A FEW weeks ago, a stallholder in Terengganu, Mohamad Zulkifli Ismail, spotted robbers in his house and in a struggle, killed one of them. He faced a murder charge for allegedly stabbing a man to death. Overall, is it self-defense or murder?
Legal experts argue that there is a fine line between self-defense and murder even though the law says a person has a right to defend himself/herself when he/she encounter a criminal and in the process unintentionally kill the attacker.
What's Islam has to say about this issue? During several 'tazkirah' (Islamic lessons) and after the talks at 'masjids' near my house, I managed to ask a few 'ustazs' (religious teachers) including those who practice law at 'syariah' courts regarding the matter.
An 'ustaz' who gave lessons on 'Fiqh Jinayat' at a 'masjid' on a weekly basis, explained that Islamic criminal laws comprises of 'hudud' (hodoud), 'qisas' (quisas) and 'ta'zir'. 'Hudud' is prescribed by Allah SWT in the Qur'an and 'hadith'. 'Hudud' is His Law and His Rights. In Ayah 229 Surah Al-Baqarah Allah SWT says with the meaning: "For whoso transgresseth Allah's limit: such are wrongdoers."
Examples of 'hudud' are punishment to those who committed illicit sex (zina or adultery), accusing people of illicit sex but failed to bring four witness (qazaf), taking alcoholic drinks, stealing, robbing, being apostate and fighting against an Islamic government (bughat).
"Ta' zir' is punishment for crime not measuring up to the strict requirements of 'hadd' (hudud) punishments, although they are of the same nature, or those for which specific punishments have not been fixed by the Qur'an.
Punishments range from the death penalty for espionage and heresy to flagellation, imprisonment, local banishment, and a variety of fines. Determination of punishment is left to the judge or chief executive, who can vary the punishment according to a number of criteria including who has inflicted the crime and upon whom.
'Qisas' means retaliation, in the case of murder, it means it is the right of their heirs of a murder victim to demand execution of the murderer. 'Qisas' literally means "'pursuing, seeking or to return like for like." From this it also acquired the meaning of "retribution, requital and punishment." The basic rules of 'qisas' are mentioned in the Qur'an.
Allah SWT says, "O you who believe, retribution is prescribed for you in the cases of killing; if a freeman is guilty then the freeman; if a slave is guilty then the slave; if a female is guilty then the female. But if something of the murderer's guilt is remitted by his brother then this should be adhered to in fairness, and payment be made in a proper manner. This is alleviation and a mercy from your Lord; and for him who transgresses after that is a painful chastisement. People of understanding, there is life for you in retribution that you may guard yourselves against violating the Law." (al-Baqarah 2:178-179)
'Qisas' is primarily the right of the family of the victim. Allah says, "...whosoever is wrongfully slain, We have given power to his heir, but let him not commit excess in killing. Lo, he will be helped." (al-Isra' 17:33)
Regarding the case of Mohamad Zulkifli Ismail, an 'ustaz' said, parties concerned must first look at the 'kertas pertuduhan' (charges). Unfortunately he was charged with murder which many people criticized saying that he had only been acting in self-defense.
The 'ustaz' said eventhough in Islam, one has the right to defend his safety, his family, his property and most importantly his 'agama' (religion) and 'nyawa' (life) but he must alert to act accordingly to the dangers posed by the intruder. If a person 'crashed' into a man's house without carrying any weapon, it would be wrong for him to pick a knife from the kitchen and stab the stranger. But if he uses a hockey stick to hit the intruder and in the event, the man dies, he would amounted to 'membunuh tanpa sengaja' (killing without intention).
The 'ustaz' cited examples of killing without intention such a person who throws a 'karipap' (curry-puff) to another person's head but unfortunately he dies or a hunter aim and shot his gun at a deer but instead his friend was killed - then the 'killers' are all subjected to 'hukum qisas' with the 'diat' applicable.
In the case of Mohamad Zulkifli, the 'ustaz' said he could be charged with killing without intention (depends on the charge) and he had to proved in court. He could be freed of the charge (if he only defended himself and his life in danger) or he have to pay 'diat' as killing unintentionally falls into category of wrongdoings that needed to do so.
In Islam, if a person is murdered, then according to the Shari'ah, it is the duty of the society and the state to purse the murderer and to bring him/her to justice. Once the murderer is found and it is proven beyond any doubt that the murderer is found and it is proven beyond any doubt that the murderer killed another person knowingly and offensively, as a premeditated murder, then he/she will be given capital punishment.
However, the nearest relatives or heirs of the victim have a right to make monetary compensation instead or to forgive the murderer. No one else has the right to forgive accept the nearest kith and kin of a person.
Since murder, according to the Shari'ah, is not only a crime against a family, but a crime against the society at large, the Muslims jurists have explained that even his the victim's family forgives the murderer, the Muslim judge is allowed to prescribe some punishment (other than the capital punishment) or imprisonment, if the judge sees that the offender needs that for his/her own correction or as a deterrence for others in society.
According to the Shari'ah, no one can forgive the murderer except the victim's family and nearest kith and kin. The state cannot forgive a murderer, but the state is allowed to punish the murderer if it is necessary to maintain the safely and security of the society, even if all the relatives of the victim are ready to forgive the murderer.
The Qur'an specifies the principle of qisas (ie, retaliation), but prescribes that one should seek compensation (diat) and not demand retribution.
What is actually diat? 'Diyya' (plural: diyyat; Arabic) is a compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom. The Qur'an directs us to pay diat just according to this law both in case of intentional as well as unintentional murder. A variation of diat was present in pre-Islamic Arabia, where it was paid in terms of goods or animals rather than cash.
Under Sharia law, diat should be paid in terms of cash to avoid possible fraud on the part of the criminal. In Islamic and Arab tradition, blood money is the fine paid by the killer or his family or clan to the family or the clan of the victim. It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must pay diat to the heirs of the victim except if they forgive him.
The tradition finds repeated endorsement in Islamic tradition; several instances are recorded in the hadith, which are the acts of Prophet Muhammad s.a.w. According to the ustaz, the rate for diat is based on the number of camels that is the most priced belonging. The full rate is 100 camels. Paying diat of 100 camels is no cheap said the ustaz. If a camel costs RM5,000; those who kill unintentionally had to pay RM500,000.
Killing intentionally was subjected to qisas and diat. Diat is only applicable if agreed by kin. If not qisas would be honoured.
Unfortunately and sadly, the 'ustaz' said the Islamic law mentioned are only for discussion, the truth is that Mohammad Zulkifli was charged in the civil courts...Subhanallah, are our leaders prepared to implement Islamic laws, which according to the ustaz are perfect on human beings because He who creates knows what's best for His subjects!
But based on events in our country, there was clear and positive indicator that human beings long for the law of The Most Powerful Allah SWT when they feel helpless just like the call for help to Allah SWT when one is thrown into the open sea when his/her ship capsizes.
But the sad part of it, when he/she is saved; his/her ‘clinging’ to Allah SWT vanishes and when he/she could stand on his/her own with ‘the world at his/her feet’, then Allah fades from his/her mind. But the longing of the practicing Muslims to see Allah's laws shine in this land must be nurtured and the struggle for it to be implemented must go on until we die or the word ends (Qiyamah). - ES