If he places him in a beast-infested land or before a lion or a predatory animal

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If he places him in a beast-infested land or before a lion or a predatory animal

The jurists differed regarding someone who throws a man into a beast-infested land or before a wild beast that kills him: is retaliation mandatory or not? They treat it in detail.

The view of the Hanafis

The Hanafis said: if a man throws another before a lion or a wild beast, there is no retaliation and no diya upon the one who threw him; rather he is subjected to ta'zir (disciplinary punishment), given a painful beating, and imprisoned until he repents. Abu Yusuf said: as for me, I hold that he should be imprisoned until death. And from the Imam Abu Hanifa: the diya is upon him (1).

The view of the Shafi'is

The Shafi'is said: if a man binds another or ties him up, and a wild beast devours him, it does not fall outside 3 scenarios:

The first: if he ties him up or binds him and abandons him in a beast-infested land, and the beast comes and devours him, there is no retaliation upon the one who abandoned him nor any diya, because the beast devoured him by its own choice, and because it has a choice, like someone who holds him while another kills him.

The second: if he ties him in a desert then hurls the beast at him, or hurls him at the beast and it devours him, there is no retaliation upon him nor any diya, for it is the nature of the beast, when it is hurled at a human or a human is hurled at it, to flee; if it did not flee, its devouring him was by its own choice.

The third: if the beast was in a narrow passage, a house, a well, or a hunting pit (1), and the human was thrown to it, or the human was in the narrow passage, house, well, or pit and the beast was hurled at him, and it struck him and he died: if the beast struck him with a blow the like of which usually kills, retaliation is mandatory upon the thrower, for he forced the beast to kill him. If it struck him with a blow the like of which does not usually kill and he died, retaliation is not mandatory upon the thrower, for the usual outcome is safety; the diya is then due upon him from his own wealth. The same ruling applies to the leopard and the like.

And if he holds the lion or the leopard and sets it upon him and it devours him, retaliation is upon him, for he forced it to do so.

And if he ties a man and abandons him in a land of snakes, and one of the snakes bites him and he dies, there is no retaliation upon him nor any diya, whether he was in a narrow or a wide place.

Likewise if the snake is hurled at him or he is hurled at the snake, for snakes and scorpions are by nature averse to humans.

And if he takes the snake or the scorpion in his hand and has it bite someone, Imam al-Shafi'i, may Allah have mercy on him, said: "Whether he squeezed it or not, if it bites him and he dies: if it is of the snakes the like of which usually kills, like the snakes of Ta'if and the vipers of Mecca, retaliation is mandatory upon him, for he managed to kill him with something that usually kills: it is as if he killed him with a sword. If it is of what does not usually kill, like the snakes of Mecca and the Hijaz and the vipers of Egypt, there are 2 views. The first: retaliation is not mandatory upon him, for such does not usually kill, and an aggravated diya is due, for it is semi-intentional killing. The second: retaliation is mandatory upon him, for its kind usually kills: it is then like wounds" (1).

The view of the Hanbalis

The Hanbalis said: if he brings him together with a lion or a leopard in a narrow place, such as a hunting pit or the like, and it kills him, it is intentional killing entailing qisas if the beast did to him an act the like of which usually kills; if it did to him an act which, had a human done it, would not have been intentional, qisas is not mandatory, for the beast became the instrument of the human, and its act counts as his act.

And if he throws him bound before the lion or the leopard in an open space and it devours him, retaliation is upon him. Likewise if he brings him together with a snake in a narrow place, and it bites him and kills him, retaliation is upon him.

Ibn Qudamah, may Allah have mercy on him, said: "The judge said: there is no liability upon him in the 2 scenarios, and this is the view of the companions of al-Shafi'i, for the lion and the snake flee from humans, and because this is a non-compelling cause. As for us: this usually kills, so it is pure intentional killing like the other cases" (1).

Their statement "they flee" is not correct: the lion seizes the unbound human, so how would it flee from a bound man thrown to it to be devoured? The snake only flees in a wide place; when the place narrows, it usually defends itself by biting, as is the habit.

The judge mentioned, regarding someone thrown bound into a beast-infested land or a land of snakes that killed him, 2 narrations on the obligation of qisas; and this is a stark contradiction, for he negated all liability in a scenario where death was the more frequent, yet made qisas mandatory in a scenario where it was rarer. The correct view is that there is no qisas here, and that liability is mandatory, for he did to him, deliberately, an act through which he perished that does not usually kill.

And if he has a snake or a beast bite someone who dies from it, retaliation is upon him if it is of what usually kills; if it is of what does not usually kill, like the snakes of the Hijaz or a small beast, there are 2 views. The first: retaliation is due, for a wound does not require that killing usually result from it, and this is a wound, and the snake is of the kind that usually kills. The second: it is semi-intentional, for it does not usually kill, like striking with a stick or a stone.

And if he binds him and abandons him in a land not infested by beasts, and a beast devours him or a snake bites him and he dies, it is semi-intentional killing; the companions of al-Shafi'i said: it is purely accidental. As for us: he did to him, deliberately, an act the like of which does not usually kill and which led to his destruction, like striking him with a stick and he dies of it. Likewise if he abandons him tied in a place where no one is customary to...

...In "al-Khaniyya": there is no qisas upon him nor any diya, for he drank by his own choice; only, the one who handed it to him deceived him, so nothing is due upon him except ta'zir and seeking forgiveness (1).

Likewise if he says to another: "Eat this food, for it is good", and he eats it and it turns out to be poisoned and he dies, he bears no liability (2).

This preceding disagreement concerns one who serves the poison knowing it is poison. If the one serving it does not know, there is no qisas upon him, and the diya is due, for it is accidental killing.

The Malikis said: whoever serves a person poisoned food, drink, or clothing, and he consumes it and dies of it, is subjected to qisas if he knew, even if the consumer did not; if the one serving did not know it was poison or that it was poisoned, or the consumer knew, then there is no qisas nor anything upon him, for the consumer, if he knew, is the killer of himself, and if the one serving did not know, he has an excuse (3).

Coercion to kill

The people of knowledge unanimously agreed that whoever is coerced into killing another may not proceed to kill him nor violate his sanctity by whipping or otherwise: he endures the trial that has befallen him, it is not lawful for him to ransom himself with another, and it is not for him to proceed against him.

For this belongs to the rights of people, and the 2 are equal in rights: it is not permissible to preserve one's own life by killing another without right, for preserving his life by killing that protected person is not more entitled than the opposite. It is not for him to wrong another by killing him lest he himself be killed, because of what it involves of obeying the creature in disobedience to the Creator and preferring his soul over the soul of one like him in sanctity: that is not permissible.

Imam al-Qurtubi, may Allah have mercy on him, said: the scholars unanimously agreed that whoever is coerced into killing another may not proceed to kill him nor violate his sanctity by whipping or otherwise: he endures the trial that has befallen him, it is not lawful for him to ransom himself with another, and he asks Allah for well-being in this world and the hereafter (1).

Imam Ibn Rajab al-Hanbali, may Allah have mercy on him, said: the scholars agreed that if he is coerced into killing a protected person, it is not valid for him to kill him, for he only kills him by his own choice, ransoming himself from death: this is a consensus of the scholars who carry weight (2).

However, the jurists differed where a person is put under complete coercion to kill a human being: is qisas taken from the coercer? Or from the coerced? Or from both together? Or from neither of them?

Qisas falls upon the coercer and not upon the coerced

Imam Abu Hanifa, Muhammad, the Shafi'is in one view (al-Nawawi said in "ar-Rawda": it is the correct and transmitted view) and a narration from the Hanbalis: there is no qisas upon the coerced; qisas is taken only from the coercer and not from the direct agent, and the coerced incurs only ta'zir, due to the statement of the Prophet, may the peace and blessings of Allah be upon him:

Allah has remitted from my nation error, forgetfulness, and what they are coerced into.

Authentic hadith, cited earlier

And because the coerced is a mere instrument in the hands of the coercer: the killer in true meaning is the coercer, and what proceeds from the coerced is only the form of the killing. The coerced resembles the instrument, and there is no qisas upon an instrument. And because he killed him to preserve his own life, retaliation is not due upon him, like a man who attacks him and he cannot repel him except by killing him.

And because he is carried to killing by his nature, preferring his life: he becomes an instrument of the coercer in what is fit to be an instrument in his hands, namely destruction without sin. This is because the instrument is what acts by its nature: the sword, whose nature is to cut when used upon its object; fire, whose nature is to burn; water, whose nature is to drown. By the use of the instrument, qisas becomes due upon the user: so too here.

The proof that the commander is the user and the commanded follows the requirement of his nature is that liability for the destroyed property falls upon the commander: were he not the destroyer through use, it would not be due upon him. By this it is known that destruction is attributed to the commander and that the commanded is his instrument, for there is no way to attribute it to him except through this route: it is as if the commander were the direct agent of destruction and not its remote cause, for were he the remote cause, liability would not fall upon him but upon the commanded, since when the direct agent and the remote cause combine in destruction, liability falls upon the direct agent and not the remote cause.

This is because he can be made an instrument for destroying wealth, by consensus, by taking it and throwing it into someone's property; likewise, regarding human life, for destruction, he can be an instrument through this route, unlike sin: he cannot be an instrument in what concerns it, for sin lies in the offense against one's own religion, and no one has the power to offend another's religion; it remains therefore, in effect, confined to what concerns him.

Qisas falls upon the coerced and not upon the coercer

Zufar among the Hanafis and Imam Ahmad in a narration: qisas is due upon the coerced and not upon the coercer, for qisas falls upon the killer, and the killer in reality is the coerced, for he is the direct agent; likewise in ruling, for he incurs sin for it. This is because killing is a physical act realized from the coerced, and the principle regarding acts is that their doer answers for them, unless the ruling of his act is lifted by the Law and attributed to another, as in coercion to destroy another's property, where its ruling, the sin, is lifted from the doer and attributed to another. Here the ruling of his act is not lifted; rather it is confirmed, as shown by the fact that he incurs the sin of killing, and the sin of killing falls upon the killer. As for the coercer, he is a remote cause, and there is no qisas through a remote cause.

No qisas upon either the coercer or the coerced

Abu Yusuf, and it is related as a narration among the Hanbalis: qisas is taken neither from the coercer nor from the coerced, for the coercer is not truly a killer: he is only a cause of the killing, and the killer is the coerced. Since qisas is not due upon the coerced, it is all the more not due upon the coercer: only the diya is due upon him, and he may not claim anything from the coerced (1).

Qisas falls upon both the coercer and the coerced

The Malikis, the Shafi'is in the preponderant view and the Hanbalis in the school position: qisas is taken from the coercer and the coerced, for qisas was prescribed for the wisdom of deterrence and restraint, and killing under coercion is frequent among the domineering: were qisas not due, it would lead to corruption; it is therefore imposed upon all, to sever its root.

As for its being due upon the coerced, it is because killing occurred from him in reality, wrongfully, to preserve his own life: he is like one who kills his like in famine to eat him; and because he was able to refrain, hence he sinned by killing him and it was forbidden to him by consensus.

And because he killed a person equivalent to him wrongfully without right, he resembles the initiator of killing; and because destruction through the necessity of hunger is certain while through coercion it is only presumed: when in the stronger of the 2 necessities retaliation is due, then in the weaker one it is all the more due.

As for its being due upon the coercing commander, it is because he is a remote cause in the killing, and the remote cause counts as the direct agent as established in the Law: thus, if 2 witnesses testify to a man's murder and the ruler executes him, the ruling attaches to both of them.

And if the matter ends with the diya, it is upon both of them according to the Shafi'is and the Hanbalis, for they are 2 partners: qisas falls upon both, so the diya falls upon both like 2 partners in the act. On this basis, if the heir wishes to kill one of them and take half the diya from the other, or pardon him, he may do so, as the Shafi'is and the Hanbalis have explicitly stated.

The Shafi'is said: and if we say that retaliation does not fall upon the coerced agent, then half the diya is upon him, for he directly carried out the killing; and expiation falls upon each of them according to both views together: this is the transmission of the Baghdadis. The Khurasanis said: if we say "retaliation does not fall upon the agent", is half the diya due upon him? There are 2 views.

Abu Hanifa and Muhammad said: no diya is upon the coerced, for he is an instrument.

This disagreement concerns complete coercion. As for incomplete coercion, qisas is due upon the coerced without disagreement, for incomplete coercion does not remove free choice in the first place: it therefore does not prevent the obligation of qisas (1).

...and the formerly married woman, according to the view of Ibn al-Qasim. They differed on this when the one killed of the 2 was unmarried, over 4 views:

The first: he is not killed, and his blood is shed without compensation; this is the view of al-Mughira and 'Abd al-Rahman, and the apparent sense of Ibn al-Qasim's view and of his narration from Malik in this version. Ibn 'Abd al-Hakam said: when his misconduct in that was known beforehand.

The second: he is not killed for him, and the diya is upon his 'aqilah (solidarity kin group); this is the view of Ibn al-Qasim in the book of Ibn al-Mawwaz, in "al-Madaniyya" and in the tafsir of Ibn Mazin, from Asbagh's narration from him.

The third: he is not killed, and the diya is upon him from his own wealth; this is the view of Asbagh from his narration in the tafsir of Ibn Mazin.

The fourth: he is killed for him; this is the view of Ibn al-Majishun.

The basis of the first view is that whoever is stricken by something like this is overtaken by an anger that deprives him of his reason: his ruling is then that of the insane person who does not comprehend, concerning whom it has been said that his offenses against wealth and blood go uncompensated (1).

The second case: presenting evidence or the acknowledgment of the victim's heirs

The Hanbalis have explicitly stated that if he kills him and brings evidence that he was with his wife, or kills him defending himself, or the heir acknowledges that, then there is no qisas upon him nor any diya, due to what is narrated from 'Umar, may Allah be pleased with him: he was one day having lunch when a man came running, with a blood-stained sword in his hand, and behind him people running after him; he came and sat with 'Umar, and the others came and said: "O Commander of the Faithful, this man has killed our companion." 'Umar said to him: "What do they say?" He said: "O Commander of the Faithful, I struck my wife's thighs; if there was anyone between them, then I have killed him." 'Umar said: "What does he say?" They said: "O Commander of the Faithful, he struck with the sword and it landed on the woman's thighs." 'Umar took his sword, brandished it, then handed it to him and said: "If they repeat, you repeat" (1).

It is also narrated from az-Zubayr, may Allah be pleased with him, that he had once stayed behind the army with a servant girl of his; 2 men came to him and said: "Give us something"; he threw them the food he had with him; they said: "Leave us the servant girl"; he struck them with his sword and cut them down with a single blow.

And because the opponent has acknowledged what renders his blood lawful, his right lapses, like one who confesses to killing him in retaliation or in a capital punishment; and if it is established by evidence, it is the same (2).

Imam al-Shafi'i, may Allah have mercy on him, said: if the heirs of the one killed of the 2 acknowledge that he was with her under the garment, moving with the movement of intercourse and emitting, without acknowledging what entails the hadd punishment, retaliation is not thereby waived from him. If they acknowledge what entails the hadd, and the slain was unmarried according to the claim of his heirs, that he was their brother or their son, while the killer claims he was formerly married, the word accepted is that of the heirs, and retaliation is upon the killer, for there is no execution of the unmarried for fornication. If he brings evidence that he was formerly married, both the diya and retaliation are waived from him.

It is within his right, between him and Allah the Most High, to kill the man and his wife when both are formerly married and he knows that he obtained from her what warrants death, and he is not believed in his statement that waives retaliation from him. Likewise if he finds him sodomizing his son or fornicating with his servant girl: it makes no difference, and retaliation is not waived from him. The diya and retaliation for killing are not waived except by his doing what makes blood lawful; blood does not become lawful, and deliberately killing him is not permitted, except for unbelief after faith, or fornication after marriage, or killing a person without right.

If a man finds with his wife a man obtaining from her what earns the fornicator the hadd, and he kills them both, the man being formerly married and the woman not: nothing is upon him for the man, and retaliation is upon him for the woman. If the man was not formerly married and the woman was, retaliation is upon him for the man, and nothing is upon him for the woman (1).

Imam Ibn al-Qayyim, may Allah have mercy on him, said: his statement in the hadith, "If a man were to find a man with his wife and kill him, would you kill him for it?", is evidence that whoever kills a man in his house claiming he found him with his wife or in his sacred precinct is killed for him, and his word is not accepted; for were his word accepted, blood would be squandered, and anyone wishing to kill a man would bring him into his house and claim he found him with his wife.

But there are here 2 questions that must be distinguished. The first: is it within his right, between him and Allah, to kill him or not? The second: is his word accepted in the apparent ruling or not?

With this distinction the difficulty in what is transmitted from the Companions, may Allah be pleased with them, on the matter disappears, to the point that some scholars made it a disputed question among the Companions and said: "The position of 'Umar, may Allah be pleased with him, is that he is not killed for him, and the position of 'Ali is that he is killed for him." What misled him is what Sa'id ibn Mansur narrated in his "Sunan": 'Umar ibn al-Khattab, may Allah be pleased with him, was one day having lunch when a man came running, with a blood-stained sword in his hand, and behind him people running.

He came and sat with 'Umar; the others came and said: "O Commander of the Faithful, this man has killed our companion." 'Umar, may Allah be pleased with him, said to him: "What do you say?" He said: "O Commander of the Faithful, I struck between my wife's thighs; if there was anyone between them, then I have killed him." 'Umar said: "What do they say?" They said: "O Commander of the Faithful, he struck with the sword and it landed on the middle of the man and the woman's thighs." 'Umar, may Allah be pleased with him, took his sword, brandished it, then handed it to him and said: "If they repeat, you repeat." This is what is transmitted from 'Umar, may Allah be pleased with him.

As for 'Ali, he was asked about someone who found a man with his wife and killed him; he said: "If he does not bring 4 witnesses, let him be handed over entire." He thought this contradicted what is transmitted from 'Umar and made it a disputed question among the Companions. But when you examine their 2 rulings, you find no disagreement between them: 'Umar only waived retaliation from him once the heir had acknowledged that he was with his wife. Our companions said, and the wording is the author of "al-Mughni"'s: "If the heir acknowledges that, there is no qisas and no diya, due to what is narrated from 'Umar", then he cited the story.

His words indicate no difference between the married and the unmarried, and thus 'Umar judged regarding this slain man; and his statement too, "If they repeat, you repeat", did not distinguish married from unmarried. This is the correct view, even though the author of "al-Mustaw'ab" said: if he finds with his wife a man obtaining from her what entails stoning and kills him, claiming he killed him for that, qisas is upon him in the apparent ruling unless he brings evidence for his claim, in which case qisas is not incumbent upon him.

He said: on the number of witnesses of the evidence there are 2 narrations: one: 2 witnesses, chosen by Abu Bakr, for the evidence concerns the occurrence, not fornication; the other: no fewer than 4 are accepted. The correct view is that once evidence is established for it, or the heir acknowledges it, qisas lapses, whether married or not, and this is what 'Ali's words indicate, for he said, regarding one who found a man with his wife and killed him: "If he does not bring 4 witnesses, let him be handed over entire"; and this is because this killing is not the hadd of fornication: were it a hadd, it would not have been by the sword, and the conditions for establishing the hadd and its manner would have been required; it is only a punishment of one who transgressed against his sacred precinct, violated his household, and corrupted his family.

This is also what az-Zubayr, may Allah be pleased with him, did: when he stayed behind the army with a servant girl of his, 2 men came to him and said: "Give us something"; he gave them the food he had with him; they said: "Leave us the servant girl"; he struck them with his sword and cut them down with a single blow.

On this basis, it is permissible for him, between him and Allah the Most High, to kill whoever transgresses against his sacred precinct, whether married or not, known for that or not, as indicated by the words of the companions of the school and the fatwas of the Companions. Al-Shafi'i and Abu Thawr said: it is within his right to kill him, between him and Allah the Most High, if the fornicator is married: they placed it under the category of the hadd punishments. Ahmad and Ishaq said: his blood is shed without compensation if he brings 2 witnesses, without distinguishing married from unmarried.

...A Jewish woman of Khaybar presented the Messenger of Allah, may the peace and blessings of Allah be upon him, with a roasted sheep; Bishr ibn al-Bara' ibn Ma'rur, the Ansari, died of it; he sent for the Jewish woman, and the Messenger of Allah, may the peace and blessings of Allah be upon him, ordered that she be killed.

Hasan hadith: reported by Abu Dawud (5411)

And because this usually kills and is often taken as a route to killing, qisas was made due, as if he had coerced him into drinking it.

The Shafi'is said: if the food or drink had blunted the sharpness of the poison so that it no longer usually kills, retaliation is not due upon him; if it did not blunt its sharpness, it is as if he had given him the poison alone: retaliation is then upon him.

The Hanafis said: if he feeds another poison and he dies: if the victim consumed it of his own accord, there is no liability upon the one who gave it, for he ate it by his own choice; yet he is disciplined, beaten and rebuked, for he committed an offense that has no fixed penalty: deception. If he poured the poison down his throat by force, the diya is upon him (1).