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 (17:37)

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"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)

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"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 reality.

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)

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"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 punishments.

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.

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(2:179)

b) JUSTICE _ It means that while deciding a case, the status of the criminal should not affect the demand of justice in any way; (2:178)

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"Free for the free and slave for the slave" shall remain its principle.

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 accused.

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: (4:22)

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"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)

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"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 atonement.

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 said:

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(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 on 'Testimony').

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)

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"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)

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"He knows the dishonesty of the eyes and that which the bosoms hide."

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)

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"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.

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