Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Explanation of Qisas and Crimes: Volume 02: Page 384
The Ruling of Qisas in Limbs and Wounds
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
Taking Qisas (retribution) for bodily limbs and wounds is established by the Book, Sunnah, and consensus. Allah Almighty says:
﴿وَكَتَبنا عَلَيهِم فيها أَنَّ النَّفسَ بِالنَّفسِ وَالعَينَ بِالعَينِ وَالأَنفَ بِالأَنفِ وَالأُذُنَ بِالأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالجُروحَ قِصاصٌ ...﴿٤٥﴾... سورة المائدة
"And We ordained for the Children of Israel in the Scripture that whoever kills a soul unless for a soul or for corruption [done] in the land - it is as if he had slain mankind entirely. And whoever saves one - it is as if he had saved mankind entirely."
Reference: Al-Ma'idah: 5:45.
(Note: The original Arabic verse in the source is from Surah Al-Ma'idah 5:45, which states the law of Qisas for life and specific injuries.)
In the two Sahihs, the incident of Sayyida Rabi'ah (may Allah be pleased with her) having her tooth broken is mentioned, in which the Prophet (peace be upon him) said:
"كِتَابُ اللَّهِ القِصَاصُ"
"The law of Qisas is in the Book of Allah."
Reference: Sahih al-Bukhari, Al-Sulh, Chapter on Reconciliation in Blood Money, Hadith 2703; and Sahih Muslim, Al-Qisamah, Chapter on Affirming Qisas for Teeth and What is Related, Hadith 1675.
If it is correct to take Qisas for the life of a person, then it is also correct to take Qisas for limbs and wounds, provided the following conditions are met:
① The person who has been wounded or had a limb cut off must be innocent.
② The perpetrator of the crime must be accountable.
③ The oppressed and the perpetrator must be equal in terms of freedom and slavery, and the perpetrator must not be his father, grandfather, or maternal grandfather.
It is not permissible to take retribution from a person whose life cannot be taken; similarly, it is not permissible to take retribution for wounds or cutting off limbs from such a person. This rule applies in this chapter as well. For example: if a father kills or wounds his son, there will be no retribution.
The cases that make retribution for life obligatory are the same cases that make retribution for limbs obligatory. That is, the perpetrator must have intentionally committed the crime. Therefore, in cases of "doubtful intent" or "accident," there will be no retribution for wounds or limbs.
The cases of retribution for limbs are as follows:
◈ An eye for an eye
◈ A nose for a nose
◈ An ear for an ear
◈ A hand for a hand
◈ A leg for a leg
◈ A right limb for a right limb
◈ A left limb for a left limb
Whoever breaks a tooth, in retribution the same type of tooth will be broken. If the pupil of the eye, whether the upper or the lower, is cut or injured, then in retribution the offender's same pupil will be cut or injured. Similarly, if a lip, whether the upper or the lower, is cut or injured, in retribution the offender's same lip will be cut or injured. Allah Almighty says:
"وَالْجُرُوحَ قِصَاصٌ"
"And there is for you in legal retribution [saving of] life, O you [people] of understanding."
Reference: Al-Ma'idah:5:45
In exchange for a finger, the same finger will be cut, which is similar in place and name. In exchange for a palm, the same palm will be cut, which is similar. The right palm will be cut in exchange for the right palm, and the left palm in exchange for the left palm. The elbow will also be cut in the same way: right for right and left for left. And in exchange for the private part, the private part will be cut, because the boundaries of these organs exist and it is possible to take retribution without exceeding the limit. Allah Almighty says:
"وَالْجُرُوحَ قِصَاصٌ"
"And there is for you in legal retribution [saving of] life, O you [people] of understanding."
Reference: Al-Ma'idah:5:45
Three conditions for taking retribution on a limb
① There should be no fear of excessive breaking or excessive cutting:
That is, in Qisas, if the offender's limb is to be cut from a joint or there is a limit beyond which it ends, then it is correct. But if this is not the case, then taking Qisas is not permissible. Therefore, Qisas will not be applied to a wound whose effect is not terminal. For example: Jaifah, meaning a wound whose effect reaches inside the abdomen. Similarly, breaking the bone of the shin, thigh, or arm does not have the possibility of equivalence, so Qisas will not be applied in these cases. However, Qisas is possible for a tooth bone, such that the offender's required tooth is rubbed with sand or similar until it is worn down as much as the tooth he broke.
② Similarity in the name and location of the organ:
In Qisas, the similarity in the name and location of the organ of both the oppressor and the oppressed will be considered. For organs like hand, foot, eye, and ear, the right side will be cut in place of the right, and the left side in place of the left; the opposite will not be done. Because each part and each organ has a specific benefit and a specific name, the right and left organs cannot be considered equal. The smallest finger of the hand cannot be equal to the adjacent finger. Therefore, the finger that was cut will also be cut in Qisas. Similarly, no extra organ will be cut in place of the original organ.
③ Equality in the condition of the limb being healthy or diseased, and complete or defective:
There should be equality in the condition of the limb of both the oppressor and the oppressed, whether it is healthy or diseased, and complete or defective. Therefore, a diseased or useless hand or leg of the oppressor will not be cut in place of a complete and healthy hand or leg. Similarly, a hand or foot with all fingers and nails intact will not be cut in place of a defective limb; rather, in such a case, compensation (diyat) will be given. In Qisas, a seeing and a blind eye, or a speaking and a mute tongue are not equal. However, in this case, if the oppressed wishes, he can take Qisas by cutting the defective limb of the offender in place of his complete limb; otherwise, he should accept the compensation (diyat).
Qisas in wounds
Every wound that affects the bone is subject to Qisas, because it is possible to take full retribution without any deficiency or excess. For example: a wound on the head or face that exposes the bone, or a wound on the arm, shin, thigh, or foot. Allah Almighty says:
"وَالْجُرُوحَ قِصَاصٌ"
"And there is for you in Qisas [saving of] life, O you [people] of understanding."
Reference: Al-Ma'idah: 5:45
There will be no Qisas for wounds that do not reach the bone. For example: a minor wound on the head or a deep wound on the abdomen. There is definitely some difference in these cases. The Messenger of Allah ﷺ said:
"لا قود في المأمومة ولا في الجائفة، ولا في المنقلة"
"There is no Qisas for Mamoomah, Jaifah, and Manqalah."
Reference: Sunan Ibn Majah, Al-Diyat, Chapter on What is Not Subject to Qisas, Hadith 2637.
Remember:
◈ Mamoomah refers to a wound that reaches the brain.
◈ Jaifah is a wound that reaches inside the abdomen.
◈ Manqalah is a wound that causes the skull to split and the bone to shift.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "Qisas for wounds is established by the Book of Allah, the Sunnah of the Messenger of Allah ﷺ, and consensus, provided there is equality between the two persons. If someone breaks the skull, then in Qisas the skull will also be broken. If that is not possible, for example, if someone breaks an internal bone or causes a wound on the head that is not deep, then there is no Qisas but Diyat is obligatory."
Reference: Majmoo' al-Fatawa 1/475.
Regarding retaliation for blows with the hand, stick, or whip, Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, states: "A group of scholars hold the opinion that this is not retaliation (qisas) but rather discretionary punishment (ta'zir). However, the rightly guided caliphs, other companions of the Prophet, may Allah be pleased with them all, and the great followers (tabi'in), may Allah have mercy on them, have transmitted that in these cases retaliation (qisas) is applied. This has also been transmitted from Imam Ahmad, may Allah have mercy on him, and other jurists. This is also found in the Sunnah of the Messenger of Allah, peace and blessings be upon him. And this position is correct."
Reference: See previous reference.
Sayyiduna Umar, may Allah be pleased with him, said: "I do not send my agents to strike people. By the One in Whose hand is my soul! Whoever does so, I will take retaliation (qisas) from him. And I have seen that the Messenger of Allah, peace and blessings be upon him, would present himself for retaliation (qisas)."
Reference: Musnad Ahmad: 1/41; Bakhatar wa Majmu' al-Fatawa 28/379-380.
This means that retribution from a ruler will be taken only when he gives an unjust punishment. If the punishment is just, then there is unanimously no retribution.
Allama Ibn Qayyim (may Allah have mercy on him) states: "The Shafi'is, Hanafis, Malikis, and later Hanbalis, etc., hold the view that there is no retribution for a slap or a blow (hitting). Some have even claimed consensus on this, although this opinion is clearly against analogy, texts, and the consensus of the Companions." Then he reasons from the statement of Allah Almighty:
﴿وَإِن عاقَبتُم فَعاقِبوا بِمِثلِ ما عوقِبتُم بِهِ...﴿١٢٦﴾... سورة النحل
"And if you retaliate, then retaliate with an equivalent of that with which you were harmed."
Reference: An-Nahl:16.126.
Then he says: "The oppressed should respond to a slap with a slap, and strike in the same place where he was struck, and with the same thing with which he was struck. This was the method of the Messenger of Allah (peace be upon him), the rightly guided caliphs also followed this practice, and this is also the requirement of analogy."
Reference: I'lam al-Muwaqqi'in:1/294.
The statement about taking the retribution of one person from the entire community
If a group of people together intentionally kill a person unjustly, then all of them will be subject to Qisas (retribution). According to the correct opinion of the scholars, all will be killed in return for the murdered person, because the command of Allah Almighty is general:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا كُتِبَ عَلَيكُمُ القِصاصُ فِى القَتلَى الحُرُّ بِالحُرِّ وَالعَبدُ بِالعَبدِ وَالأُنثىٰ بِالأُنثىٰ فَمَن عُفِىَ لَهُ مِن أَخيهِ شَىءٌ فَاتِّباعٌ بِالمَعروفِ وَأَداءٌ إِلَيهِ بِإِحسـٰنٍ ذٰلِكَ تَخفيفٌ مِن رَبِّكُم وَرَحمَةٌ فَمَنِ اعتَدىٰ بَعدَ ذٰلِكَ فَلَهُ عَذابٌ أَليمٌ ﴿١٧٨﴾ وَلَكُم فِى القِصاصِ حَيوٰةٌ يـٰأُولِى الأَلبـٰبِ لَعَلَّكُم تَتَّقونَ ﴿١٧٩﴾... سورةالبقرة
"O you who believe! Prescribed for you is legal retribution (Qisas) for the slain: the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then let there be a follow-up with kindness and payment made to him in a good way. This is a concession and a mercy from your Lord. After that, whoever transgresses will have a painful punishment. O you who have understanding! There is life for you in legal retribution, that you may become righteous."
Reference: Al-Baqarah: 2/179,178.
In this matter, there is also the consensus of the Companions of the Prophet, may Allah be pleased with them all. It is narrated from Sayyid Saeed bin Musayyib, may Allah have mercy on him, that "Sayyidna Umar bin Khattab, may Allah be pleased with him, had seven people executed in the case of the retaliation for one man because they were all involved in the deceitful killing of that man. Sayyidna Umar, may Allah be pleased with him, said: If all the inhabitants of the city of Sana'a had been involved in the killing of that man, I would have executed them all."
Reference: Sahih al-Bukhari, Al-Diyat, Chapter: If a group kills one man, Hadith 6896.
Furthermore, it is established from other Companions as well that in the killing of one man, they executed more than one person who were involved in the murder. There is no narration opposing this from any Companion, therefore it is proven that the Companions, may Allah be pleased with them all, had consensus on this matter.
Allama Ibn Qayyim (may Allah have mercy on him) says: "There is consensus among the Companions (may Allah be pleased with them all) and most of the great jurists that if a group participates in the killing of one person, the entire group should be executed. Although this goes against the apparent rule of Qisas, which is that one person is killed in retaliation for one person, the wisdom and purpose behind this is to prevent taking Qisas from others from becoming a means of unlawful bloodshed."
Reference: I'lam al-Muwaqqi'in 3/128.
Allama Ibn Rushd (may Allah have mercy on him) says: "The retaliation of killing for killing is to prevent bloodshed in society, as the Holy Quran has warned about it. If the group involved in the killing of one individual is not executed, then the dangerous door to killing and plundering will be opened, because then multiple people will unite to kill one person, knowing they will not be executed in Qisas. Also, the purpose of deterrence and admonition will only be achieved, and the heirs of the victim will only be satisfied, when Qisas is taken from all those involved in the killing."
Reference: Bidayat al-Mujtahid: 2/710.
All members of a group involved in the killing of an individual will be executed at the same time if each one has done an act that causes the death of the person. If the individual act of each person does not cause death, but they all participated in mutual consultation and some individuals committed the murder, then qisas must be taken from all, because each one was an accomplice to the killing of the other.
If a person forces someone to kill a certain individual, and under compulsion that person kills, then both the one who forced and the one who was forced will be executed in qisas, provided that all the mentioned conditions for qisas are present in both.
The reason is that the killer killed to preserve his own life, while the one who forced caused the killing.
If someone orders a child or a mentally ill person to kill a certain individual and the killing is carried out, then in that case, the retribution (Qisas) will only be taken from the person who gave the order, because the killer in this case is merely an instrument of the one who gave the order. Moreover, a child and a mentally ill person are not legally accountable (Mukallaf) in Shariah, so retribution will not be taken from them either.
Similarly, if someone orders a sane and adult person to kill someone, but that person did not know that killing a Muslim is forbidden, for example, if a person was born in a non-Muslim country and was unaware of the Shariah rulings, and he kills the designated person, then retribution will only be taken from the one who gave the order, because he is the cause of the killing. As for the killer, he will be considered excused due to ignorance.
If the person carrying out the order is sane and adult and aware of the prohibition of killing, then if he kills someone, retribution will be taken from him, because the Prophet Muhammad (peace be upon him) said:
"لا طاعة لمخلوق في معصية الخالق"
"There is no obedience to the creation in disobedience to the Creator."
Reference: Musnad Ahmad 1/131. Wal-Musannif La Ibn Abi Shaybah Al-Siyar Bab Fi Imam Al-Sariyah Ya Marham Bil-Ma'siyah Man Qala La Ta'atah Lahu 6/549 Hadith 33706. Wal-Lafz Lahu.
It should be noted, whether the one giving the order is a king, a master, or any other person, the one giving the order will be given a severe punishment according to the time and circumstances, because this person has become a cause for committing sin.
If two people are involved in intentionally killing a person, but one does not meet the conditions for obligatory Qisas (retribution), and the other meets those conditions, then Qisas will be taken from the second person because he is involved in the killing. Qisas will not be taken from the first person because there is a reason for not taking Qisas from him.
If someone holds a person captive until another kills him, then the killer will be killed in Qisas, while the one who held him captive will be imprisoned until he dies there.
Reference: The author did not mention any evidence for imprisoning in jail.
Just as when several people together kill a person, the punishment of qisas is taken from all, similarly, if some people together injure someone or cut off a limb, then all of them will be injured, or in the case of cutting a limb, the same limb that they cut together will be cut from all of them, because it is difficult to determine how much each person participated in the crime.
For example: if some people placed a sharp object on a person's hand, then together applied force causing the hand to be cut off, then similarly the hands of all those criminals will be cut off.
Thus, in one narration, two men came before Sayyiduna Ali (may Allah be pleased with him) and testified that a certain person had committed theft. Sayyiduna Ali (may Allah be pleased with him) cut off the hand of the accused based on their testimony. After a short while, these two men brought another person and said: The real thief is this one; we made a mistake regarding the first person. Sayyiduna Ali (may Allah be pleased with him) rejected their testimony against the second person, imposed blood money (diyat) on both of them for falsely accusing the first person, and said:
"لو علمت أنكما تعمدتما لقطعتكما"
"If I had known that you did this deliberately, I would have cut off both your hands."
Reference: Sahih al-Bukhari, Al-Diyat, Chapter: If a group of people are harmed by one man, should all be punished or not? Hadith 6896. Mu’allaqan.
If the effect of a crime on one limb extends to another limb or results in death, then this effect will also be considered part of the crime, because the responsibility accepted for something includes the responsibility for its effects as well. For example: if a finger is cut, and then due to the wound getting worse another finger or the entire hand is lost, then in Qisas the entire hand will be cut. And if death occurs as a result of a minor crime, then Qisas will be obligatory.
It is not correct to take Qisas for any limb or wound until it has healed, because it is narrated from Sayyiduna Jabir رضي الله عنه that:
"أن رجلا جرح ، فأراد أن يستقيد ، فنهى رسول الله صلى الله عليه وسلم أن يستقاد من الجارح حتى يبرأ المجروح"
"A person was wounded. When the victim wanted to take revenge, the Prophet صلى الله عليه وسلم forbade him from taking revenge before he had recovered."
Reference: (Weak) Sunan al-Daraqutni 3/87 Hadith 3092.
The wisdom in this is that it is possible that the wound of the oppressed person may worsen and the deterioration may spread further, causing the entire limb to become useless or the person to lose their life. If he takes Qisas immediately after the wound is inflicted, and later the wound causes the entire limb to be lost, then he will not be given further Qisas, because he acted hastily in taking Qisas.
It is narrated from Sayyiduna Amr ibn al-As, may Allah be pleased with him:
" قضى رسول الله - صلى الله عليه وسلم - في رجل طعن رجلا بقرن في رجله " , فقال: يا رسول الله أقدني , فقال له رسول الله - صلى الله عليه وسلم -: " لا تعجل حتى يبرأ جرحك " , قال: فأبى الرجل إلا أن يستقيد , " فأقاده رسول الله - صلى الله عليه وسلم - منه " , قال: فعرج المستقيد , وبرأ المستقاد منه , فأتى المستقيد إلى رسول الله - صلى الله عليه وسلم - فقال له: يا رسول الله , عرجت وبرأ صاحبي , فقال له رسول الله - صلى الله عليه وسلم -: " ألم آمرك ألا تستقيد حتى يبرأ جرحك فعصيتني؟ , فأبعدك الله وبطل جرحك "
"A person struck another in the knee bone with a spear. The injured came to the Prophet Muhammad (peace be upon him) and said: I want Qisas (retribution). The Prophet (peace be upon him) said: Do not be hasty; take Qisas when he has healed. But he insisted on taking Qisas, so the Prophet (peace be upon him) allowed him to take Qisas. The one who took Qisas became lame, and the one from whom Qisas was taken became healthy. A few days later, he came and said: I have become lame, and my opponent has become well. The Prophet (peace be upon him) said: I had forbidden you from taking retribution before the wound healed, but you did not obey me, therefore Allah has nullified your lameness."
Reference: Musnad Ahmad 2/217.
From these rulings, it is understood that our Shariah is a collection of virtues. All its rulings are based on justice and mercy. Allah Almighty has truly said:
﴿وَتَمَّت كَلِمَتُ رَبِّكَ صِدقًا وَعَدلًا لا مُبَدِّلَ لِكَلِمـٰتِهِ وَهُوَ السَّميعُ العَليمُ ﴿١١٥﴾... سورة الانعام
"The word of your Lord is complete in truth and justice; none can change His words, and He is the Hearing, the Knowing."
Reference: Al-An'am: 6:115.
Cursed be the nation that desires to implement tyrannical, fabricated, and even oppressive laws instead of these best commands.
"بِئْسَ لِلظَّالِمِينَ بَدَلًا"
"What an evil recompense is for the wrongdoers."
Reference: Al-Kahf 18:50.
