Penal Law

Introduction

Islamic criminal law is one of the areas of law that is deeply influenced by pre-Islamic tribal law. The laws of homicide, bodily injury and rape, for example, are closely related to tribal law, and in many respects Islamic law can be regarded as an attempt to reform these earlier norms. It is also an area of law that exhibits fundamental differences with Western law in many of its characteristics. The most important of these differences is the fact that Islamic law regards many criminal offences as a matter of private law, whereas the distinguishing factor of Western criminal law is the fact that it is primarily the state and not the individual who is responsible for the prosecution and punishment of an offender. In Western criminal law, the role of the victim is insignificant in these matters. However, it should be noted that even English law is increasingly prepared to give the victim of crime a role in the punishment of an offender. Criminals can, for instance, be compelled to pay compensation to their victims by a criminal court.

While in the majority of the countries in the Muslim world modern penal codes have been enacted which depart from traditional Islamic penal law, one of the effects of the rise of political Islam has been the reintroduction of Islamic criminal law into the legal systems of some states. In Iran, following the establishment of the Islamic Republic, Islamic criminal law replaced the previous code which was based on a Western pattern. Pakistan as part of the Islamisation programme initiated by General Zia ul Haq also introduced some aspects of Islamic criminal law, as has Nigeria in those states which are largely Muslim. In the Kingdom of Saudi Arabia, of course, Islamic law applies in the area of criminal law as well in all other areas of the law.

Some aspects of Islamic criminal law, especially the laws on sexual offences and on corporal punishment, is considered controversial within and outside the Muslim world. In this chapter, we will look at classical Islamic criminal law but will also examine the application of these laws in modern Islamic states, in particular the Islamic Republic of Pakistan.

Be that as it may, in Islamic law, though hadd punishments appear to be harsh, sufficient measures have been provided to restrict the hadd punishment to the lowest level. Firstly, the offences classified as hadd have been defined narrowly. Secondly, short period of limitation for lodging the complaint (normally one month, however in case of wife drinking, so long the smell of wine is found from the mouth of accused). Finally, proofs in hadd offences have been made difficult.

Hadd and taz’ir punishments

Islamic law distinguishes between offences for which the punishment is determined in the Qur’an and offences for which the punishment is established by the judge in his own discretion. Punishments specified in the Qur’an itself are called hadd punishments, for the Arabic term for ‘limit’ or ‘boundary’. Of these the most important is apostasy, the abandonment of Islam by a Muslim. Punishments which are at the discretion of the judge are called taz’ir.

Where an offence has been committed but there is insufficient evidence to warrant the application of the hadd punishment the ta’zir punishment is applied, subject to the discretion of the judge. However it may never exceed the hadd punishment.

There are three main aspects of Hadd punishments: firstly, this punishment is prescribed in public interest. Secondly, it can not be pardoned either by him, by political authority or by the victim of the offence. The non-changeability of the hadd punishment is supported by the Koranic verse: “these are the limits of allah. Do not transgress them” (Sura 2 verse 229)

Apostasy

The punishment for apostasy is death but before the sentence is carried out the accused must be offered the chance to return to Islam and belief. Apostasy is still a capital offence in Saudi Arabia, Yemen and the Islamic Republic of Iran. Apostasy does not appear as a criminal offence in either the Pakistan Penal Code (PPC) or the Code of Criminal Procedure of Pakistan. However since the amendment of article 295-C of the PPC to make blaspheming the name of the Prophet an offence punishable by death or life imprisonment, it is likely that an apostate would suffer the same penalty as there can be no greater blasphemy of the Prophet than renouncing Islam and the role of the Prophet as the Messenger of God.

Sexual relations outside marriage (Zina)

Another most serious hadd offence is that of Zina (i.e. sexual relations outside of Marriage). The offence therefore can either be the committing of adultery or fornication. Sexual acts which do not amount to having actual sexual intercourse are punished at the discretion of the judge and are, accordingly, taz’ir offences. The punishment for a person found guilty of Zina, has laid down in Surah Noor verse 2 as follows:

“The adulterer and adulteress shall each be given a hundred lashes. Let no pity for them cause you to disobey God, if you truly believe in God and the last day; and let their punishment be witnessed by a number of believers”

However, it is found from the tradition of prophet that if the party to the adultery is married, then an additional punishment of stoning to death would be imposed. It is however disputed as to whether the requirement of stoning to death is still sanctioned by Islamic law. One view is that those traditions which have prescribed for stoning to death are relating to the events which are in point of time earlier than the revelation of the Kornic verse, and as such the provision of stoning to death has been abrogated. On the other hand, another view emphasizes that this is still applicable because that was the practice of prophet in cases of married offender. This is also a disagreement among the jurists as to whether the married offender, who should be stoned to death, should also be subject to flogging or not. Conversely, it is not disputed that if the offender is a person who has never been married the punishment is a hundred lashes.

To prove the hadd offence of Zina the testimony of four eyewitnesses of the act of intercourse itself is required. Moreover the eye witnesses must be adult sane male Muslims possessing the highest degree of moral probity. Guilt may also be established by the confession of the accused, which is maintained until punishment is actually carried out. It should be noted that in traditional Islamic law pregnancy outside marriage does not constitute proof of the hadd offence of Zina.

The early years of the new Islamic Republic of Iran saw the execution of many women charged with the offence of Zina. There is no record of how the conviction of these women was obtained but it would be virtually impossible for the Sharia standard of proof (i.e. eye-witnesses of the act of sexual intercourse) to be obtained or that all the women convicted made a complete confession which they maintained even while punishment was carried out.

False accusation of Zina (Qazf):

Qazf – falsely making an accusation of Zina, is another kind of hadd offence. The unproved allegation that a person had committed zina constitutes this offence. Jurist of the sunni school hold that in order to constitute such offence, the person accused of zina must be a sane adult Muslim who is known to be a chast person. The punishment for zina is prescribed in verse 4-5 of Surah Noor, which as follows:

“Those that defame honorable women and can not produce four witnesses shall be given eighty lashes. Do not accept their testimony ever after, for they are great transgressors- except those among them that afterwards repent and mend their ways.”

Theft

Theft is defined as taking and carrying away without right a thing of value from a protected place. There is almost complete agreement on this definition among jurists, but they are not so unanimous concerning the value of the stolen property. According to Hanafi Jurists, the minimum value should be 10 dirham, but according to Maliki Jurists the minimum amount should be 3 dirham, while other schools do not prescribe any minimum amount. Things that have no value in Islam such as pigs, pork or wine, cannot be the object of the hadd offence of theft.

Keeping something that is found does not constitute theft. Further the requirement of stealth implies that any property taken forcibly does not amount to theft; and taking away from custody requires that the property should be taken out of the premises where the theft takes place.

Again, to establish the hadd offence the testimony of two eye-witnesses of the highest moral probity is required. Circumstantial evidence can never suffice to procure a conviction to the hadd offence although it can result in the application of a lesser ta’zir punishment.

The punishment of theft has been prescribed in Surah 37 verse 4, as follows:

“As for the man or woman who is guilty of theft, cut off their hands to punish them for their crimes. That is the punishment enjoyed by Allah…. But whoever repents and mends his ways after committing evil shall be pardoned by Allah.”

All views agree that for the commission of the first theft, the punishment is the amputation of the right hand from wrist. However, it is the punishment subsequent thefts that the jurists disagree. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In Pakistan, The Offences against Property (Enforcement of Hudood) Ordinance, 1979 provides for hadd punishments that, however, can be awarded if the very high evidential burden imposed under Islamic law is satisfied. The proof of theft liable to a hadd punishment (i.e. the amputation of the right hand for the first offence), requires that either the accused pleads guilty to the commission of the theft or that at least two Muslim adult male witnesses, other than the victim of the theft, who are regarded by the court to be truthful persons and who have in the past abstained from major sins, give evidence as eye-witnesses of the occurrence. Further, the statement of the victim of the theft has to be recorded before the statements of the eye-witnesses are recorded. However, in the Indian sub-continent India does not apply Islamic penal law at all.

Armed robbery (Haraba)

The offence hiraba is often translated as highway robbery, but which covers other offences committed by stealth. The punishment for hiraba has been declared in the Surah Maidah verse 33-34:

“Those that make war against God and His prophet and spread distorder in the land shall be put to death or crucified or have their hands and feet cut off on alternate side, or be banished form the country. They shall be help up to shame in this world sternly punished in the hereafter.”

There may be two types of situations. One, where the armed robbery has been committed without any killing and another, the armed robbery has been committed accompanied by killing. While in the former case, the punishment would be cutting off hands following the rules applicable in case of theft. That is to say for the commission of the first theft, the punishment is the amputation of the right hand from wrist. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In the letter case, the punishment would be cutting off the hands and feet in the opposite directions, and killing by crucifixion.

Drinking alcohol

The drinking of wine or other intoxicating liquids is also a hadd offence. It has forbidden by the Holy Koran in the following verse:

“Believers, wine and games of chance, idols and divining arrows are abominations devised by satan. Avoid them, so that you may prosper. Satan seeks or stir up enmity and hatred among you by means of wine and gambling, and to keep you from remembrance of God, and from your prayers. Will you not abstain from them?” (Surah 90 verse 5)

However, no punishment has been prescribed in the Koran for drinking alcohol. But from the tradition of prophet, it is found that prophet has inflicted different kinds of punishment upon those who were accused of drinking wine. In some cases he threw a fist of dust upon the face of the accused, in some cases he ordered to beat the offender. However exact number of lashes and mode of making them was not clear. Thus during the first caliph Abu Bakr, the issue came up, and it was decided in an ijma that the number of lashes should be 40. However, during the second caliph the issue again came up for review, since the number of drunken people increased alarmingly and upon consultation with the companion of the prophet, it was ultimately fixed at 80 lashes to make a parallel with the punishment of false accusation of unchastity. 

Some countries, such as Saudi Arabia, have also made the taking of hallucinatory drugs a hadd offence. The punishment for this offence is 80 lashes. Unlike the lashes inflicted in the case of ta’zir for Zina and for the false accusation of adultery, the lashes inflicted for drinking are not meant to inflict harm on the person but to shame him. Traditionally it is recommended that the lash be held between the first and the second fingers of the hand (i.e. lightly).

A further distinction is made in Islamic law between those crimes that involve a ‘right of God’ and those that involve only the right of an individual. In the first category fall the hadd offences (i.e. theft, illicit sexual relations, the drinking of alcohol, the unproved assertion of a chaste person’s immorality and apostasy from Islam). Crimes involving ‘the right of God’ can be compared to the concept of a crime in English criminal law: the court, once seized with the matter, cannot drop the case nor can the aggrieved party withdraw the case or come to an out-of-court settlement with the accused. The second category, namely offences against the right of an individual but not against a right of God, includes homicide and wounding. These are regarded very much like a tort in English law: the aggrieved party can accept compensation, insist on retaliation or pardon the offender.

Homicide

Islamic criminal law on homicide and wounding constituted a major reform of pre-Islamic tribal custom. Customary law demanded that a homicide was dealt with by revenge killings of not only the murderer himself but also of several of his fellowtribesmen, since tribal pride regarded only several members of the murderer’s clan

to be equal to the victim from their own tribe. The result was inevitably a blood feud between clans that would spread over many years. Islamic law introduced three major reforms.

uu Only the guilty party was liable for the crime and could be punished by being killed

or wounded.

uu A punishment was only imposed if the wounding or killing had been committed deliberately and wrongfully.

uu The facts of the crime and the guilt of the accused had to be established before the

ruler or a judge.

However, the principle of personal vengeance itself is preserved in Islamic criminal law: once guilt is established it is not the ruler or the judge who decides on the punishment of the guilty party but the victim or, in case of homicide, his heirs. The first option of the victim is to insist on retaliation. The second option is to waive the right of retaliation and to accept instead monetary compensation from the culprit. This sum payable to the victim or his heirs is called diyat. The amount of diyat depends on the status of the victim. For instance the blood-money payable for a woman is fixed at half the rate for a man; for a slave the amount was not fixed but determined by his value. Where a slave is killed by a free Muslim, only the Hanafis allow retaliation for deliberate homicide. The other schools restrict the punishment to the payment of blood-money to the owner.

The same principles apply to the killing of a non-Muslim: only the Hanafis allow for retaliation whereas all other schools and sects restrict the punishment to blood-money, which is reduced to a lower level than that of a Muslim. The third option is remission (to forgive the culprit and not to insist on either retaliation or blood-money).

The McLauchlan and Parry case

Aspects of the criminal law of Saudi Arabia – both substantial and procedural – have been highlighted by the case of Lucille McLauchlan and Deborah Kim Parry, two English nurses who were accused of murdering an Australian colleague. This was perhaps the most ‘open’ trial conducted under the criminal law of the Kingdom. The two accused were – for what is believed to be the first time –represented before the court by Saudi counsel. Counsel, in a submission to the court on their behalf, discussed the role of confession in Sharia. He stressed that the Islamic jurists would not recognize a confession obtained under duress whether physical or moral. He stressed that the Islamic jurists included in the concept of duress promises, threats and violence, irrespective of the degree of pressure in a prolonged interrogation, and every interrogation which was made in the late hour of the night. He also argued that under the Sharia a confession is nullified when: the interrogator conveys to an accused that his co-accused incriminated him or that

much evidence has been found against him at the crime scene etc and other similar tricks and deceptions if these contribute to the pressure and the breakdown of the accused and his admission of things which he did not do in order to get rid of his psychological and physical sufferings. Counsel argued that confessions should be corroborated by other evidence, because ‘confessions are the start of the evidence and not the end’.

He argued that in the case before the court the two accused must have been subject to duress as defined in accordance with the principles of the Sharia. Initially and while the trial was still in progress the brother of the victim was urged to accept blood money, diyat. At first he demanded retaliation which on a finding of guilt would have meant the execution of the two accused. However, intensive diplomatic efforts by the British government and other parties resulted in his agreeing to accept blood money. The trial itself was somewhat inconclusive, for while Lucille McLauchlan was found guilty of being an accessory to murder there is no report of any finding on the guilt of Deborah Kim Parry. It appears that there must have been a finding of guilt in both cases, however, as both the accused were pardoned by the late King Fahd and repatriated to the UK.

Honour crimes

In many countries of the Muslim world where Islamic criminal law does not apply, there are provisions in the statutory law to justify so-called honour killings. In Jordan, for example, article 34 of Law 16 of 1960 (the Penal Code) states that: A man who catches his wife or one of his female kinswomen who is within the prohibited degree of relationships having sexual relations with a man to whom she is not married and who kills or wounds both of them is exempt from any punishment. The law further provides that a man who catches his wife or a female ascendant or descendant or his sister with a male person in ‘an unlawful bed’ (presumably in bed with a man other than her husband) and who kills or wounds either of them will receive a reduction of his sentence. Provisions such as the ones in Jordanian law also appear in the laws of Iraq and Egypt. In 1999 King Abdullah of Jordan removed these provisions – which he considered offensive – from Jordanian law by decree when Parliament was not in session. The Jordanian Parliament, however, refused to ratify the decree. It should be noted that there are no provisions in Islamic law that justify honour killings. Honour killings are more a matter of tribal customs and the tribal customary belief that ‘the honour of the tribe rests in its women’.

Pakistan

The Hudood Ordinances

In most Arab countries modern penal codes have been established that depart from Islamic penal law. In the Indian sub-continent India does not apply Islamic penal law at all but Pakistan has introduced Islamic penal law for certain types of offences, for instance unlawful sexual intercourse. Traditional Islamic penal law is also applied in Saudi Arabia and some Gulf states. Pakistan introduced Islamic criminal law in 1979 in the form of three Ordinances, which are collectively referred to as the Hudood Ordinances. They are:

uu the Offences against Property (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Zina (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the Zina Ordinance, 1979), before it was amended in 2006, any sexual intercourse between a man and woman who were not validly married constituted a criminal offence. This meant that adultery, rape and fornication were all criminal offences liable to hadd punishments if the required evidential burden was met. Anybody who falsely accused somebody else of having committed Zina was liable to be punished under the provisions of the Offence of Qazf Ordinance, 1979. Qazf in traditional law is the hadd offence of falsely accusing someone of Zina and is punishable by 80 lashes.

The Zina Ordinance, 1979 had an effect on the legal status of women: if a woman alleged that she had been raped and the matter came to trial it could happen that the accused was actually acquitted because of lack of evidence. In this situation the woman faced an awkward legal position: in order to prove rape she had had to admit that sexual intercourse had taken place. After the acquittal of the accused the possibility of rape was excluded and the woman now faced charges for either adultery if she was married, or for fornication if she was not. The Zina Ordinance, 1979 had therefore made it quite dangerous for a woman to press rape charges since she might in fact end up as an accused herself.

In 2006, the Protection of Women (Criminal Law Amendment) Act was enacted in Pakistan. This act seeks to redress much of the injustice and hardship caused to women by the Zina Ordinance, 1979. First, the 2006 Act returns a number of offences from the Zina Ordinance back to the Pakistan Penal Code. The offence of kidnapping or abducting a woman in order to compel her to marry against her will or to force her into illicit sexual intercourse, or kidnapping a male in order to subject him to ‘unnatural lust’ and selling a person for the purpose of prostitution, have now been reinserted into the penal code of 1860.

Also, the offence of rape has been returned to the penal code. The offence of rape is so defined that marital rape becomes a criminal offence. Sexual intercourse with a female below the age of 16, even with her consent, is defined as rape. The punishment for rape may be death or imprisonment for up to 25 years, with a minimum of 10 years. The offence of Zina is defined as ‘adultery’ if one of the parties is married at the time the intercourse occurs and ‘fornication’ if they are not. The 2006 Act inserts a new offence of fornication into the penal code. The offence is punishable by imprisonment for up to five years and a fine not exceeding 10,000 Rupees. The new offence is, however, safeguarded from abuse by the creation of a new offence of false accusation of fornication. The new provision provides that anyone who brings or gives false evidence of fornication shall be punished with imprisonment up to five years and a fine of up to 10,000 Rupees. Very importantly, once a prosecution for fornication results in an acquittal, the trial judge can, in the same proceedings, try and sentence the person bringing the charge.

The offence of adultery is the only offence retained by the Zina Ordinance itself. It is an offence for anyone to make a false accusation of adultery. The punishment for the offence follows the punishment of fornication in the penal code. A new definition of ‘confessions’ has been added to the Ordinance. The new definition serves to prevent women being placed in the invidious position of having been deemed to have ‘confessed’ to Zina when they brought an accusation of rape before the court, which the court found unproven.

The definition of what constitutes a valid marriage has also been deleted. The original definition had caused hardship to many women and resulted in confusion regarding the interpretation of Section 7 of the Muslim Family Laws Ordinance 1961. All too often, a husband would repudiate his wife by talaq (see Chapter 10) but would fail to comply with the requirement of ‘notice’ enjoined by Section 7 of the Ordinance. The woman would believe herself divorced and re-marry, whereupon the first husband would bring a charge of Zina against her, citing his failure to give notice of talaq as required by law and that, in effect, the woman was still his legal wife. The 2006 Act removes all reference to taz’ir punishments. The result is that now, under the Zina Ordinance, adultery may only be proved if the act itself is witnessed by four pious Muslim eye-witnesses, or if the accused confesses to the offence, for which the only punishment is death by stoning.

Finally, the 2006 Act amends the procedure governing sexual offences under both the penal code and the Zina Ordinance. Any complaint of adultery must be lodged directly in court, not made to the police. The judge hearing the case must examine on oath the complainant and at least four adult male eye-witnesses, who the court has established to be truthful. The witnesses must testify on oath to the committing of the act of penetration, i.e. the strict evidence required by the Sharia. Moreover, the offence of qazf in the Qazf Enforcement of the Hadd Ordinance 1979 has been amended. If the prosecution fails, punishment for qazf is now virtually automatic. If a prosecution for adultery fails and the judge is satisfied that the offence of qazf has been committed, he shall not require proof of qazf and will proceed to pass sentence against the complainant. Punishment for the offence is 80 lashes. The testimony of a person committed of qazf is thereafter inadmissible in any court proceedings. The procedure regarding allegations of fornication follows that of allegations of adultery, but only two actual eye-witnesses are required. The complainant and the eye-witnesses must be examined in court before the judge can issue a summons for the accused to attend the court.

The law of Pakistan now expressly recognises honour crimes as criminal offences. The amended Article 311 of the penal code provides a mandatory sentence of 10 years imprisonment if the offence is committed in the name of, or on the pretext of, honour. A compulsory sentence of imprisonment must also be given to anyone convicted of an attempted murder or assault in the name of honour.

Blasphemy

Article 295-C of the Pakistan Penal Code 1860 provides that:

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (Peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

The Federal Shariat Court has held that, despite the discretion in the statute accorded to the trial judge, the only punishment for blasphemy is death. Although there have been many cases brought under the blasphemy provision and convictions obtained, what actually constituted the blasphemy is not reported, presumably because this would be to repeat the blasphemy.

The Christian community and the Ahmadiyyas (the followers of Mirza Ghulam Ahmad (1835-1908) who consider themselves as Muslims, although they are not so regarded under the law of Pakistan) have been the main sufferers of the blasphemy laws. Pakistan also makes it a criminal offence for a non-Muslim to make himself out to be a Muslim. Following an amendment to the Pakistani constitution, members of the Ahmadiyya sect are not regarded as Muslims although they regard themselves as such.