Jinayat: Qishash and Diyat — The Islamic System Protecting Human Life and Body
Dear reader,
If there is one thing most precious in this world — after faith in Allah ﷻ — it is our own lives and bodies. No wealth can replace a single drop of blood. No gold can buy back a life that has been lost. No jewel equals a single blind eye.
In the previous article on the Philosophy of Islamic Criminal Law, we understood that Islamic sanctions are built to protect the five pearls of civilization. And the most fundamental pearl — after religion — is the human soul and body (an-nafs).
This time, we will enter the engine room: Al-Jinayat — the Islamic legal system that deals with attacks against life, limbs, and property. A system that ensures the tears of the victim’s family do not fall in vain, while also giving the perpetrator a genuine opportunity for repentance.
Let us explore 10 key points that will demonstrate how Islam is the most noble religion in protecting human dignity.
1. Definition of Al-Jinayat: What Is It and Why Is It So Named?
The word jinayat (جنايات) is the plural of jinayah (جِنايَة) derived from the root jana (جَنَى) — meaning to pick, to acquire, or to do something that results in harm. In Arabic, the perpetrator of a crime is called jani (جانٍ) because he “picks” the fruit of his own actions.
Hizbut Tahrir in Nizhamul Hukm fil Islam defines jinayat firmly:
الْجِنَايَةُ: هِيَ الِاعْتِدَاءُ عَلَى النَّفْسِ أَوِ الطَّرْفِ أَوِ الْمَالِ
“Al-Jinayah is an attack against life, limbs, or property.”
Note the three protected objects:
- An-Nafs (النَّفْس) — The human soul/life
- At-Tarf (الطَّرْف) — Body parts (eyes, hands, feet, teeth)
- Al-Mal (الْمَال) — Property/wealth
This is not a coincidental definition. Islam recognizes that when a person is attacked, what is damaged is not only their physical body — but also their honor, their sense of security, and their dignity. Jinayat exists to restore all three.
Allah ﷻ says in the Qur’an with full diacritical marks:
يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الْقِصَاصُ فِي الْقَتْلَى الْحُرُّ بِالْحُرِّ وَالْعَبْدُ بِالْعَبْدِ وَالْأُنْثَىٰ بِالْأُنْثَىٰ
“O you who have believed, prescribed for you is qishash concerning those killed: free for free, slave for slave, female for female.” (QS. Al-Baqarah [2]: 178)
The word كُتِبَ (kutiba) — meaning “prescribed as an obligation” — indicates that qishash is not a negotiable option. It is a sharia obligation that Allah ﷻ has established to uphold justice.
Jinayat vs Hudud: Two Different Sides of Justice
Many people are confused about the difference between Jinayat and Hudud. Yet both have very fundamental philosophical differences.
Table 1: Fundamental Differences Between Jinayat and Hudud
| Aspect | Jinayat (جنايات) | Hudud (حدود) |
|---|---|---|
| Nature of Right | Haqq Adam — individual right of the victim | Haqq Allah — the right of Allah ﷻ |
| Can Be Forgiven? | ✅ Yes, by the victim’s family | ❌ No, already fixed by Allah |
| Punishment | Qishash (retribution) or Diyat (compensation) | Fixed and cannot be changed |
| Protection Focus | Physical and property of individuals | Morals, religion, and public order |
| Examples of Crimes | Murder, assault, robbery | Zina, theft, qadzaf, khamr |
| Standard of Proof | 2 witnesses + Qasamah (50 oaths) | 4 witnesses for zina, repeated confession |
The Prophet ﷺ described how sacred the blood (life) of a Muslim is in his saying:
إِنَّ دِمَاءَكُمْ وَأَمْوَالَكُمْ وَأَعْرَاضَكُمْ بَيْنَكُمْ حَرَامٌ كَحُرْمَةِ يَوْمِكُمْ هَذَا فِي شَهْرِكُمْ هَذَا فِي بَلَدِكُمْ هَذَا
“Indeed, your blood, your wealth, and your honor are sacred (haram) among you, like the sanctity of this day of yours, in this month of yours, in this land of yours.” (HR. Bukhari no. 67)
“Haram” here means “sacred and inviolable.” Not haram in the sense of forbidden — but haram in the sense of being honored and protected. This is the foundation of Jinayat.
2. Philosophy of Qishash: The Paradox of “Life in Death”
Let us reflect on one of the most striking verses in the entire Qur’an. Allah ﷻ says:
وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَا أُولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ
“And there is (the guarantee of) life for you in qishash, O people of understanding, that you may attain righteousness.” (QS. Al-Baqarah [2]: 179)
“There is life in qishash.”
Logically, this is a paradox. Qishash is a death penalty — how can there be “life” in it?
But this is the genius of Islamic law that can only come from the Creator of humanity itself.
Five Dimensions of “Life” in Qishash
| No | Dimension of Life | Explanation |
|---|---|---|
| 1 | Life for the Victim | Justice is served, the family’s tears are wiped away |
| 2 | Life for Society | Others fear to kill — murder rates drop drastically |
| 3 | Life for the Perpetrator | Qishash in this world erases the sin of the Hereafter (if he repents) |
| 4 | Breaking the Cycle of Revenge | The victim’s family does not take the law into their own hands — the state handles it |
| 5 | Ending the Culture of Fear | Society lives peacefully because the law is enforced |
Visual Analogy: A Precise Gold Scale
Imagine a giant, highly precise gold scale placed in the center of the city. On one pan of the scale is the life of a human being that has been lost — represented by a drop of flowing blood. On the other pan is empty — and the scale tilts sharply, unbalanced.
Qishash is Islam’s way of placing an equal weight on the other pan — the life of the perpetrator in exchange for the life of the victim. The scale returns to balance. No more, no less. This is not cruelty — this is mathematical justice ensuring no blood is spilled in vain.
Compare this to a life imprisonment system: there, no scale is ever balanced. The perpetrator lives while the victim remains dead. The victim’s family never receives justice. And the state bears the cost of imprisonment for decades from taxpayers.
The Prophet ﷺ also affirmed in his saying:
لَا يَحِلُّ دَمُ امْرِئٍ مُسْلِمٍ يَشْهَدُ أَنْ لَا إِلَهَ إِلَّا اللَّهُ وَأَنِّي رَسُولُ اللَّهِ إِلَّا بِإِحْدَى ثَلَاثٍ الثَّيِّبُ الزَّانِي وَالنَّفْسُ بِالنَّفْسِ وَالتَّارِكُ لِدِينِهِ الْمُفَارِقُ لِلْجَمَاعَةِ
“The blood of a Muslim who testifies that there is no god but Allah and that I am the Messenger of Allah is not lawful except for one of three: a married adulterer, a life for a life, and one who abandons his religion and separates from the community.” (HR. Bukhari no. 6875, Muslim no. 1676)
Note the order of these three reasons. The Prophet ﷺ mentions “a life for a life” (an-nafs bi an-nafs) as the only reason related to Jinayat — and this shows how seriously Islam protects human life.
3. Four Types of Killing: Not All Killings Are Equal
One of the strengths of the Islamic Jinayat system is its very detailed and proportional classification of killing. Islam does not treat all killings the same. Some are intentional, some are semi-intentional, some are pure accidents, and some are due to indirect causes.
In Nizhamul Hukm fil Islam, Hizbut Tahrir explains these four types in detail.
Table 2: Four Types of Killing in Jinayat
| No | Type of Killing | Arabic | Intent | Tool | Punishment |
|---|---|---|---|---|---|
| 1 | Fully Intentional | قتل العمد | Intent to kill | Deadly (knife, bullet, poison) | Qishash (death) — or Diyat/Forgiveness |
| 2 | Semi-Intentional | قتل شبه العمد | Intent to hit/injure, not kill | Usually not deadly, but victim dies | Diyat Mughallazhah (heavy) |
| 3 | Unintentional | قتل الخطأ | No intent at all | Pure accident | Diyat Mukhaffafah (light) |
| 4 | By Cause | قتل السبب | Indirect — indirect cause | Indirect (digging a well, poisoning food) | Diyat or Tazir |
Concrete Examples of Each Type
Type 1 — Intentional Killing (قتل العمد):
- Ahmad stabs Budi in the chest with a knife — Budi dies
- Siti poisons her husband’s food — the husband dies
- A robber shoots his victim — the victim dies
Type 2 — Semi-Intentional (قتل شبه العمد):
- Khalid hits Daud with a wooden stick — his intent was only to hurt, but Daud falls, hits his head on a rock, and dies
- Someone pushes another off stairs — the victim falls and breaks their neck
Type 3 — Unintentional (قتل الخطأ):
- Someone hunting in the forest mistakes a human for a deer — shoots and kills
- A truck driver falls asleep and accidentally hits a pedestrian
Type 4 — By Cause (قتل السبب):
- Someone digs a well in the middle of a public road — someone falls in and dies
- A construction worker installs weak scaffolding — it collapses and hits someone
Table 3: Comparison of Elements for Each Type of Killing
| Type | Intent to Kill? | Deadly Tool? | Direct Causation? | Primary Punishment |
|---|---|---|---|---|
| Intentional | ✅ Yes | ✅ Yes | ✅ Direct | Qishash |
| Semi-Intentional | ❌ No (intent to hit) | ⚠️ Could be deadly | ✅ Direct | Heavy Diyat |
| Unintentional | ❌ No | ❌ No | ✅ Direct | Light Diyat |
| By Cause | ❌ No | ❌ No | ❌ Indirect | Diyat/Tazir |
Allah ﷻ says about unintentional killing:
وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَىٰ أَهْلِهِ
“And it is not for a believer to kill a believer except by mistake. And whoever kills a believer by mistake must free a believing slave and pay diyat to his family.” (QS. An-Nisa’ [4]: 92)
Note the compassion of Allah ﷻ in this verse. For unintentional killing, the punishment is not prison — but freeing a Muslim slave and paying diyat. This is a constructive punishment, not a destructive one.
4. Qishash: A Justice Mechanism That Gives a Voice to the Victim
Now we enter the part most often misunderstood by the Western world: Qishash.
Qishash (قِصَاص) derives from the word qassa (قَصَّ) meaning to follow footsteps or trace. In the legal context, qishash means to repay a crime with an equivalent — following the footsteps of the perpetrator’s crime and giving an equivalent retribution.
الْقِصَاصُ: مُقَابَلَةُ الْجِنَايَةِ بِمِثْلِهَا
“Qishash is repaying a crime with something similar.”
Qishash Is Not Only for Killing
Many people think qishash only applies to killing. In fact, qishash also applies to wounds and assault.
Allah ﷻ says:
وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنْفَ بِالْأَنْفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ
“And We prescribed for them (the Children of Israel) in it (the Torah): life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and for wounds there is qishash.” (QS. Al-Ma’idah [5]: 45)
Note the beauty of this verse. Allah ﷻ mentions each body part in detail — eye, nose, ear, tooth — and for each there is qishash. This shows how precise and detailed Islamic justice is.
Conditions for Qishash
Qishash cannot be imposed arbitrarily. In Nizhamul Hukm, there are strict conditions that must be met:
Table 4: Conditions for Qishash
| No | Condition | Description |
|---|---|---|
| 1 | Perpetrator is Mukallaf | Adult (baligh) and sane (not insane) |
| 2 | Intentional Intent | The perpetrator indeed intended to kill or injure |
| 3 | Victim Died/Injured | There is a direct consequence of the perpetrator’s act |
| 4 | Causal Relationship | The injury/death is a direct result, not another factor |
| 5 | Sufficient Evidence | 2 just male witnesses OR the perpetrator’s confession in court |
| 6 | Victim’s Family Demands It | Qishash is only carried out if the victim’s family does not forgive |
Those Who Cannot Be Subjected to Qishash
In Nizhamul Hukm, conditions where qishash does not apply are also explained:
| Condition | Reason | Substitute Punishment |
|---|---|---|
| Parent kills their child | The child is the parent’s right according to sharia | Tazir (discretionary punishment) |
| Ruler executes a convict | Official state duty, not a crime | No punishment |
| Legitimate self-defense | Defending one’s own threatened life | No punishment |
| Perpetrator is a minor (not baligh) | A child is not yet mukallaf | Tazir for guardian/parents |
| Perpetrator is insane | Lacks reason, not mukallaf | Held in a mental institution |
Visual Analogy: A Golden Key in the Hands of the Victim’s Family
Imagine a beautiful golden key engraved with calligraphy, of which there is only one in the world. This key is held by the victim’s family — not by the state, not by the prosecutor, not by the judge.
This key can open three different doors:
The first door is inscribed “Qishash” — proportionate justice, life for life.
The second door is inscribed “Diyat” — financial compensation as a substitute for qishash, in a very substantial amount.
The third door — the most noble — is inscribed “Al-‘Afwu” (العفو) — complete forgiveness without compensation. The victim’s family lets the perpetrator go for the sake of Allah ﷻ.
The state cannot force this key. The judge cannot seize it. The prosecutor cannot take it. Only the victim’s family has the right to decide. This is the nobility of Islam that is not found in any other legal system in the world.
5. Diyat: Compensation That Soothes the Heart
When the victim’s family chooses not to carry out qishash — whether because they wish to accept financial compensation or to forgive completely — then the Diyat (دِيَة) system applies.
الدِّيَةُ: مَا يُبْذَلُ مِنْ الْمَالِ مُقَابِلَ النَّفْسِ أَوِ الطَّرْفِ
“Diyat is wealth given as a substitute (for qishash) for a life or a limb.”
Amount of Diyat Determined by Sharia
In Nizhamul Hukm, the amount of Diyat for killing is established based on the hadith of the Prophet ﷺ:
Table 5: Amount of Diyat for Killing and Its Types
| Type of Diyat | Arabic | Condition | In Camels | In Gold Dinars | In Gold (grams) |
|---|---|---|---|---|---|
| Mughallazhah (heavy) | مغلظة | Semi-intentional killing | 100 camels (35 must be pregnant) | 1,000 dinars | 4,250 grams |
| Mutawassithah (medium) | متوسطة | Unintentional killing | 100 ordinary camels | 1,000 dinars | 4,250 grams |
| Mukhaffafah (light) | مخففة | Pure accident | 20 camels | 200 dinars | 850 grams |
Important note: In the Islamic Khilafah, the Khalifah has the right to convert these amounts into the local currency prevailing at the time. For instance, if the current gold price is Rp 1,000,000 per gram, then Diyat Mughallazhah (4,250 grams) is worth approximately Rp 4.25 billion. This is a very significant compensation for the victim’s family.
Diyat for Body Parts (Other Than Killing)
Qishash is not only for life. For body parts, diyat is calculated as a percentage of full diyat:
Table 6: Diyat for Injury and Loss of Body Parts
| Injury | Diyat Percentage | In Dinars | In Gold (grams) |
|---|---|---|---|
| Loss of 1 eye | 50% | 500 dinars | 2,125 grams |
| Loss of 1 hand | 50% | 500 dinars | 2,125 grams |
| Loss of 1 foot | 50% | 500 dinars | 2,125 grams |
| Loss of 1 ear | 50% | 500 dinars | 2,125 grams |
| Loss of nose | 50% (if completely lost) | 500 dinars | 2,125 grams |
| Head wound (Syaejah) | 33% (1/3 of diyat) | 333 dinars | 1,416 grams |
| 1 broken tooth | 5% (1/20 of diyat) | 50 dinars | 212.5 grams |
| Bruise (Harishah) | 1% (1/100 of diyat) | 10 dinars | 42.5 grams |
The Prophet ﷺ said about the proportionality of diyat:
وَمَنْ أُصِيبَ مِنْهُ شَيْءٌ فَهُوَ فِي عَهْدِ اللَّهِ حَتَّى يُقْضَى بَيْنَهُ
“Whoever is afflicted with something (an injury), he is under the guarantee of Allah until the matter is settled between them.” (HR. Ibnu Majah no. 2620)
Who Pays the Diyat?
This is an important detail often overlooked. In the hadith of the Prophet ﷺ narrated by Bukhari and Muslim, it is stated that diyat is borne by ‘Aqilah — the extended male family of the perpetrator (tribe, clan, or extended family).
“Diyat is charged to the ‘Aqilah (the extended male family of the perpetrator).” (HR. Bukhari no. 6911)
Why? Because in Arab culture — and in many cultures to this day — the extended family is a social safety net. When one individual cannot afford to pay diyat alone, his family bears it. This ensures the victim’s family still receives compensation, and the perpetrator is not trapped in lifelong debt.
In the context of a modern Khilafah, this mechanism can be adapted: Baitul Mal (the state treasury) could bear part of the diyat if the ‘Aqilah cannot afford it, so that justice is still achieved.
6. Victim’s Rights: A Uniqueness Not Found in Any Other System
This is the point that most distinguishes Islamic Jinayat from any legal system in the world: the victim’s family holds full control.
Philosophical Comparison
Table 7: Who Holds the Decision?
| Aspect | Islamic Jinayat System | Modern Western Legal System |
|---|---|---|
| Decision Maker | The victim’s family | The state (public prosecutor) |
| Can Forgive? | ✅ Yes — fully or partially | ❌ No — the state decides |
| Plea Bargain | ❌ None — only forgiveness, diyat, or qishash | ✅ Yes — prosecutor can deal with defense lawyer |
| Victim’s Voice in Court | ✅ The victim’s family is the primary party | ❌ Victim is only a witness — not a prosecuting party |
| Compensation | Diyat automatically from sharia | Must file separate civil lawsuit (expensive and slow) |
Imagine this: In the Western system, when someone is killed, it is the state that prosecutes. The prosecutor decides whether to charge, whether to engage in a plea bargain, whether to seek the death penalty. The victim’s family? They are just spectators in the courtroom. They have no voice. They cannot force the prosecutor to press harder. They cannot stop a prosecutor who wants to make a deal.
Islam completely reverses this logic. In Jinayat, the victim’s family is simultaneously the prosecutor, the judge, and the executioner. The state merely facilitates the legal process — but the decision lies with those who have the greatest right: the family who lost their loved one.
Allah ﷻ says — and this is the most beautiful verse about compassionate justice:
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ ۗ ذَٰلِكَ تَخْفِيفٌ مِنْ رَبِّكُمْ وَرَحْمَةٌ
“But whoever receives forgiveness from his brother (the victim’s family), let the pursuit be in accordance with what is acceptable and payment to him with good conduct. That is a concession from your Lord and a mercy.” (QS. Al-Baqarah [2]: 178)
Note the conclusion of this verse: “a concession from your Lord and mercy.” Allah ﷻ Himself calls forgiveness and diyat His mercy. Not weakness — but mercy.
Three Choices of the Victim’s Family
| Choice | Arabic | Description | When Most Appropriate |
|---|---|---|---|
| Qishash | قِصَاص | Perpetrator is punished equally (death for death, wound for wound) | When the perpetrator shows no remorse, or the crime was very heinous |
| Diyat | دِيَة | The victim’s family accepts financial compensation in lieu of forgiveness | When the victim’s family needs economic support, or the perpetrator regrets but qishash is too severe |
| Al-‘Afwu (Full Forgiveness) | العفو | The victim’s family sincerely forgives without compensation — this is most virtuous in the sight of Allah ﷻ | When the victim’s family can be magnanimous and seek reward from Allah ﷻ |
The Prophet ﷺ said:
مَنْ نَفَّسَ عَنْ مُؤْمِنٍ كُرْبَةً مِنْ كُرَبِ الدُّنْيَا نَفَّسَ اللَّهُ عَنْهُ كُرْبَةً مِنْ كُرَبِ يَوْمِ الْقِيَامَةِ
“Whoever relieves a believer of a burden from the burdens of this world, Allah will relieve him of a burden on the Day of Resurrection.” (HR. Muslim no. 2699)
Forgiving the perpetrator of a killing is one of the greatest forms of “relieving a burden” — and its reward is that Allah ﷻ Himself will lighten the burden of the forgiver on the Day of Resurrection.
7. Qasamah: A Unique Evidentiary System for Cases Without Witnesses
One of the most unique aspects of Jinayat — with no parallel in any other legal system — is Qasamah (قَسَامَة).
الْقَسَامَةُ: أَيْمَانٌ يُحْلِفُهَا أَوْلِيَاءُ الْمَقْتُولِ عَلَى اسْتِحْقَاقِ دَمِ الْقَتِيلِ
“Qasamah are oaths taken by the victim’s family to prove their right to the blood of the slain person.”
Why Is Qasamah Needed?
Imagine this scenario: Someone is found dead in a dark alley. No CCTV. No eyewitnesses. No confession from the perpetrator. In the Western system, this case would most likely be dropped — unable to be prosecuted because there is no evidence.
Islam has a solution: Qasamah.
How Qasamah Works
| Step | Process | Detail |
|---|---|---|
| 1 | The victim’s family makes a claim | The family says: “The suspect X killed the victim” |
| 2 | 50 family members take an oath | 50 men from the victim’s extended family swear by Allah ﷻ that the suspect is indeed the perpetrator |
| 3 | Qishash is carried out | If the full 50 oaths are completed, qishash may be imposed |
| 4 | The suspect may deny | The suspect may deny by swearing 50 times that he did not kill |
| 5 | If the suspect denies | The case is dropped — the suspect is freed, diyat is not obligatory |
The Prophet ﷺ said:
لَوْ يُعْطَى النَّاسُ بِدَعْوَاهُمْ لَادَّعَى رِجَالٌ أَمْوَالَ قَوْمٍ وَدِمَاءَهُمْ وَلَكِنَّ الْبَيِّنَةَ عَلَى الْمُدَّعِي وَالْيَمِينَ عَلَى مَنْ أَنْكَرَ
“If people were given whatever they claim, they would claim the wealth and blood of others. However, the burden of proof is on the claimant, and the oath is on the one who denies.” (HR. Bukhari no. 4277, Muslim no. 1831)
Qasamah is an exception to this general principle — because in a murder case without witnesses, the only way to uphold justice is through the oaths of the victim’s family who care most about justice for their loved one.
Table 8: Comparison of Jinayat Evidentiary Tools
| Evidentiary Tool | Description | When Used | Strength |
|---|---|---|---|
| Perpetrator’s Confession | Repeated at least 2 times in court | Cases where the perpetrator is aware and confesses | Very strong — can lead directly to qishash |
| 2 Just Male Witnesses | Saw or heard directly | Cases with eyewitnesses | Very strong — primary standard |
| Qasamah (50 Oaths) | 50 members of victim’s family take oaths | Cases without witnesses and without confession | Strong — can substitute 2 witnesses |
| Medical Documents | Autopsy, medical records, photos | Supporting primary evidence | Supporting — cannot stand alone |
| Digital Evidence | CCTV, audio recordings, forensics | Modern context (tazir) | Supporting — depends on context |
8. Assault and Injury: Qishash for Other Than Life
Jinayat does not only deal with killing. It also deals with assault and injury — from minor bruises to the loss of limbs.
Types of Wounds That Have Qishash
| Type of Wound | Arabic | Description | Qishash or Diyat? |
|---|---|---|---|
| Bruise | حارصة (Harishah) | Scraped skin, bruise, contusion | Diyat 1% |
| Bleeding Wound | دامية (Damiyah) | Blood flows without visible bone | Higher Diyat |
| Deep Wound | سحاق (Sahaq) | Flesh exposed, bone visible | Significant Diyat |
| Fracture | كسر (Kasr) | Bone cracked or broken | Diyat + Tazir |
| Loss of Limb | قطع (Qat’) | Eye, hand, foot, ear lost | Qishash or Diyat 50% |
| Broken Tooth | سن (Sinn) | One or more teeth broken | Diyat 5% per tooth |
Principle of Equivalence in Qishash for Wounds
If the victim’s family demands qishash for a wound (not killing), then the wound inflicted upon the perpetrator must be similar — no more, no less.
| Victim’s Wound | Equivalent Qishash | Note |
|---|---|---|
| Left eye blinded | Perpetrator’s left eye blinded | Must be exactly the same |
| Right hand severed | Perpetrator’s right hand severed | Must be exactly the same |
| Upper incisor broken | Perpetrator’s upper incisor broken | Must be exactly the same |
However, the scholars in Nizhamul Hukm mention that if qishash for a wound cannot be carried out equally — for example, sawing the perpetrator’s tooth to break it the same as the victim’s tooth — then it is converted to Diyat. This is safer and more just.
The Prophet ﷺ said about proportionality in retribution:
وَإِنْ عَاقَبْتُمْ فَعَاقِبُوا بِمِثْلِ مَا عُوقِبْتُمْ بِهِ
“And if you punish, then punish with the equivalent of what you were afflicted with.” (QS. An-Nahl [16]: 126)
9. Comparison of Islamic Jinayat with Western Legal Systems
Now let us look at an honest and objective comparison between Islamic Jinayat and modern Western criminal law — particularly regarding victim protection.
Table 9: Comprehensive Comparison of Islamic Jinayat vs Western Law
| Aspect | Islamic Jinayat | Modern Western Law |
|---|---|---|
| Decision Maker | Victim’s family | State (prosecutor) |
| Restorative Justice | ✅ Diyat + Forgiveness + Qishash | ❌ Limited to mediation |
| Victim Compensation | ✅ Diyat automatically from sharia | ❌ Must file separate civil lawsuit |
| Process Cost | ✅ Free (borne by Baitul Mal) | ❌ Very expensive (lawyers, courts) |
| Speed | ✅ Relatively fast — simple process | ❌ Can take years (appeals, cassation) |
| Opportunity for Repentance | ✅ Forgiveness + Diyat + Qishash erases Hereafter sins | ❌ Limited to sentence reduction |
| Standard of Proof | ✅ 2 witnesses / Qasamah / Confession | ✅ “Beyond reasonable doubt” (can be subjective) |
| Treatment of Perpetrator | ✅ Dignity is still respected | ❌ Often dehumanized (prisoner number) |
Advantages of Jinayat Unmatched by Any Other System
| Advantage | Description |
|---|---|
| Justice That Embraces Both Parties | Victim gets justice, perpetrator gets opportunity for repentance |
| High Flexibility | Three options: Qishash, Diyat, or Forgiveness — according to context |
| Humane and Dignified | The perpetrator is still called “brother” in the verse of forgiveness |
| Cost Effective | No expensive lawyer fees, no long-term imprisonment burdening the state |
| Spiritual Dimension | Worldly punishment becomes kafarat (expiation) of Hereafter sins |
10. Exemplary Stories from Islamic History
Story 1: Ali ibn Abi Talib and His Armor — The Khalifah Who Lost in Court
Background:
During the caliphate of Ali ibn Abi Talib radhiyallahu ‘anhu, a very rare event occurred: a Khalifah — the highest authority in the Islamic state — lost in court against an ordinary citizen.
Timeline:
Ali radhiyallahu ‘anhu lost his very valuable armor (war shield). Some time later, he saw the armor in the possession of a Jewish man. Ali brought the case to the court of Qadhi Syuraih — a Muslim judge appointed to settle disputes.
Before Qadhi Syuraih, Ali said: “This is my armor. I never sold it and never gave it to anyone.”
Qadhi Syuraih asked the Jew: “What do you say?”
The Jew replied: “It is mine, and it is in my possession.”
Qadhi Syuraih then said to Ali: “O Amirul Mukminin, do you have evidence?”
Ali replied: “Yes, I have evidence.”
Qadhi Syuraih: “Present your evidence.”
Ali said: “Hasan (my son) testifies for me, and Qanbar (my servant) also testifies.”
But Qadhi Syuraih — with extraordinary courage — said: “O Amirul Mukminin, a child’s testimony for his father is not accepted. And Qanbar is your servant who has an interest in the matter.”
Ali lost in court. The armor remained with the Jew.
The Surprising Result:
The Jew was so shocked and amazed. He said: “The Amirul Mukminin brought me to court, and the court ruled against him! I testify that there is no god but Allah, and that Muhammad is the Messenger of Allah. This armor is yours, O Amirul Mukminin — I took it unlawfully.”
Ali smiled and said: “If you have embraced Islam, then I give you this armor as a gift.”
Lessons:
- In Islam, no one is above the law — not the Khalifah, not a general, not a scholar
- Islamic justice applies to everyone — Muslim and non-Muslim, rich and poor
- Islamic justice attracts hearts to Islam without compulsion
Story 2: Umar ibn Abdul Aziz and Qishash for an Official
Background:
Umar ibn Abdul Aziz — the Khalifah known as the most just after the Rightly Guided Caliphs — faced a case in which a state official killed an ordinary citizen. The palace dignitaries came pleading: “O Amirul Mukminin, forgive that official. He is an important person.”
Umar’s Legendary Response:
Umar stood and said with a firm voice:
“By Allah, if the perpetrator were my own son, I would execute qishash on him. No one is above the law of Allah ﷻ.”
Qishash was carried out. The official was punished equally for his crime — without favoritism.
Lessons:
- In Islam, position is not a shield from justice
- Qishash knows no double standards — officials and commoners are equal before the law
- A just Khalifah is one who enforces the law upon himself first
Story 3: The Woman Who Forgave Her Son’s Killer
Background:
A true story from a Muslim land. A mother lost her son — killed by someone in a fight. The perpetrator was caught, tried, and sentenced to qishash.
The day of execution arrived. The victim’s family came to the execution site. The mother — who had the greatest right to demand qishash — stood before the bound perpetrator.
People thought she would ask for the execution to be carried out.
But the mother said with flowing tears:
“I forgive my son’s killer. Because Allah ﷻ commands us to forgive. And I hope Allah will return my son to me in Jannah in a better state.”
The perpetrator wept uncontrollably. He never expected to be forgiven by the one who had the greatest right not to forgive him.
Lessons:
- Forgiving in Islam is not weakness — it is the highest spiritual strength
- The victim’s family who forgives will receive direct reward from Allah ﷻ
- Forgiveness can change the perpetrator’s heart more effectively than any punishment
11. Conclusion: Jinayat Is a Shield of Civilization
Dear reader, let us summarize the 10 key points we have learned:
| No | Key Point | Summary |
|---|---|---|
| 1 | Jinayat = Physical Protection | Deals with attacks against life, limbs, and property |
| 2 | Qishash = Life | Paradox: “there is life in qishash” — justice that prevents mass murder |
| 3 | 4 Types of Killing | Intentional, semi-intentional, unintentional, by cause — each with different punishments |
| 4 | Qishash for Life and Body Parts | Eye for eye, tooth for tooth — proportional and equal |
| 5 | Diyat = Noble Compensation | 1,000 gold dinars (4,250 grams) for killing — borne by ‘Aqilah (extended family) |
| 6 | Victim’s Family Holds Control | Three choices: Qishash, Diyat, or Forgiveness — no other system grants this right |
| 7 | Qasamah = Solution for Witnessless Cases | 50 oaths of the victim’s family substitute for unavailable evidence |
| 8 | Assaults Also Have Qishash | Bruises to loss of limbs — all have their punishments |
| 9 | Jinayat Superior to Western Systems | Faster, fairer, more humane, cheaper, more spiritual |
| 10 | History Proves Islamic Justice | Khalifah loses in court, official subjected to qishash, mother forgives the killer |
The Simple Jinayat Formula:
Jinayat = Qishash (Justice) + Diyat (Compensation) + Al-‘Afwu (Forgiveness)
Jinayat teaches us that Islam is the religion that values human life the most. It does not let blood be spilled in vain. It does not let the victim’s family cry without justice. It does not let the perpetrator despair of the mercy of Allah ﷻ.
With this system, the Islamic Khilafah ensures that justice is upheld without forgetting humanity — and that is why for centuries, Islamic lands were where human life was most respected in the entire world.
Closing Prayer
“O Allah, make Your qishash justice for Your servants. And make us among those who can forgive when they have the right to retaliate. Restore the glory of the Islamic legal system under the shade of the Khilafah that enforces Your sharia. Ameen.”
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