Qisas Topic on Murder PDF

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Qisas Murder Qisas Concept •

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If murder is wilfully committed, and injury is deliberately caused, the relevant punishment to be imposed is Qisas punishment. Qisas can also be said to be the law of retaliation in such a way that the offender is punished in the same manner as to how the manner of harm he caused onto the victim. If a person were to lose their life or their body parts were to be affected, Qisas would be the relevant punishment. Qisas is not an obligation, but is instead a right. Therefore, if a person’s body part is affected in such a way that it sustains hurt, they are entitled to exercise the right of qisas upon the offender. On the other hand, if the victim was killed, the heir of the victim may lawfully take away the life of the offender. Besides that, qisas can also be said to be the right to forgive the offender instead of requesting for retaliation against the offender. This can be seen by the fact that the victim or his heirs may ask for diyah, which is blood money, instead of invoking the right of qisas. If they were to choose to forgive the offender, they will be rewarded in the afterlife by Allah. This is supported by Hadith by Anas, which states, whenever a matter of Qisas was brought to the Prophet for adjudication, he exhorted the aggrieved party to pardon the wrongdoer. This means that it is encouraged by the Prophet to forgive an offender when it comes to a matter concerning Qisas. Furthermore, since the aggrieved person or the heirs of the aggrieved person have would have an urge to retaliate if murder or hurt is carried out, the right of qisas ensures that peace, security, and safety maintained as it helps to relinquish the spirit of revenge when there is an urge to retaliate.

Definition •

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If murder or personal injury is committed by a person against others, the relevant punishment for such an offender under Islamic law would be Qisas punishment. Since Qisas is also known as the law of retaliation, the offender is to be punished in the same manner as the manner in which he imposed wrong against the victims. This is due to the fact that human blood is considered a sacred thing in the eyes of Islam. Chapter 5, verse 32 of the al-Quran “Whoever kills a person for other than manslaughter and corruption in the land, it shall be as if he had killed all mankind, and whoever saves the life of one person, it shall be as if he had saved the life of all mankind.” o Note: This verse recognizes that when it comes to the matter of murder, the law of retaliation is to be imposed. Chapter 17, verse 33 of the al-Quran “And slay not the life which Allah has forbidden save with right.” o Note: This verse recognizes that in the eyes of Islam, a person cannot simply take away the life of another person.

Intentional Murder Definition

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Intentional murder can be said to be the kind of murder in which a person wilfully and intentionally carries out the killing of another, and such action wielded an effect that is fatal, causing the death of the other person.

Elements 1. The victim must be a living human being at the time of death. • This means that if a person has the intention to cause death to a dead person, such a person cannot be said to have committed an offence and cannot be found guilty. As an example, if a person were to cause death to a child in a womb, they would not be found guilty. • Instead, the victim has to be a living human being and must be protected. • When it comes to who falls under the meaning of protected persons, it would be Muslims and non-Muslims who stay in the Islamic state. The reason for this is due to the fact that the blood and property of such persons are considered sacred in the view of Islam. Therefore, if a person were to bring death upon such persons, qisas punishment will be imposed upon him. 2. The victim must have died as a result of the action of the accused. • This means that the accused’s act must have a fatal effect which caused the murder to occur. • If the act done by the accused was not of a nature which would ordinarily cause death, the accused cannot be found liable for intentional murder. • Furthermore, the accused must have been the one who did the act, not another. • Also, the death of the victim must have been caused as a result of the accused’s act with the absence of a cooling period of a possible recovery or another person committing another deadly act. • Examples of acts that are of a nature to ordinarily cause death would be the use of deadly weapons, heavy stone, hammer, strangulation, poison, fire, throwing into deep water against the victim. • Furthermore, in deciding if an act is likely to cause death or not, some factors that will be considered include, an expert’s opinion, the physical condition of the victim and the accused, the environment, the kinds of weather, and the types of weapons. • Imam Maliki is of the opinion that under the situation of a person having the intention to cause death to another, it would constitute intentional murder regardless of what kind of weapons or methods were employed by the accused. • On the other hand, Shafie and Hanbali are of the view that if a weapon or method likely to cause death is employed by the accused, such accused will be found liable for intentional murder. However, if the accused uses a weapon or a method not likely to cause death, they would not be found liable for intentional murder. • When it comes to the view of Hanafi, the view states that the accused would be found liable for intentional weapon if weapons like gun, razor, knife, were used by him as such weapons are able to cut off limbs. On the other hand, if the accused uses weapons like sticks, or an unsharpened stone, they would not be found guilty for intentional murder. • Furthermore, if it is proven that two or more persons caused the victim’s death, they would all be held liable as long as the conduct by each of them amounts to that which

is adequate to result in death. If their acts cannot be identified as being able to bring about death or their act is ruled as being inadequate to bring about death, they can still be held liable. 3. The offender has willful intention of causing death of the victim. • Criminal intention can be said to be when a person is willing to commit an act which is prohibited or to omit from doing an act. • Chapter 33, verse 5 of the al-Quran ‘There is no blame on you if you make a mistake, what counts is the intentions of your hearts’ o Note: This verse means that intention will be considered when a matter is done. • A Hadith states that the Prophet said, “Actions are rewarded according to intentions.” o Note: This means that when determining if certain actions should be given rewards or not, intentions would be scrutinised. • Chapter 4, verse 93 of the al-Quran “If a person kills a believer intentionally, his recompense is Hell, to abide therein for ever and the wrath and the curse of God are upon him.” o Note: This means that if a person were to intentionally kill another person, such murderer would be punished in Hell. • Intention can be said to be the intention of the offender to bring about the death of the victim through his conduct to bring about death, and this would cause him to be guilty for intentional murder. Therefore, if a person does not have intention, they would be regarded as innocent. A person is further regarded as innocent if the attacks employed were not having the intention to cause murder. Furthermore, the confession of the accused can be used to determine intention. • On the other hand, if an accused did not confess, the usage of weapons, circumstantial evidence, and relevant circumstances would be used instead to determine the accused’s intention. • Therefore, jurists are of the opinion that if deadly weapons were used by the accused to bring about death, the accused would be guilty, as intention to bring about death can be seen from the fact that deadly weapons were used. • Furthermore, if a person were to be thrown from a high place into deep water with nowhere to escape, the accused would be found liable for intentional murder. • The intention of the accused can also be gathered from the previous enmity and motive of the accused. However, such sources are not reliable, and it is a need to prove guilt beyond doubt. Proof 1. • a) •

Confession For this, the confession has to come from the offender. Confession must be a clear, free, and willful confession by the accused Confession can be said to be the statement of an individual that is made before the court to state that the individual had indeed committed the offence he has been accused of.

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However, before a confession can be deemed valid, the accused must expressly state the facts of the offence is done. He must state this in an accurate manner. The words that are used by him to describe such act must be clear and not metaphoric so that all doubt can be removed and prove that the accused does indeed know how it is performed.

b) Confessor must be adult and a good mental condition • The individual who makes the confession must he capable of self-expression. Furthermore, such individual must be an adult and be in good mental condition. • Due to such a requirement, an issue arises as to whether a confession from the deaf and dumb can be accepted. • There are two such views pertaining to this issue. • The first view is from Imam Abu Hanifa where he is of the opinion that the confession of the deaf and dumb is not acceptable even though the deaf and dumb individual is capable of writing his confession or making signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is not acceptable according to this view. • The second view is from Imam Malik, Imam Shafie, and Imam Ahmad. According to then, they are of the opinion that the confession of the deaf and dumb can be accepted only if the deaf and dumb individual is able to write his confession or make signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is acceptable only if a confession in writing or intelligible signs can be made by such an individual, according to this view. c) Confession must be voluntary • When it comes to such confession, it must be voluntary. • It is said to be voluntary if it had been made with the free consent of the confessor, who did not face any pressure, force, temptation, or coercion. If he had made a confession under such circumstances, the confession made by him is said to not be valid. d) Confessor must explicit as to committing of the offence • This means that the confessor has to make a clear and direct confession in order to be considered explicit. • This means the confessor is able to mention the time, place, and weapon used for the crime he committed. • The standard of explicit has two different views on how it can be achieved. • The first view is from Imam Abu Hanifah and Imam Ahmad who are of the opinion that the confessor has to make four separate confessions before the court in order for it to count as the confessor being explicit, and only then can such confession become sufficient proof. • The second view is from Imam Malik and Imam Shafie who are of the opinion that the confessor only has to make a one-time confession in order for the confessor to be considered explicit and such one-time confession is enough to be considered as sufficient proof.

2. Testimony of two adults, sane, male and reliable eyewitnesses. • The witness must be adult and sane. Therefore, a minor would not be able to be considered a witness and is not allowed to provide a testimony to the court. • Furthermore, the witness has to be a Muslim. It is agreed by all jurists that evidence of a non-Muslim is not acceptable. • Also, according to the majority of the jurists, the witnesses must be male. They believed that a woman is not allowed to provide evidence when it comes to matters of hudud and that such evidence is not acceptable. As such, a woman cannot act as a witness in hudud matters. It should be noted though, that this is a juristic view and not based on the al-Quran or the Sunnah. • In addition, a witness must be adil. The definition of adil is a Muslim who refrains himself from major sins, does not commit any minor sins, has visible good deeds which are more than his evil deeds, and is moderate in his works and sayings. Generally, the jurists have agreed that adil is a Muslim who is considered as reliable in the society and does not behave notoriously. However, there are two views pertaining to the credibility of witness. o The first view comes from Imam Abu Hanifah. He is of the opinion that every witness is to be considered credible and should not have their credibility questioned unless there is a challenge by the opposite party on such credibility. Therefore, there is to be an assumption that every witness is credible unless challenged otherwise. o The second view comes from Imam Shafie and Imam Ahmad. They are of the opinion that a witness has to fulfil the condition of credibility of witness as laid down in the al-Quran regardless of whether or not such credibility has been challenged by the other party. This means the witness must not have committed small sins or big sins as stated accordingly in the al-Quran. 3. Circumstantial evidence (Qarinah) • A certain standard of certainty must be gathered from the circumstantial evidence and it must be proven beyond reasonable doubt. • Examples of circumstantial evidence would include a person holding a knife and covered in bloodstains, and then coming out of a place with an afraid look on his face, and the body of a dead man is later found in such place. Punishment •

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Chapter 2, verse 178 of the al-Quran “Believers! Retribution is prescribed for you in cases of killing:if a freeman is guilty then the freeman; if a slave is guilty then the slave; if a female is guilty, then the female. But if something of a murderer’s guilt is remitted by his brother this should be adhered to in fairness and payment be made in a goodly manner. This is an alleviation and a mercy from your Lord; and for him who commits excess after that there is a painful chastisement.” Chapter 2, verse 179 of the al-Quran “People of understanding, there is life for you in retribution that you may guard yourselves against violating the Law.”

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It can be seen that these two verses state that the accused will be subjected to the law of retaliation if the accused committed intentional murder against others. Chapter 5, verse 45 of the al-Quran “We ordained for them in the Torah, “A life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth—and for wounds equal retaliation.” But whoever waives it charitably, it will be atonement for them. And those who do not judge by what Allah has revealed are ˹truly˺ the wrongdoers.” o Note: This means that when there is intentional killing, the law of retaliation may be imposed. Chapter 17, verse 33 of the al-Quran “Do not take a ˹human˺ life—made sacred by Allah—except with ˹legal˺ right. If anyone is killed unjustly, We have given their heirs the authority, but do not let them exceed limits in retaliation, for they are already supported ˹by law˺.” o Note: This means that a person cannot be simply killed. If they are indeed killed in an unjust manner, the victim’s heirs have the right to exercise retaliation within certain limits. A Hadith states, “We shall kill the person who kills another person.” A Hadith states, “Whoever intentionally causes death to a person shall be liable for qisas i.e. death unless the victim’s heirs forgive him.” From the two Hadiths, it can be seen that death penalty or qisas is recognized to be able to be imposed on the accused who kills a victim, unless they are forgiven by the victim’s heirs.

Quasi-Intentional Murder Definition •

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If a person were to intentionally do an act against another person, but this was not deadly, but the act still brought about the death of the victim, this would constitute quasi-intentional murder. For example, if a person employs the use of a small stick or stone to hit the victim, as such use of such objects would not ordinarily bring death, but the victim still dies as a result, the person would be liable for quasi-intentional murder.

Elements 1. The offender must have the intention of causing bodily harm to the victim and has no intention of causing him death. • This means that there is intention to cause bodily harm and not intention to cause death. 2. The weapon or the act of the offender is not likely to cause death in ordinary course of nature. • This means no deadly weapons can be used. Instead, simple weapons are used, but they brought about the death of a person. 3. The victim dies as a result of the act of the offender. • This means that the accused’s act must have a fatal effect. • Furthermore, the accused must have been the one who did the act, not another.

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Also, the death of the victim must have been caused as a result of the accused’s act with the absence of a cooling period of a possible recovery or another person committing another deadly act.

4. The victim shall be a protected person. • When it comes to who falls under the meaning of protected persons, it would be Muslims and non-Muslims who stay in the Islamic state. The reason for this is due to the fact that the blood and property of such persons are considered sacred in the view of Islam. 5. The victim must be a living human being at the time of the commission of the offence.

Proof 4. • e) •

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Confession For this, the confession has to come from the offender. Confession must be a clear, free, and willful confession by the accused Confession can be said to be the statement of an individual that is made before the court to state that the individual had indeed committed the offence he has been accused of. However, before a confession can be deemed valid, the accused must expressly state the facts of the offence is done. He must state this in an accurate manner. The words that are used by him to describe such act must be clear and not metaphoric so that all doubt can be removed and prove that the accused does indeed know how it is performed.

f) Confessor must be adult and a good mental condition • The individual who makes the confession must he capable of self-expression. Furthermore, such individual must be an adult and be in good mental condition. • Due to such a requirement, an issue arises as to whether a confession from the deaf and dumb can be accepted. • There are two such views pertaining to this issue. • The first view is from Imam Abu Hanifa where he is of the opinion that the confession of the deaf and dumb is not acceptable even though the deaf and dumb individual is capable of writing his confession or making signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is not acceptable according to this view. • The second view is from Imam Malik, Imam Shafie, and Imam Ahmad. According to then, they are of the opinion that the confession of the deaf and dumb can be accepted only if the deaf and dumb individual is able to write his confession or make signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is acceptable only if a confession in writing or intelligible signs can be made by such an individual, according to this view.

g) Confession must be voluntary • When it comes to such confession, it must be voluntary. • It is said to be voluntary if it had been made with the free consent of the confessor, who did not face any pressure, force, temptation, or coercion. If he had made a confession under such circumstances, the confession made by him is said to not be valid. h) Confessor must explicit as to committing of the offence • This means that the confessor has to make a clear and direct confession in order to be considered explicit. • This means the confessor is able to mention the t...