Mughal Administration c10.s5: § 6. Classification of crimes.

Mughal Administration c10.s5

Language: English

§ 6. Classification of crimes.

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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.

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.

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

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“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.]

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“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.

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“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.”

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

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§ 7. Description of punishments allowed by Muhammadan Law.

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The punishments† for crimes were of four classes :—

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† *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.

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(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.

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*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.

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∗ 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.

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

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

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

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

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(iv) Cutting off the right hand for theft.

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(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.*

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(vi) For apostasy, death.

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*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.*]

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∗ "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.]

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

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(i) Public reprimand (*tadib*).

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(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.

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(iii) Imprisonment or exile.

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(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).

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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.)

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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.)

Linked texts (1)

Mānava Dharmaśāstra — Manu & Bhṛgu, Sanskrit