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A Narrative regarding the Restriction on Death Penalty


Subject Matter of the Narrative[1]:

In one of the narratives ascribed to the Prophet (pbuh), it is reported that it is prohibited to deprive a Muslim man of his life except under the circumstances that he is guilty of one of the following three crimes:

  1. Murder;

  2. Apostasy; and

  3. Fornication after marriage.

The narrative has been reported through Uthman (ra) as follows:

روي أن رسول الله صلى الله عليه وسلم قال: لا يحل دم امرئ مسلم إلا بإحدى ثلاث: كفر بعد إسلام أو زنا بعد إحصان أو قتل نفسا بغير نفس (أبو داود، رقم الحديث 4502)

It is narrated that the Prophet (pbuh) said: [Shedding] the blood of a Muslim man is not permitted except in one of three cases: If he rejects [Islam], after having accepted it, or if he commits fornication after having been protected [through marriage] or if he has killed an innocent man.

In some narratives, as in Ibn Maajah's narrative no. 2533, it is also clarified that in case a person is guilty of adultery, he shall be killed by stoning to death.

In a variation of the narrative, the three crimes for which a person can be sentenced to death are:

  1. Murder;

  2. Declaring and promoting mutiny against God and His messenger; and

  3. Fornication after marriage.

This narrative, as reported through Ayesha (ra), is as follows:

روي أن رسول الله صلى الله عليه وسلم قال: لا يحل دم امرئ مسلم يشهد أن لا إله إلا الله وأن محمدا رسول الله إلا بإحدى ثلاث رجل زنى بعد إحصان فإنه يرجم ورجل خرج محاربا لله ورسوله فإنه يقتل أو يصلب أو ينفى من الأرض أو يقتل نفسا فيقتل بها (أبو داود، رقم الحديث 4353)

It is narrated that the Prophet (pbuh) said: [Shedding] the blood of a Muslim man who declares 'there is no God except the One God and that Muhammad is a messenger of God', is not permitted except in one of three cases: A man who commits fornication after having been married, for such a man shall be stoned to death; A man who declares and promotes rebellion against God and His messenger, for such a man shall be killed or crucified or sent into exile from his land; or if he kills a [crimeless] soul, for he shall be killed in retaliation.

In a further variation of this narrative, the three crimes for which a person can be sentenced to death are:

  1. Murder;

  2. Fornication after marriage; and

  3. Apostasy with declaring and promoting rebellion against God and His messenger.

This narrative, as reported through Ayesha (ra) is as follows:

روي أن رسول الله صلى الله عليه وسلم قال: لا يحل دم امرئ مسلم إلا بإحدى ثلاث خصال زان محصن يرجم أو رجل قتل رجلا متعمدا فيقتل أو رجل يخرج من الإسلام يحارب الله عز وجل ورسوله فيقتل أو يصلب أو ينفى من الأرض (النسائي، رقم الحديث 4048)

It is narrated that the Prophet (pbuh) said: [Shedding] the blood of a Muslim man is not permitted except in one of three cases: A married fornicator who shall be killed through stoning to death; or a man who intentionally kills another man for he shall be killed; or a man who leaves Islam declaring rebellion against God and His messenger, for he shall be killed or crucified or sent into exile from the land [of his residence].

In a slight variation of this narrative, as reported in Nissaiy's Sunan al-Kubraa's narrative no. 6945, the crime of murder has been qualified as murder of a Muslim.

In a further variation of this narrative, these three crimes have been reported as follows:

  1. Murder;

  2. Fornication of a person who is or has been married; and

  3. Apostasy accompanied by separating oneself and being rebellious against the Muslim state.

This narrative, as reported through Abd Allah ibn Masood is as follows:

روي أن رسول الله صلى الله عليه وسلم قال: لا يحل دم امرئ مسلم يشهد أن لا أله ألا الله وأني رسول الله إلا بإحدي ثلاث: الثيب الزاني والنفس بالنفس والتارك لدينه المفارق للجماعة. (مسلم، رقم الحديث 1676)

It is narrated that the Prophet (pbuh) said: [Shedding] the blood of a Muslim man who declares 'there is no God except the One God and that I am a messenger of God', is not permitted except in one of three cases: Married fornicator, a man killed in retaliation of murder and a person who leaves his religion and separates himself being rebellious against the Muslim state.

To summarize, these narratives give the following crimes after which a criminal may be sentenced to the death penalty:

  1. Murder;

  2. Fornication after marriage;

  3. Apostasy;

  4. Apostasy accompanied by declaring and promoting rebellion against God and His messenger;

  5. Apostasy accompanied by separating oneself and being rebellious against the Muslim state; and

  6. Declaring and promoting mutiny against God and His messenger;

It is obvious that if all the mentioned crimes are taken as independent and separate from the other, then the crimes for which the death penalty can be exercised are not restricted to three, in contrast to what is expressly mentioned in each of the narratives.

The Subject Matter in the Qur'an
The Qur'anic Directive regarding the Death Sentence:
The Qur'an has unequivocally restricted the death penalty only to two categories of crimes. The Qur'an says:

مَن قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (المائدة 5: 32)

Whoever kills a person - neither in retaliation of murder nor in retaliation of promoting disorder in the land - is as if he has killed the whole of the humankind.

It is quite clear from the cited verse that the crimes for which a person can be subjected to the death penalty are:

  1. Murder; and

  2. Creating or promoting disorder in the land.

Of the two mentioned crimes, murder needs no explanation. However, 'creating or promoting disorder in the land' includes crimes committed against the community, rather than an individual or crimes that are of the nature of religious persecution or crimes committed with the objective of spreading a wave of terror through the community or crimes committed against the state. Thus, it is clear that spreading disorder in the land does not refer to a specific crime, as theft, murder, fornication etc. but, on the contrary, it refers to the nature of a crime or to the spirit with which that crime is committed. Consequently, there may be some forms of theft or murder or fornication, which are placed under the category of spreading disorder in the land.

Death Sentence for the Polytheist Rejecters of a Messenger and Apostates among Them: Besides the two forms of crimes mentioned in the cited verse of the Qur'an, which by an express directive of the Qur'an have been made a part of the Islamic Shari`ah, we also know that, as a part of the Divine law relating to the advent of messengers (Rasu'l) of God, those polytheists who persist in their rejection even after God raises a messenger among them are sentenced to the death penalty. Thus, according to the Qur'an, as a result of the advent of the Messenger of God in the Banu Ishmael, those who rejected faith from amongst the polytheists were subjected to the death penalty, under the provisions of the Divine Law relating to the advent of God's messengers. Furthermore, if any of these polytheists had accepted Islam at the hands of the Messenger and later decides to return to his previous beliefs, then he too should be grouped with those who had rejected the call of the messenger and, thus, also be subjected to the same punishment. If seen in this perspective, the narrative under consideration actually means that those people who were to be punished, according to the law of God, had they not accepted Islam, would face the same punishment, if at any time during their lives they leave the folds of Islam and return to their previous beliefs.

Comment on the Narrative
It is clear from the Qur'an that a person may be sentenced to death only for a) Murder; b) Crimes of the nature of Creating Disorder in the Land, and c) Rejecting a messenger of God and continuing to adhere to polytheistic beliefs or becoming an apostate after having accepted the call of the messenger and, thereby, returning to one's polytheistic beliefs.

Keeping the foregoing information in perspective, it seems that the narrative has not accurately reported the actual saying of the Prophet (pbuh).

It is clear that even though some forms of sexual crimes may be placed under the category of Creating or Spreading Disorder in the Land, yet 'Fornication after marriage' cannot, under all circumstances, be placed under the stated category of crimes. Furthermore, 'Declaring and promoting mutiny against God and His messenger' and 'separating oneself and being rebellious against the Muslim state' are also crimes that fall under the category of Creating or Spreading Disorder in the Land.

Apparently, it seems that the Prophet (pbuh) mentioned three categories of crimes for which a person may be sentenced to death, according to the law of God, which were:

  1. Murder;

  2. Creating or Spreading Disorder in the Land which may include some forms of sexual crimes - just as it may also include some forms of crimes against life or property - and crimes against society, in general - such as being rebellious against the State etc.

  3. Apostasy of a polytheist who had previously accepted Islam at the hands of the Messenger of God.

However, it seems that the narrators of this saying of the Prophet (pbuh) have mistakenly replaced one of the examples of the second category of crimes in the narrative.

Conclusion
In view of the foregoing observations, besides the reported variances in the text of the narrative, it is clear that the narrative, in the form that it is reported cannot be accepted as accurately reporting an actual saying of the Prophet (pbuh).

(This write-up is prepared by the Hadith Cell of Javed Ahmad Ghamidi)

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[1] This narrative, in various forms, has been reported in Bukhariy (narrative no. 6484), Muslim (narrative no. 1676), Abu Dawood (narrative no. 4352, 4353 and 4502), Ibn Maajah (narrative no. 2533 and 2534), Tirmidhi (narrative no. 1402 and 2158), Nasaiy (narrative no. 4016, 4017, 4019, 4048, 4057, 4058, 4721 and 4743), Ahmad Ibn Hanbal (narrative no. 437, 438, 452, 468, 509, 3621, 4065, 4245, 4429, 24349, 25514, 25516 and 25741), Ibn Hibban (narrative no. 4407, 4408, 5976 and 5977) Nasaiy's Sunan al-Kubraa (narrative no. 3479, 3480, 3482, 3511, 3520, 3521, 6923 and 6945), Bayhaqiy's (narrative no. 15621, 15622, 16594, 16595, 16596, 16638, 16700, 17089 and 17094), Daarimiy (narrative no. 2297, 2298 and 2447), Abd al-Razzaq (narrative no. 18702 and 18704), Humaydiy (narrative no. 119), Ibn Abi Shaybah (narrative no. 27901, 27902, 27903 and 36492) and Abu Ya`laa (narrative no. 4676 and 5202).

Last Updated on Sunday, 12 December 2010 17:14