[Derived from the conversation and writings of Javed Ahmed Ghamidi]
Regarding retributive justice, generally, there are two perspectives:
One perspective is that a murderer is actually a mentally ill person. The commission of a grave crime like murder by them is due to emotional stress or mental disturbance. A patient suffering from these ailments deserves treatment, not punishment. Therefore, killing the murderer in return for murder is akin to putting a sick person to death instead of providing treatment. For those who hold this viewpoint, the correct approach is to arrange for the mental reform and moral training of the murderer, instead of executing them.
The second point of view is that a murderer is akin to a malignant sore in the body of society. Cutting it off and discarding it is essential for the health of society. A murderer is an enemy of peace and security. If such a person is allowed to remain in society, the very existence of society can be put at risk. For the survival of society, it is necessary to purify society from such a person.
A general review of these two perspectives leads us to the conclusion that both of these viewpoints deviate from the position of moderation.
As far as the first point of view is concerned, it is fundamentally incorrect to say that the act of committing murder by a person necessarily occurs in a state of illness. Generally, one decides to kill someone with complete consciousness and awareness. If it is actually proven that a murderer is mentally or psychologically ill, then no court in the world imposes the death penalty on him.
The result of adopting this perspective is that, without exception, every murderer is considered a mental and psychological patient, and the death penalty is entirely abolished. We believe that if this is adopted, the protection of human life, in its true sense, no longer remains. The fear of losing life can deter even a beast-like human from taking another’s life. If there is no fear of losing life in return for taking a life, then any human-like beast can turn the loss of human lives into a game. Furthermore, adopting this perspective does not create any form of deterrence for others, and by seeing a murderer not receiving the death penalty in return for their crime, other individuals with similar evil inclinations are incited to commit such heinous crimes.
The fundamental flaw of the second perspective is that it does not acknowledge the possibility of repentance, guidance, and reform, and entirely blocks these paths. Moreover, the possibility of ending the cycle of enmity among families and, as a result, establishing an atmosphere of tolerance and fraternity in society is entirely eliminated.
Regarding retribution, these are two extreme perspectives. Islam stands at a place of moderation and balance between these extremes. It neither wishes to give murderers free rein, thus making human life cheap and turning society into an embodiment of cruelty and transgression, nor does it want to completely eliminate the possibility of forgiveness for the murderer, thereby removing opportunities for expressing values such as compassion, benevolence, brotherhood, and sacrifice within the society, rendering it entirely soulless and lifeless. Consequently, on one hand, by declaring the murder of one person as the murder of all humanity and making retribution obligatory, Islam has provided complete protection to society. On the other hand, by allowing the heirs the opportunity to forgive, it has facilitated the atmosphere of brotherhood in society and paved the way for the sinner’s repentance, contrition, and moral guidance.
It is clear from the Qur’an that Islam equates the killing of one person with the killing of all humanity, and saving one life is equivalent to saving all of humanity. The command of God is:
مِنۡ اَجۡلِ ذٰ لِكَ ۛ ۚ كَتَبۡنَا عَلٰى بَنِىۡۤ اِسۡرَآءِيۡلَ اَنَّهٗ مَنۡ قَتَلَ نَفۡسًۢا بِغَيۡرِ نَفۡسٍ اَوۡ فَسَادٍ فِى الۡاَرۡضِ فَكَاَنَّمَا قَتَلَ النَّاسَ جَمِيۡعًا ؕ وَمَنۡ اَحۡيَاهَا فَكَاَنَّمَاۤ اَحۡيَا النَّاسَ جَمِيۡعًا
It is this [rebelliousness of human beings] because of which [when We gave the sharī‘ah to Moses,] We wrote [in it] the directive for the Israelites also that he who killed a human being without the latter being guilty of killing another or of spreading anarchy in the land, then it is as if he killed all mankind, and he who gave life to one person, it is as if he gave life to all mankind. (5:32)
The perpetrator of this crime has been deemed deserving of the eternal punishment of Hell by Allah Almighty. It is stated:
وَمَنۡ يَّقۡتُلۡ مُؤۡمِنًا مُّتَعَمِّدًا فَجَزَآؤُهٗ جَهَـنَّمُ خَالِدًا فِيۡهَا وَغَضِبَ اللّٰهُ عَلَيۡهِ وَلَعَنَهٗ وَاَعَدَّ لَهٗ عَذَابًا عَظِيۡمًا.
However, he who intentionally kills a believer, his punishment is Hell. He shall abide therein forever. The wrath and the curse of God are upon him. And He has prepared for him a great doom.
(4:93)
This gravity of the crime undoubtedly demands that the state and society, with their entire system, stand up against the murderer and ensure that the heirs of the victim are granted retribution. The law regarding retribution that Allah Almighty has stated in His Book, the Qur’an, is as follows:
يٰٓاَيُّهَا الَّذِيۡنَ اٰمَنُوۡا كُتِبَ عَلَيۡكُمُ الۡقِصَاصُ فِى الۡقَتۡلٰى ؕ الۡحُرُّ بِالۡحُـرِّ وَالۡعَبۡدُ بِالۡعَبۡدِ وَالۡاُنۡثَىٰ بِالۡاُنۡثٰىؕ فَمَنۡ عُفِىَ لَهٗ مِنۡ اَخِيۡهِ شَىۡءٌ فَاتِّبَاعٌۢ بِالۡمَعۡرُوۡفِ وَاَدَآءٌ اِلَيۡهِ بِاِحۡسَانٍؕ ذٰلِكَ تَخۡفِيۡفٌ مِّنۡ رَّبِّكُمۡ وَرَحۡمَةٌ ؕ فَمَنِ اعۡتَدٰى بَعۡدَ ذٰلِكَ فَلَهٗ عَذَابٌ اَلِيۡمٌۚ (178)وَ لَـكُمۡ فِى الۡقِصَاصِ حَيٰوةٌ يّٰٓـاُولِىۡ الۡاَلۡبَابِ لَعَلَّکُمۡ تَتَّقُوۡنَ (179)
Believers! Qisās is decreed for you in the cases of those [among you] who are killed such that if the murderer is a free-man, then the same free-man should be killed in his place and if he is a slave, then the same slave should be killed in his place and if the murderer is a woman, then the same woman should be killed in her place. Then for whom there has been some concession from his brother, [you can accept it; but if it is accepted, then] after this it should be followed according to the custom and whatever is the diyat should be paid to him befittingly. This is a kind of concession from your Lord and His favor upon you. Then, after this, for whoever exceeds the limits is a torment afflictive [on the Day of Judgement] and there is life for you in qisās O men of insight so that you may keep following the limits set by God.
(2:178-179)
These verses clearly indicate that retribution is obligatory for intentional murder, and this obligation rests upon the community of Muslims. Hence, it is the responsibility of society and the state to apprehend the murderer and, after fulfilling legal requirements, enforce the penalty of retribution upon him. This means that by sentencing the murderer to death as a consequence of his crime, society is cleansed of his presence. The society or state does not have the authority to show leniency, concession, or pardon in this matter. However, the heirs of the victim do have the right to recommend leniency or pardon for the murderer. After their recommendation, the obligation of enforcing retribution does not remain on the court and government, and consequently, the justification for leniency or pardon arises. In such a situation, it is within the discretion of the court and government to either grant leniency, taking into account the nature of the crime and the circumstances of the criminal, or to enforce retribution.Therefore, the government and society have the full right to insist on retribution based on the nature of the crime and the circumstances of the offender, and to refuse to accept this concession.
In the aforementioned verse of Surah Al-Baqarah, it is also stated that in the event of receiving a pardon, it is obligatory for the perpetrator to pay compensation or blood money in accordance with the prescribed rules.
What is Diyah in terms of its reality? Generally, two viewpoints have been prevalent regarding this:
One perspective is that compensation paid to the victim or heirs of a victim (diyat) is in fact the price of life. When the heirs of the deceased forgive the murderer in exchange for a sum of money, they are essentially forgiving after receiving the price of the life of the deceased.
The second point of view is that it is compensation for the economic loss suffered by the heirs of the deceased due to his departure from the world. In other words, by receiving the blood money, the heirs of the deceased compensate for the financial loss that they might have to endure due to the absence of the deceased.
In our opinion, both of these viewpoints are incorrect. It is unimaginable for a human being to exhibit such dishonor that they would accept blood money for their loved ones. Can any parent accept compensation for their son’s life, and can any son accept money for the life of his parents and forgive the murderer? Similarly, the idea that receiving blood money after a murder compensates for economic loss is also incorrect. Accepting this notion fails to explain the rationale behind compensating for injuries to other parts of the body. Clearly, losing a tooth or a finger from the hand or foot generally does not result in economic loss.
What is the correct viewpoint on blood money if both of these perspectives are wrong? In this regard, the esteemed teacher Javed Ahmed Ghamidi writes in his book Burhan:
The concept of Diyat is mentioned in several places in the poetry of pre-Islamic Arab society. Incidents of murder and bloodshed were so common in their lives that themes of revenge (Tha’ar), retribution (Qisas), and blood money (Diyat) were always readily available for their poets to explore. There is no doubt that, generally, in these verses, they stigmatize those who accept blood money and urge them towards vengeance. However, if they ever speak on the topic of blood money without any such emotional backdrop, the reality of Diyat typically becomes clear through their expression.
For compensation, they use the word ‘gharamah’ or its synonymous word ‘mughram’ on such occasions. In Arabic, this word is used in the same sense as we use the word fine or penalty in Urdu. Just as in our language, every amount taken from a criminal as punishment for a crime is termed as fine or penalty, similarly, in the language of pre-Islamic Arabs, the word ‘gharamah’ was used for this purpose. In fact, to express the concept of compensation, Arab poets have used this very word, as we have mentioned.
…It is clear from this that compensation (diyat) is a substitute for economic loss, not the price of the victim’s blood. In its essence, it is merely ‘gharamah,’ which means compensation or a fine, imposed obligatorily on the perpetrator in the case of forgiveness from retaliatory justice in intentional killing and in the case of accidental killing. (23-24)
In summary, retribution for murder is a decree of the Shariah, and it is obligatory upon the collective organization of Muslims. In this regard, the state and government hold the dual responsibility of being both the custodian and the party involved. It must uphold the Shariah, fulfill the responsibility of justice and fairness, and also protect its own rights, which in essence means the rights of society against the crime committed. Thus, the state will arrest the killer and inquire from the victim’s heirs whether they seek the application of the death penalty in retribution or are willing to grant the killer any concession. If the heirs demand retribution, it becomes incumbent upon the state to enforce it. In this situation, the state does not possess the right to grant any reduction or concession. On the other hand, if the heirs wish to pardon the killer, then it falls to the discretion of the state, depending on the nature of the crime and the circumstances of the criminal, either to accept the concession of forgiveness and arrange for blood money for the heirs or to persist with the retribution punishment and execute the murderer.