Commentary Qur&anic Laws are Unique and Revolutionary Mentioned in the previous verses (27-32) was the event of the killing of Habil (Abel) and its gravity as a crime. In the verses cited above, and in verses which follow, there is a description of the legal punish¬ments for killing, plundering, robbery and theft. Prompted in between the description of the punishments for robbery and theft is the need to fear Allah and the desirability of seeking nearness to Him through acts of obedience. This approach of the Qur&an, acting in a very subtle manner, prepares the human mind to accept the desired revolutionary change in thinking. The reason is that the Holy Qur&an, unlike the pe¬nal codes of the world, does not stop at a simple codification of crime and punishment. Instead of doing that, it combines with each crime and its punishment the ultimate fear of Allah and the Hereafter mak¬ing the later almost present before him whereby it would turn the hu-man orientation towards a state of being the very thought of which leaves a person all cleansed from every defect and sin. An impartial view of things as they are around us will prove that, without the moti¬vating factors of the fear of Allah and the apprehension of the Here-after, no law or police or army of this world can guarantee that crimes can be eradicated from human societies. It is this wise and affection-ate approach of the Holy Qur&an which ushered a revolution in the world when it created a society of human beings who, in their Godli¬ness, were ahead of even angels. The Three Kinds of Islamic Legal Punishments Before we proceed with the details of the Islamic legal punish¬ments for robbery and theft mentioned in the verses cited above and present our explanations of the particular verses, it seems appropriate to clarify the Islamic legal terminology concerning these punishments - a lack of familiarity with which causes even educated people to fall in doubts. Under all common laws of the world, punishments for crimes are considered penalties in an absolute sense, irrespective of the crime concerned. Law books like the Indian Penal Code, Pakistan Penal Code and some others in other countries are comprised of all sorts of crimes and their punishments. But, in the Shari&ah of Islam, things work differently. Here, the punishments of crimes have been divided into three kinds. These are: Hudud (Islamic legal punishment delimit¬ed as Divine Statute; plural of Hadd), Qisas (Even Retaliation) and Ta` zirat (Penalties; plural of Ta` zir). Before we move on to define these three kinds and explain their sense, it will be useful to bear two things in mind. Firstly, it is necessary to know that crimes which bring harm or loss to a human being inflict injustice not only on the created but also cause disobedience to the Creator. Therefore, in every crime of this nature, the Right of Allah (Haqqullah) and the Right of the Servant of Allah (Haqqul ‘Abd) are intermingled, and one becomes guilty of both crimes. But, in some crimes, the status of the Right of the Servant of Allah is more important while, in some others, the status of the Right of Allah is more prominent. As for the modus operandi in religious in-junctions, it rests on this status of predominance. Secondly, it is also necessary to know that the Shari&ah of Islam has not determined any yardstick for crimes other than those which are special. Instead, it has left it to the discretion of the Qadi (the Judge of an Islamic Court) who could award and enforce the kind and amount of punishment deemed necessary to plug out the incidence of crime keeping in view the objective conditions prevailing in whatever time, place and circumstance it may be. It is also possible that the Is¬lamic state of any time and any place may, with due consideration of Islamic legal percepts, restrict the rights of the Qadis in some manner and make them abide by a particular measure of punishment for crimes - as has been the practice in the later centuries of Islam, and as it nearly is the prevailing practice in most countries. Let us now understand that crimes for which the Qur&an and Sun¬nah have not fixed any punishment, instead, have left it to the discre¬tion of the relevant authorities, are the kind of punishments which are called |"Ta` zirat|" (penalties) in the terminology of the Shari&ah of Islam. As for the punishments of crimes already fixed by the Qur&an and Sun¬nah, they are divided over two kinds. Firstly, those in which the Right of Allah has been declared to be predominant and the punishment for which is known as |"Hadd,|" the plural of which is |"Hudud.|" Secondly, those in which the Right of the Servant of Allah has been accepted as predominant in accordance with the Shari&ah of Islam and the punish¬ment for which is called the |"Qisas|" (Even Retaliation). As for the de¬scription of Hudud and Qisas, the Holy Qur&an has itself explained it in full details. The details of the remaining penal offences have been left to the judgment of the Holy Prophet a1ii and to the discretion of the relevant ruling authority of the time. In short, we can say that the punishment of crimes which the Holy Qur&an has promulgated after having determined it to be the Right of Allah is called the |"Hudud,|" and that which it has ordained as the Right of the Servant of Allah is known as |"Qisas,|" and crimes the pun¬ishment of which has not been determined by it are called, |"Ta` zir.|" The injunctions of these three kinds differ in many respects. Those who take the punishment of every crime as |"Ta` zir|" on the basis of their own customary usage - and do not keep the difference of Islamic legal terminology in sight - make frequent errors of judgment in un-derstanding Islamic legal injunctions. As for the punishment of penal offences (Ta` zir), they can be made the lightest, the heaviest, or could even be pardoned, all depending on attending circumstances. Here, the powers and options of the relevant authorities are wide. But, when it comes to Hudud, no Amir or govern¬ment or ruler or head of state is permitted to make the least change, alteration, reduction or increase in it. Neither does a change in time and place affect it in any manner nor does the Amir or chief executive of the government have the right to waive or pardon it. There are only five |"Hudud|" in the Shari’ ah of Islam. These are the punishments for (1) Robbery, (2) Theft, (3) Adultery, (4) False Accusation of Adultery. These punishments have been mentioned in the Holy Qur&an clearly and categorically (Mansus). The fifth Hadd is that of drinking wine which stands proved on the basis of a consensus (Ijma`) of the noble Companions of the Holy Prophet (صلی اللہ علیہ وآلہ وسلم) . Thus, the punish¬ments of a total of five crimes stand fixed here. These are called the |"Hudud.|" The way no Amir or ruler can reduce or pardon these punish¬ments, very similarly, even an act of repentance cannot bring about an amnesty for the criminal as far as the punishment due in this mortal world is concerned. Of course, the sin bound to bring punishment in the Hereafter does get to be forgiven through sincere repentance leav¬ing at least that account in the clear. Out of these, there is only one punishment, that of robbery, in which there is an exception, that is, if the robber repents before being arrested and his conduct in dealings proves his repentance to be satisfactory, only then, this |"Hadd|" will stand dropped. Repentance after arrest is not valid with regard to the worldly punishment. Other than this, the remaining Hudud do not get to be forgiven in this world even by repentance - whether this repen¬tance comes before the arrest or after it. In matters relating to penal offences (Ta&zirat) recommendations could be heard as warranted by a relevant right. In the Hudud of Allah (punishment under Divine right) even the making of a recommendation is not permissible, and equally impermissible is its hearing too. The Holy Prophet has prohibited it strictly. The punishments under Hudud are generally strict. The law of their enforcement is also strict as nobody has been permitted to make any additions or subtractions in them under any circumstances, nor can they be waived or forgiven by anyone. Along with this strict stance maintained in punishment and law, when it comes to some moderation of matters, equally stringent conditions have been imposed regarding the completion of the crime as well as the completion of the proof of the crime. Should even a single, condition out of these be found missing, the Hadd stands dropped. In fact, even the least doubt found in the proof will cause the Hadd to be dropped. In this matter, the established law of Islam is: اَلحُدُودُ تَندَرِءُ بالشُّبھَاتِ that is, Hudud are dropped in case of doubt. At this point, let us also understand that in cases where the Islam¬ic legal punishment (Hadd) is dropped because of a doubt or absence of some condition, it is not necessary that the criminal would go scot-free only to become more daring in later crimes. Instead of that, the rele¬vant ruler would award the penal punishment to him as due in his case. The penal punishments (Ta` zirat) of the Shari` ah are generally physical which, being lesson-oriented, have a complete system of blocking and eradicating crimes. Suppose, only three witnesses were found to attest to the proof of adultery (Zina), and the witnesses are upright and trustworthy about whom the doubt that they would lie cannot be entertained. But, according to the Islamic legal norm, the Islamic legal punishment will not be enforced against the offender be-cause of the absence of the fourth witness. However, it does not mean that the offender will be allowed to walk out free of any obligation, les¬son or penalty. The ruler of the time would, rather, award an appro¬priate penal punishment to him which would be in the form of lashes. Or, take the example of the punishment for theft. If there remains any shortfall or doubt in conditions fixed as the required proof of theft, the Islamic legal Hadd punishment of cutting hands cannot be en-forced on the accused. This does not mean that the accused goes all untouched and free. On the contrary, other penal punishments will be given to him as warranted in his case. The Punishment of Qisas (Even Retaliation) Like Hudud, the punishment of Qisas has also been fixed in the Qur&an, that is, life be taken for life and wounds be retaliated by even wounds. But, the difference is that Hudud have been enforced as the Right of Allah (Huququllah). It means that should the holder of the right elect to forgive the offence, it will not be forgiven, and the Hadd will not be dropped. For example, should the person whose property has been stolen were to forgive the thief, the Islamic prescribed punishment for theft will not stand forgiven on that count. This is con-trary to the case of Qisas where the Qur&an and Sunnah have declared the status of the Right of the Servant of Allah (Haqqul-‘Abd) as pre-dominant. This is why the accused killer, after the crime of killing has been proved legally, is handed over to the guardian (Wali) of the person killed who can, at his discretion, take Qisas and have him killed, or forgive him, if he so wishes. Similar to this is the case of Qisas in cases of wounds. You already know that Hudud and Qisas when dropped do not let the criminal go unscathed, the ruler of the time having the power and discretion to award the amount and kind of penal punishment (Ta` zir) considered appropriate. Therefore, it should not be doubted that, in the event the criminal charged with homicide were to be set free after having been forgiven by the guardian of the person killed, killers would be encouraged and cases of homicide would become common. This doubt is unfounded because taking the life of the person who had killed was the right of the guardian of the person who was killed - and he surrendered it by forgiving. But, providing the security of life for other people is the right of the government. It can, to protect this right, sentence the killer for life or give him some other punishments in order to offset the danger posed by such a person to the lives of oth¬er people. The Explanation of Ay-at and Details of Hudud Upto this point, we have dealt with necessary information about the terminology of Islamic Legal Punishments of Hudud, Qisas and Ta` zirat. We can now move to the explanation of verses which carry in-junctions about then) and which would also include a detailed discus¬sion of Hudud. The first verse (33) begins by stating the punishment of those who fight against Allah and His Messenger and go about spread¬ing disorder in the earth. For the sake of clarity, let us consider two things at this stage. 1. What does ` fighting& (Muharabah) against Allah and His Messen¬ger and spreading disorder in the earth mean, and to whom does this apply? The word, Muharabah is derived from حَرب Harb and intrinsically means to wrest or snatch away. In Arabic usage, it is used against Salm which means peace and security. Thus, we can see that, the sense of Harb (fight) is the spreading of disorder. It is obvious that rare incidents of theft or killing and plundering do not cause public peace to be disturbed. In fact, this happens only when a powerful and organized group stands up to carry out acts of robbery, killing and plundering. Therefore, according to Muslim jurists, the punishment contemplated in this verse is meant for a group or an individual who robs people and breaks the law of the land by the force of arms. This will not include those who indulge in common individual crimes such as thieves and pick-pockets. (Tafsir Mazhari) 2. The second point worth noticing in this verse is that ` Muharabah& (fighting) of the criminals is said to be against Allah and His Messenger, though the confrontation or fighting waged by robbers and rebels is apparently against human beings. The reason is that a powerful group when it elects to break the Law given by Allah and His blessed Messenger with force, it is really at war with the government, even though they are obviously carrying out their aggression against common human beings. But, when the government itself is Islamic, a government which subscribes to and enforces the Law of Allah and His Messenger, this act of ` fighting& (Muharabah) will invariably be regard¬ed as being ` against& Allah and His Messenger. In short, the punishment mentioned in the first verse (33) applies to robbers and rebels who ruin public peace by attacking with armed group force and break the law of the land openly. As obvious, this could appear in many forms. So, everything from aggression against property and honour to killing and bloodshed is included within its sense. It is from here that we find out the difference between Muqata¬lah and Muharabah. Muqatalah refers to a bloody fight, though with actual killing or without, and though property is also looted as an ad¬junct. The word, Muharabah is used in the sense of spreading disorder by employing force and causing the destruction of public peace and safety. Therefore, this word is particularly used to denote high-handed and group-led intrusion into anything relating to the life, property and honour of people which is called highway looting, robbery and rebellion. The punishment for this crime has been fixed by the Holy Qur&an itself when it enforced it as the Right of Allah which, in a manner of saying, was a crime against the ultimate authority. In the terminolo¬gy of the Shari&ah, it is called the Hadd. Let us now find out the Islam¬ic prescribed punishment for dacoity and highway robbery. In the present verse (33), four punishments for highway robbery have been mentioned: أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ : That they shall be killed off or be crucified or their hands and legs be cut apart from different sides or they be kept away from the land (they live in). In the first three punishments, the words used belong to a particu¬lar from of verb called |"Bab al-Taf’ il|" which are emphatic and denote repetition and intensity of the respective acts. The added use of the plural form gives the hint that their being killed or crucified or ampu¬tated is not like common punishments where punishment is given only to one individual who has provenly committed a crime. The situation here is rather different when the whole group of robbers will be award¬ed the punishment by being killed or crucified or amputated, even though the actual crime was committed only by one single individual of the group. Another hint given here indicates that this killing, cruci¬fication and amputation is not in the form of Qisas which could stand pardoned after having been forgiven by the guardians of the person killed. Instead, this Islamic Legal Punishment (Hadd) has been enforced as the Right of Allah (Haqqullah) and the punishment will not be pardoned legally even if the people who have suffered were to fore-go and forgive. These two rulings were arrived at by the text&s choice of the particular grammatical form (Babut-Tafil) of the first three words of the verse. (Tafsir Mazhari and others) These four punishments for highway robbery have been introduced by using the word: اَو : ` Aw,& which is also employed to give choice in a few things and for a division in allotment of jobs too. Therefore, a group of Sahabah, Tabi` in and jurists of the Muslim Ummah, by taking the word, ` Aw,& in the sense of choice, has taken the position that the Imam or Amir or the ruler has been legally given the choice to award all four punishments, or any one of them as suitable in their cases, of course, after an assessment of the power and terror of the robbers and the gravity or negligibility of their crimes. This is the view held by Sayyidna Said ibn al-Musaiyyib, Sayyidna &At-a&, Dawud, Hasan al-Basri, Dahhak, Nakh` ii and Mujahid as well as that of Imam Malik from among the Four Imams. On the other hand, Imam Abu Hanifah, Imam Shafi` i, Imam Ahmad ibn Hanbal رحمۃ اللہ علیہم and a group of Sahabah and Tabi` in have taken the word, Aw& in the sense of division of work. Thus, according to them, the sense of the verse is that there are differ¬ent punishments which can be applied to various conditions of high-way robbers and highway robberies. This position is also supported by a hadith where, based on a narration from Sayyidna Ibn ` Abbas (رض) ، it has been reported that the Holy Prophet (صلی اللہ علیہ وآلہ وسلم) had entered into a peace treaty with Abu Burdah Aslami. He broke the treaty when he robbed some people going to Madinah to embrace Islam. Pursuant to this episode, Sayyidna Jibra&il (علیہ السلام) came with an injunction for punish¬ment. The injunction stipulated that whoever killed, and looted prop-erty as well, should be crucified; and whoever killed, but did not loot, should be killed; and whoever looted, but did not kill anyone, should have his hands and legs cut apart from different sides; and whoever from them embraces Islam should have his crime pardoned; and whoever did not kill or plunder but restricted himself to scaring peo¬ple, which caused a breach of public peace, should be exiled. If these people have killed a Muslim or non-Muslim citizen of Dar al-Islam - but, did not loot property - their punishment is أَن يُقَتَّلُوا that is, all of them should be killed, even though the act of killing was directly car¬ried out by some of them only. And if they killed and looted both, their punishment is : يُصَلَّبُوا that is, they should be crucified. The form it should take is that they be hanged alive, then their stomach be slit with a spear or something else. And if they have participated in loot¬ing only and have not killed anyone, their punishment is : أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ , &that is, their right hands be cut apart from the wrists and their left legs from the ankles. Here too, though this act of looting may have been performed directly only by some of them, yet the pun¬ishment will remain just the same for all of them, because whatever the doers of the act did, they did it with their trust in the cooperation and assistance of their accomplices, therefore, all of them are partners in the crime. And if they had yet to commit the crime of killing or plundering while they were arrested beforehand, their punishment is : أَوْ يُنفَوْا مِنَ الْأَرْضِ that is, they be kept away from the land they live in. The sense of ` keeping away& or turning out from the land, according to a group of Muslim jurists, is that they should be turned out from Dar al-Islam. Some others say that they should be turned out from the place where they have committed the crime of robbery. In cases like this, Sayyidna ` Umar al-Faruq (رض) gave the verdict that should the criminal be turned out from one place and left to roam free in oth¬er cities, he was bound to harass the people there. Therefore, let a criminal like this be locked in a prison. This will become his ` keeping away& or turning out from the land for he cannot go and walk any-where. Imam Abu Hanifah has adopted this very view. As for the question that armed attacks of this kind these days are no more restricted to looting of property or killing and bloodshed alone for there are frequent instances of raping and kidnapping women as well. So, if the statement of the Qur&an : وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا (and run about trying to spread disorder in the earth) were to be taken as inclu¬sive of such crimes, what punishment would they deserve? Here, ap¬parently the Imam or Amir or the ruler will have the option of enforc¬ing whichever of the four punishments he deems fit in their case; and in the event that he does find the necessary proof of adultery as admit¬ted by the Shari’ ah of Islam, he would enforce the Hadd punishment for Zina (adultery) as well. Similarly, if the position is that no one was killed, no property was looted, but, some people did receive wounds at their hands, then, they would be subjected to the law of Qisas (Even Retaliation) against the inflicting of wounds. (Tafsir Mazhari) Towards the end of the verse (33), it was said: ذَٰلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا ۖ وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ that is, the Islamic Legal Punishment to which they have been subjected here is humiliation for them in this world and certainly a token of punishment. As for the punishment of the Akhirah, that is much harsher and more lasting. This tells us that the punishments of Hudud, Qisas or Ta` zirat in this mortal world do not lead on to the for¬giveness of punishments due in the Akhirah unless the person sen¬tenced repents and makes a genuine Taubah, following which he could hope to have the punishment of Akhirah forgiven.
