O bjection.— Highway robbery committed on a Moofi&mln* is
is not an occafion of punifhment any more than where it is commit-
tedupon a prohibited relation; and as the circumftance of a prohibited
relation being of a caravan robbed would occafion the remiffion of punifhment,
it would alfo follow that, the circumftance of a MooMmin
being in the fame caravan is likewife an occafion of punifhment being
remitted: this, however, is not the cafe, as by the commiffion of a
robbery upon a caravan punifhment is incurred, although there be .a
Moojlamin along with it.
R e p l y .—-Highway robbery committed on a Moojlamin is not an
occafion of punifhment, becaufe of a doubt exifting with refpect to
the protedtion of his life and property: but this reafon is reftricted tie-
cnliarly to a Moojldmin.— It is otherwife where a prohibited relation
happens to be in the caravan; fince, from his being there, a doubt
arifes refpedting the cujiody, as a whole caravan conftitutes.one fingle
cuftody, in the fame manner as a fingle houfe, and hence by taking
property from the caravan punifhment is not incurred; in the fame
manner as where a perfon fteals the property of his relation, and alfo
the property of a ftranger, from a houfe in which the relation and
ftranger refide together; in which cafe his hand is not cut off, on
account of a doubt refpedring the cujiody, and fb here likewife.
As punifhment, however, in the cafe under consideration, is remitted,
it follows that the right of the individual takes place, according
to what was before ftated; and hence, if the robber fhould have committed
murder, the avengers of the offence have it in their option either
to put the murderer to death, or to forgive him.
Bobbery If fome of the travellers in a caravan commit a robbery upon others
committed by ■ A
* An alien infidel, who, not being a fixed refident o f the Mujfulman government, has
yet a temporary protedtion from it, (never exceeding the fpace o f one yeary) either as a
fugitive from his own nation, or as a merchant, or as having been deputed on a particulat
commifiion. (T h e y are particularly treated o f in the next book.)
of
of the fame caravan, punifhment is not incurred by them; becaufe a
caravan conftitutes a fingle cuftody, like a fingle houfe; and as, if one
of two perfons living in the fame houfe were to fteal property belonging
to the other out of that 'houfe, punifhment for theft is not to be
inflicted upon him, fo here likewife.
I f a perfon commit a high way-robbery by night,— or by day within
a city, or in Koofa, or Heera * ,— this perfon is not accounted a robber,
on a favourable conftruction.— Analogy would require that he be con-
fidered as n. robber, (and fuch is the opinion o i ShaJeiJ becaufe an
intention of robbery here evidently appears.—-It is recoided from
Aboo Yoafaf that punifhment is incurred by him where he commits
a robbery without the precincts of the city, although it be in the
neighbourhood of it, becaufe there no affiftance can be had: and he
further afferts that if robbers make an affray in the city, during the
day-time, with deadly weapons,— or if they make an affray during the
night-, either with deadly weapons, or with flicks and ftones,— they
aVe to be accounted as highway-robbers, becaufe deadly weapons are too
quick in their effect to admit of affiftance coming, and in the nighttime
affiftance comes flowly.— T h e reafon for a more favourable con-
ftrufiion of the faft here is, that highway-robbery fignifies attacking
people upon the highway, which does not apply to cities, or inhabited
places in their vicinity, becaufe it is evident that in fuch places affiftance
may be procured; the perfons in queftion, therefore, are not highway-
robbers, and hence punifhment is not inflicted upon them.— They muft,
however, be conftrained to make reftitution of the property taken, in
fuch a manner that the claimant may obtain his right: and they are
alfo to be correfted and imprifoned, as they have committed an offence.
If, moreover, they have flain any perfon, profecution for
* Heera means, generally, any inclofurc.— In the prefent cafe it is faid to allude to
a particular M a n zil, (or refting place for travellers,) near ^ y ^ coriftructed by Naman B in
Mandar, in which the lodges, although not touching, are yet all near each other.
Vox. II. T that
A robbery
committed by
nighty (or by
day within an
inhabited
place,) does
not occafion
punilhment;
but the
thieves are
accountable
for the property
they
take, as well
as for any
violence they