The Islamic Criminal Justice System Explained

INTRODUCTION
 Islamic law refers to the diverse legal systems that
have been and continue to be produced with the
objective of being in accord with the Islamic faith. It
is also known as sharia law, the word sharia means
the clear, well-trodden path to water in Arabic.
 Only about a dozen of the world's forty-four
Muslim-majority countries formally practice Islamic
criminal law. In most of those countries that
practice began only recently as part of state
"Islamization" programs undertaken over the past
thirty to forty years; but criminal law has been a
central aspect of those programs.
 The manner of Islamic laws application in modern
times has been a subject of dispute
between Muslim fundamentalists and modernists.
 Most of the countries which follows sharia law uses
Inquisitorial legal system.

 An insane person till he becomes sane.
 A child till he grows to the age of puberty.
 A sleeping person till he awakes.
THE ISLAMIC CRIMINAL JUSTICE
SYSTEM IS IMPORTANT FOR A
NUMBER OF REASONS
• Similarly to the conventional system, a crime is
a public wrong and there by brings laws relating
there to the realm of public. Islamic criminal law
is therefore central to the entire Islamic legal
system
• Religious-political parties in a number of
Muslim countries have tingly been advocating
for the application of Islamic CJS within their
respective jurisdiction.
• The use of the law has wider implication, this is
particularly so when one considers the
compatibility of this law with international
human rights treaties, to which the Muslim
countries are party.

The initial core of Islamic law:
‘THE QURAN AND THE HADITH’.
The Quran directly provides for certain punishments
such as murder and bodily injured (qisas) theft,
fornication, robbery and defamation (Hudud). It also
provide for the prohibition of drinking alcohol.
SOURCE OF ISLAMIC LAW
However, details of these offences and punishments for other capital
offences such as adultery and drinking alcohol are provided by the
‘HADITH’ as a second primary source.
The ‘QURAN’ has prohibited and provided punishments for the theft
and it is the ‘HADITH’ which provided the condition under which the
punishments is to be carried out.

Islam allow the use of secondary sources as they
provide means of ensuring dynamism of the law since
the primary are finite.
In the area of discretionary punishments for instance,
the offence could be an act criminalized through the
consensus of jurist rather than any of the primary
sources
The other source to be
considered as
secondary ones. These
include the consensus
of opinion of Muslim
jurist( Ijma) ,
analogical deduction
‘QIYAS’ independent
reasoning ‘IJTIHAD’
and others.

ISLAMIC SCHOOLS OF LAW
SUNNI MADHHABS Emerged in the 9th and 10th centuries
HANAFI - South and Central Asia
MALIKI - North and West Africa
- North and Central Arabia
- Lower Egypt , East Africa
& South East Asia
SHAFI ‘I
HANBALI

TWELVER
SHIA MADHHABS
ZAIDI
ISMAILI
IBADI MADHHABS
Predominant in Oman
-Iran, Iraq, Azerbaijan
-Yemen
-Afghanistan

LEGAL SYSTEMS BASED
ON ISLAMIC LAW
1. MIXED LEGAL SYSTEM : Sharia rules are
allowed to influence some national laws, which
are codified and may be based on European or
Indian models, and the central legislative role
is played by politicians and modern jurists
rather than the ulema (traditional Islamic
scholars).
2. CLASSICAL SHARIA SYSTEM : In this
system, national law is largely uncodified and
formally equated with Sharia, with ulema
playing a decisive role in its interpretation. This
is practiced in Saudi Arabia and some other
gulf countries.
Iran has adopted some features of classical Sharia
systems, while also maintaining characteristics of
mixed systems, like codified laws and a parliament.

Sharia plays no role in the judicial system.
Sharia influences personal status (family) laws.
Sharia influences personal status and criminal laws.
Regional variations in the application of sharia.
APPLICATION OF SHARIA LAW BY COUNTRIES

CONSTITUTIONAL LAW
 Constitutions of many Muslim-majority countries refer to
Sharia as a source or the main source of law .
The same constitutions usually also refer to universal
principles such as democracy and human rights, leaving it
up to legislators and the judiciary to work out how these
norms are to be reconciled in practice.
Bahrain, Iran, Pakistan, and Saudi Arabia are such countries.
.
FAMILY LAW
Except for secular systems, Muslim-majority countries
possess Sharia-based laws dealing with family matters
(marriage, inheritance, etc.).
In some countries (e.g., parts of Nigeria and Greece),
people can choose whether to pursue a case in a Sharia or
secular court .
In Muslim minority countries like India, the Muslim
Personal Law (Shariat) Application Act provides for the use
of Islamic law for Muslims in several areas, mainly related
to family law.

CRIMINAL LAW
.
Countries in the Muslim world generally have criminal
codes influenced by French law or common law, and in
some cases a combination of Western legal traditions.
Saudi Arabia has never adopted a criminal code and Saudi
judges still follow traditional Hanbali jurisprudence.
In the course of Islamization campaigns, several countries
(Libya, Pakistan, Iran, Sudan, Mauritania, and Yemen)
inserted Islamic criminal laws into their penal codes, which
were otherwise based on Western models.
In some countries only hudud penalties were added, while
others also enacted provisions for qisas (law of retaliation)
and diya (monetary compensation).
Iran subsequently issued a new "Islamic Penal Code".

OBJECTIVES OF ISLAMIC CRIMINAL LAW
1. Protection of Faith or religion (din)
2. Protection of Life (nafs)
3. Protection of Lineage (nasl)
4. Protection of Intellect (‘aql)
5. Protection of Property (mal)
Firstly, the main objective of Islamic rulings is mainly to protect
the following five elements from any harms
Second, Shariah aims to establish justice between Muslims and the
rest of humanity. Indeed justice is the true essence of Islamic teachings
which has been repeatedly mentioned in Quran. With justice on earth,
people will live in peace and harmony.

Shariah teaches that all human beings are equal
and that nobody is superior above the other.
Third, the Shariah aims to provide benefits for
humans and removing hardships from them.
Protection of basic rights, brings benefits and
violating them will cause hardships in society.

CRIMINAL RESPONSIBILITY
According to the Islamic law there are certain
exceptions for criminal liability which are as
follows :
 An insane person till he becomes
sane.
 A child till he grows to the age of
puberty.
 An intoxicated person.
 Other conditions (coercion,
necessity, mistake , performance of
right or duty, or self defense)

CRIME AND PUNISHMENT
THREE TYPES OF SIN according to Islamic law are as
follows:-
1. Shirk : Associating someone or something with Allah
2. Zalim : Crimes such as murder ,theft ,suicide and illegal
sexual relations.
3.Third type covers lying, cursing, envy etc.
The punishments are exercised to Protect and Strengthen the society.
Penalties are known as ‘HUDU’

1. Al- Huddud
Features:
-Punishments cant be lightened or made
heavier
-Cant be pardoned by any judge(Qazi)
-Ultimate goal is to restore justice and
spread deterrence.
Types of Huddud offences:
(a) Punishment of Zina (adultery, fornication etc.)
Stoning to death
(b) Qazf ( False accusation of adultery)
For free person, punishment is 80 stripes.
For slaves, 40 stripes
The punishment has been prescribed by God in
the Quran and Hadith. Crimes for which the
Quran names certain fixed punishments are
called Huddud offences.

(c) Shurb (Drinking alcohol)
100 stripes
(d) Hirabah ( Armed robbery)
Subjective f the case.
(e) Sariqa (Theft)
Amputation of right arm
(f) Apostasy(Converting from Islam)
For men, Death penalty & for women, physical
punishment.
2. Qisas
“The life for life, eye for the eye, the nose for the
nose, the ear for the ear and tooth for the tooth for
wounds relation(2:179)”
It is the law of equality. It means punishment by
causing similar hurt at the same part of the body
of the convict as he has caused to the victim or
by causing death. It is basically retaliation.

EXCEPTION OF QISAS
 Death of the offender
 Waiver by wali
 Right of qisas dissolves on offender as a result of
the death of wali of the victim.
 Right of qisas dissolves on the person who has
no right of qisas against the offender.( Son cannot
enforce qisas against father)
3. Tazir
TYPES OF TAZIR
a. Flogging & Death
b. Fines and destruction of tools that are necessary
to do the forbidden.
Discretionary punishment for which no specific
punishment is stated in Islam. It is left to the sharia
ruler. It may be inflicted by imprisonment, fine etc.

c. Lashes and double fine
d. Imprisonment and exile
e. Public rebuke.
f. It is forbidden to take life except by legal
means.
g. Adultery or fornication: Both men and
woman are found guilty.
h. Homosexuality is a crime
under Islamic law and
both involved will be
found guilty.

DIYA
In classical Islamic jurisprudence monetary
compensation for bodily harm (diya or blood money) is
assessed differently for different classes of victims. For
example, for Muslim women the amount was half that
assessed for a Muslim man. Diya for the death of a free
Muslim man is twice as Non- Muslim victims.
Modern countries which
incorporate classical diya rules
into their legal system treat them
in different ways. For example in
Pakistan Penal Code modernized
the law by eliminating
distinctions between Muslims and
non-Muslims.

CRIMINAL PROCEDURE
PROCEDURAL PRINCIPLES:
 Respect for individual is the central
precept of Islam.
 All free men are equal before the law
and are entitled equally to its protection
(except non-Muslims & women).
 Law is not applied retroactively.
 The accused is presumed innocent until
proven guilty.

FAMILY LAW
In traditional Islamic family law husbands
have the right of POLYGAMY and may be
validly married at the same time to the
maximum of four wives.
Upon marriage, a husband is obliged to
pay his wife a dower , the amount of which
may be fixed by agreement or by custom.
Patriarchal outlook is the basis of the traditional Islamic law of family
relationships .Fathers have the right to contract their daughters , whether
minor or adult in marriage.
In Hanafi and Shi’i law, an adult woman may conclude her own marriage
contract , but her guardian may have the marriage annulled if his ward
has married beneath her social status.

KHUL
A wife who rejects her husband’s domination by leaving
the family home without just cause forfeits her right to
maintenance.
Khul – the divorce by the mutual
agreement of the spouses.
It requires the payment of some
financial consideration by the wife to
the husband for her
release(Commonly return of the
dower).
A wife may obtain a judicial decree of divorce on the
grounds of some matrimonial offence committed by
the husband – cruelty , desertion or failure to
provide.(except in Hanafi school)

Husband alone has the power to terminate a
marriage.
It is an extrajudicial process . A husband may
repudiate his at will , and his motive for
doing so is not subject to scrutiny by the
court or any other official body . A
repudiation repeated three times constitutes
a final and irrevocable dissolution of the
marriage.
TALAQ
The legal position of children within family depends on the legitimacy.
For a legal relationship to exist between a father and his illegitimate
child , the father must publicly claim the child as his own.
TALAQ

HADANAH
Guardianship of the child and
the property of the minor
child belongs to the father or
another close male agnate
relative.
The right of the custody
(hadanah) of young children
whose parents are divorced
or separated belongs to the
mother or another female
maternal relative.

A legal capacity to transact belongs to any
person “of prudent judgment” (rāshid), a quality
that is normally deemed to accompany physical
maturity or puberty.
Persons who are not rāshid, on account of
minority or mental deficiency, are placed under
interdiction: their affairs are managed by a
guardian, and they cannot transact effectively
without the guardian’s consent.

The doctrine of ribā significantly influences the
Islamic law of transactions. Basically, this is the
prohibition of usury, but the notion of ribā was
rigorously extended to cover, and therefore
preclude, any form of interest on a capital loan or
investment. And since this doctrine was coupled
with the general prohibition on gambling
transactions
RIBA is a concept in Islam
that refers broadly to the
concept of
growth, increasing, or
exceeding, which in turn
forbids interest credited
from loans or deposits.

Muslim law recognises two types of heirs,
firstly, SHARERS, the ones who are entitled to certain share in the
deceased’s property .
Sharers are 12 in number and are as follows: Husband, Wife,
Daughter, Daughter of a son (or son's son or son's son and so on),
Father, Paternal Grandfather, Mother, Grandmother on the male line,
Full sister ,Consanguine sister Uterine sister, and Uterine brother.
Succession is known as mirath or irth or
faraid. The faraid denotes the fixed shares
of inheritance allocated to the various
relatives (legal heirs) by the Qur’an and
Sunnah.

• SLAVERY
• HOMICIDE (qatl) - the killer be debarred from
inheritance since, if he did inherit, killing would
accelerate inheritance and lead to universal
chaos.
And secondly,
RESIDUARIES, the ones who would take up the
share in the property that is left over after the sharers
have taken their part.
IMPEDIMENTS TO INHERITANCE

EVIDENTIAL LAW OF CRIME (PROOF)
1. SHAHADA
Shahada is the general rule of testimony and is the testimony of the two
male witness or one male and two female witness.
Jurists have generally agreed that the provision on testimony was revealed
by way of instruction rather than binding legal precept.
The testimony of women is not admissible in HUDAD offences and
especially that the view is inconsistent with some verse of the QURAN.

THE EVIDENTIAL REQUIREMENT IN CIVIL AND CRIMINAL
MATTERS MIGHT DIFFER:
For instance, while incomplete evidence (e.g. testimony of
only one witness), is made good by taking an oath in civil
matters, this is not the case in criminal matter.
When a plaintiff fails to produce witnesses in support of
his/her claim or witnesses are rejected lawfully and the
defendant does not make admission then he/she is asked
by the court to take Oath.
OATH (Yameen)
A JUDGE’S PERSONAL KNOWLEDGE is irrelevant
although under Hanafi, Shafi’i and Shiite Schools it may
be sufficient proof in other matters.

(c) Offences where there exists an exception to
this general rule is the offence of zina. This
requires the testimony of four (male) reliable
witnesses who must have seen, at the same
time, the actual act of sexual intercourse taking
place. The requirement of zina was so hard to
satisfy that no case was established by means of
witnesses throughout the lifetime of the
Prophet.
2. CONFESSION (IQRAR)
Iqrar is the admission or
declaration of a person
that he/ she have done
something against
another persons right.

CONDITIONS FOR A VALID IQRAR
Conditions of person making confession
Conditions regarding matter of confession
Conditions of person in whose favour the
confession is made
Conditions of the terms of mutual agreement
 VOLUNTARY
 DETAILED description of the event
 Must be made FOUR times
Confession must be :

Muslim jurist hold different views with regard to alqariinah’s admissibility in
Huduud & Qisaas .
For instance, according to Hanifa and Shafi’i, the smell of wine from one’s
mouth is not sufficient proof to apply the punishment for drinking alcohol.
They argue that the smell could be of something else which resembles wine.
3. CIRCUMSTANCIAL EVIDENCE
Circumstantial evidences (Alqariinah) refers to
circumstances surrounding an event from which an
inference can be drawn for existence or non
existence of the issue under investigation.

Majority of jurists do not consider pregnancy or
childbirth of an unmarried woman as proof of
zina.
If she pleads that she was a victim of rape, she
must support her plea by producing circumstantial
evidence such as screaming for help.
If she was impregnated during her sleep and it
was unknown to her, or that pregnancy resulted
from penetration without permission are accepted
without new evidence.
But the Maliki and Hanbali Schools accept the
testimony of two witnesses to the effect that
the accused person reeks of alcohol as proof of
alcohol consumption.
Example:

ISLAMIC RELIGIOUS POLICE
 It is an official vice squad which enforces religious observance
and public morality on behalf of national or regional authorities based
on its interpretation of sharia.
 Mutawa is the name used for individual religious police.
Their practice is generally justified with reference to the DOCTRINE
OF HISBA.
There powers and responsibilities varies from country to country.
Common responsibilities include enforcing Islamic dress code and prayer
attendance, as well as preventing consumption of alcohol and public
display of affection.
INSTITUTIONS FOR ENFORCING ISLAMIC LAW

A mufti is an Islamic jurist qualified to issue a
nonbinding opinion (fatwa) on a point of Islamic
law (sharia).The act of issuing fatwas is
called ifta.
A fatwa is a nonbinding legal opinion on a
point of Islamic law (sharia) given by a qualified
jurist in response to a question posed by a
private individual, judge or government.
In the modern Muslim world , muftis generally
no longer play their traditional role of clarifying
and elaborating the laws applied in courts.
Some modern muftis are appointed by the
state to issue fatwas, while others serve on
advisory religious councils.
MUFTI

ULAMA
 Ulama were a body of Muslim scholars who
are recognized as having specialist knowledge
of Islamic sacred law and theology.
In modern era the Ulama were appointed
into various offices within
the sharia institutions, and assigned
specific roles that include participation in the
appointment of Sharia courts judges, review
of Sharia courts' judgments, and rendering
religious advice to the state governments.
Madrasas were institutions of higher learning
devoted principally to study of law, also
offering other subjects such as theology,
medicine, and mathematics.
MADRASA

ISLAMIC COURTS
A judge (qadi) was in charge of the qadi's court (mahkama), also called
the Sharia court.
The role of qadis was to evaluate the evidence, establish the facts of the
case, and issue a verdict based on the applicable rulings of Islamic
jurisprudence.
The qadi was supposed to solicit a fatwa from a mufti if it was unclear
how the law should be applied to the case. Islamic legal theory does not
recognize the distinction between private and public law, court
procedures were identical for civil and criminal cases, and required a
private plaintiff to produce evidence against the defendant.
SHARIA COURT

The main type of evidence was oral witness
testimony. The standards of evidence for
criminal cases were so strict that a conviction
was often difficult to obtain even for apparently
clear-cut cases.
MAZALIM COURT
If an accusation did not result in a verdict in a
qadi's court, the plaintiff could often pursue it in
another type of court called the mazalim court/
SULTAN'S COURTS ,administered by the ruler's
council.
This court address the wrongs that Sharia
courts were unable to address, including
complaints against government officials.
Mazalim verdicts were supposed to conform to
the spirit of Sharia, but they were not bound by
the letter of the law or the procedural
restrictions of qadi's courts.

SHURTA COURT
The police (shurta), which took initiative in
preventing and investigating crime, operated
its own courts.
Police courts were not bound by the rules of
Sharia and had the powers to inflict
discretionary punishments.
Another office for maintaining public order
was the muhtasib (market inspector), who was
charged with preventing fraud in economic
transactions and violations against public
morality. This officer meted out punishments
based on local custom .
And was free to make decisions entirely on the
basis of consideration of EQUITY.

Sharia courts traditionally do not rely on lawyers; plaintiffs
and defendants represent themselves.
Trials are conducted solely by the judge, and there is no jury system
There is no pre-trial discovery process, and no cross-examination of
witnesses. Judicial precedence is not practiced.
The rules of evidence in Sharia courts traditionally prioritize oral
testimony, and witnesses must be Muslim.
Male Muslim witnesses are deemed more reliable than female
Muslim witnesses, and non-Muslim witnesses considered
unreliable and receive no priority in a Sharia court. In civil
cases in some countries
COURT PROCEDURE

 Respect for individual is the central
precept of Islam.
 All free men are equal before the law
and are entitled equally to its protection
(except non-Muslims & women).
 Law is not applied retroactively.
 The accused is presumed innocent until
proven guilty.
CRIMINAL PROCEDURAL PRINCIPLES

PRISONS IN ISLAMIC LAW
In Islamic law very few crimes are only
punished by imprisonment. In the
Islamic prison system prisoners were
divided into different groups, each
group has it own system of treatment
that fits its nature as follows:
1. DIVISION BASED ON THE NATURE OF THE CRIME.
 Prisons house a large number of individuals with their different
crimes and regardless of the reasons that led them to it.

 These crimes differ in their danger and its harm
to society so there are:
1-those refusing to pay their debts, and other
normal crimes.
2-the once that are professional thieves.
3- the political prisoners who create
conspiracies to change governments ruling
systems.
 This division is to separate the first time
offenders from the professional criminal.
2. DIVISION BASED ON THE CRIMINAL HIMSELF.
This division takes in consideration the sex
and age where it is divided in three:
1- MEN
2-WOMEN
3- MINORS

Prisons should have the basic facilities ,
bathroom, food hall , prayer area, and teaching
area. This is for the prisoners to enjoy there basic
essential needs, as a person is a place of
punishment but also to shape the manors of the
prisoners and re habitats them.

LIMITATIONS OF ISLAMIC
LAW
1. 1. PLURAL LEGAL SYSTEM : Muslim countries
which apply Islamic criminal law have either
plural legal system , due to the legacy of colonial
rule , or a modern states among a comity of
nations with international obligations or both. In
such situation practical trial problems may be
inevitable.
2. LACK OF DEMOCRACY : Islamic law is
incompatible with the fundamental principles of
democracy. Democracy advocates restricting
religion to private life this is not followed in
countries with Islamic law. Advocating traditional
Islamic institutions, such as shura (consultation)
and ijma (consensus).

APOSTASY
3. Violating Human Rights : Islamic law is contrary
to the UNs’ Universal Declaration of Human
Rights. As a response to this criticism countries
following sharia law together in a conference made
the Cairo Declaration on Human Rights in Islam.
But there was notable absence of provisions for
democratic principles, protection for religious
freedom , freedom of association and freedom of
the press, as well as equality in rights and equal
protection under the law.
is the act of abandoning of Islam
by a Muslim. In some Muslim majority countries
punishment for apostasy is death or other
penal/civil penalties. This laws are against the
freedom of thought of a person.
BLASPHEMY is the act contempt to god.
Islamic law prescribe punishment for
blasphemy , which may be fine, imprisonment,
hanging and beheading.

HARSH PUNISHMENTS
: Islamic law does not equate
Muslims with non- Muslims .The testimony of a
non- Muslim is not admissible against a
Muslim.
: Punishments such
as stoning to death and amputation of the arms
which it prescribes for adultery and theft
respectively is not compatible with liberal human
rights.
INEQUALITY
WOMEN’S RIGHTS
The testimony capacity of two females equal one
male in legal proceedings based on sharia law.
 Even though women have property rights but
inheritance is unequal and less than a man’s.
 Certain form of domestic violence against
women by husband is not prohibited by sharia
law.

4.PROHIBITING INTREST IN BANKING
LGBT RIGHTS VIOLATION : Homosexual
intercourse is illegal according to sharia with
different penalties, including capital
punishments stipulated depending of the
situation and legal school.
: Islamic
law prohibits riba (interest) transactions and
prescribes punishments for it considering it a
Sharia crime.
5. REFORMATION OF THE OFFENDER : Islamic
law has given much attention to the punishment
of the offender rather than reformation and
correction.
If Islamic Justice system tries to
overcome these drawbacks and reform itself then it
effectiveness and acceptance will rise in this world.

REFERENCE
1. An Introduction to Islamic Criminal Justice –
Mamman Lawan, Dr. Ibrahim N. Sada,
Shaheen Sardar Ali
2. Sharia -http://en.m.wikipedia.org
3. Islamic Criminal Law : The Divine Criminal
Justice System between Lacuna and Possible
Routes – Mohamed A. Arafa
4. The Higher Objectives of Islamic Law –
http://www.dar-alifta.org
5. Prisons in Islamic Sharia law-
http:// www.linkedin.com

THANK YOU
SUBMITTED BY : Devesh Khunte,
Sourav M,
J. Greeshma Reddy,
Pooja C. U. &
Anjana S Kumar
COURSE : M.A./M.Sc. in Applied Criminology & Police Studies.
SEMESTER : 1
PAPER : Criminal Justice System
SUBMITTED TO: Dr. Swikar Lama,
Assistant Professor of Criminology.

The Islamic Criminal Justice System Explained

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