Background reading material
for the medicine & fiqh session for 3rd year medical students held on 4th March 2000 at the Kulliyah of Medicine, International Islamic University, Kuantan by Professor Omar
Hasan Kasule Sr.
1.0 CRIMES AGAINST RELIGION
A. Apostasy, riddat
B. Breaking The Oath, naqdh al yamiin
C. Abandoning obligatory Worship, tark al ibaadat
D. Sorcery and Superstition, sihr & sha'awadhat
E. Chauvinism, 'asabiyyat
2.0 CRIMES AGAINST LIFE
A. Homicide, qatl
C. Feticide & infanticide
E. Body injuries, juruuh
3.0 SEXUAL CRIMES
A. Adultery, zina
B. Unnatural sex acts, liwaat etc
C. False accusation of adultery, qadhf
E. Other sexual crimes
4.0 CRIMES RELATED TO PROPERTY
A. Theft, sariqat
B. Robbery, qatiu al tariiq & ghasb
C. Bribery, rashwat
D. Fraud, Forgery, And Cheating, ghish
E.Illegal income, riba etc
5.0 OTHER CRIMES
A. Rebellion, 'isyaan, baghyu
B. Aggression, 'udwaan
C. Intoxication, khamr
D. Treason, khiyanat al ummat
E. Anti-social behavior
1.0 CRIMES AGAINST RELIGION
Apostates are sane adults who voluntarily leave Islam. They are advised and are asked to repent. If they refuse
to return to the fold of Islam after all these attempts, they are convicted of apostasy.
B. BREAKING VOWS and OATHS, nudhuur & aymaan
A vow is made to affirm that a certain action will be taken. It is a more serious level of a promise or undertaking.
The prophet forbade vows because they are associated with bad consequences (BG 1180). Humans should be aware of their limitations
and should not make promises or undertakings lightly. The expiation of a vow is the same as that of the oath: feeding or clothing
10 indigents, masaakiin, of fasting three days. Sometimes the person making
a vow includes its expiation in the vow. In that case the expiation is what was specified (BG 1181).
A vow that involves disobedience of Allah, breaking a relationship or to doing something over which a human has
no control need not be fulfilled (BG 1181, BG 1184). A vow to undertake an act of ibadat can be expiated if the act can not
be carried out (BG 1182). A vow by a deceased can be fulfilled after death on their behalf (BG 1183). Vows before Islam are
recognized as valid and have to be fulfilled (BG 1187).
An oath is taken to affirm that the oath-taker is speaking the truth. Making a false oath is a major sin (BG 1176).
Oaths are made in the name of Allah only (BG 1171). It is forbidden to swear by anything else such as parents. The oath is
interpreted according to the intention of the oath maker (BG 1170). Using the formula 'inshallah' nullifies accountability
in an oath (BG 1174). It is prohibited to stick to an oath after finding out the truth. It is better to break the oath and
make atonement (BG 1173). The atonement is feeding or clothing 10 indigents, masaakiin, or fasting three days. There is no
atonement for unintended oaths (BG 1177).
C. ABANDONING OBLIGATORY IBADAT, tark al ibaadaat
It is crime to be neglectful or lazy about the obligatory duties of salat, zakat, saum, and jihad. The situation
can be corrected by advice and admonition. Disciplinary punishment, ta aziir, may be necessary in recalcitrant cases. Neglect
or abandon of these duties arising out of a belief that they are not obligatory is considered a rejection of Islam. Deliberate,
persistent and consistent refusal to perform these obligatory acts of ibadat is apostasy, riddat. Measures described for apostasy,
riddat, will then have to be used. Rejection of salat is kufr (, 30:31, 96:9-18). Refusal to pay zakat is also kufr (9:5, 9:7-11, 41:6-7).
The establishment of salat and payment of zakat are the foundations of the community and their abandoning indicates abandoning
the Muslim community and the protection that is due to members of that community (MB 14).
D. SORCERY and SUPERSTITION, sihr & sha'awadhat
Sorcery is a major sin (2:103, 113:4) with severe penalties.
Superstition involves pretending to know the unseen. Nobody except Allah knows the unseen (27:65, 7:188, 34:14).
Superstitious beliefs can take the following forms: astrology, tanjiim; fore-telling, kahanat, and divination, tatayyur. Astrology
is not an empirical science and is deception. Believing in foretellers is kufr.
Divination with arrows is forbidden (5:4). Believing and acting on omens is forbidden (27:47, ,
SEEKING PROTECTION FROM OTHER THAN ALLAH
Charms and amulets are forbidden. These articles are worn in the false belief that they can protect the wearer
from disease and other hazards. Seeking such protection from other than Allah is a form of association Allah with other things,
shirk, and is severely prohibited.
E. CHAUVINISM, asabiyyat
Asabiyyat is a special feeling of attachment to the group that
a person belongs to. The group may be a family, a clan, a tribe, an ethnic group, a nation, or a profession. In its mild form
asabiyyat plays a positive role in strengthening intra-group loyalties and mutual assistance and cooperation. Asabiyyat becomes
a crime when it is used as a basis for discriminating, persecuting, or committing other acts of transgression against people
who are outside the group. Discrimination on the basis of race, color, ethnicity, gender and other natural attributes is a
major sin because it is a denial of Allah's creation of all humans as equal although they may be different. Discrimination
is a form of transgression, dhulm. Asabiyyat is condemned severely (4:135, 5:9, 58:22, ).
2.0 CRIMES AGAINST LIFE:
A. HOMICIDE, qatl
PURELY INTENTIONAL HOMICIDE, qatl 'amd
Definition: Purely intentional homicide is pre-planned and pre-meditated
murder. The perpetrator of the crime sets out with a clear intention to kill a particular individual. The crime of homicide
is committed whether the killer was provoked or not. It also does not matter whether he had a motive behind the killing or
did not have.
Classification: Purely intentional homicide is of two types: judicial
and criminal. Judicial execution is carried out by the imaam and is allowed in three situations only, la yahillu dam muslim
illa min thallathi (KS 281, BG 993, BG 994): death penalty, rajm, for a convicted
adulterer who had previous sexual experience; death penalty for a convicted killer as retaliation, qisaas, and the death penalty
for an apostate, murtadd.
The death Penalty: The penalty of intentional homicide is death. This
retaliation, qisaas, is a deterrent punishment needed to preserve life of the community.Retaliation, qisaas, is obligatory, al nafs bi al nafs (KS 188, KS 448). The law of retaliation applies even if the
victim is a servant (BG 996). The family of the deceased has the right of retaliation (KS 447). They can choose to give up
this right by forgiving (KS 448) with or without taking the diyat. There is no distinction in the right of retaliation on
the basis of age, class, or gender. A man is killed for killing a woman (BG 1009) and a woman is killed for killing a man.
Several persons can be executed for killing one person. The penalty of death is executed upon conviction by the imaam. The
family of the deceased or any other member of the community is not allowed to execute the punishment. If a person other than
the imaam kills a convicted killer he or she is not killed but is given a disciplinary punishment. The following categories
of persons are exempted from the death penalty if convicted of homicide but they could at the discretion of the imaam receive
disciplinary punishments, ta aziir.Children below the age of majority, the insane,
and the parents, father or mother (BG 997) are not executed. The punishment of a pregnant woman is delayed until after delivery
and suckling of the baby. The death penalty is not imposed on the person or persons who assisted the killer in committing
the crime but they are given disciplinary punishment, ta aziir, such as imprisonment (BG 1005).
Diyat: if the family of the victim drop their right to retaliation,
diyat can be paid. Diyat is 100 canmels (BG 1009). In addition to the diyat, expiation of the crime is carried out by fasting
2 consecutive months.
PURELY ACCIDENTAL HOMICIDE, qatl khata
Definition: Purely accidental homicide is defined as death ensuing
due to an honest mistake (KS 188). It can occur in two ways. The act that resulted into death may be intended but not for
the victim for example throwing a stone and it accidentally kills a person. The victim may be intended but the act was not
intended to kill for example in accidental iatrogenic death during medical treatment.
Penalty: Diyat is imposed for purely accidental homicide (BG 1004).
When the victim was a patient who died because of mistakes of an ignorant physician diyat
is due (BG 1014). Expiation is carried out by fasting 2 consecutive months in addition to the diyat
ACCIDENTAL WITH PRIOR MALICIOUS INTENTION
Definition: Accidental homicide with prior malicious intent occurs
when the killer had the intention of causing non-lethal hurt to the victim but the victim dies. This occurs when a person
is hit with a light weapon in a non-vital part of the body and death ensues.
Penalty: The penalty for accidental homicide with prior malicious intent
in diyat. Expiation is carried out by fasting 2 consecutive months in addition to the diyat
A fetus is a living human whose death due to deliberate human action leads to a legal penalty. Feticide may result
from actions that were not intended to cause death. Diyat is paid when fetus is killed as a result of a fight with a pregnant
woman (MB 1979). Death of the fetus due to negligent medical procedures may be grounds for a penalty of diyat against the
physician concerned. Feticide may result from deliberate action such as taking measures to cause abortion of a living fetus.
In such cases the laws of homicide will apply because a fetus has full legal personality, dhimmat, protected by the Law.
Suicide is condemned (4:29, MB 1982). Life does not belong to
the human but to Allah. It is Allah alone who gives and takes away life. A human who attempts suicide is committing a major
crime of trying to arrogate to himself or herself power and privileges that are in the preserve of Allah alone.
E. BODY INJURY
Injuries to the body can be produced in many ways: mechanical, electrical, chemical, and mental or psychological.
Like homicide, body injury can be classified as purely intentional, purely accidental, and accidental with prior malicious
Retaliation is ordained in cases of body injury. The same injury should be inflicted on the perpetrator (BG 999,
BG 1003, BG 448). It is preferred to wait for injuries to heal to assess the full extent of the injury so that appropriate
retaliation can be done (BG 1001).
In many cases retaliation is not possible because more than the original injury will be produced. For example retaliation
for a penetrating abdominal injury may produce more internal damage even death. In such cases diyat is imposed. Diyat is also
imposed when the victim chooses not to retaliate. For some injuries, a diyat
equivalent to that of homicide is set. For others less than the full diyat
is set. Full diyat is paid for cutting off or destruction of the following
organs: the nose, the eye, the tongue, the lips, the penis, the testicles (BG 1009). The diyat for cutting off one foot is half the full diyat (BG
1009). Ijtihad is made for injuries to other organs.
The computation of the diyat involved is complicated and requires
new ijtihad. The classical Law manuals various amounts of diyat in terms of camels or other objects for different types of injury. Not all possible injuries were covered.
Modern medical knowledge enables us to describe injuries in a more precise way. We are also better able to describe and assess
functional disability resulting from the injuries. A study is also needed to clarify the distinction between punitive and
compensatory awards for body injuries.
3.0 SEXUAL CRIMES
A. ADULTERY, zina
The Law prescribes several measures to prevent adultery: prohibition of seclusion of a man with a marriageable
female, khalwat; prohibition of looking with desire, al nadhar bi shahwat; prohibition of looking at nakedeness of another
person, awrat;and prohibition of display of beauty and ornamentation, tabarruj.
The primary objective of the Law of adultery is to protect public morals from the commitment of illegal sexual activity in
public where everybody including children can see the crime. Its strict conditions on evidence needed for conviction make
it impossible to convict mutually consenting adults engaging in discreet illegal sexual activity. Islam relies on the family,
the community, and tarbiyat to prevent such situations. The Law of adultery remains a final deterrent in situations in which
immorality becomes so wide-spread that it is done openly in the public.
Conviction: Only sane, aqil, adults who commit adultery voluntarily are convicted. There is no conviction without
4 adult, sane, Muslim, and reliable witnesses who can describe exactly the penetration of the penis into the vagina (KS 190).
Anatomical considerations alone make it difficult for the witnesses to be able to testify in a court of law in clear and unambigous
terms that they saw the penis enter the vagina. This could happen only if the 2 persons engaging in illegal intercourse did
not mind or actually wanted others to observe their act. A woman who is coerced into illagal sexual acts is not convicted
The Law has described the penalty for fornication (KS 190): The convicted are executed if they had prior sexual
intercourse (BG 1034, BG 1035, BG 1036, BG 1038, BG 1042, BG 1045). The penalty for those with no previous sexual experience
is a hundred strokes of the cane and with 1 year of exile (BG 1034, BG 1035, BG 1036, BG 1038, BG 1042, BG 1045). Punishment
of the sick is delayed (KS 190) until recovery. A smaller whip is used for the weak to avoid killing them (BG 1043). Pregnat
women are punished only after delivery (BG 1041). The imaam may have to pay the diyat for those who die under punishment.
B. UN-NATURAL SEXUAL ACTS
The conditions of conviction for sodomy are the same as those of fornication. The penalty for sodomy, hadd al luuti,
is death for both partners no distinction being made between the active and the passive partner. (KS 191, BG 1044)
SEX WITH ANIMALS
The penalty for conviction of sexual activity with animals, hadd man yaqau ala bahiimat is death (KS 191, BG 1044)
Masturbation is offensive and must be avoided. Some jurists permit it in situations of sexual excitement with no
means of marriage and fornication is feared (Qaradawi). It is however better to fast in such circumstances.
C. FALSE ACCUSATION OF ADULTERY, qadhf
The Law against false accusation of adultery is for the purposes of protecting the honor of the spouse. In view
of the severe disruptive effects of such accusations on the family institution, the Law prescribes very severe penalties (24:4-5,
Conviction is upheld if the person accused of adultery is chaste. There is no conviction if persons accused of
adultery are known to be of loose morals without social respectability, mur at.The
conviction is quashed if the accuser can not produce 4 adult, sane, Muslim, and reliable witnesses who can testify that they
witnessed the act of adultery. There is no conviction if the accusation of adultery is generic being directed at a group of
persons like drivers, farmers, or hotel workers. Conviction is when a specific person is accused of adultery falsely.
The person who makes false accusation of adultery can escape punishment in two ways: (a) if the victim forgives
(b) by the process of mutual recrimination, li'aan,in which the accusing spouse
swears 4 times that he or she is telling the truth and the accused spouse also swears that he or she is telling the truth.
The penalty on conviction for making a false accusation of fornication, hadd al qadhf , is 80 lashes. (KS 191,
BG 1049): 80 lashes
Rape is a severe crime that involves violence and violation of honor and modesty.
E. OTHER SEXUAL CRIMES
Trans-sexuals, mukhanath & murtajil, have to be chased out of homes (KS 190, BG 1046).
MARRYING A MAHRAM
A person who marries the father's wife is executed (KS 190)
4.0 CRIMES RELATED TO PROPERTY
Conviction: Conviction for theft is based on various considerations: (a) stealth, no ambiguity, and minimum amount.
Stealing must be from a secure closed place and not taking property from a public area. There is no amputation for fruits
stolen from an open garden with no fence (BG 1058). There should be no ambiguity, shubhat, about the ownership of the property
or the act of taking it. If the alleged thief has some rights in the stolen property he or she is not convicted for theft.
If the alleged thief could have taken the property for use with the possibility of return, he or she is not convicted. There
is no conviction for forcible seizure of property, snatching and running away, or betraying a trust because there is a possibility
of ambiguity that the property owner could have given it to the 'thief' even if involuntarily. Conviction requires that the
value of the stolen property be above a prescribed minimum of a quarter of a dinar (BG 1053) or 2.05 grams of gold (KS 189).
The penalty for theft, hadd al sariqat, is hand amputation (KS 190). Practical guidelines on conviction and punishment
can be learned from the prophet's punishment of the woman from the Makhzumiyyat tribe (KS 190, BG 1063) and Omar's punishment
for theft (KS 190). Punishment not carried out during a journey (KS 190). If a thief is convicted several times for theft,
the death sentence can be imposed (KS 190). The thief can, after punishment, make tawbat and be rehabilitated (KS 190).
Exemptions from punishment: the snather, muntahab; the dishonest, khain;
and the embezzler, mukhtalis, are not punished by hand amputation (KS 189, BG 1057).
B. HIGHWAY ROBBERY
Definition: robbery is use of force in taking property. It may be highway robbery, qatiu al tariq, or may be by
forcibly entering dwellings. If homicide or body injury occur the rules of retaliation, qisaas, apply. Robbery is illegal
(MB 1123). Dying while fighting to protect property from a robber is martyrdom, shahadat (MB 1129). The penalties for robbery
is execution, amputation, and crucifiction
C. FRAUD, FORGERY, AND CHEATING
Obtaining and eating others' property wrongfully is a major crime (2:188, ,
, 4:161, ). Embezzling the orphan's
wealth (MB 1260) is singled out as a very severe infraction.
D. ILLEGAL INCOME
Riba is criminal exploitation and not trade (p 215 2:275). Riba is condemned as taking property of others wrongfully
(p. 1059 2:278-279, 30:39). The giver, the recipient, the writer, and the witness of riba are equal in crime (BG 695). Riba
takes many forms as described below. Getting a gift in return for an intercession is a form of riba (BG 706). Every loan that
leads to an extra benefit to the loan-giver is riba (BG 726). Exchange of monetary instruments (gold, silver, paper currency)
can be riba unless there is equivalence and the transaction exchange is carried out without any delay (BG 697, BG 699). Barter
trade is allowed if the exchange is of articles of the same type eg gold for gold or dry dates for dry dates, wheat for wheat
and barley for barley. The exchange must be carried out on the spot. It is forbidden to barter one kind of article for another
for example wheat for barley. In such a case the wheat should be sold first and the money used to buy barley (BG 698). It
is also forbidden to barter good dates for bad dates. The bad dates should be sold for money and the money isn used to buy
the good dates (BG 700). It is forbidden to barter dates of unknown weight for dates of known weight (BG 701). Barter of animals
is forbidden if payment will be delayed, nasiiat (BG 704).
The giver and the recipient of a bribe are both cursed (BG 707). Bribery in order to redress a wrong is permitted.
5.0 OTHER CRIMES
It is illegal to engage in armed rebellion against the imaam. If such a rebellion is threatened or if it occurs,
the imaam should start by redressing the grievance. If the rebellion persists, military action is taken using just enough
force to suppress the rebellion and not to destroy life or property. There is no compensation for property destroyed in a
rebellion. The wounded and the prisoners are not killed (BG 1025). Fugitives are not pursued (BG 1025).
Aggression can be against a person or property. Ghasb is forceful appropriation of property. The appropriated property
must be restored (BG 756). Land can also be appropriated (BG 757-758). A Muslim is obliged to defend the self, the family,
and other persons against potential homicide. He is also obliged to defend property. Minimum force is used. Resort to killing
is there is no other way to stop the crime.
Every intoxicant is khamr and every khamr is haram MB 1933. An intoxicant is definned as what clouds the mind,
al khamr ma khaamara al 'aql (BG 1069, BG 1070). Intoxicants can be liquids, solids, or vapors. They can be alcoholic or non-alcoholic.
Even small quantities of an intoxicant that do not produce obvious intoxication are forbidden (BG 1071). Conviction is based
on taking the intoxicant and not on whether it had an effect. The penalty is 40 lashes. This can be increased by the imaam
to 80 (BG 1064). Care is taken to make sure that there is no injury to the face (BG 1066). The imaam will pay diyat if the
convict dies during punishment (BG 1078). The following activities associated with khamr are also prohibited: trading in khamr
(import, export, retail); manufacturing; transportation; serving; and being in a place where alcohol is sold or is served.
It is prohibited to sell grapes that could be used to make alcohol. Khamr can not be given or received as a gift. Khamr can
not be used as medicine. It is a disease and not a cure (BG 1073, BG 1074).
D. TREASON, khiyanat al ummat
E. ANTI-SOCIAL BEHAVIOR
CRIMES AGAINST RELIGION
Mental state of the apostate
Stress of disease leading to apostasy
Apostasy under hypnotic influence
Superstitions leading to apostasy
Explanation of why qadhf al zina has a hadd but qadhf al kufr does not
Is disease prognosis pretension to know the unseen, ghaib?
Exorcism of the jinn
Separate wards and treatment facilities for different races
Assigning doctors or nurses on the basis of patient's race
Vow not to seek medical care
Committing a crime in fulfilling a vow
Crime due to superstitious beliefs and practices
CRIMES AGAINST LIFE
Penalty in a case of assault being contributory but not the only cause of death as certified by a physician
Death of patient due to physician neglect
Death of patient due to physician incompetence
Death of patient due to accidental physician error
Physician failure to advise patient about risky behavior like smoking that leads to ill-health and death
Physician failure to advise patient on sedative drugs not to drive and patient is involved in an accident
Unprofessional advice leading to behavior or action that leads to death or body injury
Death immediately following withdrawal of treatment from a terminally ill patient
Physician disclosure of confidential information to a third party leading to a crime
False/misleading physician evidence in court leading to conviction followed by death penalty
Death of a patient in a clinical trial of a new or experimental treatment
Injury or death immediately following a well done surgical operation
Refusing to treat a non-paying poor patient who is need of emergency care and he dies immediately after
Sale of an unlicensed drug leading to death
Death while undergoing exotic treatment by a bomoh
Fatal delay in seeking ,medical treatment while under bomoh care
Passive smoking as a cause of ill health and death
Environmental pollution as a cause of ill health and death
Purely intended homicide due to diagnosed impulsive uncontrollabe behavior
Use of medical knowledge to compute diyat for injuries
Punitive and compensation for loss of function in injuries
Homicide or body injury by patient on psycho-active medication
Homicide by a drunkard or under the influence of drugs
Conviction for death of a child when protective measures like immunization are refused
Conviction for child death due to neglect of essential medical treatment
Accidental abortion or still birth following medical procedures of treatment
Liability of manufacturer of malfunctioning medical equipment leading to death of patient
Death or body injury due to hunger strike
Conviction for sale of illegal drugs leading to death
Employer liability for death or injury at work
Homicide by security forces in line of duty
Diyat for emotional/psychological injury
Diyat for sound injury
Diyat for genotoxic exposure at the work place
Conviction and penalty for genocide
Penalty for attempted suicide
Physician liability for poor control of depression leading to suicide
Fiqhi basis of the penalty for khalwat
Conviction for fornication based on video or still photography
Conviction for fornication based on DNA/sperm analysis
Conviction for fornication based on self-confession: is a mental assessment mandatory?
Standard of proof in fornication: it is physically impossible for 4 witnesses to see and describe the entry of
the penis into the vagina
Medical or psychological explanation of the difference in punishment between those with and without previous sexual
Coitus with the wrong person mistaking him or her to be spouse
Conviction for fornication in a person with clouded judgment due to taking drugs: legal and illegal
Male impotence as defense in fornication
Male impotence as defense in rape
Rape by husband during the period of iddat
Conviction for rape of wife in normal marital relation
Conviction for fornication with intact hymen
Inappropriate look or touch by physician in course of professional work
Conviction of father or guardian of a teenage prostitute
Conviction for knowing but neglecting fornication by spouse
Spread of sexually transmitted disease to the spouse
Rape by diagnosed hormone-driven sex maniac
Forced castration or other surgical treatment for sex maniac
Physician loving and marrying his or her psychiatric patient
Physician exposing sexual secrets leading to marital break-down
Physician reconstructing hymen to hide evidence of previous fornication
Status and upbringing of children resulting from incest
Incest in ignorance
Conviction for fornication based on wife getting pregnant in the absence of the husband
Trans-sexual behavior: disease or crime?
Adults viewing pornography in private
Sexual provocation as a defence in fornication conviction on the basis of coercion
DNA analysis making liaan unnecessary
Fornication or rape under the influence of legal or illegal drug
Sex education of teenagers leading them to fornication
Is masturbation a punishable crime?
Conviction and penalty for lesbianism
Is use of artificial sex objects a punishable crime?
CRIMES RELATED TO PROPERTY
Difficulty of proving that the thief was not in need at time of stealing
Psychiatric disease leading to theft
Theft by alcohol or drug addict during withdrawal crisis
Theft of public property from the hospital
Physician 'stealing' and selling/donating organs from living patient
Physician 'stealing' and selling/donating organs from a corpse
Physician removing organs or tissues for research without patient consent
Hand amputation under anesthesia
Re-attachment of amputated hand
Use of amputated hand for medical research
Use of amputated hand for organ transplantation
Re-attachment of hand after amputation
Physician receiving a gift from a patient before and after treatment
Compensation for physical police in demonstration
Psychiatric hurt during demonstrations
Physician in self defence against violent psychiatric patient causes injury or even death
Hypnosis as a form of khamr
Alcohol as a solvent, cleanser, and sterilizer in medical practice
Prescription of a legal drug that becomes addictive over prolonged use
Physician reporting information from words of partially conscious patient under anesthesia