Report No. 35
B-Types of illegal homicide under Muslim Law
For the purpose of punishment, Muslim Law classified illegal homicide into 5 types, which were as follows:-
Type of homicide
|Qatl-i-Amd.||1. Wilful homicide-It implied intention to kill followed by a voluntary act.1 It was defined as "homicide committed by a responsible person (i.e. a sane and adult person) wilfully striking another person, with a mortal weapon, or something that serves as such, like a sharp piece of wood, a sharp stone or fire. " Proof of intention was material, but once it was proved, there was no distinction between sudden and provoked homicide and cold-blooded murder.2-3 Mention of the instrument actually used was regarded as significant in finding out the intention. Use of some blood-drawing instrument and the consequential death of the victim was regarded as wilful homicide.4 There was much difference of opinion regarding the instruments considered as mortal.5 But, generally speaking, killing by biting, drowning, successive blows with a whip or a stich, exposure to cold or to the sun, throwing from the roof or top of a hill or into a well or strangling or poisoning was not considered wilful homicide. And confining the victim till the victim died from hunger, was not wilful homicide. Nor was putting the victim alive into a grave or killing with a beast, etc.6
(a) Death sentence;
(b) Retaliation by the family of the victims was permissible also*, subject to certain restrictions**;
(c) Exclusion from inheritance to property of person slain.
|Shabath-Amd.||2. Quasi-deliberate homicide-Here the act was voluntary, but the instrument was not considered as one endangering life, so that the intention to kill could not be presumed. Intention to kill is the factor which distinguished wilful homicide from Quasi-deliberate homicide.7||Punishable by blood money (Diyut) and also by expiation and exclusion from inheritance*.|
|Qatl-i-Khata.||3. Erroneous homicide i.e. where there was an error in the act or in the intention. Illustration of the former error is an arrow shot at a mark, but actually hitting a man. Illustration of the latter is an arrow shot at an object mistaken to be an animal, and actually a human being.8||Punishable with Diyut (blood money) and also by expiation or exclusion from inheritance.*|
|Qati-i-Qaim.Maqam-al-e-khata||4. Involuntary homicide-Example given is a sleeping person's falling on another and killing him thereby, or death occasioned by the accidental fall of a brick or a piece of wood from the hand of a person.9||Punishable with blood money (Diyut), and also by expiation or exclusion from inheritance.|
|Qatl-ba-Sahub||5. Accidental homicide-Example given is a person digging a well or setting up a stone, in ground not belonging to him, where another is killed by falling into the well or over the stone.10-11||Punishable with blood money only.** (Expiation is not incumbent, and exclusion is not incurred. Fine is, however, payable in view of illegality of the act).|
1. Harrington's Analysis of Bengal Laws and Regulations, (1821), Vol. I, p. 251.
2. Printed Reports of the Sadr Nizamat Adalat Trials, No. 65 of 1805 and 1 of 1806.
3. Harrington's Analysis of Bengal Laws of Regulations, (1821), Vol. I, p. 251, f.n. 3.
4. Bengal Revenue Consultations dated December 30, 1789, cited in Banerjee, Background to Indian Criminal Law, (1963), p. 39, top; Harrington, Vol. I, p. 252, f.n. 1 and 253.
* Harrington, p. 257.
** For details of "retaliation", see Harrington, Analysis, (1821), pp. 263-266.
5. Banerjee, Background to Indian Criminal Law, (1963) p. 39, top, citing Bengal Revenue Consultations dated November, 28, 1788 and December 30, 1789, Harrington, Vol. I, p. 253.
6. Harrington Analysis, etc., (1821), Vol. 1, pp. 253-256.
7. Harrington, pp. 251, 255, 256.
8. Harrington, Analysis, etc., (1821), Vol. I, p. 252 and Hamilton Hidaya, Vol. 4, pp. 307-309.
9. Hamilton's Hidaya, Vol. 4, p. 277, (London), (1791), and Harrington's Analysis, etc., (1821), Vol. I, p. 252.
10. Harrington, p. 253.
11. Reference to the Fatawai-i-Alam giri, IV, 503 to 553 are cited in S.P. Sangar Murder and its punishment during the reigns of Shahjehan and Aurangzeb, (1945) 8 Indian History Congress Proceedings 289.
* Harrington, p. 258.
** Harrington, Vol. 1, p. 259.