Sheikh Hânî al-Jubayr, judge at the Jeddah Supreme Court
In Islamic Law, the sentences handed down by the courts are of two kinds – prescribed punishments and discretionary punishments.
Prescribed punishments are those that are set forth for us by the sacred texts for specific crimes. We have, in Islamic Law, prescribed punishments for crimes such as theft, drinking, fornication, and adultery. These sentences cannot be overturned once they are given nor can they be abolished outright. They must be carried out whenever the evidence determined by Islamic Law for proving those crimes is established before a judge in a court of law.
Any attempt to overturn such sentences after they have been issued would be tantamount to overturning Islamic Law. Allah says: “So judge between them with what Allah has revealed and do not follow your desires instead of what has come to you of the truth.” [Sûrah al-Mâ’idah: 48]
Discretionary punishments, on the other hand, are for crimes where Islamic Law has prescribed no specific punishment. This is, indeed, the case for most crimes. Sentencing, in these cases, is left up to the discretion of the judge or the legislative authorities. Any punishment that is given for crimes such as libel, slander, and sexual offences of a lesser degree than fornication or adultery, would necessarily be discretionary punishments. Likewise, the punishments meted out for breaking laws that are imposed by the state for the public welfare – traffic laws for instance – would be of a discretionary nature.
Sentences of this kind are, from the start, determined by the judge in consideration of the general welfare. Therefore, it falls within the jurisdiction of the state to issue a pardon in these cases when that is seen to be in the general welfare.
Sins were committed during the time of the Prophet (peace be upon him) without his punishing the perpetrators of those sins. These sins, of course, were not of those for which Islam had imposed a prescribed punishment. There was the case where a man and a woman got together and engaged in everything with each other besides actual sexual intercourse. There was also the instance where Hâtib b. Abî Balta`ah wrote to the enemy informing them of the Prophet’s military initiatives against them. In neither case were the perpetrators punished.
And Allah knows best
Source: Islam Today