Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > A- A bequest made in favor of the one who struck him, after the blow and with knowledge of it
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Updated on 25 September 2026 at 3:23 PM
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The fuqaha (jurists) differed on the following case: the designated beneficiary of a bequest wounds the testator, then the testator bequeaths to him after coming to know that he is the one who wounded him, and then dies from that wound. Is the bequest valid or not?
The Hanbalis, in the position of the madhhab (and this is also the view of the Malikis, as will appear later), said: if he wounds him, then the wounded man bequeaths to his assailant, and the wounded man then dies from the wound, his bequest is not voided. Indeed, the bequest made after the wound proceeds from its rightful author in its proper place: nothing supervenes upon it that would void it. It is different if it preceded the wound: the killing then supervenes upon it and voids it, for killing voids what is more binding than itself.
This is confirmed by the following reasoning: if killing prevents inheritance, it is because by killing, the presumptive heir hastens an inheritance whose cause has already come into being; he is therefore confronted with the very opposite of his aim, namely the denial of inheritance, to ward off the evil of killing those from whom one inherits. For that reason, testamentary manumission (tadbir) is likewise voided by a killing supervening upon it. Now this same meaning holds true for a killing supervening upon a bequest: through his killing, the beneficiary may well have hastened the bequest coming into effect.
Killing committed before the bequest differs from it: its author did not aim through it at the hasty acquisition of wealth, since its cause had not yet come into being. Moreover, the testator consents to the bequest in favor of his assailant after the latter's act has occurred against him; and in this matter there is no difference between deliberate and accidental killing, just as there is none in the law of inheritance (Al-Mughni 6/126; Al-Insaf 7/232-233; Kashshaf al-Qina' 4/434; Sharh Muntaha al-Iradat 4/465).
The Hanafis (and the Hanbalis in one view) said: there is no difference between a bequest made before the injury (jinaya) or after it. The bequest only effects transfer of ownership after death: it therefore becomes a bequest to the killer, whether the injury preceded it or followed it. For if the bequest were valid, it would be attached to death; now the beneficiary is a killer from that death onward: no bequest therefore accrues to him.
One also relies on the general import of the previous hadith: in its generality, it draws no distinction between the wound preceding the bequest or following it. Furthermore, what determines whether the beneficiary of the bequest is or is not a killer, for the validity or the invalidity of the bequest, is the day of death (Bada'i' al-Sana'i' 7/339; Mukhtasar Ikhtilaf al-'Ulama' 5/19-20; Al-Hidaya 4/232; Al-'Inaya 16/66; Mukhtasar al-Wiqaya 2/421; Al-Insaf 7/233).
As for the Shafi'is, al-'Imrani said: al-Mas'udi said: our companions differed as to the scope of the 2 views. Some of them said: the 2 views apply to the case where a man bequeaths to another man, and then the beneficiary kills the testator. But as for the case where a man wounds another man, then the wounded man bequeaths to the one who wounded him, and then the wounded man dies of it: the bequest is valid according to a single view, without disagreement.
The fuqaha agreed that whoever kills another by mistake or in a quasi-deliberate manner (shibh 'amd) owes an expiation, namely the freeing of a believing slave; if he cannot find one, the fasting of 2 consecutive months. Feeding has no place in this expiation according to the majority (jumhur), apart from one view reported from the Shafi'is. The proof is the saying of Allah the Most High:
"And whoever kills a believer by mistake, then the freeing of a believing slave and a diya delivered to his family, unless they remit it as charity. If he belonged to a people at enmity with you and was a believer, then the freeing of a believing slave. And if he belonged to a people between whom and you there is a covenant, then a diya delivered to his family and the freeing of a believing slave. And whoever does not find one, then the fasting of 2 consecutive months, as repentance from Allah; and Allah is ever All-Knowing, All-Wise."
Surah An-Nisa, verse 92
Imam Abu Ja'far al-Tahawi (may Allah have mercy on him) said: they agreed on the obligation of expiation upon one who kills a slave by mistake (Mukhtasar Ikhtilaf al-'Ulama' 5/193).
Abu 'Umar Ibn 'Abd al-Barr (may Allah have mercy on him) said: they agreed on the obligation of expiation upon one who kills a believing slave by mistake (Al-Istidhkar 8/215).
Imam Ibn al-Mundhir (may Allah have mercy on him) said: the people of knowledge agreed that upon one who kills by mistake are the freeing of a believing slave and a diya delivered to the family of the slain (Al-Iqna' 1/369). He also said: they agreed that the expiation is due from one who kills by mistake (Al-Ijma' 710).
Ibn Qudama (may Allah have mercy on him) said: the people of knowledge agreed that an expiation is due from one who kills by mistake, whether the slain was male or female. It is due for the killing of the young and the old, whether the perpetrator carried out the killing directly or brought it about through a cause engaging liability for a life, such as digging a well, setting up a blade, or giving false testimony. This is the position of Malik and al-Shafi'i.
Abu Hanifa said: it is not due in the case of indirect causation (tasabbub), for this is not a killing; and because he owes the compensation without having killed directly: the expiation therefore does not fall upon him, just as it does not fall upon the 'aqila (the solidarity group that bears the diya).
Our proof: this indirect cause is like direct action with respect to liability; it is therefore like direct action with respect to expiation. And because it is a cause of destruction of a human being to which liability is attached: the expiation is therefore attached to it, as in the case of a rider whose mount tramples someone.
Their analogy is refuted by the case of the father who compels someone to kill his son: the expiation is due from him without direct action. And the case differs from that of the 'aqila: the latter bears on behalf of another, and no killing nor causation of killing issued from it.
Their statement "it is not a killing" is contested. The qadi (judge) said: the expiation falls upon the witnesses, whether they said "we erred" or "we did it deliberately." This shows that expiation is due for killing by causation in every case, error and deliberateness not being considered in it: for if he intended killing by it, it follows the ruling of error in that qisas is not incurred through it (Al-Mughni 8/400).
The Malikis however stated: whoever compels another to kill a man wrongfully, if the commanded person is among those who can disobey the order, obedience not being owed to him, the commanded person who carried out the killing is executed; if he is under such coercion that he cannot disobey, like the sultan whom one fears would kill whoever disobeys him or inflict harm upon him for disobeying, they are both executed. Our proof for obliging the execution of the direct perpetrator: he killed his like wrongfully, so retaliation is due upon him, the base rule being that of the uncoerced. Our proof for obliging the execution of the coercer when obedience to him is owed: he reduced him to killing another wrongfully, he is the one who drove him to the killing, and the ruling of killing must therefore attach to him, like the 2 false witnesses in a case ending in killing.
Our proof for obliging the execution of the direct perpetrator when he cannot disobey: he killed him to preserve his own life from him wrongfully, so he resembles the one who, starving, kills him and eats him. Our proof that the orderer, when obedience is not owed to him, bears no retaliation: no compelling to the killing issued from him, like the informer (Al-Mu'awna 2/257; Sharh Mukhtasar Khalil 8/9; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi 6/187-188).
The fuqaha differed on the following case: a man coerces a boy or an insane person into killing another; or a boy and a person of sound mind join in killing someone, deliberately or by mistake. Is retaliation taken from the orderer or from the coerced child, or not? And if the diya, or half of it, is due from the boy, is it taken from his property or borne by his 'aqila?
The Hanafis held that if a man orders a boy or an insane person to kill someone, or coerces him into it, no retaliation falls upon either of them: neither upon the orderer, nor upon the boy, nor upon the insane person. The diya of the slain is borne by the 'aqila of the boy or of the insane person, and the boy's 'aqila has recourse for it against the 'aqila of the orderer. Indeed, the word of that man, the orderer, is valid and is executed against himself; the orderer is an offender in his use of the boy and in his ordering him to kill, and he is the one who caused the liability to be placed upon the boy's 'aqila: their right of recourse against his own 'aqila is therefore established. Even if the coerced boy is of the age of reason and obeyed, or if he is an adolescent of confused intellect yet in control of himself, no retaliation falls upon him.
And if a boy orders a boy to kill someone: the diya is borne by the 'aqila of the boy who killed, for the boy is the direct perpetrator of the killing; his deliberate and his accidental killing follow the same rule, so it is borne by his 'aqila. Nothing falls upon the ordering boy, for their words are not held against them: accountability for words rests only on the consideration the Law gives them, and it did not validate their word. And the 'aqila of the boy never has recourse against the ordering boy.
And if a boy and a man, or an insane person and a sound one, or a deliberate killer and an accidental killer join in killing a man: no retaliation falls upon either of them. The diya is borne by the 'aqila of the boy; upon the man who acted deliberately, from his own property; upon the one who erred, by his 'aqila (Al-Mabsut of al-Shaybani 4/550-551; Ahkam al-Qur'an 1/180-181; Fatawa al-Sughdi 2/664; Al-Mabsut 26/185; Al-Bada'i' 7/180; Tabayin al-Haqa'iq 6/159; Al-Fatawa al-Hindiyya 5/53; Majma' al-Damanat 462; Al-'Inaya 15/425; Al-Bahr al-Ra'iq 8/80).
The Malikis held that the father, the teacher, or anyone else who orders a boy, even an adolescent, to kill another: the orderer is executed, not the boy, because of the absence of legal obligation upon him; and half the diya of the slain is borne by the 'aqila of the boy who killed, according to Ibn al-Qasim, for his deliberate act counts as an accident.
If the legally accountable person and the boy each deliberately kill that person, and they kill him without collusion or prior agreement to kill him, neither knowing of the other: the accountable participant with the boy is not put to death for the killing, because it is possible that the boy's throw was the one that killed. He owes only half the diya, from his own property, the other half being borne by the 'aqila of the boy. But if the heirs of the slain claim that he died from the act of the accountable one, they take the qasama oath against him and put him to death, and the half of the diya upon the boy's 'aqila falls away, for only one is killed and becomes entitled by qasama.
And if they kill him by mistake, half the diya is borne by the 'aqila of each (Al-Mudawwana al-Kubra 16/403; Al-Istidhkar 8/51; Tafsir al-Qurtubi 1/386; Al-Dakhira 12/284; Al-Taj wa al-Iklil 5/226; Sharh Mukhtasar Khalil 8/10-11; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi 6/190-191; Tahbir al-Mukhtasar 5/232-233; Manh al-Jalil 9/29).
The Shafi'is distinguish between the boy of discernment and the one without it: if a sane adult coerces an adolescent, or the reverse, into killing someone and he kills him, retaliation falls upon the adult, for its ground exists: a killing of pure aggression. This is if we say "the deliberate act of the boy is deliberate," which is the more apparent view. If we say "it is an accident," then there is no retaliation, for he is the partner of one who erred; and no retaliation falls upon the boy in any case, because of the absence of legal obligation upon him.
The locus of the disagreement as to whether the deliberate act of the boy and the insane person is deliberate or counts as an accident is when they have some form of discernment; otherwise, it is definitely an accident.
It is said in "Al-Rawda": if a man orders a free boy or an insane person to kill someone and he kills him, al-Baghawi said: if they have discernment, nothing falls upon the orderer beyond sin; the diya, aggravated, is due from the property of the commanded one if we say "his deliberate act is deliberate"; if we say "it is an accident," it is borne, lightenened, by his 'aqila. If they have no discernment and they rush to what they were incited to, or if the insane person is violent, then retaliation or the full diya falls upon the orderer, whether he is the guardian or a stranger. And if he orders one of them to kill himself and he does it, retaliation falls upon the orderer.
The Imam said: this is when we say "retaliation is due upon the coercer and the coerced," and we treat them as 2 partners. But if we say "no retaliation upon the coerced," there are 2 views on the obligation of retaliation upon the coercer together with our saying "the deliberate act of the boy counts as an accident."
As for the diya, it falls entirely upon the coercer if we impose nothing upon the coerced; if we impose half of it upon him, half falls upon the coercer and half upon the property of the boy if we say "his deliberate act is deliberate," and upon his 'aqila if we say "it is an accident."
And if an adolescent coerces an adult: no retaliation upon the adolescent, and the 2 views apply to the adult if we say "the deliberate act of the boy is deliberate"; if we say "it is an accident," no retaliation definitively, for he is the partner of one who erred (Rawdat al-Talibin 6/145; Al-Najm al-Wahhaj 8/342; Mughni al-Muhtaj 5/223; Tuhfat al-Muhtaj 10/312-313).
The Hanbalis held that if an adult orders a boy without discernment, an insane person, or a non-Arabic speaker ignorant of the gravity of killing, to kill, and he kills: the orderer is executed, not the direct perpetrator. But if the order had concerned fornication or theft, the legal penalty (hadd) would not be due upon the orderer, for the penalty falls only upon the direct perpetrator, whereas qisas may result from causation: hence it falls upon the coercer and the witnesses in matters of retaliation.
In one view: qisas is due neither upon the boy nor upon the one who coerced him, for the deliberate act of the boy counts as an accident, and the coercer is the partner of one who erred: now no qisas falls upon the partner of one who erred. As for when the boy has discernment: qisas falls neither upon the coercer nor upon the boy of discernment.
Imam al-Mirdawi (may Allah have mercy on him) said: if he orders one without discernment, an insane person, or his slave who does not know that killing is forbidden, to kill, and he kills: qisas falls upon the orderer; such is also the ruling if he orders an adult ignorant of its prohibition to kill. This is the madhhab in all of that, and it is the position of the companions of the school.
Abu al-Khattab however said in "Al-Intisar": if one orders a boy to kill, and he and another kill, qisas would be due upon his orderer and his partner according to one narration; and if the boy escapes it, it is mostly because of his incapacity.
Note (tanbih): the implied meaning of his saying "if he orders one without discernment to kill and he kills, qisas falls upon the orderer" is that if he orders one of discernment to kill and he kills, then qisas falls upon the killer himself. And the implied meaning of his saying "if he orders a grown, sane man who knows that killing is forbidden, and he kills, qisas falls upon the killer" is that no qisas falls upon anyone other than the grown, sane man; this therefore includes the boy of discernment.
A group of killers is executed for the killing of one single person, lest people take license to kill by deliberately banding together to kill one man. But the objector may say: this would only be required if none of the group had killed; whereas if one of them killed, he whose act gives rise to the presumption of loss of life, there is no need for the punishment to be voided so as to become a cause of license to take lives.
And the mainstay of the one who executes the single person for the single person is the saying of the Most High (Bidayat al-Mujtahid 2/299-300):
"And We prescribed for them therein: a life for a life, an eye for an eye."
Surah Al-Ma'ida, verse 45
The fuqaha agreed that if a man deliberately holds another so that someone may kill him wrongfully and he kills him, the killer is executed: he killed his like deliberately and without right. They differed as to the one who holds: is he executed, or imprisoned until his death?
The Hanbalis, in the position of the madhhab: if the one who holds did not know that the killer would kill him, nothing falls upon him, for the death is neither by his act nor by the effect of his act. Likewise if he only held him for play or for a beating: no retaliation upon the one who holds, for he is a cause while the killer is the direct perpetrator: the ruling of the cause-bound drops away before the direct act.
If he held him only so that he might kill him, such as pinning him down while another slaughters him, or opening his mouth for another to make him drink poison so that he dies: the one who holds is imprisoned until he dies. The proof is the saying of Allah the Most High:
"So whoever transgresses against you, transgress against him in like manner as he transgressed against you."
Surah Al-Baqara, verse 194
The killer transgressed by killing, so he is killed; and the one who holds transgressed by detention until death, so he is detained until he dies.
And because of what al-Daraqutni related, with his chain of transmission, from Ibn 'Umar, that the Prophet (may the peace and blessings of Allah be upon him) said:
"If a man holds a man and another kills him, the one who killed shall be executed, and the one who held shall be imprisoned."
Related by al-Daraqutni in his "Sunan" (3270) and by al-Bayhaqi in "Al-Sunan al-Kubra" (15808)
And from 'Ali (may Allah be pleased with him): 2 men were brought before him, one of whom had killed and the other had held the victim; he executed the one who killed and said to the one who held: "You held him for death: so I imprison you in jail until you die." No Companion is known to have opposed him.
And because he detained him until death: the other is detained until death; just as, if he kept him from food and drink until he died, we would do the same to him until he dies (Al-Mughni 8/286-287; Sharh al-Zarkashi 3/30-31; Al-Mubdi' 8/259; Kashshaf al-Qina' 5/612; Sharh Muntaha al-Iradat 6/22-23; Matalib Uli al-Nuha 6/24).
The Malikis, and the Hanbalis in one narration, held that the one who holds is also executed: had he not held him, the killer could not have killed him; and it was through his holding that he was enabled to kill; the killing therefore results from their 2 acts: they are partners in it, and qisas is due upon them both, as if they had both wounded him. And because of the saying of the Most High:
"And whoever is killed wrongfully, We have given his heir authority: so let him not exceed in the killing."
Surah Al-Isra, verse 33
And because he held him for one whom he knew would kill him wrongfully and without right: retaliation must therefore attach to him, the base case being that of one who holds a man over fire until he burns.
Imam Malik said, concerning the man who holds a man for another man who strikes him and he dies on the spot: if he held him while seeing that he intended to kill him, they are both executed for him; and if he held him while seeing that he only intended a beating of the kind people are beaten with, not seeing that he aimed at his killing, then the killer is executed, and the one who holds is punished with the severest punishment and imprisoned for a year, because he held him; capital punishment is not upon him (Al-Istidhkar 8/169; Al-Ishraf 'ala Naka't Masa'il al-Khilaf 4/93-94, item 1437; Tafsir al-Qurtubi 2/360; Al-Mughni 8/286-287; Sharh al-Zarkashi 3/30-31).
The Hanafis, the Shafi'is, Abu Thawr and Ibn al-Mundhir held that the one who holds is punished and bears the sin but is not executed, because the Prophet (may the peace and blessings of Allah be upon him) said:
"The most insolent of people towards Allah is the one who kills other than his killer."
Related by Imam Ahmad in his "Musnad" (16425) and by al-Hakim in "Al-Mustadrak" (8025)
Now the one who holds is not the killer. And because holding is a non-compelling cause: when direct action joins it, liability rests upon the direct perpetrator, as when the one who holds does not know that he will kill him; and as the fornicator is penalized and not the one who held the woman.
Al-Mawardi (may Allah have mercy on him) said: a man held a man until another killed him: retaliation falls upon the killer. As for the one who holds: if the killer was able to kill without the holding, or the slain was able to flee after being held, no retaliation falls upon the one who holds, by consensus.
But if the killer could not kill except through the holding, and the slain could not flee after the holding, the fuqaha differed over the one who holds. The madhhab of al-Shafi'i and Abu Hanifa: no retaliation nor diya upon him; he is only disciplined by way of correction.
Ibrahim al-Nakha'i and Rabi'a ibn Abi 'Abd al-Rahman said: the one who holds is imprisoned until he dies, for he held the slain until he died: he must therefore be repaid with the like, and be imprisoned until he dies.
Malik said: the one who holds is executed in retaliation just as the killer is executed, unless he held him only in play: no retaliation then. Relying on the saying of Allah: "We have given his heir authority" (Surah Al-Isra, verse 33), and on what is related from 'Umar ibn al-Khattab (may Allah be pleased with him): he executed a group for one single slain and said: "If the people of Sana'a had plotted together against him, I would have executed them for him," meaning: if they had acted in concert against him; now the one who holds assisted in the killing. And because the 2 acted in concert in his killing: they must be equal in retaliation, as if they had joined in killing him.
And because the one who, in the state of ihram, holds game has the ruling of the killer applied to him as regards the obligation of compensation for game: if one of the 2 pilgrims in ihram holds the game and the other kills it, they share in the compensation; likewise the ruling of the killer must be applied to the one who holds a human victim as regards retaliation, and they are equal in it. And because holding is a cause leading to killing: nothing prevents the ruling of direct killing from applying to him, like the witnesses who testify before the judge that a man has killed, and who, after his execution, retract: they are executed in retaliation for their testimony even though it was only a cause; such is the case of the one who holds.
Our proof: what is related from the Prophet (may the peace and blessings of Allah be upon him), that he said:
"The killer shall be killed, and the restrainer shall be restrained."
Related from the Prophet (reference not specified in the source)
Abu 'Ubayda said: he means he shall be imprisoned, for "the restrained one" is the imprisoned one; the Prophet intends detention by way of discipline, not detention until death as Rabi'a interpreted it. And because holding is a cause and killing is direct action: when the 2 combine and there is nothing compelling in the cause, as with the witnesses, the ruling of the cause drops by the existence of direct action; just as if a man dug a well and another man pushed someone into it and he died: retaliation falls upon the one who pushed, not upon the one who dug.
And because this killer may reach killing sometimes through holding and sometimes through confinement: now it is established that if he killed him after confinement, the confiner would not be killed; likewise, if he kills him after holding, the one who holds is not killed. And because the ruling of the one who holds differs from the ruling of the direct actor in fornication: if he held a woman until a man fornicated with her, the penalty falls upon the fornicator and not upon the one who holds; the ruling of the one who holds in killing must therefore be like his ruling there: qisas upon the killer, and nothing upon the one who holds; and if he could equal him in qisas, he could equal him in the penalty.
And because holding carries no liability when it occurs alone: it is all the less liable when killing follows it. And because what whose accidental form carries no liability does not carry it in its deliberate form either, like striking with what does not kill.
As for the verse, Allah said: "so let him not exceed in the killing" (Surah Al-Isra, verse 33): excess is that the heir go beyond the killer to one who is not a killer. And the saying of 'Umar (may Allah be pleased with him), "If the people of Sana'a had plotted together against him, I would have executed them for him," is understood of their participation in his killing: for assistance is equality in the act; thereby is answered their analogy with participation in killing. Moreover, the meaning of the rule for participants in killing is that each of them is liable if acting alone: he is therefore liable when participating; now the one who holds is not liable when alone: he is therefore not liable when a killer follows upon his act.
And if holding were equivalent to direct killing, it would follow that if a Magian holds a sheep and a Muslim slaughters it, its meat may not be eaten, as if a Magian and a Muslim joined in its slaughter; yet their consensus on the permissibility of eating it is proof of the difference between the one who holds and the participant. And what they argue from the 2 witnesses is invalid: they compelled the judge to pronounce the killing, whereas no compulsion issued from the one who holds: the 2 cases differ (Al-Hawi al-Kabir 12/83-84; Mukhtasar Ikhtilaf al-'Ulama' 5/121-122; Al-Bahr al-Ra'iq 8/393; Al-Fatawa al-Hindiyya 6/88; Al-Ifsah 2/222-223; Al-Najm al-Wahhaj 8/339).
Abu 'Umar Ibn 'Abd al-Barr (may Allah have mercy on him) said: the one who holds is a helper, not a killer; and the saying of 'Umar (may Allah be pleased with him), "If the people of Sana'a had plotted together against him, I would have executed them for him," may bear both meanings at once: help and direct action. And they agreed that if he had helped him without being present at his killing, he would not be executed for it (Al-Istidhkar 8/170).
And if he left him in a fire from which he could escape, because of its smallness or because he was at an edge of it from which he could get out with the slightest movement, and he did not get out until he died: no retaliation, for such a fire does not usually kill. Is he liable? Two views:
The first: he is not liable, for the victim destroyed himself by remaining in it, as if he had been thrown into shallow water; but he is liable for what the fire touched of him. The second: he is liable, for he brought about the exposure leading to destruction, and the failure to escape does not remove liability; like one who performs bleeding on a patient who then, though able, does not bind up his incision, or who wounds him and he neglects to treat his wound.
The case differs from water: it does not destroy by itself, and this is why people enter it for the major ablution, swimming and hunting; fire, however, destroys even in small quantity. And his ability to escape is known only by his saying "I am able to escape" or the like, for fire has an intense heat: perhaps its heat disturbed him from knowing the means of his escape, or removed his reason by its pain and its terror (Al-Mughni 8/210-211; Al-Kafi 4/59; Al-Mubdi' 8/245; Al-Insaf 9/438; Kashshaf al-Qina' 5/597; Sharh Muntaha al-Iradat 6/9).
The fuqaha agreed that whoever imprisons a man without withholding food or drink from him, and he dies in his confinement, owes nothing: neither retaliation nor diya. But they differed over one who imprisons another in a place and withholds food and drink from him until he dies in confinement: is retaliation taken from him? Is the diya due upon him? Or does nothing fall upon him at all?
Imam Abu Hanifa (may Allah have mercy on him) held that whoever imprisons a man and he dies of hunger or thirst owes nothing: hunger and thirst are inherent in man and are therefore not attributed to the offender, for his initial cause does not lead to destruction; rather he died of another cause, the absence of food and water: there remains only the hand, that is, material seizure, and a free man is not compensated for by the mere hand.
The 2 imams Abu Yusuf and Muhammad (may Allah have mercy on them) held that the diya is due upon him, for it is a cause that led to destruction, like giving poison to drink (Bada'i' al-Sana'i' 7/234-235; Al-Jawhara al-Nira 5/194; Hashiyat Ibn 'Abidin 6/624).
The Malikis said: if he withheld food and drink from him intending his death, he is executed for him. It is also said: he is executed even if he did not intend his death, for the intent to kill is not a condition of retaliation: he undergoes it even if he intended torture rather than killing. Likewise, whoever withholds his surplus water from a traveler, knowing that withholding it is unlawful and that he will die if he does not give him drink: he is executed for him, even though he did not carry out the killing with his own hand (Al-Taj wa al-Iklil 5/222; Sharh Mukhtasar Khalil 8/7; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi 6/184-185; Tahbir al-Mukhtasar 5/227).
The Shafi'is said: if a man imprisons a free man in a house and he dies of hunger or thirst, it is examined: if food was with him and he did not take it out of fear or grief, or he could seek it, even by begging, and did not: no retaliation and no liability upon his confiner, for the confined man killed himself. But if he withheld food and drink from him and withheld his seeking of them until he died, it is examined:
If there elapsed a span in which the like usually dies of hunger or thirst, retaliation is due, for he killed him by what usually kills: it is as if he had killed him with the sword. This span varies according to the condition of the confined man, strength or weakness, and the season, heat or cold: lack of water in heat is not like lack of it in cold.
If a usually fatal span did not elapse and he died: if he had no prior hunger or thirst, it is quasi-deliberate killing. If he had some hunger or thirst, 3 views on retaliation:
The most apparent: if the confiner knew of his prior hunger, retaliation is due upon him; otherwise it is quasi-deliberate, according to the more apparent view, for he neither intended his destruction nor brought about what destroys; like one who gives a light push and the victim falls upon a knife behind him without his knowing: no retaliation. The second: it is deliberate and retaliation is due, for destruction resulted from it, like striking the sick man a blow that kills him but would not kill the healthy one, while ignorant of his sickness. The third: its opposite.
If we oblige retaliation: the deliberate diya is due in full if he knew; the quasi-deliberate diya if he was ignorant. If we do not oblige retaliation, 2 views: the first: the diya is due in full, only retaliation lapsing because of the doubt (shubha); the more apparent, on which most have decisively settled: half the deliberate or quasi-deliberate diya is due.
If he withheld drink but not food, and the confined man did not eat for fear of thirst and then died: definitely no retaliation, and no liability either according to the more correct view, on which al-Baghawi settled, for he destroyed himself; al-Qaffal said: it is due.
If he imprisoned him while caring for him with food and drink, and he died in confinement: if he was a slave, he is liable through seizure; if he was free, no liability at all, whether he died a natural death or by the collapse of a roof or a wall upon him, or by the sting of a snake or the like. If he imprisoned him and stripped him until he died of cold: it is like imprisoning him and withholding food and drink from him.
If he took his food, his drink or his clothes in a desert and he died of hunger, thirst or cold: no liability, for he effected nothing upon him. If he killed him with smoke, by shutting him up in a house and blocking its openings so that the smoke gathered upon him, constricted his breathing and killed him: retaliation is due; likewise if he prevented a man who had been bled from binding up his incision until he died (Al-Muhadhdhab 2/176; Al-Bayan 11/341-342; Rawdat al-Talibin 6/135-136; Al-Najm al-Wahhaj 8/331-332; Mughni al-Muhtaj 5/216-217).
The Hanbalis said: if a man imprisons another in a place and withholds food and drink from him, or one of the 2, for a span in which one cannot survive, until death: retaliation is due, for this usually kills; and it varies with people, season and conditions: the thirsty man in intense heat dies within a short time, and the sated man, in cold and temperate weather, dies only after a long time: this is taken into account.