The author
‘rahmatullâhi ta’âlâ ’alaihi’ of the book entitled Radd-ul-muhtâr states: Jinâyat means
wounding or killing.
‘Qatl’ means ‘homicide’.
The person who does the killing is called ‘murderer’, and the one killed is
called ‘murdered’. Five types of homicide are harâm:
1- Intentional,
premeditated hormicide is done with something deadly, e.g. by thrusting a knife
into the body or by shooting with a shotgun. Anything made from iron is a
substitute for a knife, and any metal is a substitute for iron. Pointed and
sharp objects made from wood or glass or stone also are substitutes for iron.
It will be homicide also to kill by burning in fire or to kill in a hot oven
whose fire is out or in boiling water. According to the Two Imâms, it will be
homicide also to kill by sticking a needle into the neck or heart or by
battering with something heavy.
Premeditated homicide
is a sin graver than saying [optionally] words that will cause unbelief. For,
whereas it will be permissible for a person being forced with threats of death
to say something that will mean denial of his faith to do so although his heart
is teeming with îmân, it would not be permissible for him to kill someone else
in order to save himself from death if he were threatened with being killed if
he would not kill that other person. However, to become a murtadd (renegade)
through one’s heart is a sin graver than homicide. A person who murders a
Muslim intentionally will not become an unbeliever. If the murderer has killed
that Muslim because the victim was a Believer or by saying that it is an act of
halâl to do so, he will become an unbeliever.
Punishment termed qaved will be inflicted on a
person guilty of an unjust and premeditated homicide. ‘Qaved’ means ‘killing
him in qisâs (return in kind and degree, retaliation)’. Qisâs will not be
applied if one of the victim’s walîs forgives the murderer or if the walî and
the murderer reach a mutual agreement on payment of a certain amount of
property or money. The property agreed on will be accepted and taken. It is
stated as follows in a hadîth-i-sherîf quoted in Berîqa, in its section
dealing with the bad habit termed hiqd (rancour, malice): “A person who dies after having paid human rights, having recited the Sûra Ikhlâs-i-sherîf eleven times after each prayer of namâz, and having forgiven
the murderer, will enter Paradise.” Kaffârat will not be required for
premeditated
homicide. For, premeditated homicide is a grave sin, whereas
kaffârat is an act of worship. They will never come together. It is stated in
another hadîth-i-sherîf, quoted in Bukhârî: “Ekber-i-kebâir (the gravest sins) are attributing a partner to Allâhu ta’âlâ, homicide, disobedience to parents, and perjury.” Other equally grave sins are: fornication, theft, and taking
and giving fâiz (interest).
The author of the book
entitled Tuhfa-t-ul-fuqahâ, (Muhammad Samarkandî
‘rahmatullâhi ta’âlâ ’alaih’, d. 1117 [1704 A.D.],) states: If a person sees
his father being killed with a gun by someone, or if the murderer tells him in
the presence of two witnesses that he has killed his father, and if thereafter
the murderer says to him, “Your father had killed my walî. I killed
your father in qisâs ( retatiation),” or if the murderer says to him that he
killed that person’s father because his father had become a murtadd (renegade),
it will be mubâh for him to kill his father’s murderer (even) if he (himself)
does not know that that was the case (concerning the reasons for the murder).
If two ’âdil witnesses say to a person, “So and so killed your father,” it will
not be mubâh for him to kill the accused. For, testimony given by two witnesses
can be used as evidence only in a court of law. Unlike that person’s seeing the
murder or the murderer’s confession, it will not provide evidence for that
person.
2- The second type of
homicide that is harâm is ‘shabaha’, i.e. homicide that resembles intentional
homicide. It is homicide committed with things that are not normally used for
homicide. An example is homicide committed with a small stone or by beating
with a small stick. According to Imâm A’zam Abû Hanîfa ‘rahmatullâhi ta’âlâ
’alaih’, homicide committed with a big stone or with a big stick also is in
this category. Other examples are those committed by throwing the victim into a
well or down a mountain or the roof of a building. Homicide of this type will
not necessitate ‘qaved’, although it is a grave sin that incurs kaffârat and a
heavy diyat on the ’âqila (of the murderer). If homicide called ‘shabaha’
recurs, the murderer will be killed.
Amputation of a limb
of a person’s body is not within the scope of the guilt called ‘shabaha’.
However, it will be taken as a premeditated guilt, regardless of the limb
amputated and of the manner of amputation. Therefore, qisâs will be necessary
in return for any limb amputated. In case of an agreement reached, the payment
will be made from the guilty person’s property. ‘Heavy diyat’ means a hundred camels.
’Âqila means ‘the culprit’s next of
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kin’. The ’âqila will have to pay this
(heavy) diyat within three years. In a case of premeditated homicide, when an
agreement has been reached, and in a case of homicide by mistake as well, (the
following article,) the property [or money] (of diyat) will be paid by the
’âqila.
3- Homicide by mistake has two varieties:
a) By
mistake on the part of the murderer: To shoot a person by mistaking him for
game or for enemy.
b)
By mistake on the part of the bullet: Homicide
wherein a bullet shot at game hits a man or ricochets back from the intended
target and hits a man. Another example of this case is a man’s being killed by
a piece of wood or another heavy object dropped by a person carrying it. In a
case of homicide by mistake a diyat by the ’âqila and a kaffârat will be
necessary. (‘Diyat’ and ‘kaffârat’ will be explained in the following chapter.)
The sin incurred will be less than the one in the previous two cases of
homicide.
4-
Homicide by way of the cause of a mistake:
An example of this is to kill someone by falling on them from a high place or a
sleeping person’s killing someone by tumbling over them. This kind of homicide
also will be punished with kaffârat and diyat. Another example is a person’s
being trampled to death by the horse being ridden [or being run over by a
vehicle being driven].
5-
Death caused by something being done for
quite another purpose. Supposing a person digs a well or places a stone at a
place that does not belong to him and the well he has dug or the stone causes
another person’s death. His ’âqila will have to pay diyat. Kaffârat will not be
necessary. The sin incurred will be for having dug a well in someone else’s
property, and not for homicide. No compensation will be necessary if he dug the
well with the government’s permission or if the well is in his own property or
if the event of falling into the well took place after the second person’s
having been informed about the well dug.
In the first four
types of homicide, the murderer, if he is mukallaf, (i.e. if he has reached the
ages of discretion and puberty,) will be deprived of inheriting property,
whereas he will not be deprived in the fifth case.
WHAT PEOPLE ARE TO BE
PUNISHED WITH QAVED? — If a person deliberately kills, in the Dâr-ul-islâm, (one
of) the people whose blood is harâm, it will be necessary to impose ‘qaved’ on
him, which means to say that the murderer will have to be retaliated on by
being put to death, (and this retaliation
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is termed ‘qisas’.) In the Dâr-ul-islâm,
a Muslim’s or dhimmî’s blood is harâm. Blood of a harbî or of a musta’min (or
muste’min)[1] disbeliever or of a muhsan (married) adulterer or of a murtadd
(renegade, apostate) is not harâm. If a mukallaf Muslim intentionally kills a
dhimmî, it will be necessary to inflict ‘qaved’ on him. If a Muslim steals a
dhimmî’s property, his hand will be cut off. ‘Qaved’ will be inflicted on a
person who kills an insane person or an invalid or a child or a blind person or
a woman, as well as a person who kills one of his own parents or grandfathers.
A person who kills his own child or grandchild will not be punished with
‘qaved’. Instead, a diyat from the father’s property will have to be paid. For,
payment of diyat is not incumbent on the ’âqila in premeditated homicide. In
warfare, when both armies intermingle, if a person kills a Muslim intentionally
but by confusing him with an unbeliever, it will not be necessary to inflict
qaved on him. Yet kaffârat and diyat will be required. No punishment will be
required if a person kills by mistake a Muslim among unbelievers. It is
permissible to kill a genie disguised in an animal that is permissible to kill,
such as a snake. A white snake that crawls without any winding curves is a
genie. Before killing it, it is better to warn it by say, “Go out, go away
bi-iznillah.”
‘Qaved’, i.e. killing
the murderer is carried out with a sword or with a shotgun. It is not
permissible to kill the murderer in any other way. A person who kills the
murderer by throwing him into a well or crushing him under a stone or by
driving an animal onto him or by hurling him into fire or by any other way,
will be punished with ta’zîr.
After the decision is
made by the court of law, the murderer will be killed by the victim’s walî or
by a wakîl (deputy) appointed by the walî. Yet the wakîl cannot kill the
murderer in the absence of the walî. If the murderer is killed by anyone other
than these people, that person will be punished with qaved. If that person
kills the murderer by mistake, that person’s ’âqila will have to pay diyat.
If one of two walîs
forgives the murderer and the other walî applies qisâs (retaliation) without
having heard of the pardon granted by the other walî, nothing will be
necessary. Yet if he did the killing although he had heard of the pardon and he
knew that
---------------------------------
[1] Please see the forty-sixth chapter of the
fifth fascicle of Endless Bliss for terms such as ‘musta’min’ and
‘muhsan’.
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it would be harâm for him to kill the
murderer, that walî will have to be punished with qaved. If he says that he did
not know that it would be harâm, then he will have to pay diyat.
If a wounded person
says, “I was not wounded by so-and-so,” and then dies, his inheritors
cannot sue ‘so-and-so’.
If a wounded person or
the walîs forgive the person guilty of the wounding and then the wounded person
dies, the pardon granted will be permissible.
If a person is given
something poisonous, drinks it without knowing that it is poisonous, and dies,
the person who has given the poison will be punished not with qisâs or diyat,
but only with imprisonment and ta’zîr. According to Imâm A’zam Abû Hanîfa
‘rahmatullâhi ta’âlâ ’alaih’, homicide committed with something that will not
inflict a wound on the body is not premeditated homicide. It has been stated
(by scholars) that qaved will have to be inflicted if the victim was forced to
drink the poison given. The fatwâ, however, rules out an application of qisâs
and states that the murderer’s ’âqila will have to pay a diyat.
Homicide committed by
hitting the victim with a shovel will necessitate a ‘qaved’, if the victim dies
as a result of a wound caused by a blow administered with the iron part of it.
If the victim is killed without wounding, or if the wounding has been done with
the wooden part, the homicide committed will be one that is termed
‘shabah-i-’amd’. (Please see ‘shabah’ defined earlier in the text.) If the
homicide has been committed by strangulation or by drowning in water, it will
be a case of shabah-i-’amd according to Imâm A’zam Abû Hanîfa. If the murderer
has made a habit of strangling to death, he will be killed. Once he has been
brought to the court of law, his tawba will no longer be acceptable. If he is
confined in a room and dies of hunger, nothing will be necessary. The fatwâ
states that this is so. According to the Two Imâms, a diyat will have to be
paid in all the (aforesaid) cases. If the homicide is perpetrated by burying
the victim in the earth, a diyat will be incumbent on the murderer’s ’âqila.
If a person dies upon
being thrown before ferocious animals or among snakes and scorpions, ‘qaved’ or
‘diyat’ will not be required. It has been stated (by scholars) that a diyat
also will be required for battery followed by confinement until the victim
dies. If a child is subjected to the aforesaid treatments or is exposed to very
hot or cold weather, the guilty person’s ’âqila will have to pay a diyat.
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Qaved will be
inflicted on a person who kills someone who is about to die.
If a person who draws
a sword against Muslims or dhimmîs, it will be wâjib to kill him. No punishment
will be inflicted on a person who kills a person who does so. However, he will
not be killed after he has sheathed back his sword.
Supposing a person
draws a sword or a gun against someone, regardless of the place and the time’s
being day or night, or if he intimidates a person with a stick outside of the
urban area by day or by night, no punishment will be inflicted on a person who
kills that thug. If an insane person or a child draws a gun and gets killed, a
diyat will be incumbent on the killer. A person who kills an animal attacking
him will have to pay its value. A deliberate homicide committed by a child or
an insane person will be accepted as a homicide by mistake. A diyat will have to
be paid by the child’s ’âqila or by the child itself. Kaffârat will not be
necessary; and they cannot inherit property.
Supposing a person’s
house is being burglarized at night and the burglar is leaving with the goods
he has stolen, taking no heed of his warning shouts, he will not be punished if
he pursues the burglar and kills him. If a person sees a burglar in his house
or a burglar trying to break in through the door or through one of the windows,
first he shouts for warning. If the burglar does not run away, it will be
permissible for that person to kill the burglar. Qisâs will not be inflicted on
that person.
If a person says to
another person, “Kill me,” and thereupon the latter kills the former with a
metal object, a diyat will have to be paid from the murderer’s property. If the
killing is done with something else, then the diyat will be paid by the
murderer’s ’âqila. The same rule applies when the former says, “Kill my sibling
(or son or father).”
If a person says to
another person, “Cut off my hand (or foot),” and the latter cuts off the
former’s hand (or foot), and thereupon the former dies, no punishment will be
entailed. For, a person’s hand or foot is like his property, and his
instructions pertaining to them will be sahîh.
The walî’s pardoning
the murderer is better than making a peace in return for payment of property.
And making a peace in return for property is better than qisâs (retaliation).
‘Qaved’ and ‘diyat’ belong to the inheritor(s) by rights. When the walî grants
a pardon, the murderer will be absolved from the qaved and from
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the diyat in the world. So is the case with the wounded person’s
granting a pardon.
A murderer’s tawba
will not be accepted unless he consents to qaved. Infliction of qisâs will
absolve him from the walîs’ rights. The murdered person, however, will demand
his right in the Hereafter.
(Punishment of) qisâs
differs from (those of) hadd in nine respects:
1-
Judge of the law court may apply qisâs
upon his personal information (about the felony), whereas hadd is inapplicable
without the witnesses.
2-
Right of (having) qisâs (inflicted) will
pass on to inheritors, whereas right of hadd will not pass on to inheritors.
3-
Qisâs is pardonable, whereas hadd is not.
5-
Gestural or written testimony given by a
dumb witness is acceptable in a case of qisâs, and not in one of hadd.
6-
Shefâ’at (intercession) for a case of
qisâs is permissible. Shefâ’at for a case of hadd will not be accepted once it
has been brought to the court of law. However, shefâ’at before that will be
permissible. Concerning sins other than those involving hadd, it will be good
to forgive the sinner unless he insists (in the sin).
7-
A case of qisâs requires that a lawsuit
be brought to the court. For cases of hadd other than qazf and theft, the
witnesses may be heard without a lawsuit having been filed.
8-
As a punishment of hadd is being executed
the judge has to be present, whereas he does not have to attend an execution of
qisâs.
9-
If the informer of a guilt involving a
punishment of hadd recants, it will be accepted.
Supposing someone
pokes his head through the door and peeps inside. If the resident throws a
stone at him and causes him to lose his eye, nothing will be required.
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Supposing someone
breaks in a person’s house or stays in private with his wife so as to cause a
state of halwat; it will not be permissible for this person to kill that person
or to knock out an eye of that person as long as it is possible for him to
expel that person by some other means.
Qaved for guilts other
than homicide: Qisâs will be required in all manners of wounding for which
retaliation is practicable. All manners of wounding other than the felony of
homicide are categorized as ‘premeditated’, regardless of the tool used in the
guilt. The second type of premeditated felony, i.e. the shabah-i-’amd, is out
of the question in these manners of wounding. If a person cuts off someone else’s
arm, his hand will be cut off by the joint. Identical punishments of qisâs will
be inflicted for the guilts of limb-amputation such as a foot, nose, an ear,
and an eye. All kinds of shajja, i.e. head-wounding, as well, will be punished
with a qisâs. The only guilt wherein qisâs is inapplicable is bone-breaking.
Qisâs will be inflicted for tooth-breaking. If a person breaks a tooth of
another person, his tooth will be filed so as to reduce it to the size of the
tooth he has broken.
Qisâs between people
of opposite sexes is applicable only in cases of homicide. In woundings
involving qisâs, qisâs will not be executed before the injury heals. For, some
wounds may cause death, in which case a qisâs for homicide will be required.
Qisâs will not be applied for other limbs. Ersh, i.e. money will be paid as a
diyat. Qisâs is applicable between women, as well as between a Muslim and a
dhimmî. Qisâs will not be applied for an injury that has healed or in a case
involving amputation of a tongue or a male genital organ, yet it is applicable
in a case that entails amputation of a lip.
The wounded person may
demand qisâs or diyat from the person who has wounded him.
Qisâs will fall in
cases such as death of the murderer, pardon granted by the (victim’s) walî, and
an agreement made on the understanding that a certain amount of property will
be paid. It will fall even if the amount of property agreed upon is small.
However, the amount to be paid as a qisâs for a homicide by mistake cannot be
below the amount dictated by Islam. An excess of that amount, on the other
hand, will be fâiz. The property should be paid on the spot. A mutual agreement
may be made for a respite. As well, qisâs will not be applied if one of the
walîs makes a peace or grants a pardon. The other inheritors will receive
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their shares of the diyat within three years (maximum) from the
guilty person. If a few people (come together and) cut off a hand or another
limb of a person, none of them will be punished with qisâs. They will pay the
diyat in equal shares. If they kill that person, qisâs will be inflicted on all
of them.
If a person comes home
and sees his wife fornicating with a man, it will be halâl for him to kill the
man. He may kill both of them if his wife has consented. It is halâl for a woman
to kill her rapist, and for a boy to kill the person who has forced him for an
act of sodomy.
If a person dies as a
result of amputation of one of his limbs, nothing will be required if the
amputation was a decision of judge of the court of law. Other cases of death
that will entail no responsibility are those which result from medical
practices carried on under the supervision of medical doctors, veterinary
surgeons, or other authorities; such as bleeding, circumcision, blood
transfusion, and injection. For, practices that are wâjib are not susceptible
of stipulating security. Practices that are mubâh, on the other hand, will be
permissible when security is guaranteed. It is wâjib for a teacher to beat the
child for the purpose of teaching it and with the permission of its parents or
its wasî. And it is mubâh if the beating is intended for disciplining the
child. If, (in the former case, i.e.) in the beating done to carry out an act
of wâjib, the amount and/or the vehemence of the beating and/or the parts of
the child’s body subjected to the beating are in excess of customary practices
and the child dies, a diyat will have to be paid. In (the latter case, i.e. in)
the beating that is mubâh, the diyat will have to be paid if the child dies,
regardless of the manner of beating. According to the Two Imâms ‘rahmatullâhi
ta’âlâ ’alaihima’, te’dîb (disciplining), as well as ta’lîm (teaching), is
wâjib. It is not wâjib for the teacher to beat his pupil with the permission of
the pupil’s parents. If the child dies (upon the beating), he will have to
compensate, according to a consensus of Islamic scholars. A husband’s beating
his wife for te’dîb is mubâh, not wâjib.
Supposing a child
falls down from a window, his head swells, doctors say that an operation
performed on the child’s brain will result in its death, and yet one doctor
says, “It will die if its head is not opened today,” and opens the child’s
head; thereafter the child dies; no punishment will be required if the incision
has been performed with a permission and by using the correct scientific
technology. If it has been done without a permission and
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incorrectly, qisâs
will be necessary.
The walî who has the
right of inflicting qisâs on the murderer is (any one of) the inheritors of the
deceased.
If a person proves
that a certain person has killed his father intentionally and yet his brother
cannot be found, a qisâs will not be inflicted on the murderer until the
plaintiffs brother shows up. The accused will be kept in prison. When his
brother appears, the qisâs will be executed if the accuser proves the crime by
way of evidence again. If the murderer proves that the plaintiffs brother has
forgiven him, the qisâs will no longer be applicable.
It is stated in Hadîqa, in its section
dealing with ruinations incurred by way of speech: “As fâsiq people and bid’at
holders commit sins, it is not permissible for a person who is unable to
prevent them to watch them, unless there is a darûrat to do so. For that
matter, a scene at which someone is being put to death, executed, or tormented
as a result of blatant injustice should not be watched. As an unfair penalty of
that sort is being inflicted, it should never be watched, since death with
cruelty is a probable event. It is stated in a hadîth-i-sherîf: “Do not attend a scene at
which someone is being killed with dhulm (injustice, cruelty)! Damnations will shower on
a person who does not rescue the victim although he is present at the scene.” Hence, it is
permissible to watch someone being put to death or beaten, if it is a
punishment commanded by Islam. It is not permissible to watch a flight of a
shooting star, either, since it has a deleterious effect on the eyes.
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