كِتَابُ الْقِصَاصِRetaliation (Qisas)

² His statement: “The blood of a Muslim is not lawful” etc.: Al-Hafidh Abu Al-Hasan Ali Al-Mufaddal Al-Misri Al-Maliki deduced from this Hadith that one who abandons prayer out of laziness, without denial, is not killed. The Hanafis hold this view, stating that one who deliberately abandons prayer out of laziness is a sinner and is imprisoned until he prays, because he is imprisoned for a human right, so the right of Allah is more worthy. It is said: He is beaten until blood flows from him. According to Al-Shafi’i, he is killed for missing a single prayer as a legal punishment, or it is said: for disbelief. (Umdat al-Qari and Al-Durr al-Mukhtar, excerpted from them). ¹ His statement: “a life for a life”: This refers to retribution. Abu Hanifah and his companions deduce from its generality that a free person is killed for a slave and a Muslim for a non-Muslim protected person, while Al-Shafi’i holds the opposite. Our position is supported by His statement, the Exalted: And We ordained for them therein that a life is for a life (Al-Ma’idah: 45). The implication derived from His statement, the Exalted: the free for the free, the slave for the slave (Al-Baqarah: 178) is not considered by us, especially since the explicit text exists, and it is agreed that there is no implication in the rest of the verse regarding His statement: and the female for the female (Al-Baqarah: 178), because a man is killed for a woman by consensus. (Nayl al-Awtar, Al-Durr al-Mukhtar, and Al-Mirqat, excerpted from them). It is said in (Al-Durr al-Mukhtar): We have the generality of His statement, the Exalted: that a life is for a life (Al-Ma’idah: 45), which abrogates His statement, the Exalted: the free for the free (Al-Baqarah: 178), as narrated by Al-Suyuti in (Al-Durr al-Manthur) from Al-Nahhas from Ibn Abbas, that it is a specification by mention, so it does not negate what is beyond it. Otherwise, it would necessitate that a male be killed for a female, and no one holds this view. ² His statement: “a married person who commits adultery”: The married person here refers to the muhsan, meaning a responsible free person who has consummated a valid marriage and then committed adultery. The Imam stones him, and this is not for individuals to do. This is [Agreed upon] As for a responsible unmarried person, if free, he is lashed one hundred times, and if a slave, fifty times. (Nayl al-Awtar and Al-Mirqat, excerpted from them).

³ His statement: “the one who abandons his religion, forsaking the community”: The one who abandons his religion refers to the one who exits it, and forsaking the community is an emphasizing attribute, meaning the one who has left the Muslim community and separated from them through apostasy, which is cutting off Islam by word, deed, or belief. He must be killed if he does not repent. Calling him a Muslim warrior is in consideration of his prior state. The scholars have agreed on killing a male apostate if he does not return to Islam and persists in disbelief. They differed regarding killing a female apostate. Al-Shafi’i equates her to a male apostate. Abu Hanifah says: A female apostate is not killed, meaning she is an exception from this generality, because of the general prohibition against killing women and children, supported by the Hadith of Al-Tabarani mentioned later in this chapter. Excerpted from (Al-Mirqat), (Umdat al-Qari), and (Rahmat al-Ummah).

¹ His statement: “or one who intentionally kills a believer”: Meaning he intended to kill him because he is a believer, or to aggravate, or to satisfy his opponent, or unless he is forgiven, due to His statement, the Exalted: Indeed, Allah does not forgive association with Him, but He forgives what is less than that for whom He wills (Al-Nisa: 48). Al-Muzhir said: Meaning if he considered his blood lawful. So it is in (Al-Mirqat), and its elaboration was omitted for brevity.

² His statement: “Do not kill him”: It is deduced from this that the Islam of one under coercion is valid, and if a disbeliever says: I have submitted, or I am a Muslim, he is judged to be a Muslim, even if coerced into Islam. If he is judged to be a Muslim and then reverts, he is not killed due to the possibility of doubt regarding apostasy, which prevents killing. (Al-Mirqat and Al-Hidayah, excerpted from them).

³ His statement: “The Messenger of Allah said: Do not kill him” and what follows: From his prohibition of killing and confronting him again after he repeated that he cut off one of his hands, it is deduced that if a belligerent commits a crime against a Muslim and then embraces Islam, he is not held accountable for retribution. If retribution were obligatory, he would have been permitted to cut off one of his hands in retaliation. So it is in (Al-Mirqat). It is said in (Al-Ashbah wa al-Nazair): As for a protected non-Muslim, Islam cancels what came before it regarding the rights of Allah, the Exalted, but not the rights of individuals, such as retribution and compensation for property, except in certain cases. If a disbeliever commits a crime and then embraces Islam, it does not cancel it. Among them: If he committed adultery and then embraced Islam, and his adultery was proven by the testimony of Muslims, the punishment is not canceled by his Islam; otherwise, it is canceled.

¹ His statement: “Why did you not split open his heart”: This indicates the well-known rule in jurisprudence and legal theory that rulings are based on apparent matters. So it is in (Al-Mirqat).

² His statement: “Will not smell the fragrance of Paradise” etc.: Our scholars said: The dispute with a protected non-Muslim is graver than with a Muslim. So it is stated in (Al-Mirqat).

¹ His statement: “And kills himself, he will be in the Fire of Hell” etc.: It appears that those who did this while considering it lawful are meant. If the general meaning is intended, “eternity” and “forever” refer to a long duration, which can mean either uninterrupted permanence or a prolonged period that eventually ends, as both meanings are used. Therefore, jurists and the people of the Sunnah agree that one who kills himself does not exit Islam. Abu Hanifah and Muhammad said: He is washed and prayed over, and this is the fatwa. Though his sin is greater than one who kills another, Kamal preferred Abu Yusuf’s view that he is washed but not prayed over, based on a narration in (Muslim) that a man who killed himself was brought, and he (ﷺ) did not pray over him. It is said in (Al-Bahr): The verification differed, but Abu Yusuf’s view is supported by the Hadith. I say: It may be said that the Hadith does not indicate this, as it only states that he (ﷺ) did not pray over him. It appears he refrained to deter others from such an act, as he refrained from praying over a debtor, but it does not follow that no one from the companions prayed over him, as there is no equivalence between his prayer and others’. Allah, the Exalted, said: Indeed, your prayer is a source of tranquility for them (Al-Tawbah: 103). Know that this applies to one who kills himself intentionally. If it was by mistake, he is prayed over without disagreement, as stated in (Al-Kifayah) and others. (Al-Mirqat, Umdat al-Qari, Al-Durr al-Mukhtar, and Radd al-Muhtar, excerpted from them).

¹ His statement: “So I have forbidden Paradise to him”: Ibn al-Malik said: This is understood to refer to one who considers it lawful, or that he is forbidden Paradise initially until he faces the consequences of his deed, unless Allah has mercy on him by His grace. So it is in (Al-Mirqat).

¹ His statement: “O Allah, forgive his hands as well”: Al-Turbashti said: Although this Hadith mentions a dream seen by a companion for reflection on its interpretation, the Prophet’s (ﷺ) statement, “O Allah, forgive his hands as well,” is among the narrations we mentioned indicating that eternity does not apply to one who utters the testimony of faith, even if he kills himself. For the Prophet (ﷺ) prayed for forgiveness for the one who harmed himself, and it is not permissible for him to seek forgiveness for one destined for eternal punishment, as he was prohibited from doing so. So it is in (Al-Mirqat).

¹ His statement: “O Anas, the Book of Allah prescribes retribution”: Al-Tahawi said: Since the ruling the Messenger of Allah (ﷺ) issued against al-Rubayyi’ for the girl whose tooth was broken was retribution, and he did not give her a choice between retribution and taking compensation, when Anas ibn al-Nadr objected, he said: O Anas, the Book of Allah prescribes retribution. The people forgave, and he did not rule for compensation. This establishes that what is obligatory by the Book of Allah, the Exalted, and the Sunnah of His Messenger (ﷺ) for intentional acts is retribution. If the victim had a choice between retribution, forgiveness, or taking compensation from the offender, the Messenger of Allah (ﷺ) would have given her that choice and informed her of her options. Do you not see that if a judge is approached by someone entitled to one of two things, and his right is established, he does not rule for one without the other but rules that he may choose what he prefers? If he exceeds that, he fails to understand the ruling. The Messenger of Allah (ﷺ) is the wisest of judges. Since he ruled for retribution and stated it is the Book of Allah, the Exalted, it is established that in such cases, it is retribution and nothing else. Since this Hadith is as we described, the narrations of Abu Shurayh and Abu Hurayrah (may Allah be pleased with them) must be interpreted to mean that he has the choice to forgive, seek retribution, or accept compensation with the offender’s agreement to pay, so that the meanings of these two narrations align with the narration of Anas (may Allah be pleased with him). ² His statement: “Whoever is killed in a melee with stones, whips, or sticks” etc.: Jurists call such killing quasi-intentional. Know that killing initiated without right, which entails retribution, compensation, or expiation, is of five types: intentional, quasi-intentional, mistaken, akin to mistaken, and caused indirectly. The classification is: Killing is either direct or not. If not direct, it is caused indirectly. If direct, it is either intentional or mistaken. If intentional, it is either with a weapon or something that severs parts or not. The former is intentional, the latter quasi-intentional. If mistaken, it is either while awake or asleep. The former is a mistake, the latter akin to a mistake. In detail: Killing that entails the following rulings, retribution, compensation, expiation, sin, or loss of inheritance, is of five types; otherwise, its types are many, like stoning, crucifixion, or killing a belligerent. The first: Intentional, which is striking deliberately with something that severs parts, like a sword, stone, fire, or sharp wood or stone. The instrument of killing is of two types: weapons and non-weapons. Weapons are cutting instruments like swords or knives, and killing with them is purely intentional. Non-weapons, like stones, blunt spears, or similar, if they wound, are purely intentional, as they act like a sword by severing parts. The narrations differ regarding the Imam’s requirement of wounding with iron. In the apparent narration, wounding is not required with iron, as it is made for killing, as Allah, the Exalted, said: And We sent down iron, wherein is great might (Al-Hadid: 25). Likewise, anything like iron, copper, lead, gold, silver, whether it cuts or crushes. Even if killed with a heavy iron object or similar, retribution is required, as if struck with a copper or lead pole. Al-Tahawi narrated from the Imam that wounding is considered with iron and similar, which Al-Sadr al-Shahid said is more correct, preferred in (Al-Hidayah) and others. In (Al-Durr al-Mukhtar): If he killed with a “marr” (a tool used in clay), retribution applies if it struck with the sharpness of iron or its back and wounded, by consensus, as cited from (Al-Mujtaba). If it did not strike with its sharpness but with its back and did not wound, there is no retribution per al-Tahawi’s narration. The apparent narration is that retribution applies without wounding with iron, copper, gold, or similar, attributed to Qadi Khan in (Al-Durar). However, (Al-Khulasah) cites that the Imam considers wounding necessary for retribution, followed by Ibn al-Kamal. In any case, killing with a lead bullet is intentional, as it is like iron and wounds, so retribution applies. But if it does not wound, there is no retribution per al-Tahawi’s narration. The ruling of intentional killing is sin and retribution, with consensus, and no expiation per our view, though Shafi’i says expiation is required. The second: Quasi-intentional, per Abu Hanifah, is striking deliberately with something that is not a weapon nor acts like one in severing parts. Abu Yusuf, Muhammad, and Shafi’i say: Striking with a large stone or wood is intentional. Quasi-intentional is striking deliberately with what usually does not kill, like a stick, whip, or small stone. For them, intentional is striking with intent using what usually kills, and quasi-intentional is with what usually does not. If drowned in little water and died, it is neither intentional nor quasi-intentional. If thrown into a well, from a roof, or mountain with no hope of survival, it is quasi-intentional per Abu Hanifah, intentional per them. The fatwa follows his view, as in (Al-Tatimmah). Abu Hanifah relies on this Hadith, as he (ﷺ) did not distinguish between small and large, ordering generality. The ruling of quasi-intentional per both views is sin, expiation, and heavy compensation on the clan. Quasi-intentional for limbs is intentional, requiring retribution, so there is no quasi-intentional for limbs. The third: Mistake, of two types: Mistake in intent, like shooting someone thinking he is game or a belligerent apostate, but he is a Muslim, or mistake in action, like aiming at a target or game but hitting a person. The fourth: Akin to a mistake, like a sleeper rolling over someone and killing him. The ruling for both mistake and akin to mistake is expiation and compensation on the clan, with no sin in these types. They say: The sin meant is the intent to kill. Killing itself is not free of sin, as one neglected due diligence. This sin is of killing, as neglecting diligence is not sinful unless connected to killing, so expiation is for the sin of killing, even without intent. The fifth: Caused indirectly, like digging a well or placing a stone in public land without permission. If someone dies due to it, the compensation is on the clan, with no expiation or sin of killing, but sin for digging or placing in public land. All aforementioned types of unauthorized killing prevent inheritance if the offender is accountable, except indirect killing, which does not prevent inheritance per our view. Shafi’i says indirect killing follows the rulings of a mistake. (Al-Mirqat, Uqud al-Jawahir, Al-Durr al-Mukhtar, Radd al-Muhtar, Al-Hidayah, Al-Binayah, Al-Kifayah, and commentaries on Al-Kanz, excerpted from them).

² His statement: “There is no retribution except with a sword”: Shafi’i says: He is killed with the same lawful act used. If he dies by that lawful act, fine; otherwise, his neck is severed, as retribution is based on equality. Per our view, retribution is only with a sword, even if killed otherwise. We rely on: There is no retribution except with a sword. “Sword” means weapon. Shafi’i’s view risks excess if the intended result is not achieved by the same act, requiring severance, so excess must be avoided, as with breaking a bone. (Al-Hidayah and Al-Durr al-Mukhtar, excerpted from them).

³ His statement: “Killed a Jew for a girl” etc.: This indicates that a man is killed for a woman, as a woman is killed for him, which is the view of most scholars. So it is in (Al-Mirqat).

¹ His statement: “Their protection is upheld by the least of them” etc.: It is said in (Badhl al-Majhud): “Their protection” means their covenant and safety. “The least of them” means the lowest, even one person. Abu Hanifah interprets “least” as the lowest to distinguish from Muhammad’s interpretation, who took it as a slave, as a slave is the lowest of Muslims. “Grants safety to them” means to the Muslims. “The farthest” means in rank, like a slave permitted to fight. The least is like the greatest, granting safety to whomever they wish. It is said in (Al-Bada’i): Conditions for safety include sanity and puberty, so a madman or child’s safety is invalid per most scholars. Per Muhammad, puberty is not required; a discerning adolescent who understands Islam can grant valid safety. Another condition is Islam, so a disbeliever’s safety is invalid, even if fighting with Muslims. I say: Al-Hafidh said: Al-Awza’I said: If a protected non-Muslim fights with Muslims and grants safety, the Imam may uphold it or return him to safety. Freedom is not a condition for valid safety, so a slave permitted to fight can grant safety by consensus. Does a slave prohibited from fighting grant valid safety? There is disagreement. Abu Hanifah and Abu Yusuf say: It is invalid. Muhammad and Shafi’I say: It is valid, as the Hadith includes the slave, the lowest of Muslims. Abu Hanifah and Abu Yusuf say: The Hadith does not include the prohibited slave, as “least” refers either to baseness or proximity. Baseness is not meant, as the Hadith includes Muslims with: “The Muslims’ blood is equal,” and there is no baseness with Islam. Proximity does not include the prohibited slave, as he is not in the battle line, so not closest to disbelievers. I say: Al-Hafidh said in (Al-Fath): Most allow a slave’s safety, whether fighting or not. Abu Hanifah says: If fighting, it is valid; otherwise, not. I say: I see no difference between the two phrases: “Their protection is upheld by the least of them” and “The farthest grants safety to them.” They seem to mean the same.

² His statement: “A Muslim is not killed for a disbeliever, nor one under a covenant during his covenant”: They agree that if a disbeliever kills a Muslim, he is killed for it. They differ if a Muslim kills a protected non-Muslim. Shafi’i and Ahmad say: He is not killed for it. Abu Hanifah says: A Muslim is killed for a protected non-Muslim, not a belligerent. Among Abu Hanifah’s proofs is the generality of: that a life is for a life (Al-Ma’idah: 45). His evidence includes what al-Daraqutni and al-Bayhaqi narrated from Abdul Rahman ibn al-Baylamani that the Messenger of Allah (ﷺ) killed a Muslim for a person under a covenant and said: I am the most honorable in fulfilling his protection. Al-Tahawi said: This is Ali’s Hadith in full. The part negating a believer’s killing for a disbeliever is: “A believer is not killed for a disbeliever, nor one under a covenant during his covenant.” It cannot mean what Shafi’i claims, as that would be a grammatical error, and the Messenger of Allah (ﷺ) is far from that. It would mean: A believer is not killed for a disbeliever nor a covenanted person during his covenant. Since the wording is “nor one under a covenant,” we know the covenanted person is meant for retribution. It is as if he said: A believer nor one under a covenant during his covenant is killed for a disbeliever. We know the covenanted person is a disbeliever, so the disbeliever the Prophet (ﷺ) prohibited killing a believer for is one without a covenant. There is no disagreement among believers that a believer is not killed for a belligerent disbeliever, and a covenanted disbeliever with protection is not killed for either. We find this often in the Qur’an. Allah, the Exalted, said: Those who no longer expect menstruation among your women, if you doubt, their waiting period is three months, and those who have not menstruated (Al-Talaq: 4). It means: Those who no longer expect menstruation among your women, if you doubt, their waiting period is three months. So, it is with: “A believer is not killed for a disbeliever, nor one under a covenant during his covenant.” They interpreted it, and Allah knows best, as: A believer nor one under a covenant during his covenant is killed for a disbeliever, rearranging the order. The disbeliever prohibited from killing a believer for is the non-covenanted disbeliever. Al-Turbashti said: If the meaning were not as our colleagues claim, the statement would lack benefit, as there is consensus that a covenanted person is not killed during his covenant. Our scholars said: When narrations differ, as Shafi’i, Malik, Ahmad, and others relied on Ali’s Hadith in Bukhari (the document Hadith), and al-Tahawi addressed its text, analogy must be used, which supports us. The sanctity of protected non-Muslims’ blood and property is established by consensus, with many clear narrations, such that a thief among them is punished, an adulterer with their women is punished, and a slanderer against them is punished. Thus, killing for their sanctity is more appropriate. This is our view and that of al-Nakha’i and al-Sha’bi. (Rahmat al-Ummah, Al-Mirqat, Tansiq al-Nizam, Nayl al-Awtar, and Ma’ani al-Athar, excerpted from them).

³ His statement: “Ibn Hibban deemed him trustworthy and listed him among the trustworthy, and he is a well-known Follower”: If so, his Hadith is authentic. A mursal report is evidence per our view, Malik, Ahmad, and most scholars. Al-Tabari cited the consensus of the Followers on this. He said: This continued until the year 200, when rejecting mursal reports emerged, and it was said: Rejecting mursal is an innovation. Ibn Abdul Barr said: Whoever rejects mursal rejects most of the Sunnah. Ibn al-Baylamani’s mursal was narrated through chains from Abu Hanifah, Malik, and al-Thawri, from Rabi’ah. These Imams suffice as examples. It was also supported by the mursal of Ibn al-Munkadir and Abdullah ibn Abdul Aziz, making it evidence. The mursal is not flawed if established through chains that strengthen each other. (Tansiq al-Nizam and Uqud al-Jawahir, excerpted from them).

¹ His statement: “I will not exempt one who kills after taking compensation”: Because the guardian’s right is completely canceled. So it is understood from (Al-Durr al-Mukhtar).

² His statement: “The prescribed punishments are not to be carried out in the mosques”: Because the mosques are primarily for the obligatory prayers and their adjuncts, such as supererogatory prayers, remembrance, and teaching knowledge, as mentioned by Ibn Al-Humam. So it is in (Al-Mirqat).

³ His statement: “And a parent is not to be subjected to retribution by their child”: It is said in (Ikhtilaf al-A’immah): They agreed that if a son kills one of his parents, he is to be killed. They differed regarding if a father kills his child. Abu Hanifah, Al-Shafi’i, and Ahmad said: He is not to be killed for it. Malik said: He is to be killed for it if the killing was purely intentional, like laying him down and slaughtering him. The mother is like the father, and the paternal and maternal grandparents are like the parents, as narrated by Al-Burjandi. So it is stated in (Al-Mirqat). It is said in (Al-Durr al-Mukhtar): Because they are the cause of his life, so he cannot be the cause of their death. Therefore, the compensation is obligatory on the father’s property over three years per our view, as this is intentional, and the clan does not bear the responsibility for intentional acts. Al-Shafi’i said: It is obligatory immediately, like the compensation for reconciliation. (Zayla’i and Jawharah).

¹ His statement: “He exacted retribution from a father for his son”: Meaning, he took retribution for him. Retribution is retaliation. “But did not exact retribution from a son for his father.” They said: The wisdom in this is that the parent is the cause of the child’s existence, so it is not permissible for him to be the cause of their non-existence. So it is in (Al-Luma’at).

¹ His statement: “A man killed his slave” etc.: Our position is that a free person is killed for another’s slave but not for his own slave, as his slave is his property, so he cannot claim against himself, but expiation is upon him, as in (Al-Jawharah). Our evidence is these narrations. Al-Shafi’i and Malik said: A free person is not killed for a slave, even if it is another’s slave, due to His statement, the Exalted: the free for the free, the slave for the slave (Al-Baqarah: 178). This is a reciprocal statement, implying that a free person is not killed for a slave. Also, a free person is an owner, and a slave is owned, so there is no equality between them, and retribution relies on equality. We rely on general statements like His statement, the Exalted: And We ordained for them therein that a life is for a life (Al-Ma’idah: 45), His statement, the Exalted: Prescribed for you is retribution (Al-Baqarah: 178), and his (ﷺ) statement: Intentional killing requires retribution. There is no conflict with what was recited, as it has a qualified reciprocity, while what we recited has absolute reciprocity, so it is not restricted by the qualified one. Moreover, the reciprocity of free for free does not negate free for slave, as it only mentions part of what the general includes, agreeing with its ruling, and that does not necessitate specifying what remains. Do you not see that He reciprocated female for female and male for male, yet that does not prevent reciprocating male for female, and similarly, it does not prevent reciprocating slave for free, such that a slave is killed for a free person by consensus, and vice versa. If it prevented that, it would prevent the reverse as well. (Al-Mirqat, Radd al-Muhtar, and commentaries on Al-Kanz, excerpted from them).

² His statement: “So he castrated him” etc.: It is deduced that a free person’s limb is not cut for a slave’s limb by agreement, meaning there is no retribution for it per our view and Al-Shafi’i’s. Therefore, it is said in (Al-Hidayah): There is no retribution between a man and a woman for what is less than life, nor between a free person and a slave, nor between two slaves, contrary to Al-Shafi’i in all of that except for a free person cutting a slave’s limb.

¹ His statement: “If the people of Sana’a conspired against him, I would kill them all”: Therefore, it is said in (Al-Hidayah): If a group intentionally kills one person, retribution is taken from all of them.

¹ His statement: “The one who killed is to be killed, and the one who held is to be imprisoned”: The Hadith indicates that the one who holds the victim while the killer kills him is not subject to retribution, and his act is not considered participation such that it would be a case of a group killing one person. Rather, what is obligatory is only his imprisonment. The author of (Al-Bahr) narrated this view from both parties, meaning the Shafi’is and the Hanafis. They deduced it from the mentioned Hadith and report, and His statement, the Exalted: So whoever transgresses against you, transgress against him in the same manner as he transgressed against you (Al-Baqarah: 194). The mentioned imprisonment is left to the Imam’s discretion regarding its duration, as the purpose is discipline, not intended to last until death. So it is in (Nayl al-Awtar). It is also understood from (Radd al-Muhtar).