Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The heirs' pardon, equality of retaliation and execution
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
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 four 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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 two 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.
The non-Muslim is executed for the Muslim, the slave for the free, and the woman for the man, because of the word of Allah the Most High : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45) ; it is a consensus of the people of knowledge ; and if he is executed for his equal, his execution for one above him is more entitled.
The man is executed for the woman according to the four schools, and it is the view of most of the scholars, because of the word of Allah the Most High : « And there is life for you in retaliation, O people of understanding : perhaps you will fear Allah » (Surah al-Baqara, 179), and His word : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45), generalities that stand except for what evidence specifies.
And because he is a person who killed his counterpart in religion : nothing applies to him but retaliation, as between two men.
Ibn Battal (may Allah have mercy on him) said : the imams of the great cities agreed that the man is executed for the woman and the woman for the man when the killing is intentional, except for al-Hasan al-Basri, Ata and what was reported from Ali.
Malik, ath-Thawri, ash-Shafi'i and most of the jurists held that retaliation between men and women regarding wounds is as it is regarding life.
Abu Hanifah said : there is no retaliation between men and women for what is below life, among wounds. His companions argued : equality is considered regarding life but not regarding limbs ; do you not see that the sound hand is not taken for the paralyzed hand, while the sound life is taken for the sick life ? Such are their subtleties, on which they build their discourse ; likewise they do not cut the hand of a woman for the hand of a man, nor the hand of a free person for that of a slave, even though retaliation applies between them for life.
Ibn al-Mundhir said : since they agreed that her life is for a life, and it is the greatest of things, while they disagreed over what is below that, what they disagreed over reverts to what they agreed upon ; for when much of a thing is permitted, its lesser part is more deserving of it (Sharh Sahih al-Bukhari 8/516).
Imam Ibn Rushd (may Allah have mercy on him) said : as for the execution of the man for the woman, Ibn al-Mundhir and others among those who recorded the disagreement related that it is a consensus, except what was related from Ali among the Companions and from Uthman al-Batti : according to them, when the man is killed for the woman, half the diya is due from the heirs of the woman.
The judge Abu al-Walid al-Baji related in al-Muntaqa from al-Hasan al-Basri that the man is not executed for the woman ; al-Khattabi related it in Ma'alim as-Sunan ; it is an anomalous view, but his proof is strong : the word of Allah the Most High : « the female for the female » (Surah al-Baqara, 178) ; even though the generality of the word of Allah the Most High : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45) counters the argument of this text here, this text was revealed for a law other than ours ; and it is a disputed question : is the law of those before us a law for us or not ? The basis for executing a man for a woman is regard for the general welfare (Bidayat al-Mujtahid 2/300).
Imam Ibn Qudamah (may Allah have mercy on him) said : the man is executed for the woman and the woman for the man : this is the view of the generality of the people of knowledge, among them an-Nakha'i, ash-Sha'bi, az-Zuhri, Umar ibn Abd al-Aziz, Malik and the people of Medina, ash-Shafi'i, Ishaq, the companions of personal opinion and others.
It was reported from Ali (may Allah be pleased with him) that he said : the man is killed for the woman, and his heirs are given half the diya ; reported by Sa'id. The like of this was reported from Ahmad, and it was related from al-Hasan and Ata ; from them both was also related the same as the view of the group. Whoever holds the second view argues presumably with the statement of Ali (may Allah be pleased with him) and with the fact that the diya of the woman is half his : so when he is executed for her, a remainder stands in his favor, exacted from the one who killed him.
As for us : the word of Allah the Most High : « a life for a life » (Surah al-Ma'ida, 45) and His word : « the free for the free » (Surah al-Baqara, 178), with the generality of the rest of the texts ; and it is established that the Prophet (peace and blessings of Allah be upon him) executed a Jew who had crushed the head of a servant girl of the Ansar ; and Abu Bakr Muhammad ibn Amr ibn Hazm reported from his father, from his grandfather, that the Messenger of Allah (peace and blessings of Allah be upon him) wrote to the people of Yemen a letter containing the prescribed shares and the schedules, and that the man is executed for the woman : it is a letter well known among the scholars, received from them with acceptance ; and because they are two persons each of whom incurs the fixed punishment of calumny for slandering the other : each is executed for the other, like two men ; and nothing is due along with the retaliation, for it is obligatory retaliation : nothing is due with it upon the executor, like the rest of the cases of retaliation ; and difference of equivalents carries no weight in retaliation, as proven by the group being killed for one, the Christian being executed for the Magian despite the difference of their religions, and the slave for the slave despite the difference of their value.
The jurists however disagreed on one question :
Executing a Muslim for the killing of a non-Muslim :
The jurists disagreed about the case of a Muslim killing a dhimmi whose blood is protected : is he executed for him unconditionally ? Not executed for him at all ? Or executed for him if he killed him treacherously, and not executed if the killing was not treacherous ? There are, on this, three views among the jurists :
The first view : if a Muslim kills a non-Muslim dhimmi whose blood is protected, he is not executed for him ; this is the school of the Shafi'is and the Hanbalis and of most of the people of knowledge ; because of the statement of the Prophet (peace and blessings of Allah be upon him):
« Muslims are equal in their blood : the covenant of the least of them binds all, and the protection granted by the noblest of them binds all ; they are one hand against others ; their strong restores their weak, and their swift one answers for their sitting one ; a believer is not killed for a disbeliever, nor one under covenant so long as his covenant holds. »an authentic hadith, reported by Abu Dawud 2751 and 4530, an-Nasa'i 4735 and 4746, Ibn Majah 2660 and Ahmad 6970
From Abu Juhayfah who said : I asked Ali (may Allah be pleased with him) : do you have anything that is not in the Quran ? (he once said : that is not with the people ?). He said : « By Him who split the grain and created the soul, we have nothing but what is in the Quran, except an understanding given to a man in his Book, and what is in the sheet. I said : and what is in the sheet ? He said : compensation for killing, the ransom of the captive, and that no Muslim be killed for a disbeliever. » (reported by al-Bukhari 6507)
And because he is diminished by unbelief : the Muslim is therefore not executed for him, like the non-Muslim under safe conduct ; for he is diminished by unbelief like the non-Muslim at war and the non-Muslim under safe conduct ; and because it is a fixed punishment whose execution takes place only upon demand : it is therefore not due from a Muslim to a disbeliever, like the punishment of calumny (al-Bayan 11/305 and 307 ; al-Mughni 8/218 ; Kashshaf al-Qina 6/618 ; Manar as-Sabil 3/226 and 228).
And because they agreed that the disbeliever does not undergo retaliation from the Muslim for what is below life, among wounds : life is more entitled to it (al-Istidhkar 8/124).
The second view : Imam Malik adopted the same view as the Shafi'is and the Hanbalis : if a Muslim kills a non-Muslim, whoever he may be, he is not executed for him, except if the Muslim kills the dhimmi treacherously, in which case he is executed for him. 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 : 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 third view, that of the Hanafis : if a Muslim kills a dhimmi who pays the jizyah and upon whom the rulings of Islam apply, he is executed for him in retaliation, because of the general texts of qisas, such as the word of Allah, blessed and exalted be He : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178), and His word, exalted be He : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45), and His word, glorious be His majesty : « And whoever is killed unjustly, We have given his heir authority » (Surah al-Isra, 33), without any distinction between one slain and another, one life and another, one wronged person and another : whoever claims specification and restriction, the burden of proof is upon him.
And His word, exalted is the One who spoke : « And there is life for you in retaliation » (Surah al-Baqara, 179) : the realization of the meaning of life in executing a Muslim for a dhimmi is more complete than in executing a Muslim for a Muslim, for religious hostility drives him to kill, especially in anger, and he may be driven to kill him over claims weighing upon him ; the need for a deterrent was therefore more pressing, and the legislation of qisas in it more fully realizes the meaning of life.
And because of what Ibn Umar reported : the Messenger of Allah (peace and blessings of Allah be upon him) executed a Muslim for a covenantor under protection and said :
« I am the worthiest of honoring the covenant made in my name. »a weak report, reported by ad-Daraqutni 3259 and al-Bayhaqi in as-Sunan al-Kubra 15695
And because equality in protection is established in consideration of legal obligation and abode ; what renders killing lawful is the unbelief of the combatant, not of the peaceful one ; and because they paid the jizyah only so that their property be as our property and their blood as our blood ; and because of their equality in permanent protection ; and because the absence of retaliation would deter them from accepting the covenant of dhimmah, with the obvious corruption that entails.
And because there is no disagreement that when a Muslim steals from a dhimmi, his hand is cut : likewise when he kills him.
And because the child's love for his parent, when it exists, is for benefits that reach him from him and not for his own sake, he may perhaps kill his father to hasten access to his possessions, especially when no benefit reaches him from him because of impediments ; the like of this is rare on the father's side (Bada'i as-Sana'i 7/235).
The jurists disagreed over how qisas is exacted from the killer : is he put to death by the like of the means he used to kill his victim, so that if he burned her he is burned with fire, and if he drowned her he is drowned with water, for instance ? Or is there no qisas except by the sword ?
This after their unanimous agreement that if the family of the victim kill him with the sword, it is permissible, and their agreement likewise that if he killed her with the sword, he may be killed only with the sword ; the disagreement concerns this : if he killed her with something other than the sword, is he killed by the like of what he did, or is the sword indispensable ?
The Hanafis and the Hanbalis, according to the school, held that there is no qisas except by the sword, whether he killed with it or with another sharp instrument, or with fire ; because of the statement of the Prophet (peace and blessings of Allah be upon him):
« There is no retaliation except by the sword. »a weak hadith, reported by Ibn Majah 2667 and 2668
a statement specifying that retaliation is neither obligatory nor executed by anything other than the sword. What is meant by the sword is the weapon ; for what is meant by weapon in execution is sharpened iron, like the dagger and the knife, and the sword was used by metonymy for the weapon because the weapon par excellence prepared for fighting is the sword, since it is not intended for anything other than fighting, while other weapons may serve other purposes ; it is the meaning of his statement (peace and blessings of Allah be upon him) : « I was sent with the sword before the Hour », meaning the weapon, which is the instrument of fighting.
And because entitlement to killing prevents its execution by other than the sword, like the apostate and the one who kills with the sword ; and because the destruction of lawful lives is permissible only with a sharp instrument, like slaughter animals, while the lives of human beings are more inviolable than the lives of beasts.
And because qisas is one of the two substitutes for life : the limb therefore falls under the ruling of the whole, like the diya ; were the matter to end in the diya, only the diya of the life would be due ; and because the aim of qisas for life is the disabling of the whole and the destruction of the entire body, and this is possible by striking the neck : it is therefore not permissible to go beyond it by destroying his limbs, just as if he killed her with a blunted sword, he is not killed with its like.
And if the heir wishes to kill by other than the sword, he is not permitted to ; were he to do it, he would be disciplinarily punished, but without liability, and he is deemed to have carried out his right by whatever way he killed him : whether he killed him with a stick, a stone, by throwing him from the roof, by casting him into a well, or by driving a mount against him until he died, and the like ; for the killing is his right : when he kills him he has exacted his right by whatever means, except that he sins by an execution not conducted through a lawful channel, for transgressing the limit set by the Law.
He may kill in person or through a deputy, by ordering another to kill, for not everyone is able to execute in person, whether through bodily weakness, weakness of heart, or lack of skill : the need for delegation therefore exists ; except that his presence at the execution is required (Ahkam al-Quran 1/198 and 200 ; al-Mabsut 26/122 ; Bada'i as-Sana'i 7/245 and 246 ; al-Hidaya 4/161 ; al-Binaya, commentary on al-Hidaya, 13/86 and 87 ; al-Ikhtiyar 5/35 ; al-Jawhara an-Nayyira 5/211 ; al-Mughni 8/240 ; al-Kafi 4/42 ; al-Mubdi 8/292 ; al-Insaf 9/490 ; Manar as-Sabil 3/238 and 239).
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis according to a narration chosen by Shaykh al-Islam Ibn Taymiyyah, held that every killer is killed by the means he used : whoever kills another by burning is burned with fire until he dies ; whoever kills another with poison is killed with it ; whoever kills another by striking with a stone is killed by the means he used.
They supported this with the Book and the Sunnah.
As for the Book : the word of Allah the Most High : « So whoever transgresses against you, transgress against him in the same way he transgressed against you » (Surah al-Baqara, 194), and His word : « And if you punish, punish with the like of that with which you were afflicted » (Surah an-Nahl, 126), and His word : « The retribution for an evil act is an evil act like it » (Surah ash-Shura, 40).
As for the Sunnah : among it is what al-Bara' ibn Azib reported from the Prophet (peace and blessings of Allah be upon him):
« Whoever burns, we burn him ; and whoever drowns, we drown him. »a weak hadith, reported by al-Bayhaqi in as-Sunan 15771
and because qisas denotes equivalence : it must therefore be applied according to what it requires.
Anas (may Allah be pleased with him) reported the account of the Jew who killed a young servant girl over her jewelry and killed her with a stone, and whom the Prophet (peace and blessings of Allah be upon him) put to death with two stones, after the girl had indicated her killer by signs (reported by al-Bukhari 6485 and Muslim 1672).
And because for every instrument the like of which kills, the execution of qisas by its like is permissible, like the sword ; and because qisas is instituted for equivalence, which is considered regarding life : it is more entitled to be considered regarding the instrument of killing ; and because killing is at times a right of Allah the Most High and at times a right of human beings : since in the right of Allah it takes two forms, at times with iron and at times with the heavy instrument in the stoning of the married fornicator, it was fitting that in the rights of human beings it take two forms, with a heavy instrument and otherwise.
Its formulation as analogy : it is one of the two modes of killing ; its execution was therefore bound to take two forms, like killing in the rights of Allah the Most High.
As for the answer to his statement (peace and blessings of Allah be upon him) : « There is no retaliation except by the sword », if the hadith is authentic, it is understood as applying to killing when it was done with a sword or a piece of iron.
The Malikis and the Shafi'is, and here the Hanbalis, specified that he is killed by everything he killed with, except three things : killing by sorcery, by sodomy, or by making him drink wine : he is not killed by sorcery even if he killed with it, nor by sodomy even if he committed it upon him, nor by making him drink wine even if he gave it him : recourse is had to killing him with the sword, for that is forbidden in itself : the means therefore falls away and the killing remains (Tafsir al-Qurtubi 2/358 ; ad-Dakhira 12/449 and 450 ; al-Hawi al-Kabir 12/139 and 140 ; al-Muhadhdhab 2/186 ; al-Bayan 11/414 and 416 ; an-Najm al-Wahhaj 8/429 and 431 ; al-Mughni 8/240 ; al-Kafi 4/42 ; Sharh az-Zarkashi 3/19 ; al-Mubdi 8/292 ; al-Insaf 9/490 ; Manar as-Sabil 3/238 and 239).
Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) said : many jurists said : if he killed him by burning, drowning, strangling or the like, there is done to him what he did, so long as the act is not forbidden in itself, like forcing him to drink wine or sodomizing him ; some of them said : « there is no retaliation upon him except by the sword » ; the first view is closer to the Book, the Sunnah and justice (Majmu al-Fatawa 23/381).
Ibn al-Qayyim (may Allah have mercy on him) said : among this is equivalence in qisas for the three categories of wrongs : lives, property and honor ; these are three questions :
The first : is there done to the offender what was done to the offended ? If the act is forbidden as a right of Allah, like sodomy or forcing him to drink wine, nothing of the sort is done to him, by consensus.
If it is otherwise, like burning him with fire, casting him into water, crushing his head with a stone, or depriving him of food and drink until he dies : Malik, ash-Shafi'i and Ahmad, in one of the narrations from him, do to him what he did, there being no difference between the lethal wound and any other.
Abu Hanifah and Ahmad, in a narration from him, say : he is killed only with the sword, at the neck specifically.
Ahmad, in a third narration, says : if the wound is lethal, there is done to him what he did ; otherwise he is killed with the sword.
In a fourth narration he says : if it is lethal or by itself warrants retaliation were it taken alone, there is done to him what he did ; otherwise he is killed with the sword.
The Book and the scale are with the first view, and it is what the Sunnah brought : the Prophet (peace and blessings of Allah be upon him) crushed the head of the Jew between two stones, as he had done to the servant girl ; this is not a killing for breach of covenant, for the covenant-breaker is killed only with the sword, at the neck ; and in a report elevated to the Prophet : « Whoever burns, we burn him ; whoever drowns, we drown him » ; and of the hadith « There is no retaliation except by the sword », Imam Ahmad said : its chain is not good ; and what is established from the Companions is that there is done to him what he did. The Book, the Sunnah, analogy and the reports of the Companions therefore agree upon it, and the very name of qisas requires it, for it entails equivalence (I'lam al-Muwaqqi'in 1/327).
Malik's view differed on this question : Ibn Habib said : if the victim was married and the husband established the proof, nothing is due from him ; otherwise he is executed for her. Ibn al-Qasim said : if the proof is established, the married and the unmarried are alike and his blood is forfeit ; Ibn al-Qasim considered the diya preferable in the case of the unmarried (Zad al-Ma'ad 5/403 and 407).
What intentional killing entails :
Intentional killing entails six things :
First : the sin : the killer sins by consensus, because of the word of Allah the Most High : « And whoever kills a believer deliberately, his recompense is Hell, abiding eternally therein ; Allah is angry with him, has cursed him, and has prepared for him a tremendous punishment » (Surah an-Nisa, 93).
From Abdallah ibn Umar (may Allah be pleased with them both), the Messenger of Allah (peace and blessings of Allah be upon him) said :
« The believer remains in the breadth of his religion so long as he does not shed forbidden blood. »reported by al-Bukhari 6469
Second : retaliation (qisas) by consensus, because of the word of Allah the Most High : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178) ; the intentional is meant, for there is no qisas for anything else : there is no qisas for the quasi-intentional or the accidental, by consensus.
Imam Ibn Hazm (may Allah have mercy on him) said : there is no disagreement among anyone of the community that retaliation applies only to the intentional (al-Muhalla 10/408).
Imam Ibn Rushd (may Allah have mercy on him) said : as for the description of that which obligates qisas, they agreed that it is intentionality (Bidayat al-Mujtahid 2/297).
Imam Ibn Hajar al-Haytami (may Allah have mercy on him) said : there is no qisas except for the intentional, by consensus, unlike the accidental and the quasi-intentional (Tuhfat al-Muhtaj 10/286).
Imam Ibn Qudamah (may Allah have mercy on him) said : the scholars agreed that retaliation is due only for the intentional, and we know of no disagreement among them on its obligation for intentional killing when its conditions are met (al-Mughni 8/214).
The verses and the reports, in their generality, establish qisas for the intentional ; among them :
the word of Allah the Most High : « And whoever is killed unjustly, We have given his heir authority, but let him not exceed in killing » (Surah al-Isra, 33).
Allah the Most High said : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178).
Allah the Most High said : « And there is life for you in retaliation » (Surah al-Baqara, 179) : He means that the obligation of qisas deters whoever intends killing, out of regard for himself, from killing, so that life remains for the one whose killing was intended.
It has also been said : enmity becomes established between the killer and the tribe of the victim : he intends to kill them out of fear of them, and they intend to kill him and his tribe in requital ; exacting retaliation upon him by the judgment of the Law cuts off the cause of destruction between the two tribes.
On the obligation of qisas : qisas is due, and if it is not possible, the financial compensation (arsh) is due (Bada'i as-Sana'i 7/233 and 234).
The Shafi'is said : intentional by way of error, or quasi-intentional, is to intend the act and the person together with what does not usually kill, as when striking with a whip or a stick a light blow, or throwing a small stone without repeating the blows, the pain not intensifying as a result, it not being a time of intense heat or cold, and the one struck not being frail or small : this is quasi-intentional ; if any of these factors is present, it is intentional, for it usually kills in such circumstances (an-Najm al-Wahhaj 8/329 and 330 ; Mughni al-Muhtaj 5/215).
The Hanbalis said : quasi-intentional is to direct at someone a wrong that does not usually kill and with which he does not wound him, or to intend to strike him with what does not usually kill, whether intending aggression or intending discipline but going to excess in it, like striking a person away from the vital spots with a whip, a stick or a small stone, or jabbing him with the hand, and everything that does not usually kill : if he dies of it, it is quasi-intentional, for he intended the striking and not the killing ; likewise if he casts him into shallow water, or shouts at a sane person caught off guard, or at a child on a roof, or the like, and he dies (al-Mughni 8/216 ; Kashshaf al-Qina 5/603 ; Sharh Muntaha al-Iradat 6/13 and 14 ; Manar as-Sabil 3/221).
The jurists disagreed : does quasi-intentional killing exist, or do only the intentional and the accidental exist ?
The majority of jurists, the Hanafis, the Malikis in one view, the Shafi'is and the Hanbalis, held that killing has types, that the category previously defined is the quasi-intentional, and that the Sunnah mentioned it, such as the statement of the Prophet (peace and blessings of Allah be upon him):
« The victim of an accidental, quasi-intentional killing, the victim of the whip and the stick : one hundred camels, forty of them pregnant, carrying their young in their wombs. »an authentic hadith, reported by Abu Dawud 4547, an-Nasa'i 4794 and 4796, Ibn Majah 2627 and Imam Ahmad 23540
He thereby affirmed the quasi-intentional ; its description as such conveys that it takes a resemblance to the intentional and a resemblance to the accidental : it therefore does not have the ruling of either in pure form ; its resemblance to the intentional is the killer's aiming to strike with what does not usually kill the like ; its resemblance to the accidental is that he did not intend killing : it was therefore bound to have a ruling of its own, distinct from the ruling specific to the two.
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 ruled the diya upon the liability group (aqilah) of the killer ; she was pregnant, and he judged a ghurrah for the fetus. One of her agnates said : shall we pay for one who has no taste, no drink and no cry, and who dissolves as this ? He said : rhymed prose, like the rhymed prose of the Bedouins. »reported by Muslim 1682
From Amr ibn Shu'ayb, from his father, from his grandfather : the Prophet (peace and blessings of Allah be upon him) said :
« The compensation for quasi-intentional killing is aggravated, like the compensation for intentional killing, but its author is not killed. »a good hadith (hasan), reported by Abu Dawud 4565 and Ahmad 6718
This is a third category established by the Sunnah, while the intentional and the accidental are established by the Book ; and because it is a killing that does not entail retaliation, its diya falls upon the liability group (aqilah), like accidental killing (al-Hidaya 4/158 and 159 ; al-Inaya 15/122 and 123 ; al-Jawhara an-Nayyira 5/196 and 197 ; at-Ta'rifat 165 ; Bahr ar-Ra'iq 8/332 ; al-Ishraf ala Nukat Masa'il al-Khilaf 4/107 and 108 ; al-Bayan 11/449 and 450 ; an-Najm al-Wahhaj 8/329 and 330 ; Mughni al-Muhtaj 5/215 ; al-Mughni 8/216 ; Kashshaf al-Qina 5/603 ; Sharh Muntaha al-Iradat 6/13 and 14 ; Manar as-Sabil 3/221).
...a diya delivered to his family, and the freeing of a believing slave.
Surat an-Nisa (The Women), verse 92
This fetus, if it is born of two believing parents or of one of them, is judged a believer by attachment: it inherits from them, its believing heirs inherit from it, and no disbeliever inherits anything from it. If it is born of people under a covenant of protection, it belongs to a people between whom and us there is a pact; and since it is a life secured by diya, the freeing (of a slave) is required for it as for the adult. The omission of the mention of the expiation does not prevent its obligation, just as in his saying, peace be upon him: "In the life of a believer there are one hundred camels," where he mentions the diya in several places without mentioning the expiation; and likewise the Prophet, may the peace and blessings of Allah be upon him, ruled the diya of the slain woman upon the 'aqila of the slayer without mentioning an expiation, although it is obligatory; so too here. And it is so because the verse dispensed with mentioning the expiation in another place, and reliance was placed upon it (1).
(1) "al-Mughni" (8/326, 327).
The imam Ibn Rushd, may Allah have mercy on him, said: as for the unborn, they agreed that what is due for the fetus of a free woman, and for the fetus of a female slave from her master, is the ghurra, because of what is established from him, may the peace and blessings of Allah be upon him, in the hadith of Abu Hurayra and others:
Two women of Hudhayl: one struck the other and caused her to lose her fetus; the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled for it a ghurra: a slave or a slave girl.
Reported by Abu Hurayra and others; cited in "Bidayat al-Mujtahid" (2/311)
The people of knowledge are unanimously agreed that if a woman is beaten and delivers her fetus alive, and it then dies, the full diya is due for it.
(1) "al-Mughni" (8/326, 327).
(2) "Bidayat al-Mujtahid" (2/311).
The imam Ibn al-Mundhir, may Allah have mercy on him, said: all those whose words we preserve among the people of knowledge agreed that for the fetus that falls alive as a result of a blow, the full diya is due.
They also agreed that if the mother's womb is struck and she delivers the fetus alive, and it then dies shortly after its exit, and it is known that its death resulted from the blow and from what was done to it and to its mother, the full diya is due, and the male and the female are equivalent in this; and upon this view are the body of jurists of the great cities.
The scholars agreed that if the fetus comes out immediately after the blow or because of it, then dies on the spot, the full diya is due; if it does not die on the spot, the word that prevails is that of the 'aqila: that it died of a cause other than the injury (1).
(1) "al-Iqna'" (2/296, 297).
The imam al-Nawawi, may Allah have mercy on him, said: if it is born alive and then dies, the full diya of an adult is due: if it is male, one hundred camels; if female, fifty; this is by consensus, and deliberate and accidental are alike in all of this (2).
(2) "Sharh Sahih Muslim" (11/176).
The imam Ibn Rushd, may Allah have mercy on him, said: as for the description of the fetus for which it is due, they agreed that among its conditions are that the fetus come out dead and that its mother not die from the blow.
They differed when the mother dies from the blow and the fetus then falls dead: al-Shafi'i and Malik said: nothing is due for it; Ashhab said: the ghurra, and of his view were al-Layth, Rabi'a and al-Zuhri.
(1) "Bidayat al-Mujtahid" (2/311, 312).
They differed, within this chapter, on derived questions: the sign that indicates whether it fell alive or dead.
Malik and his companions held that the sign of life is the cry at birth or weeping; al-Shafi'i, Abu Hanifa, al-Thawri and most jurists said: anything by which life is customarily known, movement, sneezing or breathing, carries the rulings of a living person; and this is the more evident view (1).
(1) "Bidayat al-Mujtahid" (2/311, 312).
The imam al-Qurtubi, may Allah have mercy on him, said: killing the fetus in its mother's womb means that its mother's womb is struck and she delivers it alive and it then dies. All the scholars without exception said: the full diya is due for it, in the accidental case, and in the deliberate case after the qasama; and it has been said: without qasama.
They differed on the criterion by which its life is known, after their agreement that if it cries out at birth, suckles, or breathes a verified breath, it is alive and the full diya is due. If it moves: al-Shafi'i and Abu Hanifa said movement indicates its life; Malik said: no, unless it is accompanied by a prolonged survival. The male and the female are, according to all the scholars, equal in the ruling. If she delivers it dead: a ghurra is due for it, a slave or a slave girl. If she does not deliver it and dies while it is in her womb without coming out: nothing is due for it. All of this is consensus, without disagreement.
It is reported from al-Layth ibn Sa'd and Dawud that both said, regarding the woman who dies from a blow to her womb and whose fetus then comes out dead after her death: the ghurra is due, whether she delivered it before her death or after her death; what counts is the life of the mother at the time of the blow, nothing else.