Afzal Guru’s case, once again, evoked a debate on capital punishment. And as usual, Islamic laws were severely criticized by so-called champions of human rights.
However, not only non-Muslims but even the Muslims do not know about the divine laws, the manner of their implementation and above all Islamic jurisprudence. Islam, no doubt, prescribes capital punishment but at the same time discourages execution of the guilty.
For most of the crimes, Islam recommends corporal (bodily) punishment. However, it is carried out only as a last resort- after a thorough effort at reforming the person has totally failed. (Quran 5:39). The punishment has to be meted out in public so that it serves as a deterrent to the wrong doer and others.
Islam prescribes death penalty for intentional murder and Fasad fil-Ardh (spreading mischief in the land).
Intentional Murder: The Qur’an legislate the death penalty for murder, although forgiveness and compassion are strongly encouraged. The murder victim’s family is given a choice to either insist on the death penalty, or to pardon the perpetrator and accept monetary compensation for their loss (2:178).
Fasaad fil-Ardh: The second crime for which capital punishment can be applied is a bit more open to interpretation. “Spreading mischief in the land” can mean many different things, but is generally interpreted to mean those crimes that affect the community as a whole and destabilise the society. Crimes that have fallen under this description include treason/apostasy (when one leaves the faith and joins the enemy in fighting against the Muslim community), terrorism, land, sea, or air piracy, rape, adultery and homosexual behaviour.
As far as intentional murder is concerned, Quran allows the close relatives of the deceased to exercise three options.
1, Pardon the guilty for this is the best type of revenge. If this option is exercised, the person exercising it shall be handsomely rewarded by Allah the Almighty.
2, Accept blood money (Khoon Baha). The amount must be sufficient to serve as a deterrent for the guilty and for the general public. And if the relatives decide to exercise the last option, they have to follow the norms laid down by the Holy Quran.
According to the Holy Book, equivalence is the law in such cases (2:178-79). The option is to be exercised in such a way that the injury inflicted on the guilty is not disproportionate to the injury suffered by the deceased. Beware, Allah the most exalted, does not like those who cross limits.
In dealing with murder, the Quran definitely discourages capital punishment (2:179). “The free for the free, the slave for the slave, and the female for the female” (2:178). Due to human meanness and injustice, many people cannot even imagine what this Quranic law actually conveys. They refuse to accept the clear injunctions that strict equivalence must be observed – if a woman kills a man, or a man kills a woman, or a slave kills a free person, or a free person kills a slave, capital punishment cannot be applied.
The Quran prefers that the murderer compensate the victim’s family. Killing the murderer does not bring the victim back, nor does the family of the victim benefit from executing the murderer. The compensation, however, must be sufficient to be a deterrent for others. In Islam, the victim and/or the victim’s family are the judges for all crimes; they decide what the punishment shall be under the supervision of a person who knows the Quran.
In Kashmir and elsewhere in the sub-continent, the murder trials rarely reach logical end. The prosecution witnesses refuse to depose before the court or turn hostile in lieu of a handsome consideration from the family of the accused. However, they feel shy to call this consideration Khoon Baha.
During the holy Prophet’s (SAW) time, a few people were awarded death sentence. One day a man called on the Holy Prophet (SAW). “I have committed adultery. Please, punish me.” The Holy Prophet (SAW) ignored him and turned his head to the other side. The man came from that side and confessed his crime.
Again the Holy Prophet (SAW) ignored him and turned his head to the other side. Yet again the man repeated his confession. The Holy Prophet (SAW) ordered his pious companions (RA) to stone the man to death. The man was taken but when the pious companions (RA) started throwing stones at him, he ran away. The companions chased him and stoned him to death.
When they returned the Holy Prophet (SAW) asked what had happened. “He tried to ran away but we chased him and killed him.
The most revered Prophet (SAW) expressed displeasure. “Why did you chase him. He could have sought pardon for his crime and Allah the most merciful would forgive him.”
On another occasion, a woman called on the Holy Prophet (SAW) with a similar story. The holy Prophet (SAW) asked her if she was pregnant. “Yes”, said the woman. “Go and give birth to the child”, she was directed.
After giving birth to the child, she returned to the beloved Prophet (SAW). “O, Messenger of Allah punish me now”, she begged. The answer surprised her. “You have to suckle your child for two and a half years. Go and perform this duty.” She went back and returned after the said period.
This time the Holy Prophet (SAW) asked his companions to punish the woman. After her death when the people were performing her last rites, a companion passed a sarcastic remark. This evoked severe reaction from the Holy Prophet (SAW).
This is how the capital punishment was awarded during Holy Prophet’s lifetime. And this is how the most revered Prophet (SAW) discouraged the award of capital punishment.
There is no denying the fact that capital punishment can be awarded in Islam in some cases but, not only the Quran but the most revered Prophet (SAW) have discouraged it.
The persons mentioned above came on their own to the Holy Prophet (SAW) and confessed to their sins voluntarily. Nobody forced them to disclose what they had done behind closed doors. No media trial as held. The Holy Prophet (SAW) accepted their confessions when they pressed for it. This is what makes it unique and special.
The capital punishment, according to majority of the jurists, can be awarded in an Islamic state if the following criteria are fulfilled. The Islamic State must bring the society to a level where it becomes free of promiscuity and licentiousness. A society that advocates promiscuity in one way or the other cannot even think of lashing those guilty of fornication or killing those guilty of adultery.
Similarly the Islamic government is duty bound to ensure that nobody goes to bed without food. If it cannot be done and as a consequence somebody commits theft, capital punishment cannot be awarded.
Therefore, the laws seeking capital punishment cannot be implemented arbitrarily and without taking into consideration the socio-economic condition of a society.
-Agencies