If the killer is from a confined group, then Qasamat will be established, and it consists of fifty oaths.
Linguistic explanation: The word قسامة means “peace between the enemy and the Muslims, or a group that takes an oath for something and then accepts it.” Chapter أَقْسَمَ يُقْسِمُ (إفعال) means to swear an oath, Chapter قَاسَمَ يُقَاسِمُ (مفاعلة) means to have an oath taken.
[Al-Munjid: p. 691, Al-Qamus Al-Muheet: p. 1036]
Juristic definition: (Hanafis) Multiple oaths taken in a claim of murder, which are fifty oaths taken by fifty people from the (local community).
[Al-Fiqh Al-Islami wa Adillatuhu: 5805/7, Bada’i’ Al-Sana’i’: 286/7, Al-Kitab ma’ al-Libab: 172/3, Tabyin Al-Haqaiq: 169/6, Al-Durr Al-Mukhtar: 442/5]
(Jamhur) An oath taken by the heirs of the murdered to prove the killer’s guilt by swearing: “By Allah! So-and-so killed him.”
[Al-Sharh Al-Kabir: 293/4, Bidayat Al-Mujtahid: 421/2, Mughni Al-Muhtaj: 109/4, Al-Muhadhdhab: 318/2, Al-Mughni: 68/8, Kashaf Al-Qina’: 66/6]
Legitimacy: Hazrat Sulaiman bin Yasar (may Allah be pleased with him) narrates from an Ansari companion of the Prophet (peace be upon him) that:
أن النبى صلى الله عليه وسلم أقر القسامة على ما كانت عليه فى الجاهلية
“The Prophet (peace be upon him) maintained Qasamat as it was in the pre-Islamic period.”
[Muslim: 1670, Kitab Al-Qasama wal-Muharibin: Bab Al-Qasama, Ahmad: 62/4, Nasai: 4/8]
Form of Qasamat:
The form of Qasamat is that if a person is found murdered in a village or city and the killer is unknown, and there is no witness to the murder, but the heir of the murdered accuses a person or group of the killing, and the evidence against them is weak, and if the area where the murdered was found had enmity with them, then the heirs of the murdered will be ordered to take fifty oaths against them. If they take the oaths, they will be entitled to blood money (diyat) if the killing was accidental or doubtful intentional killing. If it was intentional killing, according to the early opinion of Imam Malik and Imam Shafi’i, and according to Imam Ahmad and Imam Ishaq, they will be liable for Qisas (retribution). However, according to the most authentic opinion of Imam Abu Hanifa and Imam Shafi’i, even in intentional killing, they will be entitled to take blood money.
If the heirs of the murdered refuse and avoid taking the oaths and withdraw, then those against whom they made the claim will be ordered to take oaths. They will swear that they neither committed the murder nor have knowledge of the killer. If they take the oaths, they will be acquitted and nothing will be obligatory upon them. But if they avoid taking the oaths and turn away, they will be obligated to pay the blood money.
[Sabil Al-Salam: 1621/3 – 1622, Fiqh Al-Sunnah: 79/3, Al-Rawdah Al-Nadiyyah: 669/2 – 670]
The consensus of the Companions and the Followers is that Qasamat is legitimate.
[Nil Al-Awtar: 474/4]
In the hadith of Hazrat Sahl bin Abi Hathmah (may Allah be pleased with him), the Prophet Muhammad (peace be upon him) said:
فتبر ئكم يهود بخمسين يمينا
“The Jews will acquit themselves from you with fifty oaths.”
[Muslim: 1669, Kitab Al-Qasama wal-Muharibin: Bab Al-Qasama, Bukhari: 6898, 6899, Abu Dawood: 4520, Tirmidhi: 1422, Nasai: 5/8, Ibn Majah: 2677]
The guardian of the murdered person will select those who will take the oath. If they refuse to take the oath, they will be liable to pay blood money, and if they take the oath, the blood money will be waived.
It is mentioned in the Hadith that the Prophet Muhammad (peace be upon him) maintained the pre-Islamic practice of Qasamah. The pre-Islamic Qasamah is that (in a long Hadith it is mentioned) if the killer was a specific person, then Abu Talib came to him and said:
اختر مـنـا إحدى ثلاث إن شئت أن تؤدى مائة من الإبل فإنك قتلت صاحبنا وإن شئت حلف خمسون من قومك إنك لم تقتله فإن أبيت قتلناك به
“Choose one of these three options: if you wish, pay blood money of one hundred camels because you have killed a man from our tribe; or if you wish, fifty men from your tribe can take an oath that you did not kill him. If you are not prepared for this, we will kill you in return.”
That person went to his tribe and they agreed to take the oath. Then a woman from Banu Hashim, who was married to a man from that tribe and had a child by him, came to Abu Talib. She said, “O Abu Talib! Please be kind and exempt my son from among those fifty men, and do not make him take the oath where oaths are taken (i.e., between the Rukn and Maqam Ibrahim).” Abu Talib excused him. After that, another man came and said, “O Abu Talib! Instead of one hundred camels, you have asked fifty men to take the oath. This means two camels per person. Accept these camels from me and do not force me to take the oath at the place where oaths are taken.” Abu Talib accepted this as well. Then the remaining forty-eight men took the oath.
Hazrat Ibn Abbas (may Allah be pleased with them) narrates, “By the One in Whose hand is my life! Not even one of those forty-eight men remained alive who could move his eye before a full year had passed from that incident.”
[Bukhari: 3845, Book of Virtues of the Ansar: Chapter on Qasamah in the Pre-Islamic Period, Nasa’i: 2/8]
The guardian of the murdered person will select those who will take the oath. If they refuse to take the oath, they will be liable to pay blood money, and if they take the oath, the blood money will be waived.
It is mentioned in the Hadith that the Prophet ﷺ maintained the pre-Islamic practice of Qasamah. The pre-Islamic Qasamah is that (in a long Hadith it is mentioned) if the killer was a specific person, then Abu Talib came to him and said:
اختر مـنـا إحدى ثلاث إن شئت أن تؤدى مائة من الإبل فإنك قتلت صاحبنا وإن شئت حلف خمسون من قومك إنك لم تقتله فإن أبيت قتلناك به
“Choose one of these three options: if you wish, pay one hundred camels as blood money because you have killed a man from our tribe; or if you wish, fifty men from your tribe can take an oath that you did not kill him; and if you are not prepared for this, we will kill you in return.”
That person went to his tribe and they agreed to take the oath. Then a woman from Banu Hashim, who was married to a man from that tribe and had a child by him, came to Abu Talib and said, “O Abu Talib! Please be kind and exempt my son from among those fifty men, and do not make him take the oath where oaths are taken (i.e., between the Rukn and Maqam Ibrahim).” Abu Talib excused her son. After that, another man came and said, “O Abu Talib! You have demanded an oath from fifty men instead of one hundred camels. This means two camels per person. Accept these camels from me and do not force me to take the oath where oaths are taken.” Abu Talib accepted this as well. Then the remaining forty-eight men took the oath.
Hazrat Ibn Abbas (may Allah be pleased with them) narrates, “By the One in Whose hand is my life! Not even one of those forty-eight men remained who could move his eye before a full year had passed from that incident.”
[Bukhari: 3845, Book of Virtues of the Ansar: Chapter on Qasamah in the Pre-Islamic Period, Nasa’i: 2/8]
If the matter becomes doubtful, compensation will be paid from the Bayt al-Mal.
Hazrat Suhail bin Abi Hathmah (may Allah be pleased with him) narrates from the elders of his tribe that Abdullah bin Suhail and Muhaysa bin Mas’ud set out towards Khyber due to their hardship. Muhaysa came and informed that Abdullah bin Suhail had been killed. Muhaysa came to the Jews and said, “By God! You people have killed him.” They replied, “By Allah! We have not killed him.” Then Muhaysa, his brother Huwaysah, and Abdur Rahman bin Mas’ud all came to the court of the Messenger of Allah (peace be upon him). When Muhaysa wanted to speak, the Messenger of Allah (peace be upon him) said: “Let the elder speak.” He meant that the one who is older in age among you should speak. So Huwaysah spoke, then Muhaysa spoke, and the Messenger of Allah (peace be upon him) said:
إما أن يدوا صاحبكم وإما أن ياذنوا بحرب
“Those people will either pay the blood money of your companion or prepare for war.”
Then in this matter, the Messenger of Allah (peace be upon him) wrote a letter to them, to which they replied, swearing by Allah that they had not killed him. After that, the Messenger of Allah (peace be upon him) said to Huwaysah, Muhaysa, and Abdur Rahman bin Suhail:
أتحلفون وتستحقون دم صاحبكم
“Will you swear and become entitled to your companion’s blood?”
They replied, no. Then the Messenger of Allah (peace be upon him) asked them:
فيحلف لكم يهود
“Will you take the oath of the Jews?”
They replied that they are not Muslims (so their oath is not credible). Then the Messenger of Allah (peace be upon him) paid the blood money from his own treasury (i.e., from the Bayt al-Mal) and sent them one hundred camels.
[Bukhari: 2702, 3173, Book of Jizyah and Truce: Chapter on Truce and Reconciliation with the Polytheists by Money, Muslim: 1669, Muwatta: 877/2, Abu Dawood: 4520, Tirmidhi: 1422]
(Siddiq Hasan Khan) The scholars have greatly differed regarding the condition of Qasamah (oath-taking), but what the text has stated is closest to the truth and more in accordance with Shariah principles.
[Al-Rawdah Al-Nadiyyah: 673/2]
Two weak narrations:
1. The Messenger of Allah (peace be upon him) saw a murder between two villages and ordered the distance between the villages to be measured. One side was one cubit closer, so he imposed the blood money on that side.
[Bayhaqi: 126/8, this narration is weak because Ismail bin Ishaq is a Rafidhi and a narrator who rejects hadith and is widely disparaged. Al-Majruhin: 124/1, Al-Du’afa Lil-‘Aqili: 75/1]
2. The narration that the Jews refused to take an oath, so the Messenger of Allah (peace be upon him) imposed the blood money on them, is weak.
[Nasb al-Rayah: 392/4, Al-Mukhtasar Lil-Mundhiri: 323/6]
❀ Qasamah is only for blood (murder).
[Bayhaqi: 122/8, Al-Fiqh Al-Islami wa Adillatuh: 5810/7]
❀ Hazrat Abu Bakr (may Allah be pleased with him), Hazrat Umar (may Allah be pleased with him), and the first generation did not kill anyone by Qasamah.
[Ibn Abi Shaybah: 444/5, 27832]
❀ (Majority, Shafi’i, Ahmad) The oath is first taken from the plaintiffs; if they deny, then the oath is taken from the defendants.
(The people of Kufa) Their belief is opposite to the majority.
[Al-Mughni: 191/12, Kashaf al-Qina’: 66/6, Bidayat al-Mujtahid: 426/2, Al-Um: 91/6, Bada’i’ al-Sana’i’: 4735/10, Nayl al-Awtar: 477/4, Tabyin al-Haqa’iq: 170/6]
(Preferred) The majority’s position is according to the hadith.
[For more details see: Bukhari: 7192]
For Qasamah, the presence of doubt or a sign is necessary
(Ibn Hajarؒ) It is agreed by all that Qasamah will not be obligatory based solely on the claim of the relatives unless there is some doubt.
[Fath al-Bari: 227/14]
(Jamhur, Maliki, Shafi’i, Hanbali) Qasamah will not occur without some doubt or sign.
[Al-Sharh al-Kabir: 287/4, Bidayat al-Mujtahid: 422/2, Mughni al-Muhtaj: 111/4, Nihayat al-Muhtaj: 105/7, Al-Muhadhdhab: 318/2, Al-Mughni: 68/8, Kashaf al-Qina’: 68/6, Al-Qawanin al-Fiqhiyyah: p. 349]
❀ The Hanafis have set seven conditions for Qasamah:
① There must be a sign of killing on the victim, such as a wound or mark of a blow, etc.
② The killer must be unknown.
③ The victim must be from the children of Adam (human), because Qasamah does not apply to animals.
④ The heirs of the victim must file a claim for judgment.
⑤ The defendant must deny the claim.
⑥ Demand for Qasamah must be made.
⑦ The place where the victim was found must be under the ownership or protection of a human.
[Bada’i’ al-Sana’i’: 287/7, Al-Kitab ma’a al-Libab: 173/3, Tabyin al-Haqa’iq: 171/6, Al-Durr al-Mukhtar: 443/5]
❀ According to some scholars, Qasamah is not established. Among them are Abu Qulabah, Hazrat Salim, Muhkam bin Utaybah, Imam Qatadah, Hazrat Sulayman, Ibrahim, Imam Muslim, Hazrat Umar bin Abdul Aziz (may Allah have mercy on them). According to them, Qasamah is not established because it contradicts the principles of Shariah, for example:
البينة على المدعى واليمين على من أنكر
There is a hadith that says, “The burden of proof is on the claimant and the oath is on the denier.” But in Qasamah, the claimant also swears oaths.
The response to this is that the hadith has specified Qasamah from the general evidences, and it cannot be disregarded. This is because it protects human lives and serves as deterrence and admonition for criminals. Saying that the Prophet ﷺ did not command it, so it is not lawful, is completely baseless because firstly, for an act to be lawful, the Prophet’s ﷺ command is not necessary; his practice alone suffices. Secondly, the fact that the Prophet ﷺ presented this matter to them saying, “Either they pay the blood money of your companion or prepare for war,” is evidence that it was lawful, and that is why he ﷺ said so.
[Nil al-Awtar: 475/4, Al-Fiqh al-Islami wa Adillatuh: 5810/7, Fiqh al-Sunnah: 82/3 – 83]
❀ In Qasamah, the oaths of non-Muslims are also accepted, as mentioned in Sahl’s hadith regarding the oaths of Jews.
[Bukhari: 2702]
