In the first issue, we have discussed the hudud crime and several examples of it together with the punishments of the criminals as prescribed in Islam. Among the hudud punishment mentioned was that for murtad (apostacy).

After the demise of the Prophet Muhammad Shallallahu ‘alaihi wasallam, Abu Bakar Radhiallahu ‘anhu during his reign as khalifah, had battled the apostates of that time. The rest of the sahabah (companions) did not object, in fact they once took part in combating the apostates until the situation became calm and peace was achieved. The Islamic jurists agreed that the death punishment in the case of apostacy is considered logical and befitting the crime.

The death sentence should not be so freely imposed on apostates. Murtad cases should be judged thoroughly by the Islamic authority so that the apostate may be helped to return to Islam through repentance. Allowing someone to go astray and remain misguided in darkness and devastation is a very wrong. Therefore, the Islamic authority should return the apostates to truth and guidance which they had encountered earlier.

If the authority fails to return him to the truth of Islam, this will mean that the apostate is actually the carrier of a disease which will not only harm himself but also the nation and the state. In order to safeguard the tranquility of the society, the death sentence is a just and fair punishment to be imposed on an apostate who is unwilling to come back to the true path. This is to prevent the disease from infecting others.

Qisas

Literally, qisas means "equal" or "balanced".

In the book Tafsir Al-Qurthubi, qisas is also explained as "to follow the tract or mark", and it comes therefore to mean that the treatment of the offender should be the same as his offence.

Qisas, according to Islamic legal terminology, is "specified punishment imposed by Shâri‘ (Allah) as an obligation to be implemented in order to carry out the rights of mankind."

From the several terms of definition given, it can be concluded that the life of a murderer should be taken just as he had taken the life of his fellow man or someone who injures others should in turn be injured.

The difference between hudud and qisas

Hudud and qisas have almost the same meaning whereby both are the punishments prescribed by Allah Subhanahu wa Ta‘ala and as an obligation to be implemented by Muslim rulers.

However, the rights contained in hudud are different from the rights found in qisas. In implementing the hudud punishment, the right of Allah is stressed whereas in administering qisas, it is the rights of man that is more emphasised.

For example, the punishments for offences like theft, robbery, fornication, intoxication and apostacy are imposed by Allah, and are to be fully implemented without giving any rights to anyone to make any alteration, reduction or addition, and definitely not to withhold the punishment of hudud as it is the right of Allah Subhanahu wa Ta‘ala.

Unlike qisas, which, even though it is determined by Allah Subhanahu wa Ta‘ala and its implementation is an obligation, it remains the right of human beings whereby the final decision on its execution rests with the one seeking the punishment of qisas. Should the seeker of qisas punishment pardons the murder or the injury, then the qisas punishment is invalidated. It is also permissible for both parties, the offender and the one demanding qisas punishment, to replace the qisas punishment with compensation, since qisas is the right of human beings.

Offences and Their Punishment

Among offences which are punishable by qisas are:

i. Murder:

Committing murder is a big sin in Islam, an evil and cursed deed for which the death sentence is a just punishment. As promised by Allah Subhanahu wa Ta‘ala a severe punishment awaits the murderer in the hereafter. In the Al-Qur’an Allah says:

Meaning: "And whoever kills a believer intentionally, his recompense is hell to abide therein, and the wrath and the curse of Allah are upon him, and a great punishment is prepared for him."

(Surah Al-Nisâ’: 93)

The punishment for those who commit murder is death. This is clearly shown by Allah in His word which says:

Meaning: "O you who believe! Al-qisas (the law of equality in punishment) is prescribed for you in case of murder."

(Surah Al-Baqarah: 178)

The qisas offence explained in the above verse is very clear, where, the death punishment is imposed on the murderer. It cannot be altered or cancelled after the offender has been found guilty based on sufficient evidence, unless, the family of the slained has asked for compensation (diat) in lieu of qisas punishment.

ii. To cause intentional, physical injury:

To injure someone or to do so intentionally is not taken lightly in Islam because such an act may cause permanent disability to the victim.

The Al-Qur’an clearly specifies the punishment for those who intentionally injure others as found in the words of Allah:

Meaning: "And 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."

(Surah Al-Mâ’idah: 45)

The punishment mentioned in the above verse was determined by Allah. An eye for an eye. Similarly with other parts of the body. Even wounds and injuries are to be matched.

Al-Imam Bukhari and Muslim narrated that during the time of Rasulullah Shallallahu ‘alaihi wasallam there was an incident in which an Al-Nadzar girl had beaten and broken the tooth of another girl. When the case was reported to Rasulullah Shallallahu ‘alaihi wasallam, he sentenced qisas punishment on the offender.

While during the rule of Sayidina Umar Al-Khaththab, there was an incident where a Ghassan King who had recently converted into Islam, had his robe accidently stepped on by a Muslim slave during tawaf at Baitullah. The king, who was well-known by the name Jabalah Al-Aiham, suddenly punched the slave in the face. When a complaint was made to Umar Al-Khattab, and the offender was found to be guilty, Sayyidina Umar exercised the qisas punishment upon Jabalah Al-Aiham, even though he was a king who was new to Islam.

Qisas is the law of Allah for the interest of man. However, Islam has provided a way out so that qisas need not to be performed. Qisas can be replaced by compensation which is called diat for as long as both parties agree, especially the party seeking retribution, with the approval of the court.

This flexibility is given so that there can be peace and to avoid enmity among man. Diat is a way out which can benefit both parties, the murdered and the murderer. Diat does not aim at easing the punishment of qisas but it presents a choice to those involved, who, for certain reasons are reluctant to carry out qisas. Diat thus becomes the alternative.

In the next issue, we will continue with the discussion on diat so as to provide a more detailed explanation on its administration as an alternative to qisas.