Chapter-16 The Relaionship Between Crime and Punishment
The details of the Quranic
Code of Laws have all been stated but often it is
being asked, "What is the relationship between crime
and punishment and what is the Quranic philosophy of
punishment" In reply to this question I had
published a short treatise in the monthly
'Tolu-e-Islam'. I deem it proper to include in this
book the relevant parts of that article, so that
this topic may become complete from this angle of
vision as well.
Crime and Punishment.
1. In the Holy Quran one finds two kinds of
injunctions; (i) Moral, and (ii) Punitive. Punitive
means those laws, the violation of which becomes a
social crime and Moral means those laws which cannot
be categorised as a social crime. For example
"do not walk arrogantly on the earth." The Quran ordains
that he non-observance of this injunction is not a social crime. On the other
hand there is injunction in which it is said: (17:32)
"Do not go near adultery or fornication". It is apparent
that the non-observance of this injunction is a social crime.
However, the above said division is arbitrary only to understand the question
under view, otherwise the basis of every Quranic Injunctions aims at correction
and importance of the morals and 'morals' encompasses all the means of nurture
of human personality.
2. The Punitive injunctions are also of two kinds:
(i) those in which the punishment has also been prescribed by the Quran, and
(ii) those, the punishment of which is left to the Islamic Government to
determine as per exigencies of particular circumstances. For example, in the
case of intoxicants (wine), its prohibition is ordained, but the punishment has
not been prescribed for its non-observance.
It is an issue which warrants deep pondering that out of those injunctions for
which the punishment has not been prescribed by the Quran, which ones can be
included in the list of Punitive laws. It is apparent that no single person can
answer this question nor it is the right of any single person to declare a
person liable to punishment on the basis of the non-observance of a Quranic
Injunction; its decision rests with the Islamic State. This also must be kept in
mind that such decisions made by the Islamic State shall be liable to change as
and when needed, based on the exigencies of the changing circumstances.
This is not applicable to injunctions alone; even those issues described by the
Quran as principles or in the matter of limitation [Hudood] laid down, by the
Quran; it is only the Islamic State that can declare unlawful their violation in
various forms. I have not used the word 'limitations' in the sense of
punishment, rather, I mean by it the sphere of freedom to act, the trespassing
of which is disallowed. The limits and the principles are the two facets of one
3. It is the duty of an 'Islamic Order' to create such an
atmosphere within the society, in which an individual considers each of his
basic rights and each of his means of living perfectly safe in such a manner
that he may not have the least anxiety or fear about it. Creation of such an
atmosphere is the necessary result of the Quranic Social Order. The Quran says
that in this order the state of the individuals shall be such that: (2:38)
"On them there shall be no external fear nor shall they
have any internal grief."
Such an atmosphere comes into existence by educating the people and freeing them
from the worries of meeting the basic necessities of life, according to the
Permanent Values of the Quran.
But in spite of all this, there can exist such people in society as are
psychologically unsound and their insanity can take away the sense of comfort
and satisfaction from the society. Such a sick person has to be treated and
unless he does not recover completely from this condition, it is necessary to
protect the society from the dangers created by his insanity. A majority of them
can be treated by improvement in their psychological correction, but in some
cases fear of punishment has to be resorted to as a final measure. There are
many psychological patients who can be treated by putting in them the sense of
fear. This type of treatment is called 'punishment'. Its objective on the one
hand, is the correction of the criminal, and on the other, the rectification of
those in whose subconscious mind the germs of crime are festering. The concept
of punishment for revenge is un-Quranic.
The above described is one objective of punishment. The other objective is the
compensation for the loss suffered by the person inflicted on by the criminal.
For example, a person has committed theft in somebody's house, and the court has
punished him with ten years imprisonment; this shall not compensate the loss
suffered by the victim. Justice demands that the loss be returned to the owner.
If recovery could not take place, let the Social System itself compensate the
loss in kind or by paying its cost. According to the Quranic concept of "Crime
and Punishment", the plaintiff is not in fact the complainant against the
criminal, he is rather a complainant against the government or Social System. It
is the Social Order that had contracted to protect his property and if somebody
has laid his hands on his property, it shall mean nonfulfillment of the contract
on the part of the Social System; and as such the offender is the Social System
and not that particular person who had committed theft. It is up to the Social
System to decide whether it compensates the loss by itself or gets it done by
the offender; it is not the concern of the plaintiff. It is the duty of the
Social System to stand by the victim or his heirs and to become the protector of
the plaintiff and his heirs: (17:33) If the Social Order does not compensate the
loss of the offender, how can it become his protector and how can it claim to be
his helper It is true that every loss cannot be compensated by the payment of
money, yet the Social Order has got to provide compensation in any possible way,
(except when the loss is the result of one's own negligence or carelessness). In
addition to providing compensation, it shall be the duty of the Social System to
make arrangements that such things do not happen again.
4. It has been stated above that the object of penal
punishments is the treatment of the psychologically sick people. But the
foremost condition for the success of the psychological treatment is that the
patient develops a realisation that he has done a wrong. The Quran explains that
if he does develop a feeling of reproach, you can expect that he shall mend his
ways. In such an event the Quran forgives him instead of inflicting punishment,
and the authorities shall keep a watch that he corrects himself and shall help
him in his self-rectification. This is the reason that the Quran has made
provision for forgiveness (and thus correction) before the punishment. It
proposes punishment only when no possibility of correction is left in the
criminal except through punishment.
5. The Holy Quran proposes corporal punishments. It does not
send the thief to prison, in which case the offender himself goes on getting his
food and clothings but his wife and children die of hunger i.e. members of his
household suffer instead of him. As a matter of fact, the fear, which can cause
the habitual offenders to mend their ways, or which can keep the potential
offenders away from committing crime, can only be aroused by corporal
6. Now look at the principle which, according to the Quran, are
basic in this respect:
a) QISAAS _ It does not mean to inflict
punishment on the offender, rather it means to pursue the criminal in such a way
that he does not remain unpunished. It means that in the Quranic System, no
crime shall remain untracked. The Quran calls a flawless and firm system of
investigation, a means of providing security and safety of the social living.
b) JUSTICE _ It means that while deciding a
case, the status of the criminal should not affect the demand of justice in any
"Free for the free and slave for the slave" shall remain
c) The punishment for a crime should be proportionate to the
nature of the crime, not more. (42:40) and that too, in case where there is no
chance of the offender's correction.
d) Until a crime has been established, the accused should be
taken as innocent and the society ought to have a favourable opinion about him.
An incident in Surah 'An-Noor' (24th Chapter of the Quran) sums it up as follows
"Some people in Madina brought an allegation against a chaste woman which the
people spread it further. On this, the Quran instructed that after hearing this
scandal your first reaction ought to have been that (24:12-16) it is a
fabrication, an open and grievous calumny".
It provides a permanent guidance, not to have an adverse opinion about the
e) If a crime has been committed prior to promulgation of a law
declaring it as such, it should not be considered a crime. It other words the
application of a law cannot be made retrospectively; this shall be applicable
only after its enforcement. Regarding many such injunctions the Quran has said:
"Except what has foregone". i.e., what happened before the
enforcement of law, shall not be accountable.
f) An act not committed willfully shall not be considered
cognisable. It is said in Surah 'Ahzaab' (33rd Chapter of the Quran): (33:5)
"There is no blame on you if you make a mistake therein:
(what counts) is the intention of your hearts."
But carelessness (inattention) is also a crime in itself and punishable, that is
why the Quran has also prescribed punishment in case of murder by mistake;
although it is not as severe as for premeditated murder; rather it is by way of
g) Some small mistakes on the part of people who always avoid
big crimes are pardonable. In Surah An-Najm, (53rd Chapter of the Quran) it is
(53:32) for those who avoid major sins and shameful deeds,
falling into small errors, is pardonable.
h) While prescribing punishment, the offender's intellectual
level, education and upbringing, and social environments must be kept in mind.
It is on this account that the Quran had ordained punishment for fornication
with women (of that period) half that of the free believing women (4:25),
because in view of the circumstances under which they were brought up, high
morals could not be expected from them. On the contrary the wives of the Rasoole
were told that if any one of them commits a crime, their punishment should be
twice that of an ordinary believing woman. (33:30)
i) The kind of Social Order that the, Quran establishes, and
the way in which its individuals are brought up, it expects of them to come
forward voluntarily and accept their slips if ever they occur, and to tell the
truth, even if it goes against themselves (4:135). In this verse, the Holy Quran
has presented such a lofty principle regarding evidence, in the presence of
which there remains no difficulty in the administration of justice. (See chapter
7. The Holy Quran aims at correction of the criminal: therefore
it adopts all possible means to stir up in his mind the sense of contempt for
crime; and in this connection presents an extraordinary (and strange) principle.
It says: (4:111)
"And if anyone commits an excess or an oppression, he does
so against his own self". That is, if anyone commits crime or excess against
anybody, he thinks in his own mind that he has harmed somebody else, but in
reality he commits the crime against his own person and thus harms his own self.
Here it is said that it is the criminal's own personality that is affected and
that it cannot be made good by an external punishment. It also means that if the
criminal, somehow or the other, escapes punishment, even then he cannot escape
the harm which he has inflicted on his own personality; because Allah's Law of
Requital is such that: (40:19)
"He knows the dishonesty of the eyes and that which the
Such are the teachings which make a criminal feel guilty and by so doing provide
him means for self-rectification.
Yet another question arises here and it is, that after a criminal gets
punishment by a court of law, does he escape accountability in the life
Hereafter For this we ought to comprehend what is meant by accountability in the
Hereafter The effect of every human action (even an idea) is engraved on his
'Self'; and his life Hereafter takes shape on the basis of these accumulated
effects. One effect of crime falls on the society and the other on his own
'self'. Punishment by the court of law can annul the crime against the society,
but it cannot obliterate the effect of the crime on his own personality. He
himself shall have to make it good. For it, the first step is the feeling of
guilt which results into Tauba _ or his determination to keep away from the
crime. The second step is that of correction; which means to perform such
constructive deeds which can compensate the loss which resulted from the crime
he had committed: (11:114)
"Those deeds that are good, remove the effects of those
that are evil."
The is the basic principle of the Quranic Law of Requital. As a matter of fact,
one who firmly believes in Allah's Law of Requital seldom commits a crime.