Posted on 21st Nov 2024 11:19:02 PM Law
Homicide
All schools of Islamic law accept the general principle that a killer does not inherit from his victim, for the obvious reason, as expressed by the Shafi'i jurist al-Ramli (Nihayat al-Muhtaj, v, 23), that "the public interest requires that the killer be debarred from inheritance since, if he did inherit, killing would accelerate inheritance and lead to universal chaos". There is, however, considerable divergence among the schools as to the precise circumstances in which homicide does constitute a bar to inheritance, and it is therefore necessary to begin with a brief account of the nature of the offence of homicide in traditional Shari'a law.
General: classification of homicides
In traditional Shari'a law homicide is essentially a private wrong or tort rather than a public wrong or crime. Homicide is a crime in the technical sense that the State prosecutes the offence and exacts the punishment therefore in a limited number of cases - where, for example, it is committed in the course of highway robber}' or in furtherance of other crimes such as rape or theft. But generally it is a ton inasmuch as it is the right of the victim's family to decide whether to prosecute or not and, in the event of a successful prosecution, to determine the penalty. They may, in cases of deliberate homicide, insist upon the death penalty by way of retaliation (qisds), or they may opt to take blood-money (diyya), or they may pardon the offender altogether, although in this last- event the State reserves a power of discretionary punishment of the offender. In cases of accidental homicide the only remedy available to the victim's relatives is the exaction of blood-money.
Actionable and non-actionable homicide As an actionable offence homicide does not necessarily involve any element of intent to kill. Nor, indeed, does it necessarily involve any degree of culpability, through negligence, since the basic purpose of the law is to recompense the tribe or family of the victim for the loss of one of its members. The law here comes very close to the notion of absolute liability, inasmuch as a person will generally be held responsible for 2 death caused directly by his act, however involuntary or innocent such act may be.
Cases of non-actionable homicide are therefore rare and broadly confined to circumstances where the homicide results from the exercise of a definite legal right or duty. Four principal categories of homicides which do not constitute a legal offence may be distinguished.
(a) The execution of a lawful sentence of death.
(b) The killing of an outlaw, i.e. a person who is not legally protected, such as an apostate from Islam, a rebel or a heretic.
(c) Killing in the legitimate exercise of the right of self defence. Homi cide is regarded as justifiable where it is the only means by which a person may protect himself or his property, or the person or property of someone else, from" an unlawful attack.
(d) Death resulting from a bona fide act intended to benefit the health of the deceased and performed at his request, such as "the administering of medicine.. .or the lancing of an abscess or the removai of a leech" (al-Mughnz, vi, 292).
Deliberate and accidental homicide
The actual presence or absence in the mind of the accused of a deliberate intent to kill is, of course, a matter known only by the accused himself. A court can only infer the intent of the accused from his external conduct or from his own or others' testimony as to his state of mind. Moreover, the particular question arises in cases of homicide as to whether the accused should be held responsible for a deliberate killing when the court is prepared to ascribe to him the intention to hurt or to wound, but not to kill, his victim. These principal difficulties led to a divergence of view among the different schools as to the circumstances in which a homicide should be classified as deliberate. The classification is primarily related to the sanction for the offence, only the deliberate killer being liable to the death penalty by way of retaliation; but it is also directly relevant in Maiiki and Shi'i law to the question of the killer's right of inheritance.
Maiiki law
In Maiiki law a person is guilty of deliberate homicide if he causes the death of another by any intentional act or omission, directed against a human being, which is either hostile or intrinsically likely to kill. This is the widest definition of deliberate homicide in traditional Sharr‘a law. since it includes death caused by any potentially lethal conduct, however innocent the intention, and death caused by any behaviour which is hostile, however unlikely it is that such behaviour will cause death.
Shi'i law
Under Sbi'i law a person is guilty of deliberate homicide if he causes the death of another by deliberately acting towards him in a way -which is intrinsically likely to kill, or in a hostile manner which would not normally cause death, provided, in this latter circumstance, there is acceptable evidence that he intended to kill. If, therefore, a person throws a pebble at someone else, .intending only to hurt but in fact killing him, he will be guilty of deliberate homicide under Maliki, but not under Shi'i, law.
General Sunni law
Under Hanafi, Hanbali and Shafi'i law the presence or absence of homicidal intent is determined exclusively by the means used to kill. Only v-'here the act or omission is deliberately directed against a human being and is intrinsically likely to kill will it constitute deliberate homicide. Where the deliberate act Is not such as normally results in death, the offence is classified as "quasi deliberate" homicide and the offender is not subject to the death penalty.
Outside such limits an actionable homicide is broadly classified as accidental, although Sunni jurisprudence generally distinguishes several different types of accidental homicide. Homicide through "mistake in the purpose", for example, arises when a person shoots at and kills something which he believes to be an animal but which is in fact a human being. An instance of homicide through "mistake in the performance" is when a person shoots at a target but misses and kills someone. In both these cases, of course, the act is deliberate and intrinsically likely to kill, but it is not directed against a human being. If it were and someone other than the intended victim were killed, either through mistaken identity or inaccurate shooting, it would be a case of deliberate homicide.
Where the act which causes death is wholly involuntary and therefore involves· no mistake in its purpose or performance, the homicide is classified as "quasi accidental". This is the case, for example, if a person falls from a height upon another person and' kills him, or if a driver loses control of his vehicle through mechanical failure and kills a pedestrian.
Minors and lunatics
Within the above definitions a minor or a lunatic may be guilty of deliberate homicide, but because they are not legally capable of forming a criminal intent they are not subject to the death penalty. There is the same strict illogicality here as in the "guilty but insane" verdict of English criminal law. Following the normal principals of tort, however, liability to pay blood-money is incurred when any actionable homicide is committed by a minor or a lunatic.
Direct and indirect homicide
All schools of Islamic law except the Malikis draw a distinction between a direct killing (qatl bi'l-mubashara) and an indirect killing (qatl bi’l-aslno). This classification is based on a theory of causation which cuts right across the two previous classifications inasmuch as any homicide, actionable or non-actionable, deliberate or accidental, may be either direct or indirect. Cases of direct homicide are strictly confined to death caused directly and exclusively by the killer's physical assault upon his victim, with or without a weapon, e.g. by strangulation, stabbing or beating to death. Outside these narrow limits a homicide is classified as indirect whenever there intervenes between the act of the killer and the death of the victim any other contributory cause of death. Among the many instances of indirect but deliberate homicide cited, for example, by the authoritative Shi'i text, Shar'i al-Islam,1 are the following,
(a) Where the killer uses a mechanical means of attack, such as "an arrow shot from a bow or a stone from a catapult".
(b) Where the killer's assault is not in itself the ultimate cause of death, as where the victim is thrown into a fire and burns to death, or is thrown into water and drowns, or is incarcerated and dies from starvation.
(c) Where the behaviour of the victim is a contributory cause of his death, as where he consumes poisoned food or falls into a death trap prepared by the killer.
(d) Where the killer contrives the death of his victim by hiring an assassin or setting a vicious dog upon him.
(e) Where the killer gives false testimony in court against his intended victim which results in the latter's conviction and execution.
1 See the French translation of A. Querry, under the title Droit Musuiman (Paris, 1872), II, 542ff.
Homicide as a bar to inheritance
Shafi‘i law
In Shafi‘i law the principle that the killer does not inherit from his victim is of absolute application and covers every case of homicide from wilful murder to lawful execution. A person does not inherit from one whose death he has caused simply because he has unnaturally accelerated the process of succession. Hence, in the Shafi‘i view, such considerations as legal responsibility for homicide, criminal intent and causation rhave no relevance in this context.
Hanbali law
In Hanbali law any actionable homicide, deliberate or accidental, direct or indirect, raises the bar to inheritance. The reason why non-actionable homicide (e.g. lawful execution or killing in self defence) does not constitute an impediment- is explained by Ibn Qudama (al-Mughm, vi, 293) as follows:
Inheritance is prohibited to avoid encouraging unlawful killing and to deter people from taking the lives of protected persons. It would be contrary to this basic purpose to prohibit inheritance in these cases [of non-actionable homicide], for this would hinder the application of necessary penalties and the exercise of legal rights, whiie the absence of a bar to inheritance in these cases in no way encourages unlawful homicide.
Hanafi law
Hanafi law rests firmly upon the criterion of causation in homicide and holds that only a direct, unlawful killing of the praepositus by the heir is a bar to inheritance. A direct killing may, of course, be deliberate or accidental, although the incidence of the latter must be rare because of the strict definition of direct homicide. Minors and lunatics, however, are not debarred from inheriting from a praepositus whom they have killed directly. This exception is commonly said to rest upon the ground that there is no "sin" or "guilt" in a homicide committed by a minor or a lunatic. But there is equally no sin or guilt in a purely accidental, though direct, homicide committed by a sane adult, and he is denied the right to inherit from the victim. A contemporary Egyptian jurist, 'Umar Abdallah, attempts to explain the exception by regarding minors and lunatics as a special category of persons outside the ambit of the general law.
The impediment to inheritance is a punishment for a killing which is legally forbidden. But it is not technically correct to describe the acts of minors or lunatics as legally forbidden, for these persons are not subject to the law inasmuch as the commands and prohibitions of the Law-giver are not addressed to them.2
The fact remains, however, that a homicide committed by a minor or a lunatic is an actionable or unlawful homicide, often equated in other spheres of the law to accidental homicide and sanctioned, like the latter, by the pavement of blood-money. The exemption, therefore, of minors and lunatics from the bar to inheritance on the ground that they have no guilty or criminal intent is strictly inconsistent with the general Hanafi criterion of causation in this regard.
Maliki law
Under Maliki law the bar to inheritance is raised by any actionable homicide which is deliberate within the broad Maliki definition of this term. Somewhat illogically, minors and lunatics are also barred from inheritance when they have committed deliberate homicide, although they are not liable to the penalty of retaliation because of the lack of any criminal intent.
Accidental homicide does not constitute an impediment to succession but the killer does not inherit any part of the blood-money which is payable in respect of the death and which forms part of the victim's estate.
P is killed accidentally by his brother Zaid. He is survived by a second brother, 'Umar, and by his mother. Of the general estate of P, the mother takes a Qur'anic portion of one-sixth (due to the presence of two brothers), and Zaid and 'Umar share the residue equally. Of the blood-money the mother takes a Qur'anic portion of one-third (following the principle that an heir who is debarred from inheritance is ignored, there is only one brother, 'Umar, competing with the mother) and 'Umar takes the residue.
Smi'i law
Shi'i law consistently bases the bar to inheritance upon the presence of criminal intent. Only a deliberate homicide, according to the Shi'i definition of that term, constitutes an impediment, and minors and lunatics cannot be held guilty of deliberate homicide under Shi'i law because the necessary criminal intent cannot be ascribed to them. As in Maliki law, the accidental killer is debarred from inheriting any share of the blood-money.
2 'Umar Abdallah, Ahkam al-Maviarith fi'l-Sharfa al-Isldmiyya (3rd ed., Alexandria, 1960), p. Si.
Modern law
Egypt and Syria
The traditional Islamic law of homicide, based upon the notion of the offence as a private wrong within the context of a tribal society, %vas clearly unsuited to the developing social and political order of the emergent modern Muslim states, and during the latter part of the nineteenth century jurisdiction in cases of homicide was formally removed from the Sharl'a tribunals in most Middle Eastern countries and transferred to secular courts which applied modern penal codes derived from European sources. The Penal Code promulgated in Egypt in 1875, example, was based on French law, while the later Egyptian Criminal Code of 1937 directly adopted Italian law. Since family law, including succession, remained the undisputed province of the Shari'a courts, this development created a dichotomy in the general administration of law which involved, in particular, the recognition of two distinct doctrines of homicide. In the secular courts homicide, broadly, was a capital offence only where the killer intended to kill or to do an act likely to cause death. But in the Shari'a courts applying Hanafi law "a person was debarred from inheritance if he killed the praepositus directly, however accidental his act or innocent his intention, while the indirect killer (by shooting or by poison) suffered no such bar however criminal his intention may have been.
The Egyptian Law of Inheritance. 1943, which was closely followed by the Syrian Law of Personal Status, 1953, set out to remove this dual standard by providing that a homicide would raise a bar to inheritance by the killer from his victim when it amounted to the capital offence of murder under the Criminal Code.
Section 5 of the Egyptian Law accordingly enacts: "Among the impediments to inheritance is the intentional killing of the praepositus, whether the killer acted as principal or accessory or as a false witness whose testimony led to a sentence of death and its execution, provided the killing was unlawful and without excuse and provided the killer was sane and at least fifteen years of age. Among excuses is to be counted the case of one who exceeds his legal right of self-defence."
The juristic basis of the reform
Although the provisions of section 5 are remarkably close to traditional Shi'i law, they are formally represented as an amalgam, by way of talfiq, of the Maiiki principle that any deliberate homicide, direct or indirect creates a bar to inheritance and of the Hanafi principle that a minor or a lunatic killer is not debarred from inheritance. It is clear, however, that the real inspiration for the reform lies in the Criminal Code of 1937. In the first place, the intentional killing envisaged by section 5 is certainly a killing where there is the intention to kill or at least to do an act likely to cause death as opposed to the very much wider definition of intentional killing that in fact obtains in Maliki law. In the second place, when the Explanatory Memorandum elaborates upon the modes of killing and the degrees of complicity etc. which will raise the bar to inheritance, it makes detailed reference to the provisions of the Criminal Code rather than to the traditional Maliki authorities. This is the case when the memorandum expressly excludes from inheritance the person who commands another to commit a homicide, or leads the way to it, or shares in it, or keeps watch while it is done.
Homicide under the influence of drugs or alcohol
Two points of substance call for brief comment. Normal Islamic doctrine is preserved in the rule, as laid down in the Explanatory Memorandum, that one who kills in temporary loss of reason as the result of a drug taken under compulsion or in ignorance of its nature is not to be regarded as a sane killer: for this implies that the bar to inheritance will be raised by a homicide committed under the influence of a drug or intoxicant knowingly and willingly taken. Because voluntary intoxication through alcohol or drugs is itself a crime under traditional Islamic law, loss of reason due to drunkenness or the effect of drugs is not a defence to a charge of wilful homicide.
Excusable homicide
The final sentence of section 5 clearly indicates that excusable homicide is not confined to the case of a person who exceeds his lawful right of self defense-i.e. uses more force than is absolutely necessary to repel an attack and kills when his intention is not to kill but merely to defend himself or. his property. The original draft of the law in fact expressly included as a case of excusable homicide a husband's killing of his wife when he caught her in the act of adultery. In the debate on the clause, however, it was generally agreed that a person who caught his mother, daughter or sister in the act of adultery had even greater excuse for killing her, since he could not, like the husband, wipe out the stigma on the family's honour by the simple expedient of divorce. Hence the law as finally enacted deliberately refrained from specifying all the categories of excusable homicide so that cases of the type mentioned (and presumably others) might be brought under this head in appropriate circumstances.
Tunisia
Article 88 of the Tunisian Code of Personal Status, 1956, provides: "Deliberate homicide is one of the impediments to inheritance. The killer does not inherit, whether he acted as principal or accessory or was a false witness whose testimony led to a sentence of death against the oraepositus and its execution." Unlike the Egyptian legislation, therefore, the Tunisian Law does not expressly make the exclusion of the killer from inheritance dependent upon his majority and sanity. Since the same Tunisian Law does make express reference to these conditions of majority and sanity when it deals with homicide as a bar to testamentary succession (p. 230 below), it seems that the omission here was deliberate and that the traditional Maliki doctrine, which excludes even the minor or lunatic killer from inheritance, still applies.
Iraq
The Iraqi legislation of 1959 states simply that a killer, without further definition, is barred from ^inheriting from his victim. It seems, therefore, that traditional Shari'a doctrine continues to apply in Iraq in this regard, since the practice is to interpret the terms of the legislation according to the traditional Hanan or Shi'i authorities (pp. 141-2 above).
India and Pakistan
There has never existed in India and Pakistan the same dichotomy in the court system as obtained in the Middle East with the separate jurisdictions of the secular and the Sharf a courts. Shari'a law has always been administered in the sub-continent as the law of personal status for Muslims through the unified system of courts which applies the criminaj and the general civil iaw. Hence, with the introduction of the Indian Penal Code in 1860 (English criminal law codified for export), the traditional Hanafi law of homicide ceased to have any application at all, both in criminal and civil cases, and since that time homicide has constituted an impediment to succession only if it amounts to a criminal offence under the terms of the Penal Code.
A recent decision of the Pakistani High Court, however, has greatly extended the effect of criminal homicide as an impediment to succession. Under the traditional Islamic law of all schools it is only the killer who is debarred from succession to the estate of his victim. But according to this decision a homicide may result in persons other than the actual killer being debarred from succession to estates other than that of the victim.
In Beguman v. Saroo, P.L.D. (1964), Lah. 4^1, the facts were as follows. In 1948 one Dara was convicted and hanged for the murder of his two nephews, the only sons of his brother Rehman and his wife Beguman. When Rehman died in 1951 his nearest surviving relatives were his wife Beguman. his two daughters and his. two nephews, Seroo-and Manak, the sons of the murderer Dara. .
It was decided by the court of first instance, correctly according to Hanafi law, that Beguman was entitled to one... the two daughters to two-thirds and the two nephews, as ... heirs, to 5/24 of Rehman's estate. Against this decision Beguman appealed, claiming that the nephews were not entitled to any share of the inheritance since it was only through their father's murder of Rehman's sons that they had been let in as the nearest residuary heirs.
The High Court allowed this appeal for the sins of the father to be visited upon the children and observed:
Under me principles of justice, equity and good ... a murderer or his progeny cannot be allowed to benefit by his crime of muruer. The murderer may be the father alone but if the descendants claim through him even though not merely from him their title becomes tainted, as the source or the channel through which the inheritance has to flow becomes blocked and extirpated by reason of the crime committed by that source.
Article, Succession, Muslim, Family, Homicide, Maiiki, Shi'i, Sunni, Shafi'i, Hanbali, Hanafi, Maliki, Smi'i, Modern, Egypt, Syria, Tunisia, Iraq, India, Pakistan, Law
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