Muwatta Imam Malik (Riwayat Yahya)

Imam Malik, may Allah have mercy on him, said: In our view, this ruling is agreed upon, and I have heard it from many good scholars, and the earlier and later scholars have agreed upon it, that in Qasamah, the oath will first be taken from the claimants; they will take the oath (if they do not take the oath, then the oath will be taken from the defendants, and if they take the oath, they will be acquitted), and Qasamah becomes necessary due to one of two matters: either the murdered person himself says, "So-and-so killed me" (and there are no witnesses), or the heirs of the murdered person express suspicion against someone and the testimony is not complete, then for these two reasons Qasamah becomes necessary for them.

Imam Malik, may Allah have mercy on him, said that there is no difference of opinion in this Sunnah that the oath will first be taken from those who claim blood, whether it is intentional murder or accidental killing, and the Messenger of Allah, peace and blessings be upon him, instructed the Banu Harith, whose relative was killed in Khaybar, to take the oath first.

Imam Malik, may Allah have mercy on him, said that there is no difference of opinion in this Sunnah that the oath should first be taken from those who claim the blood, whether it is intentional murder or accidental killing, and the Messenger of Allah, peace and blessings be upon him, ordered the Banu Harith, whose relative was killed in Khaybar, to take the oath first.

Imam Malik, may Allah have mercy on him, said that if the claimants take the oath, they will have the right to the blood; they can kill the person upon whom they have sworn, but only one person, not two or more. So first, fifty oaths will be taken from the claimants; if they are fifty people, each one will take one oath, and if they are less than fifty or some of them refuse to take the oath, then repeated oaths will be taken to complete fifty oaths. However, if among the heirs of the murdered person, those who have the right to pardon, any one of them refuses to take the oath, then Qisas (retaliation) will not be obligatory. But if among those who do not have the right to pardon, someone refuses to take the oath, then oaths will be taken from the remaining people. And among those who have the right to pardon, if even one refuses to take the oath, then the remaining heirs will also not be given the oath. Rather, in this case, the defendants will be given the oath; among them, fifty people will be given fifty oaths, and if they are less than fifty, then repeated oaths will be taken to complete fifty. If there is only one defendant, then fifty oaths will be taken from him; when he takes fifty oaths, he will be acquitted.

Imam Malik, may Allah have mercy on him, said that if the claimant takes an oath, he will have the right to the blood, and he can kill the person upon whom he swore, but only one person, not two or more. First, fifty oaths will be taken from the claimants; if there are fifty people, each will take one oath. If there are fewer than fifty, or if some of them refuse to take the oath, then repeated oaths will be taken to complete fifty oaths. However, if among the heirs of the murdered person, those who have the right to pardon, any one of them refuses to take the oath, then retaliation (qisas) will not be obligatory. But if among those who do not have the right to pardon, someone refuses to take the oath, then oaths will be taken from the remaining people. And if among those who have the right to pardon, even one refuses to take the oath, then the remaining heirs will also not be given the oath. Rather, in this case, the defendants will be given the oath; among them, fifty people will be given fifty oaths. If there are fewer than fifty, then repeated oaths will be taken to complete fifty. If there is only one defendant, fifty oaths will be taken from him; when he takes fifty oaths, he will be acquitted.

Imam Malik, may Allah have mercy on him, said that in cases of blood (murder), fifty oaths are taken, and in claims, one oath is taken, because bloodshed is not committed in front of people but in solitude. So if in qasamah (oath-taking in murder cases) things were handled only by testimony as in other claims, then many cases of bloodshed would go to waste, and people would become more daring in committing murder when they learned the ruling. But qasamah was first placed in favor of the heirs of the murdered person, so that people would refrain from bloodshed and fear, knowing that in this matter only the statement of the murdered person’s heirs is sufficient.

Imam Malik, may Allah have mercy on him, said that if a tribe, in which there are many people, is accused of bloodshed and the heirs of the murdered person wish to have them swear oaths, then each person among them will swear fifty oaths. It will not be that fifty oaths are divided among all of them; this is what I have heard as correct.

Imam Malik, may Allah have mercy on him, said: Qasamah will be directed towards the agnates of the murdered person, who are the rightful claimants of the blood. Only they are made to swear oaths, and it is by their swearing of oaths that retribution (qisas) is taken.

Imam Malik, may Allah have mercy on him, said: In our view, there is no difference of opinion in this matter that oaths are not to be taken from women in Qasamah, and if the heirs of the murdered person are only women, then they will have neither the right of Qasamah nor the right to pardon in the case of intentional murder.

Imam Malik, may Allah have mercy on him, said that if a person is killed intentionally, and his 'asaba (male agnates) or mawali (clients) say that they will take qisas (retaliation) by swearing an oath, then it is possible. Even if the women forgive, nothing will be binding upon them; rather, the 'asaba or mawali are more entitled to the blood, because they are the ones who will swear the oath.

Imam Malik, may Allah have mercy on him, said: However, if the male relatives or freed slaves pardon the blood after taking the oath and after becoming entitled to the blood, and the women refuse to pardon, then the women will have the right to take retribution (qisas).

Imam Malik, may Allah have mercy on him, said that in the case of intentional murder, it is necessary to take oaths from at least two claimants; after taking fifty oaths from them, the ruling of retaliation (qisas) will be given.

Imam Malik, may Allah have mercy on him, said that if several people together kill one person in such a way that he dies immediately from the blows of all of them, then all of them will be killed in retaliation (qisas). And if he dies after several days, then qasamah will become obligatory. In this case, due to qasamah, only one person among them will be killed, because through qasamah only one person is always killed.

Imam Malik, may Allah have mercy on him, said: In the case of accidental killing (qatl-e-khata), the first oaths will be upon the claimants of blood; they will take fifty oaths according to their share in the inheritance (1). If there is a deficiency in the oaths, then the heir who has the largest share in the deficiency will have the full oath placed upon his share (2).

Imam Malik, may Allah have mercy on him, said that if the heirs of the murdered person are only women, then they alone will take the oath and receive the blood money. And if the murdered person has only one male heir, then he will be given fifty oaths, and after taking those fifty oaths, he will receive the blood money. This ruling is for accidental killing, not for intentional murder.

Imam Malik, may Allah have mercy on him, said that when the heirs of blood accept the blood money (diyah), its distribution will be according to the Book of Allah. The heirs of the diyah will be the daughters and sisters of the murdered person, and all those women who inherit from the estate. If, after giving the shares to the women, something remains, then the closest male agnate (asaba) will inherit the remainder.

Imam Malik, may Allah have mercy on him, said that if some of the heirs of the murdered person are present and some are absent, and those who are present wish to take their share of the blood money by swearing oaths for their portion, this is not permissible until all the oaths are completed. If all fifty oaths are taken, then they may take their share from the blood money, because the crime of blood is not established without fifty oaths, and until the crime of blood is established, the blood money does not become obligatory. Now, if any of the absent heirs arrives, he may take oaths corresponding to his share and take his portion from the blood money, until the rights of all the heirs are fulfilled. If a uterine brother comes, he should take as many oaths as are equal to one-sixth of fifty oaths and take his share; if he refuses, his share will be void. If some of the absent heirs are minors, then fifty oaths will be taken from those who are present, and when the absent one arrives, oaths corresponding to his share will be taken from him as well, and when the minor becomes mature, he too will take oaths corresponding to his share. This is what I have heard as good.

Imam Malik, may Allah have mercy on him, said: In our view, the ruling is that when a slave is killed intentionally or unintentionally, and then his master brings one witness each, he should take an oath along with his witness, and after that, he should take the value of his slave. There is no qasamah in the case of a slave, neither in intentional killing nor in unintentional killing, and I have not heard this from any of the people of knowledge.

Imam Malik, may Allah have mercy on him, said that if a slave is killed intentionally or by mistake, then neither qasamah nor oath is upon his master, and the master will be entitled to the price only when he brings just witnesses, two or one and takes an oath for the other; I have heard this as good.

It is narrated from Hazrat Basheer bin Yasaar that Abdullah bin Sahal Ansari and Muhayyisa bin Mas’ood went to Khaybar. There, they separated to attend to their respective tasks. Someone killed Abdullah bin Sahal. So Muhayyisa, his brother Huwayyisa, and Abdur Rahman bin Sahal came to the Messenger of Allah, peace and blessings be upon him. Abdur Rahman tried to speak regarding his brother’s case, but the Messenger of Allah, peace and blessings be upon him, said: “Respect the elders.” So Huwayyisa and Muhayyisa narrated the story of Abdullah bin Sahal. The Messenger of Allah, peace and blessings be upon him, said: “You will take fifty oaths (that such-and-such person killed him); if you do so, the right to blood money (or the right to the killer) will be yours.” They said: O Messenger of Allah, peace and blessings be upon him! (How can we take oaths?) We were not present at that time, nor did we see anything. The Messenger of Allah, peace and blessings be upon him, said: “Then the Jews will take fifty oaths and be acquitted.” They said: O Messenger of Allah, peace and blessings be upon him! They are disbelievers; how can we accept their oaths? Basheer bin Yasaar said: Then the Messenger of Allah, peace and blessings be upon him, paid the blood money from his own side.