Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Coercion to kill
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Updated on 27 September 2026 at 3:52 AM
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It is said in al-Khaniyya: neither retaliation nor blood money falls, for he drank by his own choice, unless the one who urged him deceived him: he then incurs only the disciplinary punishment and the plea for pardon. Likewise if one says to another: eat of this food, it is excellent, and he eats it and it is a poison that kills him: he does not guarantee. The previous dispute applies when the poison was offered to him by one who knew it was poison; if the offerer did not know, there is no retaliation against him, but the blood money falls, for it is a killing by mistake.
The Malikis answer: the one who offers a person poisoned food, drink or clothing, which he eats and dies of, is retaliated against if he knew it and the eater did not; if the offerer did not know it was poison, or if the eater knew, neither retaliation nor anything else falls: the informed eater is the killer of himself, and the ignorant offerer is excused.
Coercion to kill: the people of knowledge agree that whoever is forced to kill another may not proceed to his killing, nor violate his sanctity by flogging or anything else: he endures the trial that befalls him, and he may not ransom his life with another's; for these are the rights of people, who are equal in rights: preserving his life by killing that protected person is not preferable to the reverse; he therefore may not wrong another by killing him so as not to be killed, which would amount to obeying the creature in disobeying the Creator and preferring his own breath to that of his equal in sanctity.
The imam al-Qurtubi said: the scholars agreed that whoever is forced to kill another may not proceed to his killing, nor violate his sanctity by flogging or anything else; he endures the trial, does not ransom his life with another's, and asks Allah for preservation in this world and the next. The imam Ibn Rajab al-Hanbali said: the scholars agreed that if he is forced to kill a protected person, he may not kill him: he would kill him only by his own choice, to ransom his life from killing: this is a consensus of reliable scholars.
The jurists differed, when the coercion is total, over retaliation: does it fall upon the coercer, the coerced, both, or neither?
Abu Hanifa, Muhammad, the Shafi'is according to a view that an-Nawawi declares correct and textual in ar-Rawda, and a transmission of the Hanbalis, answer that there is no retaliation against the coerced: retaliation falls upon the coercer alone, the coerced incurring only the disciplinary punishment; by the word of the Prophet:
Allah has lifted from my community the error, the forgetfulness and what they are forced into.
reported by Abu Dawud, at-Tirmidhi, Ibn Majah and the imam Ahmad
And because the coerced is a pure instrument of the coercer: the killer in meaning is the coercer, the coerced presents only the form of the killing, he resembles the instrument, and there is no retaliation against an instrument; he killed to preserve his life, retaliation therefore does not fall upon him, like the one who can repel the one who wants to kill him only by killing him. He is treated as one who acts by his nature preferring his life: he becomes the instrument of the coercer in what can be an instrument for him, namely destruction, not sin; the instrument is what acts by its nature, like the sword that cuts when used in its place, fire that burns, water that drowns; with the use of the instrument, retaliation falls upon the user. The proof that the one who orders is the user and the one ordered follows his nature is that the guarantee of the destroyed property falls upon the one who orders: otherwise he would not be the destroyer through use; it is therefore known that destruction is attributed to the one who orders and that the one ordered is his instrument: destruction is attributable to him only in this way, so that the one who orders appears to act directly, not by causation; were he a mere cause, the guarantee would not fall upon him; it would fall upon the one ordered, for when the direct actor and the cause join in destruction, the guarantee falls upon the direct actor. Now the one ordered can be made the instrument of the coercer for the destruction of property by consensus, by making him carry and throw it into another's property; the same holds for life as regards destruction; it differs for sin, for he cannot be the instrument of anyone in his own subject: sin reaches his religion, and no one can violate the religion of another; the effect therefore remains confined to his own person.
Zufar, among the Hanafis, and the imam Ahmad according to a transmission, answer that retaliation falls upon the coerced, not the coercer: retaliation falls upon the killer, and the killer in reality is the coerced, for he is the executor, and in law likewise, for he sins by it; killing is a sensible act accomplished from him: the principle is that the doer of an act is held to it, unless its ruling falls away legally and is transferred to another, as in coercion to destroy another's property, where his ruling, namely sin, left the doer and was transferred; here the ruling of his act did not fall away, it was confirmed, proof of it being that he commits the sin of killing, and the sin of killing falls upon the killer; the coercer is a cause, and there is no retaliation through causation.
Abu Yusuf, and a transmission reported from the Hanbalis, answer that retaliation is taken neither from the coerced nor from the coercer: the coercer is not a killer in reality but a cause of the killing, the true killer being the coerced; retaliation not falling upon the coerced, all the more it should not fall upon the coercer; only the blood money falls upon him, without recourse against the coerced.
The Malikis, the Shafi'is in the most apparent view, and the Hanbalis of the madhhab answer that retaliation falls upon the coercer and the coerced: retaliation is prescribed for deterrence and fear, and killing under coercion is frequent on the part of the dominant; were retaliation not due, corruption would follow: it is therefore required of all without exception. As for the coerced: the killing was truly accomplished from him, unjustly, to preserve his life: he resembles the one who kills in famine to devour; he can refuse: that is why he sins and it is forbidden to him by consensus; he killed someone his equal, unjustly, without right: he resembles the initiator of the killing; destruction by hunger is certain, by coercion presumed; in the harder of the two necessities retaliation falls: all the more in the weaker. As for the coercer who orders: he is a cause of the killing, and the cause is like the executor, as the Law establishes, just as two witnesses testify to the killing of a man whom the judge kills: the ruling attaches to both.
If the matter ends in blood money, it falls upon both according to the Shafi'is and the Hanbalis: they are partners, retaliation falls upon both, so the blood money falls upon them like partners in fact; the wali may, if he wills, kill one of them and take half the blood money from the other, or pardon him, as the Shafi'is and the Hanbalis state explicitly. The Shafi'is add: if one says retaliation does not fall upon the ordered coerced man, half the blood money falls upon him, for he carried out the killing; the expiation falls upon each of them according to both views together, as the Baghdadis report. The Khurasanis say: if one says retaliation does not fall upon the one ordered, does half the blood money fall upon him? Two views. Abu Hanifa and Muhammad said: no blood money upon the coerced, for he is an instrument. This dispute applies to total coercion; if the coercion is incomplete, retaliation falls upon the coerced without dispute, for incomplete coercion does not remove choice: it therefore does not prevent the obligation of retaliation.
As for the married woman, according to the view of Ibn al-Qasim; they differed when the victim among the two is an unmarried woman, according to the four views already cited. The sense of the first view is that the one who 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.
Second situation: he brings proof, or the heirs of the victim acknowledge. The Hanbalis state that if he kills him and brings proof that he was with his wife, or killed him in self-defense, or the wali acknowledges it, neither retaliation nor blood money falls upon him; according to what is reported of 'Umar: one day, while he was having his meal, a man came running to him, a bloodstained sword in his hand, pursued by people; he came and sat beside 'Umar; the others arrived and said: O commander of the believers, this man killed our companion; 'Umar asked him what they said; he answered: O commander of the believers, I struck between the thighs of my wife: if anyone was between them, I killed him; 'Umar asked what they said; they answered: he struck with the sword and the blow fell between the man and the thighs of the woman; 'Umar took his sword, shook it, handed it back to him and said: if they return, return. And from az-Zubayr: one day when he had lingered behind the army with a slave girl of his, two men came asking him for something; he threw them food; they said: leave us the slave girl; he struck them with his sword and cut them with a single blow. For the adversary confessed what makes his killing lawful: his right fell away, as if he had confessed his execution in retaliation or for a punishment entailing death; if there is proof, the same applies.
The imam ash-Shafi'i said: if the heirs of the victim acknowledge that he was with her beneath the garment, moving as a copulating man moves and finishing, without acknowledging what entails the punishment, retaliation does not fall upon him; if they acknowledge what entails the punishment and the victim is an unmarried woman according to their statement, her brothers or sons, while the killer claims she was married, the word of the heirs prevails and retaliation falls upon the killer, for there is no execution of the unmarried woman in adultery; if he brings proof that she was married, the fine and retaliation fall away.
It is permitted to him, between him and Allah, to kill the man and the woman if both are married and he knows she has received what entails death; he is not believed in what makes retaliation fall away; likewise if he finds him committing sodomy with his son, or adultery with his slave girl: no dispute, retaliation does not fall away; the fine and retaliation in killing fall away only through what makes his blood lawful: apostasy after faith, adultery after marriage, or the killing of a soul without a soul. If a man finds with his wife a man giving her what entails the punishment of adultery and kills them both, the man being married and the woman not, nothing falls upon him for the man and retaliation falls for the woman; if the man was not married and the woman was, retaliation falls upon him for the man and nothing for the woman.
The imam Ibn al-Qayyim said: his saying in the hadith "if a man finds a man with his wife and kills him, do you kill him for it?" is a proof that whoever kills a man in his house claiming to have found him with his wife or in his harem is put to death for him and his word is not accepted: otherwise blood would be shed with impunity, and whoever wanted to kill a man would bring him into his house claiming to have found him with his wife. Two questions are to be distinguished here: is it permitted to him, between him and Allah, to kill him? And is his word accepted for the apparent ruling? This distinction dissolves the embarrassment of what is transmitted from the Companions; some made it a disagreement between them, saying: the school of 'Umar is that he is not killed, that of 'Ali that he is; what misled them is the report of 'Umar already cited. As for 'Ali, when asked about the one who finds a man with his wife and kills him, he said: if he does not bring four witnesses, let him offer his neck; a contradiction was supposed with what is transmitted from 'Umar, and it was made a disagreement between Companions; yet, contemplating their two rulings, you find no divergence between them: 'Umar lifted retaliation only when the wali acknowledged that he was with his wife; our companions, and the wording is the author of al-Mughni's, say: if the wali acknowledges it, neither retaliation nor blood money, according to what is reported of 'Umar, then they relate the story; his wording indicates that there is no difference between the married and the unmarried, and that is how 'Umar judged this killed man; his saying too: if they return, return, without distinguishing the married from the other: this is the correct view. The author of al-Mustaw'ib nevertheless said: if he finds a man with his wife giving her what entails stoning and kills him claiming that, retaliation applies in the apparent ruling, unless he brings proof of his claim: it then does not fall upon him; the number of witnesses has two narrations: two witnesses, the view chosen by Abu Bakr, for the proof bears on presence, not on adultery; or that nothing less than four is accepted; the correct view is that when the proof is established or the wali acknowledges it, retaliation falls away, whether married or not; 'Ali's words indicate this: he said, concerning the one who finds a man with his wife and kills him: if he does not bring four witnesses, let him offer his neck; for this killing is not the punishment of adultery: were it, it would not be by the sword, and the conditions of applying the punishment and its manner would be required; it is a punishment against the one who transgressed, violated his harem and corrupted his family; az-Zubayr acted likewise. It is therefore permitted to him, between him and Allah, to kill whoever attacks his harem, whether married or not, known for it or not, according to the words of the companions and the consultations of the Companions; ash-Shafi'i and Abu Thawr said it is permitted to him to kill him between him and Allah if the adulterer is married, ranking it among the punishments. Ahmad and Ishaq said: his blood is profane if he brings two witnesses, without distinguishing the married from the other.
The Shafi'is add: if the food or drink weakened the violence of the poison to the point that it no longer usually kills, retaliation does not fall; otherwise he is like the one who makes him drink the poison alone: retaliation falls upon him. The Hanafis add: if he gives another poison to eat and he dies, if he took it with his own hand, no guarantee falls upon the one who fed him, for he ate it by his own choice; but he is punished, struck and corrected, for he committed an offence without a fixed punishment: deception. If he forced it down his throat, the blood money falls upon him.
Poison offered without coercion: if the poison was presented to him without forcing him, merely handing it to him, and he drank it knowingly, no guarantee falls upon the one who handed it: he killed himself by his own choice or negligence, as the Hanafis, Malikis, Shafi'is and Hanbalis state explicitly. If he mixed it into food or drink, offered it and he ate it, or gave it to him as a gift, or mixed it into a man's food without his knowledge, retaliation falls according to the Malikis, the Shafi'is in one view and the Hanbalis, according to what Abu Dawud reports from Abu Salama: a Jewish woman of Khaybar offered the Messenger of Allah a poisoned sheep; Bishr ibn al-Bara ibn Ma'rur al-Ansari died of it; he sent to the Jewish woman and ordered that she be put to death. And because this usually kills and is often taken as a route to killing: retaliation falls, as if he had forced him to drink; custom indeed is that whoever is offered food eats of it: he thereby reduced him to eating, and retaliation falls as if he had forced him to it. The second view among the Shafi'is is that retaliation does not fall, for he ate it by his own choice, as if he had killed himself with a knife; does the blood money fall upon him? Two views: no, for he is the aggressor against himself; or yes, the school's view, for the destruction was accomplished through a cause of his, as if he had dug a well on the road of people and a man perished in it.
If he mixed the poison into food, offered it to a man saying "it contains a poison that usually kills," and he ate it and died: neither retaliation nor blood money, for he killed himself: agreement of the four schools. Ibn Qudama said: if he mixed the poison into his own food and left it in his house, and a man entered and ate it, no guarantee falls upon him, neither retaliation nor blood money: he did not kill him, the one who entered killed himself, like the one who digs a well in his house into which a visitor falls; whether he intended the eater's death, like leaving the poison in the food for an unjust man who attacks his house, or not; it resembles digging a well in one's house so that the thief falls into it upon entering to steal. If a man enters with his permission and eats the poisoned food without permission regarding the food, he does not guarantee; if he mixed it into a man's food, or offered poisoned food while informing him of its poison and he ate, he does not guarantee: he ate it knowingly, as if one handed him a knife with which he stabs himself. If he made someone drink poison, or mixed it into his food which he ate unknowingly, and it does not usually kill, it is quasi-intentional; if it is disputed whether it usually kills, and evidence testifies, one acts by it; if the evidence says "it kills the weak, not the strong," one acts accordingly; if neither has evidence, the word of the one who made him drink prevails: the base rule is the negation of the obligation of retaliation, which is not established by doubt, and he knows best the nature of what he made him drink. If it is established that it is a lethal poison and he says "I did not know it kills," there are two views: retaliation falls, the poison being of the kind that usually kills, like the one who wounds saying "I did not know it kills"; or no retaliation, for it may have been hidden from him: it is a doubt that removes retaliation.
Ibn Nujaym detailed the Hanafi school: if a man makes a man drink poison and he dies of it, there are three situations: he forced him for a wage, or forced him to drink, or handed it to him and he drank without being forced. If he forced him for a wage, or handed it to him forcing him to drink until he drank, there is no retaliation: the blood money falls upon his aqila. Adh-Dhakhira mentions the question in al-Asl unconditionally and without disagreement, without distinguishing the dose that usually kills from the one that does not; this answer poses no problem for the view of Abu Hanifa, the killing having been accomplished in any case, in reality as in law: it is the mistake of the intentional according to his view. According to the view of Abu Yusuf and Muhammad, some of our masters detail: if the dose of the forced poison usually kills, it is pure intentional; otherwise a mistake of the intentional; other masters say that according to their view, it is in any case a mistake of the intentional, whether it usually kills or not, like the one who makes someone ingest a plant that bodies cannot bear and who dies of it: it is not pure intentional. If he takes it and drinks without being forced, neither retaliation nor blood money falls, whether the drinker knew it was poison or not.
The people of knowledge agree that the intentional killer does not inherit, according to the word of the Prophet: "the killer does not inherit"; Allah made inheritance a bond between the living and the dead for their communion in allegiance, and the killer cuts that bond: his state is worse than that of the apostate; and because if the killer were made to inherit, it would become a pretext for killing every testator whose heir wishes to hasten the inheritance, and the Law forbids what leads to that.
The imam ash-Shafi'i said: I have not heard of any disagreement that the intentional killer inherits nothing, neither of the blood money nor of the property, from the one he killed. The imam Ibn al-Mundhir said: the people of knowledge agreed that the intentional killer inherits nothing of his victim's property or blood money; and they agreed that the unintentional killer inherits nothing of his victim's blood money. Ibn Abd al-Barr said: the scholars agreed that the intentional killer inherits nothing of his victim's property or blood money.
The imam Ibn Qudama said: the people of knowledge agreed that the intentional killer inherits nothing from his victim, except what is reported of Sa'id ibn al-Musayyab and Ibn Jubayr, who made him inherit: it is the view of the Kharijites; the verse of inheritance includes him in its generality and it must be applied, but no reliance is placed on this view, so isolated is it and established the proof of the contrary. 'Umar, indeed, handed the blood money of Qatada al-Madhaji to his brother, not to his father who had struck him with the sword until he killed him; this story spread among the Companions without being disowned: it is therefore a consensus; and 'Umar said: I heard the Messenger of Allah say: the killer has nothing; Malik reported it in his Muwatta and the imam Ahmad through his chain, as did Amr ibn Shu'ayb, and Ibn Abd al-Barr cited them in his book. Ibn 'Abbas reported that the Messenger of Allah said: whoever kills a slain person does not inherit from him, even if he has no other heir, even if it is his father or his son: no inheritance for the killer (a weak hadith, reported by Abd ar-Razzaq in his Musannaf (17786) and al-Bayhaqi in as-Sunan al-Kubra (12022)); making the killer inherit leads to multiplying killings, the heir sometimes hastening his testator's death to take his property, like the Israelite who killed his uncle, about whom Allah sent down the story of the cow; it is said: no killer inherits after a qatil, the name of the victim.
The jurists differed over the validity of the bequest to the killer: is it valid? Is there a difference between intentional killing and mistake?
The Malikis, the Shafi'is in the most apparent view, and the Hanbalis according to a transmission, answer that the validity of the bequest does not require that the legatee not be the killer of the testator, whether intentionally or by mistake; by the generality of the word of Allah (surah an-Nisa 12), without differentiation, and of (surah al-Baqarah 181): annulling the bequest is an alteration. It is a transfer of ownership requiring acceptance: killing does not obstruct it, as in sale; it is a gift: killing does not prevent it while the testator lives; it is an acquisition of ownership: it is valid in the killer, like the renunciation of rights.
As for the hadith "no bequest for the killer," it is false and rejected; the analogical reasoning on inheritance collapses before the mother of the child who kills her master: she is freed. Ibn al-Mundhir said: we know of no proof preventing him.
The Malikis say: the bequest of the victim to his killer is valid on condition that he knows he is the one who killed him, intentionally or by mistake; in the case of mistake, the bequest bears on the testator's property and on the blood money, that is, the one taken from the killer's aqila: the bequest therefore bears on a third of both; in the case of the intentional, on the property only, that is, a third of the property, unless his killer executes it and his heir accepts the blood money knowing it. If the testator did not know that his legatee is his killer, is the bequest enforceable for him or does it fall? Two interpretations: the more correct is that he has nothing, the view of Ibn al-Qasim, for had he known that he was his killer, he would not have bequeathed to him: a man does not do good to the one who wronged him; the second: the bequest is enforceable, whether he knew or not, for the bequest was made after the blow: it is not suspected of hastening, and it bears on the property and on the blood money of the mistake only. If he said "give to the one who killed me," the bequest is valid by agreement.
The Hanafis, the Shafi'is in the opposite of the most apparent view, and the Hanbalis of the madhhab require that the legatee not be the killer of the testator: otherwise the bequest is annulled, according to what ad-Daruqutni reports raised to the Prophet: "no bequest for the killer"; ad-Daruqutni said: Mubashshir ibn 'Ubayd, abandoned in hadith, used to fabricate traditions; and al-Bayhaqi reported in as-Sunan al-Kubra (12432) saying: Mubashshir ibn 'Ubayd al-Himsi alone reports it, and he is accused of fabrication. The killer hastened what Allah delayed: he is deprived of the bequest as of the inheritance; the killer's deprivation of inheritance is due to the heirs' resentment against the one who killed their ancestor and shared his estate, and the legatee shares this meaning: the analogy applies, without the resemblance between the case measured and the case measured upon being required in every respect. It is also reported of the Prophet that he said: "the killer has nothing": the thing is named in indefinite form in a place of negation, encompassing inheritance and bequest; it is seen there that the killer is excluded from the generalities of the bequest; the bequest is the sister of inheritance, there is no inheritance for the killer, and the bequest equals inheritance; the heirs grow weary of a bequest made to the killer as some grow weary of a bequest made to some: it would lead to cutting the ties of kinship, which is forbidden; and because the wounded man brought to his deathbed sees the heirs' right attach to his property out of regard for them, so that he does not transfer his ownership to another out of hostility or the harm they caused him; but his ownership remains out of regard for his need to meet his essential expenses; the cause of the heirs' right during the terminal illness is kinship, as after death: he should therefore dispose of nothing of his property by liberality, except that he disposed of it against the killer and the heir, against the analogy: the question there remains on its principle. Killing without right is a great offence calling for the firmest deterrence: the deprivation of the bequest suits as deterrence that of the inheritance.
Allah said:
We decreed for them therein: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth; and for wounds, retaliation.
Surah al-Ma'idah, 45
The Prophet said:
Whoever has a slain person has the better of the two who look: either he is put to death, or he is compensated.
reported by al-Bukhari (112) and Muslim (1355)
From Abu Shurayh al-Khuza'i, the Messenger of Allah said:
Whoever is struck in blood or wounded, the wound being the kahl, has the choice between three: if he wants a fourth, restrain his hand: to kill, or to pardon, or to take the blood money; whoever does any of these and then returns has the fire of Jahannam, abiding therein eternally.
reported by Abu Dawud (4496), Ibn Majah (2623) and Ahmad (16422), a weak hadith
The Prophet also said:
Whoever is killed between two peoples by the throwing of stones, whips or stick blows, it is a mistake and its ruling is that of mistake; whoever is killed intentionally, it is retaliation; whoever opposes it incurs the curse and wrath of Allah: neither commutation nor equivalence will be accepted from him.
reported by Abu Dawud (4536), an-Nasa'i (4790) and Ibn Majah (2635)
Wisdom requires the legitimacy of retaliation: human nature and wicked souls incline to injustice and aggression, coveting the surplus beyond the beginning, especially among the dwellers of deserts and the people of ignorance, turned away from the laws of reason and justice, as their custom in the pagan era shows. Had the deterrent punishments and retaliation, without increase or decrease, not been prescribed, the ignorant, the vindictive and the proud souls would have dared killing and slaughter by aggression, weakening their prey in retaliation: that would lead to extermination.
Al-Hasan reported that Jabir ibn Abdullah said that the Messenger of Allah said: "I do not pardon the one who kills after taking the blood money" (a weak hadith, reported by Abu Dawud (4507) and Ahmad in al-Musnad (14954)); he killed a protected person his equal: retaliation falls upon him as if he had not killed before. Rule: if the wali pardons the killer unconditionally, that is valid and no punishment falls upon him, the view of ash-Shafi'i, Ishaq, Ibn al-Mundhir and Abu Thawr; Malik, al-Layth and al-Awza'i say he is struck and imprisoned for a year. We answer: he had only one right, and its holder waived it: nothing else falls upon him, as when the blood money of the unintentional killer is waived.
The blood money: the jurists differed over the one who deserves death: is retaliation the only due, the blood money being owed only by consent? Or does the holder of the right choose between retaliation and blood money?
The Hanafis, the Malikis of the madhhab, the Shafi'is in one view and the imam Ahmad according to a transmission, answer that intentional killing entails retaliation: the blood money is due only with the offender's consent; if the offender dies, retaliation falls away, its locus having vanished, and the blood money is not due. Intentional killing entails retaliation itself: money is owed only by settlement at the killer's will, by the word of Allah (surah al-Ma'idah 45): were money or one of the two due, it would no longer be a life for a life; the Law of those who preceded us binds us as long as abrogation is not established, and all the hadiths of choice between retaliation and blood money are solitary reports that do not abrogate the Book. His saying (surah al-Baqarah 178): retaliation signifies equivalence in the sense of the language, and equivalence is between a life and a life, not between a life and money; or: the verse mentions retaliation without the blood money: were there choice or blood money, it would rest on the report of a single narrator, as an addition to the Book, and addition is abrogation, while the Book is not abrogated by that; the Prophet said:
Intentional killing is retaliation, unless the wali of the victim pardons.
reported by ad-Daruqutni (3/94), hadith no. 45
and in a version:
And whoever is killed intentionally, it is retaliation.
reported by Abu Dawud (4541), an-Nasa'i (4790) and Ibn Majah (2635)
And he said:
The Book of Allah is retaliation.
reported by al-Bukhari (2557)
he informed that what is in the Book of Allah is retaliation, nothing else. Killing entails retaliation in the intentional and blood money in the mistake: just as one cannot turn from the blood money in mistake except by consent, one cannot turn from retaliation except by consent; killing is sometimes claimed through retaliation and sometimes through repelling aggression: not having the right to demand its equivalent in defense, he has no right to demand its equivalent in retaliation.
If the heirs settle for money, that is valid, little or much, of the kind of blood money or other, immediate or deferred. If they do not settle but some of them pardon, retaliation falls away; the share of the one who pardons is not converted into money, that of the others is: when retaliation cannot be executed on the side of its holder, his share is not converted; when it cannot be on the side of the debtor, it is; the pardoner's share is not converted, for execution failed on his side; the share of the one who did not pardon is converted, for execution failed on the other's side. This agreed money falls upon the killer's property: Ibn 'Abbas said: "the aqila bears neither intent, nor the slave, nor settlement, nor acknowledgment" (reported by al-Bayhaqi (8/104)); this concerns intent and settlement: the aqila bears nothing of it; payment therefore falls upon his property, under the agreed conditions of deferment, advance and date; its basis is the word of Allah (surah al-Baqarah 178): whoever is granted something from his brother must follow the fair way and pay with excellence: the meaning is settlement.
The Malikis in one view, the Shafi'is of the madhhab and the Hanbalis of the madhhab answer that intentional killing entails retaliation and that the wali of the victim may pardon up to the blood money without needing the offender's consent: he claims it and takes the blood money even if the killer refuses, by the word of Allah (surah al-Baqarah 178): whoever is granted something from his brother must follow the fair way and pay with excellence; the meaning: for the one granted remission from retaliation, let the wali pursue the blood money fairly, and let the killer pay it with excellence; pursuit was assigned to the wali and payment to the killer: the killer being alone in payment, the wali alone has pursuit, without the condition of consent.
From Abu Shurayh al-Ka'bi, the Messenger of Allah said:
You, people of Khuza'a, killed this man of Hudhayl: I am his guarantor; whoever has a slain person after this day: his family chooses between two: to kill or to take the blood money.
reported by Abu Dawud (4504), at-Tirmidhi (1406) and Ahmad (27204)
He gave the wali the choice between retaliation and blood money: this is a text. Abu Hurayra reported that the Messenger of Allah stood and said:
And whoever has a slain person has the better of the two who look: either he is paid, or he is avenged.
reported by al-Bukhari (112) and Muslim (1355)
Retaliation may fall away through the wali's pardon when he is alone, or through the pardon of one of them when they are several; yet it is established that its fall through one heir's pardon entails the blood money without consent: the same holds when all pardon. Its attribution by analogy: it is a retaliation fallen away by pardon: the blood money does not depend there on consent, as at the pardon of one heir; killing has two equivalents, retaliation the graver and blood money the lighter: having acquired the graver without consent, he has more right to acquire the blood money without consent; intentional killing is graver than mistake: having the blood money in the lighter, he has more right to it in the graver.
The life has two equivalents, retaliation and blood money: the holder of the right of blood cannot be restricted to one of the two. Settlement beyond the blood money is valid for whoever holds retaliation. If the wali pardons retaliation, the blood money becomes fixed according to the Shafi'is and the Hanbalis. When the wali chooses the blood money, it becomes fixed and retaliation falls away according to the Shafi'is of the madhhab and the Hanbalis; Ahmad said: if he takes the blood money, he has pardoned the blood and cannot seek retaliation after choosing the blood money, for what falls away does not return; if he kills him after choosing the blood money, he is killed for him: it is an intentional killing by aggression. Among the Shafi'is, one view says: if he chooses the blood money, retaliation does not fall away; if he chooses retaliation, his right to the blood money does not fall away: his choice remains. If he pardons unconditionally, binding himself to neither retaliation nor blood money, the blood money is his: pardon reverts to retaliation, which faces vengeance, and vengeance is accomplished only by killing. Or if he pardons for something other than money, wine and the like: the blood money is his; or if he pardons retaliation unconditionally, saying "I have pardoned the retaliation" without binding it to anything, even if he pardons the victim's hand or leg: the blood money is his, the pardon reverting to retaliation. If the holder of retaliation says to his debtor: "I have pardoned your offence," or "I have pardoned you," he is free of the blood money as of retaliation according to the Shafi'is and the Hanbalis of the madhhab, his pardon encompassing both. It is said: if he intended it; it is said: if he claims to have intended only the retaliation, it is accepted; otherwise he is free.
The imam Ibn Rushd said: they agreed that the holder of the right of blood has only two things: retaliation or pardon, against the blood money or without it. They differed: is the passage from retaliation to pardon against taking the blood money a fixed right of the holder of blood, without the debtor having a choice? Or is the blood money established only by the consent of both parties, the wali and the killer, so that if the creditor refuses to pay the price, the wali has only retaliation or pardon? Malik said: the wali owes only retaliation or pardon without blood money, unless the killer consents to pay it: this is Ibn al-Qasim's narration from him, and Abu Hanifa, ath-Thawri, al-Awza'i and a group follow it. Ash-Shafi'i, Ahmad, Abu Thawr, Dawud and most of the jurists of Medina among Malik's companions said: the wali has the choice: if he wills he retaliates, if he wills he takes the blood money, whether the killer consents or not; ash-Shahab reported it from Malik, but the most famous position from him is the first narration. Malik, in the famous narration, relies on the hadith of Anas in the affair of Sinn ar-Rubi'i: the Messenger of Allah said: "The Book of Allah is retaliation" (reported by al-Bukhari (2556)): the address indicates that he has only retaliation. The second group relies on the established hadith of Abu Hurayra: "whoever has a slain person has the better of the two who look: between taking the blood money and pardoning"; two hadiths whose authenticity is agreed, but the first is weak in its indication: it grants only retaliation, while the second is a text on his choice. Their reconciliation is possible by lifting the indication of the address; if reconciliation is obligatory and possible, one turns to the second hadith; the majority says that reconciliation is obligatory when possible and preferable to preferring one text over the other. Allah, moreover, says: "do not kill yourselves" (surah an-Nisa 29): when the responsible person is offered to ransom his life with property, the ransom is obligatory upon him; its origin is the one who finds food in famine at its price and has the means to buy it: he is judged by the purchase; how then of buying his life? On this narration, if the victim has minor and adult heirs, the execution must be deferred until the minors grow up and have the choice, especially if the minors exclude the adults, like the sons with the brothers. The qadi said: this question occurred in Cordoba in my grandfather's lifetime: the jurists of his time ruled by the famous narration, namely not waiting for the minor; he ruled for the waiting by analogy; the people of his time slandered him for it, so strong was their imitation, to the point that he had to compose an argument defending this madhhab, and it exists among the people.
Second form: the jurists differed over the one who kills a man with a non-edged object whose use makes death likely, like striking with iron or wood, or dropping a wall or a large stone without edge upon him, or crushing his head with a stone: is it an intentional killing entailing retaliation or not? The majority of jurists, Malikis, Shafi'is and Hanbalis, with Abu Yusuf and Muhammad among the Hanafis, answer that it is an intentional killing entailing retaliation, by the word of Allah (surah al-Isra 33): he is a victim of injustice; and by (surah al-Baqarah 178). Anas reported that a Jew killed a young slave girl for her necklaces by crushing her with a stone; she was brought to the Prophet in her last breath; he asked her: did so-and-so kill you? she shook her head no; he asked a second time, she shook her head no; at the third, she nodded yes; the Prophet killed him with two stones (reported by al-Bukhari (6485) and Muslim (1672)). Abu Hurayra reports the hadith of choice already cited. Because this usually kills: it resembles the edged weapon.
Amr ibn Dinar reports having heard Tawus, from Ibn 'Abbas, from 'Umar, who had asked about the Prophet's ruling in the matter; Hamal ibn Malik ibn an-Nabigha stood up and said: I was between two women; one struck the other with a mistab and killed her and her fetus; the Messenger of Allah ruled for the fetus a ghurra and that one 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 mistab is a pole of the tent's supports, a large piece of wood planted at the center of the tent. Because it is an instrument with which killing is usually intended: retaliation may follow from it, its origin being the edged weapon; he intended the death of his equal, unjustly: he resembles the one who burns him with fire; and allowing it to be excluded would be a pretext for hastening to kill.
The imam Abu Hanifa answers that no retaliation follows from it: retaliation exists only through an edged weapon or fire; no execution by heavy wood or other; for heavy iron, two narrations: the madhhab is that retaliation applies. The Prophet said:
The victim of the mistake resembling intent, victim of the whip and the stick, is one hundred camels, forty of them pregnant.
reported by Abu Dawud (4547), an-Nasa'i (4794 and 4796), Ibn Majah (2627) and Ahmad (23540)
he named it the mistake of the intentional and imposed only the blood money, without retaliation; intent not being measurable in itself, it must be fixed by presumption, and it cannot be fixed by what usually kills, intent occurring without that in the small wound: it must therefore be fixed by the wound. Killing with an instrument not prepared for killing proves the absence of intent: every act is accomplished through the prepared instrument; its accomplishment through what is not prepared for it proves the absence of intent; heavy wood and what follows it are not, by habit, prepared for killing: killing by it is therefore proof of the absence of intent, and the doubt of the intentional enters it; unlike killing with edgeless iron: iron is an instrument prepared for killing, Allah said: "We sent down iron, in which lies great violence" (surah al-Hadid 25); killing by the pole is habitual: it is therefore proof of intent, and the intentional is purified.
If the added water can reach the place where he is at that moment and he dies of it, it is pure intentional; if it is unknown, either because it may or may not reach, or because it is never seen, it is quasi-intentional. Killing by poison: if he offers another poisoned food or makes him drink poison, if he offers it to a child or an insane person saying eat or drink, and he eats or drinks and dies, retaliation falls upon the offerer if the poison usually kills, whether or not he informed him of the poisoning. If he makes an adult drink it and he dies, there are two situations: the first, that he is forced to drink the poison or that it is forced down his throat: if he forced the poison down his throat and admits it is a poison that usually kills, retaliation falls according to the majority, Malikis, Shafi'is and Hanbalis, for he killed him by what usually kills: he is as if he had killed him with the sword. The Hanafis say: the blood money falls, without retaliation. If he mixed the poison into food or drink and forced it down his throat until death, retaliation falls according to the Malikis and the Hanbalis, according to the hadith of Abu Dawud already cited (reported by Abu Dawud (5411), a hadith judged good).
Third type: the intentional-mistake or the quasi-intentional, the view of the majority against the Malikis. The Hanafis add two types falling under the ruling of mistake: what is assimilated to mistake, and killing by cause.
First section: intentional killing. Definition: the jurists differed: is it to aim at the act and the person through what kills absolutely or usually? Or to aim only at the act? The majority, Malikis, Shafi'is and Hanbalis, answer that intentional killing is to aim at the act and the person through what usually kills, intending his death thereby.
The Malikis say: intentional killing is that by which the destruction of life is intended through an instrument that usually kills, even a heavy object, or through a lethal grip like the crushing of the testicles, violent pressure and strangling, or by toppling a house upon him and withholding food from him until he dies of hunger. It is said: the condition of the killing that entails retaliation is to aim at the blow, that is, to aim at delivering it, the intention to kill not being required outside the original offence on its branch: if he intended to strike him with what usually kills and he died of it, he is retaliated against for him; likewise if he intended to strike him with what does not usually kill and he died of it, he is retaliated against for him, even with a stick. If he did not intend to strike him and this is established by evidence or by the victim's acknowledgment, there is no retaliation: it is a mistake, and the blood money falls upon the aqila. Whether he aimed at the person struck himself, or aimed at striking someone by aggression and hit another: he is put to death for him; the saying "it is a mistake" is weak. If he intended to strike one whom he is permitted to strike and hit another, it is a mistake, on condition of a playful or courteous blow. These words "outside the original offence" exclude the father's offence against his son: intending to strike him does not entail killing him as with others, for he is the cause of the son's coming forth from non-existence into existence: he is not killed for that, unless he aimed at his life. Ad-Dasuqi said: know that killing has four aspects: not intending to strike him, as when one throws something or war material at him and hits a Muslim: mistake by consensus, with blood money and expiation; intending the blow in play: mistake according to Ibn al-Qasim and the narration of the Mudawwana, against Mutarrif and Ibn al-Majishun; likewise if he intended through it the permitted correction with an instrument of correction; if the blow aimed at correction and anger, the most famous view is that it is an intentional killing from which one retaliates, except with the father and the like: no retaliation, but an aggravated blood money; intending the killing by way of treachery: execution becomes obligatory without pardon, as Ibn Rushd says in al-Muqaddimat.
The Shafi'is say: pure intentional killing is to aim at the act and the specific person through what usually kills; it is called intentional killing only if two things are realized in it: aiming at the person for the killing, otherwise it is not intentional, like the one who shoots an arrow aiming at game and hits someone killing him; and that the means of killing be of what usually kills: if he strikes him with a small stick or a small stone in a non-lethal place and he dies of the blow, that killing is not an intentional killing, the means not usually killing.
The Hanbalis say: the intentional killing specific to retaliation is that the offender aims at one he knows to be a protected human being and kills him through what death is presumed from, an edged weapon or otherwise: no retaliation if he did not intend the killing, or if he intended it through what does not usually kill.
The Hanafis answer that intentional killing is to deliberately aim at the blow struck at the human being in any place of the body through an instrument that separates the parts, a weapon or a heavy object, even of iron, even without intending his death: the intentional is the aim, which is known only through its proof, and its proof is striking with such an instrument.
Third section: quasi-intentional killing. Quasi-intentional killing is also called intentional-mistake and mistake-intentional, through the joining of the intentional and the mistake: he aimed at the act and erred in the killing. The jurists defined it in several ways: according to the imam Abu Hanifa, the quasi-intentional is to deliberately aim at striking him with what is neither a weapon nor like a weapon, but with what habitually destroys: the fullers' mallet, the large stone, the big stick and the like: if he killed him with that, it is quasi-intentional; likewise if he strikes him with a small stick, slaps him deliberately and he dies of it, or strikes him with a whip and he dies: quasi-intentional. This killing was named quasi-intentional, that is, a mistake resembling intent, because of the sense of intent regarding the author's aiming at the blow, and the sense of mistake regarding the absence of intent to kill: quasi-intentional is thus to deliberately aim at the killing through any instrument not made for killing.
The quasi-intentional according to the imam Abu Yusuf, Muhammad, the Shafi'is and the Hanbalis is to aim at striking him with what does not usually kill, like the whip, the small stick and the small stone, for with these correction is intended; if he strikes him with a large stone or a large piece of wood, it is intentional according to all of them, and quasi-intentional according to Abu Hanifa. The imam al-Kasani said: the quasi-intentional has three types, one of them agreed upon and another disputed. The agreed one: intending the killing with a small stick, a small stone or a slap and the like whose habit is not destruction, like the whip, striking one or two blows without continuing. The disputed one: striking with the small whip continuing the blows until death: it is quasi-intentional without dispute among our companions. If he intended to kill him with that whose destruction is habitual without being cutting or piercing, like the fullers' mallet, the large stone or the big stick, it is quasi-intentional according to Abu Hanifa, and intentional according to his two companions and ash-Shafi'i; and there is quasi-intentional only in matters of life. What is quasi-intentional in matters of life is intentional in what lies below: below life, destruction is not sought with one instrument rather than another by habit: all instruments are equal in proving intent, the act is therefore pure intentional; one then examines whether it can be carried out.
Second section: pure involuntary killing. Definition: here is a point of agreement among the jurists: it is a killing by mistake; the imam Ibn al-Mundhir said: they agreed that killing by mistake is to intend to shoot at a thing and hit another.
The jurists have definitions and divisions: the Hanafis say that mistake has two aspects: mistake in the aim: shooting at someone he takes for game while it is a human being, or takes for an enemy while it is a Muslim, or shooting at an enemy who had converted without his knowing, or shooting at a man and hitting another: all of this is mistake in the aim; if he aimed at a limb of someone and hit another limb of the same, it is an intentional killing that entails retaliation. Mistake in the act: shooting at a thing and hitting a human being: both are mistake, the one in the act, the other in the aim.
The Malikis say that mistake has two kinds: not intending to strike him, as when one throws something or war material at him and hits a Muslim: mistake by consensus, with blood money and expiation; intending the blow in play: mistake, likewise if he intended through it the permitted correction with an instrument of correction; if the blow aimed at correction and anger, the most famous view is that it is an intentional killing from which one retaliates, except with the father and the like: no retaliation, but an aggravated blood money.
The Shafi'is say that mistake is the loss of the aim of both, or of one of them, that is, of the act or the person: whether he hit him and he died of it, or shot at a tree or an animal and hit him killing him, or shot at a human being and hit another who died: mistake, for want of aiming at the specific person.
The Hanbalis say that mistake has two kinds: in the act: shooting at game, a thing, a person even if protected, or an animal even if honored, and hitting a protected human being whom he did not intend: mistake. It is said: if he shoots at a protected person or an honored animal and hits a protected human being whom he did not intend, it is intentional; it is said in al-Insaf that it is the textual position of the imam Ahmad, said by the qadi in his two narrations, the apparent meaning of al-Khiraqi's words, and the inference from al-Muntaha. Or a sleeper turns over upon him, like one buried under rubble: the expiation and the blood money upon the aqila.