Lecture for 3rd students on 21st April 2001 by Professor Omar Hasan Kasule Sr.
A. CONSIDERATIONS IN JUDGEMENT AND CONVICTION
JUDGEMENT BASED ON EVIDENCE and OATH
Decisions of the court are based on consideration of the evidence and oaths taken, al qadhau bayna yamiin wa
shaahid (KS 112: Muslim K30 H1; Abudaud K22 B21; Tirmidhi K13 B13; Ibn Majah K13 B31; Ahmad 1:248, 315, 323; Ahmad 3:305;
Ahmad 5:285). In considering the evidence. the judges must follow the injunction to maintain justice, al amr bi al hukm
bi al ‘adl (p. 794 –795 2:28, 3:21, 4:127, 4:135, 5:8, 6:152, 7:29, 11:85, 16:76, 16:90, 17:35, 26:182, 42:15,
49:9, 55:9, 57:25, 65:2).
JUDGEMENT WITH NO CLEAR PROOF, bayyinat
The Law gave guidelines on judgement with no clear proof, bayyinnat (KS 425: Abudaud K23 B22; Nisai K49 B35; Ibn
Majah K13 B11). The basis for conviction is violation of the Law. Judgment based on other than the Law is condemned, dhammu
al hukm bi ghayr ma anzala al llaah (p. 343 2:188, 3:23, 4:60, 5:43-45, 5:47-50, 24:48)
It is prohibited to have two judgments for the same case, la yaqdhiyanna ahadu fi qadhai bi qadha ain (KS 426:
Nisai K49 B32).
JUDGING BY THE OBVIOUS, al dhaahir
Judging is by the obvious, al hukm bi al dhaahir (KS 426: Muslim K30 H4-6; Abudaud K23 B7; Tirmidhi K13 B11; Nisai
K49 B13, 33: Ibn Majah K13 B5; Muwatta K36 H1; Ahmad 6:290). No esoteric considerations are allowed in court.
ACCEPTING THE JUDGEMENT
The litigants should accept the judgment and close the conflict (p 951 4:65; p. 342 4:65
B. PURPOSE OF HUDUD AND TA’AZIR
THE CONCEPT OF LIMITS, huduud al llaah
The term hadd in shariat has a limited and definitive meaning. Its usage in the Qur’an is more general than
criminal punishment (p 321 2:187, 2:229-230, -14, 9:112, 58:4, 65:1). Thus punishments serve 5 purposes: deterrence, prevention,
education, and discipline:
C. THE 5 HUDUD IN SHARIAT
Fornication, zina: The accused must fulfill three conditions for conviction: intellectual competence, aql;
age of maturity, buloogh; and voluntary action. Conviction is based on evidence, al shahadat fi ithbaat al zina
(p. 321 4:15, 12:26, 24:4, 24:6). The evidence must be clear and non-rebuttable because the punishment is very serious. The
Law lays down clear punishments for fornication. A person who had prior sexual intercourse in a valid marriage is killed by
stoning, rajm, on conviction. A person who has never experienced sexual intercourse is punished with lashing and exile.
The punishment is carried out in public. The following medical evidence can indicate occurrence of sexual intercourse: presence
of spermatozoa, examination of hair/tissue samples, DNA analysis of any tissues or sperms, intact/perforated hymen, and diagnosis
of pregnancy. It however cannot be used as a basis for a hadd punishment. The punishment requires 4 adult Muslim witnesses
testifying that they saw and can describe the sexual act in detail. Medical examination is necessary to certify physical fitness
for punishment. If the convict is ill, the punishment is delayed until after recovery. The punishment could also be postponed
in difficult weather (cold or hot). The punishment for pregnancy women is delayed until delivery and completion of normal
False accusation of zina,qadhf: Conviction is based on failure to produce 4 credible witnesses to
the act of fornication. There is no difference in the consideration of conviction between accusation by a spouse or by an
outsider. If the accusation is against a group of persons who are not known to be adulterous, the conviction is still upheld.
If before the execution of the punishment, the person accused of adultery is subsequently caught in an adulterous situation,
the conviction and punishment for qadhf are set aside. Conviction and punishment for qadhf are still carried out even if the
accused is already dead. If the accuser can not produce 4 witnesses, the conviction is upheld even if there is medical evidence
of fornication The hadd punishment is 80 lashes (p. 322 24:4-5). If the accuser and the accused are spouses, the punishments
for fornication and false accusation can be avoided through the process of lian.
Rape, ghasb: Conviction is based on evidence indicating forced intercourse. Medical evidence
includes physical examination for physical injury or signs of vaginal penetration, presence of spermatozoa, and DNA analysis.
The prescribed punishment is death.
Sodomy, liwaat: Conviction is based on seeing the accused involved in the act. Standards of evidence
that apply to zina also apply here. Medical evidence can be used in addition and includes: signs of anal incompetence, and
other signs of physical injury, acute or chronic, to the anus and lower rectum. The punishment for sodomy is death
Sex with animals: Conviction is based on evidence of the accused being seen committing the crime and medical
evidence based on examination of the accused and the animal concerned. The punishment prescribed is…
CRIMES RELATED TO INTOXICANTS, khamr & mukhaddarat
Definition of khamr: Khamr is defined as any substance that clouds the mind or consciousness, Al kahmr ma
khaamara al aql. Any intoxicant is considered khamr and is prohibited, kullu muskir khamr wa kullu khamr haraam. An intoxicant
is considered khamr even if taken in small quantities that do not normally produce intoxication. What intoxicates in big quantities
is prohibited even if taken in small quantities, ma askara kathiruhu fa qaliluhu haraam. Narcotics are khamr following the
Determination of intoxication: medical evidence of intoxication can be based on behavior and actions as
well as analysis for alcohol in the breath, blood, and urine. This can be supplemented by evidence of seeing the accused taking
Punishment: By agreement among the majority of jurists the hadd punishment for taking intoxicants is 40
lashes. Drunkards were lashed at the time of the prophet (MB 2161, 2156). Ali said that there was no fixed punishment for
intoxicants (MB 2160). Medical examination is necessary to make sure that the accused is fit for punishment.
CRIMES RELATED TO TAKING LIFE, qatl
Motivation: There are three types of homicide classified according to the intention: deliberate, ‘amd;
error, khat’a, semi-deliberate, ‘amd khat’a. In deliberate homicide both the act and the victim
were intended. In homicide by error the act was intended but not the victim. In semi-deliberate homicide, the act and the
victim were both intended but for a small injury and not homicide. There are borderline cases that can not fit nicely in the
three categories above: fetal death, death due to physician mistake, death due to ignorant doctor, and killing or injury in
self defense, siyaal.
Punishment of two types: The punishment for homicide, hadd al qatl, was prescribed in the Qur’an
(p 321 2:178-179, , , 18:74).
The right of the aggrieved human is retaliation, haqq al ‘abd al qisaas. The aggrieved may take an indemnity
instead. Retaliatory killing can be applied to many for killing one person. The right of God is expiation, haqq llah al
kaffaarat. This is fasting 2 months. Kaffarat applies to all three types of homicide.
Killers for whom rules of qisas do not apply: The offender is the father or the mother
The victim was due to be executed as qisaas or for being an apostate, murtadd. The offender is below the
age of maturity, insane, or under the influence of an intoxicant at the time of the crime. Insanity can be temporary or permanent.
There is a difference between an intoxicant taken illegally like drinking alcohol and an intoxicant that was taken legally
like prescribed medication. Judicial execution for homicide, fornication, and apostasy, riddat (MB 2171)
Rules of qisas for partial injury: In general the victim is entitled to retaliate by exacting the same injury.
The rule will however not be applied if there is no certainty that harm will exceed the original. For example retaliation
is possible for a finger injury but not injury to the abdomen. Where retaliation is not possible, diyat may be accepted. If
an unpaired organ was damaged the full diyat for life is imposed. If a paired organ was damaged, half the diyat for life is
imposed. Full diyat is paid for eliminating s sense faculty such as hearing or vision. For purposes of computing diyat paralysis
is treated in the same way as destruction of the limb or organ.
Capital punishment: Any of the following methods can be used for execution. The choice of which method to
use is guided by custom. Decapitation is cutting the vital organs of the neck using a sharp sword. Firing squad uses a firearm
with several soldiers shooting so that no one person can be said to have killed the prisoner. Lethal injection of a poison
and electrocution are new methods that have been used recently. Some of these methods produce painless death whereas others
cause pain. Proper retaliation will require that the accused suffer the same pain as he caused his victims. The punishment
delayed for a pregnant woman.
Payment of diyat: The diyat for deliberate homicide is aggravated, diyat al ‘amd al mughladhat,
paid immediately and by the offender. The diyat for semi-deliberate homicide, diyat al ‘amd, can be deferred.
The offender and the family pay it. The diyat for homicide in error, qatl khat’an, is deferred and is paid by
the extended family
Feticide: The payment made in cases of feticide is called al ghurrat. In some cases a full diyat, diyat
kaamilah, may have to be paid. Kaffaarat?
CRIMES RELATING TO PROPERTY
Stealing, sariqat: The Qur’an described the hadd punishment for stealing, hadd al sariqat
(p 321 ). The hand is cut off for stealing little or a lot (MB 2162). There
is however a minimum value below that the hand is not cut off (MB 2163, 2164, 2165). Conditions for conviction: minimum value
stolen of 1.058 grams or gold or equivalent; stealing from a secure and private place.
Highway robbery, qati'u al tariq: Conditions for conviction are use of force to take property.
Care must be taken to make sure there was no shubuhaat. The punishment for highway robbery is death. There is no hadd for
forcible seizure or betrayal of a trust
CRIMES AGAINST THE COMMUNITY
Apostasy, riddat, is treated as high treason. Conditions for conviction are intellectual competence, ‘aql;
maturity, buloogh; and refusal to repent. Evidence for conviction includes: prostration for an idol, al sujuud li al sanam;
uttering words that imply kufr such as Allah is three, reviling Allah or His messenger; denying the existence of Allah; Denying
the Qur’an or parts of it; sarcasm about Allah’s names; denying an obligation like salat. The punishment is execution.
Muharabah/ baghyu: Definition: rebellion against established government. Punishment is inflicted after attempt
at reconciliation. The punishment for rebellion, hadd al hiraaba, was prescribed in the Qur’an (p 321 -34). Rebels who bear no arms should not be fought. For those who are armed, the minimum force
needed to suppress the rebellion is used. The aim is not to destroy them but to suppress the rebellion. Those who flee should
not be pursued. Prisoners of war should not be killed.
Warding off aggression, siyaal: An individual is entitled to self-defense but this is not obligatory
unless the attempt is made on life. Defense of wealth is permissible but is not obligatory. Defense of women folk is obligatory.
Defense means using the minimal force required. The following measures are applied in order: shouting to frighten the aggressor,
using the hand, using a stick, using a weapon to cause injury or to kill. In cases of rape killing must be immediate. The
aggressor is also killed immediately if it is known that he cannot be dissuaded any other way. No further measures should
be taken if the aggressor has been warded off.
D. APPLICATION OF DISCIPLINARY PUNISHMENTS, ta’azir
DEFINITION OF TA’AZIR
Ta’azir is a punishment that does not amount to a hadd punishment ie no more than 10 lashes (MB 2166)
PURPOSE OF TA’AZIR
The purpose of ta’azir is to discipline and prevent repetition of the crime
Ta’azir can be a physical punishment such as lashing.
Ta’zir can take the form of psychological punishment such as enforced exile.
Ta’azir can also be in the form of imprisonment. Imprisonment involves loss or restriction of civil liberties
as well as civil rights. The medical profession should be concerned about the health of prisoners. Concerns also arise about
use of torture as part of punishment in prisons.
E. ROLE OF THE PHYSICIAN
Assessment of physical fitness of the convict for punishment
Assessment of injury for purposes of qisaas
Assessment of diyat. Diyat is based on functional loss, lost earnings, and life expectancy at the time of injury