This chapter deals with reprisal (qawd), blood money, retaliation (qisas) and related
topics, like the ghurra (slave paid in compensation).
[Hashiyya: Qisas concerns retaliation for limbs and qawd is retaliation
for loss of life.]
This chapter also deals with the crimes which result in the hadd punishments, like illicit sex,
slander, drinking, and theft. Hadd means prohibition, and legally is what is imposed to prevent the criminal from reverting
to the like of he did and to deter others.
[Hashiyya: The chapter also deals with its legal consequences, like exile, and its
size. Ta'zir (discretionary punishment) is also dealt with. The hudud are deterrents to protect loss of sanity,
life, religion, honour and property, and lineage. Qisas (retaliation) protects lives. Amputation for theft protects
property. The hadd for illicit sex protects lineage. The hadd for drinking protects minds. The hadd for
slander protects honour. Execution for apostasy protects religion. It is said that the hudud are expiations, which
is sound.]
I. RETALIATION FOR HOMICIDE
37.1 Conviction for homicide
37.1a. Necessary evidence
No one may be killed for homicide except on the basis of just evidence, confession, or by the qasama
when that is necessary.
[ A life is only taken for another life equal in freedom, Islam and protection when the killing has
been proven by one of three matters. The first is evidence, the second confession and the third is the qasama oath.
There are certain preconditions in the killing which will be dealt with.
[Hashiyya: A consequence of equality is that a free man is not killed for a slave nor
a Muslim for a non-Muslim because the higher is not killed for the lower. As for protection, a harbi is not entitled
to retaliation since he is not safe from being killed. This, of course, is as long as the person is not killed for financial
gain. In such a case, the higher is killed for the lower. The criminal in this case must be one with legal responsibility
(adult, sane), intend the blow, and the victim must have protection, either by Islam, safe conduct, or jizya. Retaliation
is not carried out on a child or mad person or someone who errs nor someone who kills someone with no protection.
[For evidence, the minimum is two men. Homicide which obliges retaliation is not established
by one man and two women. The right to blood money, however, is established by that. In al-Jawahir, it states that
the precondition for the validity of the testimony is agreement about the description of the killing. If the two witnesses
differ in their description, as when one says that he slaughtered him and the other that he burned or wounded him, and the
accused denied what they say and the relatives claim both, there is no entitlement to his life. If they swear the qasama
to one version, the testimony of one is cancelled since the accused and the relatives agree that it was untrue. Confession
is when the accused make a voluntary confession without being forced to do so.]
The qasama can be obliged when the killer in sane, adult and equal to the victim in respect
of deen and freedom and is not his father, and the relatives agree on killing. The oath is taken by two or more. Furthermore,
there is suspicion, i.e. circumstances which strengthen the claimant's side and it is probable that he is telling the truth,
as when a reputable person sees the victim in his blood and the accused to close to him with the trace of killing on him,
as he is stained in his blood and the knife in his hand.]
37.1b. Form of the qasama
The form that the qasama takes is that the relatives [of the victim] swear fifty oaths and then
they are entitled to take the life of the accused. If it was premeditated murder, then the minimum required is that two men
swear the oaths. More than one man is not put to death as a result of the qasama.
[ The relatives, who must be 'asaba (paternal relatives) of the victim, whether they are his
heirs or not, swear the oaths. If there are fifty of them, they each swear one oath: "By Allah. There is no god but Him. So-and-so
killed him or he died from the blow he struck." According to the Muwatta', then they are entitled to the life of the
accused. In premeditated murder, not less than two men of the 'asaba must swear in case of inadequate evidence, and
that takes the place of evidence. As the testimony of one man is not enough for evidence, it the same applies here. One is
not enough.
[Hashiyya: If there are no 'asaba by lineage, then the 'asaba by clientage
swear. The qasama obliges retaliation if it was deliberate and blood money if it was accidental. The oaths are sworn
one after another and then they are entitled to his life. The Prophet, may Allah bless him and grant him peace, said, "Will
you swear fifty oaths so that you will be entitled to the blood of your companion?"]
If a group are accused of homicide, and there is a qasama, it is said that the qasama
is against one man, and it is said that it is against the entire group and then they choose one of them to execute.
[Hashiyya: When a group deliberately kills someone acting together out of aggression
and he dies immediately or is mortally wounded, and the actions of each of the group cannot be distinguished and it is unclear
which was the mortal injury or all the injuries led to death, then they are all killed without the qasama. In other
words, the murder is established by evidence or confession. If the qasama is required, then only someone
directly connected to the murder is killed when the blow was not immediately. Then only one is killed through the qasama
process. When this happens, the rest are given a hundred lashes and imprisoned for a year. ]
37.1c. When the qasama is necessitated
Qasama is obliged by the statement of the dying man, "So-and-so killed me" or there is a
witness to the killing, or two witnesses to the wounding if he then survives long enough afterwards to eat and drink.
[ In the first case, Malik and all his people do not disagree that it is suspicion of deliberate murder
which obliges the qasama and retaliation. The same applies to a single eye-witness to the killing, when he is reputable.
The relatives swear with his testimony and they are entitled to his life.
[Hashiyya: This is when the victim who makes the statement is adult, free, Muslim and
sane. There is disagreement about accidental killing. The well-known position is that the relatives take the qasama and are
entitled to blood money. It is said that there is no qasama in that because it is a financial claim, and that is reported
from Malik.
As for the witness to the killing, it would appear from the wording that the witness can be reputable
or not, and this is reported from Malik. The well-known position is that that does not constitute suspicion because his testimony
is omitted legally. Two women are like one man in this. Death also has to established for the process to continue.]
There is also the case where two witnesses testify to seeing the injury, meaning the blow, or the blow.
That is also considered suspicion when there is testimony of one reputable eye-witness to the injury or the blow, deliberate
or accidental, according to the statement of the victim, "So-and-so wounded me, or hit me." Then the relatives take the qasama,
swearing that he died of that wound or blow. If he dies immediately or is struck a mortal blow, he is killed for him without
qasama. "Eating and drinking" is not meant literally, but refers to a delay after eye-witness of the wounding or blow,
for a day or more, even if the victim does not eat or drink.]
37.1d. When the claimants refuse to swear
If those who claim blood refuse to swear, then the one accused must swear fifty oaths. If he cannot
find those among his relatives who will swear with him, then the accused himself swears fifty oaths. If a group are accused
of murder, then each of them must swear fifty oaths.
[ If all or some of them refuse to take the oath for the deliberate killing when the qasama
is obliged by the statement of the victim or a witness to the killing, then the suspect swears with them. If the accused swears
fifty oaths, then he is innocent. If he refuses, he is imprisoned until he swears and he is not released from prison unless
he swears.
[Hashiyya: This is when the relatives of the deceased are the same degree in lineage
or closer than others, as when the son refuses when the uncle is present. Such a refusal is not considered if the one who
refuses has a more distant degree, as when an uncle refuses when the brother is present.]
In the case of an accused group, each swears fifty oaths and is only innocent by swearing fifty oaths.
37.1d. Fifty oaths
When the relatives seek blood, fifty men swear fifty oaths. If they are less than that, the oaths
are divided between them. A woman does not swear in a case of premediated murder.
[ Al-Aqfahasi said, "This is the position of 'Abdu'l-Malik. It is that it is not permitted for only
two to swear when there are more present. If there are less than fifty, then the oaths are divided between them. If there
are two then each swears 25 oaths." If there are more than fifty, then fifty of them satisfy the requirement.
A woman does not swear in a caseof wilful killing, whether or not there is a male with her because
being male is a precondition to the entitlement to taking blood by the qasama. If there are only women, then the victim
becomes like someone with no heirs and the accused must swear the oaths to clear himself.
[If the accused then refuses to swear, he is imprisoned until he does so.]
37.1e. Accidental homicide
In the case of an accidental homicide, the heirs, male or female, swear according to what they inherit
of the blood money. If the division of the oaths is uneven, then the one with the largest share swears the remaining oath.
[ In the case of two, each swear twenty-five oaths. In three, each swear 16 and two-thirds oaths, so
each mends the shortfall which goes to his portion and so they each swear 17 oaths. If the division is uneven and, for instance,
there is a son and a daughter, the factor is three and the male swears 33 and a third and the female 16 and two-thirds, and
so the female has the larger fraction and so the daughter swears 16 oaths.]
37.1f. Oaths of heirs is a precondition
When some of the heirs are present swear to gain the blood money on account of accidental killing,
they must swear all the oaths. Then those after them later swear according to their shares of the inheritance.
[ The oaths must total fifty in Malik's view. Otherwise they are not entitled to any of the blood money.
When those who were absent at the time of the swearing arrive later, then they swear and the oaths of those present before
them is not sufficient. Al-Fakhani said that that is because part of the precondition of taking this property is to have the
oaths. When the one who is present swears, he is entitled to his share of it, and any heir who comes later must swear according
to his portion of the oaths and then he takes his share. He does no swear all since the earlier swore all the oaths.]
37.1g. Manner of swearing
They swear the oaths while standing. People living in the provinces of Makka, Madina or Jerusalem
should be brought to those places to perform the qasama. People of other provinces are not summoned to their provincial
centre unless they are a short distance from it.
[ This description of taking oath applies to the qasama and to oaths sworn for financial rights.
In the well-known position, it is done standing to deter them lest falsehood refute truth.
[Hashiyya: There are two views about what happens if they refuse to swear standing.
Ibn al-Majishun says that it can be done while sitting. Standing, however, is the well-known position of the School, and refusing
to do so nullifies the right to blood money.]
The apparent meaning of the text is that the time is not made hard for them, but the place is.
The meaning of provinces is that those who are subject to those locations are summoned to those places
for the qasama to make it hard for them, even if there is a great distance between them and these places, like ten days, because
that will deter the liar because of the nobility of the site. That only applies to these three places. What constitutes a
short distance varies in definition. Some say three days and some say ten days.]
37.1h. Not swearing for wounds
There is no qasama in the case of wounds, nor for slaves, or one of the People of the Book,
nor if the body is found between the battle lines or found in the quarter of people.
[ This is when someone wounds someone else and has no evidence. There is no qasama. There is
retaliation for deliberate wounding and blood money for the accidental, i.e. when there are two witnesses, there is blood
money for the accidental and retaliation for the deliberate. If there is only one witness, he swears one oath with the witness
and takes the blood money for the accidental injury and retaliation for the deliberate [when there is equality]. If the claimant
does not swear, the wounder is free if he swears an oath. Otherwise he is imprisoned for the deliberate wound and indebted
for the accidental.
There is no qasama for killing a slave because he has a lower rank than the free. When it is
established that a person killed him by two witnesses, he is liable for his price, whether intentional or accidental, whatever
it is, and he receives a hundred lashes and is imprisoned for a year.
There is no qasama between People of the Book. This does not mean if the killer and victim are
both unbelievers. What is meant is when a dhimmi is found dying and says, "I was killed by so-and-so," who is a Muslim,
and two reputable men witness his statement, there is no qasama for him. He owes his blood money from his own property
if it was deliberate and the 'aqila (tribe) pay if it was accidental. If there is only the claim of a relative of the
unbeliever against a Muslim , one pays no attention to it.
There is no qasama for someone found between battle lines of Muslims when the two groups are
following their interpretation since each group believes it is permitted to kill the other since he takes its money, for instance,
and one of them dies, his blood has no legal consequence.
There is no qasama a victim is found in the quarter of a people, and the place where the victim
was found was one where people other than the people who live there pass through it. If other than its people do not pass
through it and a murder victim is found is from other than its people. That constitutes inadequate evidence.]
37.2 Pardon
37.2a. No pardon in murder for gain
There is no pardon in the case of murder done for financial gain.
[ When someone kills a person in order to take his property, then it is not permitted to pardon him,
or there is no pardon which is effective, even if the victim was an unbeliever and the killer a free Muslim because killing
in this way is hiraba (aggravated robbery) and when the robber kills, he must be killed, even if it is for a slave or an unbeliever.
Pardon is not permitted in this because it is the right of Allah. According to this, he is killed by a hadd punishment, not
retaliation.]
[Hashiyya: Pardon in this case cannot be issued by the victim, relatives or ruler,
even if the victim is an unbeliever, because this is a right of Allah and pardon is not permitted in it.]
37.2b. The victim pardoning his killer
A man may pardon his murderer if he was not killed for financial gain. He may pardon for accidental
killing from the disposable third of his state.
[ This is when he pardons after he has been dealt a mortal blow, and then the relatives cannot say
anything. If it is accidental, that has to come from the third because of the blood money is part of his property and the
heirs can forbid him to dispose of more than a third because his financial dealings are restricted while he is in this condition.]
37.2c. Pardon granted by the heirs
If one of the sons of the victim pardons, then the killer is not killed, but the other heirs still
receive their shares of the blood money. Daughters cannot pardon when there are sons.
[ This is once the right to blood has been established and the son is an adult. The killer is not killed
because blood cannot be divided. If part of it is cancelled, it is all cancelled. When one of the sons cancels killing or
forgoes his share, the other sons still are entitled to their shares of the blood money. When there are sons, daughters do
not pardon, nor do sisters pardon when there are brothers. Pardon and taking in full is a right of the 'asaba (male
paternal relatives) rather than that of the females equal with them.]
37.2d. Punishment of a pardoned murderer
Someone who is pardoned for wilful killing receives a hundred lashes and is imprisoned for a year.
[ This also applies when retaliation cannot be carried out on the killer because of lack of equality,
as when a Muslim kills an unbeliever. This punishment was carried out by the Salaf, may Allah be pleased with all of them.]
II. BLOOD MONEY
37.3. The tariff for blood money (diya)
37.3a. The tariff for accidental homicide
The blood money for people with camels is one hundred camels. For those who use gold, it is one
thousand dinars, and for those who use silver it is 12,000 dirhams.
[ Diya is derived from wadi, which means destruction. Since it is obliged by death, it
is called that. It is a technical term for the indemnity obliged by killing a human being in recompense for his blood. What
is obliged in killing another can be called his value as what is obliged on account of killing a slave is his value. Blood
money is obliged by the words of the Almighty, "Anyone who kills a believer by mistake should free a believing slave and
pay blood-money to his family." (4:91)
[In the Muwatta', the Prophet, peace and blessings be upon him, is reported as stating
that blood money is "one hundred camels for a life." There is consensus on that.]
It varies according to the perpetuator. People with camels are nomads and tent people. It is 100 camels
taken from five categories. People of gold are like the people of Egypt and Syria, and people of silver are like the people
of Iraq. His words imply that blood money is only from these three categories, and that is the case in the well-known position.
It is not taken from cattle nor sheep nor goods.]
[Hashiyya: If, however, both parties agree on something else, it satisfies the requirement.
Those who oppose the well-known position and allow cattle and the like, say that it is 200 head of cattle and 1000 sheep.
Malik said in the Muwatta', "The generally agreed on way of doing things in our community is that camels are not accepted
from the people of cities for blood-money nor is gold or silver accepted from desert people. Silver is not accepted from the
people of gold and gold is not accepted from the people of silver."]
37.3b. The tariff for wilful killing
The blood money for murder, if accepted, in camels is 25 four year old she-camels, 25 five year
old she-camels, 25 three year old she camels and 25 two year old she-camels The blood money for accidental homicide is 20
of each type and 20 male three year old camels.
[ If blood money is accepted or retaliation impossible due to the disparity, then the camels consist
of these four types: 25 which are hiqqa, 25 which are jadha'a, 25 which are bint labūn, and 25 which
are bint makhād. In the case of the accidental killing, there are twenty of each of the four categories, as well as
twenty three-year old male camels (ibn labūn). The blood money for intentional killing has less categories than the
accidental killing, even thought the number is the same.
[Male camels are less valuable than female ones.]
37.3c. When a father kills his son
The blood money is made more exacting in the case a father who kills his son by throwing a piece
of iron at him and killing him. He is not put to death for his death, but he must pay 30 five year old she-camels, 30 four
year old she-camels and 40 khalifas, which are pregnant camels. It is said that the 'aqila [the tribe] pay that
and it is also said that it comes from his own property.
[ This includes anything which he does without the intention to kill him. He is not executed because
of the respect for fatherhood. If circumstances indicate the he actually intended to kill him, then he is killed for him in
the well-known position.
[Ashhab takes the position of Abu Hanifa and ash-Shafi'i that the father is not killed for
his son because he was the reason for his existence. Included in this judgement are mothers and grandparents.]
There is disagreement about who pays the blood money. The well-known position is that the killer, father
or anyone else, pays it immediately and it is not delayed. If he has property at that time, it is taken from him. Otherwise
it awaits his wealth. It is said that this heavier blood money is owed by the 'aqila (tribe). Ibn al-'Arabi says that
it is the tribe which pays the blood money. It is said that it comes out of his own property if he has property. If he does
not, then the tribe pays it.]
37.4. The tariff for other than Muslim men
37.4a. Half the tariff
The blood money of a woman is half that of a man. The same applies to the blood money of Kitabis,
and their women is half of that of their men.
[ The blood money of a free Muslim woman is half that of a free Muslim man. So her blood money is fifty
camels, in fourths or fifths according to whether the killing is accidental or deliberate. The more severe form [if the victim
is a daughter] is 2/3rds of 16 and a third of camels from every type. In money, it is 500 gold dinars and 6000 silver dirhams.
The same is true for the Jews and Christians. It is half that of the Muslims based on what an-Nasa'i
reports that the Prophet, may Allah bless him and grant him peace, said, "The blood wit of the people of the dhimma
is half that of the Muslims. There is half of that blood money for Kitabi women.]
37.4b. Magians
A Magian's blood money is 800 dirhams and that of their women half of that. The same principle applies
to penalties for wounds.
[ A Magian, who is not a Kitabi, has this amount in silver and in gold it is 66 dinars and in camels,
6 and two-thirds in camels. Their women have half of that. The same portion applies to wounds.]
37.5 Blood money for mutilation
37.5a. Full blood money for hands, feet and eyes
There is full blood money for loss of both hands or feet or eyes, and it is half for the loss of
one of them.
[ The full money is for the loss of both. There is half for loss of one. Ibn 'Umar said, "This is for
accidental wounding. When it is deliberate, retaliation can be taken from the criminal."]
37.5b. Full blood money
There is full blood money due for cutting the cartilage of the nose, causing loss of hearing, causing
loss of mental understanding, breaking the back, crushing the testicles, cutting off the penis, and cutting off of the tongue
or damaging it so that the victim cannot speak. There is full blood money due for destroying the breasts of a woman or for
causing the loss of the eye of someone with one eye.
[ If only part of the nose is cut, then it is calculated according to the damage. There is full blood
money for causing loss of hearing. If it only one ear, then it is half, even if he only hears by it. When his mental faculties
are impaired because a blow, there is full blood money. When his mental faculties is impaired by the amputation of his hands,
he is owed double blood money. If both testicles and penis are cut off, double blood money is owed.
[The is half blood money for one testicle.]
In the case of the tongue, if someone cuts off part of it by which one speaks and he cannot speak,
that entails full blood money because the tongue is for speech, not touching. There is discretion (hukuma) on any other
part of the tongue. Hukuma means that the one evaluates the victim like a sound slave. If a sound slave is worth ten,
for instance, then after the injury is estimated at nine, the difference is a tenth, and so a tenth of the blood money is
demanded.
There is full blood money for the breasts of a woman, whether the cutting is partial or total. There
is full blood money for the loss of the single eye of a one-eyed person when that is accidental. If it is deliberate, that
will be mentioned.]
37.6. Tariff for lesser wounds
37.6a. The mudiha and loss of fingers and toes
For a mudiha wound, which is a head wound which exposes the skull, the penalty is five camels.
There is the same amount for loss of a tooth. There are ten camels due for the loss of each finger or toe, and three and a
third for the tips of fingers and toes, and five camels for the tips of the thumb or big toe.
[ These amounts are for accidental wounds. There is retaliation for deliberate wounding. In the case
of loss of a tooth, that also applies if it becomes very disordered (and turns black or is discoloured), and whether it is
from the front or the back. In the case of tips of fingers, a finger has three parts, and there is a third of each part. Again,
this is in the case of accidental injury. There is retaliation for the deliberate wounding.]
37.6b. Other wounds
There is fifteen per cent for a munaqqila wound. The mudiha is a head wound which
exposes the bone and the munaqqila is one affects the skull, but does not reach the brain. If it reaches the brain
it is a ma'muma wound, and there is a third of the blood money for it. The same holds for ja'ifa (abdominal)
wound.
[ Fifteen per cent is 15 camels and intentional and accidental injuries are the same in it and there
is no retaliation in such a wound since it can prove lethal.
[Fifteen per cent is 150 dinars or 1800 dirhams.]
The mudiha exposes the bone and removes the skin and flesh which covers it. It is only on the
head, forehead and cheeks. A wound is mudiha if it exposes the amount of a needle of the bone.
A munaqqila wound is one which chips the bone but which does not reach the brain. Any wound
which reaches the brain, even the amount of a needle, while there still remains a thin membrane on the brain which, if removed,
would result in death, is called a ma'muna. It is only on the head or forehead. There a third of the blood money for
it, which is 33 1/3 camels, or 333 dinars or 4000 dirhams.
A ja'ifa wound is one which reaches the gut and it is only in the back or abdomen. It obliges
a third of the blood money.]
37.6c. Lesser wounds
One exercises ijtihad (discretion) in the case of a wound less than a mudiha and in
the case of other wounds.
[ Cases whose amounts are not specified by the Shari'a are decided by judicial determination (hukuma).
It is that one estimates the decrease in the value of a sound slave after receiving such a wound. For instance, if the slave
was worth ten on the day of the injury and afterwards is worth nine, there is a tenth of the blood money owed. It is the same
in a wound less than a ja'ifa wound which is accidental. There is only hukuma.]
37.6d. Waiting for the wound to heal
The blood money for a wound is only paid after it has healed. If a wound less than a mudiha heals
without leaving a scar, there is no compensation for it.
[ It is only paid after it heals because it is not known whether full money is obliged for it or not.
Similarly, there is no retaliation taken until after the wound has healed. Al-Aqfahasi said that. If it leaves no scar and
is less than a mudiha or a ja'ifa, there is no blood money. What is understood from what he says is that there
is something for something which heals with a scar, and that is based on the principle of hukuma as already explained.
37.7. Retaliation (Qisas)
There is retaliation for deliberate wounds, unless such a wound may prove fatal, such as a ma'muna,
ja'ifa, and munaqqila, or breaking a thigh, crushing the testicles, breaking the back, and such injuries. Blood
money is paid for such injuries.
[In the case of wounds which would probably lead to death quickly, like crushing the testicles, breaking
the breast bone and breaking the back, blood money is paid for an intentional injury, i.e. blood money is calculated in it.
The blood money is paid in full if the injury demands full blood money, like breaking the breastbone, neck or back, or a third
or a tenth or a twentieth as was made clear.
[Hashiyya: In the case of deliberate injury, the Qadi must discipline the perpetrator,
whether or not retaliation is taken.]
37.8. The clan's obligation in the blood money
37.8a. Responsibility for the accidental, not the wilful
The 'aqila (tribe) do not have to pay for deliberate murder nor for homicide based on confession.
They can pay for accidental injuries if the amount is a third or more of the full blood money. Amounts less than a third are
paid by the perpetrator from his own property.
[ They do not have to pay the blood money for intentional killing in which retaliation is cancelled
by pardon or anything else which cancels it. Then it is immediately due from the property of the perpetrator. The Ōaqila do
not have to pay for the accidental which is based on confession, and the perpetrator must pay it himself because of possible
collusion between the killer and the relatives of the victim.
The 'aqila are called that because they pay ('aqila) the blood money for him.]
37.8b. Major wounds and the 'aqila
As for a deliberate ma'muna or ja'ifa wound, Malik said that the blood money paid
by the tribe ('aqila). He also said that it is said that it is paid from his property unless the perpetrator is without
money. Then the 'aqila pay it because there is no retaliation in the case of such wounds when they are deliberate.
It is the same with penalties which reach a third of the blood money when there is no retaliation because that might prove
fatal.
[ The first is the well-known position. Retaliation is not taken when it might result in death.]
37.8c. The clan does not pay for a suicide
The 'aqila does not pay anything for someone who kills himself either deliberately or accidentally.
[ It is blood with no consequence since the Prophet said, "Whoever kills a believer accidentally.."
and so the blood money is obliged for the one who kills someone else. That indicates that it is not obliged when someone kills
himself.]
37.9. Blood money paid to a woman
A woman is paid the same compensation as the man up to a third of the blood money of a man. If compensation
reaches a third, it reverts to her portion of the blood money (which is half).
[ Up to a third is taken for things like her limbs as it is for the man with the same amount as that
for a man. When the amount is more than a third, the tariff reverts to the blood money of women. When three of her fingers
are severed, she is owed 30 camels since compensation is equal to a man in what is less than a third of his blood money. When
four of her fingers are cut, she has 20 camels because if they were equal, she would be obliged forty and that is more than
a third, and so it reverts to half of what is obliged for a man, which is 20. The people of Madina and the seven fuqaha' agree
on that.]
37.10 Cases where the parties are unequal
37.10a. Murder by a group
When a group murder a man, they are all killed for his murder.
[ Linguistically a group is from 3 to 10, but for the fuqaha', it is simply a group. They are all killed
if they colluded to kill him.
[Hashiyya: It makes no difference between they participated in the actual deed or only
some did it while the others were present. It is the same if the victim was a woman.]]
37.10b. Murder by someone drunk or insane
If a drunk kills, he is killed. If a madman kills, his tribe pay the blood money.
[ Someone drunk by drinking what is forbidden, like wine, knowing that it forbidden but deliberately
drinks it. That is because he voluntarily becomes drunk and so has no excuse. If he becomes intoxicated from medicine, then
he has an excuse. This is when he kills someone protected who is his equal or higher.
The mad person is one who does not recover. The 'aqila pay his blood money when it reaches a
third.]
[It is the same when he has bouts of insanity and kills someone in one of those bouts. If
he kills someone in a period of sanity and then goes mad, he is executed when he regains his sanity.]
37.10c. Minors
The deliberate injury inflicted by a minor is the same as an accidental one. It is paid by the 'aqila
if it is a third of the blood money or more. Otherwise it comes from his own property.
[ There is no retaliation taken from a minor.]
37.10d. When the victim is of the opposite sex
A woman is killed for a man and a man for a woman. Retaliation is exacted from each for wounds.
[ There is agreement about a woman being killed for a man. The majority say that a man is killed for
a woman since Allah says, "We prescribed in it for them: a life for a life," (5:47) and that abrogates His words,
"free man for free man." (2:177)
Retaliation is exacted for wounds since Allah says, "Retaliation for wounds." (5:47)]
37.10e. Free and slave
A free man is not killed for a slave, but a slave is killed for a free man.
[ A free Muslim is not killed for a slave. A free non-Muslim is killed for a Muslim slave. If a free
Muslim kills a slave, he owes his price and the value of any wounds he inflicts. A slave is killed for a free Muslim. Ibn
'Umar says, that that is when the relatives want that because they can choose between killing him or letting him live. If
they let him live, the master can choose between handing over the slave or paying the blood money of a victim.]
37.19f. Non-Muslims and Muslims
A Muslim is not killed for an unbeliever but an unbeliever is killed for a Muslim.
[ It does not matter whether the Muslim is free or a slave, but an unbeliever is killed for a free
or slave Muslim.]
37.10g. No retaliation between unequals
There is no retaliation between a free man and slave in the cause of wounds, nor between a Muslim
and an unbeliever.
[ That is because equality is obliged for blood. In short, if the victim and perpetrator are equal
in freedom and Islam, retaliation can be taken from him for homicide and wounds. If the perpetrator is higher in either category,
there is no retaliation in wounds or homicide. If the perpetrator is lower than him, there is retaliation in homicide, but
not wounds.
There is no retaliation between Muslim and unbeliever in wounds. If a Muslim injures an unbeliever,
he owes the blood money for that limb if it has a specific blood money. If it is not specified, there is judicial discretion
(hukuma). If an unbeliever injures a Muslim, he pays the blood money in that for which there is a specific blood money,
and there is hukuma in what is less than that.]
37.11. Cases of no legal liability (hadar)
37.11a. Damage done by animals
Someone who is driving, leading or riding an animal is liable for anything that the animal tramples
on. If the animal tramples on something which was not a result of what the person did, or while it is stopped without anything
done to it, there is no legal liability for that.
[ The driver drives the animals from behind. They are liable for what the animal destroys with its
feet, but not for what it destroys with its tail or mouth, or if it is standing and is not provoked by a blow or goad. There
is no penalty for this by the sound transmission that the Prophet, may Allah bless him and grant him peace, said, "There is
no blood money for a dumb animal. There is no blood money for a well and there is no blood money for a mine."]
37.11b. Wells and mines
If someone dies in a well or a mine without any one doing something to cause that, there is no liability.
[ When someone falls down a well or mine, like someone who works in it and dies. His employer is not
charged in it because he has not down anything for which he would be responsible and hence he has no liability.]
37.12 When and by whom blood money is paid
The tribe ('aqila) pay the blood money in instalments over three years. If it a third of the blood
rate is owed, it is paid in a year. If it is half, it is paid over two years. Blood money is inherited according to the shares
of inheritance.
[ Full blood money is paid for the accidental killing of a Muslim or someone else. A third of the tariff
is due for injuries like that of a ma'muna and ja'ifa. Half would be due if the victim had lost a hand or foot.
Full blood money can also be paid be instalments over four years.
[The instalments are paid in equal amounts. Less than full blood money can be paid in monthly
instalments]
Blood money, whether wilful or accidental, is inherited according to the shares of inheritance. Each
of the heirs takes the portion allotted him in the Book of Allah.]
37.13. Ghurra penalty for causing a miscarriage
There is a ghurra owed for causing the loss of the foetus of a free woman. A ghurra
is a slave or slavegirl worth fifty dinars or 600 dirhams. The ghurra is inherited by the heirs according to the Book
of Allah.
[That is a twentieth of the blood money of the father or a tenth of that of the mother. The well known
position is that only gold rather than camels is paid for the ghurra. Al-Aqfahasi said that.]
[Hashiyya: This ruling applies to free Muslim or Kitabi woman when the father is a
Muslim, even if the pregnancy is the result of illicit sex. It is a pregnancy which would accord umm walad status to a slavegirl
and can consist of a lump of flesh, a clot or congealed blood. The miscarriage is the result of a blow. This is when the child
is born dead. If it is born alive, but dies because of the injury, full blood money is due.]
37.14. Killing a Relative
Someone who deliberately kills someone does not inherit either his property or his blood money.
Someone who kills a relative by accident inherits his property, but not the blood money.
[ He does not veil anyone since the one who does not inherit does not veil an heir. In the case of
accidental homicide, he inherits and veils. The form of that is that when there are three brothers. One of them kills another
and the third inherits a third from the blood money because there is only one brother with the killer because the killer does
not inherit from the blood money but does inherit a sixth from the property because the killer inherits from the brother and
veils the other brother, reducing his share from a third to a sixth.]
37.15 Ghurra in the case causing a slavegirl to miscarry
There is the same tariff for causing the loss of a foetus of a slave girl pregnant by her master
as there is for causing a free woman to miscarry. If she was pregnant by someone else, the fine is a tenth of the value of
the mother.
[ This is when the master is free and she miscarries. A ghurra is due in the form of a slave
or slavegirl. The umm walad is called a slavegirl (ama) here, which is not the technical term. If the parent
is not the master, then compensation is a tenth for a foetus whatever the sex of the miscarried foetus.]
37.16. Killing a slave
If someone kills a slave, he owes his value.
[If a Muslim kills a slave, he owes his price from his own property, whether it is accidental or deliberate
unless he kills him for financial gain. Then he is executed for Allah's right.]
37.17. Collective murder
If a group of people kills someone in aggraved robbery (hiraba) or for financial gain, they are
all killed, even if only one of them did the actual killing.
[ Whether they kill a free Muslim, slave or dhimmi. Killing for money is in order to steal his
property and hiraba, according to Ibn al-Hajib, consists of every action which is intended to take property when someone
cannot normally seek help, whether a man or woman does that.
[Anyone who commit highway robbery or causes alarm on the roads is a muhārib. The one
who commits this must be adult and sane. It can be in a city or a town.]
They are all executed when all of them undertake the killing, even if only one of them does it. If
one of them decides on that without any collusion on their part before, that is different from hiraba and gain, and
they are not all killed for one unless they conspired to kill him or if they all take part in it.]
37.18. Atonement for homicide
Atonement (kaffara) for accidental killing is mandatory. It consists of freeing a Muslim
slave, or, if that is not possible, then fasting for two consecutive months. If someone is pardoned for wilful killing, this
is best for him.
[ At-Tata'i said that it is not a precondition that the killer be legally responsible. That is taken
from the property of a child or mad person because that is what is prescribed A slave freed to fulfil the kaffara must
be Muslim, free of defects and a full slave. In fasting, the kaffara is two consecutive months. If he does not fast
that consecutively and breaks it deliberately, he must start again. If it is due to forgetfulness or illness, he does not
start again. This expiation is also recommended for the one who has been pardoned for wilful killing because of the gravity
of what he did.]
III. CRIMES AGAINST ISLAM
37.19 Crimes against Islam
37.19a. Zandaqa
A zindiq is killed and his repentance is not accepted. He is the one who conceals disbelief while
making an outward display of Islam.
[ This is a hadd punishment, not for disbelief, i.e. when he repents after we have exposed him.
The legal consequences are that when he is killed for a hadd, his property goes to his heirs. An example of his repentance
after being exposed is that he denies the zandaqa which is proven against him. If he admits it and does not repent,
his killing is not a hadd. It is disbelief and so his property is that of an apostate and his heirs do not inherit.
His property goes to the Muslim treasury. If he repents, it is not accepted. It is accepted if he comes in repentance before
he is exposed. Such a person was considered a hypocrite in the time of the Prophet.]
37.19b. Sorcery
The same is true for a sorcerer. His repentance is not accepted.
[ He is killed without being asked to repent once he has been exposed. If he comes in repentance before
he is exposed, then his repentance is accepted.]
37.19c. Apostasy
An apostate is killed unless he repents. He is given three days to repent. The same ruling applies
to a woman.
[ Someone who recants from Islam. Apostasy is disbelief after affirming Islam. If he does not repent,
he is killed. One does not execute him immediately but repentance is offered to him. If he refuses then he is killed. It is
obligatory to delay execution for three days. If he repents, there is no problem. If not, he is killed after sunset on the
third day. This judgement includes men and women. A pregnant woman is deferred until she gives birth.]
[Hashiyya: The School is that he is offered Islam every day without being punished
by beating or pain or made thirsty and without threats.]
37.19d. Someone who refuses to pray
If someone has not apostasised but affirms the prayer and yet says, "I will not pray," he is given
a respite until the time of the next prayer. If he does not pray, he is killed.
[ "I will not pray now and will pray later" or "I will not pray at all." He is still in the daruri
time in which he can pray one rak'at without considering being at rest or balance or recitation of the Fatiha.
This is to protect blood as much as possible. If he rises to pray, there is no problem. Otherwise he is killed with the sword
immediately.]
37.19e. Refusing to pay zakat
If someone refuses to pay zakat, it is taken from him by force.
[ Even if it leads to fighting him, and if he dies in that, his blood is of no consequence.]
37.19f. Refusing to go on hajj
If someone does not go on hajj, he is left to Allah.
[ He is not threatened by death or anything else since he may not have all the preconditions for the
hajj, even if that seems so outwardly.]
37.19g. Not praying out of denial
Someone who abandons the prayer out of denial of its obligatory is like an apostate. He is asked
to repent for three days. If he does not repent, he is killed.
[ The obligatory prayer. Denial means to reject its obligatory nature. Such a person is killed for
disbelief and not by a hadd. Then the funeral prayer is not said for him and he is not buried in the Muslim cemetery and there
is no inheritance between him and his heirs and his property goes to the Muslim treasury.]
[Hashiyya: The same applies to the one who denies the obligatory nature of zakat.]
37.19h. Insulting the Messenger of Allah
If someone curses the Messenger of Allah, may Allah bless him and grant him peace, he is killed
and his repentance is not accepted. If one of the people of dhimma abuses him outside of that which constitutes his disbelief
or curses Allah Almighty other than what constitutes his disbelief, he is killed unless he becomes Muslim.
[ When he says something to deprecate him. His execution is a hadd and hence it is of no use if he
repents or denies it when there is clear evidence of it. Repentance does not cancel a hadd. This is why he says that his repentance
is not accepted.]
[The same principle applies to someone who curses one of the Prophets or one of the angels
or denies one of the Books of Allah. If someone abuses someone whose prophethood is a matter of dispute, like al-Khidr, he
is strongly punished but not killed.
Statements of dhimmis which constitutes their disbelief would be things like a Jew saying, "He is not
a messenger to us, Our Messenger is Musa." Abuse beyond their intrinsic disbelief would be criticising the character of the
Prophet, may Allah bless him and grant him peace. An example of that which constitutes his disbelief is saying that God is
three or that He has a son.]
37.19i. Estate of an apostate
The estate of the apostate goes to the Muslim community.
[ It is placed in the treasury.]
37.20. Aggravated robbery (hirāba)
37.20a. No pardon
A bandit may not be pardoned when he is caught.
[ This is when he is captured before he repents because that is a hadd.]
37.20b. His punishment
If he has killed anyone, he must be killed. If he has not killed anyone, the ruler should exercise
his discretion according to the seriousness of his crime and the length of time he has been a robber. He may execute him,
or crucify him and then execute him, or cut off his opposite foot and hand, or exile him to another town to be imprisoned
there until he repents.
[ Whether his victim was a slave or unbeliever, he is still executed, even if the relatives of the
victim pardon because it is a right of Allah. ]
[This also applies to assisting in the killing by striking or holding the victim. This also
applies to adult. A child is not killed, but punished.]
If he has not killed, the ruler takes into consideration that which he think will be an adequate deterrent.
If is strong, he receives the strongest of the punishments which is the cutting off the alternate hand and foot. If he is
not strong, it is the easier punishment, which is exile. The basis of this is the words of the Almighty, "The reprisal
against those who wage war on Allah and His Messenger and go about the earth corrupting it, is that they should be killed
or crucified, or have their alternate hands and feet cut off, or be banished from the land." (5:35) Execution is in the
normal way with the sword or the spear in the throat. Crucifixion is being tied to a post standing, not inverted. Alternate
cutting is to cut off the left hand and right foot. If he commits robbery after that, he is killed.
37.20c. When a robber repents before he is captured
If he is not caught until he comes in repentance, none of these rights, which are Allah's rights,
are exacted. The rights of people are taken in the form of blood or property.
[ None of the penalties for aggravated robbery are applied because Allah says, "except for those
who repent before you gain power over them." (5:36)
As for the rights of human beings and other rights of Allah, like those for illicit sex and drinking
wine, these are not cancelled at all. So he is liable for the crimes he committed in the course of his bandrity because repentance
has no effect on the rights of people. They are is taken from his property and he is indebted for it if he has no property.]
37.20d. Individual responsibility
Each member of a gang of thieves is liable for all the property they take. The entire group is executed
for the murder of one person in banditry or for financial gain, even if only one of them did the actual killing.
[ Thief here means the robber (muharib), not a simple thief. ]
[Ibn Rushd says that when a group of thieves help one another, they are guilty of aggravated
robbery. This is the predominant view. The same applies to rebels and usurpers when they form a band.
37.20e. Killing a dhimmi in a robbery
A Muslim is put to death for killing a dhimmi in aggravated robbery or for financial gain.
[ A robber is killed if he kills a slave in this manner before repenting. If he repents after he has
killed, then he owes the blood money for a dhimmi and the price of the slave and is not killed for them.]
IV. THE HUDUD
37.21. Illicit sex (zina) by a someone who is muhsan
[Illicit sex (zina) is the deliberate intercourse of a Muslim who is legally responsibility
with a human being with him he or she has no legal right (by marriage or ownership). It is forbidden as indicated by the Book,
the Sunna and consensus.
[Hashiyya: There must be two, and one of them must be a male. Children and the insane
are excluded from responsibility for the action, and that is not legal zinā in respect of them. For legal zina,
it must be a Muslim. The intercourse of an unbeliever with another unbeliever is not called legal zina and is not subject
to the hadd. If an unbeliever has illicit sex with a Muslim woman, he does not receive the hadd, but is severely punished,
and she is subject to the hadd. For it to constitute legal zina, it must involve penetration of human private
parts by the penis. "Deliberate" intercourse excludes the one who does so in error or in ignorance of the prohibition - as
when a new Muslim does that not knowing that it is forbidden.
Proof of its illegality in the Book is, "And do not go near to fornication. It is an indecent act,
an evil way." (17:32) In the Sunna, we find that the Messenger of Allah, may Allah bless him and grant him peace,
said, "One of the greatest wrong actions is that you make something equal with Allah when He created You. Then that you kill
your child fearing he will eat with you. Then that you commit adultery with your neighbour's wife." There is no disagreement
in the Community that it is forbidden."]
There are three punishments for it: stoning, flogging, and exile after flogging. He starts with the
first.]
37.21a. Stoning
If someone commits illicit sex and is a free muhsan, he is stoned to death.
[ This is a free legally responsible Muslim, male or female. He is stoned with medium sized stones,
not large ones to avoid disfigurement or small to avoid torture. People should avoid hitting the face and private parts and
throw them at the back or abdomen.]
[Hashiyya: According to the School, no pit is dug for this.]
37.21b. Who is considered to be "muhsan"
One acquires the status of being muhsan by marrying a woman in a valid marriage and having
valid intercourse with her.
[ Ihsan linguistically means chastity. In the Shari'a it is when a sane adult male marries a
Muslim or Kitabi woman, free or slave, who is adult or not adult but at an age when sexual intercourse is possible, in a valid
marriage – the invalid marriage does not count - and has permitted intercourse with her. If he has intercourse with
her while she is having her period, this does not create ihsan.]
37.22 The punishment for illicit intercourse by a non-muhsan
37.22a. The punishment
If he is not muhsan, he receives a hundred lashes and exiled to another town by the ruler
and kept there for a year.
[ And he is free Muslim and responsible. Exile is the distance about three days. If he returns before
the year, he sent back there or to another place of a similar distance.]
[The prisoner pays for the transport there if he has money. Otherwise the treasury pays.]
37.22b. Slaves and illicit sex
A slave who commits fornication receives fifty lashes, as does a slavegirl, even if they are married.
They are not exiled nor is a woman exiled.
[ The text comes on the slavegirl. Allah Almighty says, "If they commit fornication, they should
receive half the punishment of free women." (4:25) Slaves are by analogy with her. It does not matter that they are married,
because freedom is one of the preconditions of being ihsan and so there is a difference.
A slave is not exiled because that would cause harm to his master. A woman is not exiled because she
needs to be guarded and protected. Exile would expose her to shame and the occurrence of the like of that for which she was
exiled.]
37.23. Conviction for illicit sex (zina)
37.23a. Establishment of guilt
The hadd for illicit sex is only carried out when proven by confession, clear pregnancy,
or the testimony of four free men who are adult and of good character who see the actual act, like a kohl stick entering a
bottle.
[ If someone confesses to zina, even once, that obliges the prescribed hadd. Clear pregnancy
is proof when the woman has neither husband nor master. The third form of establishing guilt is the testimony of four free
men who must see the act of penetration in illicit sex.
[Hashiyya: In the case of confession, it must be someone whose confession is valid
by his being adult, sane and not compelled.]
37.23b. Testimony to this must be identical
They must testify at the same time, and if one of them does not give the full description, the other
three who gave it in full are given the hadd (for slander).
[ They all testify at the same time, and must agree on what they saw of the penetration. If they meet
and one saw it after another, that is not enough because it can be different acts. If one does not describe it in full, as
when he says, "I saw him between her legs but that is all I saw," then the other three receive the hadd for slander,
but not the fourth. He is punished at the discretion of the ruler, even if it is worse than the hadd.]
37.24. Minors
A hadd is not inflicted on someone who has not reached puberty.
[ He or she is not yet legally responsible, whether he or she is the active or passive party. The authorities
must, however, discipline him in order to rectify his state.]
37.25. Illicit sex with a slavegirl
37.25a. A son having intercourse with his father's slavegirl or vice versa
The hadd is carried out on someone who has illicit sex with his father's slavegirl but not
for someone who has sex with his son's slavegirl. He must, however, pay him her value, even if she does not become pregnant.
[It is not carried out on the father because of lack of certainty of ownership, which is not the case
for the son. The estimation of her price is made on the day of intercourse and the son cannot have intercourse with her after
that. After the father pays her price, he must observe istibra' (a waiting period to ascertain if she is pregnant)
if he wishes to continue having intercourse with her unless the son has had intercourse with her. Then she becomes haram
for both, but he still must pay the price to his son because he has destroyed her for him.
37.25b. A partner having intercourse with a jointly owned slave
A partner in a jointly owned slavegirl is punished if he has sex with her and is liable for her
price if he has money. If she does not conceive, the other partner can choose between keeping her or being reimbursed for
her value.
[ This is true even if the partner gives him permission to have intercourse with her because that is
not permitted by the simple permission of the partner when he is still a partner. He must be disciplined, but less than the
hadd since the Prophet, may Allah bless him and grant him peace, said, "Avert the hudud on account of doubts." He owes
her price if she becomes pregnant and then the partner cannot keep his share in her and continue the partnership because of
the establishment of the respect for birth, and she becomes his umm walad. He owes no price for her intercourse because
he is like someone having intercourse with his property. If she does not become pregnant, the partner can choose to keep his
share. He does not pay any fee or brideprice nor her depreciation. If the one who did this is wealthy, his partner can take
his share from him. If he is not, then he is in debt for the price according to what they agree on, immediate or delayed.]
37.26 A raped woman's proof of innocence
If a pregnant woman says that she was forced, she is not believed and receives the hadd unless
there is a witness that she was carried off until the abductor disappeared with her or she comes seeking help at the time
of the event or comes bleeding.
[ A free woman with no husband. The is not believed because the basic principle is that sex is normally
voluntary and so that is assumed to be the case unless compulsion is established and because believing her is a means to a
lot of illicit sex, given women's inclination to sex, whether she is someone who can be forced or not. She must produce evidence
of her truthfulness.
There are three ways of establishing her truthfulness. The first is a reputable witness to her abduction.
[It is said that one witness is adequate because it is a report, and a report is sufficient
to bring about a doubt which cancels the hadd.]
The second is when she calls out for help during the event. The third is when comes in a state which
indicates her truthfulness, even if she did not cry out in the event. That cancels the hadd. ]
["Bleeding" refers to a virgin. In the same of a woman who is not a virgin, some physical
evidence of violence is required.]
37.27 A Kitabi rapist
If a Christian rapes a Muslim woman he is killed.
[ Or a Jew. When the rape is proven by four witnesses because this action violates their contract.
When one of them breaks the contract, he is killed.]
[If he rapes a Kitabi woman married to a Muslim, there are two positions about whether he
is executed. If he marries a free Muslim woman and she does not know that he is a dhimmi, she receives no hadd
and there is disagreement about killing him. If she knows that he is a dhimmi but does not know that it is forbidden for her
to marry a dhimmi, she receives no hadd. He is not killed, but is punished severely. Four witnesses to the actual
act are required, and the child has the mother's deen, not that of the father. He must pay the bride-price to her.]
37.28. Voiding conviction based on confession
If someone retracts a confession to illicit sex, he is released and let go.
[ Whether it is based on a doubt or not, during the hadd or before it. If he flees during the
hadd, that it is like retraction. Flight in the hadd indicates retraction by tasting the punishment. A doubt
would be like when he says, "I had intercourse in an invalid marriage and thought that it was illicit sex." He can also say
that he was lying in his confession. When the hadd is cancelled, the bride price of the woman is not cancelled when
she was forced. ]
37.29. The one who carries out the hadd punishment on slaves
A master imposes the hadd punishment for illicit sex on his slave or slavegirl is she becomes
pregnant or if there is other evidence in the form of four witnesses, or confession. But if the slavegirl has a free husband
or her husband is the slave of someone else, the hadd punishment is only carried out on her by the ruler.
[He also carries out the hadd punishments for slander and drinking, but not the hadd for theft.
That has several preconditions. The status of a slavegirl married to other than a slave of the master is different out of
the fear that he might misconstrue their being together. Such a case goes to the ruler since the spouse has a right if he
is free and his master if he is a slave.]
37.30. Homosexual sodomy
When someone commits the action of the people of Lut with a consenting adult male, they are both
stoned, muhsan or not.
[ The words are general, including free and slave and unbeliever. The action of the people of Lut was
anal intercourse between males, whether the male is a slave or not. He excludes the female from this ruling. A person is not
stoned for that, but if she is someone with whom intercourse is lawful for him, he is punished severely. If she is not lawful
for him, he receives the hadd for illicit sex. A precondition for stoning the passive partner is that he is adult.
That is also a precondition for the doer. If they are not legally responsible, then there is only discipline.]
37.31. Slander (qadhf)
[Qadhf in technical usage is something which indicates illicit sex or sodomy or denial of paternity.
It is forbidden by the Book, Allah Almighty says, "Those who accuse women who are chaste" (24:23) The sunna
is that the Prophet, may Allah bless him and grant him peace, flogged those who delved into the Lie (about 'A'isha). It has
preconditions which concern the slanderer and the slandered. He begins with the penalty.]
[Linguistically, it means "to throw stones at". It is used metaphorically for accusing of
disliked things, and it is one of the major wrong actions.]
37.31a. The penalty for slander
A free person who slanders is given 80 lashes, while a slave is given 40 lashes for slander and
50 for fornication. An unbeliever who slanders also receives 80 lashes.
[ An adult slanderer, Muslim or unbeliever, even drunk or a father, receives 80 lashes. The slave receives
half of that, male or female, Muslim or unbeliever. What is required is discrimination. A free unbeliever also receives 80
lashes because the ayat is general.]
[Ibn 'Arafa mentioned from the Mudawwana that there is no hadd applied on the
harbi, and Ibn Marzuq said that as well.]
37.31b. Slander which is not punished
There is no hadd for someone who slanders a slave or unbeliever. There is a hadd on
account of accusing a girl of fornication if she is of an age in which she can have intercourse, but there is no hadd
on account of slandering a boy, nor is the punishment carried out on a minor for slander or intercourse.
[ Slander means to accuse someone of illicit sex. A person is not flogged for slandering a boy because
there is no shame connected to him whereas there is for the girl. A child is not punished because his deeds are not recorded.]
[If he slanders a slave or unbeliever, he is punished, but not with the hadd, according
to at-Tahqiq.]
37.31c. Impugning someone's paternity or accusing someone of sodomy
A hadd for slander is imposed on someone who denies a man's parentage or implies that. If
someone calls a man a sodomite, he also receives the hadd.
[ This is about a free Muslim man or woman. It is the same if those slandered are children or mad.
It applies if someone attacks a person's lineage, however high. An example of that is saying, "You are not the child of so-and-so."
He receives the hadd because the suggestion that a man is a bastard is worse than accusing him of illicit sex because
the shame of illicit sex is removed by repentance while the shame of being a bastard is never removed. This also applies to
implication as when he says to a person, "I am not a fornicator," meaning that the one he is speaking to is. Expressions can
imply their opposite.
Accusing someone of sodomy also carries the hadd because he ascribes to him to a foul action
whose doer is subject to the hadd.]
37.32 Multiple infractions
37.32a. The penalty for slandering a group
If someone slanders a group, then one of the group may oblige the hadd once, and then the
rest have nothing from him.
[ This when it is done in one statement. The hadd in slander is for the sake of removing shame
from the slanderer and denying the slander. When the slanderer receives the hadd, then the shame is removed and the
desired goal of the Shari'a achieved and there is no need to repeat the hadd.]
37.32b. The death penalty takes precedence
If someone drinks wine or fornicates more than once, there is one hadd for all of that. It
is the same with slandering a group of people. As for someone who has both hudud punishments and killing obliged on him, killing
him is sufficient in that – except in the case of slander. He receives the hadd for that before he is killed.
[ There is one hadd for multiple infractions because the genus is one, and one hadd satisfies
several of the same infraction. The same principle applies to slandering a group of people.
If someone is obliged to receive hudud punishment and execution, like someone who fornicates,
drinks wine, steals and kills a Muslim, the execution satisfies all of that and no hadd is carried out on him except
for slander. The hadd must be imposed to remove the shame from the slandered.]
37.33. Drinking wine
If someone drinks wine or intoxicating nabidh, he receives a hadd of 80 lashes, whether he
is intoxicated or not, but he is not imprisoned for that.
[ Wine includes all that has been fermented from grapes so that it causes intoxication. Nabidh
results from soaking dates or raisins in water.
[The punishment is administered to free responsible Muslims out of free choice without being
compelled, even if the person is ignorant of the hadd or the prohibition. Khamr is made from pressed grape juice.
It must be swallowed. The hadd is not administered to dhimmis or harbis. The evils resulting from drinking
are worse since that can lead to committing other crimes.]
The punishment is 80 lashes once he is sober again if that is established by confession of the testimony
of two witnesses who saw him use it or smelled it. There is a disagreement about whether there is a hadd for nabidh
which does not intoxicate. He is not imprisoned even if he does it a lot because it is not reported from the Prophet nor from
any of the Companions that they imprisoned for that.]
37.34 Administration of the hadd
The one who receives a hadd is stripped, but a woman is only divested of what would protect
her from the blows. They receive the flogging sitting down. A pregnant woman is not flogged until she gives birth, nor is
a very sick person until he recovers.
[ A male is stripped of everything except what covers the private parts. A woman is stripped of things
like a fur because the goal is restraint from the like of what was committed, and it is supposed that the pain of the beating
will be a deterrent to the wrongdoer. It is recommended that she be put in a basket and some earth under her and moistened
with water for the sake of covering.
[In flogging, it is the back and shoulders which are hit.]
A pregnant woman is not beaten until she gives birth and finds someone to care for the child, based
on the hadith of Ghamidiyya woman who came to the Messenger of Allah, may Allah bless him and grant him peace, while pregnant
and said, "Purify me." He told her, "Go away until you give birth." A very sick person is not flogged until he recovers out
of fear of causing death."]
37.35 Bestiality
Someone guilty of bestiality is not killed, but is punished.
[ Ibn Najis said that he is punished since it is possible that one might understand that he has the
hadd of a virgin. but that is not the case. "He is punished" indicates that what is meant is that he does not receive
any hadd. He is punished as the ruler sees fit since he has done something forbidden.]
[Hashiyya: This is based on the hadith of the Prophet, may Allah bless him and grant
him peace , "Whoever comes to an animal, receives no hadd." At-Tirmidhi related it. That is the action of the people
of knowledge and the transmission that he and the animal are killed is not established.]
37.36. The hadd for stealing
37.36a. The penalty for theft
If someone steals a fourth of a dinar of gold or the equivalent of goods worth three dirhams or
the weight of three dirhams in silver on the day of the theft, his hand is cut off if he stole that from a protected place.
His hand is not cut off if he snatches them.
[ This penalty is for men and women, free and slave, Muslim or others. The position of the school is
that the value of the object is calculated on the day of the theft, not the day of the judgement. The dirhams are pure silver
and one does not any attention to whether they are equivalent to a fourth of a dinar.
[This is when there are dirhams in circulation in the land where the theft occurred.]
The basis for this is what is in the Sahih collection where the Prophet, may Allah bless him
and grant him peace,said, "The hand of a theft is only cut off for a quarter of a dinar or more." In the Muwatta' it
is reported that the Prophet, may Allah bless him and grant him peace, said, "The hand of a thief is cut off for a shield
worth 3 dirhams."
[The thief must also be adult and sane and not own the stolen object. Also excluded is a mother
or father stealing the child's property. If someone is forced to take part in a theft, his hand is not cut off. This would
be like the case of someone who is starving.]
It must be stolen from a protected place, which is in a place in which is normally put for safety.
That varies according to individuals and property. Some places are secure for one person but not for another, or are secure
for some goods rather than others.
The hand is not cut off for snatching, which is when he takes something openly in when someone is inattentive.]
37.36b. Multiple cases of the same crime
In such a case of theft, the hand applies of a man, woman or slave is cut off. If the person steals
a second time, his left foot is cut off. If he steals a third time, his left hand is cut off. If he steals a fourth time,
his right foot is cut off. If he then steals again, he is flogged and imprisoned.
[ The amputation takes place at the wrist and at the ankle. If he is imprisoned, it is until he repents
or dies.]
[The expense of his imprisonment comes from his own property. If he has no property, then
from the Muslim treasury.]
37.37 Voiding a conviction based on admission
If someone confesses to theft, his hand is cut off. If he retracts, he is let go.
[ One confession is enough for this. If he retracts his confession by a doubt or something as when
he says, "I took my deposited property," and he thought that that was theft. A case of no doubt is when he says, "I lied in
my confession."]
37.38. Return of stolen goods
A thief must return what he stole if he has it. Otherwise, he is indebted for that amount.
[ He pays the value. Otherwise he remains liable for it.]
37.39 Mitigating factors
37.39a. The item stolen must be removed from its place of keeping
If someone takes something from the place where it is in safe keeping, his hand is not cut off until
he actually removes the stolen object from its place of keeping. The same applies to stealing a shroud from a grave.
[ This is whether he removed it himself or threw it outside or removed it on the back of his animal
or a group lift it on the head or back of one of them and he takes it out while they remain in the secure place or they go
out with him. For all of that there is amputation. When it has not been taken out of the secure place or it is destroyed in
it and then removed, there is no amputation. There is no amputation for someone who steals a shroud until he takes it from
the grave if it is worth a fourth of a dinar or more.]
37.39b. Stealing from a house one is permitted to enter
If someone steals from a house he has permission to enter, his hand is not cut off. The hand of
someone who snatches is not cut off.
[ That is because he is not a thief. He is treacherous. The treacherous one does not have his hand
cut off. The basis is what at-Tirmidhi related: the Prophet, may Allah bless him and grant him peace, said, "Neither a looter,
treacherous person or snatcher has their hand cut off." A looter is the one who takes property openly with strength and force.
The treacherous person and snatcher do not have their hands cut off. This point is repeated.]
[Hashiyya: If a spouse steals from the other spouse from a place he or she is forbidden
to enter, their hand is cut off. If it is from a place he or she is not forbidden to enter, it is not cut off. This is not
just a verbal prohibition, but the place has to be locked.]
37.39c. A slave's confession
If a slave confesses to something which obliges a hadd or amputation on his body, his confession
is binding. In that which concerns his person, he cannot confess.
[ This is when admits to a crime for which the hadd is amputation, like drinking, slander or
illicit sex, i.e. for any matter which obliges punishment on his body, that is obliged by his confession, even if his master
denies it, as is in at-Tata'i because he is not suspected of wanting to cause this to himself.
If he admits to what would oblige to his being taken possession of, as when he admits to cutting off
the hand of a free person, that is not accepted from him because he is suspected of wanting to be transferred.]
37.39d. That for which there is no amputation
There is no amputation for taking fruit hanging on a tree, a palm pith, or for taking grazing sheep
or goats unless he stole them from their pens, nor for taking fruit unless it is from a barn.
[ The same applies to fruit hanging in gardens. As for fruit hanging in houses or rooms, there is amputation
for that. When palm piths are is on the tree, there is no amputation for them. There is no hadd for sheep or goats which are
grazing, whether or not there is a shepherd with them unless they are taken from the pens where they go after grazing. The
same principle applies to fruits in the barn wherever it is located.]
37.40 Intercession
37.40a. Once the crime is reported to the ruler, there is no intercession
There is no intercession once a case of theft or illicit sex has reached the ruler.
[ The same applies to drinking wine. Once the case reaches the ruler, then it is the right of Allah
and the ruler cannot pardon nor can he be asked to pardon, even if the fornicator or thief repents. The lack of permission
to pardon is derived from the hadiths about Ma'iz and the Ghamidiyya woman.]
[Ma'iz ibn Malik confessed four times to illicit sex. The Ghamidiyya woman came to the Prophet
and asked to be purified of the sin of illicit sex. They were both stoned.]
37.40b. Slander is an exception to this
There is disagreement about that in case of slander.
[ Malik said that it is permitted based on the fact that the hadd for slander is a right for
the slandered. Another time he said that it is not permitted based on its being a right of Allah. It is permitted to intercede
before it reaches the ruler.]
37.41. Pickpocketing and stealing public property
37.41a There is amputation for pickpocketing
If someone steals from someone's sleeve, his hand is cut off. If someone steals from the granary
or treasury or booty, his hand is cut off.
[ Pickpocketing applies to stealing from a sleeve, pocket, turban or belt. The thief's hand is cut
off because that is protected place. The granary is the place where the ruler puts the food and goods and the treasury is
repository for money. Stealing from the booty is after it has been set aside. The hand is cut off for any such theft.]
37.41b. A possible exception
It is said that that if what he took is three dirhams more than his share of the booty then his
hand is cut off.
[ That is when he exceeds his right by that amount.]
[That is the possible of 'Abdu'l-Malik, while the first position is that of Ibn al-Qasim.]
37.42. Prosecution for stolen goods
When a thief has his hand cut off, he is prosecuted for the value of missing stolen goods if he
is solvent. If he has no property, he is not prosecuted. He is, however, prosecuted for an amount which does not reach the
level at which the hand is cut off.
[ Its value is taken from him. If he still has the stolen property, it is taken from him after his
hand is cut off because amputation is not compensation for it. If the thief is insolvent, it satisfies the time between his
theft and amputation and it is cancelled for him so that he does receive two punishments. He is prosecuted for petty theft
which is below the nisab for amputation.]
