kill a believer except by mistake. And he who kills a believer by mistake should free a believing slave, and blood-money should be paid to his people unless they remit it as alms. But if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave suffices; and if he is from a tribe between whom and you there is a covenant, the blood-money should be paid to his people along with the freeing of a believing slave” (4:92).

It may be noted here that by the hostile tribe, spoken of in the above quotation, is meant a tribe at war with the Muslim state. The murder of a non-Muslim living under a Muslim state or in a friendly non-Muslim state, is punishable in exactly the same way as the murder of a Muslim. The Holy Prophet is reported to have said: “Whoever kills a mu‘ahad (a non-Muslim living under the protection of a Muslim state), he shall not perceive the odour of Paradise, and its odour is perceivable from a distance of forty years’ journey” (Bu. 88:30; Tr. 15:11; Ah. II, p. 186). Thus, even from a purely religious point of view, not the least distinction is made between the murder of a Muslim and a non-Muslim, and therefore any distinction in their temporal punishments is out of the question. And where the Holy Qur’an speaks of a murderer, it always speaks of the murderer of a nafs (person) and not of a Muslim: “Whoever kills a person unless it be for manslaughter or for mischief in the land, it is as though he had killed all men” (5:32). It is true that ‘Ali is stated to have with him a written paper, according to which a Muslim was not to be killed for an unbeliever, but evidently this related to a state of war and not a state of peace; the latter is expressly spoken of in the hadith already quoted. In fact, the rights of non-Muslims in a Muslim state are in all respects at par with those of Muslims, so much so that Muslims are required even to fight in their defence, and the Holy Prophet is reported to have said: “Their property is like our property and their blood is like our blood.” According to another report: “The property of the mu‘ahads is not lawful for the Muslims” (Ah. IV, p. 89).

Hadith speaks of cases of murder in which the murderer’s intention is doubtful and, in these cases too, blood-money is to be paid. And where the murderer could not be discovered, blood-money was paid from the state treasury. There does not appear to be any reported case in which the murderer may have been imprisoned in case of unintentional murder, but the alleviation of punishment in such cases is clearly provided for in the Holy Qur’an. The form of alleviation spoken of in the Holy Book is the payment of blood-money, but the right of the state to give that alleviation any other form is not negatived.

Another crime for which capital punishment may be awarded is dacoity. In the Holy Qur’an, dacoity is spoken of as waging war against God and His Apostle: “The only punishment of those who wage war against Allah and His Messenger and strive to make mischief (fasad) in the land is, that they should be put to death or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned; this shall be as a disgrace for them in this world and in the Hereafter they shall have a grievous chastisement” (5:33). It has been accepted by the commentators, by a consensus of opinion, that dacoits and murderers who create disorder in a settled state of society are referred to in this verse. The punishment prescribed is of four kinds, which shows that the punishment to be inflicted in any particular case would depend upon the circumstances of the case. If murder has been committed in the course of dacoity, the punishment would be the execution of the culprit, which may take the form of crucifixion if the offence is so heinous or the culprit has caused such terror in the land that the leaving of his body on the cross is necessary as a deterrent. Where the dacoits have committed excesses, one of their hands and feet may be cut off. In less serious cases of dacoity, the punishment may be only imprisonment.

Theft is the next punishable crime spoken of in the Holy Qur’an: “And as for the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, an exemplary punishment from Allah, and Allah is Mighty, Wise. But whoever repents after his wrong-doing and reforms, Allah will turn to him mercifully. Surely Allah is Forgiving, Merciful” (5:38, 39). The cutting off of hands may be taken metaphorically, as in qata‘a lisana-hu (lit., he cut off his tongue) which means he silenced him (LA.). But even if taken literally, it is not necessary to cut off the hands for every type of theft, and this is a fact which all jurists have recognized. As stated above, in the case of dacoity four grades of punishment are mentioned, ranging from death or crucifixion to mere imprisonment. It is evident that theft is not as serious a crime as dacoity, and hence the minimum punishment for it could not be severer than the minimum punishment for dacoity, which is imprisonment, the next higher being the cutting off of hands. Evidently what is meant is that whereas the maximum punishment, for dacoity is death, the maximum punishment for theft is the cutting off of the hand. Therefore it is for the judge to decide which punishment will suit a particular case. The state of society may sometimes demand the maximum punishment, even in less serious cases, but there are several circumstances which go to show that the maximum punishment of the cutting off of hands may ordinarily be reserved for habitual thieves. Firstly, the minimum punishment for dacoity, having already been mentioned in v. 33, may also be taken as the minimum punishment for the much less serious offence of theft, and this would meet the ends of justice. Secondly, the cutting off of hands, being a punishment for the more serious offences falling under dacoity, should also be reserved for the more serious offences falling under theft, and the offence of theft generally becomes more serious when it becomes habitual. Thirdly, the punishment of cutting off of hands, in cases of theft, is called an exemplary punishment and such punishment could only be given in very serious cases, or when the offender is addicted thereto and the milder punishment of imprisonment has no deterrent effect upon him. Lastly, v. 39 shows that the object of the punishment is reform, and an occasion to reform can only be given if the punishment for a first or second offence is less severe.

It is true that the cutting off of the hand, for even a first crime, is reported in hadith but this may be due to the particular circumstances of society at the time, and it is for the judge to decide which punishment will suit the circumstances. For instance, according to some hadith, the hand was cut off when the amount stolen was one-quarter of a dinar or more; according to others when it was one dinar or more. According to another report the hand of the thief was not to be cut off at all when a theft was committed in the course of a journey or on an expedition. The words in Abu Dawud are: “I heard the Messenger of Allah say, Hands shall not be cut off in the course of a journey.” Probably some other punishment was given in such cases. There are also hadith showing that the hand was not to be cut off for stealing fruit on a tree. The cutting off of the hand is also prohibited in the case of criminal misappropriation. When Marwan was Governor of Madinah, a certain slave stole young palm trees from the garden of a man, and being caught was imprisoned by Marwan, who intended to cut off his hand. The master of the slave went to Rafi‘ ibn Khudaij who said that he had heard the Holy Prophet say that there was to be no cutting off of the hand in the case of theft of fruit, and when Rafi‘ related this to Marwan, the slave was let off. It is further related, however, that Marwan had him flogged. In another hadith it is stated that when a certain person stole another’s mantle valued at thirty dirhams from underneath his head, the owner of the mantle offered that he would sell the same to the person who had stolen it, without demanding immediate payment, and the Holy Prophet approved of this arrangement. These examples show that great latitude was allowed to the judge in the choice of the punishment.

Adultery, and false accusation of adultery, are both punishable according to the Holy Qur’an: “The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah if you believe in Allah and the Last Day, and let a party of believers witness their chastisement” (24:2). In the case of slave-girls, who are guilty of adultery, the punishment is half of this: “Then if they (the slave-girls) are guilty of adultery when they are taken in marriage, they shall suffer half the punishment for free married women” (4:25).

These are the only verses speaking of punishment for adultery, and they clearly show that flogging, and not death or stoning to death, is the punishment for adultery. In fact 4:25 precludes all possibility of death having ever been looked upon by the Holy Qur’an as a punishment for adultery. It speaks clearly of the punishment of adultery in the case of married slave-girls, and says further that punishment for them is half the punishment of adultery in the case of free married women. It is generally thought that while the Holy Qur’an prescribes flogging as a punishment for fornication, i.e., when the guilty person is not married, stoning to death is the punishment for adultery, and that this is allegedly based on the Holy Prophet’s practice. But the Holy Qur’an plainly speaks of the punishment for adultery in the case of married slave-girls as being half the punishment of adultery in the case of free married women (muhsanat), and therefore death or stoning to death cannot be conceived of as possible punishment in case of adultery as it cannot be halved, while imprisonment or flogging may be. Thus the Holy Qur’an not only speaks of flogging and not death, as punishment for adultery, but it positively excludes death or stoning to death.

A few words may be added as to the method of flogging. The Arabic word for flogging is jald which means skin, and jalada signifies he hit or hurt his skin (LL.). Jald (flogging) was therefore a punishment which should be felt by the skin, and it aimed more at disgracing the culprit than torturing him. In the time of the Holy Prophet, and even for some time after him, there was no whip, and flogging was carried out by beating with a stick or with the hand or with shoes. It is further stated by the same authority that the culprit was not stripped naked for the infliction of the punishment of flogging; he was only required to take off thick clothes such as would ward off the stroke altogether. According to a report of Ibn Mas‘ud, baring the back for flogging is forbidden among the Muslims, and according to Shafi‘i and Ahmad, a shirt or two must be left over the body. It is further related that it is preferable to give the strokes on different parts of the body so that no harm should result to any one part, but the face and the private parts must be avoided.

As already shown, stoning to death, as a punishment for adultery, is nowhere spoken of in the Holy Qur’an; on the other hand, the injunction to halve the punishment in certain cases is a clear indication that stoning to death was never contemplated as the punishment of adultery in the Holy Book. In Hadith, however, cases are met with in which adultery was punished with stoning to death. One of these cases is expressly mentioned as that of a Jewish couple: “The Jews came to the Holy Prophet with a man and a woman from among them who had committed adultery; and by his order they were stoned to death near the place where funeral services were held” (Bu. 23:61). Further explanation of this incident is given in another report where it is stated that when the Jews referred the case to him, he enquired of them what punishment the Torah prescribed in case of adultery. The Jews tried at first to conceal the fact that it was stoning to death, but on ‘Abd Allah ibn Salam giving the reference, they admitted it, and the guilty persons were dealt with as prescribed in Torah (Bu. 61:26). According to a third version, which is the most detailed, the Jews who desired to avoid the severer punishment of stoning for adultery said one to another: “Let us go to this Holy Prophet, for he has been raised with milder teaching; so if he gives his decision for a milder punishment than stoning, we will accept it.” It is then related that the Holy Prophet went with them to their midras (the house in which the Torah was read), and asked them what punishment was prescribed in their sacred book. They tried to conceal it at first but the truth had to be admitted at last, and the Holy Prophet gave his decision saying: “I give my judgment according to what is in the Torah” (AD. 37:26).

These reports leave not the shadow of a doubt that stoning was the punishment of adultery in the Jewish law, and that it was in the case of Jewish offenders that this punishment was first resorted to by the Holy Prophet when he came to Madinah. There are other reports which show that the same punishment was given in certain cases when the offenders were Muslims, but apparently this was before the revelation of the verse (24:2) which speaks of flogging as the punishment for both the adulterer and the adulteress, it being the practice of the Holy Prophet to follow the earlier revealed law until he received a definite revelation on a point. A suggestion to that effect is contained in a hadith: “Shaibani says, I asked ‘Abd Allah ibn Abi ‘Aufa’, Did the Holy Prophet stone to death? He said, Yes. I said, Was it before the chapter entitled the Light (the 24th chapter) was revealed or after it? The reply was, I do not know” (Bu. 87:6). The chapter referred to is that which speaks of flogging as a punishment for adultery, and the question shows clearly that the practice of stoning for adultery was recognized as being against the plain injunction contained in that chapter. It is likely that some misunderstanding arose from the incidents which happened before the Qur’anic revelation on the point, and that that practice was taken as the Sunnah of the Holy Prophet. The Khawarij, the earliest Muslim sect, entirely rejected stoning to death (rajm) as a punishment in Islam.

The question seems to have arisen early as to how an adulterer could be stoned, when the Holy Qur’an prescribed flogging as the only punishment for adultery. ‘Umar is reported to have said that “there are people who say, What about stoning, for the punishment prescribed in the Book of Allah is flogging”. To such objectors ‘Umar’s reply was: “In what Allah revealed, there was the verse of rajm (stoning); we read it and we understood it and we guarded it; the Holy Prophet did stone (adulterers to death) and we also stoned after him, but I fear that when more time passes away, a sayer would say, We do not find the verse of rajm in the Book of Allah”. According to another version he is reported to have added: “Were it not that people would say that ‘Umar has added in the Book of Allah that which is not in it, I would have written it”. The argument attributed to ‘Umar is very unsound. He admitted that the Holy Qur’an did not contain any verse prescribing the punishment of stoning for adulterers, and at the same time he is reported as stating that there was such a verse in what Allah revealed. In all probability what ‘Umar meant, if he ever spoke those words, was that the verse of stoning was to be found in the Jewish sacred book, the Torah, which was undoubtedly a Divine revelation, and that the Holy Prophet stoned adulterers to death. The use of words “Book of God” (Kitab Allah) for the Torah is common in the Holy Qur’an itself, the Torah being again and again spoken of as Kitab Allah or the Book of God, or al-Kitab, i.e., the Book. In all likelihood ‘Umar only spoke of rajm as the punishment of adultery in the Mosaic law and he was misunderstood. At any rate he could not have spoken the words attributed to him. Had there been such a verse of the Holy Qur’an, he would have brought it to the notice of other Companions of the Holy Prophet, when a complete written copy was first prepared in the time of Abu Bakr at his own suggestion. The words, as attributed to him in some of these reports, are simply meaningless. How could he say that there was a verse of the Holy Qur’an which he would have written down in the Holy Qur’an, but he feared that people would say that he had made an addition to the Holy Qur’an, that is to say, added to it what was not a part of it? A verse could not be said to be a part of the Holy Qur’an and not a part of the Holy Qur’an at one and the same time.

There is further evidence in hadith itself that ‘Umar himself, at least in one reported case (and it is a reliable report), punished adultery with flogging as laid down in the Holy Qur’an in 24:2, and not with stoning to death. According to Bukhari, one of ‘Umar’s collectors, Hamzah by name, found that a married man who had committed adultery with his wife’s slave-girl had been punished by ‘Umar with a hundred stripes, and he referred the case to ‘Umar, and ‘Umar upheld his first decision. His own action therefore negatives the report which attributes to him the statement that stoning to death as a punishment for adultery was an ordinance contained in a Qur’anic verse. An explanation is sometimes offered, that such a verse had been revealed but that it was abrogated afterwards, though the ordinance contained in it remained effective. There is no sense at all in this explanation. If the words of the verse were abrogated, the ordinance contained in those words went along with them. No ordinance can be given except in words, and if the words are abrogated, the ordinance is also abrogated. If therefore such a verse was ever revealed (for which there is no testimony worth the name), the admission that it was abrogated leaves the matter where it was before its revelation.

A false accusation of adultery is punished almost as severely as adultery itself: “And those who accuse free women and bring not four witnesses, flog them (with) eighty stripes and never accept their evidence, and these are the transgressors — Except those who afterwards repent and act aright; surely Allah is Forgiving, Merciful” (24:4, 5).

It may be added here that while in ordinary matters two witnesses are required, in the case of an accusation of adultery four witnesses must be produced. Thus a case of adultery can be established only on the strongest possible evidence. That circumstantial evidence is accepted is shown by the Holy Qur’an itself in Joseph’s case who, when accused of an assault on the chief’s wife, was declared free of the charge on circumstantial evidence. There are also a number of hadith showing that circumstantial evidence was accepted when it led to the establishment of a certain fact.

The Holy Qur’an does not speak of any punishment for the man who drinks intoxicating liquors, but there are hadith showing that the Holy Prophet inflicted punishment in such cases. This punishment seems to have been of a very mild type and it appears that it was inflicted only in cases when a man was intoxicated with drink. Thus it is related that a certain person called Nu‘aiman or Ibn Nu‘aiman was brought to the Holy Prophet in a state of intoxication, and it distressed the Holy Prophet, so he ordered those who were in the house to give him a beating, and he was beaten with shoes and sticks. Another incident is related in which the person who had drunk wine was beaten with hands and with shoes and with garments (thaub). Such remained the practice in the time of the Holy Prophet and that of Abu Bakr, and for some time during the caliphate of ‘Umar, and very mild punishment was inflicted with hands or shoes or ardiya (pl. of rida’, being the wrapping garment covering the upper half of the body), but ‘Umar then introduced flogging, giving forty stripes, raising the punishment to eighty stripes, it is added, when people behaved inordinately (‘atau) and transgressed limits (fasaqu). It is very likely that this punishment, or at any rate the severer punishment, was inflicted for disturbing the public peace by drunkards.

Punishment must be inflicted irrespective of a person’s status, nor should mediation be accepted in such cases. When, in the case of a certain woman who was guilty of theft, some people sought to intercede on her behalf through Usamah, since she came of a good family, the Holy Prophet was enraged and said, Dost thou intercede in the matter of a hadd (punishment)? and then addressed the people in general, saying, “Those before you went astray, for, when one of them committed a crime and he was a great man, they would not punish him, and when he was a poor man they would execute the punishment” (Bu. 86:12). But leniency was shown in the execution of punishment when the guilty person showed signs of repentance. It is strictly forbidden that one man should be punished for the crime of another. Nor is any punishment to be inflicted on a mad man or a minor. The punishment of the pregnant woman is to be deferred until she has delivered her child.