Concept Of Murder In Islamic Law And Its Comparison With English Law

Abstract

Despite the universal hatred to the crime of murder, it is the unique feature of Islam that equates the killing of an innocent human being with the murder of whole mankind. Today many secularists uphold the dignity of human life so much that they stood against any sort of capital punishment for murder. An attempt has been made to show a comparative picture of criminality of homicide and its variant punishments between the concept of homicide under Islamic law and English law. According to the research of this assignment, the Laws of Islam have taken the issue of homicide more seriously and provided the heirs with more options to meet their grievances compared with the existing Common or English laws. Concept of Homicide (Murder) Under Islamic Criminal Law

Introduction

Homicide (Qatl) is an action causing the detachment of the soul from a human being. Islam considers murder to be the most heinous crime against a person. The blood of human being is sacred in Islam. Prophet (PBUH) reportedly stated that “the first act of Allah on the Day of Judgement would be to punish murderers by making them suffer the torment of Hell” Prophet (PBUH) at his last pilgrimage declared that “the blood of human being, their property and prestige are as sacred as the city of Harram of Makkah and the day of Arafah.”

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Undoubtedly the greatest crime known to mankind is “murder” It has been punishable under all Systems of Law since early in the history of mankind and throughout the ages up to the present. Homicide (Murder) in Pre-Islamic Arabia: One distinctive feature of Arabian societies before Islam was hostilities and a desire for revenge. There were different clans (grouping of close relatives and families) There was always tension between one clan and another. There was no criminal law in operation but private revenge. In the event that somebody outside a clan murdered a member of that clan, it became incumbent upon the clan members to avenge his blood. The only possible way of providing the required blood was to go on a vengeance spree and therefore, consequent feud lasted for years.

From Vengeance Spree to Just Retribution: Islam radically renovated the default system and replaced it with another which, advocates justice and fairness technically referred to as ‘Qisas’ Foundation of Islamic Criminal System: The following verses, even though revealed on different occasions, are the foundation of the new Islamic Criminal System; “O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, mand compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.”

“In the Law of Equality there is (saving of) Life to you, o ye men of understanding; that ye may restrain yourselves.” “Never should a believer kill a believer; but (If it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased ’ s family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (Is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to All ā h for All ā h hath all knowledge and all wisdom.”

“We ordained therein for them: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal. But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what All ā h hath revealed, they are (No better than) wrong-doers.”

The above verses clearly show that under the Islamic Criminal Justice Regime no life is worthless, regardless of the social, religious or gender status of the individual. Islam minimized the evil system by introducing three most salutary restrictions;

• a. Only the guilty party and not his fellow-tribesmen was liable to be killed or wounded.
• b. If the homicide or wounding was regarded as both deliberate and wrongful
• c. The injured party (in wounding) or his nearest heirs (in homicide) bring the matter before the judge.
• d. It is in their absolute discretion to pardon the culprit altogether, to settle the case out of Court, to accept the payment of blood-money instead of retaliation, or to claim their right of appropriate retaliation in person.

Qisas Crime (Murder)The offence of homicide is not a Hudood offence under the Islamic law but an independent offence, as it involves violation of the right of Allah and the right of man. In Islam individual right, however, overrides God’s rights in the sense that considerable discretion is given to the victim or his/her close relatives to seek retribution i-e Qisas, accept monetary compensation (Diyat) or forgive and waive both. The bottom line is that homicide under the Islamic criminal justice is a legally compoundable offence.

Quranic Verses Al Quran states; ”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.” Qatl or murder of man by a man is no doubt the greatest crime of the society, it has been denounced in the Quran; “And do not kill anyone which Allah has forbidden, except for a just cause. And whoever is killed intentionally with hostility and oppression and not by mistake), We have given his heirs (wali) the authority to amend Qisas (Law of Equity in punishment) or to forgive, or to take Diyat ( Blood-money) but let him not exceed limits in the matter of taking life(i-e. he should not kill except the killer only); for he is helped by the law.”

Hadith Prophet (PBUH) has declared homicide (murder) as the greatest sin. He also said “The greatest sins are to associate something or someone with Allah and to kill human beings.”

Classifications of Homicide under Islamic Law

According to Islamic Law killing a person will only entail punishment or financial liability if it is committed unjustly or unlawfully (zulm). This means that the acts of killing or of inflicting injuries must have been committed without a legal justification. Such a justification can be the fact that the killing was a lawful execution, or that it was justified by the interest of the Muslim community as a whole, such as;

• killing of Muslims used as shields by the enemy during a siege or a battle.
• Killing a person is also allowed if he lacks legal protection, as in the case of apostates
• Killing in self-defense
• Killing of renegade from Islam
• Killing of a man who insults Allah or His Prophet (PBUH)

Classification of Unlawful Homicide

Qatl-e-Amid Qatl-e-amd is intentional, deliberate well designed and premeditated homicide. Qatil-e-amid is one of the types of unlawful Qatl. To constitute Qatl-e-amid it is not necessary that injury should be caused with intention to cause death. As intention is completely a subjective matter which is only known to Allah Almighty and the accused, therefore to ascertain whether the killing was calculated or not, the juristic propositions are as follows;

• The size and nature of the object used in the killing should be considered;
• The body part on which the blow was delivered should be examined.
• The state of health and physical strength of the deceased should be taken into full account.

Qatl-Shib-Amid: Qatl-Shib-Amid is the second and lesser degree of Culpable homicide 'not amounting to murder' i-e death as a result of an action not always but sometimes fatal.

Qatl-e-Khata: Qatl-e-khaṭa or accidental causes death of a person without any intention to cause death or harm. Although the cardinal principle in Islam is that human error is not punishable as stated in the Quran: “There is no blame on you if you make a mistake therein: what counts is the intention of your heart.” And the Hadith: “My Ummah are forgiven from acts of mistake; the loss of life still has to be remedied as life doesn’t go without recompense in Islam.”

All these classes are based on the texts of the Quran and the Sunnah and therefore agreed upon by the jurists. However, some jurists have tried to add more classes in homicide; Qatl Misl-e-Khata or equivalent to accident, e.g. someone falls upon another in his sleep and kills him; and Qatl bis Sabab or indirect killing, e.g. a person digs a well and someone falls into it and dies as a result. As these classes are not based on any divine text, jurists are of divergent views on these issues and, therefore, those rulings do not represent the universal laws of Islam.

Punishment for Intentional Homicide (Qatl-e-Amid) In the case of Qatl-e-Amid the murderer faces several punishments;

1. Moral Punishment i.e. hell as the dwelling place in the hereafter
2. Legal Punishment: Qisas or equal punishment (unless forgiven by the heirs of the victim for blood-money or for nothing) Punishment for Accidental Homicide (Qatl-e-Khata) In case of Qatl-e-Khata; punishments prescribed in Islamic Law are as follows;

• a. blood money and al-kaffara; if the victim is a believer residing in the Islamic state
• b. al-kaffara; if the victim is a believer residing in an enemy territory
• c. blood money and expiation; if the victim is a non-believer residing in a state with which the Islamic state has a peace treaty
• d. blood money and expiation; in case of mistaken killing of a non-believer residing in an Islamic state

After the consensus of the jurists if a believer accidentally kills a non-believer in a territory with which the Islamic state has no peace treaty, then neither blood-money nor expiation is legally binding upon the killer.

Punishment for Quasi-intentional Homicide (Qatl-Shib-e-Amid) Whoever commits quasi- intentional homicide shall be liable to Diyat and Qisas shall not be applied upon him. The Prophet (PBUH) is reported to have said; “The blood-money for quasi-intentional killing is severe like that for deliberate killing, but the perpetrator is not to be executed” Diyat: In Islamic legal terminology Diyat” is the name for the amount of compensation paid to the next of kin of the deceased as a substitute for Qisas in case of murder.

Purpose of Diyat

The purpose of diyat is manifold. Homicide puts an abrupt end to the life of the victim, whereby the victim’s family would be badly affected by this act, mentally, psychologically and economically. Thus, the aim is not only to calm the feelings of the legal heirs for revenge but also to console the victim’s family and compensate for the loss they suffer by such an offence. It has a punitive component as the Shariah uniformity fixes its amount to be equal for all victims, irrespective of their special status gender variations and other distinctions.

The amount of Diyat

The amount of diyat and the details of its payment are specified by the Sunnah; “The diyat for killing a soul is a hundred camels.” This was applied until Hazrat Umar became the Caliph and ruled that camels had become expensive. So he fixed the value of diyat upon those who possessed dinars as 1,000 dinars and on those who possessed dirhams to be 10,000 dirhams. The camel is still taken as the standard criterion and its equivalent market price in monetary terms is paid as diyat. The weight of gold currency (dinars) and silver currency (dirhams) as used by the Prophet’s Community have been declared to be basic commodities for the purpose of calculating diyat because they are still current and available in a form of pure gold and silver.

Concept of Homicide in English Law and It’s Comparison with Islamic Law

In terms of definition of homicide, there is no fundamental difference between Islamic law and English law. In English law, homicide is defined as” the killing of a human being by a human being.” Though Islamic law has divided the legal status of homicide into five categories;

• Obligatory
• Recommended
• Permitted
• Disapproved and unlawful

Whereas English law divides it into two broad categories;

• Lawful Homicide
• Unlawful Homicide

Lawful Homicide is further classified into;

1. Excusable Homicide: In which the bad character or bad intention of the person committing the crime cannot be inferred. It includes;

   I. Death caused by accident

   II. Death caused by child or a person of unsound mind

   III. Death caused by an involuntary intoxicant person

   IV. Death caused by a person in good faith for the benefit of the person killed

• (b) Justifiable Homicide: It may be committed by;
• (i) a person bound, or by mistake of fact believing himself bound, by law
• (ii) a judge acting judicially
• (iii) a person acting in good faith and in pursuance of a judgment of a court
• (iv) a person doing lesser harm in prevention of greater harms
• (v) a person acting in private defence

In English law, as applied in Pakistan; Unlawful Homicide is classified as

1. Culpable homicide amounting to murder
2. Culpable homicide not amounting to murder
3. Abetment of suicide (if suicide occurs)
4. Homicide by negligent act.

Culpable Homicide Amounting to Murder Equivalent to Intentional Homicide Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death.

From this perspective it may be likened with ‘intentional homicide’ in Islamic law. In both, intention plays the central role. Culpable Homicide not Amounting to Murder: Culpable homicide will not amount to murder, if done under ‘grave and sudden provocation’. Though Islamic law exempts ‘lunatics’ from legal liabilities, it does not accept the excuse of grave anger to escape criminal liability of murder. The criminal is exempted from the liability of murder in English Law; Whereas in Islamic law both are to be held responsible for intentional murder.

Target- Accidental Killing or Mere Unlawful Act? English Criminal Law does not recognize wrong “target” as homicide at all. According to English law, it is merely an unlawful act which entails very little punishment. On the other hand, in Islamic law it is accidental killing in which offender is liable to pay blood-money unless forgiven by the heir of the victim. Abu Dawood defines quasi-intentional homicide in following words: “When the devil incites people to do evil, and blood is shed blindly, with neither malice aforethought nor bearing weapons.” Punishments for Homicide: The above discussion reveals that the English Law do not treat the criminality of homicide as seriously as is treated in Islamic law. So many acts have been driven out of the ambit of murder and made into mere unlawful acts. It is all at the definitional level. The lack of seriousness is more evident, when the issue of punishment comes forward. Even culpable homicide amounting to murder is to be punished with “death, or imprisonment for life, and shall also be liable to fine”

Culpable homicide not amounting to murder is lighter than that of murder. If the act is done with intention of causing death, the punishment is imprisonment for life, or imprisonment for any term, and fine. If the act is done without any intention to cause death, the punishment is imprisonment or fine, or both.

It is the common feature of supporters of secular laws that they portray themselves to champion of the dignity of human life. But when the punishment of the criminals who have showed no respect whatsoever to the dignity of human life comes forward, they always propose very soft punishment. By taking lenient position in favour of the criminals, they are, in fact degrading human dignity. Prerogative of Mercy of the Crown/Head of the State: Another dissimilarity between the Criminal law of Islam and that of English Law is that in the former it is the heir of the victim, not the head of the state or anybody else, who is empowered to demand Qisas or be satisfied with blood- money, or to forgive for nothing; while in the latter the heirs have been deprived from such rights and instead the head of the state has been vested with the power to pardon any criminal without showing any reason whatsoever.

Conclusion

Both Islamic law and English or Common Law treat homicide as a heinous crime. In punishing the criminal, the former authorizes the heir of the victim, not the Crown/State, to choose any of the three options Qisas, Diyat (blood-money), or Afuw (forgiveness) while the latter considers it as a crime against State and empowers the head of the state to pardon the criminal at his will with the exclusion of the heirs of the victim. In quasi-intentional homicide, both Islamic law and the criminal law of the country exempt the criminal from death penalty, but the former imposes blood-money in favour of the heirs of the victim (unless remitted) and the latter prescribes imprisonment for different terms.

References

Books

1. The Quran.
2. The Penal Code 1860
3. Crime and Punishment in Islamic Law (Muhammad Hashim Kamali)
4. Crime and Punishment in Islamic Law Theory and Practice from the Sixteenth to the Twenty-First
5. Century (Themes in Islamic Law) by Rudolph Peters
6. Principles of Islamic International Criminal Law A Comparative Search by Farhad Male
7. Gender Justice in Islamic Law Homicide and Bodily Injuries by Musa Usman Abubakar
8. Developments in the English Law of Homicide by Ronald H. Mausdsley

E-Sources

1. https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter
2. https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter