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The Punishment of Qisas (Even Retaliation)
Like Hudud, the punishment of Qisas has also been fixed in the Qur'an, that is, life be taken for life and wounds be retaliated by even wounds. But, the difference is that Hudud have been enforced as the Right of Allah (Huququllah). It means that should the holder of the right elect to forgive the offence, it will not be forgiven, and the Hadd will not be dropped. For example, should the person whose property has been stolen were to forgive the thief, the Islamic prescribed punishment for theft will not stand forgiven on that count. This is contrary to the case of Qisas where the Qur'an and Sunnah have declared the status of the Right of the Servant of Allah (Haqqul-'Abd) as predominant. This is why the accused killer, after the crime of killing has been proved legally, is handed over to the guardian (Wali of the person killed who can, at his discretion, take Qisas and have him killed, or forgive him, if he so wishes. Similar to this is the case of Qisas in cases of wounds.
You already know that Hudud and Qisas when dropped do not let the criminal go unscathed, the ruler of the time having the power and discretion to award the amount and kind of penal punishment (Ta'zir) considered appropriate. Therefore, it should not be doubted that, in the event,the criminal charged with homicide were to be set free after having been forgiven by the guardian of the person killed, killers would be encouraged and cases of homicide would become common. This doubt is unfounded because taking the life of the person who had killed was the right of the guardian of the person who was killed and he surrendered it by forgiving. But, providing the security of life for other people is the right of the government. It can, to protect this right, sentence the killer for life or give him some other punishments in order to offset the danger posed by such a person to the lives of other people.
The Explanation of Ayat and Details of Hudud
Upto this point, we have dealt with necessary information about the terminology of Islamic Legal Punishments of Hudud, Qisas and Ta'zirat. We can now move to the explanation of verses which carry injunctions about then] and which would also include a detailed discussion of Hudud. The first verse (33) begins by stating the punishment of those who fight against Allah and His Messenger and go about spreading disorder in the earth. For the sake of clarity, let us consider two things at this stage.
1.What does 'fighting' (Muharubah) against Allah and His Messenger and spreading disorder in the earth mean, and to whom does this apply? The word, Muharabah is derived from Harb and intrinsically means to wrest or snatch away. In Arabic usage, it is used against Salm which means peace and security. Thus, we can see that, the
sense of Harb (fight) is the spreading of disorder. It is obvious that rare incidents of theft or killing and plundering do not cause public Peace to be disturbed. In fact, this happens only when a powerful and organized group stands UP to carry out acts of robbery, killing and plundering. Therefore, according to Muslim jurists, the punishment contemplated in this verse is meant for a group or an individual who robs people and breaks the law of the land by the force of arms. This will not include those who indulge in common individual crimes such as thieves and pick-pockets. (Tafsir Mazhari).
2. The second point worth noticing in this verse is that Muharabah' (fighting) of the criminals is said to be against Allah and His Messenger, though the confrontation or fighting waged by robbers and rebels is apparently against human beings. The reason is that a powerful group when it elects to break the Law given by Allah and His blessed Messenger with force, it is really at war with the government, even though they are obviously carrying out their aggression against common.human beings. But, when the government itself is Islamic, a government which subscribes to and enforces the Law of Allah and His Messenger, this act of 'fighting' (Muharabah) will invariably be regarded as being 'against' Allah and His Messenger.
In short, the punishment mentioned in the first verse (33) applies to robbers and rebels who ruin public peace by attacking with armed group force and break the law of the land openly. As obvious, this could appear in many forms. So, everything from aggression against property and honour to killing and bloodshed is included within its sense. It is from here that we find out the difference between Muqatalah and Muharabah. Muqatalah refers to a bloody fight, though with actual killing or without, and though property is also looted as an adjunct. The word, Muharubah is used in the sense of spreading disorder by employing force and causing the destruction of public peace and safety. Therefore, this word is particularly used to denote high-handed and group-led intrusion into anything relating to the life, property and honour of people which is called highway looting, robbery and rebellion.
The punishment for this crime has been fixed by the Holy Qur'an itself when it enforced it as the Right of Allah which, in a manner of "saying, was a crime against the ultimate authority. In the terminology of the Shari'ah, it is called the Hadd. Let us now find out the Islamic prescribed punishment for dacoity and highway robbery. In the present verse (33), four punishments for highway robbery have been mentioned: أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ : That they shall be killed off or be crucified or their hands and legs be cut apart from different sides or they be kept away from the land (they live in).