Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Theft and the cutting of the hand
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Updated on 27 September 2026 at 3:52 AM
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The scholars agree upon the prohibition of theft and upon the obligation to cut the thief's hand when its conditions are met, by the book:
By the sunna:The thief, male and female: cut off their hands in retribution for what they earned, as an exemplary punishment from Allah; Allah is mighty and wise.
Surah al-Ma'ida, 38
Ibn Umar reports that the Prophet cut a thief's hand for a shield worth three dirhams (Muslim 1686), and Aisha reports:Allah cursed the thief who steals an egg and whose hand is cut, and who steals a rope and whose hand is cut.
narrated by al-Bukhari (6401) and Muslim (1687)
A great number of scholars transmit the consensus over the obligation to cut when the conditions of the punishment are met. Ibn Hazm (al-Muhalla 11/319): cutting is obligatory in theft by the text of the Quran, the text of the sunna and the community's consensus. Ibn Hubayra (al-Ifsah 2/270-271): they agreed upon cutting in general when the theft combines its required attributes: the stolen property whose kind merits it, the threshold, the thief's proper attributes, the theft's proper attributes and the protected place. an-Nawawi (Sharh Sahih Muslim 11/181) and Ibn Qudama (al-Mughni 9/93): the Muslims agreed in general while differing over branches. al-Mawsili (al-Ikhtiyar 5/123-124): the consensus bears upon the obligation, the divergence upon the amount of the threshold. Cutting existed in the age of ignorance, and al-Walid ibn al-Mughira was the first to judge it there; Allah ordered it in Islam, and the application followed from the first case.The thief's hand is not cut except for the quarter of a dinar and beyond.
narrated by Muslim (1684)
The Shafi'is: slander is the accusation of fornication in a degrading context, for the man as for the woman (Mughni al-Muhtaj 5/454, Tuhfat al-Muhtaj 10/732). The Hanbalis: it is the accusation of fornication or of sodomy, or testimony to one of the two, when the evidence is not completed (Kashshaf al-Qina' 6/132-133, Sharh Muntaha al-Iradat 6/198). The wisdom of the punishment for slander of fornication and not for mutual accusation of unbelief: the one accused of unbelief can deny it through the two testimonies of faith, unlike the fornicator, who cannot deny fornication (Mughni al-Muhtaj 5/454).
Slander is forbidden by the book, the sunna and the consensus; it belongs to the major sins and to the seven destructive ones.
Those who cast accusations against chaste women without producing four witnesses: flog them with eighty lashes and never again accept their testimony; they are the defiant ones.
Surah an-Nur, 4
The consensus is reported by al-Amrani (al-Bayan 12/395): the community agrees upon forbidding the accusation of the chaste woman and the chaste man; by Ibn Qudama (al-Mughni 9/76): forbidden by the community's consensus; by az-Zarkashi (Sharh az-Zarkashi 3/113): forbidden by consensus for the harm it brings, whose absence the law commands; by Ibn al-Humam (5/316): linguistically the throwing of anything, and in the law the accusation of fornication, a major sin by consensus; and by al-Ayni (al-Binaya 6/362): a major sin by the imams' consensus.Avoid the seven destructive sins. They said: and which are they, messenger of Allah? He said: associating with Allah, sorcery, killing the life Allah made sacred except in right, usury, devouring the orphan's property, fleeing on the day of marching, and accusing chaste, heedless, believing women.
narrated by al-Bukhari (2767) and Muslim (89)
Certain apostates who entrenched themselves in a place with might were treated as belligerents; the greater number of the jurists class among the rebels those who kept Islam, and do not declare them unbelievers: Ibn al-Mundhir knows none agreeing with the people of hadith to make apostates of them. The fourth category is that of the people of truth who leave the imam's obedience and seek his removal for a sound interpretation, with a might requiring an army: these are the baghis whose status is treated here; the people must help their imam against them, else the seditious would subdue him and corruption would spread (al-Mughni 9/4-5, Darar al-Hukam 3/437, Rawdat at-Talibin 6/474-475).
The scholars agree upon the legitimacy of fighting the rebels. The origin:
al-Qurtubi: this verse proves the obligation to fight the known transgressing group, against the imam or against a Muslim, and falsifies the word of whoever forbids fighting believers citing "the fighting of a believer is unbelief" (narrated by Ahmad (1519), chain judged sound): if the fighting of a rebellious believer were unbelief, Allah would have commanded unbelief; Abu Bakr fought those who kept Islam while withholding the zakat, ordering not to pursue the fugitive nor finish off the wounded, without seizing their property, unlike what is owed to the unbelievers. at-Tabari: if fleeing were required in every discord, no punishment would be established and no falsehood annulled, and the hypocrites would find a path to seize the Muslims' properties, women and lives by forming factions, while the Muslims restrain their hands; this contradicts "restrain the hands of your fools" (narrated by al-Baghawi in Sharh as-Sunnah (4152) and al-Bayhaqi (7170), weakened by al-Albani (2820)). Ibn Qudama (al-Mughni 9/3): the companions agreed upon fighting the rebels: Abu Bakr against those who withheld the zakat, Ali against the people of the camel, of Siffin and of Nahrawan. al-Mawardi (al-Hawi al-Kabir 9/3-6): the consensus formed through the deed of two imams: Abu Bakr, against two groups, the apostates of Musaylima, Tulayha and al-Aswad, without contest, and those who kept Islam while withholding the zakat on a murky interpretation, whom the majority disapproved initiating against before returning to his view; and Ali, witness of his own fighting against those who revolted against him: the camel at Basra with Aisha, Syria at Siffin with Mu'awiya, then the Khawarij of Nahrawan, following Abu Bakr's course. Ibn Abd al-Barr (at-Tamhid 23/238): the scholars agree that whoever splits unity, raises arms against the Muslims, threatens the roads and corrupts through killing and plunder deserves to be killed; this is great corruption upon the earth drawing blood by consensus, unless repentance comes before being overpowered: flight among them equals repentance, and the one unable to fight is killed only for what was already binding upon him.If two parties of the believers fight, reconcile them; if one of them transgresses against the other, fight the one that transgresses until it returns to the command of Allah.
Surah al-Hujurat, 9
The Shafi'is: the diya is the money due for an injury to the body of a free person, in life or below it, a substitute for retribution (an-Najm al-Wahhaj 8/455, Mughni al-Muhtaj 5/291, Tuhfat al-Muhtaj 10/433). The Hanbalis: the money paid to the victim or to his heir because of an injury (Kashshaf al-Qina' 6/3, Sharh Muntaha al-Iradat 6/75, Matalib Uli an-Nuha 6/75). Its obligation in killing answers a deep wisdom: protecting the structure of the human being from demolition and his blood from waste (al-Ikhtiyar 5/44).
The diya is obligatory by the book:
By the sunna, the letter the Prophet wrote to Amr ibn Hazm for the people of Yemen, containing the inheritances, the sunnas and the diyas:Whoever kills a believer by mistake: the freeing of a believing slave and a diya delivered to his family.
Surah an-Nisa, 92
Ibn Abd al-Barr (at-Tamhid 17/338-339): no divergence over Malik's transmission of this hadith with this chain; it was also reported in direct form through a sound way, and it is a letter famous among the people of the campaigns whose fame dispenses with a chain, so much does the people's reception of it approach the mutawatir. The letter's second version, transmitted by az-Zuhri (narrated by an-Nasa'i (4853) and al-Hakim (1447), weak hadith), is addressed to the three sons of Abd Kulal and specifies: whoever kills a believer deliberately upon evidence falls under retribution unless the heirs consent; the diya of one hundred camels in the life; the diya for the pierced nose, the tongue, the two lips, the two testicles, the member, the spine, the two eyes; half for one foot; a third for the ma'muma and the ja'ifa; fifteen camels for the munqalli'a; ten for each finger; five for the tooth and the muwadhiha; the man is killed for the woman; and upon the people of gold: one thousand dinars.In the life: one hundred camels; for the nose, if the organ is pierced: one hundred camels; the ma'muma: a third of the diya; the ja'ifa: the same; the eye: fifty; the hand: fifty; the foot: fifty; each finger of there: ten camels; the tooth: five; the muwadhiha: five.
narrated by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
When peace takes place, they are safe in their persons, their properties and their children, and the one they secure is secured to them. If the treaty offers no benefit to the Muslims and the Muslims have strength, concluding peace with the people of war is permitted by no consensus:
for their truce without need abandons the obligatory jihad or delays it without benefit: peace seeks the renunciation of fighting, yet fighting the polytheists is obligatory, and leaving the obligatory without excuse is not permitted; that renunciation appears in it in form, through leaving the fight, and in meaning, for without benefit evil is not repelled and the meaning of jihad is not realized either (as-Siyar al-Kabir 1/165, al-Mabsut 10/86, Bada'i' as-Sana'i' 7/108, al-Ikhtiyar 4/146, al-Hidaya 2/139, Sharh Fath al-Qadir 5/458, al-'Inaya 7/460, Tabyin al-Haqa'iq 3/445, al-Bahr ar-Ra'iq 5/85, Ahkam al-Qur'an of Ibn al-Arabi 2/427, Bidayat al-Mujtahid 1/283-284, adh-Dhakhira 3/449, Rawdat at-Talibin 7/51, Mughni al-Muhtaj 6/94, an-Najm al-Wahhaj 9/437, al-Mughni 9/238, al-Kafi 4/338, al-Mubdi' 3/398).Do not weaken and do not call for peace while you are the highest.
Surah Muhammad, 35
The pillar of the muwada'a is the wording: the word of peace, of mutual safety, of reconciliation, of treaty, or any speech carrying that meaning (Bada'i' as-Sana'i' 7/108).
The legitimacy of ta'zir and discipline is established by the book:
Allah allowed the husband to strike his wife for disobedience, which is an act of disobedience: proof that for every disobedience without legal punishment or expiation, striking is allowed (al-Bayan 12/532). By the sunna: the hadith of Amr ibn Shu'ayb on the mountain lizard and the hanging fruits:Those of your wives from whom you fear disobedience: admonish them, leave them in the beds, strike them.
Surah an-Nisa, 34
It and its like, plus the exemplary punishment; and for nothing of the cattle is there cutting, except what the pens protect and which reaches the price of the shield: the hand is cut for it; what does not reach that price: a fine of equal value and lashes of exemplarity. For the hanging fruits: only what the trellis protects; what is carried away without reaching the price of the shield: a fine of equal value and the punishment.
narrated by Abu Dawud (1710), at-Tirmidhi (1289), an-Nasa'i (4959), Ibn Majah (2596) and Ahmad (6683), good hadith
version: "no punishment beyond ten blows except in a punishment of Allah" (al-Bukhari 6457): proof that ten lashes are allowed outside the legal punishments. The scholars agree upon the legitimacy of ta'zir. Ibn Taymiyya (Majmu' al-Fatawa 30/39): the scholars agree it is established for every disobedience without punishment or expiation; disobediences are two: leaving an obligatory act and performing a forbidden one, and whoever leaves the obligatory while able is a sinner deserving punishment. Ibn al-Qayyim (at-Turuq al-Hukmiyya 154) reports the same agreement. ad-Dimyati (an-Najm al-Wahhaj 9/236): one disciplines for every disobedience without punishment or expiation by consensus, a right of Allah or of man, preliminary to a punishment (touching without penetration, theft under the threshold, insult without slander) or not (false testimony, unjust striking, forgery and the rest of the disobediences).No one is flogged beyond ten lashes, except in a legal punishment among the punishments of Allah.
narrated by al-Bukhari (6456)
The Malikis: Ibn Arafa defines it as the Muslim's fighting of the unbeliever without a covenant, to raise Allah's word, to meet him or to enter his land (Sharh Hudud Ibn Arafa 1/287, Mawahib al-Jalil 3/347); Ibn Harun: the fighting of the enemy to raise the word of Islam. The Shafi'is: the fighting of the unbelievers to bring help to Islam. The Hanbalis: the fighting of the unbelievers alone, unlike the Muslim rebels and road cutters, with a general over general fighting (Kashshaf al-Qina' 3/32, Sharh Muntaha al-Iradat 1/617, Matalib Uli an-Nuha 2/491).
It is established by the book, through the many verses: Surah al-Hajj 39, Surah al-Baqara 216, Surah at-Tawba 5, 29 and 41. By the sunna:
Fight the polytheists with your properties, your persons and your tongues.
narrated by Abu Dawud (2504), an-Nasa'i (3096), Ahmad (12268) and Ibn Hibban (4708), authentic hadith
The consensus is reported by Ibn Hazm (Maratib al-Ijma' 119), the judge Abd al-Wahhab (al-Ma'una 1/601), Ibn Rushd (Bidayat al-Mujtahid 1/278) and Ibn Taymiyya (al-Fatawa al-Kubra 4/608): repelling the polytheists and the people of unbelief from the shelter of Islam, its center, its fortresses and its sanctuaries when they attack it is obligatory upon free, adult, capable persons.Whoever dies without having gone on an expedition nor resolved to go dies upon a branch of hypocrisy.
narrated by Muslim (5040)
The origin: disciplining anyone other than the wife, the children and the pupil belongs to the imam according to the majority of the jurists; the husband may discipline his wife, the father his son, the master lawfully correct his pupil: all of this gathers the jurists' agreement. Whether the holder of the right may execute it himself remains: the majority of the scholars, the Hanafis under their sound view, the Malikis, the Shafi'is and the Hanbalis, hold that the imam or his deputy executes, for the right holder may exceed by error, unlike retribution, which is measured (ash-Sharh al-Kabir with Dardir's commentary 6/370, Rawdat at-Talibin 6/620-621, al-Bajayrami 4/309, Kashshaf al-Qina' 6/155, Sharh Muntaha al-Iradat 6/225-226). The Hanafis specify: what is Allah's right, man holds it even without seeking reward, for it belongs to changing the blameworthy by the hand, and the law gave that to everyone; none executes it besides the judge, except during the act of disobedience; afterwards, only the judge. What is a servant's right and requires a claim is executed only by the judge or his delegate. It is said: the right holder executes it like retribution; and it is said: the imam, for the right holder may exceed (al-Bahr ar-Ra'iq 5/45, Darar al-Hukam 5/350, Hashiyat Ibn Abidin 4/65-66).
The majority of the jurists, Hanafis, Malikis and Hanbalis, hold ta'zir obligatory where it is established. The Hanafis: it is obligatory when the imam sees it; its cause is the commission of an injury without a measured punishment, against the right of Allah (leaving prayer and fasting) or the right of the servant, as harming a Muslim unjustly through an act or a word admitting both truth and falsehood: "o filthy one, o defiant one, o thief, o debauchee, o unbeliever, o eater of usury, o drinker of wine"; but saying "o dog, o pig, o donkey, o bull" does not bind ta'zir: the first kind attaches disgrace to the accused, since people divide between believing and denying, and discipline repels disgrace from him; the second attaches disgrace to the insulter himself, who accuses of something inconceivable: the disgrace of lying falls back upon him (Bada'i' as-Sana'i' 7/63, Darar al-Hukam 2/74). The Malikis: the imam must discipline every sinner; disobedience is either purely Allah's right, every disobedience none can waive, such as eating in Ramadan, delaying prayer, throwing filth upon the public way, unless one comes repentant; or the right of a human being, every disobedience whose right is waivable, such as insult, striking and harm, even though Allah's right stands within it: every human right carries Allah's right, for refraining from harming others stands among His rights over every responsible one: ta'zir is therefore obligatory, and it falls only through the right holder's pardon (at-Taj wa-l-Iklil 5/370-371, Sharh Mukhtasar Khalil 8/110, ash-Sharh al-Kabir 6/370, Tahrir al-Mukhtasar 5/403). The Hanbalis: obligatory in every disobedience without punishment or expiation when the imam sees it: the touch without punishment, theft without cutting, injury without retribution such as the slap and the needle prick, the woman with the woman, accusation other than fornication such as sodomy, looting, seizure, embezzlement and the insult of a companion; whoever leaves the obligations is disciplined by obligation, for disobedience requires a deterrent, and absent punishment or expiation, ta'zir must be established. The non-responsible is punished: the discerning child is disciplined for indecency with a light ta'zir. No claim is required to execute it: it is Allah's right, established for discipline; the imam executes it when he sees it and may leave it if the culprit comes repentant, confessing, showing regret and withdrawal:
(al-Mughni 9/149, al-Insaf 10/239, Kashshaf al-Qina' 6/154-155, Sharh Muntaha al-Iradat 6/225, Munar as-Sabil 3/328, with Surah Hud 114 cited.)A man came saying: I met a woman and touched of her what lies below penetration. He asked: have you prayed with us? He said: yes. And he recited to him: the good deeds remove the evil deeds.
narrated by al-Bukhari (526) and Muslim (2763)
The Shafi'is: ta'zir is not obligatory, it is permitted; the imam may leave it when it belongs to Allah's right without a human right attached; if one is attached, it becomes obligatory; it is said: waivable in both cases. Proof: the Prophet pardoned many deserving ta'zir and never pardoned an obligatory punishment, he who answered the one asking to pardon a punishment: "Allah will not pardon me if I pardon"; he pardoned the man caught after the prohibition of stolen booty; the man who criticized the division of alms: "be equitable, messenger of Allah": his face changed and he said: "may your mother lose you: if I am not equitable, who will be?" without disciplining him, and Surah at-Tawba 58 descended about it; and the hadith: "pass over the slips of people of standing, except in the legal punishments" (narrated by Abu Dawud (4375) and Ahmad (25513), authentic hadith). The dispute of Zubayr and an Ansari over a canal: the Prophet said: "water, o Zubayr, then send the water back to your neighbor"; the Ansari said: "because he is your cousin, messenger of Allah?": the Prophet's face changed and he said: "water, o Zubayr, then hold the water until it reaches the root of the hedge" (al-Bukhari 2231, Muslim 2357). The Ansari suspected the Prophet of judging for Zubayr through kinship: that deserves death before ta'zir, and the Prophet left his discipline; it is rather said that the order given to Zubayr to water up to the hedge was itself the Ansari's ta'zir, at a time when punishments were paid in property.
al-Amrani (al-Bayan 11/297): no divergence in the community over forbidding killing without right. an-Nawawi (Rawdat at-Talibin 6/129) cites al-Bagawi: killing is the greatest of major sins after unbelief, as ash-Shafi'i stated. Ibn Qudama (al-Mughni 8/207): the Muslims agreed upon its prohibition.
Whoever kills a believer deliberately without right is lost and deserves the fire, except through repentance; repentance is accepted from him according to the majority of the scholars. If he dies before repenting, entering the fire is not binding: he stands under Allah's will like the other major sinners, and if he enters it, he does not abide eternally. Ibn Abbas is reported to have held that the murderer's repentance is not accepted, invoking Surah an-Nisa 93, among the last verses sent down and not abrogated, and in informative style, the information of Allah being only true. The proofs of acceptance:
Those who invoke no other deity with Allah, do not kill the life Allah made sacred except in right, and do not fornicate... except whoever repents, believes and does a righteous deed: those, Allah replaces their evil deeds with good ones.
Surah al-Furqan, 68-70
and Surah az-Zumar 53: Allah forgives the sins, all of them.Allah does not forgive that anything be associated with Him, and He forgives everything below that to whom He wills.
Surah an-Nisa, 48
an-Nawawi (Sharh Sahih Muslim 17/82): this is the school of the scholars and their consensus over the validity of the deliberate murderer's repentance; none contradicted except Ibn Abbas; what is reported from some early Muslims to the contrary aims at recalling the causes that turn away from repentance, not at invalidating repentance. The pledge received from Ubadah (al-Bukhari 18) confirms: whoever commits one of these things and is punished in this world, it is expiation for him; and whoever Allah covers, it is for Allah: if He wills He pardons, if He wills He punishes; an-Nawawi (Sharh Sahih Muslim 2/41-42) draws from it that the fornicator, the thief, the murderer and the other major sinners apart from association are not unbelievers: if they repent their punishment falls, if they die persisting they stand at His will.Among those before you were people: a man killed ninety-nine persons, asked for the most learned of the dwellers of the earth, and was directed to a monk; he said to him: I killed ninety-nine, do I have a repentance? The monk said: no. He killed him and reached one hundred. Then he asked for the most learned: he was directed to a scholar, who said: yes, and who stands between him and repentance? Go to such a land where people worship Allah, worship with them, and do not return to your land, for it is a land of evil. He set out, and death met him midway: the angels of mercy and the angels of punishment disputed; the first said: he came repentant; the second: he never did good. An angel in human form said to them: measure the two lands, he belongs to the nearer: he was found nearer the one he wanted, and the angels of mercy seized him.
narrated by al-Bukhari (3283) and Muslim (2766)
Fornication fixed by confession does not fall through the possibility of retraction: if the culprit is not killed and presents himself to the imam holding his confession, the latter stones him; if he retracts, he leaves him (al-Mughni 9/39-40). The scholars differ: is the married adulterer flogged before stoning?
The Hanbalis in one version, reported also from Ali, Ibn Mas'ud and Ubayy ibn Ka'b, held by al-Hasan al-Basri, by Ishaq, Dawud and Ibn al-Mundhir, say: the whip, then stoning; Surah an-Nur 2 is general over fornicators without specifying the married one, then the sunna came with stoning for the married and exile for the unmarried: the two must therefore combine; Ali said: "I flogged her by the book of Allah and stoned her by the sunna of the messenger of Allah"; and the explicit hadith of Ubadah (Muslim 1690) is certain and is left only for its like; the other hadiths mention stoning without the whip: they do not oppose the explicit; exile too is required by its mention in that hadith while absent from the verse; he is a fornicator: he is therefore flogged like the unmarried one; the unmarried one has two punishments (whip and exile): the married one has the same (whip and stoning), stoning standing in place of exile. One begins with the whip, then stones; continuity is not required since destruction is intended: Ali flogged Sharahba on Thursday and stoned her on Friday, saying: "I flogged her by the book of Allah and stoned her by the sunna of the messenger of Allah" (al-Istidhkar 7/478, at-Tamhid 9/79, Sharh as-Sunnah of al-Bagawi 10/276-277, Rawdat at-Talibin 6/513, al-Mughni 9/40-41).
The majority of the scholars, the four schools in their madhabs, say: he is stoned without the whip. al-Bagawi (Tafsir 1/405): the generality of the scholars, for the Prophet stoned Ma'iz and al-Ghamidiyya without flogging them. al-Amrani (al-Bayan 12/349) and al-Shirbini (Mughni al-Muhtaj 5/439) say the same. Proofs: the Prophet stoned Ma'iz, the two Jews, the woman of Juhayna and the woman of Amir without flogging any of them, and said to Unays: "go in the morning to the wife of this man: if she confesses, stone her" (a hadith agreed upon) without ordering the whip; had the combination been a punishment, he would not have left it, and it was the later of the two commands: the verse therefore targets the unmarried; Abu Bakr and Umar stoned without flogging. All this proves that the hadith of Ubadah was abrogated: it dated from the descent of the verse of fornication, when the punishment was confinement until death or a way of Allah; the verse of the whip came after, with "take from me"; then he stoned people without the whip: a later ruling abrogated the earlier one, and the later is always taken. By meaning: the lesser punishment folds into the greater, the punishment being established for deterrence, and the whip has no effect here; a punishment holding death combines no whip, like apostasy; when punishments combine and death stands within them, the rest falls, the punishment taking priority. No benefit lies in the whip with stoning: the punishment deters, deterrence through the whip is impossible with his destruction, and the deterrence of others is realized through stoning, the harshest of punishments; without utility nothing is established: that is why repeated acts deserving a punishment carry it only once.
Their reading of the hadith of Ubadah: "the married woman with the married man: one hundred lashes or stoning", the waw carrying the meaning of "or", as in Surah Fatir 1: wings of two, three or four; the meaning would be: stoning if both are married, the whip otherwise; a straight meaning, for not every married one is stoned: the Prophet would have indicated the two rulings of the married one; this hadith would then be the first of Islam and abrogated. Ali's deed is interpreted likewise: his postponing the stoning to Friday proves it, for delaying a punishment after its obligation is not allowed: each of the two punishments became known through a different source, the book for the whip and the sunna for stoning, hence his words, and not because the combination would be legitimate. The account of Ali also carries upon a woman who fornicated as a virgin, was flogged, then fornicated as a married woman; or he took her for a virgin, flogged her, then she appeared married and he stoned her, like the weak account of Jabir (narrated by Abu Dawud (4438)): a man fornicated, the Prophet ordered the whip, then he was informed he was married and he ordered stoning; Ali had flogged on Thursday and stoned on Friday, otherwise he would have combined both in one day; and it may be that the stoning was a Friday not following that Thursday (Tabyin al-Haqa'iq 3/173, al-Istidhkar 7/478, at-Tamhid 9/79, Sharh as-Sunnah of al-Bagawi 10/276-277, Bidayat al-Mujtahid 2/326, al-Hawi al-Kabir 13/192, al-Bayan 12/349-350, al-Mubdi' 9/61, Kashshaf al-Qina' 6/114, Sharh Muntaha al-Iradat 6/182).
On the diya of the fetus, Surah an-Nisa 92 applies: the fetus of two believers, or of one of the two parents, is ruled a believer by affiliation: his Muslim heirs inherit from him and the unbeliever inherits nothing from him; if he belongs to the covenant people, he belongs to a people bound by treaty; he is a life guaranteed by the diya, and emancipation is required in him as for the adult; the omission of the expiation's mention does not prevent its obligation, as the hadith "in the believing life: one hundred camels" mentions the diya in several places without the expiation, and as the Prophet judged the murdered woman's diya upon the killer's aqila without mentioning the expiation that was obligatory: the verse had dispensed with it elsewhere (al-Mughni 8/326-327). Ibn Rushd (Bidayat al-Mujtahid 2/311): the fetus of the free woman and the slave woman's fetus conceived of her master yield the ghurra, following the hadith of Abu Hurayra: "two women of Hudhayl fought; one threw a stone at the other, killed her, her and what she carried; the Prophet judged for her fetus a ghurra, a slave or a maid" (al-Bukhari 6910, Muslim 1681).
Second case: she delivers it alive and it then dies from the injury: all the scholars agree the full diya is due. Ibn al-Mundhir: all the retained scholars agree that the fetus dropped alive by a blow yields the full diya. They also agree: if the mother's belly is struck, she delivers a living fetus that dies near its exit, its death coming from the blow and from what was done to it and to its mother, the full diya is due; male and female are counted alike in it: the opinion of the jurists of the lands. The scholars also agree: the fetus that comes out after the blow or through its cause and dies on the spot yields the full diya; if it does not die on the spot, the aqila's claim prevails: it died without injury (al-Iqna' 2/296-297). an-Nawawi (Sharh Sahih Muslim 11/176): if it separates alive then dies, the adult's full diya is due: one hundred camels for the male, fifty for the female: consensus, and deliberate and accidental are equal in it. Ibn Rushd: the condition is that the fetus come out dead and the mother not die from the blow; if she dies from it and the fetus then drops dead: ash-Shafi'i and Malik place nothing in it; Ashhab, like al-Layth, Rabi'a and az-Zuhri, places the ghurra.
On the sign of life: Malik and his companions take it from the first cry or weeping; ash-Shafi'i, Abu Hanifa, ath-Thawri and most of the jurists: everything through which life is known in usage, movement, sneezing, breathing, gives the fetus the rulings of the living: the more apparent opinion. al-Qurtubi: all the scholars place the full diya in the accidental and the deliberate, after the qasama; it is said: without qasama. After the agreement on the first cry, the suckling and real breathing, the divergence bears upon movement: ash-Shafi'i and Abu Hanifa take it as a sign of life, Malik not, unless it lasts; male and female are equal for all; delivered dead: the ghurra, a slave or a maid; not delivered and dying within the womb: nothing: consensus without divergence. al-Layth and Dawud: the woman who dies from the blow to the belly and whose fetus then comes out dead: the ghurra, whether she delivered it before or after her death: what counts is the mother's life at the moment of the blow.
In practice one retains the unanimous frame: slander, fornication, theft and highway robbery are total prohibitions carrying legal punishments under strict conditions, whose application belongs to the competent authority; the stoning of the married adulterer and the status of the covenant people, with commanded kindness and forbidden alliance; fighting progressed through four closed historical stages; ta'zir covers every disobedience without a fixed punishment, the imam alone holding its management outside the household; the repentant murderer keeps an accepted repentance; and the married adulterer receives stoning without a prior whip according to the majority, the fetus born alive counting as a whole life.