QISAS

(RETALIATION)
 DEFINITION
• The punishment prescribed under Islamic law for murder and
personal injury is known as Qisas or Qawad (retaliation). This
means the infliction of injury on a culprit that is exactly equal
to the injury that was inflicted on the victim.
• The blood of a human being is sacred in Islam.
• ‘ Whoever kills a person for other than manslaughter and
corruption in the land, it shall be as if he had killed all
mankind, and whoever saves the life of one person, it shall be
as if he had saved the life of all mankind”.
AQ, 5:32
• ‘And slay not the life which Allah has forbidden save with
right’.
AQ, 17:33
 Zina

Qazaf

Theft

Hudud Hirabah

Bughah

Sakran
Types of Syariah crime

Apostacy

Intentional Murder

Quasi Intentional
Murder
Murder

Murder by
mistake/Negligenge
Qisas
Intentional Hurt

Quasi Intentional
Hurt
Hurt

Other offences than Hurt by

Ta’azir
Hudud and Qisas mistake/negligemce
 QISAS
Qisas (Crimes of retaliation and blood money :diyah/t) :
• Murder:
• Intentional murder
• Quasi-intentional murder (Culpable homicide)
• Murder as a result of mistake (Negligence)

• Hurts:
• Intentional hurt
• Quasi intentional hurt
• Hurt by mistake

• Punishment : Qisas and Diyah (blood money)

1- Intentional murder
Elements of crime
i. The victim must be a living human being at the
time of death
- Thus, if a person with an intention of causing
death, attacks with a deadly weapon on a dead
person – not liable
- Cause death to a child in a womb – x liable
- The victim being a human being must be a
protected person
- Muslims and non Muslims permanently residing
in Islamic state are protected persons and their
blood and property are inviolable – the murderer
will be liable for qisas
ii. The victim must have died as a result of the action of the
accused
- The murder must be the result of a fatal act of the accused
- If the act of the accused is not of the nature which in the
ordinary course is likely to cause death, he will not be liable to
intentional murder
- The act must have been done by the accused and it could have
not been suspected to have been done by someone else.
- The victim must have died of the act of offender without any
gap of considerable recovery or a fatal attack by another
person.
- The use of deadly weapon, heavy stone, hammer,
strangulation or administering poison, fire, throwing into deep
water - acts likely to cause death
- In order to determine whether an act by which death is
caused is likely to cause death or not, the means by which
death is caused, environments, weather, custom, usage,
opinion of expert and physical condition of the accused and
the cictim shall be considered.
- Maliki – if a person causes death of another person with the
intention to cause him death – it will be intentional murder
disregard of the weapons and methods used.
- Shafie and Hanbali- intentional murder – if tha accused has
used weapon or method which in general is likely to cause
death. Methods or weapon which in general is not likely cause
death – x liable
- Hanafi – to use a weapon or a thing which can be used like a
weapon which cuts off limbs like gun, razor, knife.
- If two or more persons jointly cause death of a person and the
act of each of them is individually sufficient to cause death, all of
them shall be liable
- They will be also liable if their acts cannot be identified or
distinguished as to whose act is sufficient to cause death and
whose act is not so sufficient.

iii. The offender has wilful intention of causing death of the

victim
• Criminal intention means willingness of a person to do a
prohibited act or refrain from a mandatory act knowing that
the act he is going to commit or omit is forbidden.
• ‘there is no blame on you if you make a mistake, what counts
is the intentions of your hearts’ AQ 33:5
• The Prophet said: the actions are rewarded according to
intentions .
• ‘If a person kills a believer intentionally, his recompense is
Hell, to abide therein for ever and the wrath and the curse of
God are upon him – AQ 4:93
The word intention here shows that the intention of the
offender to cause death of the victim by his act which actually
causes his death is necessary for his liability to intentional
murder
Absence of intention – x liable
Any beats or attacks without intention to cause murder – x liable
How to determine intention? By confession of the accused
• In the absence of confession, to consider the weapon used,
the circumstancial evidence produced and relevant
circumstances
• Jurists concur that if deadly weapon is used and cause death –
liable because deadly weapon denotes intention to cause
death
• Like wise, throwing a person from a high place into deep
water with no means of escape
• Previous enmity and motive of the accused might lead to the
existence of intention
• However, these sources are not certain and must be looked
into thoroughly by searching other corroboration to reach the
degree of certainty and the guilt shall be proved beyond
doubt.
Proof of Intentional murder
• Confession
• Testimony of two adults, sane,
male and reliable eye witnesses
• Circumstantial evidence (qarinah)
Punishment of Intentional
murder
• AQ(2:178), (2:179), (5:45), (17:33)
• Hadith:
“We shall kill the person who kills another
person”

“Whoever intentionally causes death to a

person shall be liable for qisas i.e. death
unless the victim’s heirs forgive him.”
2- Elements of crime
(Quasi-Intentional murder)
• The offender must have the intention of
causing bodily harm to the victim and has
no intention of causing him death
• The weapon or the act of the offender is
not likely to cause death in ordinary course
of nature
• The victim dies as a result of the act of the
offender
Punishment of Quasi-
Intentional murder
• Diyat and Ta’azir

• Hadith:
“ If a person kills another by throwing a stone, by a whip or
by a staff its diyat (blood money) will be one hundred
camels”

• -will be paid either lump sum or installment to the heirs of

the victim within a period of three years.
• Expiation
• Ta’azir
3- Elements of crime
(Murder by mistake)
• The offender must have no intention to
cause death or harm to the victim
• The offender must have committed some
fatal act
• The victim must have died as a result of
the act of the offender
Punishment of Murder by
mistake
• Diyat
• AQ(4:92)
“ He who has killed a believer by mistake must set free a
believing slave and pay diyat(compensation) to the deceased
family unless they remit it”

- To be paid by lump sum or installment within a period of

three years.

• Expiation
• Ta’azir
AIMS OF PUNISHMENT
• Social security
• Punishments are reformative
• Punishments are retributive