Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Qisas: the cases that engage retaliation
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
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 two views. Some of them said: the two 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 two 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 two 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 two 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 two partners. But if we say "no retaliation upon the coerced," there are two 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 two 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): two 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 two 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 two 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 two 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 two 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 two witnesses is invalid: they compelled the judge to pronounce the killing, whereas no compulsion issued from the one who holds: the two 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 two 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, three 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, two 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 two, 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.
The rule of liability being that of actual destruction, the heir may therefore hold liable whichever of the two he wishes. If he holds the heir liable for the diya, the latter has no recourse against the two witnesses, for he is liable through an act he himself carried out of his own choice. And if he holds the two 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 two 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 two 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 two 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.
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: two 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: two 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 four 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 four 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 two or more testify against someone to a deliberate killing, to apostasy where repentance is refused, or if four 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: two 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 two 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 two 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 two. If they were three 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 two 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 two 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 two 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 two he wishes. If he holds the heir liable for the diya, the latter has no recourse against the two witnesses, for he is liable through an act he himself carried out of his own choice. And if he holds the two witnesses liable, they likewise have no recourse against the heir according to Abu Hanifa.
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 two 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 two. 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.
Qisas falls upon the two witnesses and the judge, for all are only causes; and if the matter comes to the diya, it falls upon them in three 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 two situations.
The fuqaha of the four 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 four 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 four 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 four 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, two 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 two 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, two 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 two 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 four witnesses?" He said:
"No, until you bring four 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 four 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 four witnesses, let him be handed over entire, with his rope": are the virgin and the married woman alike, so that if he brings four 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 four 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 two he killed. 'Ali (may Allah be pleased with him) explicitly stated that he is killed if he does not bring four 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 four witnesses to the direct sight of zina, whether the one killed of the two 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 four 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).
(1) "al-Mughni" (8/211, 212, 338), "al-Mubdi'" (8/246), "al-Insaf" (9/439), "Kashshaf al-Qina'" (5/598, 599) and "Matalib Uli al-Nuha" (6/9).