Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Means of killing and the aggravated diya
Contents
Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The Hanafis, the Shafi'is and the Hanbalis have explicitly stated that a bequest in favor of the one who kills (the testator) is not valid. Hence, if he says: “I bequeath to whoever kills me”, the bequest is not valid. Al-Mawardi, may Allah have mercy on him, reported it as the sole view, for two reasons:
First: it is a bequest concluded upon an act of disobedience.
Second: it involves incitement to kill him (2).
(2) "al-Hawi al-Kabir" (8/191), "Bada'i' al-Sana'i'" (7/339), "Mukhtasar Ikhtilaf al-'Ulama'" (5/19, 20), "al-Hidaya" (4/232), "Kashshaf al-Qina'" (4/434).
The jurists differed concerning a group that jointly participates in killing a person whose blood is protected and cooperates in it, when evidence is established or there is a confession: are they all killed in retaliation for him if they are his equivalents (mukafi')? Or are they not killed, the diya becoming due instead?
The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to the position of the school, hold that if a group jointly participates in killing a protected person and cooperates in it, and the act of each one of them, taken alone, would have made qisas obligatory, then they are killed for him, however numerous they may be.
They supported this with the following:
The statement of Allah, exalted be He:
And whoever is killed unjustly, We have given his heir authority, so let him not exceed limits in killing
Surah Al-Isra, 33
There is no difference between the killer being one or many: the name of killers applies to them, and Allah, exalted be He, made the proof binding against them in favor of the victim's heir.
And the statement of Allah, exalted be He:
And there is life for you in qisas
Surah Al-Baqara, 179
The reason for this life is that the killer, knowing that qisas is due from him if he kills, refrains from killing; thus the killer and the potential victim live; for if the group were not killed for one, this would lead to removing the life that Allah placed in qisas, which He made to be life.
And if the group knew that after killing one man they would not be killed, enemies would cooperate to kill their enemies by joining in their killing, and they would attain the object of their hope: satisfying their vengeance against them.
Moreover, the soul is not divisible in its destruction; the proof is that one does not say: “killer of part of a soul”, for from each of them proceeds an act to which, on his part, the departure of the soul is attached; and this is not divisible, since it is impossible that part of the soul departed through the act of one and part through the act of the rest. Each of them is therefore a killer of a whole soul. It is like a group pushing a stone: each of them would be a pusher, for the stone is not divisible, just as the soul is not divisible.
And His statement:
a life for a life
Surah Al-Ma'ida, 45
The alif and lam (the definite article) denote genus, so its meaning is: lives for lives. Likewise His statement:
the free for the free
Surah Al-Baqara, 178
its meaning is: the free for the free (in plural). There is therefore no difference between a group that kills one man and a group that kills a group.
Ibn al-Musayyib reported that 'Umar ibn al-Khattab, may Allah be pleased with him, killed five or seven men for one single man whom they had killed treacherously (ghila), and 'Umar said: “If the people of Sana'a had conspired against him, I would have killed them all” (1).
(1) Reported by Malik in “al-Muwatta'” (1561). Al-Bayhaqi reported in “al-Sunan al-Kubra” (15754), from Jarir ibn Hazim, that al-Mughira ibn Hakim al-San'ani narrated to him from his father: “A woman in Sana'a whose husband was away had in her care a son of his from another wife, a boy called Asil. The woman took a lover after her husband and said to her lover: this boy will expose us, kill him. He refused; she withheld herself from him; he complied with her and agreed. The man, another man, the woman and her maidservant joined in killing him: they killed him, cut him into pieces, put him in a leather chest and threw it into a dry well on the outskirts of the village. The woman then cried out, people gathered and went out searching for the boy. A man passed by the well in which the boy was, and green flies came out of it; we said: by Allah, there is a carcass in this one. The woman's lover was with us; trembling seized him, so we took him away and detained him, and we sent a man who brought out the boy. We then seized the man: he confessed and told us the story; the woman, the other man and her maidservant confessed. Ya'la, who was then governor, wrote concerning them, and 'Umar, may Allah be pleased with him, wrote to him to kill them all, and said: by Allah, had the people of Sana'a shared in his killing, I would have killed them every one.” We also reported from Abu Ishaq al-Sabi'i, from Sa'id ibn Wahb: “Some people went out on a journey and a man accompanied them; they arrived without him, and his family suspected them. Shurayh said: produce your witnesses that they killed your companion, otherwise they shall swear by Allah that they did not kill him. They brought them to 'Ali, may Allah be pleased with him. Sa'id said: I was with him; he separated them and they confessed; I heard 'Ali, may Allah be pleased with him, say: I am Abu al-Hasan al-Qaram; and 'Ali, may Allah be pleased with him, ordered that they be killed.”
The ghila is the ruse: it consists of contriving so as to be able to act in concealment until they kill the victim.
It is reported from 'Ali, may Allah be pleased with him, that he killed three men who had killed one man, and that he wrote to the people of Nahrawan after they killed his governor Khabbab ibn al-Aratt: hand over his killer. They said: we all killed him. He said: then surrender yourselves, all of you, so that I may take retaliation from you; and he marched against them and killed most of them.
Al-Mughira ibn Shu'ba killed seven men for one.
Ibn Abbas said: “If a group kills one man, they are to be killed for him, even if they were a hundred.” This is the position of four Companions, among whom were two imams who acted upon what they had said.
And because killing a soul is graver than violating honor through slander (qadhf): since the hadd punishment was imposed upon a group for slandering one man, it is more fitting that they be killed for killing one man.
And because the name of killer applies to each member of the group, the ruling must therefore apply to him as it applies to the single one; and what is due for the killing of one is not dropped when the killing is committed by a group, like the diya.
And because the sanctity of the one equals the sanctity of the group, per the statement of Allah, exalted be He:
Because of that We ordained upon the Children of Israel that whoever kills a soul, other than for a soul or for corruption in the land, it is as if he had killed all mankind
Surah Al-Ma'ida, 32
Retaliation must therefore be the same in both cases.
It makes no difference whether they killed him with a sharp instrument or a blunt one, threw him from a height or into the sea, or inflicted on him wounds that were combined or separate.
Once the killing of a group for one is established, the wali (the victim's heir) has, according to the Shafi'is and the Hanbalis, the choice among three situations:
Either he takes retaliation from all of them; or he pardons all of them in exchange for the diya, in which case the single diya is divided among them according to their number; or he pardons some and takes retaliation from others, and receives from those he pardoned their share of the diya.
According to one view among the Hanbalis: if the wali pardons them, he receives from each of them a full diya.
According to one view among the Hanafis: if the wali pardons one of the two killers, or reaches a settlement with him, he may not take retaliation from the other.
According to the second view, which is the correct one: pardoning one of the two killers does not annul the retaliation due from the other, and the same applies to a settlement with one of them; for qisas became binding upon both through the killing, then one of the two dropped through pardon, and the blood of one is distinct from the blood of the other: its dropping for one creates no ambiguity regarding the other. Unlike the case where qisas is not binding upon one of the two killers: there, the two acts combined upon one single locus, one incurring liability and the other not, and the victim's blood is not partly distinct from other parts.
All agreed, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to the school, that equality of cause is not a condition for the obligation of qisas upon the participants; thus, if one wounds him with one wound and the other with a hundred, or one inflicts a wound laying bare the bone (mudliha) and the other one reaching the brain membrane (amma), or one a penetrating wound (ja'ifa) and the other a non-penetrating one, and he dies, they are equal in qisas and diya; for requiring equality leads to dropping qisas from the participants, since two wounds are rarely equal from every aspect; and even if equality were held to be possible, the ruling would not be established: for a condition, knowledge of its existence is required, and the mere possibility of its existence does not suffice; rather, ignorance of its existence is like knowledge of its absence in precluding the ruling. And because it is possible to die from a single wound rather than from a hundred, just as it is possible to die from the mudliha rather than the amma, and from the non-penetrating wound rather than the penetrating one. And because when wounds become causes of death, their individual consideration lapses, so the ruling for the group is like the ruling for the single one. Do you not see that if a man cut off all his limbs and he died, a single diya would be due, just as if he cut off one limb and he died? And this is by their unanimous agreement.
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis, regarding the qisas of a group for one, say: the group is not killed for one unless each of them committed an offense such that, taken alone and followed by death, the killing would be attributed to him and qisas would be due from him. Thus, if the offense of one does not kill while the offense of the other kills, no qisas is due from the one whose offense does not kill.
Hence, if one cuts off his hand and the other slashes his neck, or cuts his trachea and esophagus, or splits open his belly and pulls out his entrails: the first is a mutilator, incurring what a mutilator incurs, and the second is the killer; for the second cut short the fatal course of the amputation, so the case becomes as though the wound had healed and then the other killed him. And if one cuts his trachea and esophagus, or splits open his belly and pulls out his entrails, and then the other slashes his neck: the killer is the first, for after his offense no settled life remains; the victim only moves with the movements of a slaughtered being; this is why the legal effect of his speech lapses in confession, bequest, entry into Islam and repentance.
And if a group participates in a killing in which the offense of some is intentional and that of others is mistaken, no qisas is due from any of them, for the intentional killing did not become purely intentional, so qisas is not due (1).
The Malikis say: the group that conspires to kill a person is killed even if they did not strike him with an instrument that kills, such as the hand or the whip; and even if only one actually carried out the killing, on condition that they be such that, were help sought from them, they would have helped; just as the indirect cause is killed together with the direct agent, like one who digs a well for a specific person to fall into, and he stands at its edge, and someone other than the digger pushes him in: they are all killed, on condition that they all intended his death in this manner, in accordance with the statement of 'Umar, may Allah be pleased with him. This applies when they struck him intentionally and wrongfully and he died on the spot; or he was carried away unconscious and remained so until he died; or the vital organs were pierced and the blows could not be distinguished; or
(1) "al-Mabsut" (26/157), "Bada'i' al-Sana'i'" (7/239), "al-Ikhtiyar" (5/37), "al-Jawhara al-Nayyira" (5/225, 226), "al-Durr al-Mukhtar with the hashiya of Ibn 'Abidin" (6/556, 557), "Sharh Sahih al-Bukhari" (8/526, 527), "al-Kafi" (p. 589), "Ahkam al-Qur'an" (1/195), "Tafsir al-Qurtubi" (1/251), "al-Dhakhira" (12/341), "al-Qawanin al-Fiqhiyya" (1/227), "al-Umm" (6/22), "al-Hawi al-Kabir" (12/28, 29), "al-Muhadhdhab" (2/174, 175), "al-Ishraf" (7/354, 355), "Rawdat al-Talibin" (6/170, 175), "al-Ifsah" (2/220), "al-Mughni" (8/230, 231), "Sharh al-Zarkashi" (3/14, 15), "al-Mubdi'" (8/253), "al-Insaf" (9/448), "Kashshaf al-Qina'" (5/606, 607), "Sharh Muntaha al-Iradat" (6/17, 18).
they were distinguished and equal, or different, and it is not known which of the blows specifically gave rise to the death: if his death was delayed, without the vital organs being pierced and without unconsciousness, only one is killed, through qasama (compurgation), for no more than one person is killed through qasama.
And if the offenses of each are clearly distinguished, retaliation is taken from the one from whose blow he died, if this is known, and from the rest retaliation equivalent to their deed is taken: retaliation from the one who wounded or cut, and disciplinary punishment for the one who did not wound. If the blows cannot be distinguished, because they were equal or the strongest is unknown, all of them are killed if he died on the spot, in reality or by legal presumption; otherwise one only, through qasama.
And if each of them intended only to strike him without conspiracy, and none of them intended to kill him, then they killed him together and he died of their blows: they are not killed, for intending to strike is not like intending to kill with respect to a group.
It has also been said: intending to strike is like intending to kill, so they are killed for him.
This applies when all the conspirators are legally accountable; if an accountable person joins with a child in killing a person whose blood is protected, qisas is due from the accountable person, and half the diya from the child's 'aqila, if they conspired to kill him (1).
(1) "al-Taj wa-l-Iklil" (5/225), "Sharh Mukhtasar Khalil" (8/10), "al-Sharh al-Kabir with the hashiya of al-Dasuqi" (6/189), "Tahbir al-Mukhtasar" (5/232), "Manh al-Jalil" (9/26).
The Hanbalis, according to one narration, hold that the group is not killed for one, and the diya is due instead of retaliation.
This is the view of Ibn al-Zubayr, al-Zuhri, Ibn Sirin, Habib ibn Abi Thabit, Abdallah, Rabi'a, Dawud and Ibn al-Mundhir; Ibn Abi Musa reported it from Ibn Abbas.
It is reported from Mu'adh ibn Jabal, Ibn al-Zubayr, Ibn Sirin and al-Zuhri that one of them is killed and the shares of the rest in the diya are taken from them; for each of them is his equivalent, and several equivalents are not exacted in exchange for a single one, just as several diyas are not due for a single victim. And because Allah, exalted be He, said:
the free for the free
Surah Al-Baqara, 178
and His statement:
We ordained for them therein that a life is for a life
Surah Al-Ma'ida, 45
What these require is that no more than one life is taken for a life. And because disparity in attributes is a bar: the proof is that a free man is not killed for a slave; disparity in number is a stronger bar.
Ibn al-Mundhir, may Allah have mercy on him, said: there is no proof with those who make the killing of a group for one obligatory (1).
(1) "al-Ishraf" (7/354, 355), "al-Ifsah" (2/220), "al-Mughni" (8/230, 231), "Sharh al-Zarkashi" (3/14, 15), "al-Mubdi'" (8/253).
The imam Abu 'Umar Ibn Abd al-Barr, may Allah have mercy on him, said: the jurists differed on the killing of a group for one. A group of jurists of the great centers, among them al-Thawri, al-Awza'i, al-Layth, Malik, Abu Hanifa, al-Shafi'i and their companions, Ahmad, Ishaq and Abu Thawr, said: the group is killed for the one they killed, whether the group be large or small, when they participated in killing the single victim.
This is reported from 'Umar, 'Ali, al-Mughira ibn Shu'ba and Ibn Abbas, may Allah be pleased with them. Ibn Abbas said: “If a hundred killed one, they would be killed for him”; and of the same view were Ibrahim, al-Sha'bi, Qatada, Abu Salama, al-Hasan and Sulayman ibn Musa.
Dawud said: the group is not killed for one, and no more than one person is killed for a single life; this is the view of Ibn al-Zubayr.
Abd al-Razzaq mentioned, from Ibn Jurayj, from 'Amr ibn Dinar: Ibn al-Zubayr and Abd al-Malik would kill only one of them, and I knew of no one who killed them all except what was reported of 'Umar; this is also reported from Mu'adh ibn Jabal.
Abu Bakr mentioned: 'Ubayd Allah ibn Musa narrated to me, from Hasan ibn Salih, from Simak, from Duhayl ibn Ka'b, that Mu'adh said to 'Umar: “You have no right to kill two lives for one life”; and of the same view were Muhammad ibn Sirin, Ibn Shihab al-Zuhri and Habib ibn Abi Thabit.
Ma'mar reported from al-Zuhri: “Two men are not killed for one man, and two hands are not cut for one hand.”
Abu 'Umar said: the view of al-Zuhri and Dawud is consistent: two hands are not cut for one hand, and two men are not killed for one man.
Likewise, the view of Malik, al-Shafi'i, Ahmad, Ishaq and Abu Thawr is consistent: two hands or more are cut for one hand when they participated in cutting off the one hand, just as the group is killed for the one they killed together.
Abu Hanifa and his companions contradicted themselves: they said that two hands are not cut for one hand, nor for any other limb, this being the view of al-Thawri; yet they say that the group is killed for one. Among their proofs is that the soul is not divisible while the hand and the other limbs are divisible: each of them cut only part of the limb, so it is impossible that a whole limb be exacted from him when he did not cut it whole (1).
(1) "al-Istidhkar" (8/157, 158).
The imam Ibn Rushd, may Allah have mercy on him, said: as for the killing of a group for one, the majority of the jurists of the great centers said: the group is killed for one; among them Malik, Abu Hanifa, al-Shafi'i, al-Thawri, Ahmad, Abu Thawr and others, whether the group be large or small; and of the same view was 'Umar: it is even reported that he said: “If the people of Sana'a had conspired against him, I would have killed them all.”
Dawud and the Zahiris said: the group is not killed for one; this is the view of Ibn al-Zubayr; of the same view was al-Zuhri, and it is reported from Jabir.
Likewise, according to this group, hands are not cut for a hand, meaning when two persons or more participate in cutting off a hand.
Malik and al-Shafi'i said: hands are cut for the hand.
The Hanafis differentiated between the soul and the limbs: they said that souls are killed for the soul, but only one limb is cut for a limb; this will come in the chapter on qisas for limbs.
The basis of those who kill the group for one is the consideration of public welfare (maslaha): it is understood that capital punishment was prescribed only to remove killing, as the Book indicates in the statement of Allah, exalted be He:
And there is life for you in qisas, O people of understanding
Surah Al-Baqara, 179
This being so, if…
(1) "Bidayat al-Mujtahid" (2/301).
So firm was the taqlid (blind adherence) in which they were, that he was compelled to produce on this matter a view by which he defended this school, and it is available in people's hands (1).
(1) "Bidayat al-Mujtahid" (2/301).
When the diya is imposed for intentional killing, it is taken from the property of the offender, by consensus, per the statement of Ibn Abbas, may Allah be pleased with him and his father: “The 'aqila does not carry the intentional act, nor the slave, nor the settlement, nor the confession” (2).
(2) Sound (hasan) hadith: reported by al-Bayhaqi (8/104).
The imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that the 'aqila does not carry the diya of intentional killing, and that it carries the diya of mistaken killing (3).
(3) "al-Ijma'" (705).
This will be explained in the Book of Diyas.
The jurists differed concerning one who kills another intentionally: is the expiation (it consists in freeing a slave, or, failing that, in fasting two consecutive months) binding upon him, or is it not binding upon him?
The majority of jurists, the Hanafis, the Malikis, the Shafi'is according to one view and the Hanbalis according to the position of the school, hold that there is no expiation in intentional killing: Allah, exalted be He, mentioned the intentional act and its ruling:
And whoever kills a believer intentionally, his recompense is Hell
Surah An-Nisa, 93
and did not mention the expiation; and He mentioned the mistaken act and its ruling, expounding the expiation in the mistaken act: were it obligatory in the intentional act as it is in the mistaken one, He would have expounded it.
And because Allah, exalted be He, said:
And whoever kills a believer by mistake must free a believing slave
Surah An-Nisa, 92
textually establishing the obligation of the expiation in mistaken killing; and He mentioned intentional killing in His statement:
Retaliation is prescribed for you in the case of murder
Surah Al-Baqara, 178
and His statement:
a life for a life
Surah Al-Ma'ida, 45
particularizing it to the intentional act. Since each of the two victims is mentioned specifically, with the ruling textually laid down for it, it is not permissible for us to go beyond what Allah, exalted be He, has textually laid down concerning both: it is indeed not permissible to draw analogies between explicit texts upon one another, for the expiation is obligatory only where Allah made it obligatory; expiations are acts of worship upon which analogy is not valid; and it is not permissible for anyone to institute an obligation that he would impose upon Allah's servants except by Book, Sunna or consensus; and there is no proof, from what I have mentioned, for those who impose an expiation upon the intentional killer.
And because it is a cause entailing capital punishment, it therefore does not entail an expiation upon its doer; the original case is fornication by a married person. And because, if an expiation attached to killing, retaliation would not attach to it: do you not see that mistaken killing, upon which an expiation came down, entails no retaliation (1)?
(1) "al-Mabsut" (27/84, 85), "Ahkam al-Qur'an" (3/221), "al-'Inaya, commentary on al-Hidaya" (15/120, 121), "al-Ishraf 'ala Nukat Masa'il al-Khilaf" (4/163), "Tafsir al-Qurtubi" (5/331), "al-Mughni" (8/402).
The Shafi'is according to the position of the school, and Ahmad according to one narration, hold that the expiation is obligatory in intentional killing, semi-intentional killing and mistaken killing, and in killing by indirect cause as by direct act: it is thus due from one who digs a well wrongfully, from one who sets a net in which a person perishes, from one who coerces another to kill, and from the false witness.
The proof is the statement of Allah, exalted be He:
And whoever kills a believer by mistake must free a believing slave
Surah An-Nisa, 92
The text establishes the obligation of the expiation in mistaken killing, to give notice of its obligation in purely intentional killing and in semi-intentional killing; for the mistake is of a lesser degree than intentional killing: it involves no retaliation and no sin, and its diya is reduced. If the expiation is obligatory in it…, it is all the more fitting that it be obligatory in purely intentional killing and in semi-intentional killing.
Wathila ibn al-Asqa', may Allah be pleased with him, reported:
We were with the Prophet, may the peace and blessings of Allah be upon him, on the expedition of Tabuk. A group of men from Banu Sulaym came to him and said: O Messenger of Allah, a companion of ours has incurred (the Fire), meaning by a killing. The Messenger of Allah, may the peace and blessings of Allah be upon him, said: free a slave on his behalf; for every limb of it, Allah will free a limb of him from the Fire.
Reported by Ibn Hibban in his Sahih (4307) and by al-Nasa'i in al-Sunan al-Kubra (4892); graded weak by al-Albani
And the Fire is not deserved except for intentional killing.
And because, if it is obligatory in mistaken killing, it is all the more fitting that it be obligatory in intentional killing: its sin is graver, its offense greater, and its need for the expiation of its sin greater (2).
(2) "al-Hawi al-Kabir" (13/67), "al-Bayan" (11/622, 623), "Rawdat al-Talibin" (6/415), "al-Najm al-Wahhaj" (8/591, 594), "Mughni al-Muhtaj" (5/376, 378), "Tuhfat al-Muhtaj" (10/585, 590), "al-Mughni" (8/402).
The jurists differed concerning one who throws another from a height or from the top of a mountain and he dies: is qisas binding upon him, or is it semi-intentional killing requiring the diya? The difference is the same as before.
The majority of jurists, the Malikis, the Shafi'is, the Hanbalis and the two companions (of Abu Hanifa), hold that one who throws another from a height, a raised place or the top of a mountain incurs qisas.
The imam Abu Hanifa, may Allah have mercy on him, holds that one who throws another from a height or from the top of a mountain commits a semi-intentional act requiring the diya (1).
(1) Previous sources.
The jurists differed concerning one who throws another into water so that he drowns and dies: is qisas binding upon him, or the diya?
The majority of jurists, the Malikis, the Shafi'is, the Hanbalis and the two companions (of Abu Hanifa), hold that one who throws another into water and he drowns and dies incurs qisas, according to a detail in their doctrine.
The two companions say: if he throws him into water and he drowns, qisas is due from him when the water is such that one cannot usually escape from it; for it is like killing by fire. It is therefore required that the water be great, such that escape is impossible, for the act to be, according to them both, an intentional one entailing qisas; if the water is little, and does not kill
(1) "Bada'i' al-Sana'i'" (7/234), "al-Jawhara al-Nayyira" (5/194), "hashiya of Ibn 'Abidin" (6/543).
usually, or great but escapable by swimming because the victim is not bound and knows how to swim: it is semi-intentional (1).
The Malikis say: one who throws a person into a river when he does not in fact know how to swim, with hostility and intent to kill, is killed for him, without qasama, contrary to Ibn al-Hajib; whether the thrower knew that the thrown person could swim or not. The same applies to one who can swim when escape was usually absent because of severe cold or a long distance, and he drowned: he is killed for him; in this case the throwing can only be hostile.
Otherwise: when he can swim, his escape is usual, and the throwing was not hostile but in play or the like while he cannot swim; or he can swim, whether the throwing was hostile or in play: he is not killed for him, and a reduced diya (mukhammasa), not an aggravated one, is due to the victim (2).
(2) "al-Taj wa-l-Iklil" (5/222), "Sharh Mukhtasar Khalil" (8/8), "al-Sharh al-Kabir with the hashiya of al-Dasuqi" (6/186), "Tahbir al-Mukhtasar" (5/227, 228), "hashiya of al-Sawi on al-Sharh al-Saghir" (10/45).
The Shafi'is say: if he throws him into water and he drowns in it, the case is twofold:
First case: he throws him into the deep of a sea whose shore is far: this is intentional killing, and retaliation is due from him, whether the victim can swim or not; for by swimming he would not reach the shore, it being far.
Second case: he throws him into a river or a sea near the shore; this case is twofold:
First case: he binds him or weights him down so that he cannot escape the water, and he drowns: retaliation is also due from him, as in the case of one thrown into the deep of the sea.
Second case: the victim is loose, neither bound nor weighted; this case is twofold:
First case: he cannot swim: retaliation is also due from him, for he cannot save himself.
Second case: he can swim yet does not swim: no retaliation is due, for he was able to save himself and thus destroyed himself. Is a diya due from him or not? Two views; the correct one: no diya.
If he throws him into the water and a huge fish swallows him, the case is twofold:
First case: the throwing into that water did not entail retaliation, as we detailed: no retaliation is due if the fish swallows him, for he perished from other than his act; the diya is due from him, for he was, through his act, a cause leading to his destruction.
Second case: the throwing into that water entailed retaliation, and the fish swallowed him before death: two views on the obligation of retaliation:
The first, which is the apparent text of al-Shafi'i: retaliation is due from him, for were the fish not to swallow him, it would be due; it is not dropped by its swallowing.
The second, reported by al-Rabi': no retaliation is due from him, for the direct cause of his destruction occurred by other than his act; the diya is due from him.
Al-Mawardi, may Allah have mercy on him, said: some of our companions carried the two views upon two different situations: the view establishing retaliation applies to the Nile of Egypt, upon which crocodiles predominate and from which none escapes; the view annulling retaliation applies to the other seas and rivers usually free of the like (1).
(1) "al-Hawi al-Kabir" (12/42, 43), "al-Bayan" (11/339, 340).
The Hanbalis say: if he throws him into water that drowns him and from which he cannot escape, whether because of the abundance of water, or because of his inability to escape due to illness or young age, or his being bound, or his being prevented from coming out, or the like; or throws him into a very deep well and he dies of it, with knowledge of that: all this is intentional killing, for it usually kills.
And if he throws him into little water that he was able to come out of, yet he remains in it voluntarily until he dies: no retaliation and no diya, for this act did not kill him; his death occurred through his remaining in it, which is his own act, and no one else is liable for it.
And if he throws him into the deep from which he cannot escape and a huge fish swallows him: two views:
The first: retaliation is due from him, for he threw him into a place of destruction and he perished in it: similar to his drowning in it.
The second: no retaliation is due from him, for he did not perish by it: similar to another human being killing him.
And if he throws him into little water and a wild beast devours him, or a huge fish or a crocodile swallows him: no retaliation is due from him, for what he did does not usually kill; and he is liable for it, for he perished by his act (1).
The imam Abu Hanifa, may Allah have mercy on him, holds that one who throws another into water and he drowns and dies incurs no qisas; the diya is due from the 'aqila; it has also been said: if he swam for a while then drowned thereafter, no diya is due.
It is stated in “al-Fatawa al-Hindiyya”: the Shaykh al-Islam mentioned, in “Sharh Ziyadat al-Usul”, that whoever drowns a man in water: if the water is little, not usually killing the like of him and from which escape by swimming is hoped for, and he dies of it, it is, according to all of them, quasi-intentional (khata' 'amd); and if the water is great: if it is such that escape from it by swimming is possible, he being neither bound nor weighted and knowing how to swim, and he dies, it is likewise quasi-intentional; and if it is such that escape is impossible: according to Abu Hanifa, may Allah have mercy on him, it is quasi-intentional with no qisas; according to them both, it is purely intentional and qisas is due; thus in “al-Muhit”.
And if a man seizes a man, trusses him (that is, binds his hands and feet with a rope), then throws him into the sea and he sinks in the water and dies, then floats up dead: he is not killed for him, and the aggravated diya is due from him; likewise if he submerges him in the sea or the Euphrates, persisting in doing so to him until he died.
And if a man throws a man from a ship into the sea or the Tigris and he does not know how to swim and sank: he is not killed for him according to Abu Hanifa, may Allah have mercy on him, and the diya is due from him; and if he comes up
(1) "al-Mughni" (8/210, 211), "al-Mubdi'" (8/245), "al-Insaf" (9/438), "Kashshaf al-Qina'" (5/597), "Sharh Muntaha al-Iradat" (6/9).
What is meant by the statement of the Prophet, may the peace and blessings of Allah be upon him: “a Muslim is not killed for a disbeliever”, is the disbeliever at war (harbi); for the term disbeliever, when unqualified, refers according to usage and custom to the disbeliever at war; the hadith is therefore referred to him, in reconciliation between the two hadiths.
And because what renders this blood lawful is the disbelief that incites warfare, and his disbelief does not incite warfare, so it renders nothing lawful.
And because equality in religion is not a condition: do you not see that when a dhimmi kills a dhimmi and then the killer becomes a Muslim, he is killed in retaliation for him with no equality in religion between them? Yet qisas is a trial with which creation is tested: whoever is most inclined toward the right of Allah, exalted be He, and most grateful for His favors is most deserving of this trial; for his excuse for committing the prohibited is smaller, he is most bound to fulfill the covenant of Allah, exalted be He, and the favors of Allah, exalted be He, toward him are more complete: his offense is therefore greater (1).
(1) "Bada'i' al-Sana'i'" (7/237), "al-Hidaya" (4/160), "al-'Inaya" (15/130), "al-Ikhtiyar" (5/34, 35), "Mukhtasar al-Wiqaya" (2/373), "Majma' al-Anhar" (4/314), "al-Jawhara al-Nayyira" (5/206).
The jurists differed concerning the parent, even an ascendant, who kills his child intentionally: is he killed for him or not?
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis, hold that the parent who kills his child is not killed for him, and the diya is taken from his property; according to what 'Amr ibn Shu'ayb reported from his father from his grandfather: a man killed his son intentionally, and the case was brought before 'Umar ibn al-Khattab, may Allah be pleased with him, who imposed on him one hundred camels: thirty hiqqa (three-year-old she-camels), thirty jadh'a (four-year-old) and forty thaniyya (five-year-old), and said: the killer does not inherit; and had I not heard the Messenger of Allah, may the peace and blessings of Allah be upon him, say: “a parent is not killed for his child”, I would have killed you (1).
(1) Reported by Imam Ahmad in his Musnad (346).
This report is widely transmitted and well known, and 'Umar ibn al-Khattab judged by it in the presence of the Companions without any of them objecting.
It is understood from this hadith that the child cannot be a cause for the annihilation of the one who was the cause of his existence; this extends to the mother, grandfathers and grandmothers.
Moreover, Allah, exalted be He, said:
And We enjoined upon man (care) for his parents: his mother carried him, weakness upon weakness, and his weaning is in two years: be grateful to Me and to your parents; to Me is the return. And if they strive against you to make you associate
Surah Al-Ahzab, 14-15
to the end of the verse: He commanded keeping company with disbelieving parents in kindness and commanded gratitude to them by His statement: “be grateful to Me and to your parents”, and He joined gratitude to them to gratitude to Him; and that precludes the permissibility of killing them.
And His statement:
Whether one or both of them reach old age with you, say not to them “ouff”, nor repulse them, but speak to them a generous word; and lower to them the wing of humility out of mercy, and say: My Lord, have mercy upon them as they raised me when I was small
Surah Al-Isra, 23-24
He particularized no state whatsoever, but commanded him thus with an absolute, general command; it is therefore not valid that a right of retaliation be established for the child against the parent, for these matters that Allah, exalted be He, commanded in the treatment of one's parent contradict his killing him.
Moreover, the Prophet, may the peace and blessings of Allah be upon him, forbade Hanzala ibn Abi 'Amir the ascetic to kill his father, who was an idolater waging war against Allah and His Messenger and was with Quraysh fighting the Prophet, may the peace and blessings of Allah be upon him, on the day of Uhud. Were it lawful for a son to kill his father in any state, the state of one fighting the Prophet, may the peace and blessings of Allah be upon him, as an idolater would be the most deserving of it; for it is not possible that anyone be more deserving of punishment, blame and killing than one whose state is such; so when he forbade him in this state, we knew that he does not deserve to be killed in any state. Likewise, if he slandered him, no hadd would be applied for him, and were he to cut off his hand, no retaliation would be taken from him.
And because the Prophet, may the peace and blessings of Allah be upon him, said: “You and your property belong to your father”: he attached his very self to him as he attached his property, and the absoluteness of this attribution precludes retaliation, just as it precludes that a master suffer retaliation for his slave, because of the unqualified attribution of the slave to him by an expression implying ownership in appearance. The father, though not in reality the owner of his son, this does not invalidate the proof drawn from the unqualified attribution: for retaliation is averted by doubtful presumptions, and the validity of this attribution is a presumption causing its lapse. Also indicating it is what is reported from the Prophet, may the peace and blessings of Allah be upon him: “The best of what a man eats is from his earning, and his child is part of his earning”; and he said: “Your children are part of your earnings, so eat from what your children earn”; he thus named his child an earning, just as his slave is his earning: this became a presumption causing the lapse of qisas, for it is averted by presumptions; and because he is the cause of his existence, it is not proper that he thereby gain power to annihilate him.
The father is distinct from all other people: were they to kill him with a stroke of the sword, qisas would be due from them; the father is otherwise.
The grandfather, even an ascendant, is like the father in this, whether paternal or maternal, according to the majority of those who drop qisas for the father; for he is a parent, entering the generality of the text; and because this is a ruling attached to filiation, in which near and far are alike, like the marriage prohibition and the emancipation of a relative upon acquiring him; and the paternal grandfather is like the maternal grandfather, for the daughter's son is named a son: the Prophet, may the peace and blessings of Allah be upon him, said of al-Hasan: “This son of mine is a sayyid (a noble).”
The mother is in this like the father, according to the majority of jurists, the Hanafis, the Shafi'is and the correct view of the school of the Hanbalis; for the names parent and child encompass every parent, however ascending, and every child, however descending.
It is reported from Ahmad, may Allah have mercy on him, what indicates that qisas is not dropped for the mother, for she has no guardianship (wilaya) over him: she is therefore killed for him, like a brother.
The correct view is the former, per the statement of the Prophet, may the peace and blessings of Allah be upon him: “a parent is not killed for his child”, and because she is one of the two parents: she resembles the father; and because she is more entitled to dutifulness, she is more entitled to the dropping of qisas from her. As for guardianship, it is not considered: the proof is the dropping of qisas for the father killing his adult son, over whom he has no guardianship; for the grandfather, who has no guardianship; and for the father of a different religion or a slave.
The grandmother, however ascending, is in this like the mother, whether paternal or maternal, for what we mentioned regarding the grandfather (1).
(1) "Ahkam al-Qur'an" of al-Jassas (1/178, 179), "Bada'i' al-Sana'i'" (7/235), "al-Hidaya" (4/161), "al-Jawhara al-Nayyira" (5/207), "al-Bayan" (11/318, 320), "Asna al-Matalib" (4/14), "Mughni al-Muhtaj" (5/236), "al-Mughni" (8/227), "al-Kafi" (4/7), "Sharh al-Zarkashi" (3/13), "al-Mubdi'" (8/273), "Kashshaf al-Qina'" (5/622), "Matalib Uli al-Nuha" (6/37, 38).
The Malikis, according to the well-known view, hold that a man who slaughters his child, or does to him an act leaving no doubt that he intended to kill him rather than discipline him, is killed for him; but if he strikes him with a sword or a stick, he is not killed for him; likewise the grandfather; due to the generality of the statement of the Prophet, may the peace and blessings of Allah be upon him:
The Muslims are equal in their blood.
Authentic hadith: reported by Abu Dawud (2751 and 4530), al-Nasa'i (4735 and 4746), Ibn Majah (2660) and Ahmad (6970)
And because qisas is a right among the rights of human beings, so it may be established for the son against the father, the original case being the other rights (2).
(2) "al-Tamhid" (23/437), "al-Istidhkar" (8/136), "al-Ishraf 'ala Nukat Masa'il al-Khilaf" (4/86), number (1431).
The imam Ibn al-'Arabi the Maliki, may Allah have mercy on him, said: is the father killed for his child despite the generality of the verses of qisas?
Malik said: he is killed for him when his intent to kill him becomes clear, such as laying him down and slaughtering him; if he strikes him with a weapon for discipline and anger, he is not killed for him; a stranger would be killed for the like of this; the rest of the jurists differed with him and said: he is not killed for him.
I heard our shaykh Fakhr al-Islam Abu Bakr al-Shashi say: in terms of rationale, the father is not killed for his son, for the father was the cause of his existence; how can he become the cause of his non-existence?
This is invalidated by the case of one who fornicates with his own daughter: he is stoned though he was the cause of her existence, and she becomes the cause of his non-existence. What fiqh is beneath this? And why would he not be the cause of his non-existence when he disobeys Allah, exalted be He, in that?
It has been transmitted from the Messenger of Allah, may the peace and blessings of Allah be upon him, that he said: “no retaliation is inflicted upon a parent for his child”; but it is a worthless (batil) hadith. The argument of the proponents of the dropping is that 'Umar, may Allah be pleased with him, judged the aggravated diya against one who killed his son, and none of the Companions objected to him. The rest of the jurists took the question as settled wholesale and said: the parent is not killed for the child; Malik took it in a settled, precisely detailed manner and said: if he strikes him with a sword, and this is a state accommodating the intent to kill and other than it, the tenderness of parentage is a standing presumption testifying to the absence of intent to kill, which drops retaliation; but when he lays him down, he uncovers his intent, and he rejoins the original rule (1).
(1) "Ahkam al-Qur'an" (1/94, 95).
The imam Ibn Rushd, may Allah have mercy on him, said: they differed, in this chapter, concerning the father and the son. Malik said: the father is not subjected to retaliation for the son unless he lays him down and slaughters him; as for striking him with a sword or a stick and killing him, he is not killed; likewise the grandfather with his grandson according to him.
Abu Hanifa, al-Shafi'i and al-Thawri said: the parent is not subjected to retaliation for the child, nor the grandfather for the grandson, whatever manner of intentional killing he used; and of this view is the majority of the scholars.
Their proof is the hadith of Ibn Abbas: the Prophet, may the peace and blessings of Allah be upon him, said:
The legal punishments shall not be carried out in the mosques, and no retaliation shall be inflicted upon a parent for his child.
Reported by al-Darimi in his Sunan (2357)
The proof of Malik is the generality of qisas among Muslims.
The cause of their difference is what they reported from Yahya ibn Sa'id, from 'Amr ibn Shu'ayb: a man of Banu Mudlij called Qatada struck a son of his with the sword, hitting his shin; his wound bled out and he died. Suraqa ibn Ju'shum came to 'Umar ibn al-Khattab and mentioned the matter to him. 'Umar said to him: count on the water of Qudayd one hundred and twenty camels until I come to you. When 'Umar arrived, he took from those camels thirty hiqqa, thirty jadh'a and forty khalifa (pregnant she-camels), then said: where is the brother of the slain? He said: here I am. He said: take them, for the Messenger of Allah, may the peace and blessings of Allah be upon him, said: “the killer is entitled to nothing”. Malik carried this hadith upon its not being purely intentional, and established from it semi-intentionality in the relationship between the son and the father.
As for the majority, they carried it upon its apparent sense, that it was intentional, by their consensus that whoever strikes another with a sword and kills him commits intentional killing.
As for Malik, in view of the father's authority to discipline his son and of his love for him, he held that killing occurring in circumstances such as these is not intentional, and he did not suspect him of having intended to kill, since it was not killing by treachery; intent to kill is imputed to its doer only upon a prevailing indication and strong suspicion, intentions being known only to Allah, exalted be He. Malik thus did not suspect the father where he suspects the stranger, because of the strength of love between father and son.
The majority, for their part, justified averting the punishment from the father on account of the right he holds over the son.
According to the principles of the Zahiris, retaliation applies (1).
(1) "Bidayat al-Mujtahid" (2/300, 301).
For a while, and he swam, then drowned and died: Abu Hanifa, may Allah have mercy on him, said: no qisas and no diya is due from him. Likewise the strong swimmer who was thrown into the sea to escape, and kept swimming until he grew faint, drowned and died: no retaliation and no diya. And if, when he was thrown into the water, it is not known whether he died or got out and no trace of him was seen: nothing is due from him…
And if a man throws a man into cold water on a winter's day, and he is seized and stiffened at the very moment of the throw: the diya is due from him; likewise if he strips him and leaves him on a roof on a very cold day and he remained so until he died of the cold; likewise if he trusses him, binding his hands and feet, and places him in the snow; thus in “al-Zahiriyya”. And if a man trusses a man or a young boy and then lays him out in the sun, and he cannot free himself until he died of the sun's heat: the diya is due from him; thus in “Khizanat al-Muftin” (1).
(1) "al-Fatawa al-Hindiyya" (6/5, 6), "Bada'i' al-Sana'i'" (7/234), "al-Jawhara al-Nayyira" (5/194), "hashiya of Ibn 'Abidin" (6/543).
The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, agreed that whoever burns another with fire and he dies of it incurs qisas (2).
(2) "Bada'i' al-Sana'i'" (7/234), "al-Jawhara al-Nayyira" (5/194), "hashiya of Ibn 'Abidin" (6/543), "al-Fatawa al-Hindiyya" (6/5, 6), "al-Ma'una" (2/254), "al-Tawdih" (8/53), "hashiya of al-Dasuqi on al-Sharh al-Kabir" (6/185), "al-Bayan" (11/339), "al-Mughni" (8/210).
The Hanafis say: if he burns him with fire, qisas is due from him. Muhammad, may Allah have mercy on him, said in “al-Jami' al-Saghir”: whoever heats an oven and throws a person into it, or throws him into a fire he cannot come out of and the fire burns him: qisas is obligatory; the subject matter of the question indicates that the heating suffices even if there is no flame in it.
And if he throws him into the fire, then he is brought out with a trace of life left, remains days, bedridden, until he dies: he is killed; and if he was coming and going then died: he is not killed; thus in “Fatawa Qadi Khan”.
And if a man trusses a man, binding his hands and feet with a rope, then boils water for him in a huge cauldron until it becomes as if fire, throws him into the water and his skin peels off at the very moment of the throw and he dies: he is killed for him. And if the water is hot but not boiling violently, and he throws him into it, and he remains a while then dies, his body blistered (blisters having formed on it) or thoroughly scalded by the water: he is killed for him; otherwise not. And if he is brought out of the cauldron in these various cases, already flayed, and he dies within the hour or the day, or he remains days of danger in which his life is feared for: he is killed for him; and if he recovered enough to come and go and then died of it: he is not killed, and the diya is due from him; this follows the reasoning of Abu Hanifa (1).
(1) "al-Jawhara al-Nayyira" (5/194), "al-Fatawa al-Hindiyya" (6/5, 6), "al-Ikhtiyar" (5/29), "al-Bahr al-Ra'iq" (5/335), "al-Lubab" (2/235), "Mukhtasar al-Wiqaya" (2/370).
The Shafi'is say: if he throws him into a fire located in a pit and he cannot come out of it until he dies, retaliation is due from him, for he killed him with what usually kills.
And if the fire is on level ground: if he cannot come out of it because of its abundance or the fierceness of its blaze, or because he bound his arms and threw him into it, or because he is too weak to come out, retaliation is due from him, for he killed him with what usually kills. If he could come out of it and did not come out until he died, while knowing that he could come out, saying for instance: “I am able to come out and I shall not”, retaliation is not due from him. Is the diya due from him? Two views:
The first: the diya is due from him, for he became liable for him by throwing him into the fire, and liability is not dropped by his neglecting to come out though he was able, as when he wounds him with a wound whose treatment is possible and he does not treat it until he dies of it.
The second: the diya is not due from him, for the soul did not depart through the throwing into the fire; it departed through his remaining in it by his own choice; the case is as though he came out of it then returned into it. This differs from neglecting treatment, for he produced no new matter by which destruction occurred, unlike his remaining in the fire, by which he produced a matter through which destruction occurred; and because healing through medicine is a matter of expectation, the diya was not dropped by neglecting it, whereas safety through coming out is a matter of certainty, so liability is dropped by neglecting it.
If we adopt this view, the thrower owes the compensation (arsh) for what the fire affected in him, from the time he threw him into it until the time he was able to come out and did not (1).
(1) "al-Muhadhdhab" (2/176), "al-Bayan" (11/339).
The Hanbalis say: if he throws him into a fire he cannot escape, whether because of the abundance of the fire, or his inability to escape due to illness or young age, or his being bound, or his being prevented from coming out, or his being in a pit he cannot climb out of, or the like, and he dies of it with knowledge of that: all this is intentional killing, for it usually kills.