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References of Circumstance

1. A history of good conduct and behaviour waives or reduces the punishment: The Prophet (S) used to waive the punishment against those offenders who generally had had a good code of conduct and behaviour, for example like the case of Hateb (committing an offence) who also had a good history of participating in the battle of Badr.

The poor circumstances that drive the offender to offend: For example the circumstances of Kufa before Imam Ali (A) took office of government 50. Therefore Imam Ali (A) pardoned those who had (committed certain offences such as) stealing, adultery or sodomy, etc. and arranged for an adulteress to marry without punishing her, since they had committed those acts in chaotic and lawless circumstances.

If one commits minor offences but avoids major ones: as stated in the holy Qur’an:

2. 3. When Imam Ali (A) took office of government, he did not punish many offenders, if at all, because as a result of the policies of the previous ruler, there was widespread social injustice and deprivation of basic rights in the society.

The rights of prisoners according to Islamic teachings {Those who avoid great sins and shameful deeds, only (falling into) small faults; verily thy Lord is ample in forgiveness.} 51.

The circumstances of priorities: On the basis of this principle the Prophet (S) pardoned those who had deserted the battle even though desertion is regarded as a significant offence according to the Qur’an. Juvenile: As it has been reported “deliberate offence of a juvenile is (treated as) a mistake (and therefore unpunishable).

The sick (physically and mentally): where the punishment for the sick is reduced as derived from “And take in thy hand a bundle of (straw)” 52 and discussed in details in the book of Hudood 53 Women: Imam Ali (A) ordered (his troops) in Basra 54 not to confront women, “even if you or your leaders were insulted by them.”

The punishment of the parent: A parent may not be punished or prosecuted by the child. A parent may not be imprisoned for a debt to the child; as reported in the case of a son who complained about his parent to the Prophet (S). In a later debate, the Imam (A) said to the enquirer (about such a case) “Did you ever see (any report that) the Prophet (S) imprisoned the parent for his debt to his son?” 55 The punishment of the slave is less than that of the free, as stated in the Qur’an:

{ … when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but is better for you that ye practise self-restraint. And Allah is Oft-Forgiving, Most Merciful.} 56

10. The first offence carries less punishment than the second and so on. For example, in the case of hunting during the Hajj pilgrimage (to Makkah), Allah states in the Qur’an:

{O ye who believe! Kill not game while in the Sacred Precincts or in pilgrim garb. If any of you does so intentionally, the compensation is an offering, to the Ka’ba, of a domestic animal equivalent to the one he killed, as adjudged by two just men among you; or by way of compensation, the feeding of the indigent; or its equivalent in fasts; that he may taste of the penalty of his deed. Allah forgives what is past: for repetition Allah will exact from him the penalty. For Allah is Exalted, and Lord of Retribution.} 57

11. The severity of punishment is more during ‘favourite’ circumstances than during ‘poor’ circumstances, therefore the punishment of the married adulterer is more severe than that of the unmarried one.

12. Compelling circumstances: In such a circumstance Imam Ali (A) waived the punishment against a woman who was compelled to commit adultery.

13. A case of mistake, where, say, a man commits adultery with a woman thinking that she is his wife. For example he may mistake his wife’s sister for his wife.

14. Reduced level of punishment for women: For example a woman is not killed if she commits apostasy. The difference between this and the example of a previous case (no. 7) is that the previous case was concerned with Ta’zir punishment and in this case it is concerned with Hadd punishment.

15. Punishment may not be carried out in certain places such as in enemy land, or in the Holy Mosque (in Makkah). For example when someone commits an offence and seeks refuge in a holy mosque.

16. Punishment may not be carried out at certain times, e.g. punishing a thief when there is a famine.

17. Punishment may not be carried out when there is doubt. The Prophet (S) said, “punishments are waived by doubt (or uncertainties).” This concerns any aspect of the case; whether the judge, the witness or the offender.

18. Punishment my not be carried out in extreme weather conditions, i.e. when it is very hot or very cold.

19. “The establishment of an Islamic government annuls whatever preceded it.” as reported from Imam Ridha, (A).

20. “Islam annuls whatever preceded it.” i.e. one may not be punished for offences (committed) before becoming Muslim.

21. “Iman annuls whatever preceded it.”, i.e. one may not be punished for offences committed before guidance to the teachings of Ahl-ul-Bayt 58.

22. If one commits a ‘good’ deed, it annuls a ‘bad’ one, as stated by some of the scholars of Islamic jurisprudence.

In a report, Imam Sadiq (A) narrates that during the government of Imam Ali (A), a man was brought to him on suspicion of murder. He was found in a derelict place holding a bloodstained knife, and standing next to a slain man in a pool of blood. Imam Ali (A) asked the man “what do you have to say?” The man replied, “I killed him.”

Imam Ali ordered him to be detained. When he was taken away, another man rushed to Imam Ali (A) and said, “I killed the man.” Imam Ali (A) said to the first man “what made you confess to the murder?”

The man replied “I could not have said (otherwise) when these people had seen me with a bloodstained knife in my hand standing next to a slain man in a pool of blood. I admitted this in fear of being beaten to make the confession. In fact I had just slaughtered a sheep nearby. As I needed to pass water I went to that derelict place, where I noticed the murdered man and I went to take a closer look. At that moment these people arrived and saw me at the scene.”

Imam Ali (A) said take these two to (Imam) Hassan (A) and ask him for the ruling for their case. After hearing their stories, Imam Hassan (A) said, tell Amir-ul-Mu’minin (Imam Ali (A)) that: “If he (the second man) killed the man, he also gave life to this man (the first man). Allah the Almighty says (in the Qur’an):

{ … And if anyone saved a life, it would be as if he saved the life of the whole people.} 59

Therefore they both go free and the blood money for the killed man is taken from the public fund (the treasury).

These are some of the many examples that can be found within the Islamic jurisprudence, Teachings of the Prophet (S) and (Islamic) history.

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