Procedures Taken Prior to Committing of Crime

Crime is committed in two stages, in the first the criminal plans for his crime, and in the second, he executes that what he has arranged for. Therefore, it is logical that to combat crime, it has to be combated before it is committed, and that certain action is to be taken after it takes place. In the former stage, the public plays a simultaneous social and religious part, because they are required to forestall crime. According to Islam, the people are required to exhort one another to Truth and to forbid the wrong. To Muslim jurisprudents, every Muslim is required to defend himself or his property, or any other one's self or property, before any crime is committed. This principle is based on the Islamic rule that man has to do good and avoid sin and on several Prophetic saying among which are "Whoever sees a sin must eliminate it by his own hand" and "Do not do harm either to yourself or to anyone else."  

According to the positive law, self-defence is a right rather than a duty, but to the Islamic Law, it is simultaneously a right and a duty. Though the  man-made law entitles individuals to fight in self-defence or in defending others, they are free either to do this or not. But in the Islamic Law, any individual, as decreed by all the jurists, has the right to repel the harm or offence intended either against him or his property, or against the self or property of others.

All the modern positive laws made self-defence a right and not a duty though some of the jurisprudents are now of the view that it must be a social duty.

A quite few of such legislations were of this view at least as regards the civil law. One of these legislations is the Portugese Civil Law (Clause 2368). In Islam, self-defence is enjoined by the Holy Quran and by Prophetic saying and traditions.

In the Holy Quran God says "And those who, when great wrong afflicts them, defend themselves." ^{[Al-Shura (The Counsel): 39.]} As reported by Abou Daud and Al-Tirmizi, the Prophet Muhammad was quoted as having said that "Whoever dies in defence of his religion is a martyr; and whoever dies in self-defence is a martyr; and whoever dies defending his property is a martyr; and whoever dies defending his family is a martyr".

Muslim quoted Abou Hurayrah as having reported that once a man came to the Prophet Muhammad, may Allah's blessings and peace be upon him, and asked him what he would do if someone else attempted to take his money. The Prophet said : "Do not allow him to do so." When the man enquired of what he would do if he was attacked, the Prophet said "Kill him". The man asked : "But what happens if the man killed me? "The Prophet replied : "Then you are a martyr." And when the Prophet was again asked : "And if I killed him ?" the Prophet replied : "He will go to Hell."

Muslim also quoted Umran Ibn Husayn as having narrated that a man cut another man's arm with his teeth. The assaulted man pushed the attacker with the result that his front tooth was pulled out. Complaining to the Prophet of what had happened to him, the Prophet said "But you attempted to cut his flesh".

Abou Hurayrah quoted the Prophet Muhammad as having said!: "If someone suddenly attacked you, and you pelted him with a stone which would gouge his eye, you are not to blame."

If one is threatened with danger, he has to defened himself even by murdering the attacker, provided that there was no other way to spare his own life. ^{[The Imam Al-Shafei.]}

Defending others is based on the Prophet's saying "Assist your brother when he is oppressed; and protect him against any harm."

One is also required to defend his own honour as well as the honour of others. As it has been reported before, the Prophet explained that whoever died in defence of his family, he was a martyr.

Once, Al-Zubair, one of the Prophet's ompanions,did not report for duty with the army and remained at home with a maid-slave. Two men approached him begging. He gave them some food, and when they tried to take the maid-slave, he killed them with his sword.

Once, when Umar Ibn Al-Khattab was taking his lunch, a man came to him in haste, with a sword stained with blood in his hand, and a number of people chasing him. He sat opposite Umar and told him :"O, leader of the Believers; I have struck the thighs of my wife with this sword and I did not know whether I have killed someone who was sitting between them." Umar took the sword by his hand and swung it and then returned it to its owner saying : "If they do it again, you repeat whatever you have done." Apart from his own honour, one is also required to defend the honour of any alien woman.

One is to defend his property by all means available,and if there is no alternative but to kill an assailant, the latter might be killed by the former in defence of his own property. One is also allowed to defend other's property. This principle had been unanimously agreed to by all the jurisprudents. In "Fathul Qadeer", if burglars steal any other people's property, and the latter ask for help, the rescuers who might respond to the call are allowed to kill the thieves. To some jurists, to defend others is similar to self-defence. Not only should crime be fought before it is committed; it has to be also fought even after it takes place, and this is done in a bid to deter any other criminal who would think of a probable crime. The Islamic Law has imposed punishment on criminals and explained in detail the procedure of indictment, ways of litigation, or means of collecting evidences.

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Last modified: September 16, 2002