Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Killing by indirect cause
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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.
Fifth section: killing by cause. According to the Hanafis, it is the killing resulting from an act that does not lead directly to killing, like the one who digs a well or places a stone outside his property and a man stumbles over it and dies: he neither intended the killing nor erred in it; he is its cause by transgression. The Hanafis derive from it, if a human being perishes in it, the blood money upon the aqila, for he is the cause of destruction; no expiation, for he neither carried out the killing nor weighed upon it with his body; he is not deprived of inheritance for the digging or the placing, for he is not suspect; all of this if he dug it on the passage of people, otherwise no guarantee. He guarantees only if the passer-by did not intend to walk on the stone: if he intended it, he does not guarantee, for it is he who harmed himself by passing over it deliberately. If he placed a stone and another moved it from its place, the guarantee falls upon the one who moved it. If the wali and the digger disagree, and the digger says "it is he who brought down his own life," the digger's word prevails. If he shut a free man in a house or walled him in and he dies of hunger or thirst, he guarantees nothing: it is a cause that does not lead to destruction; he died of another cause, the lack of food and water; only the hand remains, and the free man is not guaranteed through the hand. If he made a man drink poison or eat it and he dies of it, if he ate it with his own hand, no guarantee falls upon the one who fed him, but he is punished and struck; if he forced it upon him or compelled him to it, the blood money falls: by eating it himself, he is the killer of his own life, and the one who offered it deceived him, and deception does not carry the guarantee of life.
This type has, among the Hanbalis, the same ruling as involuntary killing: blood money and expiation. The Hanbalis say that killing by cause, like digging a well, planting a knife, or killing through one not legally responsible, follows the regime of mistake even if it is intentional; Ibn Qudama said: this form, in the view of most, belongs to the section of mistake: its author did not intend the act, or intended it without being capable of a valid aim: they named it mistake and gave it its ruling; al-Khiraqi stated it explicitly, saying of the child and the insane person that their intentional is mistake.
The Malikis hold that the offence through causation takes the ruling of the intentional: if the offender causes destruction, that is, if he performs an act that is a cause of destruction, like digging a well, even in his house where the target falls, or placing something slippery like a melon rind, or water in the manner of slippery mud on the path of a target, or tying an animal on the path of a target, or keeping a vicious dog for a specific man after reviewing all that precedes, and the targeted man perishes through the well and what follows it: retaliation falls upon the causer, whether he is the equal of the victim or the victim is above him. Retaliation in the four forms is therefore bound by three conditions: that the actor intend harm through his act; that the one whose harm he intends be specific; that this specific one perish. Otherwise, if the targeted one survived but another perished, or no specific one existed but a general harm was intended and a man died of it, the blood money falls. If he intended no harm by the digging and what follows, nothing falls: it is a profane case, if he dug the well on his property or in barren land for a benefit, even general, or placed the slippery thing off the road of people, or tied the animal to his house or to a road of agreement like a market, a mosque or someone's house for hospitality, or kept the dog at his house for guarding; otherwise, the blood money likewise.
The Shafi'is say that retaliation falls through the cause as through the direct act: what has a role in the acts of destruction is either direct action, which influences destruction and brings it about, like the antecedent wound: retaliation applies to it; or condition, which neither influences destruction nor brings it about, but through which destruction is accomplished by another whose influence depends on it, like the digging together with the throwing: the digging neither influences nor brings about, it is the stepping toward the pit, the throwing and the impact that accomplish destruction, but without the digging it would not be accomplished: that is why it is named condition; such is the holding down of the killer, without retaliation; or cause, which influences destruction without bringing it about. The basis of this enumeration: does the actor aim at the specific injured person or not; if he aims at him through an act leading to destruction without intermediary, it is the direct act; if he reaches it through an intermediary, it is the cause, like testimony entailing retaliation; if he does not aim at the injured person at all, it is the condition.
The cause divides into three kinds: the first is legal, like false testimony: one retaliates against the false witnesses; if two men testify before a judge against someone to what entails retaliation, in life or in limb, or to apostasy or theft, and the one testified against is killed or amputated after the judge's ruling on their testimony, then they retract saying "we lied deliberately, knowing he would be killed or amputated by our testimony," retaliation falls upon them: they caused his destruction through what usually kills, resembling sensory coercion; unless the wali of the victim admits being informed of their lie at the moment of the killing: no retaliation against them, for they did not reduce him to killing either sensibly or legally: their word is a pure condition like the holding down along with the killer; retaliation falls upon the wali; if the wali says "I knew their lie" after the killing, retaliation does not fall away from them. The second is customary, like offering poisoned food to one who eats it: if one extends hospitality with a poison that usually kills, or hands it to a child without discernment or to an insane person who eats it and dies of it, retaliation falls, for he reduced him to it, whether or not he told him it was poisoned; in their sense, the foreigner who believes obedience to his command obligatory: he is in this situation like the child and the insane; the discerning one is like the adult, likewise the insane person who has discernment; if he extends hospitality to a sane adult who does not know the state of the food, the blood money falls without retaliation, for he took it by choice without compulsion. If the wounded man abandons the care of a wound that is fatal to him and dies of it, retaliation falls absolutely upon the one who wounded him, for the care is not certain even if applied, and the wound in itself is fatal. What does not kill: if he is wounded and does not bandage the vein until he dies, there is no guarantee, for he killed himself, like the one imprisoned with food who does not eat. If someone holds down someone whom another kills, or digs a well, even by aggression, and another throws someone into it and the throwing usually kills, or he is thrown from the top of a cliff and another cuts him in two before he reaches the ground, retaliation falls upon the killer in the first, like the one who holds down the woman for adultery: the adulterer is punished, not he, without retaliation or blood money, only the disciplinary punishment, for he sins; retaliation falls upon the thrower in the second, the direct act taking precedence over the cause, the digging being a condition without effect in the presence of the direct act; and upon the one who cuts in the third, who is bound by the rulings, for his act cut off the effect of the cause: nothing falls upon the one who threw, whether he knew the situation or the cutter belongs to those who do not guarantee, like an enemy. The third is sensory, like coercion to kill: if he is forced unjustly to kill someone and he kills him, retaliation falls upon the coercer and the coerced; upon the coercer, for he destroyed him by what destruction is usually sought through, as if he had shot him with an arrow; upon the coerced, for he killed him intentionally by aggression to preserve his life, as if the starving forced man had killed him to devour him; and because he is the instrument of the coercer: he is as if he had struck him with him. If a sane adult forces an adolescent to kill someone, or the reverse, and the victim dies, retaliation falls upon the adult, its object being realized: the pure killing by aggression. If someone says to another: kill me, or I will kill you, and the latter kills him, there is no retaliation against him, for the permission is a doubt that removes the punishment; no blood money either. Most of these forms have passed in the first section, intentional killing.
Fourth section: what is assimilated to mistake. This type is mentioned by the Hanafi and Hanbali jurists: the Hanafis say that what is assimilated to mistake, like the sleeper who turns over upon a man and kills him, takes the ruling of mistake: the fall of retaliation, the blood money due, the loss of inheritance; retaliation falls away for he did not intend, the blood money is due for he died of his act, and inheritance is lost for he may have intended his killing while feigning sleep. It was assimilated to mistake because the sleeper has no aim: his act is described neither as intentional nor as mistaken, whence the name of mistake was not given to it; he takes its ruling through the death accomplished by his act, like the one who errs. Many Hanbalis mention this section and say that what is assimilated to mistake, like the sleeper who turns over upon someone and kills him, or falls from a height, takes the ruling of mistake in all its rulings. In the view of the generality of jurists, this type follows mistake and takes all the rulings of involuntary killing: they included it in the section of mistake, without terminological quarrel.
Ibn Qudama said: no disagreement among the people of knowledge: there is no retaliation against a child or an insane person, nor against anyone who lost his reason through an excuse, like the sleeper, the fainting person and the like; the basis is the word of the Prophet:
The pen is lifted from three: the child until puberty, the sleeper until he wakes, the insane until he recovers.
reported by al-Bukhari and Muslim
retaliation is a severe punishment: it therefore does not fall upon the child nor upon one who lost his reason, like the fixed punishments; they have no valid aim: they are like the killer by mistake. Retaliation from the drunkard: the drunkard who kills in a state of drunkenness, if his reason was altered without a forbidden cause, is like the fainting person: no retaliation by agreement, for he has neither aim nor deterrence. They differed, if he became drunk through a forbidden cause and killed in his drunkenness, established by evidence or confession, over retaliation: the majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis of the madhhab, answer that retaliation falls upon the transgressing drunkard who kills in his drunkenness: acts of disobedience do not become causes of dispensation; otherwise retaliation would be abandoned: whoever wanted to kill could get drunk to avoid it. The Companions established his drunkenness in place of his slander and imposed on him the punishment of the slanderer: otherwise his slander would not have entailed the punishment by presumption; if the punishment falls, retaliation, a pure human right, is stronger. It would be a ruling such that, were there neither retaliation nor punishment, whoever wanted to disobey Allah by drinking intoxicants would kill, commit adultery and steal without punishment or sin: his disobedience would become the cause of the fall of punishment in this world and the next: this makes no sense; it differs from divorce, a word that can be annulled, unlike killing.
The Shafi'is annex to it the one who transgresses by drinking a medicine that removes reason; the non-transgressor is like the feeble-minded: no retaliation against him. The Hanbalis say: if he drank or ate what removes his reason other than wine in an unlawful manner, if his reason totally vanished so that he became insane, there is no retaliation; if it vanishes quickly and returns without remedy, he is like the drunkard, with the details already given. According to one view of the Hanbalis, no retaliation falls upon him, for he lost his reason: he resembles the insane, and he is not legally responsible like the child and the insane. The shaykh of Islam Ibn Taymiyya was asked about two men who had drunk with a third: returning to their homes, they quarrelled, one struck his companion with a blow of a dabbus that made him fall from his horse; the third stopped, helped him remount and accompanied him to his dwelling; he fell again, and in the morning he was found dead; a man of the dead man's family questioned him in secret about their affair without informing him of the death; he related their story to him; witnesses testified that so-and-so had struck him, without having heard from the dead man; the accused had concealed his identity for fear of the punishment, so as not to confess; the dead man had a nursing daughter and brothers. He answered: if the wine drinker knows what he says, when he kills he is a killer: retaliation and the killer's punishment fall upon him by agreement of the scholars. If he became drunk to the point of not knowing what he says, or worse, and he killed, does retaliation fall upon him to the point of his being handed to the heirs to kill him? Two views of the scholars, two narrations from Ahmad; but most jurists, the companions of Abu Hanifa, Malik, ash-Shafi'i and many of Ahmad's companions, require retaliation as for the sober: if only one witness of the killing, no ruling is given, unless the heirs of the victim swear fifty oaths; that is when he died of his blow, the blow being pure aggression; if he died together with the other's blow, retaliation is disputed.
The Hanafis said that striking another with a small stick, a small stone, a slap and the like whose habit is not destruction, like the whip, in one or two blows without continuing, is quasi-intentional without retaliation; likewise if he strikes him with the small whip continuing until death: quasi-intentional without dispute among the Hanafi jurists. Third case: if he killed him by strangling: the jurists differed over the one who kills another by strangling him with his hand or with a rope, or who throws a pillow or a handkerchief on his face and leans upon it until he dies: is this killing taken as an intentional one from which one retaliates, or is it quasi-intentional? The majority of jurists, Malikis, Shafi'is and Hanbalis, with the two companions Abu Yusuf and Muhammad, answer that whoever kills another thus commits an intentional killing from which one retaliates if he acted for a duration during which the strangled man usually dies: retaliation falls, for he intended his killing by what usually kills, by (surah an-Nisa 93): he is an intentional killer, execution falls upon him. The two companions say: if he strangled him until death, it is intentional with retaliation; that is if he persisted in strangling him until death; if he released him before death, one examines: if he persisted in the strangling for a duration in which a man usually dies, retaliation falls according to them, otherwise no agreement. The Malikis say: whoever strangles another or crushes his testicles until death is retaliated against. The Shafi'is say: if he strangled him with his hand or with a rope, placed his hand over his mouth preventing him from breathing, or threw a pillow or a handkerchief on his face and leaned upon it until death: if he acted for a duration during which the strangled man usually dies, retaliation falls, for he intended his killing by what usually kills; if he acted within a period in which he may die or not, the habit being that he does not die, retaliation does not fall: an aggravated blood money falls upon him, his act being a mistake of the intentional. If he strangled him with a strangling of which a similar person dies, then released him alive and he died of it: if the strangling left in him an injury such that his breath no longer comes out, or he remains in pain until dying, retaliation falls upon the strangler: he died of the persistence of his act. If he strangled him and released him alive, without pain or harm, then he recovered, was healed, then died: neither retaliation nor blood money, for he died of another cause, like the one who was wounded whose wound healed and who then died. If he passed over his neck a noose of rope, placed a stool under his feet, tied the rope to the ceiling, then removed the stool, the man strangled himself and died: retaliation falls, for he caused the strangling. Likewise if he crushed his testicles hard until death: retaliation falls, for this usually kills.
The Hanbalis say: for the one who prevents the exit of breath, two types: passing over his neck a ligature, what is called today the garrote, then hanging him on a piece of wood or other so that he rises from the ground and strangles himself until dying: this is intentional, whether he dies at once or survives for a time: it is the strongest of stranglings, the one rulers customarily inflict on brigands and corrupters; or strangling him on the ground with his hands, a handkerchief, a rope, or gagging him with a cushion, an object placed over his mouth and nose, or placing his hands over them until death: if he acted for a duration in which he usually dies, it is intentional with retaliation; if he did it within a period in which he does not usually die and he died, it is a mistake of the intentional, unless it is negligible in habit, such that death cannot be imagined from it: no guarantee, for it is like touching. If he strangled him and left him until he died, retaliation falls, for he died of the persistence of his offence, like the one who died of the persistence of a wound; if he breathed, recovered, then died, no retaliation: he apparently did not die of that, like the one whose wound heals and who then dies. The imam Abu Hanifa answers that the one who strangles another until death incurs no retaliation: it is quasi-intentional with an aggravated blood money upon the aqila, without retaliation upon her, the instrument being deficient, raising doubt whether he intended the killing or the exaggeration of pain: death occurred without his bearing it. If he strangled several times, he is killed now: his aim at killing by strangling has appeared, knowing its outcome in death, and he adopted it: he went about the earth as a corrupter, and whoever is so has his evil repelled by execution. If he is a known strangler who strangled more than one, execution applies to him: his aim has appeared, he adopted strangling after knowing its lethality, he went about as a corrupter, and whoever is so has his evil repelled by execution, as a punishment and not as retaliation.
From the affair of the mistab one retains that the aqila does not bear the intentional: it is seen thereby that killing by the tent pole is not intentional; if it is larger, it is intentional, for it usually kills. Of the same type: dropping upon him a wall, a rock, an enormous piece of wood and the like that destroy him usually: retaliation applies, for this usually kills.
Second case: striking him with a light blunt object, like the stick, the whip and the small stone: the jurists differed over the one who strikes him with a light blunt object like the small stone, the whip or the stick and he dies of it: is retaliation due for it? The majority of jurists, in sum Malikis, Shafi'is and Hanbalis, answer that retaliation is due from the one who strikes thus and the victim dies.
The Malikis say: the condition of the killing that entails retaliation is to aim at the blow, without aiming at the killing: if he aimed at striking him with what usually kills and he died of it, he is retaliated against for him; likewise if he aimed at him with what does not usually kill, like a stone, a slap, a prick, a pellet, a stick or other, and he died of it: he is retaliated against for him, even without intending the killing, the mere aim at the blow sufficing for the obligation of retaliation. 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, 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; striking in play: mistake according to the correct view; likewise if he intended through it the permitted correction with an instrument of correction; if the blow aimed at correction and anger, the 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: if he strikes him with a whip, a light stick, or throws a small stone at him, one examines: if he continued the blows to a number that usually kills according to the state of the one struck, until he died, or the pain worsened and remained until death, retaliation falls; if he did not continue, limiting himself to one or two blows, but in a lethal place, or in extreme heat or cold that aids destruction, or the one struck is small or weak by nature or accident, retaliation falls, for this usually kills; otherwise it is quasi-intentional with the blood money.
The Hanbalis say: if he strikes him with a light blunt object like the stick, the whip or the small stone, or pricked him with his hands in a lethal place, or in a state of weakness of the one struck from illness or childhood, or in a time of extreme heat or cold such that the blow kills, or repeated the blows until he killed him by what usually kills, retaliation applies, for he killed him by what usually kills: it resembles the blow of the heavy blunt object. If he invokes illness in all these cases, it is not accepted; if he says "I did not intend his killing," he is not believed: the apparent is the contrary. Of the same type: if he crushed one of his testicles with a pressure that usually kills: retaliation falls upon him. If the blow is neither lethal nor in a state of weakness, it is a mistake of the intentional with the blood money, unless the instrument is minute like the blow of a pen or a finger in a non-lethal place and the like where death cannot be imagined: neither retaliation nor blood money, for he did not die of it; likewise if he touched him with the large object without striking him: the blood money falls only through killing, and this is not a killing.
Second point: the people of science agree that in killing by mistake and in the quasi-intentional, the blood money is due, by (surah an-Nisa 92): the freeing of a believing slave and the blood money delivered to his family; it falls upon the aqila, the Sunna and consensus proving it. As for the Sunna: al-Mughira ibn Shu'ba reported that a woman killed her co-wife with the pole of a tent; the Messenger of Allah was informed of the matter and ruled the blood money upon her aqila; she was pregnant and he ruled for the fetus a ghurra; some of her tribe said: shall we compensate the one who neither ate, nor drank, nor cried out, who only wailed?! And it is freed?! He answered: you prattle like the Bedouins (reported by Muslim (1682)). In the Sunan of Ibn Majah, al-Mughira ibn Shu'ba reports that the Messenger of Allah ruled the blood money upon the aqila (an authentic hadith, reported by Ibn Majah (2633)). The Prophet said:
Know that the blood money of the mistake resembling intent, for what concerns the whip and the stick, is one hundred camels, forty of them pregnant.
reported by Abu Dawud (4549), an-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552)
And the hadith of Abu Hurayra: two women of Hudhayl quarrelled; one threw a stone at the other, killing her with what was in her womb; the Prophet ruled for her fetus a slave or a slave girl, and the blood money of the woman upon her aqila (reported by al-Bukhari (6910) and Muslim (1681)). And when he was asked about the woman who struck her co-wife with the tent pole, killing her and her fetus, he ruled for the fetus a ghurra and the blood money upon the aqila (reported by Muslim (1682)).
Second point: the expiation falls upon the killer, through his resemblance to the mistake regarding the instrument, by (surah an-Nisa 92); no retaliation, for it is not a pure intentional according to whoever admits the quasi-intentional. Third point: the aggravated blood money falls upon the aqila: all who admit quasi-intentional killing agree that the blood money is due therein and falls upon the aqila, according to the word of the Prophet: "know that the blood money of the mistake resembling intent, for what concerns the whip and the stick, is one hundred camels, forty of them pregnant"; and the hadith of Abu Hurayra on the two women of Hudhayl; and the hadith on the woman who struck her co-wife with the tent pole. Amr ibn Shu'ayb, from his father, from his grandfather, reports that the Prophet said:
The blood money of the quasi-intentional is aggravated like the blood money of the intentional, and its author is not put to death.
reported by Abu Dawud (4565) and Ahmad (6718), a hadith judged good
Because it is a killing that does not entail retaliation: its price falls upon the aqila like killing by mistake; and because every blood money due through killing without settlement or partial pardon falls upon the aqila. Ibn Qudama said: the blood money, that is, that of the quasi-intentional, falls upon the aqila according to most of the people of knowledge, and Malik made it an intentional entailing retaliation. This price falls aggravated upon the aqila: the offender does not share in it according to the Shafi'is and the Hanbalis; among the Hanafis he shares in it with them like one of them, already detailed in the section of involuntary killing. The other rulings of the quasi-intentional are the same as those of involuntary killing already cited.
Likewise if he strikes him to repel his aggression, or with a blow equal to the one he received, whether he dies of another cause or not; and Allah knows best. Second point: the jurists required, for retaliation to fall, that the victim be of protected blood; there is no retaliation against the Muslim who kills the belligerent enemy: his blood is profane, for want of inviolability; if he comes repentant, he is not killed for what he killed before his repentance, without dispute; whether he belongs to those who accept the jizya, like the Jew and the Christian, or to those who do not accept it, like the idolater: the condition of the killer from whom one retaliates is to be bound by the rulings, and the belligerent enemy is not. Likewise the enemy under safe conduct killed by a Muslim: no retaliation according to the Hanafis in the apparent meaning of the narration, the Malikis, the Shafi'is and the Hanbalis, his inviolability being not established absolutely but temporarily, until the end of his stay in the territory of Islam: he belongs to the territory of war and entered the territory of Islam only for a need he will remove before returning: his inviolability carries the doubt of nonexistence, according to the word of the Prophet:
The Muslims are equal in their blood: the nearest of them pursues for their covenant, the farthest grants protection; they are one hand against those outside them: their strong renders to the weak, their swift to the sedentary; a believer is not killed for a disbeliever, nor the ally during his covenant.
reported by Abu Dawud (2751 and 4530), an-Nasa'i (4735 and 4746), Ibn Majah (2660) and Ahmad (6970)
Every blood money due through killing without settlement or partial pardon falls upon the aqila. The imam Ibn al-Mundhir said: the people of knowledge agreed that the blood money of mistake falls upon the aqila. The jurists of the cities agreed that the blood money of mistake is deferred over three years; the detail will come in the book of blood monies. The exclusion: the jurists agree that the killer by mistake or quasi-intentional killer inherits nothing of the blood money; they differed: does he inherit of the victim's property?
The Malikis answer that he inherits the property, but nothing of the blood money; this is reported from 'Ata ibn Abi Rabah, Ibn al-Musayyab, Mujahid and az-Zuhri; al-Awza'i, Sa'id ibn Abd al-Aziz, Ishaq ibn Rahawayh and Abu Thawr say it; Abu Thawr argues that he inherits the rest of the property through the Book: Allah named the heirs without mentioning the killer; in disagreement over killing by mistake, he has the inheritance of the Book: one never abandons the apparent meaning of the Book without a Book, a Sunna or a consensus excluding a part; otherwise, the Book stands on its apparent meaning. Depriving the killer of inheritance is a punishment: the one who erred incurs no punishment, just as he incurs no retaliation.
The majority of jurists, Hanafis, Shafi'is and Hanbalis, answer that the killer inherits nothing of the property, neither intentionally nor by mistake, according to the generality of the word of the Prophet: "the killer does not inherit," an authentic hadith reported by Ibn Majah (2645); this wording encompasses every killer. Amr ibn Shu'ayb reports that Abu Qatada, a man of Banu Mudlij, killed his son; 'Umar took from him one hundred camels, thirty hiqqa, thirty jadha'a and forty khalfa, then said: where is the brother of the victim? I heard the Messenger of Allah say: no inheritance for the killer; in a narration: were it not that I heard the Messenger of Allah say "the killer has nothing," I would have made you inherit; he called the victim's brother and handed him the camels; in Abu Dawud's version: the killer has nothing; if he has no heir, his heirs are the nearest people; and the killer does not inherit (a hadith judged good, reported by Abu Dawud (4564)). Abu Qilaba reported that a man killed his brother in 'Umar's time, who did not make him inherit; he said: O commander of the believers, I killed him by mistake; he answered: had you killed him intentionally, we would have finished you with him. Khilas reported that a man threw a stone that struck his mother and killed her; Ali ibn Abi Talib imposed the blood money on him, excluded him from inheritance and said: your share of her inheritance is that stone. Whoever is excluded from the inheritance of his victim's blood money is excluded from the rest of the property, like the intentional: every property whose inheritance would be lost were it intentional is lost even by mistake, like the blood money. As for exclusion from the bequest, the detail has already been given in intentional killing.
Abu Hanifa and Muhammad answer, concerning the corrupt bequest, that if the heirs authorize it, it is valid: annulment is the heirs' right, the benefit of invalidity reverting to them as that of the invalidity of inheritance: authorized, it is valid. Abu Yusuf says it is not valid, for it is a bequest of punitive nature, like deprivation of inheritance, which does not depend on their authorization. Fourth case: if he says "I have bequeathed to whoever will kill me": the Hanafis, the Shafi'is and the Hanbalis state explicitly that the bequest to the one who will kill him is not valid; al-Mawardi reports it as a single view, for two reasons: it is a bequest contracted upon disobedience; and it entices his killing.
The execution of the group for one: the jurists differed over the group that joins together and helps one another to kill a protected human being, whether the proof is established or the confession: are they all put to death if he is their equal, or is the blood money due? The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis of the madhhab, answer that if the group joins in the killing of a protected person and helps one another, the act of each of them, on its own, entailing retaliation, they are all put to death however numerous they be. Proofs: the word of Allah (surah al-Isra 33): no difference between a single killer and a group, the name of killer applying to them, and Allah having made the proof an authority for the wali of the victim against them; and (surah al-Baqarah 179): life consists in that, knowing retaliation obligatory, the killer abstains: the killer and the victim live; were the group not killed for one, the life in retaliation which Allah made life would be lifted; if the group knew that killing one it would not be killed, enemies would help one another to kill their enemies by joining together and reach their goal; moreover the life does not divide in destruction: one does not say "killer of a part of a life"; each accomplished from his side the act that entails the exit of the life, which does not divide: it is impossible that a part of the life depart by the act of one and a part by the act of the others; each is a killer of a life, as if a group pushed a stone: each is a pusher, the stone no more dividing than the life. His saying (surah al-Ma'idah 45): the definite article marks the genus: lives for lives; likewise (surah al-Baqarah 178): the free for the free: no difference between a group killing one and one killing a group. Ibn al-Musayyab reported that 'Umar ibn al-Khattab put five or seven men to death for a single one whom they had killed by treachery and said: had the people of Sana'a cooperated over him, I would have killed them all (reported by Malik in the Muwatta (1561); al-Bayhaqi reported in as-Sunan al-Kubra (15754) the story of Sana'a: the woman, her lover, another man and her servant killed the boy Asil; Ya'la wrote to 'Umar who answered to kill them all: by Allah, had the people of Sana'a joined in his killing, I would have killed them all; it is also reported from Abu Ishaq as-Sabi'i, from Sa'id ibn Wahb, the story of Shurayh, then that of 'Ali who ordered that they be put to death). Treachery is the ruse: setting a trap for him to seize him unawares and kill him. 'Ali put three men to death who had killed one; he wrote to the people of Nahrawan, who had killed his tax agent Khabbab ibn al-Aratt: hand over his killer; they said: we all killed him; he said: submit then, that you be burned; he marched against them and killed most of them. Al-Mughira ibn Shu'ba put seven men to death for one. Ibn 'Abbas said: if a group kills one, he is killed for him, were they a hundred; this is the view of four Companions, among them two imams who acted by their word. Killing is graver than the violation of honor by slander: the group having been punished for the slander of one, all the more reason to be put to death for the killing of one. The name of killing applies to each: its ruling falls upon him as upon the individual; what is due in the killing of one is not lifted in the killing of the group, like the blood money. The inviolability of the individual equals that of the group, according to (surah al-Ma'idah 32): whoever kills a life without a life or corruption is as if he had killed all men: retaliation is therefore one in both. Whether they killed him with an edged weapon or a blunt object, by throwing him from the top of a cliff or into the sea, or by wounding him with wounds combined or separate.
The execution of the group for one being established, the wali has the choice according to the Shafi'is and the Hanbalis between three situations: retaliate from them all; or pardon them all up to the blood money, divided by their number; or pardon some, retaliate from some, taking from those he pardoned their share of the blood money. One Hanbali view says: if he pardons, he takes from each of them a blood money. Among the Hanafis, one view says: if he pardons one of the killers or settles with him, he cannot retaliate from the others; the correct view is that the pardon of one of the killers does not annul the retaliation of the other, likewise settlement with one: retaliation was imposed upon them by the killing, then one was lifted by the pardon, and the blood of one is distinct from that of the other: the fall of one entails no doubt for the other; unlike the case where retaliation does not fall upon one of the killers: the two acts joined in one locus, one obliging, the other not, and the blood of the victim does not divide into parts. All, Hanafis, Malikis, Shafi'is and Hanbalis of the madhhab, agreed that equality of cause is not taken into account for the retaliation of the sharers: if one wounded him with one wound and the other with a hundred wounds, or one with a moderate wound and the other with a deep one, or one with a perforating wound and the other with a non-perforating one, and he died, both are equal in retaliation and blood money: taking equality into account would lead to the fall of retaliation from the sharers, two wounds almost never sufficing each other; even if equality were possible, the ruling would not be established, the condition requiring knowledge of existence, mere possibility not sufficing, ignorance of existence counting as knowledge of nonexistence in the fall of the ruling; the single wound can kill, not the hundred; the moderate wound can kill, not the deep one; the non-perforating, not the perforating; the wounds become one life lose their count: the ruling of the group equals that of the individual; were he to cut all his limbs and he die, a single blood money falls, as if he had cut one limb and he die: general agreement.
The majority of jurists, Hanafis, Shafi'is and Hanbalis, in the retaliation of the group for one, say that the group is not killed for one unless each committed an offence which, on its own, would kill and whose killing would be attributed to him with retaliation; if the offence of one does not kill and that of the other kills, there is no retaliation against the one whose offence does not kill. If one cuts off his hand and the other cleaves his nape, cuts his throat and gullet, or splits his belly drawing out his entrails, the first, the cutter, undergoes what falls upon the cutter; the second is a killer, for he cut off the persistence of the cutting: it is as if the wound had healed and the other then killed him. If one cuts the throat and the gullet or splits the belly drawing out the entrails, then the other cleaves the nape, the killer is the first: after his offence no stable life remains, the movement being that of a slaughtered animal: his words lose their ruling in confession, bequest, Islam and repentance. If a group joins in the killing, the offence of some being intentional and that of others by mistake, retaliation falls upon none: the intentional killing was not purified of mistake: no retaliation.
The Malikis say: the group that conspires to kill a person is put to death even without having struck him with an instrument that kills, like the hand or the whip, even if only one delivered the lethal blow, on condition that they be positioned to help if asked, like the causer put to death with the executor: the one who digs a well for a specific man to fall into, who stands at its edge, and another than the digger pushes the victim into it. They are all put to death on condition that all intend his killing in this sense, according to the word of 'Umar; that is if they struck him intentionally by aggression and he died on the spot, or he was lifted unconscious and the state persisted until death, or of multiple indistinct wounds, or of distinct and equal wounds, or distinct ones among which the one that caused death is unknown; if his death is delayed, without indistinct wounds or unconsciousness, one alone is killed by qasama, for the qasama kills only one. If the offence of each is distinct, one retaliates from the one whose blow caused death if it is known, and from the rest according to his act: from the one who wounded or cut one retaliates, the one who did not wound is corrected; if the blows are not distinct, by equality or ignorance of the strongest, all are killed if he dies on the spot in reality or in law; otherwise one alone by qasama. If each intended to strike him without collusion, none intending his killing, then they killed him together and he died of their blows, they are not put to death: the aim at the blow does not equal the aim at killing for the group; it is said: the aim at the blow equals the aim at killing: they are put to death for him. That is if all the associates are legally responsible; if a responsible person joins with a child in the killing of a protected person, retaliation falls upon the responsible one, and half the blood money upon the aqila of the child if they conspired in his killing.
The Hanbalis, according to a transmission, answer that the group is not put to death for one: the blood money is due without retaliation; this is the view of Ibn az-Zubayr, az-Zuhri, Ibn Sirin, Habib ibn Abi Thabit, Abdullah, Rabi'a, Dawud and Ibn al-Mundhir; Ibn Abi Musa reports it from Ibn 'Abbas. It is reported from Mu'adh ibn Jabal, Ibn az-Zubayr, Ibn Sirin and az-Zuhri that one of them is put to death and the shares of the blood money are taken from the rest, each being his equal: no substitutes are taken for a single substitute, just as several blood monies are not owed for a single victim, by (surah al-Baqarah 178) and (surah al-Ma'idah 45): more than one life is not taken for a life; the disparity of attributes is excluded, the free not being taken for the slave: the disparity of number is more so. Ibn al-Mundhir said: no proof with the one who requires the execution of a group for one. The imam Abu 'Umar Ibn Abd al-Barr said: the jurists differed over the execution of the group for one; the jurists of the cities, among them ath-Thawri, al-Awza'i, al-Layth, Malik, Abu Hanifa, ash-Shafi'i and their companions, Ahmad, Ishaq and Abu Thawr, say that the group is put to death for a single one they killed, numerous or few, if they joined in the killing; this is reported from 'Umar, 'Ali, al-Mughira ibn Shu'ba and Ibn 'Abbas; Ibn 'Abbas said: if a hundred men killed one, they would be killed for him; Ibrahim, ash-Sha'bi, Qatada, Abu Salama, al-Hasan and Sulayman ibn Musa say it. Dawud said that the group is not put to death for one, and that no more than one is put to death for a single life: it is the view of Ibn az-Zubayr. Abd ar-Razzaq reports from Ibn Jurayj, from Amr ibn Dinar, that Ibn az-Zubayr and Abd al-Malik used to put to death only one of them; I know of no one who put them all to death, except what is said of 'Umar; this is also reported from Mu'adh ibn Jabal. Abu Bakr mentions that Duhl ibn Ka'b reports that Mu'adh said to 'Umar: you cannot put two lives to death for one; Ibn Sirin, Ibn Shihab az-Zuhri and Habib ibn Abi Thabit say it. Ma'mar reports from az-Zuhri: two men are not put to death for a man, nor two hands cut for a hand. Abu 'Umar says that the statements of az-Zuhri and Dawud agree: two hands are not cut for a hand, nor two men for a man; likewise agree Malik, ash-Shafi'i, Ahmad, Ishaq and Abu Thawr that the hands and more are cut for the single hand if several join in cutting it, as the group is put to death for the single one they killed together. Abu Hanifa and his companions contradicted themselves in saying that two hands are not cut for a hand, nor the other limbs, the view of ath-Thawri, while saying that the group is put to death for one; their proof is that the life does not divide, while the hand and the other limbs divide: each cut a part of the limb, and it is impossible that a whole limb be cut from it without any having cut it whole.
The imam Ibn Rushd said: as for the execution of the group for one, the majority of the jurists of the cities say that it takes place, among them Malik, Abu Hanifa, ash-Shafi'i, ath-Thawri, Ahmad and Abu Thawr, numerous or few; it is the view of 'Umar, to the point that it is reported he said: had the people of Sana'a cooperated over him, I would have killed them all. Dawud and the literalists say that the group is not put to death for one: it is the view of Ibn az-Zubayr and az-Zuhri; it is also reported from Jabir. According to this trend, hands are not cut for a hand when two or more join in cutting it. Malik and ash-Shafi'i say that the hands are cut for the hand. The Hanafis distinguished the life and the limbs: lives are put to death for lives, and only one limb is cut for a limb; this will come in the section of retaliation for limbs. The basis of the one who puts the group to death for one is the interest: killing was prescribed only to repel killing, as the Book indicates in (surah al-Baqarah 179): life in retaliation, O people of understanding.
When the blood money is taken in intentional killing, it comes from the offender's property by consensus: Ibn 'Abbas said: "the aqila bears neither intent, nor the slave, nor settlement, nor acknowledgment"; Ibn al-Mundhir said: they agreed that the aqila does not bear the blood money of the intentional and bears that of the mistake; the detail will come in the book of blood monies. The expiation in intentional killing: the jurists differed over the intentional killer: does the expiation, the freeing of a slave, otherwise the fast of two consecutive months, fall upon him? The majority of jurists, Hanafis, Malikis, Shafi'is in one view and Hanbalis of the madhhab, answer that there is no expiation in intentional killing: Allah mentioned the intentional and its ruling in (surah an-Nisa 93) without mentioning the expiation, and mentioned the mistake and its ruling while spelling out the expiation in the mistake: had it been obligatory there as in the mistake, He would have spelled it out. Allah said in (surah an-Nisa 92) that He imposes the expiation in killing by mistake, and mentioned intentional killing in (surah al-Baqarah 178) and in "a life for a life" specifying it: each victim being mentioned by name with its ruling, it is not permitted to us to go beyond what Allah spelled out: the analogy of the texts among themselves is not permitted; the expiation is due only where Allah imposed it, the expiations being acts of worship in which analogy is forbidden; no one may impose an obligation upon the servants of Allah without Book, Sunna or consensus; whoever imposes the expiation upon the intentional killer has no proof. Intentional killing is a meaning entailing execution: the expiation therefore does not fall upon its author, like the adultery of the married man; and were killing to carry an expiation, it would not carry retaliation: killing by mistake, once the expiation came down, does not entail retaliation.
The Shafi'is of the madhhab and Ahmad according to a transmission answer that the expiation falls in intentional killing, the quasi-intentional, the mistake and killing by cause as in the direct act: it falls upon the one who digs a well by aggression, who sets a net in which someone perishes, upon the coercer and the false witness. The proof is (surah an-Nisa 92), which spells out the expiation in killing by mistake to indicate its obligation in pure intentional killing and the mistake of the intentional, the mistake being lighter: no retaliation and no sin, and the blood money is lightened there; if the expiation falls there, all the more in pure intentional killing and the mistake of the intentional. Wathila ibn al-Asqa' reports: we were with the Prophet on the expedition of Tabuk when a group of Banu Sulaym came saying: O Messenger of Allah, one of ours has incurred (the fire) by killing; the Messenger of Allah answered: free a slave for him: Allah frees for each limb a limb of his from the fire (reported by Ibn Hibban in his Sahih (4307) and an-Nasa'i in al-Kubra (4892), a hadith weakened by al-Albani): the fire is incurred only in intentional killing. If the expiation falls in killing by mistake, all the more in the intentional: a greater sin, a greater crime, a greater need for expiation.
Fourth case: if he threw him from the top of a height: the jurists differed over the one who throws another from the top of a height or the roof of a mountain and he dies: retaliation or quasi-intentional with blood money? It is the previous dispute: the majority, Malikis, Shafi'is, Hanbalis and the two companions, answer that retaliation applies; Abu Hanifa sees in it a quasi-intentional with the blood money. Fifth case: if he drowned him: the jurists differed over the one who throws another into the water until he drowns and dies: retaliation or blood money? The majority answers that retaliation applies, with detail. The two companions say: if he throws him into the water and he drowns, retaliation falls if the water does not usually allow escape: it resembles killing by fire; the water must be vast to the point of preventing rescue for it to be an intentional entailing retaliation; if it is shallow, without lethal danger, or vast but allowing rescue by swimming, provided he is not bound and can swim, it is quasi-intentional.
The Malikis say: the one who throws someone into a river while he cannot swim, at once, with hostility and intent to kill, is put to death for him, without qasama, contrary to Ibn al-Hajib; whether or not he knew the thrown one could swim; likewise the one who can swim when rescue is usually impossible, through intense cold or long distance, and he drowns: he is put to death for him, the throwing being then only by hostility. If the victim can swim, rescue being usually likely, and the throwing is not hostile but playful: he is not put to death, and a blood money of the fifth, not aggravated, falls upon him.
The Shafi'is say: if he throws him into the water and he drowns in it, two kinds: throwing him into the deep of a sea with a distant shore: he is an intentional killer with retaliation, whether he can swim or not, swimming not being able to reach the distant shore; or throwing him into a river or a sea with a near shore: two kinds: having bound him or weighted him down so that a drowning man cannot save himself: retaliation falls likewise, as for the one thrown into the deep; having thrown him free, without rope or weight: two kinds: if he cannot swim, retaliation falls likewise, for he cannot save himself; if he can swim and did not swim, no retaliation: he could save his life, he is the destroyer of it; does the blood money fall upon him? Two views: the correct view is that it does not. If he throws him into the water and a fish swallows him: two kinds: if the throwing into that water does not entail retaliation according to our detail, no retaliation if he is swallowed, the destruction not being from him; the blood money falls, his cause having led to destruction; if the throwing entails retaliation and the fish swallowed him before destruction, two views on retaliation: the view apparent in the text of ash-Shafi'i is that it falls: without the swallowing it would be due and is not lifted by it; the other view, reported by ar-Rabi', is that there is no retaliation, direct destruction having been accomplished by other than his act, and the blood money falls upon him. Al-Mawardi said: some of our companions combined the two views according to two situations: the view requiring retaliation applies to the arm of the Nile where crocodiles predominate and from which none escapes; the view rejecting it applies to the other seas and rivers usually spared.
The Hanbalis say: if he throws him into water that drowns him without allowing him to escape, through the abundance of water, or through inability from illness or childhood, or because he is bound, or because he is prevented from leaving, or threw him into an airless well knowing it and he dies of it: all of this is intentional, for it usually kills. If he throws him into shallow water from which he can get out and he remains there by choice until dying, neither retaliation nor blood money: this act did not kill him, death coming from his lingering, an act of his own: no other guarantees. If he throws him into a deep place from which he cannot escape and a fish swallows him, two views: retaliation falls, for he threw him into a place of destruction in which he perished: he resembles the one who drowns in it; or no retaliation, for he did not die of his doing, as if he had been killed by another human being. If he throws him into shallow water and a beast devours him, or a fish or a crocodile swallows him, no retaliation, for what befell him does not usually kill: the guarantee falls, for he died of his act. Abu Hanifa answers that the one who throws another into water who drowns and dies incurs no retaliation: the blood money falls upon the aqila; it is said: if he swims an hour then drowns, the blood money does not fall. The Fatawa al-Hindiyya report that the shaykh of Islam, in the commentary of the additions of al-Asl, said: the one who drowns someone in shallow water that does not usually kill and from which rescue by swimming is usually hoped: it is a mistake of the intentional according to all of them; if the water is vast but allows rescue by swimming, provided he is not bound nor weighted and can swim, and he dies: it is likewise a mistake of the intentional; if it does not allow rescue, it is a mistake of the intentional with no retaliation according to Abu Hanifa, and pure intentional with retaliation according to his two companions, as in al-Muhit. If a man seizes a man, ties his hands and feet with a rope, throws him into the sea, he sinks and dies, then floats dead, he is not put to death for him: the aggravated blood money falls upon him; likewise if he submerges him in the sea or the Euphrates holding him until death. If a man throws a man from the boat into the sea or the Tigris while he cannot swim and he sinks, he is not put to death for him according to Abu Hanifa, and the blood money falls; if he swam an hour then drowned, Abu Hanifa says: neither retaliation nor blood money; likewise a good swimmer thrown so as to save himself, who swims until weakening and drowning: neither retaliation nor blood money; and if he is thrown into water such that it is unknown whether he dies of it or leaves it without trace, nothing falls upon him. If he throws him into cold water on a winter day and he is numb and stiffened an hour after the throwing, the blood money falls; likewise if he stripped him and placed him on a roof on a day of intense cold until he died of cold; likewise if he bound him and placed him in the snow, according to az-Zahiriyya; if he bound him and placed him in the sun without his being able to escape until he died of the heat of the sun, the blood money falls, according to Khizanat al-Muftin.