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Qisas Only Applicable If Victim Is “معصوم الدم”؟?
Traditional Islamic jurisprudence takes the position that the Qisas punishment in case of murder is not applicable if the victim was liable to be killed, e.g. the victim was an apostate, or a married adulterer, a murderer etc.
Since this practically allows laymen to take the law in their hands, what is Ghamidi sahab’s opinion on this?
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5 Replies
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Qisas Only Applicable If Victim Is “معصوم الدم”؟?
updated 2 years, 6 months ago
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According to Ghamidi Sahab:
1) It should remain in consideration at the outset that the directive which contains these punishments is addressed to the Muslims in their collective capacity and not in their individual capacity. This is an obvious fact. For this very reason, the surahs in which these punishments are mentioned were revealed in Madinah where a Muslim state had already been established under the rule of the Prophet (sws).
2) The death sentence, according to the Quran, can only be given to a person who has killed someone or to someone who is guilty of spreading anarchy in the society. The Almighty has made it amply clear that when the Israelites were given the shariah, He had ordained at that time that except for these two offences neither a person nor a government has the right to kill a person. The Quran says:
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 anarchy in the land should be looked upon as if he had killed all mankind. (5:32)
To understand Ghamidi Sahab’s stance in Detail, please refer to the following thread:
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I understand this completely. But my question was of a different nature. Let me rephrase with more details.
Person X was a proven murderer and hence liable to be killed by the capital punishment in Islamic Law. Now ofcourse, the punishment is to be carried out by the rulers of the State. However, Person Y kills the murderer. Would Person Y be awarded the Qisas punishment for this act?
The answer of traditional jurists is “no”. They say a if a person who was already liable to be killed is murdered, the murderer is not to be given the death punishment.
What is Ghamidi sahab’s opinion on this?
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It is correct that if a convicted murderer is killed by someone then there can be relaxation in the law of Qisas. I must, however, reiterate that in Ghamidi sahab’s view apostasy and adultery (regardless of marital status) are not crimes that are punishable by death in the Islamic law.
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Thank you for your response. Respectfully, this still does not answer my question. Perhaps I could have explained better.
In Fiqh books, wherever Qisas is discussed, you will find a section that talks about the requirements for Qisas to be applicable, i.e. شروط القصاص.
There are 4-5 conditions generally listed. Of those, there is one on which there is a consensus of traditional scholars which goes as follows:
Qisas is only applicable if the victim was معصوم الدم, meaning that he or she has not committed a crime for which they are liable to be killed.
“Liable to be killed” (واجب القول) would be defined differently by different scholars. We know that traditional scholars have a long list of crimes for which they prescribe the death penalty, e.g. adultery, apostasy, blasphemy, etc., whereas Ghamidi sahab only prescribes the death penalty for persons guilty of murder or for spreading anarchy in the land. That is not the issue here.
The question is that if a person commits a crime that is to be punished by the death penalty, and is then murdered, would this murderer be given the death penalty or be forgiven? To reiterate, traditional jurists say he is to be forgiven.
Note here that the person murdered may not be convicted by a court of law, but killed by another layman on the basis of suspicion. One example would be the Salman Taseer case, on which Mufti Taqi Usmani Sahab made clear that if it can be proven that Salman Taseer in fact committed blasphemy, his murderer cannot be awarded the death penalty under Qisas because the murdered person here is not معصوم الدم.
I understand that Ghamidi sahab does not consider blasphemy a capital offense. For the purpose of my question, please assume that the crime of the victim I am talking about is one that is punishable by death in Ghamidi Sahab’s view. So:
If a person is truly liable to be killed by the State for a محاربہ or فساد في الأرض crime, convicted or not, and is murdered by a non-state actor, will this non-state actor be given the capital punishment under Qisas or be forgiven simply due to the fact that the victim was already liable to be killed?
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I think that there’s some confusion here. In your previous response you had stated
“Person X was a proven murderer and hence liable to be killed by capital punishment in Islamic Law…”
This only applies to a person who has already had his due process in the court of law and has been awarded death sentence. In this case, if someone kills this person, there can be room for relaxation in the law of Qisas.
If a person is not already given death sentence by the court, as in the case of Salman Taseer example you cited above, then for all intents and purposes anyone who kills him has killed an innocent person. Whether or not the victim himself is later established to be a murderer is irrelevant as he did not have a chance to defend himself in the court of law.
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