Mughal Administration c10.s6: § 8. Private vengeance, public degradation, &c.
Mughal Administration c10.s6
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§ 8. Private vengeance, public degradation, &c.
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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.)
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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.
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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.
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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.]
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The **capital sentence** (*qatl*) is inflicted, after the offence has been legally proved, in the following cases :—
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(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’) ;
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(ii) in certain cases of immorality ; the woman sinner is stoned to death by the public, (*Ency. Isl.*, s. v. *zina*, iv. 1227);
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(iii) on highway robbers (*Quran*, v. 37 *et seq*),
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(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.
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In addition to the above, the Hanafi school of law declares killing as lawful in the following three cases :—
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(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.
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*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.]
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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.
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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.)
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§ 9. The Penal Code in the reign of Aurangzib.
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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:—
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“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:
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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.
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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.
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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*)
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∗ According to Quranic commentators, if the value of the thing stolen is less than four *dinars* or forty shillings, mutilation should not be inflicted.
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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*.
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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.]
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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.
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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.)
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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.
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8. On habitual malefactors who commit dacoity in the houses of people and do injury to their life and property, inflict siāsat after proof.
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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.
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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.
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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.]
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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].
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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.
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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.
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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.
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16. Innocent possessors of false coins are not to be punished, but the coins are to be destroyed.
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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.
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18. If a man deceitfully administers poison to another, with fatal effect, *tazir* and imprison him till he repents.
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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.
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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.
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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.
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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.
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23. The vendors of bhang, buza and similar intoxicants should be chastised, and if habitual offenders, kept in prison till they repent.
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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.
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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.
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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.
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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.
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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.
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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.
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30. If anybody castrates another's son, chastise and imprison him till he repents.
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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*.
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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.
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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.*
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∗ *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.