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Punishment Even If A Crime Is Not Fully Proven
It is alleged by some jurists that if a crime is not fully proven then in accordance with the following words attributed to the Prophet (sws) whereas a hadd punishment cannot be given, a ta‘zīr punishment can be given in such cases:
اِدْرَؤُا الْحُدُوْدَ بِالشُبْهَاتْ
Do not enforce a hadd punishment if there is a doubt.
A little deliberation shows that this argument is baseless. While pointing this out, Ghāmidī, writes:
The Hadith in no way means that if there is some doubt, a hadd punishment shall not be given; it only means that in case of doubt, no punishment at all can be given. The word hadd has not been used as a term here; it is used in its literal sense for the term came into existence much later after the Prophet (sws). What he has reported to have said is based on the universal principle of the ethics of law that since in case of doubt a crime does not stand proven, the criminal cannot be punished. Consequently, if these people say that a tazir
punishment can be given on the basis of a woman’s testimony, then this only means that the crime stands proven in their eyes. But then the question arises: If the crime stands proven, then why can’t a hadd punishment be given? And if they contend that if a woman’s testimony always leaves room for doubt, then a crime cannot be considered to be proven; so on what basis should the tazir
punishment be administered?A crime, obviously, cannot be regarded to be proven ten, twenty, ninety or ninety-nine percent. It is either proven one hundred percent or not proven at all. Consequently, it is absolutely baseless to accept a state between proof and lack of proof in a crime and in no way can it be accepted that a hadd punishment will be administered on certain grounds and tazir
punishment on certain other grounds. No doubt that the nature of the crime and the circumstances of the criminal do have a bearing on the extent of punishment that is to be given. However, to imply that the “extent” of proof forms a basis for punishment is something common sense totally rejects and human nature completely discards. -
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Punishment Even If A Crime Is Not Fully Proven
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