Pramāṇa · Search · About · API

Mughal Administration c10: Chapter VI. Law and Justice

Mughal Administration c10

Language
English

Contents

Chapter VI. Law and Justice

§ 1. How the Mughal Emperors did justice in person.

c10.s1.1

The *qāzi*, by the theory of his office, ought to adjudicate all cases, civil and criminal. But in practice, from quite an early period of the Caliphate there has been throughout the Muslim world a twofold method of administration of law, *viz.*, (i) religious suits to be decided by the *qāzi* according to Canon Law, and (ii) secular cases to be tried by the lay authorities who followed some legal system or practice other than the Quranic Law or *Shara‘*. "The Prophet and the early Caliphs often decided disputes in person as judges, as did their governors and prefects in the various provinces. Justice was always administered in Muslim lands to a great extent by local authorities. This was sometimes called *Nazar fi’l-Mazālim*” [*Ency. Isl.* ii. 606]—or, as Aurangzib called his own Wednesday session of justice, *Diwān-i-Mazālim*.

c10.s1.2

According to the ancient political ideal, which both the Hindus and the Muhammadans accepted, the Sovereign is the fountain of justice, and it is his duty to try cases personally in open court. The Mughal Emperors acted up to this ideal, and we possess contemporary accounts, written by Court historians and European travellers alike, as to the manner in which they dispensed justice.

c10.s1.3

Both Shah Jahan and Aurangzib held no public *darbār* on Wednesday, but reserved that day for holding a court of law. "The Emperor came direct from the *darshan* window to the *Diwān-i-khās* (or Hall of Private Audience) at about 8 A.M. and sat on the throne of justice till midday. This room was filled with the law-officers of the Crown, the judges of Canon Law (*qāzis*), judges of Common Law (*ādils*), *muftis*, theologians (*ulema*), jurists learned in precedents (*fatāwa*), the superintendent of the law-court (*dārogha-i-adālat*), and the *kotwāl* or prefect of the city police. None else among the courtiers was admitted unless his presence was specially necessary. The officers of justice presented the plaintiffs one by one, and reported their grievances. His Majesty very gently ascertained the facts by inquiry, took the law from the *ulema* and pronounced judgment accordingly. Many persons had come from far-off provinces to get justice from the highest power in the land. Their plaints could not be investigated except locally; and so the Emperor wrote orders to the governors of those places, urging them to find out the truth and either do them justice there or send the parties back to the capital with their reports." (*Studies in Aur. Reign*, Ch. ii.)

c10.s1.4

The Emperor was the highest court of appeal and sometimes acted as a court of first instance, too. But, from the nature of things, only a few plaintiffs could reach his throne and he could spare time for adjudicating only a small portion of the appeals that were handed to him, though some of the Mughal Emperors, made a parade of their devotion to duty, notably Jahangir, who hung a gold chain from their palace-balcony to the ground outside Agra fort, to which the people in the streets could tie their petitions for royal justice in order to be drawn up to the Emperor, without their having to grease the palms of the palace porters and underlings, courtiers and other middlemen.

c10.s1.5

The main defect of the department of law and justice was that there was no system, no organization of the law courts in a regular gradation from the highest to the lowest, nor any proper distribution of courts in proportion to the area to be served by them. The bulk of the litigation in the country (excluding those decided by caste elders or village panchayets, mostly for the Hindus) naturally came up before the courts of the qazis and sadars. The qualifications and duties of these officers have been described in Ch. II. [*Ain.* ii. 41.]

§ 2. Description of trials held by the Emperor.

c10.s2.1

This division of judicial work is noticed by the early European travellers. William Finch writes in 1611:

c10.s2.2

"The castle of Agra has four gates,...one to the west, towards the Bazar, [is] called the *Kachari* gate, within which, over against the great gate is the qazi’s seat of chief justice. Over against this seat is the *kachari* or Court of Rolls, where the king’s wazir sits every morning some three hours, by whose hands pass all matters, rents, grants, lands, *farmans*, debts, &c....Tuesday is day of blood, both of fighting beasts and justiced men, the king judging and seeing

c10.s2.3

execution" [carried out in the plain on the river bank, below the *darshan* balcony.] (Purchas, iv. 72, 73).

c10.s2.4

Five years later, Terry observed,

c10.s2.5

"The Emperor himself moderates in all matters of consequence which happen near his Court, for the most part judging *secundum allegata and probata*. Trials are quick and so the executions. The governors in cities and provinces proceed in like form of justice. I could never hear of law written among them : the king and his substitutes' will is Law." (*Ibid*, ix. 47.)

c10.s2.6

Aurangzib's manner of doïng justice is thus described by Bernier, an eye-witness :

c10.s2.7

"All the petitions held up in the crowd assembled in the Hall of Public Audience are brought to the king and read in his hearing ; and the persons concerned being ordered to approach are examined by the monarch himself, who often redresses on the spot the wrongs of the aggrieved party. On another day of the week he devotes two hours to hear in private the petitions of ten persons selected from the lower orders and presented to the king by a good and rich old man. Nor does he fail to attend the justice-chamber, called *Adalat-khanah* on another day of the week, attended by two prïncipal *qazis*." (Bernier, 263.)

c10.s2.8

Manucci describes the scene of the royal dispensation of justice :

c10.s2.9

"The king holds public audience in the *Amkhas* [meaning the *Diwan-i-am*], and there it is usual for aggrieved persons to appear and make complaint.

c10.s2.10

Some men demand punishment for murderers, others complain of injustice and violence or other such like wrongful acts....The king ordains with arrogance, and in few words, that the thieves be beheaded, that the governors and *faujdars* compensate the plundered travellers....In some cases he announces that there is no pardon for the transgressor, in others he orders the facts to be investigated and a report made to him.” (*Storia*, ii. 462.)

§ 3. Qazis and their work.

c10.s3.1

Every provincial capital had its *qāzi*, appointed by the Supreme *Qāzi* of the Empire (the *Qāzi-ul-quzāt*) ; but there were no lower or primary courts under the former, and therefore no provincial court of appeal. A *qāzi* was also posted to every town and most of the villages with a Muhammadan population and large enough to be classed as *qasbas*. The other villages had no *qāzi* of their own, but any plaintiff living in them, if he was sufficiently rich and enterprising, could carry his suit to the *qazi* of the neighbouring town in whose jurisdiction they lay.

c10.s3.2

As the provincial *qāzi*’s jurisdiction was very vast and he had no assistant or deputy legally competent to share his burden, only a small part of the disputes in the provinces could be tried by him. The Indian villager in the Mughal empire was denied the greatest pleasure of his life in our own times, viz., facility for civil litigation with Government courts of first instance close at his doors and an abundance of courts of appeal rising up to the High Court at the capital.

c10.s3.3

Men had, therefore, to settle their differences locally, by appeal to the caste courts and local juries (called *panchayets* in North India and *mahazars* in the Deccan), the arbitration of an impartial umpire (*salis*), or by a resort to force.

§ 4. The Qazi, his position and powers.

c10.s4.1

The *qazi's* business, in strict theory, was to play the part of a jury : he was to take the law from others and pronounce a verdict in the particular case on the basis of the evidence adduced. This expounder of the law was the *mufti*, whom we may rather loosely call the advocate general. "The *mufti* is the officer who expounds and applies the law to cases, and the *qazi* is the officer who gives it operation and effect."* An illiterate man may legally act as a *qazi*, according to all the schools of Muslim law except that of Shafi, because "A *qazi's* business may be to pass decrees merely on the opinions of others. The object of his appointment, moreover, is to render to every subject his just rights, and this object is accomplished by passing decrees on the opinions of others." (*Hedaya*, translated by Hamilton, 2nd edition, 334-335.)

c10.s4.2

∗ In theory, "the *qāẓi* must be a Muslim scholar of blameless life, thoroughly conversant with the prescriptions of the sacred Law.... These judges are tied down to the decisions of earlier authoritative scholars...and have to adhere strictly to the rules laid down in the *fiqh* books.... The judgment of the *qāẓi* is decisive for the parties; there is no appeal from it." [*Ency. Isl.* ii. 606.]

c10.s4.3

Though many of the qazis were very learned lawyers, yet the primary and indispensable qualifications of a qazi were, in theory at least, honesty impartiality virtuousness and pure detachment from the society of the place. (*Hedaya*, also *Manual*.)

c10.s4.4

In practice this high ideal was seldom attained, though there are some noble exceptions in the history of Islamic lands. To take one example only, Abdul Wahhab Borah, the first Chief Qazi of Aurangzib's reign, was so corrupt that during 16 years of office he amassed a fortune of 33 lakhs of Rupees in cash, besides much jewellery and other valuable things. But his son and successor, Shaikh-ul-Islam, was of an exactly opposite character. He did not touch a penny of his father's ill-gotten riches, but gave away his share of them in charity. Not only did he decide all cases without the faintest suspicion of corrupt influence or bribery, but he even declined the customary presents and gifts from his nearest friends and kinsmen. [*History of Aurangzib*, iii. Ch. 27 § 10.]

c10.s4.5

But in the Mughal empire the qazis were not sufficiently supported by the executive. As Bernier noticed,

c10.s4.6

"The qazis or judges are not invested with sufficient power to redress the wrongs of these unhappy people [*viz.*, the peasant artisan or tradesman oppressed by the jagirdars, governors and farmers of the revenue]. This sad abuse of authority may not be felt in the same degree near capital cities...or in the vicinity of large towns and seaports, because in those places acts of gross injustice cannot easily be

c10.s4.7

concealed from the Court''. (P. 225.) And, again, "Of what advantage are good laws when not observed, and when there is no possibility of enforcing their observance? The governor is absolute lord, in the strictest sense of the word. He is in his own person the intendant of justice, the parliament, the Presidial Court, and the assessor and receiver of the king's taxes...In eastern countries, the weak and the injured are without any refuge whatever; and the only law that decides all controversies is the cane and the caprice of a governor.'' (Pp. 235-236.)

c10.s4.8

But Bernier must be here referring to revenue exactions and executive oppression, and not to cases which could be clearly brought under the Canon Law, for the qazi's jurisdiction over the latter was unquestioned and universally exercised in practice. Though the provincial governors were jealous of the qazi's power, they durst not openly defy him, because he could always appeal to the Emperor in the name of the Sacred Law.

c10.s4.9

According to Muslim jurisprudence, the qazi must discharge his duty in a mosque or some other public place, the Jama Masjid of the town being specially recommended. As a concession, however, he was permitted to hold court in his house occasionally, but in that case the public were to have free access there and the two parties were to be placed by him on an absolutely equal footing as regards seats, conveniences and general treatment. (Hedaya, 337.)

c10.s4.10

We possess the imperial regulation about the office-work of the qazis. About 1671 the Emperor Aurangzib learnt that the judges of the province of Gujrat used to sit in their offices (*muhakuma-i-adalat*) on only two days in the week, while on two other days (*viz.*, Tuesday and Wednesday) they attended the subahdar’s *darbar*, and treated the remaining three days of the week as holidays. The Emperor wrote to the diwan of the province, “This way of doing work is not the practice at the imperial Court nor in any other subah, and therefore there is no reason why it should be so in Gujrat. The diwan is ordered to urge the judges to sit in their offices on Saturday, Sunday, Monday, Tuesday and Thursday, *i.e.*, five days, while on Wednesday they should attend the subahdar, and Friday alone should be a holiday. From two *gharis* (about an hour) after daybreak to a little after midday (*i.e.*, when the sun has begun to decline), the judges should sit in the court room and do justice, and go to their homes at the time of the *zuhar* prayer.” (*Mirat-i-Ahmadi*, i. 275.)

c10.s4.11

§ 5. Muslim law, its character and sources.

c10.s4.12

The crudeness and insufficiency of the judicial system were aggravated by the fact that the only law recognised by the Emperor and his judges was the Quranic law, which had originated and grown to maturity outside India. It was supposed to have been defined once for all within the pages of the Quran as revealed to the Arabian Prophet and his Traditional Sayings (*Hadis*). But there was a wide latitude in the interpretation of the words of the Quran. And for this purpose our Indian judges turned to the known decisions of the pious Muslim kings and eminent Muslim jurists of the past, in the chief centres of Islamic thought and civilization outside India. Thus, Muslim law in India did not originate in legislation but in revelation ; it had two other sources, *viz.*, precedents or case-laws and the opinions of jurists, though both of these latter merely professed to make the meaning of the *Quran* explicit and not to add any new principle or rule to what is written in the Book of God.

c10.s4.13

All the three sources of Indo-Muhammadan law were trans-Indian. No Indian Emperor’s or Qazi’s decision was ever considered authoritative enough to lay down a legal principle, elucidate any obscurity in the *Quran*, or supplement the Quranic law by following the line of its obvious intention in respect of cases not explicitly provided for by it.

c10.s4.14

Hence, it became necessary for Indian qazis to have at their elbow a digest of Islamic law and precedent compiled from the accepted Arabic writers. Such digests were prepared from time to time, and their character varied with the sovereign’s choice among the four schools of Islamic law, *viz.*, the Hanafi, the Malaki, the Shafi, and the Hanbali. The Hanafi school was considered orthodox in India. The last law digest prepared in our country was the *Fatawa-i-Alamgiri*, which was compiled by a syndicate of theologians under orders of Aurangzib at a cost of two lakhs of Rupees. Muslim law in India was, therefore, incapable of growth and change, except so far as it reflected changes of juristic thought in Arabia or Egypt.

c10.s4.15

As is well-known to students of mediæval history, in a Muslim State the Civil Law is merged in and subordinated to the Canon Law, and the theologians are the only jurists.

c10.s4.16

In the old Marathi records we have much information about the Hindu caste courts and arbitration boards which administered justice according to Common Law. But they refer to the Deccan only, where society was differently constituted from Northern India. A few Sanskrit judgments have survived, giving us a glimpse of the Brahmanic courts sanctioned by the Emperor Akbar, which followed Manu and other text-writers on the "Gentoo Code," as Nathaniel B. Halhed called the loose mass of Sanskrit legal rules and pious injunctions which were appealed to by Hindu litigants at the end of the Mughal period.

§ 6. Classification of crimes.

c10.s5.1

According to Muslim ideas of jurisprudence crimes fall into three groups, namely,
(a) offences against God,
(b) offences against the State, and
(c) offences against private individuals.

c10.s5.2

Punishment for the first of these classes is "the right of God (*haqq Allah*)," while for the other two classes of offences the injured party may forgive or compound with the wrong-doer. Thus, curiously enough, man-slaughter is not a violation of God's law nor of the king's peace, but only a damage to the family of the murdered man, which can be settled by paying money compensation (called 'the price of blood’) to the next of kin of the victim, without the Executive Head of the State or the Judge of Canon Law having to take any further notice of it. It was only when the relatives of the murdered man refused to accept money damages and insisted on retaliation, that the qazi had to pronounce the sentence of death and the executive to enforce it.

c10.s5.3

The Institutes of Timur puts the matter with great clearness and force. He writes:—

c10.s5.4

“Robbers and thieves, in whatever place they might be found, or by whomsoever detected, I commanded to be put to death.” [Note. This, however, was not in exact accordance with the Quranic law.]

c10.s5.5

“And I ordained that, if any one seized by violence the property of another, the value of that property should be taken from the oppressor, and be restored to the oppressed.

c10.s5.6

“Concerning other crimes,—the breaking of teeth, the putting out of eyes, the slitting and cutting off of the ears and nose, wine-drinking and adultery, —I ordained that whoever should be guilty of these, or other crimes, they should be brought into the courts of the ecclesiastical and lay judges,—[the exact terms being *Qazi-i-Islam* and *Qazi-i-Ahdas*,—*ahdas* meaning ‘ritual impurity,’ probably an error for *azāb*, ‘torment’]; that the ecclesiastical judge should decide on those causes which are determinable by the sacred laws (*Shara*), and that those which did not fall under his cognizance [*urfi bashad*, i.e., pertain to the public or secular law] should be investigated and laid before me by the lay judge.”

c10.s5.7

(Davy's *Institutes of Timur*, pp. 251 and 253, corrected by reference to the Persian text.)*

c10.s5.8

§ 7. Description of punishments allowed by Muhammadan Law.

c10.s5.9

The punishments† for crimes were of four classes :—

c10.s5.10

† *Encyclo. Islam*, i. 123 (*adhāb*), ii. 187 (*hadd*), 822 (*katl*), iv. 1227 (*zina*); Abu Yusuf's *Kitab-ul-Kharaj* tr. by Fagnan, 230-290 (different); Hamilton's *Hedaya*, 2nd ed., 175-196; Hughes, 153.

c10.s5.11

(a) *Hadd*, (b) *tazir*, (c) *qisās* and (d) *tashhir*. To these we may add detention in prison without trial, somewhat like our *hājat* (lock-up), but more severe.

c10.s5.12

*Hadd* (its plural being *hadud*), means a punishment prescribed by Canon Law and considered as 'the right of God,' which, therefore, no human judge can alter. The original design in the institution of *hadd* is determent, *i.e.*, warning people from the commission of certain offences. The absolution of the person punished is not the original design of it, because *hadd* is inflicted equally on infidels and Muslims.

c10.s5.13

∗ In strict legality, the death sentence for highway robbery could be pronounced only by a qazi and not by the king or any of his civil officers independently. Aurangzib, soon after his accession, beheaded five hundred robbers as a warning to all lawless men. (*Storia*, ii. 4.) But towards the end of his reign he changed his opinion about his powers and regulated his conduct in strict conformity with the Quranic law. He, therefore, severely censured one of his highest generals, who had put a highway robber to death, and urged him to place all such cases before the qazi in future. (*Ahkam*, § 34.) See § 8 below.

c10.s5.14

Hadd must take certain prescribed forms of punishment, viz:—

c10.s5.15

(i) Stoning to death for adultery; scourging for fornication [100 stripes].

c10.s5.16

(ii) Scourging for falsely accusing a married woman of adultery [80 stripes].

c10.s5.17

(iii) Scourging for drinking wine and other intoxicating liquors. For a free man the punishment was 80 stripes for wine drinking.

c10.s5.18

(iv) Cutting off the right hand for theft.

c10.s5.19

(v) For simple robbery on the highway, the loss of hands and feet; for robbery with murder, death either by the sword or by crucifixion.*

c10.s5.20

(vi) For apostasy, death.

c10.s5.21

*Tazir* is punishment intended to reform the culprit...According to *fiqh* books, *tazir* is inflicted for such transgressions as have no *hadd* punishment and no expiation prescribed for them. The kind and amount of *tazir* is left entirely to the discretion of the judges....The judge can completely remit the *tazir*. The process of trial is simple in contrast to that for *hadd*. Hence attempt was often made to escape *tazir* by bribery. [*Ency. Isl. iv. 710.*]

c10.s5.22

∗ "If a man or woman steal, cut off their hands;...... this is an exemplary punishment appointed by God." (*Quran*, v. 37-38.) To this Jalaluddin Al-Bedavi adds the commentary: "For the first offence, the criminal is to lose his right hand which is to be cut off at the wrist; for the second offence, his left foot at the ankle; for the third, his left hand; for the fourth, his right foot; and if he continue to offend, he shall be scourged at the discretion of the judge." [Sale.]

c10.s5.23

It was not the ‘right of God.’ It could take one of these four forms:—

c10.s5.24

(i) Public reprimand (*tadib*).

c10.s5.25

(ii) *Jirr*, or dragging the offender to the door [of the court house?] and exposing him to public scorn; somewhat like putting a man in the pillory.

c10.s5.26

(iii) Imprisonment or exile.

c10.s5.27

(iv) Boxing on the ear; scourging. The stripes must not be less than 3, nor more than 39 (or 75 according to the Hanafi school, as in Abu Yusuf).

c10.s5.28

We are told in the *Hedaya*, a Persian compilation of Islamic law according to the Hanafi school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Husain, and Mulla Shariatullah about 1780, that the above punishments should be inflicted according to the offender’s rank, and that imprisonment and scourging were to be confined to the third and fourth grades of the people,—the petty traders and common labourers, respectively, (or as Manu would have put it, the Vaishyas and Shudras),—while the lighter forms of punishment were reserved for the nobility and gentry! (*Hedaya*, 203-204; full details in Hughes, 632-634.)

c10.s5.29

As for *tazir-bil-mal* or ‘chastisement in property’ *i.e.*, fine, only Abu Hanifa pronounces it to be legal, but all other learned men reject it as opposed to the Quranic law. (*Hedaya*, 203.) Aurangzib, who was a strict Hanafi and himself well-read in Canon Law and the literature of precedents (*fatawa*), issued an order to the *diwan* of Gujrat and also of other subahs, in 1679, to the effect that as fine was not permitted by Canon Law, every civil official (amal), zamindar or other person found guilty of an offence, should, according to the nature of his act, be imprisoned or dismissed or banished, but not punished with fine. (Mirat-i-Ahmadi, i. 293.)

§ 8. Private vengeance, public degradation, &c.

c10.s6.1

Qisās or retaliation: This was the personal right of the victim or his next of kin, in the case of certain crimes, notably murder. If he demanded the legal punishment, the qazi was bound to inflict it, and neither he nor the king could exercise the royal clemency by modification or abrogation of the sentence. If, on the other hand, the next of kin of the deceased was satisfied with the money damages, called ‘price of blood’ (Arabic diya) offered by the murderer, or pardoned him unconditionally, it was his look-out, and neither the qazi nor the king was to take any further notice of the crime. For minor offences, the retaliation was, as laid down by the Mosaic law, ‘‘a tooth for a tooth and an eye for an eye,’’ with certain exceptions. (Hughes, 481. Encyc. Isl. ii. 1038.)

c10.s6.2

Tash-hir or public degradation was a popularly-devised punishment of universal currency throughout the Muslim world and even Hindu India and Mediæval Europe. It is neither recognised nor condemned in the law-books of Islam, but was inflicted by all Muslim qazis and kings, and even by the lay public, as it was a mild form of lynching. In India, the offender’s head was shaven, and he was mounted on an ass with his face turned towards its tail, covered with dust, sometimes with a garland of old shoes placed round his neck, paraded through the streets with noisy music, and turned out of the city. "The judge may blacken the face of the culprit, cut his hair or have him led through the streets, &c." [*Encyclo. Islam*, i. 132.] This last refers to the Arabian practice.

c10.s6.3

As for offences against the State, such as rebellion, peculation and default in the payment of revenue, the sovereign inflicted punishment at his pleasure, because the Quranic law gives no guidance here. Among the prevalent modes of putting an offender to death were having him trodden to death by infuriated elephants, burying him alive, causing him to be stung to death by cobras, or pressing him to death [the last being also sanctioned by mediæval English law.] Tortures of various degrees of ingenuity were resorted to.

c10.s6.4

Theft (*sārqa*) is punishable with the cutting off of one hand and one foot. But if the offender has robbed and killed, he is to be put to death...and his body publicly exposed for three days on a cross or in some other way. The punishment of death is here considered a *haqq Allah* and blood-money is out of the question. All accomplices are punished in the same way. The judge can inflict the above punishments, as *hadd*, only when all the legal conditions are fulfilled. The legal inquiry has to be conducted in the presence of the person robbed. For proof, two male witnesses are necessary, or a confession. If the thief has given back the article stolen before the charge is made, he is immune from punishment. [*Ency. Isl.*, iv. 173-174.]

c10.s6.5

The **capital sentence** (*qatl*) is inflicted, after the offence has been legally proved, in the following cases :—

c10.s6.6

(i) When the next of kin of a murdered person demands the life of the murderer (*qisās*) and refuses to accept the alternative of money compensation (*diya* or ‘price of blood’) ;

c10.s6.7

(ii) in certain cases of immorality ; the woman sinner is stoned to death by the public, (*Ency. Isl.*, s. v. *zina*, iv. 1227);

c10.s6.8

(iii) on highway robbers (*Quran*, v. 37 *et seq*),

c10.s6.9

(iv) on apostates (*murtadd*) from Islam (*Quran*, iv. 91 *et seq.*) “The conversion of a non-Muslim to another non-Muslim religion is punishable with death. A *zindiq*, i.e., any one who, professing to be a Muslim, is really an unbeliever, or any one who belongs to no religion,” is liable to the death sentence...... “Every unbeliever who does not pay the *jizya*...may at any time be killed by any Muslim without the latter being liable to any kind of punishment or (money) damages.” The killing of an apostate is an obligatory duty.

c10.s6.10

In addition to the above, the Hanafi school of law declares killing as lawful in the following three cases :—

c10.s6.11

(v) When the *ghāzi* kills his unbelieving kinsmen if they insult Allah or his Prophet,
(vi) when the Imām kills his unbelieving prisoner of war, in the case when the reasons for killing him exactly balance those for granting his life,
(vii) killing in self-defence, in defending one's own life person or property, or a helper.

c10.s6.12

*Caution.*—Any one who puts to death a *murtadd* (apostate) of whatever kind without powers granted by the authority, is generally liable not to *qisās* but only to *tazir*. So also is any one who kills an unbelieving prisoner of war without authority (of the Imām.) [*Encyc. Islam*, ii. 824—828.]

c10.s6.13

We may here conveniently deal with the law of civil imprisonment. When a creditor establishes his claim before the *qazi* and demands the imprisonment of his debtor, the *qazi* must not precipitately comply, but should first order the debtor to render the right. But if he neglects to comply with the decree and his capacity to discharge the debt is proved, then he must be imprisoned.

c10.s6.14

When the two parties voluntarily resort to an arbitrator (*sālis*), his award is legally valid, and it is the *qazi’s* duty on a reference to him to give effect to the award if he approves of it. (*Hedaya*, 338, 343.)

c10.s6.15

§ 9. The Penal Code in the reign of Aurangzib.

c10.s6.16

Apart from the *Fatāwa-i-Alamgiri* or digested code of Islamic case-law, which Aurangzib caused to be compiled by a syndicate of theologians under Shaikh Nizam, he issued a *farmān* to the diwan of Gujrat on 16th June 1672, which gives his penal code in a short compass. I translate it below, using the word ‘chastise’ in the sense of *tazir* or infliction of corporal punishment at the discretion of the judge. The *farmān* runs thus:—

c10.s6.17

“The Emperor has learnt that local officers delay in disposing of the cases of those who are cast into prison on any charge. To prevent imprisonment without just cause, the following rules are laid down:

c10.s6.18

1. When theft has been proved against any man by legal evidence before the qazi, or the accused by his confession satisfies the conditions necessary for the imposition of *hadd*, the qazi should inflict the punishment in his own presence and keep him in prison till he manifests signs of penitence for his crime.

c10.s6.19

2. When theft is rife in the town and a thief is captured, do not even after proof behead him nor impale him, as it may be his first offence.

c10.s6.20

3. If a man has committed theft only once either less than or only up to the amount of the *nisāb*[*]—i.e., in such a way that punishment (*hadd*)

c10.s6.21

∗ According to Quranic commentators, if the value of the thing stolen is less than four *dinars* or forty shillings, mutilation should not be inflicted.

c10.s6.22

is not legally due, then chastise (*tazir*) him. But if he repeats the offence, then after *tazir* keep him in prison till he repents. If he is not cured by *tazir* and imprisonment, but commits theft again, then sentence him to long-term imprisonment or *siasat* and execution, and restore the stolen property to the owner, after legal proof of ownership, if he be present. Otherwise, deposit the property in trust (*āmanat*) in the *Bait-ul-māl*.

c10.s6.23

4. If a man has committed theft twice and *hadd* (punishment) has been awarded on both these occasions, and then he commits theft again and it is legally proved against him, and he has become a pickpocket and this crime is habitually committed by him,—then after *tazir* keep him in prison till he repents. But if even this does not reform him and he commits the offence [again], give him prolonged imprisonment [*i.e.*, during life.]

c10.s6.24

5. If a man is arrested for exhuming a corpse, reprimand and then release him. But if he takes to it as a profession, then banish him or cut off his hands by way of *siasat*. Whatever is considered as preferable in the opinion of the governor of the *subah*, you should carry out with the officials of the law-court.

c10.s6.25

6. If a man is convicted of highway robbery before the qazi, or confesses to the offence with the details required as a condition for the imposition of punishment,—the qazi should carry out the appropriate punishment in his presence. But if his offence does not deserve death or [but?] some other *hadd* punishment, and the opinion of the governor of the subah and the officers of the adālat is against his execution, then do him siāsat (mutilation.)

c10.s6.26

7. If an arrested thief speaks of his booty as lodged with another man, and it is discovered there, and the man is on investigation proved to be an accomplice of the thief,—then, in the case of this being the first offence of the accomplice, tazir him ; but if it be habitual with him then after tazir imprison him till he reforms. But if these do not reform him and he commits the offence again, keep him permanently in prison. Stolen property to be restored as in rule 3. Innocent purchasers of stolen property were not to be punished, but it should be delivered to its original owner on proof, or deposited in the Bait-ul-māl.

c10.s6.27

8. On habitual malefactors who commit dacoity in the houses of people and do injury to their life and property, inflict siāsat after proof.

c10.s6.28

9. In the case of Grasias and zamindars [of Gujrat] who are habitual robbers and usurpers, and whose death is required in the public interest,—after proof inflict siasat.

c10.s6.29

10. A [suspected] strangler (i.e., thug) whose act of strangulation has [not] been legally proved, should be chastised (tazir) and confined till he repents. But if he is habituated to the work and the fact is proved, by legal evidence, or if he is well-known to the people and the governor of the province [for such deeds], or traces of the strangulation and the property of the [murdered] man are found on him, and the subahdar and the officers of the adalat feel a strong probability that he is the doer of such deeds, then execute him.

c10.s6.30

11. If a man suspected of theft, highway robbery, strangulation, or the felonious killing of people, is arrested and from indications (lit., signs) the subahdar and the officers of the adalat consider it most probable that he has often been guilty of the deed,—then imprison him that he may repent. If any one charges him with any of the above offences, resort to the qazi [for trial.]

c10.s6.31

12. Wicked men, who having set fire to the houses of other people take advantage of the gathering of a crowd to rob the property, or who administer dhatura, bhang, the nut of nux vomica (?) and such other narcotics to people in order to render them insensible and rob their effects,—should, after proof, be severely chastised and confined, so that they may repent. If they repeat the offence after having shown penitence and been released, do them siasat. If any one claims any property found with such men, refer the matter to the qazi, who will cause it to be restored to the rightful owner on proof and pay compensation for the property burnt [out of the malefactor's own property].

c10.s6.32

13. If a body of men rebel, collect materials for war, and prepare for it, though they have not yet taken up a position (stronghold) for resistance,—seize and confine them till they repent. If they have occupied a position for fight, attack and extirpate them, slay the wounded and defeated among them so long as they do not disperse. But after their dispersion, do not attack or kill them. If any one among them is captured, slay or imprison him so long as their party organisation is not broken up. Whatever property of the party is seized, restore to them after they have repented and you are reassured about their future conduct.

c10.s6.33

14. A counterfeit-coiner for the first time should be released after *tazir* and reprimand (*tahdid*); but if it be his profession, then *tazir* and imprison him till he repents. But if he does not give up the practice, detain him in long captivity.

c10.s6.34

15. If a man buys false coins from a counterfeiter and utters them as good money, same punishment as in 14 except long term imprisonment.

c10.s6.35

16. Innocent possessors of false coins are not to be punished, but the coins are to be destroyed.

c10.s6.36

17. If a man pretends to be an alchemist and thus takes away other people's property, *tazir* and confine him till he repents. The property, as in 3.

c10.s6.37

18. If a man deceitfully administers poison to another, with fatal effect, *tazir* and imprison him till he repents.

c10.s6.38

19. If a man deceitfully takes away another's wife, son or daughter, then after proof imprison him till he restores the wife to the husband, or the child to the parent, or till he dies in prison. If the wife or child has died [in the meantime], do the offender severe *tazir* and release him, or make *tash-hir* and banish him. Go-betweens to be chastised and imprisoned.

c10.s6.39

20. For gambling with dice, *tazir* and confinement are the punishment. For repetition, long-term imprisonment. Property won, to be restored to owner or kept in trust.

c10.s6.40

21. For selling wine in a city of Islam or a village the offender should be chastised with severe blows. For repetition of the offence, imprisonment till reform.

c10.s6.41

22. If a man takes a distiller into his service and sells the spirit distilled, then chastise him with blows and confinement, if he is not a person having entry to the Emperor's Court (ru-shinās). But if he is, then report the facts of the case to the Emperor and severely beat and reprimand the distiller.

c10.s6.42

23. The vendors of bhang, buza and similar intoxicants should be chastised, and if habitual offenders, kept in prison till they repent.

c10.s6.43

24. If a man kills another by drowning him in water, throwing him into a well, or hurling him down from a hill-top or roof, chastise and imprison him and cause to be given [to the heirs of the murdered man] the diya or exculpatory fine which the Canon Law lays down. If he repeats the offence, do him strict siasat.

c10.s6.44

25. If an adulterer enters another man's house for committing the offence, severely chastise and confine him till your mind is composed about his future conduct.

c10.s6.45

26. If a man falsely accuses another before the governor and thus causes waste of property, he should, on proof, be subjected to siasat if it be his profession. Otherwise, he should be chastised and confined till he repents. He should pay compensation to those whose property he has wasted.

c10.s6.46

27. If a *zimmi* (male or female) takes a Musalman (male or female) as his or her slave, or a *zimmi* takes a Muslim woman or a Musalman a *zimmi* woman other than "the people of the Book" (i.e., Jews and Christians), place the offender before the qazi to act according to Canon Law.

c10.s6.47

28. When courtesans, adulterers, Sodomites, drinkers of distilled spirits and other intoxicants, whisperers (*i.e.*, seducers), apostates, rebels against the qazi's orders, and female servants and slaves escaped from their masters, take refuge with the *mahajans* (merchants) and appeal to the diwani officers in the name of the Holy Law, you should act according to the order of the qazi.

c10.s6.48

29. When murder has been proved against any man according to the Holy Law or is close to certainty, keep the offender in prison and report the facts to the Emperor.

c10.s6.49

30. If anybody castrates another's son, chastise and imprison him till he repents.

c10.s6.50

31. If any leader (*rais*) of schismatics instigates others to innovations in religion (*bidat*), and there is a strong probability of the spread of *bidat* (heresy) through his instigation, do him *siasat*.

c10.s6.51

32. As for the captives that the faujdars and others send to the subahdar, immediately on their arrival inquire with all diligence into their cases, and if the cases relate to the revenue of the Crownlands deliver them to the revenue officers, urging them to dispose of the cases promptly. Otherwise apply to them any of the above sections that may be appropriate to their respective cases. Once every month inquire into the cases of the prisoners in the *kachari* and police *chabutra*, &c., release the innocent and urge the quick trial of the others.

c10.s6.52

When a man is brought to the *chabutra* of the *kotwal* (prefect of the city police) under arrest by the *kotwal’s* men or revenue collectors or on accusation by a private complainant,—the *kotwal* should personally investigate the charge against him. If he is found innocent, release him immediately. If anybody has a suit against him, tell the former to resort to a court. If there is any case of the Crownland revenue department against him, report the fact to the *subahdar*, take a *sanad* as suggested by the *subahdar* and act accordingly. If the *qazi* sends a man for detention, take the *qazi’s* signed order for your authority and keep the man in prison. If the *qazi* fixes a date for his trial, send the prisoner to the *adalat* on that date: otherwise send him there everyday so that his case may be quickly decided.*

c10.s6.53

∗ *Mirat-i-Ahmadi*, i. 278-283. The author adds, “Many words in this *farman* have perished through the passage of time and the damage done by worms, and the text is incorrect.” I have translated it as it is. It gives a good picture of the social manners of the age and the eternal indicial ideas of the world of Islam.

Linked texts (1)