Thursday, January 26, 2012

Law of Qisas in Islam and its Legislation in Pakistan.

Qisas
Qisas is an  arabic term it means “Legal Retaliation," and follows the principle of an eye for an eye. This is the second type of punishment in Islamic Law.  This is where the perpetrator of the crime is punished with the same injury that he caused to the victim.  If the criminal killed the victim, then he is killed.  If he cut off or injured a limb of the victim, then his own limb will be cut off or injured if it is possible without killing the criminal. 
Allah Almighty says:
“O you who believe, retribution is prescribed for you in the case of murder...”[1]
Types of murder
 There are three types of killing:
·         Premeditated murder  (Intentional murder)
·         Quasi-premeditated murder (Quasi intentional murder)
·         Manslaughter (Murder by mistake)

Premeditated murder (Intentional murder)
In arabic it is called Qatl-al-amd. It means the murder in which one intentionally kills a human being while being aware that his blood is inviolable by attacking him with something fatal. 
Allah Almighty says:
“If a man kills a Believer intentionally, his recompense is Hell, to abide therein (for ever): and the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him.”[2]


 Conditions liable for Qisas:
·         Having the intention of killing
·         Being previously aware of the inviolability of the victim’s blood as a human being.
·         The weapons or the tool used is a fatal one, whether it is specified for killing or not.
Therefore, if these conditions are not present, the cases will not b regarded as premeditated murder.
Quasi-premeditated murder(Quasi intentional murder)
According to faqihs, quasi-premeditated murder occurs when someone kills anther with the intention of causing him harm or injury, not death. Such a cause is regarded as quasi-premeditated murder whether the murderer’s purpose is aggression or mere disciplinary punishment, as the offender exceeds the limits in doing so until results of death. It is called “quasi-premeditated murder” as the perpetrator just intends harm or injury, but he unintentionally kills the victim.
          Abu Hurayrah narrated:
“Two women from (the tribe of) Hudhayl fought with each other and one of them hit the other a stone that killed both her and the fetus she carries. The killer’s agnate relatives and those of the victim their case to the Prophet (PBUH) who judge that the diyah for the murderer women was to be paid by the murderer’s agnate relatives”
Manslaughter (Murder by mistake)
Manslaughter occurs when someone kills an inviolable human being by mistake while doing something permissible for him to do, such shooting or hunting.
If a Muslim kills a Muslim mistakenly in aware believing that heist one of the disbelievers, there will be nothing obligatory on him except for the expiation.
             Allah Almighty says:
It is not for a believer to kill a believer except (that it be) by mistake, and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and a compensation (blood money, i.e Diya) be given to the deceased's family, unless they remit it. If the deceased belonged to a people at war with you and he was a believer; the freeing of a believing slave (is prescribed), and if he belonged to a people with whom you have a treaty of mutual alliance, compensation (blood money - Diya) must be paid to his family, and a believing slave must be freed. And whoso finds this (the penance of freeing a slave) beyond his means, he must fast for two consecutive months in order to seek repentance from Allah. And Allah is Ever All-Knowing, All-Wise.[3]

Allah, Exalted be He, stated tow kinds of manslaughter:
First:  the first kind of manslaughter is that in which the expiation is obligatory on the murderer and the diyah on his agnate relative. This kind involves killing a believer unintentionally without mistaking him for a disbeliever in the battlefield. The same ruling applies to the case of unintentional killing of one those with whom Muslim have a peace treaty.
Second: the second kind of is that in which only the diyah is obligatory. This kind involves killing a believer unintentionally in the battlefield, mistaking him for one of the disbelieving enemies.
Qisas for Murder
Muslim scholars unanimously agree on the legality of qisas (legal retribution) for murder in the case of permeditated murder provided the conditions of such a murder are met.

   Allah Almighty says:
“O you who believe! Al-Qisas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female……..[4]


Allah Almighty says:
“And we ordained for them therein a life for life……”[5]
In addition Allah Almighty says:
“And there is for you in legal retribution (saving of) life, O you (people) of understanding, that you may become righteous.”[6]

The Sunnah states that the heir or legal representative of the murdered person would choose one of three choices: to seek qisas, to pardon the murderer in returned for the diyah, or to pardon him and give it up, which is considered the best thing to do.
Abu Hurayrah narrated that Holy Prophet (PBUH) said:
                   “Whoever suffers the murder of a relative, he has the choice between two options: either he may receive the payment of diyah (blood money) or he may choose qisas (legal retribution)”

Allah Almighty says:
But if the killer is forgiven by the brother (or the relatives, etc.) of the killed against blood money, then adhering to it with fairness and payment of the blood money, to the heir should be made in fairness. This is alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood money), he shall have a painful torment.[7]
Thus, both the verse and habith mentioned above indicate that the relative or the legal representative of the deceased has the right to choose between carrying out the qisas and receiving the diyat.


Allah Almighty says:
                    “…….And to forego it is nearer to righteousness…..”[8]
Abu Hurayrah narrates that Holy Prophet says:
“No person forgives an act of injustice (done to him) but Allah will add to his honor for it”
Conditions of Qisas:
The heirs or the legal representatives of the killed person do not have the right of qisas (legal retribution) unless the following four conditions are met:
·         The murdered person must be one of those whose blood is inviolable, as qisas was ordained person to save human lives. Thus, if a Muslim kills a disbeliever whose people are in a state of war with Muslims, or if he kills an apostate before the latter declares his repentance or an adulterer, there will be neither qisas nor diyah due on the part of   the perpetrator. Yet, he is to undergo discretionary punishment for arrogating to himself the ruler’s authority.
·         The murderer must be mature and sane, for qisas is a severe punishment that is not permissible to be applied to a minor or an insane.
Sayings of the Holy Prophet (PBUH):
“There are three (persons) whose actions are not recorded; until he awakes, a minor until he reaches puberty, and a lunatic until he comes to reason.”
·         They must be equal in religion, and freedom or slavery.
Sayings of the Holy Prophet (PBUH):
“No Muslim should be killed in qisas (legal retribution) for killing a disbeliever.”
·         The murdered person must not be one of the murderer’s children or descendents. [9]

Sayings of the Holy Prophet (PBUH):

“A parent is not to be killed (in qisas) for his/her child.”
Qisas for the Parts of Body and Wounds:
The qisas for the parts of body and wounds is stated in Quran and Sunnah and in the consensus of Muslim scholars. Allah says:
And We ordained for them therein a life for life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wound is legal retribution…” (Quran: Al-Maidah: 45)
The Holy Prophet says:
“(The law prescribed in) the Book of Allah is qisas.”
Three conditions for the validity of the qisas for parts of the body:
First: There must be assurance that there will be neither injustice nor transgression.  That is, cutting off the part of the body in retaliation must be from a specific joint or to a certain point. Thus if there is no specific limit, retaliation will be impermissible. As for breaking someone’s tooth, the qisas can be accurately applied by rasping the tooth of the perpetrator until it becomes just like that of the victim broken by the former.
Second: There must be equivalence between the part of the body of the offender and that of the victim in both name and location. That is, a right organ is not to be cut off in retribution for cutting off a left one and vice versa; this applies to hands, legs, eyes, ears and the like. For example, a little finger is not to be cut off in retaliation for a ring finger, for each has a different name.
Third: The body part of the perpetrator in question must be in the same condition as that of the victim regarding soundness and completion. So a sound, functional hand or leg is not to be cut off in retaliation for a paralyzed one. Likewise, a hand or leg with complete fingers is not to be cut off for a defective hand or leg. Similarly, a sound, articulate tongue is not to be cut off in retribution for a speechless one, due to the inferiority of the latter.
Contrarily, a defective organ can be cut off in retribution for a sound, complete organ. That is, a paralyzed limb can be cut off for a functional one, and a defective limb can be cut off in retaliation for a sound one. This is because the defective organ is similar to the sound organ in respect of the nature of creation, but they differ in quality. Moreover by cutting off the defective organ, the one who has the right of qisas receives part of his right, so there will be neither injustice nor excessiveness.
Qisas for Wounds:
The qisas is to be carried out for every wound that reaches the bones, as it can be exacted with neither injustice nor excessiveness, such as the wound of the head, face, upper arm, leg, thigh and foot. As Allah says:
                        “……and for wounds is legal retribution…..” (Al-Maidah: 45)
As for the wounds that do not reach the bones, it is impermissible to apply the qisas to them, even if they are head wounds or the like. To illustrate, there is no retribution applicable as regards the case of the wound ion the internal part of the abdomen, the chest or the upper part of the chest, as the depth of the wound cannot be specified so there is no assurance that there will be neither injustice nor excessiveness. In this regard, Ibn Majah related that the Prophet (PBUH) said:
“No qisas is to be executed in a skull-fracturing wound, an abdomen deep flesh-cutting wound, nor a bone breaking and dislocating wound.”
Moreover, Shaykh-Islam Ibn Taymiyah(may Allah have mercy on him)said: [10]
“The qisas for wounds is stated by the Noble Quran, the Sunnah and the consensus of Muslim scholars, provided that the retaliatory injury is just like the original one. That is, if the head of a person is fractured by someone, the injured person has the right to retaliate for in the same way, but if it is unattainable to exact just, accurate retribution as in the case of breaking an internal bone or any other kind of head fracture less in degree than a bone clearing wound, retribution becomes impermissible, and the diyah (indemnity) becomes obligatory instead.”
Moreover Ibnul-Qayyim(may Allah have mercy on him) said:
“The Shafi, Hanafi, Maliki, and late Hanbali scholars maintain that there is no retribution for a slape or strike. Some of them claim that there is a juristic consensus on this, exceeding the analogical deduction, the obligation stated in the legal texts (of the Quran and Sunnah) as well as the consensus of the Prophet’s companions. Moreover Allah Exalted be He, says, ‘And if you punish [an enemy, O believers], punish with an equivalent of that with which you were harmed…..’  (An-Nahl: 126)[11]

  Qisas when a Group Kills an Individual:
When a group of people premeditatedly and wrongfully kills an individual, the whole group is to be killed in qisas according to the most preponderant opinion adopted by the Muslim scholars (may Allah have mercy on him). This opinion is based on the general meaning of the Quranic verse in which Allah, Exalted be He, says:
“O you who have believed, prescribed for you is legal retribution for those murdered….. And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.” (Al-Baqarah: 178-179)
The aforementioned opinion is also the one unanimously maintained by the Prophet’s Companions. To illustrate, Sa’id Ibnul-Musayyab reported that ‘Umar Ibnul-Khattab (may Allah be pleased with him) had killed seven men of the people of Sana in retribution for killing one man. ‘Umar saif: “If all the people of Sana had acted together in killing him, I would have killed them all in qisas.” It is also stated that other companions were of the same opinion, and they would killed a group of people in retribution for killing one person; there was none who disagreed with them, so there was a consensus on this juristic view.
The great Muslim scholar Ibnul-Qayyim(may Allah have mercy on him) said: “The companions and the majority of faqihs unanimously agree on the ruling that a group of people are to be killed (in retribution) for killing one person, though it may appear to contradict the basic principle of qisas, namely saving of lives. They maintain so as not to let the non-application of the qisas to a group of murderers be the pretext for further conspiracy to shed blood.”
Moreover, Ibn Rushad said:
 “The wisdom behind the application of the qisas for murder   is to avoid further murder as stated in the Quran. Thus if a group of conspirators is not killed in retribution for killing an individual, people will band together in killing. Another reason is that retaliation and deterrence are not attained except through killing all the murderers (in qisas).”
Furthermore, if two persons conspired and premeditatedly killed someone unjustly, and one of the two does not meet the conditions for the application of the qisas, it is to be applied only to the other one who meets them (i.e. he is to be killed in qisas), as he has participated in a murder intentionally and wrongfully. That is, the qisas for murder, namely capital punishment, is not to be applied to his partner due to the absence of the conditions obligating the qisas on him, not due to absence of the reason for the qisas. Accordingly, the qisas is to be applied to the one who meets the conditions obligating it. In this connection, if someone holds a person for someone else to kill, the killer is to be killed in qisas, and the other, who has held the victim for him, is to be given life imprisonment.
The ruling applied to the group killing an individual is the same ruling applied in the case of injuries to parts of the body and wounds caused by a group to an individual. To clarify, if a group of people participates in damaging or cutting off a part of the body of a person or wounding him, the qisas (namely a similar injury) is applied to every member of the group, provided their actions in the crime are undistinguished from one another. For example, if they put a piaece of iron on the hand of a person and begin to press heavily on it until his hand is cut off, and then the hands of them all are to be cut off in qisas. This is based on the fact that two witnesses came to ‘Ali Ibn Abu Talib (may Allah be pleased with him) and testified against someone that he had stolen. Thereupon, ‘Ali ordered to amputate the hands of the thief (as a prescribed punishment). After that, they (tow witnesses) came to hi m along with another person and said, “This is the real thief, as we were wrong concerning the first one.” ‘Ali Ibn Talib rejects their testimony concerning the second man and obligated them to pay an indemnity to the first, and said to them: “If I thought you had intentionally testified against the first, I would have amputated your hands.” This incident indicates that the qisas, namely cutting their hands off, would have been applied if they had intentionally testified against the man. The qisas is estimated according to the consequences of the offence, whether the consequence is death or minor result. This is because the resulting effect of an offence is the actual crime. It is permissible to apply the qisas for an injury or a wound before it heals to verify that there is no further damage. This is due to the hadith narrated by Jabir in which he said:
A man was wounded and he wanted qisas to be applied to the offended. However, the Prophet (PBUH) forbade applying qisas to the culprit until the wounded person was wholly recovered.”
This is surely in the best interest of the victim, as it verifies that the wound will neither affect the function of any other part of the body nor cause death. Therefore, if the claimer opposes this rulling and exacts the qisas before he whooly recover, and then his wound spreads the effects another part of the body, he has no right to seek any kind of qisas for the effects of the injury.
Hereby, Muslims come to know the virtues of their Shari’ah (Islamic law) and realize the perfect justice and the broad mercy it encompasses. True are the words of Allah, Who says:
And the word of your Lord has been fulfilled in truth and in justice. None can alter His words, and He is the Hearing, the Knowing.”
So, woe to those who replace the sacred Shariah was unjust, innovated, defective, imperfected laws. Allah Almighty says about such people and their innovated laws:
“….Wretched it is for the wrongdoers as an exchange.” (Al-Kahf)[12]
Legislation of Qisas in Pakistan’s Penal Code.(PPC).
Historical Development of the Enforcement of Qisas Law in Pakistan.
The incorporation of the Qisas law in Pakistan Penal Code, 1860 was initiated in 1990.the background of this law is that in the Gul Hassan case, the analysis of the provisions, relating to the offences against human PPC relating to the offences against human body including section 302, PPC are repugnant to Injunctions of Islam as enshrined in the Holy Quran and Sunnah and held that the decision of the court will be effective on 23rd March 1990.
Two review petitions and miscellaneous petitions were field thereafter.In this context, the learned Attorney-General of Pakistan in the case of Federation of Pakistan and another v. N.W.F.P. Government and others made the statement that the Government is in the process of promulgating the ‘Qisas Ordinance,’ which will be promulgated by 5th September, 1990 and he prayed that the review petitions may be disposed of in the light of his above statement, as these have become in fructuous. Accordingly the Court passed the orders, providing for the promulgation of a new ordinance with the provisions of Qisas, on 5th September, 1990.
Pursuant to the above court’s order, the first Qisas Ordinance was promulgated vide Criminal Law (Second Amendment) Ordinance, 1990 on 5-09-1990 to be effective from 12 Rabi-ul-Awwal 1411 A.H. This ordinance caused amendment and substitution of the provisions of sections 53, 109 and 299 to 338. PPC, 1860, which were derived from British Common Law. Certain provisions of Pakistan Criminal Procedure Code were also amended to bring them in alignment with the amended provisions of Pakistan Penal Code
The provisions of Qisas were re-promulgated and enforced in the form of ordinance for 20 times from 1991 to 1996, each time with some changes.
The legislature ultimately accorded the approval to the ordinance No. CXIII of 1996containing provisions of 
Qisas on 11th April 1997 as Act II of 1997 called the Criminal (Amendment) Act, 1997.III. A Quick Review of the Concept of Qisas Incorporated in the PPC. the provisions of Qisas law, as incorporated in the PPC, under Chapter XVI, in a nutshell deal with the offences affecting human body and life. They provide punishment of Qisas, which
“Means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-e-amd in exercise of the right of the victim or a wali.” 
The following four categories of murder have been specified in PPC:
1. Qatl Shibh-i-Amd.
 2. Qatl-e-khata
 3. Qatl-bis-Sabab 
 4. Qatl-e-amd 
Two types of abortions i.e. Isqat-i-Haml and Isqat-i-janin in addition to several categories of hurt/injury, both intentional and unintentional have also been defined. The basis of the above classification of murder, abortion and hurt/injury is Fiqh and not the Holy Qur’an except murder by mistake ( Qatl-e-Khata).
Disputed Provisions:
The review of Qisas provisions as included in the P.P.C., on the touchstone of Qur’an and Sunnah (precepts and actions of the Holy Prophet (PBUH) revealed that the provisions identified and reproduced here-in-below, are either contradictory to the injunctions of Islam or are not being enforced in the true spirit of Islam.[13]
“Section 302”. Punishment of Qisas for Qatl-e-amd:
Whoever commits Qatl-e-amd shall subject to the provisions of this chapter be;
·         punished with death or Qisas;
Proof of Offences:
i) “Section 304” Proof of Qatl-e-amd liable to Qisas, etc.
(1) Proof of Qatl-e-amd liable to Qisas shall be in any of the following forms, namely:
(a) The accused makes before a Court competent to try the offence, a voluntary and true confession of the commission of the offence.
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984).
Exemptions from Qisas:
 “Section 306” Qatl-e-amd not liable to Qisas.
 Qatl-e-amd shall not be liable to Qisas in the following cases, namely:
·         when an offender is minor and insane.
·         when the offender causes the death of his child or  grandchild how low-so-ever; and 
·          when any wali of the victim is a direct descendent, how low-so-ever, of the offender 
Section 307 Cases in which Qisas for Qatl-e-amd shall not be enforced:
Qisas for Qatl-e-amd shall not be enforced in the following case, namely:
·         When the offender dies before the enforcement of Qisas.
·         When wali voluntarily and without duress, to the satisfaction of the court, waives the right of Qisas under section 309 or compounds under section 310. And
·         When the right of Qisas devolves on the offender as a result of the death of the wali of the victim.
Ø  Concept of wali: 
·         “Section 299 (m)” “Wali” means a person entitled to claim Qisas
 “Section 305” Wali. In case of a qatl,
·         the wali shall be:
a)      The heirs of the victim, according to his personal law.
b)       The government, if there is no heir.

Compounding of Offences
“Section 309” Waiver-Afw of Qisas in Qatl-e-amd:
(1) In the case of Qatl-e-amd an adult sane wali may, at anytime and without any compensation, waive his right of Qisas. Provided that the right of Qisas shall not be waved:
a) Where the Government is the Wali.
b) Where the right of Qisas vests in a minor or insane.
(2) Where a victim has more than one wali, any one of them may waive his right of Qisas.
“Section 310” Compounding of Qisas (Sulh) in Qatl-e-amd:
(1)   In the case of Qatl-e-amd, an adult sane wali may, at anytime on accepting badl-i-sulh, compound his right of Qisas:
(2)   Provided that a female shall not be given in marriage or otherwise in badl-i-sulh.
“Section 313(b)” Right of Qisas In Qatl-e-amd:
(1)   Where there is only one wali, he alone has the right of Qisas in Qatl-e-amd but, if there is more than one, the right of Qisas vests in each one of them.
(2)    If the victim has no wali other than a minor or insane or one of the wali is a minor or insane, the father or if he is not alive the paternal grandfather of such wali shall have the right of Qisas on his behalf: Provided that, if the minor or insane wali has no father or paternal grandfather, how high-so-ever, alive and no guardian has been appointed by the court, the Government shall have the right of Qisas on his behalf.
Application of the provisions of Qisas on Non-Muslims:
The prevalent law is silent on the point of the application of the provisions of Qisas in P.P.C., on non-Muslims. However since the criminal law is applicable to all the citizens and residents at the relevant time alike, it can be concluded that it is applicable to the non Muslims also.[14]


[1] Al-Quran 2:178
[2] Al-Quran 4:93

[3] Al-Quran 4:92
[4] Al-Quran 2:178
[5] Al-Quran 5:45
[6] Al-Quran 2:179
[7] Al-Quran 2:178
[8] Al-Quran 2:237

[9] Dr.Salih Al-fawzan, “A Summery of Islamic jurisprudence” pp. 515-527.
[10] . Fawzan, Dr.Al.S. (2001). A summary of Islamic Jurisprudence.  Dawa Foundition. Vol:2 pp. 22-24.
[11] . An-Na'im, Abdullahi Ahmed An-Na'im. (1946). Toward an Islamic reformation. America: Library of Congress-cataloging in publishing data. P.161.

2. Qasmi, A. H.  (2006). International encyclopaedia of Islam. Published by Isha books. India: p. 9 .


[13] Zahra, syeda Arfa(2011) Pakistan review of Qisas and Diyat 2003.Pakistan: pp22-34
[14] Nizamai, M.M.Hassan.(1999) The Pakistan penal code with commentary and shriat criminal laws.Lahore: P.L.D Publishers. Pp 395 to 422

7 comments:

  1. This is really quite informative blog such qualitative info I have never seen anywhere.Jerry

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  2. Assalamu alaykum I wanted to know what should a child do if his father beats him. I read that scholars say that one cannot retaliate against his father. So, I think children should learn about their Islamic rights and should compassionately share those words with their parents. Western enemies of Islam spread the lie that honour killings are due to Hadith of no qisas for parents if they kill their children. That does not mean Allah will not punish them. In fact, Allah forbids killing unborn babies. I wanted to share a narration of Abdullah bin Umar may Allah be pleased with him. It was narrated that Ibn ‘Umar said: “Allaah has called them abraar (righteous) because they honoured (barru) their fathers and children. Just as your father has rights over you, so too your child has rights over you. Dr. Ghali translates barr as kindness, gentleness and benignity which is more appropriate for children than honouring. Also the word dutiful is not generally used in context of rights of children. http://sunnah.com/adab/5/11 https://islamqa.info/en/20064 Scholar and commentator of Hadith text Jami Al-Saghir, Al-Manawi says one must give gift to children treating everyone equally.

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  3. Muslim children should not behave like this American teenager over iPhone. http://www.dreamindemon.com/2014/05/29/teen-vincent-parker-admits-beating-parents-death-crowbar-ipod/

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