Killing Secretly by Trickery and Sorcery

13 Yahya related to me from Malik from Yahya ibn Sa'id from Sa'id ibn al-Musayyab that 'Umar ibn al-Khattab killed five or seven people for one man whom they had killed secretly by trickery. 'Umar said, " Had all the people of San'a joined forces against him, I would have counted them all together."

14 Yahya related to me from Malik from Muhammad ibn 'Abd ar-Rahman ibn Sa'd ibn Zurara that he had heard that Hafsa, the wife of the Prophet, may Allah bless him and grant him peace, killed one of her slave-girls who had used sorcery against her. The girl was a mudabbara. Hafsa gave the order and she was killed.

Malik commented, " The sorcerer is the one who uses sorcery on his own account, not someone who has it done for him. It is like the one about whom Allah, the Blessed, the Exalted, said in His s own account, not someone who has it done for him. It is like the one about whom Allah, the Blessed, the Exalted, said in His Book, 'They know that any who deal in it will have no share in the Next World.' (2: 102) I think that if someone practises it, he should be killed."

What is Obligatory for Intentional Injury

15 Yahya related to me from Malik from 'Umar ibn Husayn, the mawla of 'A'isha bint Qudama, that 'Abd al-Malik ibn Marwan imposed retaliation against a man who killed a mawla with a stick - and so the mawla's patron killed the man with a stick.

Malik said, " The generally agreed on way of doing things in our community about which there is no dispute is that when a man strikes another man with a stick or hits him with a rock or intentionally strikes him causing his death, that is an intentional injury and there is retaliation for it."

Malik said, " Intentional murder in our opinion is that a man intentionally goes to a man and strikes him until his life departs. Part of intentional injury also is that a man strikes a man in a quarrel between them. He leaves him while he is alive and then he bleeds to death and so dies. There is retaliation for that."

Malik said, " What is done in our community is that a group of free men are killed for the intentional murder of one free man, and a group of women for one woman, and a group of slaves for one slave."

Retaliation in Killing

Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam wrote to Mu'awiya ibn Abi Sufyan to mention to him that a drunkard had been brought to him who had killed a man. Mu'awiya wrote to him to kill him in retaliation for the dead man.

Yahya said that Malik said, " The best of what I have heard about the interpretation of this ayat, the words of Allah, the Blessed, the Exalted, 'The free man for the free man and the slave for the slave' - these are men - 'and the female for the female' (2: 178), is that retaliation is between women as it is between men. The free woman is killed for the free woman as the free man is killed for the free man. Slave-girls are slain for slave-girls as the slave is slain for the slave. Retaliation is between women as it is between men. That is because Allah, the Blessed, the Exalted, says in His Book, 'We prescribed for them in it: is a life for a life, an eye for an eye, a nose for a nose, and an ear for an ear, and a tooth for a tooth, and retaliation for wounds.' (5: 48). Allah, the Blessed, the Exalted, mentioned that it is a life for a life. It is the life of a free woman for the life of a free man, and her injury for his injury."

Malik said about a man who held a man fast so that another man could hit him, and he died on the spot, " If he held him and he thought that he meant to kill him, the two of them are both killed for him. If he held him thinking that he meant to hit him as people sometimes do, and he did not think that he meant to kill him, the murderer is slain and the one who held the victim is punished severely and jailed for a year. There is no right to kill him."

Malik said about a man who murdered a man intentionally or gouged out his eye intentionally, and then was slain or had his eye gouged out himself before retaliation was inflicted on him, " There is no blood-money nor retaliation against him. The right of the one who was killed or had his eye gouged out goes when the thing which he is claiming as retaliation goes. It is the same with a man who murders another man intentionally and then the murderer dies. When the murderer dies, the one seeking blood revenge has no blood-money or anything else. That is by the word of Allah, the Blessed, the Exalted, 'Retaliation is prescribed for you in the case of people killed: free man for free man and slave for slave.' (2: 178)"

Malik said, " He only has retaliation against the one who killed him. If the man who murdered him dies, he has no right to retaliation or blood-money."

Malik said, " There is no retaliation against a free man by a slave for any injury. The slave is killed for the free man but the free man is not slain for the slave, even if he murders him intentionally. This is the best of what I have heard."

Pardoning Murder

Yahya related to me from Malik that those he was satisfied with among the people of knowledge said about a man who willed that his murderer be pardoned when he had murdered him intentionally, " That is permitted for him. He is more entitled to the man's blood than any of his relatives after him."

Malik said about a man who pardoned murder after having previously claimed his right and it was obliged for him to be paid, " There is no blood-money against the murderer unless the one who pardons him actually stipulates that when he pardons him."

Malik said about a murderer when he was pardoned, " He given flogged one hundred lashes and jailed for a year."

Malik said, " When a man murders intentionally and there is a clear proof of that, and the murdered man has sons and daughters and the sons pardon and the daughters refuse to pardon, the pardon of the sons is permitted in opposition to the daughters and the daughters have no authority over the sons in demanding blood and pardoning."

Retaliation in Injury

Yahya said that Malik said, " The generally agreed on way of doing things in our community is that retaliation is taken from someone who breaks someone's hand or foot intentionally and not blood-money."

Malik said, " Retaliation is not inflicted on anyone until the wound of the injured party has healed. Then retaliation is inflicted on him. If the wound of the person on whom the retaliation has been inflicted is like the first person's wound when it heals, it is retaliation. If the wound of the one on whom the retaliation has been inflicted becomes worse or he dies, there is nothing held against the one who has taken retaliation. If the wound of the person on whom the retaliation has been inflicted heals and the injured party is paralysed or his injury has healed but he has a scar, defect or blemish, the person on whom the retaliation has been inflicted does not have his hand broken again and further retaliation is not taken for his injury."

He also said, " But there is blood-money from him according to what he has impaired or maimed of the hand of the injured party. The bodily injury is also like that."

Malik said, " When a man intentionally goes to his wife and gouges out her eye or breaks her hand or cuts off her finger or such like, and does it intentionally, retaliation is inflicted on him. As for a man who strikes his wife with a rope or a whip and hits what he did not mean to hit or does what he did not intend to do, he pays blood-money for what he has struck according to this principle, and retaliation is not inflicted on him."

Yahya related to me from Malik that he had heard that Abu Bakr ibn Muhammad ibn 'Amr ibn Hazm took retaliation for the breaking of a leg.

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