In the

name of
Allah
GLASGOW
CALEDONIAN
UNIVERSITY
The Crime
of
Hirdba
in
Islamic Law
Nik Rahim Nik Wails
B. A. (Hons)
A Thesis Submitted
In Partial Fulfilment
of
the Requirement of
Glasgow Caledonian
University for the Degree of
Ph. D.
January
1996
Contents
Page
Contents
...............................................................................
i
Introduction
..........................................................................
v
Acknowledgement
....................................................................
xi
Declaration
..........................................................................
xiii
Note
of
Transliteration
.............................................................
xiv
Chapter One
An Introduction To Shari'a
1.0. Introduction
.............................................................................
1
1.1. Definition Of Shari `a
................................................................ .1
1.2. Authoritative Sources In Shari`a
.....................................................
.2
1.2.1. The Primary Sources
...................................................................
2
1.2.1.1. The Qur'n
.............................................................................. .2
1.2.1.2. The Sunna
.............................................................................. .6
1.2.2. The Secondary Sources
............................................................... .8
1.2.2.1. Ijm `
.................................................................................... .8
1.2.2.2. Qi
ys
....................................................................................
10
1.2.2.3. Istihsn
,
Istislh OrMasdhh Al Mursalah
......................................
13
1.2.2.4. Istishb
................................................................................
14
1.2.2.5. Sadd AI-7ar i`
........................................................................
14
1.2.2.6. A1-`Urf
..................................................................................
15
Chapter Two
Crime (Jarima)
and
Punishment
('Ugitba) In Shari 'a Law
2.0. Introduction
............................................................................
17
2.1. Crime (Jarima) In Shari'a Law
....................................................
17
2.1.1. Crime: Problems, Causes
and
Effects
..............................................
18
2.2. Ahliyya (Legal Capacity)
and
Crime in Shari`a Law
............................
24
2.3. The Role
of
Spiritual Aspects In Crime Prevention in Shari `a Law........... 30
2.4. Punishment (`Uqba) in Shari 'a Law
..............................................
32
2.4.1. Fixed Penalty (Hudrid )
..............................................................
33
2.4.2.
Qiss (Retribution)
....................................................................
34
2.4.3.
Ta`zir (Discretionary Punishment)
.................................................
37
2.4.3.1. The Category
of
Ta`zir Punishment
................................................
39
2.4.3.2. The Distinction
between Ta `zir
,
Hudd
and
Diya
...............................
44
2.4.4. The Objective Of Punishment In Shari `a Law
.....................................
45
2.5. Conclusion
.............................................................................
57
Chapter Three
The Crime
of
Hirdba In Shari 'a Law
3.0. Introduction
............................................................................
60
3.1. Asbb AI-Nuzl (Cause Of Revelation) Of The Verse Of
Hirba
..............
60
3.2. Definition Of Hirba
..................................................................
63
3.3. The Elements Of Hirba
..............................................................
66
3.3.1. The Use
of
Weapon
...................................................................
67
3.3.2. The Act
of
Robbery
...................................................................
68
3.3.3. The Site
of
Commission
of
Hirba
.................................................
69
3.3.4. The Act
of
Terrorising People
.......................................................
.
70
3.3.5. The Act
of
Causing Destruction (Fasd)
...........................................
71
3.4. Legal Capacity inHirba
............................................................
71
3.5. The Religion
of
the
Accused Person
of
Hirba
...................................
73
3.6. FemaleMuhrib
......................................................................
76
3.7. The Victim Of Hirba
...............................................................
.
80
3.8. The Punishment for Hirba
........................................................
.
83
3.8.1. Execution
..............................................................................
83
d
3.8.2. Amputation
............................................................................
86
3.8.3. Salb (Crucifixion)
....................................................................
87
3.8.4. Al-Nafi (Exile)
........................................................................
89
3.9. The Infliction
of
Punishment forHirba
...........................................
90
3.10.
Tauba (Repentance): Its Implications
to the
Punishment
of
Hirba............ 93
3.10.1. The Requirement
of
Tauba
...........................................................
96
3.11. Conclusion
.............................................................................
98
Chapter Four
The Method
of
Proof in Hirba
4.0. Introduction
...........................................................................
100
4.1. Bayyina (Evidence)
of
Hirba in Shari`a Law
.................................
101
4.2. Shahda (Testimony) in Hirba
...................................................
105
4.2.1. Testimony
of
Women in Hirba
..................................................
115
4.3.
Igrr (Confession) in Hirba
......................................................
121
4.3.1. Retraction Of Igrr (Confession) in Hirba
......................................
125
4.4. Conclusion
............................................................................
127
Chapter Five
Crimes Which Are Considered As
Hirba
5.0. Introduction
...........................................................................
129
5.1. The Crime Of Robbery (Jarimat
Al-Nahb)
............................
129
5.1.1. The Definition
of
Robbery
.........................................................
130
5.1.2 The Elements
of
Robbery
..........................................................
134
5.1.3. Is The Crime
of
Robbery (Nahb)
Hirba ?
.....................................
142
5.1.4. Punishment for Robbery
...........................................................
144
5.2. The Crime
of
Terrorism (Irhdb) in Shari `a Law.
5.2.1. Definition
of
Terrorism
..............................................................
147
5.2.2. The Elements
of
Terrorism
..........................................................
149
5.2.3. The Distinction between Terrorism
and
Baghy
...................................
150
5.2.4. The Rule
of
Jihd in Shari`a Law
.................................................
154
5.2.5. Is Terrorism Hirba 9
..............................................................
164
5.3. The Crime
of
Rape (Jarimat Al-Ightisb) in Shari `a Law
5.3.1. Definition
Of Rape
...................................................................
169
5.3.2. The Elements Of Rape
...............................................................
175
5.3.3. The Effects
of
Rape
on
the
Victims
................................................
182
5.3.4. The Criminal Intention in Rape
....................................................
183
5.3.5 The Position
of
Rape Victims
under
Shari`a Law
...............................
184
5.3.6. Is Rape Hirba 9
.....................................................................
189
5.3.7. Evidence In Rape
.................................................................... .
191
5.3.8 Punishment For Rape
............................................................... .
194
5.4 Smuggling
and
Trafficking Drugs in Shari `a Law
...................
197
5.4.1. Definition Of Drugs
and
its Related Matters
......................................
198
5.4.2 The Effects
of
Drugs
on
the
Users
................................................ .
203
5.4.3.
The Prohibition Of Drugs In Shari 'a Law
.......................................
207
5.4.4. The Distinction
between Drugs
and
Khamr (Alcohol)
.......................... .
210
5.4.5. The Punishment For Taking Drug
.................................................
213
5.4.6. Are Smuggling
and
Trafficking Drugs Hiraba?
..................................
216
5.5. Summary
............................................................................. .
220
6.0. Conclusion
and
Suggestions
................................................
222
Glossary
............................................................................
232
Bibliography
......................................................................... .
241
iv
Introduction
Shari`a law is
not
implemented in
the
world today,
except
in
a
few Muslim
countries
such as
Saudi Arabia, Sudan, Pakistan
and
Iran. However,
this
does
not mean
that
Shari`a law is
no
longer
applicable
in
the
modern world.
Shari`a law
was and still
capable
in
tackling
problems of
human-beings
especially crime.
Nowadays, Muslims in
most
Muslim
countries are striving
in
every aspect
to
revive
Shari`a law. In
many countries,
the
Islamic
awareness
become
so obvious; people
do
not only talk
about the theoretical aspects of
Islam, but
they start
to
put
these theories
into
practice.
In Malaysia, for instance,
an
Islamic University is
established
to
provide a
better Islamic
education.
Islamic Banking
was also established
in
order
to
provide
transaction
on the
basis
of
Islamic law. Surprisingly,
not only
Muslims
give
their
support to these efforts,
but
also non-Muslims.
As
a result, more and more conventional
banks have
provided transactions
in
their
institutions
side
by
side with existing
transactions.
There
are also some people who
favour
political means
to
re-establish
Shari'a law. However, it
seems
that this
method
is
not yet proven successful even
though
an
Islamic
political party
has
won a strong support
in
certain part of the country.
This
phenomenon may serve as a proof that
Shari 'a law is
still acceptable as the
important law
to
Muslims
even though
it is
rejected
by
non-Muslims.
Shari`a
criminal
law has been
criticised especially
by
some of the
western scholars as a
cruel
law. Some
punishments such as amputation, crucifixion, stoning and whipping
for
various
kind
of crimes are
described by
some as cruel.
The
allegation may
be
acceptable to those
who are
ignorant
about
Shari `a law
and
judge
the
law by its
punishment without going
into
any
depth
concerning
how
this
kind
of punishment
operates.
The
reality of
Shari`a law
and
its
practicality and
justice become
apparent
if
it
was seen
from
various angles and with an open mind.
V
Shari `a law is
a
flexible law
which
has
a comprehensive system which monitors
the
conditions of
its
application.
The
proof of offences under
Shari`a
law
requires
the
satisfaction of overwhelming evidence which establishes
the
certainty of guilt.
This
certainty
is
said to
legitimise
the
infliction
of the
relatively
harsh
penalties.
It
requires
sufficient evidence
before
the
accused can
be
punished under
Shari`a law. In
some
4 cases
four
witnesses are required to
prove
the
guilt of the
person accused
,
such as
in
the
case of zin.
Testimony is
not acceptable unless the
witness
is
proved
to
be `ad! (good
character).
These
show
how
strict and careful the
Shari`a law in
executing punishment
on
the
person accused
.
These
also
demonstrate
that
Shari`a law is
not cruel even
though
it is
seen to
be
so
by
some
Western
scholars.
Criminal
acts are prohibited and punishable under
Shari `a law. Islm
strives
to
eliminate the
inner impulse
to crime
by
requiring moral
thought and conduct.
Environmental
encouragement
to commit crime
is
suppressed.
Alcohol is forbidden
as
well as adultery and sexual misconduct.
Both
the
government and
individuals
are
required
to
care
for
the
poor so
that they
will not
be
compelled
to steal.
Crimes
such robbery, rape,
terrorism
and
drug
trafficking
are very serious crimes which
cause
immense
effects on society.
These
crimes must
be dealt
with very carefully as
failure
to
do
so may
jeopardise
the
whole structure of society; physically,
psychologically
and economically.
These four
crimes were chosen
based
on
their
effects on the
victims and society as a whole.
The
study of these
crimes
is
aimed
to
analyse as to
whether or not
they
can
be
considered
hirba.
The
motivation and encouragement to study
this subject arised when
I
was studying at
AI-Azhar University.
A
question came
to my mind, was robbery the only crime of
hirba? This
question encouraged me
to study
this
crime
in
more
detail. Unfortunately,
I found
that
most of the
classical
jurists did
not
include
other crimes
in hirba
except
robbery.
vi
This
gives me more encouragement to study
this
subject and thus
choose
this
subject as
the main
focus
of my study.
The
other
factor
that
also encouraged me was my observation of
the
crime rates
(in
my
native country
Malaysia)
especially robbery, rape and
drug
trafficking.
These
crimes
occur regularly and this
urged me
to
wonder whether these
crimes can
be
stopped or
not?
Terrorism however
was
included
while
the
study
had begun. The
recent
bombing
in Oklahoma
encouraged
me
to
study
the
position of
this
crime
in Shari`a law. These
crimes were chosen
because
they are
the
most
terrifying
crimes with the greatest
impact
on society.
These
crimes
have
specific punishments according
to the
Malaysian
criminal
law. As Malaysia is
one of
the toughest
countries
in dealing
with certain
kinds
of crime, such as
drug
trafficking which carries mandatory
death
penalty, some other
aspects of
law
are,
in
my opinion, not sufficient
for
tackling the
problems of other
serious crimes.
The
aims of
this
study
is
to analyse
the
aforementioned crimes as
to whether or not
they
can
be
considered
hirba. Although
these
crimes
have been
selected as a
focus for
the
crime of
hirba,
this
does
not mean that the
outcome of
the analysis
in future
research
will give the same result.
The
category of
these
crimes will
be determined based
on
analysis and an
in-depth discussion
regarding these crimes.
The
research
in
most cases
is focused
primarily on
the classical views of
the
jurists. The
opinion of the
four famous Sunni
schools, namely
the
Hanafi, Mliki, Shfi'i
and
Haubali
are referred to
in
most cases.
The Zhhiri
school
is
also referred to
in
some
occasions.
Since
the
opinions of
the
classical
jurists do
not cover all cases
in detail,
the opinion of
the
modern scholars will
be
referred
to when necessary to
support or to counter
the view
of
the
classical
jurists. It is important
to
include
the
opinion of
the
modern scholars
to
vii
ensure
that the
discussion in
this thesis
is
applicable
in
modern times.
The
opinion of
non-Muslim scholars
is
also occasionally referred to
in
order
to
consider
the
similarities
as well as
the
differences between Shari`a law
and
Modem law.
This
study
is based
mainly on
library
research.
The
classical texts written
by
the
classical
jurists
are thoroughly
analysed and studied to
extract
legal
maxims on
the one
hand,
and
to
examine their
applicability on
the
other.
These
texts are either possessed
by
the researcher or obtained
from local libraries
or through
inter-library loan. Some
of
the texts
and relevant materials are obtained
by
visiting the
International Islamic
University
of
Malaysia,
while on a special visit
for
research purposes.
To
acquire more
current
information
on
the
subject of research especially crime
in Malaysia,
a number of
interviews
were also conducted while
in Malaysia. Among
others who were willing
to
be interviewed
were the
Deputy Director
of
Royal Malaysian Police
and
the
Secretary in
the
Home Secretary Office in Malaysia.
The
study
is divided into
six chapters.
The first
chapter provides a
brief introduction
to
Shari`a law. It describes
the
definition
of
Shari`a,
authoritative sources
in Shari`a law
including Qur'n, Sunna, Ijng`
and
Qiys
and other secondary sources such as
istihsn,
istisl h,
sadd al-zara'1` and
'Ur J.
The
second chapter studies the
crimes and punishment under
SharI'a law. This
chapter
also
identifies
crimes, their
problems, causes and effects on
the
public.
In
the
discussion
concerning the
prevention of crime, spiritual aspects are analysed thoroughly,
showing
how
this
element
helps
to
prevent people
from
committing crime.
The
objective of
punishment
in Shari `a law is
also
included in
this chapter.
Concerning
punishment
under
Shari 'a law,
the
discussion
covers
hadd,
giss and
ta'zir. However, it is
the
discussion
of
hudd
punishment
that merits most attention
due
to the
fact
that the
overall
focus
of the thesis concentrates on
this
area.
viii
In
the third
chapter,
the main subject of
the
study,
i.
e.
hirba
and all related matters,
is
tackled.
This includes
a
thorough
discussion
concerning the
definitions
of
hirdba by
the
jurists. The
chapter also
includes
all
the
necessary
discussion
concerning
hirba
such as
cause of revelation
(asbb
al
Nuz1)
of the verse of
hirba,
the
religion of nruharib,
the
victim,
the condition of place,
the value of
the
stolen property
in hirba,
restoration of
the
property, repentance and
its
effects on
the
punishment and
the
justification
of
the
severity of
the
punishment.
Further discussion
of
hirba
touches the
methods of proof
in hirba. Finally,
this
chapter concludes
by
tabling the punishments prescribed
for
the
crime of
hirba
The fourth
chapter
focuses
the
discussion
on the
evidence of
hirba. The
study outlines
general principles concerning evidence and the types of evidence
that are accepted
in
Shari`a law. This
chapter also
discusses
the
witnesses'
duty
of
testimony as well as
the
requirement of confession.
The discussion
also
identifies
the right of
the
defendant
to
retract
his
or
her
confession and
the
effect of this retraction on
the punishment.
The fifth
chapter
deals
with
the
four
contemporary
issues (i.
e. robbery, rape, terrorism
and
drug
trafficking) that are chosen to
be
analysed on
the
basis
of the
law
of
iiirba.
The
main objectives of
the
discussion in
this chapter
is
to clarify
the
position of
these
crimes.
The discussion in
this
chapter
is divided into four
sections.
The first
section
discusses
robbery,
followed by
rape and terrorism.
In
the
final
section, the
focus
of
the
discussion
will
be
on
drug
trafficking.
The
study
is
concluded
in
chapter six with a
final
conclusion as well as suggestions that
cover all
the
discussion
of
the
preceding
five
chapters.
There is
no
doubt
that
while undergoing
this research there
have been
some
difficulties
faced by
the
researcher.
One
of
the
difficulties
concerns with the translation
from
Arabic
to
English. As
the
researcher
has
an
Arabic background
and most of
the works
require
translation, the translation may not accurately
represent the meaning of
the
ix
original
texts,
even
though all steps
have been
taken to
ensure that
no major mistake
is
left
uncorrected.
Translating
the
Arabic
classical text
is
more
difficult because
the text
itself is difficult
to understand, even
for
the
native
Arab.
I
pray
to
Allh
to make
this
study
beneficial
to
whoever may read
it. It is hoped
that the
outcome and
the
result of
this
study will give some contribution
towards the
future
application of
Shari `a law
with regard
to the
aforementioned crimes
in Muslim
countries
and especially
in Malaysia.
X
Acknowledgement
Without
the
encouragement, solid support,
deep
understanding, and unfailing sympathy
of my
Supervisor, Dr Mahdi Zahraa,
this thesis would never
have
seen
the
light
of the
day. My depth
gratitude to
his kindness
which manifested
in his
valuable suggestion,
rectification of many mistakes and
keeping
me on
the
right
track.
I
am
indebted
to
my pervious
Supervisor, Professor Sayed Hassan Amin for his
great
kindness,
valuable advice and numerous suggestions.
His knowledge inspires
me
to
remain
in
this
field
of study.
I
am also grateful
to
my ex-supervisor
Dr. Mona Siddiqui,
who
has
given
full
attention
and
interest
of my study.
I
am also grateful
to
my sponsors,
International Islamic University
of
Malaysia
and
the
Malaysian Government for
sponsoring me and my
family during
my study.
I
am also grateful to
Mrs. J. Charlton for her
support, sympathy and understanding of
the
difficulties
that
I faced
throughout the
study.
Many
thanks to
all staffs at
Law
and
Public Administration, library
and computer
service
for
their
kindness
and co-operation.
I
am also grateful to
Tuan Haji Arshad Hj. Mokhtar, Deputy Director in Crime
Investigation Department, PDRM Kuala Lumpur
and
his
staffs
for his
willingness
to
be
interviewed
and
for his full
co-operation.
Many
thanks
also to
Tuan Haji Wan Abdullah,
the
Secretary in
the
Ministry
of
Home
Office, Kuala Lumpur
and
his
staffs
for his
great
interest in
the
subject of study.
xi
Many
thanks to
Mr. R. Sommerfield, Margaret, Dr. Abdul Azim Abdul Ghani
and
Dr.
Nordin Ahmad, Dr. Khuzair Ismail
who
involved in
correcting my
thesis.
To
all my
colleagues who were always
there
when
I
was
in
need.
Their
support and
encouragement as well as sense of
humour
made my study more enjoyable.
I
am so grateful
to
my
beloved
parent who never neglected me since
I
was small and
gave me a great care until
I
succeeded
to
reach this
level
of study.
I
also
indebted
to
my
beloved
wife,
Rahimah Mohamad
and all my children
'Umairah,
'Umair,
and
'Amru,
as well as
'Amrah
and
'Aamirah (both
were
born in Scotland)
who
have
missed my
intention
and suffered a
lot because
of my preoccupation with my study
and they
dealt
with me patiently.
Any
positive or constructive aspects
that
may appear
in
this thesis owes
its
existence
to
my
Supervisor
and all mistakes which might
be in
existence
despite
all the
efforts
to
avoid them,
I
am alone responsible.
xii
Declaration
This
thesis
is
available
for library
use on condition
that anyone who consults
it is
understood to
recognise that
its
copyright rests with
its
author and
that
no quotation
taken
from
the thesis
nor any
information derived from it
may
be
published without
the
author's written consent.
I
certify
that
all materials
in
this thesis which
is
not my own work
has been identified
and
that
no material
is included for
which a
degree has
previously
been
conferred upon
me.
January 1996 Nik Rahim Nik Wajis
Xi
Note
of
Transliteration
Consonants
1
Z
jq
b
s
Jk
"
4,
t
.
sh
j1
th s m
n
c
h bt
w
kh 1o
z
h
d
r5
Y
3 dh
gh
r
Jf
Short
vowels
Long
vowels
a
L
2uy
r
i
Dipthongs
au
i/
ai
xiv
CHAPTER ONE
An Introduction
to
Shari'a Law
1.0. Introduction
Before beginning
any
discussion
concerning
'Hirba
1
in Shari`a
2
Law'
which
is
chosen as the
main title
for
this research,
it is important
to
discuss
some other relevant
aspects of
this topic
such as
definition
and
the
authoritative sources of
Shari`a law. It is
suggested that this
information
can serve as a guideline towards
understanding
the topic
and the
Shari`a
law
as a whole.
1.1. Definition Of Shari'a
Shari`a is
a singular of
Shardi'
which
literally
means water
hole
3
or
drinking
place.
4
The Arabic
phrase which
is
commonly used, a!
-Shari`a
al-Islmiyya may
be
translated
as
'the Islamic
way'
5
Shari`a law is
originated
from
a
divine
revelation which governs all aspects of
human
activity,
including
economic, social, civil, criminal and personal matters.
6
Shari'a law
1- Hirba
is
translated by
some scholars
(`ulamay)
as
highway
robbery and occasionally as armed
robbery or qat' al-tariq.
Hereinafter,
the term
hirba
will
be
used without any translation.
2-
Shari'a is
the revelation or canonical
law
of
Islam. It includes
all practical aspect of
human life
such
as nu'rralat
(civil law) Munkah
t (the
personal
law),
akhlnq
(moral
code) and
`Uqbat (the
penal
code).
Therefore
this term
will
be
used as a general
term
for Islamic law. The
term
Shar `a
will
be
used
hereinafter
without translation.
3-
Wehr, Hans., A Dictionary
of
Modern Written Arabic, Macdonald & Evans Ltd, London, 1980,
p.
477
4-
Al-Fairuz Abadi,
Mahy Al-Dia, Muhammad Ya`qub., Al-Qanus Al-Muhit, Mu'assasa A1-Halabi,
Cairo, No Date,
vol.
3,
p.
44.
5
-Encyclopaedia
of
Religion. MacMillan Publishing Company New York, No date,
vol.
7,
p
431.
6-
It is
agreed upon
by
the
majority of the
jurists
that
most of the
rulings
(ahkm) in Shari `a law have
1
is
also concerned with moral
behaviour
and occasionally
Shari`a law is
considered
to
be
a moral system.
1.2. Authoritative Sources In Shari`a Law
The
authoritative sources of
Sharl'a law
can
be
grouped under
two
categories:
the
primary sources
(i.
e
Qur'an
and
Sunna)
7
and
the
secondary sources
(i.
e.
Ijn ',
gys,
al-istihsn,
`Urf,
al-Istishb or sadd al-zari').
1.2.1. The Primary Sources
The
primary sources
in Shari`a law
are
two; the
Qur'an
and
the
Sunna.
1.2.1.1. Qur'n
The first
authoritative and the primary sources of
Shari`a law is
the
Qur'n. The Qur'an
may
be defined
as the
book
containing the
speech of
God
revealed
to
Prophet
Muhammad
and
transmitted to us
by
continuos testimony or
tawatur.
8
The
revelation
of the
Qur'an
can
be divided into
two
periods;
Makki
9
and
Madani
10
The
verses
their
objectives.
These
objectives can
be
observed except
in
certain
hukm
which
is
purely ritual.
See
Al-Qardwi, Ynsuf., Madkhal Ii dirsat AI-Shari'aAl-Islwriyya Maktaba Wahbah, Cairo, 1991.
p.
57.
7-
The Sunna
means precedent and custom.
In
the technical sense
it implies
the
doings.
practices and
silent approval of the
Prophet
only.
Sunna is
thus a concrete
implementation,
a tangible
form
and the
actual embodiment of the
will of
Allah in
the
form
of
Muhammad's (pbuh) deeds. See SO d6 Muslim
(tran), Siddigi, 'Abdul Hamid.,
vol.
1, Sh. Muhammad Ashraf, Karachi, 1980,
p.
ix.
8-
See Kamli, M. H, Principles
of
Islas icJurisprudence,
The Islamic Texts Society, Cambridge. 1991,
p.
14.
9-
The
verses or
Qur'nn
which are revealed
before the migration
(iujra)
of the
Prophet
to
Madina
are
called
'Mdckia '
regardless of where the verse
is
revealed.
For details,
see
Qatn, Manna., Mabhith
fi 'UG7m
a1-Qur'an,
Mu'assasa
al-Risla,
Beirut, 1980,
p.
61.
10-
All
the verses which are revealed after
hijra
are called
'Mad579ya'
even though the verse was revealed
in Mecca
or places other than
Madina. Ibid,
p.
61.
2
revealed
in
the
Makki
period are concerned with matters related to
`agida (faith)
which
includes
six pillars of
'imn (belief),
the
disputation
with the
unbelievers and their
invitation
to
Islam. In
the
Madani
period,
the
verses cover
the
rules which regulate
the
various aspects of
life in
the
new environment of
Madzna.
The Qur'dn
comprises of
6237
verses
in 114
chapters.
However,
approximately
10
percent of the
verses contain rules and the
majority of these verses are concerned with
religious matters such as prayer,
fasting
and pilgrimage.
It
seems that the
Qur'an does
not provide
for
all
branches
of all
detailed
requirements of
the
law. One
analysis of
the
text
concludes that
only about
200
verses
deal
with
legal issues in
the
strict sense of
the
term.
Family
and civil
law
are each addressed
in
seventy verses, penal
law in
thirty,
constitutional
law in
ten,
legal jurisdiction
and procedure
in
thirteen, the
economic and
financial
order
in
ten,
and
international
relations
in
twenty
five.
11
Although it
seems that the
Qur'n
plays only a small part especially
in dealing
with
law,
the significance of the
Qur'n is
clear.
No
other rules or principles can
be
accepted
if
they
are contrary
to the
principles
laid down in
the
Qur'n. Thus it is
suggested that
the
Qur'n is
the
most
important
source
in Shari'a law.
With
regard to the
Qur'n
,
there
are three
major
issues
to
be discussed:
a)Asb
b
a!
-Nuzl
(Cause
of revelation)
Asbb
al-nuzl can
be
understood
on
the
basis
that the
reason of revelation
for
certain
verses
is
revealed according to the
events and also
to answer the
questions raised
by
the companions of
Prophet Muhammad. Understanding
asbirb al-nuzl
is
considered
important for
understanding the
exact meaning of
the
Qur'n. According
to
Kamli,
the
ignorance
of asbb al-nuzl may
lead
to the
omission or misunderstanding of part or
even all of an
injunction. The ignorance
of asbh al-nuzl may also
lead
to unwarranted
disagreement
and even conflict.
Part
of
the
Qur'n is
comprised of passages which
deal
II
-
See Lippman, M. Islamic Criminal Law AndProcedure,
Praeger, New York, 1948,
p.
29.
3
with probability and ambiguity.
Such instances in
the text
can
be
clarified
by
referring
to the
circumstances
in
which
they
were revealed.
12
b) The
role of
the
Qur'n
with regard
to the
law
As
previously
discussed,
the content of
the
Qur'da is
very concise.
The Qur'an
only
lays
out
the
basic
principles and general
foundation. For instance,
regarding
the obligation
of prayer, the
Qur'an
says:
"And be
steadfast
in
prayer and regular
in
charity.
"
13
The
verse
does
not clearly explain
the
details
on
how
to perform
the Salat
(prayer).
14
What
can
be
understood
from
this verse
is
only
the
obligation of Salat
(prayer). The
detailed
explanation
is
therefore the role of
the
Sunna. In
ahaith
the
Prophet
explained
how
to
perform
the
prayer
by
saying:
"Perform
the salt
(prayer)
as you see me performing
W'
15
Even in
this
hadcth,
there
is
no explanation on
how
to say
the prayer as ordered
by
the
verse
in
the
Qur'n.
However, for
the
companions who are with
the
Prophet Muhammad,
the
hadcth
serves
as a guide
line for
them
since they
can see
how
the
Prophet
performs the
prayer.
12
Ibid.
p.
40.
13_
Qur'n, 2: 110. (Translation by Ali, Y., is
referred
to
in
all citation of the
Qur'anic
verses
in
the thesis).
14
See A1-Qardwi, Ynsuf, Madkhal Lidfrasat Al-Syaria'ahA1-Islamiyyah,
Maktaba Wahbah, Cairo,
1991,
p.
48.
15
See Ibn Hanbal, Alunad., Musnad I
n-mAhmad.
Matba`a A1-Maimaniyyah, Cairo, 1313 AH,
vol.
2,
p.
130.
4
With
regard
to the
prohibition of
killing, Alldh
says:
"Nor
take
life
which
God has
made sacred except
for just
cause.
"
16
In
this
verse
the
Qur'an does
not specify the
details
concerning
the
killings
which are
considered to constitutes
haq (just
cause).
This
verse
lays down
the
basic
principle
which
is
the
prohibition of murder while the
exceptions to that
prohibition are made
by
the
Sunna. In
a
hatth
the
Prophet
outlines other
detailed
principles which are clearly
stated who can and cannot
be killed. The Prophet
says:
"It is
not allowed to shed
the
blood
of a
Muslim
except
in
three states: a
married adulterer, a soul
for
a soul and the
one who changes
his
religion
(apostasy). "
17
From
this
hadith,
the
Prophet has
excluded
three
categories of people
to whom
killing is
not prohibited.
It is
clear
from
the
hadi'th
that
killing
a married adulterer, a murderer
and an apostate are excluded
from
the
prohibition of
killing
which
is laid down by
the
Qur'n. However, it is
noteworthy that the
duty
of execution of any offender
is
the
duty
of the
state and not the
individual.
18
If
an
individual is found
guilty of
killing
those
who are excluded
from
the
basic
principle above,
he is
not
liable for
punishment of
qisas
but
can
be
punished with
tdzir
19
as
this acts against
the rule of
the
authority.
c)
The
authenticity
of the
Qur'n
Unlike
other sources of
Shari`a
law,
the
Muslims believe
that the
Qur'n has
a special
protection
from
any challenges or corruption.
In
the
Qur'n Allh
says:
16-
Qur'an, 17: 33.
17-
See Sahih Al-Bukhri,
vol.
9,
p.
606.
18-
See AI-Saynti, JaWl Al-Din, Al Ashbh
wa at
Naz ir, Dr
al
Kitb Al-'Arabi, Beirut, 1987.
p.
355.
19-
Ibid.
5
"We have
without
doubt,
sent
down
the
Message,
and will assuredly,
guard
it (from
corruption).
"
20
In
an other verse, the
Qur'n
again affirms:
"Say: If
the
whole of mankind and
Jinns
were gathered together to
produce the
like
of
this
Qur'an,
they
could not produce the
like
thereof,
even
if
they
backed
up each other with
help
and support.
"
21
From
what
is
stated concerning
the
Qur'n it is
clear that
neither mankind nor
the
Jinn
are capable of creating or producing a verse
like
the
Qur'n. The
verse
in
the
Qur'an
are
proven to
be
authentic
because
there
is
no evidence of any success attempt
to this
challenge.
Consequently,
the
Qur'n has
remained
intact
and without change since
it
was
first
revealed
more
than
1400
years ago.
There is
no
doubt
that the
Qur'n is
an
authentic and a reliable source of
Shari `a law.
1.2.1.2. The Sunna
Surma
is defined
as the sayings
(agw! ), deeds (c `! )
or
tacit approval
(tagrir)
which
are related to
Prophet Muhammad.
22
The Sunna is
also
defined
as sayings,
doings
or
tacit
approval
reported
from
the
Prophet.
23
The
authenticity
of
the Sunna is
stated clearly
in
the
Qur'n
which says:
"0
ye who
believe ! Obey God
and
Obey
the
Apostle. "
24
20_
Qur'n, 15: 9
21-
Qur'n, 17: 88
22-
See Mahmassani, S., Falsafat Al Tashri ` Fi Al Islm, Eng. Trans. Farhat J. Ziadeh, The Philosophy
Of Jurisprudence In Islm, Leiden, 1961,
p.
71--
23
See A1-Qardwi, Ynsuf, Madkhal Li dirasatA1-Shari`aAI-Islniyya
Maktaba Wahbah, Cairo, 1991,
p.
48.
24
Qur'n, 4: 59.
6
And Allh
also says:
"So
take
what the
Apostle
assigns to
you, and
deny
yourselves that which
he
withholds
from
you"
25.
From
these two verses, there are two
major points which can
be
extracted:
1) The
authenticity and
the
validity of
Sunna
as a source of
Sharl'a law. The
command
to
obey
God
and
the
Apostle
give a clear
indication
of
this
point.
2) The
position of
Sunna
alongside
the
Qur'n. There is
no
doubt
that
Sunna is
an
important
source after the
Qur'n. This
position
is
clearly stated
in
the
verse
testifying
that
both
obeying
God
and
Apostle
are required
for
the
Muslims. Accepting
the
Qur'n
alone and rejecting the
Sunna is
totally contrary to the
above verses.
Reciting
the
Qur'n
and understanding
its
apparent meaning
do
not guarantee a
complete picture of the
matters mentioned
in
the
Qur'n. For
example,
if
one comes
across a verse
in
the
Qur'an
saying:
"O
ye who
believe! Approach
not prayers with a mind
befogged,
until
you can understand all that
ye say.
"
26
one might think that
drinking
alcohol
is
not prohibited except when going
for
prayer, as
clearly understood
from
the apparent meaning of
this verse.
However,
this
understanding
is inaccurate
simply
because
the
hukm (ruling)
of this
verse was actually
abrogated and
is
no
longer
applicable.
This
particular verse was
abrogated
by
the
verse:
25
Qur'an, 59: 7.
26_Qur.
n,
4: 43.
7
"0
ye who
believe! Intoxicants
and gambling,
(dedications
of) stones, and
(divination by)
arrows, are an abomination, of
Satan's handiwork,
eschew
such
(abomination)
that ye may prosper.
"
27
Even
though, the
abrogation of the ruling
is
made
by
another verse,
its
explanation
is
given
in
the
Sunna. This
example shows the significance of
the
Sunna
and
its
role
in
clarifying messages
from
the
Qur'n
or explaining any vagueness
in
the verses of
the
Qur'n. There is
no
doubt
that the
Sunna
should
be
accepted as another primary source
of
Shari `a
law
alongside the
Qur'n.
1.2.2. The Secondary Sources
The
secondary sources such as
ijm ',
giyas, al-istihsn
,
a1-istishc
b
and
'UrJ
are not
independent
sources
in
the
Shari`a law. These
sources are regarded as
invalid if
they
are contravene with
the
primary sources.
1.2.2.1. Ijm' (Consensus)
Ijrrrr'
signifies
(simply)
the
driving
of camels together, or collectively.
28
Ijno'
also
signifies the
composing and settling a
thing which
has been discomposed (and
unsettled);
as an opinion upon which one
determines,
resolves or
decides.
29
Ijm' is
defined
as the
agreement of
the
Muslims juristsconsults in
any particular age on a
juridical
rule.
30
Ijm5' is
considered an authentic source of
Shari `a law
which
has been
sanctioned
by
the
Prophet in
thehadith:
27-
Qur'n, 5: 90.
28-
See Lane, E. W., Arabic English Lexicon, Williams
and
Norgate. London, 1865, Book 1, Part 2,
p.
455
29
Ibid
30_
Massani,
p.
76.
8
"My
community shall never unite upon error.
"
31
This
hadith
gives an assurance that
a
Muslim
community will never agree on an error.
If
an error or misjudgement occurs
in
society,
it
will not
be
tolerated
by
the
Muslims
and
there will
be
some people who will strive to
rectify this error.
The ijm5' for
this
reason
is
clearly an
important
source
in
the
Shari`a law. A jurist
who
is
unable
to
determine
which rule
to
apply
in
certain cases which are neither mentioned
in
the
Qur'n
nor
in
the
Sunna
could refer
to the
views agreed upon
by
other contemporary
jurists. This Judicial
consensus
is
very similar to the principle of precedent
in
the
common
law
system.
32
However,
according to
Amin,
the agreement of
jurists from
one
Muslim
country
is in
itself
not necessarily recognised as
ijnff.
33
Nevertheless, by looking
at
the
definition
of
ijrr', it
seems
that the
agreement of
jurist
even
from
a
Muslim
country
is
not
contrary to the
definition
of
ijm. '
and should as such
be
recognised as
ijn-0
,
at
least for
that
specific country.
This kind
of
#n O'
may not
be
accepted
by
the whole
Muslim
community,
but it
would
be
applicable
in
some
Muslims
countries.
One
may
take
bank
interest
as an example.
According
to
Al-Qardwi,
there
is
a consensus of
jurists
regarding the
prohibition of
bank interests
which
is
considered as rib
34,
but
this
ijn'
may not
be
accepted
by
some
Muslims
countries simply
because
there are some
jurists
from
those
countries who
disagree
with this opinion.
Consequently,
this
opinion cannot
be
considered
ijnff in
those particular countries, even
though
it is ijm' in
some other
countries.
31_
Ibn Mjah, Muhammad b. Yazid, Sunan Ibn Mjah, Istanbul, Cagri Yayinlari, 1981,
vol.
2,
p.
1303,
Had h
no.
3950,
32
Lippman,
p.
31.
33-
Arnin S. H.
,
Islwric Law in
the
Conten
orary
World Royston 1985,
p
11.
34-
See Al-Qardwi, Ysuf., Faw'id
al-Bunk
hia
al-&b al-Muharram,
Al-Shabb Media, Bandar
Baru Bangi, 1992,
p.
16. This
consensus of opinion among
jurists
was obtained
from
a seminar on
Islamic
economy which was
held in Mecca.
9
It is
understood that,
ijm' is based
on personal opinion which
is
extracted
through
ijtihd from
any proficient
jurist
who
has
the capability and expertise to research all
the
relevant
judicial
authorities.
35
This
opinion may
be
wrong simply
because it is
personal.
However, if
this
personal opinion
had been
agreed upon among
jurists,
then
there
is
a
dependable
guarantee of correctness, as
the
Shari'a law
considers
that a
consensus of
Muslims jurists
over
long
enough period of time will
be
collectively
approved.
36
Hence, ijma' is
considered a reliable source of
Shari'a law
and
therefore
should
be
accepted and can
be
applied
to
contemporary
issues.
.
1.2.2.2. Qiyas
(analogy)
Qiys literally
means measurement, scale, exemplar, analogy or
deduction.
37
The
majority of
jurists define
giy[is as an application
tofar'(a
new case) on which
the
law is
silent, of
the
hukm (ruling)
of
asl because
of
the
`ilia
which
is in
common
to
both
38
The Hanafi's definition
of giys
is
substantially
the
same, albeit with a minor addition
which
is designed
to
preclude certain varieties of giys.
The Hanafi jurist Sadr
al-
Shari `a in his
taudiih,
as translated
by Aghnides, defines
giyrrs as extending
the
Shari `a
value
from
the
original case over
to the
subsidiary
(far') in
virtue of an effective cause
which
is
common to
both
cases and can not
be
understood
from
the expression
(concerning
the
original case) alone.
39
The definition
of
the
majority of
the
jurists
seems to
be
more comprehensive
than
other
definitions because it
covers all elements
required
for
giyas.
The
elements of gi)lds which are agreed
by
the
majority of the
jurists
are as
follows:
35_
Amin,
op. cit. p.
11.
36
Ibid.
37-Wehr,
p.
804.
38-
A1-'Amidi, Saif Al-Din., A!
-Il
mfi
'Us& Al Ahkm, Mu'assasa Al-Halabi, Cairo, 1967,
vol.
3,
p.
186.
39.
See Kamli,
p.
200.
10
1) The
original subject
(asl )
against which
the
new subject
(far') is
compared.
40
Asl is
the original ruling which
is
clearly prescribed
by
either the
Qur'n
or
the
Sunna.
Zinrt
41
and
khamr (alcohol) for instance
are clearly prohibited
in
the
Qur'an. Therefore,
the prohibition of zin and
kharrr
are considered as the
original ruling
because
the
prohibition of
these
crimes are prescribed
directly by
the
primary source.
2) The
new subject
(far`)
which
is
the subject of giyas.
42
The far`
which
is
to
be
examined
(in
this case)
is
the
crime of sodomy
43
which
is
similarity to zin and
the use of
drugs
which
is
similar to
kha
r.
3) The
cause
(lila)
which
brings
together the
original subject and
the new subjects and
the
reason
for
qiyas.
44
The `illa
of
the
asl
may
be
more
than
one.
Therefore,
the
strongest and the
closest
`illa
must
be
carefully chosen.
Looking
at
the
`illa inzin, it
appears that
illegal intercourse is
the
strongest
`illa
of
the
prohibition of zin.
Sodomy
is
an
illegal intercourse
which shares
the
same
`illa
with zin.
If
the
`illa for
the
prohibition of
khanr is
carefully observed,
it is
clear
that
intoxication is
the strongest
`illa
of the
prohibition.
Drugs in
this
case
have
a similar
`illa
to
khan, i.
e.
intoxication. Therefore both far`
crimes,
i.
e. sodomy and
drugs, have
the same
`illa
as
the
original
ruling.
4) The hwkm
(ruling)
governing
the
original case which
is
to
be
extended
to the
new
case.
Upon
examination of the
`illa for both s1
and
far`
crimes,
it is
obvious that zin
40
Muassani,
p.
82.
41
_
Znd in
the
Shari `a law denotes both fornication
and adultery.
It is defined
as any sexual
intercourse
between
persons who are not
in
a state of
legal
matrimony or concubinage.
See Encyclopaedia
of
Islam, Leyden, E. J., Bril Limited, London, 1934,
p.
1227. For
more
discussion
concerning zing see
Chapter Five in
rape section.
42
Massani,
p.
82.
43
The
crime of sodomy
is included
under zin according to
Shari `a law. See Encyclopaedia
of
Isln
op. cit, p.
1227.
44
-
Ibid.
11
and sodomy, as well as
khamr
and
drugs,
are
both
sharing the
same
`illa. Based
on
this
theory,
both far`
crimes share the
same ruling as
the
ruling of the
sl
crimes,
i.
e.
prohibition.
Therefore,
the
ruling of
the
far` is
the
same
the
'asl.
Individual
reasoning
in
general
is
called ra'y
(opinion)
when
it is directed
towards
achieving systematic consistency, and when
it is
guided
by
the
parallel of an existing
institution
or
decision it is
called giys.
When it
reflects the personal choice of
the
scholar, guided
by his idea
of appropriateness,
it is
called a!
-istihsn
or al-istislh.
45
Qiys is
accepted as a secondary source of
Shari`a law. In
applying giys a
jurist
must
first
seek out rules
in
the
Qur'n
,
the
Sunna
and
the
ijm'. This
method
is
used
to
deal
with the
situation which
does
not appear
to
be
addressed
by
the
Qur'an
or
the
Sunna. If
the
rules are not
found
or are unclear,
the
jurist is
authorised
to use
his
wisdom and
knowledge in
applying an accepted principle or an assumption
that could solve
the
problem.
46
Although
the use of giys
is
subjected
to
criticism and
is
regarded as an attempt
to
use
human
reasoning
to
fill
an apparent void
in God's law, it is
supported
by
many
Wth.
One
such
haatlz is
what the
Prophet is
reported
to
have
told
Ibn Mas`d:
"Give
your ruling
in
accordance with
(the
provisions of)
the
book
and the
Sunna if
such are available.
If
you
do
not
find
such provisions
have
recourse to your opinion and
interpretation. "
47
The
second
caliph
'Umar ibn Al-Kha%&b
was
the
first
caliph who used the term
of giys
in Islam. It
was reported
that
(confirming
the significance of giyds)
he
said to
Ab
Msa Al-Ash'ari:
45_
See Schacht, J, The Origins
of
Muhammadan Jurisprudence, Oxford, Clarendon Press, 1959,
p.
98.
46_
Shauk5ai, Muhammad bin Ali, Irshdd Al-Fuhul ila Tahqiq
min
'11m
al-'Usul,
Al-Matba
a
Al-
Minbariyyah, Cairo,
p.
198.
47-
See Mahmassani, S., Falsafat Al Tashri' Fi Al Islam, Eng. Trans. Farhat J. Ziadeh, The Philosophy
Of Jurisprudence In Islam, Leiden, 1961,
p.
81.
12
" Know
the
similitude, and weigh the
cases against them.
"
48
From
the
saying of
'Umar, it is
clear that
giys can
be
considered one of
the
important
sources
in
the
Shari`a law.
1.2.2.3. A1-Istihsn
,
Al-Istislh
or
Maslih
al-Mursala
(Public
Interest)
The jurists define
al-istihs4 al-Istislh
49
or
Maslih
al-Mursala
in different
ways.
The Hanafi
school
defined
al-istihsrn as a source
(for law)
which sparks
in
the soul of
the
interpreter,
and which
he finds himself
unable to
express
by
words or
to
bring
out
by
another means" or
"the
setting aside of analogy and searching what
is
more suitable
for
the
people.
50
The Hanafi
school
is
the
first
school which opens
the
door
to
ad-istihsn.
A
significant example
for
this
is
provided
by
rules relating
to the ancient contract of
nvzbana, the
exchange of
dried dates for fresh dates
which
is
still on
tree.
This
contract contravenes the
Qur'nic
prohibition of rib or
'excess',
and was
therefore
generally rejected.
But in
order
to
enable poor people who
did
not possess palm-trees,
to
acquire
fresh dates from
the time they
began
to
ripen, certain scholars allowed
the
exchange
of strictly
limited
quantities of
dried dates for
approximately equal quantities
of
fresh
dates
on the tree.
51
Imam
Mlik
names
this transaction
al-Maslih al-
Mursalah
which means public
benefit
or public welfare.
Imm Ahmad Ibn Hanbal
names
it
al-istisldh or al-Maslih
al-Mursdah
which means an unprecedented
judgement
motivated
by
public
interest
into
which neither the
Qur'n
nor the
Sunna have
explicitly referred to.
This is
also
48-
Ibid,
p.
81.
49-
Al-Istislh is
sometimes
known
as al-rnislih al-Mursalah which gives the same meaning,
i.
e. public
interest.
50_
Mahmassani,
p.
86.
5 1_
See Schacht, J. An Introc
ction
to
IslnicLaw,
Oxford, Clarendon, 1964
13
favoured by
the
Mliki jurists, Ibn Qudma
and
Ibn Rushd, but
they
also occasionally
use
the term
al-istihsn
52
It has
also
been
utilised
by
the
judicial
and
legislative
authorities
from
other school of
thoughts
in
various parts of
the
Islamic
world.
53
The
only school which
does
not recognise the
use of the
public
interest is Al-Shfi`i.
According
to
Imam Al-Shfi`i, if it is
allowed,
it
can open
the
door
to
unrestricted use
of
fallible human
opinion since public
interest
will vary
from
place
to
place and
time to
time
54
1.2.2.4. Al-Istishb
Al- istish6
means a rule of evidence or a
legal
assumption of continuance
(al-hal). In
other words,
it is
an assumption
in
the
laws
of evidence that a state of affairs
known
to
exist
in
the
past continues to exist until the
contrary
is
proven.
Al-istishb is
accepted
as a secondary source of
Shari'a by
all schools of
Jurisprudence. For
example
the
presumption of
innocence
until guilt
is
proven
is based
on
the concept of al-istishb.
A
similar example
is
the
concept of
hdl in Islm. Everything is
considered as
hehrl
as
long
as there
is
no specific evidence
to the contrary.
1.2.2.5. Sadd
al-Zar'i`
(Blocking
the
Ways)
Sadd
al-zari`
literally
means
blocking
the
ways.
It is
not much
different from
a!
-
Maslih
al-Mursala.
This
concept
is
used
by Mliki
and some
Hanbali
under the
name
of al
Masdlih
a!
-Mursala.
Most
of
the
rules which are categorised under sadd al-
zari` can suit conveniently
into
the various secondary sources associated to
public
interest
or public welfare.
52
Doi, A. R. I., Shari `a- The Islamic Law, Ta Ha Publication, London, 1984,
p.
81.
53-
See Amin,
op. cit, p
11.
54
Doi, A. R. I.,
op. cit. p.
82.
14
1.2.2.6. Al-`Urf
Al-`Urj
55
is
the
custom of
the
majority of people concerning
their
practices and
words.
For
example
the
word
`walad' (boy) is
commonly used
for
male and not
for
female.
56
The
condition of
`urf is
that
it is
either a custom among
individuals in
a
certain society or
it is
commonly practised
by
the
majority of the people.
The
well-
known
statement
by Ibn Mas `nd is
quoted:
"What
the
Muslims
see good, surely
it is
good
in
the eyes of
God,
and
what the
faithful
think
is
ugly,
it is
also ugly
in
the
eyes of
God. "
57
Contemporary Islamic law,
as applied
in
various parts of
the
Muslim
world
has been
adjusted to various
levels in
order
to
adapt
the
original customs and
local
traditions
58
`UrJ is
grouped under two categories:
1-`Urf fsid. This is
the
practice of
the
community which
is
not compatible with
Shari `a law
such as
drinking
alcohol, usury, exposing
the
'aura
59
and other similar
practices.
This kind
of custom
is
rejected and
forbidden
and should not
be
practised
by
Muslims. 60
55-
'U, fmeans
custom and usage.
It is
also
known
as
"add.
56-
Bai"
at-ta'ati means a commercial
transaction which
is
carried out without prior
`aqd (agreement)
between
the
seller and the
buyer. Although in
accordance with the
Islamic law
of transaction, this
kind
of transaction
is invalid
as all transaction must
have
`aqd between both
parties.
However, for
small goods such as newspapers and sweets the transaction
is done
without an agreement
('aqd)
and
this
is
considered as a custom of society and
is
therefore approved
by Shari`a law,
although
it
contravenes the principle of transaction.
57-
See Al Ashbirh
wa al-Nar'ir, p.
182.
58-
Ibid,
p
14.
59-
The `aura
are parts of the
body from
men and women which should not
be
exposed according
to
Shariit law. `Aura for
women
is
all
their
bodies
except
face
and
both hands
while
for
men
`aura is
the penis
(qubl)
and posterior
(ckibr). For details
see
Sa-biq, S., Fiqh
al-Sunna,
Dar
al-Kitb al-'Arabi,
Beirut,
vol.
1,
pp.
125-7.
60
See Fauda, A. A. AI-hukmBimzAnzalallh,
Dar Al-Sahwa, Cairo. 1987,
p.
87.
15
2. `Urf
sahih.
This is
the common practice of society which
is
compatible with
the
Shari`a
teaching.
Shari `a law
recognises some of the
practices of
Arabs before Islam
such as
diya
which
is
paid
by
the
`gila (heirs
of
the
murderer) and
the
condition of
kcc'a
61
(equality) between
man and woman
in
marriage.
62
When
the
father
accepts
the
marriage of
his daughter
to a man whom
his daughter does
not
like,
the
father is
authorised
to
marry
his daughter
without
her
consent provided
that the man
has
satisfied the
requirement of
ka
a-
a. This
opinion
is held by
the
majority of
jurists.
63
`Urj is
considered as one of the authentic sources of
Shari`a law. The decisions
of
Imm Mlik
are
based
on the
`urj
of ah! al
Madcna (people
of
Madina). However,
the
opinions of
Imm Shfi`i
and
his
a
k&n
are
based
on
the
`urf
of ah! al-Misr
(people
of
Egypt). It is
clear that the
custom of people
is
recognised and acceptable
by Shari`a
law
as
long
as this custom
does
not contravene the
Islamic
principles.
61
KafXa
means equality.
According
to
Ibn Hazm,
any
Muslim
as
long
as
he is
not zni
(an
adulterer)
has
the
right to marry any
Muslirna (Muslim
woman) as
long
as she
is
not an adulterer.
Some
scholars
hold
the opinion that the meaning of
k4a-'a is
merely
for
religious practice.
All
who practice
Islamic
teachings are considered equal,
including
those who are poor, or come
from
the
low
class
descendent.
This
opinion
is
also
held by
the majority of
jurists
as they
state that the
f iq (sinful) is
not equal
with as
'iffa (decent). See Fiqh Al-Sunnq
vol.
2,
pp.
143-146.
62-
Khallaf, Abd Al Wahhb., MasdirAl Tashri ` Fi Ma La Nasa Fih, Al Buhnth Al Islmiyya, Kuwait,
1970,
p.
123.
63_
Ibid,
pp.
143-146.
16
Chapter Two
Crime (Jarima)
and
Punishment (`Uqba) In Shari'a Law
2.0. Introduction
This
chapter
deals
with crime
(jarinv)
and punishment
(`uggrba)
according
to the
Sharl'a law. The discussion
will
be
conducted
in
two
parts.
The first
part of
the
discussion
covers crime and
its
relevant
issues. The
second part of the chapter
touches
on punishments
in Shari`a law including fixed
punishment
(hudd),
retribution
(giss)
and
discretionary
punishment
(ta`zir).
2.1. Jarima (Crime) in Shari`a Law
The
root of
fanny
1
is 'jaram'
meaning offence, crime or sin.
2
Jarinia is defined
by Al-Mwardi
as
legal
prohibitions
imposed by Allah,
where
disobeying His
prohibitions entails punishment prescribed
by Him
either
by
hadd
or
ta`zir.
3
Some
Muslim jurists
apply
jarinrr
to any act
declared
unlawful
by Shari `a law
whether
it is
committed against
IsHun, life,
property of a person or against
dignity
and mind
.4
However
the
majority of
jurists define jarima
as offences resulting
in
the
loss
of
life
and
limbs
such as murder, causing
bodily injury,
physical violence or wilful abortion.
5
When
commenting on
the
definition
of
Al-Mwardi, 'Auda
says that the
definition
indicates
that the act, whether commission or omission,
is
only considered a crime or an
1- Jarima
and
jinya
are translated as crime and
the criminal
is
called nvjrim or
jni.
2-
Wehr, H.,
p.
121.
3-
Al-Mwardi, Abi Al Hassaa All M. H. (D. 450 A. H.
-
1509 A. D. ) Al Ahk nA1-Sultniyya, Al
Taufigiyyah Library, Cairo, 1978,
p.
192.
4-
Al-Zail'i, Fakbr Al Din B. 'Ali, Tabyin Al Hag'iq Sharp Kanz Al Daqdiq, 1st. Edi. Bulq, Cairo,
N. D.
vol.
6,
p.
97.
5-
'Auda, 'Abd
al-Qdir,
Al-Tashri `
al
lin i
al-Islmi,
Dar A1-Turkh, Cairo, N. D,
vol.
1,
p.
67.
17
offence when specific punishment
is
prescribed
for
each act
in Shari'a law
.6
Looking
at
the
definition
given
by
the
jurists, it
seems that there
are
three
major elements
that
may constitute crime
(jarirra);
prohibition, wilful
disobedience
and punishment.
In
other words, an act
is
not considered a crime
if it is
not prohibited
in Shari `a law. If
the
act
is
prohibited,
there
must
be
a
disobedience
or violation of this prohibition and
in
addition
this obedience must
incur
a punishment.
Only
when these elements are
present, an act can
be
considered a crime.
The definition
of
the
crime given
by Al-
Mwardi is
considered as comprehensive
because it
covers all
the
important
elements
of crime
(jarim2).
2.1.1. Crime: Problems, Causes
and
Effects
Crime is
a major public concern and a common problem of mankind everywhere
in
the
world.
All
countries regardless of
their status, whether
developed
or undeveloped
face
the
same problem.
In Britain, for
example,
five
million crimes were recorded
by
the
police
in 1993. The
number of recorded crimes almost
doubled between 1981-1991.7
Several
surveys and public opinion polls, showed that crime was perceived as one of
the
most serious
domestic
problems.
8
It is
clear
from
this statement
that crime still
remains an unresolved problems
in
spite of all efforts carried out
by
the
respective
governments to
solve
this problem.
When
discussing
crime as a phenomenon as well as a problem
in
society,
it is
necessary
to
discuss
the causes of crime.
It is
suggested
that
having
a proper understanding about
the
causes of crime, may
help in finding
the solutions
for
this
problem.
In
criminology,
the
search
for
the
causes of crime
is
sometimes referred
to
as
'etiology'.
9
However,
the
6-
Ibid,
p.
66.
7-
Report
of the
Board Governors Seminar, The BBC
and
the
Reporting
of
Crinw, BBC, London, 1995,
p.
8.
8-
Quinsy, Richard., The Problem
of
Crime, Dodd, Mead
and
Company, New York, 1975,
p.
195
9-
Ibid,
p.
123.
18
concept of causation used
in
the physical sciences cannot
be
applied
in
the
same way to
the social sciences.
10
The
above statements show
that the theory regarding
the
causation of crime
is flawed. However,
what can
be
said concerning
this
matter
is
that
there are some
factors
that
are
believed
to
play significant role
in
encouraging people
to commit crime.
The
causes of crime as viewed
by
the
criminologists may
be divided
as
follows:
i) Poverty
Criminologists
seem
to
acknowledge
that poverty
is
one of
the
factors
that motivates
people to commit crime.
Bottomley for instance,
asserted
that there must
be
a cause
and effect relationship whereby areas of poverty, poor
housing, illness
and
immigrant
population were
direct breeding
grounds of
delinquency
and'crime.
11
Marquand
figured
that there
is
a close relationship
between
poverty and
delinquency. She
added
that
in
the
1930s
a survey of
London life
and
labour found
that there was a criminal
concentration of
35.5
per
10,000 in
the
poor neighbourhoods and
10.3
per
10,000 in
the
rich.
12
The
research of
J. W. Douglas
on a national sample of children may strengthen
this
view
linking
poverty with crime.
The
research
indicated
that
15
to
20
per cent
from
manual workers'
homes had been
convicted of at
least
one offence
by
the
age of
seventeen, compared with only
10
per cent
from 'white
collar'
homes,
and only
5
per
cent
from
professionals and salaried
families.
13
There is
also a connection
between
crime and
the working class.
This
connection
has
now
become
a standard
hypothesis in
criminality.
This hypothesis is
supported
by
more than
a century of research
into
the social conditions of the
labouring
class and the
10-
Cantor, Nathaniel, The Search for Causes
of
Crimes, Journal
of
Criminal Law, Criminology
and
Police Science, 22 (March
-
April 1932)
pp.
854
-
63.
11-
Bottomley, A. Keith, Criminology in Focus
,
Martin Robertson, 1979, Oxford,
p.
54.
12-
Marquand, Diana., Crime: Causes
and
Treatment, Sheed
and
Ward, London, 1974,
p.
9.
13
Hall, Stuart.
and
Scraton, Phil., Law, Class
and
Control,
in Crime
and
Society, Fitzgerald, M.
Routledge
and
Kegan Paul, The Open University Press, London, 1981,
p.
481.
19
poor.
14
In
the
latest
report
by
the
BBC it
was stated
that
a
'small
number of
heavy
offenders account
for
a
large
proportion of convictions.
Their backgrounds
are usually
deprived;
one third of young men
in
prison were
in
care as children.
'
15
The
criminologists' opinions
in
this respect appear
to
be
compatible with
Shari `a law
that
believes
that there
is
a close relationship
between
poverty and crime.
For
this
reason,
the
Prophet is
quoted as asking
God in his
prayer
(du`d) for
a protection
from
poverty and
its domination.
16
It
may
be
suggested
that those who commit property
crimes such as
theft
and robbery commit
the
crime
for
survival and
for
their
families.
It is for
this
reason
that
in Shari`a law,
those
who
have
more
than
what
they need
in
either
food
or money are obliged
to
help
the
needy person
through an alm tax
(zaka).
17
It is believed
that
by helping
the needy persons, one of
the
factors
that
motivates
them
to
commit crime can
be
eliminated.
2) Fmironnentalln, 'iuence
Criminologists
also
believe
that
environment may play a
decisive
role
in
encouraging
people to
committing crime.
Young, for instance, holds
that crime
is
a product of the
wider society within which
the
individuals
exist.
18
Sapsford
also
holds
that
crime
is
a
result of the
pressure of
the environment.
19
These
opinions seem
to
be
very much
in
14_
Ibid,
p.
481.
15_
Report
of the
Board Governors Seminar, The BBC
and
the
Reporting
of
Came, B BC, London, 1995,
p.
9.
16
See A1-Bukhri, Muhammad Bin Ismail, SahihAI-Bukhdri, Dar Al Qalam, Beirut, 1987,
vol.
8,
p.
441.
17..
In
a
hadith
narrated
by Al-Bukhri,
the
Prophet is
quoted as saying that:
" Allalb has
made zak as a
duty
on rich
Muslims
towards those who are
in
need".
See Ibid,
vol.
2,
p.
592.
18-
Young, Jock., Thinking Seriously
about
Crime, in Crime
and
Society, Fitzgerald, Mike.. Routledge
and
Kegan Paul, 1981,252.
19
Sapsford, R. J. Individual Deviance, in Crime
and
Society, Fitzgerald, M. Routledge
and
Kegan Paul,
The Open University Press, London, 1981,
p.
311.
20
line
with
Shari`a
law. Hence, it is
not surprising that
Shari`a law
suppresses all
environmental encouragement to commit crime.
Intoxicants
and
drugs
are prohibited
and
therefore,
at
least in
theory,
unavailable.
Adultery
and sexual misconduct are
discouraged by
encouraging early marriage
20
requiring modesty
in dress
and conduct,
and prohibiting mixed gatherings of men and women.
Both
government and
individuals
are required to
care
for
the
poor so
that they
will not
be
compelled
to
steal.
21
3) Biological Effects
Some
criminologists seem to take a rather
different
view regarding
the cause of crime.
Some
of them
such as
Lombroso
relate crime to
man's physical nature and
have
come
to
believe
that
at
least
some criminals are
born bad
and
have little
choice
in
the matter.
22
Young
also
believes
that
biology
affects our powers of reasoning
23
and
this can
cause people to
commit crime.
Gall believes
that
criminals are
born
not made.
The
criminality
is inherited
and/or physiologically
determined.
24
Sapsford,
seems to accept
the
biological
aspect as a cause of crime although
he
also
believes in
other causes.
However,
he
asserts that not all criminals are
born
to the
role
25
of criminal.
Those
who view the
criminal
behaviour is
of genetic origin attempt
to
localise
emotional
function
within
the
brain
using either electrical stimulation or surgical
destruction
of
brain
cells.
26
Drugs
are also used
to
control violent and
impulsive
20
The Prophet
encourages the youths to get married as soon as they are capable of
doing
so.
See Sairih
Al-Bukhri,
vol.
7,
p.
6.
21-
Siddigi, M. I. The Penal Law
of
Isli
m
Lahore, Kazi, 1979,
p.
6.
22-
Lombroso, C. (1876) 'L'Liomo delinquente; Hoepli, Milan (Translation is from Sylvester, S. F. ) The
Heritage
of
Modern Criminology,
General Learning Press, Cambridge. 1972.
23
Young. J.,
op. cit, p.
252.
24-
Sapsford. R. J.,
op. cit, p.
311.
2-
Ibid,
p.
311.
26-
Ibid,
p.
322.
21
behaviour,
tranquilliser
in
particular
.
27
Another
way of controlling aggression
in
humans has been by
tampering
with the
patient's
hormone balance.
28
However,
there
is
no evidence
in Shari`a law
that
supports this theory.
If
children
behave like
their
parents,
it does
not mean that they
have inherited
this
behaviour
biologically from
their
parents
but
that this
behaviour is
related to
external
factors
such
as
lack
of religious and moral education.
These factors
are seen as an
important in
producing such
individuals. According
to
SharI'a law
a child
is born innocent.
Parents
are responsible
for
shaping
their child's
life. Concerning
this matter
the
Prophet
says:
"Every
child
is born
as a neutral
(fitra). It is his
parent who
subsequently converts
him
to
a
Jew
or a
Christian.
29
The haath
clearly states
the
importance
of the
parents
to
educate
their children.
If
the
religious can
be
changed through a proper education, there
is
no
doubt
that children can
also
be
educated to
be
good or
bad individuals. Dallos
asserts
that there are aspects of
the
family
environment that are conducive to
criminal or
delinquent development: bad
parental
example,
deprivation, lack
of contact with parents,
lack
of
discipline, lack
of
affection
and
influence
of media and
television.
30
27-
Ibid,
p.
324.
28-
Ibid.
p.
325.
29-
See
,
Sahib Al-Bukhdri,
vol.
8.
p.
510.
30
Dallos, Rudi, Moral Development
and
the
Fanily in Crinz
and
Society, Fitzgerald, M. Routledge
and
Kegan Paul, The Open University Press, London, 1981,
p.
373.
22
The Effects
of
Cri,
n
Crime is
one of
the
significant
factors
that
causes social problems
in
society.
The
criminal problem entails
loss
to
society.
Loss is
not only suffered
by
the
individual
victim
but
also
by
others.
It is
also a
loss
and waste
for
the
custodial officer,
the
policemen,
the
judges
and the parole officers as their
productive power
is
meant
to
be
directed
towards the
prevention and control of crime.
Loss is
also suffered
by
the
victim's
family
and
by
the
criminal's
family.
31
Crime
also affects state economically.
In America, for instance, it
was estimated
that
about
$ 815
million was spent
by individuals
annually as a result of crimes against
people,
$4 billion
as a result of crime against property,
$8 billion
as a result of
trafficking
in illegal
goods and service and
$2
billion
as a result of other crimes.
In
addition, governmental expenditure
for
the
control of crime
including
police, courts,
and corrections were estimated at more
than
$4 billion
a year.
32
In Britain,
the
public. expenditure on
justice
and
law increases
every year.
The
expenditures are
including
police
force, law
courts, prisons,
legal
aid, parliament and probation.
33
In
1982,
the
expenditure cost
the
state
2,780
million and
this
figure increased
up
to

14,515
million
in 1993.34
Crime
also causes
fear
about personal safety.
Many
people
have
an
intense fear
that
they
will
be
confronted
by
a stranger on
the street or
that a stranger will
break into
their
homes
to
attack
them.
These fears have brought
about a change
in
the
lives
of many
persons.
35
People
who
have
experienced of
being
attacked,
for instance,
suffer
31_
Sykes, G. M. CrinE
and
Society, Random House, New York, 1967,
p
4.
32
Quinney, R.,
op. cit, p.
195.
33-Central
Statistic Office, Social Trends 1995, A Publication
of the
Government Statistic Service,
London, 1995,
p.
170.
34_
Ibid.
35
Ibid,
p.
195.
23
constant
fear for
their safety.
They lose
trust
in
everyone, even
in
those closest to them.
The
crime experiences make their
lives
miserable
for
a
long
time
and
in
some cases
for
their whole
life.
2.2. Ahliyya (Legal Capacity)
and
Crime in Shari`a Law
It is
a common rule
in Shari`a law
that
only those who
have
ahliyya
(legal
capacity)
are
liable for
punishment when committing crimes.
Hence,
this
section will
discuss
the
criteria that make people responsible
for
their
acts.
These
criteria may
be divided
as
follows:
1) The
age of puberty
(bulgh)
The
age of puberty
(bulgh)
of an
individual is
regarded as a vital element
that
transforms
his
or
her life. Once
a man or a woman attains
the age of puberty,
it
means
that they
have begun
a new era or
their
lives.
36
They have
a
freedom
and at
the same
time
are accountable
for
whatever acts
they commit.
37
Thus
a child who
has
not yet
attained
the
age of puberty and adulthood
is
not
liable for hadd
or giss punishment
regardless of what
kind
of crime
he has
committed.
In
this respect,
the
Prophet is
quoted as saying:
" The
punishment will
lapse from
three categories of people; an
insane
person until
he
regains consciousness, a sleeper until
he
wakes up and a
child until
he has
a wet
dream. "
38
(attains
the age of puberty)
However, it is
noteworthy
that,
although a child offender can not
be
punished
for
his/her
crime under
hadd
or g44F,
it does
not mean
that
he/she is left
to commit crime
36_
Al-ZargX, Mustafa., Al-Madkhal AI-Figh ALAm, Matba'a A1-Jmi'a Al-Sriyya, Damascus, 1958,
vol.
2,
p.
770.
37-
When
a person
becomes baligh,
he has
to comply with all obligations such as zaka
from his
property;
and restrain all prohibitions such as zind.
See Al Ashbh
wa al
Naz ir,
pp.
387-88.
38-
See Musnad Ln
vnAhnr4 vol.
2,
p.
253.
24
and cause
trouble
in
society.
The
ta'zir
punishment can
be
applied
to
him
to
protect
society.
39
He
may
be
put
in
a rehabilitation centre or a similar place
to
prevent
him
from
committing
further
crime on
the
one
hand
and
to
rehabilitate
him
on
the
another.
The
age of puberty
has
never
been ignored by
the
jurists
when
discussing
Shari `a law.
It is
almost
inevitable
that
all
discussions
regarding the obligations
in Shari `a law
such
as prayer and
fasting
as well as matters concerned with the crime, are accompanied
by
the
discussion
concerning the
age of puberty.
However,
there
is
no consensus among
the
jurist
regarding
the minimum age of
puberty.
Some
of them
are quoted as saying
that the
age of puberty
for
man
is fifteen
years old.
40
This
opinion
is based
on a
hadith
reported
by Ibn 'Umar,
who said
that
he
was refused
by
the
Prophet
to
participate
in
the
battle
of
Uhud
when
he
was
fourteen41
but he
was allowed when
he
was
fifteen
42
Mughirah however is
quoted as saying
that
"I had
a wet
dream
when
I
was
twelve".
43
The
minimum age of puberty
for
woman44
according to
some
jurists is
nine years old
based
on
hadith 'A'isha.
45
The hadith
reported that
'the Prophet
married
'A'isha
when she was seven years old
but
the
Prophet
only
lived
with
her
when she was nine years old.
'46 According
to
Al-Shafi'i,
whoever reaches the age of puberty either
by
producing sperm or
by
wet-dreaming
for
men or menstruation
(hakt) for
women will
be liable
to punishment
if
they are
found
guilty of a crime.
If
they
do
not experience any of
the above criteria they are
39
According
to
Al-Sayuti,
ta'zir punishment can
be inflicted for
nt
'siya (sin)
which
is
not punishable
by hadd
or
kafra.
40
See Al Ashbh
wa at
Naz ir,
pp.
393.
41
See $ahih Al-Bukhri,
vol.
4,
p.
352.
42-
Al-Shfi'i, Al-'Unsre Dar
al-Marifa,
Beirut,
vol.
5,
p.
147.
43
See Sahih AI-Bukhri,
vol.
3,
p.
352.
44-Some
jurists hold
that the minimum age of puberty
for
a woman
is
an early nine years and some
others
hold, it is
nine and
half
years old.
See Al Ashbh
wa al
Naz ir,
pp.
393.
45-
Ibid,
vol.
7,
p.
40.
46
Al. 'Umm,
p.
147.
25
considered to
attain the
age of puberty when they
reach
the
age of
fifteen.
47
ii)
Consciousness
The
second element
in
the
issue
of
legal
capacity
is
consciousness.
Consciousness is
also one of the
elements required to
make the
offender
liable for
punishment.
Although
the
hadith does
not clearly mention the
word consciousness,
it
mentions
the sleeper
(al-
nim)
instead. It is
understood that the
one who
is in deep
sleep
is
considered as
unconscious and therefore
has
no
freedom
either
to
accept or
to
reject any act
done
to
him/her. If for instance,
a man
has
a sexual
intercourse
with a woman who
is
asleep,
the
woman
is
not
liable for hadd
of zin simply
because
the
act
is done
while she
is
unconscious and therefore the act
is
carried out without
her
consent or without
her
freedom
of choice.
Hence,
she cannot
be held
responsible
for
the
act
that occurs
beyond her
control.
Apart from
sleeping, the unconsciousness may also
happen
through
drugs
or alcohol.
However,
the way the
offender
becomes
unconscious should
be
considered.
There is
a
consensus of
the
jurists
that those who are given
drugs
or any
intoxicated
substance
that
causes the
person
become intoxicated
48
and subsequently commit crimes are exempted
from
any
liability for
punishment.
However,
the
jurists have
rather
different
opinions
if
the
offender
himself
takes
a
drug
or
drinks
alcohol
that causes
him intoxication.
According
to
Ibn Qayyim (d. 751 AH), Al-Karakbi (d. 410 AH)
and
Ab Yvsuf (d. 182
AH),
the
act of
the
intoxication is invalidated
regardless of the
substance that
intoxicated
him. Ibn Hazm in line
with
the
first
view asserts that
no retaliation
(or
punishment)
is due
against an
intoxicated
person
for damage he
causes while
intoxicated,
no
indemnities
should
be imposed
on
him,
nor
he is liable in
any other way.
47-
Ibid,
p.
148.
48-
One is
considered as
being intoxicated
when one
is
unable to
differentiate between
one's wife and
one's mother or
between
sky and earth.
See Al Ashbh
wa al
Naz
ir,
p.
384.
26
He is imprisoned, however
until
he desists from further harm
and
becomes
sober.
49
Most jurists however do
not examine
the
intoxication itself but
rather
its
causes and
whether
it
results
from
choice or coercion.
If
the
intoxication is
a result of
the
offender's own choice
he
will
be held fully
responsible
for
all as
he
carries out.
If
the
intoxication is
caused not
by his
own will or
he is
given
the
intoxicating
substance
unknowingly,
he
will not
be
subjected to the punishment.
50
After
analysing
three
opinions given
by
the
jurists, it
seems that the opinion of
the
majority of
the
jurists is
the preferable one
in
this
respect.
There is
an agreement
among
the
jurist
that those
who
lose
their mind
because
of a substance given
to them
by force
or coercion should not
be
punished
because
the
intoxication is
not a result of
their
choice
but
another person's.
It is injustice
to
punish a person who commits
something that
he
would not
be
willing
to
do in
normal circumstances.
However, it is
wrong
to
generalise
the state of
intoxication
and rule out all punishment
for
those
who commit crime
in
this condition without considering
the causes
that make
the
person
become intoxicated. By
giving
the
exemption of punishment regardless of
whether the
intoxication
was voluntarily or
forced,
there
is
a
danger
that this
may
be
used as an excuse
for
certain groups of people
to escape
the punishment.
They
may
drink
alcohol or
take any
intoxicating
substance
before
committing crime so
that they
can escape the
punishment.
Although
some might argue
that some
kinds
of crime such
as theft
or robbery can not
be
committed while
intoxicated
as
these
kinds
of crimes
need a
full
control of mind, some other crimes such as murder or rape might
be happen
in
this
condition.
Therefore, it is
suggested
that those who
know
the prohibition and
the
effect of alcohol and
drugs but
choose
to
drink it
of
their
own
free
will should not
be
exempted
from
punishment.
49_
Babnasi, Ahmad Fa[hi, Criminal Responsibility in
the
Islamic Law,
in Bassiouni, M. Cherif, The
Islamic Criminal Justice Systen=
Oceana Publications, London, 1982,
p.
188.
50_
Ibid.
27
iii) 'Aqi (Free Will)
The
third
criterion
that
makes a person
liable for
punishment
for his
crime
is `aql (free
will).
If
an
insane
person
is found
guilty of committing crime
he
or she
is
not
liable for
any punishment
because he has
no ability
to
differentiate between
right and wrong.
In
this way crime committed cannot
be
attached
to
him
or
her. The insanity
51
may also
be interrupted (sporadic). In
this type
of
insanity,
the
responsibility of
the offender
is
subject
to
his
condition.
If
the
act of crime
is
carried out while the offender
is insane,
he
will not subject
to
a punishment.
However, if
the
person accused commits a crime
while
he is
sane,
he
will suffer
the punishment
for his
act.
52
These
are
three
important
elements of
legal
capacity
in
the
Shari`a law. Those
who
meet these criteria are considered as rrvkallaf and therefore
liable for
punishment when
they
commit crime
in
normal circumstances.
However,
there are certain
circumstances where
the
responsibility of
the
person who commits crime
is
withheld.
The
offender
is
not
liable for
punishment
for
the
crime
he
committed
in
this
following
conditions:
1) Mistake (khata)
A
person who commits crime
by
mistake,
in
other words without criminal
intent
will
not
be held
responsible
for his
crime.
In
this
respect,
the
Prophet
ruled
that:
"My
community
is forgiven in
three situations; mistake,
forgetfulness
and the one who
is
coerced"
53
51_lasaniry
means a
derangement in
one's power to
discriminate between
what
is
good and what
is bad,
or
in
ability to
know
such a choice exists.
Insanity
may
be
total
and completely
blocks
one's rational
and
discriminatory
capability and total
by
vitiate one's perception.
This is
called prolonged
insanity.
See Ibid.
p.
186.
52-
Ibid,
p.
186.
53_
Hadith
narrated
by Ibn Mja
and
Al-Baihagi,
see
Al-Bugha, Mustafa., Al-Wgfi fi SharhAl Arba`in
al-
Nawwiyya, Dar Ibn Katlvr, Beirut, 1986,
p.
327.
28
The hadtth
gives a clear
indication
that those
who commit crime
by
mistake are
forgiven
simply
because
they
have
no
intent
to
commit an
illegal
act.
What has
happened
was out of
their control and
therefore they should not suffer any
consequences of
their act.
The
consequences
in
this case are mainly referred
to the religious matters, which
means
that the offender of
this crime will not
be
seen
to
have
sinned
for his
act
in
the
hereafter. Nevertheless, in
the case of
death
resulting
from
a negligent act
(gatl
al-
khata),
the offender
is
still
liable for
compensation
known
as
diya. Diya in
this case
may not
be
considered a punishment
because
the
offender
has
no criminal
intent in his
act,
but
rather as compensation
to the victim's
family for
the
loss
they suffer as a result
of
this
mistake
by
the offender.
2) Forgetfulness (nisyn)
Forgetfulness in Shari `a law is
normally related
to the religious
obligations
such as
Salat, sawm
(fasting)
or zaka
(alm
tax)
54
where
those who
forget
to perform
the prayer
are not sinning.
55
In
the context of crime,
forgetfulness is
not applied
to a crime such
as theft
but it
may
be
applied
for
an act of omission
that
leads
to crime.
For
example,
if
a person
forgets
to
feed
a
baby
who
is left for him
to
look
after and
the
baby dies
as a
result, this
person
is
not
liable for
a punishment
for his
act simply
because he had
no
criminal
intent
to commit
the crime.
3) Coercion (Ikrh)
Coercion (ikrih)
may also
be
excluded
from legal
capacity
for
crime as clearly stated
in
the previoushadcth.
Those
who are coerced
to commit a crime will not suffer any
54
Although those who
forget
to administer
these obligations are not sinning, they are required
to
do
so
when
they recall.
See Al Ashbah
wal
Nazdir,
p.
340.
55-There
is
a principle of
figh
which states
that sins are not applied
for
an act carried out with
forgetfulness
and
ignorance
of
hukm (ruling). See Ibid,
p.
339.
29
punishment.
Coercion
that
removes
the
responsibility of the
person accused
is
governed
by
certain conditions.
They
are:
i) The
compeller must
be
capable of carrying out
the threatened
harm.
ii) The
compelled person must
believe
the
compeller that
if he does
not comply with
the compeller's
demand,
the
harm
promised
by
the compeller will
be inflicted
upon
him.
iii) Coercion does
not entails
the
violation of
the
property or other
legal
rights such as
selling or
damaging
someone's property or accusing
him falsely.
iv) What
the
person
is being
compelled
to
do
must
injure
one's self or unlawfully
induce
a sense of
fear.
56
Another
element that
should also
be included in
this
context
is
an
ignorance
of
hukm
(ruling). It is
agreed among
the
jurists
that
one who commits crimes such as
drinking
alcohol, one
is
not
liable for
punishment either
hadd
or
ta`zir.
57
If
one
kills
and one
has
no
knowledge
of the prohibition of
killing,
one
is
not
liable for
qisas.
58
This
element
is important because
some people especially
those who newly convert
to
Islam,
may not
have knowledge
on certain prohibitions and consequently commit
them.
In
this
case they
will
be
responsible
for
their
acts.
2.3. The Role
of
Spiritual Aspects in Crime Prevention in Shari`a law
Shari'a
law
regards spiritual aspects as
important
elements
that
have
significant
impact
on mankind.
The
spiritual aspects according
to
Shari`a law have
the capability to
prevent crime.
Thus, it is
not surprising
that
Shari`a law is
greatly concerned with
these
matters.
Spiritual
aspects
in Shari`a law
can
be divided into
two major parts;
`agida
and
`ibda
56-Bahnasi,
Criminal Responsibility,
p.
190.
57-
See Al Ashbh
wad
Naz ir,
p.
342.
58-
Ibid,
p.
353.
30
`Agida is
regarded as a
fundamental
part of
Islazn. It
can
be
summarised
in
the
six
pillars of
Lmdn
59
that
include belief in God, belief in
the
Angels
of
God, belief in
the
Messengers
of
God, belief in
the
Holy Books, belief in
the
day
of
judgement
and
belief
in
the concept of gag' and qadr
(cause
and effect).
It is believed
that
by having
a
firm belief in
these
pillars of
imn
one
is
a
true
believer.
As
a
true
believer,
one
has
a spiritual strength
that
prevents one
from
committing crime
and other prohibited acts.
Believing firmly in
the
existence of
God, knowing His
attributes and at
the
same
time
having
an awareness of the presence of
God
will encourage people
to
have
the noblest
of
human
qualities and
to
fashion
their
life in
virtue and godliness.
60
The knowledge
of
God's
attributes could purify man's mind and soul,
his beliefs,
morals and actions.
61
Belief in
other pillars of
imrrn
especially
in
the
day
of
judgement
which
includes
belief in heaven
as
the
reward
for
good
deeds
and
hell fire
as punishment
for bad deeds,
suggests that
in
one way or another
has
the
same effect as
belief in God, i.
e. spiritual
strength.
With
this spiritual strength
it is believed
that the
believer is
capable of
preventing themselves
from
committing crimes or evil
deeds
and
this
is
stated
in
hadith:
"When
an adulterer commits
illegal
sexual
intercourse
then
he is
not a
believer
at
the time
he is doing it,
and when somebody steals, then
he is
not a
believer
at
the time
he is
stealing"
62
59-
fni is
a
belief. One
who
believes in
six pillars of
In- is
called
Mu'min.
60
Mauddi, S. Ab
al-A'la,
Towards Understanding Islam, Idrat Tarjumn
al-Qur'a,
Lahore,
Pakistan, 1974,
p
20.
61
_Ibid.
p21.
62
-See
Sahih Al-Bukhri,
vol.
7,
p
198
and vol.
8,
p.
566.
31
Thus, it
can
be
said
that
if
people
believe in
all
these pillars of
'im
an and
become
true
believers,
they would assuredly
be
very careful
in
their
actions and consequently
criminal activities and crime rates would
be
reduced and people would
live in
society
without
fear. By believing in
these pillars, one
has
two
barriers
that prevent one
from
committing crimes.
Believing in God
and
the
fear
of
hellfire is
one
barrier,
as
this
fear
will prevent one
from
committing any crime.
If
this
fear is
not strong enough
to stop
him/her from
committing crime,
the second
barrier i.
e.
the
harsh
punishment, might
be
able
to
prevent one
from
committing crime.
These
two
barriers
are considered a
double
protection
that
is
a powerful
force
to prevent an
individual from being involved in
criminal activities.
Another important
spiritual aspect
in Shari`a law is `ibdddt (worship).
Through
these
practical obligations such as prayer
(;
aldt)
,
alms
tax
(zaka), fasting (sawm)
and
pilgrimage
(hajj)
,
Muslims
can show
their
devotion
and sincerity
to their creator
Allh
and at
the
same
time strengthen
their
'inrin. Through 'imn in
all pillars of
'Ini
n and
regular
`ibdt, it is
suggested
that the
Muslim
will
be
guided
to the right way and
prevent them
from
evil
deeds.
2.4. Punishment ('Uquba) in Shari`a Law
Punishments
under
the
Shari`a law
are grouped under three categories;
fixed
punishment
(huckid),
63
retribution
(giss)
64
and
discretionary
punishment
(ta`Zir)
65
63
Hudd is
plural of
hadd,
which means
'prevention, hindrance,
restrain, prohibition.
It is
a restrictive
ordinance or statute of
Allah in
respect of things
lawful
and unlawful.
1Yudd
offences are crimes
against
the community whose punishment
is
specified
by
the
Qur'an
and the
Sunna.
64
Qiss
are crimes of physical assault and murder, which are punishable
by
retribution
`the
return of
life for
a
life in
case of murder'.
The
victim or the surviving
heirs
may waive the punishment and ask
for the compensation either
diya (blood
money) or pardon the offender.
See Siddiqi, Penal Law
of
Islwn,
p.
52.
32
2.4.1. Fixed Punishments (Hudd )
Fixed
punishments
(hudd)
are
the
punishments
that
are prescribed
for
crime against
society which are also
known
as
the
rights of
Alldh (haq Allah)
66.
Hudd
are applied
to
seven
types of crimes.
These
are: adultery
(zin), defamation (gadly9,
theft
(sariga),
drinking
alcohol
(shurb
al-khamr), armed robbery
(hirdba),
apostasy
(ridda)
and
rebellion
(baghy). However,
out of
those
seven only three crimes are agreed
by
the
majority of
jurists
as
hudd. These
are:
1) Zini (fornication)
2) Qadhf (
wrongfully accusing a person of
having
sex)
3) Sariqa (theft)
The
reasons why only
these
crimes are considered as punishable
by hadd by
the
majority of
jurists (jumiwr)
are as
follows:
1) Among
the
punishments
prescribed in Shari'a law,
only
these three crimes were
dealt
with
directly by
the
Qur'n
while other punishments are prescribed
by
the
Sunna.
2) These
three
crimes are purely against
the
community of
haq Allah (the
right of
All5h).
67
It is
not surprising
that some crimes
that also
involved haq Allah
such as
hirba,
are not
included in
this category.
The
reason
is
simply
that
hirba is
not only
involved
with
hagAllah but
also
hagAl-'Adern i.
6-
Ta`zir
offences are those whose penalties are not
fixed by
the
Qur'n
or
by
the
Sunna but
are within
the
discretion
of
Q44..
66-
A1
mal-Sultniyya, pp.
192- 195.
Haq Alldh is
the right of
Allah. All
punishment prescribed
for
this category of crimes are not negotiable.
All
hudd
punishment are considered as
hagAllah
where no one could
interfere
either to
lighten
or make
harsher
to which
have been
prescribed.
According
to
Al-Mwardi,
the
'right
of
A115h' become
rather similar to the
'right
of state' which are
also said
to
be involved in
many cases of offences against the
public
interest. See Al-Mwardi,
p.
118.
67-
In Shar it law
crimes may
be divided into
three categories: purely the
right of
God,
purely
haq
al-
Mani (the right
of
human)
and the right which
is
part
hagAllh
and past
haq Al- Adami
.
33
Thus, hirba is
excluded
from
this
category.
3) It
may also
be
said
that those
crimes cause the
most
harmful
effects
to
society and
therefore the
punishments
for
these
crimes are specified
directly by
nass
(texts
either
from
the
Qur'.
n or the
Sunna). The Muslim judges
neither
have
power
to
lessen
the
punishment nor to
make
it heavier.
Whenever
the
crimes are committed,
the
punishment must
be
applied without
delay
after
the
judgement
according to the nass
(texts
either
from
the
Qur'an
or
the
Sunna),
because
the criminals, victims or utz1i-al-dam
(heirs
of the victim
) has
no right
to give a
pardon
for
these crimes and punishments
that
relate to the right of
God.
2.4.2. Qiss (Retribution)
The
word g4;
is derived from
an
Arabic
word
'gassa'
meaning cut or
follow his
track
in
pursuit,
68
and
it has
therefore come
to
mean
law
of equality or equitable retaliation
for
the
murder already committed.
The
treatment
of
the murderer should
be
the same as
his
act.
In
other words,
his
own
life
should
be
taken
just
as
he
took the
life
of
his
fellowman. However,
this
does
not mean
that the offender should also
be killed
with
the
same
kind
of
instrument
or weapon.
Most
of
Shari`a
criminal
law is based
on
the
law
of retribution.
Allah
states clearly
in
the
Holy Qur'n:
"There is
a
life for
you
in
retribution"
69
Qiss has
the
original
independent
character and
it is
therefore
affected
by
the
determination
of
the
individual
victim who may wish to
use
his
right of retribution or
68-
See Wehr, H.,
p.
765.
69
-. '
,
2: 179.
34
alternatively
decide
to
accept
blood
money, or waive
his
right to
either of
the two
penalties.
The
punishment that
is
prescribed
by
the
nass
(either
the
Qur'n
or
the
Sunna)
for
this
category may
be divided into
two
categories:
a)
Crin-e
which
involves honicide
Crimes
that
involve homicide
are threefold:
i) Qat!
-al-'anid
(premeditated
murder
)
One is
considered as committing premeditated murder
if he
accompanied
his
acts with
the
intention
of
taking
a
life. In
other words,
if
the
act
is
not accompanied
by
the
intent
to take the
victim's
life
e. g. to give
the victim a
lesson
or merely
to
assault
him,
the
person accused
is
not considered as
having
committed premeditated murder even
though
the
act
has
resulted
in
the
death
of
the victim.
70
Those
who are
found
guilty of murder
of this
degree
will suffer agiss punishment.
In
this
respect
the
Qur'n
says:
"We
ordained therein
for
them:
Life for life,
eye
for
eye, nose
for
nose,
ear
for
ear,
tooth
for
tooth,
and wounds equals
for
equal.
"
71
This
verse clearly prescribes retribution
(gisiis), i.
e.
life for life
as
the
punishment
for
premeditated murder.
In
other words, those
who are
found
guilty of premeditated
murder will suffer
the
death
penalty as a result of
his
crime, unless
he is in
the
condition
that
was
discussed before.
In
the
case of premeditated murder
(gati
al-`ate),
the giss will not
be
applied
if
the
family
give a pardon to the
offender and
if
they
do
not request
diya. However
the
judge
is
authorised to
inflict
ta`zir
punishment as a protection to
society on the one
hand,
and
as a reminder to the
offender and to the community on the
other.
In Shari`a law
crimes
will not
be left
without punishment though
it
might
be less
than the
actual penalty
i.
e
giss.
70..
'Ruda,
vol.
2,
p.
10.
71-
Qur'n, 5: 45.
35
ii) Qati
shibh
-al-`amd
(quasi-
premeditated murder)
An
accused person
is
considered as
having
committed a quasi-premeditated murder
(gatl
shibh a!
-'amd)
if he has
a criminal
intent
to
kill his
victim and
the
instrument
used
in
the
killing
would not normally used
for killing,
e. g. a small cane or small stone.
n
If
the
victim
dies
as a result of one or
two
hits by
a
light
cane or a small stone,
the
killing
is
considered as quasi- premeditated murder
(qati
shibh al-`amd).
73
The
punishment
for
the quasi- premeditated murder
is diya.
74
iii) Qatl-al-khata' ( death
resulting
from
an erroneous act.
)
A
person
is
regarded as committing qatl-al-khata'
( death
resulting
from
an erroneous
act) when
he/she is
executing an act
that
is
permitted
to
him/her
to
do
so such as archery
or
digging
a
hole but has
resulted
in
the
death
of a victim without
his/her intent.
75
There
are
two
punishments prescribed
for
this offence; minimum
diya (diyn
al-Mukha qfa)
and expiation
(ka,,
ara) which
is
either
by freeing
a
Muslim
slave or
by fasting
two
months consecutively
if he/she is
unable to
free
a slave.
b) Crimes
that
involve
things
odzer
than
honicide.
The jurist is
of the opinion
that all
kinds
of
hurts incurred
on
the
human body by
others
n
Fiqh Al-Sunnah,
vol.
2,
p.
518.
73
This is
the opinion of
Ab Hanifa, Al-Shfi'i
and the majority of the
jurists. Mlik
and
Al-Laith
however hold
a
different
opinion.
They
view that this
kind
of
killing is
gatl al-`anrl as there
is
an
instrument
used
in
the
killing
even though the
instrument is
not normally used
for killing. Thus,
according to this opinion, those who are
found
guilty of
this crime are
liable for
giss.
See Fiqh Al-
Sunnah,
vol.
2.
p.
518.
74-
Diyu for
quasi- premeditated murder
is
a
hundred
camels.
This is
considered as the
basic
punishment
for
quasi- premeditated murder.
As
of
1989,
the
diya
payable
in Saudi Arabia for
the
death
of a
Muslim
male was about
$ 32,000, $ 16,000 for
the
death
of a
Muslim female
or non-Muslim male,
and
$ 8,000 for
non-Muslim
female. See Karl, David J., Islamic Law in Saudi Arabia: What Foreign
Attorneys Should Know, George Washington Journal
of
International Law
and
Economic, 1991,
vol.
25,
no.
1,
p.
163.
75-Fiqh
al-Sunnah, vol.
2,
p.
518.
36
other
than
killing falls
under this category of crime.
76
This
category of crime may
be
divided
as
follows:
i) Jarima-al jarah
wa-al
darb-al-`amd
(offences intended
to
bodily harm
other
than
homicide). The
person accused
is
perceived as committing an
intended
offence when
for instance he
throws
a stone at
the victim with the
intent
of
hurting him. Those
who
are
found
guilty of
this
offence are subject
the giss punishment.
ii) Jarir
v-a!
jarah-wa-al darb-al-khata' (unintentionally
causing
bodily harm
offences
other
than
homicide). The defendant is
regarded as guilty of
this
category of crime
if for
instance he
throws
a stone
from
the window without
having
an
intention
to
hurt
anyone
but
the stone
hurts
someone
in
the street.
For
this offence,
the
offender
is
not
liable for
giss punishment
but
rather
for
paying
blood
money
(di)&)
or arsh.
77
2.4.3. Tazir (Discretionary Punishment)
The
root word
for
ta`zir
is `azara
which means
to censure, rebuke, reprove, or
reprimand.
78
`Auda defined ta`zir
as punishments
for
the offences which are not
prescribed
by
the
Qur'n
or
the
Sunna
as
hudd.
79
According
to
Shari`a law,
the
punishment of
ta`zir
can not
be imposed
except
in
cases of
disobedience. Nevertheless,
Islamic jurisprudence
recognises an exception to this rule so
that ta`zir
can
be imposed
for
actions that
are not prohibited per se
if
the general good of
the
community require
iL
8o
76-'Auda,
vol.
2,
p.
204.
77-
Arsh
and
diva
give the same meaning
in
the
Shari`a law
which
is blood
money; a
kind
of
compensation given to the victim or victim's
family for
the crime
inflicted
on the victim.
Some
scholars use the term
diya for
the
injury in
the
head
and
face (al-Shgj i)
while other use arsh
for
shajgj.
See 'Auda,
op. cit, vol.
2,
p.
280,
see also
Fiqh Al-Sunnah,
vol.
2,
p.
562.
78-
Wehr, H.,
op. cit, p.
610.
79-
'Auda,
vol.
1,
p.
685.
80-
Al-Sleh, Osman Abd Al-Malek, The Right
of
the
Individual
of
Personal Security in Islam, in
Bassiouni, M. Cherif,
(ed) The Islanic Criminal Justice System Oceans Publications, London.
1982,
p.
60.
37
The Qdi
can select a proper penalty according
to the circumstances of each case; the
background,
the
personality of
the
offender and
his inclination
toward
criminal conduct.
In
assessing
these
factors,
the
QdA
may rely on
his
own experience,
knowledge,
perception and
be
may also consult experts
he deems
necessary
to
help him
to
better
understand
the technical
problems
involved
or the psychology of the offender so
that the
penalty will
be imposed
and the
ends of
the
justice
served.
81
The
punishment must
thereby
in
this way,
be
suited
to the
crime,
the
personality of
the
offender,
his degree
of
social adaptation and
the
protection of society.
82
As
these
punishments are not mandatory and not specified,
they can
take
any
form
and
Are
at
the
sole
discretion
of
the
Qdi
who considers
the circumstances of any given
case.
As
such the
judge
may simply admonish
him
or give
him
a
disapproving look
or
give
him
a more severe punishment such as
flogging, imprisonment
and,
in
some cases
the
death
penalty.
83
Ta'zir
can also
be inflicted
as an alternative punishment
for hudd
offences.
This
alternative punishment can
be
applied
in
cases where
there
is
a
the
lack
of evidence.
The
tdzir
punishment can also
be
an additional punishment such as exile
for
zing
84
according to
Abn Hanifa,
or the additional
forty lashes for
zin according to
Al-
Shfi `i.
85
81-
`Amir, Abd
al-'Aziz,
Al-Tazirfi
al-Shari aal-Islania,
Dr
al-Fikr al-'Arabi,
Cairo, 1969,
p.
53
82-
Al-Sleh,
op. cit, p.
60.
83-
'Auda,
vol.
1,
p.
685.
84
-
This
punishment can
be inflicted
on unmarried person who commit zfr
, See Sahih Al-Bukhri,
vol.
8,
p.
588.
85
-
`Auda,
vol.
1,
p.
685.
38
2.4.3.1. The Category
of
Ta'zir Punishment
The
category of punishment under
the ta'zir
may
be divided
as
follows:
1) Death Punishment
Concerning
the
death
penalty
in
ta`zir, the
jurists have different
opinions.
Some
of
them view that,
based
on
the
fact
that the
basic
objective of
ta`zir
punishment
is
correction, whatever punishment which
leads
to
achieving
this
objective
is legally
acceptable.
86
However
some other groups of
jurists
assert
that the punishment
for
ta'zir
should not
be
a
damaging
one.
Hence death
penalty as well as amputation can not
be inflicted for
the ta`zir
offences.
87
The
third
opinion
that represents
the majority of
jurist
opinions
is
that the
death
penalty as an exceptional case can
be inflicted
on
the
ta'zir
offender
if
the
general
interest (nnslaha
al-'&w) requires
this.
The death
penalty
for instance
can
be
carried out against
the
dangerous
offender who cannot
be deterred
except
by
this punishment.
Spies
and
those who regularly commit
dangerous
crime are
among the types
of offender who can
be killed for
their crime.
88
The Hanafis,
the
Hanbalis (especially Ibn Taimiya
and
his follower Ibn Qayyim)
and some
Mlikis
view
that the
death
penalty can
be inflicted
on
the
offender of
ta`zir
offences.
However,
the
Shfi'is
and
the
majority of
the
Mlikis do
not allow
the
death
penalty
for
ta'zir
offences.
They
prefer
imprisonment instead
to prevent
further
trouble
being
caused
by
the
offender.
89
2) Flogging (lam)
The
second category of crime
in
ta`zir
is flogging (lall). Flogging is
considered as
the
basic
punishment
in Shari`a law. It is
one of
the punishments prescribed
for hudz7d
as
well as
for
ta`zir
and
further it is
a preferable punishment
for
the
dangerous ta`zir
86-
Ibn Nujaim, Zayn Al Din B. Ibrahim, Al-Bahr Al-R iq Sharh Kanz Al-Daqaiq, Dar Al-Ma'rifa,
Beirut, 1993,
vol.
5,
p.
44.
87-
Al-Ya'mari, Ibrhint bin Muhammad.. Tabsira
al-Hukkmfi
'Usul
al-`Agdiya wa
Mannhij Al Ahkan;
Matb
a
Mustafa Al-Halabi, 1958,
vol.
2,
p.
264.
88-Ibn
Qayytm Al-Jauziyyah, Al-TurugAl-Hulvriyya, Maktaba Al-Madani, Cairo, N. D.,
p.
118.
89
Tabsira
al-Hukk n vol.
2,
p.
264, See
also
'Auda,
op. cit, vol.
1,
p.
688.
39
offences.
90
This kind
of punishment
is
considered preferable punishment
because it is
regarded as
the
most effective punishment to
prevent the
dangerous
and regular criminal
from
committing the
same crime again.
91
Furthermore,
the
flogging has its
own
advantages
for
the
state as well as
for
the
offender and
his family. The
state
does
not
have
to
make any
financial
commitment compared to
if
the
offender
is being
imprisoned. Flogging
also will not stop the social production
by
the
offender since
he is
free
to
return
to
his
work after
the
punishment
is
carried out, and
the
family
may not
severely suffer
because
as a
head
of
the
family he
can continue
his
work
to
support
his
family. It
may
be
that
in
some cases
the
offender
has
to wait until
he
or she
is fully
recovered
from
the
injury
received
through the
punishment,
but he
will nonetheless
be
able continue
his
normal
life
without
interruption. The
most significant aspect of this
punishment
is
the
avoidance of
imprisonment
and
the
unhealthy environment which may
affect
the
offender while
in
prison.
Regarding
the
maximum number of
lashes,
the
jurists
seem
to
have different
opinions.
Imm M51ik, for instance,
views that the
maximum number of
lashes is determined by
the
Qd It
can
be
more than a
hundred lashes
even
though the
severest punishment
for
hadd
is
a
hundred lashes.
92
Abn Hanzfa
asserts that the maximum
lashes
are thirty-nine
based
on
the
minimum punishment
for
slaves which
is forty lashes
while
his follower,
Abii Ysuf
views the maximum
is
seventy-five
based
on
the minimum punishment
for
freemen
which
is
eighty
lashes. Both Ab Hanifa
and
Abn Ysuf base
their
view on
the
same
haath
though they
have
rather a
different interpretation. The ha dz
states:
"He
who
imposes
a
hadd
punishment which
to
a non-hail prescription,
is
numbered among an oppressor
(nv'tadiin). "
93
90_
'Ruda,
vol.
1.
p.
689.
91-
Ibid.
pp.
689
-
90.
92-Tabsira
al-Hukkd
n vol.
2,
p.
262.
93
Hadith
narrated
by Ibn 'Umar. See Musnad ImamA{vmd,
vol.
2,
p.
444.
40
Al-Shfi'i has
two
different
views concerning
this
matter.
The first
opinion seems
to
be
similar
to the opinion of
Abn Hanzfa. The
second opinion
is
that the punishment can
be
more
than
seventy-five
lashes but
not more
than
a
hundred lashes.
94
Ln.
m
Ahmad,
however, holds
the
view
that the
punishment should not reach
the punishment
for hadd
for
the
same
type
of crime.
For instance,
the punishment
for
zin
is
a
hundred lashes.
95
Therefore
according
to this
view, the punishment
for
the
acts
that
lead
to zin, such as
being
with a woman who
is
not a wife or close relative
(nuhrim) in
a
doubtful
situation, sleeping
in
a woman's
bed
or
kissing,
can not
be
a
hundred lashes. However,
the
married adulterer can
be
punished more
than
hundred lashes because
the punishment
for him/her in
this case
is
stoning
to
death.
96
Ibn Taimiya
when giving
the example regarding
the
flogging
says
that
if
the
punishment
for
theft
is
an amputation,
ta`zir
punishment
in
money matters should not go
to this
extreme.
If
the
punishment
for
gadhf
is
eighty
lashes,
the punishment
for
swearing,
for instance,
should not reach
this
limit.
97
The
opinion of
Ahmad
seems
to
be
more practical
for
the
following
reasons:
1) The haath
that was quoted
by Abn Hanifa
as well as
Abn Ysuf,
even
though
it
was
not quoted
by Ahmad is
the opinion of
Ahmad. His
view seems
to
be in line
with
the
hadcth
and
does
not contradict
to
it,
although
his is
slightly
different interpretation from
that
of
Ab Hanifa
and
Ab Yiisuf. Ab Hanifa
and
Abii Ysuf have
specified
the
maximum punishment
for
ta`zir
and
they apply
this punishment
to
all types of crime.
Whereas Imam Ahmad
accepts
the
hadith
as
it is but
specifies
the
hatitfz for
every crime
that
has hadd
punishment.
In
other words,
Imam Ahmad
accepts the
hadcth but does
not
allow other punishments
to
apply
the
same punishment as
hadd. However he
applies
94
-
A! Ahkm
al-Sultwriyya, p.
206.
95-
It is
not worthy that the
hadd for
zina
in
practice can
hardly
ever
be inflicted
unless
the culprit
himself
confesses
his
guilt.
See Encyclopaedia
of
Isln
op. cit, p.
1227.
96-
Ibn Al Taimiyyah, Al Fatawa, Kurdstan Press, Cairo, 1911,
vol.
4, Al-Ikhtiarit,
p.
178.
97-
IbnTaimiya, A!
-Siysaal-Shar`iyya,
Matha'a
al-Sha'b,
Cairo, 1970,
p.
134.
41
this
hatth
to
certain
individual
crimes and not to
all crimes.
2) It is inappropriate
to
apply the
same rule
to
a
different kind
of crime.
It is
appropriate
that
different
crimes entails
different
punishments.
Therefore,
the
same rule
is
also
applied
in
ta`zir.
Thus
the
minimum punishment
for
a slave
in
gadhf
that
of
40 lashes,
or
80 lashes for freemen,
cannot
be
applied
for
other crimes.
Moreover,
the
seriousness of
the
crime
differs from
one to
another.
Therefore,
the
punishment
for
ta'zir
should also
be different. By
giving the
same punishment or
by
putting all crimes with
different
characteristic
into
one category,
the
objective of
ta`zir
punishment may not
be
achieved.
It is
unacceptable to
give
less
than
forty lashes, for
instance for
a crime conviction
for
which may
have
resulted
in
a
death
sentence.
The
Qdi has
the
authority to give a
lesser
punishment and
it is
sometimes considered
appropriate to
break
away
from
the
norm.
This
may put the
Qdi in
a
dilemma if he
considers that the
punishment should
be
more severe
for
the
seriousness of
the crime or
for
other reasons
he believes
valid.
3) Inprisorurent (nabs)
In Shari`a law, imprisonment
can
be divided into
two categories:
limited
and unlimited
period.
a)
Limited
period
Imprisonment for
a
limited
period
is imposed
on
the ordinary offender or,
in
other
words,
on
the
normal offences of
ta`zir.
For
the
serious
ta`zir
offences, the
jurists
prefer
flogging (laid)
to
imprisonment. The
minimum period of
imprisonment is
one
day
while the
jurists have different
views on
the maximum period of the
imprisonment.
Some
of the
jurists held
the
view that the maximum period of
imprisonment is
not more
than
six months.
Some
others assert
that the period should not
be
more than a year and
third opinion
is
that
it is for
the
Qdi
to
determine.
98
Imprisonment
can
be
combined
with
flogging if
the
imprisonment is
considered
insufficient.
99
When
a person
is
98-
Al Ahkm
a!
-Sultniyya, p.
206.
99_
Ibn Qudama, Al-Mughni,
Matba'a
Al-Imam, Cairo, 1964,
vol.
10,
p.
348.
42
imprisoned, he
should
be
treated
humanely
and with
dignity. Imprisonment did
not exist
in
the
days
of the
Prophet. However, in
the
case of a person
detained in
someone's
house during
that time the
Prophet
ordered that the
detainer feed
the
detainee
and
treat
him humanly
and with
dignity.
100
b) Unlimited Period
It is
agreed among the
jurists
that there
is
no
limit
to
imprisonment for dangerous
offenders or
for
those
who regularly commit crimes.
Those
who commit crimes
regularly such as murder,
injury
or
theft
but
are
for
one reason or another not punished
either
by lzadd
or qi
.s
can
be imprisoned
without
limit. The
offender
is left in
prison
until
he
appears to
have
repented.
If he
repents
he
will
be
released, otherwise
he
will
be
kept imprisoned
until
his death.
101
It is
also agreed among
the
jurist
that the
period of
imprisonment
should not
be determined because for
this
kind
of
imprisonment
no
specific time
can
be
specified.
4) Exile (nafi)
It is
agreed
by
the
jurist
that exile
(ncg) is
a
ta`zir
punishment except
in
zin.
In
ta`zir
the
punishment of exile
(ne
i) will
be inflicted if it is feared
that the criminal might
incite
others to commit crime.
According
to
Al-Shfi`i
and
Ahmad,
the
period of exile
(n4)
should
be less
than one year
102
because
the one year exile
(i41) is
the
punishment
for
zing.
103
Imm Mlik however,
view that the
period of exile
(n
i) can
be
more that
one year
because
this
punishment
is
not a
lzadd but
a
ta`zir.
104
100_
Bassiouni, M. Cherif, The Islamic Criminal Justice System Oceana Publications, London, 1982,
p.
xvii.
101_
Tabfiraal-Hukk
vol.
2,
p.
264.
102
-
Ibid.
p.
284.
103
See $h Al-Bukhri,
vol.
3,
p.
339.
104
-
Ibn Anas, Malik., Al-Mudawwana Al-Kubra Al-Sa'daPress, Cairo, 1905,
vol.
4,
pp.
429- 30.
43
Apart from
these
four
types of common punishment
for
ta`zir, the
Qdi
can also
inflict
other punishments on
the offender.
Punishments
such as crucifixion
105,
reprimand,
separation
(hijr),
threat
(tahdad), declaration (tashhir)
and
fine (gharwna)
can
be
imposed
when
the
Qdi
considers
them to
be
appropriate punishments
for
the offence.
The Qdi
also
has
the
authority
to
inflict
other punishments such as a
ban from
a certain
profession or
destroying
a
building
that
has been built
on a public place.
106
The
category of punishments
in Shari'a law
can
be
summarised
therefore as
follows:
1) Physical
punishment, e. g. amputation of
hands for
theft or whipping or stoning
for
adultery
.
2) Fiscal
punishments, e. g.
diya (blood
money), gharma
(fine)
3) Punishments
which restrict personal
freedom,
e. g. prison and exile
from
the
hometown
as a punishment
for
unmarried persons who commit adultery.
4) Alternative
punishments, e. g. warning, reprimand
(taubikh),
or rebuke.
2.4.3.2. The Distinction between
Ta'zir, Hudd, Qiss
and
Diya
Ta`zir
differs from
other prescribed punishments such as
hudd,
g4; and
diva
as
follows:
1) The
punishments
for hudd,
giss and
diya
are
fixed. The Qdi
under no
circumstances
is
allowed
to alter
the
punishment either
to
lessen it
or to make
it heavier
even
if
the nature of the
hadd
punishment
is
two combined with another punishment
such as
flogging. Each
punishment
is
considered one punishment and cannot
be
separated.
However, in
ta`zir the
punishment
is
not
fixed
and
the
Qdi
can choose any
105_
Crucifixion is
one of the punishments
inhira. In
ta`zir the offender will
be
crucified alive and
he
will
be
given
food
and
drink. He is
also allowed
to perform the prayer.
The
objective of this
punishment
is for
rehabilitation and at the same time
it
serves as propaganda
(tashhir). This is
a part
of punishment which can
be inflicted if
the
Qdi
considers
it
as an appropriate sentence
for
a specific
crime.
106
'Auda,
vol.
1,
pp.
701
-
705.
44
punishment that
suits
the crime.
2) The
punishment
for hudi d,
g4; and
diya
can not
be
pardoned or exempted
by
the
Qdi. In
ta`zir
however,
the
Qdi has
the
authority
to
do
this
regardless of whether
the
crime
involves
society or an
individual.
3) In hudd,
giss and
diya
the
crime
determine
the punishment
for
the offender,
whereas
in
ta'zir
both
the
crime and
the
offender will
determine
the
punishment.
In
other words,
the
punishment may
differ from
one person
to another even
though the
same
type of crime
is
committed.
2.4.4. The Objectives
of
Punishment in Shari`a Law
In Shari`a law
all punishments prescribed
have
objectives
to
be
achieved.
As
crime
has been
commonly regarded as an
indicator
that something
is
wrong
in
society,
107
the
punishment
is
considered
important
to
correct this wrong.
Among
other objectives
of punishment
in Shari`a law is
to protect
five fundamental
elements: religion,
life,
family (nasl),
property and mind
(`agl).
108
1. The
religion
The first
and the most vital element
is
religion of
Islm. The
religion of
Islm is
protected
from
any violation, either
from
the non-Muslims or
from Muslims
themselves.
The
aim of this protection
is
to create a proper atmosphere
for
practising
Islam. Protection
of
the
religions
does
not mean
that people
have
no
freedom
to
choose
their
religion.
As
a matter of
fact, Islm
gives a
full freedom for
people who are under
the
Islamic
authority to choose and practice
their religion without any restriction.
This
freedom is
stated clearly
in
the
Qur'an
:
"Let
there
be
no compulsion
in
religion,
truth
stands out clear
from
error,
whoever rejects evil and
believes in God hath
grasped
the most
107
Quinney, R.,
op. cit, p.
197.
108
See A1-Qardwi, Ysuf. Madkhal,
p.
60.
45
trustworthy
hand-hold,
that
never
breaks
and
God heareth
and
knoweth
all things.
"
109
However,
this
freedom is
not extended to the
Muslims
who abandon
their
religion.
They
are considered as committing one of
the
most serious crimes
in Islam, known
as
apostasy,
110
and
they
are
liable for
punishment according
to
Shari `a law.
111
Although
a state
is
not
included in
the
fundamental
elements
in Islam,
the state
however
plays a
decisive
role
in implementing Shari `a law. None
of
the
branches
of
Shari `a
law
can
be implemented
without
the
existence of
the
Islamic
state.
Hence,
protecting
Islamic
state security
is
part of protecting religion as well as other aspects of
community
interest. One
who
fights
against the
Islamic
authority
is
considered as a
bghi 112
and will
be
punished according
to
Shari `a law.
2. Life
In Shari`a law, life is
sacred and no one can take this
life
except what
is described in
the
Shari`a law. Shari`a law
provides rules
to
protect people's
life
and
these rules are
including
qisas
(retaliation)
113
as well as
hadd.
3. The Family
The family is
protected
from
all
factors
that
can ruin
the
family
structure.
Among
other
factors
that
can ruin
family
are sexual activities outside marriage
i.
e. zin
114
and
homosexual
relationship.
Thus, Shari`a law
prohibits
these
activities and prescribes punishments
for
these
offences.
109-
Qur'n, 2: 256.
110-
The hadd
punishment
for
ridda
is described
purposely
to protect the
religion.
See Al-Qardwi,
Ysuf., Madkhal,
p.
72.
111
_
In
a
hadith
the
Prophet is
quoted as saying
that those who turn to
apostasy must
be killed. See Sdzih
Al-BA UN,
vol.
9,
p.
624.
112
Bagyi
the singular of
bugha
which means rebellion against the
Islamic
state.
113
See Al-Qardwi, Ysuf, Madkhal,
p.
73.
114
Ibid.
46
4. Property:
Property is
also protected
by law
against
theft
(sariqa),
115
destruction
or unauthorised
interference.
116
Those
who
die in
protecting
their
property are considered shahid
(martyr)
under
Shari `a law.
117
These
are
the
elements that
constitute
huddA1l5J
the
boundaries
established
by A11h,
and which are
fully
protected
by
the
Shari `a law. Whoever
crosses
these
boundaries is
regarded as a
trespasser
and
therefore
is liable for
punishment, and the punishment
is
certain.
S) `Aql (nvM)
`Aql (mind) is
one of the
important
elements that
is
protected under
Shari'a law.
Drinking
alcohol
118
or taking
intoxicating
substance such as
drugs
are prohibited and
punishable according to
Shari'a law.
Another
objective of punishment
in Shari`a law is
to
achieve
justice. Concerning justice
the
Qur'an
says:
"God doth
command you
to
render
back
your
trusts to those to whom
they
are
due;
and when ye
judge between
man and man,
that ye
judge
with
justice. "
119
Since
crime
is
considered
to
be
a challenge
to the
dominant
values of society and a
violation of the victim's rights, punishment
therefore seeks
justice for
the victims of
crimes.
At
the same time the
punishment will give satisfaction to the victim and
his
115_
Ibid.
116_
Ibid,
p.
62.
117
See $x Al Bukirri,
vol.
3,
p.
281.
118_
See Al-Qardwi,
Ynsuf, Madkhal,
p.
73.
1 19_.
'aa. 4: 58.
47
family
120
and
this
will avoid any retaliation or
blood
revenge
between
the victim's
family
and the
criminal's
family. Hence,
the
killing
of
innocent
people can
be
avoided.
Therefore
people
in
society will
be
able to
live in
a safe and secure condition.
Justice is
not only
for
the victims
but
also extended to the
criminal.
The
punishment
given
to the offender of any crime
is
not more
than what
he is liable for. If for
example
one causes
injury
to another, the giss punishment
inflicted
on
him
must
be
the same
amount of
injury
that
he
caused to the victim.
The
strict proof and evidence required
in
hudd
cases such as
four
eye witnesses
in
zind,
is
an example
that reflects
the great
concern about
justice in
the
punishment
in Shari`a law.
To
ensure
that
justice is done for
the person accused
,
another vital principle
is
applied
in Shari`a law
and that
is
the presumption of
innocence. The jurists interpret
this
principle
by
asserting that the status of
the
person accused
is in fact innocent
or that
his
condition
is
that
of collateral
innocence.
121
This
also means
that the
burden
of proof
rests on the accuser and not on the accused person.
In
the
case of any
degree
of
doubt
the
Qdi
must avoid
inflicting
punishment, especially
in hadd
and gi;
ds. This is
considered as a precaution so
that the
punishment
is
not
being
inflicted
against an
innocent
person.
In
this
respect
the
Prophet is
quoted as saying:
" Prevent
punishment of
hudd in
case of
doubt. Release
the
accused
if
possible,
for it is better
that the
ruler
be
wrong
in forgiving
than
wrong
in
punishing.
"
122
The
above
hadcth
gives a clear
indication
of
justice in Shari'a law. The hadith
also
shows
that
punishment of
the
offender
is
not
the
first
aim of
Shari`a law,
as
the
hadth
120_
AI_, qlfi, mad Abd AI-'Aziz, Punishrwnt in Islanic Law, in Bassiouni, M. Cherif, The Islamic
Criminal Justice Systen-
Oceana Publications, London, 1982,
p.
231.
121
At-551e#,
op. cit, p.
66.
122..
Hadith
narrated
by Al-Tarmidhi, See A! Ashbh
wa a!
Nazar,
p.
236.
48
clearly states that giving
forgiveness is
much preferable
in
cases of
doubt. If
the
aim of
Shari`a law is
primarily to punish the offender, this
rule would not exist and all accused
persons would
be
punished regardless of whether or not
there
is doubt.
For
the
sake of
justice in Shari'a
law,
all
forms
of torture,
beating
or other cruel and
inhumane
treatment
are expressly prohibited.
123
Concerning
the
prohibition of
torture,
the
Prophet
says:
"God
shall torture
on the
day
of
judgement,
those
who
inflict
torture
on
people
in life. "
124
The jurists
conclude
based
on
the
haath
that torture,
cruel and
inhumane
treatment
or
punishment
during interrogation
stage
is
prohibited and
is indeed
a sin
in
the eyes of
God.
125
As
a result, the confession of
the
person accused
is
not considered valid and
therefore the
person accused cannot
be
punished.
The
objective of punishing
the offenders
for
the crime
they
committed
is
not merely to
make them suffer, although
it
may seem to
be
so,
it is
also
to
rehabilitate.
Through
the
punishment, the offender might
have
more awareness about
his
or
her
conduct.
The
punishment may also
deter
the
offender
from
committing
further damage
to themselves
as well as to society.
Those
who commit crime still
have
an opportunity to
repent and
reform themselves
from
their
evil
deeds. If
an offender repents
before being
captured,
he
or she
is
no
longer liable for hadd
punishment.
From
this
perspective,
it is
suggested
that
Shari`a law has its
own unique
flexibility in implementing
all punishments
especially
in hudd.
123_
See Abn Ynsuf, Ya'gnb Ibn Ibrhim, Kit4: lb
al
Khar4i, Maktaba
al-Salafia,
Cairo, 1933,
p.
115.
124
See Musnad In
mAlvrru4 voL
2,
p.
443.
125-
Al-Sleh,
op. cit, p.
72.
49
The function
of punishment
in Shari'a law is
also
to
deter. The
punishment
does
not
only serve as warning to the
public not
to
commit crimes,
but
also to avoid
them
from
imitating
or committing
the
criminal acts.
It is
also
-
to
guarantee
the
safety of
those
who
refrain
from
crimes.
Deterrence is
often considered as a
justification for
punishment
that
looks
to the
future
prevention of crime.
The deterrent
effect
is known
to
have dual
impact in
society as a whole.
Although
punishment under
Shari`a law is
criticised
by
many people as cruel and
harsh,
one should consider the
harmful
effect of crime on
both
the
individual
and the society.
Such
criticism must
be
tempered with the
recognition
that these punishments are
essential
deterrent in
nature and
that they
have
effectively reduced
the
incidence
of
serious crime.
126
Punishment in Shari'a law is
considered as an effective
deterrent
against criminal
activities.
The
physical punishment such as
flogging
and amputation gives a permanent
scar to the
offender and
this
has
a
tangible
effect on
him if
compared
to
imprisonment.
In
many cases the offender
becomes
accustomed
to
imprisonment
and
it becomes
no
longer
effective.
127
Sh
ari`a
law
prohibits all
judicial
conducts
which
are contrary
to
those
ends.
128
Al-Alfi,
although accepting reformation and rehabilitation as the
objectives of
the
punishments, asserts
that
it is inaccurate
to say
that these
are
the
only
objectives of
the
punishment
in Shari`a law. He
adds
that crime
is
not
just
an event
that
provides an occasion
for
rebuilding
the
characters of
the criminals,
but
an evil which
criminals
intentionally
and voluntarily
inflict
on society.
129
Thus it is
necessary
for
society to
respond
to
such act with punitive measures sufficiently painful
to
deter
the
126_
Mansour, 'Aly 'Aly, Hudud Cries, in Bassiouni, M. Cherif, The Islamic Criminal Justice System=
Oceana Publications, London, 1982,
p.
196.
127-
Mansour,
op. cit, p.
195.
128
Al_Sleh,
op. cit, p.
60.
129_
Al-mai,
op. cit, pp.
230
-
231.
50
criminal
from
walking the
criminal path again and at
the same time to
deter
others.
130
If
reformation and rehabilitation were
the
only objectives, punishment would arguably
not
be
necessary
131
at all as the criminals could
be
put
in
the
rehabilitation centre
to
achieve
these
purposes.
Punishment in Shari `a law is
also
intended
as a protection of
the
lawful interest
and
therefore
must not
be imposed
to
vindicate
the
personal whim.
Furthermore,
punishment must
be
proportionate
to the
offence.
132
In
other words, punishment
inflicted
on
the
offender should
be
carefully considered to assure
that
it is
not an
excessive one.
For instance, if
ten
lashes is
considered as sufficient,
the
Qdi
should not
impose
more
than this
number.
Inflicting
an excessive punishment
is
contrary
to the
concept of proportionality of punishment
in Shari'a law.
Crime
may create an enmity
between
the criminal and
the
victims.
This
enmity would
lead
the
parties
to a serious conflict and
this
may cause a
blood feud
especially
if
the
crime
involved killing. By
prosecuting
the
offender and
following
this up with
the
appropriate punishment, one element of enmity
is
taken away.
The
anger may still
remain
between
those parties,
but
not nearly
to the same extent as
if
the criminal
had
been left
and
freed
unpunished.
Inflicting
a punishment on
those who commit crime, serves as an
indication
of
the
wrongfulness of
the crime committed and at
the same
time
gives a reminder
to
society
that the
authority
is
serious about the
punishment
that
is
made
known
to the
public.
If
the
punishment
is
not carried out, some may consider
that the
punishment
is
only a
threat
and
the
authority
is
not serious about carrying
it
out.
130_
Ibid.
131
-
Ibid.
132
Al_5ileh,
op. cit, pp.
60- 61.
51
This
perception may
lead
people to commit more crime and, consequently, crime may
become
uncontrollable and society will suffer.
During
the
eighteenth and early nineteenth centuries, crime was regarded
for
the
most
part as
deliberately
chosen
behaviour by
rational
individuals;
man
has
ability
to think
and choose, and those
who
break
the
law
at
the
expense of others
do
so wilfully and
selfishly.
The
punishment therefore
is
the
need of
the victim and much more
the need of
the
state
to
deter
others
from
similar offences.
Thus
the
punishment should
be
as severe
as
is
necessary
to
achieve these ends.
133
However,
according to
some people, crime should not
be
seen
in
a negative way.
On
the
contrary,
it
should
be
considered as a normal phenomenon that
happens in
all societies.
On
top
of
this,
crime
is
seen as something
that gives
benefits
to society and therefore
should
be
accepted as normal.
Karl Marx for instance
viewed
that the criminal not only
produces crime
but
also produces
the criminal
law. The
criminal produces
the professor
who
delivers lectures
on
this criminal
law,
and even the
inevitable
text
book in
which
the
professor presents
his lectures
as a commodity
for
sale
in
market.
The
criminal
produces the
whole apparatus of
the
police and criminal
justice, detectives, judges,
executioners,
juries
and all
these
different
professions.
134
Although it
may
be
undeniable that crime and criminals may give some
benefits
to some groups of people,
nevertheless all
these
benefits
must not
be
at the expense of others.
It is
unjustifiable to
let
a person
be killed
simply
to
keep
a
judge for instance in his job. It is
morally wrong
to
leave
and accept crime to take
place
in
our society
for
the
survival of those
parties.
How
can we
let
the
peaceful citizens
live in fear? Fear
of their
lives, family,
property
and
dignity
while some groups of people are trying to
justify
this
phenomenon
because
of
the
benefits
they
gain?
133_
Sapsford.
op. cit, p.
310.
134
Karl Marx, Selected Writing in Sociology
and
Social Philosophy,
translated
by T. B. Bottomore.
New York, Mac Graw- Hill, 1956,
pp.
158
-
59.
52
By
viewing crime
in
such way,
it
may
jeopardise
the
whole system of society simply
because
people would not strive to stop crime
but
rather to
exploit the
benefits
of this
situation.
There is
no
doubt
that
people such as
judges, lawyers
and police are required
in
all
societies.
However
their
existence
is
simply to
solve the
problem of crime and not
to
defend it. Although
the existence of
these
professions may
be
as a result of
the
existence
of crime,
it does
not mean that
crime
has
a very significant role
in
creating
these
professions.
Since it is impossible
to
have
a society
that
is free from
crime, the
existence of
these
professions are vital to protect society.
Concerning
the
crimes, the
public response should also
be
considered.
There is
no
doubt
that
people will respond towards a crime
in
society.
If
a murder
for instance
takes
place,
the
act will
be
condemned
by
the whole society.
People have
no
hesitation
to
help
police to
catch the
offender and
bring him
to
justice. In
other words,
in
a normal
situation, the society will react
toward
crime to
establish
justice in
society and not
just
accept that crime as a part of
the
society or as a normal phenomenon.
The
reaction
shown
by
society
towards crime
is
clearly evidence against
the opinion of some
criminologists who view crime as a normal part of society and
important
to the workings
of society.
135
General deterrence
can only
be
achieved
if
the actual punishment
is
given the
widest
possible publicity when
it is inflicted
such as
broadcasting
the
event,
live
on
television
and radio.
This is
the
reason why the
punishment, according to
SharI'a law,
must
be
carried out
in
public, unlike
in
common
law
where
the
punishment
is inflicted
mostly
in
prison
in
such a way that
not many people can
learn from it.
135_
Quinney,
op. cit, p.
201.
53
Even
the
harshest
penalty,
i.
e. capital punishment, will not
be
able
to play
its
role of
deterrence
effectively
if it is inflicted in
private so that people are not able
to see the
actual punishment when
it is being inflicted.
Individual deterrence
comes
into
play when an offender suffers
the
penalty.
Individual
deterrence involves
making
the
offender reluctant
to
offend again, rendering
it difficult
to
distinguish it from
reform which
is
supposed
to
achieve
the same end.
136
According
to the
deterrence
theory,
it
prevents
the execution of
further
offences
both by
the
offender and
by
other members of society.
137
The
severe punishment such as
hudd
and giss, although are very
hard
to accept
by
some people, serves as an
important
element
in decreasing
the crime rate
in
society.
El
-
Awa in his book
quotes
Saudi
Arabia
as an example.
The
crime rates
in
that
country
have decreased
enormously since
the
re-introduction of
hadd
punishment.
In
the
late 1920's,
when
Shari'a law
was
implemented in full,
the crime rate
fell
noticeably.
The
official
figures indicate
that
hadd
punishment
for
theft
has
never
been
carried out more
than twice a year.
This
was
stressed
in
the
Arab Conference
on
Crime
and
treatment of
Offenders held in Kuwait in
1970.138
Saudi Arabi
may
be
a convincing present
day-example
of
the effectiveness of
punishment
in Shari`a law. Saudi Arabia
was at one
time the worst place
for
violent
crime such as robbery.
139
However,
when
Saudi Arabia imposed hudd
punishment
for
crimes against property
including highway
robbery,
the
crime rate was
lowered
dramatically
and
the criminal gangs were abandoned.
Saudi
now
is
an example of
the
country
that
has
a
low
crime rate.
136_E1_Awa,
M. S. Punishment In Islamic Law, American Trust Publications, Indianapolis, 1982,
p
29
137
Ibid.
p
30.
138
Ibid,
p
31.
139
Mansour,
op. cit, p.
190.
54
Theft
and robbery occur rarely.
In
the
last
twenty-five
years there
were only sixteen
amputations.
In Egypt 1,038
robberies took
place
in 1938
and this
increased
to
30,000
in 1968.140
Egypt in
this
case
is
probably not a good example to
show statistic of crime
for
two
reasons.
Firstly,
the
statistic
itself is
outdated and
it
would
have
changed
in
present
day.
Secondly,
as a poor country, crimes especially that
involved
property such as
theft and
robbery are extremely
high because
of the
poverty.
However, it is
questionable why a
developed
country such as
Britain
also recorded a
high
rate
in
crime especially robbery
and this
rate
is in increase
every year.
According
to
Annual Abstract
of
Statistic,
there
were
22,100
cases of robbery reported
to the
Police in 1983 but in
ten years this
number
has increased
to
57,800
cases
in 1993.141 It
seems that the
imprisonment
sentence
that
was applied
for
the
offender
in Egypt
as well as
in Britain
was
inadequate
and
ineffective
to
deter
or to
decrease
the
crime rate.
142
However,
severity of punishment
is
a controversial point.
On
the one
hand,
some
scholars
hold
that
'treatment'
rather
than
punishment
is
what
the criminal needs.
On
the
other, some
judges demand
the
reintroduction of severe penalties,
including
corporal
punishment,
in Western
countries as
the
only means of controlling
the
increasing
crime
rate.
143
According
to
'Auda,
the
punishment prescribed
in Shari'a law is
only
for
those
who
cannot
be
stopped unless with the
sword.
In
other words, people would not stop
committing crime unless they
were punished severely.
This,
among other reasons
is
why the verse of
the
Qur'n
which prescribes punishment
is
normally
followed by
other
140_
Ibid.
141_
Annual Abstract
of
Statistic, Central Statistic Office, A Publication
of the
Government Statistic
Service, London,
1995,
p.
68.
142
Mansour,
op. cit, p.
190.
143
_Ibid,
p
26.
55
verses that
caution people
from
the evil
deeds
and encourage them to struggle against
amoral activities
for
the sake of
A11h.
144
The
punishments
imposed
on criminals are
intended
to
preserve peace, security and
stability of society.
Punishment is
also an act of mercy to those who
have
a
tendency to
commit crime.
If
the
punishment
is
not effective
deterrent,
people will commit crime
without
fear
of
the
consequences and at
the
same time will encourage others.
145
Although
the
punishment may not suppress
the crime completely,
the
high
probability
is
that
such measures
keep
criminal acts
to a minimum.
146
1
-'Auda,
vol.
6,
p.
881.
145
Mansour,
op. cit, p.
196.
146
Ibid.
56
2.5. Conclusion
It is
undeniable that
crime
is
one of
the
problems
in
society.
However,
people may
differ in
their
approach
towards
solving this
problem.
This difference
may
be
rooted
in
the way
they
perceive
the
concept of causation
in
crime.
Although
the concept of
causation
in
this
matter
is
not a
legitimate
one, this concept
however
assists us
in
finding
some relevant
factors
that
may encourage certain groups of people
to
become
involved in
crime.
There is
a
degree
of agreement
between
the
criminologist
that
poverty, environment,
homelessness, joblessness
and
lack
of religious and moral education are among
the
important factors
that
draw
people
into becoming
criminals.
Thus
the solution of
this
problem
is focused
on these relevant
factors. Government,
with
the support of society
which
is
concerned about
this phenomenon,
is
striving
hard
to
improve
the standard of
living,
create a
healthier
environment, create more
jobs, build
more
low
cost
housing
and encourage people
to
have
more concern about moral and religious education.
All
these
efforts are carried out not only
to
improve
the
standard of
living but
also
to
resolve
the
problems of crime.
Some
people
believe
that the criminal
is born
and not created.
In
other words,
criminal
behaviour is inherited from
the
parent
biologically. Those
who
believe in
this
theory
are
trying to
solve
the
problem of crime according
to their
perceptions.
Scientific
experiments
has been
used
to
remove a certain part of
the
brain
that
may
motivate
individuals
to
commit crime.
However,
there
is
no proof shows that this
experiment
is
a successful one.
Although
all efforts
have been
made
to combat the
criminal problem,
it
seems
that all
these efforts are not sufficient to curb
the
problem of crime.
Thus it is
suggested
that
there
is
another method that
if
not more effective than the
existing methods may at
least
57
play a supporting role
in
combating the crime problem.
This
supporting role
is
played
by
punishment.
We
may
find
that the
punishment prescribed
for
the crime
differs from
one country
to
another.
This difference is
originated
by
the
differences in
the
judicial
system.
Nonetheless,
the
objective
is
an
identical
one and that
is
to solve
the
problem
of crime.
Punishment is
seen
by
many people as an
important
means
to
protect society
from
evil
criminals.
In
this
context, punishment
is
considered as an effective
deterrent
against re-
offending.
It is
also a
deterrent for
those who
have
the
potential
to
become
a criminal.
The
punishment may not produce a strong
deterrence
effect
for
some people,
but it
may
work effectively
for
others.
The
severity of the
punishment may not
be
acceptable
to
some people.
Nonetheless,
some people
believe
strongly
that the
more severe
is
the
punishment, the
more effective
is
the
deterrence. Malaysia
may
be
a good example of
the
effectiveness of severe punishment
in
confronting crime.
In Malaysia drug
trafficking
is
considered as a serious crime.
Those found
guilty of
trafficking
drugs
will
suffer the
death
penalty regardless of
his
or
her
nationality.
As
a result,
this
kind
of
crime
has become
controllable
in
this country.
However, it is
noteworthy
that the severity of
the
punishment alone would not work
very effectively
in
stopping some people
from
getting
involved in
crime.
The
severity of
the
punishment should
therefore
be
accompanied
by
the
religious and spiritual elements.
It is believed
that the
combination of
the
punishment and
the
spiritual aspects would at
least lower
the occurrence of criminal activities,
if
not eliminate
them
completely.
The
punishment
in Shari`a law is
no
doubt harsh
punishments
if
compared with other
existing
law
system.
Among
the punishments prescribed under
Shari`a law (death
penalty, amputation, crucifixion, stoning,
flogging
and exiles) only some
(death
penalty,
flogging
and exile) are applicable
in
other
judicial
systems.
By
analysing
the
punishment
in Shari'a,
it
can
be
said that
Shari`a
law
strongly
favours
severity of
58
punishment as an effective
deterrent.
However, it is important
to note, that
because
of the
severity of punishment
in Shari`a
law,
rules and very strict procedures are applied.
These
rules and procedures are vital
to
ascertain that
justice is done
to
all affected parties.
This is
the way to
ensure
that only
the
real culprit will suffer punishment.
Only
those
who
have
a
legal
capacity
accompanied
by
a criminal
intent
are
liable for
punishment.
Children
and
the
insane
are
exempted
from
punishment.
Those
who
have
no criminal
intent
will also escape
the
punishment.
All
these
procedures give a reflection that
Shati`a law has
always ensured
that
all punishments are carried out carefully and
in line
with
justice.
As
the
punishment
is
not
the uppermost objective of
the
Shari`a law,
those who commit
crime are given the opportunity
to
rehabilitate
themselves and escape
the
punishment
through
repentance
(tauba). With
tauba, the
criminal will
have
reformed
himself
and
therefore
punishment
is
no
longer
required.
Although
the
punishments
in
the
Shari`a
law
are clearly more severe
than other system of punishment,
those who suffer
these
punishments are a small minority of people who
do
not wish
to
reform
themselves or
for
whom there
is
no other way could stop
them
from
continuously committing crime.
The
punishment
is
the
final
option after all other ways
have failed
to
stop
them committing
crime.
59
Chapter Three
The Crimes
of
Hirba
in Shari`a Law
3.0. Introduction
This
chapter
is devoted
primarily to the
crime of
hirdba
according to the
Shari'a legal
system.
The
crime of
hirba is
considered as a very serious crime under
Shari`a law
simply
because
this
crime
involves
not only property
but
also peoples'
lives
and
dignity.
The
seriousness of the crime of
hirba
can
be
observed
in
the
punishment prescribed
for
this
crime such as crucifixion and cutting off the
hands
and
feet from
the
opposite side.
These
punishments are not prescribed
for
any other crimes
in Shari'a law.
3.1. Asbb Al-Nuzl (Cause
of
Revelation)
of
the
Verse
of
Hirba
Before further discussion
regarding
hirba, it is important
to give a
brief
account of
asbb al-nuzl of
the
verse of
hirba.
1
Therefore, it is
essential
to consider
the
discussion by
the
jurists
regarding
the verse of the
Qur'n
that
discusses
and clarifies the
principles and rules of
hithba.
It is
agreed among
the
jurists
that the
law
of
hirba is
extracted
from
the verse of the
Qur'n
that
says:
"The
punishment of those
who wage war against
Allah
and
His
Messenger,
and strive with might and means
for
mischief through the
land
are execution or crucifixion,
I-
Verse 5: 33
of the
Qur'n is
referred to as the verse of
hirnbia
simply
because
this
is
the only verse
from
the
Qur'n
that
describes
the crime of
hirba.
60
or the cutting off their
hands
and
feet from
opposite sides, or exile
from
the
land (imprisonment
outside
his hometown)"
2
According
to
Ibn 'Abbas
and
Al-Dahk,
this verse was revealed
to clarify the
incident
of
qut' al-tariq among ah! al-Kitb
(people
of the
book).
3
'Ikrimah
and
HasanAl-Basri,
however, hold
that the
verse was revealed on'rushrikin
(non-believers)
4
Malik, Al-
Shfi'i
and
Abn Thaur
assert that the verse was revealed on a group of
Muslim.
5
Ibn
Umar is
of the
opinion
that this
verse was revealed
for
the
nwrtaddin
(apostates).
6
With
regards also
to the
cause of revelation,
it
was reported
by Hassan, 'At'
and
'Abdul
Karim
that this verse was
dedicated
to the
'Urniyyin
who
killed
a shepherd and
took
away
his
camels.
7
The Prophet has had
the
companions to
find
them.
8
The 'Uraniyyin
were captured and
brought
to the
Prophet Muhammad.
9
They
added
that the waging of
war against
Allah
and
His Messenger
would
in
practice
be by ku
r
(non-believers)
and not
from Muslims.
10
In
a complete
hadith
regarding
the
incident
of
hirba
,
Anas
bin Malik is
reported as saying:
"Some
people
belonging (to
the tribe)
of
'Uraina
came
to
Allh's
Messenger (may
peace
be
upon
Him)
at
Madina, but
they
found its
climate unsuitable.
So Allh's Messenger
said
to them:
If
you so
like,
you may go
to camels of sadaga and
drink
their
milk and urine.
They
did
so and were recovered.
They
then
fell
upon
the
shepherd and
killed
them
and
turned apostates
from Islm
and
drove
off
the camels of
the
Prophet. This
news reached
Allh's Messenger
and
he
sent
(people)
on
their track.
They
were
finally (brought)
and
handed
over
to the
Prophet.
2-
Qur'n, S: 33.
3-See
TafsirAl-Tabari,
p.
119.
4-
Ibid.
5-
Al-Mughni,
vol.
7,
p.
302.
6-
Ibid.
7-
Ibid.
8-
See TafsirAl-Tabari,
p.
119.
9-
See $ahih Al-Bukhri,
vol.
4,
p.
479.
10-
Al-Mughni,
vol.
7,
p.
302.
61
He (the Prophet)
got their
hands
and
their
feet
cut off.
The Prophet
also
put out
their
eyes, and thrown them on the stony ground until
they
died. "
11
After
analysing
the
hadth
reported
by Anas, it is
suggested that the
opinions of
jurists
can
in fact be
reconciled even though they
seem to
be different. The first
opinion,
which views that the
verse was revealed
to the qut' a[-tariq among
Muslims,
can
be
justified by
the
hadth
quoted earlier.
The 'Uraniyyin described in
the
hacth
were
in
fact Muslims
and they
came to the
Prophet Muhammad before
the
incident
took
place.
The
opinion given
by Ibn 'Umar
that the verse was revealed
to the apostates also
has its
ground as clearly stated
by
the
hadcth. However,
according
to the third
opinion,
although
they
directly
say that the verse was revealed to the
Urniyyin
,
they consider
those
who wage war against
Allh
and
His Messenger,
as
kufr (non-believers).
However, it is important
to
note
that to whom the
verse was revealed
is immaterial in
this
case.
The
most essential matter
to
consider
is
that the verse
is
applicable
to
all,
regardless of
to
whom
it
was revealed.
There is
a principle
is Shari `a law
that states:
"The
practical aspect of
the
verse
is based
on
the
general wording
(`umm
al-lafz) and not on
the
specific cause
(khuss
al-sabab) of
the
revelation"
12
Therefore, it is
clear
that
what
is
taken
into
account
is
the
rule
that
is
extracted
from
nass
(text)
regardless of
to
whom that
nas or verse was revealed.
In
other words,
if
a verse
was revealed to
a certain group of people on a certain occasion, the
principle
that was
11-See
Muslim, Translated by 'Abdul Hamid Siddigi,
vol.
iii, See. Muhammad Ashraf, Cashmere Bazaar,
Lahore, Pakistan,
p.
893. The
use of urine was a common practice
in Arab
society.
They
used
it for
curing some
diseases,
especially
for dropsy (Ibn Qayyim, Al Hfiz Ibn 'Abdullah., Zad Al Mi`d,
Scientific Departments' Headquarters (Riyadh, Saudi, Arabia, N. D,
vol.
3,
p.
166 ).
12-
For
more
details
see
Al-Qattn, Manna'., Mabhith ft `(Ilm
al-Qur'an,
Muassasa
al-Risla,
Beirut,
1980,
p.
82.
62
derived from
that verse
is
not only applicable
for
that
particular group,
but
also
to those
who
live
after that
particular time.
3.2. Definition
of
Hirba
The
root word
for hirba 'or 'nuhrabd is 'hraba'
which means
fight.
13
The
one
who
fights is
called
`nuhrib'. 14
There
are three terms that
are commonly used
for
this
crime;
i) Hirirba (armed
robbery)
ii)
qat' al-tariq
15
(highway
robbery)
iii)
sariqa
al-kobra
(great
theft
). The first
term
however, is
preferable
because it
matches
the
crime that
is
mentioned
in
the
relevant verse of the
Qur'an. Although
the term
'armed
robbery' will
be
used
for
the crime of
hirba in
this
study
because
of
its
relevancy with
the
verse, the term
'hirba'
also
be
applies
to
crimes other
than armed robbery.
16
Hirba is defined by
the
Mlikis
as:
"The
act of
terrorising people
for
the
purpose of robbery or other
purposes.
"
17
The
act of
terrorising
people
is
considered to
be
the
main element
in
this
definition. It
means that
all acts
that
involve
terrorising people, whether
by
the use of
force
or not are
considered as
hirba. 'Alt (instrument) is
also not
included in
this
definition.
Therefore,
the
act of
hirba
can also
be
carried out without
the
use of a weapon
according to this
view.
The definition
also excludes
the
site of commission of
hirba
which
is included in
some
definitions
of
the
jurists. By
excluding the
site of
commission of
hirb4 it is
understood that the crime of
hirba
can take
place anywhere
as
long
as the
act of terrorising
people
take place.
Some jurists incorporate
robbery as
13-See
Wehr, Hans.,
p.
166.
14
Muhrib (pl. MuMribin)
is
a person who commits
the crime of
izirba. Hereinafter
the term nuhrib
and nvhribin will
be
used without translation.
15
According
to
Al-Tabari, Muharib is
gati`
Al-tariq (a
robber)
See Tc fsirAl-Tabari,
vol.
6,
p.
122.
16
See details discussion in Chapter Five.
17.
A1. Mu
,
vol.
4,
p.
429.
63
one of
the
elements
in hirba. The Malikis however
assert
that robbery can
be
one of
the
purposes
but
the act can
be
considered as
hirba
even when no robbery
is involved.
Imm Al-Shfi`i defined hirba
as:
"When
a group of people, armed with offensive weapons
(asliha)
rob
another group, either
in
the
desert
or on
the
highway.
18
It is
possible
to
commit
this
crime even
in
a
Bedouin
camp or
in
a village.
1119
The
muhrib are
therefore those who raise arms against
innocent
people with whom
they
had
no previous enmity.
In Al-Shfi'i's
opinion
the crime of
hirba
must
be
carried out
by
a group of people.
According
to this
view,
if
a single person commits
this
crime,
he
will not
be liable for hadd
of
hirba
since
the criteria required
in hirba
are
fulfilled. Al-Shfi'i, however
views
that the
seriousness of
hirba
remains
the same
whether
it is
committed
in
a city, village or
desert. It is
stated
in Al-Mughni
that the
muhiuib must
have been
armed with offensive weapons.
Hence,
those who ask
for
money
by
mere oral
threats are not considered as committing
this offence.
They
are said
to
be 'armed'
when
they carry sticks or even stones.
20
A1-Mwardi in his book,
al-Ahkm
Al-Sultnia, defined
hirba
as:
"Waiting by
the way
(or highway)
to
steal
traveller's property
by force
and
this
means obstructing
travel on
this
road.
"
21
The definition
given
by Al-Mwardi for hirba
reflects
the
reality of
hirirba
at the
early
time.
However,
this
definition
may not
be
applicable at
the
present time, as
the
act of
hirba
can occur
in
any place.
Al-Mwardi
also seem to
be
taking a
different line
18Al-'Umre
vol.
6,
p.
140.
19-
Ibid.
20-
Al Mughni,
vol.
7
p.
92.
21-
A! Ai kmAl-Sulp&uyya,
p
62.
64
from
Al-Shfi'i's
view when
he includes 'force' in his definition
rather than a weapon.
By
using the term
'force' in
the
definition, Al-Mwardi
may
intend
to
expand
his
definition
of
hirba. By
the
definition, it
may
be
suggested
that, those who
take the
property of others
by force,
with or without the
use of weapons are considered as
committing
hirba
.
The
act of
hirba is
complete according
to the
Hanbali
school when:
"One
armed with offensive weapons, robs
the
people
in
the
desert,
where
the victims cannot reasonably expect
help from
anyone.
"
22
The Hanbali
schools
have
a similar view to that
of
the
Hanafi
school on
the
definition
of nvhrib
in
terms
of the site of commission of
hirba. They
maintain
that
when a
person
is
robbed
in
the city
he
might
have help from
people,
but it is impossible
to get
help in
a
desert
or
beyond
the
boundary
of
the
locality.
23
It is
also stated
in Al-Hidya
that
if
a person commits a
highway
robbery
by
night, or
by day
within a city,
this person
is
not considered as a robber.
24
22-
Al-Mughni,
vol.
8,
p.
288.
23-
Al-Ksni, Abu Bakr Ibn Masud., AI-Bada'i`
wa al-$ani`,
Maktabt Sharikt
al-Matbn't al-
'lmiyya, 1909
-
10,
vol. vii, p.
92. With
regard to this point, the
Hanafi
school
have
made an
interesting
observation.
They
say that persons who rob people
in
the city, or
between
two villages are
not
liable for hadd
punishment.
In
their opinion,
the victims will
be
able to obtain
help from
the
neighbouring town or village or
from
passers-by.
But
the
latest Hanafi jurist holds
a
different
opinion.
He
explains the observation made
by Abn Hanzfa in
terms
of that opinion was
based
on the
condition of social
life during his life-time. In
these
days
people used to carry weapons with them,
therefore they could
defend
themselves.
But
nowadays people
have discarded
this practice and
it is
possible therefore to commit robbery
in
above mentioned places.
(cf. Mabst,
vol.
9,
p.
201).
24-A1
Mirghinani, Burhn
Al Din, Hiddy4 Eng. Trans. Hamilton, Premier Book House, Lahore, 1982,
p.
137.
65
According
to
some
Hanafi jurists,
the
robbers
have
the courage and strength to execute
their
plans regardless of
the
nature of the
instruments, be
they are offensive weapons,
wooden sticks or stones.
25
After
analysing all the
definitions
of
hirba
given
by
the
jurists, I
would suggest
that
the
definition
of
the
Mlikis
seems to
be
very concise yet covering most of
the elements
given
by
other
jurists
at
the
same time.
However, it is
noteworthy
that the
jurists
seem
to
ignore
the
most
important
element of
hirirba i.
e. causing
destruction (fasd), in
their
definitions. Therefore, it is
necessary
to
add
this
element
to the
definition
of
the
Mliki
school
in
order
to
establish the most comprehensive
definition for hirba
and
the most
applicable
in
the
present
day. The
crime of
hirciba,
after some modification, can
be
defined
as:
a)
The
act of
terrorising people
for
the
purpose of robbery or other
purposes and
b) The
act of causing
destruction (fasd) in
society
On
the
basis
of
the above
definition, it is
clear that
any crime
that contains any of these
two
elements can
be
considered as
hirirba. Consequently,
this
definition
will
be
referred
to
hirba in further discussion.
3.3. The Elements
of
Hirba
From
the
definitions
given
by
the
jurists
regarding
hirba,
there
are elements that are
considered as very
important
to
discuss in
this chapter.
They
are as
follows:
i) The
use of weapons
ii) The
act of robbery
iii) The
site of commission of
hirba.
iv) The
act of terrorising
people
25
-
Al-Baddi,
vol.
7,
pp.
90
-
91.
66
v)
The
act of causing
destruction (fasd)
3.3.1. The Use Of Weapons
The jurists have different
opinions concerning the
use of weapons as an element of
hirba. Im.
m
Al-Shdfi'i, Imm Hanbali
and
Imazn Abn Hanzfa
agree that the use of
weapons
is
one of
the
important
elements
in hirba. They
view that
instrument (alat)
must
be
used
in
the
crime.
This instrument
might
be
a weapon, a stick, a rock or a
whip
26
According
to this
opinion,
the
crime of
hirba
can not
be
carried out unless
one of
these
instruments is
used.
It is
obvious
from
their
opinion
that the
instruments
which are used
in
committing the crime
is
very
important because
these
instruments
give the victim the
impression
that the criminals are serious
in
their threat.
There is
no
doubt
that
people are more
terrified
if
the threat
comes
from
those who
have
weapons
in
their
hands
than
if it
comes
from
those who
have
not.
Hence,
according
to
Ab Uanifa,
Al-Shfi'i
and
Ahmad,
the
crime
is
not considered as
hirba if
the offender
does
not use
any weapon or
instrument in
committing
his
crime, even when
the crime
involves
homicide,
robbery or terrifying the
public.
However,
according
to the
Mliki
school,
it is
not necessary
for
the culprit to use
weapons
in hirba. According
to them, the
accused who uses
his
physical strength
in
committing the crime may also
be
considered as rruhrib and therefore will suffer
hadd
punishment.
27
Ibn Hazm
also views
that the use of weapon
(silh) is
not a necessary
condition to
prosecute a culprit
in hirba.
28
It is
understood
from
these
opinions that
hirba
can
be
committed even without using
any weapon or
instrument
as required
by
some other
jurists
26-
Al-Mughni,
vol.
10,
p.
304, A1-Sarkhasi, Shams Al-Din., Kitb At Mabsu4 Dar Al-Ma'rifa, Beirut,
1993,
vol.
9,
p.
202.
27-
Al-Mudzwwana,
vol.
4,
pp.
429-30.
28-
Ibn Hazm, A! MuhaUa,
Dar
al-Filer,
Cairo,
vol.
11,
p.
308.
67
The
views of
the
jurists
who require the
use of weapon
in hirba
may
be
acceptable
in
terms
of the
seriousness of the
crimes
that
are committed
by
this
method.
Nonetheless,
as
the
crime of
hirba
can also
be
carried out without the
use of weapon
(e.
g.
by
using
physical strength), even though that
degree
of crime
is different, it is
not acceptable
to
make
the
use of weapons a necessary element
in hirba. Thus it is
suggested
that those
who use physical strength
in
committing the
crime, whether
it involves
murder or
robbery or any other crimes that
fall
under
this
category, are considered as committing
the
crime of
hirba
.
3.3.2. The Act
of
Robbery
The
majority of the
jurists include
the
act of robbery as an
important
element
in hirba
in
their
definitions. This
means
that the act
is
not considered as
hirba if
robbery
is
not
involved
even
if it involves
the use of weapon, terrorising
people or murder.
However,
it is interesting
to
note that the same
jurists
seem to
accept
the act of
terrorising people
as
hirba
when they
discuss
the
punishment.
Although
they assert
that robbery
is
one of
the
elements
in hirba, in
the
punishment they seem to agree
that those who
terrify
people without engaging
themselves
in
robbery or
killing
are
liable for
an exile which
is
one of the
punishments prescribed
for hirba. It is
clear
in
this case that they
do in fact
accept that the
act of robbery
is
not an
important
element
in hirb4
even though they
clearly stated the
opposite view
in
their
definitions.
Although
the
Mlikis
mention the
word robbery
in
their
definition,
they
do
not see the
act of robbery as one of the
necessary elements
in hirba
.
Although it
may
be
acceptable
in
their
view that
robbery
is
one
the
objective
in
the crime of
hirba,
this
does
not mean that those
who
do
not rob
but
engage
in
other
kinds
of crimes, such as
murder or terrorising
others, are not considered as committing the
crime of
hirba
.
In
other words, the
crime of
hirba is
complete when other requirements are met even
68
though there
is
no robbery
involved. Thus it
can
be
said
that the
opinion of the
Mlikis
is
preferable.
3.3.3. The Site Of Commission Of Hirba
According
to the
Haubali
and
Hanafi
school, the
site of
the
committing of
hirba is
a
very significant element
in hirba. It is
understood
from
this
view that the
crime
is
not
considered as
hirb4 if it
occurs
in
the
city where the victims
have
the
opportunity
to
seek
help from
other people.
In
other words, one who robs, murders or terrifies others
will not suffer
hadd
punishment unless
this
act
is
carried out
in
a remote area where
it is
impossible for
the
victim to get
help. Furthermore,
according
to this
opinion,
the
victim
in
a city could get the
aid
from
people very easily when attacked
by
the
robbers and
therefore
need not
be
protected
by
the
law
29
of
hirba. Sarakhsi, in
supporting
this
opinion, claimed that the
punishment
for hirba
cannot
be inflicted
unless
the
crime
is
committed
in
an uninhabited place.
30
However, Al-Shfi'i
and
Awz'i
view
that the
culprit must
be
punished with
hadd
whether the
crime occurs
inside
or outside the
city and whether
the victims are able
to
get
immediate help
or not.
31
It is
also stated
in
al-Muhalla
that
hirba
may
take
place
at night or
in
the
day, in
the
jungle
or
in
the
city,
in
the
palace of caliph, or even
in
the
mosque.
32
29-Ibn
A1-'Arabi, Muhammad Ibn Ahmad, Ahkwn
at
Qur'n
,
Maktaba Al-S da, Cairo, 1912
voL
2,
p.
247.
30
-Al
Mabst,
vol.
9,
p.
195.
31
_An
al
Qur n,
vol.
2,
p.
247.
32
-Al-MuhaUa,
vol.
11,
p.
308.
69
The jurists
who
hold
the view that there
is
no
difference between inside
and outside
the
city
do
so
because
of the generality of the verse.
It
seems that the opinion given
by Al-
Shfi'i, Auz'i
and
Ibn Hazm is
more acceptable, since
the
crime of
hirba
could
happen
everywhere regardless of the place.
In
certain cases,
the crimes
that
happen in
the
city are worse
than those that
happen
outside
it. El-Awa
seems
to
support
the
opinion of
Al-Shfi'i, Auz'i
and
Ibn Hazm. He
asserts
that there
is
no special
consideration should
be
given
to the place where
the
crime
is
committed.
A
person who
commits a crime
in
a
town
has
more
dangerous
character than a person who commits
it
elsewhere.
33
Moreover, it is
noteworthy
that the
first
case
in
which
the
punishment
for
hirba
was applied was a case
in
which
help
could
have
reached
the victims.
34
Thus it
is
suggested
that the
punishment of
hadd
should
be inflicted
on
the offender
if
all other
elements of
hirba
are present regardless of where the
crime of
hirdba
takes place.
3.3.4. The Act Of Terrorising People
None
of the
jurists
except the
Mliki
school
include
this
element as a necessary element
in hirdba. The Md iki
school view
that the
act of
terrorising people
is
the
most
important
element
in hirba. Although
the
Mliki
school
does
not
include
other
elements
that
are mentioned
by
other
jurists
such as
the site of
the
committing of
hirba,
silh
(weapon)
and the act of robbery,
it is
suggested
that this element covers all other
elements
that
are mentioned
by
other
jurists. In
other words,
the
act
is
considered as
hirba
when
it is
meant
to terrorise
people, whether
the accused uses a weapon or
merely
his
physical strength
in
executing the
crime.
The
act
is
also considered as
hirba
regardless of where
it
takes place and the
nature of the motives.
33
EL_Awa,
p.
10.
34_
Ibid.
70
3.3.5. The Act
of
Fasdd (Causing Corruption)
It is important
to
note
that this
element
is
not
included in
any of
the
definitions
of
hiriiba
by
the
jurists. However,
as
this
element appears to
be
the
most
important
element
in
hirdba, it
should certainly not
be
precluded
from
the
discussion. If
we
look
at all
the
elements
that
were
discussed by
the
jurists
with the exceptional of one,
i.
e.
the
site of
committing the
crime, we
find
that these elements can
be
put under one comprehensive
heading i.
e. the
act of
fasd (spreading
corruption).
35
This is because
this
heading
covers all acts,
including
robbery,
the use of weapons and the act of
terrorising
people.
All
these
acts
i.
e. spreading corruption
in
society physically and psychologically.
By
including
this
element
in hirba,
the crime that
causes
destruction
to
society even
though no aggression
is involved
can
be
considered as
hirba. Furthermore,
this
element
is
clearly stated
in
the
Qur'an
and
it
should not
be ignored
when characterising
the crime of
hirba.
After
going through the
discussion
concerning the
elements of
hirdba,
we can come
to
the conclusion that there
are only
two
important
elements required
to
determine
whether
or not a crime can
be
considered as
hirdba: Firstly,
the
act of
terrorising people
for
the
purpose of robbery or not and
Secondly,
the
act of causing
destruction (fasd).
Therefore,
all crimes that
fulfil
either of
these two
conditions will
be
considered as a
crime of
hirba.
3.4. Legal Capacity in Hirba
Legal
capacity
is
considered as one of the
important
conditions
in
all crimes
including
hirba. However, it
should
be
noted
that this
element
is
not
included in
any of
the
definitions by
the
jurists. It is
presumed
that this
element, although considered as
35_
Corruption in English is defined
as
immoral, degrading
acts or
habits. It
also means
departure from
what
is legally.
,
ethically, and morally correct.
See The New Thesaurus by
the
Editor
of
Heritage
Dictionary, Houghton Mifflin Company, Boston, New York, 1988,
p.
221. This is
the closest
English
definition
to the meaning of
fasd in
the author's view.
71
important in hirba,
need not to
be included in
the
definition
simply
because
this
element
is
considered as a general rule
in
all crimes
in Shari`a
law. In
other words,
it is
understood that those
who commit crime must
have legal
capacity.
Nevertheless,
the
discussion here
need not
to concentrate on
this
issue,
since
it
was
discussed in
the
previous chapter.
The initial discussion in
this
section
is
concerned with
the
participation of
those
who
have
no
legal
capacity and
its
effects on other offenders.
It is
agreed
by
the
jurists
that those
who
have
no
legal
capacity will not
be
subjected to
hadd
punishment
in
all crimes
including hirba
.
However,
the
jurists have different
views regarding the effect of
the
participation of
those
who
have
no
legal
capacity on
other offenders.
If
an
insane
person or a child,
for instance,
participates
in
the
crime of
hirba,
then,
according to
Abn Hanifa
and
Muhammad bin Al-Hassan,
no
hadd
punishment will
be inflicted,
even on
the
adult and the sane person accused.
36
Al-
Hidya in
this
respect states
that,
if
among a party of robbers
there
happens
to
be
an
infant,
or a
lunatic,
or a prohibited relation of
the
person robbed, punishment
is
remitted
not only with respect to this person,
but
also with respect
to
all of
the
rest of
the
party.
37
According
to these
views, when
the
hadd
punishment
is
not
inflicted
on some of
the
offenders, all the
offenders will also escape the
punishment
because
all
the
offenders
share the
responsibility of
the
crime.
However,
according
to this
opinion, the
offenders
are still
liable for
qisas punishment
38
if
they
commit murder or cause
injuries
to the
victims as this
violates rights of man
(haq
al-adani).
The Mliki
and
Zhiri
schools
have
a
different
view concerning this
issue. They
view
that
all offenders except a child and an
insane
person, are
liable for
the
hadd
punishment
for hirdba. They
view that,
although a child and an
insane
are not
liable for hadd
punishment, their
participation will not affect other offenders who are responsible
for
36_
Sharaf Al-Din, AA., Al-' Uqba
al-Mugaddara
Li Maslaha
al-Mujtaiw' al-Islami,
Maktaba Kulliyt
at-
Azhariya, Cairo, 1973,
pp.
278
-
279.
37-Al-Hidya,
op. cit, p.
134.
38-
Fiqh
al
Sunna,
vol.
2,
p. p.
466
-
67.
72
the
forbidden
act.
They
add that,
hirba is involved
with the
right of
Allah
and
the
right
of
Allah does
not consider
the
individuals
39
but
the crime.
In
other words, when a
crime
is
committed
by
an
individual
who
has legal
capacity
he is liable for hadd
punishment even
though
some of
the
offenders are children or
insane.
The Hanbali
school seems
to
agree with
the
opinion of the
Mliki
and
Zhiri
schools.
They
assert that,
if
the offenders are children or
insane,
the
hadd
still applies to
other
participants.
They
also view
that the
reason
that
prevents
hadd
punishment
from being
inflicted
on a child or an
insane is
only applicable
for
them
but
not
for
others.
40
By looking
at these two
opinions,
it is
suggested that the
opinion of the
Mliki
and
Zhiri
schools as supported
by
the
Hanbali
schools
is
more acceptable on the
ground
that the
criminal responsibility
is based
on
the
individuals
and not on
the
group.
In
other
words, every
individual is
subject
to the
punishment
for
the crime
he
committed.
The
participation of other
individuals
would not affect
their
responsibility and
their
liability
for
punishment.
Furthermore,
excluding punishments of
hadd for
those
who commit
crime simply
because
of the participation of children and
the
insane
would
jeopardise
the criminal
justice
system
in Shari`a law. The
criminal would use children as well as
the
insane in
their
criminal activity to
escape the
had4
punishment.
If
this
is happened,
it
would
be difficult for justice
to
be
applied and consequently
the
crime of
hirba
would
become
the
serious problem of society.
3.5. The Religion
of
the
Accused Person
of
Hirba
Most
of the
jurists
agree
that the
person accused of
hirba
can
be Muslim
or non
Muslim.
41
According
to the
Hanafi
school,
the
hadd
punishment can
be inflicted
on the
39
A! Mudawwana,
vol.
4,
p.
430.
40-
Sharaf Al-Din,
op. cit, p.
279.
41-
TafsirAl-Tabari,
vol.
6.
p.
121.
73
Muslims
as well as on
the
non-Muslims.
42
According
to their
opinion, the
hadd
punishment will
be inflicted
when all other conditions are
fulfilled
regardless of
the
religion of the
offender.
They
add
that the verse of
hirba is
general
(`wm )
and
it
stipulates
that the
hadd
should
be
applied
to any person who commits
hirdba
whether
Muslims
or
dhinv is.
43
The Mliki
school seems
to take the same
line
as
the
Hanafis. According
to
Imm
Mlik,
the
hadd
punishment must
be inflicted
on
those
who commit
hirba
whether
they
are
Muslims
or
dhimn'
s.
It is
stated
in Mudawwana
that
`Uthmn
executed a
Muslim
who murdered a
dhin-ni
44
in hirba for
a property.
45
It is
clear therefore,
that
if
a
Muslim is killed for killing
a
dhimmi,
a
dhinri i
must also
be killed for killing
a
Muslim.
The Shfi'i jurists
are also very much
in line
with
the opinion of
the
Hanafis
and
the
Mlikis. They
view
that there
is
no
difference between Muslim,
dhim'ni
or nurtadd
(apostate) in hirba. If
all
the
conditions are
fulfilled,
the nuhrib will
be
punished
with
hadd
punishment as
long
as
he
commit
this crime
in
the
Islamic
state.
Furthermore,
they
add
that this practice
is in fact in line
with
the verse of
hirba
.
46
In
the
Hanbali
school
there are
two
opinions regarding
this matter.
Some
of them
say
that the
nvharib
is
need not to
be Muslim. If
a
dhimini
participates
in
committing
hirba
with a
Muslim, he
will
be
punished with
the same punishment as
for
the
42-
It is
reported that a
Jew
was stoned
in
the time of
Prophet for
zith.
See SahihAI-Bukhri,
vol.
8,
p.
582.
43
See AI-Mabsi
vol.
4,
p.
201.
4-
Killing
a
dhimmi is
a grave sin and
it is
prohibited
by
the
Prophet. See SahihAl-Bukhri,
vol.
9,
p.
619.
45
Al-Mudawwana,
vol.
4,
p.
43 0.
46
-Khi#b,
Muhammad
al-Sharbini,
Mughni Al-Muirtj* da Ma'rifa Ma'ni
al
Alfz, Mat
aa
Mustafa
Al-Halabi, Cairo, 1958,
vol.
4,
p.
180.
74
Muslim. The
second opinion of the
Hanbali
school says
that the
muh&ib must
be
Muslim. If
a
dhinrni
commits
hirb4 his
presumed agreement of protection
('
aqd a!
-
dhii
ra) will
be
void.
In further discussion
of
this
matter
the
Ijanbalis
say
that the
dhimrni is left
to
remain
in
the
Islamic
state provided
that
he does
not
harm
others.
By
committing
hirbq
the
dWnw i has
violated
the rule of
the
Islamic
state and
therefore
his blood
and
his
money are no more protected.
47
From
the
opinions given
by
the
Muslim jurists
regarding
the
religion of the person
accused
in hirba, it
seems
that the
opinion of majority
(jurrl2r)
of
jurists is
the
most
acceptable.
According
to the
junizr
of
jurists including
the
Hanafis, Mlikis, Shfi`is
and some
Hanbalis,
the
religion of the nuuharib
is
unrelated
in hirciba. The hadd
punishment will
be inflicted
on any person who commits the crime of
hirdba
when all
the
conditions are met regardless of whether
he
or she
is Muslim
or
dhimn i. The
opinion of some
Hanbalis
which view that the
nuhrib must
be Muslim is
unacceptable
for
the
following
reasons:
a)
The
verse of
hirba is
general
(`wra)
and
therefore the
rule which
is
extracted
from
this
verse applies to those who are residing
in
the
Islamic
state regardless of their
religion.
If
a
Muslim
or a
dhin7? i
commits
hirb4
he
will
than suffer
the
hadd
penalty
which
is
prescribed
for
this
crime.
Al-Tbari in his
commentary
for
the verse of
hirba
says that the
verse gives
the
clear picture that the
principle which
is
taken
out
from
this
verse
is
not only
for Muslims but
also
for
those who
have
the
protection agreement
('aqd
a!
-dhim
a), except
for
mushrikin
(non-Muslims)
who reside outside the
Islamic
state.
48
47-
Al-Mughni,
vol.
9,
p
133.
48
-
Al-Tbari, Abu Ja'far Muhammad ibn Jarir, TafsirAl-Tbari, Al-Matba'a A1-Maimaaiyyah, Cairo,
1321 AH,
vol.
6,
p.
121.
75
b) The
crime of
hirba has
a great effect on the
internal
security of a state.
The
safety
of state and
its
people will
be
affected regardless of who
is involved in
this
crime.
It
makes no
difference
whether
the
crime
is
committed
by Muslims, dhim'nis, 49
nvsta'nins
50
or
harbis
51
Thus,
whoever causes
trouble
or ruins
the stability of a state must
be
punished with the
same penalty.
52
c)
Dhimmi is
considered as a citizen of an
Islamic
state who receives protection
from it.
It is
an obligation
for him
therefore to comply with all
the
regulations and rules as
long
as
he
resides
in it,
except
for
the
rule on
drinking
alcohol where
the
non
Muslim
are
allowed to
do
so, even
though
it is
against
the
rule of the
Islamic
state.
3.6. Female Muhrib
The
position of a
female
nuirib
is
controversial.
According
to
Abn Hanifa,
none of
the offenders will
be inflicted
with
hadd
punishment
if
women participate
in
the
crime
53
Abn Ysuf
seems
to
agree with only certain aspects of
the
opinion of
his
master
Abt Hansfa. He
views
that,
if
women
join
a group of men
in
committing the
crime of
hirba
and
then they
(the
women) commit
homicide
and robbery while the
men
do
not,
the
hadd
punishment will
be inflicted
on
the men
but
not on the women.
54
49_
Dhimrri is
the term used
for
the non-Muslims who
live in
the
Islamic
states who
benefits from
all the
protection of the
Islamic
authority.
5Q
Musta'min is
the word used
for
those who reside
in
a non-Muslims state
but have
temporary
protection while visiting the
Islamic
state.
51_
Haubi. is
the residence of the non-Muslim state.
52-Jumaili,
K. R, AhkamAI-Bughci
wa a!
Muhribin, Dar Al-Huriryya li
al-Tib'a,
Baghdad, 1977,
vol.
1,
p.
16.
53
Bp'i`
at-,
Sara i'
vol.
9,
p.
284.
54-
Ibid.
76
Abi Hanifa
argues
that
women are
like
children and
their
participation will raise the
shubha
(doubt)
and consequently
the add punishment should not
be inflicted.
55
Abn
Ysuf,
agrees
that women offenders should not suffer
hadd
punishment regardless of
what crime they
have
committed, whether
it
was
homicide,
robbery or
terrifying the
public.
However, he
asserts
that this
exception
is
not extended
to male offenders.
Male
offenders, are
therefore
liable for hadd
punishment even when women participated
in
the
crime of
hirha.
56
Abn Hanzfa
seems to
have
chosen a similar approach concerning
female
muharib
to that
concerning
the
participation of children, when
he
states that the participation of women
will rule out the
hadd
punishment
for
all culprits regardless of what
they
have done. In
his
view the
participation of women
in
the
crime of
hirba is
similar
to that of the
children.
If
any of
the
women commit a crime
together with male offenders, the
hadd
punishment will
be dropped for
all of them
because
their participation will raise shubha
and
therefore the
hadd
punishment must
be
avoided.
Karakhi
also seems to
agree with the view of
the
Hanafis. He
states
that the
hadd
punishment should not
be inflicted
on
female
muhrib
because
the
act of
hirba is
normally carried out
by
men who
have
physical strength and are able to cause chaos
and
fear in
society.
Moreover,
the
act of
hirba
contradicts women's nature, as the
crime of
hireba
requires
force
and
fighting (hirba ). Women by
their
nature are gentle
and tender
57
and
therefore
should not
be inflicted
with
hadd
punishment
for
their
crimes.
55-
Ibid.
56-
Ibid.
57-A1-Mabs4,
Vol. 9,
pp.
197
-
198.
77
The Mliki
and
Shfi'i jurists however have
rather
different
views.
According
to
Imam
Mlik, hirdba is
one of the
hudrld
punishments which must
be inflicted
on all offenders
whether they
are men or women.
58
The Shfi'i jurists
seem
to take the
same
line
as
the
Mlikis. They
assert
that
it is
not necessary
for
the
muhrib to
be
men.
Men
and
women are
the same as
they are nvkallaf.
All
mukallaf are
liable for hadd
punishment.
59
After
analysing the opinion given
by
the
jurists, it is
suggested
that the
opinion of
the
Mlikis
and the
Shafi`is is
preferable
in
this case.
The
opinion of
the
Hanafis is
unacceptable
for
the
following
reasons:
i) Incapability
of wommn
in
conyritting
hirba
The Hanafis
view that
by
nature women are
incapable
of committing the
crime of
hirba. This
argument may
have been
valid and applicable
in
their time when physical
strength was considered as a significant element
in
committing crime especially
hirba.
This
argument,
however, is
no
longer
valid.
Although
women
have less
physical
strength
in
comparison to
men,
they are nevertheless able
to commit
the
crime
hirba
,
especially when supported
by
various
kinds
of weapons
that are available nowadays.
There is
no
doubt
that
both
men and women are now equally able
to terrorise
and
terrify
the
public when arms are
involved. Both
men and women
incur
the
same
degree
of
fear
and chaos
to
society
because
of
their
crime.
Hence it is
suggested
that
it is
not necessary
for
the rnuhrib to
be
men.
If
women are
involved in hirb4
they
are
liable for hadd
punishment as
it is inflicted
on male nwharib.
ii) Qiys (analogy)
of woman on a child offender.
The Hanafi jurists
also use giys
(analogy)
of women muhrib on children as their
58-
A!
-Mudawwana,
vo1.4, p.
430.
59
Al Ramli, Shams Al Din Muhammad B, Shihb Al Din, Nihayat At Muhtaj Il Sharh Al Minhaj,
Mathaa Mustafa Al Halabi, Cairo, 1938,
vol.
7,
p.
162.
78
argument.
They
view
that
if
children participate
in hirba
the
hadd
punishment should
not
be imposed
on
them and that the same case
is for
women.
The
giyds which
is
used
on
this
occasion
is invalid because
children are not
legally
responsible
(nukallaf) for
their
acts.
Women however,
are responsible and accountable
for
their
acts
if
they
are
sane and
have
attained
the
age of puberty
(bulgh). Therefore,
women should not
be
exempted
from hadd
punishment
if
they are
found
guilty of committing the
crime of
hirba.
iii) The
participation of won=
in hirba is
considered as shubha.
The Hanafi jurists in further
argument regarding
female
muhrib say
that the
participation of women
in
this crime raise a shubha
(doubt)
and therefore
hadd
punishment should not
be inflicted. In
a
hadiith
the
Prophet
clearly says:
"Avert hadd
punishments
by
resemblance.
"
60
However,
the
shubha which
is
claimed
by
the
Hanafi jurists in
this
case
is invalid
because
women are not
like
children or
insane
persons.
61
Hence,
their
involvement in
this
crime
is
not considered as shubha and therefore they
are
liable for
the
hadd
punishment
in
the same way as
the
male mr rib.
Al-Tahwi,
one of
the
Hanafi jurist
agrees
that
men and women are
in
the
same
degree in hirba
as
in
other
hudd
crimes.
62
It is
obvious
from
the
discussion
that the
junior (majority)
of
jurists
view that the
muhrib can
be
men or women.
According
to the
jurists,
there
is
no reason why
women should not
be
punished
by hadd
punishment
if
they
commit
hirba. If
men and
women
have
the
same punishment
in
other crimes such as zin and
in
sariqa
(theft),
they
should
have
the
same punishment
in hirba because
their
acts will give
the
same
60- AI-Hidya,
vol.
2,
p.
100.
61-See
discussion
of
legal
responsibility of women and also the
discussion
concerning the
capability of
women on p.
17.
62-
Al-Mabst,
vol.
9,
pp.
197
-
198.
79
result to the society.
Thus it is
suggested
that the
opinion of
jurrlr (majority)
concerning the womennuhrib
is
preferable
based
on the
above arguments
.
Al-Dardir
seem
to
agree
that
women can commit
the
crime of
hirdba, he
points out
that
women offenders should
be
exempted
from
salb
(crucifixion)
and nafi
(exile)
63
Al-Mirghinni is
also
held
the
same opinion.
64
The
punishment
for
women nvhrib),
should only
be
execution and amputation.
65
The
opinion of
Al-Daradir is however,
questionable.
If
n4fi
(exile) is
exempted
in hirba,
this sort of punishment should also
be
exempted
for
the unmarried woman who commits zin.
66
However,
there
is
no nass
from
the
Qur'dn
or the
Sunna
that
gives
the
exemption
for
the
woman adulterer
from
the
punishment of Haft
(exile). Therefore,
this
punishment
is
applicable to
both
men and
women
in
crimes of zin and
hirba. The
same rule
is
also applied
to
crucifixion.
3.7. The Victims
of
Hirba
Regarding
the
status of
the victim, the
majority of
jurists
view
that
it is
essential
for
the
victim to
be
a
Muslim
or a
dhinn i.
67
According
to some
Hanafi jurists, if
the
victims
are
barbi
68
or nustamhi then the
offenders will not
be
punished with
hadd
punishment
because
their
property
is
not permanently protected
(al-`isms
al-
nv'abbada)
by
the
Islamic
authority.
69
According
to
Al-Sarakhsi,
the
accused will not
get
hadd
punishment
if he
commits
hirba
such as robbery against an alien, since an
63-
A1-Das5gi, Muhammad bin Ahmad,, Uashia
al-Dasgi
`alaAl-Sharp
al-Kabir,
Dar Al-Fikr, Cairo,
no
date,
vol.
4,
p.
350.
64-
Al Hidya,
vol.
2,
p.
99.
65Ilashia
at-Dasgi, vol.
4,
p.
350.
66_Ai_Mughni,
vol.
6,
p.
146 for
the punishment of zin
(adultery) for
unmarried woman.
67
-A1-Mabst,
vol.
9,
p.
195.
68-According
to
Shari `a law,
a
barbi
who
illegally
enters
the
Islamic
state can
be
executed.
See Sahib Al-
Bukhri,
vol.
4,
p.
490.
69-
A!
-Mabst,
vol.
9.
p.
195.
80
alien's property
is
not absolutely protected.
70
It is
also stated
in Al-Hidya
that the
rruhrib who takes the property of an alien
by hirba
should not to
be inflicted
with
amputation of the
band
and
foot.
71
Al-Hidya
added
that
a crime of
hirba
committed
on a nvsta'min
is
not an occasion
for
punishment,
because
of
the
doubt
which exists
with respect
to the
protection of
his life
and property.
72
The jurists
seem to
have
an absolute agreement concerning the victim
in hirdba. They
agree that
person accused of
hirba
would only
be inflicted
with
hadd if
the
victims
are either
Muslims
or
dhimnis. Nonetheless, it
could
be
suggested that the
Brustamin
should also
be included in
the
list
of comprehensive protection.
This
protection
is
essential
for
the
following
reasons:
i) The
protection agreement
(`aqd
al-
amn)
that
is
made officially
between
the
nvsta'min and the
Islamic
authority should make
him
eligible
for
the
full
protection as
enjoyed
by
the
dhinwis. Although
the
nvsta'min
is
a
barbi in
reality,
the
protection
agreement makes
the
status of the nusta'muz
become
similar
to that
of the
dhinvris.
Therefore, he
should
be
protected
by
the same
law, i.
e. the
hudd law.
ii) Giving
the
nusta'min a similar protection and treatment would
benefit
the
Islamic
state
in
terms
of religion.
The
protection that
is
granted
to the
nvsta'nwz while
in
the
Islamic
state
for
whatever
legitimate
reasons may encourage
him
to
stay
longer in
the
Islamic
state and eventually
he
would
be
attracted
to the
environment of
the
Islamic
state.
Gradually,
the
nvstamin may
become familiar
with the
Islamic
state and would
convert to
Islm. This
objective would not
be
achieved
if
the
nusta'min
is
not treated
equally and
feels
unsafe while
in
the
Islamic
state.
70
-
Ibid.
71-41
Hidc
, a, vol.
2,
p.
131.
72
-
Ibid,
p.
136.
At
iii) The full
protection granted to the
nest
min
would also
benefit
the
Islamic
state
economically.
If
the mtsta'muz,
for instance,
comes to the
Islamic
state
for business
purposes,
the
protection
he
gains
in
the
Islamic
state and
the
guarantee of safety
for his
trade
would encourage
him
as well as
his
partners
to come to the
Islamic
state
for
trade
and
business
purposes and, consequently,
the economic of
the
Islamic
states would
prosper.
Some
might argue
that the trade can
be done between
the
Islamic
states and
that the prosperity of
the
economy can also
be
achieved
in
this
way
.
Nevertheless,
one
should
be fully
aware
that
in
the
present
day, business
and trade
are
interchangeable
between
all countries
in
the
world.
Each
country
is in
need of
the others.
Therefore,
there
is
no
doubt
that the trade
between
non-Muslim states
is
also
important.
iv) The Islamic
states may also
benefit from
the protection given
to the
nusta'min
politically.
This
protection would make
the
non-Muslim states
feel
that their citizens
who travel to the
Islamic
state are safe and
fully
protected
by
the
law
of
that
particular
state.
This
would
keep
the
relationship
between
the neighbouring
countries
intact.
Although it is
understood that
it is
the
responsibility of the
Islamic
state to
spread
Islam
throughout the world
in
the context of
jih&J (the holy
war)
this
does
not mean
that the
Islamic
state
is
always at war with
its
neighbouring states.
The
ultimate objective of
Islm,
according to
Khaddri, is
not war per se,
but
the ultimate establishment of
peace
73
The
above reasons suggest that the
Islamic
state can
benefit from
giving
full
protection
to the
nvsta'min while
he is in
the
Islamic
state.
Nevertheless,
the
Islamic
authority
should
be fully
aware of
the
presence of the nusta'min.
Their
entry to the
Islamic
states
must
be for legitimate
reasons, otherwise
they should not
be
allowed to
enter the
Islamic
state
if
their
presence may
jeopardise
the security of
the
state.
73-Khaddri,
Mfid.,
op. cit, p.
141.
82
It is
therefore
suggested that the
nvstainin should
have
the
same protection and
the
offender who commits crime against
the
mtsta min should receive the same punishment
as
for
crimes against
the
Muslims
and
dh&Trris.
Another
essential element of
the
victims
in hirba is
that the
victims and the
offender
have
no prior relationship
(silcd
al-rahim).
This
argument
is based
on
the
crime of theft.
If, for instance,
the victim
is
a relative of
the
muhrib, no
hadd
punishment will
be
inflicted.
74
Concerning
this
matter,
Al-Hidya
asserts that
with
hirba
against relatives
doubt
arises
in
respect of custody.
In
other words,
if
the
muhrib steals
from his
relatives,
it
means that
he
steals something of which
he has
a right
to
custody.
Therefore
he
would not suffer
lurdd
punishment.
75
The
victim should also
be
the
rightful owner of the
property or
have
the
right of
possession of the
belongings
concerned.
76
However, if
the
accused robs a
thief,
he
incurs
no
hadd
punishment simply
because
the
property
that
has been
robbed
from him
is
not
his. Hence
the
uhrib will not suffer
Fzadd
punishment
for
this
crime.
3.8. The Punishments for Hirba
The
punishments
for hirba
are clearly stated
in
the
Qur'an. The Qurlin
provided
four
kinds
of punishments
for
this
offence.
They
are:
3.8.1. Execution
Execution is
one of
the
punishment prescribed
in
the
Qur'n for
the
crime of
hirba.
The jurists
seem to
have different
opinions concerning this
matter.
Some
of
them
assert
74
_
Bada'i',
vol. vii, p.
92.
75
Al. Hidya,
op. cit, p.
136.
76
-
Bacda'i',
vol. vii, p.
92.
83
that the
execution can
be inflicted if homicide
takes
place.
The
execution
in
this case
however is
not as giss
(retaliation), but
as a matter of
hadd.
77
Al-Nawwi
states
that
homicide
accompanied
by
theft
is
punished with
death,
and
the
corpse
is
exposed
for
three
days
upon a cross.
After
this period
it
should remain until a clear
liquid begins
to
flow from it
78
According
to
Imazm Mlik,
the mthrib who
kills his
victim must suffer
the
death
penalty.
79
The jurists
seem
to agree
that execution should
be inflicted
on
the
offender who
killed his
victim
during
the
committing of
hirfia.
Concerning
the
method of execution,
there
is
almost no
dispute
among the
jurists
that
the
death
penalty
is
to
be inflicted by
a sword.
80
Indeed
some of
the
jurists
even
do
not
allow
the
execution other than
by
a sword.
81
Therefore,
any other method of execution
would
be
rejected
because
of
the existed of
ijm' (consensus)
regarding
this
matter.
However,
this
argument
is
unacceptable
because
the
ijm' basically
expresses
the
jurists'
view that the
common method of execution
in
their time constituted
the
proper way of
inflicting
capital punishment.
When
this
method
becomes
outdated,
there
is
no
harm in
changing that
method as
it is
not
the only way of
implementing
the punishment.
It is
again a question of changing
the
decision in
accordance with
the change of the
circumstances that
lead
to that
decision.
82
Apparently,
the
only thing which
jurists have
no right
to
interfere
regarding the
punishment of
hirba is
the punishment
itself. This is because
the punishment
for
this
crime
is
clearly stated
in
the
Qur'n
and no one
has
the right
to
interfere
with
it
or
to
change
it. However,
the method of
inflicting
the
punishment
is left
to the
judge
or
77-Al-Mabszk
vol.
ix,
pp.
196-97.
78-
Minhj,
p.
449.
79
See Bidyaal Mujtahid,
vol.
2,
pp.
380
-
381.
80
-Al-MuWa,
vol.
11,
p.
318.
81-
Al-Bugh, Mustafa., AI-W'i fi Sharh
al
Arba`in
alNawwiyya,
Dar Ibn Kathir, Beirut, 1986,
p.
110.
This
opinion
is held by Al Thauri, Ab Hanifa
and
Ahmad.
82
-
El- Awa, M. S,
op. cit, p.
10.
84
Imm
to
execute as
he
sees
fit because it is
neither prescribed
in
the
Qur' n
nor
in
the
Sunna.
Although
there
is
an
ijma`
of
`Mani'
which views that the execution must
be
carried out
by
a sword,
this
is
simply applicable at
their time
when most of
the
available
instruments
was of
that
kind. The important
question
here is
not
the
method of
execution,
but
the
punishment
itself. As long
as
the
punishment prescribed
in
the
Qur'n is
carried out,
the
Islamic
authority
has
already executed
the command given
in
the
Qur' n.
However, it
should
be
observed
that when
inflicting
the execution,
the
instrument
used
must
be
reliable enough and
to ensure
that the offender
does
not suffer too
long before
his death.
83
In
a
hadcth
the
Prophet
says:
" If
you
kill, kill
well".
84
Although
other methods of execution such as
hanging
or shooting may
be
acceptable
in
the
Shari'a
law,
these methods should
be
proved
to
be
effective
in
executing
the
offender.
The
methods
that carry
the possibility of
delaying
the
death
of the
offender
should
be
avoided.
Nevertheless, it is
suggested
that the conventional
instruments
that
have been
used
for
execution such as a sword may
be
the
most efficient method
in
executing the
criminal.
When
the criminal
is beheaded,
there
is
no possibility of
delay
in his death. Thus it
can
be
said
that
although other methods of execution can
be
accepted as a
legal
method
in
execution, execution
by
a sword
is
considered as a
preferable one.
83_
A1_Bugha,
op. cit, p.
109.
84
-
See Musnad LnrmAb=4 Vol. 2,
p.
444.
85
3.8.2. Amputation
Amputation is
agreed
by
consensus
to
be
one of
the
punishments prescribed
for
the
crime of
hirba.
85
It is
to
be inflicted
on those who rob
but do
not
kill.
86
According
to
Imam Mlik,
the
Qdi
can
inflict
amputation on
the
nvhrib who commits robbery
but
not murder.
This
punishment can also
be inflicted
when
the
rrvhrib only
terrifies
the
public.
87
It is
clear
from
the
jurists
view
that amputation
is
no
doubt
one of
the
punishments that
can
be inflicted
when
the
crime of
hirba involves
robbery.
However,
they
differ if
the
crime
does
not
involve
robbery.
Some
of
the
jurists
view
that the
offender should not
be
amputated while others view otherwise.
This difference is
basically
rooted
in
the
difference
of
interpretation
about
the
infliction
of punishment
for
hirba.
88
Ibn Qudama
asserts that,
if
the
offence
is
committed
for
the
first
time, the
right
hand
and
left foot
of the
accused person should
be
amputated.
89
Al-Mughni
adds that,
if
the
culprit
had lost his
right
hand
and
left foot
already then,
according
to some
jurists,
there
should
be
no more amputation,
but
according
to
other
jurists, his left hand
and right
foot
should
be
cut off.
90
85-Muhammad,
Fu'd Abdul Bagi, A1-Mu'jamAl-Mufahris Li AlfzAI-Qur'an, Dir Al Hadith, Cairo,
1986,
pp.
547-48. In
theft, the amputation
is
carried out
by
cutting of the offender's
hand.
86
Ba,
vol.
7,
p.
93.
87
Al-Hfiz, Muhammad bin Ahmad., Bidya
al-Mujtahid wa
Nihayat Al-Muqtasid
,
Dar Al-Filer, Cairo,
no
date,
vol
2,
pp.
380
-
381.
88
See
the
discussion in
p.
32.
89-
Al-Mughni,
vol.
4,
p.
311.
90-
Ibid.
86
3.8.3. Salb (Crucifixion)
Crucifixion is
also one of
the
punishments prescribed
for hirba. The jurists
seem
to
be
in
absolute agreement
that the
offender can
be
crucified when
he
commits
homicide
and
robbery.
91
Although
the
Hanafis
and
Mlikis
agree
that the
offender can
be inflicted
with the
punishment of crucifixion when
homicide
and robbery are
involved,
they
give
the
authority
to the
Qdi
to
inflict
this punishment
for
crimes other
than
homicide
and
robbery.
Ibn Hazm, however,
views
that crucifixion
is
a separate punishment which
can
be inflicted in
conjunction with any other punishment, whether
before
or after
it.
92
The jurists have
two opinions concerning
the
infliction
of
the crucifixion.
The first is
that the criminal should
be
crucified alive and then
be
thrust
by
a
javelin. This
view
is
held by
the
Hanafi
school
93
and
by Ibn
al-Qsim of
the
Mliki
school.
94
The Hanafis
states that
crucifixion should
be
carried out
before
execution, since
it is
useless
to
inflict
crucifixion after
the
execution.
95
Ibn Hazm
also seems
to agree with
this
view.
He
asserts
that,
if
a
judge
chooses
to
impose
crucifixion as
the punishment,
the
criminal
should
be
crucified alive,
left
until
he dies,
and then taken
down
and
buried.
96
The
second opinion
is
that the criminal should
first be
executed
in
the usual manner and
his body
should subsequently
be
crucified
for
three
days
as a warning and
deterrent
to
others.
This
opinion
is held by
the
Shfi`i
and
Hanbali
school and some of
the
Mliki
jurists.
97
91-
See Al AhkmAl-Sultnfyya
p.
63, A1-Mughni,
vol
10,
p.
304
and
Al-Sha'rani, Abd A1-Wahh5. b Bin
Ahmad, Al Mizn
,
Maktaba Al-'Amira. Cairo, 1856,
vol.
2,
p.
146.
9-Al-Muhalla,
vol.
9,
pp.
317-318.
93
Al-AhkffmA!
-Sultniyya,
p.
64.
9-
AI-Mudawana,
vol.
4,
p.
429.
95-Al-Hidya,
vol.
1.
p.
536.
96-
AI-Muhala,
vol.
11,
pp.
317-318.
97-
Biddya
a!
-Mujtahid,
vol.
2,
p.
494.
87
'According
to
Imazn Al-Shfi'i,
crucifixion should
be
after the
death
sentence
has been
carried out since crucifixion
before death
would
be
too
cruel.
Imam Ahmad
also agrees
with
this
view.
98
The first
opinion of
jurists
that
held
the opinion
that the muharib should
be
crucified
alive
is
preferable
because,
according
to
Ibn Hazm,
the
Qur'anic
verse
does
not mention
that
crucifixion should
be
used after execution.
99
Therefore,
what
is
considered as
appropriate when
inflicting
this
punishment can
be
carried out as the
Qdi
sees
fit. In
this
context
inflicting
crucifixion
before
execution
is
more appropriate
because
the
punishment
is
prescribed
for
the offenders and not
to
innocent
people.
In
other words,
if
the
crucifixion
is
carried out after
the
execution, the offender
feels
no pain and
it is
useless to
inflict it. Moreover,
according to
Imm Mlik,
crucifixion
is
an
initial
punishment
(`igb) for
the offender and not
for
the
sake of
deterrence
and
this
punishment should not
be inflicted
on
the
dead
person.
100
It is
also worth pointing out
the opinion of
Imdm Malik
concerning crucifixion.
Imm
Mlik
when asked about crucifixion
did
not reply
but
merely said,
"I have
never
beard
of anyone who was crucified except one man called al-Hrith who was crucified
in
the
time
of
'Abd
al-Mlik
bin Marwdn
after claiming
to
be
a prophet.
"
101
It is
also
reported that the
Prophet did
not
impose
the crucifixion upon
the
people of
'Ukl
and
'Urayna.
102
These
statements give an
impression
that although
the crucifixion
is
one of
the
punishments prescribed
for hirba,
this
punishment seems not
to
be inflicted
except
in
exceptional circumstances.
It is
presumed
that the
Qadi
when
dealing
with the
crime
of
hirba
did
not see the
appropriateness of
inflicting
this
punishment to the
hirba
offender.
98-
-Mughni,
vol.
5,
p.
308.
99-
Al-Muhalla,
vol. xi, pp.
317-318.
100
See Sharh
at
Zargni, Matba'a Muhammad Afandi Mustafa, Cairo, No Date,
vol.
8,
p.
110.
101-A1-Mudawwana,
vol.
4.
p.
429.
102
-Ibid.
88
Thus
the
Qdi
might
instead have
chosen other punishments that
are also prescribed
for
the
crime of
hirba.
3.8.4. Al- Nafi (exile)
Exile (rte is
one of the
punishments prescribed
by
the
Holy Qur'an for
the
robbers.
This
penalty was to
be
applied when the
defendant
terrified
people,
but
neither
killed
nor robbed them.
However
there
are
three opinions of
the
jurists
concerning this
punishment.
According
to the
Hanafis
and
Shfi'is
school, exile signifies
imprisonment
103
for
the
following
reasons:
i) it is impossible
to
exile
the
accused
from
the
surface of
the
earth;
ii)
although the
offender of
this
crime could
be banished from
one city
to
another, this
would
jeopardise
the objective of the
punishment which
is
meant to
protect
innocent
people
from
criminals;
iii)
the
criminal could
be
exiled to the
land
of
the
infidels, however,
this
procedure would
lead
the
person accused
to
apostasy and to
commit
hostile
acts against the state.
Therefore,
according
to the
Hanafis
and
Shafi'is
school, what
is
meant
by 'exile (n4) from
the
surface of
the
earth'
in
the
Qur'n is
that
the
accused should
be imprisoned.
104
According
to
Malik
,
105
the
accused must
be
kept in
prison
in
the
country of
his
exile.
106
The Mliki
school understand
it
as
imprisonment in
another country, not
in
that
of the criminal.
107
The Hanbalis
say that
the
sentence of exile must
be
carried out
in its literal
sense and
the
place of exile may
be
anywhere.
108
According
to
Hassan, Qatda
and
Zuhri,
the culprit must
be
exiled
from
bild
al
Isldm (Islamic
state) to
bild
al-Shirk
(non-Muslim
state).
109
103-
Al Ahkm
al-Sultwriyy4 p.
62.
104-Al
Rzi, Al Fakhr., Al TafsirAl Kabir, Dar Ihy Al Turath Al `Arabi, Beirut, N. D.,
vol.
3,
p.
586.
10
Al-Qasim, Abdul Rahmra, Al-MudawwanaAl-Kubra, Matba`a
al-Khairiyya,
Cairo, 1324 A. H.
vol.
4,
p.
429.
106-
See TafsirAl-Tabari,
vol.
6,
p.
127.
107
Al
u1J4 Aj-Sultisi
p.
179.
108_Al-Mughni,
vol.
5,
pp.
313-314.
109
Al AO. &nAI-Sultnniy}
p.
78.
89
As for
the
duration
of
the
imprisonment, it is
stated
in Bad'i,
that the
offender should
be kept
until
he
repents.
110
In
reviewing the various points of view,
it
can
be
said
that the
view of the
ShUi`i
and
Hanbali
school are not supported
by
any
text
(nap),
and
that
of the
Hanafi
school seems
to
be
more acceptable.
The Mlikis, by
adding
to
imprisonment
the
condition that
it
should
be
outside the
criminal's own country,
interpret
the word
i in both
senses.
There is, however,
no need
to
do
this
since
imprisonment is
a separate punishment
which
is known independently
of
the
Qur'anic
usage.
It is
the word nafi
(exile)
and not
the
word
herbs
(imprisonment) is
used
in
the
Qur'dn.
In
any case, the
nuharib should
be
punished
by
exile until
he
gives evidence of a
better
character and
does
not seem
likely
to
engage
in
criminal conduct again, or,
in
the
jurists'
word, until
his
repentance
is
proved
to
be
true.
111
3.9. The Infliction Of Punishment For Hirba
The Qur'anic
verse that was quoted earlier prescribed
four
punishments
for
the
crime of
hirba:
death,
crucifixion,
the
cutting off the
hands
and
feet from
the
opposite sides
(the
right
hand
and the
left foot
or vice versa), and nail
(exile). The jurists, however, have
some
differences in
opinion concerning the
infliction
of
these
punishments.
These
differences
are
due
to the
fact
that
in
the
process of committing the
crime, the
muharib
may
fall into
either one or all of the
following
categories of acts:
i) homicide
and
robbery
ii)
robbery without
homicide iii) homicide
without robbery and
iv)
terrifying the
victims.
112
110-
Bad i`,
vo1.7, p.
95.
111
'Auda,
op. cit, vol.
1,
pp.
660-661.
112-
A1-Mughni,
vol.
5,
pp.
307-312.
90
Based
on these categories,
it is
conceivable
that the
act of
hirba
may
be
conducted
in
different
manners.
Therefore,
the
punishment will
be
carried out
based
on this
act.
In
other words, those
who are
found
guilty of
hirba
would not necessarily suffer
the
same
punishment.
Concerning
this
matter,
Ibn 'Abbs, Al-Hasan
and
Qatda
view
that the
punishment
for
hirba
should
differ
according
to the
differences between
the
acts, not
the
differences
of
criteria
(sifat). If
the
offender
is found
guilty of murder and robbery,
he
should
be killed
and crucified.
If
the
accused
killed but did
not rob,
he
should suffer the
death
penalty
but
not crucifixion.
If
a person robs others
but does
not
kill, his hand
and
foot
should
be
cut off
from
the
opposite sides.
Those
who
terrify
others
but
neither
kill
nor rob
should not
be killed
or amputated.
113
Al-Shfi'i
seems to
accept this view.
He
asserts
that the punishment
for hirba
should
differ
according to the
different
acts of
the
nvhrib
in
committing
the crime.
If
they
kill
and rob, they will receive
death
penalty and crucifixion.
Those
who
kill but
do
not commit robbery, will
be killed but
not crucified.
If
they rob
but do
not commit
homicide,
their
hands
and
feet
will
be
cut off
from
the opposite sides.
If
they simply
terrify the
victims, they
will
be
exiled.
"
114
The Hanbali
school also agree
that the punishment
for hirba
should
be based
on
the act
committed
by
the
offender.
They
state
that the nvhrib who commits
homicide
and
robbery, should
be
executed and crucified.
Those
who
kill but do
not rob should
be
put
to
death but
not crucified.
If, however,
they only rob without committing
homicide,
then their
hands
and
feet
should
be
cut off, and after
the
wounds are staunched they
should
be discharged.
115
113_
AI
.
Ahk&m
al-Sultniyya, p.
63.
114_
AI-Un
vol.
6,
p.
152.
115
Al- Mughn4
vol.
10,
p.
304.
91
According
to
Abn Hanzfa, if
the mhrib are
found
guilty of murder and robbery, the
Imdm has
a
discretion
either
to
require
the
death
sentence or amputation
before
the
execution of the
capital sentence or
to put
the
culprit
to
death
and
then
order
his
crucifixion.
116
Imibn Malik
117
shares
the
same view as
Abu Hanifa. According
to
his
view, the
InOm has
the
right
to
decide
which one of
the
punishments prescribed
in
the
Qur'n is
the
appropriate penalty
in
each particular case of
hirba. It is
not necessary
for
the
punishment to
be
applied
in
the order mentioned
in
the
Qur'n.
118
The
opinion of
Imam Malik
and
Im5rn Ab Hanifa is
also supported
by Said bin Al-
Musayyab (d. 93 AH), Mujhid, 'At'
and
Ibrahim Al-Nakha'i. They
view that the
Irrirm,
or
those
who substitute
him
are authorised to either
to
inflict
the
death
penalty
without crucifixion, or to
kill
and crucify the offender, or
to
inflict
the offender with
amputation or exile.
119
In
order
to summarise
this
discussion
we can
divide
the
jurists
into
two
groups.
The Mliki
120
and
Hanafis
schools
hold
that
a
judge has
the right
to
choose the
punishment suitable
in
each case and
to
execute
it.
121
On
the
other
hand,
the
Sbfi'i
and
the
Hanbali
schools
deny
a
judge
this
authority.
They
view that this
crime
involves
more
than
one possible punishment.
Therefore,
the
punishment
depends
on
the
manner
in
which
the criminal act
is
committed.
Thus, if
the
offender
kills his
victim,
he
should
be
executed.
If he
robs,
he
should
be
amputated and
if he
terrifies
people,
he
should
be
exiled.
116_
Al_ Hiddya,
vol.
1.
p.
535.
117_
Al Mudawwana,
vol.
4,
p.
428.
118
ShrAni: Mizn,
volt, p.
146.
119_
Al-Ahk&n
at_SuWm4ya, p.
62.
120
Mudawwana,
vol.
4,
p.
428.
121
-
Al. Muhalla
,
vol.
11,
p.
317.
92
After
analysing the opinion of the
jurists
concerning
the
infliction
of
the punishment
for
hirb, it is
suggested
that the
opinion of the
Mlikis
and the
Hanbalis is
preferable
simply
because
the majority of
the
jurists
view
that the
verse of
hirba
need not
necessarily
be inflicted in
the
order as prescribed
by
the
Qur'n. In
other words,
the
Qdi
-
has
the
authority
to
inflict
any one of
the
punishments prescribed
for
this
crime
which
he
considers suitable.
This
means
that those who are
found
guilty of
hirba,
can
be
executed
for instance
even
if
they
do
not
kill
their victims
if
the
Qdi
considers
it
necessary to
do
so
for
the sake of maslaha
(interest)
of society.
3.10. Tauba (repentance): Its implications for
the
Punishment
of
Hirba
The
root word
for
tauba
is 'tba'
which means
to
repent,
be
penitent,
do
penance or
to
turn
from
sin.
122
Tauba is
also
defined
as al-ruju'
(withdrawal) from
evil
deeds.
123
According
to
Abu Mansur,
the meaning of
'tbd is 'raja`4 `tea
or anb which
is
'return'
to
God.
124
In
the
Qur'n
the word
tauba
is
used
in
many verses and they are
too
numerous to
count.
However,
there
is
only one verse
that
directly
emphasises on
tauba
and
its implications for
the punishment of
hirba. With
respect to the
punishment of
hirb4
the
Qur'n
says:
" Except for
those
who repent
before
they
fall into
your power;
in
that
case,
know
that
God is Oft-giving, Most Merciful. "
125
It is
agreed among the
jurists
that
all crimes
that
involve haq Allh in hirba
are
remitted
by
tauba,
126
In
other words, all
hatld
punishments that
are prescribed
in
the
Qur'an for hirb4 including
crucifixion, execution, amputation and exile should not
be
122_
Wehr, Hans.,
p.
98.
123
See Ibn Al-Manznr, Ilsn Al-`Arab, Dar Lisn A1-'Arab, Beirut, No Date,
vol.
1,336.
124
Ibid.
12-
Qur' n 5: 34.
126-
Al Tq'sIr
a!
Kabir,
vol.
11,
p.
218.
93
inflicted
when the offender repents.
This
repentance,
however,
should take
place
before
the
offender
is
arrested.
These
punishments should not
be inflicted because
they are
considered as
haq Allah (
the
right of
AIM).
127
Al-Mdwardi
asserts
that
if
the
offender
of
hirba
repents
before being detained,
all crimes
involve
the
right of
Allah
will
be
remitted.
128
The jurists, however, have different
views regarding
the effect of
tauba
on
the
right of
man
(haq
al
Adami). According
to
Al-Mwardi,
the right of man
(haq
al-Adamc).
is
not remitted
by
the
repentance of
the
offender.
129
If
the
offender
kills, he has
to refer
to the
heirs
of the victim.
130
If
the
family heirs
want
him
to
be killed,
the offender must
be killed. If
the
family heirs
wish
to
pardon
the criminal,
they also
have
the
right
to
do
so,
because
the
murder
in
this case
is
regarded as giss and not
lzadd. 131
Al-Mabsnt
also asserts that
if
the
defendant is
guilty of
homicide,
the
Irrrum
should
hand
over the
accused to the
wall
(heirs)
of
the
deceased. The
wall
have
the right either
to
accept any
compensation or
demand
gis;.
132
Similarly if
the
crime
incurs
an
injury
to the victim,
the victim can ask
for
giss
if he
wishes
to
do
so.
133
However,
some other
jurists
seem
to
opt
for
the
opinion that
both
the
right of
Allah
and
the right of man will not
be
affected
by
tauba (repentance),
except
in
case where
the property should
be
returned
to
the victim
if
the
property still exists.
134
It is
suggested that the
opinion of
the
jurists
who view
that only
the
right of
Allh is
remitted
by
tauba is
preferable
for
the
following
reasons:
i) In
the
Qur'dn four
punishments
(execution,
crucifixion, amputation and exile)
that
can
127
See Jaffl, Ali Daud Muhammad, Al-Tauba, Dar Al-Nahda A1-'Arabia, Beirut, 1989,
p.
178.
128
Al-Mwardi,
op. cit. p.
64.
129
Ibid.
130
Mudawwan4
vol.
4.
p.
430.
131
_
AI. 'Umm,
vol.
6,
p.
154.
132
AJ_Mabst
vol.
4,
pp.
198-200.
133
Al. Umre,
vol.
6,
p.
154.
134
Ibid.
94
be
remitted
by tauba
are specifically mentioned.
Therefore,
all others that
are not
prescribed
in
the
Qur'n
should remain
the same.
In
other words, when
tauba takes
place only
the
punishment
that
is
prescribed
in
the
Qur'n
will
be
remitted while
the
right of man will
be
treated as usual.
Although
the offender who
kills is
not executed
by
hadA,
his fate
still
depends
on
the victim's
family.
ii) When
an offender repents
for his
acts
in hirba, he is
no
longer
accountable
for his
acts.
In
other words,
he is forgiven from his
sin
by God. Similarly,
when a person
kills
someone
by
mistake,
he is
not considered as a sinner
because he had
no
intention in
committing that
crime.
Yet
the offender
is
still
liable for diya (blood
money)
for his
act.
This
means that although the
killing itself is
not considered as a sin
the
blood
money
is
still required to compensate the victims.
In
this case, the muharib who repents
is
also
no
longer
a sinner, yet
he
still
has
a
liability
towards the victim's
family.
iii) Dropping
all
the
charges against
the
offender,
including haq
al-'Adorn may not
satisfy the victim's
family
who suffered
loss
of their
family
and
loved
ones.
Leaving
the
offender without a punishment merely
because
of
his
repentance
is
unlikely to
be
accepted
by
the
family. If
this
happened,
there would
be
a
danger
that the
victim's
family
would take
revenge and
that consequently
the
blood
of
innocent
people would
be
spilt unnecessarily.
On
this
basis it is
suggested that only
the
haq Allh is
to
be
remitted
by
tauba
while
the
haq (rights)
that
involve human beings
should
be
treated according to the
normal
procedure.
The family
of
the victim should
be
given
the opportunity to exercise their
rights.
As for
the
stolen property,
it is
agreed
by
the majority of the
jurists
that
it
should
be
returned
to the
rightful owner.
135
135_
Al_'Urnm,
vol.
6,
p.
154, A1-Mabst
vo1.4, pp.
198-200.
95
3.10.1. The Requirement
of
Tauba
Although
the
offender may escape
the
hadd
punishment
by
taubes
it is
noteworthy that
only
tauba
that
fulfils
certain requirements will
be
accepted.
Concerning
the
requirement of
tauba, the
Qur'n
says:
"O
ye who
believe! Turn
to
God
with sincere repentance
(tauba
al-
nasha) ;
in
the
hope
that your
Lord
will remove
from
you your
ills
and
admit you to
Gardens beneath
which rivers
flow. "
136
Omar
says with regard
to this verse
that al-tauba al-nasiTha means
to withdraw
from
the
sins and never returns
to them as
the
milk will never return
to the
dar` (cow's
breast).
137
Al-Kalbi
says
the
meaning of al-tauba al-nasha
is
to ask
for forgiveness
(istighfar)
with the tongue,
regret
in
the
hearts
and avoid
(Lincc)
the sins physically.
138
From
these
points of view, the
tauba
will only give an effect
if
those who repent
fulfil
the
requirements
below:
i) Avoid
all the
sins
immediately
The
repentance
is
only considered as a
true repentance when
the offenders cease all
the
illegal
acts
immediately
after performing
the tauba.
ii) Al- `Azm
(determination)
not
to
go
back
to sin
in
the
future
The
offender should
have
a
full
commitment and strong
determination
not
to
commit the
crime again.
iii) Deeply
regret all the
sins
he has done in
the past.
139
The
person accused should also regret all acts
he has done in
the
past.
This
remorse
should
be
reflected
in his
real
life.
136_
Qur in. 66: 8.
137--Ibn
Qayyim Al-Jauziyyah, Tahdhib Maddrij
al-Slikn,
Wizrat
al-`Adl,
United `Arab Emirate,
1991,
p.
123.
138
Jaffl,
op. cit, p.
34.
139_
Ibn Qayyim, Tahdhib,
p.
123.
96
From
these
requirements, only the
first
requirement will
be
considered
in
conjunction
with the
crime, as
the other requirements cannot easily
be discovered
as they
are
hidden
in
the
heart
and only
Allah knows
the
reality of
his
tauba.
140
However,
the
authority
may use any methods
to
ensure
the authenticity of
the
offender's repentance.
The
accused person may,
for instance, be
put under surveillance so that
all
his
movements
can
be
monitored.
Through
this method
the
repentance of the accused can
be
shown to
be
genuine or not.
From
these
requirements,
it
can
be
concluded
that what
is
meant
by
tauba
is
a complete
withdrawal
from
evil
deeds
and
the admission of
the mistake
that
has been
made,
accompanied
by deep
remorse and strong
determination
not
to commit
the
crime
in
the
future. Furthermore,
all the rights should
be
returned
to the victims.
By
complying with
all
these
requirements, the accused
is
considered
to
have
proved
that
he has
repented
his
criminal
behaviour
and
has become
a member of society with a new
life
without
criminal activities.
By doing
all
these
acts, especially
before being
arrested,
the accused exhibits
his
sincere
repentance.
However, if
the
repentance
is
made after
the arrest,
the
repentance might
not
be
sincere.
It
might only
be
used
to
escape
the punishment.
141
140_
Abu Zahra, Al-Jarimz
p.
249.
141_
Jaffal,
op. cit, p.
177.
97
3.11. Conclusion
There is
no
doubt
that
hirba is
one of
the most serious crime
in Shari `a law. The
seriousness of this crime can
be
seen
in
the effects
that
it
causes society.
For
example,
the
effect of robbery which
is
agreed
by
the
jurists
to
be
one of
the
crimes that
falls
under the
category of
hirdba is
tremendous.
Robbery is
a ruthless act that
leaves
people
in
a
dreadful
situation.
The
robbers not only rob,
but in
many cases
kill
their victims.
By
considering the
effect of
the crime,
Shari'a law
prescribes
the
appropriate
punishments
for
this offence.
If
the crime
itself
and
the
punishments prescribed
for it in
SharI`a law
are closely examined,
it is
noted that there
is
a
balance between
the two.
In
other words, the
punishment prescribed
for
this
crime
is
chosen according
the
idea
of
proportionality
inShari`a law. This idea is
considered as an
important
aspect of
Shari`a
law.
Although Shari'a law
provides
four
punishments
forhirha i.
e. execution, crucifixion,
amputation and exile, these punishments will not
be inflicted
when
the
offender repents
his
acts.
The
waiving of the punishment
that
is
given
to the off ender
by
tauba
gives
the
impression
that
punishment
is
not
the ultimate objective of
Shari'a law, but
rather
rehabilitation of the
criminal.
142
If
the rehabilitation can
be
achieved
through
repentance
(tauba),
the
punishment
in
this
rase
is
no
longer
necessary.
It is
noteworthy that,
in inflicting
the punishments
of
hithM
the
idea
of proportionality
of punishments
is
also
taken
into
consideration.
If
the
criminal
happens
to
be
punished
according to
Sharia law for his
offence
because
of sufficient evidence against
him
and
142
Concerning
this matter, a man was reported
to
have
confessed to the
Prophet (after
attending a prayer
with the
Prophet)
of committing zin.
The Prophet however did
not punish
him because he had
shown
his
repentance.
See $ahih Al-Bukhnri,
vol.
8,
p.
584.
98
because
of
his failure
to
repent
before being
captured,
he
will
be
punished according to
the
crime
he
committed.
Although
the offender
is
guilty of committing the
crime of
hirba,
the
punishment
differs form
one act
to
another.
In
other words,
the
more serious
the
crime the
more severe the
punishment.
Although
a
Qdi is
given
the
authority to
choose any of the
punishments prescribed
for
the crime of
hirba, he
should
however
comply with the
idea
of proportionality of punishment
to ensure
that
justice is
properly
done.
99
Chapter Four
The Method
of
Proof is Hirba
4.0 Introduction
As
emphasised earlier,
the
punishments prescribed
for
the crime of
hirdba
are more
severe than
any other punishments available
in Shari `a law. It is
therefore
not
surprising that
Shari`a law
requires strict procedures
in
order
to
ensure the absolute
certainty of the
evidence
before imposing
this
kind
of punishment on the
person
accused.
There is
no
doubt
that
evidence
is
of vital
importance in
the administration of
justice.
Concerning
to this
matter,
the
Prophet
says:
"If
people's claims were
to
be
accepted on
their
face
value, some persons
would claim other people's
blood
and properties.
1
Thus,
the
necessity of evidence can serve as a restraint
to
false,
weak or unsubstantiated
claims.
2
On
this
basis
therefore a
judge is
not authorised
to
inflict
any punishment
on the
person accused until
he is
proved guilty
in
accordance with
the
methods of
proof that
are sanctioned
by Shari `a law.
I-
See
,
Sahib Muslim,
vol.
S.
p.
128
2- Mahmasani, S, Falsafat
al-Tashri'
Al-Islni, Leiden, E, J. Brill, Netherlands, 1961,
p.
168.
100
4.1: Bayyina
(Evidence)
of
Hirba in Shari `a Law
The
root word
for bayyina is 'bayyana'
which means a clear proof and
indisputable
evidence.
3
Bayyina in its literal
meaning also
denotes
the evident or obvious.
4
It
has
also
been
used to
denote'
strong proof'.
5
According
to
Shari`a law,
the
proof of a
matter
requires the
presentation of evidence until
the matter attains
the
necessary
degree
of
certainty.
6
It is
clear that the
objective of evidence
is
to prove what may
be
contrary
to the
apparent
fact.
7
There is
a consensus among
jurists
that the crime of
hirha
can only
be
proved either
by a
testimony
of two trustworthy
witnesses or
by
a confession.
A Qdi has
no right
to
inflict
a punishment on a rruhrib on
the
basis
of
his knowledge
that the
accused
has
committed
hirba 8
or on
the
basis
of
his
refusal
to
swear an oath
(nukl).
9
If
the
accused
denies
the
allegation against
him
and
the
clear evidence supports
this, the
h.
add
will not
be inflicted.
10
It is
stated
in Al-Badi'
that the crime of
hirba
can only
be
established
by
testimony
or confession after
the
case
is brought
to the
Qdi
.
11
Imim
Al-Shfi'i
also states that:
"The
mwhrib will not
be
prosecuted unless
he is found
guilty either
by
the testimony
of two trustworthy person, or
by his
own confession.
"
12
3-
Wehr, H.,
op. cit, p.
88.
4-
Mahmassani,
op. cit, p.
176.
5-
The Majalla,
artide
1676.
6-
Mahmassani,
op. cit, p.
168.
7-
The Majalla, Article 77.
8-
Bada'i ,
vol.
9,
p.
429, See Also Abu Hasan, Muhammad., Ahk&n Al Jarlim
wa
Al `Ugriba ft Al
Shari`a
al
Islamiyya, Maktaba Al Manr, Al Zarg'. Jordan,
p.
362.
9-
Al- Bada'i`,
vol.
7,
p.
93.
10-
mid,
vol.
9,
p.
429.
11-
Ibid,
vol.
7,
p.
93.
12- Al-ShMii, Al-'Um
n, vol.
5. Dar
at
Mania Li
al
Tib'a
wa al-Nashr,
Beirut, Lebanon,
p.
152.
101
Mahmassani, in
supporting
this view states
that the
legal
methods of proof are
confession, testimony and oath.
13
His
view
is based
on
the
hadcdz
of
the
Prophet
who
once asked a plaintiff,
"Do
you posses evidence?.
"
14
The
statement made
by
Mahmassani,
although not
directly
concerned with
hiraa,
may
be
used as a general
principle concerning method of proof under
Shari'a law. As
gasma which
is
stated
in
Mahmassani's
view
is
not one of
the methods agreed upon
by
the consensus of
jurists
as
legitimate
evidence
in
the crime of
hirha,
the
discussion
concerning
this matter will
be
omitted.
The
reason why only
these two methods are accepted
in
establishing
the
crime of
hirba is
simply
to
avoid
doubt
which might
lead
to
inflicting
a punishment on an
innocent
person.
It is
agreed among
the
jurists
that testimony and confession are
the
highest degree
of evidence
in
terms of certainty.
When
an accused makes a confession
of
his
crime, this
confession can
be
used against
him/her
simply
because
there
is
no
element of
doubt in
this evidence.
Similarly
when two trustworthy men
testify
against
the
person accused
for
the
crime of
hirba,
their testimony can
be
used against the
'offender.
Although
there
is
a possibility
that the witnesses may
lie in
their testimony,
this
possibility
is
very remote
because
of the
requirements
that must
be
met
by
all
witnesses
before
any
testimony takes place.
Moreover,
the
Qdi has
the
authority
to
dismiss
the testimony
of any witness whom
he
considers
doubtful. Where
there
is
doubt
about the trustworthiness of a witness,
the punishment
especially
hadd
and giss
should
be
avoided.
Pertaining
this matter
the
Prophet
says
in
a
hadcth:
"Avert
add punishments
by
resemblance.
"
15
Although
other evidence such as qarina
(circumstantial
evidence),
kitha (writing)
are
authorised
by
the
jurists
as
legitimate
evidence against a criminal, they
cannot
be
used
13_
Mahmassani,
op. cit, p.
189.
14
See $ahih Al-Bukhri,
vol.
4,
p.
353.
15- A!
-Hid
2,
vol.
2,
p.
100.
102
to
inflict hadd
punishment.
They
might
however be
used
to
support the evidence
given
by
the
witnesses,
but
the
indefinite
methods of evidence alone will not
be
sufficient as
the
final
evidence against
the criminal.
The hadcdz
gives the
impression
that
if
someone claims something about another,
it is
his duty
to
prove
it, because
a
defendant is
presumed
to
be free from liability.
Concerning
this
mauer
the
Majjala
states:
"Freedom from liability is
a
fundamental
principle.
"
16
It is
understood
from
these
principles
that all allegations made against any
individual
may not
be
considered as authentic until the plaintiff provides proof
that
demonstrates
the truth
of
his
or
her
allegation.
Without
proof,
the
accused should not
be
subjected to
any punishment
especially
hadd
and gisirs and neither should
the
defendant be
treated
as criminal until
he is
proved
to
be
guilty of
the
alleged offence.
The Slwrl
a
law has
made
the testimony of a crime
by
witnesses a religious
obligation.
For
example,
if
there
is
an allegation against an
individual for
a crime,
those
who witness this
crime should come
forward
to testify against
the
person accused
.
Witnesses
are not permitted
to conceal
(kid)
evidence as
is
clearly stated
in
the
Qur'n:
"Ah!
who
is
more unjust
then those who conceal
the testimony they
have
from God? "
17
16-
The Majalla,
artide
8.
17- Qur'n, 2: 140.
103
In
another verse, the
Qur'n
says:
"Conceal
not evidence;
for
whoever conceals
it, his heart is
tainted
with
sins"
18
Imm A1-Shfi'i,
on the
basis
of
the
above verses, states
that
"it is
an obligation
for
the
witness to testify
even against
his
parent,
his
son,
his
close relatives, a
loved
one or
a
hated
one.
It is
a sinful
deed
to
conceal evidence or
to prevent someone
from
giving
evidence.
"
19
What is
understood
from
the
Qur'anic
verse and
the opinion of scholars
is
that,
giving a
testimony
is
the
duty
of those who witness a crime and
it is
not a voluntary
duty but
rather a compulsory
(wjib)
one.
Those
who witness crimes such as
hirba,
zin,
sariga; or
homicide
are obliged
to give
their testimony
in
court
to
enable a
judge
to
inflict
a punishment on
the
defendant. However,
the witnesses must observe
that there
must
be
at
least
two witnesses
in
all crimes except
in
zin which requires
four
eye
witnesses to
prosecute
the
criminals.
Some
might question why those who witness a crime are obliged
to
give
their testimony
against the
person accused
.
To
answer
this
argument,
it
might
be
useful to
look
at one
of
the
most
important
objective of
the
punishment
in Shari`a i.
e.
justice. There is
no
doubt
that
on all occasions where a crime takes place,
the victims are
the
parties who
suffer
from
this
act.
Therefore, it is
clear that those who are responsible
for
causing this
suffering should
be brought
to
justice. As
Shari`a law
accepts only shahda and
confession as
legitimate
evidence against
the person accused
,
there
is
no other way to
bring
the
accused to
justice
except
through the testimony of witnesses
if
the
accused
does
not confess
his
crime.
There is
no
doubt
that testimony
in
this
case
is
of vital
importance
in bringing justice
to society.
As justice
could not prevail without
18- Qur'a 2: 283.
19-Al-'Umm,
vol.
5,
p.
138.
104
testimony,
it
can
be
said,
that testimony
should
be
an obligation
for
those
who witness a
crime so that
justice
can prevail
in
society.
Heyd however
seems to
disagree
with this
opinion.
He
states
that
" in
the
view of
Shari `a
,a
Muslim is
neither
legally
nor morally
obliged to
bear
witness against a criminal who
has
violated a'right of
God', for
which
he is liable
to
a
hadd
penalty.
"20 However, in
the
light
of
the
previous
discussion,
this
opinion
is
completely against the
Islamic
principle which clearly states
that
it is
an
obligation
for
a
Muslim
to testify
against criminal.
4.2. Shahirda (Testimony) in Hirdba
The
root word
for
shahda
21
is 'shahida'
which means
to testify,
bear
witness,
to
attest, confirm or
to
certify.
22
Shahda is
also
defined
as a
true
knowledge.
23
According
to
Shari'a law,
this true
knowledge
must
be
accompanied
by
the
word of
shahda
during
the trial.
24
In hirdba,
the
number of
the
witnesses required
to
prove
the
defendant
guilty
is
two
as
set out
in
the
Qur'n.
"0
ye who
believe,
when
death
approaches any of you,
(take)
witnesses
among yourselves when making
bequest,
two
just
men of your own
(brotherhood).
"
25
20-Heyd,
Uriet, Studies in Old Ottoman Criminal Law, Clarendon Press, Oxford, 1973,
p.
246
21- Shahda
literally
means
(al-ba)dn),
clarification or a true
information (al-akhbar
al-gti').
It is
produced
by knowledge
through the nushhada
(witnessing). It is
said that the word nushdhada
(witnessing) is
a synonym of nv'ynna which gives
the same meaning.
See Manala Khasru,
vol.
2,
p.
370. The
shahid
(witness) is
called
by
that name
because he distinguishes between
true and
false.
See Al-D
asugi., vol.
4,
p.
146.
22
Wehr, H.,
op. cit, p.
488.
23
See Ilsn A!
-Arab,
vol.
2,
p.
374.
24
-
Fath
al
Qa
r, vol.
6,
p.
2.
25
-
Qur'n, 5: 106,
see also
65: 2.
105
Some
might argue that the
verse
does
not rule out any principle
for hirba
but
only
for
bequest (wasiyya). Therefore, it
should not
be
used
in
conjunction with any other
matters
including hirba. In
response
to this
question,
it
can
be
said
that
it is
a general
practice
in
the
Qur'an
that
it
only specifies a comprehensive rule which
is
applicable not
only
for
what
it is
originally specified
for, but
also
for
other cases.
In
other words,
although the
Qur'an
only specifies the testimony
for
the wasiyya, the
same principle can
also
be
applied to
other cases
including hirba. Moreover,
according
to
Mahmassani, it
is
agreed
by
all schools that the testimony
of
two men without women
is
sufficient
in
all
cases provided that
all witnesses are
legally
competent
to give
testimony.
26
Imam Al-
Shfi`i
when explaining shahda
inhirba
states:
In hirba
as well as
it is in
sariqa, two
eye witnesses are required to
prove the crime was committed
by
the
person accused
.
27
According
to
Ibn Hazm, if
two trustworthy men
testify
against even one
thousand
or
more people
for
murder or sariqa or
hirha
or
drinking
alcohol or gadhf,
the
giss
,
amputation and
hadd
will
be inflicted
on all of
them?
8
Thus, it is
clear
that there
is
no
difference
of opinion among the
jurists
concerning
the
number of witnesses required
in
testifying the
crime of
hirdba
as well as other
hudd
crimes.
29
However, if
the victim
has
only one witness to support
his
allegation,
but he
and
his
witness swear an oath
,
the
victim
is
allowed
to
repossess
his
property or
the value of
it, if
the
property
is
damaged
or not
found. Although
a witness, supported
by
an oath
is
sufficient
to
prove
the
allegation made
by
the victim and consequently enable
him
to
repossess
his
property, this
method
is
not sufficient
to prosecute
the
offender, as the
certainty
required cannot
be
achieved
by
this
method.
30
26_
MSani,
op. cit, p.
178.
27- Al-'Umm,
vol.
6,
p.
153.
28
Al- Muhallq
vol.
11,143.
29-
'Aula,
op. cit. vol.
2,
pp.
646- 47.
30- Al-'Umm,
vol.
6,
p.
153.
106
It is
noteworthy that not all
individuals
are eligible
to testify
against the
person
accused.
There
are certain requirements
that
should
be
met.
Among
other
requirements
is
that the
witness must
be
nukallaf
(responsible). The first
criterion of
a person to
be
a mukallaf
is
that
he
must
be `gil (sane) during
the
shahda
(testimony). Therefore,
the testimony
of an
insane
person
is
unacceptable.
31
This is
due
to the
fact
that the
possession of mental
faculty
of mind
(`aqi ) is
the
basic
criterion
of responsibility
(taklIj).
32
As insanity is
one of
the
factors
that
affects
the taklif, the
testimony
of an
insane
person cannot
be
accepted as authentic
in
any cases under
Shari`a law. For
the
same reason, an adult who
is insane is
not
held
responsible
for his
conduct.
The
principle
here is
clearly stated
in
the
hadcth
which provides:
"The
pen
is lifted from
three persons:
the
one who
is
asleep until
he
wakes, the
child until
he
attains puberty and the
insane
person until
he
regains sanity.
"
33
Furthermore,
the
requirement of sanity
is
of vital
importance in
a witness
because
being
a witness requires a clear and accurate understanding of exactly what
has
happened
and
beyond
any
doubt. The insane
person
is
clearly
incapable
of executing
this task.
Hence,
such testimony should not
be
accepted against
the
person accused.
Moreover,
according to
'Auda,
this condition
is
regarded as a precaution to
avoid
inflicting
a punishment on an
innocent
person.
34
According
to
Al Sarkhasi, if
a
witness testifies to the
crime of
hirba
while another witness
testifies to the
confession
of the
person accused,
these testimonies are not accepted as
they
differ from
each other.
35
31_AI-Ign',
vol.
4,
p.
349.
32
Kamli,
op. cit, pp.
350
-
51.
33
See Musnad bmmAhng
vol.
2,
p.
253.
34_
'Auda,
op. cit, vol.
2.
p.
396.
35
Al Mabsut,
vol.
9,
p.
203, See
also
Abu Hasaa,
p.
362.
107
The
second requirement of nuka
taf is
that the witness must
have
attained the
age of
puberty
(bligh).
36
As intelligence
and
discernment
are
hidden
elements which cannot
be
seen, the
law has linked
personal responsibility
(takli, f)
with
the
attainment of
the
age
of puberty
(bulgh)
which
is
an apparent phenomenon which can
be
established
by
factual
evidence.
37
If
testimony
of a child cannot
be
accepted
38
in
property,
his
testimony therefore
should not also
be
accepted
in
cases where
his
testimony
might
result
in
the
accused
being
punished
by
either
the
loss
of
his life
or
limbs.
39
Dabt
(accuracy) 40
is
considered one of
the
criteria
that
must
be
met
in
shahda.
41
What is
meant
by
accuracy
here is
that the witnesses should not
differ from
each other
in
their testimonies.
If
they
differ in describing
the crime,
the
accused,
the site or other
matters related to the
crime, the punishment of
hadd
cannot
be inflicted
on the
person
accused.
Concerning
this
matter
Al Sarkhasi
considers
that
"if
a witness
testifies to the
crime of
hirba
while another witness
testifies the
confession of
the
person accused,
this testimony
is
not accepted as
they
differ from
each other.
"
42
Thus,
there
is
no
doubt
that
accuracy
is
vitally
important in
shahda as a significant element that
differentiates between
the truth or
falsehood
of a
testimony.
The
witnesses
must also
be Muslims.
43
A
non-Muslim cannot
be
a witness either
against a
Muslim 44
or a non
Muslim
.
45
Al-Sha'bi
also
holds
that the testimony
of
36_
'Ruda,
op. cit, vol.
2.
p.
396.
37
Kamli,
op. cit, p.
351.
38-A1
Mudawwana,
vol.
4,
p.
80, See
also
'Auda,
vol.
2,
p.
396.
39
AIMUha, 14
voL
9.
P.
420.
40_
What is
meant
by lobt (accuracy) here is
that the event must
be
clearly seen,
heard,
understood and
completely
retained till the
day
of the testimony.
41
_
Al-Bahnani, Na. riyya Al-Ithbat
,
p.
34.
42AlMabsu4
vol.
9,
p.
203, See
also
Abu Hasan,
p.
362.
43- Siddiqi, Muhammad Igbl, The Penal Law Of Islam, Lahore, Kazi, 1979.
p.
45, Certain jurists however
accept the testimony of two
female
witnesses to
be
substituted
for
that of a
male witness
in
some cases such as property or employment permits.
44
-
AL-Mudawwana,
vol.
4,
p.
81. According to
A1-Sha'bi,
the testimony of a non-Muslim
for
a non-
108
non-Muslims
is
not acceptable even
between
non-Muslims.
46
However, being
a
Muslim
would not
be itself
suffice to make someone eligible
to
be
a witness
because it
is
the
primary requirement of a witness
is
that
he
should
be
a
Muslim
of good character
or
'adla
and
integrity,
whose righteousness and sense of
honour
are
beyond doubt
or
question,
47
or
he is
not
fsiq (sinful).
48
`Adla is defined by
the
Mlikis
as avoiding
the great sins and persisting
in
minor sins.
Those
who avoid majors sins and avoid persisting
in
minor sins are considered as
'ad! 49
`Adla in
the
Hanafis
views
is
the consistency
(istigma) in
the
Islamic
principle.
His degree
of goodness
is
greater
than
his degree
of
badness
and
he has
a
good reputation
(rrur
a).
50
The Shfi'is
view
is
that the
`adla
avoids the major sins
as well as minor sins
51
Regarding
this
matter,
Al-Saynti
pointed out
that
" `adala
means nalaka
(internal
capability).
52
Malaka
makes
individuals
capable of preventing
themselves
from being involved in
major as well as minor sins.
"
53
It
can
be
concluded
from
the
jurists definitions
of
`adala
that a
Muslim is
considered as
`ad
and
eligible to
be
a witness when
he
avoids committing major sins e. g. zin, sariqa or gatl
(murder). Those
who commit major sins are considered as
fsiq (sinful)
and
therefore
not eligible to
be
a witness.
54
However, if
the
majority of population of
the
state are
fiisiq
and rejecting their testimony may
jeopardise
the right of people,
their testimony
Muslim is
acceptable.
45
See 'Ruda,
op. cit, vol.
2,
p,
405.
46-
See $ahih Al-Bukhri,
vol.
4,
p.
357.
47- Shacht, lmrothrction
to the
Islamic Law,
p.
M.
48,41 Muhall
vol.
8,
p.
472, See
also
Shacht, Introduction to the
Islamic Law,
p.
125.
49-
Mawhib
al
lalil,
vol.
6,
p.
150.
50-
Al-Bahr a R iq,
vol.
7,
p.
104.
51-
Al-Nawawi, Abu Zakariyya Mahy
al-Din
bin Shari
.
Al Mgj `A!
-Muhadhab
,
vol.
2,
p.
343.
52
-
A1-Sayti, Al Ashbh
wa!
-
Nadir. Dir
91
Kitb A1-Arabi, Beirut, 1987,
p.
413.
53
-
Ibid.
54-
Mahmasani,
op. cit, p.
184.
109
can
be
accepted
55
provided
that
all requirements of
testimony
are present.
According
to
Abu Abdullah
their testimony
can also
be
accepted when
they
repent
before
or after
the
punishment
is
carried out
for
their
crimes.
56'
To be
a witness, a
Muslim
should
also avoid persisting
in
minor sins.
Therefore,
the testimony of a person who
is
notorious
for lying
or
bad
character
is
urgent also unacceptable.
57
As `ad 1a is
one of
the
requirements
for
all witnesses,
they should
be investigated
to
ensure
their
uprightness
both
publicly and privately?
8
There is
no
difference between
the
jurists
concerning this
matter
59
The
requirement of
`adla is
considered as a vital element
in
testimony.
This
element
t,
is important
to
insure
the
righteousness of
the testimony and
to prevent
treachery
(khinah), (kizb) lying.
60
The
sinful people are not trusted simply
because
they
have
no
religious elements which prevent
them
from lying
or
khinah.
61
Some
people might
use
this
method against others
for
various reasons.
They
may
hire
an
individual
to
give
to
inflict
punishment on an
innocent
person.
However,
since
the
Sharl'a law insists
that
the witnesses
must
be 'ad
according
to the
criteria mentioned above,
it
can
be
said
that
the
possibility of using this
method
to
inflict
a punishment on an
innocent
person
is
remote.
Those
who satisfy the criteria of
`addla
cannot easily
be influenced by
an
irresponsible
person.
Moreover,
the
Qdi is
required
to
investigate
the
background
of
the
witnesses to
ensure that they are
trustworthy people whose
testimony
is
reliable and
authentic,
before
the testimony can take place.
By
this means,
it
can
be
said
that
only
those
who
have
this
qualification will
be
accepted as a witness and at the
same
time
only those
who commit crimes will
be
executed.
55-
Al_Qaroiwi, A[-Madkhal,
p.
124.
56
See
.
aAIBukhri,
vol.
8,
p.
576.
57-
Ibid.
58
Ibid.
59-
'Auda,
op. cit. voL
2,
p.
401.
60
See Al Ashbah
wa al
N4a'ir,
p.
612.
6 1:
Ibid.
110
A
witness
is
also required
to
be free (burr). Hence,
a slave
62
is
not authorised to
be
a
witness
in
any cases either
in hudd
or
in
giss.
63
Al-Saynti has
quoted
from Ab
Hamid
assaying:
"Slaves differ from free
men
in
some circumstances.
They
are not
accepted to
be
witnesses either
in
add or
in
giss.
"
64
Shuraih (d. 78 AH)
and
Wizra bin Aufa however, hold
that the testimony of slaves
is
acceptable
if
all the
requirements of
testimony are present.
65
Ibn Sirrin is
also
in line
with
this
view.
However he does
not except
the testimony of
the
slave,
if it is
against
his
master.
66
The former
view
is
preferable.
Jurists do
not
discuss in detail
why
slaves are not allowed to
be
witnesses even
if
they satisfy all
the
elements required
to
be
a witness.
It is
presumed
that the rejection of
the testimony
of slaves
is due
to their
position
in
the
Shari`a law
as well as
the
way
the
society perceives
them.
Slaves
are
considered as
the
property of
their master and
have
no right
to act
in
their own
interests
but
only
for
their
master.
67
Furthermore,
giving slaves
the
right
to give
testimony may
jeopardise
the
fairness
of
the trial
if his
master
is involved because
the slaves might use the testimony
either
for
and/or against the
interest
of
their master.
Being
slaves may cause enmity
between
them
and their
master especially
if
they
are
treated
badly by
their master.
This
62
Some
might question what
is
the necessity of
including the
discussion
of slaves
in
this context as
slaves are no
longer
exist nowadays?
To
clarify
this question
it
can
be
said that most of the
discussions
concerning
6&& in
this thesis are
for
the
future
use
because Shari`a law is
not a
prominent
law
nowadays except
in few
countries.
The
same reason also applies
in
case of slaves.
As
slavery
is
not totally
prohibited
in Shari`a law,
the
discussion
concerning this
matter
is
necessary as
-
slavery might come to an existence again
in
the
future.
63-Al
Mudawwana,
vol.
4,
p.
80.
64- Al Ashbh
wa!
-
Na; i
r, p.
396.
6-
See. 'ahih Al-Bukhri,
vol.
3,
p.
342.
66-
Ibid.
67-
Ibid,
p.
251.
111
abhorrence could push
the
slaves
to take revenge
by
making a
false
testimony
68
against their
master.
The
principle of sadd al-zar'i`
(blocking
the
way) may
be
applicable
in
this case.
By blocking
slaves
from being
witnesses, undesirable
consequences may
be
avoided.
Furthermore,
slaves are excluded
from
performing
certain
ibda (worship). Concerning
this
matter,
Al-Saynti is
quoted as saying
that:
The
slaves are not obliged
to
pay zaka
(aim
tax) or to
perform
hajj
(pilgrimage). "
69
Thus, it
can
be
said that
if
slaves are exempted
from
performing certain obligations
i.
e.
zaka and pilgrimage which are considered as pillars of
Islm,
they
should
be
excluded
from
giving testimony.
The
shahda should also
be
made
in detail (nvfassala)
and not
in brief (nvjmala).
The
witness
is
obliged to
identify
the
person accused,
the victim as well as the
stolen
property.
70
Concerning
this
mauer
Al-Shfi`i
states
that:
If
the
witnesses testify that some of these people committed
hir ha, but
do
not specify who committed
it
and who
did
not,
the accused will not
be
inflicted
with
hadd
punishment
by
this
kind
of
testimony until
the
act of
hirha
is
established.
71
Al-Shfi'i, however,
added
that the
witnesses are not required
to
specify the
name of
the
culprit or
his
pedigree
(numb).
n
It is
obvious
from
the
view of
Al-Shfi'i
that,
although the testimony
must
be
made
in detail,
this requirement
does
not
include
the
68
-
In Islam,
making a
false
testimony (shahdatal-26r)
is
considered as on of the grave sins
(kab ir).
See 5z*ih Al-Bukhri,
vol.
3,
p.
340.
69- Ibid.
70-
Abu Hasan,
op. cit. p.
362.
71- Al-'Umm,
vol.
6,
p.
153.
72- Ibid.
112
name or pedigree of
the
person accused.
It is
understandable that to
know
the
name of
the
offender and
his
pedigree
is
almost
impossible
unless the accused
is
already
known
to the
witness.
Therefore, it is
sufficient according
to
Al-Shfi'i
to
prosecute
the
person accused
for hirba if
the
witness
is
able
to
identify
the person accused
,
the
victim as well as the
stolen property.
Another
requirement of shahda
in hirba is
that the witness must not
be
the
victim of
the
crime or one of
his
relatives.
The
testimony of
the victim
himself is
considered as
an allegation
(da`wa)
against
the
person accused
,
73
and
therefore
cannot
be
considered as a testimony.
Al Sarkhasi
adds
that
if
a witness
testifies that the
accused
robbed
his father,
the testimony
is
not accepted
74
because
testimony
for his father is
similar to testimony
for himself
which
is
not acceptable
in
the
Shari`a law. According
to
Al-Shfi'i
,
this
kind
of testimony
is
not accepted simply
because
there
is
an enmity
between
the
witnesses and
the person accused
.
75
Concerning
this
matter
Al-Shfi'i
elaborates
that
"If
two witnesses
from
amongst
the
victims relatives, testify that the
person accused threatened them and robbed
them
or
some of them, their testimonies are rejected as
there
is
assumed
to
be
enmity
between
the
parties.
"
76
Ibn Qudama
also states
that
if
two trustworthy men
testify against a person that
he
committed the
crime of
hirdba
against
them
as well as others,
their testimonies
are not
accepted
because
there
is
assumed
to
be
enmity
between both
parties
77
This
opinion
is held by
the
majority of
jurists.
78
However,
the
Qdi is
not obliged to
enquire of
the
7
Abu Hasan,
op. cit, p.
362.
74-
Al Mabsut
vol.
9,
p.
203.
75-AI-'Unvn,
vol.
6,
p
184.
76- Ibid,
p.
153.
77
A1-Mughni.
vol.
8.
p.
302. See
also
Abu Hasan,
p.
362.
78-
Ism'i1, Muhammad Bakar, Al-Figh
at
Wddih, Dar
at
Manr, Cairo, 1990,
vol.
2,
p.
264,
also see
Al
113
witnesses when they testify
against
the
person accused
in hirba
whether
they
are
the
victim of the
crime or not.
79
It is
also
important in
shahda that the victim of
the
crime or
his family is
present
during
the trial.
80
In
other words,
the allegation
(da`wa) by
the plaintiff against
the
defendant is
necessary
in
establishing
the crime of
hirba.
81
What
should
be done
by
the
victim or
the
plaintiff
in
this case
is
to
bring forward his
evidence against
the
person accused
in line
with
the
hadith
previously quoted.
Concerning
this
matter
Al-
Shfi'i
considers:
"The
owner of
the
property and
the
heir
of
the
murdered person must
be
present.
"
82
The
victims and the
heirs
of
the
murdered person
in
the case of
hirba
must
be
present
in
court.
The
victim must
be
requested
to
attend
the trial
in
court
in
order to confirm
the testimony
made
by
the
witnesses.
If
the
victim of
hirirba
testifies, the culprit will
suffer
hadd
punishment of
hirha. The hadd for hirba
will not
be inflicted if
the
victim
does
not appear
during
the testimony.
If for instance
the witnesses
testify that
they
witnessed the
person accused committing
hirba
against a person,
the
/iadd
will
not
be inflicted
unless the
victim or
his
relatives are present.
83
This is because
the
victim
is
the
one who
has
suffered
from
the crime committed against
him. Thus, it is
necessary
for him
to
come
forward
and verify
the crime
that
has been
committed against
him.
84
According
to
some
jurists,
the
infliction
of
!
add punishment should
be
delayed
even though the
accused may
have
confessed
his
crime and
did
not retract
it
until the
plaintiff presented
himself
as
there may
be doubt
about the
allegation and
the
..
Mughni,
vol.
8,
p.
303.
79-
Sharaf
at
Din,
op. cit, p.
299.
80-
See Heyd, U.,
op. cit, p.
241.
81-Abu
Hasan,
op. cit, p.
362.
82- Al-'Unvn,
vol.
6,
p.
153.
83-
Al Mabsut
vol.
9,
p.
203.
84
-
Al-Jumaili,
op. cit, vol.
2,
p.
242.
114
hadd
should not
be inflicted
where there
is doubt.
85
However,
the
presence of
the
heirs
of murdered person
in
court
is different,
as
they
have
no right to testify
for
or against
the testimony made
by
the
witnesses.
Their
testimony
against
the
defendant for
themselves or
for
their
family is
also rejected as
they
are considered as conflict parties and
their testimony cannot
be
sanctioned
in
this
case
.
as
it
might
be
considered a
biased
testimony against
the victim.
If
the
victim's
family
testifies
against the
defendant for
the
others,
their testimony will
be
accepted.
Furthermore,
according to
Imim Al-Shfi`i
,
Qdi has
no right
to
question whether
the
witnesses are among the victims or among
the victims
family. If
the witnesses testify
that
some of
the
group of people
have
committed
hirha but fail
to testify
who actually
committed the
crime, the
punishment
is
annulled, unless the act of
hirciba is
established.
4.2.1. Testimony
of
Women in Hirba
According
to the
majority of
jurists,
86
the testimony
of women
is
not acceptable
in
hudd
cases.
87
As
the crime of
hirdba is
one of
the
hudd
cases,
it is
cannot therefore
be
established
by
the testimony
of a woman
88
or
by
the testimony of
two women and
a man.
89
According
to
Al-Shfi'i,
the testimony given
by
women
in
cases where
hudd is involved
will
be
rejected.
In
other words,
if
women
testify that they
witness a
person or a group of people committing
the crime of
hirba,
their testimony will not
be
certified as a valid evidence against the
defendant
and
therefore no
hadd
punishment
will
be inflicted
on
him.
90
The Hanafis
also view
that:
8-
See Abu Hasan,
op. cit, p.
363.
86- See Siddiqi,
op. cit, p.
45.
87- A!
-'Umm,
vol.
6,
p.
153.
88-
AI
mAl
Sulta-niyya,
pp.
63
-
64.
89-
Abu Hasan,
op. cit, p.
362.
90- Ai-'Umm,
vol.
6,
p.
153.
115
"The hadd
punishment cannot
be inflicted
on
the
offender
by
the
testimony
of women.
The hadd
punishment
lapses because
the
testimony
of women
is
considered as shubha.
Thier
testimony
however
is
accepted
in diya (blood
money).
91
It is
clear
from
this
opinion
that
if
women give
their testimony
in hirba,
their
testimony,
will not valid
to
inflict
the add punishment on
the
accused since their
testimony
being
considered as shubha,
their testimony can
be
accepted
in
conjunction
with property
including diytt. Concerning
this
matter
Al-Shdfi`i
states
that
" If
two
women testify
in hirba,
the victim
is
allowed
to
retrieve
his
property or the
equal value
of the
stolen property
because
the testimony of women
in
this case concerns property
and women
in
this
case are accepted as witnesses without any
dispute.
92
It ist
obvious
from
this
opinion,
that although women are not accepted as witness
in
hudd
cases which requires
the
highest degree
of certainty,
the testimony of women
is
accepted
in
cases other than
hudd
and giss.
Women however
are allowed
to testify
in
cases which concern property.
There is
no recorded
disagreement
concerning this
matter.
However,
two
women witnesses are equivalent
to one man witness.
With
regard to this
point, the
Qur'an
says:
"And
get two
witnesses out of your own men, and
if
there
are not
two
men, then
a man and two
women, such as ye choose,
for
witnesses, so
that
if
one of them
errs, the other can remind
her. "
93
In
this
verse,
it is
clearly stated,
two women witnesses are required to
substitute one
man witness.
The
reason given
in
this verse
is
that the
witnesses might make some
mistake.
Therefore
two
women are required
because if
one of them
forgets
or makes a
mistake, the
other would
be
able to rectify
that mistake.
91- Jumaili,
op. cit, vol.
2,
p.
249.
92- Al-'Umm,
vol.
6.
p.
153.
93- See Qur'a, 2: 282.
116
It
seems that the
number of women
in
this case
is doubled
simply so that they
can
support each other and
to
enable the testimony to
reach
the
highest degree
of evidence.
Mahmassani,
when giving the
justification
of why
the testimony of a man can only
be
substituted
by
that
of two
women says
that
it is
accepted as a social
fact
that
women
are
less
experienced than
men
in
matters
that are concerned with
the
practical
life. This
has been
the
case since
the
ancient
days. A
number of
legal
systems such as
the
Jewish
law
would not even accept
the testimony of women
in
any circumstances.
If it
was
accepted, there
were always certain reservation
to
be imposed.
94
The legal
codes of some of
the
Swiss
cantons, until
the
beginning
of
the
19th
century,
considered the testimony
of
two
women as equivalent
to the testimony of one man, and
similarly
in
the
old
French law
the testimony of a woman was not accepted as equal
to
that
of a man.
95
Mahmassani,
further
comments,
that
Arab
women were customarily secluded
from
men.
In
economic transactions, where women are usually
less
experienced
than
men, a
woman's testimony
was considered as equivalent
to
half
that of a man.
This
constituted
considerable progress
in
comparison
to the status of women
during
the
pre-Islamic era
where a
female
child was
in danger
of
being buried
alive and was
denied
many civil
rights
including inheritance. Shari`a
takes
note of
this
fact
and accepted the testimony
of women only
in
matters where women could
be
expected
to
have knowledge
of
the
necessary
information. Thus,
a
testimony of a woman
is
considered as equivalent
to
half
that
of man.
96
However,
women
in
certain cases are given the
leave
to
be
witnesses where their
participation
is
required
even without men.
94- See Mahmassani,
op. cit, p.
179.
95- Ibid.
96- Ibid,
p.
180.
117
It is
clear that
all
jurists
accept this
principle.
Concerning
this
matter
the
Majalla
ob serves:
" In
places where males cannot possess
the
necessary
information,
the
evidence of
females
alone will
be
accepted
in
respect of property.
"
97.
Thus, it
can
be
said that
women are not
totally excluded
from being
witnesses
in
Shcui`a
law. The
only areas where women cannot
be
witnesses are
in hudd
cases as
these
areas are considered as very serious matters where absolute certainty must
be
established
before
the
punishment
is
carried out.
Men
are also excluded
from being
witnesses
if
they
do
not meet the criteria that are required
for
witnesses.
Thus, it
can
be
said at this
point that there
is
no
discrimination
against women
but
that the
most
important
thing
is
that the
absolute certainty must
be
achieved.
Therefore, if
the
witnesses
are considered to put
this certainty
in jeopardy,
they should
be
excluded
regardless whether they
are men or women.
However,
it is interesting
to
highlight here
that
Al-Jumaili in
contrary with the
opinion
of
Al-Shfi'i
and the
majority of
jurists'
views say
that.
"The
testimony
of women
in hirba
should
be
accepted with
three
conditions:
First, The
women witnesses are not
the victims of
hirba.
Second,
there
must
be
no men witnesses, witnessing
the
same case.
Third,
the
Qdi
must not
have
any
doubt in
accepting
their testimony.
"98
It
seems that
according to
his
view,
the testimony
by
women
is
reliable and authorised
and therefore the
badd
punishment can
be inflicted
on this
basis,
provided
that the
97- Hooper, CJ. K., The Majalla (trans), Jerusalem, 1933,
article
1685. According
to the
Maliki
school,
the testimony
of women
is
acceptable
in
gatl-al-khata'
( death
resulting
from
a negligent act)
because it is
concerned with property where
the testimony of women
is
acceptable.
The
testimony
of
women
in
sariga
is
also acceptable
but
not
for
a punishment
that
incurs
cutting off
bands but
rather
for
compensation.
See Al Mudawwana,
vol.
4,
p.
83- 86.
98- Al-Jumaili,
op. cit. p.
249.
118
witnesses are not among
the
conflict parties.
There
must also
be
no man who can
be
a
witness
for
the
same crime.
The Qddi
must not
inflict
the
punishment unless
he has
no
doubt
about the
righteous of
the
witnesses.
Al-Jumaili, in his further
comments against
the
Hanafi
opinion said that
it
cannot
be
accepted that
if
more
than two women witness a crime of
homicide for instance
that
there
would possibly
be
any equivocation or mistake about
their testimonies.
99
It is
clear
in Al-Jumaili
opinion
that
he
certifies
that
hadd
punishment which
in
this case,
hirba,
can
be
carried out on the
basis
of
the testimony of women.
Al-Jumaili does
not
recognise the testimony
of women as shubha as
it is
viewed
by
the
Hanafis. He insists
that the testimony
by
women
is
valid and reliable as
the testimony
by
men.
By
taking
this
line, Al-Jumaili
seems
to
be
going
in
a
different distinction from
that
which
has
been
taken
by Al-Shfi'i
as well as
the majority of
jurists,
who
do
not accept
the
testimony
of women
in hudd including hirba. Al-Jumaili however, does
not offer
any other reason why the testimony of women should
be
accepted
in hirdba but
not
in
other
hudd
cases.
Al-Jumaili
seems
to
disagree
with other
jurists
such as
Abu Hanifa,
who
holds
that the testimony of women, even
though there are more
than two
is
shubhq and therefore
no
luuld
punishment will
be imposed. In Al-Jumaili's
opinion,
shubha no
longer
exists when two or more women give
their evidence
in
the
same case.
Although he does
not offer any evidence
to support
his
argument either
from
the
Qur'n
or
the
Sunna, it is
suggested that
his
opinion
is based
on
the general rule which
is
derived from
the
a verse of
Qur'an
which previously quoted.
100
Although
this
verse specifies
that the testimony of women can only
be
accepted
in
cases where property
is involved
as the
Qurun
states:
99- Al-Jumaili,
op. cit. vol.
2,
p.
249.
100-See
Qvr'n, 2: 282.
119
"0,
ye who
believe,
when ye
deal
with each other,
in
transactions
involving future
obligation
in
a
fixed
period of
time, reduce them to
writing"
101
The
verse
however becomes
the
general rule
in
testimony and
is
used
by jurists in
all
cases,
including hudd
except zin
(which
requires
four
witnesses) and giss
.
Thus, it
is
suggested that
Al-Jumaili
uses the general rule which
is
extracted
from
this verse as
his
support.
If
the testimony
of women can
be
accepted
in
other cases,
their testimony
should
be
accepted
in hirba
as well.
The hadilfz
from
the
Prophet
which says
"The
testimony of women
is
permissible
in
matters to
which men
have
no access" might also
be
used to
support
this
argument.
It
is
clear
in
the
hadith
that women are allowed
to
give
testimony
in
matters where men
have
no access.
In
other words,
if
men are not present
to testify to the crime, women
in
this
case should
be
accepted as witnesses.
The
testimony
of women
in
this
particular
situation, should
be
accepted as equivalent
to the testimony of men without prejudice
and the
hadd
of
hirba
should
be inflicted
on
the
offender according
to
Al-Jumaili.
However,
Al-Jumaili differentiates between
crimes committed on others and crimes
committed
on women themselves.
According
to
him, if
women are
the victims of crime
in hirha,
their testimony
will not
be
accepted.
Although Al-Jumaili
accepts
the
testimony
of women
inhirha, he
rejects
the testimony of women
in
other
hudd
cases
i.
e. sarigaa or zin.
With
regarding
to this
issue he
states:
"The
testimony
of women cannot
be
accepted
in
all
hudd
cases except
in
hirba. "
102
101- Qur'an, 2: 282.
102- Al-Jumaili,
op. cit, vol.
2,
p.
249.
120
It is
unclear why
Al-Jumaili
accepts the testimony of women only
in
the
case of
hirdba
and refuses their testimony
in
other
hudd
cases.
However, he indirectly
emphasised
in
his
opinion that
"The
crime of
hirba is
a grave crime which
is
normally carried out
in
an
isolated
place where the victim cannot seek
immediate help. Therefore
God has
made the
punishment
for
this crime
heavy
compared with other
crimes.
103
It is
suggested that
according
to
Al-Jumaili,
the criteria of
hirba
which
have
a great
impact
on society should
be
given an exceptional
treatment
in
prosecuting
the
offender.
Crimes
other than
hirba
can still
be
tolerated,
but
the crime which
is
considered as
'waging
war against
Allah
and
His Messenger'
must not
be
tolerated.
Therefore
according to
Al-Jumaili,
the testimony of women
in hirba
should
be
accepted
if
no
men are available to
give
their testimony.
By
accepting
the testimony of women
in
certain circumstances,
it is
suggested
that the victim can
be
protected and
the
offender
is
not escaping punishment
for his
offence.
Based
on
the
above
discussion, it is
suggested
that the
opinion of
Al-Jumaili
although
it
may seem to
be
taking
a completely
different line from
the majority of
jurists, his
opinion
however does
seem
to
be
more practical.
However
all
the
criteria that
are
mentioned
in
the
discussion
should
be
properly observed.
4.3. Igrr
(Confession) in Hirba
The
root word
for 'igrirr' is 'aqarrd
which
literally
means assurance, confirmation,
acknowledgement,
confession or admission.
104 Igrr is defined in
the
Shari'a law
as
103- Ibid.
10&
Wehr, H.,
op. cit, p.
753.
121
a notification
(ikhbr)
of something which might
be
true or
false.
105
This
notification
is
not considered as valid evidence unless accompanied
by
a clear sign
that
confirms the
truth
of this
notification.
106
It
means
that
if
a person confesses
to committing a crime
for instance, he
should not
be
punished
immediately
on
the
basis
of
his
confession
unless there
is
clear evidence
to
indicate
the truth of
his
allegation.
The Qcli
must
request the
details
of
the
crime which
is
alleged
to
have been
committed.
The
punishment can only
be inflicted if
the allegation made
is
proved
to
be
true.
There is
no
doubt
that the crime of
hirba
can
be
established
by
confession.
107
However,
the
jurists have different
opinions concerning
the number of confessions that
should
be
made
by
the
person accused
in
order
to
inflict
the
hadd
punishment of
hirba. According
to
some
jurists, it is
sufficient
to
imposed
the
hadd
punishment
for
hirha if
the
accused makes only one confession.
108
Ab Hansfa
and
Muhammad
also
seem to
agree with this view.
109
Other jurists however
consider
that the
hadd
punishment can only
be inflicted
on
the
accused when
he
confesses
his
crime
twice voluntarily.
110
According
to
Ab Ynsuf
the
person accused will
be inflicted
with
!
add punishment
for hirba if he
confesses
twice.
111
Al-Simnani
seems
to
agree with
the
opinion of
Abn Ysuf. He
asserts that
the
opinion
of
Ab Ynsuf is in line
with
the
practice of
'Ali. It is
reported
that
'Ali did
not
inflict hadd
punishment
for
sariqa unless after
the person accused confess
twice.
112
105
-
Al Ashbh
wa at
Nazir,
p.
494.
106_Al_Bahnasi,
Al Maus'aAl lini'ya Fil Figh Al-Islam i, Darul Nahda A1-'Arabiyya, Beirut, 1991.
vol.
1,
p.
174.
107
Al Ahk&nAl Sultwiiyya,
p.
58.
108
Shard
al
Din,
op. cit, p.
300.
109
Al-Mabsut,
vol.
9,
p.
204, See
also
See Abu Hasa
.
p.
363.
110_
AIAOZmAl Sultniyya,
p.
58.
111-
AJ_Mabsut,
vol.
9,
p.
204.
112
Al_Jumaili,
op. cit, vol.
2.
p.
243.
122
On
the
basis
of
the views given
by
the
jurists
concerning the
number of confessions
required
in hirba, it
can
be
said
that the
second opinion which says that the
confession
should
be
made twice,
is
preferable simply
because
the
jurists
that
hold
this
view
provide more evidence
to
support
their
opinion.
They
use the
analogy of sariga which,
in
my view, as a valid evidence
because
sariqa and
hirba
are similar
in
many respects.
This
qiyas
is based
on the practice of
`Ali bin Abi Talib. As
the
practice of
`Ali is
considered a valid evidence concerning
this
matter,
it is
suggested
that the
person
accused of
hirba
can only
incur /add
punishment of
hirba
when
he
makes a
confession twice.
Confession by
the
person accused
,
will make
him liable for
punishment according to
the
exact crime to
which
he
confessed.
According
to
Imazn Al-Shfi'i,
the
accused will
be liable for ha&
punishment
based
on
his involvement in
the particular crime.
113
However, if
all
the
offenders associate with each other
in
a crime,
they
are all will
be
punished with the
same penalty.
For instance if
all culprits participates
in
a murder
in
hirba,
all of
them
will suffer
death
penalty.
In
relation
to this matter,
Imm Al-Shfi'i
says
that
"Umar bin
al-KhattAb
inflicted
the
death
penalty on
five
or seven persons
who participated
in killing
a person.
114
'Umar bin
al-Khattab
is
also
quoted as saying that:
If
all people of
San'a
associate
in killing
that
person,
I
will
kill
them
all.
"
115
According
to the
practice of
Umar bin
al-Khattb,
taking
part
in
a crime, even though
not
directly involved in it, is
considered as committing
the
crime
itself
and one
is
therefore
liable for
the
same penalty.
This
principle
is
agreed upon
Sahaba
113-Al-'Umm,
vol.
6.
p.
153.
114- Ibid,
p.
22.
115_
see J N-Bukh&i,
vol.
9,
p.
612.
123
(companions)
and no
dispute
was recorded and
therefore this
principle
is
accepted as
ijm3' (consensus). 'Auda, in his book, Al-Tashri`
al-Jin'i
Al-Islami
quoted that,
'Ali
has inflicted
the
death
penalty on
three
offenders who
killed
a man.
It
was also reported
that
Ibn Abbas imposed
the
death
penalty
to a group of people who
killed
a man.
The
death
penalty
is imposed
not only on a person who
kills but
on a group of murderers.
The
punishment
for
murder
is
similar
to the punishment
for
gadh,
f (defamation)
where
all accusers will
be
punished, as
the punishment cannot
be divided. If
the
punishment
either
in
murder or
in defamation, is
not
imposed
on a group of offenders,
they
will
always commit crimes
in
group
to
avoid
the
punishment.
116
It is
also
important
to
note, concerning confession
in hirha
that although
igrar is
considered one of the
legitimate
sources of evidence
in hirba,
a confession cannot
be
accepted unless
two
requirements are met.
The first
requirement
is
that the
pleader
must
be
an
`gil (sane
person) and
b&gh (have
attained
the age of puberty).
It is
reported
in
the
Mabsut
that a confession made
by
a child
in
theft
is invalid.
117
Although
the
statement made
by
the
Mabsnt does
not
include hirba, it is
understood
that
all
kinds
of crimes will
be in
the same category
because
a child
is
not eligible
to
make a confession
in
any case until
he
attains
the age of puberty.
This
requirement
appears to
be
agreed on
by
the
jurists.
118
Therefore, if
a child or an
insane
person
makes a confession admitting
to committing a crime of
hirba,
this confession
is
not
acceptable.
The
second requirement of confession
is
that, the confession must
be
made voluntarily
without any
influence
or pressure
from
any party or group.
119
Concerning
this matter,
`Umar is
quoted as saying
that,
"A
confession
of a person cannot
be
accepted as
116-'Auda,
op. cit, vol.
2,
p.
40.
117-
see
Al Mabsut
vol.
9,
p.
204.
118
See Abu Hasan,
op. cit, p.
363.
119
Ibid.
124
evidence
if he
makes
this
confession
in
a state of
being hurt, beaten
or tied.
"
120
Therefore if
the
Qdi discovers
that the
accused
has been forced
to
confess to
a crime
which
he
may not
have
committed,
this confession should not
be
accepted and
the
defendant
should not
incur hadd
punishment.
However it is interesting
to
note
according to the
Ottoman Criminal Code,
torture
is
to
be
applied when strong
circumstantial evidence
indicates
a person's guilt and
he is
a suspect character
(nv
m).
121
4.3.1. Retraction
of
Igrr in Hirba
There is
no
doubt
that
although
igrr is
one of
the
highest degrees
of evidence
in
hireba,
those
who confess can retract their confession whenever they
like. The
retraction
of
igrr
makes significant changes
to the
offender
in
terms
of punishment.
According
to
Al-Shfi'i, if
the
defendants
retract
their confession
before
the
punishment
is
carried out,
the
hadd
punishment
including
cutting off
the
hands, death
penalty and crucifixion will not
be inflicted.
122
Unequivocally,
the
offenders although
they
have
pleaded guilty
to
hirba in
their
confession
they still
have
the
right to
retract
their
confession provided
that,
according
to
Imm Al-Shfi'i
,
they
retract the
confession
before
the
punishment
is
carried out.
123
However,
according to
some
jurists,
the
offender
is
considered as retracting
his
confession
if he
escapes
from
the
punishment while
it is in
progress.
The
second opinion of
jurists is
preferable.
If
the
retraction can
be
accepted
before
the
infliction
of punishment,
this
retraction should
also
be
accepted even while
the
punishment
is in
progress.
By fleeing
the site of
punishment, the
offender
is
considered as retracting
his
confession and the
punishment
therefore
should cease
immediately.
120-mid.
121_
See Heyd, U.,
op. cit, p.
252.
122-lI-'Unvn,
vol.
6,
p.
153, See
also
Heyd,
op. cit, p.
245.
123
Al_'Umm,
vol.
6,
p.
153.
125
Nevertheless,
it is
noteworthy that
although
by
retracting
the
confession, the
offender of
hirdba
will not suffer
hadd
punishment,
124
the
person accused s are still
liable for
haq
al-dami
(the
right of man).
125
In Al-Shfi'i
view,
the
retraction of a confession
will not affect the
right of man
126
in
cases where giss
is involved.
127
In
giss, the
victim or the
victim's
family have
an absolute right either
to
ask
for
giss,
diya
or
to
give pardon to the
offender.
In
this case,
the situation of
the
offender very much
depends
on the
victims or
the
victim's
family. If
the victim's
family
requests that the
offender
be killed,
they
have
the
right
to
do
so.
However,
the
death
penalty
here is
not
as
hudd
but
as a matter of giss.
128
If
the victim or
the victim's
family
choose
to
have
compensation
for
their
property which
has been
taken
by
the offender, the
offender
has
no right
to
object, as
this
is
the absolute right of
the victim or
the
victim's
family.
129
124-Al-Mabsi%
vol.
9,
p.
204, See
also
See Abu Hasan,
op. cit. p.
363.
125-Al-'Umre,
vol.
6,
p.
153.
126-AppareaBy,
tauba
and retraction of confession give
the
same effect on the offender
in
term of
punishment.
Both
tauba
and retraction of confession will
lapse
the
hadd
punishment while the
right
of man
is
remained unchanged.
127- Al-'Umm,
vol.
6,
p.
153.
128- Ibid.
129- Ibid.
126
4.4. Conclusion
By looking
at
the
punishments prescribed
for
the
crime of
hirbq
some might argue
that- these
punishments are excessively
harsh
and
it
would
be
very
damaging if
they
wee mistakenly
inflicted
on
innocent
people as can
happen
nowadays.
However, if
we
look
at
Shari'a
law,
there
is
always a
balance between
crime and punishment.
In
other
words, when a tough
punishment
is
prescribed
for
a crime,
the
Shari`a law
also requires
very strict procedure and evidence
to
prove
the
crime
to
ensure
this
balance is
properly
maintained.
We
may accept the
claim that the
punishment
for hirba is harsh, but
one should
bear
in
mind that this
punishment would never
be inflicted
unless absolute certainty could
be
reached.
To
ensure this certainty
in
evidence,
the
Shari'a law
only accepts two
methods that
are agreed
by
the
jurists
as
the
highest degree
of evidence
to
prove the
crime of
hirba
i.
e. confession
(igrr)
and
testimony
(shahda)
.
The
person accused
when confessing to the
alleged crime against
him/her, he
or she
is liable for
the
iiadd
punishment.
It is
clear that there
is
no
doubt
about
the
certainty of
this
confession and
it is
considered
as a
legitimate
method of proof
in hirba.
The Shari`a
law
also treats all
individuals in
society as
free from
any
liability
to
any
crime.
As for
testimony
(shahdda),
those who make any allegation against anybody
in
society are required to prove their
allegation.
They
must
bring
at
least
two trustworthy
Muslim
witnesses to testify
against the person accused
.
130
The
testimony
of one
person
is
not acceptable even
though
he is `adl. The
testimony
is
required to
be
accurate with no
differences between
the witnesses.
The
witnesses also must not
be
one
of the
victims or the
victim's
family
as
testimony of this
kind
may
jeopardise
the
testimonial
system
because
there
is
assumed
to
be
an enmity
between
the
witnesses and
the
person accused.
The
accused will only suffer
the
prescribed punishments
if
all
these
130_,
q!
_Mudawwana,
vol.
4,
p.
97.
127
requirements are met
by
the
witnesses.
The
testimony
will
be dismissed if
any
doubt
arises
in
the testimony
for
any reason and as a result, the
accused will not
incur h.
add
punishment.
By looking
at
these
requirements,
it
can
be
said
that
if
all
these
procedures
are strictly adhered
to, the
certainty of evidence may
be
secured and
the
claim that the
punishment could
be inflicted by
mistake
is
unequivocally
dismissed.
128
Chapter Five
Crimes Which Are Considered As Hirba
5.0. Introduction.
This
chapter will exclusively
deal
with
four
crimes; robbery,
terrorism,
rape and
smuggling and trafficking
of
drugs. Throughout
this
chapter,
the
aforementioned
crimes will
be
analysed to clarify whether or not
they are considered
hirirba. As
these
crimes
have
not
been discussed
thoroughly
by
the classical
jurists,
the
view of
contemporary
Muslim jurists
as well as
the opinion of modern scholars will
be
referred
to
in
most cases.
However, fundamental
principles extracted
from
the
classical texts
are
still applied
in
all cases as precedent.
5.1 The Crime
of
Robbery (Qat` Al-Tariq)
Robbery is
a serious crime and
the
rate of
it has been increasing
over the
years.
The
increasing
number of crimes
in
general and robbery
in
particular arouses
the
fear
of
members of the
public.
I
A
recent report shows that
in England
and
Wales, 4,000
offenders were
found
guilty of robbery
in 1983
and
that
by 1992
the
number of guilty
had increased
to
5,100.2 In Scotland,
statistics show a similar
increase; in 1983,4,200
convictions
for
robbery were recorded
by
the
Police
rising to
6,800 in 1992
3
According
to the
1981 British Crime Survey,
4
11,000
people were asked about
their
experiences
during
the
previous
twelve months.
On 47
per cent of the
occasions that
I-
Banton, Michael., Investigating Robbery, Gower Publishing, London, 1985,
p.
2.
2-Central
Statistic Office, Annual Abstract
of
Statistic, A Publication
of the
Government Statistical
Service, 1995,
p.
70.
3-mid.
4-
Hough
and
Mayhew 1983, The British Crime Survey, Home Office Research Study, London, 1983,
p.
9.
129
people experienced robbery or attempted robbery a report was made
to the
police, yet
only about
11
per cent of cases
have been
recorded
in
the
official statistics.
According
to
another section of
the
same survey,
28
per cent of people
living in inner
cities
believed
robbery
to
be
very common.
Twelve
per cent of
inner
city residents said
that
they
never went out at night
because
they were afraid
for
their
personal safety?
This
phenomenon
no
doubt
reflects
the
seriousness of
the
impact
of
this
crime on the
public.
S. I. I. The Definition
of
Robbery
In Arabic,
robbery
is
translated
as
'nahb'
which
has its
root
in
the
word
'nahaba'. The
robber
is
called
'nah/Ob'.
6
Robbery is
also translated
in Arabic
as
'salb'.? However,
these terms
were used neither
in
the
Qur'dn
nor
in
the
hadith
to
denote
the
crime of
robbery.
The
usage of
the term
'hirba' in
the
Qur'n instead
of
'salb'
or
'nahb', has its
justifications.
This
term
has
the
wider meaning of
'hirba',
and
furthermore includes
other crimes with elements similar
to those
of robbery.
If
the term
'salb'
or
'naht' is
used
it indicates
only the
crime of robbery and
disregards
other crimes that
might
be
considered
as
hirba.
At
this point,
it is
clear that the term used
in
the
Qur'n is
significantly
and properly chosen.
There
are two terms usually used
for
robbery
in
the
Shari'a law;
qat' al-tariq and sariqa
kubra. The
term
'hirba' is
omitted as
it has
more
general meaning and
does
not mean specifically robbery, although most of the
classical
jurists
used this term
interchangeably
with qat` al-tariq and sariga
lwbra.
The Shari`a
law
provides no particular
definition
of robbery.
Although
most of the
classical
jurists did discuss
this
matter when
they
discussed
qutla` al-tariq, their
definitions
were
based
on
their
background
and situation, and so seem
inapplicable in
the
present
day. Therefore it is
necessary
to
form
a comprehensive
definition
that
5-
Ibid,
p.
3.
6-
See Wehr, H.,
op. cit, p.
1002.
7-
Ibid,
p.
420.
130
conforms to the
current situation.
To
establish
this
definition it is important
to
highlight
some of the
definitions
of robbery given
by
the
classical
jurists
as well as the
definition
of robbery according
to the
modern
law.
Robbery
or qat' al-tariq
is defined by Al-Shfi'i
as:
"The
act of robbing a group of
people
by
a group of people armed with offensive weapons
(asliha),
either
in
the
desert
or on
the
highway.
8
It is
also possible
to
commit
this
crime
in
a
Bedouin
camp or
in
a
village.
"
9
Robbery is defined by Al-Mwardi
as
" Waiting by
the
way
(or highway)
to
steal travellers'
property
by force
and
this
means obstructing travel
on
this
road.
"
10
The Mlikis defines
robbery as
"The
act of
terrorising people
in
order
to
steal or
for
other purposes.
"
11
The Hanbali
school
defines
a robber as:
"One
who armed with
offensive weapons, robs
the
people
in
the
desert,
where
the victims can not reasonably
expect
help from
anyone.
"
12
By
observing the
definitions
given
by
the
classical
jurists
concerning robbery,
it is
clear
that the
jurists
make no
distinction between hirba
and Qat` al
tang
or robbery.
Some
of
the
definitions
are
totally
irrelevant in
this
respect such as
the
definition by Imazn
Malik. This definition however
was used as part of
the
definition
of
hirba. The jurists
seem to
agree that the
act of stealing
is
one of
the
most
important
elements
in
robbery
or qat' al-tariq even
though they
did
not explain
further how
this
act
is
carried out.
This
element will therefore
be
used as one of
the elements
in
more modern
definition
of robbery
in Shari`a law. The definition
of
A1-Sh5fi'i
emphasising that
robbery or
qat` a1-tariq should
be
carried out
by
a group of people'
is
unacceptable.
It
gives the
impression
that
if
one person, even
though armed with an offensive weapon
(asliha),
8-
AI-Umm,
vol.
6,
p.
140.
9-
Ibid.
10
Al-Sultwyya
p
62.
11_
See Al Mudawwana,
vol.
4,
p.
429.
12
A1_Mughni,
vol.
8,
p.
288.
131
robs somebody,
his
act
is
not considered robbery.
This definition
seems to
be
unrealistic and
inapplicable in
modern
times
because
with
the
use of weapons the
number of offenders
does
not matter.
A
robbery can
be
conducted
by
one person
without any
help from
others.
The
gender of
the
robbers are also
immaterial,
as
women and men are equally capable of conducting an act of robbery.
A definition
of robbery as perpetrated only
by
a group of people may allow a
lone
culprit to
escape
the
punishment prescribed
for
this
crime.
Were
this to
happen,
the
punishment
for
qutt' al-tariq would
be
abandoned and people would no
longer be
protected
by
the
law. This definition has been
applicable
in
earlier
times
as most
robberies were carried out with conventional weapons e. g. a sword or a similar weapon,
and
therefore,
a number of robbers would
have been
needed
to
conduct robbery
successfully.
The
concern with weapons
included in
the
definition
of
Al-Shfi'i
and
the
Hanbali
school
is
also
irrelevant. Robbery in
most cases
is
related
to the use of an offensive
weapon
but
this
crime can also
be
carried out without
the use of weapons.
If
the
act
is
carried out with the use of weapons,
it
means
that
another criterion
is
added
to this
act
and consequently the
effects of the crime
become
more serious and
therefore this
crime
is definitely
considered as robbery.
The
third
element that
is included by Al-Shfi`i in his definition
of robbery
(i.
e. the site
of commission of robbery)
is, however,
acceptable.
This is
simply
because
robbery can
take
place anywhere, so
the
view of
the
Hanbali
school
(that
the
act of robbery should
take
place
in
the
desert
or
in
a remote place where
the
victim
is
unable to
acquire
help)
is irrelevant. This
will
be
an
important
element
in
the
new
definition
of robbery.
132
.
The definition
of
Al-Mawardi is
also unacceptable as a comprehensive
definition
of
robbery.
It
seems
to
indicate
that an act of robbery
is
only perpetrated where
the
robber waits
for his
victim on
the
highway. Although highway
robbery can
be
considered one
type
of robbery,
the
Al-Mwardi's
specification
is
not relevant
because
the
crime of robbery can occur
in
places other
than the
highway. The
use of
force
that
is included by Al-Mawardi
as an element of robbery
is, however,
acceptable.
This
element will
be
used as part of the new
definition
of robbery.
From
the
above
discussion, it
can
be
concluded
that there are only
two
fundamental
elements that
can
be
extracted
from
the
definitions
of
jurists
concerning robbery or
qutta` al-tariq; the
act of stealing and the use of
force. However,
the
location
of
the
commission of
this
crime that
is included in
the
discussion
of some
jurists
should not
be
excluded but
should
be
regarded as only a supplementary element of robbery.
It is
also
necessary, to
examine
the
definition
of robbery
in
the
English law, in
order
to view the
similarities as well as
the
differences between
these two
definitions. Elements
extracted
from
the
definition
of robbery
in
the
English law
can
be
used,
if
necessary, as
elements of robbery
inShci`a law.
According
to
English law,
a person
is
guilty of robbery
if,
"He
steals and
immediately before
or at
the time of
doing
so, and
in
order
to
do
so uses
force
on any person, or puts or seeks
to
put any person
in
fear
of
being
then and
there subjected
to
force".
13
Robbery
therefore
according
to this
definition
is
a
form
of
'aggravated
theft'.
14
By
comparing the
above
definition
with extracts
from
the
definitions by Muslims jurists, it
is
clear that
both definitions
share elements of robbery
i.
e.
the
acts of stealing and
the
13
Theft Act
a968, s.
8(1), See
also
General Principles
of
English Law, PWD Redmond
and
IN
Stevens, Pitman Publishing, UK, 1990,
p.
420.
14
-
Ibid.
p.
414.
133
use of
force. The
other element
(that is,
putting someone
in fear)
might well
be
an
important
part of
the
new
definition. However, it is
noteworthy
that this
element was
not
included by
the
Muslims jurists in
the
definitions
of robbery or qutt' al-tariq.
Thus, by
combining and modifying elements of various
definitions,
robbery
in Shari'a
law
can
be defined
as:
"The
act of stealing
by force
or
by
putting
the victim
in fear,
no matter
where
it be
perpetrated"
By
this
definition, it is
understood
that one
is
committing robbery when one steals and
immediately before
the
stealing, uses a
force
or puts
the victim
in
a situation where
he
fears for his life
or
his family in
any place.
Once
all
these elements are proven,
the
accused can
be
charged
for
a robbery.
5.1.2. The Elements
of
Robbery
From
the
definition,
there are
two
important
conditions
that should
be
met
if
the
accused
is
to
be
punished
for
crime of robbery under
Sharl'a law. These
elements are
as
follows:
i) The
act of stealing
It is
agreed among the
jurists
that the act of stealing
(sariqa)
must
be
proven
if hadd for
robbery or qutia` al-tariq
is
to
be inflicted
15
However, it
should
be
noted
that the
acts
of stealing
in
sariqa and
in
robbery are
different
even
though these
crimes are
both
known
as sariqa
(theft). Ordinary
theft
is
called sariqa al sughra while robbery or
qutta` a!
-tariq
is
called sariqa a!
kubra. To
understand
the
differences
as well as the
15_
See Al Muhalla,
vol.
11,
p.
315, Al AhhmAl Sulw-n
ycz p.
62.
134
similarities,
it is important
to
examine the elements of
both
crimes.
The first
element
in
sariqa
is
taking
someone's own property
16
without consent.
This
element
is fulfilled
when a person
takes
a property of others and puts
this
property under
his
possession.
17
The
same element
is
also required
in
robbery.
If
the taking of property
is
not
fulfilled
the
accused cannot
be
charged with
this
offence.
The
clear
distinction between
these two
crimes
is found in
the way
the theft
is
carried
out.
In
sariqa, the
stealing
is
conducted
in
secret
(khtg5.
a)18 while
in
robbery
the
stealing
is
carried out
by force (nvghlabah)
19
and with
the
presence of
the
lawful
owner.
There
are other elements of sariqa
that are concerned with property.
These
elements are; movable
(nnnql),
20
valuable
(matqm),
21
protected
(ma`sm),
22
safe
keeping (hirz)
23
and the minimum value
(nisb).
24
As for
the
first
three
elements,
they
are also applicable
in hirba. If
the
property
is
not movable
(ghair
mang51) e. g. a
16
AI-Muhadha6,
vol.
2,
p.
295.
17-
Ibid,
vol.
10,
p.
249.
18
Nib
al
MuWj,
vol.
4,
p.
138.
19-A1
Mughni,
vol.
10,
p..
319,. 41 Muhalla.
vol.
11,
p.
315.
20-
Although it is
possible to commit crime of sariga
for immovable
properties
(ghair
nungr
t)
such as
house
or
land i.
e.
by force (ghasb),
the
discussion in
this respect only concentrates on movable
(r
ungz
1)
properties.
21-
The jurists,
except al-Zhiri agreed
that there
is
no add punishment
for
taking property
if it is
not
taken
from
safe
keeping (hirz). See Auda,
vol.
2,
p.
520.
22
Al Bahr
a!
R iq,
vol.
5,
p.
73.
23-
The jurists,
except al-Dhihiri agreed that there
is
no add punishment
for
sariqa
for
taking a
property
if it is
not
from
the safe
keeping (hin). See 'Auda,
vol.
2,
p.
520.
24-According
to
Hanafi's
view, the value of nisb
is
one
Dinir
of pure gold or ten
dirhams. See Al-
Mabs4 Vol. 9,
p.
137. The Miliki
and the
Shfi'i
school, on the other
hand, fixed
the amount of
minimum value at quarter
Dinir
of pure gold.
See Al- Urar Drul Ma'rif, Beirut,
vol.
6,
p.
134.
However,
the
Zhiri
school stated that nisc' of sariqa should
be disregarded. See Muhalla
vol.
11,
pp.
350-54. The
opinion of
Mliki
and al-Shafi
i
school
is
preferable
in
this case simply
because
the
nisab of sariqa
is
clearly stated
in
the
hadth
which says:
"The hands
of the thief will not
be
amputated except
for 1 /4 Dinar
and above"
See
$ahih Muslims
op. cit.
Vol. 11,
p.
181. Further,
there
is
no other
lzatith
or the verse
from
the
Qur'an that abrogated
this
hatith. Hence,
the
above
Wth
should
be
considered as an authority
in
this regard.
135
house,
the term
robbery cannot
be
applied.
The
property must also
be
valuable
(nrntqm). If
the
property
taken
is
not valuable
(e.
g. alcohol or pork)
25
the
accused
will not
be
charged with
the
crime of robbery.
26
The
property
involved in
robbery
should also
be
protected
(ma`sm)
one.
The
property must
be
stolen either
from
a
Muslim
or a
dhimmi.
27
Therefore,
the
property of
barbi is
excluded.
28
The
property
of a
baghy (rebel) is
also unprotected.
29
Thus, if
a person robs a
baghy
30
or
barbi
31
he
cannot
be
charged of
the crime of robbery.
Concerning
the other two elements of sarigq
i.
e. safe
keeping (hin)
32
and
the
minimum value
(nisah),
most of
the
jurists
agree
that these elements are necessary
to
sariqa.
The jurists however have different
views concerning
hirba. According
to the
majority of
the
jurists, hin is
a necessary element
in
robbery.
If
a property
is
not
kept
in
a safe
keeping (hin),
the
act
is
not considered as robbery.
The
property
in
this case
is
treated
as
lost
or unprotected property.
33
Ibn Qudama is
of
the same opinion
concerning this
matter.
34
Al-Bji
s view
is
otherwise.
35
The
opinion of
the
majority
b-Alcohol
and pork are not valuable
for
the
Muslims but
are so
for
non-Muslims.
The
element of
stealing
is
not present
in
this case
because
these
items
are not valuable.
See Nihayat
al-Muhtaj, vol.
7,
p.
421, See
also
Al-Bads t `,
vol.
7,
p. p.
69
-
70.
26-According
to the
Mliki
school, stealing alcohol or pork
from
dhimni
will not
liable for hadd but
the
accused
is liable for
compensation.
27-
Al-Bahr
at
R iq,
vol.
5,
p.
73.
28-
Ibid.
29
Sharaf at Din,
op. at, p.
292.
30-
Ibid.
31-
Al-Bahr
al
R iq,
vol.
5,
p.
73.
32-
In Shari`a law, hb7 is defined
as a place where a possession
is
normally
kept
such as a
house,
storage room, or about a person
himself. See Al-Zail'i,
vol.
3,
p.
220. Rim has
two categories;
firstly,
a place which
is built
to
keep
the property such as a
house
or
boxes
and secondly a guard who
looks
after a property.
See Bahnasi,
al-Maus'a,
vol.
2,
p.
151.
33
Ab Zahrah, Muhammad, Al Jarima Wal
-'uqba
Fi Al-Fiqh Al-Islami, Dar Al-Filer Al-'Arabi,
Cairo, 1974,
p.
157.
34
A1_MughM.
vol.
8,
p.
294.
35
See Al-Bji, Sulaimn Ibn Khalaf, Al-Muntaqi Sharh Al-Muwat{a', Matba'a AI-Sa'da, Cairo,
136
of the
jurists is
preferable
because it is inconceivable
that a robbery should
be
carried
out where a property
is
unprotected or
the owner of
the
property
is
unknown.
As has
been
previously emphasised, among other elements
in
robbery
is
the
use of
force. It is
clear that
in
the
above situation no
force is involved
and
therefore the
act can not
be
considered as a robbery.
The jurists
also
have different
opinions regarding nisb.
The difference
arises
because
there
is
no na;
(text)
either
from
the
Qur'an
or
the
Sunna describing
the value of
the
stolen property concerning robbery or qutt' at
tar!
q.
However,
some
jurists
such as
Al-Shfi'i36
and
Abn Hanifa
37
consider nisb
is
a necessary element
in
robbery
(qutt'
al-tariq).
38
They
regard
the nisb
(the
minimum value)
for
theft
as
the
legal
minimum value
for hirba.
39
It is
also stated
in
al-Mabsnt
that to
punish
the nuhrib,
the
share of each muhuib
in
the
robbery must
be
of
this minimum.
40
According
to
some other
jurists,
the
stolen property must reach
the
minimum amount
(nisb)
which
is
twenty
Dirham.
41
Al-Bji
also seems
to
be
very much
in line
with
this opinion
42
as
is Hassaa Ibn Ziyd. According
to
Hassan Ibn Ziyd,
the share of
the
loot
must
be
twenty
dirhams
or more.
43
Some jurists however have
an opposite opinion concerning
the
nisb
for hirirba. They
view that
an offender should suffer
hadd
punishment even
though the
property
he
stole
does
not reach nisb.
The Mliki
school
for instance, disregards
nisb
in hirba.
They
argue
that,
robbing a small amount of property also
involves
an attack on
Allah
1332H,
voll, p.
169.
36
See Al-Muhadhab,
vol.
2,
p.
302.
37
AI-B i `,
vol.
7,
p.
92.
38-
A! Bahr
al
R iq,
vol.
5.
p.
73.
39
-Ai-Mughni,
vol.
5,
pp.
312
-
13.
40
-Al-Mabst,
vo1.9, p.
200.
41_,
J bi,
vol.
6,
p.
153.
42-
See Al-Bji, Al Muntaqi.
vo1.7, p.
169.
43-Al-Mabst,
vo19, p.
200.
137
and
His Messenger. It
also creates a
disturbance
on earth, and
therefore
it
comes within
the
jurisdiction
of
the
law
44
of
hirdba. Here, Ibn Khuwaiz Mindd
agrees with the
Mliki
school.
He holds
that
no nisb
is
considered
in
the
case of
hirba.
45
Ibn Al-
`Arabi
46
supports
this
opinion, arguing
that the
Qur'n,
when prescribing the
punishment
for
theft,
did
not mention nisb.
47
The description
of nisb was only made
by
the
Prophet in
a
hadcth.
48
According
to the
hadith,
the
hand
of
the thief
will
be
cut
off when
he
steals a property
that
reaches
the minimum nisb
(that is 1/4 Dinar).
49
The
Prophet however, did
not
describe
nish
for hiri ba. If
giys
(analogy)
of
hirba is
made against the theft,
it
means
that the
giys
is
made
from
the
different degree
of
punishment, and this
is
contrary
to the principle of giys.
Qiys
should not
be
used
for
hirba
that
causes the
loss
of a
human life
with
the theft that causes only
loss
of
property.
It is
clear that the
opinion of
the
jurists
who
do
not require nisb
for hirba is
preferable
for
the
following
reasons:
i) The
na;
(the Qur'n
and
the
Sunna) does
not
describe
the nisb
for hirba.
Therefore,
the
verse of
the
Qur'n
that prescribed
the punishment should
be
applied
according to
its
general meaning.
ii) The
use of qiyds
for
the
more serious crime
i.
e. robbery
with the
less
serious crime
i.
e.
theft,
is
unacceptable.
Therefore, if
a person
is found
guilty of robbery,
he
will
44
-A1-Mudawwana,
vol.
4,
p.
429.
45-
Al-Qurwbi,
vol.
6,
p.
153.
46A1
Mudawwana,
vol.
4,
p.
429.
47
Concerning
the punishment
for
theft the
Qur'n
says:
"As
to the thief,
male or
female,
cut off
his
or
her hands'. See Qur' n, 5: 41. The
nisib
for hirba however
was not mentioned
in
this verse or
in
any
verse of the
Qur'n.
48-
Concerning
the ni$,
b for
theft the
Prophet is
quoted as saying:
" The hand
of the thief should not
be
cut off unless
he
steals
1/4 Dinar
or more.
" See Musnad In
mAhnug
Vol. 2,
p.
433.
49-
See
,
Sahib Al-Bukhri,
vol.
8,
p.
573.
138
suffer add punishment specified
for
this
crime even though the
value of the stolen
property
is less
than the
nisb required
in
theft.
50
Thus, it is
clear that the
crime of
robbery
is incomparable
with
theft and
therefore the
nisb
for
theft
should not
be
applied
for hirba.
Another important
matter
that
relates
to
robbery as well as
to theft
is
a restoration of
the
property.
If
a person,
for instance,
steals or robs
the property of other persons
he
must
return the
stolen property
to the
owner or
to the
relatives
if
the
owner
is
unknown.
51
The
property should also
be
returned
in
the case of repentance
by
the
offender
before
being
captured.
52
In
the
case of
damage
or consumption,
the accused
is liable
to pay
compensation.
53
This is
the
view of
the
majority of
jurists. Abn Hanifa, however,
maintained that
restoration would
be
ordered only when
the
property was specified.
The
owner could
take the
property
from
the culprits
themselves, or
from
any assignee,
with or without value.
54
According
to
Abii Hanifa,
the right of
the true
owner will
never
lost
except
in
the
case of
the
loss
or
final destruction
of
the property.
55
ii) The
use of
force
The
use of
force is
one of
the
most
important
elements
in
robbery
56
and with
this
element present, the term
'sariqa kubra'
can
be
used.
This
term
is
used to
distinguish
between
the
crime of robbery and
that of ordinary
theft.
57
The jurists,
when
discussing
quttd` al
tariq,
mentioned the word
'nughlabah'
which means using
force,
as one of
the
important
elements
in
robbery.
58
Some jurists however
used the
word
'gahr'
50See
TcfsirA!
-Tabari,
vol.
6,
p.
125.
51
See Madrij Al-Slikia,
vol.
1,
p.
387.
52-
Al-Bahr
at
Rd '!
q, vol.
5,
p.
73. For detailed discussion
concerning tauba,
see chapter three
pp.
35-38.
53_
Ibid.
54
Bad i,
vol.
7,
p.
97.
55
Ibid.
56_Al-Bahr
c Rd 7q,
vol.
5.
p.
73.
57
Sharaf
al
Din,
op. cit, p.
277.
58
-
See Al-Jazairi, Abdul Rahma., Kitb
al
Fiqh 'Ala Madhhfb
al
Arba'ah, Dar
al
Kutub Al Ilmiyyah,
139
instead
of
'nvghlabah'
59
and some others used the terms
'quwwa'
and
'shauka'60
which
has
a similar meaning to
force.
61
In
the
interpretation
of
'force'
62
according
to
English Law
no actual physical assault
is
necessary.
The force
used may
be
minimal
63
and
there
may
be
a robbery without any wounding or
beating
of a person and without
any
forcible
wrestling or
tearing
of
the thing
from
a person.
64
It
seems that this
interpretation
of
the
meaning of
force is
acceptable
to
Shari`a law. By force
can
be
meant the
use of weapons
65
threat or putting
the victim
in fear
of
his
safety.
When
these
methods are used
in
robbery,
the victims
in
many cases give up
their
property
without any resistance and consequently
incur
neither wounding or
beating. Therefore,
based
on the
primary elements of robbery,
it is
sufficient
to charge an accused with this
offence
if he, for instance
with
two
others surrounded a person, one of
them
"nudged"
the
victim so
that
he lost his balance,
and while
he
was unbalanced another stole
his
wallet.
66
In
one case of robbery a man was
indicted
on a charge of assault and
robbery
because he knocked
the woman's
head
and
face
against a wall and stole
her
handbag
which contained money and other articles.
67
Beirut, N. D.,
vol.
5,
p.
410.
59-
A1_Mughni,
vol.
7.
p.
304.
60
Al_gar
al
R iq,
vol.
5,
p.
73.
61
_
AIMughni,
vol.
7,
p.
304.
62-
As force is
one of the
important
elements
in Shari`a law
as well as
English law,
the
detailed
explanation concerning this element refers
to
English law,
as the
details
are not available
for Shari `a
law.
63
Williams, G.
,
Textbook
of
Crininal Law, Sterch
and
Son, London, 1978,
p.
791.
6-
Ibid,
p.
386.
6-
Some jurists
consider the use of a weapon
(silah)
an
important
element
in
robbery.
See
the
definition
of robbery
in
p.
4. Abu Zahrah however
views
that weapon
(silh) is
not
important in
robbery.
See
Abu Zahrah,
al
Jari,
ra, p.
143.
66
-
Williams, G.,
op. cit, p.
791.
67
-
Redmond, P. W. D.
op. cit, p.
386.
140
Furthermore, English law
states that
'force
of any
degree is,
with one exception,
sufficient
for
robbery.
'
68
So it
should
be
sufficient
if force is
used:
1) To
prevent or overcome conscious resistance
(e.
g. a
tug
of war with the
owner, or
applying a chloroform pad
to the
owner's nose
or:
2) To
sever an article attached
to the owner
(e.
g.
breaking
a watch-chain)
or.
3) Acting in
such way as
to cause
injury (e.
g.
tearing an ear-ring
from
the
ear
lobe).
But
there
is
an exception; the
force
must
be
something more than the
slight exertion of
strength used
by
a
'dip'
to
lift
the victim's wallet
by
stealth
from his
pocket.
Similarly,
gentle
force
used to snatch an article
by
stealth or surprise should
be
regarded as
theft
from
the
person.
69
Using force
to escape with the
loot
after committing a
theft
is
not
sufficient
for
robbery
because:
a)
The force is
used after
the theft
b) The force is
used
in
order
to
escape and not
in
order
to steal.
70
Another important
element of robbery
is
the
site of
the crime.
This
element
is
important because
some classical
jurists hold
that
robbery can only
take
place
in
a
remote place or
in
the
desert. According
to
Abn Hanifa
and
Ahmad, if
the
crime of
robbery takes
place
in
the city,
the offender cannot
be
charged with
hadd
offence.
71
Al-
Shfi`in
and the
Mliki, including Abu Ysuf hold
that the
crime of robbery can
happen in
any place.
73.
The
second opinion
is
preferable
because
the
opinion of
Abn
Hansfa
and
Ahmad is inapplicable in
modern
times.
It
seems that thier
view was
espoused
by inefficiency in
transportation as well as communication
of
their
day.
68
-
Williams, G.,
op. cit, pp.
791-792.
69
-
Ibid.
70
-
Ibid,
p.
729.
71-
Al-Hidya,
vol.
4,
pp.
274-75.
n-
A!
-Muhadlvb,
vol.
2,
p.
284.
7-
A1-Mudawwana,
vol.
4,
pp.
429-30.
141
People
who
lived in
remote area were vulnerable as
they
could not get
immediate help
when there
were attacked.
On
this
basis,
the
jurists hold
that those
with such
vulnerability
deserve
more protection
by
the
law
as compared with
those
who
live in
the
city.
However,
as
times
have
changed, and with
the
availability of efficient
transportation
and, communications, such vulnerability no
longer
exists.
The
authorities
can reach any place even
in
an
isolated
area and
therefore,
if
robbery takes
place
in
any
part of the
state, the
crime
is
still considered as robbery and
the criminal will
be
charged
accordingly.
5.1.3. Is
the
Crime
of
Robbery (Qat` Al-Tariq) Hirba ?
Before
a conclusion can
be
made as
to
whether
the crime of robbery
is
one of
hireba
or
not,
it is
necessary to
examine
the
important
elements of
hirba
as
decided in
chapter
three.
There
are
two
conditions
that should
be
met
if
a crime
is
to
be
categorised as
hirba;
the
act of terrorising people with or without
intention
to rob
them
and
the
act of
fasd (causing
corruption).
By looking
at a
definition
of robbery
that
includes
the
act
of stealing and the
use of
force, it is
clear
that this
crime can
lead in
one way or another
to terrorising
people on one
hand,
and causing
destruction
on
the
other.
Therefore,
the
crime of robbery should
be
regarded as one of
hirba. Although
the act of stealing
alone which
is
one of
the
elements of robbery cannot
be
regarded as
hirba,
the
element
that
is
added to this
crime,
i.
e. the use of
force,
makes
this crime
fall into
the
category
of
hirba.
When
we observe the
definition
of
hirba it is
clear
that the
act of theft
is
not an
important
element.
It is
sufficient
to regard a crime as
hirba
where the
act of
terrorising
people
is
proven.
The
use of
force,
which
is
one of the
elements of robbery,
is in fact
the
main criteria
for defining
a crime as
hirba.
However,
when
theft
is
involved
in hirba, it
means
that another element
is
added to the crime and
consequently more
destruction is
caused.
Therefore,
there
is
no
doubt
that the
crime of
142
robbery
is
one of
hirha. Furthermore,
there
is
a consensus among
the
jurists
on this
point.
This
consensus can
be
observed
in
most of
the
definitions
of
hirba
where the
jurists include
theft
as one of
the
important
elements
in hirba.
However, it
should
be
noted
that the
jurists have discussed
the
crime of
hirba
only
within a very narrow scope.
It is inappropriate
to
discuss hirirba
and robbery as one
crime;
they
should rather
be handled
separately.
It is
clear that there
is
no consensus
between
the
jurists,
as
to
whether
the
verse
from
sra al
M'ida is designated for
the
crime of robbery.
What is
obvious
from
the verse
is
that
it
gives a clear picture
regarding the
punishments
for
those who wage war against
Allihh
and
His Messenger
and
leaves
the
detailed description
of
the
crime
to the
Prophet. Although
the verse
was specially revealed
for
the
'Urniyyiin,
the principle
that
is
extracted
form
the verse
is in fact has
a general character.
It is
a general rule
that
the
practicality
is based
on the
generality of the text
(lafz)
and not on
the specific of
the cause
(saber)'.
74
If
this
rule
is
accepted,
it is
clear
that the
hadcth
gives a picture of only one of
the crimes
that
falls
under the
category of
hirdba i.
e. robbery.
However, it is
unacceptable
for
the
hadcth
to
be
used merely to
narrow
down
the
meaning of
hiraba in
the
Qur'Rn
to
'robbery'
and
to
the
disregard
of other crimes.
It is
suggested that the
jurists
should
discuss hirba in its
wider meaning
by
extracting
the
principles and rule of
hirba from
the verse of
the
Qur'n
as well as
from
the
hadith. However,
the
jurists
should
have
avoided narrowing
down
the
hirba
to
robbery alone as
it is
obvious
in
the
definition
of
hirba. The definition
given
by
the
jurists
seems to
interpret
the verse of
the
Qur'n
and
the
hadith
without making
it dear
that there
are
further
crimes
that
should
be
categorised as
hirirba.
74-
Al Tiir
at
Kabir,
vol.
11,
p.
215.
143
Since it
was established
that
robbery
is
considered as
hirdba, it is
possible
to
conclude
that
all
kinds
of robbery, whether
bank
robbery, robbery
from
an
individual,
robbery
in
public or secret place, a shop or supermarket are considered as
hirba. All
rules and
procedures
in hirba
that
were
discussed in
chapter
four in detail
are
therefore
applicable to those who are guilty of
this type
of crime.
If
all
the
conditions of
hirba
are
fulfilled,
the
criminal will
be
prosecuted according
to the
punishment
laid down in
the
Qur'an.
5.1.4. Punishment for Robbery
Since it is
clear that the
crime of qat` a1-tariq
(robbery) falls
under
the
category of
hirba,
the
punishment
for
this crime will
be
as prescribed
in
the
Qur'dn. These
punishments seem severe compared
to the
punishment
for
theft
i.
e. cutting off
the
hand.
Some
might argue why
the
punishment
for hirba
should
be heavier
than
for
theft
even
though
both
crimes share a common element
i.
e. stealing property?
In
this
respect,
Al-Bahnasi
argues that
among other reasons,
it is
easier
to protect property
from
thieves
than
from
a mahrib who uses
force
as
his
means
to take the property.
75
The
severity of punishment
for
this
kind
of crime can easily
be justified if
one observes
the
immensity
of
the
crimes
that committed
by
the
criminals.
Although Islam inspires
in its followers
a sympathetic attitude, not only
towards
human beings but
also
towards
animal and plants,
it
totally
rejects any
kind
of sympathy
for
those
people who cause
destruction
and play with the
life
and
honour
of
innocent
people.
76
A Robbery is
usually carried out
by
those who
have
physical strength and,
in
many
cases, those
armed with weapons.
The
availability of weapons
increase fear in
society
and
it
may
jeopardise
social stability.
However,
a
theft
is
normally carried out when
75-A1-Bahnani,
Al-`Uqbaft
a!
FighA! Islmi, Dar
al-Sburq,
Cairo, 1989,
p.
27.
76
See Muslim,
p.
893.
144
the
household is
away or
in
places where
the
possibility of
being
witnessed and
consequently
being
arrested
is
minimal.
The
crime of robbery
however,
can
happen
at
anytime,
in
any place,
irrespective
of whether people are
in
their
house
or not.
Moreover,
the
robbers come and
forcibly
take away whatever
they
want, and without
any
hesitation
would
kill
the
victim
if
necessary or
they
might even rape women
in
the
house. This kind
of crime no
doubt
causes
fear
and
instability in
society.
We
could
conclude
from
this
observation
that the
more a crime cause suffering
to the
society,
the
more severe punishment
for it
will
be.
Some
might argue
that the
punishment would never
be
equivalent
to the
crime.
For
instance,
amputation should not
be inflicted for
theft and robbery, simply
because it is
not equivalent to the act of stealing.
It
may
be
acceptable
for
the
robber or
thief to
be
fined because it is
equivalent
to theft
and robbery;
it involves
property.
However,
we
should not see punishment
from
a narrow perspective,
but
should consider
the
effect of
the
crime upon society.
Nevertheless,
a
Qd4i
should give
full
consideration
to
keeping
the
punishment as equivalent as possible
to the
crime and within
the
limit
given
in
Sharl'a law. Thus, it is
not proper
for
the
Qcli
to execute
the criminal who
is found
guilty of robbery,
if
the
crime
did
not
involve homicide
or
the use of a weapon even
though this
crime clearly
falls into
the category of
hirba
and
the
Qdi has
the
right
to
give any of the
prescribed punishments
in
the
Qufn. It
might
be
appropriate
for
the
Qildi in
this
case to cut off a
hand
and
the opposite
foot
of
the
robber.
This kind
of
punishment can
be
compared
to that
for
the
crime of sariqa.
For
sariga, the
hand
of the
offender
is
cut off
for
stealing;
therefore the
hand
of
the
robber should also
be
cut off.
As force is involved in
robbery,
the punishment
for
this
crime should
be
more severe
by
cutting off
the
foot
as well as cutting off
the
hand. Similarly, if
the
offender
is found
guilty of robbery and
homicide,
a
Qdi
should not
impose
an exile on
the
offender
for
this
crime.
It is
simply
because
the punishment
of
this
kind is inadequate for
the crime.
The
offender should
be
put to
death for homicide. As
robbery
is
also
involved,
the
amputation should also
be inflicted. The hand
and
the
foot
of
the
offender should
be
145
cut off
from
the opposite side.
However,
as
this
amputation coincides with the
execution, the
highest degree
of punishment should
be
a priority.
In
this
case, the
amputation should not
be inflicted but
will
be
replaced
instead by
a crucifixion as
this
punishment could
be
carried out together with
the
execution.
146
5.2. The Crime
of
Terrorism (Irhb) in Shari`a Law
This
section
deals
with
the
crime of
terrorism
(irhb) from
the
perspective of
Shari`a
law. The
main objective of
this
section
is
to
conclude whether or not this
crime can
be
considered
as
hirba
under
Shari`a law
and
how
the
Islamic
state
deals
with this
crime
if it happens inside
or outside
the
Islamic
state.
This
section will also seeks
to
clarify
the
differences between
terrorism,
holy
war
(jilid)
and rebellion
(baghy)
under
Shari'a
law.
5.2.1. The Definition
of
Terrorism
Terrorism is
translated
in Arabic
as
'irhb'. The
term
'irhb' is
rooted
in
the
word
'rahiba'
which means to
fear,
to
scare,
to
intimidate,
to terrorise
or to threaten??
Terrorism
is defined in Oxford dictionary
as a system of
terror.
78
The
terrorist
79
is
called
'irhbi :
80
The
term
'irhb; however,
was used neither
in
the
Qur'n
nor
in
the
had&th
to
denote
the
crime of
terrorism.
There is
no
trace
found in
the
writings of
the
Muslim jurists
who
designate
the terminology
when
discussing
crimes
in Shari`a
law.
Therefore,
it is important
to
form
a
definition
of
terrorism which may
be
acceptable
in
Shari`a
law. In
order to
form
this
definition,
the
definitions
given
by
the
Western
scholars
regarding this
matter will
be
analysed
to
extract
the elements that
may
be
used
as components
of the
definition.
77
Wehr, H.,
op. cit, p.
362.
78-
The Oxford English Dictionary, Second Edition, Clarendon Press, Oxford, 1989,
vol. xvii, p.
821
79-
The
terrorist
is
anyone who attempts
to
further his
views
by
a system of coercive
intimidation. See
Ibid.
80-
Ibid.
147
In:
general, the
word terrorism
is
used
to
define
almost
"all illegal
acts of violence
committed
for
political purposes
by
clandestine groups.
"
81
Terrorism is
also
defined
as:
.
"The
use of violence or
the threat of violence
to obtain political
demands. "
82
The
word terrorism
is
also employed
to
specify acts of violence
for
political coercion.
83
From
the
above
definitions,
there
are
three
important
elements which seem
to
be
agreed
upon
by
modem scholars;
the use violence, political motivation and clandestine
organisation.
These
three
elements with some modifications will
be
used as part of the
definition
of
terrorism
in Sharl'a law. By
using
these
elements,
the terrorism can
be defined
as
follows:
"The
use of violence
by Muslims
or non-Muslims' organisations,
for
political reasons, against any
legitimate
state.
"
According
to this
definition,
terrorists are those who use violence
to
achieve political
goals against any
legitimate
states, whether
Islamic
or non-Islamic.
The discussion in
this
respect will
be focused
on acts carried out
by
organisations or groups of people
against states only,
i.
e. not on those
between
the conflicting states
81-
Sobel, LA., Political Terrorism,
vol.
1, Clio Press, Oxford, 1975,
p.
1.
82-Longman
Dictionary
of
Contemporary English, Longman Group, Essex, 1987,
p.
1094.
83-
Sobel,
op. cit, vol.
1,
p.
1.
148
5.2.2. The Elements
of
Terrorism
-r
There
are
four important
elements
that
can
be
extracted
from
this
definition
of
terrorism.
An
act can only
be
considered as
terrorism when all of
the
following
elements are present.
i) The
use of violence
Violence in
terrorism
is
considered as a
key factor
that
makes a political group
illegal.
What is
meant
by
violence
is:
a
killing
either
through the use of explosive or chemicals,
kidnapping, hijacking,
assassination,
(and
other
types of violence,
including)
the
destruction
of the
public places such as
buildings, bridges
or
hospitals.
ii) Muslim
or non-Muslim organisations
The
second' element of
terrorism
is
that the
violent acts are carried out
by
an
organisation
or group either
it is Muslim
or non-Muslim.
This
element
is important
because it is
clear that
most of
the terrorist
act
in
the present
days
are conducted
by
groups
or organisations.
iii) Political
reasons
Another important
element
in
terrorism
is
political reasons.
By
political
it is
reasons
meant that
a
terrorist
group or organisation
has its
own political objectives
behind
the
terrorist
attack.
The
ultimate objective may
be
to topple the existing government and
replace
it
with the
one they
prefer.
iv) Against legitimate
states
It is
also
important
for
an act
to
be
considered as
terrorism that the
act
is
carried out
against
legitimate
states.
Thus,
an attack against a government
which
is illegally
established
is
excluded
from
this
definition.
This
means that
struggle
by
people, against
illegitimate
government that
obtains power
by force
and against
the
people's will, will not
be
considered as
terrorism.
149
5.2.3. The Distinction between Terrorism
and
Baghy
From
an examination of
the
definition
provided above,
it
seems
that there
are
similarities
between
terrorism
and rebellion
(baghy). To
see
these
similarities,
it is
important
to
observe the
definitions
of
baghy
provided
by
the
jurists. According
to the
Mi ikis, baghy (rebellion) is disobedience
to the
legitimate
Irrrun (leader)
when
he has
committed no
illegal
acts.
The
rebellion
(baghy) is
therefore a group of
Muslims
who
disobey
the
In '
or
his deputy
and refuse
to
fulfil
their
dutyM Al-Nawawi defines
baghy
as revolt against the sovereignty of
Islamic
authority, either
by
attacking the
Irrrun
or
by disobeying his
orders or
by
refusing service or
taxes
85
legally due
to
him
(Inxun)
86
The Hanafis define baghy
as
disobedience
to
a
legitimate Im-Im
with no
interpretation
(ta'wil)
87
of
the
hukm (ruling). Baghy is defined by
the
Shfi'is
as a
group of
Muslims headed by
a
leader,
who opposes
the
Imm by
attacking
him
or
by
disobeying his
orders with
force (shauka)
and with an
interpretation (tawil)
88
of the
wkm
(ruling). The definition
given
by
the
Shfi'i is
preferable
because it
seems to
be
more comprehensive than
other
definitions. The definition
contains all
the
necessary
elements of
baghy
such as
force (shauka)
and an
interpretation (ta wil ). The definition
also
includes
another necessary element of
baghy i.
e. a
leader,
which
is
not
included in
other
definitions. 89
By
analysing the
definitions
of
terrorism and
baghy, it is
clear that
both
crimes are
politically motivated.
The
violent acts carried out
by
the terrorist
groups and rebels
8-
Sharh
cd
Zargeni
and ua
Hashia
a!
Shaibni,
p.
60.
8,5-
Abu Bakr is
quoted as saying that
he
will
fight
those who refuse to
pay zaka.
See $ahih Al-Bukhri,
vol.
9,
p.
625.
86_
Nawawi, Minhaj Al
-
Tlibin
,A
Manual
of
Muhammadan Law,
p.
433.
87-SharhFathalQadir,
vol.
4,
p.
48.
88NiF'
a!
Muhtj,
vol.
8,
p.
382.
89-
For
more
detailed discussion
of elements of
baghy,
see
Babnasi,
al-Maus't, vol.
1,
pp.
253
-
254.
150
(bugha)
are
intended
to
achieve a political goal;
the overthrow of the
legitimate
government.
It is
also clear that these
acts are normally conducted
by
organisations
headed by leaders.
However, it is important
to
note
that
although
these two groups of people
have
the
same
objectives
i.
e.
to
overthrow the government,
their
justifications
are
totally
different. In
baghy,
a group of
Muslims
conduct an act of
terrorism with an
interpretation (ta'wi1)
of
the
hukm
(ruling). In
their view, the
leader has deviated from
true
Islamic
teachings
and
therefore
it is
their
duty
to correct
this
by
whatever means available,
including
the
use of
force. It is
clear that the
religious element motivates
this
group
to
act against the
government, although they
may
be
wrong
in
their
perception.
However, it
should
be
noted that the
action taken
by bughq
although with a right
interpretation
of the
{zukm
(ruling), is
against
Shari'a law. The Islamic
authority
has
a right
to
force
them
into
obedience and
if
necessary to
kill
them.
Concerning
this matter
the
Qur'an
says:
" If
two
parties among
the
believers fall into
a quarrel, make ye peace
between
them:
but if
one of
them transgresses
beyond bound
against the
other, then
fight
ye all against
the one
that transgresses until
it
complies
with the
command of
God; but if it
complies,
then make peace
between
them
with
justice,
and
be fair, for God loves
those who are
fair
and
just. "90
The Qur'an
clearly
indicates
that the conflict
in baghy is, in fact, between Muslims
groups or
between
the
Islamic
authorities and
their
Muslim
citizens.
If
the
conflict
arises
between Muslims,
then
it is
the
duty for
the
Islamic
authorities to
make peace
between
the
conflicting parties.
91
However, if
the
Islamic
authority
is in
conflict with
a group
in
the
Islamic
state,
it is
a
duty for
another group of
Muslims
who
is
not
90
-
Qur'an, 49: 9.
91_
The Killing between Muslims
must
be
avoided.
Those
who raise
their arms
to
kill
their
fellow
Muslims
are violating
Siuri `a law
and no
longer
true
Muslims. See $ahih Al-Bukhri,
vol.
9,
p.
605
151
involved
with this
conflict
to
reconcile
them
92
and
bring
the
group
back into
submission to the
Islamic
authorities.
It is
a general rule of
Shari'a law
that there
should
be
only one
In Om (leader) for
the whole
Muslim
umma
(nation). Once
the
In-n has been
selected,
it is
the
duty
of all
Muslims
to
give
their obedience
to
him.
93
If
any rebellion arises against
the
Ini
m,
it is
the
duty
of all
Muslims
to
fight for him.
94
This is
what
had happened during
the time of
`Ali bin Abi Tlib in
the
battle
of
Siffin
and
Jamal.
95
Syed Qutb,
asserts
that
it is
permitted
to
fight
even against
Muslims in
order to
bring
them
back
to
obedience.
96
Baghy
always occurs among
Muslims
and within an
Islamic
state
(dar
a!
Islam)
and
there
is
no specific punishment prescribed
for
this acts.
Al Mwardi
when elaborating
the verse:
" If
one of them transgresses
beyond bounds
against
the other" said:
"There
will
be
two types
of
transgression.
It is
either
transgression with
fighting
or
killing
or
transgression
against
the view of authority without
involving killing".
97
If
the
transgressors
are
involved in
crimes such as
killing,
taking property or spreading
mischief
in
the
state
they
will
be
punished according
to the offence
they
have
committed.
However, if
the revolt against authority
does
not
involve killing
or
taking
property, the
Lriun is
still authorised
to punish
them with
ta`zir
for
their
misconduct.
Unlike baghy,
terrorist groups make violence
the most
important
mechanism
in
achieving their
objectives.
As
their objectives
(i.
e.
to topple the
legitimate
government)
and
justifications
are rejected
inShari`a law,
this group of people,
be
they
Muslims
or
non-Muslims, will not
be
tolerated.
9
Qurb, Syed.,
op. cit, vol.
6,
p.
3343.
93
Muslims
are obliged to give their obedience
to the
Imam
except
in
matters contravene
Sharl'a law.
See Al-Qardwi, Ysuf., Madkha1,
p.
75.
9-
See
.
5ahih A1-Bukhri,
vol.
4,
p.
460- 461.
95-
Qub, Syed,
op. cit, vol.
6,
p.
3343.
96_
Ibid.
97
-Aj-AhkamAl_Sulwniyyrr,
p.
74.
152
All
their
acts will
be
treated
as aggressive crimes which are punishable under
Shari`a
law.
In
the
case of
baghy,
although the
Islamic
authorities are allowed to
fight
against rebels,
the
object of
the
fight is
not to
kill
them,
but
to
bring
them
back into
obedience to the
Islamic
authorities.
It is
agreed among
the
jurists
that
disobedience
of
the
people to the
Iman is
a sin
(ma`srya) but
not rebellion.
98
The
act
is
only considered as rebellion
(baghy)
when
disobedience is followed by
the use of violence and
force
to
oust
the
Itram
99
A
clear example concerning
the use of
force
against the
Irrum is
what
has
occurred
during
the time
of
Abdullah ibn
al-Zubair when
he
was ousted and
killed by
Abdul Malik bin Marawn. Abdul Malik
seized a village and
the villagers and
forced
them to
endorse
him
as
the new
Lr m.
100
It is
agreed among the
jurists
that
bugha
can not
be fought
until
the
reasons
for
their
opposition
have been
ascertained.
If
they
cite cruelty and sins
(jaur)
of an
I
nm, the
Imm is
obliged to
rectify
his
mistake and request
the
rebels
to obey
him.
101
If
th
e,
refuse, they
can
be fought.
102
The
rebels can only
be killed if
they start the
killing,
and they
are not allowed
to
be killed if
they take to
flight.
103
The
captured rebels
cannot
be killed, but
they
will
be detained
until
the end of
the war.
However, if
there
is
no
fear
of their
going
back
to
fight
they can
be
released.
The
property of rebels are not
allowed to
be
taken
as
loot (ghaninu)
104
98-
Hashia Ibn 'Abider,
vol.
3,
p.
430.
99
Kashaf
al-Qand', vol.
4,
pp.
94
-
95.
100-
Ibid.
101
In Sierra
law,
obeying
Imam is
as obligation on all
Muslims. See $ahihAl Bukhri,
vol.
4,
pp.
460-62.
102
`Auda,
op. cit. vol.
2,
p.
679.
103
AI. Ahkmn Sultniyya,
p.
63
104
-
Ghanin
17
(loot) is
a property taken
in
a war.
153
5.2.4. The Rule
of
Jihd (Holy War) in Shari `a Law
Although it
may appear
that
jihd is irrelevant
to
a
discussion
concerning
law, it is
important
to
include discussion
of
it in
order
to
clarify
the vagueness that
might arise
in
a
discussion
of
terrorism;
some might argue
that
jihdd is
a
kind
of terrorist
act against
legitimate
governments and
foreign
nations.
The following discussion
will
touch
upon
the
similarity
between
terrorism and
jihd
as well as
their
differences.
There
are numerous verses
from
the
Qur'n
encouraging
Muslims
to
carry out
jihdd'
against the
unbelievers.
The
martyr who
died for
the sake of
Allh has
a very
high
position
in
paradise.
In
this
context
the
Qur'an
says:
" And
say not
to those
who are slain
in
the way of
Allah,
they
are
dead,
nay they
are
living,
though you
do
not perceive
it. "
105
The desire
of
jihad is
also stimulated
in
many
har&th. The Prophet
was quoted as
saying that:
"Someone
who struggles
in
the way of
Allh is like
some one who
fasts
and prays constantly and
does
not slacken
from his
prayer and
fasting
until
he
returns.
"
106
In
another
hadth
the
Prophet
says:
" Allah
guarantees either the
Garden (janna)
or a
safe return to
his home
with whatever
he has
obtained of reward or
booty, for
the
one
who
does jihad in His
way,
if its is
solely
jihi d
and
trusts
in his
promise that
brings him
to
his house. "
107
However,
the
stimulation of
desire for jihad in
the way of
Allah,
either
in
the
Qur'an
or
in hadith does
not mean
that the
Muslims
should
ignore
all the
rules of
jihad
which are prescribed
in Shari`a law. One
should not misinterpret the
105_
Qur'an, 2: 154.
106_
Malik, Al-Muwatta; Diwan Press, Cambridge, 1982,
p.
198.
107-Ibid.
154
Islamic
principles
by
taking
only a part and
ignoring
the
rest.
Although jihad,
which
unavoidably
involves killing is
a vital and
important in Islamic
point of view,
Islazn
has
put
in
places rules and principles which should
be fully
observed.
Failure
to
observe all
the
rules and principles may
lead
to misinterpretation of
jih4
and
consequently the
blood
of people who are protected
by God
would
be
shed.
Jihad
under
Shari`a law
can
be divided into
two categories;
jihad
to
establish an
Islamic
state and
jihad
to
defend
an
Islamic
state and
to expand
its
territories.
In
the
first
category,
it is
the
duty
of
Muslims
to
struggle
for
the
sake of establishing an
Islamic
state which
has
the
authority
to
apply
Shari'a law.
108
Jihad
therefore,
according to
Khadduri is
regarded as an
instrument
to transform a state of war
(dar
al
-
harb)
to
a state of peace
(dar
al-Is1irm.
)109
However,
whether or not
Muslims
can retaliate
in
a war against non-Muslims where the
Muslims'
children, women and
infirm
are
being killed is
arguable.
Can
they
kill in
the
same way as the
non-Muslims
have? Clearly,
the
act of retaliation, especially when
it
involves
the
killing
of children, women and
infirm
persons
is
against
the
general rule of
jihd
which prohibits the
killing
of
those
who are not participating
in
the
war.
However, if
we observe
the
verse of
Qur'an
which says:
" Therein,
and
fight
the
Pagans
all
together as
they
fight
you all
together,
but God is
with those who restrain themselves.
"
110
we might say that there
is
an exception
to the general rule of
jihad. The
verse gives a
reflection that
it is
permitted to
kill
all non-Muslims
including
children, women and
the
infirm, in
retaliation
for
non-Muslims
having killed
the
Muslims in
the
same way.
The
108
Those
who struggle
for
the sake of
Allah,
encouraging good
deeds
and preventing evil
deeds,
or
calling
for
the
implementation
of the
Qur'an
and
the
Sunna
are not
bugha.
The bugha
are those
who
oppose that group.
See
al
Muhalla,
vol.
11.
p.
98.
109,
Mjid., War
and
Peace in the
Law
of
Islam John Hopkins Press, Baltimore, 1955,
p.
141
110
Qur'in, 9: 36.
155
term
iah'
which means
'all
together'
may
be
used
to support this
argument.
Syed
Qutb
seems to
agree with
this
view.
When interpreting
the
above verse,
he
says that
"
all
the
infidels
should
be killed
without exception as
they
kill
without exception. "
111
However, in
my view, we should stick
to the general rule of
jihad
which clearly
is
stated
by
the
Prophet.
112
The
term
'kfah' in
the
Qur'an
should
be interpreted based
on the
saying and the
practice of
the
Prophet. This
term,
in
my view,
does
not clearly
state
the
legality
of
killing
those who
do
not participate
in
a war.
Thus
the term
'krh'
maybe applicable to
all those who
fight
against
Muslims. In
other words,
Muslims
are
allowed to
kill
without exception all non-Muslims who participate
in
the
war
Participation in
a war against
Muslims in
this case
is
a
justification for
the
killing.
Jihdd is
a communal
(farcl kifyah),
113
not an
individual
obligation.
(fard `ain)114
However, if
a state
is
attacked
by its
enemies,
it becomes
an
individual
obligation.
'ard
'am)
115
because it is
the
duty
of
Muslims
to
defend
the
Islamic
state
from
threat
by
enemies.
Jihd
can
be
carried out not only
through
battlefield, but
through
any
possible ways that
could
help
to
re-establish an
Islamic
state,
physically and materially.
116
The Prophet
categorises those who struggle
for
the sake of
Allah
as
the
best
among
people.
117
In
a
hadith
narrated
by Abu Hurairah,
the
Prophet is
quoted as saying:
111-
Qutb, Syed.,
op. cit, vol.
3,
p.
162.
112
Ibid,
pp.
161-162.
113
Fard lufah
means a
duty
which
is
sufficient
if
some members of the
Muslim
community
have
carried
it
out.
However, if
no of the
Muslim
accomplishes
this duty,
all of them will
be
sinning.
Another
example of
fard kirayah is
prayer
for
the
deceased (saht
alyanzah)
See Bahr
al-R
iq,
vol.
5,
pp.
76- 77.
114_
See Bahr
al
Riq,
vol.
5,
p.
77, See
also
Farah, Caesar E.,
op. cit, p.
158.
115
mod,
p.
78.
116_
Ibid,
p.
79.
117
See
,
Sahib Al Buk
uiri, vol.
4.
p.
407.
156
"Struggle
against
the
non-Muslims with your property,
life
and words
(alsina)"
118
After
the
establishment of
the
Islamic
state,
the struggle will continue to
expand
its
territories.
The idea
of
jihd in
a military context emphasises
the continuous struggle
against non-believers.
119
The
purpose of
the
struggle
in jihd,
according
to
Ibn Nujaim, is
to
free
the universe
from
all corruption
(fasd)
120
caused
by
the
infidels. What is
meant
by
corruption
(fasd) in
this context
is
corruption
in
terms
of
belief,
and social and moral
behaviour.
The
exercise of
jihd is
the
responsibility of
Irrum,
or
the
caliph when the
powers of
office
is
still
in his hands.
121
The Irnim is
under an obligation
to
see
that
Islam's
ultimate mission, namely,
the supremacy of
Allahh's
word over
this world,
is
carried out
by jihd. 122
The Lram is
also
the one who
issues
the
order
to
fight
and
to
cease
fighting. He
also advises as
to when
the
Muslim
side should accept peace and come to
term
with the
enemy.
123
Although Shari`a law
endorses
the
killing
of unbelievers
through
jihd,
124
Islm
never approves of any aggression against
human-beings
or against animals
125
or trees.
The killing is
only sanctioned
in
very
limited
measure.
There
are rules that
should
be
118
See Musnad lnzvnAhmzd Vol. 2,
p.
265.
119
Farah, Caesar E.,
op. cit, p.
158.
120
Bahr
al-R
iq,
vol.
5,
p.
76.
121-
Farah, Caesar E.,
op. cit. p.
158.
122-
gri, War
and
peace,
p.
152.
123-Ibid.
124-
The
root word
for Islam is 'silm'
which means peace.
See Wehr, H.,
op. cit, p.
425.
125
-
See Al-Qardwi, Ynsuf. Madkhal,
p.
116.
157
followed by
all
Muslims
when
the
jihad is
carried out.
Some
of
the
rules of
jihad
are
clearly stated
in
the
W dz. Regarding
this matter,
Imam Malik
reported that
"the
Messenger
of
Allah,
may
Allah bless him
and grant
him
peace,
forbade
those
who
fought Ibn Abi Huqaya (a
treacherous
Jew from Madina)
to
kill
women and
children.
126
On
another occasion of
jihad
against
the
infidels, "the Prophet
saw, the
corpse of woman who
had been
slain
in
one of
the raids, and
he disapproved
of
it
127
and
forbade
the
killing
of women and children.
128
Imam Malik is
also quoted as
saying that
"one
of
the
men
fighting did
not
kill
the wife of
Ibn Abi Huqaya
although
he had
the
opportunity
to
do
so, simply
because he
remembered
the
prohibition
by
the
Prophet.
129
The
rules of
jihad
can also
be found in
the orders made
by Abu Bakr,
the
second caliph to
Yazid,
who was a commander of a
battalion
to
al-Sham:
"Do
not
kill
women, children or
infirm
persons.
Do
not cut
down fruit-
bearing
trees.
Do
not slaughter sheep or camels except
for food. Do
not
burn bees
and
do
not scatter
them.
Do
not steal
booty,
and
do
not
be
a
coward.
"
130
The
order given
by Abu Bakr
to
Yazid
was actually
in line
with
the
Qur'anic
verse
which prohibited
killing
those who are protected
by God. In
the
Qur'n Allah
says:
" Nor
take
life,
which
God has
made sacred except
for just
cause.
"
131
The blood
of those who are not
fighting
or
taking part
in
a war against
Muslims is
not
allowed to
be
shed, even on a
battlefield.
132
Islm,
whether as a religion or as an
'expanding'
political
force,
was and
is firmly
opposing
to
oppressive rule
/or
rulers.
The
126_,
4!
-MUVA=
,-p.
198.
127
See Musnad 1,
,
J'irnd
vol
2,
p.
319.
128
Ibid.
p.
323.
129
Muwau'
p.
198.
13o_roid.
131_
Qur'n, 17: 33.
132
Bahr
al-Rd'iq, vol.
5,
p.
84.
158
spirit of
jihd (holy
war)
is
a noble, strong and
dedicated
practice of
devotion
to
God, in
its
ultimate sense.
133
Nevertheless,
the
Qur' n does
not say
that
once the
enemy
has
been
subdued, and prisoners are
taken, they should
be
treated
humanely,
the
choice
being
only
between 'generosity'
and ransom.
The
precedent
is
that,
in
the
battle
of
Hunain in 630 AC, Muslims
captured a
large
number of prisoners, all of whom were
repatriated on
the
payment of a ransom.
The
ransom of some of
them,
who were too
poor
to
pay, was said
to
have been
paid personally
by Prophet Muhammad.
134
The Prophet
always preferred, as a general policy and a point of principle
to
overwhelm the
enemy
but
not
to
annihilate
them.
His
method was
twofold:
bringing
economic pressure to
bear
and
increasing his
own military might with a
long
range
policy.
He
attacked at
the
right moment when
the
enemy would not
dare
offer any
resistance,
135
and
his
objective could
be
achieved
in bloodless
manner.
136
5.2.5 Causes
of
Terrorism
and
Its Objectives
In
general, an act of
terrorism
is
carried out
in
order
to
achieve
the
political aims of a
group.
A
political aims
is
not necessarily one opposed
to
a government,
but it
could
also
be
a vice versa.
137
However,
the
discussion in
this section
be
concentrated on
acts of terrorism
carried out
by
people against a government.
To
understand the
causes and the objectives of
terrorism,
it is important
to
include
some
historical background,
especially when
discussing
the
Middle East. In
the
Middle East,
133_
See Ruwayha,
op. cit, p.
376.
134
Ibid.
135
This is
a part of
'khvd`a (trick)
of war which
is
sanctioned
by
the
Prophet. See $ahih Al"Bukhri,
vol.
4,
p.
482.
136_
Ibid,
p.
386.
137
Hussain, Asaf., Political Terrorism
and
the
State in
the
Middle East, Mansell Publishing Limited,
London, 1988,
p.
9.
159
the
collapse of
the
Ottoman
empire at
the
end of
the
World War 1
may
be
considered as
the
starting point of
terrorism.
The British
and
French
colonial powers
divided
the
Middle Eastern
countries amongst
themselves.
138
In Jordan, for
example, a puppet
monarch was
installed in
reward
for
collaboration
by Sherif Husain's
son.
139
In
Lebanon,
the
French
gave power
to
maronite
Christians
who
had
collaborated with
them.,
It is dubious,
that
democracy
could operate when political power
is in
the
hands
of one minority group
(the
maronite) who govern over
the
majority
(the Muslims).
140
These
are two
examples of
how foreign
power expanded
its influence in
the
Middle
East
after the
fall
of the
Ottoman Empire. This is
one of
the
factors
which
ignite
the
anger of the
population against
the
leaders
and
the
imperialists
who put them
into
power.
This
anger gradually
becomes
a
force
which results
in
violent acts and
terrorism
against the
authorities.
Thorntorn,
writing the
situation
in Algeria,
argued that the
character and
interests
of
European
settlers
in Algeria
were
important determinants
of
the
causes, strategy and consequences of
the
Algerian
revolutions.
141
It is
clear that
from
this
point of view
Western imperialism is
among
the
factors
which provoked the
revolution
in Algeria. Once
a revolution
has
erupted,
it is inevitable
that
act of
terrorism
will
be
used to
achieve
the political goals.
Another factor
which causes acts of
terrorism
against governments
is dictatorship
and
the
constant use of
terror
and violence
by
the government
itself. Cassese, in
relation to
this
matter writes that
"one
contributing
factor is
certainly
the
existence of
harshly
authoritarian structures within many states.
"
142
In
the
Middle East, in
the
course of
further
abnormal
developments
of political power, power was usurped
by
military
leaders
who were
dictators. These leaders did
not come to
power with the
unanimity of
138_
Ibid.
139
Ibid.
140
Ibid.
141
Thomas P. Thorntorn, Terror
as a weapon of political
Agitation in Internal War Problems
and
Approaches,
ed.
H=7 Eckstein, New York Free Press, 1964,
p.
76.
142_
Cassese, A., Terrorism Politics
and
Law. Polity Press, Cambridge, 1989,
p.
3.
160
the
people,
but
means of military coup.
Because
of such seizures of power,
Middle
Eastern
countries could
be
considered as abnormal states.
Constant
use of
force, has
kept
the
political system
in
a state of
flux.
143
In Egypt
all sort of
terror,
including
assassination,
torture
and
imprisonment, is
carried
out
by
the
government against whomever opposes or
is
considered as a threat to the
authorities.
In 1949, Hassan
al-Banna,
the
founder
of
Muslim Brethren (Ikhwn Al-
Muslimn)
144
was assassinated
by King Farouq's
police.
145
When Nasser
and
his
comrades took
power
in Egypt
on
23 July 1952, he
took the
same step as
his
predecessor.
On 9 December 1954,
six
leaders
of
the
Society
of
Muslim Brethren
mounted the
gallows, and
thousands of others
languished in
prison.
Never, in
the
quarter of a century since
the
founding
of
the
society
by Hassan
al-Banna
in 1928, had
the
Brethren
suffered such violent repression.
146
It is important
to
note
that the
Muslim Brethren had initially
welcomed
the coup of
23 July
and put
Nasser in
power.
147
The
condition
in Egypt has
never changed with a change of
its President.
The
people of
Egypt have
never
tasted the
freedom
to
choose
their
leader
and
government.
Those
who oppose
the government's policy will
be imprisoned
and
tortured.
Similar
measure are
taken
by
various states
in
the
Middle East. In Algeria, for
example, when the
opposition party
led by
the
Islamic Salvation Party (F. I. S)
won
the
first
round of
the
general election on
26 December 1991
with a plurality of
189
seats,
ensuring
it
a sure majority
in
the
second round,
the army stepped
in,
ousted
Chadli,
cancelled the
poll and arrested most of
the
F. I. S leaders including Abbas Madani
and
143
Hussain, A,
op. cit, p.
10.
14-
The Muslim Brethren
was established
by Hassan
al-Banns
in 1928.
145
Kepel, G.,
op. cit, p.
28.
146
mid,
p.
26.
147
Ibid.
161
his
colleague,
All Belhadj.
148
People
were
disappointed
and protested against the
illegitimate
military government.
The
armed
forces
were
deployed
to
halt
the
opposition and often shot suspected guerrillas on
the spot and
laid
waste
to
villages and
neighbourhoods who give
the
guerrillas aid.
Within
the
last
three
years, the
war
in
Algeria has
claimed
35,000 lives.
149
In
another
development, in
the
richest state
in
the
Middle East, Saudi Arabia, hundreds
of members of opposition groups were
arrested and tortured
because
they asked
for
the
restoration of
freedom
and
democracy.
150
In Saudi's
neighbouring country,
Bahrain,
the
Security Force led by Ian Anderson
of
Britain,
under orders
from
the
government,
have
engaged
in
terrible
violence against
the
people of
Bahrain. They
suffer all
kinds
of
torture,
and even
death,
simply
for
asking the
government to
restore
the
democratic
system
to their
country.
151
As
a result
of the
acts of governments, violence
takes place and
the
state oppresses all
dissidents
through
its instruments
of power.
Acts
of
terrorism
carried out against
the
state are
normally operated
from
the underground,
through
groups with a wide support
base
among the
people.
Terrorism is
a part of
the
strategy of
insurgents
who are attempting to
gain political
power through the
overthrow of an
incumbent
government, and
it is
therefore
has
to
do
with
fundamental
political change.
Terrorism
used
for
this purpose
is
not an
isolated
event.
In its
most extreme
form,
terrorism creates
terror'
an emotional state of extreme
fear
and anxiety.
152
148_
See Time International, January 9,1995,
p.
21.
149
Ibid,
p.
20.
150
Ibid.
151
See $outAl-Bahrain, Issue 44, January 1995,
p.
1. This
monthly
News
paper
is
published
by
the
Islamic Movement
of
Bahrain Liberation
which
is based in London.
152
Hussain, A.,
op. cit, p.
18.
162
Professor Cooper
of
the
Institute for Advanced Studies in Justice
at the
American
University
suggested
that
"terrorism is
so awful
that
it
needs
justifications. It is
approached
by
reasoning with a
fervent
appeal of
ideology, by
moronic with
blind,
soldierly obedience.
Neither
politics nor
ideology belong
to terrorists, they
are only
rationalisations
for
acts of
terrorism.
The
seeds of such violence
is in
some peoples'
souls rather than their
brains.
It is
suggested that
explanations of
terrorism and
the terrorist
in
term
of politics or
ideology
are superficial and misleading.
The
purpose
here is
to
focus
more critically
upon the
individual. "
153
Cooper's
view seems to
be
acceptable
both
politically and
ideologically. If
an act of
terrorism
kills innocent
people who
have
no
direct involvement
with the
conflict except
that
of
being linked by
some element such as nationality, religion, colour etc.,
the
terrorist
group will gain no sympathy
from
the
masses and
this
not only
in
that
particular region
but from
people all over
the
world.
Without doubt,
the
sympathy and
the
support
from
the masses
is
of vital
importance
to the achievement of political
objectives.
Iran
may
be
a good example of
how
a non-violent movement
(led by
Khomeini)
achieved political objective.
With
no
killing
or violent acts against any
group or even
those
in
power,
the
revolutionary movement succeeded
in
achieving the
ultimate power with the
full
support of
the masses.
Kepel
considered the
overthrow of
the
Shah in
recent years was a spectacular success
for
the
Islamic
revolution.
154
There
are probably other
factors
that
helped Khomeini
to
gain control of
the
country.
Nevertheless, it
was a clear
indication
that a political goal
is
not easily achieved
if
violence and
the
killing
civilians
is involved.
153-Sobel,
op. cit, vol.
2,
p.
7.
154..
Kepel, P.,
op. cit, p.
19.
163
Furthermore, if
any movement
involves itself in
violent acts,
the
authorities
have
justification for
using
the
same methods
to
prevent
those
acts.
With
the
support
that the
government may
have from
the people, who are not content with
the
killing
of
innocent
people, the
government could use
this
opportunity
to
destroy
the
opposition
to
its
roots.
Moreover,
with
involvement
of civilians
in
the conflict will create other problems
between
the
people
from both
sides.
All
parties will
try to
justify
their
actions.
Retaliation is
probably one of
the
justifications
that
both
parties
in
conflict will chose.
5.2.6. Is Terrorism Hirba?
As
previously emphasised,
terrorist acts are
totally
rejected
by Islm. Killing innocent
people, who
do
not
directly
participate
in
a conflict
is
prohibited
155
and unjustifiable.
To determine
whether
the act of
terrorism
is
considered as
hirba
or not, a
few
points
should
be
thoroughly analysed.
The first important
point
is
concerned with acts
that
are
considered
hirba. As indicated
earlier,
the
definition
of
hirrba by
the
Mliki
school
is
preferable and
therefore
in
this case
that
definition
will
be
used.
The definition
of the
Mliki
school
is
also applicable
to the case of
terrorism
for
the
following
reasons:
firstly,
the
verse
that
prescribed punishment
for
the crime of
hirba does
not mention
property as
the
main object.
Hence,
we should rely on
the general meaning of
the
verse
(dhhir),
which
includes
all acts of
terrorism regardless of
their
objectives.
Secondly,
according to the
verse of
hirba,
the act of
hirba is
complete when someone
'spreads
the
mischief through the
land' (fasird fil
and).
Terrorising innocent
people,
killing
them,
and causing
destruction
to
state property,
certainly
fulfills
that
criteria of
hirha.
Furthermore,
the
acts of
terrorism are worse
than those
of robbery.
The
victims of
robbery are normally
fewer
that those of
terrorism.
In
terrorist
acts,
there
is
no
doubt
155_
See $ahih Al Bukirri,
vol.
4,
p.
478.
164
that the
effect on
human life is devastating. Innocent
people are
killed
ruthlessly.
156
Robbers
only
kill
their
victims
if
they
feel
that
it is
not safe
to
keep
the
victims alive.
As
property
is
the main
target
in
robbery,
the
destruction
caused
by
this
action
is
often
not very severe.
However,
those who are
involved in
terrorism
intent
upon causing the
destruction
of society.
The
objective of
their action
is
not property
but
rather
death. If
someone who goes out with
the
intention
of robbery
is
then
involved in homicide is
considered as nvhrib as
discussed in
the
previous section of
this
chapter, those
who
go out solely with the
intention
to
kill
and cause
destruction
should also
be
considered
as muhrib.
As
terrorist
acts are considered
hirirba,
the terrorist
is
categorised as nuhrib.
The
ni4zrih
if found
guilty will suffer
hadd
punishment
for hirba. The
terrorist
will not
be
punished until
he is
proved guilty whether
through
confession or
by
testimony.
Other
evidence such as circumstantial evidence can also
be
accepted provided that the
judge is
convinced that the
evidence
has
reached
the
level
of certainty required
for
inflicting
izadd punishment.
All
procedures of
hirha
will apply
in
this
case.
As for
the
punishment, the
judge
can choose
from four
categories of punishment.
If
the
act of
terrorism
involved killing,
the terrorist must suffer mandatory
death
penalty.
The Qdi
is
also allowed to
crucify the
offender
if he
sees
it
as appropriate.
In
the
case of criminal acts,
there
is
no
difference between
those
who are
directly
involved
with the
crime and
those
who supported
it,
whether
financially
or
by
giving
shelter to the
criminal.
157
All
of
them should
have
the
same
degree
of punishment as
the
one who carried out
the
act.
It
was stated
in
al-Muhadhdhab that,
"Those
who
commit the
act of
hirba
whether
it is killing
or
terrorising
others,
helping
the
criminal,
156_
In Oklahoma, in Tokyo, Japan,
ten people are
dead
and
5,000
people were treated
for injuries
as a
result of a terrorist attack using the nerve gas
'satin'. The
attack
is
thought to
have been
carried out
by Aum Shinrikyo Sect. See Newsweek, April 3,1995.
157-See
A!
-Muhadhab,
vol.
2,
p.
3 02.
165
giving aid
for
the
criminal
in his
escape, all are considered as nuhrib according to
Mlik, Abu Hanifa, Ahmad
and
Dhhiriya. "
158
This
opinion
is however is
opposed
by
al-Shfi'i who
holds
that those
who give
help
and support
but do
not commit
the
actual
act of
hirba
are not
to
be
considered mvhrib and
therefore
will not
be
condemned to
the
hadd
punishment
for hirba. However,
the act
is
still considered
illegal
and
therefore the
criminals will
be
punished
byta`zir.
159
Nevertheless,
the
former
view
is
preferable
because
the
acts of
hirba i.
e.
terrorism, are normally carried out
by
a group
or people or organisations.
Therefore it is
acceptable
to
inflict
punishment on those
who
involve in
this
act alongside with
the one who conducts
the
actual act of
terrorism.
Therefore,
those
who are responsible
for
a certain acts either
directly
or
indirectly,
are
considered as nuhrib and
if found
guilty, will suffer
the same
degree
of punishment.
The
actual criminal
in
this case can
be
any person as an
instrumental in
crimes
perpetrated
by
an organisation.
The
gender of
the terrorists
is
not an
important issue here. Both
men and women will
suffer the
hadd
punishment
for hirba if
they
are
involved in
a terrorist act.
Nowadays,
with the
existence of all
kind
of weapons, crimes can easily
be
committed
by
anyone.
The
effect of the
crime
is
the
same.
Women
are
involved
not only
in
the
local
terrorism
but in international
terrorism
as well.
Therefore,
there should
be
no
difference
according to
Shari`a
law between
men and women who commit terrorist
acts.
All
of
them
will suffer the
same punishment regardless of whether
the
victims are
Muslims
or
non
Muslims
and any other circumstances.
It has become
clear that
once acts of
terrorism are
determined
as
hirba,
all
kinds
of
terrorism (including international
terrorism) therefore will
fall
under the
same category.
Therefore,
those
who are responsible
for
this crime will
be
punished according to
hadd
punishment.
All
are equal
before Shari`a law,
regardless of whether they
are
in
power
158_lbid.
159
Ibid.
166
or are ordinary citizen.
Concerning
this matter,
Ibn Hazm is
quoted as saying that
"
one
who commits the acts of
hirba
either with
the use of a weapon or without
it, during
night or
day, in
the
castle or
in
the
mosque or even
if he is
the
caliph
himself is
considered as =hrib"
160
It is
clear
that
from
this
point of view that
no one can
escape punishment regardless of
their status.
Civilians
and ruler will
be
subject to the
same punishment
if
they
are
found
guilty of
this crime.
According
to
Abn Hanifa,
the
nuhrrib will only suffer
hadd
punishment
if
the
crime
is
conducted
in dr
al-Islm.
161
Therefore, if
a crime
takes
place
in dr
al-hart,
the
offender will not
be
punished with
the
hadd
punishment even
if
the
offender
is
a
citizen of
dr Islm. The Inrrm has
no authority
to
inflict
any punishment
beyond
the
boundary
of
dar
al-Islam.
"
162
However,
according
Shfi`i, Mliki, Hanbali
and
Zhiri
schools, the
criminal should
face hadd
punishment even though the
crime occurs
in dir
al-harb.
163
Since
there
is
no clear
indication
on
this
matter
in
the text,
it is
understood that the offender will suffer
their punishment when
they
return to
dr
al-
Islm. 164
This is because
a
judge has
no authority
to
inflict
any punishment on an
offender
in dar
al-harb, even
if
they
are
the
citizen of
dar
al-Islam.
It is
unacceptable
for
a
judge
to
inflict
punishment without
his jurisdiction,
and
it
may cause a conflict
between
neighbouring countries.
Therefore,
the
latter
view of
the
jurists is
more acceptable,
because if
a citizen
from dr
al-Islam commits theft
or some other crimes
in dr
al-harb and
is left
unpunished
when they
return
home,
the
reputation of
dr
a!
-Islnm
will
be badly
affected, and the
160_
See AI. MuhaUa,
vol.
11.
p.
308.
161.
The Shari'a law
can not
be
enforced outside
the territory of the
Islamic
state.
It lacks
the
legal
competence to enter
into
relations with
dar
al-Islam on the
basis
of equality.
See Khadduri, War
and
Peace,
p.
170.
162
See Bad z `,
vol.
7,
p.
80.
163
See Muhadhab,
vol.
2,
p.
358.
164
Khadduri, War
and
Peace,
p.
172.
167
criminals will
begin
to
use
dr
al-barb as a safe place
in
which
to
commit crime.
As
a
result, the
relationship
between
these two countries may
become
tense.
The
criminal
will
be
punished when
they
come
back to
d, Islam,
regardless of where they
committed their
crime.
168
5.3. The Crime
of
Rape (Jarimat
aI-Ightisb)
in Shari'a Law
This
part of
the thesis
deals
with rape
(ightisb) in Shari`a law. The
objective of
this
section
is
mainly
to
determine
whether or not
this crime can
be
categorised as
hirha.
As
this type
of crime
has
not
been discussed
thoroughly
by
the
jurists in
the classical
texts
or
by Muslim
contemporary scholars,
the
discussion
will refer mainly to the
definition
of rape which
is formed from
the
definition
of zin
in Shari'a law
and
the
combination of
the
definitions
of rape
found in
the modern
laws.
165
However,
the
principle of punishment and evidence will still refer
to the
main sources of
the
Shari'a law.
5.3.1. Definition
of
Rape
Rape is literally
translated
in Arabic
as
ightisb. In
general,
ightish
means taking
by
force
something
from
someone without
his
or
her
will.
166
However, ightisb. does
not
have
the
specific meaning of rape.
According
to
Hans Wehr,
the
meaning of
ightish.
might
be forcible, illegal
seizure, usurpation, extortion, robbery, violation,
rape or coercion.
167.
In
this context
however,
the word
ightish.
will
be
used to
designate
the
crime of rape.
As indicated
earlier,
there
is
no clear
definition
given
by
the
Muslim jurists
regarding
rape.
Therefore, it is
essential
to establish a sensible
definition
of rape which
is
165-The
discussion
of rape will cover most of the elements extracted
from
the
definition. In
the
detailed
discussion
regarding rape, the
book
written
by Al-Namir, Izat, Muhammad i.
e.
Jariin
al-7r{!
fi
Qanun
al-'Uqbat al
Misri,
will
be
referred
to,
besides
other
books. This book
mainly
discusses
the
penal code of
Egypt
with special reference
to the crime of rape
(Jarim
t
al-Ightisb).
This book
was
chosen on the
grounds that some of the criteria which are applied
in
the
Egyptian Penal Code is
similar with
Shari `a law.
166-Al-N
,
Izat, Muhammad i.
e.
Jarim
al-'Ird
fi Qanun
al-'Uqbt at-Misri,
Dar
al-Arabia
lil
Mausu'at, Cairo, 1984,
p.
249.
167_
See Wehr, H.,
op. cit, p.
675.
169
acceptable according
to the
Shari`a law. In
order
to
form
a sensible
definition
of rape,
the
discussion
concerning
the
definitions
of zin
by
the
jurists is important
since zin
and rape are similar
in
many aspects.
From
these
definitions,
the
elements extracted
will
be
used as part of
the
definition
of rape.
22n is defined by
the
Mliki
as vaginal
intercourse by
a man who
is bligh
and
`iagil,
with a woman who
is
not under
his
ownership
168
wilfully and with consent
by both
sides.
169
According
to the
Shafi'is
and
Hanbalis,
zin
is
vaginal or anal
intercourse.
170
Imm Abn Hanifa however, holds
that zin will
be
only vaginal and not anal.
171
Al_
Zaili defined
zin as
"an
unlawful
intercourse
with a
living
woman
(who is
not under
the
ownership
(milk)
172
or quasi-ownership
(shubha
milk)
173
of
the
man or
he is
not
married or quasi-married
174
to
her) in
qubl
(vagina)
without
force, in
the
Islamic
state
168_
The definition
of the
Mliki
s clearly reflects
the situation of their time where women can
be
possessed through slavery.
Women
who are married to men are also considered as a possession
according to this through agreement
('aqd)
of marriage.
See Imber, Colin.,
Zin in Ottoman Law, in
Contributions
a'
1'histoire
economique et sociale
de l'Empire
ottoman,
Association
pour
Developpement des Etudes Turques, Paris,
p.
60.
169-
-MU
,
vol.
4,
p.
396. According to the
Mliki
school, an
intercourse in
ciibr
(posterior)
also
falls
under the category of zin.
See
also
Sharh Al Zargni,
vol.
8,
pp.
74
-
75.
170.
AI-Ashbah
waAl-Naza'ir, p
458.
171-
AI-Bach,
vol.
7,
p.
33.
in
Milk (ownership). Intercourse
with a woman under
the ownership e. g. women slaves can
be legally
held
under
Shari `a law.
173- 'Shubha
'rilk' means
doubt in
the possession of a woman slave.
The
possession of a slave
is
considered as
doubtful
when she
belongs
to more than one owner.
In
this
case all owners are not
allowed to
have
sexual
intercourse
with this slave.
However, if
any of the
owners
has
sexual
intercourse
with
her, he is
not
liable for hadd
punishment of zin
because in
this
circumstance, wn
is
considered as
in doubt.
174-
A
marriage
is
considered as shubha
(in doubt)
when
the
procedure of marriage
is
not appropriately
followed. For
example nikdh nvt'ah
(temporary
marriage)
is forbidden in Islm
although, according
to the
Shiite
school
it is
permissible.
Therefore,
whoever married
in
this
way
has
a marriage
considered as
invalid. However,
they will not
be liable for hadd
punishment as there
is
shubha
in
marriage.
Other
examples are marriage without wali
(close
relatives
i.
e.
father,
grandfather,
brother)
or witnesses and marriage with a
fifth
woman
before
the
fourth
woman's period of
talaq
b'in (
170
(dar
al
Islam). "
175
This definition
means
that
in
practice, a sexual
intercourse is illegal
outside the
bond
of slavery or outside marriage.
It
also means
that the
purchase of a
slave confers ownership and within marriage
the
husband's
payment of
dowry (irrthr)
to
the
wife confers ownership and renders a sexual relationship
legal.
176
Thus,
according
to this
definition,
a man
is
only allowed
to
have
a sexual
intercourse
with a woman
whom
he
owns through
slavery or marriage.
The definition
of zin given
by Al-Zaili is
preferable
in
this
case
because it
seems to
be
more comprehensive than the
other
definitions in
that
it
covers almost all elements
of zin.
The definition
also
includes
one
important
element
i.
e. without
force,
which
is
not
included in
other
definitions. This
element
is
very
important
to
distinguish
between
adultery
(zins-)
and rape
(ightisth). Although
this
definition is
considered as
the
most comprehensive
definition
of zig
it is
not necessarily mean that
it is
a
complete
definition because
there
is
another significant element
that
should also
be
included in
zin
i.
e. an anal
intercourse
or sodomy
(liwat),
177
as viewed
by
the
Hanbali
school.
Ab Ynsuf
and al-
Shaibni
also
hold
that
sodomy
is like
zin and
both incur hadd
punishment.
178
The
reasons why this
kind
of
intercourse
should
be
considered as zin may
be
explained
as
follows: Firstly,
sexual
intercourse is
permitted
between
those
who are married to
each other.
However,
to
have
anal
intercourse
or sodomy
(liwat) is forbidden
and may
be
punishable under
Shari`a law
even
though the act
be between husband
and wife
179
permanent
divorce)
ended.
175
See Bad i WaAl-Sandi t.
vol.
7,
p.
33
176
fiber, Colin.. Zin in Ottoman Law. in Contributions
a'
1'histoire
economique et sociale
de
! 'Empire
ottoman,
Association
pour
Developpement des Etudes Turques, Paris,
p.
60.
177-
Limit
(sodomy) is
anal
intercourse
whether
it is between
male and
female
or
between
males.
It is
considered a grave sin under
Shari it law.
178-A1-
Hidya,
vol.
2,
p.
103.
179
It is
agreed upon
jurists
that
having
anal
intercourse
with a wife
is
not
liable for hadd
punishment
because
the
husband has
a right to
have
sexual
intercourse
with
his
wife.
However
the majority of
171
Secondly,
according
to the
Shari'a law,
the punishment
for
sodomy
(liwat) is
more
severe than
zin.
180
The
punishment
for
sodomy
is
stoning
to
death
regardless of
whether or not
the
offender
is
married.
181
In
zin
however,
the
death
penalty
i.
e. rajm
(stoning) is
only
inflicted
on a married person,
182
while a non married person will
be
flogged
a
hundred
times
and exiled
(nom) for
a year.
183
Hence, it is
suggested
that the
crime of sodomy
(liwat) is
more serious
than zin and consequently
it
should
be
considered as an offence and punishable under
the
lwdd law.
It follows from
this
discussion
that two
other elements
i.
e.
force
and anal
intercourse,
should
be included in
the
definition
of zin given
by Al Zail i. After
adding these two
elements and with some modification, zin can
be defined
as:
"Intercourse by
a man with a woman who
is
not married to
him
either
in
the vagina
(qubl)
or posterior
(dubr)
and without
force".
Some
of
the
elements stated
by Al- Zaila'i
such as that the woman
be living
ownership
(milk)
or quasi-ownership and
the crime
being
perpetrated
in
the
Islamic
state
(d&
a!
Islam)
were omitted
in
this
definition. The
woman
is being
alive
is
omitted
because
zin
is
normally carried out with an alive woman, and
the
definition
should
be based
on
the
normal character of
the
crime.
Therefore, it is
not necessary
to
include
this
element
in
the
definition. Intercourse
with a
dead
woman rarely
happens
and
therefore
should
not
be
taken
into
account when establishing
the
definition. Ownership (milk) is
also
omitted
from
the
definition
as a matter of practicality.
Women
slaves are no
longer
jurists including Mlikis, Abn Hantfa, Ahmad, Ab Ynsuf
and
Muhammad-
the
Hanafi followers,
hold
that the act
is forbidden
and punishable with
discretionary
punishment
(ta`zv). See 'Auda,
vol.
2,
pp.
353-4.
180_
The
punishment
for Mvw is
prescribed
in
a
haath, "Whoever is found
guilty of sodomy
(liwt), kill
them
both. " The hadth
was narrated
by Abt Dawd, Al Tarmidhi, Ibn Majah
and
Al Baihagi.
181-MusnadAL-ImmAhm7d
,
vol.
2,
p.
416.
182
See
,
Sahib 41-Bulhri,
vol.
8,
p.
581.
183_
Musnad Al JntinAhnvd.
vol.
2.402.
172
available,
nowadays even
though
it
might come
into
an existence
in
the
future.
184
Therefore,
this
element should not
be included in
the
definition
either.
As for
the
location
of the
crime
in
the
Islamic
state,
it is
not
important
to
include in
this
definition
simply,
because
the authority of
the
Islamic
state cannot go
beyond its boundary.
Meaning
that the
offenders only can
be
punished when
the
crime of zin
is
committed
in
the
Islamic
state and
if
the
crime
is
committed outside
the
Islamic
state, the
offenders
can only
be
punished when
they return
to the
Islamic
state.
As
the
definition
of zin
has been
established,
it is
also
important
to
look
at the
definition
of rape according
to the
English law
to
find
elements which may
be
applicable to the
definition
of rape under
Shari`a law
.
The
offence of rape
is legally
defined in
the
Act
of
1976
as:
"When
a man
has
unlawful sexual
intercourse
with a woman without
her
consent, and at that time
he knows
that
she
does
not consent to
intercourse
or
is
reckless as
to whether or not she consent
to
it. "
185
It is
worth noting that to
consent
is
considered pertinent use of
force
that
causes
fear
of
death
or serious
injury
to the
victim or
her
relatives.
186
According
to
The Pakistani
Penal Code, 1860,
the
acts
that
fall
under rape when,
"A
man
has
sexual
intercourse
with a woman against
her
will and without
her
consent.
"
187
It is
clear
from
the
above
definitions
that the consent of
the
woman
is
considered as
the
most
important
element
in
rape according
to the
English law
and
he Pakistani Penal
18
As for
slavery,
Islam
strongly encourages
the
Muslims
to
free
to the slaves under their possession.
See $ ih AI-Bukh&i,
vol.
3,
p.
295.
18-
Sexual Offence (Amendment) Act 1976.
186-
Sexual Offence (Amendment) Act 1976.
187-
The Pakistani Penal Code, 1860.
173
Code. Hence,
this
element will
be
used
together
with
the
comprehensive
definition
of
zin with a minor modification, as part of
the
definition
of rape under
Shari`a
law.
Rape
under the
Shari`a law
can
be defined
as:
"Unlawful intercourse by
a man with a woman who
is
not married to
him
either
in
the vagina
(qubl)
or posterior
(dubr)
without
her
consent"
By looking
at the above
definition
of zin and rape
it becomes
clear
that there
is
no
great
difference between
these two
crimes except
in
the
way
that they
are carried out.
If
the
act
is
carried out with
the
consent of
the woman and without the
use of any
kind
of
force,
the
act
is
considered as zin.
However, if
the
act of sexual
intercourse is
carried out without the
consent of woman or
by force,
the
act will
be
considered as
rape.
It is
clear that the
absence of
the
woman's consent
is
considered as
the
most
important
element
in
rape.
It is interesting
to
note
however,
that some scholars classify rape
in
the same category
as zin.
Al-Namir, for instance
states
that
"sexual intercourse
with a woman with or
without
her
consent
is
considered as zin under
Shari`a law
and punishable under the
hudd
law".
188
This
opinion seems
to
be
generalising sex offences.
However, if
we
look
at
the
opinion of
the
jurists, it is found
that zin and rape are
in fact
two
different
crimes although they
might
be
similar
in
many aspects.
It
maybe acceptable
for
some
people to
say that
sexual
intercourse
taking place without
the consent of the woman
but
with no use of
force falls into
the category of zin.
However, it is
unacceptable
for
all
kinds
of
intercourse
without the consent of women whether
forced
with or without the
use of a weapon to
be
considered as zin.
By
putting rape
in
the
same category as zin,
it
means that
both
parties are
held
responsible
for
this
act as
Schacht
clearly states.
This
opinion
dearly
contravenes
the general principle of
Shari `a law
which excludes
the
liability
of
the
offender when coercion
is involved.
189
Thus, it is dear
that
rape
188
Al_Namir,
p.
290.
189_
See
the
full
quotation of the
ha
th
in Chapter Two
p.
12.
174
and zin are not
the
same crime and
therefore the offender will not
be
punished with a
same punishment appropriate
for
the
other crime.
5.3.2. The Elements
of
Rape
Rape
as well as other crimes
in Shcri`a law,
requires
that certain elements
be
present
before
the
punishment
is
carried out.
The discussion in
this
part will
focus
on
two
main objectives; to
decide
whether an act can
be
considered rape, and
to
determine
whether rape
(ightic b)
can
be
regarded as
hirba.
From
the
final definition
of rape,
there are
three
important
elements
that will
be
present
in
rape:
i) The Act
of
Sexual Intercourse
By
sexual
intercourse is
meant
the
penetration of
the vagina
by
the penis.
190
Once
penetration
has
taken
place, one of
the elements which
is
required
to
be
present
in
rape
is
completed and the
accused
is liable for
punishment even
if
the
hymen
of
the
vagina
is
not ruptured, provided
that other elements are also present.
This is due
to the
fact
that
some women
have
a
hymen
not easily ruptured
191
even
though the
penis
has
completely
penetrated
in
the
vagina.
It is
also understood
from
the
definition,
that
it
is
not necessary
for
the man
to
have
ejaculated,
as
long
as penetration
has
taken
place.
192
If for
example the
man suddenly stops
before
reaches climax,
he is
still
regarded as committing rape.
However, if
a man stops
before
penetrating,
he
will not
190
-
This
element
is
among the requirement
in
zin and
it
will
be
used
in
rape since
both
cases require
penetration of the vagina
by
the penis.
It is
stated
that sexual
intercourse
which
is
considered as
wa
is
penetration
by
the of penis of the vagina
like
a pail
in
a well.
It is
not required that the
penetration
to
be
complete
.
If
a man puts the glans
(1=1
a) of
his
penis
into
the vagina, the
requirement of
penetration
is fulfilled
and the element of zin and at the same time
of rape
is
present.
For
more
details
see
Nihynt
al-MuWf
,
vol.
7,
p.
402.
191
_
Al-Namir,
op. cit. p.
253.
192
-
See The London Rape Crisis Centre, Seal Violence, The Women's Press, London, 1984.
175
be
considered as a rapist
because
the
penetration
is
not completed.
Hence,
the
accused
cannot
be
charged
for
the
crime of rape.
193
It is
also understood that the
act will not
be
considered as rape
if
the
accused
is
only
fondling
the
breast
of the
women or
touching the vagina with
his
penis.
If
the
accused
puts
his finger into
the vagina or puts sperm
into
the vagina and causes the
pregnancy
of
the
woman,
it is
not considered as rape.
194
This is because,
penetration which
is
considered the
one single most
important
element
in
zini as well as
in
rape,
does
not
happen. If
penetration
does
not
take place, the accused person cannot
be
charge under
the
rape offence
but
other related offences such as attempted rape or
indecent
assault.
According
to
English law,
the courts usually require evidence of
both
penetration and
force
as corroboration.
195
b) And intercourse
with a wont n
It is
clear that the
discussion
regarding sexual
intercourse focuses
on vaginal
intercourse. It is
considered as a general rule
in Shari`a law
that the
principles are
always
based
on a model of
the way which certain acts are normally perpetrated.
In
zin
for instance,
the
normal
is
vaginal
intercourse.
196
Therefore, it is
considered rape
for
a man,
by
the use of
force
to
have
a vaginal
intercourse
with a woman
based
on
the
natural and normal procedure.
However,
as previously emphasised, anal
intercourse is
also regarded as zin and punishable as such.
Therefore,
if
a man
has
anal
intercourse
with a woman
by force,
the
act will
be
considered rape.
Neither English law
nor
the
Pakistani Penal Code include
this
element
in
their
definitions.
193
-Namir.
op. cit. p.
252.
194
-
Ibid.
195-
The London Rape Crisis Centre, Serual Violence, The Women's Press, London, 1984
196-
M-Namic,
op. cit, p.
252.
176
c)
The
position of a woman who
forces
a man
to
have
sexual
intercourse
with
her
Although it is
clearly stated
in
the
definition
that
what
is
considered rape
is
sexual
intercourse by
a man with a woman who
is
not married
to
him
without
her
consent, the
definition
also
includes
the
woman who
forces
a man to
have
sexual
intercourse
with
her. When
we
discuss
rape, what comes
to
mind
is
that the
accused
is
always a man
and the
victim
is
always a woman.
However, if
the
one single most
important
element
i.
e.
the
lack
of consent or
the
use of
force is
present,
the
accused, regardless of gender
will
be liable for
the
same punishment.
The
man can
be
considered as the
victim
in
which case
he is
not
liable for
any punishment.
d) The
position of
third
parties who
force
a nwn or a woman
to
have
sexual
intercourse
Coercion
to
have
sexual
intercourse
can come not only
from
the
attacker
himself but
also
from
another person.
If, for instance,
a person
forces
a man or a woman to
have
a
sexual
intercourse, he is
considered
the actual offender even
though
he does
not commit
the
act
himself. The
reason
in
this case
is
simple; those who are
forced
to
have
sexual
intercourse
be
they
man or woman
have
no criminal
intention,
and
this
is
an
important
element
in
the
crime.
197
They
commit
the
crime simply
because
they
have
no
alternative
if
they
are
to save
their
lives
or those of
their
families. Therefore, it is
generally
accepted that
punishment should not
be inflicted
on those
who
have been
forced
to
commit a crime
that they
would not
have
committed under normal
circumstances.
197_
'Umar did
not punish a woman who was
forced by
a man to
have
sexual
intercourse
with
her. See
,
Sahib Al Bukhri
,
vol.
9,
p.
634.
177
Similar
treatment
should
be
meted out to those
who
force
others to
commit rape
by
giving the
victim
drugs
or similar substances.
198
However, if
the
accused
has,
through
using
drugs
wilfully,
lost his
mind and control and committed rape will
be held
responsible.
ii) Non-Consent
of
Wonxzn
The
element of rape
is
present when sexual
intercourse happens
to
a woman without
her
consent or
by force. Non-consent
of
the woman
is
considered as an
important
criterion
that
distinguishes between
rape and zin.
What is
meant
by
non-consent of the
woman
in
this
context
is
that the woman
is
not willing
to
have
sexual
intercourse
with the
accused.
199
The lack
of consent
to
have
sexual
intercourse
can
be
perceived
in
the
acts
of
the
woman e. g. resistance
(nugwarm). According
to
Kelly, 60
per cent of
the
victims of rape resist physically and
the
remaining
40
per cent make
it
clear that they
did
not want to
have
sex with
the man.
Physical
resistance was more common when
the
rapist was a stranger; verbal resistance was more
likely
where
the
rapist was
known
and/or when the
woman
feared
that resistance would result
in
their
being badly
injured. 200
If
the
woman
does
not resist
because
of
the
influence
of alcohol or
drugs
given
by
the
perpetrator,
the
man
is
still considered a rapist.
If
sexual
intercourse happens
with an under age girl with
her
consent, although she may
not understand the
consequences of
having
sexual
intercourse,
the
act
does
not
fall
under rape, as consent
has been
obtained.
201
However,
the
act
is
still considered an
offence and punishable under the
Shari`a law i.
e. zin.
It is
clear that the
act of sexual
intercourse in
this
case
is
neither aggressive
nor violence or the
use weapon
is involved.
The
consent
is basically
obtained
from
the girl and
therefore the
accused person can not
198
Sexual Offence (Amendment) Act 1976.
199
Al-Namir,
op. cit. p.
255.
200
See Kelly, Liz, Surviving Sexual Violence, Polity Press, Cambridge, 1988,
p.
170.
201-
In English law
and the
Pakistani Penal Code,
sexual
intercourse
with an underage girl
is
considered
rape.
See Sexual Offence (Amendment) Act 1976, See
also
The Pakistani Penal Code, 1860.
178
be
charged with rape.
The
girl,
however
will not
be
charged with any offence
because
she
is
under age and
furthermore
she
does
not understand about the
act or
its
consequences.
If
a woman
is
given a sleeping pill and
loses
consciousness as a result and
does
not
regain the
consciousness
during
sexual
intercourse,
the
accused
is liable
to
be
punished
for
rape.
202
However, if
the woman regains consciousness
during intercourse but does
not resist, the
act will not
be
considered as a rape.
203
It is
suggested that
by
administering sleeping pills or
drugs
or any substance which
could cause the
loss
of consciousness
in
the
woman
in
order
to
have
sexual
intercourse
with
her, is
to
be
treated
as
the use of
force. Although
no
force is involved in
this
case,
the
effect
is
more or
less
the
same.
Therefore,
the act should
be
considered rape and
the
attacker
should
be
punished accordingly.
Consent is
also not considered valid
if
someone uses
deception (khid'a)
to
have
sexual
intercourse
with
his
victim.
If
a man,
for instance,
pretending
to
be
the
husband
of a
woman
has
sexual
intercourse
with
her,
the act
is
considered as rape even though the
woman
does
not resist of
the
act.
204
There
are other situations where a claim
that there was consent cannot
be
accepted.
If
a
woman
has been
raped
by
a group of people, presumably she only resisted
the
first
attempt to
rape
her. After being
raped
by
the
first
offender, she was probably unable
to
resist any more attempts to
rape
her.
205
Under
these circumstances, the
attackers are
all considered rapist even
though the victim
did
not resist.
The
passive act
from
the
victim
in
this
case
did
not mean that she consented
to
have
sexual
intercourse
with the
202-
AI-Namir,
op. cit, p.
257.
203_
Ibid.
204
-
Ibid.
205
Ibid.
179
accused,
but
that
she was unable to as
because
of
the
depression
she suffered
from
the
first intercourse
or perhaps she was
beaten
or
injured
and was
therefore
unable to
resist.
Coercion (ikrh) is
closely
linked
to
lack
of consent.
When
a woman
has
sexual
intercourse
with a man without
her
consent, she
has been forced
to
do
so.
Therefore,
although coercion
(ikrh) is
not
directly
mentioned
in
the
definition, it
may
be
regarded
as one of the
most
important
elements of rape.
Coercion (ikrh) however
must
be
a
real
threat
206
if
the victim
does
not submit
to
have
a sexual
intercourse
with the
accused person.
The
consent
in
this case
is
not considered as voluntary consent.
If
however,
the threat
of causing
harm is
not real
the accused person cannot
be
charged
with rape
but
only with zin.
However, if
the act may
lead
to
death
the
act may
be
considered as a real threat and
the
accused can
be
charged as rape.
In
order to
inflict
punishment on the
convict,
the coercion
(ikrh)
must
be
existent until the
act of sexual
intercourse is
complete.
207
If
the threat
is lifted before intercourse
takes
place, the
man cannot
be
charged with rape.
iii) Marital Status
Marital
status
is
an
important
element
in
rape
because
one can only
be
charged with
committing
rape when one
forces intercourse
with a woman who
is
not married to
one.
If
a
husband forces his
wife
to
have
a sexual
intercourse, he is
not considered to
have
committed rape
because
a
husband has
the
right
208
to
have
sexual
intercourse
with
his
wi.
fe209 Furthermore, it is
a
duty for
a wife
to submit
to
her husband's
request
for
206-
Ibid.
207
Ibid,
p.
259.
208-
In
a
hadith
reported
by Abu Hurairah,
the
Prophet is
quoted as saying that:
"When
a woman spends
the
night away
from her husband,
the angels curse
her
until morning.
In
another
hadith
the
Prophet
says:
"When
a man
invites his
wife
to
his bed
and she
does
not come, and
he (the husband)
spend the
night
being
angry with
her,
the angles curse
her
until morning.
See Sahiih, Muslim (trap),
op. cit, p.
732.
209
AI. Figh
aI
Wdih,
vol.
2,
p.
67.
180
sexual
intercourse
210
except
in
three
situations; menstruation,
211
nifs
(parturition)
and obligatory
fasting.
212
If
the
husband forces his
wife
for
sexual
intercourse
in
these
situations, the
husband is
considered as committing a sin,
but he
cannot
be
charged as committing rape
but
rather a
ta`zir
213
for
abusing
his
wife.
Nevertheless,
this
does
not mean
that
husband
can
do
whatever
he likes
to
his
wife.
The husband is
allowed
to
act only according
to the provisions prescribed
in Shari`a
law. He is
not allowed to
harm his
wife or
to
have
sexual
intercourse
with
her during
menstruation or
during
the
day in
the month of
Ramadan.
214
A husband is
not allowed
to
have
sexual
intercourse
with
his
under aged wife.
Having
sexual
intercourse
with an
under aged wife
by force is
against
the
Shari'a
rule.
The husband in
this
case
is liable
for
a
ta`zir
punishment
for
acting against
the rules prescribed
in Shari`a law but
not
under zin or rape
(ightish ).
However, if
a man
forces his irrevocably divorced
wife(talq
bii'in)
to
have
sexual
intercourse,
it is
considered rape
(ightisb) because
they no
longer have
a
lawful
relationship
as
husband
and wife.
It is
clear
in
this
case,
that the
man
has
no more right
toward
his
ex-wife.
210_
See h Al_Bukhri,
vol.
7,
p.
62.
211_
No
sexual
intercourse is
allowed
during
menstruation
period even
between husband
and wife
212
Al_, qs j
wa alNai p.
460.
213
Ibid,
p.
770.
214
One
who
has
sexual
intercourse during
the
day
of
Ramzdn is liable for kqffara (expiation). This
expiation
is described is
the
Qur'an
which
is
either
feeding
ten
indigent
persons, or clothe them,
or
give a slave
his freedom. If
that
is beyond
one's means, one
has
to
fast for
three
days. See Qur'an, 5:
89.
181
5.3.3. The Effect
of
Rape
on
the
Victim
There is
no
doubt
that
rape
is
a
hostile
act
done
to
an
innocent
person who
is
changed as
a result.
The
victim
is
the
one who
is
acted upon and usually adversely affected
by
a
force
or agent,
is
the
one who
is
subjected
to oppression,
hardship,
or mistreatment, the
one who
is
tricked
or
duped.
215
Empirical
studies of
the
impact
of rape reveals
psychological symptoms such as anxiety,
depression,
sexual
dysfunction,
and social
disruptions.
216
Rape
also affects
the mental
health
e. g. cognitive change
including
the
shattering of central
beliefs.
217
It is
also
believed
that many rape victims meet the
diagnostic
criteria
for
post traumatic stress
disorder.
218
Rape
represents
the
most
serious of all major crimes against
the
person, apart
from homicide.
219
In
recent years, the
number of
incidents
of rape
has increased
significantly.
220
This
increase
means that
more and more victims will suffer as a result of this
crime.
According
to
Kelly, in
a period
immediately
after
the
rape, women
have
to
cope with
feelings
evoked
by
rape.
The following
ways of
feeling (in
order of
frequency
mentioned) were recalled
by 28
women who
had
experienced
rape: upset, numb,
dirty,
ashamed, angry, wanting to
forget,
abused, guilty and
fearful.
221
215_
Webster's
ninth new collegiate
dictionary, 1985,
p.
ix.
216
Ibid.
217-
Ibid.
218-
Ibid,
p. x.
219
Ibid,
p.
1.
22Q
In Britain,
the
rape cases
is in increase
every year.
In 1983,111,300
cases were recorded and this
number
is increased
to
205,100
cases
in 1993.
See Annual Abstract
of
Statistic, Central Statistic
Office, A Publication
of the
Government Statistic
Service, London, 1995,
p.
68.
221-
Kelly,
op. cit. p.
171.
182
Another
worrying
factor
about rape
is
that the women may run away
from home
and
become involved in
prostitution
to
finance
themselves and even
become involved in
alcohol and
drug
abuse and
in
some cases committed suicide.
222
Rape
victims especially women
devoted
to
religious practice would
feel
more
depression
than
others
because
rape
destroys
their
dignity
which
has
never
been
touched
before but
they
are stronger
in facing
their
feelings
than the
others
because
they
believe
that
it
was
destined
to
happen
to them.
Unlike
women who
have less dignity
because
of
their
involvement in
a
free life
or
in
vice,
the
depression
would
be less
because
they
lose
nothing except
that the act was
done
to them without their
consent.
Although
they
have
already
had
the same experience of
intercourse
with
their
partner,
the
difference here is
consent and not
dignity. In Muslim
countries, virginity of
the
bride is
something that will
be
considered when getting married.
Not being
a virgin,
the
bride
would
become
under suspicion although
the virginity of a woman can
be lost
not only through
intercourse but
through
involvement in
sport or
in
an accident.
5.3.4. The Criminal Intention in Rape
In
the
Shari`a law,
criminal
intention is
considered as one of
the
important
element
which
determines
the
criminal
liability
on
the accused
person.
In
general, one
is
considered as
having
a criminal
intention if he
or she
is
aware
that the
act
that
he/she
committed
is
against the
law. As for
the crime of rape, one
is
considered as
having
this
intention
when
he has
an
intercourse
with a woman
by force
and without
her
consent
and
furthermore he is
aware
that the acts
he is
committing
is
against the
law.
222
Ibid,
pp.
174
-188.
183
The
motives of committing rape
is immaterial
and will not
be
considered as
long
as the
accused
is
aware that
he is
committing an
illegal
act against the victim.
It is
clear that
the men who rape women may
have different
motives and objectives.
Some
of
them
commit rape simply to
satisfy their
sexual
desire,
some of them
rape
for
revenge or to
force
the
family
of the victim to
accept
him
as a
husband
and others rape to
smear the
dignity
of the
woman and
her family.
If
a man
has
an
intercourse
with a woman who sleeps
in his bed
whom
he believes his
wife,
he is
not considered as committing a rape.
It is
simply
because
the
man
had
no
criminal
intention
to
commit an
illegal
act against
the woman.
223
A
similar treatment
should
be
given to
a man who usually
has intercourse
with a certain woman.
If for
instance in
one occasion,
the
woman refused
to
have
sexual
intercourse
with
him but
the
man
insisted
to
have it,
the man
in
this case
is
not considered as a rapist
based
on
his
relationship with that
woman.
The
resistance
by
a woman
in
this
particular case
may
be
presumed as
flirt
or
trifle
(dail).
224
The
consent of
the
woman
to
have
sexual
intercourse
with the
man earlier may
be
accepted as circumstantial evidence
(qarina)
that the
woman was not serious
in her
resistance against the man.
225
5.3.5. The Position
of
Rape Victims
under
the
Shari`a Law.
Rape is
considered one of
the
most serious crimes under
Shari`a law. It is
evident that
women
in
many cases are considered
the victims of
this
crime and therefore their
position should
be
carefully examined.
Since force is
used against
the
victims
in
this
case,
the
position of
the
victim
is
clear.
They
should not
be
regarded
in
any way
liable
for
punishment
by
the
consensus of
jurists.
223-
AI-Namir.
op. cit. p.
262.
224-
Ibid.
225-
Ibid.
184
The
opinion of
the
jurist is in fact in line
with
the
principle
laid down in
the
Qur'n
which says:
"But if
one
is forced by
necessity, without wilful
disobedience,
nor
transgressing
due limits,
then
he is
guiltless.
For God is Oft-forgiving
Most Merciful. "
226
In
the
haditiz
regarding
this
matter,
the
Prophet is
quoted as saying
that:
"Three kinds
of actions which are uncountable
from
my nation
(umna);
mistakes,
forgetfulness
and coercion.
"
227
From
these two
primary sources
in Shari`a law, it is
understood
that
force
or
ikrah
(coercion) is
considered as one of
the
important
elements
that affects the
criminal
liability
of a person.
In
other words,
if
a person
is forced
to commit an
illegal
act,
he is
not'liable
for
any punishment.
The Jurists however, have different
opinions when a
man
is forced
to
have
sexual
intercourse. According
to the
predominant view of
Mliki, Hanafi,
and
Hanbali
schools,
the man who
is forced
to commit sexual
intercourse
is liable for hadd
punishment
if
the penis of
the man
is
erect.
228
The
erection according to this view reflects
the
intention
of
the man
to commit the
crime
zin.
If however
the
erection
does
not
happen
and
the accused
is
proven
to
have been
forced
to
have
sexual
intercourse, he is
not
liable for
the punishment.
229
Some jurists
however,
view
this point rather
differently.
They
assert that the
argument
made
by
the
first
group of
jurists
concerning
erection
is invalid because
erection
in
most cases reflects
the
healthiness (fiuhla)
of
the penis
230
and
it happens
226
Qur'n, 1: 173.
227-
The hadith
narrated
by Abu Hurairah. See Musnad
Ifl=AhM4 Vol. 2,
p.
253.
228-
See 'Auda,
op. cit, p.
365.
229
Ibid.
230-
See Al-Mughni,
vol.
10,
p.
158.
185
spontaneously
(tabi`a)
231
and
it does
not reflect
his intention
to
commit the
crime.
232
Therefore,
it
can
be
said that the
man who
is forced
to
have
sexual
intercourse
cannot
be held
responsible
for his
act whether
he has
erection or not.
In further
argument, this
group`of
jurists hold
that there should
be
no
different between
man and woman
in
terms
of punishment once coercion
is
proven.
233
The
opinion
that
coercion prevents
erection of the
penis
is invalid because
the
man
fears
not committing
the
crime
but does
fear
the
commission of some acts against
him if he does
not commit
that
crime.
Furthermore,
the
coercion
itself is
considered as
doubtful (shubha)
234
where all the
acts which
fall
under these
categories should not
be liable for
any punishment.
235
The
opinion of this
group of
jurists is
preferable
in
this case
because if
women are
exempted
from
any punishment
because
of
the
force involved,
men also should
be
treated
in
the
same manner
based
on
the general principle of coercion
(ikrh).
Ina haath
the
Prophet
says
that
"Avoid
all
kind
of
harms (darar)
and avoid causing any
harms
( 0,,
236
Based
on the
above
harfith,
the
following
principle was established:
"Necessity (darra)
237
allows
the
illegality"
238
231_
Minor!!,
vol.
8.
p.
331.
232-
See A! Mughni,
vol.
10,
p.
158.
233-
Ibid.
234
See'Auda,
op. cit, vol.
2,
p.
364.
235-
See Al Mughni,
vol.
10,
p.
158.
236
Hadith
narrated
by Ibn Majah. See Al Ashbah
wa al
Naza tr.
,
p.
173.
237-
The
theory
of
darra in
the
Islamic law is discussed
around the principle of
"the harm
must
be
removed"
(al-clarar
wuzal) which
is
extracted
from
the
hadith: " No harm is
allowed and no causing
harm is
allowed"
(la
(law wala {lir&).
The
concept of
4an2ra
allows certain crimes
to
be
committed
on the
grounds that the
car is
to
be
eliminated.
For
the sake of protecting a soul
(n*)
one
is
permitted to
commit other crimes as
the
mar (harm)
should
be
eliminated.
See Qasim, Yusuf..
186
From
the
Qur'n
and
the
hadtth
together with
the
principles of
fiqh, it is
clear that the
concept of
darura(necessity)
239
plays a very significant role
in determining
the
punishment
for
the
accused person.
Although
the
crime committed
by
the
accused
person
is
considered as a grave sin and
involves hadd
punishment,
the
punishment will
not
be imposed
when the
act
involved
coercion
(ikrh). The
coercion
(ikrh) in
this
case
falls
under the
category of necessity
(dar
ra) where
the
victim
has
no choice
but
to
submit to the
request of
the
offender
in
order
to
save
his
or
her life. Hence, he
or she
should not
be
accountable
for
the crimes committed.
Although
those
who commit crime which
involves
coercion are not
liable for
any
punishment,
it is important
to
observe
that
if
a
life is
endangered,
it is
not allowed
in
any circumstances to
sacrifice another
life for
the sake of one
life
or even
for
the
sake
of many
lives.
240
In
other words, one
is
not allowed
to commit a crime which
is
on
the same
level
with the
crime
that
he
or she
is being forced
to commit
because
the
principle of
figh
which states
that:
"The harm
cannot
be
removed
by
another
harm"
241
For instance,
if
one
if forced
to
kill
others or
be killed,
242
one
is
not allowed to
kill
others to
save one's
life
243
and
if
one
does,
one
is liable
for
qisas.
244
Similarly,
one
Na?
arryya al-clarra,
Dar Al-Nahda Al-Arabia. 1983,
pp.
156-157.
238_Af
.
Ashbah
wal
Naaair,
p.
173.
239
I)arvra
is defined by
the scholar as a
fear
of
damage
either
to the soul
(ruffs)
or
body. Both
{larra
and coercion
have
the same meaning that
is
committing
an act which
is
prohibited
in Islm in
order to
protect a
harm
caused
by
the
accused
i.
e. extreme
hunger, thirsty.
See Qsim,
p.
89.
240
See Qmm,
op. cit, p.
159.
241
_
SeeAjA
waj
Naza jr,
p.
176.
242-
One is
prohibited to
kill
others even when one
is
coerced
to
do
so.
However,
one
is
allowed to
break his fast if he is
coerced to
do
so.
See Al Ashbh
Waal
Naz ir,
p.
347.
243_
See Qmm,
op. cit, p.
159.
244
AI. Ashbyh Wa
at
Nagir,
p.
364.
187
is
not allowed to
burn
the
farm
of others
to
save one's own
farm.
245
This
principle
meant to
minimise the
effect or the
degree
of
harm
of a certain act.
One is
permitted to
commit a crime which
is
of a
less degree
of
danger
either
to
himself
or
to
another.
If
a
woman
is forced
to
have
sexual
intercourse
with a man
to
save
her life
or the
life
of
her
husband,
she
is
allowed to
do
so simply
because life is
more
important
than
dignity.
These
examples suggest that
removing a
Barar ( harm) by
causing another
harm
to
another person
is
against
Sharl'a law. Therefore,
one who commits crime
in
the
situation
described
above
is liable for
punishment according
to this
principle.
It is
noteworthy that the
jurists
when
discussing
rape or
know
as
'
zin
bil ikrh' in
their terms
and
'ightisb' in
modern
terminology,
do
not
discuss
punishment
for
those
who commit this
crime.
The discussion in
this
part concentrates only on the
victim of
rape and
her liability for hadd
punishment.
Regarding
this matter,
Ibn Qudibna
states
that:
"There
should
be
no
hadd for
the woman who
is forced
to
have
sexual
intercourse
according
to the view of
the
majority of
the
jurists".
246
However,
it
should
be
asked why
the
jurists do
not
discuss
the punishment
for
the
rapist
but do discuss
the
victim of the rape.
In
order
to
analyse
this matter,
it is important
to
state the
relevant event
that
specifically mentioned rape cases.
In
the time
of
'Umar,
a
woman who committed zin was
brought
to
'Umar for
the
judgement. The
woman
however
said that
she was asleep and
did
not wake up until a man
had
sexual
intercourse
with
her. The
woman was not punished
by 'Umar.
247
On
another
occasion, which also took
place
in
the time of
'Umar,
a woman was very thirsty
and she
asked a man
for
water and was refused until she
had intercourse
with
him. The
woman
did
so and was
brought
to
'Umar for judgement.
'Umar
asked
'Ali for his
opinion and
245_
See Qsim,
op. cit, p.
159.
246
See A
.
Mughni,
vol.
8,
p.
186.
247-
Ibid,
p.
403.
188
`Ali
said that the
woman was
forced
and
the
woman was
left
without
being
punished
248
From
these three
events, there
was no
indication
that
force
or the use of a weapon was
involved. Hence it is
presumed
that the
jurists did
not
discuss
this
matter simply
because
the
act of zind
by
the
men
in
these three events
fall
under zin and therefore
no separate
discussion is
needed.
In
these three
cases, all victims of zin were not
punished
because
they
were
forced. However
the men who raped were punished
by
hadd
punishment
for
zin.
5.3.6. Is Rape Hirba?
Before
we
jump
to
a conclusion as
to whether or not rape can
be
considered
hirba, it is
worth observing the
opinion of
the
jurists
on
this
matter.
Some
argue
that
rape should
not
be
categorised
as
hirba because hirba is
a crime that
involves
property.
In
order
to
answer this
argument,
it is
appropriate
to
bring
the
same argument
faced by
the
great
scholar,
Ibn
al-'Arabi.
Ibn Al-'Arabi
was quoted as saying,
that
"there
was a woman
who was
kidnapped
and raped.
When
this
incident
was
brought
to trial,
some people
claimed that this
case was not
hirba, because hirba
can only
involve
property.
249
In
responding to this
argument,
Ibn Al-'Arabi
asked,
"was
not
the
rape worse than
robbery?
"
250
Ibn Al-'Arabi, in justifying his
argument says
that,
"People
usually will
not
fight
to
protect their
property
if
their
lives in danger but
will
fight in
the
same
situation
if
their
wives or
daughters
are going
to
be
raped or their
modesty
is being
outraged.
"
251
24
Ibid.
p.
319.
249
_Ahkjv-n
a!
Qur n
,
vol.
2,
p.
247.
250
_
Ibid.
251
-Ibid.
189
It is
obvious, according
to the opinion of
Ibn
al-'Arabi, that the
dignity
of a person
is
more precious than material property and
therefore
deserves
more protection
by
the
law. The
argument
by Ibn Al-Arabi in
my opinion
is
preferable on
the
grounds
that
a
woman normally will give up
her belongings
as
long
as
her
attacker
does
not
force her
into
sexual
intercourse. If
the
negative effects of robbery and rape on
the
victim are
examined
it
seems
that
rape
is
more
damaging
and
distressing
than
robbery.
Women
who
have been
victim of rape may suffer
their
whole
life
and rape
itself destroys
the
future
of
the
victim.
Ibn Hazm
agrees
that
rape should
be
categorised as
hirba. He is
quoted as saying
that:
"Muimrib is
the one who
terrorises
people either
by killing,
taking
property or rape.
"
252
Rape is
also
included in
the
definition
of
hirba by Ism'il
who says that:
"hirba is
the
act of an armed group of people who terrorise
in dar
al-Islam either
by killing
people, robbery, rape or
destroying
their
farms. "
253
Some
of
the
Shfi'i jurists
and
Mlikis
agree that
rape should
be
considered
hirba.
254
Mujahid
also
holds
that
rape
is
one of
hirba
crime.
255
However, it
should
be
made clear
that not all rape can
be
considered
hirba.
Only
sexual
intercourse
obtained
through the use of
force,
weapons or
drugs
or any substance
that
may cause the
loss
of consciousness will
be
considered as
hirdba. Therefore,
sexual
intercourse by
a man with an underage woman with
her
consent, or through
deception (khid`a)
although may
be
considered rape, will not
be
considered
hirdha.
Intercourse
with a woman who
is in
a
deep
sleep, or
intercourse
which
involves
some
252
Al-MuhaUa,
vol.
11,
p.
308.
253
A!
-Figh
al-Wdih, vol.
2,
p.
257.
254-
Nihayat
al-Muhtaj, vol.
8.
p.
2.
255-
See TafsirAl-Tabari,
voL
6,
p.
122.
190
sort of
threat
but
neither
force
nor weapon are also not considered as rape
in
my view
and
therefore will not
be
considered as
hirba. However,
all
the types
of sexual
intercourse
mentioned above
fall
under
the
category of zin where
the
accused person
will
be liable for hadd
punishment of zin.
The
women who are
involved in
the
above
cases are not
liable for
any punishment.
Judging by
the opinions of
the
scholars
and
the
effects of rape on
the victims, plus
arguments regarding
this
matter,
it is
strongly suggested
that rape
that
involves
violence
or the use of
drugs
must
be included in hirba
and consequently
the
offender must
be
punished according
to this
law.
5.3.7. Evidence in Rape
If
the
crime of rape
is
accepted as a crime which
falls
under
hirba
as previously
discussed,
there
is
no
doubt
that all rules and principles that
are apply
in hirba
will
also
be
applied
in
rape.
Therefore,
the crime can
be
proven
by
either testimony
by
two
eye witnesses or confession
(igrr). However,
some might
ask why
in
zin
four
witnesses are required
to
prove
the act of zinF whereas
in
rape, two
witnesses are
sufficient.
To
clarify this
argument,
it
can
be
said
that,
in
zin, there is
a clear verse
from
the
Qur'n
as well as
in Wth
that states
the requirement of
four
witnesses
in
zin.
In
the
Qur'n Allah
says:
"And
those who
launch
charge against chaste women, and produce not
four
witnesses
(to
support
their allegations),
flog
them with eighty
stripes, and reject
their
evidence ever after.
For
such men are wicked
transgressors".
256
Although
the verse prescribes the
requirement of evidence
in
gaaJ
f,
the same rule
is
applied
in
zin,
because
an allegation of zin
is
considered as gadh,
f if
the plaintiff
does
256
_Quen,
24: 4.
191
not produce
four
witnesses.
However, in
the
case of rape there
is
no verse
from
the
Qur'n
nor the
hadtfz
that
describes
the number of the
witnesses required
to
prove this
crime.
Therefore,
since rape
is
accepted as a crime of
hirha,
two
witnesses are
sufficient
to
prove
this crime.
It is
also
important
to
note
that the
person accused of rape will not
be
punished unless
it
is
proven
that
he is
capable of committing
the crime.
In
other words,
the
actual
commission of
the crime
is
necessary
to punish
257
the
accused person.
Thus,
the
accused must not
be
an
impotent
man or
have had his
penis cut off
in
which case
sexual
intercourse
would
have been impossible. The
woman must also
have been
capable of
having
sexual
intercourse. If for instance
the
vagina of a woman
is
too tight
or
has
a permanent
disability,
the accused person will not
be
prosecuted.
258
If
a man
is
accused of committing rape,
the
judge
should
find
an expert to
find
out whether the
accused
is
capable of committing
the crime.
As for
the claim of
the victim of an alleged rape,
the
jurists have different
opinions.
According
to
Imm Mlik,
the claim of rape made
by
an unmarried pregnant woman
is
unacceptable
259
unless
if
she
has
clear proof of
her
claims about
the
marriage or
force
against
her. "
260
In
a
failure
of producing a clear proof,
the
woman will suffer
hadd
punishment.
261
This
opinion
is in line
with
the
opinion of
'Umar bin Al-Khaq b.
262
However,
according
to
Abii Hansfa, Al-Shfi'i
and
Ahmad,
the woman will not suffer
hadd
punishment
for
zin
if
there
is
no evidence other
than pregnancy
if
she claims that
she
has been
raped.
263
If
she neither claims
to
have been
raped nor confesses to
zin
257-
See Imber, C,
op. cit, p.
69.
258-
Al-Namir,
op. cit. pp.
253
-
254.
259-
Al Mudawanna,
vol.
4.
p.
383.
260-
Imam Mme,
a(-Muwctta',
English Translation by 'A'isha 'Abdul Rahmzn
and
Ya'cob Johnson,
Diwan Press, London, 1982,
p.
392.
261-
Ibid.
262-
See Sahih Al-Bukhri,
vol.
8,
p.
582.
263
See Al-Mughni,
vol.
10,
p.
192.
192
and
if
there
is
no other proof of
her involvement in
zin,
the
woman
is
not
liable for
hadd
punishment
264
because
no
hadd
punishment will
be
carried out except with a
clear proof either
by
testimony or confession
(igrr).
265
It is
clear
in
the view of
Imam Mlik
that qarina
(circumstantial
evidence)
is
authentic
evidence
(that is, in
this case
the
pregnancy of
the
woman) enough
to
inflict
the
h.
add
punishment on
the accused person.
The
opinion of
Immen Malik in
this
case seems
to
be
very strict
in
terms of rejecting
the claim made
by
an unmarried woman who
is found
to
be
pregnant.
However,
the stand
that
Imam Malik
took although
it
seems
to
be
strict
is
however
acceptable
in
some regards.
Imm Mlik
seems
to
place
the
burden
of producing evidence on the
defendant instead
of
the
plaintiff.
He, in
this
respect, puts a pressure on
the woman
to
produce evidence
when
he insists
that the accused must prove
that
her
claim of marriage or use of
force is
true to
avoid
hadd
punishment
for
zin.
The
requirement made
by Imm Mlik is
acceptable
in
a sense
that requiring proof
for
every claim
is
an essential element
in
avoiding
false
claims made
by defendants. Women
who commit zin may claim
to
be
raped or married
to
avoid
hadd
punishment.
The
evidence accepted
by Imm Mlik in
this case
is
that
"the
woman must come
bleeding if
she was a virgin or she must
have
called out
for help
so
that someone comes
to
her
and she must
be in
that state or what resembles
the condition
in
which
the
violation occurred.
"266 There is
no
doubt
that
if
a woman who claims
to
have been
raped comes as
described
above,
her
claim should
be
accepted.
However, if
these
descriptions
could not
be found,
experts are
in
this case may
be
required
to
prove
the
claim made
by
the woman.
If
the
experts
found
the
injury
or wound, or
if
the
hymen
of
264
Ibid.
265
Ibid.
266-,
I9l-Muwcua'
(Trans)
p.
392.
193
the
woman
has been
ruptured, and
if
there
was a clear sign of a struggle
between
the
victim and
the
attacker,
the
claim
by
the
woman should
be
accepted.
If
these
descriptions
are not
found,
the
victim me
be
presumed as
been
given
drugs
or
intoxicating
substance
by force
where she
is incapable
to
resist or struggle.
The
victim
in
this
case must
be
proved
that the
drugs
or
intoxicating
substance were given
by
either
deception
of
force. If
these
are proved,
then,
he
hadd
punishment must
be
averted.
The
same step
is
also taken
in
modern
law. The
claim of rape made
by
a woman
is
not
accepted
by
the
police unless
the woman
is badly beaten, bruised
or
has
otherwise
sustained physical
injuries.
267
Clear
physical
injuries
and
bruises
are necessary
to
clarify whether
the
claim made
by
the woman of
being
raped
is
a genuine one.
268
5.3.8. Punishment for Rape
It is
clear that sexual
intercourse
which meets all
the specific elements of rape
falls
under
the
category of
hirba. There
was no specific punishment ruled out
for
rape
in
the time
of
the
Prophet
or
in
the case of a woman who was
brought
to
`Umar for
the
judgement. The
women
in both
cases were not punished
because
they were
forced.
However,
no punishment was prescribed
for
those
men who
had
sexual
intercourse
without
the
consent of women.
It is
suggested
that the accused persons
in both
cases
were treated under
hadd for
zin rather
than
hirba
simply
because
there was no
force
or use of a weapon.
Since
rape
(ightisirb) is
considered
hirba,
there will
be
no other punishment except
that
prescribed
by
the
Qur'n is
the verse of
hirba. If
we
take the opinion of
Ibn
al-
'Arabi,
269
it is
clear
that
rape
is
more
damaging
than
robbery
because
the
dignity
of a
267..
Harmer, Jalna, Blowing
the
Lover
of the
Protective Male, in Garmarnikow, Eva, Morgan, David,
The Public
and
the
Private, London, Heinmann, 1983,
p.
38.
268-
Stanko, Elizabeth, A., Intimate Intrusions, Routledge
and
Kegaa Paul, London, 1985,
p.
117
269
,
gm
at
Qur'a,
4 vol.
2,
p.
247.
194
person
is
more precious
than property.
If
crimes which
involve dignity (nvr
a)
i.
e.
zin and
defamation (gad#J)
are
taken
into
account, the punishment
for
these two
crimes are quite severe and
the
purpose of
the
punishment prescribed
for
these
offence
is
to protect
the
dignity
of people.
The
eighty
lashes for defamation (gadh, f), hundred
lashes for
unmarried people
involve in
zin and stoning
to
death for
a married person
seems to
be harsh but
there are no alternative punishments
for
these
crimes.
If flogging
(a hundred lashes) for
unmarried persons, and stoning
to
death for
married person
is
prescribed
for
zin4 which
is
carried out with
the consent
from both
sides,
it is
clear
that the
punishment
for
rape should
be
severe
because
the
act
involves
aggression or a
weapon.
If for
zind
the
punishment prescribed
is
stoning
to
death, it
seems
that
for
rape
the
same
punishment
i.
e.
the
death
penalty, should also
be
applied.
The death
penalty
for
rape
is
considered as
the
basic
punishment
for
rape
270
based
on
the
punishment
for
zinit.
271
However,
since rape
involves
the use of
force
or a weapon, more punishment should
be
added,
in
this case crucifixion.
It is
not as appropriate,
in
my opinion,
for
the
Qdi
to
exile the
rapist even
though the
Qdi has
the
right
to choose either one of
the
four
punishments prescribed
for hirba.
It
should
be
noted
that a man who
is
raped
by
a man should
be included in
the category
of
hirba for
which
the offender will suffer
the
hadd
punishment.
Abn
al-Sand,
in
regard
to this
matter, recommends
the
death
penalty presumably
because
the
circumstances aggravate
the
offence.
272
From
this point of view,
it is
clear that
270-
The Kuwaiti law
also prescribes the
death
penalty
for
rape.
In
section
186
of
Kuwaiti Penal Code it
is
stated that
"the
accused who
forces
a woman to
have
sexual
intercourse
with
him is liable for
execution or
life imprisonment". See Al-Namir,
p.
249.
271-Abn
al-Sa'd when replying
to the question concerning a person who
forced
a woman
to
have
sexual
intercourse,
recommended
the
death
penalty
for
the offender without ascertaining
his
status as
married or unmarried.
Thus, it is
suggested
that this sentence may reflect the violent circumstances of
the offence.
See Imber, Colin.,
op. cit, p.
81.
272
-
See Imber, C,
op. cit, p.
81.
195
although women
in
many cases
involving
rape are
the victims of
the
crime, male victim
of rape victims should also
be included
under
the
same category of offence.
196
5.4. Smuggling
and
Trafficking Drugs in Shari`a Law
Drugs
constitute a social problem
facing
the
international
community.
Drugs
use
is
considered as an
international
phenomenon and
has become
an
international
problem.
273
The Shanghai Conference
of
1909
was a signal of
international
action
towards
fighting drugs
problems.
The international Opium Convention
at
the
Hague
led
to the
first International Treaty
that
was
designed
to
bring
about the
gradual
suppression of
the
abuse of opium, morphine and cocaine.
274
The Single Convention
on
Narcotic Drugs (1961) Article 36,
states
that:
"Foreigners
shall
be
prosecuted
by
the
Party in
whose territory the
offence was committed or offender
is found, if
extradition
is
not
acceptable.
"
275
Drugs
are not only a problem of
third world countries,
in
some cases
this
problem
is
more chronic
in
the
developed
countries.
In
the
United Kingdom for instance,
the
nation
has become
seriously alarmed.
Heroin
addiction was
described
as a
'grave
illness
and a
terrifying social evil'.
276
The
signs of
increased
use of
drugs had been
reported since
the
early
1980s. This increase
can
be
observed
in
the
statistics
concerning the
of number of
drugs
seizures made
by
police of one of the
most
dangerous drugs i.
e. cocaine.
In 1981,503
seizures of cocaine were made
by
police.
The
number of seizures
has increased
very
dramatically in
ten
years when the
number
of seizure recorded
in 1991
was
1,984
seizures.
Two
years
later
the
seizure was
recorded as
2,983.277 As for heroin,
278
an
increase
can also
be
observed.
In 1981,
273
Hartvoll, Richard, The International Context in MacGregor,
p.
36.
274
Bean,
op. cit, p.
21,1974.
275-
See Frank, Dawtry., Social Problems
ofDrugAbuse,
London, Butterworths, 1968,
p.
75.
276-
Bernard Braine,
a
Conservative MP for Castle Point in
the
Daily Telegraph, April 14,1984.
277-
Central Statistic Office, Social Trends 25, London, 1995,
p.
156.
278-
This kind
of
drug is
classified as a
dangerous drug
and
has
an estimated
70,000
regular users
in
Britain. See Leornard, Jason Lloyd., Drug. Addiction
and the
Law, ELM Publications,
Cambridgeshire, 1994,
p.
10/ 1.
197
819
seizures were made while
in 1991
the
numbers
had increased
to
2,640
and
in 1993,
3,679
seizure were recorded
.
279
The British
government provided extra
funds in
order to
combat
the
drugs
problem.
In January 1983,
these
funds
were
increased
to
6
million over three years.
280
Drugs
problems
have led
some
MPs in
the
UK
to
suggest
the
return of
the
death
penalty
for drugs
trafficking
offences.
Tom Sackville,
a
Conservative Nil' for Bolton West,
supported a move
to
bring back hanging for
selected
offences
including
wholesale
dealing in heroin.
281
From
this
evidence,
it is
clear
that
drugs
are among
the
major problems of
the world, and
this
issue
therefore
should
be
tackled
very carefully.
The
objective and the aim of this
research
is
to
clarify and to
determine
whether the
crime of
drugs
smuggling and
drugs
trafficking can
be
considered as
hirba. As khamr
(alcohol) is
the
only
intoxicating
substance
that
is discussed by
the classical
jurists, it is
vital
to
include in
this
discussion
the
matters concerning
drugs. Alcohol (kharrr) in
this
case will
be
regarded as
the
important
reference
for drugs. The detailed discussion
pertaining to
certain aspects of
khanr (alcohol) in
this
section
is
considered as
important because
most of
the related matters regarding
drugs
are
based
on
khamr.
5.4.1. Definition
of
Drugs
and
its Related Matters
No
clear
definition
of
drugs
and
its
related offences,
i.
e. smuggling and
trafficking,
are
given
in
the
classical
text
of
the
Shari'a law. Although
some
jurists did include drugs
in
their
discussions,
the
discussion
was conducted very
briefly. The discussion
concerning this
matter
is
omitted
by
most of the classical
jurists
simply
because
this
kind
of substance
did
not exist
during
their time
as
it does
today.
Therefore, it is
necessary to
form
a
definition
of
drugs
that conforms with the
Shari'a law
as well as
279..
Central Statistic Office, Social Trends 25, London, 1995,
p.
156.
280..
MacGregor, Susanne, Drugs
and
British Society, Routledge, London, 1989,
p.
1.
281
Bolton Evening News, 28 June 1983.
198
the
Modern law
so that this
definition
can
be
applied
in
a modern society.
To form
this
definition, it is important
to
consider
the
definitions
of alcohol
(kharrr) by
the
Muslims
jurists
as well as
the
definitions
of
drugs
given
in
modem
terms.
The
elements that
will
be
extracted
from
these
definitions
will
be
used to
establish a comprehensive
definition
of
drugs
that
is
applicable under
Shari`a law. The definition
of
khanr is
necessary to
be included
simply
because
khanr
and
drugs
are similar
in
many respects.
As drugs
use
is
considered as
the main
issue,
the
discussion
concerning this
point will
be discussed in detail
while smuggling and
trafficking,
even though they
are
the
main
title
of
this
section, will
be discussed in brief. This is
simply
because
smuggling and
trafficking
become
unimportant
if drugs
are
legal. The
significance of smuggling and
trafficking
in
the
context of
law
very much
depends
on the
outcome of
the
discussion
concerning
drugs. To form
this
definition, it is important
to
consider the
definitions
of
alcohol
(khanr) by
the
Muslim jurists
as well as
the
definitions
of
drugs
given
in
modern terms.
The
elements
that will
be
extracted
from
these
definitions
will
be
used
to
establish a comprehensive
definition
of
drug
that
is
applicable under
the
Shari `a law.
The jurists have
given
different definitions
of alcohol.
According
to
Malik,
282
Al-
Shfi'i283
and
Ahmad,
the
meaning of
khanr is
an
intoxicating
substance whether
it is
made
from
grapes or any other sources such as
dates,
raisins, wheat or rice and whether
small or
big
amount of
it intoxicates.
284
Ibn Qayyim
seems
to
hold
the
same the
definition
as
the
majority of
the
jurists. He defined
khan
r as
"everything
that
intoxicates
either
in
the
form
of
liquid
such as
kharrr
or solid
(jrrid)
such as
drugs"?
85
282
A!
-Mudawwana,
vol.
4,
p.
410.
283-
Shari:
al-Zargni vol.
7,
p.
112.
28-
Al-Mughni,
Vol.
10,
p.
326.
285-
Ibn Qayylm, Al Hafiz Ibn Abdullah., Zad Al MI'd, Scientific Department' Headquarters (Riyadh,
Saudi, Arabia, N. D.
199
However,
what
is defined
as alcohol
(khanr)
according to
Abn Hanifa is
as
follows:
First,
grape
juice
when
it is boiled
and produces
bubbles (zabad).
286
Abn Ynsuf
and
Muhammad however
opined
that
if it is boiled
and concentrated
(ishtadda) it becomes
alcohol
(khanr)
whether
it
produces zabad
(bubbles)
or not.
287
Second,
grape
juice
when
it is boiled
and only one third or
less
of
it is left
and
it
becomes intoxicating.
Third,
the
extract of
dates
or raisins when
they
are
boiled
and produced
bubbles
(zabj).
288
Therefore,
according
to
Ab Hansfa,
any substance other
than these three types,
it is
not
considered as
khamr (alcohol)
and
drinking
this
substance
is
not prohibited unless
it
becomes intoxicating. When it becomes intoxicating,
the
drinker is liable for
punishment although not
for drinking, but
rather
for being intoxicated.
289
After
analysing
the
definitions
given
by
the
jurists, it
seems
that the opinion of
the
majority of
jurists is
acceptable.
However,
the
opinion of
Ibn Qayyim is
preferable
in
this case
because it
gives more comprehensive coverage
to what
is
called
'khan'.
Moreover,
the
definition
of
Ibn Qayyim
seems
to
be in line
with
the
ha dz
of
the
Prophet
that says
that:
"Everything
that
intoxicates is harm".
290
The Wth
clearly states
that
all substances
that
can cause
intoxication
are considered
as
khaiir
and are prohibited.
The
opinion of
Abn Ijanifa
seems
to
contradict
the
above
hadith
and another
hadith
of
the
Prophet
that says:
286-
See Bc4ri
a!
-$aniVr,,
vol.
5,
p.
112.
287-
Ibid.
288-
See Al-Mughmi,
vol.
10.
p.
327.
289-
See Baff i
al-$ani
Z
vol.
5,112
290-
See Musnad bmmAbrad
vol
2,
p.
417.
200
"What is intoxicating in
the
big
amount of
it,
the
small amount of
it is
6ff&n'
291
If
the opinion of
Ab Hanifa is
accepted, people may use this
definition
to
escape
the
punishment of
hadd. Further,
this opinion
is
also against the
Islamic
principle that
says
'prevention is better
than
cure'.
In
this
case,
it is
suggested that
by
preventing people
from drinking
a small amount of
drinks
that
can cause
intoxication in
a
large
amount,
they
can
be
prevented
from drinking
a
large
amount of
it
and consequently
from being
intoxicated
and punished under
the
hadd
punishment.
However, it is
noteworthy that
the
definition
of
the
majority of
jurists
concerning
khanr is
acceptable and
followed by
most of the
Muslim
countries nowadays.
292
It
can
be
said therefore that the
add punishment
for drinking khamr is
only one that
is
hadd for drinking
alcohol and not
for being intoxicated. Thus,
whoever
drinks
intoxicating
substance
in
whatever
form,
and whether
he becomes intoxicated
or not
is
considered as committing
the crime of
drinking
alcohol and
is
punishable under the
ba, dd.
293
After
concluding the
definition
of
khanr, it is important
to
consider the
definitions
of
drugs
according to
modem
terms to
form
a
definition
of
drugs in Shari'a
law. In
modem terms,
drugs
are generally
defined
as
"any
substance
that,
when
taken
into
the
living
organism may modify one or more of
its functions. "
294
Jordan
and
Leech
define drugs
as
"a
chemical
that
affects us mentally or physically.
"
295
291_
Ibid,
p.
417.
292
See Auda,
op. cit, p.
499.
293
Ibid.
294-
See Youth
and
Drugs, World Health Organisation, Geneva, 1973,
p.
8.
295..
See Leech, Kenneth
and
Jordan, Brenda., The Religious Education Press, Oxford, 1973,
p.
1
201
Drugs
are normally used
for
medical purposes and are composed of chemical
ingredients
that
normally can
be
prescribed
by
a
doctor.
296
From
a consideration of
the
definitions
of
drugs
as well as the
definition
of
khanr by
the
jurists, it
appears that there
is
no great
difference between
these two
substances.
The
elements
from
these two
streams of opinion can
be
used to
establish a concrete
definition
of
drugs in Shari'a law. By
combining the
elements that
are extracted
from
these
definitions
and after some modifications,
drugs
according to
Shari'a law
can
be
defined
as:
"Any
chemical substance
that
can affect
the
users mentally and
physically when
it is
used without a
legitimate
reason"
The important
element
that
is
agreed on
by
most of
the
jurists in khanr i.
e,
intoxication,
is
omitted
from
the
definition
simply
because
the
mental effect of
drugs
that
is included
in
the
above
definition
covers
intoxication. One
other element
i.
e. misuse,
is included
in
the
definition
to
differentiate between drugs
and alcohol.
Clearly,
what
is illegal in
this
case
is
the
misuse of
drugs
and not
in
the use of
them
in
a proper way.
Therefore,
this
element
is
not applied
to
alcohol
because
there
is
no
term
'misuse
of alcohol'.
Drug Smuggling
and
Drug Trafficking
As
there
is
no
definition
of smuggling and trafficking
drugs in Shari`a law,
the
definition
from English law
will
be
used
in
this
context.
The
main
legal
constraints on
drugs
smuggling are to
be found
within two
statutes.
The first is
the
Misuse
of
Drugs
Act 1971 (MDA). Section 3
of that
Act
provides:
296-
Ibid.
202
"The importation
and
the
exportation of a controlled
drugs
are
prohibited.
"
297
Drugs
trafficking
is defined in English law
as:
"The
unlawful production and supply of controlled
drugs,
298
and
possession of controlled
drugs
with
intent
to
supply.
"
299
Illegal drugs importation
or exportation also
falls
under
this
definition.
300
By looking
at
these two
definitions, it
seems
that there
is
a similarity
between
smuggling and
trafficking
drugs. Obviously,
trafficking
drugs has
a wider meaning of
dealing
with
drugs
than
smuggling.
What is
meant
by
trafficking
includes
all
dealings
with
drugs
such as
importation,
exportation, production, supply and possession with
intent
to
supply.
All
these
acts
fall
under
this category of offence.
5.4.2. The Effect
of
Drugs
on
the
Users
There is
no
doubt
that the misuse of
drugs
produces negative effects upon and very
serious problems
for
the users regardless of which methods are used.
301
According
to
WHO
reports,
there are
three major effects of
taking
drugs;
personality problems of the
drugs
taker,
mental and/or physical
disorders in
the person
involved
or sociocultural
pressures or social
ill.
302
Heroin is
among the most
dangerous
and well
known
of all
the abused
drugs
and
is
part of
the
opiate group,
derived from
the
opium poppy.
303
297..
See Leornard,
op. cit, p.
611.
298
Among
controlled
drugs
are
heroin
and morphine.
The importation
of
large
scale of this substance
which value
10,000
or more
is liable for 10
year's
imprisonment. See Leornard,
op. cit, p.
9/1.
299
See Leornard,
op. cit, p.
8/3.
300
Ibid.
301
The drug is
administrated
by
three main methods:
by injection (either into
the muscle or vein),
by
sniffing
(or
snorting) the powder, or
by inhaling
the
fumes. See Leornard,
p.
1011.
302-WHO
reports, p.
39.
303-See
Leornard,
op. cit. p.
10/1.
203
The
use of this
drugs
produces
feelings
of warmth and tranquillity
and
dependency
can
be
physical as well as psychological.
304
Cocaine for instance
can cause permanent
damage
to the
personality and
to the
digestive
and nervous systems and
is
soon
apparent after repeated use.
305
The
continuos use of
Marijuana (cannabis),
can
lead
to
permanent
lethargy
and withdrawal
from
reality.
In
predisposed
individuals it
can
precipitate
a state of mental
disorder.
306
Drugs
can also cause
intoxication, brain
damage,
addiction, mental
illness
and going astray.
307
This
substance can also cause
death. According
to
Dr. John Henry, it is believes
that
as many as
50
young people a
year are
dying
as a consequence of
taking
drugs
308
and
Britain is being
the
higher
number of
death from
ecstasy
than other countries.
309
However, it is
unfortunate that
although
the
effects of
drugs
are publicly
known,
the
misuse of
these
substances
has
not
decreased.
310
Drugs
are not only
harmful
311
to those
who take them,
but
abuse of
them
may
lead
to
other consequences such commission of crimes.
312
The
cocaine abuser
for instance
30-
Ibid.
305-
Frank. D.,
op. cit, p.
66.
306
Ibid.
p.
67.
307-Mees,
op. cit. p.
7.
308
Independent, November 17.1995.
309
Ibid.
310_Mees,
op. cit. p.
7.
311-The
danger
of
drugs is indisputable. In
the
1980s,
the
fear
was often voiced that
drugs
signify
loss
of
control, a shift of control
from
the national state
to
international
organised criminal networks, and the
loss
of control of parents over children.
And drugs do
provide a
direct
aid to criminality,
by
offering
an alternative currency, one which relatively
difficult
to
detect,
giving
high
market value
for
relatively
little bulk. See MacGregor, S..
op. cit, p.
12.
312
The
effect of
drugs. is
worse than alcohol..
Both
substances to certain extent are related to the
commission
of crime and other consequences.
Alcohol
related
harm is
associated with accidents,
work problems, crime, physical and mental
ill health
and relationship problems.
See Collins, Stewart.,
Alcohol, Social Work
and
Helping, Tavistock/ Routledge, London, 1990,
p.
1. It is
also recorded that
64 %
of those
arrested
had been drinking in
the
four hours before
their arrest, while
between 10
pm
and
2
pm,
93 %
of all arrested persons were
intoxicated. See Jeffs
and
Saunders, 1983. In
recent
204
is
quickly
caught
in
a vicious circle
that
invariably forces him into
crime to
feed
this
habit.
313
This
effect
is
proved
to
be
true when we
look
at a country such as
Malaysia.
In
this
country,
60
-
70
per cent of criminal activities are related
to
drugs.
314
Forty
per
cent
(6,000)
of prisoners
throughout the country are
involved
with
drugs.
315
Drugs
are
also associated with violence, subversive and alien.
316
Cockett in
contrast to this statement, argues
that there are no grounds
for
assuming that
all
drugs-taking is
associated with criminality.
317
His
argument
is based
on a sample
of
17
patients attending a
drug
addiction
treatment centre.
He
asserted that
only three
out of
17
patients
had
committed offences connected with
drugs
and
the
remaining
14
had delinquent
histories
unassociated with
drug-taking.
318
Although
according to this opinion only a small number of
drugs
takers
had been
involved
in
convictions other
than
drugs
offences, evidently
drugs in
one way or
another, play a significant role
in
the commission of crime.
The
percentage of
drugs
users who are
involved in
other offences such theft,
robbery or rape may
differ from
one country to
another
but it is
undeniable
that
drugs
may
lead
to
other crimes.
Drugs is
also related
to
AIDS (Acquired
Immune-Deficiency Syndrome). By June
1988,1,598
cases of
AIDS had been
recorded
in
the
United Kingdom
and
897
that
British
studies,
it
was
indicated
that
between 30
and
50
per cent of
burglaries
were committed where
the offenders under the
influence
of alcohol.
See Royal College
of
Psychiatrists, 1986. Drinkers
are
to
believed 40
-
50
times more
likely
to commit suicide, while
66
per cent of parasuicides
are
likely
to
have
alcohol problems.
See
alcohol concern,
1987, Saunders, 1984. Alcohol
may cause physical
illness,
liver damage,
stomach problems,
heart
trouble,
high blood
pressure, and
fatal
alcohol
syndrome.
See Collins,
op. cit., p.
3.
313
See Leornard, J.,
op. cit, p.
10/ 1.
314_
See Aslie, M. Reduan,
op. cit, p.
212.
315-
Ibid.
316_
MacGregor, S.,
op. cit, p.
11.
317-Cockeu,
R.. Drug Abuse
and
Personality in Young Offenders, London, Buaerwocths,
p.
64.
318-1bid.
205
represents
56
per cent of them
had died.
319
Known
sources of
HIV infection in
England, Wales
and
Northern Ireland
represent
7.8
per cent
intravenous drugs
abuse.
320
According
to one of
the
reports, more
than
14,000 deaths had been
recorded
by
the
late 1980s.
321
In Scotland
alone,
by September 1992,1845 HIV-infected
persons
were recorded and
224
of
them
have
since
died.
322
Among
other sources of
HIV
infection in Scotland is intravenous drugs
misuse which represents
918
cases and
69
of
whom
have died.
323
In America, heroin
addicts are now said
to
account
for
more
than
20
per cent of
AIDS
cases and
36
per cent
in New York City
alone.
324
Some
might
argue
that the
number of persons
infected
with
HIV
through the
misuse of
drugs is
minimal.
Nevertheless, by
observing
the
above statistics, there
is
clear
indication
that
drugs do have
contributed
towards creating other problems,
in
this
case,
AIDS
even
though the
number of
the
infected
victims
is
small.
Surprisingly, Leech
seems
to
disagree
that
drugs
are capable of causing a great
deal
of
harm
to the
users
.
He
argues
that
"
overdose and
infection"
are
the two
main physical
dangers
to
users of
drugs.
325
The
view of
Leech
may
be
acceptable
in
a sense
that
only overdose as well as
infection
such as
AIDS
can cause
death
to
drugs
users.
However, it is
suggested
that
by
giving such an opinion,
he
may encourage more and
more people, especially youngsters
to
become involved
with
drugs
as, according to
Leech,
taking
drugs in itself does
not put one
in
any great
danger
as
long
as
the
users
do
not
take more
than they
should.
Meaning
that,
if
a person
is looking for
a
drugs, be
should
be
told
not
to take the
drugs
excessively and avoid sharing a needle as
is
may
cause
danger
to the users.
This
opinion may also suggest
that the use of
drugs
should
319_
MacGregor,
op. cit. p.
13.
320
Ibid.
p.
14.
321_
Ibid,
p.
13.
322-The
National Health Service in Scotland, Scottish Health Statistics 1992. Edinburgh, 1992,
p.
27.
323_
Ibid.
324_
MacGregor,
op. cit, p.
15.
325_
Leech,
op. cit, p.
41.
206
be decriminalised
and all
drugs
users should
be
educated and
taught
how
to
use
drugs
properly to
avoid
the worst consequences.
These
are clear examples of
the
differences between Shari`a law
and modern
law in
tackling the
problems arising
from drugs
as well as other crimes.
In
the
Shari'a law,
prevention
is better
than
cure.
In dealing
with
the use of
drugs for instance, Islam
prohibits the
misuse of
them
in
any quantity.
What is harem in large
quantity
is
also
prohibited
in
a small quantity.
In
the case of
khanr, for instance, Islam
always
foresees
the
effect of
drinking,
as well as what can
drinking lead
people
to
do. As
a result,
drinking khanr is
prohibited although, according
to
Leech,
only
the
excessive use of
it
can cause the
danger
to the
drinker. What
can cause
danger in large
quantity
is
also
prohibited
in
a small quantity as a way of prevention
(wigy9a). By
prohibiting
drinking
in
a small quantity,
it is
obvious
that
drinking
a
large
quantity of
it is
also
harm
(prohibited). It is
suggested
from
the
discussion
that
both
substances
i.
e.
khamr
and
drugs,
share
the
same elements
in
many respects.
Both
substances
have
an unpleasant
effect on those who
take them whether
in
the
short or
long
run.
5.4.3. The Prohibition
of
Drugs in Shari'a Law
By looking
at
the
immense
effects of
drugs
on
the users,
there
is
no
doubt
that
drugs
are
dangerous
substance
that
should
be
prohibited.
However,
some might argue over which
drugs
should
be
prohibited since
there
is
no nass
(text)
concerning the
prohibition of
this
substance either
in
the
Qur'n
or
in Sunna. To
clarify this
question,
it
can
be
said
that the
Qur'n
as well as
the
Sunna
only prescribes
the
ruling
(hukm)
on something that
was
in
existence at
the time
of revelation.
Clearly, drugs
were not available at
the time
of
the
Prophet. Therefore it is
unsurprising
that the
ruling
(hukm)
on
this
substance
is
not prescribed either
in
the
Qur'an
or
in Sunna. At
this
point,
the use of giys
is
essential
to
find
out
the
ruling
(hukm)
on
drugs. The
prohibition of
drugs is
extracted
from
alcohol
(khanr)
which
is
prescribed
from
the
verse of
Qur'n by
analogy
(giys).
207
Concerning
this matter
the
Qur'an
says:
"0
you who
believe,
wine and games of chance and
idols
and
divining
arrows are only an abomination, a
handiwork
of
Satan. Leave it
aside
in
order
that ye may succeed.
326
Although
the verse of
the
Qur'an does
not clearly prescribe the
ruling
for drugs, by
giys the
ruling
(hukm)
on
khanr
can also
be
applied
for drugs. By
considering the
elements of
khanr, it
can
be
said
that
khamr is
prohibited mainly
because
of
its
intoxicating
effect.
Intoxication (sukr) is
considered as the
main
`illa (reason) in
the
prohibition of
kharrr. The
same element
i.
e.
intoxication,
can also
be found in drugs
and therefore these
are also prohibited on
the
same
basis.
The damaging
effects of
drugs
may
be
considered as another reason
('illa)
why they
should
be
prohibited
in Shari`a law. This
prohibition
is in line
with
the
verse of
Qur'an
that
prohibits causing
harm
and
destruction
to
ourselves as well as others.
Concerning
this
matter the
Qur'an
observes:
"And
make not your own
hands
contribute to
(your) destruction (a!
-
tahluka);
but do
good;
for God loveth
those who
do
good.
"
327
It is
a general principle
in Shari`a law
that everything
that
causes
harm
and
destruction
either physically or mentally
is
prohibited
(harm). Hence, it is
unsurprising that the
jurists have
no
differences
of opinion concerning
the
hukm (ruling)
on this
substance.
328
Ism'il
pointed out that the
ruling on
drugs
and alcohol
is
the
same.
Both
are prohibited
in
the
Shari`a law. Those
who
take
drugs
and
drink
alcohol
commit the
same sin according
to
Shari`a law
329
326
-Qur'in.
5:. 91.
327-
'an, 2: 195.
328-
Ibn Al Taimiyyah, Al Fatawa,
vol.
6,
p
116.
329
See Ism'iil, Muhammad, Bakr,
al
Fiqh
al-Wddih,
Dar
al-Manr,
Cairo, VoL 2,
p.
296.
208
The jurists
agree
that the
misuse of
drugs is
prohibited
in
the same way as
kharr.
According
to
Ibn Tainiiyyah,
taking
drugs is Karam (prohibited).
330
There is
no
doubt
that
both drugs
and alcohol cause
harm
to
human beings
especially
to their
mind and
therefore
it is
prohibited
in Shari`a law. Islam
prohibited
khan
r
in
an absolute
prohibition
because khan
r was considered
by
the
Prophet
as the
mother of sins
(unrn
a!
-khab'ith).
331
What is
meant
by
ummal-khab'ith
here is
that
one who
drinks
alcohol and
becomes intoxicated
might commit other crimes simply
because he had lost
his
mind and control of
his
action.
If khanr
whose effect
is less harmful
compared
to
drugs, is
considered as umm al-khab
ith
and consequently
is
prohibited,
drugs,
therefore,
should
be
treated the
same way and even more seriously
because
of
their
more serious effects.
According
to
al-Shafi'i, a small amount of any substance which can cause
intoxication
in
a
large
amount,
it is harm (forbidden)
332
Based
on
this opinion, taking
drugs in
whatever amount will
be
treated
in
the same way as
drinking
alcohol.
If
the
khanr is
forbidden
even
in
a small amount,
drugs
should
be
given an even
higher
priority
in
terms
of prohibition since
their
potential
harm is
greater
than
alcohol.
It is important
to
note
that,
although
the
majority of scholars,
be
they
Muslims
or non-
Muslims,
agree that alcohol can cause
harm
to those who
the
drink it. Its
effect
is
not
as serious as
drugs
whose effects can
be
sudden and
fatal. Alcohol is
available and
legal in
almost all countries
in
the
world.
Although
alcohol
is
considered
'acceptable'
drugs by
most of
the western countries,
it does
not mean that the
drinking
of
it is
justifiable. It is
noteworthy,
that
because
of
the negative effects of alcohol, many
people are against
the
use of alcohol.
They demand
their
government to
ban
the use of
330_
Khallaf, Abd Al Wahhb.. Al SiydsaAl Shar`
yya,
Dar Al Ansr, Cairo, 1977,54.
331_
See Musnad IrramAhmi4
voL
2,
p.
419.
332-Al.
Un-M
vol.
6,
p.
144.
209
alcohol
in
their
country.
333
This
point strengthens the
rationale of prohibition of
drugs
inShari`a law.
5.4.4. The Distinction between Drugs
and
Khamr (alcohol)
There is
no great
distinction between drugs
and alcohol concerning the
dangerous
effects
they
can cause on users.
The distinction however lies in
certain aspects such as
the
prohibition of
these two
kinds
of
intoxicating
substances.
The
way the
prohibition
of the use of
drugs is
carried out
is
not
the
same as
the
way the
prohibition of
kharrr is
laid down. Drugs
are used
in
most medication
334
and
the use of
drugs in
this
instance
is lawful
according
to
Shari`a law
simply
because
there
is
no
harm
caused
by
this
kind
of use.
Therefore it
can
be
said
that
drugs in
themselves
are not prohibited.
Their
prohibition
is
related
to
another
factor,
that
is,
the
misuse of
them.
However,
the use of prohibited substances
in
general and
the
use of
khanr in
particular
is harm
according
to the
majority of
the
jurists
even
for
medication.
335
The Prophet
when asked about using
khanr
as a medicine says:
"Alcohol (Khamr) is
not a medicine
(daw) but
rather a
disease
w), "336
333_
Some
organisation
in
the
USA
and specifically
in Arkansas,
the
organisation against the use of
alcohol
is
as old as the
nation
itself. Over
the
decades
the anti-alcohol crusade
has
attracted to
its
standards
literally
millions of
Americans. Their
efforts culminated
in 1920 in
the adoption of an
amendment to the
Federal Constitution
which
banned
the manufacture, sale and
importation
of all
intoxicating liquor. See Badar, Robert, Smith., Prohibition in Arkansas, University Press
of
Arkansas, 1986,
p. xi.
334_
Drugs
such as
heroin
are considered as the
best
thing
in
the world
for
a
bad
cough and
it is
available
through prescription.
See Judos, Hoarse, Freeland., Heroin
addiction
in Britain, Harcourt Brace
Jovanovich, New York, 1974,
p.
3, Heroin
are also preferred
by
some
doctors
when
treating those
who are
dying
of painful,
incurable disease. See Frank,
op. cit, p.
3, See
also
Leornard,
op. cit, p.
10/1
335
Aj_Figh
a1-Wdvol.
2,
p.
292.
336
See Musnad bramAhm Vol. 4,
p.
15.
210
Some jurists, however,
suggest an exception
in
using
khtinr for
medication
in
necessity
(darra)
provided
that
it is
agreed
to
be
necessary
by
a qualified
Muslim doctor
who
has
a good character and
is
concerned about
his
religion.
337
Some
might argue
that the
use of
drugs
should
be
allowed
for
the same reason
i.
e.
necessity
(dan
ra).
Nevertheless, in
considering
the
use of medication, which may
be
mixed with
drugs
as an
important ingredient, it
can
be
said that the
use of
drugs in
this
instance is
not
in darrabecause
there are other alternatives that
can
be
taken and give
the
same effect such as
traditional medicine
in
which no
drugs
are used.
However,
people use all
kinds
of medicine
that
is
available
through
prescription or
from
the
chemist to
relieve
their
pain
for
example, without any restriction and none of
the
jurists
prohibit
this type
of use.
Drugs
and alcohol share
the
same criteria
in
their
ingredients. Both
alcohol and normal
drugs
such as opium, marijuana, mescaline and psilocybine are all
herbal drugs.
338
Khanr (alcohol) is
normally made
from
grape
juice
which
is ha i. It is
only
prohibited when
it become intoxicated. Once
the substance
becomes intoxicating, it is
Karam
to
drink it. However, in drugs
the
end of
the
hukm is
still
hd!
even
though the
processing of certain
kind
of
flowers
such as
the
poppy was carried and
the
substance
called
drugs. The
use of
it is
still
lawful
as
long
as
the substance
is
not misused.
***
Drugs
are clean
(thirah)
and not
filthy (najs)
although
the
misuse of
it is harant 339
Therefore,
a
Muslim is
allowed to use a medicine
that
is
mixed with a
drugs in
a
prayer.
The
position of
khanr is however
controversial.
According
to the
majority of
jurists, khanr is filthy (n is).
340
Their
opinion
is based
on
the verse of
Qur'an
that
was quoted previously.
They interpret
the
word
'rijs' in
the
verse as
'najs'
and
therefore
337_
AI. Figh
at
, 4b,
vol.
2,
p.
293.
338
Mees, Drugs
and
Danger for Hurrah Evolution, Regency Press, London, 1973,
p.
9.
339
Fiqh Al-Sunnah,
vol.
1.
p.
29.
340
Ibid.
211
consider that
alcohol
is
najs.
Some
other
jurists however,
say
that the
filthiness
of
khan in
the verse
is
psychological
(ma`nawi)
and not physical
(hissi). This
difference
occurred simply
because
the
mufassirin
(commentators
of
Qur'an)
gave
different interpretations
of
the word
'rijs'. According
to
Ibn Abbas,
rijs
in
the
verse
means
discontent (sukht). Sa'id bin Jubair however
says the
meaning of rijs
is ithm
(sins)
while
Ziyd bin Aslam interprets 'rijs'
as wickedness
(spar).
341
Syed Qutb
seems
to
agree with
this
interpretation
when
he
says
"that
all acts
that
are
described in
the
verse
including
alcohol, and games of chance and
idols
and
divining
arrows are all
disgraceful (danisa)
acts which
do
not meet the criteria of goodness
(tayyibt)
which
are permitted
by God. "
342
Through
analysis of
this
discussion,
the
opinion of
the
jurists
who consider
that
khanr is
najs ma'nawi
is
preferable
because
when we observe
the
verse concerning
the
prohibition of
khanr,
the
Qur'an
not only prescribed
the
ruling
for khanr but
also other acts such as gambling and worshipping
idols. If
we
agree with
the
opinion of
the
jurists
who say
that the word rijs means najs,
this
meaning
is inapplicable for
other offences
i.
e. gambling and worshipping
idols. Therefore, it
can
be
said that the
meaning of rijs
in
this case
is
considered as najs manawi rather
than
hissi.
The
effects of
these two
kinds
of
drugs
are enormous.
Both have been
proved
by
experts
to
be dangerous
to
human beings,
physically and mentally.
According
to
Leech
who names alcohol as a
'respectable' drugs
alcohol can
have
very serious effects when
taken
in
excessive quantities.
The
alcoholic suffers
from
malnutrition,
liver disease
and
inflammation
of the
stomach.
He
may also go
through the
mental
inflammation
of the
effects of
loss
of memory,
decline is
produced
in intelligence
and
he
may suffer
hallucinations.
343
Alcohol in large doses
can
lead
to
disintegration
of cerebral
functions
unsteadiness, slurred speech and
then coma.
344
Each
year
25,000
people
die
341_
See Ibn Kathir, Tafsirlbn Kathir, Dar
at
Qur'n, Beirut, 198 1.,
vol.
1,
pp.
544
-
45.
342
Quth, Syed.,
op. cit, vol.
2,
p.
975.
343
Leech,
op. cit, p.
24.
344
Frank,
op. cit, p.
70.
212
as a result of alcohol abuse.
35
million
is
spent each
day
on alcohol and the
cost to the
country as a whole each year
is
estimated
to
be 1,680
million
in
sickness, absence
from
work,
hospital
treatment, unemployment and premature
death. One
third
of
drivers involved in
road accidents are over
the
legal limit
and the
half
of those
convicted of murder
kill
while
drunk, 30 %
of
deaths from five
and one
third
of
domestic
accidents
involve
alcohol consumption.
From
the
above
information,
there
is
no
doubt
that
alcohol
has
tremendous effects on
the
drinker. However,
the
misuse of
drugs has
still more
harmful
effects
than the
so called
'respectable' drugs i.
e. alcohol.
5.4.5. The Punishment for Taking Drugs
As
previously emphasised,
the
issue
of
drugs had
never
been discussed by
the
classical
scholars.
This is
the reason
that there
is
no specific punishment prescribed
for
taking
drugs. However, based
on analogy
(giys)
and what
has been
agreed
by
the
majority of
scholars, any substance
that
has
the same element
in khan
r
(alcohol) i.
e.
intoxication,
can
be
treated
as
khanr. Therefore, it is
suggested that the
punishment
for
taking
drugs
should
be
similar to
drinking
alcohol.
As
there
is
consensus among
jurists
that those
who are guilty of
drinking khamr
must
be
punished
by hadd
punishment,
those who take
drugs
should
be
punished with the
same
punishment as
for drinking
alcohol.
However
the
jurists do
not agree on the
number of
lashes
that
should
be inflicted
on the offender.
According
to
Mlikis,
345
Hanbalis
and
Hanafis,
one
found
guilty of
drinking
alcohol
is
punishable with
80 lashes.
346
Al-
Shfi'is however
considered that the offender should
have 40 lashes.
347
Ibn Hazm
seems to
agree with the
view of
Al-Shfi'i in
this
matter.
348
However, it is
arguable
why the
jurists differ
about
the
number of stripes
that should
be inflicted for
the
offence
345_
AI Mudawwana
,
vol.
4,
p.
410.
346
Al-Mughni,
vol.
10,
p.
329.
347
Al. Muhalla,
vol.
12,
pp.
366
-
67.
348_
Ibid.
213
of
drinking
alcohol.
If drinking
alcohol
is
to
incur hach
the
punishment should not
be
altered or added to as
it is
a
fixed
penalty and
it is
considered as
the
right of
Allah.
It
can
be
said
that the
difference
of opinion
between
the
jurists
arises mainly
because
the
Qur'an
does
not specifically prescribe
the punishment
for drinking
alcohol.
What is
clearly mentioned
in
the
verse,
is
the
prohibition of alcohol.
The
specification of the
punishment
is
made aW
dz
which states
that:
"A
man was
brought
to the
Prophet for drinking
alcohol; the
Prophet
asked
his
companions
to
flog him"
349
The Prophet
pbuh
in
this
W dz did
not mention
the
number of stripes that
should
be
inflicted
on
the
drinker. However, in
another
hadith, Anas bin Mdlik
reported
that,
"A
person who was
found
guilty of
drinking
alcohol, was
brought
to the
Prophet for
a
judgement. The Prophet
gives
him forty
stripes with two
lashes. Abu Bakr
also
did
that,
but
when
Omar (assumed
the
responsibility) of the
Caliphate, he
consulted people and
Abdul Rahmra
said:
The
mildest punishment
(for drinking) is
eighty stripes and
Omar
then
prescribed
this punishment.
"
350
From
this
has
th
it
can
be
said
that the
punishment
for drinking
alcohol was not
decided
by
the
Qur'an but
the
Sunna. The Sunna however
only
described forty
stripes as
is
made clear
in
the
hadith.
351
According
to the majority of
jurists,
the
specification
of
extra punishment totalling
eighty stripes,
for
the
drinker
was
decided by 'Umar
352
and
endorsed
by
the
jurists
as
ijmti'. As ijm' is
considered a source of
Shari`a law, it
may
be
accepted as an evidence
(hujja) in
this matter.
However,
the
acceptance of
ijm` in
this
case
is
conditional
because
the
hadi h has dearly
prescribed the
punishment
for
this
349_
See $ahih Al-Bukhri,
vol.
8,
p.
568.
350
$aNh Muslim, Lahore,
op. cit. p.
923.
351
See $ahih Al-Bukhri,
vol.
7,
p.
6
352
Ibid,
vol.
8,
p.
570.
214
offence.
Accepting
the
ijm'
means rejecting or abrogating the
hac,
th
and
this
is
unacceptable as
ijnO'
can not abrogate
the
hadith. In
this
case
the
opinion of
Al-Shfi'i
who states
that the
extra
forty
stripes
is
considered as
ta`zir,
may
be
acceptable
because
ta'zir
can
be inflicted
as an additional punishment.
353
As
a conclusion
it
can
be
said
that the
punishment
for drinking
alcohol
has
gone
through
a process of
three
stages;
the prohibition
by
the
Qur'n,
the
basic
punishment
i.
e.
forty
stripes
by
the
hadith
and
the
final
stage
for
the
punishment of
drinking
alcohol
i.
e. an
extra
forty
stripes was agreed upon
the
Prophet's
companions
(Sahba)
or
ijm`.
However, it
appears
that
40 lashes is
more acceptable
because it has been
practised
by
the
Prophet himself. The
extra
40 lashes
may
be
considered as
ta'zir (discretionary
punishment) where
the
Qdi has
the
right
to
do
so
if
necessary.
There is
a clear
precedent
from 'Umar
who
increased
the
punishment
for drinking
alcohol
from 40
lashes
to
80 lashes.
354
Concerning
this
matter
Al-D r
al-Qutni states
that:
"'Umar flogged
the
offender of alcohol
(khanr)
with
40 lashes. When he
found
that the
punishment
did
not prevent
them
drinking, he
made
it 60
lashes, but
that
did
not stop
drinking,
then
he
made
it 80 lashes
and
he
said'
"this is
the minimum of
hadd.
355
From
the
practice of
'Umar, it is
clearly shown
that there
is
a valid reason why the
punishment
for drinking
alcohol
is increased. Obviously,
the
punishment
is increased
because
the
hadd
punishment
that was prescribed
by
the
Prophet,
that
is 40
stripes,
did
not prevent people
from
committing
this crime.
On
this
basis, 'Umar had increased
the
353
See'Auda,
op. cit, vol.
1,
p.
685.
354
Al_Qarowi justifies
the act of
'Umar by
saying
that the objective of punishment
is
to
deter
people
from
committing crime.
If
this punishment
is
not sufficient to achieve this objective,
the
Imam has
the right to
increase it. See Al-Qardwi. Ysuf, Madkhal,
p.
82,
355-
See
the margin of
Sunan
a!
-dar
Quo!. Dar
al-Mahsin
! il Tib'a, Cairo, 1966,
vol.
3-
p.
166.
215
punishment up to
80 lashes.
356
All Ibn Abi Taub
when consulted
by 'Umar
concerning
the
punishment
for drinking
alcohol said:
"We
think that
you
flog hire
with eighty
lashes. Because
when
he drinks,
he becomes intoxicated,
and when
he becomes intoxicated, he
talks
confusedly, and when
he
talks confusedly
he lies. " (eighty lashes is
the
same amount as
for
slandering)
"'Umar
gave eighty
lashes for drinking
alcohol.
"357
By
referring
to the
hadith,
as well as
the
opinion of
the
scholars regarding
drinking
alcohol,
it is
suggested that the same punishment should
be inflicted
on those
who take
drugs. The basic
punishment as prescribed
in
the
hadith is 40 lashes for
the
drinker
of
alcohol and
the
same punishment
is
applied
for
the taking
of
drugs. Anyone
one who
is
found
guilty of misusing
drugs
regardless of
the
reasons
358
for
taking the
substance
is
liable for hadd
punishment.
5.4.6. Are Smuggling
and
Drug Trafficking Considered
as
Hirba?
Before
we conclude whether smuggling and trafficking
drugs
can
be
considered as
hirirba,
we should
first
observe what are
the
important
elements of
hirba.
As
previously emphasised, there are
two
important
elements
in hirba;
the
act of
terrorising
people
for
robbery or other purposes and
the act of causing
destruction. By
looking
at
the
crimes of smuggling and
trafficking
drugs,
the
first
element of
hirba
that
is
the
act of
terrorising
people, cannot
be
applied
to this
crime.
It is
clear that
smuggling and
trafficking
require no violence or aggression.
If
these
crimes
involved
violence and aggression,
they
would
be dealt
with
in
a
different
manner.
356
See Musnad ImrmAhnv4
vol.
2,
p.
426.
357
Muwatta' (translation)
p.
401.
358
Among
other reasons why
drugs
or wine are taken
is
not only to
release
from
the strain of
daily life
but
also a possible
furthering
of the are
living
capacity.
See Mees,
op. cit, p.
10.
216
What
this
discussion
are concerned with are the
acts of smuggling and
trafficking
without any
involvement
of violence and aggression.
However, if
we
look
at
the second element
i.
e.
the
act of causing
destruction (asd) it
is
clear that
smuggling and
trafficking
drugs fall into
this
category.
Undoubtedly,
the
misuse of
drugs
cause very serious problems
in
society.
As it is
clear
that
drugs
are
normally obtained
through these two methods
i.
e. smuggling and
trafficking,
it
can
be
said that
drugs
smugglers and
drugs
traffickers are
the
actual culprits who spread
mischief and cause
destruction (fasd) in
society.
The
effect of
drugs is
so
immense
and
in
certain cases
is far
more
damaging
than robbery
that
is
already categorised as
hirba.
One kilogram
of pure
heroin for instance
can cause
the
death
of approximately
30,000
people.
359
Therefore, bearing in
mind
the
destruction
caused
by
smuggling and
trafficking drugs,
there
is
no
doubt
that these
kinds
of crimes should
be
categorised as
crimes of
hirba
even
though the acts
themselves
do
not
involve
any aggression or
violence.
Furthermore, if
we can accept
that the act of
terrorising people and robbery without
involving
homicide
should
be
considered as
hirFba,
there
is
no valid reason
to
preclude
the
crimes of smuggling and
trafficking
drugs
as crimes of
hirha. This is
simply
because
the
effects of
terrorising and robbery cause
less harm
to the people physically
and psychologically
if
compared with
the effects caused
by
trafficking and smuggling
drugs. Some
might argue
that the
acts of
trafficking and smuggling
in
themselves
do
not cause any
destruction
or
harm
to
anybody.
The destruction
and
damage
occurs only
when people misuse
these
substances.
Therefore,
the traffickers and
the smugglers
should not
be held
responsible
for
this
destruction because
people
have
a choice not
to
buy
or
to
misuse
the
drugs. However, if
we
look
closely
to this argument,
it
can
be
said
that the traffickers
and smugglers are
in fact
are responsible
for
causing
the
destruction
of people
indirectly. As drugs
cannot
be
obtained except
through
the
black
market,
359_
See Aslie, Mohd. Reduan, Jenayah di Malaysia,
p.
213.
217
those
who are responsible
for
supplying these
drugs
are smugglers and
traffickers.
Thus, it
can
be
said
that those
who smuggle and traffic
drugs have
violated
firstly,
the
law
that
prohibits
these
substances
being
sold
to the
public and secondly,
by
smuggling
and
trafficking
drugs,
these
criminals
have
caused
destruction in
society.
Because
of
the
destructive
effect
the
smugglers and
traffickers
cause to society, their
activities
should
be
stopped.
One
way
to
stop
their
activities
is by inflicting
a
harsh
punishment
on
them
by including
these
acts
in
the
crime of
hirba. Hence,
those
who are
found
guilty of smuggling and trafficking
drugs
whether
through testimony,
confession and
other acceptable evidence would
be
considered as nvhribin and would
be
punished
under add of
hirba.
However,
some
jurists
consider
that the
sin of selling alcohol
is
equivalent to the
selling
of
drugs because
these two
substances are prohibited
in
the
Sluri`a law.
360
There is
no
doubt
that the
drinking,
selling or giving
khanr
as a present
is
clearly prohibited
in
the
Shari`a law.
361
The
same rule
is
also applicable
for
selling and
taking
drugs by
giyis.
This
prohibition
is
clearly stated
in
a
hadith. It
was reported
that
a man gave
to
the
Prophet
a small water-skip of alcohol.
The Prophet
asked
him, "Don't
you
know
that
Allah has
made
it forbidden (harm)? He
said
,
"No. "Then
a man
beside him
whispered to
him
asking
him
to
sell
it. The Prophet
said:
"The
one who made
drinking
forbidden (harm) has
made selling
it harm.
362
However, by
taking this
view,
it
can
be
presumed that
selling alcohol and selling
drugs
will
be
punished
in
the
same way
because both
are equivalent
in
terms of sins.
Nevertheless, if
we
look
at
the
effect of
drugs
on
the
users,
it is
clear that this opinion
is
unacceptable simply
because
alcohol
and
drugs
although sharing the
same criteria
in
certain respects,
drugs
cause more
destruction
that
alcohol and those
involved in
these
offences should
be dealt
with
differently.
360
-
See Isms
iil,
Muhammad. Bakr,
al
Fiqh
al-Wdih,
Dar
al-Manr,
Cairo,
vol.
2,
p.
296.
361
See Al-Qardwi, Ynsuf. Madkhal,
p.
95.
362_
Muwatta',
p.
402.
218
The
amount of
drugs involved in
smuggling and trafficking, should also
be
taken
into
account
in determining
this
crime.
The Qdi
must seek
help from
experts
in
this
mauer to
evaluate the
harm
and
destruction
that
can
be
caused
by
certain amounts of
drugs
on the
users.
If
the amount of
drugs
can cause
death
to the consumers,
in
this
case the
death
penalty may
be
applicable as one of the
punishment
for hirba. It is
also
necessary
for
the
Q4'i
to get
help from
expert to
determine
what amount of
drugs
should
be involved
to counted as
trafficking.
363
This
step
is
necessary to
differentiate
between
possession
for
one's own consumption and possession
for
supply.
It is
noteworthy, that the
punishment
for
smuggling and
trafficking
is based
on the
harm
caused to the
consumers.
The
more
harm
caused
by
these
acts, the
more severe
punishment
will
be.
Some
countries
consider smuggling and
trafficking
drugs
very serious crime.
Saudi
Arabia
is
presumed to
have implemented
the
law
of
lzirba for
the
smugglers of
drugs.
Recently,
eight
foreigners
who were
found
guilty of
drugs
smuggling were
beheaded.
364
Malaysia
is
an
other
of the countries
that
has implemented
a mandatory
death
penalty
for
the
offence of smuggling and
trafficking
drugs
which seems
to
be in line
with the
law
of
hirba
under
the
Sluar~a law.
363
-
According
to
Malaysia Penal Code.
the possession of
15
gram of
heroin
is
accounted
as trafficking
and the
offender
is liable for
manduay
death
penalty.
364"
be 1tcn1d juesdry.
Apnl 18.1995.
219
S. S. Summary
If
we
look
at
four
crimes that
have been
categorised
in
this
chapter as
the
crimes of
hir ba, it is
clear that there
is
no other crimes that
have
the
same or more serious effect
than these
aim es.
Drug
trafficking is
the
most serious crime
in
terms
of
the
number of victims that
are
affected
by
this
crime.
The
effects of
drugs
are tremendously
dangerous
and
in
many
cases
lead
to the
death
of the victims.
Drugs does
not only affect the victims physically
but
the
most
important
part of
human-beings i.
e. mental.
Drugs dependant leads
some
addicts to
committing
other crime to
feed
this
habit.
Terrorism
is
no
doubt
a serious crime that claim many
innocent lives
and
their
property.
Terrorist
aas creates
fest in
society
because
this
kind
of attack
is
normally
unpredictable. Armed
robbery might
be
categorised as
the third
serious crime.
The
effect
of this
crime not only on
the property
but it
may
lead
to
killing
and even rape
in
certain
cases.
This
crimes make people
feel
unsafe and unsecured even
if
they
are at
their
own
house.
Rape
makes the
victim and the whole
family
and surrounding are
feel
threatened.
The
crime,
cause a trauma to the victim and make
her
suffering
in
a
long
period of time
if
not the
whole
life. In
many cases, rape victims are also
being killed by
the
attacker as a
way
of escaping
from being
recognised
by
the victims.
It
is
clear
according to
Sh
ri~a
law.
that the
harshness
and
the severity of
the
Punishment
prescribed
for
those crimes reflected
the seriousness of
these crimes.
No
"her
crime
which
fall
under the
harsh
punishment except
those who are categorised as
hiba.
These
crimes are the
most
tarifying crimes ever
imagined in human life.
220
The
severity of punishment
in
this
category such as robbery,
terrorism, rape and
drug
trafficking
are
justifiable
with the
weight and
the
seriousness of
the crime.
As
a punishment
in
the
Islamic law is
prescribed with the
consideration of
the effect of
a crime,
it is
acceptable
therefore that the
more serious the
effect,
the more severe
punishment will
be. According
to
Sharaf
al-Din,
hirba is
also
known
as sariqa
kubra
(great
theft)
for
the
effect
it
causes
to the
victim and to the
society as the whole.
The
greatness of the effect make
the punishment more severe than
any other crime.
Even
though the
crimes mentioned above may not
involved
with the
crime of theft
it
reflects
the
rationale of
the
severity of punishment of
hirba.
In
the
Islamic law, four
punishments are prescribed
for
this
kind
of crimes
i.
e.
death
penalty, crucifixion, amputation and exile.
The Qadi has
the
authority to
apply any of
those
according
to the
degree
of crime.
If
the
deterrence is
one of
the
objective of
punishment,
it is doubtful
that the
lenient
punishment could not serve as
deterrence.
The imprisonment
will not effective enough
to
deter
them
from
committing other crime
after
being
released
from jail.
If
the
crime of
terrorism
can
be
taken as an example,
there
is
no acceptable punishment
which suit terrorism
which may not only
involve in killing innocent
people
but
also
rape,
hijacking
and other crimes other
than
death
penalty
together
with crucifixion
for
the
crime committed.
It is
unacceptable and unpracticable according
to the
Shari'a
law
that those
who
killed
people and cause
the relatives
to
suffer
throughout their
live
to
have imprisonment
even
for life. This
simply
because
the punishment
is
seen as
inadequate
to the crime and at
the
same
time
it is
not comply with
the weight of
the
punishment with
the crime.
The
punishment should
be
given
to the offender as accurate
as possible
for
the
proportion of crime
he
or she committed.
Neither
the punishment
should
be
too
oppressive nor
too
soft
in
comparison with
the crime.
If
this can
be
done,
then
justice
will
be
established.
221
Chapter Six
Conclusion
and
Suggestions
It is irrefutable
that crime
is
among
the
most serious problems
that
have been
present
in
society
for
a
long
period of
time, although
it is
only committed
by
a minority of people.
This
phenomenon requires us
to think of an affective solution
for
this
problem.
There is
no
doubt
that
people vary
in
approach
in dealing
with
this
matter.
Some
people are of
the
opinion
that criminal
behaviour is inherited from
the parents
biologically,
and
they
therefore take the
scientific approach which
is
to
remove a certain part of the
brain
believed
to
have
some
degree
of power
to
motivate
individuals
to
commit crime.
Psychological
method such as counselling
is
also used.
Rehabilitation,
and
drugs in
certain cases, are also among other methods used to
solve
this
problem.
However, Shari`a law
approaches
this
problem rather
differently. According
to
Shari`a
law,
the
lack
of religious and moral education
is
among
the
key factors
that
lead
people
to
commit crimes.
Therefore, Shari`a law
encourages
Muslims
to
be
greatly concerned
with this
matter.
Religious
and moral education
is believed
to
be
one of
the
effective
methods of making some people,
if
not all, aware about right and wrong.
A
sense of
responsibility and accountability can also
be
achieved
through religious education.
These
elements are
important in
combating problems of crime
because it
appears
that
law
and
enforcement alone would not
function
effectively
if
no spiritual
inspiration
was
involved.
As
religion and moral education may not
be
effective
in
preventing some people
from
committing crime,
there
should
be
an alternative
for
this
method.
Punishment
might
be
an alternative solution
for
people who cannot
be
prevented
from
committing crime.
Punishment in
this
case only serve as another method
to
solve the problems of crimes.
The infliction
of punishment
is
not the actual aim of
Shari `a law, but it forms
part of
the
aim of protecting society
from
evil
deeds.
222
Deterrence is
one of
the
objectives of punishment
in Shari`a law. Individual deterrence
may
be
achieved when an offender
is
punished
for his
crime.
Punishments
may also
provide an effective
deterrence for
other people.
According
to
Shari`a law, it is believed
that the
more severe
the
punishments the more effective
deterrence
will
be. Therefore, it
is
not surprising that
Shari`a law
prescribes
harsh
punishment
for
crimes especially
for
hudd
offences.
Rehabilitation is
another objective of punishment
in Shari`a law. The
criminals are
always given the
opportunity
to
rehabilitate themselves
and consequently avoid
the
due
punishment
by
repentance
(tauba). If
the
criminals repent their
crimes,
they
are
deemed
to
have
rehabilitated
themselves
and therefore
are exempt
from
punishments as
punishments are no
longer
necessary.
Punishment
also
delivers justice
to the
victims of crimes and their
families. It
prevents
blood feuds, between
conflicting parties
(especially
in
case of
homicide),
and
consequently the
blood
of
innocent
people
is
not shed unnecessarily.
There is
also
justice
for
criminals.
Shari`a law
prohibits
the
use of torture
or treating
the
accused persons
inhumanely
even after
he has been
convicted of a crime.
The
criminal will
be
punished
to
a
degree
proportionate to the
seriousness of
his
crime.
He
also
has
the
right to
retract
his
confession
for
a crime and thus avoid punishment.
There
are various
kinds
of punishments prescribed
for
various crimes under
Shari`a
law.
These
punishments are: execution, amputation, crucifixion, stoning,
flogging
and exiles.
Since justice is
the
most
important
criterion of
Shari `a law,
these
punishments
will not
be
carried out unless all requirements are present.
Certainty is
one of
the
important
elements
required
in
evidence
in
order
that
justice be done. A
person
is
considered
innocent
unless
proven guilty of a crime with certainty.
To
guarantee certainty,
Shari`a law imposes
several rules relating
to
evidence.
Two
male witnesses are required
in hudd
offences,
223
except
in
case of zina which requires
four
witnesses.
As for
the testimony of women,
the
majority of
jurists hold
that their testimony
is
not acceptable
in
all
hudd
cases.
The
preferable view
is
that the testimony
of women should
be
accepted
in
some
hudd
cases,
such as
hirba, if
no male witnesses are available.
The
witnesses must
be
of good character
(`ado. This
condition
is important
to ensure
the
authenticity of the testimony given
by
the
witnesses.
The
testimony
of
those
known
as
fsiq (sinner)
cannot
be
accepted.
Their
evidence
(other
than testimony)
can only
be
taken
into
account
if it is
proved
to
be
true.
Most
of the
jurists
agree
that
in hudd
cases only two
methods of
inflicting hadd
punishment on
the
offender are acceptable;
testimony
and confession.
The
obvious
reason
behind
this
opinion
is
that other evidences
(such
as circumstantial
evidence)
according to the
jurists do
not reach
the
level
of certainty
required
in hudd.
Nonetheless, if
certainty
is
the
point of rejection of other evidences, evidences such as
the
crime
being
captured
by
a video camera,
finger
prints and
DNA
tests,
should they
be
accepted
if
they
are proved
to
be
certain
by
experts?
It is
suggested that those
who are
proved to
be
guilty
by
these
methods can
be inflicted
with
hadd
punishment
for
their
crimes.
Experts
evaluation
in
this case are of vital
importance
to
ascertain the
authenticity
of all available evidences.
If
there
is
any
doubt
as
to the authenticity of
these
evidences,
the
hadd
punishment must
be
avoided.
The
concept of
justice
of
Shari`a law
can also
be
observed
in its
principle of avoiding the
hadd
punishment
in
cases of
doubt (shubha). The Qd4.
must not
impose
any
hadd
punishment
unless
he is
clearly satisfied with
the
evidence.
In
any cases of
doubt in
the
evidence,
hadd
punishment must
be
averted.
If
this
principle
is
carefully adhered to
and
the
accused
is
tried
with afairtrial, then
justice
can
be
achieved.
224
The
crime of
hirba is
the
most serious crime
in Shari`a law. This
seriousness can
be
observed
in
the severity of punishments prescribed
for
this
offence.
There
are
four
categories of punishment
for hirba;
execution, amputation, crucifixion and exile.
Amputation (the
cutting off of
the
hand
and
the
opposite
foot)
and crucifixion are
two
punishments
that
are prescribed exclusively
for
this
crime, while execution and exile are
also applicable
in
other crimes.
There
are
four
crimes
that
can
be
categorised as
hirba. They
are robbery, rape,
terrorism and smuggling and
drugs
trafficking.
The
reasons
that these
crimes should
be
considered as
hirba
are
the
immense destructive
effects
(fasd)
that these
crimes cause
to
society.
This is
the
major element
that
is
clearly stated
in
the
Qur'an. Other
elements
such as
the
use of weapons or
force, if
added
to the
primary element, will make the crime
even worse and will mean
that
it
should
definitely be
considered as
hirba.
There is
a consensus among
the classical
jurists
that
robbery or qutta` a1-tariq
is
one of
the
hinba
crimes.
This
categorisation can
be
observed
in
the
discussion
of
the
jurists
concerning qutta` a1-tariq.
The
consensus of
the
jurists is in line
with
the
hadith
of
the
Prophet
which
described
this
crime as
hirba. The
reason
that this crime
is
considered
hirha is dear;
the
important
element of
hirbba, i.
e.
destruction (fasd), is
present
in
this
crime.
Furthermore,
the
act of robbery
is
not an essential element
in hirmba. However, if
this
element
is
present, this
crime
becomes
more serious and consequently should
be
considered as
hirnba. As for
the
stolen property
in
robbery,
there are necessary elements
which must present.
The
stolen property must
be
valuable, movable, protected
(ma `sum)
and
kept in
safe
keeping. The
nisab
(the
minimum value) of
the property,
however, is
not necessary
in
the
act of robbery.
Robbing
property
is
considered
hirba
even
though
the value of
the
property
is less
than the
required nisab
in
sariga.
225
The
person accused of robbery,
if found
guilty of
this
offence,
is liable for
one or more
punishments which are prescribed
in
the
Qur'an. The Qdi has
the authority
to
inflict
any
appropriate punishment on
the
offender.
The
punishment
for
robbery
may
differ from
one case
to
another.
If
the
act
involves
robbery without
homicide,
the offender
is liable
for
amputation, which
is
the
cutting off of a
hand
and the
opposite
foot.
These
punishments are
justifiable because, if
we
look
at
the
crime of robbery,
there
is
no
doubt
that the
effects of
this crime are very grave.
It is
a ruthless crime
that
leads
people
to
suffer misery
in
their
lives. Robbery
puts people
in
society
in
constant
fear for
their
lives
and property.
This
crime makes people
feel insecure
even
in
their
own
home. The
robbers
do
not only engage
themselves
in
robbing people
but, in
many cases, they
kill
their
helpless
victims.
Because
of
the graveness of
the
effects
it
causes the
victims,
the
jurists
name
this
crime as sariqa
kubra (grave
theft).
As for
crimes other
than
robbery,
the
jurists have different
opinions as to whether or not
they
can
be
considered
hirba. However,
through
a
thorough
analysis of
the
elements of
hirbba, it is
evident
that there
are other crimes such as rape,
terrorism
and smuggling and
trafficking
drugs
that
meet
the same criteria as
hirba. Therefore,
these
crimes should
also
be
considered
hirba.
As for
rape,
the
jurists have different
opinions.
Some
of
them
hold
that
rape cannot
be
considered
himba because
the
crime of
hirba
only concerns property.
The
other groups
of
jurists, however,
assert that
rape should
be
considered
hirbba because, in
their
view,
dignity is
more valuable than
property.
The latter
view
is
preferable
because
rape
severely affects
the
women.
Rape
makes
the victim,
the whole
family
and society
feel
threatened
and
horrified. Rape is
an unforgettable
incident
that causes
trauma to the
victims and makes
their
lives
agony
for
a
long
period of
time, sometimes
for
their whole
life. The
victims of rape are very unfortunate
because in
many cases
they are
killed by
the
attacker.
Another
unfortunate side of rape
for
the
victims
is
that
it
causes very serious
226
depression
and
this
can
lead
to
suicide or running
from home
and, consequently, to
prostitution and
drug
abuse.
Furthermore,
virginity
(especially for Muslim
women)
is
an
important 'asset' because it
is linked
to
dignity. Losing
virginity
in
many cases
is
considered
by
some people as
losing
the
dignity because
they
are considered as
having
sexual
intercourse
out side
marriage,
(although it is
not necessarily so, as women can
lose
their
virginity
through
rough activities e. g. sports) and this will cause serious
depression in
a woman.
However, it
should
be
noted
that
not all rape can
be
categorised as
hirba. Only
rape
that
involves
the
use of
force,
weapons,
drugs
or
deception
can
be
considered
hirba.
Therefore,
sexual
intercourse
with under-age girls with
their
consent, even though
it
can
be
considered as rape
in its
general
terms,
cannot
be
considered
hirba because
the
required elements of rape are not completely present.
In
rape
that
falls
under
the
category of
hirbba
two
witnesses are sufficient
to
prove
this
crime as an exception of
the
general rule which requires
four
witnesses.
This is because
this
crime
is
no
longer
zin
but
rather
hirba. However, in
rape which
does
not
constitutehirbba
four
witnesses are required
because
the
act
in
this
case
is
still regarded
as zin.
The
allegation of rape cannot
be
accepted
to
inflict
punishment on
the
offender
without providing sufficient evidence.
Once
the
crime of rape
is
established, either
by
testimony,
confession or other accepted
methods of evidence, therapist
can
be
executed.
Crucifixion
can also
be inflicted
on
the
offender
if
the
Qdi
sees
it
as a necessary extra punishment.
Through
studying
the
act of
terrorism,
it becomes
clear
that the
graveness of
the
effects of
this
crime on society
is
undeniable.
Killing innocent
people ruthlessly,
including
women
and children
for
whatever reason
is
clearly unacceptable and
is
prohibited
in Shari `a law.
227
The destruction
caused
by
terrorist
attacks
does
not only affect peoples'
lives
and
property,
but it
also affects
the state.
These kinds
of attack may
jeopardise
the
administration of
the country and may cause
instability in
the
state, economically and
politically.
Because
of
the
destructive
effects of
terrorism,
a conclusion can
be drawn
that terrorism
is
a crime of
hirha.
The
acts of violence, such as
killing, destruction
of government
buildings
or public
places, are considered as
terrorism when
they
are carried out
by
an organisation or a
group against a
legitimate
government
in
the
Islamic
state or outside
the
Islamic
state.
Therefore,
a struggle against
illegitimate
governments cannot
be
considered as
terrorism.
However, if
the
killing
of
innocent
people
takes
place,
this
act may
be
considered
hirdba.
The
study makes
it
clear
that terrorism
and
jihad
are
two
different
concepts
that
should
not
be
confused.
Jihad is
a struggle against
the
infidel for
the sake of
Islam
which
abides
by
rules and principles.
Acting
against
these
rules may
lead
this
act
to
constitute
terrorism
rather
than
jihad. Terrorism is
also
different from baghy (rebellion)
which only
occurs at
the
bands
of
Muslim
citizens against
their
government with a
different
interpretation
of
hukm (ta'wil),
whereas
terrorism
could occur either at
the
hands
of
Muslim
citizens or non-Muslim citizens against
the
Islamic
state or non-Islamic state.
Since
terrorism
is
concluded to
be hirba, it is
clear
that
a
terrorist
found
guilty of
this
crime will suffer
luadd
punishment as prescribed
in
the
Qur'dn. The
terrorist
can
be
executed
if his
acts
involve homicide. The Qdi
can
inflict
a crucifixion on a terrorist
if
he
considers
this
necessary.
Those
who are
indirectly involved
with terrorist
acts will
suffer the
same punishment as
the
actual perpetrator.
These
punishments are acceptable
and
justifiable if
they
are weighed against
the
destruction
this
crime causes
to society.
228
By
examining
the
smuggling and trafficking
of
drugs, it is
clear that, unlike other crimes,
this
incorporates
no aggressive or violent elements
in
the
crime
itself. The
crime
in itself
does
not cause any
harm;
the
harm
and
danger
are only present when
drugs
are misused.
Drugs
and alcohol are
two
different
substances even
though they
are similar
in
certain
elements,
i.
e.
intoxication. Therefore,
smuggling and
trafficking
of
drugs
are not
the
same offence as
dealing in
alcohol.
The
study shows
that those
who are
involved in
smuggling and trafficking
drugs
are
the
agents
that
bring danger
and
destruction
to
society.
The danger
of
drugs is
undoubtedly
grave.
Drugs
claim the
highest
number of victims.
Drugs
affect the
users mentally and
physically and
they
can cause
death if
taken
excessively.
Drugs
are proved to
be
one of
the
important factors
that
lead
the
drug
addicts
into
committing other crimes such as rape
and also
theft
and robbery
to
feed
their
habit. Apart from
all
these terrible
effects on
the
users,
the
users are also exposed
to
AIDS
and some of
the
addicts
die
as a result.
In fact,
trafficking
drugs
causes more
harm
than
other
hirba
crimes,
i.
e. robbery, rape and even
terrorism.
Therefore, it
can
be
concluded
that
smuggling and trafficking
drugs is
considered the
most
dangerous
crime and should
be
considered
hirba.
Thus,
those
who are
found
guilty of smuggling and
trafficking
drugs,
can
be
executed
if
this
crime
is
proven
to
have
caused
death. However,
the
Qdi has
the
authority to
inflict
this
punishment even
if
the
crime
does
not cause
death
on
the
basis
that the
destructive
element which
is
an
important
element of
hirba, is
present
in
this crime.
Other
punishments such as crucifixion can also
be
carried out
if
the
QdI
sees
it
as appropriate.
As
previously emphasised,
it is
almost
impossible
to
stop
the
crimes
from happening in
society.
What
can
be done in
confronting the crime
is
to
increase
the
efforts
to
reduce
the
crime rate.
Since
all religions are against crimes, although
they may
differ in
approach,
religious and moral education should
be
of great concern.
Children
should
be
educated
and taught
from
an early stage about the
significance of religion and morality with regard
229
to
crime and according to their
respective religions.
They
must
be
made aware of the
crime and
its
effects on society.
In
order to
reduce
the
crime rate,
it is
suggested that the
attitude of
the
modern
law
which
seems to
be
too
sympathetic towards the
criminals should
be
changed.
The
sympathy
should
be
given to the victims
by bringing
all the
criminals to
justice. Imprisonment is
considered as a
lenient
punishment and clearly not sufficient to
prevent criminals
from
committing crime,
but
rather sometimes encourages other people to
commit
the same
crime.
Imprisonment
creates more criminals than
rehabilitates.
Hence, it is
suggested
that
modern
law
should re-consider other punishments which can
be
more effective
than
the
existing punishment.
The law
concerning the
age of
the
juvenile
offenders
in
certain countries should
be
reviewed.
All juvenile
offender should
be
treated
individually
and not
in
terms
of
their
age, as
the
maturity of children
differs from
one to
another.
If
the
capability of children
to
commit crime
is
proved,
they
should
be detained
and sent to
a rehabilitation centre,
regardless of
their
age, until they
reach
the
age of puberty.
As for
all
Muslims
countries,
Shari`a law is
no
doubt
an
ideal law for
them
and
it
should
be
reintroduced.
The
severity of punishment
is
considered as one
important
element
in
all
punishments, especially
in
serious crimes such as robbery, rape,
terrorism
and
drug
trafficking,
as
it is believed
to
have
an
impact
on some people.
In
countries that
do
not
applyShari`a
law it is
suggested that this
element should
be
adopted an applied on a
trial
basis
to
monitor
its
effectiveness.
The severity
of punishment may not
be
effective unless
it is
carried out
in
the
right way.
It is
suggested
that
all punishments should
be
carried out
in
public as emphasised
by
Muslim jurists,
so
that the
deterrence
effect can
be
achieved.
All
the
mass media such as
television,
radio and magazines must play their
role
to
highlight
this
issue.
230
Crime
and punishments of all categories should
be
made
known
to the
public
in
the
same
way as other offences e. g.
traffic
offences, so
that the
public are aware of
the
consequences of
the
crime.
It is
thus,
suggested,
that this
wide publicity can serve as a
restraining
factor from
criminal activity.
It is
agreed
that
most criminals are opportunists.
They
only commit crime when
there
is
an easy opportunity and
they
feel
safe
to
do
so.
Hence
the
public should
be
made aware
that they
have
a role
to
play
in
preventing crime.
The
modern technology
available could also
help
to
reduce criminal activities.
Installing
video cameras
in dangerous
area such as
in
town
centres
is
considered
important
to
detect
criminal activities.
The
presence of
this technology
has
a great
impact
on
the
potential
criminal
in
terms
of preventing
him from
carrying out
this
evil
intention,
as aware that
committing crime
in
the
presence of a video camera or surveillance means exposing
himself
to
easy conviction, and
this certainly will
be
avoided.
The
criminologists seem
to
agree
that
poverty, environment,
homelessness, joblessness
and
lack
of religious and moral education are among
the
significant
ingredients
that
lead
people
into becoming
criminals.
The
efforts
in finding
solutions
for
these
problems
therefore
should
be increased. The
authorities concerned with this
phenomenon should
strive as
hard
as possible to
improve
the
living
standards of people, provide a more
healthy
atmosphere, produce more employment, provide more
low
cost
housing
and
promote awareness
in
the
society of
the
importance
of moral and religious education.
All
these
actions,
if
conducted efficiently, would
improve
the
standard of
living
of
the
society
and at
the
same time
provide a
kind
of solution
for
the
problems of crime.
231
Glossary
A
'Adla
:
Rectitude,
person who
has `adla
speaks
the truth,
avoids sin and
is
dependable.
`Adl: Upright,
good character.
AN
al-Kitb :
People
of
the
book.
Al&. Instrument.
`Aqd Al-Dhin
7w:
Protection
agreement.
`Aql
:
Mind.
`Agil
:
Sane,
rational.
`Agida
:
Faith.
Asbfi
alNuzl :
Cause
of revelation.
Ask Original.
'Aura
:
Parts
of
the
body
of
the
men and women which should not
be
exposed
in
public.
`Ann
:
General.
'Agil: Sane.
'Agila: Heirs Of The Murderer.
Ah! AI-MadiI2a. People Of Madina.
AN AI-Misr
:
People
of
Egypt.
Allah: God.
Al- `Azar
:
Determination.
Al- Nafi
:
Exile.
Al-`IsnrAl-Mu'abbada
:
Permanently
protected.
Al AkhbrAl-Qtl: True information.
Al-Bayn: Clarification.
AI N im" Sleeper.
Al-Qada4Wa Al-Qadr: Cause
and effect.
232
Al-Ruj'
:
Withdrawal.
Al-TaubaAl-Nasha: Sincere
repentance.
Al-hal
:
Assumption
of continuance.
Asbb Al-Nuzl: Cause
of revelation.
Asliha. Weapons.
Ahkm (sing. hukm): Rulings
B
Baghy
:
Rebellion;
an uprising against a
legitimate leader.
Bghi: Rebel.
Bayyina
:A clear proof and
indisputable
evidence.
Bulgh: The
age of puberty.
Bun& Bank.
Big hi
:
Rebel.
D
Dr
a!
-
Islnv Islamic
state or
lands
under
Muslim
rule.
Dr
al-Hart:
Non- Islamic
state or
lands
not under
Muslim
rule.
Da`wa
:
Allegation.
Dhimmi: Non-Muslims
people who afforded security of
life
and property under the
Islamic
authority on payment of
jirya (poll
tax).
Diya
:
Blood Money,
compensation.
Dubr: Posterior.
233
F
Fsiq: Sinful.
Far': Branch
of ruling
(hukm).
Fasd: Destruction.
Faw id.
"
Interest.
Fi'l:
physical actions of
the
Prophet.
Fiqh: Understanding
of
Shari `a
the
system of
jurisprudence.
G
Ghair Mangill: Immovable
properties.
Ghair Manql: Movable.
Gharma
:
Fine.
Ghasb: Force.
H
Haq All h: The
right of
A Uh.
Hijr: Separation.
Hijra: Migration.
Ilirba: Armed Robbery.
Hadd (pl. Hudd): Boundaries, fixed
punishments, offences prescribed
by God
and
punishable
by
penalties set
forth in
the
Qur'.
n.
Habs: Imprisonment.
Hadiith
:
Tradition
or report of a saying or action of
the
Prophet Muhammad.
Raid: Menstruation.
Hajj
:
Pilgrimage
to
Mecca
undertaken
by
the
faithful,
according
to
prescribed rituals.
Hall: Permissible
under
Shari `a law.
234
IlagAl-'. Allami:
the right of man.
HagAllh: The
right of
Allah.
Haq: Just
cause.
Harbi
:
The
citizen of non-Muslim state.
Hasan: Agreeable.
Hirz
:
Safe Keeping.
Hirba
:
Armed Robbery.
Hukm
:
Ruling.
Hurr
:
Free.
Hraba: To fight.
I
`Ibdt Religious Worship.
`Ifa
:
Decency.
`lila
:
Reason.
Irryin: Belief.
Ijm'
:
Consensus.
Ijtihd.
"
Personal
reasoning.
Ikhbr: Notification.
Ikrh: Coercion.
Irmdk: Avoid.
I, r
m
Leader.
Igrar: Confession.
Istigl fr: Asking for forgiveness.
Istigma
:
Consistency.
Im
:
Belief.
235
J
Jald
:
Flogging.
Jarinz
:
Crime.
farm
rrn
Al Jarah-Wa Al darb A! Khata': Unintentionally
causing
bodily harm
offences
other
than
homicide.
Jarima: Crime.
JarimatAl-Nahb: A
crime of robbery.
Jihad
:
The holy
war.
Jurrmhr: Majority.
K
Krah: All
together.
Ka,
ara :
Expiation.
Kaf'a
:
Equality between
man and woman
in
marriage.
Khab'ith (sing. Khabitha): Sins.
Khata': Mistake.
Khamr: Alcohol.
Khinah: Treachery.
Khufya: Secret.
Khuss Al-Sabah
:
Specific
cause.
Ki&nirn: Conceal.
Kitba
:
Writing.
Kizb: Lying.
Kufr: Non-believers.
M
Ma`snz Protected.
Malaka
:
Internal
capability.
236
Manql: Movable.
Matqmv Valuable.
Mahrinv Close
relative.
Maslaha
:
Interest,
welfare.
MaslahaA1-'&w: General interest.
Mu`tadin: Oppressor.
Mufassaiw Detail.
Mughlaba: Force.
Mujnnl: Brief.
Mujtahid: Religious
scholars who can make
individual interpretations
to
determine
points of
law.
Mukallc
:
Responsible.
Murtadd (pl. Murtaddin): Apostate.
Mushrikin (sing. Mushrik)
:
Non- believers.
Mushhada (A Synonym Of Mu`i7yana)
:
Witnessing.
Muslinu
:A
Muslim
woman.
Musta'min
: the
citizen of non-Muslims states who
is
given protection
by
an agreement
by
the
Islamic
state.
Muttahanr Suspect
of a crime.
Muharram- Prohibited.
Muhirrib (pl. Muhribin): The
one who
fights,
the
offender of
hirba.
N
Nafi: Exile.
Nahb: A
modern
term used
for
robbery.
Nahhb: Robber.
Nasl: Descendant.
Nisyn: Forgetfulness.
Nisb
:
The
minimum value.
237
Nukl: Refusal
to swear an oath.
Nus
:
Texts.
Q
Qadhf
:
Defamation; false
accusation of adultery or
fornication.
Qahr: Force.
Qarina: Circumstantial
evidence.
Qatl Shibh
-Al-'An
x
Quasi-
premeditated murder.
Qat! Al- `Anmd: Premeditated
murder.
Qat1 A!
-Khata"
Death
resulted
by
a negligent act.
Qat! Al-Khata': Death
resulting
from
a negligent act.
Qatl: Murder.
Qaul: Sayings.
Qiys: Analogy.
Qiss: Retaliation.
Qubl: Penis Or Vagina.
Qu4' Al-tariq. A Term Used For Robbery In Shari `a Law.
Quwwa.
"
Force.
Qdi: Judge Administering
Shari`a law.
R
Rajnr Stoning, lapidation.
Ray
:
Opinion.
Rib
:
Usury.
Ridda
:
Apostasy,
rejection of
Islam.
238
S
Sadd Al-71a i`: Blocking
the way.
Salat: Prayer.
Sariqa
:
Theft.
Sariqa Al-Kubra
:
Grave
theft.
Sariga: Theft.
Shahida. To
testify,
bear
witness,
to
attest, confirm or
to
certify.
Sl
ah&! a:
Testimony.
Shahid: Witness.
Shauka: Force.
Shubha
:
Doubt.
Shurb Al-Khanr
:
Drinking
alcohol.
Sikdz: Weapon.
Salb: Crucifixion.
Sahaba
:
Companions.
Sdt
:
Prayer.
Sifat (sing. Sifah): Criteria.
Silat Al-Rahim: Relationship.
T
Ta`zir: Discretionary
punishment.
Ta/wild.
"
Threat.
Taklif Responsibility.
Taqrir: Confirmations.
Tashhir: Declaration.
Tauba
:
Repentance.
Taubikh
:
Reprimand.
239
U
'Unvi: Mother.
' UmmAl-Lafz
:
General
wording.
`Uqba
:
Punishment.
' Urj
:
Custom.
w
W4ib: Compulsory.
Wa-Al darb Al-`Anrl: Intended
offences of
bodily harm
other than
homicide.
Wall Al-Dam: Heirs
of
the victim.
Wai: Heirs.
Was, f: An
attribute.
Wasiyya
:
Bequest.
Z
7aka:
Alm
tax.
Zin
:
Adultery
or
fornication.
Zni
:
An
adulterer or
fornicator.
Z hir: Apparent,
obvious.
240
BIBLIOGRAPHY
'Abid, Ra %f, Mabdi'
al-'Ilm-Ul-Ijrm,
Dr
ul-
Fikr-A1-'Arabi, 1974.
'Ali, Ameer, Short
story of
the
Saraens, MacMillan
and
Co Ltd, London, 1955.
'Amir, 'Abd
al-
Aziz, Al-Ta `zir fi
al-Shari
`a
al-Islmiyya,
Dr
al-Fikr al-'Arabi,
Cairo,
1969.
'Auda, Abdul Qdir, Al-Tashri' Al-Jin i Al-Islmi, Dar Al Turth, Cairo, No Date,
A. Ysuf 'Ali, Al-Qur'an Al-Karim, Translation And Commentary, American Trust
Publications, United State, 1977.
Abdalati, H. Islam In Focus, American Trust Publications, 1975.
Ab Haseln, Muhammad., Ahkdm AI Jarima Wa Al 'Ugaba Fi AI Shari `a Al Islami
yya,
MaktabaAl Manr, Al Zarg', Jordan, No Date.
Abn Sunnah, Ahmad F., Al 'Urf Wa Al `da, Al Azhar Press, Cairo, 1974.
Ab Ynsuf, Y
qb
Ibn Ibrahim, Kitb
al
Kharj, Maktaba
al-Salafia,
Cairo, 1933.
Ab Zahrah, Muhammad,
Al Jarima Wal
-`Uquba
Fi Al-Fiqh Al-Islmi, Dar Al-Filer
A1= Arabi, Cairo, 1974.
Ab Zahrah, Muhammad.,
Al `algt
at
duwaliya fi
at
Islam, Al Dar Al Qaumiyyah,
Cairo, 1964.
Adam, Abd Al Sattr,
Al Shari `a Al Islmia, High Council Of Islamic Affairs, Cairo,
1969
Al 'Alawani, Tha., At Ijtihd Wa At Taglld Fi Al Islam, Dar Al Ansr, Cairo, 1979.
Al 'Ani, Badr Al Din, `UmdatAl Qri Sharh Sahih Al Bukhri, Cairo, 1348 H.
Al 'Asgalani, Shihb Al Din Ab Al Fadl Ahmad B. 'Ali., Fath Al Bri Bi Sharh Al
Bukhri, Mustafa Al Halabi, No Date.
Al Alusi, Ab Al Fadl Shihb Al Din Mahmnd Al Baghdadi, Rh Al Ma`ni Fi Tafsir
Al Qur'an WaAI Sah'Al Ma`ani, Dr Ihy' Al Turdth Al 'Arabi, Beirut, 1270 H.
Al Bukhri, 'Abd Al 'Aziz (D. 620 A. H.
-
1234 A. D. ), Kashf Al Asrr, Turkey, Istanbul,
1890.
241
Al Fakhr Al Rzi, Al Tafsir Al Kabir, Vol. 11, Dr Ihya' Al Turth Al 'Arabi, Beirut,
No Date.
Alamgiriyya, Al Fatawa Al Hindiyya, Bulq, Cairo, 2nd. Edi., Al Matba'
a
Al Kubra
Al Amiriyyah, No Date.
Al Ghazali, Ab Hamid Muhammad,
Al Mustasfa Min 'Jim Al ush Al Maktaba Al
Tijriyya, Cairo, 1937.
Al Haithami, Shihb Al Din Ahmad B. Hajr., Al Fatdwa Al Kubra Al Fiqhiyya, 'Abd Al
Hamid Ahmad Hanafi, Cairo, No Date.
Al Jazri, 'Abd Al Rahmn., At Fiqh `Ala Al Madhhib Al 'Arba"a, Dar Al Fikr,
Lebanon, 1972.
Al Khatib, Muhammad Al Sharbini (D. 977 A. H.
-
1570 A. D. ), Mughni Al Muhtj I1
Ma`rifat Alfaz Al Minhdj, Matba'a MustafaAl Halabi, Cairo, 1958.
Al Ksni, 'Ala' Al Din Abn Bakr B. Mas'd, Bad i' Al San t` Fi Tartib Al Shar'i,
Matba'a Al Jamliyya, Cairo, 1910.
Al Marghi, 'Abdullah M., Al Tahsri' Al Isl
mi
Li Ghair Al Muslimin,
Al Adub
Librairy, Cairo, 1950.
Al Mauddi, Ab Al 'A'l
,
Huqq Ah! Al Dhimma Fi At Daula Al Isl
mia,
Dar Al
Fikr, Lebanon, No Date.
Al Mauddi, Ab Al 'A'1'., Islamic Law And Constitution, Trans. Khurshid Ahmad,
Pakistan, 1969.
Al Mirghinni, Burhnn Al Din, Hidya, Eng. Trans. Hamilton, Premier Book House,
Lahore, 1982.
Al Mwardi, Abi Al Hassan 'Ali M. H. (D. 450 A. H.
-
1509 A. D. ) Al Ahkm Al
SulUniyya, Al Taufigiyyah Library, Cairo, 1978.
Al Nawwi, Yahya Sharaf Al Din, Rauda Al Tlibin, Al Maktab Al Islmi Li Al Tib'a
Wa Al Nashr, Damascus, No Date.
Al Qalybi, Ahmad B. Ahmad B. Salamah & 'Umairah Ahmad Al Barnsi, Vdshiat
al-
Qalybiyya Wa 'Umairah, The Margin Of Kanz Al Rghibin By Jall Al Muhalla,
'Isa Al Bbi Al Halabi, Matba'a Dar Ihya' Al Kutub Al 'Arabia, Cairo, No Date.
242
Al Qurtubi, 'Abdullh M. A., Al Jami' Li Ahkm Al Qur'an Dar Al Kitb Al 'Arabi,
Cairo, 1967.
Al Ramli, Shams Al Din Muhammad B, Shihb Al Din, Nihayat Al Muhtj Il Sharh Al
Minhaj, Matb
a
Mustafa Al Halabi, Cairo, 1938.
Al Sajistni, Abi Dawd, Sunan, Eng. Trans. Ahmad Hasan, Ashraf Press, Lahore, 1984
Al Sanhnri, 'Abd Al Razzaq Al
mad,
Masdir Al Haq Fi Al Shari `a Al Islmi, Cairo,
1952.
Al Shafi'i, Abi Abdullh M. Ibn Idris (D. 214 A. H.
-
820 A. D. ) Ahkm Al Qur'an, Dar
Al Kutub Al ' Ilmiyya, Lebanon, 1975.
Al Shaibni, Muhammad., Al Siyr Al Kabir, Annotation By Al Sarkhasi, Manuscripts
Institute, Cairo, 1971.
Al Sharbini, Muhammad., Al Ign' Fi Hal Alfz Abi Shuja', Dir Ihy' Al Kutub Al
'Arabia, No Date.
Al Shirzi, Abn Ishq Ibrahim B. 'Ali, AlMuhadhab, 'Isa Al Bbi Al Halabi, Cairo, N. D
AlTabrizi, Muhammad Bin 'Abdulliih Al Khatib, Mishkt Al Masabih Ed. Muhammad
Nsir Al Din Al Albani, 2nd. Ed., Beirut, No Date.
Al Zail'i, Fakhr Al Din B. 'Ali, Tabyin Al Hag iq Sharh Kanz Al Daq iq, 1st. Edi.
Buldq, Cairo, No Date.
Al Zarg, Mustafa., Al Madkhal Fi Fiqh Al `m, Al Insha Press, Damascus, 1965
Al Husain, Tai Al Din Abii Bakr Muhammad., Kifyat Al Akhyr Fi Halli Ghyat Al
Ikhtisr,
'Isa Al Bbi Al Halabi, Cairo, No Date.
Al-'Azami, M. Mustafa, On Schacht's Origin Of Muhammadan Jurisprudence,
John
Wiley & Sons, New York, 1985.
Al-'Umar, Abd Al-Rahmn Bin Hammad., Islam: The Religion Of Truth, Dir Al-Ift'
Wa Al-Buhth Al-'Ilmia, Saudi Arabia, 1401 AH.
Al-'Amidi, Saif Al-Din., Al-Ihkm ft 'Usl Al Ahkm, Mu'assasa Al-Halabi, Cairo,
1967.
Al-Alfi, Ahmad 'Abd Al-Aziz, Punishment in Islamic Law,
in Bassiouni, M. Cherif,
The Islamic Criminal Justice System, Oceana Publications, London, 1982.
243
Al-Bahnasi, Al-'Uqbah fi
alfiqh allslmi,
Dar
al-Shuraq,
Cairo, 1989.
A1-Bahnasi, Al-Maus'a A! Jini'ya Fil Fiqh Al-Islmi, Vol. 1- 4, Dar
ul
Nahda Al-
'Arabiyya, Beirut, 1991.
A1-Bahnasi, Ahmad Fathi, Criminal Resposibility In The Islamic Law, In Bassiouni,
M. Cherif, The Islamic Criminal Justice System, Oceana Publications, London,
1982.
Al-Bahti, Mansur B. Ynus B. Idris, Kashf AI-Qin' `An Man Al-Ign , Maktaba
Al NashrAl-Haditha, Cairo, No Date.
Al-Bugha, Mustafa.,
Al-Wfi Fi Sharh AI Arba`in Al-Nawwiyya, Dar Ibn Kathir,
Beirut, 1986.
Al-Bukhri, Muhammad Bin Ism il, Sahih Al-Bukhri, Dar Al Qalam, Beirut, 1987.
Al-Bukhri, Muhammad Bin Ism'il,
Sahih Al Bukhri, Eng. Trans. By Muhammad
Muhsin Khan, Qazi Publications,
Lahore, 1979.
Al-Bji, Sulaimn Ibn Khalaf,
Al-Muntaqi Sharh Al-Muwatta', Matba'a Al-Sa'da,
Cairo, 1332H.
Al-Bni, Ahmad'Abd
Al-Mun'im,
Min Turuq Al Ithbt Fi Al-Shari'a Wa Al- Qnun,
Dar A1-FikrAl-'Arabi,
No Date.
Al-D
ahabi,
Edward Ghali.,
Jara'imA1-Mukhaddarat Maktab Gharib, Cairo, 1988.
Al-Dasuqi, Al-Diyah
Fi Al-Shari'ah Al-Islmiyya, Dar
ul
Shurq, Cairo, 1988.
AI-Dasgi, Muhammad bin Ahmad, Hashia
al-Dasugi
`ala AI-Sharh
al-Kabir,
Dir Al-
Fikr, Cairo, No Date.
Al Diyah Fi Al-Shari Ah Al-Islmiyya, Dar
ul
Shurq, Cairo, 1988.
Al-Dr Qutni, 'Ali Bin'Umar., Sunan Al D& Qutni, Dr Al-Ma'rifa, Beirut, 1966.
Al-Fairuz Abadi, Majd Al-Din Muhammad bin Ya'qb., Al-Qms
al-Muhit,
Dar Al-Filer
Al-'Arabi, 1978.
Al Tabari, Abu Ja'far Muhammad ibnJarir,
Jami `
al-Bayn
fi Tafsir
a1-Quran,
Dir Al-
Ma'rifa, Beirut, 1398 AH.
Al-Hf"iz, Muhammad bin Ahmad.,
Biddya
al
Mujtahid
wa
Nihyat Al Mugtasid, Dar
Al-Filer, Cairo, No Date.
244
A1-Jasss, Ahmad Ibn Ali, Kitb A! Ahkdm Al-Qur'an, Maktab
a
Al- Qhira Al-Misriya,
Cairo, 1928.
Al-Khatib, Muhammad
al-Sharbini,
Mughni Al-Muhtj ila Ma`rifa Ma`ni
al
Alfz,
Matba'a MustafaAl-Halabi, Cairo, 1958.
Al-Ksani, Abn Bakr Ibn Mas'd.,
Al-Bads i` Wa Al-$an i`, Maktabt Sharikt Al-
Matb'tAl-'Ilmia, 1909.
Al-Maudndi, Syed Ab Al-'A'la.,
Towards Understandaing Islam, Iddr
at
Turjumdn Al-
Qur' An, Lahore, 1974.
Al-Mwardi, Al Ahkam Al-Sultnia Wa Al-Wilayt Al-Diniyya, Maktaba Mustafa Al
Halabi, Cairo, 1960.
Al-Namir, 'Izat, Muhammad, Jar im Al-`Ird Fi Qnn Al-`Uqbt Al-Misri, Dr Ai-
'Arabia Lil Mausn't, Cairo, 1984.
Al-Nawawi, Yahya B. Sharaf,
Raudt Al Tlibin, Al Maktaba Al Islimi Li Al Tib'a
Wa Al Nashr, Damascus, No Date.
Al-Qattn, Manna'.,
Mabhith Fi `ulm Al-Qur'an, Mua'ssasa Al-Risla, Beirut, 1980.
Al-Qardwi, Ysuf.,
Madkhal LidirsatA1-Shari'ah Al Islmiyyah, Maktabah Wahbah,
Cairo, 1991.
Al-Qiss Fil Fiqh Al-Islmi, Dar
ul
Shurq, Cairo, 1989.
Al-Rizi, Muhammad FakbrAl-Din.,
Al Tafsir Al Kabir, Al Matba'a Al Husainiyyah Al-
Misriyyah, Cairo, No Date.
Al-Saleh, Osman Abd Al-Malek, The Right
of
the
Individual
of
Personal Security in
Islam, in Bassiouni, M. Cherif, (ed) The Islamic Criminal Justice System, Oceana
Publications, London, 1982.
Al-Sarkhasi, Shams Al-Din., Kitb Al Mabst Dar Al-Ma'rifa, Beirut, 1993.
Al-Saynti, Jall Al-Din, Al Ashbh Wal Nazi ir, Ddr
al
Kitb Al-'Arabi, Beirut, 1987.
Al-Sha'rani, Abd Al-Wahhb Bin Ahmad,
Al-Mizn, Maktaba Al-'Amira, Cairo, 1856.
Al-Shirzi, Ibrahim Bin 'ah, KitbAl-Muhadhab, MaktabaAl-Halabi, Cairo, 1924.
Al-Shfi'i, Al-Unzen, Dar Al-Ma'rifa, Beirut, No Date.
Al-Sh'i, Al-Risla, Matba'a Al-Halabi, Cairo, 1940.
245
Al-Shtibi, Abi! Ishq., Al-Muwirfagt fi 'Usul Al
-Abkam,
Matba'a Al-Salafiyya, Cairo,
No D
ate.
Al-Siysa Al-Jin iya Fi Al-Shari `ah Al-Isl
miyya,
Dar
al
Shurtq, Cairo, 1988.
A1-Zargdni, Muhammad ibn'Abd
al-Bgi,
Sharh
alZargni,
Matha'a Muhammad Afandi
Mustafa, Cairo, No Date.
Al-Sabbnni, Muhammad'Ali., Mukhtasar Tafsir Ibn Kathir, Dr Al-Qalam, Beirut,
1986.
Amin, S. H., Islamic Law And Its Implication, Royston Ltd, Glasgow, 1989.
Amin, S. H., Legal System Of Iraq, Royston Ltd, Glasgow, 1989.
Amin, S. H., Middle East Legal System, Royston Ltd, Glasgow, 1985.
Amin, S. H., Political And Strategic Issues In The Guy, Royston Ltd, Glasgow, 1984.
Amin, S. H. Islamic Law In The Contemporary World, Royston, 1985.
Anderson, J. N. D., Islamic Law In The Modern World, Greenwood Press Publishers,
1959.
Anderson, Norman., Law Reform In The Msulim World, The Athlone Press, 1976.
Arkoun, Mohammad, The Death Penalty And Torture In Islamic Thought, In Death
Penalty And Torture, Ed. F. Bockle And J. Pohier, New York, Seabury Press, 1979.
Avdich, Kamil Y, Survey Of Islamic Doctrine, Cedar Rapids Unity, 1979.
Azad, Ghulam Mutaza, Conduct And Qualities Of A Qadi, Islamic Studies 24 (Spring
1985).
Badr, Carnal Moursi, Islamic Law: Its Relation To Other Legal System, American Journal
Of Comparative Law 26 (1978).
Ballantyne, W. M., Legal Developments In Arabia, Graham And Trotman, London, 1980
Bassiouni, M. Cherif, The Islamic Criminal Justice System, Oceana Publications,
London, 1982.
Bottomley, A. Keith, Criminology In Focus, Martin Robertson, Oxford, 1979.
Bowles, S. / Edwards, R. Understanding Capitalism, Harper And Row Publishers,
New York, 1985.
Burke, J, Jowitts, Dictionary Of English Law, Vol. 1, Sweet And Maxwell, 1977.
246
Cantor, Nathaniel, The Search For Causes Of Crimes, Journal Of Criminal Law,
Criminology And Police Science, 22 (March
-
April 1932).
Cobb, K. A. And Schuer, N. R., Legislative Note: Michigan's Criminal Sexual Assault
Law, University Of Michigan Journal Of Law Reform, 8 (1974).
Coulson, N. J., A History Of Islamic Law, University Press, Edinburgh, 1964.
Coulson, N. J., Law And Religion In Contemporary Islam, Hastings Law Journal 29
(July 1978).
Coulson, N. J., The State And Individual In Islamic Law, International And
Comparative Law Quarterly 6 (January 1957).
Coulson, Noel J., Conflicts And Tensions In Islamic Jurisprudence, Chicago, University
Of Chicago Press, 1969.
Denny, Frederick Mathewson, An Introduction To Islam, New York, Macmillan, No
Date.
Doi. A. R, Shari
ah:
The Islamic Law, London, 1984.
Dwyer, Daisy Hilsy, Law Actual And Perceived: The Sexual Politics Of Law In
Morocco, Law And Society Review 13 (Spring 1979).
El-Awa, M. S, Punishment In Islamic Law, American
Trust Publications, Indianapolis,
1982.
Elias, Anthony Elias, Qamus Elias, Elias Publishing House & Co., Cairo, 1983.
Encyclopaedia Of Religion, Macmillan Publishing
Company, New York, No Date.
Encyclopaedia Of The Laws Of Scotland, Edinburgh Law Publisher, 1929.
Esposito, John L, Islam And Politics, Syracuse: Syracuse University Press, 1984.
Evening Time, April 24,1992.
Fitzgerald, Seymour, Vesey., Muhammadan
Law, Oxford University Press, London,
1931.
Forte, David F., Islamic Law And The Crime Of Theft: An Introduction, Cleveland
State Law Review 34 (1985-86).
Forte, David F., Islamic Law In American Courts, Suffolk Transitional Law Journal 7
(1983).
247
Glasse, Cyril
,
The Concise Encyclopaedia Of Islam,
Stanley International London,
1989.
Guenena, Neorat, The Jihad An Islamic Alternative In Egyp4 Cairo, American
University In Cairo Press, 1986.
Hall, Stuart. And Scraton, Phil., Law, Class And Contro4
In Crime And Society,
Fitzgerald, M. Routledge And Kegan Paul, The Open University Press, London, No
Date.
Hamilton, Charles (Tran), The Hedaya, Commentary On The Islamic Laws, Vol. 2,
Kitb Bharan, Delhi, 1985.
Harrison, Ross., Rape- A Case Study In Political Philosophy In Rape, Ed. Tomaselli,
Sylvana., And Porter, Roy., Basil Blackwell, Oxford, 1986.
Hassan, Syed Riazul., The Reconstruction Of Legal Thought In Islam, Law Publishing
Company, Lahore, Pakistan, No Date.
Haykal, Muhamamd Husayn, hayat Muhammad, Cairo, 1358 A. H.
Heidensohn, Frances., Crime And Society, Macmillan, London, 1989.
Hooper, C. J. K.
,
The Majalla (trans), Jerusalem, 1933
Hussain, Asaf., Political Terrorism
and
the
State in
the
Middle East, Mansell
Publishing Limited, London, 1988.
Ibn Al 'Arabi, Muhammad Ibn Ahmad, Ahkm Al Qur'n, 'Isa Al Halabi, Cairo, 1958.
Ibn Al Taimiyyah, Al Fatawa, Kurdstan Press, Cairo, 1911.
Ibn Anas, Malik., Al Mudawwana Al Kubra, Al Sa'da Press, Cairo, 1905.
Ibn Hazm, Al Muhalla, Dar Al Kutub Al 'llmiyya, Beirut, 1988.
Ibn Kathir, 7a/sir Ibn Kathir, Dar Al Qur'an, Beirut, 1981.
Ibn Mjah, Muhammadb. Yazid, Sunan Ibn Mjah, Istanbul, Cagri Yayinlari, 1981.
Ibn Nujaim, Zayn Al Din B. Ibrahim, Al-Bahr Al R iq Sharh Kanz Al-Dag'q, Dar
Al-Ma'rifa, Beirut, 1993.
Ibn Qayyim Al-Jauziyyah, Al-Turuq Al Hukmiyya,
Maktaba Al-Madani, Cairo, No Date.
Ibn Qayyim Al Jauziyyah, Tahdhib Madrij Al-Shcikin,
Wizrat Al-'Adl, United Arab
Emirate, 1991.
248
Ibn Qayyim, Al Hfiz Ibn 'Abdullh., Zrid Al Mi `d, Scientific Departments'
Headquarters (Riyadh, Saudi, Arabia, No Date.
Ibn Qayyim, Al Hfiz Ibn 'Abdulliih., 7`lm Al Muwaqqi `in An Rab Al `Alamin, Al-
Azhar College Library, Cairo, 1969.
IbnQudma, Al-Mughni, Matba'aAl-Imam, Cairo, 1964
Ibrahim, Ahmad., Islamic Law In Malaysia, Malaysian Sociological Research Institute,
Singapore, 1965.
Ibrahim, Ahmad., The Malaysian Legal System, DBP, Kuala Lumpur, 1987.
Ibrahim, Hamid., And Hamid, Nasser., Undang-UndangJena}arh, Penerbit Undang-
Undang Malaysia, Malaysian Law Publishers Sdn. Bhd. Kuala Lumpur, 1984.
Idr
at
Al Thagfa Wa Al Nashr, Athr Tatbiq Al Hud5d Fi Al Mujtama`,
J.
mi'at
Al
Imam Muhammad Bin Sand Al Islmiyyah, Saudi Arabia, No Date.
Imber, Colin., Zin In Ottoman Law, In Contributions A' L'histoire Economique Et
Sociale De L'empire Ottoman, Association Pour Developpement Des Etudes Turques,
Paris, No Date.
Islahi, Amin Ahsan.,
Islamic Law, Concept And Codification, Islamic Publications
Ltd, Lahore, 1970.
Ism'il, M. Bakr, Al-Figh Al-Wdih Bayn A! Kitb Wa AI Sunna, Dar
ul
Manr, Cairo,
1990.
Jansen, G. H.
,
Militant Islam, Harper And Row, New York, 1979.
Jubran, Mas'nd, R'id AI-Tul b, Dral'Um Lilmaldyin, Beirut, 1981.
Karl Marx, Selected Writing in Sociology
and
Social Philosophy,
translated
by T. B.
Bottomore, New York, Mac Graw- Hill, 1956.
Karl, David J., Islamic Law In Saudi Arabia: What Foreign Attorneys Should Know,
George Washington Journal Of International Law And Economic, 1991, Vol. 25, No.
1, P. 163.
Kepel, Giles, Muslim Extremism In Egypt, Berkeley And Los Angeles, University Of
California Press, 1986.
Khaddri, Mjid, The Islamic Conception Of Justice, Baltimore, John Hopkins
249
University Press, 1984.
Khaddri, Mjid., Nature And Sources Of Islamic Law, The George Washington Law
Review, Vol. 22, No. 2, Dec. 1953.
Khaddnri, Mjid., War And Peace In The Law Of Islam, John Hopkins Press,
Baltimore, 1955.
Khalaf. Abd. Wahhb, 'Jim Usl AI-Fiqh, Dr
al
Qalam, Kuwait, 1978.
Khallaf, 'Abd Al Wahhb, Masdir Al Tashri` Fi Ma La Nassa Fih, Al Buhth Al
Islmiyya, Kuwait, 1970.
Khallaf, 'Abd Al Wahhb., Al Siysa Al Shar`iyya, Ddr Al Ansaz, Cairo, 1977.
Kister, M. J., Society
and
Religion from Jhiliyya
to
Islam, Variorum, Hampshire,
1990Jaff1, All Daud Muhammad,
Al-Tauba, Dar Al-Nahdah Al-'arabia, Beirut, 1989
Koss, Mary P. / Harvey, Mary R., The Rape Victim, Clinical And Community
Interventions, Sage Publications, Newbury Park, 1991.
Leiden, E. J. Drill, Shorter Encyclopaedia Of Islam, 1953.
Lewis, Bernard, The Assassins: A Radical Sect In Islam, New York, Oxford University
Press, 1967.
Lippman, M. Islamic Criminal Law And Procedure,
Praeger, New York, 1948.
Lombroso, C. (1876) 'l'liomo Delinquente;
Hoepli, Milan (Translation
Is From
Sylvester, S. F. ) The Heritage Of Modern Criminology,
General Learning Press,
Cambridge, 1972.
Maghnia, Muhammad Jawwd.
,
Al-Fiqh Ala Al-Madhhib Al Khamsa,
D r Al-Jawwdd,
Beirut, 1992.
Mahmassani, S., Falsafa Al Tashri' Fi Al Islm, Eng. Trans. Farhat J. Ziadeh, The
Philosophy Of Jurisprudence In Islam, Leiden, 1961.
Mahmassani, Sobhi., International Law And Relations In Islam
(In Arabic), Dr Al
' llm Li Al Malyin, Beirut, 1972.
Mansour, 'Aly'Aly, Hudd Crimes, in Bassiouni, M. Cherif, The Islamic Criminal
Justice System, Oceana Publications, London, 1982.
Marquand, Diana., Crime: Causes And Treatment, Sheed And Ward, London, 1974.
250
Mortimer, Edward, Faith And Power, The Politics Of Islam. New York, Random
House, 1982.
Murphy, John W. 1 Dison, Jack E. Are Prison Any Better?, Twenty Years Of
Correctional Reform, Sage Publications, Newbury Park, 1990.
Mushrifa, 'Attiyyah., Al Qad' Fi Al Islam Bi Wajh Al Am,
Al Azhar, Cairo, 1939.
Muslim, Abn
al-Husain
ibn
al-Hujjj al
Nsbnri, Sahih Muslim,
Cairo, 1334 A. H.
Muhammad, Fu'd 'Abdul Bgi, AI Mu jam Al-Mufahris Li Alfz Al-Qur'an, Dar Al
Hadith, Cairo, 1986.
Muhammad, Ibrahim Muhammad, Musagqatt AI-`uqba Al-Ifaddiya,
Dar Al-Isla,
Khortoum, 1989.
Nawaz, M. K.
,
The Concept Of Human Rights In Islamic Law, Howard Law Journal 11
(Spring 1965).
Pearl, David., A Text Book On Muslim Law, Croom Helm, London, No Date.
Qasim, Yusuf., NazariaAl-Dan
ra,
Dar Al-Nahdah Al-Arabia, 1983.
Qasim, Yusuf., Usul Al Ahkm Al-Shar'ia, Dar Al-Nahdah Al Arabia, 1991
Quinney, Richard., The Problem Of Crime, Dodd, Mead & Company, New York, 1975.
Quth, Syed., Fi Zilal Al Qur'an, Dr Al Shuruq, Beirut, 1976.
Reda, M. Rashid,., TafsirAl Manr, Al ManrPress, Cairo, 1912.
Sabiq, Syed., FiqhAl-Sunnah, Dar Al- Kitb Al-'arabi, Beirut, 1985.
Sapsford, R. J. Individual Deviance, in Crime
and
Society, Fitzgerald, M. Routledge
and
Kegan Paul, The Open University Press, London, 1981.
Saudi Arabian Ministry Of Interior, The Effect Of Islamic Legislatio On Crime Prevention
In Saudi Arabia, Proceedings Of The Symposium Held In Riyadh, Saudi Arabia,
October 9-13,1976, Riyadh, Ministry Of Interioor, Kingdom Of Saudi Arabia, 1980.
Schacht, Joseph., Theology And Law In Islam. Otto Harrassowitz, Wiesbaden, 1971.
Sharaf Al Din, 'Abdul 'Azim., Al Uqba Al Muqaddara Li Maslahat Al Mujtama ` Al
Islmi, Maktaba Al- Kul iyyt Al Azhariyya, Cairo, 1973.
Sharif, Muhammad, Crime And Punishment In Islam,
Lahore, Institute Of Islamic
Cukture, 1972.
251
Siddiqi,
Muhammad Igbal, The Penal Law Of Islam, Lahore, Kazi, 1979
Southern,
R. W., Western View Of Islam In The Middle Ages, Harvard University
Press,
1962.
Sykes, G. M, Crime And Society, Random House, New York, 1967
Temkin,
Jeniffer., Women, Rape And Law Reform In Rape, Ed. Tomaselli, Sylvana.,
And Porter, Roy., Basil Blackwell, Oxford, 1986.
Uriel., Studies In Old Ottoman Criminal Law, Oxford, Clarendon Press, 1973.
Watt, Montgomery, W., Islamic Political Thought, Edinburgh, Edinburgh University
Press, 1968.
Wehr, Hans., A Dictionary Of Modern Written Arabic, Maktaba Lebanor, Beirut, 1980
Weiss, Bernard., Interpretation In Islamic Law: The Theory Of Ijtihad, American Journal
Of Comparative Law, 28 (1978).
Yamani, Ahmad Zaki, The Eternal Shari`a, New York University Journal Of
International Law And Politics 12 (1979).
Young, Jock., Thinking Seriously About Dime, In Crime And Society, Fitzgerald,
Mike., Routledge And Kegan Paul, 1981.
Vusof. A. R, Collins Gem Dictionary,
William Collins & Son Co. Ltd, London, 1964.
Eaidn, 'Abdul Karim., Ahkm
Al Dhimmiyyin Wa Almusta
manin,
Al Sharika Al
Muttahidah, Beirut, 1976.
iamidulla, Muhammad., Introduction
To Islam, Centre Cultural Islainique, New
England, Paris, 1969.
,
'outAl-Bahrain,
Issue 44, January 1995.
252