The Penal Shari‘ah

The Penal Shari‘ah

(Tr. by Shehzad Saleem)

The opportunity a man has to exercise his will is one of the greatest favours the Almighty has blessed him with. However, just as this freedom is a source of honour for him, its misuse is a source of dishonour for him because from every instance of misuse emanates evil and disorder. In the history of mankind, the first manifestation of this evil took place through the hands of Cain, the son of Adam. Consequently, out of this incident arose the need to protect man from the evil of man. It was evident from the norms of sense and reason vested by the Almighty in human nature that the only way to shield man from such evil was to reform his environment and educate and instruct people; however, once a crime was committed, the solution was to administer appropriate punishment. What then should be the nature and extent of punishment of a specific crime? Since there is no basis in human intellect to determine these parameters, the Almighty Himself revealed His directives about these issues. Through His Prophets, He gave mankind His shari'ah, in which, besides other decrees, He divinely ordained the punishments of all the grave crimes concerning life, wealth, honour and the collective system of a society.

These major crimes are:

1. Muharabah and spreading anarchy

2. Murder and Injury

3. Theft

4. Fornication

5. Qadhf (accusing someone of Fornication)

These are the crimes whose punishments have been divinely ordained by the shari'ah. The punishments of the lesser forms of the crimes mentioned above, and the punishments of other crimes have been left by the shari'ah to the discretion of those in authority with one exception: the death sentence, according to theQur'an, can only be given to a person who has killed someone or to someone who is guilty of spreading anarchy in the society. Similarly, it is evident that the directives of meting out these punishments are not addressed to the Muslims in their individual capacity; they relate to the whole society and as such they are addressed to the state authorities.

In the following paragraphs, an these punishments shall be explained.

1. Muharabah and Spreading Anarchy

If, in the life of the Prophet (sws), people adopted a rebellious attitude against any of his directives or against his government, then this attitude is termed as muharabah against God and His messenger. Similarly, spreading anarchy (fasad fi al-ard) is a term which refers to the situation when an individual or a group of individuals rebels against law of the land, the shari'ah of the Almighty and attacks the life, wealth, honour and freedom of expression of people. Consequently, when murder takes the form of terrorism, fornication becomes rape and theft assumes the shape of robbery or people take to prostitution, become notorious for their ill-ways and vulgarity, become a threat to honourable people because of their immoral and dissolute practices, or rise against the government in rebellion, or create a law and order situation for the government by causing destruction, by becoming a source of terror and intimidation for people and by indulging in hijacking and by committing similar grave offences, then this is called spreading anarchy.

The following four punishments are specifically prescribed for such:

i. They should be killed in an exemplary manner.

ii. They should be crucified in an exemplary manner.

iii. Their limbs should be amputated from opposite sides.

iv. They should be exiled.

Some stipulations about these punishments which constitute certain bounds and limits for them have been mentioned in the shari'ah as follows:

Firstly, the Qur'an has given an Islamic government the flexible authority to administer any of these punishments keeping in view the nature and extent of the crime, the circumstances in which it has been committed and the consequences which it produces or can produce in a society. The relatively lighter punishment of exile is placed with the two very severe punishments of killing or crucifying people in exemplary way so that if circumstances are such that the criminal deserves any leniency, he should be given it.

Secondly, if a gang of criminals has committed the crime, the punishment shall not be given to only some of the criminals but to the gang as a whole. Consequently, if a gang of criminals by spreading anarchy is guilty of such crimes as murder, hijacking, fornication, sabotage and intimidating people and similar crimes, there is no need to investigate exactly who among the gang actually committed the crime. Every member of the gang shall be held responsible for it and dealt with accordingly.

Thirdly, while inflicting punishment upon such criminals no feelings of sympathy should arise. The Almighty who created them has ordained complete disgrace and humiliation for them, if they commit such crimes. This is the very purpose of these punishments and should always be taken in consideration.

Fourthly, if such criminals come forward and give themselves up to the law before the government lays hands on them, then they shall be dealt with as common criminals. They will not be regarded as criminals of muharabah or spreading anarchy.

2. Murder and Injury

Taking qisas[1] for murder and injuries is an obligation imposed by the Almighty on an Islamic State. It guarantees survival to a society and for Muslims it is, in fact, a Divine Law which can only be breached by those who wrong their souls. Consequently, it is the responsibility of the government that if someone is killed within its area of jurisdiction it should search for the murderers, arrest them and take qisas from them stipulated by law.

Complete equality should be observed in taking qisas. Hence, if the murderer is a slave, only that particular slave should be executed and if the murderer is a free man, only that particular free man should be executed. A person's social status should never create an exception to this rule of equality nor should it be given any emphasis in this regard.

If the heirs of the slain or wounded person do not demand life for life, limb for limb wound for wound and want to show lenience to the criminal then a judge can give him a lesser punishment keeping in view the nature and extent of the crime and the circumstances in which it was committed. This is a favour and rebate by the Almighty to the criminal. Consequently, if the heirs of the slain or wounded show this compassion, then this shall become an atonement (kaffarah) for their sins before the Almighty.

In this case, the heirs of the slain or wounded person will be given diyat. The Almighty has said that it should be given according to the custom of the society and with kindnessand goodwill.

If someone is unintentionally murdered and the murdered person is a Muslim citizen of a Muslim State or if he is not a Muslim but belongs to a nation with which a treaty has been concluded, it is necessary for the murderer who has not been forgiven to pay diyat according to the custom of the society and as an atonement for his sin repent before the Almighty and free a Muslim slave as well. However, if the murdered person is a Muslim belonging to an enemy country, the murderer is not required to pay diyat; in this case, it is enough that he only free a Muslim slave to wash his sin. In both these cases, if the criminal does not have a slave, he should consecutively fast for two months.

3. Fornication

The man or woman who has committed fornication, both shall receive a hundred stripes if their crime is proven in a court of law.

The criminal should be given this punishment publicly to humiliate him in front of the people, and to make him a lesson for those present. The Qur'an directs the government of the Muslims or their courts of justice to not show any lenience in this regard.

After this punishment has been carried out, no chaste man or woman should marry men and women who commit fornication. The Almighty has forbidden such marriages.

This prescribed punishment is the utmost punishment, which should be given only when the crime has been committed in its ultimate form and the criminal does not deserve any lenience as far as the circumstances of the crime are concerned. Consequently, criminals who cannot bear the punishment, have been compelled by circumstances, are without the necessary protection required to abstain from committing a crime are all exempt from this punishment.


There can be two forms of qadhf:

Firstly, a person accuses a chaste and righteous woman or man of fornication.

Secondly, such an accusation takes place between a husband and wife.

In the first case, the law of Islam is that the accuser shall have to produce four witnesses. If the accuser fails to produce them, he shall be regarded as guilty of qadhf. The punishment for such a criminal is that he shall be administered eighty stripes and his testimony shall never be accepted in future in any matter. The Qur'an says that such criminals shall be regarded as the defiant in the eyes of God except if they repent from their crime and reform themselves.

In the second case, if no evidence is available, there are no witnesses, the matter shall be decided by pledging oaths. The husband shall swear four times by Allah that he is truthful in his accusation and the fifth time he shall swear that the curse of Allah be on him if he is lying. In reply, if the wife does not defend herself in anyway, the prescribed punishment of fornication will be administered to her. However, if she refutes the allegations, she shall only be acquitted from the punishment if she swears four times by Allah that the person is lying and the fifth time she says that the wrath of Allah be on her if he is telling the truth.

The same procedure shall be adopted if the wife accuses the husband.

5. Theft

The punishment of amputating the hands is prescribed for a thief. Whether the thief is male or female, if the crime is proven in a court of law, then his or her hand shall be cut from the wrist. Like the punishment of fornication, this punishment is also the utmost punishment and should only be administered when the criminal does not deserve any lenience as far as the nature and circumstances of his crime are concerned.

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