"And if he killed but did not take the money, he is killed without a doubt and not crucified. And if they committed a crime that necessitates retaliation against a limb, its execution is mandatory."
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The Shaykh :"And if he did not take the money, he is killed without a doubt and not crucified" Did we take this?
The questioner : No, we did not take it.
The Shaykh : Now we have taken it.
The questioner : ... .
The Shaykh : If a highway robber kills but does not take the money, he is killed and not crucified. The author said "killed without a doubt," meaning there is no choice for the awliya (guardians) of the murdered person, because the killing here is not qisas (retaliation) but a hadd (fixed punishment). If it is not qisas but a hadd, then his killing is mandatory, because Allah said[Al-Ma'idah 5:33].
He said "And if they committed a crime that necessitates retaliation against a limb, its execution is mandatory" This issue is considered an interjected phrase in the text. "If they committed a crime that necessitates retaliation against a limb, its execution is mandatory" This crime is one less than killing, meaning a crime against the limbs. If they commit a crime against a limb, either the crime necessitates qisas, and we have discussed that previously, the conditions of qisas for less than the soul, we return to them now. So if it necessitates qisas, its execution is mandatory, such as if they cut from a joint, they cut the hand from a joint. If the cutting is from a joint, it is mandatory, qisas is obligatory, otherwise it is not obligatory? Good, qisas is obligatory in the sense that it is established, so here its execution is mandatory. If the victim forgives, his forgiveness is not valid. The evidence, they said, is by analogy to killing, because the execution of killing is mandatory, so likewise qisas for less than the soul, its execution is mandatory. This is what the author followed, contrary to the madhhab (school of jurisprudence). The madhhab is that if they commit a crime that necessitates qisas against a limb, its execution is not mandatory; the choice is for whom? For the victim, due to the generality of His saying, the Exalted:[Al-Ma'idah 5:45] So He made it permissible for the person to give charity with this crime and not take retaliation for it. Is the speech understood or not? Let us repeat it a second time. If they killed and did not take the money, what is the ruling?
The questioner : ... .
The Shaykh : They are killed without a doubt, and there is no choice for the awliya of the murdered person?
The questioner : ... .
The Shaykh : They have no choice, why? Because this killing is a hadd that cannot be waived. If they commit a crime less than the soul, such as cutting a limb, if it necessitates qisas, its execution is mandatory, and if it does not necessitate it, it is not executed. For example, if they cut the road and cut a person's hand from the joint of the palm, what do you say?
The questioner : ... .
The Shaykh : Huh? Is it mandatory to cut his hand?
The questioner : Yes.
The Shaykh : It is mandatory to cut the hand of the highway robber because this cutting necessitates qisas. Good, if he cut it from a place where qisas is not possible, such as cutting it from the middle of the palm, then qisas here is not possible. Is it executed from this cutter? No, because it does not necessitate qisas. Good, the madhhab says if they commit a crime less than the soul, a crime less than the soul, then the victim has a choice between qisas and forgiveness, so they make the crime of the highway robber like the crime of others. This is if it is less than the soul. What is the basis for the opinion that execution is mandatory? I told you the basis is, huh? Analogy.
The questioner : Analogy to killing.
The Shaykh : Analogy to killing, so just as if they commit a crime against the soul, killing is specified, so likewise if they commit a crime against less than the soul that necessitates qisas, execution is specified. And those who said no, they said because the text came regarding killing that they should be killed, and here is the killing possible or difficult? If qisas for less than the soul is difficult to cut, it remains on the ruling of the original. And what is the ruling of the original? No, my brother, the ruling of the original is the choice, that the victim has a choice between qisas and forgiveness for free or for blood money.
The questioner : No, we did not take it.
The Shaykh : Now we have taken it.
The questioner : ... .
The Shaykh : If a highway robber kills but does not take the money, he is killed and not crucified. The author said "killed without a doubt," meaning there is no choice for the awliya (guardians) of the murdered person, because the killing here is not qisas (retaliation) but a hadd (fixed punishment). If it is not qisas but a hadd, then his killing is mandatory, because Allah said
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment,
جزاء الذين يُحاربون الله ورسوله أن يقتلواHe said "And if they committed a crime that necessitates retaliation against a limb, its execution is mandatory" This issue is considered an interjected phrase in the text. "If they committed a crime that necessitates retaliation against a limb, its execution is mandatory" This crime is one less than killing, meaning a crime against the limbs. If they commit a crime against a limb, either the crime necessitates qisas, and we have discussed that previously, the conditions of qisas for less than the soul, we return to them now. So if it necessitates qisas, its execution is mandatory, such as if they cut from a joint, they cut the hand from a joint. If the cutting is from a joint, it is mandatory, qisas is obligatory, otherwise it is not obligatory? Good, qisas is obligatory in the sense that it is established, so here its execution is mandatory. If the victim forgives, his forgiveness is not valid. The evidence, they said, is by analogy to killing, because the execution of killing is mandatory, so likewise qisas for less than the soul, its execution is mandatory. This is what the author followed, contrary to the madhhab (school of jurisprudence). The madhhab is that if they commit a crime that necessitates qisas against a limb, its execution is not mandatory; the choice is for whom? For the victim, due to the generality of His saying, the Exalted:
But whoever gives [up his right as] charity, it is an expiation for him
فمن تصدق به فهو كفارة لهThe questioner : ... .
The Shaykh : They are killed without a doubt, and there is no choice for the awliya of the murdered person?
The questioner : ... .
The Shaykh : They have no choice, why? Because this killing is a hadd that cannot be waived. If they commit a crime less than the soul, such as cutting a limb, if it necessitates qisas, its execution is mandatory, and if it does not necessitate it, it is not executed. For example, if they cut the road and cut a person's hand from the joint of the palm, what do you say?
The questioner : ... .
The Shaykh : Huh? Is it mandatory to cut his hand?
The questioner : Yes.
The Shaykh : It is mandatory to cut the hand of the highway robber because this cutting necessitates qisas. Good, if he cut it from a place where qisas is not possible, such as cutting it from the middle of the palm, then qisas here is not possible. Is it executed from this cutter? No, because it does not necessitate qisas. Good, the madhhab says if they commit a crime less than the soul, a crime less than the soul, then the victim has a choice between qisas and forgiveness, so they make the crime of the highway robber like the crime of others. This is if it is less than the soul. What is the basis for the opinion that execution is mandatory? I told you the basis is, huh? Analogy.
The questioner : Analogy to killing.
The Shaykh : Analogy to killing, so just as if they commit a crime against the soul, killing is specified, so likewise if they commit a crime against less than the soul that necessitates qisas, execution is specified. And those who said no, they said because the text came regarding killing that they should be killed, and here is the killing possible or difficult? If qisas for less than the soul is difficult to cut, it remains on the ruling of the original. And what is the ruling of the original? No, my brother, the ruling of the original is the choice, that the victim has a choice between qisas and forgiveness for free or for blood money.