Religion against Religion - Its Fatal Impact On Human Life

By Hasan Mahmud, New Age Islam 27 November 2024 How would you feel about death penalty in one court and acquittal in another court in the same case? There are many such cases in the Madhabs of Sharia law . A peaceful academic discussion is needed on this issue. Lest we forget, peaceful conflict of different opinions is the driving force of social progress. The Hanafi book in this article is 'Hedaya' translated by Charles Hamilton, 'The Penal Law' of Islam’ by Mohammad Iqbal Siddiqui, 'Sharia the Islamic Law' by Dr. Abdur Rahman Doi, 'Principles of Islamic Jurisprudence' by 'Dr. Hashim Kamali, 'Shafi law’ is the Shafi Kitab 'Umdat Al Salik' authenticated by Al Azhar University, 'C-I-L' is 3 volume ‘Codified Islamic Law’ in Bangla compiled by a committee of six Islamic scholars including Shah Abdul Hannan, a respected Islamic scholar of Bangladesh published by Islamic Foundation Bangladesh, Shia Sharia Kitab 'Islamic Laws’ is by Ayatollah Sistani. The subject can be divided into three parts:- (A) death sentence in one Madhab and acquittal in another Madhab in the same case, (B) there is an eyewitness, but the testimony is invalid, so the offender may not be punished, (C) Different rulings in different Madhhabs in the same case. ----- (A) death sentence in one Madhab and acquittal in another Madhab in the same case:- 1. Imprisonment of female apostates until they repent - In Hanafi Law – Penal Law of Islam p. 111 but death penalty in Shafi’i Law #o.8.2, 2. In cases of adultery Maliki law punishes pregnant virgins with flogging and widows with death but Hanafi law acquits both, because - quote - "Pregnancy is not sufficient proof of adultery" - Penal Law of Islam page. 71& C-I-L Volume 1 p. 299, 3. Treason is punishable by death in Hanbali, Shafi' and Maliki law but life imprisonment in Hanafi law - Dr. Kamali, p. 30, 4. Adultery of a married non-Muslim in an Islamic state is punishable by death in Shafi, Maliki and Hanbali law, but 100 lashes in Hanafi law – C-I-L Vol 3 p. 370, 5. If a citizen of an Islamic state commits a crime in a contracted non-Muslim state and returns, he will not be sued under Hanafi law because Sharia is not applied in that country. But he will be judged according to Maliki, Shafi'i and Hanbali law - C-I-L Vol 3 p. 366. That is, in the case of murder he will be sentenced to death under Maliki Shafi'i and Hanbali law, and he will go free under Hanafi law. ------- (B) There is an eyewitness, but the testimony is invalid, so the offender may not be punished, It is very surprising. All crimes including murder-injury-theft-robbery-adultery-rape will happen in front of witness, but the testimony is rejected based on his/her personal character, profession other aspects in so many cases that it is impossible to punish the criminal. Example – in Hanafi law the witness is rejected if s/he is involved with interest in bank account. 6. Hedaya pp. 359, 360, 361 363, C-I-L Vol. 1 p. 311 – Testimony is rejected if the witness is blind, slave, not circumcised or professional singer, 7. Testimony of slaves, singers and lowly persons (sweepers or latrines etc.) is invalid - Hedaya p. 361; Shafi'i law o.24.3.3; Penal Law of Islam p. 46; C-I-L Vol 2 p. 263, 8. A criminal can be punished based on a mute (who can’t speak) in Maliki law, but such witness is rejected in Hanafi, Shafi' and Hanbali law. So the criminal will go free - C-I-L Vol 1 p. 311, Vol 2, p. 263, 9. Suppose a person accused someone of adultery and could not prove it in court, s/he was punished with eighty lashes and repented. Then s/he alone witnessed a murder (or other crime). In Maliki and Shafi'i law the criminal will be sentenced to death (or penalty for other crimes)based on eyewitness. But in Hanafi law his testimony is invalid, the murderer (or the criminal in the case of other crimes) will be acquitted - Muslim Jurisprudence and the Qur'anic Law of Crimes - Page 146 - Dr. Mir Waliullah, Ex-Principal, Law college, Lahore university, C-I-L Vol 3 p.825, 10. An adulterer can go free if there is no male witness. Witness of women is rejected in case of adultery - Penal Law of Islam page 44, Hedaya pages 176 & 353, Bengal Quran translated by Muhiuddin Khan p. 239 & 928, 11. In Shafi'i Law, 20 actions in law #o.8.7 and many of the 442 “Grossly Evil” actions in law# w.52.0 turns a Muslim to apostate whose eyewitness is rejected. In addition, the evidence is invalid for a KABIRA (worst) sinner, liar, negligent of FARD (must) worship, and involvement with usuary (financial interest). How a state can run rejecting so many eyewitnesses? ------ (c) Different rulings in different Madhhabs in the same case. 12. Punishment of Treason (Hirabah) is imprisonment in Hanafi Law but exile in other Laws –Dr. Kamali, p. 30, 13. Selling the Quran to non-Muslims is legal in Hanafi law (there is difference of opinion) but illegal in Shafi' Law# k.1.1.e. Ref – Quran chapter Waqiah, Verse 79 - “None shall touch it except the clean. 14. The punishment of fornication of unmarried persons is flogging. If a daughter is born out of that fornication, her marriage with the biological father is invalid in Hanafi law but valid in Shafi' law - Dr. Kamali, p. 29. 15A. If a husband utters divorce in joke, drunkenness or under pressure, it is valid in Hanafi law but invalid in Shafi' law - Shariah the Islamic Law - Dr. Abdur Rahman Doi, p. 174, 15B. If the husband is forced or intimidated to divorce his wife, it is valid in Hanafi law but illegal in Maliki, Shafi'i and Hanbali laws - 'C-I-L' Vol.1 Law # 349. BTW, instant divorce is valid in Hanafi and Shafi law but invalid in Shia Sharia law. 16. Witness of non-Muslims about each other is valid in Hanafi law but not in Shafi' and Maliki law - Hedaya p. 363, 'C-I-L' Vol 2 Law # 576, 17. If the husband suffers from mental illness, Hanafi law doesn’t allow the wife to ask the Sharia court to dissolve the marriage, - but Maliki, Shafi' and Hanbali law do- 'C-I-L' Vol 1 Law# 365, 18. Conflict between Hanafis and Shafis on Ishtihsan is well known - Dr. Kamali p. 339, 19. The Quranic instructions can be specific (Khas) or general (Aam). Khas instructions are mandatory for every Muslim in Hanafi law, but not in Maliki-Shafi-Hanbali law - Dr. Kamali, p. 31, 20. Hanafi Maliki and Hanbali law accept 'Istihsan' (EQUITY) but Imam Shafi, Zuhari and Shia law rejected it strongly with “Serious Objection” - Dr. Kamali p. 324, 343, 21. “Imam Shafi'i disagreed unexpectedly with the views of Imam Malik” - Imam Shafi'i's famous book Risala p. 13. There are more. Another strange law is - "If the matter covered by Hadd is related to the rights of Allah, in that case a person can testify or conceal if he wishes" - 'C-I-L' Vol 2 Law# 575. It is based on Hadis. But the Qur'an commands not to conceal evidence – Bakarah 283:- "Do not conceal evidence, and whoever conceals it, surely his heart is sinful." I’m requesting everyone to think about this because human life is very sacred, human life is not a toy to play with by difference of opinion. ----- Hasan Mahmud is a veteran researcher-author on Political Islam. He is one of the founding members of MRM – “Muslim Reform Movement”; he was in the advisory board of World Muslim Congress, the Director of Sharia Law of Muslim Canadian Congress and few other organizations. He authored thousands of articles, 4 books and 4 docu-movies critical to Sharia law. This article is from a chapter of his book – “How Sharia-Ism Hijacked Islam: The Problem, Prognosis and Prescription”. 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