Criminal Gravity and Dacoity

An offender may commit an indictable offence and the offence may be grave, but, nevertheless, the offence may receive no great attention by the community. In any community, murder, larceny and drinking of wines are common crimes. But there are other offences which are criminally grave and deserve punishment of more severity than those prescribed by laws, such as in the case of persistent offenders, offences of anal coitus, and adultery with a married wife. Such crimes will certainly shake the very foundation of any community, agitate the feelings and sentiments, and do with its ideologies.

These crimes should not be punished by the normal restrictive ordinances or by a punishment left to the discretion of a judge. These crimes fall under the category of dacoity.

Dacoity is not confined to a certain offence; it is a crime which suggests heinous and unusual culprit. Among such crimes are highway robbery, anti-state activity and adultery with married persons. For this reason, God has imposed on these crimes a variety of penalties the application of which was left to the ruler to decide.

Referring to dacoity God says "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned. This shall be disgrace for them in this world and in the Hereafter they shall have a grievous chastisement". ^{[Surat Al-Maida: 33]}

Dacoity could be done by only one act, but such an act may entail grave consequences. From studies of the Islamic Laws and Muslim jurists' decisions one can deduce that if an offender persists on committing even minor offences the ruler can impose on him the severest of prescribed penalties. In crimes with prescribed penalties, capital punishment might be imposed though the prescribed penalty for the same crime was less in severity. But such a verdict could not be passed except under two conditions; that the culprit has been persistent offender, and that the crime itself was grave. Persistent offenders deserve to receive the severest of punishment and in one of his sayings the Prophet Muhammad said : "Whoever drinks wines must be flogged; and if he continues to do so four times, he must be killed." It has also been reported that whoever steals five times must be killed. Habitual murderer is also to be killed even if he comes to terms with the murdered next of kins.

A number of Muslim jurists had called for severe punishments for grave crimes. Ibn Abbas quoted the Prophet Muhammad as having said : "Whoever commits sodomy must be killed." Al-Barra' Ibn Azib narrated that once his uncle Abou Barda passed him. He asked him about his destination. The man replied :I have been sent by the Prophet Muhammad to kill a man who had married his step-mother. Abdullah Ibn Abbas decreed," He who commits adultery with a married woman is to be killed." The Prophet Muhammad said : "I whoever tries to stir up dissention among you is to be killed." The Imam Ali was quoted as having ordered that whoever committed sodomy had had to be killed. ^{[(Opinion in Islamic Jurisprudence), by Dr. Muhammad Mokhtar Al-Qadi, Chapter entitled "History of Opinion and Opinion Leaders and their Opponents."]}

According to Ibn Abedine (Vol.3, p.277), the sorcerer and the atheist must be killed even if they express repentance while on their way to execution. The Prophetic saying and the jurists' decisions are in conformity with the punishment prescribed by the Holy Quran for dacoity. If punishments are prescribed for certain offences, and though only in rare cases these punishments are more severe, punishment for minor offences could be more severe if the judge finds this necessary, because in minor offences, the punishment and the gravity of the crime are left to the judge to decide. To impose punishment heavier than the prescribed one, which reaches execution in certain cases, is recognised by positive laws. According to the Egyptian Penal Law, an intentional murderer is punished either by hard labour life imprisonment or for only a specified period. ^{[Article 234, Paragraph I stipulates that "be who intentionally murders someone else,- but without premeditation or lying in wait for the victim, is punished by hard labour life imprisonment or for a limited hard labour sentence".]} If premeditated murder was committed, the culprit is to be executed. ^{[Article 230 says "Anyone who murders someone else with malice must be executed".]} The reason for this severe punishment is that to murder someone with premeditation, after having ample time for thinking over the gravity of the crime, is an indication, or proof, of criminal gravity. This is the same in cases of murder with malice. The ordinary murderer is he who intentionally shoots his enemy when he sees him. But the wilful culprit is he who commits murder after looking for his victim for sometime and everywhere. Premeditation involves a kind of malice, but malice may lead to murder without premeditation.

In these cases, the culprit, who showed grave criminal tendency should not serve only hard labour life sentence or temporary hard labour sentence. This must be also the case with those who commit murder deliberately, but without malice. There are other crimes which are of the same nature they suggest great criminal gravity for which capital punishment must be inflicted. For ordinary thefts, which is an offence against property, imprisonment sentences are imposed. But in robbery, where physical aggression is made against people, the penalty must be severe. These are the cases when arms are used and the offence is committed under constraint during the night. These offences are sometimes considered contaventions of higher degrees, and some other times crimes.

Persistence on committing crimes entails heavy penalty and in some cases a contravention is turned into a crime. A habitual offender must not be served an ordinary punishment, but a heavy one.