Outline: HOMICIDE UNDER ISLAMIC CRIMINAL LAW

Introduction:

Under ICL, qisas punishment is provided for the offence of intentional murder & intentional hurt
it is to punish the offender in the same way as he has caused to the victim
Qisas is hence a right & not obligation for the victim/heirs to enforce.

Murder / Homicide

The Shariah put emphasis in protecting the human life, hence the blood of a human being is
considered as sacred.
Taking away a life of innocent person, without just cause is considered as a sin under Islamic law
Eg:
1. Surah Al-Maidah 5:32 - It is because of this that We ordained for (all humankind, but
particularly for) the Children of Israel: He who kills a soul unless it be (in legal
punishment) for murder or for causing disorder and corruption on the earth will be as if
he had killed all humankind; and he who saves a life will be as if he had saved the lives
of all humankind.
2. Surah Al-Anam 6:151 - and that you do not kill any soul, which God has made sacred
and forbidden, except in just cause.
3. Surah Al-Isra 17:33 - Do not kill any soul, which God has made forbidden, except in just
cause. If anyone has been killed wrongfully and intentionally, We have given his heir (as
defender of his rights) the authority (to claim retaliation or damages or to forgive
outright). But let him (the heir) not exceed the legitimate bounds in (retaliatory) killing.
Indeed he has been helped (already and sufficiently by the provisions and procedures of
the Law).
4. Hadith: last pilgrimage your blood, your property and your honor are as sacred as this
city (Makkah) and this day (day of Arafah)
Under ICL, there are several punishments for homicide: either qisas or payment of diyat,
depending on the intention of the offender and/or the request of the victim heirs. Kaffarah or
penance on another hand only applicable in murder by accident/mistake.
Legality of punishments:
o Qisas:
Al-Baqarah 2: 178 - 179 - O you who believe! Prescribed for you is retaliation in
cases of (deliberate, unjust) killing: freeman for freeman, slave for slave, female
for female. Yet if he (the murderer) is granted some remission by his brother
(any of the heirs of the victim), then what falls on the pardoning side is fulfilling
in fairness what has been agreed on, and the other side is making the payment
kindly enough to please the other side. This is a lightening from your Lord, and a
mercy. Whoever offends after that, for him is a painful punishment
 There is life for you in retaliation (if you understand), O people of discernment,
so it may be that you (will perceive it and fulfill God's command and, in so
doing,) attain the desired piety and righteousness and deserve His protection.
o Kaffarah:
Surah An-Nisa 4:92 - Yet (be circumspect), it is not for a believer to kill another
believer unless it be by mistake. He who has killed a believer by mistake must
set free a believing slave, and pay blood-money to his family (legal heirs), unless
they forgo it as a freewill offering. If he (the victim), while himself a believer,
belonged to a people hostile to you (between whom and you there is no treaty),
then (the expiation is to) set free a believing slave. If he (the victim) belonged to
a (non-Muslim) people between whom and you there is a treaty, then (the
expiation is to) pay blood-money to his heirs, and to set free a believing slave.
But he who has no means (to make such expiation), must fast for two
consecutive months a penance from God (a way of repentance). God is All-
Knowing (of everything, including what is in your bosoms), All-Wise.

There are several categories of homicide, based on majority:

1. Intentional murder (Qatl al-amd)
2. Quasi intentional murder (Qatl shibhu amd)
3. Murder by mistake/negligence/accidental (Qatl al-khata)

Intentional / Wilful murder

This crime is considered as one of the most heinous sin after polytheist. Eg:
o In a hadith narrated by Abdullah ibn Masud, a man asked the Prophet: O Messenger
of Allah, what is the gravest sin in the sight of Allah? the Prophet replied: To call a
counterpart of Allah who created you. Then the man asked again: Then what?
The Messenger replied: Killing of your son fearing that he will eat with you.
This crime requires an ulterior intention which cannot be determined except by identifying the
types of means used to kill a victim.

Definition:

Intentional killing of a person with weapon or instrument that is considered lethal, dangerous and
destructive such as sword, knife, spear, bullet etc.

Elements:

1. The victim must be a living human being

As long as the victim is a living human being irrespective of caste, sex, religion, age and status

Thus, killing of a dead body or fetus in the womb of a mother is not counted
 The person must also be protected of his life under the law. Thus, a non-Muslim or Muslim who
engaged in a war against Muslim is not protected.; or if he done an offence which is liable for
death punishment the person shall not be counted

2. The victim must have died as a result of the action of the accused

If the act is in the ordinary course of nature is not likely to cause death, he shall not be liable.

In a hadith: A jewish women offered a poisonous meat to the Prophet and he ate some portion
of it and threw the rest, after a while one of his companion named Bishar who was with the
Prophet ate the poisonous meat, as a result of which he died. For this act, the Prophet ordered
for the killing of the Jewish lady.

In case of multiple offender, who have joint intention to kill the same victim, and each of them
take part in the killing or has some role to the killing of the victim, all of them can be held liable.

If a person instigates or abets or conspires in for the commission of the murder, but did not take
active involvement in the killing, he cannot be subjected to qisas but can be sentenced under
tazir

3. The offender has wilful intention of causing death of the victim

Authority:

Surah Al Ahzab 33:5 - However, there is no blame on you because of the mistakes you may
make unintentionally (in naming them), but what your hearts have premeditated (matters
greatly).

Hadith: Deeds are counted according to the intention.

The primary intention of the murderer is to cause the death of the intended victim

The intention can be inferred from circumstances of the case i.e. by looking at the means used
to kill the victim

4. The offender must have the capacity to be held liable.

The offender must be an adult and sane. Authority:
Hadith: 3 persons have been exempted from the criminal liability: minor until he attained
puberty, insane until he become sane and sleeping person until he awakes
If the crime is done out of compulsion and not due to the offenders freewill, he shall not be
liable. Compulsion here means to cause a person by force to do an act without his consent and
choice by threatening him of death, grievous hurt or heavy financial loss.
Hadith: My people have been exempted from the liability done by mistake, forgetfulness or
under compulsion.
 A death caused by someone under the duty, who acted in accordance to his jurisdiction, without
any transgression to the limit prescribed upon him, shall not be liable. Eg. Judge, executor,
enforcement officer.
If the killing was done out of private defence, without excessive use of power, he shall not be
liable.
Surah Al-Baqarah 2:194 - So whoever attacks you, attack them in like manner as they
attacked you.
Judgment of Umar who refused to order for diyah to be paid to a person who was killed by a
girl who tried to protect herself from being raped.

Proof of Intentional murder:

Confession

Testimony of two adults, sane, male and reliable eye witnesses

Al-Qasamah:

Derived from the word Qasam to take oath.

Technically: a repetition of an oath of 50 times by 50 people of less of the place of the crime,
or the relatives of victim in a case of murder wherein the offender is unknown

Authority: hadith: it was narrated from Abu Salamah and Sulaiman bin Yasar, from some of
the Companions of the Messenger of Allah, that: Qasamah existed during the Jahiliyyah and
the Messenger of Allah approved of it as it had been during the Jahiliyyah, and he ruled
accordingly among some of the Ansar concerning a victim whom they claimed the Jews of
Khaibar had Killed. (Sahih) Ma'mar contradicted the two of them.
Effect of qasamah - payment of diyat as opposed to qisas