In the modern democratic world there is debate whether capital punishment should be awarded for any crime howsoever serious. Many people are shocked at this debate and feel how capital punishment could be abolished at all. They feel that it is fear of death punishment which keeps criminals and murderers restrained. If the capital punishment is abolished, they argue, people will not be safe and the graph of the murder will soar high. However, these are not sound arguments. At one time the pick pockets were also hanged in England and when the death sentence for pick pocketing was sought to be abolished same argument was advanced that no pocket will be safe. It is also pointed out that when a pickpocket was being hanged and the people had gathered to witnesses his execution, some pockets were being picked.

It is not always true that a stringent punishment is sufficient to check crime. At best, it is one of the factors necessary to control crime but never a sufficient one. There are several causes among which social, economic and educational ones are quite important. One cannot check crime without creating congenial social and economic conditions, on one hand, and educating people and creating proper moral atmosphere, on the other. Socio-economic conditions, and not mere lack of stringent punishment, encourage crime. If there is poverty and high rate of unemployment and also widespread illiteracy and lack of moral education, crimes, including murder will thrive. Also, even if there is no absolute poverty and unemployment, but serious structural imbalances and serious socio-economic differentials, crime rates will go up.

It has been observed by sociologists and statistics also prove that stringent application of capital punishment has never brought down the number of murders. And, on the other hand, abolition of capital punishment is not known to have pushed up the number of murders. There are various causes of murder in the society. Some murders take place under severe provocation as well as emotional instability and some murders take place because of insatiable greed, property disputes and similar other causes. Some murders take place because of wrong notions of family honour and some murders take place because of sexual affairs with ones wife. In several Islamic countries like Pakistan, Egypt and Jordan, honour killings are quite common. A daughter or sister is killed just because she wants to marry someone of her own choice or she enters into a love affair with a friend. In Pakistan one woman was shot dead at the instance of her own mother, as she wanted to divorce her husband. Divorce became a question of family hor for the parents who hailed from North West Frontier Area of Pakistan which has strong tribal traditions of family honour.

Some murders are planned and executed and such murders are referred to as 'cold-blooded murders. Such murders are often out of personal vendetta or on account of property disputes or sexual affairs. Some times a film also becomes as cause for murder as it happened in Pune when five members of Dandekar family were murdered by some youth after watching a movie. They just wanted to imitate a scene in the film. Some murders are committed in a state of inebriation. Thus it will be seen there are varied causes of murder some deliberate and some beyond ones control. Where murders are well planned the assumption is that they will not leave behind any proof and will never be caught. Thus the murderers hardly have any fear of any punishment, let alone that of death punishment. They often think and do deceive the law. And those who commit murders under severe provocation or out of sheer frustration hardly have any control on themselves. It is for these reasons that retention or abolition of death penalty hardly brings down the rate of murder in the society.

Thus retention of capital punishment can hardly be an effective weapon of bringing down or checking the rate of murder in the society. Also, any judgement of the court, howsoever well arrived at, cannot be totally infallible. Judges are human beings and can err. Some times death penalty is pronounced by a thin majority of one, other judges dissenting. Thus a human life can be snuffed out even erroneously. Both possibilities are there: An innocent person being hanged and a guilty escaping the punishment. But, in case of capital punishment, it is always better that a guilty be discharged than an innocent person being hanged. Also, much depends on quality and truthfulness of witnesses, their memory and their perceptions as well as their motivations. Often witnesses do not give testimony truthfully for fear of their own life. Some witnesses can be bought. The ability of defence lawyer or that of prosecuting lawyer can also make all the difference. A murderer thus can escape the clutches of law by hiring a competent defence lawyer and by purchasing the witnesses. An innocent person, on the other hand, can be awarded death punishment just because he cannot afford a competent lawyer and is unable, for various reasons, to marshal proper witnesses. Thus a death sentence can never be above controversies. Some murders are committed under ideological influences and it will be quite unjust to punish such a person with capital punishment.

Islam and Capital Punishment.

Islam does not approve of any life being taken without any just cause or very valid ground. The Qur'an says in verse 5:32 "We prescribed for the Children of Israel that whoever kills a person, unless it be for manslaughter or for mischief in the land, it is as though he had killed all human beings. And whosoever saves a life, it is as though he had saved the lives of all human beings. This is very strong statement about the value of human life. Islam would not approve of any life being taken as life is creation of Allah and representative of all living beings on earth. Life is creation of Allah and Qur'an being word of Allah is very respectful of life. Killing any person unjustly is, in the eyes of Allah, killing entire humanity and saving one life is, in the eyes of Allah, saving of entire humanity.

Some people assume that Islam stands for capital punishment and quote the verse on qisas (2:178) in support of their argument. The verse is as under:

"O 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,
Compensate him
With handsome gratitude,
This is concession
And a Mercy
From your Lord
After this, whoever
Exceedes the limits
Shall be in grave penalty."

The whole spirit of this verse is not of killing the killer but to pardon him or to reduce the penalty, which is described as takhfif min rabbikum (i.e. reduction or remission from the Merciful Lord). Though the earlier part of the verse appears to justify killing in retaliation but it is not the spirit of the verse. Abdullah Yusuf Ali whose translation is quoted above also writes in the footnote, "Note first that this verse and the next make it clear that Islam has much mitigated the horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of justice, equality is prescribed, with a strong recommendation for mercy and forgiveness."

He further adds to strengthen his argument that "to translate qisas, therefore, by retaliation, is I think incorrect. The Latin legal term Lex Talionis may come near it, but even that is modified here. In any case it is best to avoid technical terms for things that are very different. "Retaliation" in English has a wider meaning equivalent almost to returning evil for evil, and would more fitly apply to the blood feuds of the Days of ignorance. Islam says: if you must take a life for life, at least there should be some measure of equality in it; the killing of the slave of a tribe should not involve a blood feud where many free men would be killed; but the law of mercy, where it can be obtained by consent, with reasonable compensation, would be better."

Thus it will be seen from above that firstly, the Qur'an is dealing with very complex pre-Islamic situation in which ruthless blood feud went on for generations involving endless bloodshed of hundreds of innocent people. The Qur'an, in such situations, applies the law of equality (not of retaliation as explained by Abdullah Yusuf Ali) to minimise bloodshed. Secondly, the Qur'an, being a divinely revealed Book from the Merciful Lord, transcends prevailing norms and gives us the concept of remission and compensation. Islam, while dealing with the given situation, also desired to equip humanity with new morality for emergence of new human person. This morality was based not on the old concept of retaliation but on the new concept of mercy and compassion, the core values of the new morality.

But it is also to be borne in mind that howsoever great the new morality and ethical values the given social context cannot be ignored altogether. The idea is to carry the people embedded in old traditions with new morality and to influence them at deeper level. At times this can be done only by creative blend of the given and transcendent in a way that transcendent emerges as the new ethical nor and the given fades out slowly. But those who do not absorb the true spirit of the Qur'an insist literally on certain words of the scripture and refuse to see the real import of new and transcendent morality. They insist on words like qisas (law of equality or retaliation as translated by some others) and want to kill the murderer in retaliation as the proper Islamic punishment. They forget that it is the spirit of new morality imparted by the Qur'an which is far more important than certain concessions to the given situation.

The Qur'an is basically against executing any human being in ideal circumstances. It also warns believers not to kill any other believer except by mistake. Thus we read in verse 4:92 as under:

Never should a believer kill a believer;
But (if it so happens) by mistake,
(Compensation is due);
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.
If the deceased belonged
To a people at war with you,
And he was a Believer,
The freeing of a believing slave
(Is enough). If he belonged
To a people with who
Ye have a treaty of mutual
Alliance, compensation should
Be paid to his family,
And a believing slave be freed.
For those who find this
Beyond their means, (is prescribed)
A fast for two months
Running; for Allah hath
All knowledge and all wisdom.

Thus it will be seen that Qur'an warns against killing any believer and if it takes place by mistake or accidentally the killer should normally free a slave and compensate the family of the one killed by mistake. Thus the Qur'an fulfils two objectives together: getting slaves freed and accord compensation to the family of deceased. And if the person killed belongs to those at war with the killer, the family of the killed may not be compensated but a slave ought to be freed in any case. And where compensation is to be paid and the killer has no means at his command he should fast for two months continuously to purify himself. Thus the objective is to reform the killer.

However, if a person kills anyone deliberately even then the Qur'an does not talk of awarding death punishment. It says in 4:93:

If a man kills a believer
Intentionally, his recompense
Is Hell, to abide therein
(Forever); and the wrath
And the curse of Allah
Are upon him, and
A dreadful penalty
Is prepared for him.

If a man kills some one intentionally it is Allah who will punish him and his recompense will be hell in which he will abide forever. Even in such cases one should not sentence the killer to death. Since the Qur'an is talking here of the punishment in hereafter it does not mean that human beings, in order to meet the requirements of given situatio, cannot make laws to punish a person in this world too. Either one can be imprisoned or some similar physical punishment could be given. However, one should not take life, which is sacred and has been created by Allah.

The Qur'an has prescribed rigorous standard of justice and it is quite possible that despite scrupulous intentions one may not be able to fulfil the rigorous standard of justice and may sentence a person to death this snuffing out life which is creation of Allah. It is quite obvious that it is very difficult to get foolproof witnesses in human situations. The Qur'an also lays down rigorous standards for giving witness. If one does not bring forth witnesses after making accusation such persons are liars unto Allah (see 24:13). And obviously the witnesses should be quite truthful.

The Qur'an lays down for witnesses that:

O ye who believe!
Stand out firmly
For justice, as witnesses
To Allah, even as against
Yourselves, or your parents,
Or your kin, and whether
It be (against) rich or poor;
For Allah can best protect both,
Follow not the lusts
(of your hearts), lest ye
Swerve, and if ye
Distort (justice) or decline
To do justice, verily
Allah is well acquainted
With all that ye do.

The Qur'anic standard of justice is so rigorous that one should stand witness truthfully even if it goes against oneself, against ones parents and against ones kin and should not swerve from the path of truth even while giving witness against rich or poor.

This assertion of being truthful witnesses is again repeated in the verse 5:8 when the Qur'an says:

O ye who believe!
Stand out firmly
For Allah, as witnesses
To fair dealing, and let not
The hatred of others
To you make you swerve
To wrong and depart from
Justice. Be just: that is
Next to Piety: and fear Allah
For Allah is well acquainted
With all that ye do.

Unless murder trial is based on such truthful witnesses as laid down in two above verses it cannot be said to be a just and fair trial. It is well known that hardly any trial in our courts will come up to such rigorous standards of testimony and truth. In many cases the prosecutors that is the police themselves are known to fabricate charges against the accused. Even if the trials are based on proper charges delays in trial vitiate the trial. The witnesses produced may forget the details or even the main points in trial and such trial can never be fair and reasonable.

Also, in most of the cases death sentences are given to the poor. There are hardly any cases in which a rich and powerful is condemned to be hanged. Despite the Qur'an's warning not to be swayed by any other considerations except that of truth there is hardly any believer who measures up to the Qur'anic standard. And if a person against whom testimony is being given happens to be poor considerations of truth may hardly matter. It also happens that to save rich, poor may be made a sacrificial goat by producing false witnesses. It can happen in case of personal vendetta also.

Of course here we are referring to cases of biases or personal vendetta or power of the powerful. What if a case is based on caste iron proof and the murderer also happens to be a hardened criminal who has committed murder in a well-planned manner? And such cases may not be rare in our world today. There are Mafia dons in most advanced countries who kill innocent people for money and accumulate great deal of wealth. Should such people not be hanged? Firstly such people are hardly ever caught and even if caught it is difficult to prove charges against them as they never commit murder themselves but employ someone else to do the dirty work. Secondly they terrorise the witnesses and vitiate the whole process of justice and it becomes impossible to prove anything with certainty.

But again the argument even if theoretically, may be made that what if such a criminal is caught and case against him is proved beyond any measure of doubt? Should he be hanged? There is doctrine of awarding death sentence in rarest of the rare cases. Should that doctrine be employed in such cases? The answer should be no. For, if the purpose of death sentence is to create fear in the minds of such people it will be a singular failure. Such cases are after all rare and in most of the cases such criminals go Scot free and all other such criminals will think that cases against them will be difficult to prove and hence such death sentence will fail to achieve its purpose any way. Instead if all the properties of such a gangster is confiscated (and such gangsters are known to collect great deal of illegitimate wealth) and distributed among the bereaved of those killed, may serve more exemplary sentence. The criminal himself could be sentenced to hard labour for life and an attempt may be made to reform him. Who knows he might be reformed. The ultimate goal of law should be to reform even hardened criminals and make them useful members of society again. It would be more in keeping with the Mercy of Allah and His Wisdom than killing a person. The ultimate goal of the Qur'an also is to enforce good and forbid evil from the society. There are numerous verses to this effect in the Holy Qur'an. If we want to achieve this goal prisons should be converted into reformatories so that criminals should also be made into useful and law abiding citizens. By hanging a few poor and weak persons we are not going to achieve anything.

I am quite aware of the concept of the hudud punishment in Shari'ah. One may argue that how one can go beyond these hudud punishments? It should be remembered that the shari'ah laws are also based on the customary law (adat) of the society. However, as pointed out by Shah Waliyullah also in his magnum opus Hujjat Allahil Balighah that customary law of one society or one generation should not be imposed on other society and other generation. The law in such matters should evolve with the society and changing times. The ultimate goal of the law should be to produce human beings of high moral character and to remove evil from the society. In Qur'anic words ma'ruf (good) should be spread and munkar (evil) should be forbidden form the society. The laws are means to achieve this moral goal. It is final goal which is more important than the law itself.

According to the Qur'an all human beings have been created honourable and in the best of mould (see 17:70 and 4:95). The human persons are fragile and often slip into the category of lowest of the low but than it is for guides and reformers to restore their character and bring them back to the best of the mould. It cannot be done through punishments alone. Punishments can serve very limited purpose and in some immediate cases. The ultimate goal should be to reform a person through proper guidance and through love and wisdom. Apart from justice love, mercy and wisdom are ultimate values of the Qur'an and these values should inspire us in making our laws also. We should also keep in mind that the poor and weaker sections of the society should not become victims of our laws which is what is happening in our modern capitalist society. The powerful use the law only to victimise the poor and helpless. It is defeating the very purpose of law. Death sentence too is used against such vulnerable section of society. The powerful anyway evade it.

We should, therefore, remove this curse from the society and save thousands of helpless people from gallows who often die for no fault of theirs. They deserve mercy, more than others and reformation would help them immensely. It is society, which makes criminal out of them by depriving them of basic needs of life and it is for the guardians of society to see that they are restored as useful citizens of the country. When a child stole some fruits from the orchard of his master and this was reported to the holy Prophet, he, rather than punishing the child for stealing, required his master to educate the child properly and meet his basic needs to make him a useful human being. Is this not the good example for being adopted to combat crime in the society?

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