Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Explanation of Qisas and Crimes: Volume 02: Page
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
Crimes, plural of crime. Its literal meaning is: to transgress against someone's body, property, or honor. The jurists have explained the legal issues related to bodily harm under the book of Al-Jinayat (Crimes), while the other two types, i.e., harming someone's property or honor, are mentioned under the title of the book of Hudood.
If a person is physically harmed, then Qisas (retribution), Diyat (blood money), and Kaffara (expiation) become obligatory. All Muslims agree that unlawfully killing a Muslim is forbidden. The evidence for this is present in the Book and Sunnah.
Thus, Allah Almighty says:
وَلا تَقتُلُوا النَّفسَ الَّتى حَرَّمَ اللَّهُ إِلّا بِالحَقِّ ...﴿٣٣﴾... سورةالإسراء
"And do not kill the soul which Allah has forbidden, except by right."
Reference: Al-An'am: 6/151.
Also, the Prophet Muhammad (peace be upon him) said:
"لا يَحِلُّ دَمُ امْرِئٍ مُسْلِمٍ إِلاَّ بإِحْدَى ثَلاثٍ: الثَّيِّبُ الزَّانِيْ، وَالنَّفْسُ بِالنَّفْسِ، وَالتَّاركُ لِدِيْنِهِ المُفَارِقُ للجمَاعَةِ"
"The shedding of the blood of a Muslim person is not permissible except for one who commits one of three types of sins: a married person who commits adultery, or one who kills someone, or one who abandons the religion and separates from the Muslim community."
Reference: Sahih Muslim, Al-Qisas, Chapter: Killing a Muslim? Hadith 1676.
Regarding the person who unlawfully kills a Muslim, Allah Almighty has used very severe words:
﴿وَمَن يَقتُل مُؤمِنًا مُتَعَمِّدًا فَجَزاؤُهُ جَهَنَّمُ خـٰلِدًا فيها وَغَضِبَ اللَّهُ عَلَيهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذابًا عَظيمًا ﴿٩٣﴾... سورة النساء
"And whoever kills a believer intentionally, his recompense is Hell, wherein he will abide eternally, and Allah has become angry with him and has cursed him and has prepared for him a great punishment."
Reference: An-Nisa: 4/93.
The person who unlawfully kills a Muslim is a sinner, because he has committed a major sin, and his matter is left to Allah Almighty, whether He punishes him or forgives him.
Allah Almighty says:
﴿إِنَّ اللَّهَ لا يَغفِرُ أَن يُشرَكَ بِهِ وَيَغفِرُ ما دونَ ذٰلِكَ ...﴿٤٨﴾... سورة النساء
"Indeed, Allah does not forgive associating others with Him, but He forgives what is less than that for whom He wills."
Reference: An-Nisa: 4/48.
This punishment applies only if he does not repent. If he repents, his repentance will be accepted. Allah Almighty says:
﴿قُل يـٰعِبادِىَ الَّذينَ أَسرَفوا عَلىٰ أَنفُسِهِم لا تَقنَطوا مِن رَحمَةِ اللَّهِ إِنَّ اللَّهَ يَغفِرُ الذُّنوبَ جَميعًا إِنَّهُ هُوَ الغَفورُ الرَّحيمُ ﴿٥٣﴾... سورة الزمر
"Say, O My servants who have transgressed against themselves [by sinning], do not despair of the mercy of Allah. Indeed, Allah forgives all sins. Indeed, it is He who is the Forgiving, the Merciful."
Reference: Az-Zumar: 39:53
It should be noted that repentance does not remove the right of the victim in the Hereafter against the killer; rather, the victim will receive a share from the killer’s good deeds equivalent to the oppression done to him, or Allah Almighty, by His special grace and mercy, may grant the victim a special reward and recompense on behalf of the killer.
Remember, the victim’s right to seek Qisas (retribution) will also not be terminated, because taking Qisas is the right of the victim’s heirs, which compensates for the shock and loss they have suffered.
Allama Ibn Qayyim, may Allah have mercy on him, says:
"The researched fact is that there are three rights related to murder: the right of Allah Almighty, the right of the victim, and the right of the guardian. When the killer repents sincerely and, out of fear of Allah Almighty, submits himself to the guardian and makes true repentance, then the right of Allah Almighty is waived. The rights of the guardians are fulfilled by taking Qisas (retribution), making a settlement, or forgiving the killer. As for the right of the victim, Allah Almighty will compensate the victim on behalf of His repentant servant (the killer) and will reconcile between them."
Reference: Al-Jawab Al-Kafi by Ibn Qayyim, pp. 207-208.
Types of Murder
According to most scholars, there are three types of murder:
❀ Intentional murder
❀ Murder with doubtful intent
❀ Accidental murder
Intentional murder and accidental murder are mentioned in this verse 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 is not befitting for a believer to kill another believer, except by mistake (then it is a different matter). Whoever kills a Muslim unintentionally must free a believing slave and pay blood money to the heirs of the deceased. However, if those people forgive as charity, it is better. And if the deceased belongs to your enemy nation and is a Muslim, then it is only necessary to free one believing slave. And if the deceased belongs to a nation with whom you have a treaty, then blood money must be paid to his family, and freeing a believing slave is also necessary. Whoever cannot afford this must fast for two consecutive months to seek forgiveness from Allah. And Allah is All-Knowing, All-Wise. (92) And whoever kills a believer intentionally, his punishment is Hell, wherein he will abide forever. Allah's wrath is upon him, He has cursed him, and has prepared a great punishment for him."
Reference: An-Nisa:4/92-93
However, the killing of doubt (قتل شبہ عمد) is established from the pure Sunnah. Accordingly, in the narration of Amr bin Shu'aib, the Messenger of Allah ﷺ said:
"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 is as severe as that of intentional killing, but the killer will not be killed in retribution. The reason is that Satan intervenes between two people, resulting in the killing, even though there was no prior enmity between them and no weapons were drawn."
Reference: Sunan Abi Dawood, Al-Diyat, Chapter on Blood Money, Hadith: 6545. Musnad Ahmad 2/183.
It is narrated from Abdullah bin Amr رضي الله تعالى عنه that the Messenger of Allah صلی اللہ علیہ وسلم said that in some cases, a killing that occurs by mistake but resembles intentional killing is called "shubh 'amd" (doubtful intentional killing), for example: when a person is killed by a whip or a stick. The blood money (diyah) for this is one hundred camels, of which forty camels should be pregnant.
Reference: Sunan Abi Dawood, Al-Diyat, Chapter on Diyah of Mistake and Doubtful Intentional Killing, Hadith 4547; Sunan An-Nasa'i, Al-Qasamah, Chapter on How Much is the Diyah of Doubtful Intentional Killing? Hadith 4795; Sunan Ibn Majah, Al-Diyat, Chapter on the Diyah of Severe Doubtful Intentional Killing, Hadith 2627.
Definition of Intentional Killing
Intentional killing is when the offender kills an innocent person knowing that he is a human being, and uses such a thing (instrument) with which it is highly likely that death will occur.
From this definition, it is established that any killing will be considered intentional killing only when the following conditions are met:
① The killer must have the intention to kill.
② The killer must know that the one he killed is a human being and in reality was not guilty but innocent.
③ The weapon used in the killing must be such that it can generally cause death, whether it is sharp or blunt.
If even one of these conditions is not met, it will not be considered intentional murder, because in the absence of intent, Qisas (retribution) is not obligatory. If someone is killed by a weapon that generally cannot cause death, it will be considered accidental killing, i.e., it will be manslaughter, not intentional murder.
Nine Types of Intentional Murder
Through research and analysis, it has been found that there are nine types of intentional murder:
① Inflicting a wound with a weapon that penetrates the body, such as the blade of a knife or sharp instruments. Imam Ibn Qudamah, may Allah have mercy on him, states that there is no disagreement among scholars regarding this type being intentional murder.
② To injure someone with a heavy object, for example: a stone. If the stone is small, in case of death it will not be considered intentional murder, unless the stone is thrown at a part of the body where injury causes death, or the person is already extremely weak, for example: sick, a child, elderly, or weakened due to exposure to heat or cold, or if the small stone is thrown repeatedly until death occurs. Similarly, if someone causes a wall to fall on a person, or runs over them with a vehicle, or pushes them from a height and they die, it is considered intentional murder.
③ To throw someone in front of a ferocious, bloodthirsty animal, for example: a lion, snake, etc. Intentionally and deliberately throwing someone in front of such animals is equivalent to intentional murder.
④ To put someone into fire or water from which it is impossible for them to escape.
⑤ Strangling someone with a rope, etc., or blocking their nose and mouth to the extent that they die, is intentional murder.
⑥ Binding someone or locking them in a room and not giving them food or drink until they die, is intentional murder.
⑦ Using a method of magic that generally causes death, and the magician knows that people die from it, is intentional murder.
⑧ Poisoning someone or deliberately mixing poison in food or drink and giving it to someone, causing their death, while the person consuming it is unaware of the poison, is also considered intentional murder.
⑨ Some individuals give false testimony accusing someone of a crime punishable by death, such as adultery, apostasy, or murder, and because of their testimony, the accused is killed. If then the witnesses retract their testimony and admit that they did it intentionally, all of them will be killed because they caused the killing.
Definition of Intentional Manslaughter
The jurists have defined intentional manslaughter as follows:
"Someone strikes another person with an object in order to punish or discipline, which ordinarily would not cause death, but the person dies."
This type of crime is called intentional manslaughter because the perpetrator intended to punish, but did not intend to kill.
Ibn Rushd, may Allah have mercy on him, says:
"The person who struck someone with an object that does not normally cause death, but the person died, his ruling is between intentional murder and accidental murder. It is intentional murder because his intention was to strike with a weapon, and it is also accidental murder because his intention was not to kill."
Reference: Bidayat al-Mujtahid: 2/704.
Examples and Ruling of Doubtful Intentionality
Some examples of "doubtful intentionality" are:
◈ Someone was whipped.
◈ Struck with a small stick, which normally does not cause death.
◈ Punched or slapped.
◈ Headbutted.
If the person dies as a result of these situations, it is considered doubtful intentionality.
In this case, it becomes obligatory to pay expiation from the property of the offender, which is the freeing of a slave or a female slave. If he is not able to do this, then it is obligatory to fast continuously for two months, as is required in accidental killing. The blood money in intentional doubt (shubh 'amd) is heavier than that in accidental killing, as narrated from Sayyiduna Abu Huraira, may Allah be pleased with him, that two women from the Hazil tribe fought with each other, and one struck the other with a stone, causing both the woman and the child in her womb to die. Then:
"وَقَضَى بِدِيَةِ الْمَرْأَةِ عَلَى عَاقِلَتِهَا"
"The Messenger of Allah, peace and blessings be upon him, ruled that the blood money of the woman be paid by the 'asabah (nearest male relatives) of the woman who killed her."
Reference: Sahih al-Bukhari, Al-Diyat, Chapter on the fetus of a woman and the intellect over the child, Hadith 6910. Sahih Muslim, Al-Qisamah, Chapter on the blood money of the fetus, Hadith 1681.
From this narration, it is established that there is no qisas (retribution) in intentional doubt killing, and also that its blood money is upon the 'aqilah (nearest male relatives) of the offender.
Ibn Mundhir, may Allah have mercy on him, states:
"The scholars are unanimous on this matter that the blood money is upon the 'aqilah."
And Ibn Qudamah, may Allah have mercy on him, also said the same.
Definition of Accidental Killing
The jurists have defined accidental killing as follows:
"When a person, while performing a lawful and permissible act, unintentionally kills or injures someone by mistake, and then the person dies."
For example:
✔ He was shooting at game.
✔ Or practicing target shooting.
✔ Or during war, a Muslim was mistakenly killed thinking he was a disbeliever.
This is considered accidental killing.
If a child or a mentally ill person kills intentionally, it is also counted as accidental killing because intention is not involved in their actions; therefore, their intentional killing is equivalent to accidental killing by a sane adult.
Killing caused indirectly is also considered accidental killing, for example: if someone dug a well, or dug a pit on the road, or parked a vehicle on the road, and as a result, a person died.
Reference: The majority of scholars have declared the killing by a child or mentally ill person or the one causing "killing indirectly" as exempt from punishment, meaning nothing is obligatory upon them. For clarification on this issue, see "Tafheem al-Mawarith" (Saarim).
Ruling on Accidental Killing
In the case of accidental killing, the atonement will be paid from the property of the killer, and that is the freeing of a believing slave or maid. If that is not possible, then he should fast for two consecutive months. The blood money will be paid by his heirs, that is, the male relatives.
Whoever kills a Muslim in the ranks of the disbelievers on the battlefield, mistaking him for a disbeliever, will only be required to perform atonement.
Allah Almighty's command is: __ARABIC_N__
﴿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 is not befitting for a believer to kill another believer, except by mistake (then it is another matter). Whoever kills a Muslim unintentionally must free a believing slave and pay blood money to the relatives of the deceased. However, if they forgive as charity, that is better. And if the deceased belongs to your enemy nation and is a Muslim, then it is obligatory to free only one believing slave. And if the deceased belongs to a nation with whom you have a treaty, then blood money must be paid to their family, and freeing a believing slave is also necessary. Whoever cannot afford this must fast for two consecutive months to seek forgiveness from Allah. And Allah is All-Knowing, All-Wise."
Reference: An-Nisa: 4/92.
Three Cases of Accidental Killing
This verse divides accidental killing into three cases:
① The case in which expiation (kaffara) is obligatory on the killer as well as blood money (diyat) on his 'aqila (relatives).
This situation occurs when someone unintentionally kills a believer in a place other than among the disbelievers, or the victim belongs to such a disbelieving nation with whom there is a treaty between them and us.
② The case in which only expiation (kaffara) is obligatory on the killer (the freeing of a believing slave).
This situation occurs when a Muslim sees another Muslim standing among the ranks of disbelievers and, out of ignorance, mistakes him for a disbeliever and kills him.
Imam Shawkani, may Allah have mercy on him, in his book "Tafsir Fath al-Qadeer" on the verse:
﴿فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ ...﴿٩٢﴾... سورة النساء
In the exegesis, it is written that the victim belongs to such an enemy nation who are hostile disbelievers, but he remained among them after becoming a Muslim and did not migrate. Muslims consider that he has not accepted Islam and remains steadfast in his ancestral religion. If he is killed at some occasion, then the killer will not be liable to pay blood money (diyat), but will instead free a believing slave or a believing female slave. Among the scholars, the point of difference here is: what is the reason for the dismissal of the blood money? One opinion is that the guardians of the victim are disbelievers, therefore they have no right in the blood money.
Reference: Tafseer Fath al-Qadeer, An-Nisa: 4/92.
Allah Almighty says:
﴿فَإِن كانَ مِن قَومٍ عَدُوٍّ لَكُم وَهُوَ مُؤمِنٌ فَتَحريرُ رَقَبَةٍ مُؤمِنَةٍ ...﴿٩٢﴾... سورة النساء
"And those who have believed but did not emigrate - for you there is no guardianship of them."
Reference: Al-Anfal 8/72.
Regarding this, the third opinion is that the blood money of the victim will be paid and collected in the Bayt al-Mal (public treasury).
Reference: Tafseer Fath al-Qadeer, An-Nisa: 4/92.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says:
"This command of the noble verse is for that Muslim person who is compelled and unable to live among disbelievers, for example: a prisoner, or that Muslim who cannot leave the ranks of the disbelievers and cannot migrate. However, such a Muslim who stands among the disbelievers by his own choice cannot be guaranteed, because he has placed himself in danger without any excuse."
The Evidence for Diyah on the Intellect and Its Wisdom
The evidence that the blood money (diyat) is obligatory on the killer's tribe (a'qilah) is the narration of Sayyiduna Abu Hurairah رضي الله تعالى عنه that the Messenger of Allah صلی اللہ علیہ وسلم gave a ruling regarding the child of a woman from Banu Lahyan, who was killed in her mother's womb, that a slave or a female slave should be paid as compensation. Then it happened that the woman for whom the Messenger of Allah صلی اللہ علیہ وسلم had ruled the payment of a slave or female slave also died, so the Messenger of Allah صلی اللہ علیہ وسلم said:
"The inheritance of the deceased woman will go to her sons and husband. As for the remaining blood money, it will be paid by her (killer's) a'qilah."
Reference: Sahih al-Bukhari, Al-Fara'id, Chapter on Inheritance of Woman and Husband with Child, Hadith 6740 and Sahih Muslim, Al-Qisamah, Chapter on Blood Money of the Fetus, Hadith 1618.
From this noble hadith, it is clear that the blood money in accidental killing (khatā) is upon the a'qilah. There is consensus among the scholars on this.
The wisdom in this is that imposing diyat (blood money) on the person who made the mistake causes great harm, because he did not intend to kill; the killing occurred merely by mistake, and mistakes frequently happen to humans. Placing the burden of his mistake solely on him is a financial injustice.
Similarly, the life of the deceased was also respected, therefore its compensation and reparation are also necessary. If his blood is declared free, it is a loss to his heirs, especially to his family. Therefore, the Lawgiver has made diyat obligatory on those who are guardians and helpers of the killer, so that they collectively assist in paying the diyat. This is similar to giving food and sustenance to a poor person, or if someone is a prisoner, it is the duty of his close relatives to try to free him. If the killer dies, the heirs will also be the 'aqilah, so now the burden of unintentional killing should also be borne by them. There is a famous proverb: "He who benefits must also pay the ransom." And Allah knows best.
Reasons for the responsibility of expiation on the killer
The burden of expiation on the killer is due to the following reasons:
① The deceased life was honorable.
② The killer's negligence is certainly involved in the murder; he is not exempt from it.
③ If the killer is not responsible for the blood money, then some form of compensation should be imposed on him, and this is the burden of expiation.
There are many wisdoms and considerations in making the __ARABIC_N__ responsible for paying the blood money and imposing expiation on the killer. Allah Almighty, who is Great and Supreme, has taken great care of the religious and worldly interests and benefits of His servants.
Who is not included in __ARABIC_N__
The following individuals are not included in __ARABIC_N__ (__ARABIC_N__):
◈ Slave
◈ Child
◈ Poor person
◈ Insane person
◈ Woman
◈ Person of another religion
Because these individuals are not considered among those who provide help and support.
Time period for payment of blood money
The blood money for unintentional murder must be paid within three years. The ruler should assign to each __ARABIC_N__ of the killer the portion of the blood money that is within their capacity, and first place the responsibility on the closest __ARABIC_N__ to the killer; if they are not available, then impose the burden on those further away.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says:
"When it is expedient to take blood money quickly, the heirs should not be given delay in payment of the blood money, rather it should be received in cash."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Diyat 5/525.
Rulings of Qisas
In the case of intentional murder, when the conditions are complete, there is consensus among scholars on the legitimacy of Qisas. Allah Almighty says:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا كُتِبَ عَلَيكُمُ القِصاصُ فِى القَتلَى الحُرُّ بِالحُرِّ وَالعَبدُ بِالعَبدِ وَالأُنثىٰ بِالأُنثىٰ ... ﴿١٧٨﴾... سورة البقرة
"O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female."
Reference: Al-Baqarah:2/178.
Also, it is stated:
﴿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.
This command of the Holy Quran was also in the Torah. Remember, every ruling of the previous Shariah is applicable to us as well, except that which our Shariah has abrogated.
Regarding Qisas, the Divine command is:
﴿وَلَكُم فِى القِصاصِ حَيوٰةٌ يـٰأُولِى الأَلبـٰبِ لَعَلَّكُم تَتَّقونَ ﴿١٧٩﴾... سورة البقرة
"O you who have intellect! There is life for you in Qisas, so that you may become righteous."
Reference: Al-Baqarah:2/179.
Imam Shawkani, may Allah have mercy on him, writes while interpreting the above verse:
"Allah Almighty has preserved life for you in Qisas (retribution). The reason is that when a person knows that if he kills someone, he can also be killed in retribution, he will refrain from killing. Similarly, when every person thinks this way, the door to killing in society will be closed, and thus every person will be granted life. Allah Almighty has expressed a lengthy subject here in an eloquent and concise manner. The point of eloquence here is that Allah has called Qisas life, although outwardly it is a form of death. The reason is that as a result of it, people refrain from killing one another, thus their lives are preserved. Then, in this command, the address is directed towards the people of intellect, because they are the ones who look at consequences and outcomes and protect themselves from harmful matters and actions. But ignorant, passionate, and emotional people, who are carried away by their emotions, do not care about the future consequences and outcomes."
Reference: Tafsir al-Qadeer Al-Baqarah: 2/179.
As a poet says:
سَأَغْسِلُ عَنِّي الْعَارَ بِالسَّيْفِ جَالِبًا
عَلَيَّ قَضَاءُ اللَّهِ مَا كَانَ جَالِبَا
"I will wash away the shame and insults about myself with a sword, while I am applying Allah's decree upon myself, whatever He enforces, so be it."
I will wash away the shame of the world with my sword
I do not care for every blow of fate
Then Allah Almighty explained the reason for the command of Qisas (retribution) for His servants as: "لَعَلَّكُمْ تَتَّقُونَ" meaning, if you keep Qisas in mind, you will refrain from killing, and this leads to the attainment of Taqwa (piety).
Reference: Tafseer Al-Qadeer Al-Baqarah: 2/179.
The Authority of Qisas, Diyat, and Forgiveness
It is narrated in the Sunnah of the Prophet that the one who takes Qisas has the authority to:
✔ Take Qisas
✔ Accept Diyat (blood money)
✔ Forgive the killer without compensation
And this last option is the best.
It is narrated from Sayyiduna Abu Hurairah (may Allah be pleased with him) that the Prophet (peace be upon him) said:
" مَنْ قُتِلَ لَهُ قَتِيلٌ ، فَهُوَ بِخَيْرِ النَّظَرَيْنِ إِمَّا أَنْ يُعْطِيَ الدِّيَةَ ، وَإِمَّا أَنْ يُقَادَ أَهْلُ الْقَتِيلِ " . وَقِيلَ : إِمَّا أَنْ يُؤَدِّيَ ، وَإِمَّا أَنْ يُقَادَ"
"Whoever has a person killed has the authority to either accept blood money or demand retribution."
Reference: Sahih al-Bukhari, Al-Diyat, Chapter: Whoever has a killer, he has two options, Hadith 6880. Sahih Muslim, Hajj, Chapter: Prohibition of Mecca and its hunting and grazing, Hadith 1355.
Allah Almighty says:
﴿فَمَن عُفِىَ لَهُ مِن أَخيهِ شَىءٌ فَاتِّباعٌ بِالمَعروفِ وَأَداءٌ إِلَيهِ بِإِحسـٰنٍ ...﴿١٧٨﴾... سورةالبقرة
"Yes! Whoever is forgiven by his brother, he should follow goodness and pay the blood money in a good manner."
Reference: Al-Baqarah: 2/178.
Also, it is stated:
﴿وَأَن تَعْفُوا أَقْرَبُ لِلتَّقْوَىٰ ۚ ﴾
"And your forgiveness is nearer to piety."
Reference: Al-Baqarah: 2/237.
In the narration of Sayyiduna Abu Hurairah (may Allah be pleased with him), the Prophet (peace be upon him) said:
"ولا عفا رجل عن مظلمة يبتغي بها وجه الله إلا زاده الله بها عزاً"
"Whoever forgives the oppression of his Muslim brother, Allah will increase his honor."
Reference: Sahih Muslim, Al-Birr wa al-Silah, Chapter: The recommendation of forgiveness and humility, Hadith 2588; Musnad Ahmad 2/235, and the wording is his.
When forgiveness is not appropriate
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says:
"It is not correct to forgive someone who kills by deceit, because it is difficult to protect oneself from such a person, just as one is not forgiven if they kill in a state of rebellion. In normal circumstances, it is better to forgive instead of taking Qisas (retribution), provided that no corruption or harm results from it."
Qadi Abu Ya'la, may Allah have mercy on him, stated another case:
"If someone kills the Imam or Amir of the Muslims, it is obligatory to execute the killer as Qisas, because the corruption and disorder present in this case are clear."
Ibn Qayyim, may Allah have mercy on him, considering the incident of the tribe of Arniyyin, stated that the one who kills someone by deceit should be executed by applying the punishment of __ARABIC_N__ (Hudood), meaning that killing him through this act is a __ARABIC_N__ punishment, which cannot be waived off through forgiveness, and equality is not necessary in this case. This is the practice of the people of Madinah. There is also a narration from Imam Ahmad, may Allah have mercy on him, that aligns with this view, while Sheikh al-Islam, may Allah have mercy on him, adopted this and issued a fatwa accordingly.
Four Fundamental Conditions for the Right to Qisas
The guardian of the victim has the right to demand Qisas (retribution) only when four conditions are met:
① The victim was killed unlawfully and without justification.
If the killing is lawful, then there is no right to Qisas. For example: if a Muslim kills a non-Muslim enemy combatant, or an apostate who has not repented, or a fornicator, then Qisas will not be taken from the killer. However, the killer will certainly be punished for not seeking a ruling from the authority.
② The killer must be sane and adult.
Because Qisas is an important and severe punishment, it is not applied to a child or a mad person, as their actions do not involve intent and purpose, nor do they have a clear and correct objective in mind. Also, because the Messenger of Allah, peace be upon him, said:
"رُفِعَ الْقَلَمُ عَنْ ثلاثة: عن الصَّبِى حَتَّى يَبْلُغَ، وَعَنِ النَّائِمِ حَتَّى يَسْتَيْقِظَ، وَعَنِ الْمَجْنُونِ حَتَّى يُفِيقَ"
"Three persons are exempted from punishment: the sleeper until he wakes up, the child until he reaches puberty, and the insane until he regains sanity."
Reference: Sunan Abi Dawood, Hudood chapter on the insane stealing or receiving Hudood, Hadith 4403 and Al-Talkhees Al-Jayyid 1/183, Hadith 253.
Ibn Qudamah, may Allah have mercy on him, has narrated the consensus of the scholars on this point.
③ At the time of the crime, the victim and the killer must be of equal status.
That is, they must be equal in being Muslim, free or slave, meaning the killer should not be superior to the victim in Islam or freedom. Therefore, a Muslim cannot be killed in retaliation for a non-Muslim, because the Messenger of Allah, peace be upon him, said:
"لَا يُقْتَلَ مُسْلِمٌ بِكَافِرٍ"
"No Muslim should be killed in exchange for a disbeliever."
Reference: Sahih al-Bukhari, Knowledge, Chapter on the Book of Knowledge, Hadith 111 and Sunan Abi Dawood with the wording (No believer is killed....) Al-Diyat, Chapter on killing a Muslim instead of a disbeliever? Hadith 4530.
Similarly, a free person will not be killed in exchange for a killed slave. Thus, it is narrated from Sayyiduna Ali, may Allah be pleased with him:
"مِنْ السُّنَّةِ أَنْ لَا يُقْتَلَ حُرٌّ بِعَبْدٍ "
"It is part of the Sunnah that a free person is not killed in exchange for a slave."
Reference: (Weak) Sunan al-Daraqutni 3/133 Hadith 3227 and Wara' al-Ghalil 7/26 Hadith 2211.
One reason for this is that when the victim is not equal to the killer, the heirs of the victim killing the killer is equivalent to taking more than their right.
Apart from the above criterion, no superiority between the killer and the victim will have any effect; therefore, a beautiful person will be killed in exchange for an ugly person. Similarly, there will be no difference or distinction in Qisas between the honorable and the dishonorable, the elder and the younger, or a man and a woman, or the intelligent and the less intelligent, because Allah Almighty says:
﴿وَكَتَبنا عَلَيهِم فيها أَنَّ النَّفسَ بِالنَّفسِ...﴿٤٥﴾... سورة المائدة
"And We ordained for the Children of Israel in the Torah that whoever kills a person — unless in retribution for murder or spreading corruption in the land — it is as if he had killed all mankind."
Reference: Al-Ma'idah: 5/45.
Also, the Divine command is:
"الْحُرُّ بِالْحُرِّ"
"Freedom of retaliation for the free (is prescribed as Qisas)"
Reference: Al-Baqarah:2/178.
④ The killer should not be the father.
Meaning the victim should not be the son, grandson, daughter, granddaughter, etc. of the killer. If parents or grandparents kill one of their children, they will not be killed in Qisas, because the Prophet Muhammad (peace be upon him) said:
" لَا يُقْتَلُ وَالِدٌ بِوَلَدِهِ "
"The father should not be killed in retaliation for the children."
Reference: Jami' at-Tirmidhi, Al-Diyat, chapter on whether a man is killed for his son or not? Hadith 1401. And Sunan Ibn Majah, Al-Diyat, chapter on the father not being killed for his child, Hadith 2662.
Ibn Abdul Barr (may Allah have mercy on him) says:
"This narration is well-known and famous among the scholars of Hadith in Hijaz and Iraq."
From this Hadith and other Hadiths with the same meaning, the generality of the texts that prescribe the obligation of Qisas is restricted, and this is the view of the majority of scholars. However, it is correct to kill the children in retaliation for the parents, because there is generality in Allah's command:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا كُتِبَ عَلَيكُمُ القِصاصُ فِى القَتلَى...﴿١٧٨﴾... سورةو البقرة
"O you who have believed! Prescribed for you is legal retribution for the slain."
Reference: Al-Baqarah:2/178.
It should be noted that if a father kills his child, there is a reason in Qisas not to kill him, as mentioned earlier, therefore the father is exempted.
When these four conditions are present, the heirs of the victim have the right to seek Qisas.
The purpose of the legitimacy of Qisas from Allah Almighty is to show mercy and compassion to people and to protect their lives, as Allah Almighty says:
﴿وَلَكُم فِى القِصاصِ حَيوٰةٌ يـٰأُولِى الأَلبـٰبِ لَعَلَّكُم تَتَّقونَ ﴿١٧٩﴾... سورة البقرة
"O you who have intellect! There is life for you in Qisas, so that you may restrain yourselves (from unlawful killing)."
Reference: Al-Baqarah: 2/179.
Cursed be those people who say that Qisas (retribution) is a savage and cruel punishment. Such people neither understand nor see how the criminal, by exhibiting savagery and cruelty, attempted to kill an innocent person, tried to create fear and terror in the city, widowed many women, orphaned the children of the victim, and devastated and affected many homes. In reality, these people pity the oppressor and have no sympathy for the innocent and oppressed. One can only feel sorrow for the mindset of such people.
﴿أَفَحُكمَ الجـٰهِلِيَّةِ يَبغونَ وَمَن أَحسَنُ مِنَ اللَّهِ حُكمًا لِقَومٍ يوقِنونَ ﴿٥٠﴾... سورةالمائدة
"Do these people then desire the judgment of ignorance? And who is better in judgment than Allah for a people who have firm faith?"
Reference: Al-Ma'idah: 5/50.
In Qisas, the criminal is given a punishment equivalent to or similar to the crime they committed. The wisdom behind this is that by taking Qisas, the passion and anger of the oppressed or their heirs are cooled down, their hearts are satisfied, oppression is prevented, the storm rising in the heart and mind is controlled, and importantly, the implementation of the Qisas system ensures the survival of humanity.
In the era of ignorance, excessive measures were taken in revenge. One form of this was that often, along with the criminal, innocent people were also punished. This was an injustice that did not achieve its purpose but rather increased discord and bloodshed. When Islam came, it introduced the system of Qisas along with other rulings and clarified that Qisas should only be taken from the guilty.
These rulings brought justice and fairness to the people, stopped bloodshed, and peace and tranquility blossomed in society.
Three Additional Conditions for the Heir Taking Qisas
Qisas will be obligatory only when the mentioned conditions are present. Additionally, the jurists have mentioned a few more conditions that must be present in the heir demanding Qisas, and they are three:
① The one demanding Qisas must be sane and adult.
If he is a child or insane, then in that case, demanding Qisas will not be correct for him, because taking Qisas provides satisfaction and solace to the victim or the victim's heirs for their feelings of revenge, and this satisfaction is not attained by a child or an insane person. Therefore, the implementation of Qisas should be postponed, and the criminal should be kept in prison until the child becomes an adult or the insane person recovers.
In a narration, it is mentioned that Sayyiduna Muawiyah رضي الله تعالى عنه kept Hudbah bin Khashram in prison until the son of the murdered person reached adulthood. This incident took place during the time of the Companions رضي الله عنهم أجمعين, and no one objected to it. Therefore, the consensus of the Companions رضي الله عنهم أجمعين during the era of Sayyiduna Muawiyah رضي الله تعالى عنه is established on this issue.
If the heir of the murdered person is a child or a mentally ill person, and they need sustenance, then only the guardian of the mentally ill should accept the blood money (diyat) for their upbringing, because it is unknown when the insane person will become sane, and it is also possible that they may never become sane. There is no doubt about whether the child reaches adulthood or not.
② Those who have the right to take Qisas must all agree to take Qisas.
That is, they should not have two opinions, because this is a right that is shared and cannot be divided. Therefore, if some heirs take their right in the form of Qisas, they will interfere with the rights of other heirs to take Diyat or forgive, which they do not have the authority to do.
If any of those entitled to Qisas is absent, or a minor, or insane, then waiting will be done until the absent person becomes present, the child becomes an adult, and the insane recovers. If any person entitled to Qisas dies, his heir will be his substitute. If any one of those who have the right to Qisas forgives, then Qisas will not be taken from the criminal.
All relative and causal heirs share in the right to Qisas, whether they are men or women, elders or minors. Some scholars hold the opinion that the right to forgive belongs only to the 'Asabah (closest male relatives). This is the view of Imam Malik, may Allah have mercy on him. A similar narration is also found from Imam Ahmad, may Allah have mercy on him. Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, preferred this opinion.
③ In the case of Qisas, special care should be taken that no harm is done to the one who is not guilty.
Because Allah Almighty says:
﴿ وَمَن قُتِلَ مَظلومًا فَقَد جَعَلنا لِوَلِيِّهِ سُلطـٰنًا فَلا يُسرِف فِى القَتلِ إِنَّهُ كانَ مَنصورًا ﴿٣٣﴾... سورة الإسراء
"And whoever is killed unjustly, We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law]."
Reference: Al-Isra 17:33
When there is excess in Qisas, according to the verse, it is "Israf" (excessiveness), which the noble verse forbids.
The ruling of Qisas for a pregnant woman
If it becomes obligatory to take Qisas from a pregnant woman, or if she becomes pregnant after Qisas has become obligatory, then she shall not be killed until she gives birth, because killing her would also kill the child in her womb, who is innocent. Allah Almighty says:
﴿وَلَا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَىٰ﴾
"No bearer of burdens will bear the burden of another."
Reference: Al-Isra: 17:15.
After the child is born, it will be seen whether arrangements can be made to breastfeed the child. If arrangements are made, the child will be handed over to that person and the woman will be killed, because now there is no obstacle to Qisas. If arrangements cannot be made to breastfeed the child, the punishment of the woman will be postponed for two years, until the child stops breastfeeding.
The Prophet Muhammad (peace be upon him) said:
"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 kills someone, she shall not be killed until she gives birth to the child in her womb and takes care of the child. Similarly, if she commits adultery, she shall not be stoned while pregnant until she gives birth to the child and takes care of the child."
Reference: (Weak) Sunan Ibn Majah, Al-Diyat, Chapter: The Pregnant Woman Must 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: This is the meaning of the hadith connected in Sahih Muslim, Al-Hudud, Chapter: One Who Confesses to Adultery, Hadith 1695.
Then after the child is born, she was told:
"ارجعي حتى ترضيعه"
"Then go back until you have fully nursed the child."
Reference: Same source as above.
From the above two hadiths and the Quranic verse, it is clear that due to pregnancy, a woman cannot be executed in Qisas until she gives birth to the child. There is consensus among scholars on this matter.
Also, from these rulings, the perfection of Islamic Shariah becomes clear, as it shows how much care has been taken for the child in the womb, protecting it from every kind of pain and harm, even delaying the punishment to save its life, and then arranging for its maintenance. We are grateful to Allah Almighty for the Shariah that encompasses the interests and benefits of the servants.
Method of Taking Qisas
When the time comes to take Qisas from someone, it is necessary that this be done under the supervision of the ruler or his deputy, so that there is no excess in the decision of Qisas and the requirements of Shariah are fulfilled.
For taking Qisas, a sharp-edged weapon should be used, such as a sword or knife, etc. The Prophet Muhammad (peace be upon him) said:
"فإذا قتلتم فأحسنوا القتلة"
"When you kill, kill well."
Reference: Sahih Muslim, Al-Sayd, Chapter on the matter of good slaughter and killing and specifying the blade, Hadith 1955.
A blunt instrument should not be used for taking Qisas, because this is equivalent to excess in Qisas, which is prohibited.
If the guardian of the deceased can take Qisas in a Shariah-compliant and proper manner, then it is fine; otherwise, the ruler will order the guardian of the deceased to appoint someone as an agent to take Qisas on his behalf.
The correct opinion of the scholars is that when taking Qisas from the criminal, the same method should be used that the criminal used, because Allah Almighty says:
﴿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
Also, Allah Almighty says:
﴿فَمَنِ اعتَدىٰ عَلَيكُم فَاعتَدوا عَلَيهِ بِمِثلِ مَا اعتَدىٰ عَلَيكُم ...﴿١٩٤﴾... سورة البقرة
"So whoever transgresses against you, you may transgress against him in the same way that he transgressed against you."
Reference: Al-Baqarah:2/194
In a hadith, the Messenger of Allah (peace be upon him) ordered that the Jew's head be crushed with stones in the same way he had crushed the head of an Ansari girl.
Reference: Sahih al-Bukhari, Al-Hasumat, Chapter on What is Mentioned Regarding Persons and Disputes Between Muslims and Jews, Hadith 2413
Imam Ibn Qayyim, may Allah have mercy on him, says:
"The demand of Shariah and justice is that the criminal should be treated as he treated others. The Book of Allah, the Sunnah of the Messenger of Allah ﷺ, and the practices of the noble Companions, may Allah be pleased with them all, are unanimous on this."
If a criminal cuts off someone's hand and then kills him, the punishment of Qisas (retribution) will be applied in the same manner. If he kills with a stone, or by drowning in water, or by any other means, the criminal will also be killed in the same way. However, in the mentioned cases, if the heir consents to killing only by sword, he has the choice, and this is also preferable.
If a person kills someone through the commission of an unlawful act, he will be killed with the sword. In today's time, killing someone by shooting is equivalent to killing with the sword, provided the shooter is a good marksman.
