Islamic Criminal Law Notes PDF

lOMoARcPSD|21346422 Islamic Criminal LAW Islamic Criminal Law (International Islamic University Malaysia) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 ISLAMIC CRIMINAL LAW 50 QUESTIONS OPEN BOOK HALF MCQ HALF TRUE OR FALSE WEEK 1: THE CONCEPT OF CRIME AND PUNISHMENT IN ISLAMIC CRIMINAL LAW THE CONCEPT OF CRIME IN ISLAMIC CRIMINAL LAW DEFINITION Definition of Crime Jarimah : to do what has been prohibited by Shari’ah or not to do what has been ordered by shari’ah to be done for which punishment of hadd or ta’zir has been prescribed Jinayah : a misdeed prohibited by Shari’ah whether it is committed against life, property or anything else Terms related to crime 1. Masiyah (disobedience) : commission of prohibited act and the omission of an obligatory act. All crimes are ma’siyah but not all ma’siyah are crimes. 2. Al –Zanb(sin) : reward/punishment for commission of ma’siyah. All Ma’siyah are sin Classification of Crime Hadd Qisas Ta’zir Crime punishable with a fixed punishment imposed as the right Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 of the public or known as the right of God. Crime punishable with fixed Crime punishable with a Crime punishable with punishment fixed punishment discretionary punishment Right of public/right of God Right of individual Right of public Mentioned clearly in Al-Quran and Mentioned clearly in Al Not mentioned clearly in Hadith Quran and Hadith Al-Quran and Hadith 7 types of crime : Murder & Hurt 3 types : Zina,qazaf,sariqah,hirabah Ma’siyah(disobedience), (robbery) ,shrub al khamr( drinking maslahah(public interest), liquor) - not mentioned in the mukhalafat (delinquencies) quran , riddah, baghy( rebellion; mentioned in quran but the punishment irregular and extraordinary to fight them ) Hudud (depends on crime) Qisas/diyat Ta’zir : corporal (death punishment eg repeat many times, sodomy(AH), mastermind, rape), withdraw someone freedom, financial, verbally and other Fixed (mentioned in quran and Can be substitute to Not fixed. Depends on the hadith) and cannot be reduced Diyat, the family has right discretion of the judge. Can be to pardon the offender as low as pay compensation or death sentence Prescribed punishment must be Tazir actually covers the most in imposed islamic criminal law Hadd is the maximum punishment Eg: Accomplice in the cause of any such crimes Concept of Punishment Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Al-uqubah : infliction of determined form of penalty for violation of a legal order in order to protect the interest of the public. - Punishment is last resort - Must first measure by block or control. How? internal controls like belief in Allah and hereafter or external controls like focus in prayer, perform fasting, payment of zakat Condition for punishment - Legal which is based on Islamic law (punishment permissible in islam) - Strictly individualized - Common (must be equal and similar to everyone except in certain cases) Lecture - Definition of Crime / offence - Arabic word jarimah or jinayah - Ma’siyah : disobedience - Al-zanb: sin - Penal Code s.40 - Penal Code s. 43 : illegal, unlawful That person has committed crime or offence ; something that is prohibited in shariah (al-quran and sunnah ) - A wrongful act that is prohibited. - We do something which is prohibited, we omit something that we have been commanded or ordered to do. Example: pray. Jarimah : Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - From the root word jaramah ; jarimatan and if a person commits jarimah ; known as al-mujrim. - Commit al- mujrim - Literal: to cut off - Technical: to do what has been prohibited by shariah or not to do what has been ordered by shariah to be done and for which punishment of hadd or ta’zir has been prescribed. - To commit which is haram or omit something which is wajib and there must be the punishment of hadd and ta’zir prescribed for the commission and omission. - It means that It is about the punishment that is in the hereafter but it is the punishment to be awarded in this world (worldly punishment); to commit something that is haram or to omit something that is wajib - There must be worldly punishment prescribed for the commission or omission - If there is no punishment prescribed, that is no jarimah; punishment is worldly punishment. Hereafter: al jahanam (hereafter punishment); hadd (qisas) and tazir is the worldly punishment - Qisas included under hadd - To do something which is haram ; Jinayah - A person who commits jinayah is known as al Jani - Literal: any misdeed committed by a person. But it is not necessarily a clear punishment. - Technical: a misdeed prohibited by Shari’ah whether it is committed against life, property, or anything else. - Difference between Jarimah and Jinayah: Jinayah is not mentioned clearly in the word punishment as the jarimah. - The word punishment is not clearly mentioned Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - It is actually indirectly punishable - Wrongful act against life, property, or anything else. Essence is just the same. - However, whenever a wrongful act is committed against the life of another person or property, it is understood that it is also punishable whenever the wrongful act is against the life and property of another person. - In the case of theft and property - Even though the word is not mentioned but the essence is just the same ; Jinayah ( the word punishment is not mentioned directly) - However, it is understood that whenever the wrongful act is committed against the life and property of another person, it is also punishable. - Even though there are two terms (jarimah and jinayah) but the essence and the meaning is just the same but in terms of usage, the word jinayah is normally used as a most serious act or offense. Eg: Act of murder or injury - Whenever we refer to the Shafie jurist, book or fiqh; whenever it stated the word jinayah, it referring to the crimes of murder or injury; whenever the book mentioned al-jinayah, it is actually referring to the crimes of murder and the crimes of injury. (nafs; against life and body of the person) ; jinayah is specifically used for the crime of murder and injuries but in terms of the definition, it is quite similar. - The term al jinayah is for the crimes of murder or injuries. - Crimes and offense; normally the word offense is for less serious offense or punishment; Eg: child who commits an offense, we cannot use the word crime because criminal or crime for a most serious act; the offender is a less serious crime. Child offender not child criminal - In bahasa: jenayah dan kesalahan jenayah is more serious ; pesalah is less serious or severe. - Criminals are more serious compared to the offender. Otherwise on campus, there are so many criminal pulak. - Jenayah (more serious) and kesalahan (general) - Whenever we mentioned penjenayah and pesalah (less severe than penjenayah); we don't use penjenayah kanak kanak. - Jinayah we use for a more serious offense in terms of usage it is just the same Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 Ma’siyah (disobedience) - Religious Disobedience - The commission of a prohibited act and the omission of an obligatory act. All crimes are ma’siyah but not all ma’siyah are crimes. - Ma’siyah is more general compared to jarimah. - Why? It is not related to the punishment. It can be a punishable and non-punishable act. - Whereas crimes are punishable. Crime is also ma’siyah. Murder is Masiyah but at the same time it is a a crime or jarimah( because it is punishable in this world) - But there are some ma’siyah that cannot be considered a crime because it is a non-punishable act. - It is non-punishable in the world but may be punished hereafter. - Some ma’siyah are non-punishable and some are punishable. Whenever the ma’siyah punishable in this world, it is considered as crime (jarimah) but if it is non-punishable in this world but may be punishable in the hereafter , then it remain as ma’siyah. - Eg: it can be punishment in this world ( failure to pay zakah ; enactment it is considered as jarimah ; failure to pray ; in general ( tazir offence ; jarimah ; in order to establish the crime but it was also difficult ) - Few ma’siyah: backbiting (it is considered as ma’siyah but it is difficult to punish in the world), but when it becomes a false accusation (fitnah) then it can be the punishment. - Watching Porn ( crime jarimah ; if it is established) - Normally, ma’siyah which is non punishable in this world but may be liable for the punishment in the hereafter is something is about internal ma’siyah (jealousy, proud of oneself) - Couple may be liable for the tazir punishment (crime, ma’siyah but it is under jarimah at the same time) - There are some ma’siyah which cannot be liable for the punishment in this world but it is an offence that can be liable for the punishment in the hereafter. - Covering aurah is an offense or crime. - The couple is under jarimah. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Ma’siyah is more general compared to jarimah because it can be punishable in this world and also in the hereafter but it can also be a non-punishable act. - Proud of oneself. There are some ma’siyah that are not liable to punishment in this world but can be liable in the hereafter. Al-Zanb ( sin) - The reward or punishment for the commission of ma’siyah. All ma’siyah are sins. Accumulated or forgiven upon taubah. - If the person commits ma’siyah, he is sinful and the sin can be accumulated or forgiven upon taubah. It means that sins committed by a person can be accumulated and punish in the hereafter. Even if he commits very grave sins, it can be forgiven upon taubah ; the sins will be deleted. Even the jarimah or ma’siyah that is very serious one. - Eg: Murder, Zina and Qazaf, drinking wine. The sins can accumulate even very small sins and can be forgiven upon taubah. - Maybe he repents later and Allah will forgive him. - A murderer who killed about 99 people. He went to the hundreds and that person “I have committed murder is there any means to get rid of the punishment” - You can taubah any time if you repent inshaAllah Allah would forgive you. - Even the person has committed very serious offense or cime , very grave sins inshaAllah Allah will forgive. - Al Zanb related to ma’siyah; reward to be awarded in the hereafter if not to do. - It can be forgiven or it can be accumulated. - Jarimah: Punishment of hadd and taazir; if he is sinful if he taubah inshaAllah would forgive him but the punishment in the world still proceed. Penal Code s. 40 - offense- a thing made punishable by this code ( in terms of the definition, similar ; punishment ; different in terms of types of punishment, offence but the definition of the word offence ; if the acts committed by a person is punishable by the Penal Code then this is an offense ; whenever a person commits something which is punishable by the Penal Code then it is an offense. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 Similar as Islamic Criminal Law, the word jarimah there must be punishment prescribed for the commission or omission. Example: in the Penal Code Section 300, 375 ( punishable by the Penal code and considered as an offense) Penal Code s. 43 - illegal, unlawful. ( a person is bound to do something or assigned or in charge of something to do if he does not do it. It is considered as illegal and unlawful.) Classifications of crime Example: by the violation of rights (crimes against the rights of individual and crimes against the rights of public) Based on the intention ( intentional crime and unintentional crime ) Based on the nature of the crime is committed; habitual crimes and political crimes. Based on the positive crimes (commission) and negative crimes (omission) (Abdul Qadir Audah) According to the quantum punishment or based on punishment : (IMPORTANT) 1. Hudud (punishment; crime is considered as hudud crime because the punishment is hudud ; crime that is punishable by hudud) 2. Qisas and Diyat (crime is considered as qisas and diyat crime because the nature of the punishment is diyat and qisas crime; the types of punishment is qisas) 3. Ta’zir (crimes of ta’zir because the crimes is punishable by ta’zir) 4. Kaffarah ( is a sort of act which are punishable by kaffarah; kaffarah is a punishment for certain acts ; imposed the kaffarah) HUDUD Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 1. Hudud ; the punishment is hudud (crime of hudud/ hudud offences). The punishment is hudud. Crime which is punishable by hudud - More against property, lineage, honour, mind or against religion. - Examples: Theft, stoning, whipping - Major and Serious Crimes - Based on punishment - Major crimes - Fixed and unchangeable ( because the rights of Allah and invidual ) punishment - Once the crime is established or proved, it cannot be reduce, increase and be pardoned by another person because it is against the rights of public - 7 offenses under the Hudud (according to the majority) - Punishment mentioned in the Qur’an - Saudi Arabia and Pakistan, Kelantan - Very strict requirements to be followed because it is a maximum punishment - Normal cases: the punishment would be reduced to ta’zir QISAS AND DIYAT 2. Qisas and Diyat - crime which is punishable by qisas or diyat - Against life or body of a person - Blood money; translation of diyat - Blood money is - The punishment needs to be similar to inflict or imposed similar harm or punishment on the offender as he has done to the victim - It is also mentioned clearly in Quran - It can be pardoned by the victim. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 TA’ZIR - It is prescribed by the legislator or by the judge (not prescribed by the quran and hadith) - It is left to the discretion of the legislator (unlimited) - Normally when we mentioned the word islamic criminal law, a person would remember the word hudud. However, in reality, when we mentioned the word islamic criminal law; it's about ta’zir as it actually covers the most or majority part of islamic criminal law; hudud, qisas and diyat also limited ; very limited offense and punishment compared to ta’zir. KAFFARAH ( a sort of act which punishable by the kaffarah for certain act ) - A person must observe kaffarah - Karma - He pass A and promise to slaughter the goat - He must fast for 3 days - Zihar: describe one's wife similar to one's mother in terms of sexual organ. - as if he is not longer attracted to the wife ; what is kaffarah ( free a slave, fast two months consecutively, he must feed 60 fakir miskin) - Not similar to hudud. - The punishment is in the form of ibadat - Is fixed and limited and there are some kaffarah punishments in the form of fasting, breach of nazar or oath. Spoiling ihram - Murder by mistake (kaffarah ; fasting 60 days consecutively and feed the poor (60 ), free a slave is a kind of ibadat) - Kaffarah is a personal commitment in which the person is aware they committed an offence or sin; their own conscience but the court cannot monitor and observe. - We can advise and encourage but the person would do it. - Based on the quantum of the punishment but it is a bit different. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 HUDUD - Hadd (plural: hudud), is a crime punishable with a fixed punishment (because it is mentioned clearly in quran in terms of crime and punishment) imposed as the right of public (haqq jamaah), or known as the rights of Allah (haqqullah). - It is mentioned clearly in the text of the Quran and Hadith. The crimes of hudud in ICL are zina (illegal sexual intercourse), qazaf (false accusation of zina), sariqah (theft), hirabah (general than robbery), shurb al -khamr (drinking intoxicants or drinking wine), riddah (apostasy), baghy (rebellion). - Out of these 7, 4 of them are unanimously agreed by the jurists. Zina, qazaf, sariqah and hirabah are hudud offences because the crimes and punishments are mentioned clearly in the Quran but shurb, riddah and baghy are not mentioned in quran. It is mentioned in the hadith and the quran (shurb and riddah). Some of the jurists consider them other crimes. - But for al-baghy; the punishment is mentioned but the punishment is a bit irregular and extraordinary. The punishment is not killing but to fight against them. It must be committed by many and the punishment is to fight; not killing or death sentence until they surrender. Some of the jurists do not consider al-baghy as a crime. - The implication of rights of public and rights of god ‘ - This punishment is not easy because it is the maximum punishment ; the ceiling is high ; in certain cases, it will be reduced to ta’zir punishment because it is not easy to reach hadd punishment. If there is doubt or syubhah, even the slightest doubt. - When a crime of hadd is established, the prescribed punishment must be imposed. It cannot be reduced nor pardoned. (unchangeable punishment; the punishment must be imposed) hadd is the ceiling ( 100 lashes for zina ; is not that easy because strict procedure to be followed; in many cases, hudud will be reduced to ta’zir punishment) - Maximum punishment for theft; 3 years of ratan - Illegal sexual intercourse; maximum 3 years of impirosnment nomrllay not reach the maximum maybe 2 or 3 strokes of ratan; similarly in the case of hudud, theft ( amputation of hand ; it is not easy to reach the maximum punishment, it will be reduced to ta’zir) Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Rights of public: when a crime is established (means proved beyond reasonable or any doubt; already convicted), Hadd is the maximum punishment. - Hadd is singular and hudud is plural - Haqqullah means haqqul jamaah ; crimes that affect the public and not individuals. (rights of public ) - Fixed punishment ; it is mentioned clearly in the text of the quran and hadith. QISAS AND DIYAT - Qisas & diyah is a crime punishable with a fixed punishment (clearly mentioned in the Quran and hadith; means already stated) imposed as the rights of individuals (haqq afrad/ haqq nass). - Meaning - Qisas in the case of injury no ; to impose or to inflict a similar punishment on the offender as he has caused to the victim. Exact ; similar organs, similar severity, similar organs - Qisas In the case of murder: is the death sentence - Diyat: is a fixed amount of property that is imposed in the case of murder or injury - Normally in the case of injury: either organ is single then the diyat is full (100 camels) - Organ is single and the amount of diyat is 100 camels - One hand is the diyat is half (50 camels ) - It is fixed but the victim and the offender can negotiate; they can reduce it - Qisas of murder; death sentence but if the vcitm demands diyat then theres no death sentence or they can also forgive. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Even if the victim’s family wants to forgive or demands diyat, it still does not deny the rights of the public or judge to impose the punishment of ta’zir. - In the case of murder, the victim forgive of course the offender will be release but the crime is very severe; it does not deny the rights of the judge and public to impose the prunishment of ta’zir. Even if the family wants to give, the judge can impose the punishment of imprisonment, whipping; it depends on the rights of the public - What happen if the victim is non muslim: there are views of the jursit according to th majority; there is no qisas but the payment of diyat and ta’zir ; if the muslim kills the non-muslim , based on the hadith , the family can demand up to diyat but it does not limit the punishment of ta’zir ; still the judge can impose the punishment - Abu hanifah: it is no different ; the punishment is similar. - According to the islamic law, no law is implemented in malaysia. - There are only a few. The pardon of the family: the family there are views of the jurist, normally family means al waratha the one that is entitled to inherit the property. (Laws of succession ; hasabah father mother daughter son ; brother cannot get , grandson cannot get because already complete with daughter and son) - Qisas & diyat crimes and their punishments are mentioned clearly in the text of the Quran and Hadith. - The value of diyat is already fixed. - The crimes include homicide and causing bodily harm to others. - Since this type of crime involves the right of an individual, the victim has the right to choose, either to demand the infliction of punishment on the offender or to pardon him. - It depends on the decision of the victim or relatives; whether diyat, qisas or to forgive even though the crime is already established, the accused person is already convicted. - It depends on the family of the victim or the victim. - Normally crimes involve murder or injury to body of a person Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Hudud: it seems the rights of public but qazaf, sariqah, hirabah is under victim ( the rights of public is more dominant compared to the rights of individual ; qazaf crimes against the reputation of the person ; sariqah and hirabah ; crimes against the property of the person) TA’ZIR - Ta’zir is a crime punishable with discretionary punishment. - Ta’zir crime - Is not fixed and not mentioned in the text of quran and hadith of the prophet - Command is mentioned in quran and hadith ( the order or the demand for the omission ), that's actually the prohibition but the punishment is silent as compared to hudud and qisas the punishment is mentioned the law of retaliation is prescribed but salah, drinking khamr, eating dead animals but it is not mentioned anywhere in quran and hadith concerning the punishment.) - i.e. it is left to the discretion of the judge to determine the suitable punishment to be imposed on the offender. ( judge; doesn't mean the proper judge, it includes the legislator, legislative body, authority concerned ) - It consists of all kinds of transgression where no specific and fixed punishment is prescribed. - Ta’zir is unlimited; as long as not under hudud and qisas. (hudud is 7 according to the majority and qisas is 5). Ta’zir Ma’siyah (disobedience) - The commission of the prohibited act and the omission of the compulsory act. - It is mentioned in the text of the quran and hadith of the prophet. - Murder is also ma’siyah and causing injury is also ma’siyah - But ma’siyah can also punishable with qisas and ta’zir - If the person omits the command of Allah and Prophet SAW. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - In the case of qisas and hudud, the judge can impose the punishment of ta’zir - The case of qisas, the victims forgive and demand diyat, can be punishable by ta’zir - Considered as ta’zir crime maslahah (public interest) - Lagi la unlimited - The act which is initially legal but we can impose the punishment if the public interest necessitates it - Wearing helmet and fasten seatbelt , speed limit, open burning, there are so many ta’zir for maslahah, smoking at the restaurant (mukhalafat), bringing in rice cooker in the campus, not register electrical items, ( no problem with the electricity ) - About ta’zir for maslahah, during the time of Umar, there was a man known as Nasir but in Arabic Nasir Ibnu al Hujjah (very handsome that many ladies in Madinah fell in love for him) maybe it cause chaos in Madinah so what Umar did during the reign of Umar, Umar shave his head becomes botak but unfortunately Nasir becomes more handsome finally Umar to ensure public peace and harmony in Madinah, Umar transferred Nasir to Qufah or Basrah maybe women in Basrah (Nasir was not their taste ; they prefer curly hair) Nasir did not commit something haram and not considered Ma’siyah. - Shave is a type of ta’zir - It's about maslahah or public interest - Fail to display the matric card ( can be considered as ta’zir) - Haram is not based on syariah but based on maslahah. mukhalafat (delinquencies) - Minor offence - The meaning: the commission of makruh act and mandub act - The commission of makruh ( disapproved of act; the commission of abominable act ; it is not haram but it is disapproved ) makruh is not haram but it is disliked but the lawgiver. Disapprove of act or not recommended act Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Smoking ; to some who consider smoking is makruh, we can impose ta’zir for mukhalafat - Bring durian to hotel (something smells good but sometimes not good; we can impose the punishment for mukhalafat; eating petai) - Never attended the congregational prayer and never implement ; if i were ordered by Allah, I would burn down his house but the Prophet did not burn the house ; a person who never attended congregational prayer (strongly recommended act) - During the time of Umar; he wanted to slaughter a goat , he sharpen the knife in front of the goat to be slaughtered whenever Umar saw the man, he beat him not because of ma’siyah but the man did something that is considered makruh - Performing congregational prayer ( eating petai) - Tazir crime are not limited Mandub - The commission of the mandub act - Can impose the punishment - Three types of ta’zir crime - Ta’zir covers majority part of the crime in punishment - Unlimited. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 THE CONCEPT OF PUNISHMENT IN ICL There are two words denote crimes which are al jarimah and al jinayah whereas under the concept of punishment it is known as al-uqubah and al-iqab (slightly different in terms of usage and meaning is quite similar) Al - Iqab = the punishment imposed in the hereafter but in terms of root word is the same (aqaba and aqibah ; akibat (consequence of the offence that we have committed then we liable for the punishment) Al - ‘uqubah = the infliction of a determined form of penalty - for the violation of a legal order – in order to protect the interest of the public. - The worldly punishment - Referring to the sayings of the prophet and the quran referring to the punishment to be awarded in the hereafter. - We Impose a kind of punishment or penalty why? because the person has committed something which is unlawful for the violation of legal order according to depends on the system - Why do we impose the punishment? Because we want to protect the interest of the public - In islamic criminal law , the punishment is imposed as a last resort - Last resort: meaning on the last choice, last measure that we have other measures taken before we impose the punishment. Punishment is the last one - In islam, we have so many measures and methods to control/ block the person from committing the offence - It doesn't mean whenever we mention the punishment as a last resort it doesn't mean that if we find a person or we are searching for a criminal, whenever we find one, we straight away punish him. Punishment is not our priority because we have something else prior to the infliction of punishment. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - We try block the commission of a crime by imposing other controls or checks so that the person to be deterred or prevented from committing the offence - Despite this control (internal and external control), yet the person still commits or turns to crime then he deserves the punishment. The punishment is not our priority - Even if we refer to the fiqh manual, book eg: man haji, fiqh sunnah wa adillatuhu, there are few volumes, maybe 10 volumes or 8 volumes. Normally volume 1 starts with taharah (purity) types of water, types of najis, how we perform wudu , that's normally starts with taharah and then goes to vol 2 ; ibadah solat , fasting, hajj, pilgrimage and so on, - Vol 3 munakahat ; marriage and divorce - Muamalat ; economy and so on. Types of sale, riba’ and so on - Maybe vol 6 is the fiqh jinayah ; about the criminal so from that, we have control or several measures before we impose the punishment. In islam there are several controls. Punishment in Islam as a last resort. Measures in blocking/ controlling the commission of crime: Many articles on this 1. Internal controls - Something within our religion or islam itself: How from inside we control the commission of the crime - Through faith ( iman), strong belief in the existence of Allah, belief in the hereafter that is actually one of the main controls or measures taken in islam to block a person from committing them , of course whenever a person he has very strong belief that Allah is always watching us him Allah is always watching us. Whatever we do, Allah is always watching. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 1. Belief in the existence of Allah. - If you have a strong belief whether a person would there to commit something which is unlawful, commits sin, we are fear in Allah we know that Allah is always watching us even Malaikah (angels) always jotting down that whatever we do even during our sleep, in the layers of darkness but malaikah always jotting down the deeds that we do and Allah is always watching. 2. Believe in the Hereafter - Yawm al akhirah - It concerns something which is sins, unlawful - If we believe in the hereafter, we understand that whenever we commit something which is unlawful, commits sin and we do not or yet to repent , even if we escape the punishment in this world, we do not escape the punishment in the hereafter. - Eg: kill someone by way of sorcery or sihir nobody knows but if he escapes the punishment of the world but he cannot escape in the hereafter. 3. Performance of ibadat - Performing salah, performing prayer, verily salah can prevent mungkar (wicked deed). Maybe he has perform salah but yet he he has the tendency to commit something which is unlawful, one of the religious talk said that keep on salah and inshaAllah one day, the person prevented from committing something is unlawful 4. Fast ( Sawm) - Perform Sawm and you become taqwa and fear Allah, - The role of fasting is to prevent a person from committing the offence - Fasting is a shield, a protection even the prophet recommends to those syabab ( young men ) who want to get married yet couldn't afford to do so, the prophet said fast. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Because fast can control one’s lust or nafs. - Several days of fasting finally could curb or control one's lust or nafs one's desire. - When we fast on the first day, normal but when it comes to after 20 days of fasting, tired and exhausted. 5. Paying zakah - to take some amount of property from the rich and given to the poor so the gap between the rich and poor will be closed. - Temptation to commit theft and temptation to take property wrongfully will be controlled. There is no way, no hole, no reason for a person to commit an unlawful act. 2. External controls - From the government: there are many ways to control the crime before imposing the punishment - Ensure all the citizens get the basic needs. Those who want to get married cannot ; marriage loan, grant so that the temptation to commit the crime will be controlled. Despite internal and external controls, the person turns to crime and this will enable the accused person to be punished. He deserved to be punished. Punishment is the last resort after we have given akah, prohibited gambing, drinking , intoxication then he deserved to be punish if he still commits the cimr That is the meaning punishment in islam as the last resort Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 Conditions of punishment Even we have to punish a person who has committed an offence or crime the punishment should fulfill the condition 1. It should be legal, i.e. based on the sources of Islamic law, or a legislation which is in conformity with the laws of Islam. - Based on the sources of islamic law or legislation. - Must always comply with the rules and principles as laid down by shariah - In prison, the uniform must always tally or comply with the rules of islam cover the aurah, the inmate giving chance to perform prayer, to perform fasting in the months of ramadhan, the place must be segregated with man and man , female and female. - Must always comply with the principles laid down by sharia 2. It should be strictly individualized. - Means only a person who commits the offence will be liable - The punishment only can be Impose on the offender cannot be extended to other individual - Whenever a son commits an offence, a father wants to sacrifice, just punish me and don't punish my son. Cannot - Pregnant mother liable for the punishment of whipping, death sentence, or flogging : the punishment must be postponed and cannot affect the inborn child - In some cases, there are other people collectively responsible. 3. It should be common, i.e. awarded to any offender irrespective of sex (gender), religion, race, status or position. All must be equal before justice, no discrimination. - In terms of punishment, regardless whether male or female, regardless chinese or indian , malay, english, richman or poor person, a ruler, a head of department, the same thing , old Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 and young must be equal before justice and no discrimination. This is the general condition of the punishment - In terms of the detail the way punishment is imposed will be different between male and female, muslim and non-muslim. - Based on the status of the position of the person. CLASSIFICATION OF PUNISHMENT - Before this we discuss the classification of crime , which is based on the quantum of the punishment and divided into 3. But this time , we discuss the classification of punishment ( al uqubah ) FIXED PUNISHMENT 1. Fixed – Hudud ( the rights of the public ; mandatory ) and Qisas (the rights of the victim ) - Mentioned clearly in the text of quran and hadith of the prophet - Hudud is fixed and qisas is also fixed but the difference is the qisas is based on the rights of the victim ( victims and his family has the right to forgive, to demand the punishment, to demand the payment of diyat); hudud ( it is mandatory ) - Discretionary - Ta’zir (because it's not mentioned clearly in the text of quran and hadith , maybe the prohibitions and commands were mentioned in quran and hadith however, there is silent about the punishment, it depends on the discretion of the ruler, judge, legislator to enact suitable punishment to be imposed in this case Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 UNFIXED PUNISHMENT. Retributive Justice v Restorative Justice RETRIBUTIVE JUSTICE - Ta’zir includes restorative justice. - Retributive justice is punitive justice concerns about the punishment or the offender, focus on the offender which what to do with the offender, what are the punishments to be imposed on the offender - Normally dulu, but now is to focus on restorative justice, retributive justice is now to focus on the punishment, whenever a person commits something then what is the punishment imposed on that person, that is actually the remedy which the remedy is a punishment. - In Malaysia, when the person commits an offence, it has nothing to do with the victim now. Whenever a person is arrested, the matter is between him and the state, the states will act on behalf of the victim but the victim is already set aside. Now the offender and the state. Whenever the offender is found guilty then he will be sentenced to punishment and nothing to do with the victim. RESTORATIVE JUSTICE - Want to repair damage done by the offender, to bring back something to its place. We want to repair the damage that had been done by the offender. The damage can be to the victim, society, community or to the country - How can we repair this? It does not focus on the punishment but focuses on the way to repair harm by the offender, get back to the original state before the crime was committed. - It is not focus on the punishment - Example: Restitution, CSO (COmmunity Service Order; the offender to be involved in the community service, pardon or forgive (no longer feel angry, no longer revenge between the offender and the victim, restitution (sort of compensation but compensation more to the states, restitution is compensation to the victim) - To repair whatever harms or damage done by the offender. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 TYPES OF TA’ZIR PUNISHMENT. The punishments are unlimited. It depends on the discretion of the legislator, the ruler or the judge. It ranges from the most lenient that is admonition to the severe punishment by the way of death sentence. We cannot say ta’zir is a less severe punishment because it reaches death sentence (habitual offender, a person commits something that is serious ; liable to death sentence by way of ta’zir) Al badaniyah; al uqubah withdrawal of one system - To limit the freedom - Verbal hanafiyyah. - Crucifixion (public disclosure) 2. Discretionary – Ta ‘zir Types of ta ‘zir punishment : 1. Corporal (Al badaniyah) - death, flogging, crucifixion (public disclosure; paku paku (death sentence) ) - not the punishment that is provided the crime of hirabah ; crucifixion is not death sentence - Why is the death sentence justified? Why can death sentences be imposed in the way of ta’zir? Hudud ; crimes of hudud ( out of this which is liable to punishment of death sentence by way of hadd: zina (muhsan; committed by a married person (liable to death sentence), hirabah ( one of the hirabah is liable to death sentence ), riddah (death sentence but it is not mandatory), qazhaf ( no death sentence as 80 flopping ), shurb al-khamr (no death sentence; the punishment is whipping), sariqah (no death sentence), baghy (sort of death sentence but not because the punishment is killing or fighting with them maybe int the course of fighting, we are the one killed), According to hudud, the crimes are limited and in terms of punishment also there are only one or two only liable for the punishment of the death sentence or punishable with death Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 and this is very difficult as there is a strict procedure to be followed in terms of the evidence, conditions. To reach the punishment of death sentence, it is very hard to impose the death sentence. - In the case of qisas, only in the case of murder with itnention csn be liable to death sentence but it depns on the vcitm whether he demand the punishment of qisas or not because it is actually the rights of the victim. - It is considered as the rights of individuals. - Very limited : death sentence It is justified to have a death sentence in the case of ta’zir because there are so many other serious offences which are not under hudud and qisas which are more serious. Can be liable in the punishment of death sentence yet it is not categorise as hudud or qisas We can impose the punishment of death sentence by way of ta’zir Can rape be the death sentence? Yes. because it is the discretion of the ruler, judge, legislator , drug trafficking (implemented in Malaysia), sodomy (the law already implemented in saudi arabia; homosexuality), espionage ( become a spy against the government), habitual offender ( a person who keep committing the offence despite been punish again and again and again ) Eg: a murderer who is pardoned by the victim's family. And then he commits again Second time forgiven by the victim's family but still can be punished with the death sentence by way of tazir that is considered serious. The judge can impose the death sentence not by way of qisas but by way of ta'zir. We can impose the punishment by way of ta'zir for offences which are considered serious. Rape ; views of the jusrist, contemporary scholars : Ta’zir because it is different from zina (consent of both parties) but rape there was a victim contemporary scholar can be liable under the punishment of ta’zir. It depends on the discretion of the legislator. Flogging is the main punishment in islamic law. The main ta’zir punishment in islamic law. Main punishment in malaysia: fine and imprisonment. Most popular type of punishment. In the case of ifning, if you couldn't afford to pay, you will be imprisoned. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 Why is flogging the main punishment? Because flogging does not affect cost, affects time, secondary victims, does not affect other people according to the islamic law. When the offender is liable for flogging, after the execution of flogging, he can return to his family, resume his work, proceed with whatever he has done before and does not affect cost as compared to imprisonment. Imprisonment incur cost and there is a secondary victim (imprisonment affects the family ; the offender is the sole breadwinner of the family and liable to punishment of imprisonment then the family will suffer). How we impose the punishment of whipping in Malaysia. ( the buttock) very strong in terms of the degree of whipping in malaysia. Whipping will hit the buttock. The ratan is used in a certain diameter. Soak overnight (make it hard) with full force, energy and severity. When it touches the buttock it will cause bleeding ( blood and skin ) the offender will carry the scar for entire of his life (disgraceful for the person to be liable for the punishment of whipping; whipping only 3 groups exempted ( liable to death sentence, a person who is more than 50 years old, female offender will not be liable to punishment of whipping ; quite severe and serious ; violent crimes. Islamic law is different ; it cannot cause bleeding, cannot cause harm and must be spread all over the body. The hand cannot raise his head and some jurist must put something underneath the arm to control the way he whips the offender. A sense of deterrence depending on the the degree of severity If we refer to hudud, these are the crimes of hudud. Hudud offences which one are liable to death by way of hadd? Zina committed by muhsan (married person ; death sentence), hirabah (death sentence), riddah is death sentence but not mandatory Baghy ; fighting them. From hudud, in terms of punishment the death sentence is only one or two. - There is not mention or silent about the punishment - Depends on the discretion of the ruler, judge to impose or enact suitable punishment in this case - Can be divided into several types; - There are so many Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - al uqubah withdrawal of one system - banishment ( expel one place to another place ( not practical; suspended from entering the campus because of cheating in exam ) , boycotting, imprisonment - To limit the freedom - Anything that relates to body and life ; a sort of ta’zir punishment 2. Al uqubah muqayyadah (to limit ) 3. Al uqubah Huriyah (freedom) 4. Al uqubah malaiyyah (financial) - Fining, seizure of property ; which is illegal can be seized or confiscated (confiscation) , modification ( it involves property, something which is the property is unlawful but modify it, it becomes lawful (modify something which does not follow the specification ; did not follow what is mentioned by law ; the things can be modify to make it inline ), demolition - Certain property which is illegal can be seized or confiscated - Several illegal item to be seize; rice cooker - The illegal items can be confiscated by the mahallah authority. - Modification; financial punishment because it involves property. Modify which property is unlawful and it becomes lawful. Modify something which does not follow the specification that is mentioned by the law. We do not follow so the property can be modify to inline with the law - Demolition: we demolish buildings, houses, vehicles. Renovate the house and it trespass the borders of another person so we can demolish that part. - It can also applicable to plants, a farmer plants durian illegal land then it can be demolish involve property Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 2. The withdrawal of one ’s freedom – banishment, boycotting, imprisonment. 3. Financial – fining, seizure of property, modification, demolition. - Fining: including our campus a student who fails to display th matric card can be compound ; park car or vehicles illegal parking can be fined ; there are so many offences that is compoundable or liable to punishment of fine - Seizure of property: certain property which is illegal can be cease ; electrical item, rice cooker whatever in the hostel ; illegal items can be confiscated by the mahallah authority - Modification: modify which is the property which is unlawful but we modify it it becomes unlawful; we modify something which does not follow the spect / what is mentioned by the law ; the things cannot be modified to make it in line with the law - Demolition : demolish building, vehicle or whenever a person renovates the house and it trespass borders another person we can demolish that part; it can also implement durian, illegal land then it can be demolished. Involve property - Verbal: : threat the person commits something we hold the punishment if you keep on doing this, we will punish you if you commit this again the harsher punishment will be imposed on you. University: given students who are absent more than 20 percent warning letter (10%) barring letter; verbal - Dismissal from office: related to the crime involving criminal breach of trust, dismiss from office, public disclosure relating to trust as well ( likes to borrow money but he never pay or in the context; broadcasting by disclose the person in a newspaper or website this person had committed this please do not trust him - Ta'zir punishment l punishment are unlimited many types of punishment of tazir; admonition to death sentence ; we cannot say that a tazir is less severe punishment Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 because it can reach the death sentence (habitual offender or maybe person commits something which is serious but not liable for punishment for hadd) 4. Al uqubah hanafsiyyah (verbal) - more to abstract or psychological types of punishment. - admonition, reprimand (more serious as compared to the admonition), threat (commit something we hold the punishment and we said that if you keep on doing this and we will punish you). 10% warning letter 5. Other – dismissal from office (related to crime involving criminal breach of trust and normally dismissed from office) , public disclosure (relating to trust as well sometimes ; likes to borrow money but he never pay or in the context of public disclosure it is by broadcasting or by disclose the person in newspaper on the websites ; this person committed this and don't trust him. THE OBJECTIVES OF PUNISHMENT - There is an objective that we want to achieve a target. We want to reform him, sometimes we want to retaliate against him because he committed the crime, punish not only give the lesson to the offender but to the community. There are many other objectives of punishment but focus 4. - Seems to be detrimental but it is intended to prevent harm based on the legal maxim - daf ‘u ( to repeal or to push or prevent) al -mafsadah (mudarah, mudarat) muqaddamun ( given priority) ‘ala jalb (to gain, to get ) al - maslahah (manfaat). - To prevent harm is given priority over gaining benefit. The Benefit here is not to punish the offender or not to inflict pain or not to remove his freedom considered as maslahah but we should focus more on jalb al-maslahah, we want to prevent harm from the society. The offences committed by another person harms another person, another society. Jalb maslhah was given priority over gaining benefits - Objectives of punishment in ICL : 1. Retribution (al -Jaza ’) Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 2. Prevention + Deterrence (al -Zajr) 3. Reformation + Rehabilitation (al -Islah wa al - tahdhib ) 4. Expiation (al -Kaffarah ) RETRIBUTION (AL-JAZA’) - To retaliate - Justification for punishment which looks to the past. - Punishment to the past: because in the past he had committed the offence and now we are going to punish him. We want to retaliate against him. - Crime rouses anger of the society against the offender & sympathy with the victim. - Punishment is a general retaliation of society to maintain peace & social order. - General retaliation of society: there is an incident of murder in Malaysia. What do you feel? We are angry and sympathize with the victim. - The punishment is a general retaliation of the society. - In the case of crime which violates the right of an individual - the punishment provides satisfaction for the victim & family. - In the case of that violates the rights of people ; whenever we impose the punishment on murder or causes injury that is provide satisfaction for the victim and the family. example : He punched our face and caused one of our teeth to lose. What do we want ; want his tooth to be taken whenever we impose the punishment, iit will provide satisfaction to the family. - Qisas punishment clearly represents the retributive theory as in al maidah 5:45, 2:194 - Very clear. The meaning is life for life, nose for nose, ear for ear, eyes for eyes, tooth for tooth (retributive theory in this case) - We have two types of justice; retributive justice (to retaliate; focus on the punishment to be imposed on the offender) and restorative justice - Focus on the punishment to be imposed on the offender. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 PREVENTION + DETERRENCE (AL-ZAJR) - Justification for punishment which looks to the future - Why future: we punish him now because we want him in future not to recommit or not to repeat what he has done or in future, we want the society or community not to follow his step. That is what meant by justification for punishment which looks to the future - we punish him now because we want our society or him not recommit the offence - Al -Zajr means: (1) to prevent the offender from the re -commission of further offences (specific deterrence) and (2) to deter other members of society from initiating the offences (general deterrence). - society - In ICL, deterrence is recognized as the predominant justification for the punishment. Retaliate is not considered as the main; we impose the punishment because the main is to prevent the crime and also want to educate the society and to prevent. - It is not pursued only by proclaiming the crime & its punishment but rather is based on the speed with which the accused is tried & punished and on the public manner of the execution of punishment. REFORMATION + REHABILITATION (AL -ISLAH WA AL-TAHDHIB) - Why we impose the punishment?: We want to reform him that is why impose the punishment want him to be a good muslim, we want to rehabilitate a good person. Normally crime is sin. - To rehabilitate the offender from committing the crime or sin. - It is obtained from the principle of tawbah. Why tawbah? Whenever we impose the punishment, we want him to repent. - This objective can be clearly seen in ta‘zir punishment, eg: admonition (firm advise him to reform, repent), reprimand, public disclosure, boycott, banishment and imprisonment.( main objective of the punishment is because we want him to become a better person and tawbah) Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Religious awareness is, indeed, the best way to confront the crime at its root when a person believes that everyone of his actions is recorded by Allah and cannot go unresponded in the hereafter. EXPIATION (AL-KAFFARAH) Expiate: make amends or reparation for (guilt or wrongdoing). - Unique feature of punishment is expiation. Al kaffarah in the types of crimes based on punishment that one is about the offence that is punishable in the form of ibadat. But the concept is to expiate one's sins. - In the case of one of the objectives of punishment is to delete his sin. - The purpose is to clear the person ’s account (sin) with Allah. - Hadith which means: “ Whoever commits a crime deserving of hadd and receives its punishment in this world, this will be its expiation ”. - This will be its expiation; the offender who has been punished not will be punished in the hereafter. If Allah wants to forgive then alhamdulillah. - We hope by imposing and inflicting the punishment, his sin will be cleared or expiated. - i.e. the offender who has been punished in this world will not be punished again in the hereafter for the same offence. - Wallahu A’lam GIST OF PART 1 WEEK 2: FUNDAMENTAL ELEMENTS OF CRIME CRIMINAL RESPONSIBILITY 1. The person has commits a prohibited act Absence of the first basis there will be no criminal responsibility and the issue of penalty does not arise. 2. The person commits an offence with his free consent Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 3. The person who commits an offence is adult and sane and can differentiate between the right and wrong. However, in the absence of the second and third bases, there is criminal responsibility but there is no punishment. FUNDAMENTAL ELEMENTS OF CRIME - Legal element – al-Rukn al-Shar‘i - is a legal element concerned with dalil (nass there is must be dalil that prohibits the act or crime and dalil that provides the punishment) - Substantial/Physical element – al-Rukn al-Maddi ( concerns with the act or actus reus concerns of doing the act that constitutes the crime ) - Mens rea (guilty mind) – al-Rukn al-Adabi / Ma’nawi ( offender himself ; he must be adult, sane , out of his free own free will ) - An act is a crime only when all these essential elements are present. Besides, every crime must contain its distinct ingredients making it possible to award the respective punishment prescribed. Fundamental elements ( Part 1 ) v. Specific elements (Part 2 ) Fundamental element Speciﬁc elements general can be found in all crimes varies according to crime Can be found in all crimes example in the case of theft it concerns about the property; property must be valuable property must totally belongs to others and must be protected Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 Specific elements for qazaf; accusation of another person, false accusation, victim must be muhsan) varies according to crime. It differs from one crime to another. Sariqah 4 elements, zina 2 elements LEGAL ELEMENT - An explicit provision for prohibiting an act constituting crime and declaring punishment. - There must be clear provision (nass or dalil in the text); there must be clear dalil that prohibits the act that must be clear dalil that states or declares the punishment. Maybe there is provision on the prohibition but it is not stated anywhere the punishment not in the enactment, hadith, even the rules and book and so on, then the person who commits the act cannot be liable to the punishment Must be clearly stated the dalil for prohibition and dalil for punishment. - Example: Sariqah 2:188 ; sariqah or theft is actually taking property of another person wrongfully. Sariqah or theft is taking the property of another person wrongfully. - “ Do not eat up your property among yourselves for vanities (wrongfully)”. 5:38 - “As for the thief, male or female cut off their hands” - This is about the punishment. Example in the case of sariqah. - Zina ; An Nisa ( do not approach or come near zina, it is shameful deed or wicked deed ) punishment Surah An Nur (2) ; as for those who commit zina female or male, flog or whip of them 100 lashes there must be a clear dalil. - It doesn't mean that the punishment must be in the same verses. It means in the quran and hadith of the prophet Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 PHYSICAL ELEMENT (ACTUS REUS) - Doing of an act, the commission or omission of which goes to make up a crime. - Example: Sariqah - There must be commission or omission that constitutes crime; the material parts the act of whether omission or commission. - For example: sariqah ; an act of taking away the property of others secretly without the victim’s knowledge and consent ; what if he takes away property openly (no) because it is not secret. - It is not sariqah. Must be done secretly. Or but using force or threatening to use force or violence, elements of violence take the property openly and with force ; that is actus reus of hirabah. Not sariqah - What if a person takes away another property secretly but with consent. The act is done with consent ; actus reus is to take away the property of another person secretly. It is not a crime at all if there is consent. Because the act is done with consent. - Qazaf: actus reus of qazaf is an act of accusing another person of committing zina or to refuse the legitimacy of the child. To accuse another person of zina or to refuse the legitimacy of the child. That is considered qazaf; what if a person accused another person of cheating or theft; not actus reus of qazaf. He accused of sodomy. - An act of taking away the property of another person secretly without his knowledge and consent. - MENS REA (GUILTY MIND) - It concerns the maturity, responsibility and accountability of the offender. - Maturity, responsibility and accountability of the offender. - The offender must be adult, sane and free will. - The issue of Criminal liability covers the majority of part 1. - Part 1 is mens rea. ; general exception, basis of criminal liability, issue of ignorance, mistake, ridha or consent, if the offender is insane or child or minor it will be covered under mens rea part 1. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 - Most important one. - Complicity - committed by many offenders. AL-RUKN AL-SHAR’I (DALIL FROM QURAN AND HADITH) LEGAL ELEMENT - About dalil from the quran or the hadith of the prophet. - An explicit provision for prohibiting an act constituting crime and declaring punishment. - Islamic legal maxim: - La jarimah wa la ‘uqubah illa bi al-nass (no crime nor punishment without nass/ provision) - Illa : except or unless or without - Illa bi al- nass: there must be nass. There is no crime. We cannot consider the act as a crime without dalil or we cannot impose the punishment if there is no clear dalil that is prescribed for the act. - Application of this rule / maxim in Hudud, Qisas & Diyat and Ta’zir. LA JARIMAH WA LA UQUBAH ILLA BI AL-NASS - HUDUD - All hudud offences are supported with dalil that prohibits the act and declares the punishment. Shurb al khamr and riddah cannot find the punishment in the quran. The dalil for punishment can be found in the hadith of the prophet ( the hadith clearly mentioned the punishment of shurb al khamr and riddah) - La Jarimah Wa La Uqubah Illa bi Al-Nass is applied in every hudud offence. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 1. Sariqah - 2:188 ‫ﺎس ِﺑ ۡﺎﻻِ ۡﺛ ِم َواَ ۡﻧـ ُﺗمۡ َﺗ ۡﻌ َﻠﻣ ُۡو َن‬ ِ ‫ َو َﻻ َﺗ ۡﺎ ُﻛﻠُ ۡ ٓوا اَ ۡﻣ َوا َﻟـ ُﻛمۡ َﺑ ۡﯾ َﻧ ُﻛمۡ ِﺑ ۡﺎﻟﺑَﺎطِ ِل َو ُﺗ ۡدﻟُ ۡوا ِﺑ َﮭﺂ ِا َﻟﻰ ۡاﻟﺣُـﮑ ِﱠﺎم ﻟِ َﺗ ۡﺎ ُﮐﻠُ ۡوا َﻓ ِر ۡﯾ ًﻘﺎ ﻣ ۡﱢن اَ ۡﻣ َو‬- ِ ‫ال اﻟ ﱠﻧ‬ And do not consume one another's wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful]. 5:38 ّ ٰ ‫ﷲؕ َو‬ ﴾5:38﴿ ‫ﷲُ َﻋ ِز ۡﯾ ٌز َﺣﻛ ِۡﯾ ٌم‬ ٰ ِ ّ ‫ﱠﺎر َﻗ ُﺔ َﻓ ۡﺎﻗ َطﻌ ُۡۤوا اَ ۡﯾ ِد َﯾ ُﮭ َﻣﺎ َﺟ َزآ ۢ ًء ِﺑ َﻣﺎ َﻛ َﺳ َﺑﺎ َﻧـ َﻛ ًﺎﻻ ﻣ َﱢن‬ ِ ‫ﱠﺎر ُق َواﻟﺳ‬ ِ ‫َواﻟﺳ‬ As for male and female thieves, cut off their hands for what they have done—a deterrent from Allah. And Allah is Almighty, All-Wise.1 2. Hirabah - 5:33 ٍ ‫ُﺻﻠﱠﺑ ُۤۡوا اَ ۡو ُﺗ َﻘ ﱠط َﻊ اَ ۡﯾد ِۡﯾ ِﮭمۡ َواَ ۡر ُﺟﻠُﮭُمۡ ﻣ ۡﱢن ﺧ َِﻼ‬ ٰ ٓ ‫ف اَ ۡو ﯾ ُۡﻧ َﻔ ۡوا ﻣ َِن‬ َ ‫ض َﻓ َﺳﺎ ًدا اَ ۡن ﱡﯾ َﻘ ﱠﺗﻠُ ۤۡوا اَ ۡو ﯾ‬ ِ ‫ﷲ َو َرﺳ ُۡو َﻟ ٗﮫ َو َﯾ ۡﺳ َﻌ ۡو َن ﻓِﻰ ۡاﻻَ ۡر‬ ِ ‫ِا ﱠﻧ َﻣﺎ َﺟ ٰزؤُ ا اﻟﱠذ ِۡﯾ َن ﯾ َُﺣ‬ َ ّ ‫ﺎرﺑ ُۡو َن‬ ‫ض‬ ِ ‫ۡاﻻَ ۡر‬ Indeed, the penalty for those who wage war against Allah and His Messenger and spread mischief in the land is death, crucifixion, cutting off their hands and feet on opposite sides, or exile from the land. This ˹penalty˺ is a disgrace for them in this world, and they will suffer a tremendous punishment in the Hereafter.1 - Crucifixion based on death sentence by way of beheading, or amputation of hand from opposite sides. - Exile from the land/ earth: is it a death sentence or punishment or imprisonment. Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 3. Zina - 17:32, 24:2 َ ‫اﻟز ٰ ٓﻧﻰ ِا ﱠﻧ ٗﮫ َﻛ‬ ‫ﺎن َﻓﺎ ِﺣ َﺷ ًﺔ ؕ َو َﺳﺂ َء َﺳ ِﺑ ۡﯾ ًﻼ‬ ‫َو َﻻ َﺗ ۡﻘ َرﺑُوا ﱢ‬ And do not come near to adultery; surely it has been an obscenity and odious as a way. 24:2 ٰ ۡ ‫ﷲ ا ِۡن ُﻛ ۡﻧ ُﺗمۡ ُﺗ ۡؤ ِﻣ ُﻧ ۡو َن ِﺑﺎ ٰ ّ ِ َو ۡاﻟ َﯾ ۡوم‬ ‫اﻻﺧ ۚ ِِر َو ۡﻟ َﯾ ۡﺷ َﮭ ۡد َﻋ َذا َﺑ ُﮭ َﻣﺎ‬ ٰ ِ ّ ‫ﺎﺟﻠِ ُد ۡوا ُﻛ ﱠل َوا ِﺣ ٍد ﻣ ۡﱢﻧ ُﮭ َﻣﺎ ﻣِﺎ َﺋ َﺔ َﺟ ۡﻠدَ ٍةوﱠ َﻻ َﺗ ۡﺎ ُﺧ ۡذ ُﻛمۡ ِﺑ ِﮭ َﻣﺎ َر ۡا َﻓ ٌﺔ ﻓ ِۡﻰ د ِۡﯾ ِن‬ ‫ﻟزا ِﻧ َﯾ ُﺔ َو ﱠ‬ ۡ ‫اﻟزاﻧ ِۡﻰ َﻓ‬ ‫اَ ﱠ‬ ِ ﴾24:2﴿ ‫َطﺂ ِﺋ َﻔ ٌﺔ ﻣ َﱢن ۡاﻟﻣ ُۡؤ ِﻣﻧ ِۡﯾ َن‬ The [unmarried] woman or [unmarried] man found guilty of sexual intercourse1 - lash each one of them with a hundred lashes,2 and do not be taken by pity for them in the religion [i.e., law] of Allah,3 if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment. 4. Qadhaf - 24: 23, 24: 4,5 24:23 ٰ ۡ ‫ت ﻟُ ِﻌ ُﻧ ۡوا ﻓِﻰ اﻟ ﱡد ۡﻧ َﯾﺎ َو‬ ‫اﻻﺧ َِر ِة َو َﻟﮭُمۡ َﻋ َذابٌ َﻋظِ ۡﯾ ۙ ٌم‬ ِ ‫ت ۡاﻟﻣ ُۡؤﻣ ِٰﻧ‬ ِ ‫ت ۡاﻟ ٰﻐﻔ ِٰﻠ‬ َ ‫اِنﱠ اﻟﱠذ ِۡﯾ َن َﯾ ۡرﻣ ُۡو َن ۡاﻟﻣ ُۡﺣ‬ ِ ‫ﺻ ٰﻧ‬ Indeed, those who [falsely] accuse chaste, unaware and believing women are cursed in this world and the Hereafter; and they will have a great punishment 24: 4 ﴾24:4﴿ ۙ ‫ِك ُھ ُم ۡاﻟ ٰﻔﺳِ ﻘُ ۡو َن‬ ٓ ٰ ُ ‫ﺎﺟﻠِ ُد ۡوھُمۡ َﺛ ٰﻣﻧ ِۡﯾن ﺟ ۡﻠدَ ًة وﱠ َﻻ َﺗ ۡﻘﺑﻠُ ۡوا َﻟﮭُمۡ َﺷﮭﺎدَ ًة اَﺑ ًدا ۚ وا‬ َ ‫وﻟـﺋ‬ َ َ َ َ َ َ ُ ‫ت ُﺛ ﱠم َﻟمۡ َﯾ ۡﺎ ُﺗ ۡوا ِﺑﺎ َ ۡر َﺑ َﻌ ِﺔ‬ ۡ ‫ﺷ َﮭدَ آ َء َﻓ‬ َ ‫َواﻟﱠذ ِۡﯾ َن َﯾ ۡرﻣ ُۡو َن ۡاﻟﻣ ُۡﺣ‬ ِ ‫ﺻ ٰﻧ‬ Those who accuse the chaste women (of fornication), but they do not produce four witnesses, flog them with eighty stripes and do not accept their any evidence any more. They are the sinners, Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 24: 5 ٰ ۡ َ‫ا ﱠِﻻ اﻟﱠذ ِۡﯾ َن َﺗﺎﺑ ُۡوا ﻣ ِۡۢن َﺑ ۡﻌ ِد ٰذﻟ َِك َوا‬ َ ّ ‫ﺻ َﻠﺣ ُۡو ۚا َﻓﺎِنﱠ‬ ‫ﷲ َﻏﻔُ ۡو ٌر رﱠ ﺣ ِۡﯾ ٌم‬ Except for those who repent thereafter and reform, for indeed, Allāh is Forgiving and Merciful. A worldly punishment is 24:4,5 24:23 a curse in this world and the hereafter. 5. Shurb al -khamr - 5:90, Hadith َ ‫ٰۤﯾﺎ َ ﱡﯾ َﮭﺎ اﻟﱠذ ِۡﯾ َن ٰا َﻣ ُﻧ ۡۤوا ِا ﱠﻧ َﻣﺎ ۡاﻟ َﺧ ۡﻣ ُر َو ۡاﻟ َﻣ ۡﯾﺳِ ُر َو ۡاﻻَ ۡﻧ‬ ۡ ‫ﺻﺎبُ َو ۡاﻻَ ۡز َﻻ ُم ِر ۡﺟسٌ ﻣ ۡﱢن َﻋ َﻣ ِل اﻟ ﱠﺷ ۡﯾ ٰط ِن َﻓ‬ ﴾5:90﴿ ‫ﺎﺟ َﺗ ِﻧﺑ ُۡوهُ َﻟ َﻌﻠﱠ ُﻛمۡ ُﺗ ۡﻔﻠِﺣ ُۡو َن‬ O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah ], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful. ‫ب ﻣ َُﺣ ﱠﻣ ٍد ﺻﻠﻰ‬ ِ ‫ ﻣِنْ أَﺻْ َﺣﺎ‬،‫ َو َﻧ َﻔ ٍر‬،‫ْن ُﻋ َﻣ َر‬ِ ‫ َﻋ ِن اﺑ‬،‫ْن أَ ِﺑﻲ ُﻧﻌْ ٍم‬ َ ‫ َﻋنْ ُﻣﻐ‬،ٌ‫ َﻗﺎ َل أَ ْﻧ َﺑﺄ َ َﻧﺎ َﺟ ِرﯾر‬،‫ﺎق ﺑْنُ إِﺑ َْراھِﯾ َم‬ ِ ‫ َﻋنْ َﻋ ْﺑ ِد اﻟرﱠ ﺣْ َﻣ ِن ﺑ‬،‫ِﯾر َة‬ ُ ‫أَ ْﺧ َﺑ َر َﻧﺎ إِﺳْ َﺣ‬ ْ‫ب َﻓﺎﺟْ ﻠِ ُدوهُ ُﺛ ﱠم إِن‬ َ ‫ب َﻓﺎﺟْ ﻠِ ُدوهُ ُﺛ ﱠم إِنْ َﺷ ِر‬ َ ‫ﻣْر َﻓﺎﺟْ ﻠِ ُدوهُ ُﺛ ﱠم إِنْ َﺷ ِر‬ َ ‫ب ْاﻟ َﺧ‬ َ ‫ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯾﮫ وﺳﻠم " َﻣنْ َﺷ ِر‬ ِ ‫ﷲ ﻋﻠﯾﮫ وﺳﻠم َﻗﺎﻟُوا َﻗﺎ َل َرﺳُو ُل ﱠ‬. " ُ‫ب َﻓﺎ ْﻗ ُﺗﻠُوه‬ َ ‫َﺷ ِر‬ It was narrated that Ibn 'Umar and a number of the Companions of Muhammad [SAW] said: "The Messenger of Allah [SAW] said: 'Whoever drinks Khamr, whip him; then if he drinks (again), whip him; then if he drinks (again), whip him; then if he drinks (again), kill him.'" Sunan an-Nasa'i 5661 Prohibition in the quran ( surah al maidah 5:90) Punishment in the hadith Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 sunnah qawliyyah sunnah fi’liyyah 6. Riddah - 3:85,, Hadith ‫اﻻﺧ َِر ِة ﻣ َِن ۡاﻟ ٰﺧﺳِ ِر ۡﯾ َن‬ ٰ ۡ ‫َو َﻣ ۡن ﯾ ۡﱠﺑ َﺗﻎ َﻏ ۡﯾ َر ۡاﻻِ ۡﺳ َﻼم د ِۡﯾ ًﻧﺎ َﻓ َﻠ ۡن ﯾ ۡﱡﻘ َﺑ َل ﻣ ِۡﻧ ُﮫ ۚ َوھ َُو ﻓِﻰ‬ ِ ِ If anyone seeks a religion other than [islam] complete devotion to God, it will not be accepted from him: he will be one of the losers in the Hereafter. 2:217 ٓ ٰ ُ ‫اﻻﺧِر ِة ۚ وا‬ ٓ ٰ ُ ‫وﻣ ۡن ﯾ ۡﱠر َﺗد ِۡد ﻣ ِۡﻧ ُﻛمۡ ﻋ ۡن د ِۡﯾـﻧِﮫٖ َﻓﯾﻣ ُۡت وھُو َﮐﺎ ِﻓ ٌر َﻓﺎ‬ ‫ﺎر ھُمۡ ﻓ ِۡﯾ َﮭﺎ ٰﺧﻠِ ُد ۡو َن‬ ِ ۚ ‫ﺻ ٰﺣبُ اﻟ ﱠﻧ‬ ۡ َ‫ِك ا‬ َ ‫وﻟـﺋ‬ َ َ ٰ ۡ ‫ِك َﺣ ِﺑ َط ۡت اَ ۡﻋ َﻣﺎﻟُﮭُمۡ ﻓِﻰ اﻟ ﱡد ۡﻧ َﯾﺎ َو‬ َ ‫وﻟـﺋ‬ َ َ َ َ َ َ while whoever of you turns away from his faith and dies an infidel, such people are those whose deeds will go to waste in this world and in the Hereafter, and they are people of the Fire. They shall be there forever Prohibition: Qur’an Punishment: Hadith Hadith ،‫ َﻋنْ ﻋِ ْﻛ ِر َﻣ َﺔ‬،‫ َﻋنْ َﻗ َﺗﺎدَ َة‬،‫ َﻗﺎ َل َﺣ ﱠد َﺛ َﻧﺎ َﺳﻌِﯾ ٌد‬،‫ َﻗﺎ َل َﺣ ﱠد َﺛ َﻧﺎ َﻋﺑﱠﺎ ُد ﺑْنُ ْاﻟ َﻌوﱠ ِام‬،‫ار َة‬ َ ‫ْن ُز َر‬ ِ ‫ َﻗﺎ َل َﺣ ﱠد َﺛ َﻧﺎ إِﺳْ ﻣَﺎﻋِ ﯾ ُل ﺑْنُ َﻋ ْﺑ ِد ﱠ‬،‫أَ ْﺧ َﺑ َرﻧِﻲ ِھﻼَ ُل ﺑْنُ ْاﻟ َﻌﻼَ ِء‬ ِ ‫ﷲﺑ‬ ِ ‫ َﻗﺎ َل َﻗﺎ َل َرﺳُو ُل ﱠ‬،‫ﱠﺎس‬. " ُ‫ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯾﮫ وﺳﻠم " َﻣنْ َﺑ ﱠد َل دِﯾ َﻧ ُﮫ َﻓﺎ ْﻗ ُﺗﻠُوه‬ ٍ ‫ْن َﻋﺑ‬ ِ ‫َﻋ ِن اﺑ‬ It was narrated that Ibn 'Abbas said: "The Messenger of Allah [SAW] said: 'Whoever changes his religion, kill him.'" Sunan an-Nasa'i 4062 Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 7. Baghy - 49:9 ٰ ٓ ِ ّ ‫ﺻﻠِﺣ ُۡوا َﺑ ۡﯾ َﻧ ُﮭ َﻣ ۚﺎ َﻓﺎ ِۢۡن َﺑ َﻐ ۡت ا ِۡﺣ ٰدﯨ ُﮭ َﻣﺎ َﻋ َﻠﻰ ۡاﻻ ُ ۡﺧ ٰرى َﻓ َﻘﺎ ِﺗﻠُوا اﻟﱠﺗ ِۡﻰ َﺗ ۡﺑﻐ ِۡﻰ َﺣ ٰ ّﺗﻰ َﺗﻔ ۡ ِٓﻰ َء ا ِٰﻟﻰ اَ ۡﻣ ِر‬ ‫ﷲ ۚ َﻓﺎ ِۡن َﻓﺂ َء ۡت‬ ۡ َ ‫َوا ِۡن َطﺂ ِﺋ َﻔ ٰﺗ ِن ﻣ َِن ۡاﻟﻣ ُۡؤ ِﻣﻧ ِۡﯾ َن ۡاﻗ َﺗ َﺗﻠُ ۡوا َﻓﺎ‬ ‫ﷲ ُﯾﺣِبﱡ ۡاﻟﻣ ُۡﻘﺳِ طِ ۡﯾ َن‬ ٰ ُ ِ‫ﺻﻠِﺣ ُۡوا َﺑ ۡﯾ َﻧ ُﮭ َﻣﺎ ِﺑ ۡﺎﻟ َﻌ ۡد ِل َواَ ۡﻗﺳ‬ َ ّ ‫ط ۡواؕ اِنﱠ‬ ۡ َ ‫َﻓﺎ‬ And if two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah. And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly. ‫ َﻓ َﻘﺎ ِﺗﻠُو‬: fight against them ُ‫ َﻓﺎ ْﻗ ُﺗﻠُوه‬: Kill him - All the offences of hudud were supported with dalil and nass from the Quran that prescribed the prohibition and the punishment. That mentions and declares about the prohibition. All the offences or crimes are with dalil. - Only in shurb al khamr and riddah, the punishment is not mentioned in the Qur'an but in the hadith. The test, the quran mention the punishment. LA JARIMAH WA LA UQUBAH ILLA BI AL-NASS - QISAS AND DIYAT - Dalil but a bit different for hudud - dalil for qisas and diyat provides clearly the rights of individuals even the dalil mentions the rights of individuals as opposed to hudud. Qisas and diyat mention the right of the individual whether to forgive, and demand diyat. We ponder and think of how the ulama and fuqaha classify the crime and punishment as it is not stated by the Prophet. They carried out research from the dalil or practice of the prophet, that the crimes and punishment can be divided into qisas, diyat, ta’zir and hudud. They did research and from Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 all the dalil, they come out with a research output: crimes and punishment can be divided into this and this. 1. Intentional Murder - 17:33, 2:178 ‫ِﺻﺎصُ ﻓِﻰ ۡاﻟ َﻘ ۡﺗ ٰﻠﻰ ؕ ۡاﻟﺣُرﱡ ِﺑ ۡﺎﻟﺣُـرﱢ َو ۡاﻟ َﻌ ۡﺑ ُد ِﺑ ۡﺎﻟ َﻌ ۡﺑ ِد َو ۡاﻻ ُ ۡﻧ َﺛ ٰﻰ ِﺑ ۡﺎﻻ ُ ۡﻧ ٰﺛ ؕﻰ َﻓ َﻣ ۡن ُﻋﻔ َِﻰ َﻟ ٗﮫ ﻣ ِۡن اَﺧ ِۡﯾ ِﮫ َﺷ ۡﻰ ٌء َﻓﺎ ﱢﺗ َﺑﺎ ۢ ٌع‬ َ ‫ِب َﻋ َﻠ ۡﯾ ُﻛ ُم ۡاﻟﻘ‬ َ ‫ٰ ٓﯾﺎ َ ﱡﯾ َﮭﺎ اﻟﱠذ ِۡﯾ َن ٰا َﻣ ُﻧ ۡوا ُﻛﺗ‬ ‫اﻋ َﺗ ٰدى َﺑ ۡﻌدَ ٰذﻟ َِك َﻓ َﻠ ٗﮫ َﻋ َذابٌ اَﻟ ِۡﯾ ۚ ٌم‬ ۡ ‫ﺎن ٰذﻟ َِك َﺗ ۡﺧﻔ ِۡﯾفٌ ﻣ ۡﱢن رﱠ ﱢﺑ ُﻛمۡ َو َر ۡﺣ َﻣ ٌﺔ ؕ َﻓ َﻣ ِن‬ ۡ ٍ ؕ ‫ِﺑﺎﻟ َﻣ ۡﻌر ُۡوفِ َواَدَ آ ٌء ِا َﻟ ۡﯾ ِﮫ ِﺑﺎ ِۡﺣ َﺳ‬ O you who have believed, prescribed for you is retaliation concerning (the ones) killed: the freeman for the freeman, and the slave for the slave, and the female for the female. Yet whoever is oﬀered anything in clemency by his brother, then the close following after should be with beneﬁcence, and the payment back to him should be with fairness. This (Literally: That) is a lightening from your Lord and a mercy; then, he who transgresses after that, then he will have a painful torment. the law of retaliation is prescribed in the case of murder : ‫ِﺻﺎصُ ﻓِﻰ ۡاﻟ َﻘ ۡﺗ ٰﻠﻰ‬ َ ‫ِب َﻋ َﻠ ۡﯾ ُﻛ ُم ۡاﻟﻘ‬ َ ‫ُﻛﺗ‬ if you forgive on behalf of your brother, if a person is a forgiven , rights of :ٌ‫َﻓ َﻣ ۡن ُﻋﻔ َِﻰ َﻟ ٗﮫ ﻣ ِۡن اَﺧ ِۡﯾ ِﮫ َﺷ ۡﻰء‬ individual, victims family can forgive 2:178 ‫ِﺻﺎصُ ﻓِﻰ ۡاﻟ َﻘ ۡﺗ ٰﻠﻰ ؕ ۡاﻟﺣُرﱡ ِﺑ ۡﺎﻟﺣُـرﱢ َو ۡاﻟ َﻌ ۡﺑ ُد ِﺑ ۡﺎﻟ َﻌ ۡﺑ ِد َو ۡاﻻ ُ ۡﻧ َﺛ ٰﻰ ِﺑ ۡﺎﻻ ُ ۡﻧ ٰﺛ ؕﻰ َﻓ َﻣ ۡن ُﻋﻔ َِﻰ َﻟ ٗﮫ ﻣ ِۡن اَﺧ ِۡﯾ ِﮫ َﺷ ۡﻰ ٌء َﻓﺎ ﱢﺗ َﺑﺎ ۢ ٌع‬ َ ‫ِب َﻋ َﻠ ۡﯾ ُﻛ ُم ۡاﻟﻘ‬ َ ‫ٰ ٓﯾﺎ َ ﱡﯾ َﮭﺎ اﻟﱠذ ِۡﯾ َن ٰا َﻣ ُﻧ ۡوا ُﻛﺗ‬. ‫اﻋ َﺗ ٰدى َﺑ ۡﻌدَ ٰذﻟ َِك َﻓ َﻠ ٗﮫ َﻋ َذابٌ اَﻟ ِۡﯾ ۚ ٌم‬ ۡ ‫ﺎن ٰذﻟ َِك َﺗ ۡﺧﻔ ِۡﯾفٌ ﻣ ۡﱢن رﱠ ﱢﺑ ُﻛمۡ َو َر ۡﺣ َﻣ ٌﺔ ؕ َﻓ َﻣ ِن‬ ۡ ٍ ؕ ‫ِﺑﺎﻟ َﻣ ۡﻌر ُۡوفِ َواَدَ آ ٌء ِا َﻟ ۡﯾ ِﮫ ِﺑﺎ ِۡﺣ َﺳ‬ O you who believe, QiSāS has been prescribed for you in the case of murdered people: The freeman (will be killed) for the freeman, the slave for the slave, and the female for the female. However, if one is somewhat forgiven by his brother, the recourse (of the latter) is to pursue the former (for blood money) with fairness, and the obligation (of the former) is to pay (it) to the latter in a nice way. That is a relief from your Lord, and a mercy. So, whoever transgresses after all that will have a painful punishment. َ ‫ُﻛﺗ‬ prescribed :‫ِب‬ Downloaded by Alisha Sofiya ([email protected]) lOMoARcPSD|21346422 َ ‫َﻋ َﻠ ۡﯾ ُﻛ ُم ۡاﻟﻘ‬ the law of Qisas : ُ‫ِﺻﺎص‬ in the case of murder :‫ﻓِﻰ ۡاﻟ َﻘ ۡﺗ ٰﻠﻰ‬ if any remission is made by the brother of the slave then grant any reasonable :‫َﻓ َﻣ ۡن ُﻋﻔ َِﻰ‬ , demand Remission means the family of the victim remits qisas, don't want to demand the qisas; maybe they demand diyat or lesser than diyat (100 camels) َ ‫ َﻓ َﻣ ۡن ُﻋﻔ‬this is the rights of the individual; means if the family of the From that we know that ‫ِﻰ‬ victim remits the qisas meaning that they have the rights to demand or remits. 2. Quasi intentional murder - Hadith َ ‫ َﻓ َذ َﻛ َر اَ ْﻟ َﺣد‬...‫ب إِ َﻟﻰ أَھْ ِل اَ ْﻟ َﯾ َﻣ ِن‬ } :ِ‫ َوﻓِﯾﮫ‬,‫ِﯾث‬ َ ‫ َﻛ َﺗ‬- ‫ ﺻﻠﻰ ﷲ ﻋﻠﯾﮫ وﺳﻠم‬- ‫ أَنﱠ اَﻟ ﱠﻧ ِﺑﻲﱠ‬- ‫ رﺿﻰ ﷲ ﻋﻧﮫ‬- ‫ َﻋنْ َﺟ ﱢد ِه‬,ِ‫ َﻋنْ أَ ِﺑﯾﮫ‬,‫ْن َﺣ ْز ٍم‬ ِ ‫ﻣْر ِو ﺑ‬ ِ ‫ْن ﻣ َُﺣ ﱠﻣ ٍد ﺑ‬ ِ ‫ْن َﻋ‬ ِ ‫َﻋنْ أَ ِﺑﻲ َﺑ ْﻛ ٍر ﺑ‬ َ ِ‫ َوﻓِﻲ اَ ْﻷَ ْﻧفِ إِ َذا أُوﻋ‬,‫س اَﻟ ﱢد َﯾ َﺔ ﻣِﺎ َﺋ ًﺔ ﻣِنْ اَ ْﻹِ ِﺑ ِل‬ ِ ‫ َوﻓِﻲ اَﻟﻠﱢ َﺳ‬,‫ب َﺟ ْد ُﻋ ُﮫ اَﻟ ﱢد َﯾ ُﺔ‬ ‫ﺎن‬ ِ ‫ﺿﻰ أَ ْوﻟِ َﯾﺎ ُء اَ ْﻟ َﻣ ْﻘ ُﺗ‬ ِ ‫ َوإِنﱠ ﻓِﻲ اَﻟ ﱠﻧ ْﻔ‬,‫ول‬ َ ْ‫ إِ ﱠﻻ أَنْ َﯾر‬,‫ َﻓﺈِ ﱠﻧ ُﮫ َﻗ َو ٌد‬,ٍ‫أَنﱠ َﻣنْ اِﻋْ َﺗ َﺑ َط ﻣ ُْؤ ِﻣ ًﻧﺎ َﻗ ْﺗﻼً َﻋنْ َﺑ ﱢﯾ َﻧﺔ‬ ُ ُ‫ َوﻓِﻲ ْاﻟ َﻣﺄْﻣُو َﻣ ِﺔ ُﺛﻠ‬,ِ‫ َوﻓِﻲ اَﻟرﱢ ﺟْ ِل اَ ْﻟ َواﺣِدَ ِة ﻧِﺻْ فُ اَﻟ ﱢد َﯾﺔ‬,‫ْن اَﻟ ﱢد َﯾ ُﺔ‬ ,ِ‫ث اَﻟ ﱢد َﯾﺔ‬ ِ ‫ َوﻓِﻲ اَ ْﻟ َﻌ ْﯾ َﻧﯾ‬,‫ب اَﻟ ﱢد َﯾ ُﺔ‬ ِ ‫ َوﻓِﻲ اَﻟﺻ ْﱡﻠ‬,‫ْن اَﻟ ﱢد َﯾ ُﺔ‬ َ ‫ َوﻓِﻲ اَ ْﻟ َﺑﯾ‬,‫ َوﻓِﻲ اَ ﱢﻟذ ْﻛ ِر اَﻟ ﱢد َﯾ ُﺔ‬,‫ْن اَﻟ ﱢد

Islamic Criminal Law Notes PDF

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