Retribution for bodily harm in Sharee'ah Law

5-10-2016 | IslamWeb

Question:

Assalaamu alaykum, Brother. I was wondering what the punishment for GBH and ABH is in the Sharia law. I cannot seem to find anything about that. If you could get back to me, then that would be great. Thank you.

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Answer:

All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad is His slave and Messenger.

If the crime was deliberate, regardless of whether we call it GBH (Grievous Bodily Harm) or ABH (Actual Bodily Harm), and there was a resulting injury, and legal retribution against the doer was possible, and his death is not feared as a result, then it is an obligation to do justice by seeking retribution against him according to the extent of his crime, as Allaah says (what means): {And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds equal for equal...} [Quran 5:45]

Ibn Katheer said in his Tafseer:

“In the saying of Allaah: {Indeed, Allaah orders justice and kindness...} [Quran 16:90]; Allaah tells us that He commands His servant to be just, i.e. fair and moderate, and that He encourages kind treatment of others, as He says:

{And if you punish them, then punish them with the like of that with which you were afflicted. But if you have patience with them, then it is better for those who are patient.} [Quran 16:126] {The recompense for an offense is an offense the like thereof; but whoever forgives and makes reconciliation, his reward is with Allaah.} [Quran 42:40]

{ …and wounds equal for equal. But if anyone remits the retaliation by way of charity, it shall count as atonement for him.} [Quran 5:45] 

And there are other verses that support the institution of justice in Islam as well as encourage a forgiving, generous attitude.” 

Retribution should not be exacted until the victim has healed so that the extent of the crime becomes known and retribution is then sought from the offender accordingly. The evidence for this is the following hadeeth: A man was stabbed with a horn in his knee, and he came to the Prophet and said, “Retaliate on my behalf.’’ The Prophet said to him, “Wait until your wound has healed.” The man came again [before he was healed] and said, “Retaliate on my behalf.” So he allowed him to retaliate against the one who attacked him. He later came to the Prophet and said, “O Messenger of Allaah! I have become lame (with a permanent limp).” The Prophet said, “I forbade you (to take retaliation until your wound was healed), but you disobeyed me, so Allaah kept you away from His mercy (due to your disobedience). As for your lameness, you are not entitled to any compensation (because he had already retaliated before he discovered the lameness).” Then the Prophet said, “No retaliation is to be made for a wound before the victim is totally recovered.” [Ahmad and Ad-Daaraqutni - Al-Albaani graded it saheeh (sound) in Al-Irwaa']

However, if it is feared that the offender will die when the wound reaches the skin of the brain, then this crime is called Al-Ma’moomah (i.e. where injury causes fracture in the skull), and there is no retribution for it, because such injuries cannot be reproduced without risk of greater damage than the original. The same applies if its treatment requires dislocating some bones, then in this case it is called Al-Munaqqilah (dislocated bones).

Al-Muwatta' quoted from ‘Abdullaah ibn Abi Bakr ibn Muhammad ibn ‘Amr ibn Hazm, from his father, that the script written by the Prophet to ‘Amr ibn Hazm regarding the amounts of Diyah (blood money) said: The retribution for killing a soul is one hundred camels, and for a nose if it is completely amputated, it is one hundred camels. For Al-Ma’moomah (fracture in the skull), it is a third of the blood money; for Al-Jaa’ifah [i.e. deep belly wounds], it is the same [a third of the blood money]; for an eye, it is 50 camels; for a hand, it is 50 camels; for a foot, it is 50 camels; for every finger, it is 10 camels; for a tooth, it is 5 camels; and for a wound that reveals the bone, it is 5 camels.” [An-Nasaa'i and Al-Bayhaqi - It is saheeh due to its other routes of narration that support it; as stated by Al-Albaani in As-Silsilah As-Saheehah]

Ibn Qudaamah said in Al-Mughni:

"In Al-Ma’moomah or Al’Jaa’ifah, there is no legal retribution. Al-Ma’moomah is the head injury that causes a fracture in the skull (the part that covers the brain); this part of the skull is called Umm (the mother) of the brain because it covers it, so the injury that reaches the skull is called Al-Ma’moomah, and it is also called Aammah because it reaches the Umm of the brain. Al-Jaa’ifah is a deep wound in the belly that reaches inside it, and there is no legal retribution with regard to these two according to any scholar that we know of; with the exception of what was narrated from Ibn az-Zubayr; that he took legal retribution in Al-Ma’moomah and the people disapproved that from him, and said to him, 'We have not heard anyone who took legal retribution in it except Ibn Az-Zubayr.' ... Also, Ibn Maajah reported in his Sunan from Al-‘Abbaas ibn Abdul Muttalib, from the Prophet who said, 'There is no legal retribution in Al-Ma’moomah or Al-Jaa’ifah, just like Al-Munaqqilah, because they are two injuries and it is feared that reproducing the injury would lead to greater damage than the original, so there is no legal retribution in them like the breaking of bones.'” 

Nonetheless, it is permissible that the offender and the victim reconcile on a given compensation instead of legal retribution. Khaleel said, “It is permissible to reconcile with him in case of deliberate damage with something more or less.”

Finally, if the wound was inflicted by mistake and did not reach the degree of Al-Jaa’ifah, then an indemnity must be paid for it based on the Ijtihaad (independent reasoning) of the people of knowledge depending on the area of the wound and its degree of seriousness. Ash-Shaafi’i said in his book Al-Umm, “Every wound, with the exception of the face and head, an indemnity must be paid for it with the exception of Al-Jaa’ifah. This indemnity may increase to more than the indemnity for Al-Jaa’ifah (the deep belly wounds) or decrease from it, but it is not considered as Al-Jaa’ifah because the offender did not intend a Jaa'ifah wound.”

Allaah knows best.