Bukhari

Hadith Commentary:
(1)
From this hadith, it appears that the Messenger of Allah (sallallahu alayhi wa sallam) ordered the killing of the Jew merely on the statement of the girl, whereas this was not the case. The Prophet (sallallahu alayhi wa sallam) fulfilled the requirements of investigation and inquiry by questioning the Jew. When he confessed, then he was ordered to be killed.

(2)
For retribution (qisas), it is not necessary that the killing be carried out only with a sword or a sharp-edged weapon; rather, any object can be used for qisas. Although there is a hadith narrated regarding carrying out qisas with a sword, it is not a valid proof because it is weak. (Fath al-Bari: 12/249)

Hadith Commentary:
Some scholars hold the view that if a woman kills a man, then the heirs of the murdered man are entitled to receive half the blood money (diyah) from the woman’s family, and similarly, if a man kills a woman, then the heirs of the woman are only entitled to receive half the blood money.
Imam al-Bukhari rahimahullah has refuted this, stating that life is the same (in value); no distinction should be made in this regard. On this basis, if a man kills a woman, then the man will be killed in retaliation, as is mentioned in the aforementioned hadith.
The Messenger of Allah sallallahu alayhi wa sallam had the Jew killed because he had killed a girl.
The majority of scholars are in agreement with this position.
A few jurists have differed from this, but their view holds no weight in the face of the textual evidence.
Imam al-Bukhari rahimahullah has supported the majority of scholars.
And Allah knows best.

Hadith Commentary:
This hadith refutes the Hanafis who say that retribution (qisas) must always be carried out with the sword, and it is also established from this that a man will be killed in exchange for a woman.
Some people have taken evidence from this that one who denies consensus (ijma‘) is a disbeliever (kafir), but this is not correct.
Denial of such a matter of consensus makes one a disbeliever only if its obligation is established through the Shari‘ah by tawatur (continuous, mass transmission), but if the proof of an issue is not established by a sahih mutawatir hadith or a verse of the Qur’an, and someone opposes consensus in that matter, then he will not be a disbeliever.
Qadi ‘Iyad said: Whoever denies the createdness (huduth) of the world and claims it is pre-eternal (qadim) is a disbeliever, and those who abandon the congregation (jama‘ah), the rebels, the highway robbers, those who turn away from this statement, and those who oppose the rightful imam are also included; their killing is also permissible.

Hadith Commentary:
(1)
In one narration, it is mentioned that this Jew killed the girl in order to snatch her jewelry, but while she still had some breaths left, she was brought to the Messenger of Allah (sallallahu alayhi wa sallam). He asked her:
"Did so-and-so kill you?" She gestured with her head to indicate no. Then when the name of this Jew was mentioned, she gestured with her head to indicate yes. Then this Jew was interrogated, and he confessed to the crime, so he too was brought to justice for this crime.
(Jami‘ at-Tirmidhi, al-Diyat, Hadith: 1394) (2)
A punishment is not to be given to any accused person merely on the statement of the murdered person, nor are internal or external circumstantial evidences sufficient for retribution (qisas); rather, until the accused confesses to his crime, he cannot be punished. Thus, in the hadith, this Jew confessed to his crime.
(Sahih al-Bukhari, al-Khusumat, Hadith: 2413)
After the girl's death, retribution (qisas) was taken from the Jew because when the girl was brought, she was breathing her last. The Messenger of Allah (sallallahu alayhi wa sallam) asked her: "Who killed you?" (Fath al-Bari: 12/248)

Hadith Commentary:
Allamah Qastallani rahimahullah states that the murdered girl was from the Ansar.

And in Tahawi: "A Jew attacked a girl during the time of the Messenger of Allah sallallahu alayhi wa sallam, and took the 'awdaakh' that were on her, and crushed her head. 'Awdaakh' is a type of jewelry made from silver. And in Muslim: he crushed her head between two stones. And in Tirmidhi: a girl went out wearing 'awdaakh', and a Jew took her, crushed her head, and took the jewelry she was wearing. It is said: she was still alive when brought to the Prophet sallallahu alayhi wa sallam, and the hadith continues."

That is, during the Prophetic era, a Jewish bandit attacked a girl who was wearing silver bangles. The Jew placed the girl's head between two stones and crushed it, and removed the bangles from her body. Thus, while the girl still had some life in her, she was brought to the presence of the Prophet sallallahu alayhi wa sallam, and she revealed the identity of the Jew and his robbery.

As punishment, the Jew's head was also crushed between two stones, and he was killed.

The Malikis, Shafi'is, Hanbalis, and the majority have used this as evidence that whoever kills someone with something, he should be killed with its like (Qastallani).

That is, the Malikis, Shafi'is, Hanbalis, and the majority have taken from this that if a person kills someone with a certain thing, he should be killed with its like.

This is also the requirement of qisas (retaliation).

However, the opinion of Imam Abu Hanifah rahimahullah is contrary to this.

He does not accept equivalence (mumaathalah), and what is mentioned here, he considers it merely a political and disciplinary (ta'zeeri) measure.

He does not accept it as a legal ruling, but this view of his is not acceptable because it is contrary to the hadith.

Imam rahimahullah himself has said: "If the hadith is authentic, then that is my madhhab." That is, when an authentic hadith is found, that is my school of thought.

Hadith Commentary:
(1)
In the first two narrations, it was mentioned that a Muslim was reprimanded upon the claim of a Jew; in this way, justice and fairness prevailed. In this narration, a Jew was brought to justice as a consequence of his crime. It cannot be expected from an Islamic court that it would show undue favoritism to anyone or commit the injustice of depriving someone of their rights without cause.

(2)
This hadith also proves that the murderer should be given the death penalty in the same manner as he killed the victim. However, the position of some esteemed Imams is that retribution (qisas) should only be carried out by the sword, but since this position is contrary to the hadith, it is questionable.

The actual incident is as follows:
A Jewish bandit attacked a girl who was wearing silver bangles. The Jew placed the girl's head between stones and crushed it, then took off her bangles. Consequently, as punishment, the Jew was also killed in the same manner.

Wallahu a‘lam (And Allah knows best).

Hadith Commentary:

The Prophet (sallallahu alayhi wa sallam) accepted the statement of that girl, which was made by a gesture of the head, as testimony, and ordered the arrest of the Jew. Although the ruling of retribution (qisas) was not given solely on the basis of testimony, but rather upon the Jew’s confession of guilt, nevertheless, the jurists have considered the testimony given at the time of death, even if by a gesture of the head, to be valid for such an oppressed person. This is because a person, at the time of death, usually speaks the truth and refrains from lying.

Hadith Commentary:
At this point, there are two issues, the clarification of which is as follows: A bequest (wasiyyah) can be established through a gesture (isharah), because a gesture serves as a substitute for speech, provided that the gesture is clear and does not create any kind of doubt regarding the intended meaning. Whether the gesture is made with the head or the hand, if those present understand the intent, it is sufficient for the bequest.

Some scholars hold the view that a bequest cannot be established by the gesture of a sick person unless he speaks verbally. However, in light of the above hadith, this position is questionable.

The second issue concerns retribution (qisas). It cannot be established by gesture unless the accused confesses verbally, because the Messenger of Allah (sallallahu alayhi wa sallam) did not order retribution based on testimony by gesture, but rather, after the Jew confessed to the crime, his head was crushed. Accordingly, Imam Bukhari (rahimahullah) himself established a chapter in the Book of Blood Money (Kitab al-Diyat) with these words:

(Bab:
Idha aqarra bi’l-qatl marratan qutila bihi)
“Chapter: When a person confesses to murder once, he is killed as retribution (qisas).”

There, this very hadith has been presented as evidence.

Hadith Commentary:
(1)
Some individuals are of the opinion that retribution (qisas) should always be carried out with a sword, and that the killer should not be executed with a stone or a stick. However, the majority of scholars say that retribution can be carried out in the same manner as the killer committed the murder; it is not necessary to use a sword for qisas.

There is a narration regarding carrying out qisas with a sword, in which the Messenger of Allah sallallahu alayhi wa sallam said:
"Retribution is only with the sword."
(Sunan Ibn Majah, al-Diyat, Hadith: 2667)

But this narration is weak, as Hafiz Ibn Hajar rahimahullah has explicitly stated.
(Talkhis al-Habir: 4/39)

Therefore, this ruling is not correct; qisas can be carried out with any means.

(2)
In reality, Imam Bukhari rahimahullah intends to clarify that whenever death occurs due to someone's aggression, there is qisas in it, whether it is by a stone or by a stick.

Some individuals have stipulated the condition that intentional murder (qatl ‘amd) must be committed with a weapon, but these conditions have no basis, as is established from the above hadith.

And Allah knows best.

Hadith Commentary:
(1)
Nothing is established by the confession of the murdered person; the girl was only questioned so that the suspicious person could be identified, and then he could be questioned. If he confessed, then action would be taken according to the prescribed procedure.

(2)
The scholars of Kufa, by analogy with adultery (zina), have taken the position that the murderer should confess at least twice; a single confession is not sufficient.
However, the majority of scholars hold the view that if the murderer confesses once, that is sufficient.
Imam Bukhari rahimahullah, supporting the majority, has presented this hadith: the Jewish murderer confessed only once, and then he was brought to justice.
He was not made to confess repeatedly.
There is no mention of a number in this hadith; therefore, a single, absolute confession is sufficient.

Hadith Commentary:
Vocabulary of the Hadith:
(1)
Awdaah:
Plural of wadah,
this is a type of silver jewelry.
(2)
Ramaq:
The last part of life or the final breath.

Benefits and Issues:
(1)
From this hadith, it is understood that
one should keep an eye on people of evil and corruption,
and in the presence of circumstantial evidence of evil and corruption, they may be questioned,
but without confession of the crime, they cannot be declared guilty,
unless the crime is proven by testimony,
and it is also understood that
an understandable gesture is valid and reliable.
Based on this hadith,
the Malikis have said that
if a murdered person,
before death, identifies the killer,
and there are marks of wounds on him, then this claim
will be considered as an indication and sign
that the killer is involved, and therefore this claim will be the cause for qasamah (oath-taking procedure),
if the heirs of the murdered person swear that this person is indeed the killer and claim intentional murder,
then qisas (retaliation) will be taken,
but according to the majority,
the mere claim of the dying person cannot be considered as evidence,
here, the Jew was not killed based on the statement of the murdered woman,
rather, he was killed on the basis of his own confession and admission of the murder.

(2)
This hadith proves that
a man will be killed in retaliation for a woman.

(3)
The Imams of Hijaz and the majority of scholars have deduced from this hadith that whatever instrument,
means, or method the killer uses to kill,
he will be killed in retaliation by the same method or means,
but according to the Hanafis, if a person intentionally kills with a heavy and weighty object,
and does not use a sharp instrument,
such as a sword,
arrow,
dagger, or knife,
then this will not be considered intentional murder (qatl ‘amd),
rather, it will be considered quasi-intentional murder (shibh al-‘amd),
for which the penalty is aggravated blood money (diyah mughallazah),
this is the position of Imam Abu Hanifah,
Hasan,
Shu‘bi,
Ibn al-Musayyib,
Ata’, and Tawus,
but according to the three Imams (Malik,
Shafi‘i,
Ahmad)
and the two companions (of Abu Hanifah), if the murder weapon is something
that generally causes death,
its being sharp is not a condition,
such as a large stone,
stick, then this is intentional murder (qatl ‘amd),
for which qisas is obligatory,
this is also the view of Nakha‘i,
Zuhri,
Ibn Sirin,
Hammad,
‘Amr ibn Dinar,
Ibn Layla, and Ishaq.
(al-Mughni,
vol. 11,
p. 447,
Dr. Turki)
However, it should be noted that according to the Hanafis, if the killer’s purpose and intention is to kill and take the life of the other,
then whatever instrument he uses,
whether sharp or heavy and weighty,
then this is intentional murder (qatl ‘amd),
for which the punishment is qisas,
not quasi-intentional murder (shibh al-‘amd),
for which the punishment is heavy blood money.
(Takmilah,
vol. 2,
p. 336)
Thus, the difference is only in the case
when the killer does not confess or admit to the murder,
then the murder weapon will be considered,
but the requirement of today’s era is that,
whatever instrument is used in the murder,
and if the murder is proven by evidence (testimony),
it should be considered intentional murder (qatl ‘amd),
for which the original punishment is qisas.
Allamah Taqi Usmani has given preference to this, that nowadays the opinion of the majority of Imams and the two companions should be acted upon.
(Takmilah,
vol. 2,
p. 338)

(4)
According to the majority, the method of qisas is as we have mentioned above, that the same treatment and behavior should be adopted with the killer
as he adopted,
if he killed someone with a stone,
he should be killed with a stone,
if he drowned someone in water, he should be drowned in water,
if he killed with a stick,
he should be killed with a stick,
but according to Imam Abu Hanifah,
the killer should only be killed with a sword,
this is also one narration from Imam Ahmad,
and the same view is held by the two companions and Thawri.
According to some scholars, the purpose of killing with a sword is that such a murder weapon should be used which causes immediate death,
therefore, according to the Hanafi position,
modern murder weapons can be used for this,
which cause a person to die immediately and not die in agony.
(For details, see
Islami Qawaneen by Dr. Tanzilur Rahman,
Part Two,
Discussion on Qisas and Diyah)

Hadith Commentary: Benefits and Issues: It is established from this hadith that the gesture of a sick person or someone near death, if it is understandable and there is no kind of doubt or ambiguity in its comprehension, is valid and reliable. This is the view of the Imams of Hijaz. However, according to Imam Abu Hanifah and Thawri, only the gesture of a mute person is considered valid; a ruling will be established by it. As for a sick person, as long as he does not speak, no ruling will be established merely by his gesture.

Explanation:
1:
This is the doctrine of the people of Kufa, among whom are included Imam Abu Hanifah and his companions. Their evidence is the narration of Nu'man ibn Bashir, which is reported in Ibn Majah with the words "There is no retribution except with the sword (lā qawda illā bi's-sayf),"
but this narration is weak in all its chains. In fact, according to Abu Hatim,
it is munkar (rejected).

Benefits and Issues:
One form of retribution (qisas) from the criminal is that he should be killed in the same manner in which he committed the murder, as is the case in this incident, and the same was done with the people of ‘Ukil and ‘Uraina.

Benefits and Issues:
From this it is understood that in retribution (qisas), only the killer will be killed, whether the killer is a man or a woman. Here, in the case of retribution for a woman, a man was killed, because he was the killer of that woman.

According to the majority of scholars, if a man kills a woman, he should be killed in retribution (qisas), unless pardon is granted. Since the incident mentioned falls under the definition of "armed robbery" (dacoity), the Prophet (sallallahu alayhi wa sallam) did not inquire from the heirs of the murdered woman regarding pardon; rather, he himself had the perpetrator killed. This is because armed robbery accompanied by murder falls under the category of "waging war" (muharaba), in which pardon is not permitted.

For details, see Hadith: 4049, 4050.

It is understood from this that it is not necessary for retribution (qisas) to be carried out only with a sword; retribution itself demands equivalence. Therefore, if the murderer killed the victim in a painful manner, then he too will be killed in a painful manner. As for the hadith [لا قَوَدَ إلا بالسَّيفِ] “Retribution will not be taken except with a sword,” it is weak. It is also established that if the killing is done with anything, and the intention is to kill, then retribution can be taken, because what matters is the intention, not the instrument of killing. In fact, killing with something other than a sword can be even more painful and oppressive. For further details, see hadiths: 4029, 4050, 4743.

Benefits and Issues:
➊ The meaning of killing among the stones is that her head was placed on a stone and another stone was struck from above, causing her to be severely injured, and later, unable to bear the wounds, she passed away.

➋ In the matter of testimony, a clear gesture is considered as speech in terms of ruling. In prayer, such a gesture is not considered as speech. (Sahih al-Bukhari, al-Kusuf, Chapter: The Prayer of Women with Men during the Eclipse, Hadith: 1053)

➌ The death penalty should be carried out in the same manner as the murderer committed the murder.

Takhrij:
«أخرجه البخاري، الديات، باب من أقاد بالحجر، حديث:6879، ومسلم، القسامة، باب ثبوت القصاص في القتل بالحجر...، حديث:1672.»©

Explanation:
➊ This hadith is evidence that retribution (qisas) for a murdered person may be carried out using heavy objects, stones, and the like; it is not restricted to only using iron implements for retribution. This is the view of all the leading Imams except Imam Abu Hanifah rahimahullah.

➋ This hadith also establishes that a man will be killed in retribution for a woman, and that the killer will be executed in the same manner as he killed the victim.