2

The hadd crimes mostly come with specific requirements for the burden of proof that needs to be met to deal out the hadd punishment. It's clear what happens when the burden of proof is met, the punishment is enacted as specified. However, if the burden of proof is not met, there are a few options what could happen with regard to criminal law, and I don't know which applies. It's possible that the accused walks free; or it could be that the qadi can give him a tazir punishment instead; or it could be that there is a scale of punishments for meeting "X %" of the burden of proof (I'm not aware of anything like this last idea being found in fiqh, though).

I'm only talking about criminal law here, not about whatever civil liabilities the accused may have. I could imagine that in terms of criminal law he walks free perhaps due to lacking evidence, while being sentenced to pay the victim a sum of money as compensation in civil law because the burden of proof for a tort may be "balance of probabilities", similar to how it is in common/civil law jurisdictions.

Question: What happens in criminal law if the burden of proof for a hadd punishment is not met?

1

If the burden of proof is not met or there's a doubt (even in case of an adulterer who in first place admitted his crime, but then retracted his statement or in case of a drunk when the only evidence is the odour of alcohol) then the accused Person must be released.

Let's take a detailed example:

In case of Theft

The qadi still has the option of ta'azir if one of the following conditions is not met:

  • The thief must be mature, and not ill minded, and not in need.
  • The stolen goods must be of a respectable kind (not music instruments, or bottles of alcohol for example)
  • The stolen goods must reach a certain amount (at least 1/4 Dinar of gold ~ 1 gramm for example)
  • The stolen good must be taken in a concealed or hidden manner, as if it was taken by force or by trickery etc. ta'azir may apply.
  • The stolen good must be taken from treasure a safe or similar -a place where money is usually kept- (at home, the workplace etc.)
  • Any doubt should be excluded, for example a person who is in need (famine), father or mother taking from the son or daughter and vice versa or from a person one is in charge of.

Beside the conditions to apply hadd:

  • The thief admits having stolen.
  • Two -trustworthy- male witnesses witnessed him having stolen.

Ta'azir would mainly apply in the following cases:

  • both parents and kids as there's an uncertainty whether one must/should be in charge of the other or share with him/her.
  • spouses for the same reason as above.
  • a slave from his owner and the owner from his slave because he might be in charge or has a right to get a share.
  • if somebody stole from the treasury (bayt al-Mal) due to the uncertainty that he might have a share in it.
  • a poor who stole from something offered for certain poor people as he might have his share in it.
  • if somebody stole from a good he has a share in (in case of a company for example)

Note that if one steels for example some fruits there are three cases, a person in need may do so without any implication, a person who has taken it without a need may either have to restore it by paying the price or something equivalent or by ta'azir, a person who has stolen from a place this fruits where hidden (similar to a safe) would expect a had punishment.

Note that a possible thief might be released in cases such as if there was a difference (such as if one is pretending the other is lying)

  • between the statement of the thief and that of the person stolen from.
  • between the statements of the person who was stolen from and the witnesses.
  • and if the thief contradicts his earlier declaration in this case the punishment wouldn't be applied.

Source Mawsu'at al-Fiqh (The encyclopedia of fiqh) page 234-241

  • 1
    While there's a lot of detail, I'm not sure what to make of this answer; it starts with "If the burden of proof is not met or there's a doubt [..] then the accused Person must be released", but then the rest is about tazir being available still. Does this mean tazir is always an option for the judge when the hadd cannot be dealt out due to burden of proof issues? Or is that only in specific circumstances, some of which you tried to give as examples? If I understood the example, tazir would mainly be available if the thief may have had a reasonable assumption that what he took was his? – G. Bach Jun 27 '18 at 19:17
  • @G.Bach the example of theft was the major example were ta'azir may be an option. As for adultery there's no other option other than either punishment, repentance or release as far as I understood. – Medi1Saif Jun 27 '18 at 19:35
  • Hm, so whether it can be mitigated to tazir in case of lacking evidence depends on which hadd it is? That's interesting, I would have expected there to be a general ruling that covers all hudud. Could you let me know whether I've understood the theft example correctly, that tazir is only available if the burden of proof for the hadd is met, but the thief might have had a reasonable understanding that he took something that belonged to him? – G. Bach Jun 28 '18 at 11:47
  • @G.Bach maybe I will need to check other sources to confirm or adjust this. My impression from this source is that taking a life needs all conditions to be met and if there's not enough burden of proof a person is free. In other cases the judge may have an option for ta'azir. The term "uncertainty" might be a too literal translation of mine: uncertainty or doubt may apply under certain condition for example the doubt that somebody may pay taxes or might be in need or the one who was stolen is usually in charge of the thief. In general I'd say your understanding goes mainly along with mine. – Medi1Saif Jun 28 '18 at 14:21
  • I gave you an upvote because those are interesting facts, but I'm not sure your answer resolved my question so for now I'll leave it open. – G. Bach Jun 28 '18 at 22:14

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.