The later verse (40) says:
أَلَمْ تَعْلَمْ أَنَّ اللَّـهَ لَهُ مُلْكُ السَّمَاوَاتِ وَالْأَرْضِ يُعَذِّبُ مَن يَشَاءُ وَيَغْفِرُ لِمَن يَشَاءُ ۗ وَاللَّـهُ عَلَىٰ كُلِّ شَيْءٍ قَدِيرٌ ﴿40﴾
Do you know that to Allah alone belongs the kingdom of the heavens and the earth? He punishes whomsoever He wills and He forgives whomsoever He wills. And Allah is powerful over everything.
This verse is linked with and homogeneous to previous verses which feature stringent injunctions of the Islamic Legal Punishments for robbery and theft. A shallow look at these injunctions could give the false impression of their being contradictory to human dignity. It is to re-move this doubt that Almighty Allah has, in this verse, initially stated that He alone is the real Master of the entire universe. Then, He says that He alone is the Absolute Power. In between, comes the statement that it is not only that He punishes. He forgives as well, and that forgiveness and punishment depend on His Wisdom, for the way He is the Absolute Master and the Absolute Power, so is He Absolutely Wise too. There is no human power which can guage the extents of His mastery and domain so shall there be no human reason which can fully fathom the countless manifestations of His Wisdom - and that which it would pass on to human beings by virtue of pondering through principles is sufficient enough to put their hearts at peace.
What is Benign and at is Savage?
People in the West and those influenced by their education and culture commonly object that Islamic punishments are harsh. And as pointed out a little earlier, there are some heedless people who do not even hesitate to say that these punishments are savage and undignified.
Before we deal with this matter, it would be useful to keep what has been stated earlier in sight. We know that the Holy Qur'an has it-self determined and fixed the punishments for only four crimes which are called Hadd, in the terminology of the Islamic Shari’ ah. The punishment of robbery is the cutting of the right hand and the left foot; the punishment of theft is the cutting of the right hand from the wrist; the punishment of adultery is one hundred lashes in some situations, and stoning to death in some others; the punishment of making a false accusation of adultery is eighty lashes. The fifth Islamic Prescribed Punishment (Hadd) is that of drinking which is eighty lashes as fixed under the consensus of the Sahabah of the Holy Prophet ﷺ . With the sole exception of these five crimes, the punishment of all other crimes has been left to the discretion of the ruler of the time so that the relevant judge may award the kind and amount of punishment with due consideration of the crime, the criminal and the circumstances. This is a matter in which it is also possible that some particular system de-signed to delimit and apportion punishments is established in consultation with those fit to guide and advise, and Qadis or judges are bound with it. This is what happens these days when penal laws are generally enacted through legislative assemblies, and Qadis or judges award punishments within limits already identified. Although, in the five crimes the punishment for which has been fixed by the Qur'an, or through a consensus (Ijma`), and in which no individual or party or assembly has any right of alteration or substitution, but, in them too, if the proof of the crime is not available through the Law of Evidence prescribed by the Shari` ah, or there be the proof of the crime but conditions under which this punishment is enforced may not be complete, and the fact of the crime stands proved in the sight of the Qadi or judge, still then, in that situation too, the Hadd Punishment (حَد شرعی) will not be enforced, instead of which, the punishment given will be punitive (Ta` ziri). Along with it, there is the standing rule of Islamic Law that the benefit of doubt goes to the person accused of a crime. A doubt about anything in the proof of the crime or the conditions of the crime causes the Hadd Punishment to be dropped. But, in the event that there be the necessary proof of crime available, the punishment given will be punitive (Ta'ziri).
This tells us that there will be many more situations in which the Hadd Punishment will not be enforced and, in their place, punitive punishments will be awarded subject to the discretion of the ruler of the time. Since punitive punishments have not been predetermined by the Shari'ah, they can be changed or tailored to suit the needs of every time and every circumstance just like the general laws of the land. Therefore, at least, in this field, nobody has room for any objection. Now the 'debate' is reduced to the punishments of five crimes only, and that too, in their particular situations. For example, let us take theft and see that the punishment of cutting the hand has not been imposed by the Shari` ah on every theft, in an absolute sense - that is, theft as we know it in our common usage. This is no Sariqah. Sariqah, the crime which is punished by cutting the hand, has a peculiar definition of its own, details about which have appeared earlier (under the subheading: ` Understanding the Islamic Legal Punishment of Sariqah' ) and which can be briefly defined here as the taking out of someone's property from a secured place, by breaking the security arrangements, unlawfully and secretly. According to this definition, many forms recognized as common thefts stand eliminated from the standard definition of the Hadd of Sariqah. For instance, the condition of a secured place tells us that property stolen from commonly used public places such as Masjid, masalla of ` Id (area earmarked for the large congregational prayers on the occasion of ` Idul-Fitr and ` Idul-Adha), Park, Club, Railroad Station, Waiting Room, Train, Airplane etc., or stealing fruits hanging on trees, or stealing honey will not cause the Hadd of Sariqah to be imposed against the thief, instead of that, punitive punishment will be given to the culprit as generally done in most countries. Similarly, take the example of a person you have allowed to enter your house - whether he is your servant or maid or a worker on wages or a builder on contract or a friend or relative - now should he take some-thing away from your house, then, though he is included under the definition of common theft and is deserving of the punitive punishment for it, yet, the Islamic Legal Punishment of cutting the hand will not be enforced on him - because he entered the house with your per-mission and the arrangement of legal security is not complete as far as he is concerned.
Similarly, incidents like someone picked someone else's pocket, or snatched away cash or jewellery from someone's hand, or extracted something by fraud, or went back on his word when asked to return what he had agreed to keep in trust are all unlawful and impermissible, and definitely included under customary thefts, but, the punishment for all these is punitive which depends upon the discretion of the ruler. Since these are not included under the definition of legally culpable 'Sariqah,' no amputation of hand will take place.
Likewise, the hand of a stealer of coffin clothes will not be cut be-cause, first of all, it is in no secure place, then the shroud itself is not in the ` ownership' of the deceased, though this act of the stealer is gravely unlawful. For this, he will have his punitive punishment at the discretion of the ruler. In the same manner, if someone commits a theft in what was jointly owned property in which the stealer too had some share - whether it was a joint property from inheritance or from commercial partnership - it is a situation in which, since some part of the ownership of the stealer is also included therein, the doubt about such ownership will cause the Islamic Legal Punishment (Hadd) to be dropped and punitive punishment will be given.
As for all these conditions, they relate to the actual completion of the crime, a brief outline of which you have seen above. Now what comes next is the completion of the proof. In this matter of enforcing Hudud, the Shari'ah has also made its Law of Evidence unmistakable by keeping it very distinct and cautious as compared to what concerns other common matters. In the punishment of adultery, imposed there is the condition of four witnesses in place of two - and that too, while they give such eye witness as would not leave any word doubtful there-in. Though, in the case of theft, only two witnesses are sufficient, yet, even for these two, some additional conditions, other than those commonly required in witnessing, have been imposed. For example, there are other matters in which, if needed, the Qadi or judge has the option to accept the witness of a sinning person if he is satisfied that the per-son, despite his being a sinner practically, does not lie. But, in the case of Hudud, the Qadi or judge does not have the right to accept his witness. Common matters can be judicated based on the evidence given by one man and two women. But, in Hudud, the evidence of two men is necessary. In common cases, the Shari'ah does not consider Ta-madi (being time-barred) as valid excuse - a witness given by someone can be accepted irrespective of the time lag since the event occurred. But, in Hudud, if a testimony is not given immediately, instead of that, was given after one month or was delayed more than that, then, it will not be acceptable.
This brief outline of the conditions of the enforcement of the Hadd of Sariqah appearing above has been taken from the highly authoritative book of the Hanafi Fiqh, Bada'i` al-Sana'i`.
The outcome of all these conditions is that the Hadd of Shari’ ah, the Islamic Prescribed Punishment, will be enforced only in a situation when it is strictly in accordance with the rules of procedure determined by the inviolable Shari’ ah of Islam that the crime, as well as, its proof are found conclusively complete - and so complete too as would leave no aspect of it doubtful. This tells us that the Shari'ah has done two things simultaneously - it has, on the one hand, fixed the punishment of these crimes, as required in its wisdom, being strict as they are; but, on the other hand, it has also taken extreme precaution in the enforcement of the Hudud of Islamic Law. The Law of Evidence as applicable to Hudud is also different from the Law of Evidence as applicable to common matters, and is certainly based on extreme precaution. The slightest shortfall in it renders the Hadd of the Shari` ah to be changed into punitive punishment. Similarly, in the event of any shortcoming being found in determining the completion of the crime, the Hadd of the Shari’ ah is dropped and punitive punishment gets activated in its place. The practical outcome of this is that the far-out occasion of enforcing the Hudud of the Shari` ah would present itself only very rarely ( or, as they would say in charged English, only once in a blue moon! ) Under normal conditions, even in crimes which fall under Hudud, the punishments given are punitive. But, in a case, where the completion of the crime and the completion of the proof con-join, even though in one per cent cases, the punishment given is very stringent, something which would inspire awe, something mindboggling and heart-rending, something which would cause the next as-pirant cold feet before even touching a crime like that. This kind of punishment, notwithstanding objections, becomes the source of eradication of crimes and the blessing of public peace for ever. This stands in stark contrast against societies built around penal laws with which hardened criminals keep playing as some sort of sport they enjoy.
They sit in jails making programs to do what they have been doing all along much better next time they are out there. There are countries where the Hudud of the Shari` ah are imposed even now. A look at conditions which prevail there would bring the reality in the open. You do not see there a lot of people with amputated hands, nor is there an event of stoning to death (Rajm) for years and years together. But, such is the standing awe and dread and fear of these punishments in arts that theft, robbery and immodesty do not seem to exist there. Muslims have the first-hand and direct knowledge about conditions in Saudi Arabia because Muslims of all classes and countries have the good fortune of being there in connection with Hajj or ` Umrah. Five times every day, everyone sees that shops and stores are open. Merchandise worth millions is lying there and their owner leaves for the Sacred Mosque at prayer time without closing them - and comes back from there only after having made his prayers in perfect peace. He never has any scruples about anything having disappeared from where he had left it. Then, this is not a matter of one day. This is a matter of whole life and how it goes on. Do this in any ` civilized' country of the world, you will end up with hundreds of thefts and robberies in a single day. Strange are the ways of those who claim to be the standard bearers of civilization and human rights. They are compassionate to professional criminals but they have no mercy for the whole humanity harassed by them. In cold reality, showering mercy on one criminal amounts to being tyrannical to the whole humanity. This attitude is the greatest cause of disturbing public peace and tranquility. This is the reason why He, who is the Lord of all universes and worlds, and who provides sustenance to the virtuous and the vicious, the pious and the polytheists, the saints and the sinners, and who gives to snakes, scorpions, lions and wolves their livelihood, and whose mercy extends to all, it was He who, when He revealed the religious laws of Hudud in the Qur'an, also said along with it: وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّـهِ that is, ` do not show mercy to these criminals in enforcing the Hudud of Allah.' On the other hand, He declared Qisas (the Law of Even Retaliation) to be the life of humanity: وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَا أُولِي الْأَلْبَابِ that is, ` for you in Qisas there is life, 0 people of understanding.' It appears that those who oppose and obstruct the institution of Islamic Hudud, just do not wish that crimes be eradicated. Otherwise, as far as mercy is concerned, who else, if not Islam, can be the teacher? It is Islam which has recognized the right of even enemies and killers in the heat of the battlefield where it demands: Hold your hands before women, hold your hands before children, hold your hands before the aged, and do not kill the religiously observing not fighting against you on the battlefield but are busy with worship in their way.
What is most astonishing is the cold fact that objections against Islamic punishments are raised by, of all the people, those have their hands red with the blood of hundreds and thousands of innocent and blame-free human beings of Hiroshima even to this day, human beings who may have never dreamed of fighting and killing in a battlefield and included among them are women and children and old people, a whole lot of human beings indeed! And these are the people whose fury has still not subsided even after the tragedy of Hiroshima and who are still going ahead with all sorts of goals and projects and exper-iments to build and stock nuclear weapons of mass destruction.
Other than this, there is not much we can say, except raise our hands in prayer - May Allah remove the curtains of selfishness from their eyes and may He guide them towards the true Islamic methods of establishing peace in the world.l
1. This is the basis of the nuclear conflict among nations. The haves want to keep what they have and stop others from having it. If others have it, that will be ` proliferation'. The power to destroy must stay with the powerful. Because, powerful is responsible. But, was it? So, being powerful, or mutually cooperating powerful, is no guarantee that nuclear weapons will not be used. Human beings of one country sitting on their nukes and talking about world peace is hardly believable.
Let's say Amen to the prayer.
A word about the use of the word, ` deterrent' with nuclear weapons. They are there, just in case ... They are supposed not to be used first. They are for retaliation. The having of nuclear weapons means that everybody should behave, or else! So, they are ` deterrents', telling people to be careful and not mess around. So human beings can have deterrents to check the irresponsible behaviour of others, the behaviour of ` rogue' states, for example. Now, if God were to enforce His own deterrent against criminals, robbers and thieves and fornicators, in His wisdom, how could that become ` savage' overnight? Or, is it that what a set of human beings can do in their ` self-interest', cannot be done by God, in His Wisdom? ... Mercy! (Tr.)