COURSE TITLE: ISLAMIC CRIMINAL LAW

COURSE CODE: SL 2202

The Origins of Islamic Law

Islamic law represents one of the world's great legal systems. Like Judaic law,
which influenced western legal systems, Islamic law originated as an important part
of the religion.

Sharia, an Arabic word meaning "the right path," refers to traditional Islamic
law. The Sharia comes from the Koran, the sacred book of Islam, which is the
actual word of Allah. Sharia also stems from the Prophet Muhammad's teachings
and interpretations of those teachings by certain Muslim legal scholars. Muslims
believe that Allah (God) revealed his true will to Muhammad (s.a.w), who then
passed on Allah's commands to humans in the Koran.

Since the Sharia originated with Allah, Muslims consider it sacred. Between the
seventh century when Muhammad died and the 10th century, many Islamic legal
scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim
Empire. The classic Sharia of the 10th century represented an important part of
Islam's golden age. From that time, the Sharia has continued to be reinterpreted and
adapted to changing circumstances and new issues. In the modern era, the
influences of Western colonialism generated efforts to codify it.

Islamic criminal law

(Arabic: ‫ )فقه العقوبات‬is criminal law in accordance with Sharia. Strictly speaking,
Islamic law does not have a distinct corpus of "criminal law." Although criminal
law in other legal systems tends to be organized according to the nature of crimes,
criminal offenses under classical Islamic law are categorized according to the nature
and sources of punishments.

Islamic criminal offenses are divided into three categories depending on the
offense:

1. Offenses and punishments fixed in the Qurʾan or Sunna (hudud);

2. Offenses against the person, including intentional injury and homicide,
which are considered matters to be settled between the offender and victim,
and for which remedies include retaliation (qisas) and financial compensation
(diya).
3. Offenses whose punishment is not specified in the Quran and the Hadiths,
and is left to the discretion of the ruler or Qadi, i.e. judge) (taʿzir).
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Islamic criminal law is not applied uniformly in all locations—interpretations of
Sharia and hudud punishments in countries such as Indonesia and Saudi Arabia, for
example, can be very different. In Pakistan, hudud offenses have been incorporated
into state legislation. In recent years, Islamic criminal law has been the subject of
commentary and critique by scholars and representatives of the international human
rights community.

Traditional sharia courts, unlike modern Western courts, do not use jury or
prosecutors on the behalf of society. Crimes against God are prosecuted by the
state as hudud crimes, and all other criminal matters, including murder and bodily
injury, are treated as disputes between individuals with an Islamic judge deciding
the outcome based on sharia fiqh such as Hanafi, Maliki, Shafi'i, Hambali and Jafari
followed in the Islamic jurisdiction.

In practice, since early on in Islamic history, criminal cases were usually handled by
ruler-administered courts or local police using procedures which were only loosely
related to sharia. In the modern era, sharia-based criminal laws were widely
replaced by statutes inspired by European models, although in recent decades
several countries reintroduced elements of Islamic penal law into their legal codes
under the growing influence of Islamist movements.

The concept of crime.

Definition of crime:

The Arabic word for crime is “Jarimah” which is derived from the word “Jarama”.
The word “Jarama” literally means “to cut” and “to earn” what is not good.

Technically, “Jarimah ” or crime refer to prohibition imposed by Allah, the

violation of which gives rise to punishment known in Arabic “Uqbat”. The
punishment takes the forms of Hadd, Qisass and Taazir.

Therefore crime can be defined as the legal prohibition imposed by Allah violation
of which in punishable by Hadd, Qisass and Taazir.

This shows that for anyone who consists a crime, the law will grant a remedy by
way of punishment. Crime and punishment divert human attention to the fear of
Allah and the fear of the Day of Judgment, which prove more effective in purifying
the mind of the criminal and educating him than any other known method.

All those crimes which injure or inflict wounds on other individuals are oppressive
to human beings and offensive to the creator. Thus in all crimes the right Allah and

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the right of individual are infringed because the perpetrators of such crimes are
offenders (criminals) to both.

However, in the same cases of crime, the right of individual is dominant and in
other right of Allah is more conspicuous. Where the right of Allah is dominant the
punishment is called Hadd and is more where the right of the individual is
dominant, the punishment is called Qisas.

Hudud

The Arabic word Hudud is the plural form of Hadd meaning prevention, restrain,
obstruction, hindrance, or prohibition.
In Islamic law, Hudud expresses the correction specified by the law on account of
the right of Allah. It is the original purpose was to warm people not commit
offensive actions. Therefore it was a restrictive ordinance or statute of the Almighty
Allah.
Hudud are punishments that are textually designated and they apply crimes whose
penalties are mandatory: i.e. as defined in the holly Quran and Prophetic tradition.
In short Hudud are crime with fixed punishments in the Holy Quran and Sunnah.
In Islamic law, Hudud apply to only seven crimes namely:
1. Al-zina – Fornication of adultery.
2. Forcible zina - Rape
3. Al-qadhf – False accusation of adultery.
4. Al-sarqah – Theft.
5. Shurbul-khamri – drinking of liquor.
6. Al-riddah – apostasy
7. Al-baghye – rebellion or treason.

The punishments in Hudud are not subject to any amendment, alternative or

commutation, substitution, change or waiver (whatsoever the case might be) by the
judge, ruler or any person in authority. In simple term, they are not compoundable
by way of pardon or amicable settlement by the fact of change in the time, place
and situation, no has anyone the prerogative to waive the punishment.
The only thing that a judge, ruler or person in authority can do so as far as the
infliction of punishment on Hudud offences are concerned is to delay the
punishment whenever necessary for fear of harm.

Execution of Punishment

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Even if the applicability of a penal law is proved and the Islamic judge decides to
execute it, there are rules and instructions for how to do it. These rules are further
indications of Islamic clemency and benevolence.

1. The penalty of lashing shall not be executed at the beginning and end of the day
in winter because the lash hurts the sinner too much at those times. Rather, it
shall be executed in the middle of day when it is warmer.
2. Contrarily, it shall not be done in the middle of day in summer, when it is too
warm. Rather, it shall be done at the end of day.
3. The sinner shall not lie down when being lashed. Rather, he/she shall be sitting
or standing, because the lash strokes are slower in this condition and the sinner
feels less pain.
4. If the sinner is sick, execution of the penal law shall be postponed until recovery.
5. If she is pregnant, it shall be deferred until delivery.

Qisas – retaliation:
Islam holds out murder as one of the greatest crime known to human society. It has
been punishable under all systems of law since the early history of mankind and
throughout has ages up to the present.
Murder is looked upon by Allah and His Messenger with utter disgust and will be
the first matter that will be taken up on the Day of Judgment. The Holy Prophet
(S.A.W) says:
“The first of what will be decided on the resurrection day among the people will be
about murder”. (Bukhari).
In Islamic law, the punishment prescribed for murder and the infliction of injury in
Qisas, that is, inflicting on the culprit in injury exactly equal to the injury the
inflicted upon his victim.
Among the features of pre-Islamic Arabia is the concept of revenge for homicide.
But the revenge was taken not only against the murder himself but against any of
his fellow-tribesmen. This pre-Islamic custom of revenge was radically altered to
Islamic law of Qisas.
This shows that all are equal in the sight of Allah.
Qisas is divided into two categories namely: Qisas for homicide and Qisas for
wounds or injuries.
Qisas originated from the Holy Qur’an where is stated as follows:
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 i) “Oh you who believe, the law of equality is prescribed to you in cases of
murder, the free for free, the slave for the slave, the woman for the
woman. But if any remission is made by the brother of the slain, then
grant any reasonable demand and compensate him with handsome
gratitude. This is concession and a mercy from your lord. After this
whoever exceeds the limits shall be in grave penalty”. (2:178).

ii) “We ordained therein for them, life for life, eye for eye, nose for nose, ear
for ear, tooth for tooth, wounds equal to equal. But if anyone remits the
retaliation by way of charity, it is an act of atonement for himself. And if
any fail to judge by the light of what Allah hath revealed, they are no
better than wrongdoers”. (5:45)

iii) Nor take life – which Allah has made sacred except for just cause. And if
anyone is slain wrongfully, we have given his heir authority to demand
Qisas or to forgive, but let him not exceed bounds in the matter of taking
life; for he is helped by the law”. (17:33)
From the above Quranic verse, it is deduce that Qisas applies to crimes intended
against life and body. But for unintended crimes, it is punished payment of
Diyaah (blood money). Diyaah is also payable if the victim of his or his heirs
remit the accused. In short according to the above Quranic verse, 3 options are
possible thus:
a) Insist or retaliation;
b) Forgive on amicable settlement for Diyaah;
c) Pardon or forgive in toto.
Where, the option in (b) and (c) is resorted to, the culprit is to perform the kaffarah
i.e. atone for sin for the sin of murder.
The holy Qur’an explains the positive thus:
“And if he be from a tribe between whom and you there is covenant, the blood-
money should be paid to his people along with the freeing of a Muslim Slave; but he
who has not the means should fast for two consecutive months; a penance from
Allah. And Allah is Ever-Knowing wise”. (4:92)
The Kaffarah is performed by the freeing of a Muslim slave, but if he who has not
the means should fast two consecutive months.
Ta’azir

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The word Ta’azir is a derivation of the Arabic verb ‘azar’; meaning ‘to prevent’, ‘to
respect’ and ‘to reform’. In the Islamic legal context. Taazir is defined thus:
Discretionary punishment to be delivered for transgression against Allah, or against
an individual for which there is neither fixed punishment nor presence (Kaffara).
The definition excludes all crimes for which Hadd and Qisas are applied; and
Ta’azir can not intervene or replace any of them. But, Ta’azir can be a possible
alternative and/or additional punishment in some cases, but not at the sole
punishment.
Ta’azir denotes a punishment aimed at the prevention of crime and reformation of
the criminal. It is stated by a scholar that the aim of Ta’azir punishment is thus:
Disciplinary, reformative and deterrent.

Authority
Ta’azir punishment are not textually specified either in Holy Qur’an or Sunnah of
the Holy Prophet (s.a.w.). but, the texts, i.e. Qur’an and Sunnah mentioned some
crimes for which there is no fixed punishment and concerning which is left for the
judge or ruler to decide what sort of punishment to impose and the manner of
inflicting it. For example:
1. “If two men among you are guilty of lewdness, punish them both”. (4:15)
According to commentary of the above verse, it refers to homosexual relation
between men. The order “punish them both” is given to the ruler or the judge of the
community without specifying the sort of punishment, its amount or how it must be
carried out. The decision is left entirely to the ruler or the judge.
2. “As those woman on whose part you fear disloyalty and ill-conduct,
admonish them (first), (next), refuse to share their bed and (last) beat them
(lightly)”. (4:34)

The above verse is concerned with the treatment of wives who disobey their
husbands. Although the methods of dealing with such wives is laid down and were
to be used consecutively, a lot is left to the discretion of the husband (as the head of
the family) in deciding how best to use his authority. This is confirmed by the
Quranic verse, which says as follows:
“Men are in charge women, because Allah has made the one of the one of them to
excel the other”. (4:34).

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Based on the above Quranic verses, the jurists deem it as the origin of Ta’azir
punishment. They based their view on the analogy, that since the husband, being the
head of family, has been entrusted with such authority so as to safeguard the interest
of his family, by extension, the Amir or ruler and his representative, i.e. the judge is
to be entrusted with such authority also. This is to a reasoned, is in order to
safeguard the interest of the society when it is threatened by commissions or
omission which do not fail within the contexts of Hudud and Qisas punishment.
A critical look at the above two verses of the Holy Qur’an makes the legal
principles of Ta’azir implicitly deductible. The following prophetic practices also
confirm the authority of Ta’azir punishment:
1. A companion of the Holy Prophet (S.A.W.) injured a slave as a punishment
for his having sexual intercourse with another female slave. When the Holy
Prophet (S.A.W.) saw the injured slave, he freed him as a punishment to the
master of the slave for the injury he inflicted upon the slave.
2. The Holy Prophet (S.A.W.) deprived a man of his share of the spoils of the
battle because of a misdeed he committed against the commander of the
army.
3. For each of anything to warrant the infliction of the Hadd punishment, the
value of such stolen item must reach the Nisab the thief must pay “double its
value and be liable to punishment”.
The fine of double the value of the stolen property is Ta’azir punishment. So
also ‘be liable to punishment’ as contained therein is entirely at the discretion of
the judge.
Feature of Ta’azir
A distinct feature of Ta’azir punishment is that it is not determined in fixed
or specific terms.
A wide range of punishment is available for the judge to choose the one that
suits the crime in question, bearing in mind the criminal’s intention, record,
psychologically condition, etc.
Here, the authority of the judge is limited by his obligation not to order a
punishment which is not allowed by Islamic law.
Another feature of Ta’azir is the fact that cumulative punishment is allowed:
i.e. the judge can inflict more than one punishment at a time – i.e. flogging and
imprisonment. This is an exception to the general rule in Islamic law that one
punishment is imposed for crime.

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 It is also another feature of Ta’azir punishment to allow a judge to pass more
severe sentences against a recidivist.
This is so, where no other punishment except a severe one can deter and
reform such recidivist.
Ta’azir is an evidence of flexibility of the Islamic penal system. Without
Ta’azir, the Islamic Penal System would certainly have been inadequate. Within
the context of Ta’azir, necessary power is given to the authorities to safeguard
the public interest by making harmful and disturbing behavior unlawful and
prescribing punishments for it. On this point, the jurists are unanimous that
authorities need not prescribe these punishments in advance.

Crime and punishment:

Hudud:
1. Adultery – (zinaa)

The crime of adultery has been variously defined by scholars. Some of the
definitions are explained below:

i) A sexual intercourse between a man and a woman without a legal

relationship of husband and wife existing between them.
ii) A sexual intercourse between man and woman who are not lawfully
married to each other.
iii) A sexual intercourse by man with a woman who has not his wife and a
woman with a man who is not her husband.

Therefore a simple legal term of adultery (zinaa) is defined as the insertion of the
male organ into the female sexual organ between those not lawfully married to each
other. The more penetration of the glan of the penis is a sufficient legal ground for
punishment. And is not necessary that the penetration be full or the sexual act be
complete.

Punishment of adultery:

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The punishment varies depending on the act of adultery or fornication. If it
fornication, the punishment is 100 lashes as a stated in the Holy Qur’an, plus one
year in exile which is added by the Holy Prophet (S.A.W.).

“The adulterer and the adulteress flog each of them with a hundred
stripes. Let not compassion move you in their case, in a matter prescribed
by Allah, if you believe in Allah and the last day, and let a party of
believers witness their punishment” (24:2)

And the Holy Prophet commands:

“Record this injunction from me that according to the divine verdict
punishment for an unmarried couple is hundred stripes together with
expulsion from homeland and punishment for a married couple is a
hundred stripes as well as stoning”.

Condition before the Hadd of adultery (zinaa):

The Hadd of adultery (zinaa) is inflicted upon the culprit when the following
conditions are satisfied:

a) The offender should be an adult.

b) The offender should be sane.
c) It should be committed or done voluntarily.
d) The adulterer should be a Muslim.
e) The adulterer should be free person and not a slave.
f) The adulterer should not have been legally married only, but must have
consummated the marriage with his wife.

4. DRINKING OF LIQUOR OR WINE:

Wine drinking is mother of all evils. Wine drinking is an offence against public
morality. The Arabic word “Khamr” signifies any alcoholic drink which causes
intoxication. It is reported on the authority of Ibnu Umar that the Holy Prophet
(S.A.W.) said:

“Every intoxicant is Khamr and every Khamr is prohibited”

Wine drinking is the root cause of any evils which include the following:

1. It brings about harmful effects on one’s mind and health.

2. It brings about constant rivalry and friction between the opposing groups in
society and ultimately leads to destruction.

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 3. It brings out neglect of religion; work and family needs thereby not letting
one fulfill one’s obligation toward one’s family as the head of family.
4. It encourages extravagancy, wastefulness and luxurious living among the
people.

Textual authorities concerning the prohibition of wine drinking.

During the period of Jahiliat i.e. period of darkness. The Arabs were very fond
of wine. The love of wine is reflected in their language, which has nearly one
hundred names for it. It also reflects in their poetry, which celebrates the praises
of wine and so on.

With the coming of Islam, Allah adopted a wise course of education and
training, prohibiting wine drinking is measured stages in order to eradicate the
praises this pervasive evil from society.

He made a clear that the harm of drinking wine is greater than it benefit.

“They ask thee concerning wine and gambling, say, in them is great sin, and
some profit for men, but the sin is greater than the profit”. (2 : 219).

This mere disapproval as reflected from the above verse of wine – drinking is to
serve as a preliminary caution to the pious.

At the second stage, it is prohibited to come to prayers (salat) while

intoxicated, as reflected thus:

“O ye who believe approach not prayers while you are drunk, until you can
understand all that ye say”. (4 : 43).

At the finally, all kinds of intoxicants are prohibited totally and decisively in
these words:

“O ye who believe, intoxicants and gambling, dedication of the stones and

divination by arrows, are an abomination of Satan’s handwork! Eschew such
abomination that ye may proper. Satan’s plan is but to excite enmity and hatred
between you, with intoxicants and gambling, and hinder will ye not then
abstain”. (5:93-94).

Since wine-drinking is a bad habit, it needs time for habitual drunkards to

abstain from it altogether, hence its prohibition in measured stages as shown
above.

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 There are many prophetic traditions such as the following prohibiting wine-
drinking:

“Allah has cursed wine and the one who drinks, the one who server it, the one
who sells it, the one who buys it, the one who brews and extracts it, the one who
has brewed and extracted, the one who carries it and the one for whom it is
carried”.

Also:

“The man who drinks wine is not believer at the time he drinks it”.

And lastly:

“Anything that intoxicates is Haram and if a large dose of something is

intoxicant, even its smallest does it also unlawful and if a cup of anything is
intoxicant then even a drop of it is also unlawful”.

Condition before the Hadd of wine drinking is inflected

Before the Hadd of wine drinking is inflicted upon the offender, the following
conditions must exist namely:

1. The offender must be an adult. If the offender is an infant or a child, instead

of Hadd, Ta’azir is applied.
2. The offender must be Muslim. If the offender is non – Muslim, no Hadd
punishment is inflicted.
3. The offender must be a sane person. If the offender is an insane person the
Hadd punishment is vacated because the exception place from the liability.
4. The wine must be taken voluntary, the traditional of Prophet (S.A.W.) has
excused or exempted the offender from any criminal responsibility when he
is forced or coerced. In short, involuntary intoxication does not give rise to
punishment at all.

Proving the guilt of wine drinking

The crime of wine-drinking is established by the either of the following means

namely:

1. The testimony of evidence of two reliable witnesses who had seen him drink,
or who had smell the liquor, or one witness had seen him drink and the other
smells it.

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 2. The admission or confession of the accused. This concerns the offender who
had committed the crime. Here, what validates the admission is when it is
free from any suspicion. Admission is considered the strongest means of
proof.
3. Imam Malik added another method of proof to the effect that the crime of
wine-drinking is established by the smell of the mouth or the vomiting.

The punishment for wine-drinking

Some jurists are of the view that the Hadd punishment here is 40 lashes with
another 40 lashes as Ta’azir. Other jurists consider the Hadd to be 80 lashes, and
they support their view by claiming that this number resulted from consensus
(Ijma’i). the 80 lashes is the highest and maximum number of strokes inflicted
on a drunkard. Ali based his judgment on analogical deduction. His view is that
he who defames a Muslim should be punished by 80 strokes. He concluded that
if one drinks any intoxicant he raves and whenever he raves he defames and
slenderer deserves 80 lashes.

5. APOSTASY (Riddah)

The Arabic equivalent for apostasy is Riddah from the root Radd which means
‘to retreat’ ‘to retire’ to withdraw from or fall back from.

From the legal perspective, apostasy (Riddah) is the renunciation or

abandonment of the Islamic faith, for any other religion, by one who professed
it. The person who forsakes Islam for unbelief or for another religion is called a
‘Murtadd’.

Acts, deeds or words that result in Riddah

This crime is committed with reference to believe through words or deeds or

even failure to observe certain obligatory practices or the tenets of Islam.

The following are some example:

a) The saying of words in contradiction of or the open denial of the fundamental

teaching of Islam i.e. the five pillars of Islam.
b) Throwing the Holy Qur’an in a fifth.
c) Abuse or say holy Prophet Muhammad (S.A.W.) is not the last Prophet or
abuse other Prophets of Allah before Muhammad.
d) To utter to be lawful like zina, wine or pork, etc.
e) To allege being a Prophet of Allah or o receiving revelation from Allah, etc.
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Condition

Before the crime of apostasy (Riddah) is established and the person becomes
condemned as apostate, the following conditions must be satisfied.

1. The culprit must be an adult, i.e. the person must have attained majority.
2. The culprit must be sane or in full possession of his or her senses.
3. The culprit must have acted voluntary.

Apostasy in the Holy Qur’an

There are so many Quranic verses which mention apostasy as an offence but do not
spell out the punishment to be carried out in this world. One contrary, all the verses
contain only an assurance that the apostate will be punished in the hereafter. The
following verses will attest to this fact:

“Whoever rejects faith in God after believing in Him, excepting under compulsion
while his heart remains from in faith – but such as open their breast to unbelief on
them is wrath from God and theirs will be dreadful penalty”. (16: 106)

“And whoever of you turn from his religion and dies disbelieving, their works have
failed in this world and the next. Those are the inhabitants of fire; therein they shall
dwell forever”. (5:35)

These and many other verses have expressly or by import mentioned apostasy
(Riddah). And since no where in the Holy Qur’an is the punishment of it
mentioned, the punishment is to be found in the Sunnah of the Holy Prophet
Muhammad (s.a.w.)

Apostasy and Sunnah

The death penalty prescribed as a Hadd punishment is found in the Hadith. The
principal Hadith on which on which the case for death sentence for apostasy is built
on is the one narrated by ibnu Abbas thus:

“Whosoever changes his religion, kill him”.

The same Hadith is also traced to Hadrat A’ishah thus:

“Whosoever changes his religion, kill him verily Allah does not accept repentance
from his servant from his servant who had adopted disbelief after having accepted
Islam”.

Punishment of apostasy
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The punishment of apostasy is death sentence. Since apostasy is basically a state of
mind, the culprit will be given the opportunity to reconsider his position and repent
to Allah. He should be given a chance to make repentance with in a period of three
days. If he mends his way with in this period, he will asked to pronounce the
kalimah – i.e. there is no God but Allah, and Mohammad is hi messenger.

2. Rape: (Forcible zinaa)

Definition of rape:

The legal definition of zina is significant when defining rape, as most jurists hold
that rape is committing zina by force.
For instance, Al-Shafi'i regards rape as forcing a woman to commit zina against her
will.
According to the Hanafites, illegal intercourse is considered rape when there is no
consent and no deliberate action from the victim.
In Malik's view, rape refers to any kind of unlawful sexual intercourse (zina) by
usurpation and without consent. This includes instances when the condition of the
victims prevents them from expressing their resistance, such as insanity, sleep or
being under aged.
The Hanbalites, similar to the Malikites, take into account any kind of force used as
a denial of consent from the victim. They even consider the threat of starvation or
suffering the cold of winter to be regarded as against one's will.

From these juristic opinions, rape can be defined in Islamic law as forcible illegal
sexual intercourse by a man with a woman who is not legally married to him,
without her free will and consent. Considering illegal sexual intercourse (zina) as
part of rape reveals the criminal conceptual elements in which the purpose of rape is
to have sexual excitement and pleasure regardless of the means and extent of the
force used.

Differences between Rape and Zina

Although rape is known as zina bi al-ikrah, it is different from zina itself, because
rape is a physical assault which necessarily causes bodily harm. While the victim is
trying to resist her aggressor, the rapist will use whatever force he needs to fulfil his
intention, and this may even include killing the victim. When the victim is raped,
the intercourse is painful, whereas it is an enjoyable experience for the participants
in fornication.
Rape is also psychologically destructive, because the victim will usually suffer from
severe trauma for a long time. Therefore, the victim of rape is not regarded as an
adulterer. However, those who indulge in zina are willing participants and so there
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is no victim. Rape is a violation of honour. The woman participating in fornication
is willing to lose her honour (or virginity in the case of a virgin) and to allow the
man to ruin her chastity and reputation.
Zina is regarded as a violation of the right of Allah, whereas rape is regarded as the
violation of not only the rights of Allah but also those of a human being. It should
be noted that proving the rights of Allah is much more difficult than proving the
rights of human beings, as these rights can be more easily restored when violated.

The punishment for a convicted rapist

The penalty for a convicted rapist has been considered to be the same as for the
hadd of zina, the hadd of Hirabah or to come under the category of Ta'zir.
The Hadd of zina Ibn Rushd observes that most scholars agree with applying the
hadd penalty for zina to a convicted rapist.
This means that the convict will receive a similar punishment for the offence of
zina, that is, being stoned to death for the married (muhsan), or receiving 100
strokes of the whip and deportation for the unmarried (ghairmuhsan).
They base their argument on a hadith of 'Abd al-Jabbar Ibn Wa'il which reports a
rape case at the time of the Prophet. The victim was excused while the convicted
person who had forcible illegal intercourse with her was sentenced to being stoned
to death.
However, they disagree on the second part of the penalty, i.e. whether the convicted
rapist had to pay a dowry besides being sentenced to the hadd penalty. The majority
of the jurists, including Malik, Shafi'i, the Hanbalites and Laith Ibn Sa'ad take the
stance of punishing him with both the hadd and sadaq (dowry).
The same opinion is reported by 'Ali ibn Abi Talib, Ibn Mas'ud, Sulaiman Ibn
Yasar, Rabi'ah and 'Ati'.
Malik generalises the verdict to cover an insane woman and also an unconscious
sleeping woman. His argument is based on the fact that rape involves the right of
Allah and the right of an individual and these must be dealt with separately. Both
respectively deserve different treatment, as is the ruling in the case of stealing.
The Malikites make no difference between a victim who is a virgin and one who is
not in terms of receiving dowry compensation.

Slander or false accusation (Qadhf)

False accusation (Qadhf) is defined as an unproved allegation that an individual has

committed adultery (zina). This crime is committed when one falsely accuses
another of adultery or fornication (zina) or unchaste to man or woman, or when one
injuriously contest the status or the paternity of Muslim.
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Any another accusation, such as a theft, drinking, taking of interests ect., does not
come within the definition of accusation (Qadhf).

For example when a person is a accused of being thief, slut, whore, robber,
drunkard, ect. In all these cases, the hadd of accusation (Qadhf) does not apply, but
Ta’azir may apply.

Condition on the part of accuser (Qazih)

The accuser or slanderer (Qazih) can be a man or a woman, Muslim or non-Muslim,

and such a person deserves(inayostahili) the punishment of accuser if the following
conditions are present:

a) The accuser must be adult. Where the accuser is a minor, the Hadd of accuser
does not apply to him; but may be given a discretionary(kuachiwa)
punishment, a Ta’azir.
b) The accuser must be sane. The accuser must possess normal common sense,
because an insane or mentally abnormal person is not to be punished with
Hadd of accuser (Qadhf).
This position has a base in the tradition of the Holy Prophet (S.A.W) which
says:
“Three categories of people are exempted from punishment and religious
accountability. An infant until he attains majority, an insane person until he
regains sanity and a person who is sleep until he walks up”.
c) The accuser must uttered the slanderous statement voluntary. The slanderous
statement uttered by the accuser must have been made out of his own free
will or choice, without any element of compulsion or duress. If it is shown
that the slanderous statements were uttered under compulsion or duress, then
the Hadd of accuser lapses. This is reflected in the tradition of the Holy
Prophet (S.A.W) which says:
“Verily, Allah has for my sake overlooked the unintentional mistakes and
forgetfulness of my Ummah (community) and what they are forced to do”.
d) The accuser should not be the father, grandfather or grand grandfather of the
slandered person, because the ascendant cannot be punished with Hadd.

Punishment of accusation (Qadhf)

There are many Quranic verses and traditions of the Holy Prophet (S.A.W) which
regards the accusation as a crime and therefore punishable. The following are some
divine injections as to false accusation of adultery:

Quranic verses:
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 a) “And those who launch a charge against chaste women, flog them with eighty
stripes, and reject their evidence even after, for such men are wicked
transgressors”. (24:4)
b) “Those who slanders chaste women, indiscreet but believing, are cursed in
this life and in the Hereafter, for them is a grievous penalty” (24:25).

Traditions of the Holy Prophet (S.A.W)

c) “Avoid the seven great destructive sins”. They (the people) asked, “ O
Allah’s apostle. What are they?” He said, “To join partners in worship with
Allah; to practice sorcery; to kill the life which Allah has forbidden except
for a just cause (according to Islamic law). To eat up usury (Riba), to eat up
the property of an orphan; to give one’s back to the enemy and fleeing from
the battlefield at the time of fighting; and to accuse chaste women who never
even think of anything touching chastity and are good believers”.

THEFT (SARIQA)

Theft is an act of taking other people’s property without any lawful claim to it. It is
also defined as the taking away of property recognised in the as belonging to
another from where is kept and carrying it with the intention of appropriating it
without justifying one’s actions. It can be said that anybody who does this commits
the crime of theft, provided the value of such stolen property can be legally
appreciated.

Conditions:

The act of the thief is complete by the presence of the following conditions:

As the thief

a) He must be an adult. If he is not an adult, the Hadd punishment will not apply
but Ta’azir punishment in its place.
b) He must be sane. If he is insane the Hadd is not inflicted.
c) He must have committed the act of theft voluntary. If he was forced, it
vacates responsibility; hence the Hadd punishment is not inflicted.

As to the stolen property

a) It must be lawful. For the theft of things that are unlawful like wine, pork,
ect. Neither Hadd nor Ta’azir is inflicted. But if the things stolen belong to a
non-Muslim, they should be returned or its value and Ta’azir punishment is
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 inflicted. But if the things stolen belong to Muslim, they are never returned to
him, instead they should be destroyed and the thief will be not punished at
all.
b) It must be valuable. With regard to the theft of things that are paltry in nature
such as meat, and edibles that are apt to decay, the schools differ. Hanafi
school is of the view that whatever their value, things like grass, wood,
chicken, meat, fish, salt, milk, cocked food, fruits and all edible foods which
are apt to decay is not punished by Hadd.
Maliki and Shaf’i schools are of the view that once it reaches Nisab any
lawful property stolen is punished by Hadd.
Hanbal school agrees with Maliki school except where water and grass are
concerned; Hanbal school thereby agrees with Hanafi school.
In short, for any property which has no value (monetary value) if stolen,
Hadd punishment cannot be inflicted.
c) It must be owned by someone. As to the theft of things which every being has
a right over it, no Hadd punishment is imposed. But if anyone becomes the
owner of a thing, its theft will warrant the infliction of the Hadd punishment.
d) It must be movable. The property, the subject matter of theft must be shown
that it can be moved to the position of the thief. It shows that the theft of
immovable property is not possible; instead it can be the subject of
usurpation or misappropriation, etc.
e) It must be kept in a proper place of custody, the storage place, or the custody
of the goods, is known as Hirz. It is also a place where people normally keep
their property so that they might not be described as careless or not giving
care to their own property.
f) It must reach the Nisab. Nisab is the minimum value of the property when
stolen, and the Hadd punishment of amputation (will be applied.
The purpose of determining a minimum value of stolen property is to avoid
infliction of the severe Hadd punishment for theft unless the stolen property
is considerable value. All the schools are unanimous that if the stolen
property is worthless, the punishment is never inflicted. Although the culprit
will still be liable to a Ta’azir punishment, he will not be liable the Hadd
prescribed for the crime of theft (sariqa).
g) It must be taken away secretly, i.e. without knowledge and consent of the
owner of the property and with and with had intention. If it is with
knowledge of the owner, taking away from the place of the custody is
punishable Ta’azir only.

Knowledge of the Nisab:

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 It is a part of general rule, that before the punishment of the theft is inflicted the
property stolen must reach the Nisab. It goes with that the accused must be
aware of the amount of the property he had stolen as equal to the Nisab.

Where the accused is not aware of the amount of the property he had stolen as
equal to the Nisab –i.e. when he ignorant – and such is proved, no Hadd
punishment of cutting the hand will be inflicted on him. This can happen in the
cases of theft of precious stones or highly valuable materials about which
people are not knowledgeable of their value.

Punishment for theft:

The punishment for theft is prescribed in the Holy Qur’an thus:

“As to the thief, male or female, cut off his or her hands as punishment by way of
example from Allah for their crime. And Allah is exited in power”. (5:38)

As reported in both Sahihul Bukhar and Muslim, this punishment (of cutting the
hand) was practice by the Holy prophet (S.A.W.) Himself. He cut off a thief’s hand
and also ordered the amputation of female thief’s hand.

It was reported that the Holy Prophet (S.A.W.) said:

“If he steals cut his hand and if he steals for the second time cut his leg and if he
steals for the third time cut his hand and if he steals for the fourth time cut his leg
and if he steals after that keep him in prison”.

4. DRINKING OF LIQUOR OR WINE:

Wine drinking is mother of all evils. Wine drinking is an offence against public
morality. The Arabic word “Khamr” signifies any alcoholic drink which causes
intoxication. It is reported on the authority of Ibnu Umar that the Holy Prophet
(S.A.W.) said:

“Every intoxicant is Khamr and every Khamr is prohibited”

Wine drinking is the root cause of any evils which include the following:

5. It brings about harmful effects on one’s mind and health.

6. It brings about constant rivalry and friction between the opposing group in
society and ultimately leads to destruction.

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7. It brings out neglect of religion, work and family needs thereby not letting
one fulfill one’s obligation toward one’s family as the head of family.
8. It encourages extravagancy, wastefulness and luxurious living among the
people.

Textual authorities concerning the prohibition of wine drinking.

During the period of Jahiliat i.e. period of darkness. The Arabs were very fond
of wine. The love of wine is reflected in their language, which has nearly one
hundred names for it. It also reflects in their poetry, which celebrates the praises
of wine and so on.

With the coming of Islam, Allah adopted a wise course of education and
training, prohibiting wine drinking is measured stages in order to eradicate the
praises this pervasive evil from society.

He made a clear that the harm of drinking wine is greater than it benefit.

“They ask thee concerning wine and gambling, say, in them is great sin, and
some profit for men, but the sin is greater than the profit”. (2 : 219).

This mere disapproval as reflected from the above verse of wine – drinking is to
serve as a preliminary caution to the pious.

At the second stage, it is prohibited to come to prayers (salat) while

intoxicated, as reflected thus:

“O ye who believe approach not prayers while you are drunk, until you can
understand all that ye say”. (4 : 43).

At the finally, all kinds of intoxicants are prohibited totally and decisively in
these words:

“O ye who believe, intoxicants and gambling, dedication of the stones and

divination by arrows, are an abomination of Satan’s handwork! Eschew such
abomination that ye may proper. Satan’s plan is but to excite enmity and hatred
between you, with intoxicants and gambling, and hinder will ye not then
abstain”. (5:93-94).

Since wine-drinking is a bad habit, it needs time for habitual drunkards to

abstain from it altogether, hence its prohibition in measured stages as shown
above.

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 There are many prophetic traditions such as the following prohibiting wine-
drinking:

“Allah has cursed wine and the one who drinks, the one who server it, the one
who sells it, the one who buys it, the one who brews and extracts it, the one who
has brewed and extracted, the one who carries it and the one for whom it is
carried”.

Also:

“The man who drinks wine is not believer at the time he drinks it”.

And lastly:

“Anything that intoxicates is Haram and if a large dose of something is

intoxicant, even its smallest does it also unlawful and if a cup of anything is
intoxicant then even a drop of it is also unlawful”.

Condition before the Hadd of wine drinking is inflected

Before the Hadd of wine drinking is inflicted upon the offender, the following
conditions must exist namely:

5. The offender must be an adult. If the offender is an infant or a child, instead

of Hadd, Ta’azir is applied.
6. The offender must be Muslim. If the offender is non – Muslim, no Hadd
punishment is inflicted.
7. The offender must be a sane person. If the offender is an insane person the
Hadd punishment is vacated because the exception place from the liability.
8. The wine must be taken voluntary, the traditional of Prophet (S.A.W.) has
excused or exempted the offender from any criminal responsibility when he
is forced or coerced. In short, involuntary intoxication does not give rise to
punishment at all.

Proving the guilt of wine drinking

The crime of wine-drinking is established by the either of the following means

namely:

4. The testimony of evidence of two reliable witnesses who had seen him drink,
or who had smell the liquor, or one witness had seen him drink and the other
smells it.
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 5. The admission or confession of the accused. This concerns the offender who
had committed the crime. Here, what validates the admission is when it is
free from any suspicion. Admission is considered the strongest means of
proof.
6. Imam Malik added another method of proof to the effect that the crime of wine-
drinking is established by the smell of the mouth or the vomiting

The punishment for wine-drinking

Some jurists are of the view that the Hadd punishment here is 40 lashes with
another 40 lashes as Ta’azir. Other jurists consider the Hadd to be 80 lashes, and
they support their view by claiming that this number resulted from consensus
(Ijma’i). the 80 lashes is the highest and maximum number of strokes inflicted
on a drunkard. Ali based his judgment on analogical deduction. His view is that
he who defames a Muslim should be punished by 80 strokes. He concluded that
if one drink any intoxicant he raves and whenever he raves he defames and
slenderer deserves 80 lashes.

5. APOSTASY (Riddah)

The Arabic equivalent for apostasy is Riddah from the root Radd which means
‘to retreat’ ‘to retire’ to withdraw from or fall back from.

From the legal perspective (, apostasy (Riddah) is the renunciation or

abandonmenf the Islamic faith, for any other religion, by one who professed it.
The person who forsakes Islam for unbelief or for another religion is called a
‘Murtadd’.

Acts, deeds or words that result in Riddah

This crime is committed with reference to believe through words or deeds or

even failure to observe certain obligatory practices or the tenets of Islam.

The following are some example:

f) The saying of words in contradiction of or the open denial of the fundamental

teaching of Islam i.e. the five pillars of Islam.
g) Throwing the Holy Qur’an in a fifth.

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 h) Abuse) or say holy Prophet Muhammad (S.A.W.) is not the last Prophet or
abuse other Prophets of Allah before Muhammad.
i) To utter to be lawful like zina, wine or pork, etc.
j) To allege being a Prophet of Allah or o receiving revelation from Allah, etc.

Condition

Before the crime of apostasy (Riddah) is established and the person becomes
condemmed as apostate, the following conditions must be satisfied.

4. The culprit must be an adult, i.e. the person must have attained majority.
5. The culprit must be sane or in full possession of his or her senses.
6. The culprit must have acted voluntary.

Punishment of apostasy

The punishment of apostasy is death sentence. Since apostasy is basically a state of

mind, the culprit will be given the opportunity to reconsider his position and repent
to Allah. He should be given a chance to make repentance with in a period of three
days. If he mends his way with in this period, he will asked to pronounce the
kalimah – i.e. there is no God but Allah, and Mohammad is hi messenger.

6. Rebellionor treason (Baghye)

Rebellion is regarded as apolitical crime and the purpose of such crime is the
achievement of certain political goals. A political crime does not take place in
normal conditions. It takes place in condition, i.e. in he state of revolution or civil
war.

Rebellion (Albaghye) is one of the major crimes that are subject to Hadd
punishment. It is basically an act of rebellion against the state and it is a collective
action by a group of Muslims and it has been variously defined by the schools.

 Hanafi school defines rebellion as a refusal to pay allegiance to the state.

 Maliki school, on the other hand defines rebellion as denial of loyalty to the
leader,i.e the state whose authority is legitimately established by taking over
state power and constituting politically supremacy but the school warned that
the loyalty to the state should not be violation of sharia.
 Shaf’i school defines rebellious as a group of Muslims against the authority
of the State and in which the rebels proved to have power to reckon with and
to be seen acting under the guidance of an authoritative leader.

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  Hanbal School defines rebellious as a collective activity of a group called
Baghat in a rebellion against the constituted authority of the state under an
unjust leader.

Authority

The following Quran verses and tradition of the Holy Prophet (s.a.w.) prohibit the
crime of rebellion (al-Baghye).

1. “Allah forbids all shameful deeds, and injustice and rebellion”.

2. “If two parties among the believers fall into a quarrel, make ye piece between
them; but if one of them transgresses beyond bounds against the other, then
fight ye (all) against the that transgresses until it complies with the command
of God; but if it complies then make peace between them with justice, and be
fair, for God loves those who are fair (and just)”.
3. The Holy Prophet (s.a.w.) reported to have said thus: “Cut off the head of any
man who goes out and causes division among my people”.

Conditions

Rebels have the following ingredients:

a) There should be the use of force.

b) There should be the criminal intention.
c) It must aim at the disposition of the leader or head of state.
d) The rebels must owe the rebellion’s power and grandeur to follower and
supporters.

Punishment

The rebels are to be inverted to repent and join the community. If they do so, their
repentance is occupied and free from the liability. This is the position under the
Holy Qur’an, the Holy Qur’an prescribes that there should be reconciliation
between the fighting group and any group rejecting the reconciliation is to be fought
and killed. Accordingly Caliph Abubakar fought those who refused to pay zakkat.
Caliph Ali also fought certain rebellious groups.

In other words, the punishment for rebellion (al-Baghye) is death sentence.

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