ISLAMIC CRIMINAL JUSTICE SYSTEM AND THE

CONCEPT OF EQUITY
Absar Aftab Absar
Research Scholar, Faculty of Law, A.M.U., Aligarh (U.P.)

ABSTRACT

Crimes may be classified in the Islamic Law according to the degree of the punishment that these
crimes attract. The most serious types of crimes, which are the crimes against Allah, are the Hadd
or Hudud crimes and for these the punishments are prescribed in the Holy Quran. Qisas crimes
pertain to homicide and bodily harm and the punishment for these could be equal retaliation or the
payment of a monetary penalty or Diyya by the accused to the victim. Diyya payment can be made
in substitution for the Qisas penalty at the request of the victim(s) or it can be imposed if any of the
procedural or substantive requirements for the imposition of Qisas have failed. It is also important
to note that the amount of the payment is fixed according to the circumstances of the wound and
the person wounded. Although vehemently criticized by Human Rights activists and the West, the
concept of Qisas is unique to the Islamic Criminal Justice System. On the one hand, it acts as a
punishment for deterrence and, on the other; it gives the victim the right to retaliate or accept
financial compensation. The very concept of Qisas is based on the principle of equity and there is
no doubt that it has really helped in curbing the crimes of homicide and bodily injuries for the fear
of retaliation and Diyya.

Key Words: Islamic criminal Justice System, Qisas, Diyya, Concept of Equity

Introduction

The Divine Law or the Law of Allah is considered by the followers of Islam as complete,
universal, for all the time and unalterable. Out of 6,342 verses in the Quran, 225 relate to
legal issues. Within this number, there are 30 verses which address criminal and penal law
issues1. Allah’s word and Allah’s will are thus the central elements of Islamic belief and also
the undisputed foundation of Islamic Law. Thus for a Muslim, literally speaking, it becomes
mandatory to have faith in the Shariah as the Divine Law even if he is resident of a country

1
Khan (1983): Juristic Classification of Islamic Law, 6 Houston. Journal of International Law 23, 27

1
which does not adhere to Shariah 2, 3, 4, 5, 6, 7. Shariah means a path or way8 and is defined as the
clear and specific commands of Allah given in the Quran and the Sunnah9. The Islamic
Jurisprudence or Fiqh10 consists of explanations and interpretations derived from the Quran
and Hadiths. During the period from A. D. 700 to 855, Muslim jurists Hanifa, Malik, Shafii
and Hanbal, were the most noteworthy contributors for writing the Sunni version of the
Fiqh11. The contribution of Shafii was most significant as in addition to specifying the prime
significance of the Holy Quran and the Hadith12, he has given the four roots of law or Usul al
Fiqh13, which are (1) the Holy Quran, (2) Sunnah, (3) Ijma14and (4) Quiyas15.

The Concept of Justice in Islam16, 17

Justice is mentioned in the Holy Quran on numerous occasions. Historically, the concept of a
just person has been integral to legal determinations in Islamic law, including an individual’s
qualification for giving court testimony. Justice is the goal of Islamic law, as it is the goal for
Islamic society in general. But Islamic justice, as envisioned by Islamic legal scholars and the
Prophet Muhammad (SAW), is a broader concept than the word ‘justice’ as is conventionally
and contemporarily understood. Some of the references in the Holy Quran on justice are the
following:

2
L. M. Gontowska (2005): Human Rights Violations under the Shariah: A Comparative Study of the Kingdom
of Saudi Arabia and Islamic Republic of Iran [email protected]
3
Syed Hossein Serajzadeh (2002): Islam and Crime: The Moral Community of Muslims. Jounal of Arabic and
Islamic Studies Vol. 4 (2001 – 2002)
4
Hamid Khan, J. D. (2014): Practitioner’s Guide Islamic Law – Revised Edition: Islamic Law International
Network to Promote the Rule of Law (INPROL) www.inprol.org
5
Shariah www.wikipedia.com
6
Shariah www.britannica.com?EBchecked?topic/538793/shariah
7
Myths about Shariah: www.policymic.com/articles/55727/5-myths-about-shariah-law
8
Quran 45:18
9
The traditions, activities, acts and sayings of Prophet Mohammad are called Sunnah. These have been
compiled in the form of books by various learned Imams. After Quran the next most important thing for
practicing Muslims is to follow Sunnah
10
The Islamic Jurisprudence is called Fiqh. There had been 4 main schools of Fiqh which are followed by Sunni
Muslims round the world. For Shiite Muslims there is a separate Fiqh. The four Sunni Fiqh Schools have
consensus on major issues but differences are also conspicuous.
11
The Shiite Muslims have their own Fiqh which is attributed to the Jafri School of mid-8th century.
12
Authentic compilations of Sunnah are called Hadith. Sahi Bukhari and Sahi Muslim are most frequently
referred Hadith compilations
13
Quran, Sunnah (Hadith), Ijma and Quiyas together constitute the Usul al Fiqh or the Classical Theory of
Islamic Law
14
Ijma means arriving at consensus among scholars and jurists on some issue related to Shariah
15
The meaning of Quiyas, also written as Kias, is analogy. Decision may be reached through analogy and
comparison.
16
Susan C. Hascall (2011): Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative
Justice?, 4 Berkeley J. Middle E. & Islamic L. 35, http://scholarship.law.berkeley.edu/jmeil/vol4/iss1/2
17
Anwar Ahmad Qadri (1968): Justice in Historical Islam

2
 1. Allah commands justice and good-doing and He forbids indecency, dishonor and insolence18.
2. Allah commands you to deliver trusts back to their owners, and when you judge among men,
you should judge with justice19.
3. Of those We created are a people who guide by the truth, and by it act with justice 20.
4. We sent our Messengers with the Clear Signs and sent down the Book and the Balance with
them so that mankind might establish justice. And We sent down iron in which there lies great
force and which has many uses for mankind21.
5. We have sent down the Book to you with the truth so that you can judge between people
according to what Allah has shown to you. But do not be an advocate for the treacherous22.

Legal justice in Islam is tightly intertwined with religion, as both are expressions of Allah’s
will. The ultimate purpose of law is to fulfill justice. Thus, in classical Islamic legal theory,
law and justice, while not being the one in the same, can and should overlap to the greatest
extent possible and Sharia is considered to be the part of the law completely contiguous with
justice, as the Quran represents Allah’s divine justice.

In Islamic criminal law, mercy and forgiveness are strongly emphasized and recommended.
Even though neither the victim nor the state is empowered to pardon perpetrators of Hadd
crimes, which are seen as crimes primarily against Allah and the community rather than
against a particular individual, it is clear that Allah may forgive the offenders. Not only may
Allah forgive the repentant offender in the case of Hadd crimes, but the individuals and
communities harmed are also encouraged to forgive the offender and exercise mercy in the
3, 4, 15, 16
context of Qisas crimes . Thus, although punishment alone may serve to reform an
offender, the following verses from the Quran demonstrate that repentance and subsequent
good conduct are also important ingredients of the Islamic Justice System.

1. Unless they repent thereafter and amend their conduct, for Allah is oft-forgiving, most merciful 23.

2. Except for those who repent before they fall into your power: in that case know that Allah is oft-
forgiving and most merciful24.

3. But if the thief repents after his crime, and amends his conduct, Allah turneth to him in forgiveness;
for Allah is oft-forgiving and Most Merciful25.

4. If two men among you are guilty of lewdness, punish them both. If they repent and amend, leave
them alone; for Allah is oft-forgiving, Most Merciful. Allah accepts the repentance of those who evil
18
Quran 16: 90
19
Quran 4: 58
20
Quran 7: 181
21
Quran 57: 25
22
Quran 17: 105
23
Quran 24: 5
24
Quran 5: 34
25
Quran 5: 39

3
in ignorance and repent soon afterwards, to them will Allah turn in Mercy; for Allah is full of
knowledge and wisdom. Of no effect is the repentance of those who continue to do evil until Death
faces one of them, and he says, “Now have I repented indeed,” nor of those who die rejecting the
faith: for them have we prepared a punishment most grievous26.

Under classical Islamic Law, crimes can be divided into a number of categories based on a
variety of criteria. Crimes are commonly classified based on the available punishments for
the crime27, 28, 29. The three broad categories of crime according to their respective available
punishments are:

1. The Hudud or the Hadd crimes are those crimes for which the punishment is fixed in
either the Quran or Sunnah. As such, the punishment cannot be altered and the
perpetrator may not be forgiven or pardoned. These crimes are more than crimes
against an individual or the community. Since they offend Allah, the punishment of
these crimes is ‘the right of Allah’. The Hadd crimes include adultery, false
accusation of adultery, drinking, bloodshed and plunder, theft, apostasy, and rebellion.
Hadd crimes are considered to be the most serious of the three categories. The
punishments for these crimes are almost all corporal and they range from applying
lashes to amputation to execution.

2. The Tazeer or Tazir crimes are those transgressions that are described in the Qur’an
or Sunnah, for which no punishment is specified. Among the Tazeer crimes are
embezzlement, perjury, sodomy, usury, breach of trust, abuse, and bribery. These
crimes are generally considered sins as well, because they are prohibited in the Quran.
Tazeer crimes may also include wrongs that are not mentioned in the Quran but are
severe enough to disrupt society or have serious consequences. Tazeer crimes do not
include intentional murder or bodily injury, as these are classified as Qisas crimes.
However, if the crime does not meet the elements of a Qisas crime or if the
procedural protections in a Qisas trial are not met, the crime may then be considered a
Tazeer crime. The punishment for a Tazeer crime is at the discretion of the

26
Quran 4: 16 -18
27
http://law.jrank.org/pages/667/Comparative-Criminal-Law-Enforcement-Islam-Homicide-bodily-harm-
jinayat.html: Comparative Criminal Law and Enforcement: Islam _ Homicide and Bodily Harm

28
M. S. Madkoar: Human Rights from an Islamic Worldview – An Outline of Hudud, Tazir and Qisas,
http://www.muhajabah.com/docstorage/hudud.htm

29
Matthew Lippman et.al. Islamic Criminal Law and Procedure (Praeger 1988);

4
 authorities. Although the death penalty is not usually imposed for Tazeer crimes, it
can be meted out in exceptional circumstances. The victims of these crimes may
request that the state pardon the defendant and the judge has the discretion to do so.

3. The crimes punishable by Qisas and Diyya generally include homicide and wounding.
The word Qisas has come to mean “retaliation in kind.” The most significant aspect
of Qisas is that in this category of crimes the victims have the option of whether to
impose the Qisas penalty, insist on payment or forgive the offender.

Some Significant Aspects of Qisas Crimes

Qisas crimes are recognized as harms primarily against the individual. Thus, the individual
circumstances of both the victim(s) and the offender can be taken into consideration in the
punishment imposed. One of the purposes of punishment is to deter crime and make others in
the society feel secure. For example, illicit sexual relations have the potential for the
destruction of a family and the family is one of the important building blocks of society.
Thus, the harm to the individuals involved is the harm to society. On the other hand, although
murder is a harm that creates a rift in the social fabric, it is usually personal in nature. In other
words, members of society who are not directly connected to the murdered individual are not
going to be directly affected by the murder, usually the result of personal disputes between
the victim and the offender. Thus, the victims can be permitted to control the outcome of the
sentencing, including allowing them to forgive the offender and not extract either the Qisas
or the Diyya penalties. The following verses of the Holy Quran describe the purpose and
penalties available in the case of a murder or physical injury.

1. Never should a believer kill a believer; but by mistake. If one (so) kills a Believer, It is
ordained that he should free a believing slave, and pay compensation to the deceased’s
family, unless they remit it freely30.

2. Ye who believe! The law of equality is prescribed to you in cases of murder: the free for the
free, the slave for the slave, the woman for the woman. But if any remission is made by the
brother of the slain, then grant any reasonable demand and compensate him with handsome
gratitude. This is a concession and a mercy from your Lord. After this, whoever exceeds the
limits shall be in grave penalty. In the Law of Equality there is (saving of) Life to you, o ye
men of understanding; that ye may restrain yourselves31.

30
Quran 4: 92
31
Quran 2: 178 - 179

5
 3. 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.” But if anyone remits the retaliation by way of charity, it
is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath
revealed, they are (no better than) wrongdoers32.

Some significant aspects of Qisas are as follows:

1. Where retaliation (Qisas) is applied, the guilty party is liable to the same degree of harm as he
inflicted on his victim. In the case of homicide, the nearest kinsman of the victim performs
the retaliation. Where there is bodily harm, the victim himself is entitled to perform the act of
vengeance.

2. In most schools, the general rule is that retaliation is allowed only in cases in which the victim
was equal or superior to the attacker in terms of freedom and religion. So, for example, with a
few exceptions among the opinions of the jurists, a father may not be killed in retaliation for
murdering his child, but the child can be subject to the penalty for patricide. The same
formula applies to homicidal actions between masters and slaves. The Hanafi School is alone
in holding that a freeman may be subject to retaliation if he kills the slave of another.

3. Retaliation can come about if, after proper conviction, the nearest relative of the victim (or the
master, in the case of a slave) demands it. The schools differ on the question of which
relatives have standing to demand retaliation and which have the right to inflict capital
retaliation. If the victim has no living relatives, the right of retaliation falls to the state, which
can execute the offender.

4. In the case of wounding, only the victim can demand retaliation. Before he dies from his
injuries, a wounded man can, on his own, remit retaliation for the offender. If the guilty party
dies before retaliation can be inflicted, the cause lapses entirely in the Maliki and Hanafi
schools, but the Shafii and the Hanbali schools allow blood money (Diyya) to be paid. If
many persons participated in the murder, all can suffer retaliation if the action of any one of
them would have resulted in death.

5. According to the Maliki and Shafii schools, a murderer is to be killed in the same way as he
killed, The Hanafi require execution by the sword and punish any other form of execution by
Tazir. The Hanbali jurists are divided on the issue. If a person is entitled to inflict retaliation
but inflicts it before proper judicial procedure has been completed, he is subject to Tazir. If a
man avenges a killing without any possible legal entitlement, he himself is subject to the law
of retaliation.

6. In cases of bodily harm, an exact equivalence of harm is inflicted on the perpetrator: a hand
for a hand, a tooth for a tooth. Loss of sight can be avenged, but not the loss of an eyeball
because the injury cannot be exactly duplicated. Neither can retaliation be inflicted for the
loss of the nose or penis. Only blood money is permitted as punishment in those cases.

7. If there was an attack by many, all the perpetrators suffer the same loss as the wounded
victim, but this is not permitted in the Hanafi School. Nor do the Hanafi permit retaliation for

32
Quran 5: 45

6
 wounding between men and women or between slaves. When retaliation is allowed, all
schools except the Maliki allow the victim to return the wound. The Maliki assign an expert
to inflict the punishment. Any excess harm is punishable by Tazir.

8. Whether the Qisas penalty will actually be imposed in a case where the victim is injured or
killed depends on a number of factors. First, there are rules that affect whether the Qisas
penalty will be applied. For instance, the prosecution must prove that the wounding was
purposeful. Islamic law also recognizes varying degrees of homicide based on the intent of
the perpetrator and the manner of the killing. Only some degrees of homicide are subject to
the Qisas penalty.

9. Even if the perpetrator did not intend to kill the victim, he or she may face the Qisas penalty
for intentional murder if the wounding was intentional. Wrongs other than murder that may
qualify for the Qisas penalty include “an offensive act that does not result in death but causes
injury to a person or subjects him to violence.”

Diyya – Monetary Compensation

Diyya is the payment of money to the victim of a violent crime. The payment can be made in
substitution for the Qisas penalty at the request of the victim(s) or it can be imposed if any of
the procedural or substantive requirements for the imposition of Qisas have failed. The
following verse from the Holy Quran deals with the payment of Diyya:

“Never should a believer kill a believer; but by mistake. If one (so) kills a Believer, It is ordained that
he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it
freely”33.

The issue is also addressed in the Hadith given below.

“Whoever is killed inadvertently as by flogging or beating with a stick or being hit by a stone, his
blood-price is a hundred camels34”.

It is important to note that the victim or the victim’s family must insist that the Qisas penalty
be carried out. If any of these standards are not met, the Qisas penalty will not be applied. In
many instances the penalty will consist of Diyya payment. It is also important to note that the
amount of the payment is fixed according to the circumstances of the wound and the person
wounded. Islamic law confines criminal responsibility to individuals rather than the whole
tribe or the group of people and restricts the practice of retaliation (Qisas), only to cases of
intentional killing and intentional injury. If the accused was convicted of an intentional bodily
injury or intentional homicide at trial, the punishment of retaliation remained solely in the

33
Quran 4: 92
34
Abu Dawud, Book 39, Hadith no. 4531

7
hands of the victim or the victim’s heirs and assigns. Rather than simply retaliate, however,
the Quran specifically recommends the victim or the victim’s heirs and assigns to accept
monetary compensation or Diyya or, if they chose to commit the morally commendable, in
such a situation, forgive the perpetrator. If the victim’s family opted for retaliation, any
retaliation, however, required parity between the victim and the perpetrator. Retaliation was
allowed only if the victim’s status equaled or exceeded that of the perpetrator. A Muslim was
equal to another Muslim (whether a man or a woman) but a non-Muslim was not equal to a
Muslim, nor was a slave equal to his or her master.

In case of Diyya, the value of a victim’s compensation varied with the victim’s age, sex,
religion, and legal status (slave or master). Under classical Islamic law, Diyya was not just
limited to homicide; it was required for any injury or incident resulting in bodily harm,
intentional or unintentional, caused by another person.

The final option victims have in a case of intentional homicide or wounding is to forgo both
the Qisas penalty and Diyya. Forgiveness is praised in both the Quran and in several Hadiths.
Forgiveness is not only an aspect of reconciliation between the parties most directly involved
in the wrongful act recognized by the Sharia but also a goal of restorative justice.

Conclusion

The Quran prescribes the law of equity in cases of murder and for inflicting bodily injuries.
The victim or his family has three options:

 The first option is that of retaliation or retribution in which the victim or his family may
demand entitlement for inflicting same amount and degree of injury on the accused as
received by him or his family member. This retaliation or Qisas is based on the principle of
equality as mentioned in Quran at a number of places.
 The second option is of asking for Diyya, which is the compensation fixed by the legal
authorities based on various parameters. This too, in a way, is to make the victim feel secured
and not deprived of his rights.
 The third option, which is liked the most by Allah, is the victim or his family forgiving the
accused giving up the rights of Qisas and Diyya.

It needs to be emphasized here that the option of Qisas may look like violation of human
rights and is opposed by the western world but this system has functioned well for over
fourteen centuries and has helped in curbing crimes. This system which gives the victim an
upper hand in deciding the punishment to the accused based on the principle of equality has
certainly some distinct advantages over conventional legal systems. In India, for example,

8
victim’s family eventually becomes sufferers because of the procedural formalities, routine
inordinate delays in the court - cases sometime going on for a decade – and particularly
because the accused in most of the cases is free on bail within a short period of the crime and
is again a threat to the victim and his family. In case of Qisas crime, the fear of retaliation
(eye for eye, hand for hand and life for life), that too within a period of 3 to 4 months of the
commission of crime, acts as a major deterrent and this certainly has been a major factor in
controlling crimes of homicide, attempts to murder and violent attacks with intent to inflict
injuries in Saudi Arabia, Iran, Northern Nigeria, South Sudan and other countries which
adhere to the Islamic Law.

As Qisas acts as a deterrent, Diyya, the other component of the Islamic Law, also acts as a
major tool of deterrence. The Diyya money is generally fixed at very high rates which
in itself are a major deterrent and it may often be difficult to escape Qisas
punishment just by agreeing to pay Diyya. For example, in Northern Nigeria the
Diyya for a homicide is 1000 Dinars or about 12000 Dirhams which is roughly
equivalent to the cost of 100 camels in accordance with the Hadith 35. The Diyya
money in Pakistan, UAE and Saudi Arabia for an offence of homicide is about 34,000
Pounds36, Dh 200,00037 and SR 300, 00038, respectively.

The Islamic Criminal Justice System, therefore, irrespective of all the criticism from
West, is just with efficacy and efficiency and showing practical dependence on the
principles of equality and equity. On the one hand, it promotes the victim to forgive
the accused for the sake of Allah by giving up the rights he has under the provisions
of Qisas and Diyya and, on the other; it stands on the victim’s side not showing any
mercy to the perpetrators if the former wants to retaliate. It is important to note here
that the concept of equity is so strong in the Islamic Law that if a person is entitled to

35
Susan C. Hascall (2011): Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative
Justice?, 4 Berkeley J. Middle E. & Islamic L. 35, http://scholarship.law.berkeley.edu/jmeil/vol4/iss1/2
36
Elliott Goat(2015): Trading justice for money: Prisoners on Pakistan's death row can pay off their victims'
families in exchange for freedom http://www.independent.co.uk/news/world/asia/trading-justice-for-money-
prisoners-on-pakistans-death-row-can-pay-off-their-victims-families-in-9966027.html
37
Hassan Hassan (2012): A system for compensating victims that needs fixing,
http://www.thenational.ae/thenationalconversation/comment/a-system-for-compensating-victims-that-needs-
fixing
38
http://www.emirates247.com/news/region/saudi-arabia-triples-blood-money-to-sr300-000-2011-09-11-
1.417796

9
inflict retaliation but inflicts it before proper judicial procedure has been completed,
he is subject to Tazir. Similarly, if a man avenges a killing without any legal
entitlement or he inflicts more wounds and injuries to the accused than what he
received from him, he himself becomes a subject to the law of retaliation 17, 28, 35, 36.

10