i. Intentional:

يَاأَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمْ الْقِصَاصُ فِي الْقَتْلَى الْحُرُّ بِالْحُرِّ وَالْعَبْدُ بِالْعَبْدِ وَالْأُنثَى بِالْأُنثَى فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ ذَلِكَ تَخْفِيفٌ مِنْ رَبِّكُمْ وَرَحْمَةٌ فَمَنْ اعْتَدَى بَعْدَ ذَلِكَ فَلَهُ عَذَابٌ أَلِيمٌ وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَاأُوْلِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ (2 :178-179)

Believers! Decreed for you is the qisas of those among you who are killed. If such a murderer is a free-man, then this free-man should be killed in his place and if he is a slave, then this slave should be killed in his place and if the murderer is a woman, then this woman should be killed in her place. Then for whom there has been some relief from his brother, [you can accept this relief; however,] after this, it is essential that this should be followed according to the ma‘ruf and diyat should be paid with kindness. This is a concession and a mercy from your Lord. After this, whoever exceeds the limits shall be in a torment afflictive. And there is life for you in qisas O men of insight that you may follow the limits set by Allah. (2:178-179)

Just as this directive of qisas has been given to us, it was given to the previous nations of the prophets. While referring to the Old Testament, the Quran says:

وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنفَ بِالْأَنفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ فَمَنْ تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَهُ وَمَنْ لَمْ يَحْكُمْ بِمَا أَنزَلَ اللَّهُ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ (45:5)

And We enjoined for them therein: life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, wound for wound. Then he who forgoes, then this shall be an atonement for his own self. And those who do not judge according to what Allah has revealed, it is they who are the wrongdoers. (5:45)

It is evident from this verse that this directive of qisas, not only pertains to murder but also relates to wounding or injuring someone. According to the Quran, all these crimes are heinous but as far as murder is concerned, the Quran says that murdering a person is like murdering the whole mankind:

مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (32:5)

He who killed a human being without the latter being guilty of killing another or of spreading disorder in the land should be looked upon as if he killed all mankind. (5:32)

Furthermore, the Quran says that a person who commits such a grave offence, particularly against a Muslim, shall face the eternal punishment of Hell:

وَمَنْ يَقْتُلْ مُؤْمِنًا مُتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللَّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا (93:4)

And he who intentionally kills a believer, his reward is Hell. He shall abide therein forever, and the wrath and the curse of God are upon him. He has prepared for him a dreadful doom. (4:93)

Consequently, the duties and responsibilities which this type of murder imposes on us as Muslims can be summed up in the following words of Imam Amin Ahsan Islahi:

Firstly, every occurrence of murder should create a tumult and commotion in the nation. Until and unless qisas is taken from the criminal responsible for it, everyone should feel that he no longer has the protection of the law he formerly had. The law is the protector of all and if it has been violated, a single person has just not been slain, but the lives of all persons are in danger.

Secondly, to search for the murderer is not just the responsibility of the heirs of the murdered person, but of the whole nation as it is not that just one life has been taken – rather all the lives have been taken.

Thirdly, if a person finds someone in danger, he should not ignore the situation by thinking that he is interfering in someone’s affairs; rather he should defend and protect him as much as he can, even if he has to endure difficulties; for a person who defends an aggrieved and oppressed person, in fact, defends humanity of which he himself is a part.

Fourthly, a person who hides someone’s murder, or bears false evidence in favour of the murderer or stands surety for him, or gives refuge to him or legally pleads for him, or intentionally excuses him, in fact, does so for the murder of his own self, his father, his brother, and his son because the murderer of one is the murderer of all.

Fifthly, to help the government or the heirs of the slain person in taking qisas is like giving a life to the slain person because, according to the Quran, there is life in qisas.[1]

The law of qisas which is mentioned in the various verses of the Quran is based on the following four clauses:

Firstly, qisas is an obligation imposed by the Almighty on an Islamic State. It guarantees survival to a society and is, in fact, a Divine Law which can only be breached by those who wrong their souls. Consequently, it is the responsibility of the government to search for the murderer, arrest him and implement the will of the heirs of the murdered person.

Secondly, complete equality should be observed in taking qisas. Hence, if the murderer is a slave, only that particular slave should be executed and if the murderer is a free man, only that particular free man should be executed. A person’s social status should never create an exception to this rule of equality nor should it be given any emphasis in this regard.

Thirdly, the heirs of the slain or wounded person have only two options: they can either demand life for life, limb for limb wound for wound or they can forgive the criminal and accept diyat from him. The latter case, according to the Quran is a favour and rebate by the Almighty to the criminal. Consequently, if the heirs of the slain person accept the forgiveness of the slayer, then this shall become an atonement (kaffarah) for their sins before the Almighty.

Fourthly, if the wounded person or the heirs of the slain person agree to accept diyat, then this should be given to them with kindness and goodwill. In the words of Imam Amin Ahsan Islahi:

… the directive of paying diyat with kindness has been given because in that period in Arabia diyat was generally not given in the form of cash; it was paid in kind or in the form of animals. Therefore, if the payers of diyat had any ill-intention in their hearts, they could defraud the receiving party. It is easily possible in case of camels and goats or dates and other grains to pay diyat as far as the agreed quantity and weight is concerned, disregarding their quality and nature. This would amount to ignoring the favour done by the aggrieved party by forgiving the murderer. Someone whose life had been left at the mercy of a person by the shariah had been forgiven by him and he had agreed to accept some wealth instead. This favour should be answered by a favour only, ie. the payment of diyat should be done with such magnanimity and munificence that the heirs of the slain person should not feel that by accepting camels and goats in place of the life of a beloved they had committed a mistake or done something dishonourable.[2]

The importance given to the slain person’s heirs in this law while deciding for any lenience for the criminal is based on great wisdom. It not only appeases their spirit of revenge, but also goes a long way in ridding the society of such crimes. Writes thus Imam Amin Ahsan Islahi:

… leaving the life of the killer directly at the mercy of the heirs of the murdered person compensates to some extent the tremendous loss caused. Furthermore, if the heirs of the slain person adopt a soft attitude at that moment, they do a big favour to the murderer and his family, which can be hoped to produce many useful results.[3]

However, this does not at all mean that if at some place a formal government does not exist and the matter of qisas is solely left to the discretion of the heirs of the accused, then they, in their capacity as heirs, should exceed the limits and, for example, slay others besides the slayer in frenzy of revenge or out of prejudice for their status and superiority demand the execution of a free person in place of a slave or a man in place of a woman, or kill the criminal by torturing him, or take out their venom on his dead body or adopt those methods of killing which have been prohibited by the Almighty like burning someone in fire or mutilating his corpse or in cases of injury, when there is a strong chance that qisas would inflict more harm on the inflicter than the harm he himself had caused, they still insist upon limb in place of limb and wound in place of wound. Consequently, when the Prophet (sws) was in Makkah and his rule was yet to be established in Madinah, the Almighty said:

وَمَنْ قُتِلَ مَظْلُومًا فَقَدْ جَعَلْنَا لِوَلِيِّهِ سُلْطَانًا فَلَا يُسْرِفْ فِي الْقَتْلِ إِنَّهُ كَانَ مَنصُورًا (33:17)

And whoever is killed wrongfully, We have given his heir an authority. So he should not exceed the bounds in taking a life, for he has been helped. (17:33)

The basic objective of this law, as is mentioned by the Quran, is to protect life. Imam Amin Ahsan Islahi explains this in the following way:

… this life does not relate to the individual; it relates to the society. If a murderer is executed because of his crime, it apparently seems as if a second life has been taken, but a little deliberation shows that this punishment actually guarantees the life of the whole society. If this punishment is not carried out, the mental disorder in which a person commits this crime is actually transmitted to the society. The extent of various diseases differs: diseases which result in such heinous crimes as murder, robbery, theft or fornication are like those diseases in which it is necessary to amputate some limb of the body to save the whole body. Amputating a limb may seem a callous act, yet a doctor has to be callous. If by showing sympathy to this limb he does not force himself to this cruelty, he may have to bear with the patient’s death.

A society in its collective capacity is like a body. At times, its limbs get infected to the extent that the only option is to cut them off from the body through an operation. If sympathy is shown by considering it to be the limb of a patient, there is all the chance that this would fatally affect the whole body. [4]

ii. Unintentional:

وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِنْ اللَّهِ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا (4 :92)

And it is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must free one Muslim slave and pay diyat to the heirs of the victim except if they forgive him. If the victim is a Muslim belonging to a people at enmity with you, the freeing of a Muslim slave is enough. But if the victim belongs to an ally, diyat shall be given to his heirs and a Muslim slave shall also have to be set free. He who does not have a slave, must fast two consecutive months. This is from Allah a way to repent from this sin: and He is Wise, All-Knowing. (4:92)

This law is based on three clauses:

Firstly, if the murdered person is a Muslim citizen of a Muslim State or if he is not a Muslim but belongs to a nation with which a treaty has been concluded, it is necessary for the murderer who has not been forgiven to pay diyat to atone for his sin and repent before the Almighty and free a Muslim slave as well.

Secondly, if the murdered person is a Muslim and belongs to an enemy country, the murderer is not required to pay diyat; in this case, it is enough that he only free a Muslim slave.

Thirdly, in both these cases, if the criminal does not have a slave, he should consecutively fast for two months.

These are the directives as far as unintentional murder [5] is concerned. But it is obvious that the directive of unintentionally injuring someone should also be no different. Hence, in this case also diyat shall have to be paid and fasts shall have to be kept considering the amount of diyat paid. For example, if the diyat of a certain type of wound is fixed at one-third of the diyat of murder, twenty fasts as atonement shall also have to be kept.

An important issue in these directives of intentional and unintentional murder is the amount of diyat to be given and its methodology. In verse 92 of Surah Nisa quoted above, the words دِيَةٌ مُسَلَّمَةٌ الى اَهْلِهِ are used. The word diyat in these verses occurs as a common noun, about which we all know that its meaning is determined by its linguistic and customary usage, and by the context in which it is used. Nothing other than these are required. Therefore, in this verse diyat means something which in the general custom and usage is called “diyat”. And the words دِيَةٌ مُسَلَّمَةٌ الى اَهْلِه simply mean that the family of the murdered person should be given what the general custom and linguistic usage term as “diyat”. In verse 178 of Surah Baqarah, where the directive of diyat in case of intentional murder has been given, the word مَعْرُوْف (maruf: custom) is used to qualify it:

فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ (178:2)

Then for whom there has been some remission from his brother, [the remission] should be followed according to the maruf and diyat should be paid with kindness. (2:178)

It is evident from the above mentioned verses of Surah Nisa and Surah Baqarah that in case of intentional as well as un-intentional murder, the Quran wants diyat to be paid according to the customs and traditions of the society. It has not prescribed any specific amount for diyat nor has it directed the Muslims to discriminate in this matter between a man or a woman, a slave or a free man and a Muslim or a non-Muslim. [6] The Prophet (sws) decided all the cases of diyat according to the customs and traditions of the Arabian society during their own times. The quantities of diyat which have been mentioned in our books of Hadith and fiqh are in accordance with this custom and tradition, which itself has its roots in the social conditions and cultural traditions of the Arabs. However, since then, the wheel of fortune has revolved through fourteen more centuries and the tide of time has sped past innumerable crests and falls. Social conditions and cultural traditions have undergone a drastic change. In present times, it is not possible to pay diyat in the form of camels nor is it a very wise step to fix the amount of diyat on this basis. The nature of عَاقِلَة (community/tribe) has completely changed and various forms of unintentional murder have come into existence which could never have been imagined before. We know that the guidance provided by the Quran is for all times and for every society. Hence, in this regard, it has directed us to follow the مَعْرُوْف (ma‘ruf: custom) which may change with time. By this Quranic directive, every society is to obey its customs, and since in our own society no law about diyat exists previously, those at the helm of our state can either continue with the above mentioned Arab custom or re-legislate in this regard; whatever they do, if the society accepts the legislation, it will assume the status of our maruf. Also, it is obvious that those in authority in any society can revise and re-structure the laws which are based on the maruf, keeping in view the collective good of the masses.

(Javed Ahmed Ghamidi)

(Translated by Dr. Shehzad Saleem)

_____________________________________

[1]. Ibid., vol. 2, 503.

[2]. Amin Ahsan Islahi,Tadabbur-i Qur’an, vol. 1, 434.

[3]. Ibid., vol. 1, 433.

[4].Ibid., vol. 1, 436.

[5]. Consequently, without a person’s fault, this law shall not relate to such a case. The Prophet (sws), according to this principle, said:

الْعَجْمَاءُ جُبَارٌ وَالْبِئْرُ جُبَارٌ وَالْمَعْدِنُ جُبَارٌ

If an animal kills a person, it is not the responsibility of the animal’s owner; if a person falls in a well, the owner of the well is not responsible and if an accident occurs in a mine, the owner of the mine cannot be held responsible. (Al-Bukhari, Al-Jami‘ al-sahih, 244, (no. 1499))

In other words, in such cases the owner is not to be blamed if his fault has not caused the mishap.

[6]. For a detailed discussion by the author on the meaning and nature of diyat, see: Javed Ahmad Ghamidi, Burhan,6th ed. (Lahore: Al-Mawrid, 2009), 9-24. (Translator).