Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The cancellation of qisas when some of the victim's heirs pardon
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Updated on 25 September 2026 at 3:23 PM
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It is stated in al-Mudawwana al-Kubra, regarding a man who killed another man by way of treacherous killing (ghilah) and then settled with the heir of the victim for money:
(I said): what is your view if a man kills one of my relatives, whose heir I am, by way of treacherous killing, and I settle with him for the diya : is this valid according to the view of Malik ? (He said): no, this belongs exclusively to the sultan ; you have no right here, you must return what you took from him, and the sultan passes on the killer the judgment passed on the highway robber : the sultan kills him by striking his neck or by crucifying him, if he wishes, alive, then killing him while crucified. (I said): is this the view of Malik ? (He said): as for the killing, Malik said exactly that to me, and likewise for the crucifixion ; as for the settlement, it is not valid, and this is my view ; because Malik said : the heirs of the blood have no standing over this blood, unlike intentional killing ; the matter belongs to the imam, who exercises his judgment upon it : he kills him in the most severe manner he sees fit (al-Mudawwana al-Kubra 16/430).
The jurists of the 4 schools agreed that if the victim has heirs entitled to qisas and one of them pardons, the entire qisas lapses and is replaced by the diya ; for one of the conditions for the obligation of qisas is the agreement of all the heirs in demanding it.
Imam as-Sarakhsi (may Allah have mercy on him) said : there is no disagreement that if one of the 2 partners in blood pardons, the other may collect the money, meaning the diya (al-Mabsut 26/61).
Imam Ibn Rushd (may Allah have mercy on him) said : they agreed that if someone killed intentionally leaves behind adult sons and one of them pardons, the qisas is voided and the diya becomes due.
They disagreed on whether daughters share with the sons in the pardon or the qisas, and likewise the wife or the husband and the sisters. Malik said : daughters and sisters have no say with the sons and the brothers in the qisas or its opposite, and their word is not considered alongside the men ; the same applies to the wife and the husband. Abu Hanifah, ath-Thawri, Ahmad and ash-Shafi'i said : every heir's word is considered in the waiver of qisas, in the waiver of his share of the diya, and in its execution. Ash-Shafi'i said : among them, the absent, the present, the minor and the adult are alike.
Their reasoning is that they treat blood like the diya. The reasoning of the first group is that guardianship belongs to males and not to females (Bidayat al-Mujtahid 2/302).
He said : if the victim leaves minor and adult heirs, the execution is to be postponed until the minors come of age so that the choice is theirs, all the more so when the minors exclude the adults from inheritance, as sons do with brothers.
The judge said : this question arose in Cordoba during the lifetime of my grandfather (may Allah have mercy on him). The scholars of his time issued the fatwa according to the well-known narration, namely that the minor is not waited for ; but he himself (may Allah have mercy on him) issued the fatwa that he should be waited for, by analogy, and the scholars of his time censured him for it because of the strictness of their imitation (taqlid), to the point that he was compelled to write on the matter a treatise in which he defended this school, and it is in people's hands (Bidayat al-Mujtahid 2/301).
Imam Ibn Hubayrah (may Allah have mercy on him) said : they agreed that if one of the male heirs pardons, the qisas lapses and the matter passes to the diya.
They disagreed about a woman among the heirs pardoning. Abu Hanifah, ash-Shafi'i and Ahmad said : the retaliation lapses.
As for Malik, Abd al-Wahhab said in al-Ma'unah : the narrations reported from Malik differ regarding women : do they have a share in blood or not ? Two narrations are reported from him. The first : they have a share in it like men when there is no agnate heir in their degree. The second : they have no share at all. And when it is said that they have a share, in what do they have a share ? Two narrations from him : one : in retaliation but not in pardon ; the second : in pardon but not in retaliation.
They agreed that if the heirs are present and adult and demand qisas, it is not postponed, unless the killer is a pregnant woman : qisas is then postponed until she gives birth.
They agreed that if the heirs are minors or absent, qisas is postponed, except for Abu Hanifah, who said regarding minors : if they have a father, he executes the qisas and does not postpone it.
If among them there are minors, absentees or an insane person, they all said : for the absentee, qisas is postponed until he returns ; then they disagreed regarding the minor and the insane. Abu Hanifah and Malik said : qisas is not postponed on their account. Ash-Shafi'i said : qisas is postponed until the insane person recovers and the minor comes of age. From Ahmad 2 narrations : the more apparent : it is postponed ; the other : as the school of Abu Hanifah and Malik (al-Ifsah 2/224 and 226).
Imam Ibn Qudamah (may Allah have mercy on him) said : if the victim leaves heirs entitled to qisas, one of the conditions of its obligation is their unanimous demand for it ; if one of them pardons, it lapses entirely ; and if some of them are absent or not legally competent, their co-heirs may not carry out the qisas until the absent one returns and chooses qisas or grants power of attorney, and the child reaches majority and the insane person recovers, and they choose it (al-Mughni 8/214).
Ibn Qudamah (may Allah have mercy on him) said : qisas is the right of all the heirs, relatives by blood or by marriage, men and women, minors and adults : whoever among them pardons, his pardon is valid, the qisas lapses and no one retains any way to it ; this is the view of most of the people of knowledge, among them Ata, an-Nakha'i, al-Hakam, Hammad, ath-Thawri, Abu Hanifah and ash-Shafi'i, and the meaning of this was reported from Umar, Tawus and ash-Sha'bi.
Al-Hasan, Qatadah, az-Zuhri, Ibn Shubramah, al-Layth and al-Awza'i said : women have no right of pardon. The well-known view of Malik is that it is inherited by the agnates specifically, and it is one position among the companions of ash-Shafi'i ; for it was established to repel dishonor, so it is specific to the agnates like guardianship in marriage. They have a third position : it belongs to the blood relatives to the exclusion of the 2 spouses, because of the statement of the Prophet (peace and blessings of Allah be upon him):
« Whoever has a slain relative, his family has the choice between 2 options : killing or taking the compensation. »cited by Ibn Qudamah in al-Mughni 8/278 and 279
his family meaning his close relatives.
Some jurists of Medina held that qisas does not lapse by the pardon of some of the partners, and it was said that this is a narration from Malik ; for the right of the one who did not pardon cannot be waived, and a life may be taken for part of a life, as proven by the killing of a group for one person.
As for us : the generality of his statement (peace and blessings of Allah be upon him) : « his family has the choice between 2 options », which is general for all his family, and the woman is part of his family, as proven by the statement of the Prophet (peace and blessings of Allah be upon him):
« Who will excuse me regarding a man whose harm against my family reaches me ? I know nothing but good of my family ; they have indeed mentioned a man of whom I know nothing but good, and he would not enter upon my family except with me. »cited by Ibn Qudamah in al-Mughni 8/278 and 279
He meant Aisha. Usamah said to him : O Messenger of Allah, your family : we know nothing but good of them.
Zayd ibn Wahb reported that a man who had killed someone was brought to Umar (may Allah be pleased with him), and the heirs of the victim came to kill him ; the wife of the victim, who was the sister of the killer, said : I have pardoned my right. Umar said : Allah is the greatest : the condemned man is spared. Reported by Abu Dawud.
In a narration from Zayd : a man entered upon his wife and found a man with her, and he killed her. Her brothers brought the case to Umar ; one of her brothers said : I have given my right away in charity ; he ruled the diya for the rest of them.
Qatadah reported that a man who had killed a man was brought before Umar, and the victim's children came while some of them had pardoned. Umar said to Ibn Mas'ud : what do you say ? He said : he has been secured from being killed. He struck him on the shoulder and said : a vessel filled with knowledge.
The proof that qisas belongs to all the heirs is what we mentioned in the question of qisas between the minor and the adult ; and whoever inherits the diya inherits the qisas, like the agnate : if one of them pardons, his pardon is valid, like his pardon of the rest of his rights ; and the dissolution of marriage does not prevent entitlement to qisas, just as it does not prevent entitlement to the diya and the rest of inherited rights ; and whenever it is established that it is a right shared by them all, it lapses by the waiver of whoever among them is qualified to waive, for his share of the right is his and his disposal of it is executed ; if it lapses, it lapses entirely, for it is of the things that are not divided, like divorce and emancipation ; and qisas is a shared right that is not divided, built upon averting and waiving : if one of them waives it, it extends to the remainder, like emancipation ; and the woman is one of those entitled, so it lapses by her waiver, as by that of a man.
And whenever one of them pardons, the others retain their right to the diya, whether he pardoned unconditionally or in exchange for the diya ; this is the view of Abu Hanifah and ash-Shafi'i, and I know of no opponent of theirs among those who held that qisas lapses ; for his share of the qisas lapsed without his consent, so the substitute is established for him, as if the killer inherited part of the blood, or because of what we reported from the report of Umar (may Allah be pleased with him) (al-Mughni 8/278 and 279).
Az-Zarkashi (may Allah have mercy on him) said : whoever among the heirs pardons the qisas makes it lapse ; for killing signifies the departure of the soul by an effective instrument, and that is not divisible : if one of those entitled waives his right to it, it lapses, because its execution becomes impossible (Sharh az-Zarkashi 3/27).
The jurists supported this with what Abu Dawud and others reported from Aisha (may Allah be pleased with her), from the Messenger of Allah (peace and blessings of Allah be upon him):
« It is incumbent upon the 2 fighting parties to withdraw from retaliation, the first then the first, even if it is a woman. »a weak hadith, reported by Abu Dawud 4538 and an-Nasa'i 4788
Abu Dawud said : it has reached me that the pardon of women in killing is valid when one of them is among the heirs ; and it has reached me from Abu Ubayd regarding his words « withdraw » : refrain from retaliation (Sunan Abu Dawud 4/183).
Abu Ubayd said : this withdrawal is the pardon of blood ; and this hadith indicates the permissibility of women's pardon of deliberate bloodshed, just as men's pardon of it is permissible ; all of this is from the words of Abu Ubayd (Sharh Mushkil al-Athar 1/97).
And by what Abd ar-Razzaq reported from Ma'mar from Qatadah : Umar ibn al-Khattab, a man who had killed a man was brought before him, and the heirs of the victim came while one of them had pardoned. Umar said to Ibn Mas'ud, who was beside him : what do you say ? Ibn Mas'ud said : I say that he has been secured from being killed. He struck him on the shoulder and then said : a vessel filled with knowledge (reported by Abd ar-Razzaq in his Musannaf 18187).
The killer's use of his weapon : the evidence was set in place of what it indicates, for evidences stand in place of what they indicate in legal conjectural knowledge.
Qisas is obligatory even if the witnesses did not mention intentionality (al-Ikhtiyar 5/29 ; al-Jawhara an-Nayyira 5/193 and 194 ; al-Lubab 2/235 and 236 ; Mukhtasar al-Waqaya 2/370 ; ad-Durr al-Mukhtar with the hashiya of Ibn Abidin 6/527 and 528).
Intentional killing has several forms : some are agreed upon among the jurists, while others are disputed : is it an intentional killing that obligates qisas, or an error or a quasi-intentional act that obligates the diya without qisas ?
This form necessarily comes in 2 kinds.
The first kind : there is no disagreement among the scholars that qisas is obligatory in it. It is striking with a sharp instrument, namely what cuts and penetrates the body, like the sword, the knife, the spearhead and the like : thus wounding with iron, copper, lead, gold, silver, glass, stone, cutting reed or wood ; all of this, if he wounds with it a grave wound and the victim dies, is intentional killing, without disagreement among the scholars (al-Ikhtiyar 5/29 ; al-Jawhara an-Nayyira 5/193 and 194 ; al-Lubab 2/235 and 236 ; Mukhtasar al-Waqaya 2/370 ; ad-Durr al-Mukhtar with the hashiya of Ibn Abidin 6/527 and 528 ; at-Taj wa-l-Iklil 5/222 ; Sharh Mukhtasar Khalil 8/7 ; ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/184 ; Rawdat at-Talibin 6/131 and 132 ; an-Najm al-Wahhaj 8/328 and 329 ; Mughni al-Muhtaj 5/213 and 214 ; Tuhfat al-Muhtaj 10/286 and 290 ; al-Mughni 8/208 ; Kashshaf al-Qina 5/594 ; Sharh Muntaha al-Iradat 6/6).
This type of killing has several forms that the majority of jurists included under the ruling of intentional killing ; among these forms :
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, as well as Abu Yusuf and Muhammad among the Hanafis, held that if a person strikes another with a large heavy instrument that usually kills the like, whether of iron like the anvil and its base and the hammer, or a heavy stone, or a large piece of wood, and the victim dies of it, qisas applies : it is intentional killing ; because of what Anas (may Allah be pleased with him) reported :
« A Jew killed a young servant girl over her jewelry : he killed her with a stone. She was brought to the Prophet (peace and blessings of Allah be upon him) while she still had a breath of life. He said : did so-and-so kill you ? She shook her head no. He asked a second time : she shook her head no. He asked her a third time : she nodded yes, and the Prophet (peace and blessings of Allah be upon him) killed him with 2 stones. »reported by al-Bukhari 6485 and Muslim 1672
and because such an instrument usually kills : it therefore resembles the sharp instrument.
From Amr ibn Dinar : he heard Tawus report from Ibn Abbas that Umar asked about a judgment of the Prophet (peace and blessings of Allah be upon him) concerning this. Hamal ibn Malik ibn an-Nabighah stood up and said :
« I had 2 wives ; one struck the other with a tent pole and killed her and her fetus ; the Messenger of Allah (peace and blessings of Allah be upon him) judged a ghurrah (compensation) for the fetus, and that she be killed for her. »an authentic hadith, reported by Abu Dawud 4572, an-Nasa'i 4739, Ibn Majah 2641 and Ahmad 16775
Abu Ubayd said : the tent pole is one of the poles of the tent, namely a large piece of wood fixed in the center of the tent.
And because it is an instrument with which killing is intended in most cases, retaliation could be due through it, its origin being the sharp instrument ; and because he deliberately killed, wrongfully, his counterpart in blood, he is like one who burns with fire ; and because omitting it would open a way onto haste in killing (Sharh Mushkil al-Athar 12/466 and 470 ; Bada'i as-Sana'i 7/234 ; al-Hidaya 4/158 and 159 ; al-Ikhtiyar 5/31 ; al-Jawhara an-Nayyira 5/195 and 197 ; Mukhtasar al-Waqaya 2/370 ; al-Ishraf ala Nukat Masa'il al-Khilaf 4/91 ; Sharh Mukhtasar Khalil 8/7 ; ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/183 and 185 ; Tahbir al-Mukhtasar 5/227 ; hashiya of as-Sawi on ash-Sharh as-Saghir 10/43 ; al-Hawi al-Kabir 12/35 and 37 ; al-Muhadhdhab 2/176 ; al-Bayan 11/335 and 336 ; Sharh Sahih Muslim 11/157 and 158 ; Rawdat at-Talibin 6/134 ; an-Najm al-Wahhaj 8/328 ; Mughni al-Muhtaj 5/213 ; Tuhfat al-Muhtaj 9/292 ; Nihayat al-Muhtaj 7/289 ; ad-Dibaj 4/9 and 10 ; al-Mughni 8/209 and 210 ; al-Kafi 4/12).
Al-Kharqi, among the Hanbalis, defined the large piece of wood as that which exceeds the pole of the large tent (fustat), meaning the slender poles the Bedouins use for their dwellings ; as for tent poles, they are large and usually kill : al-Kharqi did not intend them ; the limit of what obligates qisas is what exceeds the pole of the fustat, because the Prophet (peace and blessings of Allah be upon him), when asked about the woman who struck her co-wife with a fustat pole and killed her and her fetus, judged a ghurrah for the fetus and judged the diya upon the liability group (aqilah) of the killer ; from al-Mughirah ibn Shu'bah : a woman killed her co-wife with a fustat pole ; the case was brought to the Messenger of Allah (peace and blessings of Allah be upon him), who condemned the liability group of the killer.
From ash-Sha'bi : Ubadah ibn as-Samit said : I heard the Messenger of Allah (peace and blessings of Allah be upon him) say :
« Whoever receives a wound in his body and gives it away in charity, Allah will expiate from him the like of what he gave. »reported by Imam Ahmad in his Musnad 22844
As for consensus : Imam Ibn Qudamah (may Allah have mercy on him) said : the people of knowledge agreed on the validity of pardoning qisas and that it is preferable (al-Mughni 8/278).
Az-Zarkashi (may Allah have mercy on him) said : pardon of qisas is a matter of consensus, praise be to Allah, and it is even preferable (Sharh az-Zarkashi 3/27).
According to the majority of jurists, the Hanafis, the Shafi'is and the Hanbalis, there is no difference between treacherous killing and any other killing regarding qisas and pardon, and the matter belongs to the heir rather than the sultan, because of the generality of the word of Allah the Most High :
« And whoever is killed unjustly, We have given his heir authority. »
Surah al-Isra, 33
and the statement of the Prophet (peace and blessings of Allah be upon him):
« Whoever has someone killed has the better of 2 options : either he is compensated, or retaliation is carried out. »reported by al-Bukhari 112 and Muslim 1355
and because the victim was killed outside highway robbery : his affair belongs to his heir like the rest of the slain (al-Mughni 8/215).
Imam Muhammad ibn al-Hasan ash-Shaybani (may Allah have mercy on him) said : Abu Hanifah (may Allah be pleased with him) said : whoever kills a man deliberately, by treacherous killing or otherwise, the matter belongs to the heirs of the victim : if they wish, they kill ; if they wish, they pardon. The people of Medina said : if he killed him treacherously, with no prior hostility or enmity, he is killed, and the heirs of the victim have no right to pardon him : that belongs to the sultan, who puts the killer to death.
Muhammad ibn al-Hasan said : the word of Allah, exalted be He, is more truthful than any other : Allah, exalted be He, said : « And whoever is killed unjustly, We have given his heir authority, but let him not exceed in killing : he will be helped » (Surah al-Isra, 33), and He said : « O you who believe, retaliation is prescribed for you in cases of killing : the free for the free, the slave for the slave » (Surah al-Baqara, 178), up to His word : « But whoever is forgiven something by his brother, then follow it with kindness » ; He did not distinguish in this between treacherous killing and anything else.
Whoever is killed, his heir is the heir of his blood to the exclusion of the sultan : if he wishes, he kills ; if he wishes, he pardons ; the sultan has no part in it (al-Hujja ala Ahl al-Madina 4/382 and 383).
Imam ash-Shafi'i (may Allah have mercy on him) said : whoever is killed in highway robbery, in open country, in a city, by forcible assault, or killed treacherously for money or otherwise, or killed out of hostility : qisas and pardon belong to the heirs, and the sultan has no part in it, except for disciplinary correction if the heir pardons (al-Umm 7/329).
Imam Ibn Qudamah (may Allah have mercy on him) said : treacherous killing and other killings are the same regarding qisas and pardon, and this belongs to the heir rather than the sultan ; this is the view of Abu Hanifah, ash-Shafi'i and Ibn al-Mundhir.
Malik said : the rule with us is that he be killed for his victim, and the heir of the blood may not pardon him : that belongs to the sultan. Treacherous killing is, in his view, that a person be deceived so as to be taken into a house or the like, where he is killed or his property taken. He perhaps argues with the statement of Umar concerning the man killed treacherously : if the people of Sanaa had conspired together to kill him, I would have exacted retaliation from them all, and with his analogy to the highway robber.
As for us : the generality of the word of Allah the Most High : « We have given his heir authority » (Surah al-Isra, 33), and the statement of the Prophet (peace and blessings of Allah be upon him) : « his family has the choice between 2 options » ; and because the victim was slain outside highway robbery : his affair belongs to his heir like the rest of the slain ; and Umar's statement, I would have exacted retaliation from them, means : I enabled the heir to carry out retaliation against them (al-Mughni 8/215).
The Malikis held that the heir of the victim may not pardon in cases of treacherous killing : the killer is put to death, and this is not qisas, but on account of his corruption on earth.
Treacherous killing is killing in order to take the victim's property, as the highway robber does, not out of vengeance or enmity ; whether the killing is done secretly, as when he deceives him and takes him to a place where he kills him to take his money, or openly in a manner making rescue impossible, even if the second case is called highway robbery (hirabah) : he is not killed for it as qisas, but for corruption ; hence Imam Malik said : there is no pardon and no settlement in it ; the heir's settlement is void, and the judgment belongs to the imam (Sharh Sahih al-Bukhari 8/565 ; al-Ishraf ala Nukat Masa'il al-Khilaf 4/81 and 82 ; at-Taj wa-l-Iklil 5/217 ; Sharh Mukhtasar Khalil 8/3 ; ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/177 and 178 ; Tahbir al-Mukhtasar 5/222).
The Hanbalis said : and if his killing becomes obligatory, his killing is a fixed punishment (hadd) ; and it was said : he is killed in retaliation.
The diya of the victim is due from the estate of the sorcerer, as if he had died or been killed by something other than sorcery, for he is killed as a fixed punishment, not as retaliation, according to the correct view of the school (al-Mughni 8/212 and 213 ; al-Kafi 4/16 ; al-Insaf 9/441 ; Kashshaf al-Qina 5/600 ; Sharh Muntaha al-Iradat 6/11 ; Matalib Uli an-Nuha 6/10 ; al-Muhadhdhab 2/177 ; al-Bayan 11/348 and 349 ; Sharh Mukhtasar Khalil 8/30 ; Tahbir al-Mukhtasar 5/261 ; Sharh az-Zarqani 4/407).
The Hanafis held that the sorcerer who kills by his sorcery while not believing in its validity : if he is himself the direct actor, he has killed without iron ; if his act is repeated, he is killed on account of his haste in spreading corruption on earth ; if his act is not repeated, the diya is due from him, like one who kills without iron ; and if the bewitched person himself partakes of the means, there is no retaliation against the author of the cause, as if he had handed poison to another who ate it (at-Tajrid of al-Quduri 11/5825 ; Umdat al-Qari 21/267).
The Malikis and the Hanbalis said : if the caster of the evil eye destroys something, he is liable for it ; and if he kills with his eye, retaliation or the diya is due from him when this recurs from him to the point of becoming a habit.
Ad-Dasuqi (may Allah have mercy on him) said : retaliation is exacted from the caster of the evil eye who kills deliberately with his eye, when this is known of him and recurs (hashiya of ad-Dasuqi on ash-Sharh al-Kabir 6/189).
Imam al-Qurtubi (may Allah have mercy on him) said : if the caster of the evil eye destroys something, he is liable for it ; and if he kills, retaliation or the diya is due from him if this recurs from him to the point of becoming a habit ; in this he is like the sorcerer according to those who do not kill him for unbelief. End of quote (quoted from Fath al-Bari 10/215 ; see az-Zarqani on al-Muwatta 4/150 and ad-Dasuqi 4/245).
Al-Hafiz Ibn Hajar (may Allah have mercy on him) said : the affliction of the evil eye may kill, and disagreement arose over whether retaliation applies in it. Al-Qurtubi said : if the caster of the evil eye destroys something, he is liable for it ; and if he kills, retaliation or the diya is due from him if this recurs from him to the point of becoming a habit ; in this he is like the sorcerer according to those who do not kill him for unbelief. End of quote.
The Shafi'is did not address retaliation in it ; rather they denied it and said : the evil eye does not usually kill and is not counted as lethal. An-Nawawi said in ar-Rawda : no diya and no expiation is due for it, for the ruling attaches only to what is general and determinate, not to what is specific to some people in some states and has no determinacy ; besides, no deed at all issues from him : at most it is envy and the wish for a blessing to disappear. Moreover, what results from the affliction of the evil eye is the occurrence of harm to that person, and that harm is not restricted to the loss of life : some other harm from the effect of the evil eye may befall him. End of quote.
Nothing mars this except the ruling of killing the sorcerer : it is of the same purport, and the distinction between them is difficult. Ibn Battal reported from some of the people of knowledge that the imam should prevent the one known for the evil eye from mixing with people and confine him to his house ; if he is poor, he provides for what he needs, for his harm is more severe than that of the leper whom Umar (may Allah be pleased with him) prevented from mixing with people, as has been clearly set out in its chapter, and more severe than that of garlic, from which the Lawgiver barred the one who eats it from attending the congregational prayer. An-Nawawi said : this view is correct and compelling, and no explicit statement to the contrary is known from anyone else (Fath al-Bari 10/205 ; Sharh az-Zarqani 4/407).
Imam al-Buhuti (may Allah have mercy on him) said : as for the habitual caster of the evil eye who kills with his eye, Ibn Nasr Allah said in his hashiya on al-Furu : he should be treated like the sorcerer who usually kills with his sorcery ; when his eye is capable of killing and he does it by choice, qisas is due for it, for he did to him what usually kills.
If he does that without intending harm, it is plausible that it is an error incurring what accidental killing incurs ; likewise what he destroys with his eye : liability for it is plausible, except if it occurs unintentionally, in which case absence of liability is plausible. End of quote.
Ibn al-Qayyim said in Sharh Manazil as-Sa'irin : if it occurs without his choice, overpowering him, no retaliation is exacted from him and the diya is due from him ; if he did it deliberately, able to restrain it and knowing that it kills, the guardian of the victim may kill him by the same means he killed with, assisting him if he wishes, just as he assisted the victim ; as for killing him in retaliation with the sword, no, for it is not equivalent to the offense. He said : I asked our shaykh about killing by that state : does it entail retaliation ? He said : the guardian may kill him by the very state by which he killed.
Ibn al-Qayyim differentiated, in the second of the stations, between the caster of the evil eye and the sorcerer on 2 grounds.
The evil eye is a look of approval mixed with envy, from a vile nature, whereby harm befalls the one looked at. Some said : this results only from a poison that passes from the eye of the caster, through the air, to the body of the one targeted ; the like of it is that the menstruating woman puts her hand in a vessel of milk and spoils it, whereas after her purification she would not spoil it ; and that the healthy person looks into the eye of the one with ophthalmia and contracts it ; and that one person yawns in the presence of another who then yawns ; so said al-Hafiz in Fath al-Bari (Kashshaf al-Qina 5/600 ; Madarij as-Salikin 1/402 ; Fath al-Bari 10/210 and 215).
The Shafi'is, as well as the Hanafis, held that whoever afflicts another with the evil eye and acknowledges having killed him by it owes no retaliation, even though the evil eye is real, for it does not usually lead to death and is not counted as lethal.
Nor is there any diya or expiation for it. It is recommended for the caster of the evil eye to pray for blessing for the one afflicted, saying : « O Allah, bless him and do not harm him », and to say : « It is what Allah willed ; there is no strength except by Allah. » In Sahih Muslim, the Messenger of Allah (peace and blessings of Allah be upon him) said :
« The evil eye is real ; and if you are asked to wash, then wash. »reported by Muslim 2188
The scholars said : the request for washing is that the caster of the evil eye be told : « wash the inner part of your loincloth, the part against the skin, with water », and it is then poured over the one afflicted.