Murder and Injury - Intentional
"O you who believe! decreed for you is the Qisas of those among you who are killed such that if the 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 shall be killed in her place. Then for whom there has been some remission from his brother, [the remission] should be followed according to the Ma‘ruf and Diyat should be paid with goodness. This is a concession and a mercy from your Lord. After this, whoever exceeds the limits shall be in a torment afflictive. There is life for you in Qisas O men of insight that you may follow the limits set by Allah." (2:178-9)
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 Qur’an says: "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 [retaliation], his remission shall be an atonement for the criminal. 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 Qur’an, all these crimes are heinous but as far as murder is concerned, the Qur’an says that murdering a person is like murdering the whole of mankind: "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 of mankind." (5:32)
Furthermore, the Qur’an says that a person who commits such a grave offence, particularly against a Muslim, shall face the eternal punishment of Hell: "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)
The Islamic law about this type of murder is that the real claimant in it is not the government but the heirs of the murdered person. The government is only obligated to help them and implement with all force what they want.
A little deliberation shows that it is this very principle which distinguishes the Islamic Law in this regard from other systems of law. It not only leaves the criminal’s fate to the people against whom the crime has been perpetrated in order to appease their spirit of revenge, but also goes a long way in ridding the society of such crimes.
In matters of Qisas, the importance which Islam has given to the will and intention of the heirs of the slain has many aspects of wisdom in it. 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 produces many useful results.
However, this does not at all mean that the heirs of the slain person 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.
The Qur’an says: "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 [by the law]. "(17:33)
It is however apparent that in case the slain person has no heirs or if he has heirs and owing to some reason they have no interest in his affairs or if their interest resides with the slayer and his accomplices, the claimant shall, no doubt, be the government and shall have all the authority which the heirs of the slain person have.
The law of Qisas which is mentioned in Surahs Baqarah and Ma’idah 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 Qur’an is a favour and rebate by the Almighty to the criminal. Consequently, their forgiveness shall become an atonement (kaffarah) for the criminal and as a result the government shall not lay hands on him at all.
Fourthly, if the heirs of the slain or wounded person agree to accept Diyat, then this should be given to them with goodness and goodwill. The directive of paying Diyat with goodness 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 favor done by the aggrieved party by forgiving the murderer. Someone whose life had been left at the mercy of a person by the Shari‘ah had been forgiven by him and 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.
The basic objective of this law, as is mentioned by the Qur’an, is to protect life. 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 is actually a guarantee of 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 differ: 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 shall have to bear with the patients 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.
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