Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The bequest made to the killer after the blow
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Updated on 27 September 2026 at 3:52 AM
Cette partie fait partie de la section complète : Toutes les sections de cette partie.
This part gathers the questions of homicide as the four schools treat them: intentional killing, quasi-intentional killing, involuntary killing, the act assimilated to the involuntary, and killing by indirect cause. The jurists detail there the validity of the bequest made to the killer, the expiation and the blood money, the status of the child, the insane, the drunkard and the coerced person, the cases of detaining the victim and depriving her of food, the status of the false witnesses and of the biased judge, the man who kills the lover caught with his wife, the concrete forms of killing (strangling, poison, a fall from a height, drowning, fire, a wild beast, a blunt object), the exclusion from inheritance and from the bequest, the killing of a group for one person, the pardon of the heirs, and the equivalence between victim and killer.
Every opinion is attributed to the school or the scholar to whom the source attributes it, every hadith carries its original reference, and the notes of the original sheets are reproduced as they are.
This question continues the discussion of the bequest made to the killer: the wounded man may, once informed of the identity of his assailant, appoint him legatee, and then die of the wound. The jurists examined the validity of such a bequest.
The Hanbalis, whose view joins that of the Malikis, hold that if the man is wounded, then bequeaths to his assailant and dies of the wound, the bequest is valid: the disposition made after the harm proceeds from its author in its proper place, nothing intervening to annul it. The contrary holds when the bequest precedes the wound: death then comes upon it and annuls it, for it annuls what is stronger than itself. The reason is that killing causes the loss of inheritance because it hastens the inheritance whose cause has already come into being: the killer is exposed to the opposite of his aim, in order to deter from the evil of killing the one from whom one inherits. That is why the act disposing of the property is likewise annulled when death comes upon it, and this logic is even more evident for the bequest, which the killing may have hastened. But the killing before the bequest did not aim at hastening wealth, the cause of inheritance not yet having come into being, and the testator consents to the bequest after the wrong done to him by his legatee. There is no difference between the intentional and the involuntary, just as there is none in inheritance.
The Hanafis (and the Hanbalis according to one view) make no difference between the bequest before the attack and after it: the will takes effect only after death, and the legatee is a killer at the moment of death, whether the bequest precedes or follows the wrong; for were it valid, it would be suspended upon death, and he is a killer after death: no bequest for him. This follows also from the generality of the previous hadith, which does not distinguish whether the wound precedes the bequest or follows it; and because what is taken into account in knowing whether the legatee is a killer or not, the bequest valid or corrupt, is the day of death.
Among the Shafi'is, al-'Imrani reports from al-Mas'udi that the companions differed in these two situations: in the first, a man bequeaths to a man and the legatee kills the testator, both views meet; in the second, a man wounds a man, the wounded man bequeaths to him and dies of the wound, only one view is retained, that of validity.
The jurists agree that whoever kills another by mistake or in a quasi-intentional manner owes an expiation (kaffara): the freeing of a slave; if he finds none, the fast of two consecutive months; feeding in charity has no place in it according to the majority, except for one view among the Shafi'is. The basis is the word of Allah:
Whoever kills a believer by mistake must free a believing slave and pay the blood money to his family, unless they remit it as charity. If the victim belonged to a people who are enemies of yours and was a believer, the freeing of a believing slave applies; if he belonged to a people bound to you by a covenant, the blood money is handed over to his family and a believing slave is freed; whoever finds none fasts two consecutive months as repentance from Allah. Allah is All-Knowing, All-Wise.
Surah an-Nisa, 92
The imam Abu Ja'far at-Tahawi said: they agreed on the obligation of the expiation for whoever kills a slave by mistake. Abu 'Umar Ibn Abd al-Barr said: they agreed on the obligation of the expiation for whoever kills a believing slave by mistake. The imam Ibn al-Mundhir said: the people of knowledge agreed that the unintentional killer owes the freeing of a believing slave and the blood money delivered to the family. And he said elsewhere: they agreed that the expiation is due from the unintentional killer.
Ibn Qudama said: the people of knowledge agreed that the unintentional killer owes the expiation, whether the victim is male or female, and it is due for the child as well as for the adult; likewise whether he killed directly or caused death through a means that guarantees life, such as digging a well, planting a knife or bearing false witness; Malik and ash-Shafi'i said this.
Abu Hanifa said: the expiation is not due through causation, for it is not a killing, and because he guarantees the equivalent without passing directly through the killing; the expiation therefore does not fall upon him, just as it does not fall upon the aqila. The answer: causation equals direct action in the guarantee of blood, so it equals direct action in the expiation; and because it is a cause of the destruction of the human being, to which the guarantee attaches, the expiation attached to it likewise, as when a rider sets his mount trampling upon someone. Their reasoning collapses before the case of the father who forces someone to kill his son: the expiation falls upon him without direct action; and the aqila differs, for she bears on behalf of another without having killed or caused the killing. As for their saying "it is not a killing," it is rejected. The qadi (Abu Ya'la) said: the witnesses owe the expiation whether they say "we erred" or "we intended"; this proves that the expiation is due for killing by cause in every situation, without regard to mistake or intent; for if he aimed at death through that means, he follows the regime of mistake in this, that it does not entail retaliation.
The Malikis add: whoever forces another to kill a man unjustly, if the one who obeys can disobey without obedience being due to him, the direct executor is put to death; if the coercer cannot be disobeyed, as with a ruler from whom one fears being killed or harmed for resisting him, both are put to death. Our proof for putting the executor to death is that he killed another unjustly, so retaliation is owed from him, like the one who is not coerced; our proof for putting the coerced person to death when obedience is due to him is that he was forced to kill unjustly and reduced to it: the ruling therefore attaches to the killing, like the two false witnesses in the killing. Our proof for putting the executor to death when he cannot disobey is that he killed to preserve his own life from him, unjustly: he resembles the starving man who kills and devours. And our proof that the command of one whose obedience is not due, who holds no coercive power, is not a forcible reduction to killing, resembles the case of the informer.
When a child is forced to kill another: the jurists examined the case of the man who forces a child or an insane person to kill another, or of the child associated with a sane adult in an intentional or mistaken killing: is retaliation taken from the one who commands or from the child? And if the blood money, in whole or in half, is owed by the child, is it paid from his property or from his aqila?
The Hanafis answer that neither is retaliated against, neither the one who commands nor the child nor the insane person; the blood money of the victim falls upon the aqila of the child or the insane person; the aqila of the child has in return a recourse against the aqila of the one who commands: the word of that man is enforceable against himself, for he made use of the child and commanded the killing, and it is he who made the guarantee obligatory upon the aqila of the child; the right of recourse is therefore established against his aqila, and that even if the coerced child is discerning and obeyed, or an adult of confused mind placed in the other's hands: no retaliation against him. If a child commands a child to kill, the blood money falls upon the aqila of the child who kills, for he is the executor of the killing, and his intentional and his mistake are equivalent: the guarantee falls upon his aqila; nothing falls upon the child who commands, for their words are not acted upon, responsibility resting on the Law, which does not act upon their words; and there is never any recourse of the aqila of the child who kills against the child who commands. If a child and a man, or an insane person and a sane person, or an intentional killer and an unintentional killer join in killing a man, there is no retaliation against either of them; the blood money of the child falls upon his aqila, that of the intentional man upon his property, that of the mistaken man upon his aqila.
The Malikis answer that the father, the schoolmaster, or anyone else who orders a child, even an adolescent, to kill another, it is the one who orders who is put to death, not the child, for the latter bears no legal responsibility; half of the victim's blood money falls upon the aqila of the child according to Ibn al-Qasim, for his intentional counts as mistake. If the legally responsible person and the child both intend the death of that person, kill him without prior collusion or agreement on his killing, without either knowing of the other, the responsible adult associated with the child is not put to death: it is admitted that the child's throw may have been what killed; he owes half the blood money from his property, the other half falls upon the aqila of the child; unless the heirs of the victim claim he died from the act of the adult: they swear against him by the qasama and put him to death, and the half of the blood money owed by the aqila of the child falls away, for the qasama puts to death and secures only one life. If they killed him by mistake, half the blood money falls upon the aqila of each.
The Shafi'is distinguish between the discerning child and the one who is not: if a sane adult forces an adolescent to kill someone, or the reverse, and the victim dies, retaliation applies to the adult, its object being realized, namely pure killing and aggression; that is if one says that the intentional of the child is intentional, the most widespread view; if one says it counts as mistake, there is no retaliation, for he is the partner of an unintentional killer; and there is no retaliation against the child in any case, for want of legal responsibility. The place of the dispute is the intentional of the child and the insane person: is it intentional or mistake when they possess some discernment; otherwise, mistake absolutely.
It is said in ar-Rawda: if a man orders a free child or an insane person to kill someone and he kills him, al-Baghawi said: if they have discernment, nothing falls upon the one who orders except the sin; the blood money, aggravated, is due from the property of the one who obeyed if one says his intentional is intentional, and if it counts as mistake it falls upon his aqila in the lightened form; if they have no discernment and rush at what they are enticed to, or if the insane person is dangerous, retaliation or the full blood money falls upon the one who orders, whether a relative or a stranger; and if he orders one of them to kill himself and he does, retaliation applies to the one who ordered. The imam said: that is when one says retaliation falls upon the coerced as upon the coercer and treats them like partners; if one says there is no retaliation against the coerced, the retaliation of the coercer has two views when one says the intentional of the child counts as mistake. As for the blood money, it falls in full upon the coercer if nothing is demanded of the coerced; if half is demanded of the latter, it falls upon the coercer and the other half upon the property of the child if his intentional counts as intentional, upon his aqila if it counts as mistake. If an adolescent forces an adult, there is no retaliation against the adolescent; as for the adult, two views: if the intentional of the child counts as intentional, retaliation is due; if it counts as mistake, no retaliation absolutely, for he is the partner of one who erred.
The Hanbalis answer: if the adult orders a child without discernment, an insane person, or a foreigner ignorant of the lethal danger, to kill and he kills, the one who orders is put to death, not the executor; if he orders him to commit adultery or steal, the fixed punishment does not fall upon the one who orders, for the fixed punishment falls only upon the executor, while retaliation falls through causation: that is why it falls upon the coercer and upon the witnesses. According to another view, retaliation falls neither upon him nor upon the one he coerced, for the intentional of the child counts as mistake and the coercer is the partner of one who erred, and there is no retaliation against the partner of one who erred; if the child is discerning, retaliation falls neither upon the coercer nor upon the child.
The imam al-Mardawi said: if he orders one who lacks discernment, an insane person, or his slave who does not know that killing is forbidden, to kill and he kills, retaliation falls upon the one who ordered; the same applies if he orders an old man ignorant of the prohibition; such is the madhhab in all these cases, and the companions follow it. Except that Abu al-Khattab said in al-Intisar: if he orders a child to kill, and he kills together with another, retaliation falls, according to a transmission, upon the one who ordered and upon his partner; if he survives, it is usually because of his weakness.
From his saying "if he orders one who lacks discernment to kill and he kills, retaliation falls upon the one who ordered" it follows that if he orders a discerning person to kill and he kills, retaliation falls upon the killer; and from his saying "if he orders a sane old man who knows the prohibition of killing to kill and he kills, retaliation falls upon the killer" it follows that there is no retaliation against anyone other than the sane old man, which includes the discerning person.
Putting the group to death for one soul aims to close the door on people who take killing lightly by killing a person together; but the objector may say: that would be required only if none of the group had killed; if one of them killed, the one whose blow most likely causes death, the ruling need not be annulled so as to become an occasion for shedding lives. The support of the one who puts a single man to death for a single man is the word of Allah: (surah al-Ma'idah 45).
When a man holds down a man and another kills him, the killer is put to death: the jurists agree on this, for he killed with intent one who was his equal, without right. They differed over the case of the one who held him down: is he put to death or imprisoned until death?
The Hanbalis of the madhhab answer that if the one who holds him down does not know that the killer will kill, nothing falls upon him, for the death is neither of his doing nor of the effect of his doing; the same applies if he held him down for play or beating: no retaliation against the one who holds him down, for he is an indirect cause and the killer a direct cause, and the ruling of the indirect cause falls away. If he held him down so that he be killed, as one who holds him fast until he is slaughtered, or opens his mouth while another makes him drink poison, and the victim dies, then the one who holds him down is imprisoned until death, by the word of Allah: (surah al-Baqarah 194); the killer attacked by killing, so he is killed; the one who held him down attacked by holding until death, so he is held until death.
Ad-Daruqutni reported through his chain from Ibn 'Umar that the Prophet said:
If a man holds down a man and another kills him, the one who killed is put to death and the one who held him down is imprisoned.
reported by ad-Daruqutni (3270) and al-Bayhaqi in as-Sunan al-Kubra (15808)
And from 'Ali: two men were brought to him, one of whom had killed and the other held down; he had the killer put to death and said to the one who held him down: "You held him down for death: I confine you in prison until you die." No Companion is known to have contradicted him. It is fitting that the one who held him down until death be held until death, like the one who deprives of food and drink until death: we do the same with him until he dies.
The Malikis, and the Hanbalis according to a transmission, answer that the one who holds him down is also put to death: without his holding, the killer could not have killed; by his holding, he gained the power; the killing was therefore accomplished by the deed of both, they are partners in it, and retaliation falls upon them as if both had wounded him; by the word of Allah: (surah al-Isra 33). He held the victim for the one he knew to be his killer, unjustly and without right: retaliation is therefore owed from him; the origin of this is the one who holds someone over a fire until he is burned.
The imam Malik said, concerning the man who holds down a man for a man who strikes him and he dies on the spot: if he held him down while seeing that he meant to kill him, both are put to death; if he held him down seeing only that he meant to beat him in an ordinary way, not seeing that he meant to kill him, then the killer is put to death, the one who held him down is punished with the harshest punishment and imprisoned for a year, for he held him down, but the killing does not fall upon him.
The Hanafis, the Shafi'is, Abu Thawr and Ibn al-Mundhir answer that the one who holds him down is punished and sinful but not put to death:
The most relentless of men against Allah is he who kills someone other than his killer.
reported by the imam Ahmad in al-Musnad (16425) and al-Hakim in al-Mustadrak (8025)
the one who holds him down is not a killer; holding down is a non-compelling cause: when it joins the direct act, the guarantee falls upon the direct actor, as when the one who holds him down does not know that the other will kill; just as the punishment of adultery applies to the adulterer and not to the one who held the woman.
Al-Mawardi said: a man holds down a man until another kills him: retaliation falls upon the killer; as for the one who holds him down, if the killer could have killed without the holding, or if the victim could have fled after it, there is no retaliation against him by consensus. If the killer could not kill except by the holding, and the victim could not flee after it, the jurists differed over the one who holds him down: the school of ash-Shafi'i and Abu Hanifa is that he incurs neither retaliation nor blood money, but is punished by way of discipline.
Ibrahim an-Nakha'i and Rabi'a ibn Abi 'Abd ar-Rahman said: the one who holds him down is imprisoned until death, for he held the victim until her death: he must be repaid in kind, imprisoned until his death. Malik said: the one who holds him down is put to death in retaliation like the killer, unless he held him down in jest and play: he is not retaliated against, citing the word of Allah: (surah al-Isra 33), and what is reported of 'Umar ibn al-Khattab, who "put a group to death for one man and said: had the people of Sana'a cooperated over him, I would have killed them all for his death," that is, had they helped one another; the one who holds him down has helped the killing. Both helped in the killing: retaliation must therefore be equal for them, as if they had joined in his killing; and since the holder of game was given the ruling of the killer in the obligation of compensation, if one of the pilgrims in ihram holds down a victim and another kills him, both share the penalty: the holder of the victim must be given the ruling of the killer in the obligation of retaliation and they are equal in it; holding down is a cause that led to the killing: nothing prevents giving it the ruling of the direct act, like the two witnesses who testify before the judge to the killing of a man, who is killed, then retract: they are put to death in retaliation by their testimony although it is a cause; so it is with the one who holds him down. Our proof is what is reported of the Prophet: "The killer is put to death and the one who patiently endures is held"; Abu 'Ubayda said: that is, imprisoned, for the one who endures is the detainee, the imprisonment aiming at correction, not Rabi'a's interpretation that it means imprisonment until death. Holding down is a cause and killing a direct act: when they join without compulsion in the cause, like the witnesses, the ruling of the cause falls away with the presence of the direct act, as if a man dug a well and another pushed someone into it who died: retaliation falls upon the one who pushed, not upon the digger; this killer may reach death sometimes by holding down, sometimes by imprisonment; yet it is established that if he kills the victim after imprisoning her, the jailer is not put to death; likewise if he kills her after holding her down, the one who held her down is not put to death; the status of the one who holds down in killing must be the reverse of that of the direct actor in adultery: if he holds a woman until a man commits adultery with her, the punishment falls upon the adulterer, not upon him; the status of the one who holds down in killing must be the same as in the obligation of retaliation against the killer; if it were allowed to make him equal in retaliation, it would be allowed to make him equal in the punishment. Holding down, on its own, does not guarantee: it deserves even more not to do so when the killing follows it. What does not guarantee in mistake does not guarantee in intent, like the blow struck with what does not kill. As for the verse (surah al-Isra 33), transgression in it is the killer's going beyond, to one who is not a killer. 'Umar's saying "had the people of Sana'a cooperated over him, I would have killed them" is interpreted by their partnership in the killing, mutual help meaning equality in the act, and by it one answers their reasoning on partnership in killing; in partnership in killing, each guarantees when acting alone, so he guarantees in partnership; the one who holds down does not guarantee on his own, so he does not guarantee when the killing follows; if holding down followed the regime of the direct act of killing, it would follow that when the Magian holds a sheep which a Muslim slaughters, it may not be eaten, as if a Magian and a Muslim joined in slaughtering it; but their consensus on the lawfulness of eating it proves the difference between the one who holds down and the participant. The argument from the two witnesses does not hold: they compelled the judge to the killing, whereas the one who holds down does not compel: so they are distinguished.
Abu 'Umar Ibn Abd al-Barr said: the one who holds down is a helper, not a killer; 'Umar's saying may carry both meanings, assistance and direct action. They agreed that if he helped without attending the killing, he is not put to death for it.
If he cast him into a fire from which he could escape by its weakness, or which surrounded him on one side so that the slightest movement allowed escape, and he did not come out until he died, there is no retaliation, for this does not usually kill. Does he owe a guarantee? Two views: no, for he destroyed himself by remaining: he does not guarantee, as if he had been thrown into shallow water; but he guarantees what the fire destroyed. Or: he guarantees, for he came by the casting that leads to destruction, and abandoning the escape does not remove the guarantee, like one who wounds and leaves the wound untreated though he could treat it, or who wounds and abandons the care; water differs, for one does not destroy oneself by it: that is why people enter it for washing, swimming and fishing; fire, by contrast, destroys. His ability to escape is known by his saying "I can escape" or the like, for fire has an intense heat that may keep him from knowing his way out, or deprive him of his reason through its pain and terror.
When he imprisons him and deprives him of food and drink until death: the jurists agree that whoever imprisons someone without forbidding him food or drink, and the victim dies in prison, incurs neither retaliation nor blood money. They differed over the one who imprisons another in a place and deprives him of food and drink until he dies in detention: is he retaliated against, does the blood money fall upon him, or nothing at all?
The imam Abu Hanifa answers that whoever imprisons someone who dies of hunger or thirst does not guarantee: hunger and thirst belong to the natural conditions of the human being, so they are not attributed to the offender, for his cause does not lead to destruction; the victim died of another cause, the lack of food and water; only the hand remains, and the free man is not guaranteed through the hand. The two imams Abu Yusuf and Muhammad answer that the blood money falls upon him, for he is a cause that led to destruction, like the one who makes someone drink poison.
The Malikis answer that if he deprived him of food and drink intending his death, he is put to death for him; it is said: he is put to death even without intending his death, for the intention to kill is not a condition of retaliation; in that case retaliation falls upon him even if he intended to torment him and not to kill him. The same applies to the one who refuses his surplus of water to a traveler, knowing that refusing it is not permitted and that he will die if he does not give him drink: he is put to death for him, even though the killing did not pass through his hand.
The Shafi'is answer that if he imprisons a free man in a house and he dies of hunger or thirst, one examines: if the food was within his reach and he did not take it out of fear or grief, or if he could have asked for it even by begging and did not, neither retaliation nor guarantee falls upon the one who imprisoned him, for the detainee killed himself. If he forbade him food and drink and forbade him to ask, one examines: if a period elapsed during which a similar man usually dies of hunger or thirst, retaliation falls, for he killed him by what usually kills his like, as if he had killed him with the sword; the period varies with the state of the detainee, strong or weak, and with the season, hot or cold, the lack of water in heat not being like that in cold. If no such period elapsed and he died: if he had no prior hunger or thirst, it is quasi-intentional. If he had some hunger or thirst, there are three views on retaliation: the most apparent is that if the jailer knew of the prior hunger, retaliation falls upon him; otherwise it is quasi-intentional in the most apparent view, for he neither intended his destruction nor employed what kills; as if one pushed him lightly and he fell on a knife behind him without knowing: no retaliation. The second view: it is intentional and retaliation falls, for the destruction was accomplished through him, as if one struck a sick man with a blow that kills the sick and not the healthy, ignorant of his illness. The third: the reverse. If we require retaliation, the full blood money of the intentional falls if he was informed, that of the quasi-intentional if he was ignorant; if we do not require retaliation, two views: the full blood money is due, retaliation having fallen away because of doubt; or, the most apparent view on which the majority decides: half the blood money of the intentional or of the quasi-intentional. If he forbade him only drink, and the detainee did not eat for fear of thirst and died, there is no retaliation at all, and no guarantee either according to the most correct view, on which al-Baghawi decided, for he destroyed himself; al-Qaffal said: it falls. If he imprisoned him while caring for his food and drink and he died in detention: if he is a slave, he guarantees him through his hand; if he is free, no guarantee at all, whether he died of suffocation, of the collapse of a ceiling or a wall upon him, or of a snakebite. If he imprisoned him and exposed him naked until he died of cold, it is as if he had deprived him of food and drink. If he took away his food, drink or clothes in a desert and he died of hunger, thirst or cold, there is no guarantee, for he made nothing against him. If he killed him by smoke, shutting him in a house whose openings he sealed, so that the smoke gathered, his breathing tightened and he died, retaliation falls; likewise the one who cuts off water from someone he besieges until he dies.
The Hanbalis answer that if a man imprisons another in a place and deprives him of food and drink, or of one of the two, for a period in which he cannot survive alive, retaliation applies, for this usually kills; and it varies with people, times and circumstances: the thirsty in intense heat dies in a short time, while one who has drunk his fill, in cold and mild weather, dies only after a long time: this is taken into account. If the victim cannot ask for relief and is left until death, her blood is profane, for she is the one who neglects herself.
The guarantee of damage follows the regime of real destruction: the wali may therefore guarantee what he will; if he guarantees the blood money from the executing wali, he has no recourse against the two witnesses, for they guarantee through an act the victim inflicted upon himself by his own choice. If he guarantees from the two witnesses, they likewise have no recourse against the wali according to Abu Hanifa. Abu Yusuf and Muhammad said: the recourse against the wali to the extent of what they guaranteed is established for them, for they guaranteed through their testimony, which had the force of action on his behalf: they may claim from him their share of the guarantee, as if they had testified to an unintentional killing or to theft, the judge ruled, the claimant collected, then they all retracted and the claimant guaranteed the two witnesses: they may have recourse against him.
The imam Ibn Qudama said: the judge who condemns a man to death knowing it, deliberately, then has him killed and confesses it: retaliation falls; the discussion is that of the two witnesses. If the wali who carried out the killing admits that he knew of the witnesses' lie and killed deliberately, retaliation applies to him, no disagreement being known. If the two witnesses, the judge and the wali all admit it together, retaliation applies to the wali alone: he killed directly, deliberately and by aggression; nothing should fall upon the others, for they are indirect causes, and the direct act annuls the ruling of the cause, like the pusher with the digger; this differs from the case where the wali does not admit it, for the ruling of his direct, unjust participation in the killing is not established: his presence equals his absence, and the regime of guarantee applies as in real destruction.
It is also reported from 'Aisha: "The one who cast the evil eye is ordered to perform ablution, then the one who was afflicted washes with that water" (reported by Ibn al-Athir in Tarh at-tathrib (8/190)). As for the subject: two men testified against a man to what entails his execution; he was killed on their testimony, then they retracted.
The jurists examined the case of two witnesses who testify against a man to what entails death, who are followed up to his execution, then retract and confess that they intended his killing unjustly in their testimony: does retaliation fall upon them? The majority of jurists, Malikis, Shafi'is and Hanbalis, answer that retaliation falls upon them, according to what al-Qasim ibn 'Abd ar-Rahman reported: "Two men testified before 'Ali that a man had stolen, then retracted from their testimony; he said: had I known you did it deliberately, I would cut off your hands and impose on you the blood money of the hand." And because they reached his killing through a cause that usually kills: retaliation falls upon them like upon the coercer, as if they had wounded him and he died of it.
Ibn Abd al-Barr said: if they testified to a wound, a killing or what entails stoning, and the victim was killed on their testimony, then they confessed the lie, retaliation is lifted from them; if they say "doubt was presented to us," they owe the blood money from their property. It is also said: it is a blood money due from their property in every situation, without retaliation; the first view is the most correct, and ash-Shahab follows it. If one of the four witnesses of adultery retracts before the judge applies their testimony, all four undergo the punishment of the slanderer and the punishment of adultery is not applied; it is said: only the one who retracts is punished. If one retracts after the stoning, he owes a quarter of the blood money; if the second retracts, a half; and so on proportionally, while undergoing the punishment of false testimony, their slanderer not being punished; if the witnesses of adultery are more than four and some retract while others complete the testimony, no fine falls upon those who retract. Whoever destroyed property through his testimony then retracted guarantees what he destroyed; if he is a sole witness with an oath, he guarantees half of the destroyed property.
The Shafi'is answer that if they testified against a man to what entails his execution in retaliation, or to highway war, or to adultery while he was married, the judge ruled on their testimony and he was killed, then they retracted saying "we intended, we knew he would be killed by our testimony," retaliation falls upon them; if they testified to what entails amputation in retaliation or for theft, and he was amputated, then said "we intended," the amputation falls upon them; if the effect spread, retaliation for the life falls upon them. Retaliation falls upon the witnesses only through retraction and the confession of intent, not through their lie: even if we are certain of their lie upon seeing the victim alive, there is no retaliation against them, for they may not have intended; their testimony entails retaliation through retraction only when it directly removed the wali's act from aggression; if the wali admits he knew of their lie, there is no retaliation against them, and retaliation falls upon the wali whether they retracted or not.
The Hanbalis answer that if two witnesses or more testify against someone to an intentional killing, or to apostasy where repentance is refused, or four or more testify to the adultery of a married man and similar crimes entailing death, and he was killed on their testimony, then they retracted confessing the intentional killing, retaliation falls upon them, according to what al-Qasim ibn 'Abd ar-Rahman reported: "Two men testified before 'Ali that a man had stolen; he had him amputated; then they retracted from their testimony and 'Ali said: had I known you did it deliberately, I would cut off your hands"; and because they reached his killing through a cause that usually kills, like the coerced person; the apostasy "where repentance is refused" designates the case where they testified that he insulted Allah or His Messenger, in contrast to the cases where repentance is accepted, for there he may avert them by repentance. Likewise the judge who condemns someone to death knowing the testimony is false, deliberately, who is killed and confesses it: retaliation applies to him, for he is in the sense of the witnesses, the result being accomplished through his cause deliberately, like the killing accomplished through the cause of the two witnesses. If the wali who directly carried out the killing admits that he knew of the witnesses' lie and aimed at the killing, retaliation applies to him alone: he killed directly, deliberately and without right. If the two witnesses, the wali and the judge all admit together the lie and the deliberate killing, retaliation applies to the executing wali alone, for he killed directly, deliberately and by aggression; nothing should fall upon the others, for they are causes, and the direct act annuls the ruling of the cause, like the pusher with the digger.
If the wali did not carry out the killing himself but his agent did: if the agent is informed, retaliation applies to him alone, for he is the executor; if he is not informed, retaliation applies to the wali as if he had carried it out. Priority in retaliation therefore belongs to the informed executor, then to the informed wali, then to the witnesses and the judge; and when the blood money falls upon the judge and the witnesses, it is divided equally among them, the judge owing a share like each of the witnesses, for all are causes. If the wali and the witnesses retract, the wali guarantees alone, for having carried out the killing. If some of them say "we intended his killing" and others "we erred," each speaking for himself, or one says "I intended his killing" and the other "I erred," there is no retaliation against the intender, for the killing is not purified through him; the intender owes his share of the aggravated blood money as punishment for his confession, and the one who erred his share of the lightened blood money. If each of the two says "I intended and my partner erred," or one says "we all intended" and the other "I intended and my companion erred," or one says "I intended and I do not know what my companion did," retaliation falls upon both of them, for each confessed the killing by aggression. If one says "we intended," informing about himself and his companion, and the other says "we erred" in the same way, retaliation falls upon the one who confesses the intent as punishment for his confession; the other owes half the lightened blood money if they are two; if they are three or more and one says "we intended" and another "we erred," there is no retaliation: the one who said "we intended" owes his share of the aggravated blood money, the other his share of the lightened blood money; if he says "we intended the testimony, not the killing," the blood money is due; if both say "we erred," the lightened blood money falls upon them.
The Hanafis answer that if two witnesses testify to an intentional killing, their testimony is accepted, then they retract, the blood money falls upon their property: the witness is a cause of the killing, and the cause does not entail retaliation, like the digging of a well; for equality is taken into account in retaliation, and there is no equality between the cause and the direct act. Retaliation therefore does not fall upon them, and the blood money falls upon their property if they retract, their testimony amounting to a confession of destruction, which the aqila does not bear. If only one retracts, half the blood money falls upon him, for each is a cause of the destruction of half the life. If the wali retracts with them, or the victim of the killing comes back alive, the wali has the choice between guaranteeing the blood money from the two witnesses or from the killer: the killer destroys the life in reality, the witnesses are causes of it by legal attribution, and legal destruction follows the regime of real destruction; retaliation falls upon the two witnesses and the judge, for all are causes; if the matter ends in blood money, it is due from them in thirds. It is possible that the ruling attaches to the judge alone, his causation being more specific than theirs: his ruling is the intermediary between their testimony and the killing, like the executor with the cause. If the wali who confesses the intent did not carry out the killing but delegated it, the agent is examined: if he admits being informed and intending the killing unjustly, he alone is the killer, for he carried out the killing deliberately, unjustly, without coercion, and the ruling attaches to him, as if he had ordered the killing in another situation; if he does not admit it, the ruling attaches to the wali as if he had carried it out. And Allah knows best.
The case of the killer who claims to have found the victim with his wife: when a man kills a man claiming to have found him with his wife and to have killed him in self-defense, or that the latter entered his house to coerce him over his property without his being able to prevent him except by killing, two situations arise.
First situation: he brings no proof and the heirs of the victim acknowledge nothing. The jurists of the four schools agree that without proof or the heirs' acknowledgment, his word is not accepted and retaliation falls upon him; Ibn Qudama adds that ash-Shafi'i, Abu Thawr and Ibn al-Mundhir said it with no known objector, whether the victim was found in the killer's house or elsewhere, armed or not. Malik indeed reported from Yahya ibn Sa'id, from Sa'id ibn al-Musayyab, that a man of Syria called Ibn Khaybari found a man with his wife and killed him, or killed them both; the affair embarrassed Mu'awiya ibn Abi Sufyan, who wrote to Abu Musa al-Ash'ari to submit it to Ali ibn Abi Talib; Abu Musa therefore asked 'Ali, who said: this matter does not exist in our land; Mu'awiya has charged me to ask you about it; 'Ali answered: I am Abu al-Hasan: if he does not bring four witnesses, let him offer his neck (reported by Malik in the Muwatta (1416)). And because the base rule is the negation of what he claims: a mere claim establishes nothing.
Ibn Abd al-Barr said: on 'Ali's view stand the jurists of the great cities, the people of opinion and the people of tradition. Al-Mardawi said: if he kills a man in his house claiming that the man entered to coerce him over his family or property, that he killed him to defend himself, and his wali denies it, retaliation falls: this is the word of the one who denies; such is the madhhab and the companions follow it. It is said in al-Furu' that the ruling may not apply to the one known for corruption; and that is correct, for it is applied according to indications and circumstances.
It is also argued by what is reported from Abdullah ibn Mas'ud: we were one Friday night in the mosque when a man of the Ansar came saying: if a man finds a man with his wife and speaks, you flog him; if he kills, you kill him; if he stays silent, he stays silent in anger; by Allah, I shall ask the Messenger of Allah about it; the next day he came and asked, and received the same answer (reported by Muslim (1495)). Ash-Shafi'i said: this is our view: if a man finds a man with his wife claiming she receives from him what entails the punishment, both being already married, and he kills them or kills one of them, he is not believed: retaliation applies for whichever of the two he killed, unless the heirs accept the blood money or the pardon. Al-Mawardi reported these words of ash-Shafi'i: if he kills a man saying "I found him with my wife," he has confessed the retaliation and made a claim: without proof, he is killed; and Sa'd asked: O Messenger of Allah, if I find a man with my wife, must I grant him a delay until I bring four witnesses? He answered: yes. Ali ibn Abi Talib said: if he does not bring four witnesses, let him offer his neck.
Al-Mawardi said: if the man finds with his wife, or with his daughter, or his sister, a man committing adultery, or with his son a man sodomizing him, he must repel him and prevent him; it is reported that the Prophet cursed the rakhana, the one who feels no jealousy over his family; and he said: Allah feels jealousy for the Muslim, let man therefore feel jealousy. Repelling the indecency is Allah's right, the man's right over his family and his wife's right if she is coerced: he may not squander these rights through restraint and refraining. If he found him committing adultery with a foreign woman, he must prevent her and restrain him; if she is coerced, she alone is prevented; if she consents, the prohibition and the blame touch both, because of the duty of preserving Allah's limits, His rights and turning away from His disobediences; the difference between seeing this within his family or outside it is that the duty is individual within the family and collective elsewhere. The duty of repelling being established, the state of the adulterous man is examined: if he has not yet consummated, the husband repels him with what he can, and it is not permitted to go as far as killing unless he cannot repel him otherwise, as we said for the defense of life and property; if the act is not yet consummated, slowness is required; if it has begun, repelling becomes urgent and graver. If he has consummated, it is permitted to him to begin with killing, for every moment that passes is for him an act of adultery that no slowness can catch up; it is reported that a man said to Ali ibn Abi Talib: I found a man with my wife and did not kill him; 'Ali answered: had it been Abu Abdullah (az-Zubayr ibn al-Awwam), I would have killed him: his saying therefore indicates the obligation of killing him. This killing has two possible meanings: it is a killing of defense, specific to the man and applying to the virgin as to the previously married woman; or it is a killing as punishment executable without the ruler, for two reasons: he alone witnessed the scene, which does not go beyond his sight, and he is concerned by his personal right given the corruption of his bed in the adultery with his wife; in this sense it is permitted between man and woman if she consents, but for the woman one distinguishes: she is killed if previously married, flogged if virgin; as for the man, two views: the virgin and the married are distinguished, for it is the punishment of adultery as for the woman; or, the most apparent view, no distinction is made and he is killed in both cases, for killing as punishment is graver than killing in defense, and given the gravity it is permitted to kill him as defense, therefore as punishment; the Sunna indeed made no distinction in its permission.
If the scene is established and the killer claims to have killed him for finding him with his wife, while the wali denies it and claims another cause, the killer must establish the proof of his claim: if he establishes it, he is innocent; otherwise the wali is made to swear and the killer is restrained, for he confessed the killing and claims the fall of retaliation. Sa'd ibn 'Ubada is reported to have asked: O Messenger of Allah, if I find a man with my wife, do I kill him or not until I bring four witnesses? He answered: no, until you bring four witnesses; the sword suffices you as a witness, that is, as a witness against you; the question bore on the fall of retaliation. Sa'id ibn al-Musayyab reported that this Syrian man killed the man and his wife; the matter was brought to Mu'awiya who was embarrassed by it and wrote to Abu Musa to put it to 'Ali, who said: they accept our judgment and resent us! if he does not bring four witnesses, let him offer his neck. Two interpretations: that his neck be struck in retaliation; or that his neck be surrendered for retaliation in submission. If it is objected that 'Umar ibn al-Khattab, in a similar case, did not require proof and made the blood profane on the word of a witness of the scene, according to the story of the party at war who left behind wife and brother-in-law; the Jewish neighbor entered one night; the brother-in-law heard the Jew's verses, entered, found him with her and killed him; 'Umar made the blood profane without proof; two answers: the notoriety of the affair had spread and sufficed in place of specific proof; or the establishment of proof depends on the wali's demand: if he does not demand it, its requirement falls away.
Ibn Rushd said: Malik was asked about the meaning of 'Ali's hadith "if he does not bring four witnesses, let him offer his neck," that is: the virgin like the married woman, once four witnesses stand, he is released; Malik said: I do not know what this is, I heard nothing of it; this hadith aims at the place of testimony for which this man claims innocence. Ibn al-Qasim said: I hold that when four witnesses stand, virgin and married alike, testifying to having seen her committing adultery, he is set free: such is the interpretation of the hadith. Muhammad ibn Rushd said: his saying "let him offer his neck" means that he surrenders himself to retaliation for whichever of the two he killed; he therefore stated explicitly that he is killed without four witnesses and stayed silent on the case where he brings them; the indication of his statement carries to its generality: he is not killed if he brings four witnesses of witnessing the adultery, whether the victim among them is virgin or married; the reading of the address differed, whence Malik's hesitation; then he said: this hadith aims at the place of testimony for which he claims innocence; according to the address, he is not killed with four witnesses; the same holds for the married woman, according to Ibn al-Qasim's view; they differed when the victim among the two is a virgin, according to four views: that he is not killed and his blood is profane, the view of al-Mughira and Abd ar-Rahman, the apparent meaning of Ibn al-Qasim's narration from Malik, Ibn Abd al-Hakam specifying: when it is established that doubt was cast upon him before that; or that he is not killed and the blood money falls upon his aqila, the view of Ibn al-Qasim in Ibn al-Muwwaz's book, in Medina and in Ibn Muzahin's commentary from Asbagh; or that he is not killed and the blood money falls upon his own property, the view of Asbagh; or that he is killed, the view of Ibn al-Majishun. The reason for the first view is that whoever witnesses such a scene is seized by anger that makes him lose his reason: his ruling becomes that of the insane; it is said: his offence upon property and blood is profane.
If the period that elapsed is one during which a similar person usually dies, retaliation applies; otherwise it is the intentional of the mistake; if the period is in doubt, retaliation does not fall, for we doubted the cause, and no ruling is established with doubt about its cause, especially retaliation, which falls away through doubts.
The jurists differed over the one who casts a man into land infested with predatory beasts or between the paws of a fierce beast that kills him: is retaliation due? The detail follows.
The Hanafis answer: if he throws another before a lion or a fierce beast, neither retaliation nor blood money falls upon the one who throws, but he is punished, struck a painful blow and imprisoned until he repents; Abu Yusuf says: I prefer imprisonment until death; it is reported from the imam that the blood money falls upon him.
The Shafi'is answer, for the one who carries a man on his back or binds him and throws him to the beasts, three cases: if he binds him or carries him and throws him into beast-infested land, and the beast comes and devours him: neither retaliation nor blood money, for the beast devoured him by its own choice: it possesses choice, like the one who holds down a man whom another kills; if he binds him in the desert then throws the beast upon him, or throws him upon the beast which devours him: neither retaliation nor blood money, for it is the nature of the fierce beast, when it is thrown upon a man or a man thrown upon it, to flee; if it does not flee, it devoured him by choice; if the beast is in a narrow passage, a house, a well or a hunting pit, and the man is thrown upon it, or the man is in the passage and the beast thrown upon him strikes him dead: if it struck him with a blow that usually kills, retaliation falls upon the one who throws, for he forced the beast to kill him; if it struck him with a blow that does not usually kill and he died, there is no retaliation against the one who throws, for safety usually prevails, but the blood money falls upon his property; the same applies to the leopard and whatever resembles it. If he seizes the beast or the leopard and throws it at him and it devours him, retaliation falls upon him, for he forced it to that. If he binds a man and throws him into snake-infested land and a snake bites him dead: neither retaliation nor blood money, whether in a narrow or a wide place; likewise if he is thrown upon the snake or the snake upon him, for snakes and scorpions flee man by nature.
If he takes the snake or the scorpion in his hand and someone is bitten by it, ash-Shafi'i said: whether he squeezed it or not, if he dies: if it is a snake that usually kills, like the snakes of Ta'if and the vipers of Mecca, retaliation falls, for he reached his killing through what usually kills, as if he had killed him with the sword; if it belongs to what does not usually kill, like the colubrids of Mecca and the Hijaz and the vipers of Egypt, there are two views: no retaliation, for they do not usually kill, but the aggravated blood money falls, for it is quasi-intentional; or retaliation falls, for the species usually kills: this carries the force of wounds.
The Hanbalis answer: if he brings a man together with a lion or a tiger in a narrow place, a hunting pit and the like, so that it kills him, this is intentional and carries retaliation if the beast acts lethally; if it acts as a human would without a lethal effect, it is not intentional and retaliation is not due, the beast having become the instrument of the man and its act counting as his. If he throws him bound before the lion or the tiger in the open and it devours him, retaliation falls upon him; likewise if he brings him together with a snake in a narrow place and the snake bites him dead. Ibn Qudama reports the view of the qadi: no guarantee in either case, the view of the companions of ash-Shafi'i, for the lion and the snake flee the human being, and this is a non-compelling cause. We answer: this usually kills, so it is a pure intentional like the other forms. Their saying "they flee" is incorrect: the lion attacks the human being in all circumstances, how would it flee a bound man thrown to it to be devoured? The snake flees in a wide place; when the place narrows, it defends itself by biting, according to habit. The qadi mentioned, concerning the one thrown bound into beast-infested or snake-infested land who was killed, two transmissions on retaliation; this is a grave contradiction: he denied all guarantee in the form where killing was most probable, and required retaliation in the form where it was rarer; the correct view is that there is no retaliation here and that the guarantee falls, for he acted deliberately upon a destruction that does not usually kill. If a snake or a fierce beast bites him and kills him, retaliation falls if that usually kills; if it belongs to what does not usually kill, like the snake of the Hijaz or a small beast, there are two views: retaliation falls, for the wound is not measured there by the likelihood of death, and this is a wound, and the snake belongs to what usually kills; or it is quasi-intentional, for it does not usually kill: it resembles the blow of a stick or a stone. If he carries him on his back and throws him into land without beasts and a beast devours him or a snake bites him dead, it is quasi-intentional; the companions of ash-Shafi'i say: pure mistake. We say: he acted deliberately upon an act that does not usually kill, which led to his destruction, as if he had struck him with a stick and he died of it; likewise if he throws him bound into an unfamiliar place.