: اْلقَتْلُ بِغَيْرِ حَقٍّ يَنْقَسِمُ ثَلاَثَةَ أَقْسَامٍ
Book of Fatal and Non-
Fatal Assault
النَّذْرِ
Chapters
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Book of Fatal and Non-Fatal Assault
First: Intentional murder, 1557 in which one kills (the victim) by wounding him or by any action that
أَحَدُهَا: اْلعَمْدُ الْمَحْضُ، وَهُوَ: أَنْ يَقْتُلَهُ بِجُرْحٍ، أَوْ
1555. Introduction
Despite the seriousness of murder, and the fact that the revelation has specified punishments for it and for lesser forms of manslaughter and bodily injuries, these are not considered ḥudood crimes. The Sharia considers ḥudood crimes to be violations of ḥuqooq Allâh (the rights of Allah) as opposed to violations of ḥuqooq al-‘ibâd (the rights of the servants), which include the human being’s right to physical safety. This distinction has practical consequences. For violations of ḥuqooq al-‘ibâd, the victim’s family (or the victim himself in the case of injuries) can choose between pressing and dropping charges and between pardoning the offender and accepting an indemnity. This is not true in the ḥudood crimes (except for the controversy over the ḥadd of qadhf). In qiṣâṣ, while the state oversees these litigations and carries out punishments, the charges are brought to court by the victim or the victim’s family. In the absence of family, “The authority (sultan) is the guardian of those who have no guardian.”
Empowering the victim’s relatives enables them to overcome their pain and grief. It also allows them to show forgiveness and graciousness, particularly since these crimes may involve many nuances and intricacies. They may also seek substantial compensation, which could be essential for their wellbeing, especially when a family has lost its breadwinner.
(a/ al-Aḥkâm as-Sulṭâniyah by Abu Ya‘lâ) + (-H, -M, -s): The state may still impose a ta‘zeer punishment even if the victim’s family pardons the murderer. (A) + (+S): The state has no right to do so.
1556. There is an additional type that will not be mentioned here because (A) considers it the same as intentional murder. It is gheelah murder, which is killing that involves treachery or deception – for example, if the offender made an appointment to meet the victim in a remote place and then killed him there.
(A) + (+H, +S, +Z): Gheelah is like all other forms of intentional murder. (a) + (-M, -t): It warrants the death penalty with no chance for clemency granted by the victim’s family. They considered it one of the ḥudood (the rights of Allah), not a form of qiṣâṣ.
1557. In addition to the worldly punishment, Allah said:
{But 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.} (an-Nisâ’ 4: 93)
وَمَن يَقْتُلْ مُؤْمِنًا مُّتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللَّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا
And also said:
{Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land – it is as if he had slain humankind entirely. And whoever saves one – it is as if he had saved humankind entirely…} (al-Mâ’idah 5: 32)
مِنْ أَجْلِ ذَٰلِكَ كَتَبْنَا عَلَىٰ بَنِي إِسْرَائِيلَ أَنَّهُ مَن قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا وَمَنْ أَحْيَاهَا فَكَأَنَّمَا أَحْيَا النَّاسَ جَمِيعًا
The Messenger of Allah (SA) said:
“Whoever kills a mu‘âhid (covenanted non-Muslim) will not smell the fragrance of paradise, even though its fragrance can be smelled at a distance of 40 years.” (B – from Ibn ‘Amr)
مِنْ قَتْلِ مُعَاهِداً لَمْ يَرَحْ رَائِحَةَ اَلْجَنَّةِ, وَإِنَّ رِيحَهَا لِيُوجَدَ مِنْ مَسِيرَةِ أَرْبَعِينَ عَامّاً
And:
“A believer remains at ease regarding his religious commitment until he kills someone who is inviolable. ”(B – from Ibn ‘Umar)
لَنْ يَزَالَ الْمُؤْمِنُ فِي فُسْحَةٍ مِنْ دِينِهِ، مَا لَمْ يُصِبْ دَمًا حَرَامًا
is likely to cause death, such as beating him with a large, weighty object 1558 or repeating the trauma with a smaller one; throwing him from a height; suffocating, burning, or drowning him; giving him poison to drink; falsely testifying against him, thus bringing onto him the death penalty; or the like of those actions, while intending murder and being aware of the inviolability of the murdered. In such a case, the entitled heirs (of the victim) will be given the choice between lethal retaliation and receiving an indemnity, because the Messenger of Allah (SA) said, “If someone is killed, his or her entitled heirs may choose between killing the murderer and sparing him or her (in exchange for an indemnity).” 1559
If (both parties) mutually agree on more than the prescribed indemnity, it is permissible.
فِعْلٍ يَغْلِبُ عَلىٰ الظَّنِّ أَنَّهُ يَقْتُلُهُ، كَضَرْبِهِ بِمُثَقَّلٍ كَبِيْرٍ، أَوْ يُكَرِّرُهُ بِصَغِيْرٍ، أَوْ إِلْقَائِهِ مِنْ شَاهِقٍ، أَوْ خَنْقِهِ أَوْ تَحْرِيْقِهِ، أَوْ تَغْرِيْقِهِ، أَوْ سَقْيِهِ سُمًّا، أَوِ الشَّهَادَةِ عَلَيْهِ زُوْرًا بِمَا يُوْجِبُ قَتْلَهُ، أَوِ اْلحُكْمَ عَلَيْهِ بِهِ، وَنَحْوِ هَذَا، قَاصِدًا، عَالِمًا بِكَوْنِ الْمَقْتُوْلِ آدَمِيًّا مَعْصُوْمًا، فَهَذَا يُخَيَّرُ اْلوَلِيُّ فِيْهِ بَيْنَ اْلقَوَدِ وَالدِّيَّةِ، لِقَوْلِ رَسُوْلِ اللهِ : "مَنْ قُتِلَ لَهُ قَتِيلٌ فَهُوَ بِخَيْرِ النَّظَرَيْنِ إِمَّا أَنْ يُقْتَلَ وَإِمَّا أَن يَفْدِيَه" وَإِنْ صَالَحَ اْلقَاتِلُ بِأَكْثَرَ مِنَ الدِّيَّةِ جَازَ
Second: Quasi-intentional manslaughter (mistaken death resulting from a deliberate assault)
This is where one intentionally assaults someone in a way that would not usually cause death. There is no lethal retaliation in this case, and the indemnity is due from the ‘âqilah (male paternal kin of the murderer). 1560
الثَّانِيْ: شِبْهُ اْلعَمْدِ وَهُوَ: أَنْ يَتَعَمَّدَ اْلجِنَايَةِ عَلَيْهِ بِمَا لاَ يَقْتُلُهُ غَالِبًا، فَلاَ قَوَدَ فِيْهِ، وَالدِّيَّةُ عَلىٰ اْلعَاقِلَةِ
Third: Mistaken killing, which has two types:
الثَّالِثُ: اْلخَطَأُ وَهُوَ نَوْعَانِ
1558. This could be a big rock, hammer, marble slab, or any other heavy object that may cause death.
1559. (Ag – from Abu Hurayrah)
1560. Ibrâheem Ibn Mufliḥ (may Allah have mercy on him) said in al-Mubdi‘ that in addition to the indemnity, a discretionary punishment of imprisonment may be enforced.
(A/SM): They must also expiate like in mistaken killing. The expiation is the responsibility of the killer. It is the freeing of a believing slave; and whoever does not find or afford to buy one must fast for two months consecutively. (an-Nisâ’ 4: 92)
First: To do something that does not target the victim but that results in his killing, or to cause his killing by digging a well or the like. 1561 The ruling concerning the killing of one who is asleep, a child, or insane is like that for quasi-intentional manslaughter. 1562
أَحَدُهَمَا: أَنْ يَفْعَلَ فِعْلاً لاَ يُرِيْدُ بِهِ الْمَقْتُوْلَ، فَيُفْضِيْ إِلىٰ قَتْلِهِ، أَوْ يَتَسَبَّبُ إِلىٰ قَتْلِهِ بِحَفْرِ بِئْرٍ وَنَحْوِهِ. وَقَتْلُ النَّائِمِ وَالصَّبِيِّ وَالْمَجْنُوْنِ، فَحُكْمُهُ حُكْمُ
1561. When a well is dug to get water, not to harm the victim, but the victim falls into the recently dug, unmarked well.
If all safety precautions were taken, the digger/owner is not liable. The legal maxim says:
That (loss/harm) which cannot be avoided, there will be no liability concerning it.
ما لا يمكن التحرز عنه لا ضمان فيه
1562. Meaning there is no retaliation, but there is an indemnity due. Allah said concerning the indemnity for mistaken death:
{And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake – then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer – then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty – then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] – then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah. And Allah is ever Knowing and Wise.} (an-Nisâ’ 4: 92)
وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا
Second: To kill a Muslim in the abode of war, 1563 thinking he is a warring enemy, or to target the lines of (combatant) unbelievers and injure a Muslim – then there will be an expiation without indemnity. 1564 This is because Allah said, {…But if the deceased was from a people at war with you and he was a believer – then [only] the freeing of a believing slave...} (an-Nisâ’ 4: 92)
شِبْهِ اْلعَمْدِ. النَّوْعُ الثَّانِيْ: أَنْ يَقْتُلَ مُسْلِمًا فِيْ دَارِ اْلحَرْبِ يَظُنُّهُ حَرْبِيًّا، أَوْ يَقْصِدَ رَمْيَ صَفِّ اْلكُفَّارِ، فَيُصِيْبُ سَهْمُهُ مُسْلِمًا، فَفِيْهِ كَفَّارَةٌ بِلاَ دِيَةٍ؛ لِقَوْلِ اللهِ تَعَالىٰ: "فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ" [سورة النساء: الآية 92]
Note how the verse also commands the expiation. This expiation is binding on the killer in mistaken killing by consensus.
In quasi-intentional manslaughter, unlike mistaken killing, there may be additional discretionary punishment.
1563. In quasi-intentional manslaughter, unlike mistaken killing, there may be additional discretionary punishment.
Classical jurists classified the world into the abodes of peace, war, and treaty, giving them descriptive names according to the conditions of their times. The treaties signed by Muslim countries, as members of the United Nations and signatories to other covenants such as the Geneva Conventions, make the default classification for the whole world Dar al-‘Ahd (“abode of treaty”), which could also be referred to as Dar aṣ-Ṣulḥ (“abode of conciliation”). Wherever Muslims have the right to practice their religion, the suggested term would be Dar al-Amn (“abode of security”).
1564. If the victim is from a people with whom the Muslims are at peace, there will be an indemnity in addition to the expiation. Allah said:
{…and if he was from a people with whom you have a treaty – then a compensation payment presented to his family and the freeing of a believing slave…} (an-Nisâ’ 4: 92)
وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ
Book of Fatal and Non-Fatal Assault
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