If a judge sentences a man to death knowingly, qisas becomes due

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If a judge sentences a man to death knowingly, qisas becomes due

The rule of liability being that of actual destruction, the heir may therefore hold liable whichever of the 2 he wishes. If he holds the heir liable for the diya, the latter has no recourse against the 2 witnesses, for he is liable through an act he himself carried out of his own choice. And if he holds the 2 witnesses liable, they likewise have no recourse against the heir according to Abu Hanifa.

Abu Yusuf and Muhammad said: their right of recourse against the heir is established for what they bore, for they were held liable through their testimony while acting in it on behalf of the heir: they therefore have recourse against him for the liability that befell them; as if they had testified to an accidental killing or to property, the judge had ruled, the beneficiary had received, and then they had all retracted and the one testified against had held the 2 witnesses liable: they may then have recourse against the beneficiary (Al-Mabsut 26/181-182; Bada'i' al-Sana'i' 6/284-285).

Imam Ibn Qudama (may Allah have mercy on him) said: if the judge sentences a man to death knowingly and deliberately, and the heir kills him and then admits it: qisas is due; the discussion of it is like the discussion of the 2 witnesses. And if the heir who carried out the killing admits that he knew the witnesses to be lying and that he deliberately killed him: qisas falls upon him; I know of no disagreement over it.

If the 2 witnesses, the judge and the heir all admit it, qisas falls upon the heir, for he carried out the direct act of deliberate and wrongful killing. And nothing should fall upon the others, for they are only causes, and direct action voids the ruling of the cause, like the one who pushes with respect to the one who digs. This case differs from that in which he does not admit: the ruling of wrongful direct killing not being established against him, his existence counts as non-existence.

If 2 men testify against a man to something warranting his execution, and he is killed on their testimony, then they retract

And from 'A'isha (may Allah be pleased with her): "The one with the evil eye would be ordered to perform ablution, then the afflicted person would wash with it" (Rawdat al-Talibin 6/377; 'Ajala al-Muhtaj 4/1594; Tarh al-Tathrib 8/190).

The fuqaha differed on the following case: 2 witnesses testify against a man to something warranting capital punishment; he is executed on their testimony; then they retract and admit that they deliberately lied in their testimony, killing wrongfully. Is qisas due upon them or not?

The majority of the fuqaha, Malikis, Shafi'is and Hanbalis, held that qisas is due upon them, because of what al-Qasim ibn 'Abd al-Rahman related: 2 men testified before 'Ali (may Allah be pleased with him) that a man had stolen; then they retracted their testimony; he said: "Had I known that you did it deliberately, I would have cut off your hands," and he made them pay the diya of his hand (Related by 'Abd al-Razzaq in his "Musannaf" (18460)).

And because they obtained his killing through a cause that usually kills: qisas is therefore due upon them, like the coerced one, and as if they had wounded him and he had died of it (Al-Muhadhdhab 2/177; Al-Bayan 11/356; Al-Mughni 8/213; Al-Kafi 4/18; Majmu' al-Fatawa 20/382-383).

Ibn 'Abd al-Barr (may Allah have mercy on him) said: if they testify to a wound, a killing, or something warranting stoning, and he is executed on their testimony, then they admit the falsehood: retaliation is exacted from them; and if they say "the matter was made ambiguous to us," they pay the diya from their properties. It has also been said: it is a diya from their properties in every case, without retaliation; the first view is the sounder, and it is the view of Ashhab.

If one of the 4 witnesses of fornication retracts before the judge rules on their testimony, they are all flogged with the penalty of slander and the fornication penalty is not applied; it has been said: only the retracting one is flogged. If one of them retracts after the stoning, he pays a quarter of the diya; if a second retracts, half; and so on, by proportion, indefinitely. They incur the penalty of false imputation, and whoever calls them slanderers is not flogged for it. If the witnesses of fornication were more than 4 and some retracted while enough remain to complete the testimony, no compensation falls upon those who retracted. And whoever destroys by his testimony any property and then retracts is liable for what he destroyed; if he was a single witness with an oath, he is liable for half of what was destroyed (Al-Kafi 1/477).

The Shafi'is said: if they testify against a man to something warranting his death, as retaliation, apostasy or the fornication of a married man, the judge rules on their testimony and executes him accordingly, then they retract and say: "we did it deliberately, knowing that he would be killed on our testimony": qisas is incumbent upon them. And if they testify to something warranting amputation, as retaliation or theft, and he is amputated, then they retract and say: "we did it deliberately": amputation is incumbent upon them; and if the wound extends to death, retaliation for the life falls upon them.

Qisas is incumbent upon the witnesses only through retraction combined with the admission of deliberation, not through their mere lying: hence if we were certain of their lying by seeing alive the man whose killing they had testified to, no qisas falls upon them, for it is possible they did not act deliberately. And qisas is not incumbent upon them through retraction unless their testimony removed the heir's act from the sphere of aggression; whereas if the heir admits having known their lie: no qisas upon them, and qisas falls upon the heir, whether they retract or not (Rawdat al-Talibin 6/138).

The Hanbalis said: if 2 or more testify against someone to a deliberate killing, to apostasy where repentance is refused, or if 4 or more testify to the fornication of a married man, or to anything similar among the things warranting death, and he is executed on their testimony, then they retract and admit the deliberate killing: qisas falls upon them. Because of what al-Qasim ibn 'Abd al-Rahman related: 2 men testified before 'Ali (may Allah be pleased with him) that a man had stolen; he amputated his hand, then they retracted their testimony; 'Ali said: "Had I known that you acted deliberately, I would have cut off your hands." And because they obtained his killing through a cause that usually kills: similar to the coerced one. His saying "where repentance is refused": as if they testify that he reviled Allah or His Messenger and the like; unlike the case where repentance is accepted, for he can ward it off through repentance.

Likewise the judge who sentences someone to death knowing the proof to be false and deliberately, and who, after the execution, admits it: qisas falls upon him, for he is in the position of the witnesses: what results from his cause is a deliberate killing, like the killing resulting from the 2 witnesses.

And if the heir who carried out the killing admits that he knew the witnesses to be lying and that he deliberately killed him: qisas falls upon him alone, for he carried out the direct act of killing without right. If the 2 witnesses, the heir and the judge all admit the lie and the deliberate killing: qisas falls upon the heir alone, the direct perpetrator, for he carried out the killing deliberately and wrongfully; and nothing should fall upon the others: they are only causes, and direct action voids the ruling of the cause, like the one who pushes with respect to the one who digs.

And if the heir did not carry out the killing himself, but his agent did: if the agent knew, qisas falls upon him alone, for he is the direct perpetrator; if the agent did not know, qisas falls upon the heir, as if he had carried it out himself. Thus the order is: the knowing direct perpetrator first, then the knowing heir, then the testimony and the judge. And whenever the diya falls upon the judge and the witnesses, it is divided among them equally: upon the judge the share of one of them, for all are only causes.

And if the heir and the witnesses retract, the heir alone is liable, for having carried out the direct killing. And if some of them say "we killed him deliberately" and others "we erred," each speaker meaning himself without the other party; or one says "I killed him deliberately" and the other "I erred": no retaliation upon the deliberate one, for the killing was not fully deliberate on the part of all; the deliberate one owes his share of the aggravated diya, held to his admission, and the one who erred his share of the lightenened diya.

And if each of them says "I acted deliberately and my partner erred"; or one says "we both acted deliberately" and the other "I acted deliberately and my partner erred"; or one says "I acted deliberately and I do not know what my partner did": retaliation falls upon them both, for each has admitted the wrongful killing.

And if one says "we acted deliberately," speaking for himself and his companion, and the other says "we erred," speaking for himself and his companion: retaliation is incumbent upon the one admitting deliberation, held to his admission, and the other owes half the lightenened diya if they were 2. If they were 3 or more and one of them says "we acted deliberately" and another "we erred": no retaliation; the one who said "deliberately" owes his share of the aggravated diya, and the other his share of the lightenened diya. And if he says "we deliberately testified, without intending the killing": the diya simply; and if they say "we erred": the lightenened diya falls upon them (Al-Mughni 8/213; Al-Kafi 4/18; Al-Mubdi' 8/248; Kashshaf al-Qina' 5/601-602; Sharh Muntaha al-Iradat 6/11-12; Matalib Uli al-Nuha 6/11-12).

The Hanafis held that if 2 witnesses testify to a deliberate killing and their testimony is accepted, then they retract: the diya is due from their properties; for the witness is a cause of the killing, and the cause does not entail qisas, like the digging of the well; and because qisas requires equivalence, and there is no equivalence between the cause and the direct act.

Since qisas is not due upon them, the diya is due from their properties if they retract, for their testimony is like an admission of destruction issued by them, and the 'aqila does not bear an admission. And if one of the 2 retracts, he owes half the diya, for each of them is a cause of the destruction of half the life.

Then if the heir retracts along with them, or the man whose killing they testified to comes back alive: the heir of the slain has the choice between holding the 2 witnesses liable for the diya and holding the killer liable; for the killer destroys the life in reality and the witnesses destroy it by legal effect; now destruction by legal effect follows, in liability, the rule of actual destruction: he may therefore hold liable whichever of the 2 he wishes. If he holds the heir liable for the diya, the latter has no recourse against the 2 witnesses, for he is liable through an act he himself carried out of his own choice. And if he holds the 2 witnesses liable, they likewise have no recourse against the heir according to Abu Hanifa.

If the co-heir who did not pardon kills him, is he subject to retaliation or not?

And 'Abd al-Razzaq related, from Ma'mar, from al-A'mash, from Zayd ibn Wahb: a man who had killed a man was brought before 'Umar ibn al-Khattab (may Allah be pleased with him); the heirs of the slain wanted to kill him; the sister of the slain, who was the killer's wife, said: "I have pardoned my share concerning my husband"; 'Umar said: "The man is released from the execution" (Related by 'Abd al-Razzaq in his "Musannaf" (18188)).

Ibn Qudama (may Allah have mercy on him) said: if the co-heir who did not pardon kills him, knowing of his co-heir's pardon and of the lapse of qisas thereby: qisas falls upon him, whether the judge ruled on it or not. Abu Hanifa and Abu Thawr said this, and it is the apparent view of al-Shafi'i's madhhab; another view is also reported from him: qisas is not due, for there is in it a doubt (shubha), because of the very existence of disagreement.

Our proof: he killed a protected person, his like, deliberately, knowing that he has no right to it: qisas is therefore due upon him, as if a judge had ruled the pardon; and disagreement does not cause qisas to lapse: if he killed a Muslim in requital for a disbeliever, we would execute him for it despite the disagreement over executing [a Muslim] for a disbeliever.

As for the case where he kills him before knowing of the pardon: no retaliation upon him. Abu Hanifa said this. Al-Shafi'i said, in one of his 2 views: qisas falls upon him, for it is a deliberate, wrongful killing of one whose killing he has no right to. Our proof: he killed him believing his right in it to be established, the matter remaining by default in force: no retaliation therefore reaches him, like the agent who kills after his client's pardon, before knowing of it. And there is no difference whether the judge ruled the pardon or not: the doubt exists when knowledge is absent and disappears when it is present.

Al-Shafi'i said: whenever he kills him after the judge's ruling, qisas is incumbent upon him, whether he knew of the pardon or not; and we have explained the difference between the 2. And whenever we rule the diya due upon him, either because he has an excuse or because of the pardon already granted concerning qisas: there lapses from it the part corresponding to his own right against the killer in qisas, and the rest falls upon him.

If the heir had pardoned without compensation: what is due goes to the killer's heirs, and nothing falls upon them. If he had pardoned in exchange for the diya: what is due goes to the killer's heirs, and the pardoner's share of the diya falls upon them. It has also been said: the pardoner's share of the diya falls upon the killer [heir]; this is invalid: the right did not remain attached to his person, the diya being due only in his liability, it therefore did not transfer to the killer, as if he had killed his creditor.

Section: if the killer is none other than the one who had pardoned, qisas falls upon him, whether he had pardoned unconditionally or for compensation. This is the position of 'Ikrima, al-Thawri, Malik, al-Shafi'i and Ibn al-Mundhir. It is reported from al-Hasan: the diya is taken from him, but he is not killed. 'Umar ibn 'Abd al-'Aziz said: the judgment of it belongs to the ruler.

Our proof: the saying of the Most High:

"Then whoever transgresses after that, for him there is a painful punishment."

Surah Al-Baqara, verse 178

Ibn 'Abbas, 'Ata', al-Hasan and Qatada said in its interpretation: meaning, after he has taken the diya.

If he finds a man with his wife and kills him

Qisas falls upon the 2 witnesses and the judge, for all are only causes; and if the matter comes to the diya, it falls upon them in 3 equal shares. It is also possible that the ruling attaches to the judge alone, for his causation is more specific than theirs: his ruling is the intermediary between their testimony and the killing, so he resembles the direct actor with respect to the cause.

And if the heir who admits deliberation did not carry out the killing himself but delegated it: one looks at the agent; if he admits knowledge and deliberate wrongful killing, he alone is the killer, for he is the direct perpetrator of deliberate wrongful killing, without coercion: the ruling therefore attaches to him, as if the order to kill had been given other than in this case; if he does not admit it, the ruling attaches to the heir as if he had carried it out himself; and Allah knows best (Al-Mughni 8/213-214, and the previous sources).

The man who kills a man while claiming that he found him with his wife and killed him defending himself, or that the victim entered his home to coerce him out of his money, so that he could only repel him by killing: the case admits 2 situations.

The first situation: he brings no proof, and the heirs of the slain do not acknowledge it

The fuqaha of the 4 schools agreed that if he brings no proof and the heirs of the slain do not acknowledge it, his word is not accepted and qisas is due upon him. Ibn Qudama (may Allah have mercy on him) said: al-Shafi'i, Abu Thawr and Ibn al-Mundhir said this; I know of no dissenter; whether he was found in the killer's home or elsewhere, armed or not.

Because of what Malik related, from Yahya ibn Sa'id, from Sa'id ibn al-Musayyab: a man from the people of al-Sham (the Levant), called Ibn Khaybari, found a man with his wife and killed him, or killed them both; the judgment was perplexing for Mu'awiya ibn Abi Sufyan, who wrote to Abu Musa al-Ash'ari to consult 'Ali ibn Abi Talib about it; Abu Musa asked 'Ali about it, and 'Ali said: this matter did not occur in my land; I adjure you to tell me. Abu Musa said to him: Mu'awiya ibn Abi Sufyan wrote to me to ask you about it. 'Ali said: I am Abu al-Hasan: if he does not bring 4 witnesses, let him be handed over entire, with his rope. And because the default is the non-existence of what he claims: it is therefore not established by mere claim (Al-Mughni 8/216; Matalib Uli al-Nuha 6/42; Manar al-Sabil 3/231-232).

Ibn 'Abd al-Barr (may Allah have mercy on him) said: upon the view of 'Ali (may Allah be pleased with him) stands the generality of the fuqaha of the capitals, people of opinion and of transmitted reports (Al-Istidhkar 7/157).

Al-Mirdawi (may Allah have mercy on him) said: if a man kills a man in his home claiming that he entered to impose himself upon his family or his money and he killed him in self-defense, and his heir denies it: qisas is due, and the word received is that of the denier. This is the madhhab, and it is the position of the companions of the school. He said in "Al-Furu'": it may be maintained that it does not apply where the victim is known for depravity. I say: this is the correct view, and recourse is had to circumstantial indications and circumstances (Al-Insaf 9/476).

It is further argued by what is related from 'Abdullah ibn Mas'ud (may Allah be pleased with him), who said:

"We were in the mosque on the night of Friday when a man of the Ansar came and said: if a man were to find a man with his wife and spoke, you would flog him; if he killed, you would kill him; and if he stayed silent, he would stay silent suppressing his rage. By Allah, I shall ask the Messenger of Allah (may the peace and blessings of Allah be upon him) about it. The next day, he came to the Messenger of Allah (may the peace and blessings of Allah be upon him) and asked him, and he said: if a man finds a man with his wife and speaks, you will flog him; if he kills, you will kill him; and if he stays silent, he will stay silent suppressing his rage..."

Related by Muslim (1495)

Al-Shafi'i (may Allah have mercy on him) said: and this is what we say: if a man finds a man with his wife, and claims that he was obtaining from her what entails the penalty, both of them being married (thayyib), and he kills them both or one of them: he is not believed, and qisas falls upon him, whichever of them he killed, unless the heirs wish to take the diya or to pardon (Al-Umm 6/30).

Al-Mawardi (may Allah have mercy on him) said: al-Shafi'i said: "If a man kills a man and says: I found him upon my wife, he has confessed to killing subject to qisas and has made a claim; if he establishes no proof, he is killed." Sa'd said: "O Messenger of Allah, what do you think: if I find a man with my wife, must I grant him respite until I bring 4 witnesses?" He (may the prayer and peace of Allah be upon him) said: "Yes." And 'Ali ibn Abi Talib (may Allah be pleased with him) said: "If he does not bring 4 witnesses, let him be handed over entire, with his rope."

Al-Mawardi said: as for the man finding with his wife a man committing zina with her, or with his daughter or his sister, or with his son committing sodomy: it is binding upon him to repel him and prevent him. It is related from the Prophet (may the peace and blessings of Allah be upon him) that "he cursed al-rukanah," which is the one who has no protective jealousy over his family; and it is related from him (may the peace and blessings of Allah be upon him) that he said:

"Allah is protective-jealous for the Muslim: so let him be protective-jealous."

Related from the Prophet (reference not specified in the source)

And because preventing him from indecency is a right among the rights of Allah the Most High, a right of the husband over his family, and a right of his wife if she was coerced: it is not lawful for him to neglect these rights by holding back and refraining. As for finding the fornicator with a stranger woman who is not of his family: he must prevent him from her and restrain him from her; if she was coerced, the prevention is directed at him alone; if she consented, the prevention and the blame are directed at both; in view of what the safeguarding of the prohibitions of Allah the Most High, the preservation of His rights and abstention from His disobedience require.

The difference between seeing this within his family and seeing it outside it: towards his family, the obligation is individual; outside his family, it is collective.

Once the obligation of repelling is established, the state of the fornicating man is examined: if he has not yet penetrated, the husband must repel him with the means at his disposal, and he may not go as far as killing unless he cannot repel him except by killing, as we said regarding repelling the seeker of one's life and property. And it is looked at: if he has not fallen upon her, there is patience in repelling; if he has fallen upon her, repelling is hastened and intensified. If he has penetrated, the husband may begin repelling him with killing, and what we set out before does not apply: at every moment that passes over him in the state of zina, delay cannot remedy it; he may therefore, for that reason, hasten the killing. It is related that a man said to 'Ali ibn Abi Talib (peace be upon him): "I found a man with my wife and did not kill him." 'Ali said: "As for me, had it been Abu 'Abdullah, I would have killed him," meaning al-Zubayr ibn al-'Awwam. This indicates, from his words, the obligation of killing him. And on this killing, 2 plausible theses:

The first: it is defensive killing; on this basis it is specific to the man to the exclusion of the woman, and the virgin and the married woman are equal in it. The second: it is a killing belonging to the penalty (hadd) that it is permissible to carry out without the ruler, for 2 reasons: first, he alone witnessed the scene, none sharing it with him; second, there is in it a right specific to him: the corruption of his bed through zina with his wife. On this basis, this killing is permitted against the man as against the woman if she consented; except that for the woman, a distinction is made between the virgin and the married woman: she is killed if she is married, flogged if she is a virgin.

As for the man, 2 views: the first: a distinction is made between the unmarried and the married man, for it is the penalty of zina, as for the woman. The second, the more apparent: no distinction is made, he is killed in both states, for 2 reasons: first, killing him as a penalty is graver than killing him in defense; now it is permissible, given the gravity of his case, to kill him in defense: all the more so as a penalty. Second, the Sunna made no distinction, in the permissibility of this killing, between the unmarried and the married man, because of the severity of its rule for the one who carries it out.

Once what we have described is established: if the killer claims he killed him because he found him upon his wife, and his heir denies it and claims he killed him for no reason: the killer must establish proof of what he claims, the finding upon his wife; if he establishes it, he is cleared; if not, the heir is made to swear and retaliation is taken from the killer, for he confesses the killing and claims the lapse of qisas. It is related that Sa'd ibn 'Ubada said: "O Messenger of Allah (may the peace and blessings of Allah be upon him), if I find a man with my wife, shall I kill him, or wait until I bring 4 witnesses?" He said:

"No, until you bring 4 witnesses: the sword suffices as a witness," meaning a witness against you.

Related from the Prophet (reference not specified in the source)

And the meaning of this question is that he was asking about the lapse of qisas.

And Sa'id ibn al-Musayyab related that a man from the people of al-Sham (the Levant), called Ibn Khayri, found a man with his wife: he killed him and killed her; the case was referred to Mu'awiya, who was perplexed by it; he wrote to Abu Musa al-Ash'ari to consult 'Ali ibn Abi Talib (peace be upon him) about it; he consulted him and 'Ali said: "This matter did not occur in our land; I adjure you to tell me." He informed him, and 'Ali said: "They accept our judgment and yet resent us! If he does not bring 4 witnesses, let him be handed over entire, with his rope." Two interpretations: the first, its meaning is: let him be struck in retaliation upon his rope. The second, its meaning is: let his rope, that is, his entire self, be surrendered to retaliation, in submission.

If it be objected: 'Umar ibn al-Khattab (may Allah be pleased with him), in a similar case, did not require proof and declared the blood lawful on the evidence of the circumstances, as is related: a man went out on jihad leaving behind his wife and his brother; he had a Jewish neighbor; the brother passed by his brother's door one night and heard the Jew's voice, reciting:

"A disheveled man whom Islam has made heedless of me: I was alone with his wife the whole night.
I spend the night upon her collarbones, while she spends the evening upon a sleek mare, tight of noseband,
As if the places of her thighs were troops charging upon troops."

He entered the house, found him with her and killed him; the case was referred to 'Umar, who declared his blood lawful, without proof. Two answers are given: the first: the notoriety of the affair, through widespread report, dispensed with specific proof. The second: the establishment of proof depends on the demand of the heir; if he does not demand it, its obligation lapses (Al-Hawi al-Kabir 13/157-159).

Ibn Rushd (may Allah have mercy on him) said: Malik was asked about the interpretation of the hadith of 'Ali ibn Abi Talib: "If he does not bring 4 witnesses, let him be handed over entire, with his rope": are the virgin and the married woman alike, so that if he brings 4 witnesses he is released? He said: I do not know what this is; I heard nothing about it. By this hadith, only the place of the testimony is meant, by which the claimant advances this matter for his exoneration. Ibn al-Qasim said: I think that if 4 witnesses stand, for the virgin as for the married woman, testifying that they saw him committing zina with her, he is left alone; and this is the interpretation of the hadith.

Muhammad ibn Rushd said: his saying in the hadith, "let him be handed over entire, with his rope," means: let him surrender his very person to retaliation, for whichever of the 2 he killed. 'Ali (may Allah be pleased with him) explicitly stated that he is killed if he does not bring 4 witnesses, and kept silent about the ruling if he brings them; the indication of his saying, taken in its generality, requires that he is not killed if he brings 4 witnesses to the direct sight of zina, whether the one killed of the 2 was virgin or married. Now there has been disagreement over arguing from the implied meaning (dalil al-khitab); this is why Malik refrained in this matter and said: I do not know what this is, I heard nothing about it; then he said after that: only the place of the testimony is meant by this hadith, by which the claimant advances this matter for his exoneration; he therefore held, by the implied meaning, that he is not killed if he brings 4 witnesses, the apparent sense favoring the virgin.

...If he remained in that state for a period the like of which usually causes death, qisas (retaliation) applies; if one does not usually die within such a period, it is an intentional-accidental killing ('amud al-khata). If we remain in doubt about it, retaliation is not mandatory, for we doubt the cause, and a ruling is not established when its cause is subject to doubt, all the more so for qisas, which is waived in the presence of doubts.

If seeking help was not beyond his ability and he neglected it until he died, his blood is shed without compensation, for he is the one who neglected himself (1).