Tutorial 3- Bunuh and Mangsa

Legal Maxim
Islamic legal maxim refers to general principle of Islamic Law which is presented in a
simple form and most of it only consists of few words but provides a comprehensive
meaning.
Based on the facts, the most appropriate legal maxim would be Matter are
determined according to intention.
The meaning of this maxim shows that an act of any human being is judged based on
the intention or the purpose it seek to have effect. It means the effect to be given to any
particular actions must be in accordance with the intent underlying such actions. The subject
matter of the maxim, which is intention, is defined as the direction of will towards a persons
action.
The maxim is originated from 2 hadiths of PM which states that, (1) deeds are judge
by the intention and every person is judged according to his intention and (2) there is no
deeds to those who have no intention.
Applying to the situation, it can be seen that Bunuh have the intention to murder
Mangsa. This is shown when he had stabbed Mangsa 5 times at the chest and he also had
done the act with a deadly weapon which is the long and sharp kitchen knife.

Criminal Liability
For the criminal liability, there are some issues that can be raised. First, whether
Bunuh is liable under Qisas for an offence of intentional murder and whether Bunuh may
raise the defence of minority and provocation to escape the liability?
Intentional murder refers to when a person wilfully and with intention of causing
death makes another person the aim of his action which usually is fatal and that person dies in
consequence of the action.
For the first issue, in order to determine whether Bunuh have committed intentional
murder, 4 elements must be fulfilled.

Elements:
First, the victim must be a living human beings. Based on the facts, Mangsa is a
human being besides she also must be a protected person in the country which she resides.
Second, Mangsa must have died as a result of the action of Bunuh. Based on the facts,
Mangsa had died due to blood loss. However, the loosing of blood was caused due to being
stabbed 5 times at the chest by Bunuh. Therefore, the action of Bunuh, may be considered to
have caused Mangsa to die. Bunuh had commenced the Rukun Adabi by the action of
stabbing Mangsa which cause him to lose blood and eventually die. Third, Bunuh must have
wilful intention of causing death of Mangsa. The significant the element of intention can be
seen in Surah al Ahzab (33:5) there is no blame on you if u make mistake as what
matters is the intention of your heart and Surah al Nisa (4:93)-If a man kills a believer
intentionally his recompense is hell. There are 3 ways in order to proof the element of
intention of Bunuh. First is through the admission and confession of Bunuh. The confession
must be gained wilfully without coercion. Second, the intention may be proof through the
weapon used by Bunuh. Based on the facts, he had used a naturally deadly weapon, which is
a long and sharp kitchen knife. If he had no intention to kill, he may just grab any small
stones or hit Mangsa by gestures. Besides, circumstantial evidence also may be reliable such
as method of murder and whether there is a provocation and cooling period. Based on the
facts, Bunuh had stabbed Mangsa 5 times. The number of stabbing caused shows that he had
the intention to kill. Besides, Bunuh had the intention to kill as he was angry because that
Mangsa always taunt him. Even though there is an element of provocation however the
element cannot be raised as there is a cooling period when Bunuh had entered into the house
and it takes some times to attack Mangsa.

To proof Intentional Murder:

Besides, there are also 2 ways in order to proof intentional murder generally. First,
through the confession of Bunuh. Such confession must be done explicitly with free consent
without coercion. Second, it also can be proven by the testimony of 2 eye-witnesses who are
adult, sane and credible which is abstain from committing major sins. Based on the facts,
there is only 1 witness which is Saksi, therefore the testimony by him cannot be proof.

Punishment
As all of the elements has been fulfil, Bunuh may be liable on a punishment of Qisas
for intentionally murdering Mangsa. Qisas refers to the punishment of retaliation where in
this case as Bunuh had murdered the Mangsa, therefore he also must be killed in return if he
was found liable. However such punishment may be remitted only if the family of the victim
pardon him, and as a return Bunuh have to pay diyat, or known as blood money for a
compensation. This punishment has been stated in Surah Bakarah (2:178-179)-The law of
equality is prescribe to you in case of murderif any remission is made, grant any reasonable
demand, Surah Maidah (5:45) life for a life, tooth for a toothif anyone remits the
retaliation in charity, it is an act of compensation and based on the Hadiths of PM which
states (1) We shall kill the person who kills another person and (2) He who commits murder
may later be kill, demanded diyat of 30 camels 3 years old, 30 camels 4 years old and 40
pregnant she camels.
On the other hand, Bunuh may raise the defence of minority as at the time he
committed the act, he was just 13. This defence may be strengthen by Surah Al Nur (24:59)and when the children among you reach puberty, let them ask permission [at all times] as
those before them have done and a hadith of PM which states - 3 persons who are not
accountable for the criminal liability arechild until he reached puberty. A child is said to be
an adult either by attain a certain limit of age of puberty. Imam Malik, Shafie and Hambali
opine that a child become adult by attaining the age of 15 years for both male and female, but
according to Hanafi, a female becomes adult by attaining the age of 17 years while a male
child is 18 years old.
As a conclusion, therefore, the defence may be successful thus Bunuh may not be
liable under Qisas for causing intentional murder of Mangsa.