Muslim

Hadith Commentary:
Vocabulary of the Hadith:
(1)
Rimmah:
A rope with which the murderer is tied and handed over to the heirs of the murdered person.
(2)
Marbad:
An enclosure where camels are tied.

Benefits and Issues:
From the narration of Sahih Bukhari, it is understood that the Prophet (sallallahu alayhi wa sallam) first asked for evidence (bayyinah) to be presented. When they refused, he then asked them to take oaths. Therefore, in some narrations, there is the command to present evidence, but no mention of offering oaths, and in some, there is mention of taking oaths, but no demand for evidence. Thus, the correct position is that if there is no evidence, then the right to take oaths will first belong to the heirs of the murdered person. If they refuse, then oaths will be taken from the defendant, whether an individual or a group.

(Fath al-Bari, vol. 12, p. 291)

This is the view of the Shafi‘iyyah, Malikiyyah, Hanabilah, Rabi‘ah, Abu Zanad, Layth, and Dawud.

(al-Qasamah, p. 85)

Hadith Commentary:
The hadith mentions *qasaamah*, the details of which have already been discussed previously.
If there is no eyewitness testimony regarding a murdered person, then fifty men from his tribe will swear oaths, naming the suspected killer according to their belief, saying, "By Allah, he is the killer." In this case, they become entitled to the blood money (diyah); this is what is called *qasaamah*.
The hadith instructs that in every matter, elders should be given precedence; this is the connection to the chapter.
From this, it is evident how significant the issue of unlawful killing is in Islamic law.

Hadith Commentary:
(1)
If there are no eyewitnesses regarding a murdered person, then fifty men from his tribe should testify that so-and-so is his killer; in this case, they become entitled to blood money (diyah). This is what is called qasamah. Its explanation has already been given earlier.

(2)
Imam Bukhari rahimahullah has established from this hadith the respect due to elders: that they should be given the opportunity to speak. Thus, the Messenger of Allah sallallahu alayhi wa sallam instructed the elder in age to speak so that the full circumstances and details of the incident would become clear. Otherwise, the actual claimant was the brother of the murdered person, ‘Abdur-Rahman radi Allahu anhu, but he was younger in age.

In any case, in every matter, elders are to be given precedence. However, if the younger person possesses information that the elders do not, then he should be given the first opportunity to speak, as is evident from the following hadith.

Hadith Commentary:

Benefits and Issues:
Qasamah,
According to Qadi Iyad,
The hadith of Qasamah
is one of the foundational principles of Shariah,
and a rule among the regulations of rulings,
and a pillar among the interests of the servants,
which has been accepted by all the Imams,
the Companions and the Followers (Tabi‘in),
and the jurists of the cities.
None of the four Imams denied it,
although from some of the Tabi‘in, such as Hakam ibn ‘Utaybah,
Abu Qilabah,
Salim ibn ‘Abdullah,
Sulayman ibn Yasar, and Qatadah, denial of Qasamah has been transmitted.
Qadi Iyad has also explicitly mentioned this inclination from ‘Umar ibn ‘Abd al-‘Aziz and Imam Bukhari,
while Imam Bukhari’s establishment of the chapter on Qasamah and his narration of the incident of ‘Umar ibn ‘Abd al-‘Aziz therein proves that they were not deniers of Qasamah,
rather, in the matter of receiving blood money (diyah) through Qasamah, according to Hafiz Ibn Hajar,
they were in agreement with Imam Shafi‘i.
(Fath al-Bari,
vol. 12,
p. 297)
And in the matter of taking oaths, they were in agreement with the Hanafis,
that the oaths will be taken from the defendants.
(vol. 12,
p. 298)
According to Mawlana Zakariya,
they were in agreement with the Hanafis,
because according to the Hanafis, in the case of Qasamah,
the oaths will be taken from the defendant,
and in every case, he will have to pay the blood money (diyah).
Among the Imams, regarding Qasamah,
there are many differences in its details,
therefore, we present only a summary:

(a)
According to the Shafi‘is,
if the murdered person is found in land owned by an individual or individuals,
not in a forest or wilderness,
but the killer is not known,
yet the heirs of the murdered person, based on some circumstantial evidence (such as enmity or hostility)
which is reliable and can be trusted,
express suspicion against a specific individual or individuals from a neighborhood or settlement,
then the judge, accepting the statement of the heirs, will take fifty oaths from the claimants, i.e., the heirs of the murdered,
in which they will specify the killer,
and clarify the nature of the killing—whether it was intentional (‘amd), quasi-intentional (shibh al-‘amd), or accidental (khata’),
and accordingly, will collect retribution (qisas) or blood money (diyah) from the defendant.
If the heirs of the murdered are not willing to take the oaths,
then the defendants will take the oaths and be acquitted.
If the heirs of the murdered have no evidence, i.e., no circumstantial proof such as mutual enmity or hostility,
then the claimant must present evidence, or oaths will be taken from the defendants,
that “I/we did not kill, nor do I/we know the killer,”
thus they will be acquitted.
If the defendants do not take the oaths,
then the heirs of the murdered will take the oaths and become entitled to the blood money (diyah),
otherwise not.
The position of the Malikis and Hanbalis is also the same as the Shafi‘is,
but there are some differences in details.
According to the Malikis and Hanbalis, in the case of circumstantial evidence, the defendants will take fifty oaths in every case,
when the heirs of the murdered do not take the oaths.
If there is no circumstantial evidence, then the defendant will take only one oath.
If the defendant does not take the oath, then according to the Shafi‘is, the heirs of the murdered will again be encouraged to take the oaths,
but according to the Malikis and Hanbalis, this will not happen.
According to the Malikis, in such a case, the defendant will be imprisoned
until he takes the oath,
or confesses, or dies in prison.
According to the Hanbalis, in one narration, the blood money (diyah) will be paid from the public treasury (bayt al-mal),
and according to another narration, which Ibn Qudamah preferred,
the blood money will be upon the defendant.

(b)
The difference between the Imams of Hijaz and the Hanafis...
(1)
According to the Hanafis, the order to take oaths will first be given to the defendants,
and according to the Imams of Hijaz, if there is no evidence, then the order to take oaths will first be presented to the heirs of the murdered,
if they refuse,
then the defendants will be asked to take the oaths.
(2)
According to the Imams of Hijaz, the claim of murder will be against a specific individual or individuals,
a claim without specification will not be heard, and according to Imam Abu Hanifah, a claim can be made against any member of the neighborhood without specification.
(3)
According to the Hanafis and Shafi‘is, the responsibility of the defendants is only the blood money (diyah),
which, according to the Hanafis, is always upon the defendant,
while according to the Shafi‘is, in some cases they will be acquitted,
and according to the Malikis, in the case of circumstantial evidence,
when the killing is intentional (‘amd),
then the defendant will be liable for retribution (qisas).
And according to Allamah ‘Abd al-Qadir ‘Uwdah (may Allah have mercy on him),
Qasamah has been prescribed for the protection and preservation of human life,
because the Islamic Shariah has a strong desire that human blood not be wasted, and sometimes the killer chooses a place where no one can see him,
and no testimony can be established against him,
therefore, the Islamic Shariah, for the sake of the importance and protection of human life, has prescribed the law of Qasamah.
If the fulfillment of all the conditions of hudud and qisas is made necessary,
then many murderers will escape punishment,
and people’s blood and lives will not remain protected.
But since there are many differences among the scholars of the Ummah regarding the details of this issue,
therefore, keeping in view the spirit and objectives of the Shariah,
in the light of the statements of the Imams,
and in view of the texts of the Shariah,
and according to the present circumstances and conditions,
for the protection of people’s blood and lives,
appropriate legislation can be made.
(For details on Qasamah, see:
al-Mughni,
vol. 12,
pp. 188–205,
Bab al-Qasamah,
Takmilah,
vol. 2, pp. 275–289,
al-Qasamah fi al-Fiqh al-Islami by Muhammad Shams, published by Mu’assasat al-Risalah)

Explanation:

1:
He paid it either from the public treasury (Bayt al-Mal) or from his own wealth.

Benefits and Issues:
Qasamah is derived from qasam (oath) and refers to the repeated taking of oaths. Its detail is as follows: when a murder takes place somewhere and the killer is unknown, and there is no testimony present, but the heirs of the murdered person accuse a person or persons of the killing, and there are some indications as well—for example, there is enmity between those people, or the murder occurred in their area, or the belongings of the murdered person are found with someone, or other such signs are present—then the claimants first take fifty oaths that such-and-such person or persons are the killers of our man.

In this way, their claim will be established. If the claimants do not take the oaths, then the defendant(s) will take fifty oaths and will be acquitted.

If the matter cannot be clarified, then the blood money (diyah) of the murdered person will be paid from the public treasury (bayt al-mal).

Urdu footnote:
"The blood money was given"—the blood of an innocent murdered Muslim does not go in vain, therefore the Prophet (sallallahu alayhi wa sallam) paid the blood money (diyah) from the public treasury (bayt al-mal). In this way, the dispute was resolved. This was the perfect insight and understanding of the Prophet (sallallahu alayhi wa sallam), otherwise, they were not entitled to the blood money because they themselves were not prepared to take oaths, nor did they accept the oaths of the defendants.