Beginning with the People Seeking Blood Revenge in the Oath
1 Yahya related to me from Malik from Abu Layla ibn
'Abdullah ibn 'Abd ar-Rahman ibn Sahl from Sahl ibn Abi Hathma that some of the
notable men of his people informed him that 'Abdullah ibn Sahl and Muhayyisa
went out to Khaybar because extreme poverty had overtaken them. Muhayyisa
returned and said that 'Abdullah ibn Sahl had been killed and thrown in a
shallow well or spring. The Jews came and he said, "By Allah! You have killed
him!" They said, "By Allah! We have not killed him!" Then he made for his people
and mentioned that to them. Then he, his brother Huwayyisa, who was older than
him, and 'Abd ar-Rahman, set out. Muhayyisa began to speak, as he he had been at
Khaybar. The Messenger of Allah, may Allah bless him and grant him peace, said
to him, "The elder first, the elder first.' So Huwayyisa spoke and then
Muhayyisa spoke. The Messenger of Allah, may Allah bless him and grant him
peace, said, "Either they pay your companion's blood-money or we will declare
war against them." The Messenger of Allah, may Allah bless him and grant him
peace, wrote that to them and they wrote back, "By Allah, we did not kill him!"
The Messenger of Allah, may Allah bless him and grant him peace, said to
Huwayyisa, Muhayyisa and 'Abd ar-Rahman, "Do you swear and claim the blood of
your companion?" They said, "No." He said, "Shall the Jews swear to you?" They
said, "But they are not Muslims." The Messenger of Allah, may Allah bless him
and grant him peace, gave blood-money from his own property, and sent them one
hundred camels to their house.
Sahl added, "A red camel among them kicked me."
[in Bukhari and Muslim]
2 Yahya said from Malik from Yahya ibn Sa'id that Buhayr ibn Yasar informed
him that 'Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Mas'ud went out to
Khaybar, and they separated on their various businesses and 'Abdullah ibn Sahl
was killed. Muhayyisa, his brother Huwayyisa and 'Abd ar-Rahman ibn Sahl went to
the Prophet, may Allah bless him and grant him peace, and 'Abd ar-Rahman began
to speak before his brother. The Messenger of Allah, may Allah bless him and
grant him peace, said, "The elder first, the elder first." Therefore Huwayyisa
and Muhayyisa spoke and mentioned the affair of 'Abdullah ibn Sahl. The
Messenger of Allah, may Allah bless him and grant him peace, said to them, "Do
you swear with fifty oaths and claim the blood-money of your companion or the
life of the murderer?" They said, "Messenger of Allah, we did not see it and we
were not present." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Will you acquit the Jews for fity oaths?" They said, "Messenger of
Allah, how can we accept the oaths of a people who are unbelievers?"
Yahya ibn Sa'id said, "Bushayr ibn Yasar claimed that the Messenger of Allah,
may Allah bless him and grant him peace, paid the blood-money from his own
property."
[in Bukhari and Muslim]
Malik said, "The generally agreed on way of doing things in our community and
that which I heard from those I am content with, concerning the oath of
qasama, and that upon which the past and present Imams agree, is that those
who claim revenge begin with the oaths and swear. The oath for revenge is only
obligatory in two situations. Either when the slain person says, 'My blood is
against so-and-so,' or the relatives entitled to the blood bring a partial proof
of it that is not irrefutable against the one who is the object of the
blood-claim. This obliges taking an oath on the part of those who claim the
blood against those who are the object of the blood-claim. With us, swearing is
only necessary in these two situations."
Malik said, "That is the sunna about which there is no dispute with us
and which is what the people still do. The people who claim blood begin the
swearing, whether it is an intentional killing or an accident."
Malik said, "The Messenger of Allah, may Allah bless him and grant him peace,
began with the Banu Harith in the case of the killing of their kinsman who was
murdered at Khaybar."
Malik said, "If those who make the claim swear, they deserve the blood of
their kinsman and whoever they swear against is slain. Only one man can be
killed in the qasama. Two cannot be killed in it. Fifty men from the
blood-relatives must swear fifty oaths. If their number is less or some of them
draw back, they can repeat their oaths, unless one of the relatives of the
murdered man who deserves blood and who is permitted to pardon it draws back. If
one of them draws back, there is no way to revenge."
Yahya said that Malik said, "The oaths can be made by those of them who
remain if one of them who is not permitted to pardon draws back. If one of the
blood-relatives who is permitted to pardon draws back, even if he is only one,
more oaths cannot be made after that by the blood-relatives. If that occurs, the
oaths can be on behalf of the one against whom the claim is made. So fifty of
the men of his people swear fifty oaths. If there are not fifty men, more oaths
can be made by those of them who already swore. If there is only the defendant,
he swears fifty oaths and is acquitted."
Yahya said that Malik said, "One distinguishes between oaths for blood and
oaths for one's rights. When a man has a money claim against another man, he
seeks to verify his due. When a man wants to kill another man, he does not kill
him in the midst of people. He keeps to a place away from people. If there had
been only swearing in cases where there was a clear proof and if one acted in it
as one acts about one's rights (i.e. requiring witnesses), the right of
retribution would have been lost and people would have been quick to take
advantage of it when they learned of the decision about it. However, the
relatives of the murdered man were allowed to initiate swearing so that people
might restrain themselves from blood and the murderer might beware lest he was
put into a situation like that (i.e. qasama) by the statement of the murdered
man."
Yahya said, "Malik talked about a people of whom a certain number are
suspected of murder and the relatives of the murdered man ask them to take oaths
and they are numerous, so they ask that each man swears fifty oaths on his own
behalf. The oaths are not divided out between them according to their number and
they are not acquitted unless each man among them swears fifty oaths on his own
behalf."
Malik said, "This is the best I have heard about the matter."
He said, "Swearing goes to the paternal relatives of the slain. They are the
blood relatives who swear against the killer and by whose swearing he is
killed."
44.2 Blood Relatives Who Are Permitted to Swear in the Case of an
Intentional Act
Yahya said that Malik said, "The way of doing things in our community about
which there is no dispute is that women do not swear in the swearing for the
intentional act. If the murdered man only has female relatives, the women have
no right to swear for blood and no pardon in the case of murder."
Yahya said that Malik said about a man who is murdered, "If the paternal
relatives of the murdered man or his mawali say, 'We swear and we demand
our companion's blood,' that is their right."
Malik said, "If the women want to pardon him, they cannot do so. The paternal
relatives and mawali are more entitled to do so than them because they
are the ones who can demand blood and swear for it."
Malik said, "If the paternal relatives of mawali pardon after they
have demanded blood and the women refuse and say, 'We will not abandon our right
against the murderer of our companion,' the women are more entitled in that case
because whoever takes retaliation is more entitled to it than someone among the
women and paternal relatives who relinquishes it when the murder is established
and killing obliged."
Malik said, "At least two claimants must swear at the case of murder. The
oaths are repeated by them until they swear fifty oaths, then they have the
right to blood. That is how things are done in our community."
Malik said, "When people beat a man and he dies in their hands, they are all
slain for him. If he dies after their beating, there is swearing. If there is
swearing, it is only against one man and only he is slain. We have never known
the swearing to be against more than one man."
Malik spoke about a slave who had his hand or foot broken and then the break
mended. He said, "The one who injured him is not obliged to pay anything. If
that break causes him loss or scar, the one who injured him must pay according
to the amount the value of the slave has been diminished."
Malik said, "What is done in our community about retaliation between slaves
is that it is the same as retaliation between freemen. The life of the
slave-girl for the life of the slave, and her injury for his injury. When a
slave intentionally kills a slave, the master of the murdered slave has a
choice. If he wishes, he kills the murderer, and if he wishes, he takes the
blood-money. If he takes the blood-money, he takes the value of his slave. If
the owner of the slave who killed wishes to give the value of the murdered
slave, he does so. If he wishes, he surrenders his slave. If he surrenders him,
he is not obliged to do anything other than that. When the owner of the murdered
slave takes the slave who murdered and is satisfied with him, he must not kill
him. All retaliation between slaves for cutting off the hand and foot and such
things are dealt with in the same way as in the case of murder."
Malik said about a Muslim slave who injures a Jew or Christian, "If the
master of the slave wishes to pay blood-money for him according to the injury,
he does so. Otherwise he surrenders him and he is sold, and the Jew or Christian
is given the blood-money of the injury or all the price of the slave if the
blood-money is greater than his price. The Jew or Christian is not given a
Muslim slave."
44.3 Swearing in the Case of Manslaughter
Yahya said that Malik said, "The procedure in swearing in the case of
manslaughter is that those who claim blood swear and it becomes due by their
swearing. They swear fifty oaths and there is blood-money for them according to
the division of their rights of inheritance. If it is not possible to divide up
the oaths which they swear between them evenly, one looks to the one who has the
most of those oaths against him, and that oath against him is taken."
Malik said, "If the slain man only has female heirs, they swear and take the
blood-money. If he only has one male heir, he swears fifty oaths and takes the
blood-money. That is only in the case of accidental killing, not intentional."
44.4 Inheritance in Cases of Qasama
Yahya said that Malik said, "When the relatives of the deceased accept the
blood-money, then it is inherited according to the Book of Allah. Daughters of
the dead man inherit and so do sisters, and whichever women would inherit from
him ordinarily. If the women do not take all his inheritance* then what remains
goes to the agnatic relations who most deserve to inherit from him in
conjunction with the women."
* i.e. when there are no male Qur'anic heirs.
Malik said, "If one of the heirs of a man who was killed by mistake attempts
to take his due from the blood-money while his fellow heirs are absent, he may
not do so, and he then has no right to any of the blood-money, however large or
small, unless the qasama has been completed by him. If he swears fifty
oaths then he has the right to his portion of the blood-money. That is because
the blood-money is not established as due without there being fifty oaths, and
the blood-money is not established as due unless the responsibility for the
blood is established. If any one of the heirs comes after that he swears a
number of the oaths commensurate with his fraction of the inheritance and takes
his right until all the heirs exact their complete rights. If a maternal uncle
comes he has one-sixth and must swear one-sixth of the fifty oaths. So whoever
swears may take his due from the blood-money and whoever abstains annuls his
right. If one of the heirs is absent or is a child who has not reached puberty,
those who are present swear fifty oaths and if the one who was absent comes
after that or the child reaches puberty, they swear, and they swear according to
their due of the blood-money and according to their share of inheritance from
it."
Yahya said that Malik said, "This is the best I have heard on the matter."
44.5 Swearing for Blood Revenge in Cases Involving Slaves
Yahya said that Malik said, "What is done in our community about slaves is
that when a save is struck intentionally or accidentally and the master brings a
witness, he swears with his witness one oath and then he has the value of the
slave. There is no swearing for revenge in the case of slaves, whether they were
killed accidentally or intentionally, and I have not heard any of the people of
knowledge say that there was."
Malik said, "If a slave is killed intentionally or accidentally, the master
of the slave who is slain has no rights of swearing or oath. The master cannot
demand his right except with a fair proof or a witness if he swears with one
witness."
Yahya said that Malik said, "This is the best of what I have heard on the
matter."
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