‘Hanging Till Death as the Mode of Execution: A Critical Analysis in the light of Islamic Injunctions
DOI:
https://doi.org/10.53762/alqamar.04.04.e01Keywords:
Qiṣāṣ, mode of execution, transgressionAbstract
ThThe Quran and the Sunnah prescribe death punishment for various offences, such as qatl-e-‘amd, apostasy (including blasphemy by a Muslim), ḥirābah when it involves qatl and zina by a muhsan. Moreover, there are instances of death punishment under the doctrine of fasād fi ‘l-ard for habitual offenders or when the offence was committed in a brutal and shocking manner. Muslim jurists divide these various instances of death punishment into three categories on the basis of the applicable legal principles. They are: Qisās, hudud and ta‘zīr (also called siyāsah). Although qiṣāṣ and hudud have some differences in legal consequences, yet they also have a few common legal consequences, such as the strict standard of proof, the special relaxations given to the accused (and even to the convict) and the immutable nature of the punishment. As opposed to qiṣāṣ and hudud, the matters related to ta‘zīr (or siyāsah) punishment have been left to the Muslim ruler who can prescribe details keeping in view the objectives, and within the constraints of the general principles, of Islamic law. Among these various consequences, the present paper focuses on the mode of execution of death punishment only.
References
The paper was originally prepared as a note for the Federal Shariat Court in a case about ‘hanging’ as mode of execution of death punishment in which one of the authors was appointed as jurisconsult. The case titled Gul Wali v Government of Pakistan (Shariat Petition I/I/2018) was disposed of by the Court on 21st October 2021 on technical ground when the petitioner (a condemned prisoner) requested for withdrawal of his petition.
Qur’an, 2:178.
Sunan al-Nasa’i, Kitab Tahrim al-Damm: Bab al-hukm fi al-Murtadd.
This is the opinion of the Hanafis and some of the Hanbalis. ‘Uthman b. Ali al-Zayla‘i, Tabyin al-Haqa’iq Sharh Kanz al-Daqa’iq )Cairo: al-Matba‘at al-Kubra, 1313 A.H.), 6:106; Ibrahim b. Muhammad b. Muflih, al-Mubdi‘ Sharh al-Muqni‘ (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1997), 7:235-236.
This is the view of Malikis, Shafi‘is, Zahiris and some of the Hanbalis. See for details: Muhammad b. Ahmad al-Dasuqi, Hashiyat al-Dusuqi ‘ala al-Sharh al-Kabir (Beirut: Dar al-Fikr, n.d.), 4:265; Muhammad b. Ahmad b. Khatib al-Shirbini, Mughni al-Muhtaj ’Ila Ma‘rifat Ma‘ani Alfaz al-Minhaj (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1994), 5:281-283; ‘Ali b. Ahmad b. Hazm al-Zahiri, al-Muhalla bi ’l-Athar (Beirut: Dar al-Fikr, n.d.), 10:255-256; and Ibn Muflih, al-Mubdi‘ Sharh al-Muqni‘, 7:235-236.
Sunan Ibn Majah, Kitab al-Diyatm Bab La Qawad Illa Bi ’I-Sayf.
Sunan Abi Dawud, Kitab al-Hudud, Bab Ma Ja’ fi ‘l-Muharabah.
Sahih al-Bukhari, Kitab al-Diyat, bab Idha Aqarra bi ’l-Qatl Marratan Qutala bihi.
Sunan al-Bayhaqi, Kitab al-Juruh, Bab ‘Amd al-Qatl bi ’l-Hajar wa Ghayrihi.
Al-Mubarak b. Muhammad b. al-Athir, al-Nihayah fi Gharib al-Hadith wa ‘l-Athar (Beirut: al-Maktabat al-‘Ilmiyyah, 1979), 4:72.
Qur’an, 16:126.
Shirbini, Mughni al-Muhtaj, 5:281-282.
For instance, a rapist cannot be raped by way of punishment!
Qur’an, 2:190.
Qur’an, 2:178.
Abu Bakr al-Jassas al-Razi, Ahkam al-Qur’an (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1992), 1:164-167.
Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi, al-Mabsut (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1997), 26:126.
Sahih al-Bukhari, Kitab al-Jihad wa ‘l-Siyar, Bab al-Tawdi‘.
Sarakhsi, al-Mabsut, 10:7.
Burhan al-Din ‘Ali b. Abi Bakr al-Marghinani, al-Hidayah fi Sharh Bidayat al-Mubtadi (Beirut: Dar Ihya’ al-Turath al-‘Arabi, n.d.), 2:380.
It is siginificant that some of the traditions mentions the word ‘iron’ generally in place of ‘sword.’ لا قود الا بحدیدۃ (No qisas, except through iron.” Sunan al-Daruqutni, Kitab al-Hudud wa al-Diyat wa Ghayrihi.
See part two below for details.
Shirbini, Mughni al-Muhtaj, 5: 281-283.
Ibid.
Muhsan is generally translated as “married,” but technically this term necessitates some other features as well. See for details: Muhammad Mushtaq Ahmad, Expounding the Hanafi Law on Blasphemy (Islamabad: Shariah Academy, 2020), 296-302.
Sahih Muslim, Kitab al-Hudud: Bab Hadd al-Zina.
Sarakhsi, al-Mabsut, 10:52.
Ibid.
Though the witnesses may face the charge of qadhf.
Qur’an, 5:33.
However, the death punishment here is by way of hadd, not qisas. Hence, the heirs of the deceased will not have right to pardon or compromise. Abu Bakr b. Mas‘ud al-Kasani, Bada‘i‘ al-Sana‘i‘ fi Tartib al-Shara‘i‘ (Beirut: Dar al-Kutub al-‘Ilmiyyah, 2003), 9:368.
Kasani, 9:370. Among the Hanafis, Imam Karkhi narrates this position and the Hanafis jurists generally accept this as their standard position.
Ibid. Imam Tahawi narrates this position, but the Hanafis do not generally prefer it.
Imam Marghinani asserts that this is the standard position (zahir al-riwayah) of the Hanafi School. See al-Hidayah, 2:376.
See Section 17 of the Offences against Property Ordinance, 1979.
Qur’an, 2:54.
Qur’an, 16:106.
Qur’an, 2:217.
Sahih al-Bukhari, Kitab Istitabat al-Murtaddin wa al-Mu‘anidin wa Qitalihiim, Bab Hukm al-Murtadd wa al-Murtaddah.
Sahih Muslim, Kitab al-Qasamah, Bab Ma Yubah bih Dam al-Muslim.
See for a detailed discussion on this tradition and the relevant rules of Islamic law: Expounding the Hanafi Law on Blasphemy, 99-101.
Qur’an, 49:9.
Sarakhsi, al-Mabsut, 10:132.
Ibid.
They argued for its permissibility on the basis of a tradition that the head of Abu Jahl was brought to the Prophet, peace be on him, on eve of Badr and he did not prohibit it. Ibid. But Imam Sarakhsi asserts that it happened only once in the lifetime of the Prophet, peace be on him. (Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi, Sharh al-Siyar al-Kabir (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1997), 1:42.
Qur’an, 12:41.
Qur’an, 20:71.
See, for instance, Kamal Salibi, Conspiracy in Jerusalem ().
See for a detailed discussion on this issue: Khaled Abou El Fadl, Rebellion and Violence in Islam (Cambridge: Cambridge University Press, 2003).
Sunan al-Nasa’i, Kitab Qat‘ al-Sariq.
Sarakhsi, al-Mabsut, 9:90-91.
Ibid., 9:91.
Marghinani, al-Hidayah, 2:346-47.
Qur’an, 16:90.
Qur’an, 5:93.
Sahih al-Bukhari, Kitab al-Iman, Bab Su’al Jibril al-Nabiyy.
Sunan al-Tirmidhi, Kitab al-Diyat, Bab al-Nahy ‘an al-Muthlah.
Sunan Abi Dawud, Kitab al-Jihad, Bab al-Nahy ‘an al-Muthlah.
Qur’an 2:190.
It is a well-known historical fact that burning at stakes was one of the most common forms of punishment given in Inquisitions by the Church during the s-called Medieval Period.
Sunan Abi Dawud, Kitab al-Jihad, Bab Karahiyyat Harq al-‘Aduww bi ‘l-Nar.
Sahih Muslim, Kitab al-Jihad, Bab Ta’mir al-Imam al-Umara’.
A well-known example is the mutilation of the dead body of Hamzah, God be pleased with him.
Sarakhsi, al-Mabsut, 10:7.
Ibid., 10:132.
Professor Imran Ahsan Khan Nyazee (b. 1945), an authority on Islamic law and jurisprudence, in his monumental work on General Principles of Islamic Law (Western and Islamic) concludes after analyzing the various theories that none of them adequately explains all the aspects and objectives of various punishments in Islamic law and, therefore, recommends an ‘integrative theory’ for punishments in Islamic law.
Sir Rupert Cross, The English Legal System (London: Butterworths, 1981), 128.
That is why jurists who prefer the theory of retribution criticize assigning strict liability to certain offences. Ibid., 126.
Sarakhsi, al-Mabsut, 27:84.
Sarakhsi, al-Mabsut, 26:60.
Ibid., 26:61.
Imran Ahsan Khan Nyazee, General Principles of Criminal Law: Western and Islamic (Islamabad: Shariah Academy, 2019), 110.
Qur’an, 2:179.
Sarakhsi, al-Mabsut, 26:60.
Nyazee, General Principles of Criminal Law, 114.
Qur’an, 24:2.
Sometimes even siyasah punishments were given in public.
See, for instance, Sections 121, 132, 194, 295-C, 302 (a) and (b), 303, 311 and 396 of Pakistan Penal Code, 1860.
Zahid Rehman v. The State, PLD 2015 SC 77, is a leading case on this issue.
Section 368, CrPC.
Human rights activists across the globe have been criticizing this punishment for being too severe, brutal and inhuman. For a representative view, see the 187th Report of Law Commission in India On Mode of Execution of Death Sentence and Incidental Matters (2003).
The Muslim jurists distinguish between tanqih al-manat, takhrij al-manat and tahqiq al-manat and say that the first two are the tasks of the jurist, while the third one is the task of the experts in that particular area. Thus, tanqih al-manat means extracting the effective cause of a rule by interpreting the relevant texts of the Qur’an and the Sunnah, while takhrij al-manat is doing it through rational sources, such as istihsan, maslahah etc. Once the effective cause is determined by the jurist, experts in the relevant area may decide if that cause is found in the case under observation or not. For instance, the jurists may determine that the effective cause of prohibition of wine is its being intoxicant, but whether a particular liquid is intoxicant or not is to be determined by experts in that area. See for details: Wahbah al-Zuhayli, Usul al-Fiqh al-Islami (Beirut: Dar al-Fikr, 1986), 1:693-695.
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