Makalah Fiqih Jinayat English Version (Ushul)

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Fiqih Jinayat

CHAPTER I

INTRODUCTION

1.1                   Background Evect

الجنا يا ت plural of words which جنا ية, according to language is significant in terms of crimes against the soul of a person or property or a honour.[1] What is meant by jinayah includes several law: kill, injure, cut off limbs, eliminate benefits such as eliminating one of the body senses.

I.2. The formulation of an issue

1.      What sense Jinayat Fiqh?

2.      How does the law in the Fiqh Jinayat?

I.3. Goal Writing

1.      Knowing understanding Jinayat Fiqh.

2.      Knowing the law in the Fiqh Jinaya

CHAPTER II

EXPLANATION

2.1 Definition Jinayah

 الجنا يا تplural of words whichجنا ية, according to language is significant in terms of crimes against the soul of a person or property or a honour.[2] What is meant by jinayah includes several law: kill, injure, cut off limbs, eliminate benefits such as eliminating one of the body senses.

Murdering devide 3, that is :

1. Deliberate murder

It is planned the murder of someone who maintained and preserved the soul and blood. Then he killed him along with the belief that he would die in his hands.

From the means above, we know that the deliberate murder did not occur except in compliance with the terms below:

a)      The plan of the killers of a desire to commit murder.

b)      He has to know that people who would be killed was a man who woke up the blood and soul.

c)      The instrument used to kill is a tool that typically can be fatal, whether the device is made of iron or not.

If any of the above conditions are not met, then the murder is not included in the category of deliberate murder. Because there is no plan, then there must be punished. And if that happens then the law is mandatory in qisas, that means the killer was also also have been killed, except the murdered family to forgive and subject to pay diyat (penalty) or completely forgiven.

2. Purely accidental

That the inadvertencesomeone just like throwing a thing by not mistaken has on a person to death or he had fallen upon one another so that somebody who ditimpanya was dead.

The scholars have mentioned the definition of sheer inadvertence in the killing said that "a person who intentionally commit a crime in umumtidak deadly, but it turns out the victim could die. What was done was well done because of the resentment and hostility or just give a lesson.

Ibn Rusdy opinion, "he who memeukul someone intentionally, but usually is not lethal blow to someone, the punishment was in the middle between intentional and unintentional murder. These actions resemble the actions intentional murder. Because in this situation or do it by hitting it with no deliberate on the grounds that he did not intend at all to kill. [3]

For example, he has been hitting and slapping someone with hands that usually does not result in death, but that person was dead after he beat her. So that is not intentionally murder law is not mandatory diqisas, only obliged to pay the fine (diyat) that lightly. Penalties are prescribed for my family that kills, not for the kill. They pay by installments within a period of three years, each end of the year his family was obliged to pay a third. And if they can not pay then he should fast for two consecutive months as the killing of innocent or accidental. And according to God's word in the letter of An-Nisa: 92

Which means: "Whoever kills a believer by mistake, then let him memedekakan a believing slave (expiation) and pay the fine (diyat) to the expert who was killed. " And in the paragraph above is required diyat (penalty), not qisos.

3. Such deliberate

Not to intentional someone it to hit lightly, but with the tools (usually not to kill people) as needles, twigs and then the person died with it. And it's not too diqisas, only obliged to pay diyat (fines) are heavy on the family that kills, collected in three years.

2.2 Qisosh

2.2.1 Definition Qishosh

According to Islamic rules' qishash retaliation is similar to the killing actions harm injured limb or  eliminating benefits, according violation.

2.2.2 Qishash there are 2 kinds:

a. Qishash soul is law for the crime of murder.

b. Qishash limbs is the criminal law qishash or injure, harm limbs, or eliminate the benefits of the limbs.

2.2.3. Terms qishash

a.      The killer was baligh and sensible (mukallaf). Not mandatory for small children qishash or a lunatic, because they have not and do not sin.

b.      The killer was not the father of the murdered. No mandatory qishash father kill his son. But compulsory qishash when children kill their fathers

c.       The man who murdered the same degree, moeslem and moeslem, independence with independence, women with women, and slaves with a slave.

d.      Qishash done the same thing, soul with soul, a member by member, such as the eye with eye, ear to ear.

e.       Qishash was done dengn types of goods that have been used by the killing or injuring it.

f.       The man who murdered his soul right to be protected, unless the soul of pagans, adulterers mukhshan, and killers with no rights. This is in accordance hadith the prophet, may not kill a person except for one of three reasons: disbelieve after believing, Zina and murder are not on the right / mayhem '(Narrated by Turmudzi and Nasaâ')

2.2.4 Qishash limbs

Qishash law to criminal limbs in a way that hurt him, has be apointed in the Qur'an, the Sunnah and Ijma'. And in the Qur'an, Allah says:

"And we have set for them in it (At Law) that the soul (rewarded) with soul, eye for eye, nose for nose, ear to ear, tooth for tooth, and wounds (even) equal for equal. Any person who releases (right retribution) it, then release it right (into) the sin for him. Anyone who does not decide the case according to what Allah hath revealed, And they are the ones who do wrong. "(Surah Al-Maidah: 45)

Translation: He said: "O my Lord! I have power only over myself and my brother: so separate us from this rebellious people!".(al-Maidah:25)

Qishosh to members of the body must meet three conditions[4], that is :

a. Safe from harm sustained. That is by cutting the wrists or joints. If not, then qishosh should not be implemented. And no qishosh if part of the wounded were members of the body that is not known limitations, such as body cavity which continued down to the inside of the body, because there is no deadline to be cut.

b. The existence of equations of the body of the victim and perpetrator, as the name and existence of the place. Should not take the right limb when the victim lost his limbs are left, whether it be arms, legs, eyes, ears and similar them.

c. Members of the victim and the perpetrator must be the same in terms of health and perfection. They should not replace the paralyzed arm or leg or cut off in lieu of the foot or hand is perfect.

C. Wisdom qishash

Wisdom qishash is maintained so that the soul of the killer disorders. If someone knows that he would be killed as well. Because the effects of killing people, of course she was afraid of killing someone else. So Maintain soul of the slain. Terpeliharalah man from suicide-murder. In summary, the law impose a comparable and worth it, keep alive the people: and the Qur'an there is no law that imposed for naming the killers are, by the name of the law or legal hanging death, or suicide law, only the name of law and comparable worth with an error. Operations against crimes committed by the government to be evidence of just how high and true Islamic teachings, especially regarding qishash law or criminal law of Islam.

2.3 Diyat

2.3.1 Definition of Diyat

الد يا ت word is the plural of the word د ية the treasure that is destined to victims of crime or guardian. The basis of the provisions diyat (penalty) is in the Qur'an, as-Sunnah and scholarly consensus. [5]

In the Qur'an the word of God mentioned in the letter of An-Nisa: 92:

"And whoever kills a believer by mistake, (let), he set free a believing slave and pay diyatyang handed over to his family (he killed it).

Diyat is a fine substitute for the soul that is not applicable or not done to him penalty kill.

a. If the guardian or heir killed forgive the killing of retaliation soul

b. Killer who accidentally

c. Killer that no element of murder.

2.3.2 Types of diyat, divided into 2:

a. Diyat Mughallazah (heavyfines)

That is fine if it obligatory upon the heirs deliberately pembunhan memaaafkan of retaliation for the murder of the soul as well as fines and penalties for unintentional murders that no elements of murder committed in last haram, forbidden place and murder of a person who still have family connections.

The amount of diyat Mughallazah namely: 100 camels which consisted of 30 female camels entered the age of three four-year, 30 female camels aged four entrance age of five years, 40 female camels are already pregnant.

Diyat mughalazah are:

1.        Deliberate murder of the heir to forgive from retaliation

2.        Murder by accident or similar

3.        Murder is forbidden month Zulqaidah, Zulhijjah, Muharram and Rajab

4.        Murder or Mecca forbidden city

5.        The killing of people who still have family connections like Muhrim, Radha'ah or Mushaharah

6.        Murder mistake with the baton, and hand cambuk

7.        Withholding or make ccat certain limbs.

Required due to heavy fines :

A. Instead of killing law (qisosh) is unforgivable in a deliberate pembunhan really. This must be paid in cash by killing himself.

B. Because the killing "as deliberate" shall be paid by his family, collected in three years, each end of the year must be paid one-third.[6]

b. Diyat Mukhaffah (fine ofmild)

Mukhaffah Diyat required for the killing mistake. Total fine of 100 camels, but divided five: 20 female camels aged one signed two years, 20 female camels into three age two years, 20 males into two age three years, 20 female camels entered the age of three four-year, 20 camels female age of four into five years. These fines must be paid by families who are killed in a period of three years, each end of the year is paid by a third.

If fines are not to be paid by camel, to be repaid with money as much as the price of camels. This is the opinion of half the clergy. The opinion of other scholars, may be paid with the money some 12,000 dirhams (approximately 37.44 kg of silver). If fine was then added a third heavy fines.

Diyat Mukhoffafah are as follows:

1.         Murder a mistake

2.         Murder by mistake medicine for doctors

3.         Withholding or make handicapped and injured limbs

3. Other provisions concerning diyat:

a.         Diyat payment period, for the murder intentionally paid in cash at that time also. While the murder was not accidental or due to mistake paid for 3 years and every third year.

b.        Diyat women half men.

c.         Diyat infidel dhimmis and Muslims muâ'hid half the blood money.

d.        Diyat Jews and the Christians third of blood money Oran g of Islam.

e.         Half the blood money slave Diyat Oran g independent.

f.         Diyat fetus, a tenth of his mother's blood money, 5 camels.

4. Diyat limbs:

Cutting, removing functionality, disfigure or injure members of the agency charged diyat follows:

First: Diyat 100 (one hundred) camels. This blood money for a member of the following agencies:

a.         For a pair of limbs (left and right) if keduan both cut or damaged, ie two eyes, two ears, two arms, two legs, two lips (top down) and both testicles.

b.        For a single limb, such as: nose, tongue, etc.

c.         For the coccyx (the bone where the semen came out male)

Second: Diyat 50 camels. This Diyat for limb pairs, if one of the two (right and left) is truncated.

Third: blood money 33 camels (one third of the diatyang perfect). Diyat this to:

a. Head injury to the brain

b. Injury to abdomen

c. Hand side of the leper

d. Black teeth

First gear is worth five camels. If someone tear down a gear other people have to pay with 5 camels. If demolish 2, must pay 10 cows. What if someone tear down all other gigiorang, whether camels have to pay 5 times the amount of the tooth? Ulama disagree. Some argue: just pay diyat 60 camels (adult). Other scholars say have to pay 5 times the number of camels teeth.

This Swar

People who accuse killing must bring evidence and Oran g, which rejected the allegations must swear. If there is murder an unknown killer, the guardian of those killed could charge to someone atatu a group that has a connection with the murder, which mentions the data.

The data are presented as:

1. The people accused had a fight on the previous days

2. People who are accused of never sicked of heart.

3. The existence of a tool that is only possessed by the accused

4. When news of the accused person if not accept allegations could defend himself with an oath, that he really did not kill.

 Kifarat Assasins

Besides her killer must be killed or surrendered fatherly blood money (fines), then he must also pay kifarat. Diyat is the type of fines as a sign of regret or condolence to the families of the victims. Medium kifarat is the type of fines as a sign of repentance to Allah SWT. [7]

There is also the result of murder is set free kifarat servant of Islam or she must fast two consecutive months. This is in accordance with QS. An Nisaa: 92

Criminal Law in Indonesia

In positive law crime of killing someone set out in Chapter XIX Book II, Articles 338-350 of the Criminal Code, while the sound of Article 338 of the Penal Code are as follows[8]:

"Whoever intentionally depriving another person's life, is threatened, because of the murder, with a maximum imprisonment of fifteen years.

Principal form of crimes against life that is the element of premeditation in the murder or of killing someone either "deliberately unusual" or "deliberately planned".

Usual deliberate intention or intentions ie to kill arise spontaneously, and deliberately planned the purpose or intention or the will of premeditated murder, planned in a state of quiet calm and executed well. The elements of deliberate homicide common are:

Acts of killing, and his actions deliberately, as for the elements are deliberately planned: the act of killing with a planned and deliberate actions. The deliberate killing of ordinary sanctions imposed sanctions maximum imprisonment of 15 years, and deliberately planned the murder legal sanctions imposed sanctions the death penalty or life in prison for ever 20 years. Accountability for crimes under the criminal law that is positive to justificationed
accountable from the maker, the tort, there is no justification or excuse eliminate criminal liability for the creator.

Criminal accountability in foreign terms are also with teorekenbaardheid or criminal responsibility that lead to the criminalization petindak with a view to determining whether a person accused or suspect held responsible for any criminal acts that occurred or not. To be able to dipidananya the offender, required that the crime did it meet the elements specified in the Act. Viewed from the point of occurrence of a prohibited act, a person will be responsible for such acts, if such action is against and there was no justification or suppression of criminal nature against the law for what he did. And viewed from the angle capability is responsible for the only person capable of responsible accountable for his actions.
The criminal action if no errors are the principles of criminal responsibility, and therefore in terms of dipidananya someone who acts as what had been promised, this depends on the question of whether in doing this act he has a fault.

Based on these two criminal liability or fault under criminal law, consisting of three conditions, namely:

1.    Ability responsible or accountable of the creator.

2.    The existence of tort is a psychological attitude of the offender related to his behavior, namely:

a.                   Deliberate

b.                   The attitude of careless or negligent

 There is no justification or excuse eliminate criminal liability for the creator. The ability to discriminate between good deeds and bad, is a common factor (intellectual factor) that is able to distinguish acts that are allowed and which not. And the ability to determine his will according to keinsyafan about the good and bad deeds are a factor of feeling (volitional factor) that can adjust their behavior with keinsyafan upon which is allowed and what is not.

As a consequence of the problems, then of course people who are unable to determine his will according to keinsyafan about the good and bad deeds, he does not have an error when committing a crime, so that people can notaccountable. Because of the ability of constituentsresponsiblemistake, then to prove the last element to be proved wrong again. Given this difficult to prove and require a long time, then the element is considered responsible for the ability secretly always there because in general each inner normal person and be able to be responsible, unless there are signs indicating that the defendant may his soul is not normal . In this case, the judge ordered that a special examination of the defendant's mental state even if not requested by the defendant. If the result is still doubting the judge, it means that the ability of responsible not stop, so the error does not exist and not criminal can be imposed based on the principle not be convicted if there is no problem of the Criminal Code kesalahan.Dalam responsible for this capability contained in Article 44 paragraph 1 which reads:

"Whoever does something which is not accountable to him because his soul defect in growth or impaired due to disability, was not convicted."

If not accounted for was caused by something else, such as his soul is not normal because he was young, then the article may not be dikenakan.apabila judge will run the Article 44 of the Criminal Code, it must first consider whether it has met two conditions as follows:

1.    Terms Psychiartrisie the defendant must have less than perfect sense to change their minds or ill, that state of madness (idiote), which may exist from birth or because of a mental illness and this situation should continue.

2.    Terms psychologically it is a mental disorder at the time the offender must perform a criminal act, therefore it is a mental disorder that arises after the incident, with itself can not be because the defendant can not be punished.

To determine the existence of accountability, one maker of doing a crime there must be "unlawful nature" of the crime, which is a characteristic

The most important of the crime. About nature against the law if it is connected withstate of psychic (soul), maker of the crime he was doing might be "deliberate" (opzet) or because of "negligence" (culpa). However, most criminal acts have the element of premeditation is not the element of negligence. This is feasible because usually, that does something on purpose. In Indonesia intentional criminal law theory that there are three kinds, namely:

      1.            The malignant nature destination

Whereas with the intent that is objective, the perpetrator accountable and easily understandable by the general public.If such intent is there in a crime, the perpetrators deserve criminal penalties. Because of the presence of the malignant nature of this goal, meaning the actors really want to achieve a result that becomes the principal reason for holding the threat of this punishment.

      2.            Deliberate in keinsyafan certainty

This deliberate action exists when the offender, by his actions do not aim to achieve a result which is the basis of the offense, but he knew very well that the consequences would surely follow deed.

      3.            Deliberate in keinsyafan possibilities.

This intent is very clear is not accompanied by the shadow of a certainty will occur due to the related, but just imagine a mere possibility that would result.

Next on negligence because it is a form of error which can be held accountable to produce an answer for the actions someone who does, as stated in Article 359 of the Penal Code which states as follows:

"Whoever by negligence causes the death of another person punishable by a maximum imprisonment of five years or flaws within one year."

Negligence contains two terms, namely:

a.         No hold-guess estimate as required law

b.         Not entered penghati caution as required law

From the above provisions, to be followed two paths, namely first notice requirement does not hold-guessed by appropriate estimators. The second notice requirement does not hold penghati caution in order to determine the existence of negligence. Anyone who do not hold deeds penghati proper caution, he also does not hold to guess would be the result of his behavior.

Furthermore there is negligence and negligence conscious the unconscious. Thus the estimators had not suspected that the need by law consists of two possibilities, namely:

a.    The defendant did not have thoughts that might arise due to the banned because of his actions.

b.    The defendant thought that the result will not occur was not true.Then the third requirement of criminal liability is no justification or excuse eliminate criminal liability for the creator. The basic problem of the elimination of crime, there is division between the "basic justification" (permisibilry) and "basic forgiving" (illegal execuse). With the elimination of one of the basic form of the basic justification of criminal acts is a loss of nature against the law, making it legal / allowed, pembuatanya not be called as perpetrators of crime. But if there is a basic form of basic eraser forgiving then an action remains against the law, but the maker forgiven, so it is not sentenced.

Basic eraser can also be called a criminal or reasons for eliminating the nature of this crime contained in Book I of the Criminal Code, except that there are also the basis of an eraser out of the Criminal Code, namely:

The right of parents to educate their child carers / teachers to the students.

The right position or a jobWhich includes the basic justification of forced-Defense Article 49 paragraph 1 of the Criminal Code, an emergency, the implementation of legislation of Article 50, government positions to Article 51 paragraph 1 In forgiving or fait d'basis of this excuse all the elements of crime, includingagainst the law of a crime still exists, but the specific things that makes the offender can not be held responsible, or in other words eliminate mistakes. Which includes basic forgiving are: lack or illness in power think, forced power (overmacht), forced back, past the limit (noodweerexes), the command post that is not legitimate.

2.4.      Hudud

The word is the plural of hudud Had the language meaning is the prohibition. While the meaning of the term sharia is a punishment that has been determined in syari'atterhadap people who do immoral or a sin to avoid another similar things.

Basic disyari'atkannya Hudud sourced from al qur'an, flexcoders and consensus of the scholars.

Wisdom disyariatkannya hudud is to make people feel wary, mawasdiri, and take lessons from the incident.

This punishment is a bridge to create the benefit of the people, because people who commit sin will feel the deterrent in the presence of this penalty.

2.4.1.      Understanding Zina

In al-Mu'jamul Wasith p. 403 stated: "Zina is one mixed with a woman without going through the contract in accordance with syar'i."

Legal Zina

Zina is prohibited, and it includes the greatest sin.

Allah Almighty says:

"Come not nigh to fornication; true that Zina is an act of evil and an evil way." (Surah al-Israa ': 32)

From Abdullah bin Mas'ud ra, he said: I once asked the Messenger of Allah, "(O Prophet), what is the greatest sin?" He replied, "That thou lift god match for Allah, when He Who has created you." Then I asked (again), "Then what else?" He replied, "You killed your son because he was afraid to eat with you." Then I ask (again). "And what else?" He replied, "You committed Zina with the wife of your neighbor." (Agreed alaih: Bari Fath XII: 114 No. 6811, Muslim I: 90 No. 86, 'Aunul Ma'bud VI: 422 No. 2293 No. Tirmidhi V: 17 No. 3232).

Allah Almighty says:

"And those who do not worship any other God with Allah and do not kill the soul which Allah forbidden (to kill) except with (reason) is right, and do not commit Zina, whoever did this was, surely he's got (retaliation) sin (it), (ie) will be doubled the punishment for him on the Day of Resurrection and he will be eternally in torment, in a state of humiliation. Except those who repent, believe and do good works, so that their crimes be replaced God with virtue. and Allah is Oft-Forgiving, Most Merciful. "(Surah Al-Furqaan: 68-70).

In the hadith Sumarah bin Jundab long about the dream of the Prophet, He Allah said:

"Then we walked and came to a similar building furnaces and there voices sounded a frenzy. Then we look inward, it turns out there are some men and women naked. From below them came the fire and flames when hit, they squeal. I asked, "Who is it" He replied, "The number of men and women naked inside the same building that the fire was the adulterer men and women." (Saheeh: Saheeh Jami'us Shaghir no: 3462 and Fathul Bari XII: 438 no: 7047).

From Ibn Abbas that the Messenger of Allah r.a. said, "It is not a servant of Zina when he as a Mu'min, and he is not stealing, when when he stole as a believer, and he drank no wine ketikaia drank as a believer, and he is not killing (innocent people), when he was killed as a believer. "

In a continued history of the above mentioned:

Ikrimah said, "I asked Ibn Abbas, 'How do I became deprived of faith from him?" Said Ibn Abbas:' Look, he clutched his right hand on his left hand and vice versa, then he took off again, and then when he repented, then faith again ( again) to him so he mencengkeramkan-right hand on his left hand (again) and vice versa. '"(Saheeh: Saheeh Jami'us Shaghir no: 7708, Bari Fath XII: 114 no: 6809 and Nasa'i VIII: 63).

2.4.2. Clasification of People Zina

People who commit Zina or sometimes bikr ghairu muhshan (Virgin or single (for women) and virgin or bachelor (for men)), or sometimes muhshan (those who have wives or husbands).

If the adulterer is a free man, muhshan, mukallaf and without coercion from anybody, then the punishment would be stoned to death.

Muhshan is the person who never committed Jima 'through a marriage ceremony that is authentic. While mukallaf is the person who has reached the age of puberty baligh. Therefore, children and lunatics should not sentenced. Based on the hadith "RUFI'AL Pen 'AN TSALATSATIN (= lifted pen from the three groups)."

From Jabir ibn Abdullah al-Ansari may Allah be pleased that there was a man from the Aslam came to the Prophet and told he that he had actually committed Zina, then he mepersaksikan on him (to say) four times the oath. And then the Messenger of Allah ordered (the companions to prepare for the stoned), and when ready, stoned. And he is the person who has never married. (Saheeh: Saheeh Abu Dawud no: 3725, Tirmidhi II: 441 no: 1454 and A'unul Ma'bud XII: 112 no: 4407).

From Ibn Abbas that 'Umar bin Khattab ra berkhutbah ever before the people, that he said,' Allah has sent Muhammad with the way the truth and she has lowered her book of the Koran. Among the verses that Allah revealed the Quran is the verse of stoning, we have read, meditate and memorize it. Messenger of Allah had stoned and we stoned after the death of He (also). I am worried if the era through which people have walked a long, someone says, "Wallahi, we did not find the verse of stoning in God's Book." So they lost due to leave the obligation that Allah has sent down, whereas the verse of stoning rooted in God's Book that should be applied to person who has been married adulterer, whether male or female, if the evidence is clear, or pregnancy or confession. "(Mutafaqun 'alaih: Bari Fath XII: 144 no: 6830, Muslim III: 1317 No. 1691,' Aunul Ma'bud XII: 97 No: 4395, Tirmidhi II: 442 no: 1456).

2.4.3. Slave Punishment of Zina

If the adulterer is a slave male or female, it does not need to be stoned. But enough scourged fifty times flogging, as it reaffirmed the word of God Almighty:

"And if they have been keeping myself to marry, then they did a heinous act (Zina), then over them half the penalty of punishment independent women who married." (Surah An-Nisaa: 25)

From Abdullah ibn al-Makhzumi Ayyasy, he said, "I never ordered Umar bin Khattab ra (implement laws whip) on a number of slave women for Zina, fifty, fifty lashes." (Hasan: Irwa-ul Ghalil no: 2345, Muwaththa 'Malik, p. 594 no: 1058 and Baihaqi VIII: 242)

2.4.4. People Forced to Zina are not whipped

From Abu Abdurahhman as-Silmi he said: "Umar bin Khatab ra never brought a woman who never overwritten incredible thirst thirsty, then he passed a shepherd, then he asked for water to drink to him. The herders are reluctant to provide drinking water, unless he gave honor to a shepherd. Then he was forced to carry it out. So (Omar) had consulted with his companions to stone the woman, then Ali ra said, 'It's in an emergency, then I think you should release it.' Then Umar implement it. "(Saheeh: Irwa-ul Ghalil no: 2313 and Bayhaqi VIII: 236).
Law of bikr (virgin) doing Zina

Allah Almighty says:

"Women who commit Zina and men who commit Zina, then deralah each of the two hundred Dali flagellation, and compassion for both of them do not prevent you to (run) the religion of Allah, if ye believe in Allah and the Last Day, and let (implementation) their punishment be witnessed by a group of people who believe. "(Surah An-Nuur: 2).

From Zaid bin Khalid al-Juhanni-ra, he said, "I've heard the Holy Prophet fornicate mnyuruh people who have never married whipped a hundred times and exiled for a year." (Saheeh: Irwa-ul Ghalil no: 2347 and Fath Bari XII : 156 no: 6831)

From Ubadah bin Saamit reported that the Messenger of Allah said, "Take me, take it from me; truly Allah has made the way (out) for them; girl (Zina) with a bachelor whipped one hundred lashes and exiled a year, Zina with a widow and widower whipped a hundred times scourged and stoned. "(Saheeh: Mukthashar Muslim no: 1036, Muslim III: 1316 no: 1690, 'Aunul Ma'bud XII: 93 No: 4392, Tirmidhi II: 445 no: 1461 and Ibn Majah II: 852 no: 2550 .)

2.4.5. Penalty of People doing homosexual

If a man put his penis into the anus of another male, then the punishment would be killed, whether they've been married taupun yet.

From Ibn Abbas that the Messenger of Allah said: "Anyone who met you committed the (Prophet) Lot, then kill fa'il (perpetrators) and maf'ulbih (victim)." (Saheeh: Saheeh Ibn Majah no: 2075, Tirmidhi III: 8 no: 1481, 'Aunul Ma'bud XII: 153 no: 4438, Ibn Majah II: 856 no: 2561).

2.4.6.      Legal Person who claimed to have committed adultery with  Fulanah

If someone claimed that he had committed adultery with fulanah, then the man who claims must be punished. Then if the woman, her date colleagues, also confess, then he should be sentenced as well. If it turns out the woman did not want to admit, he (the woman) should not be punished.

From Abu Hurairah and Zaid bin Khalid may Allah be pleased that there are two men who each came to the Prophet peace be upon him hostile and one between the two states, "O Messenger of Allah, decide between us with God's Book!" The other one - the most understanding in between them - said, "Yes, O Messenger of Allah, decide between us with God's Book, and allow me to express something." He replied, "Please express!" Pengutaraannya He continued, "Actually my son is a worker who paid by this guy, then he committed adultery with his wife. Then people explained to me that anaku must be stoned. Therefore, I have paid it by giving one hundred goats and a female slave. Then I never asked the pious people, then they explained to me that my son had suffered a hundred times and exiled for one year duration. While stoning is only ditimpahkan to the wife. "So the Messenger of Allah said," By the Essence of my soul in his hands, I will really decide between the two of you with God's Book; as for sheep and slave girl is then returned (again) to you. " He had his son whack a hundred times and mengasingkannya for a year. And He also told al-Aslam Unais wife first person to see it, if he admitted to adultery dengananak it, it must be stoned. Apparently he confessed, and then stoned by He. (Agreed alaih: Bari Fath XII: 136 No: 6827-6828, Muslim III: 1324 no: 1697-1698, 'Aunul Ma'bud XII: 128 no: 4421, Tirmidhi II: 443 No: 145, Ibn Majah II: 852 no: 2549 and Nasa'i VIII: 240).

2.4.7.      Had Must be Executed if The witnesses are strong

Allah Almighty says:

"And those who accuse women of good things (commit adultery) and they do not bring four witnesses, then deralah they (the accused's) times eighty stripes, and do not accept their testimony for ever. That and they are wicked people. "(Surah An-Nuur: 4)

If there are four Muslim men are free again just watch dzakar (penis), the so and so get into the vulva (vagina), the dauber fulanah like eye shadow into the bottle where the mascara, and like a bucket into the well, then both should be punished.

If three who claimed to witness, while the fourth actually resigned from their testimony, then the three men should be beaten with stripes Sebagimana allegations that have been exposed paragraph four An-Nuur, and based on the following history:

From Qasamah bin Zuhair, he recalled: When the Abu al-Mugheerah Bakrah with no problems reported to the allegations of adultery that 'Umar asked Umar then later brought its witnesses, and then Abu Bakrah, Syibl Ma'bad son, and Abu Abdillah Nafi' give testimony. So `Umar at the time the three of them after giving his testimony, said," the problem is to make Omar Abu Bakrah are in a difficult position. " When Ziyad came, he said, "(Hi Ziyad), if you dare to give testimony, then, God willing, adultery allegations were true." Then Ziyad said, "The act of adultery, then I do not watch her commit adultery. But I saw something bad." Makakata Umar, "Allahu Akbar, punish them." Then a friend lashed three of them. Then Abu Bakrah after whipped by 'Umar said, "(O' Umar), I testify that in fact he (al-Mugheerah) adultery." Then, immediately Umar menderanya going again, however, prevented by Ali ra as he said to Umar, "If thou menderanya again, then rajamlah rekanmu it. "Then Umar was out of it and not menderanya again." (Saheeh isnaad: Irwa-ul Ghalil VIII: 29 and Baihaqi VIII: 334).

2.4.7. Doing Zina with Mahrom

Any person who committed adultery with mahramnya, the law is killed, whether he was ever married or not. And if he had been married mahramnya, then the punishment he should be killed and his property must be submitted to the government.

From al-Bara 'ra, he said, "I never met my uncle who was carrying a sword, then I ask,' (O Pamanda), Uncle going? 'He replied,' I am sent by the Messenger of Allah to see a man who has married his father after his wife died, so I cut his neck and seized his property. '"(Saheeh: Irwa-ul Ghalil no: 2351, Sahih Ibn Majah no: 2111,' Aunul Ma'bud XII: 147 no: 4433 , Nasa'i VI: 110, but in Sunan Tirmidhi and Sunan Ibn Majah without the wording "confiscate their possessions." Tirmidhi II: 407 no: 1373 and Ibn Majah II: 869 no: 2607).

2.4.8.           Having a sex with Animal

From Ibn Abbas that the Messenger of Allah said, "Whoever menyetubui cattle, then let you kill him and kill (others), the animals were." (Hasan Saheeh: Saheeh Tirmidhi no: 1176, Tirmidhi III: 1479, 'Aunul Ma'bud XII: 157 no: 4440, Ibn Majah II: 856 no: 2564

2.5.                 Had the person who alleges adultery (Qodhaf)

By language the meaning of the word 'Qadzf' is' ar-yu-Rom bisy-Syay-'i (accused of something).

While the term is accused of adultery or do liwath (homosexual)

2.5.1. 'Qadzf' divided to two types:

First, 'Qadzf' that the perpetrators be subject to the law of 'hadd' (the penalty for a predetermined size based on the Koran or hadith).

Second, 'Qadzf' that the perpetrators be sanctioned 'Ta'zir' (the sentence imposed by the ruling Islamic government policy)

Form 'Qadzf' that the culprit (Qadzif) subjected to punishment 'hadd' is accused of a Muhshon (who are married) do adultery, or accused him of denying nasabnya liwath.

While the form of 'Qadzf' that the perpetrators be sanctioned 'Ta'zir' is accused in blatantly not related to the things above or by other than the accused.

Law of 'Qadzf' is Forbidden based on texts of the Koran, Hadith and consensus'. SWT berfirman God, "And those who accuse women of good things (commit adultery) and they do not bring four witnesses, then deralah they (the accused's) eighty times flagellation and do not accept their testimony made ​​during-ever. And they are the ones who rebel. "(QS.an-Nur: 4)

In the book 'al-Shahihain' (Sahih al-Bukhari and Muslim), from the hadeeth of Abu Hurayrah, that the Prophet SAW said, "Avoid the seven things that throw .... (one of which he mentions) ... al-Qadzf. "

The scholars also have agreed (ijma ') that' Qadzf 'is one big sin (Kaba'ir).

Ibn Rushd says, "The scholars agree that in addition to mandatory law Hadd, then persaksiannya (Qadzif) fall for not repent. They also agreed that repentance can not undo the penalty 'Hadd. "

2.5.2. Qadzaf there are two kinds of Lafadz:

1.    sharih word (obviously) which contains no meaning other than the alleged adultery.e.g hai adulterer, slut

2.    kinayah Word (satire), which contains commentary accused of adultery.e.g moll, dirty woman.

2.6.Had for Wine Drinkers

If that drinking wine is a mukallaf of his own accord, without any pressure from other people and he knew that the illicit liquor including hukunya, then he must be whipped forty times. Even if the judge deems it necessary to handle it plus the number of cambukannya, it may add up to eighty lashes, based on history below.

From al-Husayn ibn al-Mundhir that Ali ra had whipped Walid bin Uqbah forty times for drinking alcohol. Then he said, "The Holy Prophet never flog (alcohol drinker) forty times, forty times of Abu Bakr, Umar eighty times, and all of it is the sunnah (the Prophet), but this is my favorite Paing." (Saheeh: Muslim Mukhtasar no: 1047, Muslim III: 1331 no: 1707)

When a sipping liquor many times, and had known Had (dicampuk) at each time a drink, then still have another drink, then the authorities consider it necessary he be killed, then it may be implemented.

From Abu Hurairah ra, that the Messenger of Allah said, "If someone was drunk (from drinking wine), then he deralah; if he repeats, then deralah (again) he, if repeated (again), then deralah (again) he." Then on the fourth time, he said, "If he (still) repeat (again), then let you slash his neck!" (Hasan Saheeh: Saheeh Ibn Majah no: 2085, Ibn Majah II: 859 no: 2572 'Aunul Ma' bud XII: 187 no: 4460 and Nasa'i VIII: 314).

2.6.1.      Applying Implementation of Had (For wine drinkers)

Had the punishment could be carried out when strong, supported by one of the following two things (Fiqhus Sunnah II: 336):

      1.            Recognition of the question.

      2.            Two witnesses are fair.

2.7. Penalty  of Ta’zir

2.7.1. Definition

Ta'zir in Arabic construed as an insult. The other is the meaning according to the terminology of Islamic jurisprudence is instructive action against the perpetrators of acts of sin that there is no doubt Had and ta'zirnya. Or in other words is a sentence that are educational as determined by the judge for criminal or immoral pernbuatan actors that sentence has not been determined by the shari'ah or not there is legal certainty. As sex is not the vagina; Stealing under one nisab.
Violations are punishable by this method are that interfere with life, property and peace and tranquility of the community.

2.7.2.Syari'at of Ta'zir

"Do not make the beating more than 10 lashes, but only  Had the execution of punishment that has received the blessing of Allah Ta'ala. "

It was decided that the Caliph Umar Ibn Khattab RA do ta'zir punishment. And penalties that are educational, ie, with shaved head, alienating and hitting.
The priests who totaled three said that punishment must be carried out ta'zir. The imam Shafi'i said that the law ta'zir is not compulsory.

2.7.3. Form of punishment ta'zir

Punishment ta'zir sometimes with words of insult, warnings and advice, and sometimes by deed in accordance with existing conditions. As well as ta'zir was done with beatings, confinement, pasungan, exile, pengisoliran, and suspension.
It should not be sentenced ta'zir to shave his beard, destroying homes,
Revoke a garden plant, damaging laha and trees. As well should not be cut off noses, ears, lips, fingers, hands, because this has never been done by the Companions.

2.7.4.Ta'zir More From 10 lashes

According to Imam Ahmad Al-Layth and a group of priests Ishaq Shafi said: "They should not impose (punishment ta'zir) more than 10 times the flogging Yeng has been determined by the shari'ah"

The imam Malik, As-Shafi'i, Zaid ibn 'Ali, and others, they allow flagellation more than ten times, but not to exceed a minimum penalty of criminal sanctions.

2.7.5. Ta'zir With Death Penalty

Punishment ta'zir to kill the violators are allowed by most scholars. And some others forbid it. When sin is done repeatedly (do away with heavy objects and homosex) according to the main points of the Hanafi madhhab.

2.7.6. Ta'zir With Property seized.

Ta'zir punishment by taking the offender property is allowed. This is the opinion adopted by schools yusuf ash, and was recognized by the imam Malik. and Ibn Qayyim has narrated that the Prophet SAW. ta'zir been sentenced to prohibit the person entitled to the booty of the Muslims, because he commits an offense. And he SAW, give intimation about ta'zir punishment for anyone who does not pay zakat, that is by taking some property from the offender. For that, the Prophet SAW. said, in a hadith narrated by Ahmad, Abu Dauh And Nasa'i:
 "He who gives alms to expect the reward, it will obtain reward, and whoever rejects it is true we'll take it and some of his wealth as a redeemer certainty
our god. "

2.7.7. Ta'zir law is the right of the judge entirely.

Legal ta'zir entirely in the hands of judges. For he that holds the reins of government of the Muslims. And in the book "Subulus-salaam" is mentioned: "The law ta'zir not allowed other than the priest. Except from the toga of people with
following categories:

1.      Father, may impose ta'zir against small children with educational purposes and prevent it from morality is bad. And the father is not allowed menta'zir child who has been baligh, even if their children are categorized idiot.

2.      Employer, the employer is allowed menta'zir good servant concerned with the rights of himself or with God.

3.      Husband, the husband allowed his wife in trouble menta'zir bicker as described in the Qur'an.

2.7.8. Responsibility towards ta'zir

There is no responsibility for the father of her child in order to educate menta'zir. Husband when educating his wife. The judge when educating the condemned man. But the condition, the sentence was not excessive and does not exceed the target set by law ta'zir.

When excessive punishment in an effort to educate him, judge, husband and father, classified those who go in mayhem. Therefore he must take responsibility for what he did

2.8. Thieft Law

- عن عائشة رضي الله عنها قالت: قال رسول الله - صلى الله عليه وسلم -: - لا تقطع يد سارق إلا في ربع دينار فصاعدا - متفق عليه. واللفظ لمسلم. ولفظ البخاري: "تقطع اليد في ربع دينار فصاعدا" وفي رواية لأحمد "اقطعوا في ربع دينار, ولا تقطعوا فيما هو أدنى من ذلك"
1228. From 'A'ishah that the Messenger Shallallaahu' alaihi wa sallam said: "It should not be cut off the hands of a thief, except for a quarter dinar or more." Muttafaq lafadznya upon him and according to Muslim history. According Lafadz Bukhari: "The hand of a thief cut (if taken for a quarter dinar or more." According to the history of Ahmad: "Cut if taking a quarter dinar and do not cut if it takes more or less than that."

1229 - وعن ابن عمر رضي الله عنهما: - أن النبي - صلى الله عليه وسلم - قطع في مجن, ثمنه ثلاثة دراهم - متفق عليه.

 1229. From Ibn Umar Radliyallaahu 'anhu that the Prophet Shallallaahu' alaihi wa sallam never cut (hand thief) because it takes sebual shield worth three dirhams. Muttafaq upon him.

Allaah says: "Men and women who steal yangmencuri, cut the hands of both (a) retaliation for what they do and as a punishment from God. And Allah is Mighty, Wise (38) And whosoever repented (among thieves that ) after the crime danmemperbaiki yourself, know that Allah accept taubatnya.Sesungguhnya Allah is Forgiving, Merciful "(Al-Maaidah: 38-39)

The necessity of cutting the steal Had ketikaterealisasinya following conditions:

1.      Should the thief a mukallaf (ie baligh and intelligent), has a choice, a Muslim or a kafir dhimmi.

2.      The property stolen is something precious, so it will not be cut for him burglar tools used to kelalaianatau khomer and semisalnya.

3.      The property stolen has reached nisobnya, namely a quarter dinaremas or more, or anything that resembles seperempatdinar price or more.

4.      Theft performed in a state of stealth dantertutup, otherwise it does not cut it, as he yangmerebut, grab, seize and semisalnya, at this kejadianseperti only requires ta'zir.

5.      Property taken from hirznya, by issuing darinya.Hirz: a place that is used to store treasure, he akanberbeda different, according to custom, each of the property hirz special memilikitempat, hirz to property is a house, bank or shop, barn for goats and onwards.

6.      doubtful in the absence of stealing, so do not cut diayang steal the treasure of her parents, nor of him that mencuriharta son and his descendants, not even when one partner's husband isterimencuri, including one who stole karenakelaparan.

7.      Demand for hand victims of the stolen property.

Theft determined by one of the two following cases:

1.      Recognition itself thief twice.

2.      Testimony, with two people bersaksinya fair if he telahmencuri.

2.8.1.Had theft:

A burglar charged with two rights: specific rights, namely property diacuri if any, or the semisalnya and prices if he is damaged, for him also a general right, namely the right of Allah, the Exalted with memotongtangannya when the terms have been completed, or when denganmenta'zirnya -If the requirement is not lengkap.2 cuts had been decided, then his right hand on the boundary yangdipotong wrist, then put kedalamminyak boiling or anything that could stop keluarnyadarah, for him also to restore what he had stolen dariharta or bring a replacement to its owner. Had Syafa'atdiharamkan the theft if it has come to hakim.3-When he returned to steal, then the dipotongdari kirinyalah foot base foot, and if he's still repeating akandipenjara, in ta'zir to repent and do not cut .- Cut pickpocket's hand, that he who takes from sakupakaian or otherwise, which he took in keadaansembunyi well-hidden and the required amount should be sudahmencapai nishobnya; because she included stealing from hirz.
- Nishab theft

: A quarter of a dinar of gold or more, or otherwise yangharganya comparable to a quarter dinar.

- Among the perfection taubat of a thief is to replace the stolen item to its owner when he telahrusak, if he has a spaciousness, to pay the price kepadapemilik, whereas if he was in difficult circumstances, then diakhirkansampai has a spaciousness, and if the goods are stolen is still intact, then the legal conditions repentance is to return it .- Any person who exposed Had obligation, be it theft, zinaataupun khomer drink, then he repented of it before haltersebut up to the judge, the law Had to terbebasdarinya, and he did not disyari'atkan to dismantle aibnyatersebut after covered by God , but what has he harusmengembalikan diambilnya.TINJAUAN LAW AGAINST INTERNET CRIME THEFT LINKED WITH ARTICLE DATAMELALUI KITABUNDAN G-LAW 362 CRIMINAL LAW (Penal Code) Undergraduate Theses from JBPTUNIKOMPP / 2004-09-17 12:51:31 By: Siti Hodijah; NIM : 3.16.00.014, Department of Legal Studies, FakultasHukum, UNIKOMDibuat: 2004-09-17, with 3 fileTindak criminal theft of data via the Internet is tindakpidana form of action to take other people's data yangtersimpan in the Internet without permission from the owner of the data in Indonesia tersebut.Hukum mengenaiperlindungan not have specific rules on other people's data stored in dalaminternet, particularly against acts of criminal data theft melaluiinternet. In the event of criminal data theft via internetdi Indonesia, the rules used to menangkappelakunya is Article 362 the Criminal Penal Code (Penal Code), and therefore the author tried to do research untukmengetahui measures that can be said as a follow pidanapencurian data via the Internet, use of the article 362 Book of the Penal Code (Penal Code) against the perpetrators of pidanapencurian data via the Internet, and legal efforts dapatdilakukan by the data owner in the internet for which data is stolen through internet.Penelitian olehpihak conducted by the writer is descriptive analitisdengan normative juridical approach. As for analyzing datayang generated, the authors did a qualitative juridical so do not use the methods of mathematical and statistical formulas.
Based on research results, it is known that the act pidanapencurian data over the Internet is an act berupaperbuatan take other people's data stored in dalaminternet without permission from the owner of these data is done melaluiinternet, Article 362 the Criminal Penal Code (Penal Code) dapatdigunakan to be able to punish perpetrators of acts of pidanapencurian data over the Internet based on electrical arrest yangmenyatakan that an object even if intangible, namunapabila have economic value or use value for pemiliknyamaka can be considered as objects and can be made the object darisuatu crime. In addition there is beberupa regulations related lainnyayang that can be used in deciding perkaraseperti judge this, although still a draft Law (Draft), namely the Bill and the Bill of Information Technology Trade Secret. Both RUUtersebut can be used by using the interpretation hukumfuturistis / antisipasif. The remedies that can be done olehpemilik data in the internet for which data is stolen by others adalahmelalui two ways: by criminal on the basis of its claim pasal362 the draft Penal Code (Criminal Code) on pencuriandan a civil lawsuit on the basis of Article 1365 Civil Code KitabUndang ( Burgerlijk Wetboek / BW) yaitu attitude unlawfully causing harm to the person who the data has been stolen.

2.9.Understanding of Harabah (robbers)

Harabah is a group of Muslims who moved to hold the chaos at the Darul Islam (Islamic state) to shed blood, loot property of others, damage the honor, destroy crops, and it was meant to oppose Islam, morals, rules and laws that apply. (Fiqhus Sunnah II: 393)

2.9.2. Legal of Harabah

Harabah including at-large criminal conduct (criminal). Therefore, his sentence included the maximum weight penalty.

Allah Almighty says:

"The punishment of those who wage war against Allah and His Prophet and make mischief in the land is: execution or crucifixion, or cut off their hands and feet with opposite sides, or removed from the land (his home). such that (a) an affront to their world, and in the hereafter they might receive a greater punishment. "(Surat al-Maaidah: 33) From Anas, he said," There are a bunch of people from the area came to the Prophet UKL then declared converted to Islam, then they do not feel at home living in Medina (because of heat illness). Then He told them to come to herd camels from the charity, so they drink camel's milk mixed with urine. After they execute (the command), they become healthy, then they come back and kill the apostates camel herders and looting the whole camel. Then he sent (the troops) to pursue them. (After they were arrested), then brought before him, then he cut up their arms, their legs, and gouged out their eyes, then he did not kill them until they die alone. "(Agreed alaih).

2.9.3. Robbers repent Before Arested

 Allah Almighty says:

"Except those who Taubat (among them) before you can master (catch) them:" So know that Allah is Oft-Forgiving, Most Merciful. "(Surat al-Maaidah: 34) Source: Adapted from 'Abdul' Azhim bin Badawi al-Khalafi, Wajiz Fi Al-Sunnah Wal Fiqhis Kitabil 'Aziz, or Al-Wajiz Encyclopedia of Islamic Jurisprudence in the Qur'an and Sunnah Ash-or higher, trans. Ma'ruf Abdul Jalil (Pustaka As-Sunnah), pp. 847-849.

2.10. Understanding Rebels (AL-BAGHYU)

 Rebellion or al-baghyu according to the meaning of the language are:
"... Looking for or demanding anything."

The expression became popular to look for and demand something that is not kosher, either because of sin and injustice. This is as mentioned in the letter of the word of Allah Al A'roof verse 33:

"Say: My Lord prohibits only evil deeds, whether visible or hidden, and sin, violate human rights without the right reasons,

In that sense there are several definitions of terms put forward by the scholars of different schools of thought that redaction.

1.      Opinion of Malikiyah

"Al-baghyu ... is refusing to submit to and obey the person whose leadership has been fixed and is not in immoral actions, in a way to overthrow him, by using reason (ta'wil)

From these definitions, interpret Malikiyah bughat or rebellion as follows:
"Rebellion is a group of Muslims who opposed the view of al Imam al a'zham (head of state) or his representative, by refusing the rights and obligations, and intend to overthrow him.

2.      Opinion of Hanafiyah

Rebellion is ... out of obedience to the Imam (head of state) is right (legitimate) in a way that is not true.

3.      Opinion of Syafi'iyah

Rebellion ... is the release of the group who have the power and the leaders who followed, from obedience to the head of state (Imam), using the excuse (ta'wil) that is not true.

From the definitions put forward by these scholars, see the differences concerning the requirements that must be met in jarimah rebellion, but not in matters of principle. When captured the essence of these definitions, it can be argued that the insurgency is defiance against the head of state (Pe) using kekuatanberdasarkan argumantation or reason (ta'wil).

 Theorem About rebellion

1). Al Quran surat Al Hujuroot paragraph 9

"And if there are two groups of those who believe that war between two irreconcilable ye! But if one violates the agreement against the other, in violation of the covenant, let you fight until the tide back to the command of Allah. If he had receded, make peace between them according to justice, and be fair; indeed Allah loves those who do justice. "

Al Quran surat Al Hujuroot verse 10

"These people believe that real brothers. Therefore make peace (fix links) between the two brothers, and fear of Allah, that ye may receive mercy. "

2.10.1.Fight Rebels

The scholars also agreed that the school of combat and suppress those who rebel against a legitimate government should not be made before they were asked about the cause pembangkangannya it. If they mention the injustice committed by the government and they have the facts correct then the caliph should seek to stop such injustice. After that they were invited to adhere to the caliph. If they do not want to go back, then they fought. This provision is based on the word of Allah in surat Al Hujuroot paragraph 9;

"And if there are two groups of those who believe that war between two irreconcilable ye! But if one violates the agreement against the other, in violation of the covenant, let you fight until the tide back to the command of Allah. If he had receded, make peace between them according to justice, and be fair; indeed Allah loves those who do justice. " {Translation of Al Qur'an Surat Al Hujuroot [49]: 9}

From these it is clear that the sequence of handling cases of rebellion is reconciliation, followed by crushing, not vice versa.

Above have been raised that the people who come out or disobey it consists of three groups. Two groups of them belong to one group Hirobah and again classified as insurrection. The third group are those who rebel against a legitimate government with ta'wil and backed by force of arms.

As for the meaning of ta'wil is a statement containing an explanation of the causes of defiance against the caliph, both reasons are correct or not. Examples of reasons that are not true are the ones who refused to pay Zakat, as Zakat must be given to those whose prayers to appease their souls. The reason is based on the word of Allah in the letter at Tauba verse 103:

"Take alms of their wealth to charity that you cleanse and purify them and mendo'alah to them. Verily ye pray it (into) peace for their souls ... "
{Translation of Al Qur'an Letter at Tauba [9]: 103}

To be considered a rebellion disobedience actions, required to be accompanied with the use and deployment of forces. If the attitude is not accompanied by the use of force shall not be considered as rebellion. For example: a reluctance to membai'at a caliph after he was backed by the Muslim majority, though he invited others to sack the caliph, and not bow to it, or refuse to perform its obligation but is merely an invitation only. In history such as Hadrat Ali refused allegiance to Abu Bakr, although later he membaiatnya. Similarly Ubadah Sa'ad bin Abu Bakr would not allegiance, until he died. Another example of such insubordination Khowarij group of Hadrat Ali's reign. They are not regarded as a rebel, until he realize that his attitude to the use of force. So if it is merely an idea, attitude does not include rebellion.

For the realization of the crime of rebellion, which required an intention of the law against those who disobey. This element is satisfied if a person intends to use force to overthrow the caliph or not obey them. If there is no intention to exit from the caliph, or does not intend to use the power of the act of dissent that has not been categorized as a rebellion.

To be considered out of the caliph, required the perpetrator intends to overthrow the caliph, or do not obey them, or refuse to implement the obligations imposed by syaro '. Thus, if the intent or purpose was to reject disobeying and disobedience, the offender is not considered a rebel. When a dissident do jarimah. Jarimah before mugholabah (use of force) or after completion of the uprising so here do not have any intention to rebel, because in this case he is not punished as a rebel, but as usual jarimah

2.11.Punishment For The Apostate

Distribution of People Apostatess and the punishment. The apostate can not be separated from the three circumstances;

First: They are under the rule of Islam and do not have the strength to defend ourselves.

The scholars of the four schools have agreed that the apostate under Islamic rule and do not have the power: given a grace period to repent. If within the period provided he still will not convert to Islam, he was sentenced suicide.
However, scholars disagree about the grace period provided:

Madhhab Maliki. Opinions are famous among scholars Malikiyah declared obligatory to give a grace period for the apostate to repent for his good men and women, slave or free for three consecutive days. Imam Ibn Qasim believes were given a grace period of three times (chance), although in one day. While a history of Imam Malik states were given a one-time (opportunity), if it refuses to repent then immediately killed without delay.

Shafi'i madhhab. Imam Shafi'i and his companions said the apostate was killed instantly when he refused to repent. However, if the policy is taken to give a grace period of three days later he showed faith, then he was not murdered.

Hanafis. Imam Abu Hanifah agreed with Imam Shafi'i, but he added that if the apostate ask for a grace period, then he was given the opportunity for three days.

Hanbali madhhab. The scholars Hanabilah declared apostates are not killed but after being given a grace period of three days.

Sheikh Abdul Majid Al Masy'abi said, "People commit apostasy punishable by nash Messenger of Allaah alaihi wa Salam and consensus' of the Companions. He was killed in a way beheaded with a sword because the sword is a tool to kill, and apostates should not be burned with fire. "

CHAPTER III

CLOSING

III.1. Conclussion

What is meant by jinayah includes several law: kill, injure, cut off limbs, eliminate benefits such as eliminating one of the body senses

Murdering devide 3, that is :

1. Deliberate murder

2. Purely accidental

3. Such deliberate

Definition Qishosh : According to Islamic rules' qishash retaliation is similar to the killing actions harm injured limb or  eliminating benefits, according violation.

Qishash there are 2 kinds:

1.             Qishash soul is law for the crime of murder.

2.             Qishash limbs is the criminal law qishash or injure, harm limbs, or eliminate the benefits of the limbs.

Diyat الد يا ت word is the plural of the word د ية the treasure that is destined to victims of crime or guardian. The basis of the provisions diyat (penalty) is in the Qur'an, as-Sunnah and scholarly consensus. [9]

Hudud punishment is a punishment that has been determined and established by God in the Quran and Al-Hadith. Hudud punishment is not right God sake only change the punishment should not be exchanged or customized or even dipinda should not be condoned by sesiapapun in this world. Those who violate the provisions of the law of God which has been determined by Allah and His Messenger is included in the class of people who do wrong. God's Word s.w.t.

Badness that must be subjected to punishment hudud are:

1.      adultery, namely perform intercourse without lawful marriage `follow Islamic rules.

2.      Accusing people fornicate (qazaf), namely to make accusations of adultery into a better person holy or denying the allegations offspring and can not be proven by four witnesses.

3.      Drinking wine or intoxicating drink as there is little or a lot, drunk or not.

4.      Stealing, namely the hidden treasures move over from the surveillance or the property of his master without a master agreement with the intention to remove the treasure from the surveillance or the property of their masters.

5.      Apostate, namely people who come out of the religion of Islam, as there is with the deeds or words, or with i `tiqad trust.

6.      Merompak (hirabah), iiatu out a person or group that aims to take the treasure or killing or frightening in a way violence.

7.      Penderhaka (bughat), namely a class of Muslims who oppose the government or running hurt syari `at Islam and Islamic laws.

BIBBLIOGRAPHY

1.      Rasjid Sulaiman, 1989.Fiqh Islam,Bandung:Sinar Baru

2.      Al-Fauzan Saleh, 2006.Fiqh sehari-hari,Jakarta:Gema Insani

3.      http://www.scribd.com/doc/24794089/Qishash-Dan-Diyat accesed at 25th may 2011

4.      Rahman, "A complete description of God's laws (Sharia), Jakarta: PT
Grafindo Persada, 2002

5.      Lutfi As-Syaukani, "Politics, human rights, and technology issues in jurisprudence contemporary ", Bandung: Pustaka Hidayah, 1998

6.      Sayyid Sabiq, "Fiqh Sunnah 10", Bandung: PT. Al-Ma'arif, 1994

7.      http://ikatanwargaislaminalum.com/index.php?option=com_content&view=article&id=288:bab-hukuman-had-bagi-pemberontak&catid=48:kitab-hudud&Itemid=57 accesed at 25th may 2011

8.      http://ngobrolislami.wordpress.com/2011/02/17/konsep-hukum-pidana-islam-jarimah-pemberontakan/ accesed at 25th may 2011

9.      'Abdul 'Azhim bin Badawi al-Khalafi, Al-Wajiz Fi Fiqhis Sunnah Wal Kitabil 'Aziz, atau Al-Wajiz Ensiklopedi Fikih Islam dalam Al-Qur'an dan As-Sunnah Ash-Shahihah, terj. Ma'ruf Abdul Jalil (Pustaka As-Sunnah).

    

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[1] Saleh Al-Fauzan, Fiqh sehari-hari,(Gema Insani,2006)hal 767

[2] Saleh Al-Fauzan, Fiqh sehari-hari,(Gema Insani,2006)hal 767

[3]Saleh Al-Fauzan, Fiqh sehari-hari,(Gema Insani,2006)hal 772

[4]Saleh Al-Fauzan, Fiqh sehari-hari,(Gema Insani,2006)hal 789

[5]H.Sulaiman Rasjid,Fiqh Islam,(Sinar Baru Bandung,1989) hal 399

[6]H.Sulaiman Rasjid,Fiqh Islam,(Sinar Baru Bandung,1989) hal 399

[7]H.Sulaiman Rasjid,Fiqh Islam,(Sinar Baru Bandung,1989) hal 813

[8] Syafrinaldi .Hukum Islam. Vol. VI No. 4. Desember 2006 page 410

[9]H.Sulaiman Rasjid,Fiqh Islam,(Sinar Baru Bandung,1989) hal 399