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12-06-2011, 08:18 PM
Q. Discuss the classification on crimes under Islamic law. (2003)
Q. What crimes are regarded as Hudood crimes. Discuss in detail. (1994, 1996, 2003/A)
Q. Define and discuss all the seven crime of Hudood in detail. (2002)
1. Introduction
There are a number of rights that may be affected by a criminal act, such a rights of Allah, rights of individuals, and rights of state, Muslim jurists classified crimes as applied throughout Islamic history appears to present three categories Hadd, Tazir and siyasah.
2. Meaning of crime
In Arabic, it is termed as Maasiat
“It may be defined as an infringement of public right.”
3. Elements of crime
Following are the main elements of crime.
(i) There must be a text to forbid and punish a crime.
(ii) The criminal act is either by commission or omission.
(iii) The criminal must be major for his liability.
4. Classification of crime in Islamic law
In Islamic law, crimes have been classified on the basis of violation of following rights.
(I) Violation of right of Allah
If the right of Allah is violated, the crime comes into the category of Hudud.
(II) Violation of right of individual
When the right of the individual is violated, the crime comes into the category of tazir.
(III) Violation of right of state
When the right of the state is violated the crime comes into the category of siyasah and the procedure followed is that of Siyasah.
5. Crime of Hadd
(I) Meaning
Hadd means a punishment which is fixed and enjoined as the right of Allah.
(II) List of Hadd offences
Some jurists list seven hadd offences.
(i) Zina (Unlawful sexual intercourse)
Hanafis define the offence as “Intercourse without milk or suhbat milk.” Milk arises from a valid marriage or in the case of males, ownership of a female slave. The shubat milk is a mistake of fact of ownership and arises from an irregular marriage, marriage during iddat etc.
(a) Proof of Zina
The offence is proved through the testimony of four eligible witnesses who give evidence of the actual act of penetration. Or
“The accused must confess four times”.
(b) Punishment of Zina
In case of Muhsan;
In case of Muhsan (Married or once married), the punishment for Zina is rajm or death by storning.
In case of non-Muhsan;
In case of non-Muhsan, the punishment for Zina is 100 stripes.
(ii) Qadhf (False accusation of unlawful sexual intercourse)
Anyone who is competent and adult whether male or female, Muslim or not, slave or free is liable for Qadhf, if he falsely charges a chaste person with unlawful sexual intercourse (Zina) or charge one of being illegitimate. Thus the offence can be commited by making such a case the against a dead person and such a case the aggrieved person would be the children.
(a) Proof of Qadhf
The offence is proved by confession or by testimony of two adult male free Muslims.
(b) Punishment of Qadhf
The punishment of Qadhf is 80 stripes for a free person and forty (40) for a slave.
(iii) Shrub (Drinking of wine etc.)
It is a consumption of intoxicating liquor, whatever the quantity consumed, which is described as shrub, and made punishable.
(a) Proof of Shurb
The crime is proved by the testimony of two adult male Muslims who fulfil the requirements of tazkiah-al-shahood.
(iv) Sariqah of Theft
The offence of sariqah or theft is committed if the offender takes from a place of safe custody (Hirz) by stealth property of the value of one diner according to the Hanafis and ¼ dinar according to the majority in which he has either the right of ownership or resemblance of ownership.
(v) Hirabah (Robbery through the force of Arms)
It is also referred as a major theft. It is a serious offence having different penalties varying with the nature of the case. It may be divided into robbery of travelers who are far from aid, and armed entrance into a private home with an intent to rob it. Punishments range from amputation of the right hand and left foot for the first offence and amputation of the left hand and right foot for the second offence.
(vi) Apostasy (Riddah)
Apostasy occurs when the offender rejects Islam by commission or omission with the awareness of penalty which is death for men and physical punishmet for women.
(vii) Rebellion (Baghi)
Rebellion or Baghi of the state is also considered by some jurists to come into the Hadd.
6. Crime of Tazir
(I) Meaning
“Punishments that are the discretion of the judge when the offence is related to a private injury are called Tazir.”
(II) Classes of offences
Offences under Tazir may broadly be divided into following classes.
(i) Crime which belong to the genus of the offences punishable under hadd and that fall short of the act that fall short of the act that entails hadd i. e. preliminaries to unlawful intercourse, (Zina).
(ii) Crimes that are normally punishable under Hadd, but in which by reason of mistake of law or fact or other reason the penalty is replaced by Tazir.
(iii) Crimes which are not punished by Hadd but fall under the provisions of the law. E. g. usuay, slander etc.
7. Crimes of Siyasah
In Siyasah, the offences are mainly against the state and public order. The ruler or the state may determine the offences and laid down the provisions related to siyasah but such provisions shall conform to the principles of shriah. In Siyasah offences or crimes, the ruler or the state may determine the standard of evidence.
8. Conclusion
To conclude, I can say, that at present time crimes are classified into hadd and Tazir, as today the distinction between tazir and syasah is not maintained and Muslim jurists merge these two areas with the standard of proof and modes of procedure being determined by the ruler.