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Changing legal penalties

Source: Al-Nass Wal-Ijtihad, Text and Interpretation
By: Allama Abdul Husayn Sharafuddin al-Musawi

Once the slaves of al-Hatib bin Balta’a had participated in stealing a camel of a man from the tribe of Merina. They were brought before Umar and they confessed that they had done that. Umar ordered Katheer bin as-Salt to cut their hands. When they were taken to be punished, Umar brought them back and sent for their master’s son Abdurrahman bin Hatib and said to him: “I swear by Allah, unless you have employed them and left them hungry, I would have cut their hands. By Allah, since I have not done so, I will impose a fine on you that will make you suffer much…” 220
Umar, when not punishing the stealing slaves, might think that they were obliged, because of hunger, to steal the camel to satisfy their hunger and so they might be among those whom the Qur’anic verse had talked about: “But he who is driven by necessity, neither craving nor transgressing, it is no sin for him” (Qur’an 2:173)
But they confessed the theft and they did not claim that necessity had driven them to do that. And if they had claimed that, then the ruler would have to ask them for what must prove their claim, but Umar did not do save pitying them and being severe to Abdurrahman bin Hatib. We do not know how Umar has known that the masters left their slaves hungry that they were obliged to steal!

Taking non-legislated ransom
Once some people of Yemen came to Abu Kharash al-Huthali, the companion and the poet, as guests during the season of hajj. He took his water skin and went in the night to bring them some water. On his way back, he was stung by a snake before reaching his guests. He hastened to them, gave them the water and said to them: “Cook your sheep and eat it!” He did not tell them what had happened to him. When the morning came, Abu Khurash was dead. They buried him before they left.
When the news reached Umar, he became very angry and said: “Had it not been for a sunna (rite), I would have ordered that no Yemenite would be received at all and I would have written to all the countries about that.” Then he wrote to his emir on Yemen ordering him to arrest the men, who had been the guests of Abu Khurash al-Huthali, to take ransom from them for Abu Khurash and to punish them with severe punishment for their doing!!! 221

Penalty of adultery
Ibn Sa’d mentioned in his Tabaqat 222 that once Burayd had come to Umar and scattered his quiver. A piece of paper appeared from the quiver. Umar took it and read it. It had some verses of poetry.
He said to his companions: “Send for Ja’da from the tribe of Sulaym.” When Ja’da came, Umar whipped him one hundred whips after tying him and he forbade him from visiting any woman, whose husband was absent.
There was no evidence on punishing this man due to these verses of poetry, which no one knew who had composed. They just instigated the caliph against Ju’da by claiming that he had committed sins against young girls from the tribes of Sa’d bin Bakr, Sulaym, Juhayna and Ghifar by tying them and trying to violate their honors. This was all what had been ascribed to Ju’da in these verses of poetry.
Even if it was proved to be true, it would not be enough to punish the man with that legal penalty. Yes, it required him to be scolded and censured. What the caliph did might be of this kind but what difference was between what he had done with this man and what he had done with al-Mugheera bin Shu’ba that you will see soon inshallah.
220. A’lam al-Muwaqqi’een, p.32, Fajr al-Islam by Ahmad Ameen, p.287, al-Isaba by Ibn Hajar, vol.2 biography of Abdurrahman bin Hatib.
221. Al-Istee’ab by Ibn Abdul Birr, Hayat al-Haywan by ad-Dimyari, chap. of “snake”.
222. Vol.3, p.205.

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