Book of Fatal and Non-Fatal

Assault Partnering in Murder

اْلاِشْتِرَاكِ فِي اْلقَتْلِ

Stations

Glossary

Partnering in Murder

A group will be killed (in retaliation) for (killing) one person. ¹⁵⁸² If it is not feasible to apply lethal retribution to one of them because of his parental relationship (to the victim), the inequality of his status (in terms of religion or freedom), or his being pardoned, his partners will (still) be killed. If one of them is not mukallaf, or if one kills in error, then lethal retribution is not binding on any of them. ¹⁵⁸³

وَتُقْتَلُ اْلجَمَاعَةُ بِاْلوَاحِدِ، فَإِنْ تَعَذَّرَ قَتْلُ أَحَدِهِمْ؛ لِأُبُوَّتِهِ، أَوْ عَدَمِ مُكَافَأَةِ اْلقَتِيْلِ لَهُ، أَوِ اْلعَفْوِ عَنْهُ، قُتِلَ شُرَكَاؤُهُ. وَإِنْ كَانَ بَعْضُهُمْ غَيْرَ مُكَلَّفٍ، أَوْ خَاطِئًا، لَمْ يَجِبِ اْلقَوَدُ عَلىٰ وَاحِدٍ مِنْهُمْ.

If a person forces another to kill, ¹⁵⁸⁴ and he (the other) does so; or one of them inflicts one wound (on the victim), whereas the other inflicts 100 wounds; or one of them maims the victim at the wrist, whereas the other maims him at the elbow; they are both considered murderers and are liable for qiṣâṣ. ¹⁵⁸⁵ If indemnity is required, both are equally liable for it.

وَإِنْ أَكْرَهَ رَجُلٌ رَجُلاً عَلىٰ اْلقَتْلِ، فَقَتَلَ، أَوْ جَرَحَ أَحَدُهُمَا جُرْحًا وَالآخَرُ مِئَةً، أَوْ قَطَعَ أَحَدُهُمَا مِنَ اْلكُوْعِ وَالآخَرُ مِنَ الْمِرْفَقِ، فَهُمَا قَاتِلاَنِ، وَعَلَيْهِمَا اْلقِصَاصُ، وَإِنْ وَجَبَتِ الدِّيَةُ، اسْتَوَيَا فِيْهَا.

If one of them slaughters the victim, and then the other cuts off his hand or slices him into two halves, the murderer is the first one. ¹⁵⁸⁶ If one cuts (a part of) him off, and then the other slaughters him, the one who cuts will be cut (in retaliation), and the one who

وَإِنْ ذَبَحَهُ أَحَدُهُمَا، ثُمَّ قَطَعَ اْلآخَرُ يَدَهُ، أَوْ قَدَّهُ نِصْفَيْنِ، فَاْلقَاتِلُ اْلأَوَّلُ، وَإِنْ قَطَعَهُ أَحَدُهُمَا، ثُمَّ ذَبَحَهُ الثَّانِيْ، قُطِعَ اْلقَاطِعُ،

1582. (A) + (+H, +M, +S)

1583. In all these cases, the non-obligation of qiṣâṣ does not mean that the judiciary cannot impose any punishment. The punishment should be severe enough to deter people from these crimes.

(-H): A Muslim is killed for killing a non-Muslim, and a freeman is killed for killing a slave.

1584. (A): Saying, “Kill him, or I will kill you” is a form of compulsion, and it makes the one giving the command also liable.

1585. This is because of the difficulty in ascertaining the cause of the death.

1586. Because the action of the second, though reprehensible, was inconsequential to the death of the victim.

slaughters will be slaughtered.

وَذُبِحَ الذَّابِحُ.

If one person commands another (who knows the inviolability of the victim) to kill, and thus he kills, then qiṣâṣ is binding against the one who carries it out, and the one who commands it will be punished (by a discretionary penalty). ¹⁵⁸⁷
If a person commands someone who does not know (the victim’s) inviolability, or someone who is not discerning, then qiṣâṣ is binding against the one who gave the order. ¹⁵⁸⁸

فَإِنْ أَمَرَ مَنْ يَعْلَمُ تَحْرِيْمَ اْلقَتْلِ بِهِ، فَقَتَلَ، فَاْلقِصَاصُ عَلىٰ الْمُبَاشِرِ، وَيُؤَدَّبُ اْلآمِرُ. وَإِنْ أَمَرَ مَنْ لاَ يَعْلَمُ تَحْرِيْمَهُ بِهِ، أَوْ لاَ يُمَيِّزُ، فَاْلقِصَاصُ عَلىٰ اْلآمِرِ.

If one restrains a person to be killed, and that person is killed, the killer will be killed, and the restrainer will be imprisoned until he dies. ¹⁵⁸⁹

وَإِنْ أَمْسَكَ إِنْسَاناً لِلْقَتْلِ، فَقُتِلَ، قُتِلَ اْلقَاتِلُ، وَحُبِسَ الْمُمْسِكُ حَتَّى يَمُوْتَ.

1587. (A) + (+H, +M, +S): If the commander has no authority over the executor, then only the executor will be killed.

If the commander has authority over the executor but does not clearly compel him to kill:

(-M): Both will be killed, because this authority is considered a form of coercion. (-H): Neither will be killed.

(A) + (+S): Only the one who carries it out will be killed.

If the commander compels the executor
(A) + (+M, +S): Both will be killed.

(-H, -s): Only the one who commands it will be killed. (-s): Only the one who carries it out will be killed.

1588. In all these cases, just because qiṣâṣ is not obligatory does not mean the judiciary cannot punish those who were found to have committed a wrongdoing. The punishment should always be severe enough to deter people from these crimes. (-H): A Muslim will be killed for killing a non-Muslim, and a freeman will be killed for a killing a slave.

1589. The principle here is equal retribution.

(-M): If the restraining was done for the killing and was essential for its execution, the killer and the restrainer should both be killed.

Partnering in Murder

( Page : no 148)

Book of Fatal and Non-Fatal

Assault Partnering in Murder

اْلاِشْتِرَاكِ فِي اْلقَتْلِ

Stations

Introduction

The Book of Purification

The Book of 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

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

The Book of Oaths

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

Partnering in Murder