Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The second case: presenting the poison without coercing him to take it
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
If he presents the poison to him without coercing him to take it, merely handing it to him, and he drinks it knowing it is poison, there is no liability upon the one who handed it, for he killed himself by his own choice or through his negligence; thus the Hanafis, the Malikis, the Shafi'is and the Hanbalis have explicitly stated.
If he mixes it into food or drink and presents it to him and he consumes it, or gifts it to him, or mixes it into the food of someone unaware, retaliation is due upon him according to the Malikis, the Shafi'is in one view and the Hanbalis, due to what Abu Dawud narrated from Abu Salamah:
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. And because custom has it that one to whom food is presented eats from it: it is as if he had compelled him to eat it, and retaliation is therefore due upon him as if he had coerced him.
The second view among the Shafi'is: retaliation is not due upon him, for he ate it by his own choice: it is as if he killed himself with a knife. Is the diya due? Two views. The first: the diya is not due, for he is the offender against himself. The second, which is the school's view: the diya is due, for destruction occurred through a cause from him, like one who digs a well on people's path and a person perishes in it.
And if he mixes poison into food, presents it to a man and says: "It contains poison that usually kills", and he eats it and dies, there is no retaliation upon him nor any diya, for he killed himself, and this is by agreement of the 4 schools.
Ibn Qudamah, may Allah have mercy on him, said: as for one who mixes poison into his own food and leaves it in his home, if someone enters and eats it, he owes no liability of qisas nor diya, for he did not kill him: it is the one who entered who killed himself, like one who digs a well in his house and a man falls into it. Whether he thereby intended the death of the eater or not: such as knowing a tyrant intends to storm his house and leaving the poison in the food to kill him: it is like digging a well in his house for the thief to fall into when he enters to steal.
And if someone enters with his permission and eats the poisoned food without his permission, he is not liable for it. And if he mixes it into a man's food, or presents him poisoned food informing him of its poison, and he eats it, he is not liable, for he ate it knowing its condition, like one who hands him a knife and he stabs himself with it.
And if he gives someone poison to drink, or mixes it into his food, and he consumes it unknowingly, and it is of what does not usually kill: it is semi-intentional killing. If they disagree over whether such usually kills or not, and there is evidence testifying, it is followed; if the evidence says "it kills the weak and emaciated, not the strong", or otherwise, it is acted upon accordingly. If neither of them has evidence, the word accepted is that of the one who gave the drink, for the principle is the absence of the obligation of qisas, which is not established by doubt, and because he is best informed of the nature of what he gave.
And if it is established that it is a lethal poison and he says: "I did not know it kills", there are 2 views. The first: retaliation is upon him, for poison is of the kind with which one usually kills, like wounding him and saying: "I did not know he would die of it." The second: no retaliation is upon him, for it may have been hidden from him that it kills, and this is a doubt that waives retaliation (1).
(1) "al-Mughni" (8/212); see also "al-Muhadhdhab" (2/176), "al-Bayan" (11/345, 348), "al-Hawi al-Kabir" (12/85, 86), "an-Najm al-Wahhaj" (8/334, 335), "Mughni al-Muhtaj" (5/218, 219), "Kashshaf al-Qina'" (5/599, 600) and "Sharh Muntaha al-Iradat" (6/10).
The detail of the Hanafi school was related by Ibn Nujaym, may Allah have mercy on him, when he said: if a man gives another poison to drink and he dies of it, it takes 3 forms: either he pours it down his throat by force, or he coerces him into drinking until he drinks, or he hands it to him and he drinks without coercion.
If he pours it down his throat by force, or hands it to him coercing him into drinking until he drinks: no qisas, and the diya is upon his 'aqilah.
In "ad-Dhakhira", the question is mentioned in "al-Asl" absolutely, without disagreement, without distinguishing between a quantity the like of which usually kills and one that does not. This answer poses no difficulty on Abu Hanifa's view, and that is because the killing occurred in a state that does not exit, neither in reality nor in legal consideration, the scope of coercion: it is therefore intentional-accidental according to him.
As for the views of Abu Yusuf and Muhammad, some of our masters said: the answer with them follows the detail: if what he poured of poison was a quantity the like of which usually kills, it is pure intentional killing; if a quantity the like of which does not usually kill, it is intentional-accidental. And others of our masters said that, on their view, it is intentional-accidental in all cases, whether of what usually kills or not, like one who pours down a man a scammony that bodies cannot bear and he dies of it: it is not pure intentional killing.
And if he took it and drank without being coerced, there is upon the one who handed it neither qisas nor diya, whether the drinker knew it was poison or not.
The people of knowledge unanimously agreed that the intentional killer does not inherit, due to the statement of the Prophet, may the peace and blessings of Allah be upon him:
The killer does not inherit.
Cited in "al-Hawi al-Kabir" (8/84)
For Allah the Most High made entitlement to inheritance a bond between the living and the dead by their sharing in mutual allegiance, and the killer severs allegiance and turns away from the bond: he has become worse in condition than the apostate. And because if the killer inherited, it would become a means to killing every testator whose heir desires to hasten his inheritance; and whatever leads to that, the Law prevents it (1).
Imam al-Shafi'i, may Allah have mercy on him, said: I have not heard of any disagreement that one who deliberately kills a man inherits nothing from the one he killed, neither from his diya nor from his property (2).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: the people of knowledge unanimously agreed that the intentional killer inherits nothing from the property of the one he killed nor from his diya. And they unanimously agreed that the accidental killer inherits nothing from the diya of the one he killed (3).
Imam Ibn 'Abd al-Barr, may Allah have mercy on him, said: the scholars unanimously agreed that the intentional killer inherits nothing from the slain person's property nor from his diya (4).
(1) "al-Hawi al-Kabir" (8/84).
(2) "al-Umm" (4/72).
(3) "al-Awsat" (7/467, 468), "al-Ishraf" (4/356) and "al-Ijma'" (p. 70), no. 320 and 321.
(4) "at-Tamhid" (23/443).
Imam Ibn Qudamah, may Allah have mercy on him, said: the people of knowledge unanimously agreed that the intentional killer inherits nothing from the slain, except what is related from Sa'id ibn al-Musayyab and Ibn Jubayr, who let him inherit, and it is also the view of the Kharijites, for the verse of inheritance covers him by its generality and must therefore be applied to him. No reliance is placed on this view, given its oddity and the proofs to the contrary.
'Umar, may Allah be pleased with him, gave the diya of Ibn Qatada al-Madhiji to his brother to the exclusion of his father, who had struck him with his sword and killed him; this story became well known among the Companions, may Allah be pleased with them, without being rejected: it was therefore a consensus. 'Umar said: I heard the Messenger of Allah, may the peace and blessings of Allah be upon him, say:
Nothing for the killer.
Reported by Malik in "al-Muwatta'" and by Imam Ahmad in his "Musnad"
'Amr ibn Shu'ayb related from his father, from his grandfather, from the Prophet, may the peace and blessings of Allah be upon him, something similar; reported by Ibn al-Labban with his chain, and Ibn 'Abd al-Barr related them both in his book.
Ibn 'Abbas, may Allah be pleased with them both, related: the Messenger of Allah, may the peace and blessings of Allah be upon him, said:
Whoever kills someone does not inherit from him, even if he has no heir other than him, and even if he is his father or his son: there is no inheritance for a killer.
Weak hadith: reported by 'Abd al-Razzaq in his "Musannaf" (17786) and by al-Bayhaqi in "as-Sunan al-Kubra" (12022)
Reported by Imam Ahmad with his chain. And because letting the killer inherit leads to multiplying killing, for the heir sometimes hastens the death of the one he inherits from in order to take his property, as the Israelite did who killed his uncle, regarding whom Allah the Most High sent down the story of the cow. It is said: no killer has inherited after 'Amil, which is the name of the slain man (1).
(1) "al-Mughni" (6/244).
The jurists differed on the validity of a bequest to the killer: is it valid or not? And is there a difference between intentional and accidental killing, or not?
The Malikis, the Shafi'is in the preponderant view and the Hanbalis in a narration: it is not a condition for the validity of a bequest that the legatee not be the killer of the testator, whether the killing be intentional or accidental, due to the generality of the statement of Allah the Most High:
after any bequest they may have made or debt
Surah An-Nisa, 12
without distinction, and His statement:
But whoever changes it after he has heard it, the sin is only upon those who change it
Surah Al-Baqarah, 181
and invalidating a bequest is a change. And because it is a transfer of ownership requiring acceptance: killing therefore does not prevent it, like sale; and because it is a gift that killing does not prevent in consideration of the state of life; and because it is an acquisition of ownership: it is valid for the killer, like the waiving of rights.
As for the hadith "No bequest for a killer", it is void and rejected. The analogy with inheritance is invalidated by the mother of a child who kills her master: she is set free. Ibn al-Mundhir, may Allah have mercy on him, said: we know of no proof preventing it (1).
(1) "al-Ishraf" (4/431); see also "al-Istidhkar" (8/58), "al-Ishraf 'ala Nukat Masa'il al-Khilaf" (5/181), "ad-Dhakhira" (7/28, 29), "al-Hawi al-Kabir" (8/191), "al-Bayan" (8/163), "Rawdat at-Talibin" (4/371, 372), "an-Najm al-Wahhaj" (6/229, 230), "Mughni al-Muhtaj" (4/72), "al-Sharh al-Kabir" (6/478) and "al-Insaf" (7/232, 233).
The Malikis said: the bequest from the slain to his killer is valid on condition that he know he is the one who killed him, whether the killing be intentional or accidental. The bequest, in accidental killing, applies to the testator's property and to the diya taken from the killer's 'aqilah: the bequest therefore applies to one third of both; in intentional killing, to the property alone, that is, its third, unless his execution is carried out and his heir accepts the diya knowing of it.
If the testator did not know that the legatee is his killer, is the bequest executed or voided? Two interpretations. The more correct: he receives nothing, and this is the view of Ibn al-Qasim, for had the testator known that this man was his killer, he would not have bequeathed to him: it is not the way of man to be kind to one who wronged him. The second: the bequest is executed for him, whether he knew or not, for the bequest was made after the blows: he cannot therefore be suspected of hastening; and it applies to the property and to the diya of accidental killing only.
As for where he says: "Give to the one who killed me", it is valid by agreement (1).
(1) "al-Sharh al-Kabir with al-Dusuqi's marginal commentary" (6/490, 491), "at-Taj wal-Iklil" (5/439), "Sharh Mukhtasar Khalil" (8/171) and "Tahbir al-Mukhtasar" (5/531, 532).
The Hanafis, the Shafi'is in the view opposing the preponderant and the Hanbalis in the school position: it is a condition for the legatee not to be a killer of the testator; if he kills the testator, the bequest is voided, due to what al-Daraqutni related in elevated form:
No bequest for a killer.
Reported by al-Daraqutni (4628)
and because he hastened what Allah deferred: he is deprived of the bequest as he is deprived of inheritance, for the killer's deprivation of inheritance is due to the intense anguish of the heirs at sharing with the killer of their father in his estate; and the legatee shares with him in this meaning: the analogy is therefore valid, and resemblance between the analogized and the source of the analogy in every respect is not required (1).
(1) Reported by al-Daraqutni (4628); he said: Mubashshir ibn 'Ubayd is an abandoned narrator who forges hadiths; and reported by al-Bayhaqi in "as-Sunan al-Kubra" (12432); he said: Mubashshir ibn 'Ubayd al-Himsi alone relates it, and he is known for forging hadiths.
It is related from the Prophet, may the peace and blessings of Allah be upon him, that he said:
Nothing for the killer.
Hasan hadith: reported by Malik in "al-Muwatta'" (1557), Ahmad (17781), Abu Dawud (4564) and al-Bayhaqi in "as-Sunan al-Kubra" (6368)
The word "thing" is indefinite in the position of negation: it covers both inheritance and bequest together. By this it becomes clear that the killer is an exception to the generalities of bequest; because bequest is the sister of inheritance, and there is no inheritance for the killer, and bequest has the standing of inheritance; because the heirs are harmed by directing the bequest to the killer as they would be harmed by directing it to one of them: it leads to severing the ties of kinship, and that is forbidden.
And because the injured man, once confined to his deathbed, the right of the heirs attaches to his property out of consideration for them, lest the testator transfer his ownership to other than them out of enmity or harm received from them, so that they are not harmed by it; yet his ownership remains, in consideration of him due to his need to meet his essential needs; and the cause establishing their right in the fatal illness is the cause establishing their ownership after death: kinship. It ought therefore that he not be able to give away gratuitously any part of his property, except that he can do so to other than the killer and the heir, contrary to analogy: the matter for these 2 therefore remains upon the original of analogy.
And because killing without right is a grave offense calling for deterrence in the strongest ways: deprivation of the bequest is fit as a deterrent in addition to deprivation of inheritance, and it is therefore established (1).
(1) "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-Jawhara an-Nira" (6/378), "al-Ikhtiyar" (5/78, 79), "al-Hawi al-Kabir" (8/191), "al-Bayan" (8/162), "al-Mughni" (6/126), "al-Sharh al-Kabir" (6/578), "al-Insaf" (7/232, 233), "al-Qawa'id" (p. 261), "al-Mubdi'" (6/37), "Kashshaf al-Qina'" (4/434) and "Sharh Muntaha al-Iradat" (4/465).
And Allah the Most High said:
And We ordained for them therein: a life for a life
Surah Al-Ma'idah, 45
And the Prophet, may the peace and blessings of Allah be upon him, said:
Whoever has a slain relative has the better of 2 options: either the killer is executed, or he is ransomed.
Reported by al-Bukhari (112) and Muslim (1355)
From Abu Shurayh al-Khuza'i, may Allah be pleased with him, the Messenger of Allah, may the peace and blessings of Allah be upon him, said:
Whoever suffers an injury of blood or wound (al-khabl meaning the wound) has the choice among 3; if he desires a fourth, restrain his hand: to kill, to pardon, or to take the diya. Whoever does any of that then reverts, his is the fire of Jahannam, abiding therein forever, eternal.
Weak hadith: reported by Abu Dawud (4496), Ibn Majah (2623) and Ahmad (16422)
And the Prophet, may the peace and blessings of Allah be upon him, said:
Whoever is killed blindly, in indiscriminate throwing among them with stones, whips, or a blow with a stick: it is accidental, and its diya is that of accidental killing. Whoever is killed deliberately: it is retaliation. And whoever stands in its way, upon him is the curse of Allah and His anger; neither compensation nor equivalent will be accepted from him.
Authentic hadith: reported by Abu Dawud (4536), al-Nasa'i (4790) and Ibn Majah (2635)
(1) Reported by al-Bukhari (112) and Muslim (1355).
(2) Weak hadith: reported by Abu Dawud (4496), Ibn Majah (2623) and Ahmad (16422).
(3) Authentic hadith: reported by Abu Dawud (4536), al-Nasa'i (4790) and Ibn Majah (2635).
Wisdom requires the legality of qisas, for human natures and wicked souls incline toward injustice and aggression and covet exacting more than the initial harm, especially the inhabitants of the desert and people of ignorance who turn from the paths of reason and justice, as transmitted of their custom in the pre-Islamic era.
If the equalizing deterrent penalties for aggression and qisas without increase or diminution had not been prescribed, the people of ignorance, fervor and proud souls would have dared to kill and slay in initiation, and to discount what is exacted from them in retribution: it would lead to mutual annihilation, and in it there is...
From al-Hasan, from Jabir ibn 'Abdillah, the Messenger of Allah, may the peace and blessings of Allah be upon him, said:
I will not pardon whoever kills after taking the diya.
Weak hadith: reported by Abu Dawud (4507) and Ahmad in his "Musnad" (14954)
And because he killed a protected person equivalent to him: qisas is therefore due upon him as if he had not killed.
Section: if the heir pardons the killer absolutely, the pardon is valid and no punishment is incumbent upon him; this is the statement of al-Shafi'i, Ishaq, Ibn al-Mundhir and Abu Thawr. Malik, al-Layth and al-Awza'i said: he is beaten and imprisoned for a year.
As for us: there was upon him only one right, and its entitled party has waived it: nothing else is therefore due upon him, like waiving the diya from an accidental killer (1).
(1) "al-Mughni" (8/279, 280).
The jurists differed on the entitlement for killing: is it retaliation only, the diya not being due except by mutual consent? Or is the one entitled for the killing given the choice between retaliation and the diya?
The Hanafis, the Malikis in the school's position, the Shafi'is in one view and Imam Ahmad in a narration: intentional killing obligates retaliation, and the diya is not due except with the offender's consent; and if the offender dies, qisas lapses due to the loss of its subject, and the diya is not due.
This is because what intentional killing obligates is retaliation in essence: money is not due except through settlement with the killer's consent. Its proof is the statement of Allah the Most High:
And We ordained for them therein: a life for a life
Surah Al-Ma'idah, 45
Were money due, or one of the 2, it would not be "a life for a life". The law of those before us binds us unless abrogation is established; and all the hadiths of choice between qisas and diya are isolated reports, by which the Book is not abrogated.
And the statement of Allah the Most High:
Prescribed for you is retaliation concerning those killed
Surah Al-Baqarah, 178
and retaliation is equivalence in language, and equivalence is between a life and a life, not between it and money. Or we say: He mentioned qisas and did not mention the diya: were choice or the diya established, it would be by an isolated report, and that is an addition to the Book, and addition is abrogation, and the Book is not abrogated by it.
The Prophet, may the peace and blessings of Allah be upon him, said:
Intentional killing entails retaliation, unless the heir of the slain pardons.
Reported by al-Daraqutni (3/94), no. 45
And in one wording:
Whoever is killed deliberately: it is retaliation.
Authentic hadith: reported by Abu Dawud (4541), al-Nasa'i (4790) and Ibn Majah (2635)
And he said, may the peace and blessings of Allah be upon him:
The decree of the Book of Allah is retaliation.
Reported by al-Bukhari (2557)
He thereby informed that what is in Allah's Book is qisas to the exclusion of any other. And because killing obligates retaliation in its intentional form and the diya in its accidental form: just as one may not move from the diya in accidental killing to other than it except by mutual consent, so moving from retaliation to other than it may not occur except by mutual consent.
And because the entitlement to kill is obtained at times through retaliation and at times through defending oneself: just as one does not own a substitute for the killing one suffers in self-defense, so the heir does not own a substitute for retaliation.
Then, if the heirs settle for money, it is permitted, be it little or much, of the same kind as the diya or otherwise, immediate or deferred. If they do not settle but some of them pardon, qisas lapses; the share of the pardoning one does not turn into money, while the share of the rest does turn into money.
For whenever the execution of qisas becomes impossible from the side of the one entitled to it, his share does not turn into money; and whenever it becomes impossible from the side of the one upon whom it falls, his share turns into money: thus the share of the pardoning one does not turn into money because execution became impossible from his side, and the share of the one who did not pardon turns into money because execution became impossible from another's side.
This settled money is from the killer's wealth, per the statement of Ibn 'Abbas, may Allah be pleased with them both: "The 'aqilah bears no intentional killing, no slave, no settlement, and no confession" (1). This is intentional killing and settlement: the 'aqilah therefore does not bear it; it is due from the killer's wealth according to what the 2 agree upon of deferral, immediacy or installments. Its basis is the statement of Allah the Most High:
But whoever is pardoned by his brother for anything, then there should be follow-up with what is fair and payment to him in a good manner
Surah Al-Baqarah, 178
meaning settlement (2).
(1) Hasan hadith: reported by al-Bayhaqi (8/104).
(2) "Mukhtasar Ikhtilaf al-'Ulama'" (5/171, 174), "Sharh Ma'ani al-Athar" (3/174, 178), "al-Ikhtiyar" (5/29, 30), "al-Istidhkar" (8/48, 49), "al-Ma'una" (2/253, 254), "al-Ishraf 'ala Nukat Masa'il al-Khilaf" (4/94, 95), "Tafsir al-Qurtubi" (2/252), "al-Muhadhdhab" (2/188) and "Sharh al-Zarkashi" (3/29).
The Malikis in one view, the Shafi'is in the school's position and the Hanbalis in the school's position: intentional killing obligates retaliation, and it is for the heir of the slain to pardon him in favor of the diya without requiring the killer's consent: he may demand the diya of him even without the offender's agreement, due to the statement of Allah the Most High:
Prescribed for you is retaliation concerning those killed: the free for the free, the slave for the slave, and the female for the female. But whoever is pardoned by his brother for anything, then there should be follow-up with what is fair and payment to him in a good manner
Surah Al-Baqarah, 178
Its meaning: whoever is pardoned regarding qisas, the heir should pursue the diya fairly, and the killer should pay it in a good manner. He assigned pursuit to the heir and payment to the killer; since the killer alone bears the payment, the heir alone pursues, without depending on consent.
From Abu Shurayh al-Ka'bi, the Messenger of Allah, may the peace and blessings of Allah be upon him, said:
You, people of Khuza'ah, have killed this man from Hudhayl, and I am paying his diya. Whoever has a slain relative after today: his family has 2 options: either they kill, or they take the diya.
Authentic hadith: reported by Abu Dawud (4504), at-Tirmidhi (1406) and Ahmad (27204)
He thereby gave the heir the choice between retaliation and the diya: this is explicit text. Abu Hurayra related: the Messenger of Allah, may the peace and blessings of Allah be upon him, stood and said:
Whoever has a slain relative has the better of 2 options: either he is paid, or he is subjected to retaliation.
Reported by al-Bukhari (112) and Muslim (1355)
And because retaliation may lapse by the heir's pardon when he is alone, and by one of them pardoning when they are several; and it is established that its lapse by one of them pardoning entails the diya without mutual consent: so likewise its entailment by all of them pardoning.
Its precise formulation by analogy: it is a retaliation that lapsed through pardon: the diya in it does not depend on consent, like one of them pardoning. And because killing has 2 substitutes, the severer being retaliation and the lighter the diya: since one owns the severer retaliation without consent, owning the lighter diya without consent is all the more the case.
And because intentional killing is severer and accidental killing lighter: since one owns the diya in the lighter of the 2, owning it in the severer is all the more the case. And because the human life has 2 substitutes, retaliation and the diya: it is not for the heir of blood to be restricted to one of them.
And whoever is owed qisas may settle for more than the diya. And if the heir pardons the qisas, the diya becomes specified according to the Shafi'is and the Hanbalis.
And whenever the heir chooses the diya, it becomes specified and qisas lapses, according to the Shafi'is in the school's position and the Hanbalis. Ahmad said: once he takes the diya, he has pardoned the blood and owns no claim of retaliation after choosing the diya, for what has fallen does not return; if he kills him after choosing the diya, he is killed for it, for it is transgressive intentional killing.
According to the Shafi'is in one view: if he chooses the diya, qisas does not lapse, and if he chooses qisas, his right to the diya does not lapse: his choice remains as it was. And if he pardons absolutely, without qualifying it by retaliation or diya, the diya is his, because the pardon is directed to retaliation, as it is what answers vengeance, and vengeance is only accomplished by killing.
Or he pardons for other than money, such as pardoning for wine or the like: the diya is his. Or he pardons retaliation in general, saying: "I have pardoned the retaliation", without qualifying it by anything, even if the pardon concerns his hand, meaning the victim's, or his foot or the like: the diya is his, because the pardon is directed to retaliation.
And if the one entitled to retaliation says to the one against whom he holds it: "I have pardoned your offense", or "I have pardoned you", he is cleared of the diya as of retaliation, according to the Shafi'is and the Hanbalis in the school's position, because his pardon covers both. It is said: if he intended the diya. It is said: if he claims he intended only the retaliation, he is believed; otherwise he is cleared (1).
(1) "al-Hawi al-Kabir" (12/95, 96), "al-Muhadhdhab" (2/188), "Rawdat at-Talibin" (6/259, 261), "an-Najm al-Wahhaj" (8/439, 442), "al-Mughni" (8/284, 285), "al-Kafi" (4/49), "Sharh al-Zarkashi" (3/29), "al-Mubdi'" (8/305), "Kashshaf al-Qina'" (5/640, 641) and "Matalib Uli al-Nuha" (6/61, 62).
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed that the heir of blood has one of 2 things: qisas or pardon, either upon the diya or without it.
They differed: is the transfer from qisas to pardon upon taking the diya a binding right of the heir of blood, without there being any choice for the one subjected to qisas? Or is the diya established only by the mutual consent of the 2 parties, the heir and the killer, so that if the one subjected to qisas does not wish to pay the diya, the heir of blood has only qisas absolutely or pardon?
Malik said: the heir is owed only to exact qisas or to pardon without diya, unless the killer consents to giving the diya; this is Ibn al-Qasim's narration from him, and with it ruled Abu Hanifa, ath-Thawri, al-Awza'i and a group.
Al-Shafi'i, Ahmad, Abu Thawr, Dawud and most of the jurists of Madinah among the companions of Malik and others said: the heir of blood has the choice: if he wishes, he exacts qisas, and if he wishes, he takes the diya, whether the killer consents or not. Ashhab related that from Malik, but the well known from him is the first narration.
The basis of Malik in the well-known narration is the hadith of Anas ibn Malik in the story of Sinn ar-Rabi', that the Messenger of Allah, may the peace and blessings of Allah be upon him, said:
The decree of the Book of Allah is retaliation.
Reported by al-Bukhari (2556)
by implication it is thereby known that he has only qisas. The basis of the second group is the established hadith of Abu Hurayra: "Whoever has a slain relative has the better of 2 options: between taking the diya and pardoning."
These are 2 hadiths agreed to be authentic, but the first is weak in its indication that he has only qisas, and the second is explicit that he has the choice. Harmonization between them is possible if the implication is lifted from it: if harmonization is obligatory and possible, turning to the second hadith is obligatory. The majority hold that harmonization is obligatory when possible and takes precedence over preferment.
Allah the Most High also says:
And do not kill yourselves
Surah An-Nisa, 29
And when ransoming his soul with money is offered to the responsible person, it is obligatory for him to ransom it; its basis: if he finds food in famine at its fair price and has what to buy it with, he is adjudged to buy it; how then about the purchase of his own soul?
It follows from this narration, when the slain has minor and adult heirs, that the execution is to be deferred until the minors come of age so that the choice is theirs, especially if the minors block the adults from inheritance, like sons with brothers.
The judge said: this question occurred in Cordoba during the lifetime of my grandfather, may Allah have mercy on him. The scholars of his time gave fatwa according to the well-known narration, namely that the minor is not waited for; but he, may Allah have mercy on him, gave fatwa to wait for him, by analogy, and the scholars of his time denounced him for it because...