Rulings Governing Criminal Actions (2/7)

1. As for those resulting from abandoning obligations, these are:

i. not performing the Obligatory prayer until after its time, in which case the person in question is asked why he has not done it: if he replies that he had forgotten to do it, then he is ordered to make it up at the very moment that he has been reminded, and that he should not wait until the corresponding time (the next day). The Messenger of Allah, may the peace and blessings of Allah be upon him, said: "Whoever sleeps through the prayer; or forgets it, then he should pray it as soon as he remembers it, and then this counts as its (true) time, and there is nothing else to be made up apart from this." If the person has not done it because of illness then he should pray it as he is able, sitting or reclining: Allah ta'ala says: "Allah only burdens some­ one according to his capacity" (Qur’an, Surah Al-Baqarah, 2: 286). If the person abandons it, claiming that it is not an obligation, then he is a non-believer; and the same ruling as that governing the renegade applies - that is, he is killed for his denial, unless he turns for forgiveness. If he has not done it because he claims it is too difficult to do, but while acknowledging its obligation, then the fuqaha differ as to the ruling: Abu Hanifah considers that he should be beaten at the time of every prayer, but that he is not killed; Ahmad ibn Hanbal and a group of his later followers say that he becomes a kafir by his abandoning it, and is killed for this denial; ash-Shafi'i considers that he does not become a kafir by not doing it, that he is not killed as a hadd-punishment and that he is not considered a heretic; he is not put to death until he has been asked to turn in tawbah: if he does turn in tawbah and does it then he is left alone, but while ordering him to do it; if he says, "I will do it in my house," then he is trusted in his promise, and he is not compelled to do it in front of people. If he refuses to make tawbah, and does not accept to do the prayer; then he is killed for abandoning it - immediately, according to some, after three days, according to others. He is killed in cold blood by the sword, although Abu'l-Abbas ibn Surayj says that he is beaten with a wooden stick until he dies - since the irrevocability of the sword is avoided by this method, and thus more time is allowed in which the person may make tawbah.

The followers of ash-Shafi'i differ as to the obligation to kill him if he refuses to make up the prayers he has missed: some consider that he should be killed for missing them as for any of the other prayers at their time while others that he should not as the prayers missed still remain his responsibility.

Prayers are said over him after he has been put to death and he is buried in the Muslim cemetery as he is still counted as a Muslim and his wealth still belongs to those who inherit from him.

ii. As for the person who does not fast, he is not put to death according to the consensus of the fuqaha, but rather he is prevented from eating or drinking during  the period  of the fast in the month of Ramadan,  and he is given  a discretionary   punishment   to teach him a lesson;  if he accepts  the (necessity to) fast, he is left alone and is entrusted  to do it; if he  is then seen eating,  he is given  a discretionary   punishment,   but he is not killed;

iii. As for the person who does not pay the zakah, he is not put to death, but rather some of his wealth is taken by force; he is given a discretionary punishment if he keeps it hidden without a reason; if it is difficult to collect because he prevents this, he is attacked for it, even if getting it from him leads to his death, just as Abu Bakr as-Siddiq fought those who refused the zakah;

iv. As for the Hajj, it is an obligation,  according  to ash-Shafi'i, at any time a person  is able, right up to his death: it is thus not conceivable, according  to his  madhhab, that  someone  can delay  it beyond  its time;  according  to Abu Hanifah,  however,  it is to be performed  as soon as possible,  and so it is conceivable,  according  to his madhhab,  that someone  might delay  it beyond  its stipulated  time, but he is not put to death  for it, and he is not given  a discretionary  punishment, as his doing  it after the time is counted  as performing  it properly  -  and not just  as  making  up something  missed. If someone dies before carrying it out, then someone should do the Hajj for him using money from his capital.

As for someone  who refuses  to fulfil one  of the claims  of  man  (as opposed  to a claim of Allah), such as a debt or something  else, then it is exacted from him by force if the person  is able to pay; he is imprisoned  if it is difficult unless  he has no means,  in which case one waits for his financial  state to become  easier.

These then are the rulings concerning those who abandon what is obligatory.

2. As for someone  who commits  something  which is forbidden  this is one of two kinds: the first concerns  the rights of Allah, and they are four in number: the hadd  for fornication,   the hadd  for drinking  wine,  the hadd  for theft and the hadd  for brigandage;   the second  involves  the rights of man, and they are two in number:  the hadd-punishment   for false accusation  of fornication,  and the blood-money necessary  for harm caused  to someone.  We shall describe each separately:

A. The hadd-punishment for fornication. This refers to the act in which the head of the penis of the sane adult penetrates one of the two orifices, at the front or the back, of a person with whom he has no protecting tie, and without valid reason; Abu Hanifah considers that it refers only to the front orifice and not the back. The hadd-punishment for the male and female fornicator is the same; each will either be a virgin, or a muhsan-married person:

The virgin is the person who has not had intercourse with a spouse in marriage. The hadd-punishment, if he is a free person, is a hundred strokes applied all over his body - other than his face and those parts which would result in death - such that each member receives its due, and this is done with a whip which is not so new as to kill him, nor so worn as to cause no pain; the fuqaha differ as to whether he should be banished as well as being whipped; Abu Hanifah forbids this, confining it to a whipping; Malik says that a man is exiled, but not a woman; ash-Shafi'i says that she must be banished for a year from her land, that is, at least to a distance of a day's and night's travel away, basing his judgement on the saying of the Prophet, may the peace and blessings of Allah be upon him, ''Take this from me -Allah  has made a way for them: a virgin with a virgin, a hundred strokes and banishment for a year, a married person with a married person, a hundred strokes and stoning." The hadd of whipping and banishment is the same for the kafir as for the Muslim according to ash-Shafi'i.

As for the slave and those considered still to be slaves amongst the mudabbar slaves (who are to be freed after their master's death), the mukatab slaves (who are buying their freedom), and the umm walad (who have given birth to children of their masters), then the hadd for them is fifty lashes for fornication - that is, a half of the hadd for a free person, because of their lower status, i.e. of servitude. There is a difference of opinion as to whether slaves should be banished: some say that they are not, because of the harm it would cause their masters, and this is the opinion of Malik, while others say that they are banished for a year, like free persons, and this is the opinion of Dawud; the literal teaching of ash-Shafi'i is that he is banished for half a year, just as the lashes are half in number.

The muhsan is the man who has had intercourse with his wife in a valid marriage: his hadd is stoning with stones, or something similar; until death, and it is not necessary to protect the parts of the body likely to cause this fatality - unlike in the case of lashes - as the purpose of this stoning is death. Lashes are not given as well as the stoning, although Dawud says that a hundred lashes are given and then the stoning.  But the lashes have been abrogated in the case of the muhsan: The Prophet, may the peace and blessings of Allah be upon him, had Ma’iz stoned but did not have him lashed.  Being  a muhsan  is not conditional   upon being  a Muslim:  thus both the kafir and the Muslim  are stoned,  although Abu Hanifah  says that the situation  is such that if  a kafir  commits   fornication,   he is whipped  but  not stoned,  and  that  the Prophet,   may the peace  and blessings  of Allah  be upon  him, had two Jews whipped  for fornication.  And only the muhsan is stoned. The state of being free is a precondition   of being a muhsan:  thus if the slave fornicates, he is not stoned, and if he has a wife, then he still receives fifty lashes, although Dawud says that he is stoned, like the free person. As for sodomites  and those fornicating  with  animals,  then  the  virgin is whipped  and the  muhsan  is stoned, although  it is also said that both are to be put to death. Abu Hanifah  says that there  is no hadd  applicable  to them -  although  the Prophet,  may the  peace and  blessings   of Allah  be upon  him,  said:  "Kill  the  animal  and  the person who has fornicated  with it."

If a virgin male  fornicates  with a muhsan  female,  or a muhsan  male with a virgin  female,  then the virgin is whipped  and the muhsan  is stoned;  if they repeat  fornication  after the hadd-punishment,   then the hadd is imposed  again. If someone   has  fornicated   several  times  before  the  hadd  is  imposed,  then only  one hadd-punishment  is imposed  for all of them.

(Continued)