Nasai

Urdu marginal note:
"His own and the murdered person's sins"—that is, in the case of pardon, the sins of the murdered person will also be placed upon the murderer, and the murdered person will become one destined for Paradise. This is contrary to taking retribution (qisas), in which case the sin of murder is forgiven for the murderer, but there is no guarantee that the sins of the murdered person will be forgiven.

Hadith Commentary:
Vocabulary of the Hadith:
(1)
Nas‘ah:
A leather strap.
(2)
Nakhtabit:
We were shaking down the leaves of the acacia tree.
(3)
Qarn:
The edge of the head or the crown of the head.
(4)
Ba’a bi-ithmihi:
He bore his sin or returned bearing his sin.

Benefits and Issues:
In qatlahu fahuwa mithluhu:
That is, if the heir of the murdered person kills the murderer, then he has taken his right from him; he has not attained any superiority over him, nor has he reached the rank of virtue and benevolence by forgiving him. If he forgives, then in this world he will be praiseworthy and in the Hereafter deserving of immense reward. However, the Prophet (sallallahu alayhi wa sallam) used such words whose meaning could also be that both are equal, both have done a wrong act, because the real intent of the Prophet (sallallahu alayhi wa sallam) was that the murderer, in a fit of rage and swept away by emotion, struck with the axe; killing was not intended. So, in the present situation, killing the murderer is also being swept away by emotion and venting one’s anger, just like him.

An yaboo’a bi-ithmika wa ithmi sahibika:
That is, if you forgive, then this act of yours will become an expiation for your sins and for your murdered brother; your sins will be forgiven, or the murderer, due to killing your brother and by putting you through pain and distress by killing him, has become deserving of sin. If you kill him, then this will become an expiation for his sin and you will not attain any reward or merit.

From this hadith it is established that if the murderer confesses and admits to the killing, then there is no need to establish testimony. According to the Hanafis and Malikis, in the case of intentional murder, the original punishment is retribution (qisas); blood money (diyah) is only in the case when the murderer is willing to pay it. However, according to the Shafi‘is and Hanbalis, the choice of taking retribution (qisas) or blood money (diyah) belongs to the heir of the murdered person. If he prefers to take blood money, then the judge will compel the murderer to pay it.

In the detailed narration of al-Nasa’i, it is mentioned that the Prophet (sallallahu alayhi wa sallam) asked the heir, “Will you forgive him?” He replied, “No.” The Prophet (sallallahu alayhi wa sallam) said, “Are you willing to accept blood money?” He replied, “No.” Then the Prophet (sallallahu alayhi wa sallam) asked, “Do you want to take retribution (qisas)?” He replied, “Yes.” Thus, from other ahadith as well, it is established that the original choice belongs to the heir. However, it is obvious that the murderer will also be asked; if he is unable to arrange the blood money or for some reason does not wish to do so, then compelling him is difficult. And from this hadith it is also established that forgiving and foregoing retribution is better and more virtuous.

Benefits and Issues:
➊ If there is a fear that the criminal may escape, it is permissible to bind him.
➋ The heir of the murdered person has only one choice among three options: to pardon, to accept blood money (diyah), or to demand retribution (qisas).
➌ It is permissible for the ruler or judge to encourage forgiveness.
➍ If the killer is executed in retribution (qisas), it is hoped that this will serve as expiation for him; otherwise, his matter is with Allah.

(1) It is legislated and permissible for the judge and ruler to encourage the heirs of the murdered person to pardon (the killer), but they themselves have absolutely no right to pardon any criminal or murderer. If the ruler of the time or the judge who is passing judgment pardons a murderer on his own accord, even after the crime has been proven, then this is a clear injustice and tantamount to destroying justice and fairness. The practice prevalent among us, whereby after all legal requirements have been fulfilled, the authority to pardon criminals sentenced to death by the highest courts lies with “Mr. President,” is absolutely wrong and impermissible.

(2) It is permissible to bind (restrain) the criminal, especially when there is a fear of his escape or running away.

(3) “Your and the murdered person’s sins”—that is, in exchange for this pardon, your and the murdered person’s sins will be forgiven and both of you will become people of Paradise. The murdered person, because he was killed unjustly, and the heir of the murdered person, because he spared the life of the killer. It is as if he gave life to a person, and this is a great virtue. It can also mean that the killer will have two sins: one for killing the murdered person, and another for causing you (the heirs of the murdered person) grief and loss. However, the first meaning appears to be more correct. And Allah knows best!

(4) The heirs of the murdered person have the choice of only one out of three options. The first is to pardon the killer; this is the best, most virtuous, and most beloved to Allah, the Exalted. If they do not pardon, then they may take blood money (diyah) and let him go; this is also good, but a lesser degree of virtue than the first. The third and final option is to kill (the murderer) in retribution (qisas). The more one can avoid this, the better it is. If they are not willing to accept the first two options, then the killer will be killed in retribution, and that is all.

(5) The repeated exhortation of the Messenger of Allah (sallallahu alayhi wa sallam) to the heir of the murdered person to pardon is evidence that pardon is a preferred and beloved act. Furthermore, from the Prophet’s (sallallahu alayhi wa sallam) repeated encouragement to pardon, it is also understood that in Islamic law, pardoning is better than taking retribution (qisas), and the heirs of the murdered person should be encouraged to pardon.

(1) "Then you will be like him" — The apparent meaning is that if you kill him, you too will be an unlawful killer, but this is not the intended meaning here, because killing the murderer in retribution (qisas) is not a crime. As for the murderer saying, "I did not intend to kill," this does not necessitate pardoning the murderer, because only Allah ta'ala knows the intention. Outwardly, the situation was one of killing. The meaning of your (sallallahu alayhi wa sallam) statement is that you will have no superiority over him. He killed in anger, and so did you. Although he killed unlawfully and you would do so lawfully, virtue is only attained if you pardon. You will be praised in this world and will attain a great reward in the Hereafter. By uttering such an ambiguous statement, you (sallallahu alayhi wa sallam) stirred feelings of forgiveness in him and succeeded in your objective.

(2) It is understood that forgiveness is better than retribution (qisas), especially when the murderer also presents the excuse that he did not intend to kill, although in such a case forgiveness is not obligatory. That is why you (sallallahu alayhi wa sallam) handed the murderer over to the heir of the slain, so that he could kill him. (For further details, see: Fawaid wa Masail Hadith: 4726)

English Translation:

In matters that are pardonable, encouraging forgiveness and reconciliation is a good thing because, in the case of forgiveness or reconciliation, mutual enmity comes to an end. Love increases. Society becomes peaceful. Although taking retribution is permissible, often in the case of taking retribution, provocation arises. Displeasure and enmity are created; therefore, the Shari‘ah has declared forgiveness superior to taking retribution, provided that the other party admits their mistake with humility and sincerely seeks forgiveness. However, if they display arrogance and pride, then taking retribution is superior so that the pride of the arrogant person is broken. It is appropriate for the ruler to strive for reconciliation in the aforementioned types of cases. If reconciliation is not possible, then he should decide according to the truth. However, some social crimes are not pardonable, for example: theft, adultery (zina), etc. If such cases reach the court, then a decision is necessary. Murder falls under the first category. (For further details related to the narration, see: Ahadith: 4726, 4735)