Muwatta Imam Malik (Riwayat Yahya)

Some people, who were respected individuals of his tribe, informed Sahl bin Abi Hathmah that Abdullah bin Sahl and Muhayyisah had gone to Khaybar due to poverty and destitution. A man came to Muhayyisah and reported that Abdullah bin Sahl had been killed by someone and thrown into a well or a spring. Upon hearing this, Muhayyisah went to the Jews of Khaybar and said: "By Allah! You have killed him." The Jews replied: "By Allah! We did not kill him." Then Muhayyisah returned to his people and informed them. After that, Muhayyisah and his brother Huwayyisah, who was older than him, and Abdur Rahman bin Sahl (who was the brother of the murdered Abdullah bin Sahl) came to the Messenger of Allah, peace and blessings be upon him. Muhayyisah wanted to speak because he was the one who had gone to Khaybar, but the Messenger of Allah, peace and blessings be upon him, said: "Respect the elders." So Huwayyisah spoke first, then Muhayyisah spoke. The Messenger of Allah, peace and blessings be upon him, said: "Either the Jews pay the blood money for your killed one or they will have to fight." Then the Messenger of Allah, peace and blessings be upon him, wrote to the Jews about this matter. They replied in writing: "By Allah! We did not kill him." Then the Messenger of Allah, peace and blessings be upon him, said to Huwayyisah, Muhayyisah, and Abdur Rahman: "You swear that the Jews killed him, and then you will be entitled to the blood money." They said: "We will not swear." The Messenger of Allah, peace and blessings be upon him, said: "Alright, then if the Jews swear that they did not kill him?" They said: "O Messenger of Allah, peace and blessings be upon him! They are not Muslims." So the Messenger of Allah, peace and blessings be upon him, paid the blood money from his own side. Sahl says that the Messenger of Allah, peace and blessings be upon him, sent one hundred camels to their homes; among them, a red she-camel kicked me (I still remember it).

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.

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.