Crimes and punishments in Islam

Introduction:
Islamic penal system has some unique features including, focus on inner
determent of one’s moral conscience, and development of sense of piety,
righteousness and responsibility from the very early age of a person. Islamic
system tries to create a balance between individual and society and does not
marginalize an individual for the sake of society. It protects the rights and
freedoms of all and does not allow to resort to crime for securing law and order
and peace in society. Islam gives general principles for prohibition and leaves the
punishment to be decided by the state authority. Holly Quran states:
“And let a group of believers witness the punishment”
Islamic theory of criminality is different from the western theories like biological
school of criminality, psychological theory and sociological school, as it states that
human nature is basically good and humans are given free will and freedom to
choose. Major crimes in Pakistan are governed by provisions of Islamic law. This
means two sets of principles, one based on Divine law and the other on positive
law, are operating at the same time in the realm of criminal law in Pakistan.
Crime and punishment defined:
Muslim jurists use the term Jarima or Jinaya for crime. Mawardi in Ahkam-us-
sultania defines crime as, unlawful acts for which punishment have been provided
by God by the way of fixed or discretionary punishment.
In Islamic terminology, maa’siat is the equivalent to crime or offence, which is the
violation of certain public or private right, for which a punishment is prescribed
under the law. This punishment is termed as aqoobat. The major classes of
punishment in Islam are, hadd and Tazir, the first being the punishments which
have been fixed by texts, while the second are all those in which the Qazi or state
is allowed to use its discretion, while deciding the quantum and nature of
punishment.
There are three constituent elements of crime in Islam:
i- Legal element
There must be some prohibition from sharia
 ii- Material element
An act or omission which is prohibited by law
iii- Penalizing element
Criminal responsibility and punishment prescribed.
Objects of punishment
in Islamic law, the aims of punishment and sentencing are based on the purposes
to forbid and prevent conduct that unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or public interest.
Islamic penal system has following main objects of punishment:
(a) Punishing criminals through purification (kaffara) and reformation.
(b) Making criminal an example or deterrence for others
(c) Retribution of victims of crime
(d) To protect society from dangers of crime
(e) To make social stability and security available by making life more secure
and peaceful. Holy Quran states,
“There is (preservation of) life for you in retribution, O people of
understanding, that you may be pious.”
(f) By making execution of punishment public, it is achieved that, future
criminal who has already witnessed the effects and inflictions of
punishment, will keep him away from committing the same crime. Holy
Quran states in this regard:
“….a group of the believers should witness the punishment”
(g) To reform the criminal through repentance.
Subjects of punishment
Any person against whom crime is proved and who is under authority of Muslim
state, whether male or female, Muslim or non-Muslim, is subject to punishment.
Many traditions and verses of Holy Quran show that all citizens of Islamic state
are equal in status irrespective of their wealth, sex, color and creed, however, to
be responsible for criminal liability, one must be legally liable, having legal
capacity in the eyes of law. As hadith states:
“The pen is lifted from the deeds of three, the majnun (madman) until he
becomes sane, the child until he becomes mature, and the sleeping person until
he awakes.”
So, crimes due to duress, coercion or force are forgiven with the exception of few
like murder and rape. In sharia, criminal responsibility rests upon three
foundations,
(a) A person commits prohibited action
(b) He exercises his free will
(c) He has capacity to discriminate between right and wrong.
Classification of punishments
Punishments under Islamic penal system can be classified into following as per
the violation of involvement of rights infringed:
(a) Hudood (fixed punishments)
(b) Qisas and Diyat (retribution and blood money)
(c) Tazir (discretionary punishments)

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Punishment In Islamic Law

✅ Paper Type: Free Essay ✅ Subject: Criminology

✅ Wordcount: 5449 words ✅ Published: 3rd May 2017

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Introduction
In every society, security and stability are basic needs no less important than other
needs like food and clothing. Travis Hirschi propounded a theory of social control that
emphasizes on the role of society in the control of criminal behaviour [1] . It specifies
the fact that no society can afford to denounce criminal activity without duly accepting
its responsibility towards the same. In other words the theory of social control
elaborates on the onus that is shared by society and devised control mechanisms to
ensure a safe social arena, one that is devoid of any type of delinquency. Man have been
conscious of the need for security since the beginning of life and with the formation and
evolution of society, we now have what is known as the establishment of the state or
government and the formation of laws.

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The development of these man-made laws did not come to completion except in the
last few centuries after a long experience of trial and error [2] . On the other hand, the
Law of Islam that was sent down to Muhammad in Allah’s (SWT) final message to
mankind has paid careful attention to this matter and has come with a complete legal
system. Taking into consideration the changing circumstances of society as well as the
consistency and permanence of human nature, it contains comprehensive principles and
general rules suitable for dealing with all the problems and circumstances that life may
bring in any time or place. Likewise it has set down punishments for certain crimes that
are not affected by changing conditions and circumstances. In this way Islamic Law
combines between stability, flexibility and firmness [3] .

Punishment in general
Punishment is defined as the act of punishing or the process of being punished [4] .
Theories of punishment can be divided into two general philosophies, the utilitarian
theory and the retributive theory. The utilitarian theory of punishment aims at punishing
offenders to discourage or deter future wrongdoing. The purpose of punishment is to
act as an example to the rest of society and put others on notice that criminal behaviour
will not be tolerated and will be punished. The retributive theory on the other hand
seeks to punish offenders because they deserve to be punished.

Punishments under Islamic Law

As with all penal systems, the Islamic law system prescribes punishments when someone
is found guilty of a wrongdoing. The philosophy of punishments in Islam indicates that
Islam provides punishment only as a last resort and the purpose behind it is reform
brought about through a blending of human values and justice tempered with mercy.
Punishments in Islam reflects its values where it puts the interest of the society before
the interest of an individual [5] . The punishment can be severe depending on the crime
but have to abide with strict rules and have prominent features [6] . Some of the
features of punishment are as follows [7] :-

Punishments are meant to be a last resort;

Punishments are made to be examples to the public;

Punishment are to reform an offender;

Punishments are a form of retribution for the victim.

The punishment system in Islam is aimed towards the three dimension of any crime
being the criminal, society and the victim. To criminals punishment is kaffara
(purification) and reforming for the re-acceptance into society. To society on the other
hand, punishment is a preventive method to save society from crimes and finally to
victims, punishment is a means of retribution. Punishments in Islamic Law were set down
to protect and secure the ultimate five elements of people’s interests: al-dharuriyat
(necessities). These are deen (belief), an-Nafis (life), al-‘aqil (intellect), al-mal (wealth) and
an-nasil (family and lineage).

The types of punishment

There are four categories of punishment that criminals may be subjected to, namely,
Hadd (literally meaning boundaries), Qisas (retribution) and Diyat (blood money), Ta’zir
(chastisement) and Mukhalafat (which covers areas of the rights of the state).

Hadd

Hadd (plural hudud) literally means boundaries or prohibition [8] . It is considered to be

the most severe of crimes as they go against God’s will and punishments for these
crimes are fixed as they have been prescribed by Allah (SWT) in the Holy Quran [9] . The
seven offences prescribed are zina (illicit sexual relations), qazaf (false accusation of
zina), sariqah (theft), hirabah (highway robbery), shrub al-khamr (consumption of
alcohol), riddah (apostasy), and baghy (rebellion against the government). These
offences appear to have been selected to indicate that life, family institution, property,
honour and social order have to be protected. Evidence for these crimes have to be
provided by abiding to stringent rules thus, making conviction difficult [10] . If the crime
is proven, offenders for these crimes are punished in public as a measure of
deterrence [11] . However it is only carried out as a last resort after a thorough effort at
reforming the person has totally failed.

For example, riddah, where a Muslim renounces his or her faith, it is treated as treason.
A mandatory punishment has been set for this offense. Males face beheading, while
females face imprisonment until the time where they renounce their new belief and
revert to the teachings of Islam. However, every effort is made to allow the male
offender to revert to Islam including receiving visits of religious officials before the
punishment is inflicted. [12]

The punishments that have been set and have to be carried out if all criteria for evidence
have been satisfactorily met for the rest of the offences prescribed above are [13] :

Zina – A married individual would face death by stoning while an unmarried person
would face 100 lashes.
Qazaf – 80 lashes are mandatory for a free person while slaves face 40 lashes

Sariqah – A first time offender faces amputation of one hand at the wrist, a second time
offender faces amputation of the second hand while a third time offender face either
amputation at the ankle or imprisonment until the individual repents.

Hirabah – If death is caused, the offender faces death by beheading. If no death occurs,
the offender faces cross-limb amputation. If the offender is arrested before commission,
he is imprisoned until repentance.

Shrub al-khamr – 80 lashes are mandatory for a free person while 40 lashes are
mandatory for slaves or those in the Shafi’i school

Baghy – Death is imposed for those who fight and are captured. However, ta’zir
punishments are for those who are arrested or surrender.

Looking at the punishments set out above, it appears as very severe and harsh but the
main purpose of hudud punishments is to deter the commission of crime in the very
first place. Taking the example of sariqa (theft), Allah SWT proclaims,

“As to the thief, male or female cut off his or her hands, a punishment by way of
example, from God, for their crime: and God is Exalted in power” [14] .

Islam does not tolerate theft as it deprives a person of their hard earned money and
belongings. Looking at the above verse, it is clear that the intention to punish the
offender is to set an example for the rest of society that an act of stealing will not be
condoned or accepted by God.

What hudud seeks to bring is peace and order and disciplined behaviour as people
would seriously consider their actions to do an evil deed as they know the punishment
that awaits them is severe. This is the wisdom of hudud. But this is not to say that under
Islamic Law, at the slightest chance available, punishment will be imposed. On the
contrary, punishments would only be imposed as a last resort where all the conditions
and elements of the crime have been satisfied.

Qisas & Diyat

Another feature of Islamic Law is the right of retribution (Qisas). The concept of
retribution is explained in the Holy Quran as follows:
“The recompense for an injury is an injury equal thereto (in degree), but if a person
forgives and makes reconciliation, his reward is due from God, for (God) loveth not
those who do wrong.” [15]

In simple terms, Qisas follows the doctrine of an eye for an eye, where the punishment is
similar to the crime. As Qisas is usually reserved for crimes that involve homicide or
bodily harm, for a crime of homicide, the punishment would be death while a crime
involving bodily harm, the punishment would be to inflict an injury comparable to the
harm caused. A unique feature of the punishment of these crimes is that the victim is
able to request for punishment or to forgive the offender [16] . The victim may also
request for diyat (blood money), a form of compensation paid by the offender to the
victim, the amount of which has to be equal to the loss incurred and not more. In a
hadith narrated by Imam Nissai it mentions that every part of the body has blood
money, for example the blood money for the eyes is the equivalent of 50 camels,
etc [17] .

Ta’zir

Ta’zir punishments are discretionary punishments that do not fall under the jurisdiction
of hudud or qisas and cannot be used as an alternative to these punishments. Ta’zir can,
however, be used if a crime has been committed but has not met the standards of
hudud or if the offender has been pardoned by the victim. They are the most flexible
type of punishment because they take into account the needs of society and changing
social conditions. It is also flexible enough to realize the maximum general benefit to
society, effectively reform the criminal and reduce the harm that was caused. The
punishments may range from anywhere between a warning to death.

One famous example happened in the time of ‘Umar ibn al-Khattab (ra), where he
punished a scholar who gave false testimony. He ordered that the scholar should have
his head shaved, his face painted black, and he paraded semi-clothed in front of people
while sitting backwards on a donkey [18] . But the punishment can be just as severe as
the punishments under hudud. The power to punish is given to the judge or to the legal
authorities.

The purpose of ta’zir is to prevent an offender from repeating the offence or to incline a
person to fulfil his or her duty. A number of factors go into choosing the appropriate
punishment under ta’zir one of which is the situation of the offender where aspects such
as the social status of the offender as it is believed those from the commoners require
harsher punishment to reform than those in higher classes. It has to also be determined
if the offender has committed similar crimes in the past, making the punishment
individualized. [19]

2
2. Alcohol-drinking.
The first four Had crimes have a
specific punishment in the
Quran. The last three
crimes are mentioned but no
specific punishment is found
(Schmalleger,p.603).
Some more liberal Islamic
judges do not consider
apostasy from Islam or wine
drinking as Had crimes. The
more liberal Islamic nations
treat these crimes as
Tazir or a lesser crime.
Had crimes have fixed
punishments because they are
set by God and are found
in the Quran. Had crimes are
crimes against God's law and
Tazir crimes are
crimes against society. There
are some safeguards for Had
crimes that many in
the media fail to mention. Some
in the media only mention that
if you steal, your
hand is cut off. The Islamic
judge must look at a higher
level of proof and reasons
why the person committed
the crime. A judge can only
impose the Had
punishment when a person
confesses to the crime or
there are enough
witnesses to the crime. The
usual number of witnesses is
two, but in the case of
adultery four witnesses are
required. The media often
leaves the public with the
impression that all are punished
with flimsy evidence or limited
proof. Islamic law
has a very high level of
proof for the most serious
crimes and punishments.
When there is doubt about
the guilt of a Had crime, the
judge must treat the
crime as a lesser Tazir crime. If
there is no confession to a crime
or not enough
witnesses to the crime, Islamic
law requires the Had crime to
be punished as a
Tazir crime.
Tazir Crimes
Modern Islamic Society has
changed greatly from the
time of the Prophet.
Contemporary Sharia Law is
now in written form and is
statutory in nature.
Islamic concepts of justice
argue that a person should
know what the crime is
and its possible punishment.
For example, Egypt has a
parliamentary process
which has a formal penal code
written and based upon the
principles of Islamic
Law, but Saudi Arabia allows
the judge to set the Tazir crimes
and punishments.
Modern Islamic Law recognizes
many differences between these
two nations. It
also allows for much greater
flexibility in how it punishes an
offender. The major
myth of many people is that
judges in Islamic nations have
fixed punishments for
all crimes. In reality the
judges have much greater
flexibility than judges under
common law.
Tazir crimes are less serious
than the Had crimes found in
the Quran. Some
common law writers use the
analogy of misdemeanors,
which is the lesser of the
two categories (felony and
misdemeanor) of common law
crimes. Tazir crimes
can and do have comparable
"minor felony equivalents."
These "minor felonies"
are not found in the Quran so
the Islamic judges are free to
punish the offender
in almost any fashion.
Mohammed Salam Madkoar,
who was the head of Islamic