ource: Fiqhi Ruling and Iue in the Light of Quran and Hadith, Explanation of Qia and Crime: Volume 02: Page
All praie i due to Allah, and bleing and peace be upon the Meenger of Allah. To proceed!
Crime, plural of crime. It literal meaning i: to trangre againt omeone' body, property, or honor. The jurit have explained the legal iue related to bodily harm under the book of Al-Jinayat (Crime), while the other two type, i.e., harming omeone' property or honor, are mentioned under the title of the book of Hudood.
If a peron i phyically harmed, then Qia (retribution), Diyat (blood money), and Kaffara (expiation) become obligatory. All Mulim agree that unlawfully killing a Mulim i forbidden. The evidence for thi i preent in the Book and unnah.
Thu, Allah Almighty ay:
وَلا تَقتُلُوا النَّفسَ الَّتى حَرَّمَ اللَّهُ إِلّا بِالحَقِّ ...﴿٣٣﴾... سورةالإسراء
"And do not kill the oul which Allah ha forbidden, except by right."
Reference: Al-An'am: 6/151.
Alo, the Prophet Muhammad (peace be upon him) aid:
"لا يَحِلُّ دَمُ امْرِئٍ مُسْلِمٍ إِلاَّ بإِحْدَى ثَلاثٍ: الثَّيِّبُ الزَّانِيْ، وَالنَّفْسُ بِالنَّفْسِ، وَالتَّاركُ لِدِيْنِهِ المُفَارِقُ للجمَاعَةِ"
"The hedding of the blood of a Mulim peron i not permiible except for one who commit one of three type of in: a married peron who commit adultery, or one who kill omeone, or one who abandon the religion and eparate from the Mulim community."
Reference: ahih Mulim, Al-Qia, Chapter: Killing a Mulim? Hadith 1676.
Regarding the peron who unlawfully kill a Mulim, Allah Almighty ha ued very evere word:
﴿وَمَن يَقتُل مُؤمِنًا مُتَعَمِّدًا فَجَزاؤُهُ جَهَنَّمُ خـٰلِدًا فيها وَغَضِبَ اللَّهُ عَلَيهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذابًا عَظيمًا ﴿٩٣﴾... سورة النساء
"And whoever kill a believer intentionally, hi recompene i Hell, wherein he will abide eternally, and Allah ha become angry with him and ha cured him and ha prepared for him a great punihment."
Reference: An-Nia: 4/93.
The peron who unlawfully kill a Mulim i a inner, becaue he ha committed a major in, and hi matter i left to Allah Almighty, whether He punihe him or forgive him.
Allah Almighty ay:
﴿إِنَّ اللَّهَ لا يَغفِرُ أَن يُشرَكَ بِهِ وَيَغفِرُ ما دونَ ذٰلِكَ ...﴿٤٨﴾... سورة النساء
"Indeed, Allah doe not forgive aociating other with Him, but He forgive what i le than that for whom He will."
Reference: An-Nia: 4/48.
Thi punihment applie only if he doe not repent. If he repent, hi repentance will be accepted. Allah Almighty ay:
﴿قُل يـٰعِبادِىَ الَّذينَ أَسرَفوا عَلىٰ أَنفُسِهِم لا تَقنَطوا مِن رَحمَةِ اللَّهِ إِنَّ اللَّهَ يَغفِرُ الذُّنوبَ جَميعًا إِنَّهُ هُوَ الغَفورُ الرَّحيمُ ﴿٥٣﴾... سورة الزمر
"ay, O My ervant who have trangreed againt themelve [by inning], do not depair of the mercy of Allah. Indeed, Allah forgive all in. Indeed, it i He who i the Forgiving, the Merciful."
Reference: Az-Zumar: 39:53
It hould be noted that repentance doe not remove the right of the victim in the Hereafter againt the killer; rather, the victim will receive a hare from the killer’ good deed equivalent to the oppreion done to him, or Allah Almighty, by Hi pecial grace and mercy, may grant the victim a pecial reward and recompene on behalf of the killer.
Remember, the victim’ right to eek Qia (retribution) will alo not be terminated, becaue taking Qia i the right of the victim’ heir, which compenate for the hock and lo they have uffered.
Allama Ibn Qayyim, may Allah have mercy on him, ay:
"The reearched fact i that there are three right related to murder: the right of Allah Almighty, the right of the victim, and the right of the guardian. When the killer repent incerely and, out of fear of Allah Almighty, ubmit himelf to the guardian and make true repentance, then the right of Allah Almighty i waived. The right of the guardian are fulfilled by taking Qia (retribution), making a ettlement, or forgiving the killer. A for the right of the victim, Allah Almighty will compenate the victim on behalf of Hi repentant ervant (the killer) and will reconcile between them."
Reference: Al-Jawab Al-Kafi by Ibn Qayyim, pp. 207-208.
Type of Murder
According to mot cholar, there are three type of murder:
❀ Intentional murder
❀ Murder with doubtful intent
❀ Accidental murder
Intentional murder and accidental murder are mentioned in thi vere of the Holy Quran:
﴿وَما كانَ لِمُؤمِنٍ أَن يَقتُلَ مُؤمِنًا إِلّا خَطَـًٔا وَمَن قَتَلَ مُؤمِنًا خَطَـًٔا فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلىٰ أَهلِهِ إِلّا أَن يَصَّدَّقوا فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ وَإِن كانَ مِن قَومٍ بَينَكُم وَبَينَهُم ميثـٰقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلىٰ أَهلِهِ وَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ فَمَن لَم يَجِد فَصِيامُ شَهرَينِ مُتَتابِعَينِ تَوبَةً مِنَ اللَّهِ وَكانَ اللَّهُ عَليمًا حَكيمًا ﴿٩٢﴾ وَمَن يَقتُل مُؤمِنًا مُتَعَمِّدًا فَجَزاؤُهُ جَهَنَّمُ خـٰلِدًا فيها وَغَضِبَ اللَّهُ عَلَيهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذابًا عَظيمًا ﴿٩٣﴾... سورة النساء
"It i not befitting for a believer to kill another believer, except by mitake (then it i a different matter). Whoever kill a Mulim unintentionally mut free a believing lave and pay blood money to the heir of the deceaed. However, if thoe people forgive a charity, it i better. And if the deceaed belong to your enemy nation and i a Mulim, then it i only neceary to free one believing lave. And if the deceaed belong to a nation with whom you have a treaty, then blood money mut be paid to hi family, and freeing a believing lave i alo neceary. Whoever cannot afford thi mut fat for two conecutive month to eek forgivene from Allah. And Allah i All-Knowing, All-Wie. (92) And whoever kill a believer intentionally, hi punihment i Hell, wherein he will abide forever. Allah' wrath i upon him, He ha cured him, and ha prepared a great punihment for him."
Reference: An-Nia:4/92-93
However, the killing of doubt (قتل شبہ عمد) i etablihed from the pure unnah. Accordingly, in the narration of Amr bin hu'aib, the Meenger of Allah ﷺ aid:
"عَقْلُ شِبْهِ اَلْعَمْدِ مُغَلَّظٌ مِثْلُ عَقْلِ اَلْعَمْدِ, وَلَا يَقْتَلُ صَاحِبُهُ, وَذَلِكَ أَنْ يَنْزُوَ اَلشَّيْطَانُ, فَتَكُونُ دِمَاءٌ بَيْنَ اَلنَّاسِ فِي غَيْرِ ضَغِينَةٍ, وَلَا حَمْلِ سلاح "
"The blood money for the killing of doubt i a evere a that of intentional killing, but the killer will not be killed in retribution. The reaon i that atan intervene between two people, reulting in the killing, even though there wa no prior enmity between them and no weapon were drawn."
Reference: unan Abi Dawood, Al-Diyat, Chapter on Blood Money, Hadith: 6545. Munad Ahmad 2/183.
It i narrated from Abdullah bin Amr رضي الله تعالى عنه that the Meenger of Allah صلی اللہ علیہ وسلم aid that in ome cae, a killing that occur by mitake but reemble intentional killing i called "hubh 'amd" (doubtful intentional killing), for example: when a peron i killed by a whip or a tick. The blood money (diyah) for thi i one hundred camel, of which forty camel hould be pregnant.
Reference: unan Abi Dawood, Al-Diyat, Chapter on Diyah of Mitake and Doubtful Intentional Killing, Hadith 4547; unan An-Naa'i, Al-Qaamah, Chapter on How Much i the Diyah of Doubtful Intentional Killing? Hadith 4795; unan Ibn Majah, Al-Diyat, Chapter on the Diyah of evere Doubtful Intentional Killing, Hadith 2627.
Definition of Intentional Killing
Intentional killing i when the offender kill an innocent peron knowing that he i a human being, and ue uch a thing (intrument) with which it i highly likely that death will occur.
From thi definition, it i etablihed that any killing will be conidered intentional killing only when the following condition are met:
① The killer mut have the intention to kill.
② The killer mut know that the one he killed i a human being and in reality wa not guilty but innocent.
③ The weapon ued in the killing mut be uch that it can generally caue death, whether it i harp or blunt.
If even one of thee condition i not met, it will not be conidered intentional murder, becaue in the abence of intent, Qia (retribution) i not obligatory. If omeone i killed by a weapon that generally cannot caue death, it will be conidered accidental killing, i.e., it will be manlaughter, not intentional murder.
Nine Type of Intentional Murder
Through reearch and analyi, it ha been found that there are nine type of intentional murder:
① Inflicting a wound with a weapon that penetrate the body, uch a the blade of a knife or harp intrument. Imam Ibn Qudamah, may Allah have mercy on him, tate that there i no diagreement among cholar regarding thi type being intentional murder.
② To injure omeone with a heavy object, for example: a tone. If the tone i mall, in cae of death it will not be conidered intentional murder, unle the tone i thrown at a part of the body where injury caue death, or the peron i already extremely weak, for example: ick, a child, elderly, or weakened due to expoure to heat or cold, or if the mall tone i thrown repeatedly until death occur. imilarly, if omeone caue a wall to fall on a peron, or run over them with a vehicle, or puhe them from a height and they die, it i conidered intentional murder.
③ To throw omeone in front of a ferociou, bloodthirty animal, for example: a lion, nake, etc. Intentionally and deliberately throwing omeone in front of uch animal i equivalent to intentional murder.
④ To put omeone into fire or water from which it i impoible for them to ecape.
⑤ trangling omeone with a rope, etc., or blocking their noe and mouth to the extent that they die, i intentional murder.
⑥ Binding omeone or locking them in a room and not giving them food or drink until they die, i intentional murder.
⑦ Uing a method of magic that generally caue death, and the magician know that people die from it, i intentional murder.
⑧ Poioning omeone or deliberately mixing poion in food or drink and giving it to omeone, cauing their death, while the peron conuming it i unaware of the poion, i alo conidered intentional murder.
⑨ ome individual give fale tetimony accuing omeone of a crime punihable by death, uch a adultery, apotay, or murder, and becaue of their tetimony, the accued i killed. If then the witnee retract their tetimony and admit that they did it intentionally, all of them will be killed becaue they caued the killing.
Definition of Intentional Manlaughter
The jurit have defined intentional manlaughter a follow:
"omeone trike another peron with an object in order to punih or dicipline, which ordinarily would not caue death, but the peron die."
Thi type of crime i called intentional manlaughter becaue the perpetrator intended to punih, but did not intend to kill.
Ibn Ruhd, may Allah have mercy on him, ay:
"The peron who truck omeone with an object that doe not normally caue death, but the peron died, hi ruling i between intentional murder and accidental murder. It i intentional murder becaue hi intention wa to trike with a weapon, and it i alo accidental murder becaue hi intention wa not to kill."
Reference: Bidayat al-Mujtahid: 2/704.
Example and Ruling of Doubtful Intentionality
ome example of "doubtful intentionality" are:
◈ omeone wa whipped.
◈ truck with a mall tick, which normally doe not caue death.
◈ Punched or lapped.
◈ Headbutted.
If the peron die a a reult of thee ituation, it i conidered doubtful intentionality.
In thi cae, it become obligatory to pay expiation from the property of the offender, which i the freeing of a lave or a female lave. If he i not able to do thi, then it i obligatory to fat continuouly for two month, a i required in accidental killing. The blood money in intentional doubt (hubh 'amd) i heavier than that in accidental killing, a narrated from ayyiduna Abu Huraira, may Allah be pleaed with him, that two women from the Hazil tribe fought with each other, and one truck the other with a tone, cauing both the woman and the child in her womb to die. Then:
"وَقَضَى بِدِيَةِ الْمَرْأَةِ عَلَى عَاقِلَتِهَا"
"The Meenger of Allah, peace and bleing be upon him, ruled that the blood money of the woman be paid by the 'aabah (nearet male relative) of the woman who killed her."
Reference: ahih al-Bukhari, Al-Diyat, Chapter on the fetu of a woman and the intellect over the child, Hadith 6910. ahih Mulim, Al-Qiamah, Chapter on the blood money of the fetu, Hadith 1681.
From thi narration, it i etablihed that there i no qia (retribution) in intentional doubt killing, and alo that it blood money i upon the 'aqilah (nearet male relative) of the offender.
Ibn Mundhir, may Allah have mercy on him, tate:
"The cholar are unanimou on thi matter that the blood money i upon the 'aqilah."
And Ibn Qudamah, may Allah have mercy on him, alo aid the ame.
Definition of Accidental Killing
The jurit have defined accidental killing a follow:
"When a peron, while performing a lawful and permiible act, unintentionally kill or injure omeone by mitake, and then the peron die."
For example:
✔ He wa hooting at game.
✔ Or practicing target hooting.
✔ Or during war, a Mulim wa mitakenly killed thinking he wa a dibeliever.
Thi i conidered accidental killing.
If a child or a mentally ill peron kill intentionally, it i alo counted a accidental killing becaue intention i not involved in their action; therefore, their intentional killing i equivalent to accidental killing by a ane adult.
Killing caued indirectly i alo conidered accidental killing, for example: if omeone dug a well, or dug a pit on the road, or parked a vehicle on the road, and a a reult, a peron died.
Reference: The majority of cholar have declared the killing by a child or mentally ill peron or the one cauing "killing indirectly" a exempt from punihment, meaning nothing i obligatory upon them. For clarification on thi iue, ee "Tafheem al-Mawarith" (aarim).
Ruling on Accidental Killing
In the cae of accidental killing, the atonement will be paid from the property of the killer, and that i the freeing of a believing lave or maid. If that i not poible, then he hould fat for two conecutive month. The blood money will be paid by hi heir, that i, the male relative.
Whoever kill a Mulim in the rank of the dibeliever on the battlefield, mitaking him for a dibeliever, will only be required to perform atonement.
Allah Almighty' command i:
﴿وَما كانَ لِمُؤمِنٍ أَن يَقتُلَ مُؤمِنًا إِلّا خَطَـًٔا وَمَن قَتَلَ مُؤمِنًا خَطَـًٔا فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلىٰ أَهلِهِ إِلّا أَن يَصَّدَّقوا فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ وَإِن كانَ مِن قَومٍ بَينَكُم وَبَينَهُم ميثـٰقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلىٰ أَهلِهِ وَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ فَمَن لَم يَجِد فَصِيامُ شَهرَينِ مُتَتابِعَينِ تَوبَةً مِنَ اللَّهِ وَكانَ اللَّهُ عَليمًا حَكيمًا ﴿٩٢﴾... سورة النساء
"It i not befitting for a believer to kill another believer, except by mitake (then it i another matter). Whoever kill a Mulim unintentionally mut free a believing lave and pay blood money to the relative of the deceaed. However, if they forgive a charity, that i better. And if the deceaed belong to your enemy nation and i a Mulim, then it i obligatory to free only one believing lave. And if the deceaed belong to a nation with whom you have a treaty, then blood money mut be paid to their family, and freeing a believing lave i alo neceary. Whoever cannot afford thi mut fat for two conecutive month to eek forgivene from Allah. And Allah i All-Knowing, All-Wie."
Reference: An-Nia: 4/92.
Three Cae of Accidental Killing
Thi vere divide accidental killing into three cae:
① The cae in which expiation (kaffara) i obligatory on the killer a well a blood money (diyat) on hi 'aqila (relative).
Thi ituation occur when omeone unintentionally kill a believer in a place other than among the dibeliever, or the victim belong to uch a dibelieving nation with whom there i a treaty between them and u.
② The cae in which only expiation (kaffara) i obligatory on the killer (the freeing of a believing lave).
Thi ituation occur when a Mulim ee another Mulim tanding among the rank of dibeliever and, out of ignorance, mitake him for a dibeliever and kill him.
Imam hawkani, may Allah have mercy on him, in hi book "Tafir Fath al-Qadeer" on the vere:
﴿فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ ...﴿٩٢﴾... سورة النساء
In the exegei, it i written that the victim belong to uch an enemy nation who are hotile dibeliever, but he remained among them after becoming a Mulim and did not migrate. Mulim conider that he ha not accepted Ilam and remain teadfat in hi ancetral religion. If he i killed at ome occaion, then the killer will not be liable to pay blood money (diyat), but will intead free a believing lave or a believing female lave. Among the cholar, the point of difference here i: what i the reaon for the dimial of the blood money? One opinion i that the guardian of the victim are dibeliever, therefore they have no right in the blood money.
Reference: Tafeer Fath al-Qadeer, An-Nia: 4/92.
Allah Almighty ay:
﴿فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ ...﴿٩٢﴾... سورة النساء
"And thoe who have believed but did not emigrate - for you there i no guardianhip of them."
Reference: Al-Anfal 8/72.
Regarding thi, the third opinion i that the blood money of the victim will be paid and collected in the Bayt al-Mal (public treaury).
Reference: Tafeer Fath al-Qadeer, An-Nia: 4/92.
heikh al-Ilam Ibn Taymiyyah, may Allah have mercy on him, ay:
"Thi command of the noble vere i for that Mulim peron who i compelled and unable to live among dibeliever, for example: a prioner, or that Mulim who cannot leave the rank of the dibeliever and cannot migrate. However, uch a Mulim who tand among the dibeliever by hi own choice cannot be guaranteed, becaue he ha placed himelf in danger without any excue."
The Evidence for Diyah on the Intellect and It Widom
The evidence that the blood money (diyat) i obligatory on the killer' tribe (a'qilah) i the narration of ayyiduna Abu Hurairah رضي الله تعالى عنه that the Meenger of Allah صلی اللہ علیہ وسلم gave a ruling regarding the child of a woman from Banu Lahyan, who wa killed in her mother' womb, that a lave or a female lave hould be paid a compenation. Then it happened that the woman for whom the Meenger of Allah صلی اللہ علیہ وسلم had ruled the payment of a lave or female lave alo died, o the Meenger of Allah صلی اللہ علیہ وسلم aid:
"The inheritance of the deceaed woman will go to her on and huband. A for the remaining blood money, it will be paid by her (killer') a'qilah."
Reference: ahih al-Bukhari, Al-Fara'id, Chapter on Inheritance of Woman and Huband with Child, Hadith 6740 and ahih Mulim, Al-Qiamah, Chapter on Blood Money of the Fetu, Hadith 1618.
From thi noble hadith, it i clear that the blood money in accidental killing (khatā) i upon the a'qilah. There i conenu among the cholar on thi.
The widom in thi i that impoing diyat (blood money) on the peron who made the mitake caue great harm, becaue he did not intend to kill; the killing occurred merely by mitake, and mitake frequently happen to human. Placing the burden of hi mitake olely on him i a financial injutice.
imilarly, the life of the deceaed wa alo repected, therefore it compenation and reparation are alo neceary. If hi blood i declared free, it i a lo to hi heir, epecially to hi family. Therefore, the Lawgiver ha made diyat obligatory on thoe who are guardian and helper of the killer, o that they collectively ait in paying the diyat. Thi i imilar to giving food and utenance to a poor peron, or if omeone i a prioner, it i the duty of hi cloe relative to try to free him. If the killer die, the heir will alo be the 'aqilah, o now the burden of unintentional killing hould alo be borne by them. There i a famou proverb: "He who benefit mut alo pay the ranom." And Allah know bet.
Reaon for the reponibility of expiation on the killer
The burden of expiation on the killer i due to the following reaon:
① The deceaed life wa honorable.
② The killer' negligence i certainly involved in the murder; he i not exempt from it.
③ If the killer i not reponible for the blood money, then ome form of compenation hould be impoed on him, and thi i the burden of expiation.
There are many widom and conideration in making the reponible for paying the blood money and impoing expiation on the killer. Allah Almighty, who i Great and upreme, ha taken great care of the religiou and worldly interet and benefit of Hi ervant.
Who i not included in
The following individual are not included in :
◈ lave
◈ Child
◈ Poor peron
◈ Inane peron
◈ Woman
◈ Peron of another religion
Becaue thee individual are not conidered among thoe who provide help and upport.
Time period for payment of blood money
The blood money for unintentional murder mut be paid within three year. The ruler hould aign to each of the killer the portion of the blood money that i within their capacity, and firt place the reponibility on the cloet to the killer; if they are not available, then impoe the burden on thoe further away.
heikh al-Ilam Ibn Taymiyyah, may Allah have mercy on him, ay:
"When it i expedient to take blood money quickly, the heir hould not be given delay in payment of the blood money, rather it hould be received in cah."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Diyat 5/525.
Ruling of Qia
In the cae of intentional murder, when the condition are complete, there i conenu among cholar on the legitimacy of Qia. Allah Almighty ay:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا كُتِبَ عَلَيكُمُ القِصاصُ فِى القَتلَى الحُرُّ بِالحُرِّ وَالعَبدُ بِالعَبدِ وَالأُنثىٰ بِالأُنثىٰ ... ﴿١٧٨﴾... سورة البقرة
"O you who have believed, precribed for you i legal retribution for thoe murdered - the free for the free, the lave for the lave, and the female for the female."
Reference: Al-Baqarah:2/178.
Alo, it i tated:
﴿وَكَتَبنا عَلَيهِم فيها أَنَّ النَّفسَ بِالنَّفسِ...﴿٤٥﴾... سورة المائدة
"And We ordained for them in the Torah: 'Life for life.'"
Reference: Al-Ma'idah:5/45.
Thi command of the Holy Quran wa alo in the Torah. Remember, every ruling of the previou hariah i applicable to u a well, except that which our hariah ha abrogated.
Regarding Qia, the Divine command i:
﴿وَلَكُم فِى القِصاصِ حَيوٰةٌ يـٰأُولِى الأَلبـٰبِ لَعَلَّكُم تَتَّقونَ ﴿١٧٩﴾... سورة البقرة
"O you who have intellect! There i life for you in Qia, o that you may become righteou."
Reference: Al-Baqarah:2/179.
Imam hawkani, may Allah have mercy on him, write while interpreting the above vere:
"Allah Almighty ha preerved life for you in Qia (retribution). The reaon i that when a peron know that if he kill omeone, he can alo be killed in retribution, he will refrain from killing. imilarly, when every peron think thi way, the door to killing in ociety will be cloed, and thu every peron will be granted life. Allah Almighty ha expreed a lengthy ubject here in an eloquent and concie manner. The point of eloquence here i that Allah ha called Qia life, although outwardly it i a form of death. The reaon i that a a reult of it, people refrain from killing one another, thu their live are preerved. Then, in thi command, the addre i directed toward the people of intellect, becaue they are the one who look at conequence and outcome and protect themelve from harmful matter and action. But ignorant, paionate, and emotional people, who are carried away by their emotion, do not care about the future conequence and outcome."
Reference: Tafir al-Qadeer Al-Baqarah: 2/179.
A a poet ay:
سَأَغْسِلُ عَنِّي الْعَارَ بِالسَّيْفِ جَالِبًا
عَلَيَّ قَضَاءُ اللَّهِ مَا كَانَ جَالِبَا
"I will wah away the hame and inult about myelf with a word, while I am applying Allah' decree upon myelf, whatever He enforce, o be it."
I will wah away the hame of the world with my word
I do not care for every blow of fate
Then Allah Almighty explained the reaon for the command of Qia (retribution) for Hi ervant a: "لَعَلَّكُمْ تَتَّقُونَ" meaning, if you keep Qia in mind, you will refrain from killing, and thi lead to the attainment of Taqwa (piety).
Reference: Tafeer Al-Qadeer Al-Baqarah: 2/179.
The Authority of Qia, Diyat, and Forgivene
It i narrated in the unnah of the Prophet that the one who take Qia ha the authority to:
✔ Take Qia
✔ Accept Diyat (blood money)
✔ Forgive the killer without compenation
And thi lat option i the bet.
It i narrated from ayyiduna Abu Hurairah (may Allah be pleaed with him) that the Prophet (peace be upon him) aid:
" مَنْ قُتِلَ لَهُ قَتِيلٌ ، فَهُوَ بِخَيْرِ النَّظَرَيْنِ إِمَّا أَنْ يُعْطِيَ الدِّيَةَ ، وَإِمَّا أَنْ يُقَادَ أَهْلُ الْقَتِيلِ " . وَقِيلَ : إِمَّا أَنْ يُؤَدِّيَ ، وَإِمَّا أَنْ يُقَادَ"
"Whoever ha a peron killed ha the authority to either accept blood money or demand retribution."
Reference: ahih al-Bukhari, Al-Diyat, Chapter: Whoever ha a killer, he ha two option, Hadith 6880. ahih Mulim, Hajj, Chapter: Prohibition of Mecca and it hunting and grazing, Hadith 1355.
Allah Almighty ay:
﴿فَمَن عُفِىَ لَهُ مِن أَخيهِ شَىءٌ فَاتِّباعٌ بِالمَعروفِ وَأَداءٌ إِلَيهِ بِإِحسـٰنٍ ...﴿١٧٨﴾... سورةالبقرة
"Ye! Whoever i forgiven by hi brother, he hould follow goodne and pay the blood money in a good manner."
Reference: Al-Baqarah: 2/178.
Alo, it i tated:
﴿وَأَن تَعْفُوا أَقْرَبُ لِلتَّقْوَىٰ ۚ ﴾
"And your forgivene i nearer to piety."
Reference: Al-Baqarah: 2/237.
In the narration of ayyiduna Abu Hurairah (may Allah be pleaed with him), the Prophet (peace be upon him) aid:
"ولا عفا رجل عن مظلمة يبتغي بها وجه الله إلا زاده الله بها عزاً"
"Whoever forgive the oppreion of hi Mulim brother, Allah will increae hi honor."
Reference: ahih Mulim, Al-Birr wa al-ilah, Chapter: The recommendation of forgivene and humility, Hadith 2588; Munad Ahmad 2/235, and the wording i hi.
When forgivene i not appropriate
heikh al-Ilam Ibn Taymiyyah, may Allah have mercy on him, ay:
"It i not correct to forgive omeone who kill by deceit, becaue it i difficult to protect oneelf from uch a peron, jut a one i not forgiven if they kill in a tate of rebellion. In normal circumtance, it i better to forgive intead of taking Qia (retribution), provided that no corruption or harm reult from it."
Qadi Abu Ya'la, may Allah have mercy on him, tated another cae:
"If omeone kill the Imam or Amir of the Mulim, it i obligatory to execute the killer a Qia, becaue the corruption and diorder preent in thi cae are clear."
Ibn Qayyim, may Allah have mercy on him, conidering the incident of the tribe of Arniyyin, tated that the one who kill omeone by deceit hould be executed by applying the punihment of (Hudood), meaning that killing him through thi act i a punihment, which cannot be waived off through forgivene, and equality i not neceary in thi cae. Thi i the practice of the people of Madinah. There i alo a narration from Imam Ahmad, may Allah have mercy on him, that align with thi view, while heikh al-Ilam, may Allah have mercy on him, adopted thi and iued a fatwa accordingly.
Four Fundamental Condition for the Right to Qia
The guardian of the victim ha the right to demand Qia (retribution) only when four condition are met:
① The victim wa killed unlawfully and without jutification.
If the killing i lawful, then there i no right to Qia. For example: if a Mulim kill a non-Mulim enemy combatant, or an apotate who ha not repented, or a fornicator, then Qia will not be taken from the killer. However, the killer will certainly be punihed for not eeking a ruling from the authority.
② The killer mut be ane and adult.
Becaue Qia i an important and evere punihment, it i not applied to a child or a mad peron, a their action do not involve intent and purpoe, nor do they have a clear and correct objective in mind. Alo, becaue the Meenger of Allah, peace be upon him, aid:
"رُفِعَ الْقَلَمُ عَنْ ثلاثة: عن الصَّبِى حَتَّى يَبْلُغَ، وَعَنِ النَّائِمِ حَتَّى يَسْتَيْقِظَ، وَعَنِ الْمَجْنُونِ حَتَّى يُفِيقَ"
"Three peron are exempted from punihment: the leeper until he wake up, the child until he reache puberty, and the inane until he regain anity."
Reference: unan Abi Dawood, Hudood chapter on the inane tealing or receiving Hudood, Hadith 4403 and Al-Talkhee Al-Jayyid 1/183, Hadith 253.
Ibn Qudamah, may Allah have mercy on him, ha narrated the conenu of the cholar on thi point.
③ At the time of the crime, the victim and the killer mut be of equal tatu.
That i, they mut be equal in being Mulim, free or lave, meaning the killer hould not be uperior to the victim in Ilam or freedom. Therefore, a Mulim cannot be killed in retaliation for a non-Mulim, becaue the Meenger of Allah, peace be upon him, aid:
"لَا يُقْتَلَ مُسْلِمٌ بِكَافِرٍ"
"No Mulim hould be killed in exchange for a dibeliever."
Reference: ahih al-Bukhari, Knowledge, Chapter on the Book of Knowledge, Hadith 111 and unan Abi Dawood with the wording (No believer i killed....) Al-Diyat, Chapter on killing a Mulim intead of a dibeliever? Hadith 4530.
imilarly, a free peron will not be killed in exchange for a killed lave. Thu, it i narrated from ayyiduna Ali, may Allah be pleaed with him:
"مِنْ السُّنَّةِ أَنْ لَا يُقْتَلَ حُرٌّ بِعَبْدٍ "
"It i part of the unnah that a free peron i not killed in exchange for a lave."
Reference: (Weak) unan al-Daraqutni 3/133 Hadith 3227 and Wara' al-Ghalil 7/26 Hadith 2211.
One reaon for thi i that when the victim i not equal to the killer, the heir of the victim killing the killer i equivalent to taking more than their right.
Apart from the above criterion, no uperiority between the killer and the victim will have any effect; therefore, a beautiful peron will be killed in exchange for an ugly peron. imilarly, there will be no difference or ditinction in Qia between the honorable and the dihonorable, the elder and the younger, or a man and a woman, or the intelligent and the le intelligent, becaue Allah Almighty ay:
﴿وَكَتَبنا عَلَيهِم فيها أَنَّ النَّفسَ بِالنَّفسِ...﴿٤٥﴾... سورة المائدة
"And We ordained for the Children of Irael in the Torah that whoever kill a peron — unle in retribution for murder or preading corruption in the land — it i a if he had killed all mankind."
Reference: Al-Ma'idah: 5/45.
Alo, the Divine command i:
"الْحُرُّ بِالْحُرِّ"
"Freedom of retaliation for the free (i precribed a Qia)"
Reference: Al-Baqarah:2/178.
④ The killer hould not be the father.
Meaning the victim hould not be the on, grandon, daughter, granddaughter, etc. of the killer. If parent or grandparent kill one of their children, they will not be killed in Qia, becaue the Prophet Muhammad (peace be upon him) aid:
" لَا يُقْتَلُ وَالِدٌ بِوَلَدِهِ "
"The father hould not be killed in retaliation for the children."
Reference: Jami' at-Tirmidhi, Al-Diyat, chapter on whether a man i killed for hi on or not? Hadith 1401. And unan Ibn Majah, Al-Diyat, chapter on the father not being killed for hi child, Hadith 2662.
Ibn Abdul Barr (may Allah have mercy on him) ay:
"Thi narration i well-known and famou among the cholar of Hadith in Hijaz and Iraq."
From thi Hadith and other Hadith with the ame meaning, the generality of the text that precribe the obligation of Qia i retricted, and thi i the view of the majority of cholar. However, it i correct to kill the children in retaliation for the parent, becaue there i generality in Allah' command:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا كُتِبَ عَلَيكُمُ القِصاصُ فِى القَتلَى...﴿١٧٨﴾... سورةو البقرة
"O you who have believed! Precribed for you i legal retribution for the lain."
Reference: Al-Baqarah:2/178.
It hould be noted that if a father kill hi child, there i a reaon in Qia not to kill him, a mentioned earlier, therefore the father i exempted.
When thee four condition are preent, the heir of the victim have the right to eek Qia.
The purpoe of the legitimacy of Qia from Allah Almighty i to how mercy and compaion to people and to protect their live, a Allah Almighty ay:
﴿وَلَكُم فِى القِصاصِ حَيوٰةٌ يـٰأُولِى الأَلبـٰبِ لَعَلَّكُم تَتَّقونَ ﴿١٧٩﴾... سورة البقرة
"O you who have intellect! There i life for you in Qia, o that you may retrain yourelve (from unlawful killing)."
Reference: Al-Baqarah: 2/179.
Cured be thoe people who ay that Qia (retribution) i a avage and cruel punihment. uch people neither undertand nor ee how the criminal, by exhibiting avagery and cruelty, attempted to kill an innocent peron, tried to create fear and terror in the city, widowed many women, orphaned the children of the victim, and devatated and affected many home. In reality, thee people pity the oppreor and have no ympathy for the innocent and oppreed. One can only feel orrow for the mindet of uch people.
﴿أَفَحُكمَ الجـٰهِلِيَّةِ يَبغونَ وَمَن أَحسَنُ مِنَ اللَّهِ حُكمًا لِقَومٍ يوقِنونَ ﴿٥٠﴾... سورةالمائدة
"Do thee people then deire the judgment of ignorance? And who i better in judgment than Allah for a people who have firm faith?"
Reference: Al-Ma'idah: 5/50.
In Qia, the criminal i given a punihment equivalent to or imilar to the crime they committed. The widom behind thi i that by taking Qia, the paion and anger of the oppreed or their heir are cooled down, their heart are atified, oppreion i prevented, the torm riing in the heart and mind i controlled, and importantly, the implementation of the Qia ytem enure the urvival of humanity.
In the era of ignorance, exceive meaure were taken in revenge. One form of thi wa that often, along with the criminal, innocent people were alo punihed. Thi wa an injutice that did not achieve it purpoe but rather increaed dicord and bloodhed. When Ilam came, it introduced the ytem of Qia along with other ruling and clarified that Qia hould only be taken from the guilty.
Thee ruling brought jutice and fairne to the people, topped bloodhed, and peace and tranquility bloomed in ociety.
Three Additional Condition for the Heir Taking Qia
Qia will be obligatory only when the mentioned condition are preent. Additionally, the jurit have mentioned a few more condition that mut be preent in the heir demanding Qia, and they are three:
① The one demanding Qia mut be ane and adult.
If he i a child or inane, then in that cae, demanding Qia will not be correct for him, becaue taking Qia provide atifaction and olace to the victim or the victim' heir for their feeling of revenge, and thi atifaction i not attained by a child or an inane peron. Therefore, the implementation of Qia hould be potponed, and the criminal hould be kept in prion until the child become an adult or the inane peron recover.
In a narration, it i mentioned that ayyiduna Muawiyah رضي الله تعالى عنه kept Hudbah bin Khahram in prion until the on of the murdered peron reached adulthood. Thi incident took place during the time of the Companion رضي الله عنهم أجمعين, and no one objected to it. Therefore, the conenu of the Companion رضي الله عنهم أجمعين during the era of ayyiduna Muawiyah رضي الله تعالى عنه i etablihed on thi iue.
If the heir of the murdered peron i a child or a mentally ill peron, and they need utenance, then only the guardian of the mentally ill hould accept the blood money (diyat) for their upbringing, becaue it i unknown when the inane peron will become ane, and it i alo poible that they may never become ane. There i no doubt about whether the child reache adulthood or not.
② Thoe who have the right to take Qia mut all agree to take Qia.
That i, they hould not have two opinion, becaue thi i a right that i hared and cannot be divided. Therefore, if ome heir take their right in the form of Qia, they will interfere with the right of other heir to take Diyat or forgive, which they do not have the authority to do.
If any of thoe entitled to Qia i abent, or a minor, or inane, then waiting will be done until the abent peron become preent, the child become an adult, and the inane recover. If any peron entitled to Qia die, hi heir will be hi ubtitute. If any one of thoe who have the right to Qia forgive, then Qia will not be taken from the criminal.
All relative and caual heir hare in the right to Qia, whether they are men or women, elder or minor. ome cholar hold the opinion that the right to forgive belong only to the 'Aabah (cloet male relative). Thi i the view of Imam Malik, may Allah have mercy on him. A imilar narration i alo found from Imam Ahmad, may Allah have mercy on him. heikh al-Ilam Ibn Taymiyyah, may Allah have mercy on him, preferred thi opinion.
③ In the cae of Qia, pecial care hould be taken that no harm i done to the one who i not guilty.
Becaue Allah Almighty ay:
﴿ وَمَن قُتِلَ مَظلومًا فَقَد جَعَلنا لِوَلِيِّهِ سُلطـٰنًا فَلا يُسرِف فِى القَتلِ إِنَّهُ كانَ مَنصورًا ﴿٣٣﴾... سورة الإسراء
"And whoever i killed unjutly, We have given hi heir authority, but let him not exceed limit in [the matter of] taking life. Indeed, he ha been upported [by the law]."
Reference: Al-Ira 17:33
When there i exce in Qia, according to the vere, it i "Iraf" (exceivene), which the noble vere forbid.
The ruling of Qia for a pregnant woman
If it become obligatory to take Qia from a pregnant woman, or if he become pregnant after Qia ha become obligatory, then he hall not be killed until he give birth, becaue killing her would alo kill the child in her womb, who i innocent. Allah Almighty ay:
﴿وَلَا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَىٰ﴾
"No bearer of burden will bear the burden of another."
Reference: Al-Ira: 17:15.
After the child i born, it will be een whether arrangement can be made to breatfeed the child. If arrangement are made, the child will be handed over to that peron and the woman will be killed, becaue now there i no obtacle to Qia. If arrangement cannot be made to breatfeed the child, the punihment of the woman will be potponed for two year, until the child top breatfeeding.
The Prophet Muhammad (peace be upon him) aid:
"إِذَا قَتَلَت الْمَرْأَة عَمْداً فَلَا تَقْتُل حَتَّى تَضَع مَا فِي بَطْنِهَا إِن كَانَت حَامِلَاً وَحَتَّى تُكَفِّل وَلَدَهَا وَإِن زَنَت لَم تُرْجَم حَتَّى تَضَع مَا فِي بَطْنِهَا وَحَتَّى تُكَفِّل وَلَدَهَا"
"If a woman intentionally kill omeone, he hall not be killed until he give birth to the child in her womb and take care of the child. imilarly, if he commit adultery, he hall not be toned while pregnant until he give birth to the child and take care of the child."
Reference: (Weak) unan Ibn Majah, Al-Diyat, Chapter: The Pregnant Woman Mut Be Given Time, Hadith: 2694.
"ارْجِعِي حَتَّى تَضَعِي مَا فِي بَطْنِكِ"
"Then go back until you give birth to the child in your womb."
Reference: Thi i the meaning of the hadith connected in ahih Mulim, Al-Hudud, Chapter: One Who Confee to Adultery, Hadith 1695.
Then after the child i born, he wa told:
"ارجعي حتى ترضيعه"
"Then go back until you have fully nured the child."
Reference: ame ource a above.
From the above two hadith and the Quranic vere, it i clear that due to pregnancy, a woman cannot be executed in Qia until he give birth to the child. There i conenu among cholar on thi matter.
Alo, from thee ruling, the perfection of Ilamic hariah become clear, a it how how much care ha been taken for the child in the womb, protecting it from every kind of pain and harm, even delaying the punihment to ave it life, and then arranging for it maintenance. We are grateful to Allah Almighty for the hariah that encompae the interet and benefit of the ervant.
Method of Taking Qia
When the time come to take Qia from omeone, it i neceary that thi be done under the uperviion of the ruler or hi deputy, o that there i no exce in the deciion of Qia and the requirement of hariah are fulfilled.
For taking Qia, a harp-edged weapon hould be ued, uch a a word or knife, etc. The Prophet Muhammad (peace be upon him) aid:
"فإذا قتلتم فأحسنوا القتلة"
"When you kill, kill well."
Reference: ahih Mulim, Al-ayd, Chapter on the matter of good laughter and killing and pecifying the blade, Hadith 1955.
A blunt intrument hould not be ued for taking Qia, becaue thi i equivalent to exce in Qia, which i prohibited.
If the guardian of the deceaed can take Qia in a hariah-compliant and proper manner, then it i fine; otherwie, the ruler will order the guardian of the deceaed to appoint omeone a an agent to take Qia on hi behalf.
The correct opinion of the cholar i that when taking Qia from the criminal, the ame method hould be ued that the criminal ued, becaue Allah Almighty ay:
﴿وَإِن عاقَبتُم فَعاقِبوا بِمِثلِ ما عوقِبتُم بِهِ ...﴿١٢٦﴾... سورة النحل
"And if you retaliate, retaliate with an equivalent of that with which you were harmed."
Reference: An-Nahl:16:126
Alo, Allah Almighty ay:
﴿فَمَنِ اعتَدىٰ عَلَيكُم فَاعتَدوا عَلَيهِ بِمِثلِ مَا اعتَدىٰ عَلَيكُم ...﴿١٩٤﴾... سورة البقرة
"o whoever trangree againt you, you may trangre againt him in the ame way that he trangreed againt you."
Reference: Al-Baqarah:2/194
In a hadith, the Meenger of Allah (peace be upon him) ordered that the Jew' head be cruhed with tone in the ame way he had cruhed the head of an Anari girl.
Reference: ahih al-Bukhari, Al-Haumat, Chapter on What i Mentioned Regarding Peron and Dipute Between Mulim and Jew, Hadith 2413
Imam Ibn Qayyim, may Allah have mercy on him, ay:
"The demand of hariah and jutice i that the criminal hould be treated a he treated other. The Book of Allah, the unnah of the Meenger of Allah ﷺ, and the practice of the noble Companion, may Allah be pleaed with them all, are unanimou on thi."
If a criminal cut off omeone' hand and then kill him, the punihment of Qia (retribution) will be applied in the ame manner. If he kill with a tone, or by drowning in water, or by any other mean, the criminal will alo be killed in the ame way. However, in the mentioned cae, if the heir conent to killing only by word, he ha the choice, and thi i alo preferable.
If a peron kill omeone through the commiion of an unlawful act, he will be killed with the word. In today' time, killing omeone by hooting i equivalent to killing with the word, provided the hooter i a good markman.
