Presented by:

1. Angelin Foong

2. Lim Cally3. Letitia Mejin

Tutorial 4

Question:

Kampung is a village located in a remote area. Most of the villagers believe in an ancient credence which they inherited from their ancestors hundreds of years ago. Besides hunting wild animals, the villagers rely on agriculture as their source of income. One day, the village was shocked by a tragic incident where four members of a family were killed.

One of the witnesses (Jebon), who witnessed the said incident said that it happened when two young men in the village, Bai and Fuyo performed an ancient ritual whereby they slaughtered and buried four members of a family. Before performing the ritual, Bai and Fuyo were seen chanting to the victims. According to Jebon, the villagers who attended the ceremony including Bai and Fuyo believed that the four persons would come back to life again after three days.

According to other witness (Rempit), about twenty people attended the ceremony. Rempit also said that he saw number of the kampung folks attending a feast at Bai house which was held for two consecutive nights before the incident.

Bai and Fuyo were semi-conscious when they were arrested by the police. They were later taken to the police station for interrogation.

Discuss the appropriate Islamic legal maxim and criminal liability and defence(s) available in this case.

1) Islamic Legal Maxim

:Al-Umur Bi Maqasidiha(Matters Are Determined According To Intention)

General meaning of the Maxim

• The intention is the will directed towards an action, or the directing of the will towards of any human being.• In other words, all kinds of actions that is

carried out is determined by their intention.

Origins of the Maxim

• Narrated by “Umar r.a. the Prophet(s.a.w.) said: Deeds are judged by intentions and every person is judged according to his intentions”.• The hadith clearly states that all deeds are

judged according to their intention.

General Application of the Maxim

• Ie: If a person find something on the street or anywhere else and takes the object with the intention of returning it to the owner , his conduct is in order and he is considered as the keeper (amin) of the item , but if he intends to keep the item as his own, he is considered to be a person wrongfully appropriating property (ghasib).The physical act is identical in bvoth cases but the judgment therein differs according to the intention.

Application of the maxim to the case • Looking into the case, the act of Bai and Fuyo

slaughtered and buried four members of the family shows that they have the intention of killing regardless of whether they believe that the four persons would come back to life again after three days or it is just an ancient ritual.• Therefore, they should be held liable as

matters are determined according to the intention.

2) Criminal liability:Intentional murder

Definition: it is a murder when a person is willfully and with the intention of causing death makes another person the direct object of his action which in general is fatal and that person dies as a result of that action.

Actus reus

• Based on the facts given, Bai and Fuyo had slaughtered and buried four members of a family.

Mens rea• Intention(the accused willingly to cause the act that is forbidden, ie: slaughtered)

Conditions

• Three basic conditions:I. The victim must be a living human beingII. The victim must have died as a result of

the action of the accused andIII. the offender has wilful intention of

causing death of the victim

i) The victim must be a living human being• The victim must be a living human being at the time

of death irrespective of colour, religion, sex, status and etc.• Further, the victim must be a protected person.

Ie: i. All Muslims, ii. non-Muslims who permanently reside in Islamic state, iii. non-Muslims who are either in a treaty or not at war

with the Muslims and, iv. non-Muslims who enter an Islamic state with

permission

ii) The victim must have died as a result of the action of the accused

• The act must have done by the accused and it could have not been suspected to have been done by someone else.• The victim must have died of the act of the

offender without any gap of considerable recovery or a fatal attack by another person.

Hadith:

• A Jew woman offered a poisonous piece of mutton of sheep to the Prophet and he ate some of it but threw it after a while and a sahabi named Bishar, who was with the Prophet at that time, also ate from it. Later on Bishar died of that. On the death of Bishar, Prophet ordered for the death of that Jew woman. (Syed Sabiq, Fiqh al-Sunnah, Vol II, p 437)

iii) The offender has wilful intention of causing death of the victim

•Main ingredient of intentional murder• ‘criminal intention’ means that the

offender must have intended to cause the act (death to victim) knowing that the act is forbidden• “There is no blame on you if you make a

mistake: what counts is the intention of your hearts.” (33:5)

In general,

• In the absence of the intention to cause death of the victim, the offender shall not be liable to intentional murder.• However, by looking at the facts given,

even Bai and Fuyo believed that the four persons would come back to life again after three days, when they slaughtered and buried the victims, they have the intention to cause their death.

Proof of intentional murder

• The offence of intentional murder is provedi. By the confession of the offenderii. By the testimony of two adult, sane, male

and reliable eye witnessesiii. Circumstantial evidences

(In this case use ii and iii, whereby ii are the witnesses mentioned in questions and iii is the bodies buried.)

3) Defence

• Unsoundness of Mind• Bai and Fuyo were semi-conscious when they

were arrested by the police. • However, based on the facts, it seems like Bai

and Fuyo were both conscious of what they were doing when they slaughtered and buried the four victims.• Thus, this defence will not be successfully

pleaded.

4) Punishment

• Qiyas (retaliation) • i.e. Sentence to death• 2:178• O you who believe! Retaliation is prescribed for you in

the matter of murdered. The free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.

Hadith • The Holy Prophet said; “He who commits

intentional murder, remains at the discretion of the heirs of the victim who have three options: (i) to kill him (ii) to demand diyat comprising 30 camels three years old, 30 camels four years old and 40 pregnant she-camels or (iii) to make compromise on anything to be taken by them”

• So, if the victims’ family or heirs pardon Bai and Fuyo, the death sentence shall not be carried out. • Instead, Bai and Fuyo must pay diyat (blood

money).

• The blood money that Bai and Fuyo will need to pay is a total of 100 camels or equivalent to 100 camels ie cows.• The heirs of the victims can compromise and

both parties mutually agree upon any valuable thing to be given or paid whether the thing agreed upon is more in value or less, or whether it is paid at the spot or on deferred basis.