The Muslim/Mohammedan Criminal Law was most severe and was not conducive to the modern society. In the words of Warren Hastings, “It was founded on most lenient principles and an abhorrence of bloodshed.”
It provided four kinds of punishment for various offences –
1. Kisa – (Retaliation) Kisa means life for life and limb for limb. It applied to wilful killing of human beings and to certain types of wounding or maiming. It gave to the injured person or his next kin and in case of slave to his master, the right to inflict a similar injury on the wrong-doer. In some case Kisa was not available, e.g., where the person slain was a descendant of the slayer. For Example – if the accused had caused injury to the eye of a person, that person had right to cause injury to the eye of accused person.
2. Diya (Blood money) – Kisa could be exchanged with Diva, i.e., blood money. In case of the wilful murder, the fine of the blood was capable of being exacted only from the criminal himself. In other case, his family or associates were liable, but this never applied to Bengal in case of intentional wounding or maiming fine could be accepted in lieu of retaliation. For in case of unintentional injuries only fine was awarded.
3. Hadd (Boundary or limit) – In criminal law Hadd means specific penalties for specific offences. The idea behind it was to prescribe,define and fix the nature, quantity and quality of the punishments for certain particular offences which the society regard as anti-social and anti-religious. These offences were characterised as being against God, Judges had no direction in this matter. Thus, for Zina the punishment was stoning or scouring for falsely accusing a married woman of adultery and for wine drinking, the penalty was fixed to be scourging. In certain cases the punishments were fixed. In such offences, judges could not vary, increase or decrease the punishment if the offence was established, He was to give punishments as prescribed under the law. Such punishments were intended to deter criminals from committing those crimes. Any doubt or legal defect could prevent the execution of Hadd. The Hadd punishment could be inflicted after the completion of the procedural formalities.
4. Tazir (Discretionary punishment)– The judges were free to exercise their discretion as regards the kind and amount of the punishment. These punishments consisted of imprisonment, exile, corporal punishment, boxing on the ear or any other humiliating treatment. The conditions of the punishments were not too difficult as they were in Hadd. In the words of Rankin, “this part of the criminal law put itself to control by the Government of any particular place whom ordinances might lay down definite principles to regulate punishment in such case. Even cases coming under Bisa and Hadd if those punishments could not be inflicted owing to some exceptions, doubt or legal defect, could be dealt with by infliction of a lesser penalty by way of Tazir.” Tazir was resorted to even in those cases where Hadd and Kisa as a system of punishment failed because of some procedural difficulties.
5. Siyasat – King could punish the guilty persons in the interest of public.
Procedure for Administration of Criminal Law
Any person would be punished for an offence on his conviction. In the absence of confession two male witnesses for murder and four male witnesses for Zina were required. The confession should be made four times before the Kazi and it could be retracted at any time. The witness of one Muslim was equivalent to two non-Muslims or two women. The criminal could be accused on either direct or documentary or circumstantial evidence.
Main Defects in the Mohammedan Criminal Law
The Muslim Law of crimes contained many illogicalities. It was based on those conceptions of the relationship of State and society, which the western thought had already discarded. It suffered from many defects viz.,
1. Mohammedan Criminal Law did not make any distinction between private and public law – It made no distinction between public and private law. The Muslim Criminal Law was regarded as a private law. The offence committed was not a wrong against the State but against the person injured. The crimes against man here was punished by the State to secure the satisfaction to the injured rather than to the society as a whole. The criminal was punished by the State only when moved by the individual. The offender could escape from the punishment by making bribe to the injured person.
2. Misuse of the privilege of demanding Diya in place of Kisa– One of the defects of criminal law was that the heirs of the deceased could demand Diya in place of Kisa or might pardon the criminal. The misuse of the privilege of demanding Diya in place of Kisa could be witnessed in Chittagong case in which five men convicted of murder and robbery were pardoned by the complainant for a petty sum of Rs. 80. The right of the heirs to pardon the criminal abated the crimes. The heirs of the deceased have no right to either pardon the offender or to demand Diya from that person.
3. Only heirs were empowered to demand Kisa – The rule that only heirs could demand Kisa created many problems. If the deceased had left behind his relatives who did not come forward to punish the criminal either because of the ignorance of the crime or because of other circumstances, the criminal could not be punished and would be kept in prison so long as some one would come forward to demand the punishments. The position was also not clear as to what happened, if when the murdered man left behind no heirs.
4. Sentence of death was to be executed by the nearest relation of the deceased – Under certain circumstances the Muslim Law of crimes required the sentence of death to be executed on the murderer by the nearest kin of the deceased. How barbarous and absurd this law could be in its practical working is illustrated by a case – a woman murdered his husband and consequently, was condemned to death at the hands of her children. The children were very young and they pardoned their mother. Commenting on this case Warren Hastings observed that the children would have deserved, death themselves if they had been so utterly devoid of every feeling of humanity, as to have been able to administer it to her who gave them life.
5. It prescribed punishment of mutilation – The Muslim law sanctioned punishment of mutilation which was not consistent with the mercy and justice. In many cases law prescribed the specific number of witnesses, whose testimony was essential for convicting an offender, As for instance to convict a man for rape, it is necessary to have four witnesses who could swear that they had actually seen the accused in committing the offence. It is impossible for a person to see the act of committing rape.
The Muslim Criminal Law was severe and was not conductive to the modern society. Warren Hastings once observed – “Mohammedan Law is founded on most lenient principles and an abhorrence of bloodshed.”
Discuss the salient features of the Mohammedan criminal law.