"So whoever among them kills a counterpart or someone else, such as a child, a slave, or a dhimmi, and takes property, is to be killed and then crucified until it becomes well known."
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The Shaykh : Then the author clarified the punishment for these people, saying: "So whoever among them kills and takes property is to be killed and then crucified". If he kills but does not take property, he is to be killed but not crucified. If he takes property but does not kill, his right hand and left foot are to be cut off from opposite sides. If he threatens but does not kill and does not take property, he is to be exiled from the land. "So the punishment is of four types: killing and crucifying, killing only, cutting off, and exiling". Four types. This punishment varies according to the crime, and the evidence for this is the saying of Allah the Exalted: [Al-Ma'idah 5:33] This is one. This is two. However, some of the scholars, which is the school of thought, say that one is not crucified without being killed. On this basis, the meaning is that they are to be killed and crucified, or killed without crucifixion, so the verse indicates two types of punishment. [Al-Ma'idah 5:33] And the "or" here, according to what the author followed, is for enumeration and not for choice. But some of the scholars said it is for choice, and it will come, if Allah wills, an explanation of which is more correct. All right.
The author says: "So whoever among them kills a counterpart or someone else, such as a child, a slave, or a dhimmi, and takes property, is to be killed and then crucified until it becomes well known". If they combine the two things, killing and taking property, the two punishments are combined for them, which are killing and crucifixion. And the author says there is no difference between whether this killing is of the type where retaliation (qisas) applies between the killer and the killed, or of the type where retaliation does not apply. For example, does retaliation apply between a child and his father?
The questioner : No.
The Shaykh : If the father is the killer, there is no retaliation. And for this reason, the author said: "a counterpart or someone else, such as a child". Is the child a counterpart or not?
The questioner : Not a counterpart.
The Shaykh : What? Not a counterpart, meaning that if a child is killed by his father, he is not killed. All right. And in reality, the child is a counterpart, but there is a barrier present, and what is it?
The questioner : ... .
The Shaykh : Birth. Is the slave a counterpart or not?
The questioner : No ... .
The Shaykh : Not a counterpart to a free person. So if the highway robber is a free person and the one robbed is a slave, and he takes his property and kills him, then this free person is to be killed and crucified. Is the dhimmi a counterpart to a Muslim? No. So if a Muslim highway robber kills a dhimmi and takes his property, he must be killed and then crucified, because this is a hadd (fixed punishment) and not from the category of retaliation, so we do not say that the conditions for establishing retaliation are required in it. This is a legal hadd intended to deter people from this act which Allah the Exalted called waging war against Him.
The author said: "He is to be killed and then crucified". He is to be crucified after the killing. After we kill him, we crucify him, meaning we tie him to a wooden cross with two horizontal arms and a vertical pole. We erect it on this and tie him and tie his hands to the two horizontal arms.
The author said, until when? "Until it becomes well known". And his case becomes clear. And something like this becomes well known quickly because it is contrary to the usual. You will find the first person who sees it goes and tells others, and the second tells others, and so on, until it becomes well known quickly.
The questioner : Should it not be... O Shaykh?
The Shaykh : Yes?
The questioner : It is not permissible for it to be...
The Shaykh : No, to the extreme. It must become well known. Yes?
The questioner : It is to be in the shape of a cross...
The Shaykh : Yes, it is to be in the shape of a cross for the sake of necessity. All right. In this case, the apparent, indeed explicit, statement of the author is that he is to be killed before crucifixion. The second opinion is that he is to be crucified before being killed. The benefit of this second opinion is that if he is crucified while alive, it is more severe in his grief, because the dead person does not feel what he receives of disgrace and shame, may Allah protect us. Unlike the living person. Al-Mutanabbi said: "Whoever is humiliated finds humiliation easy for him *** There is no pain in a wound for a dead man"
So this dead person, if he is crucified and people pass by him, it does not concern him. But if he is crucified while alive and people pass by him and look at him while he looks at them, that is more severe in his shame and disgrace, may Allah protect us. And it should be looked at in this regarding the public benefit (maslahah). If the judge sees that the public benefit is that he is crucified before he is killed, he does so. And the author did not mention here what instrument he is to be killed with? He is to be killed by what is easiest, due to the saying of the Prophet (peace and blessings be upon him):Sahih Muslim 1955a And this is not like zina, where the adulterer is stoned if he is married. Rather, the intent here is to destroy him. If the matter turns between killing him with a sword or killing him by electrocution, what?
The questioner : With a sword.
The Shaykh : Is the sword preferable? Yes, indeed. And killing by electricity is preferable from one aspect because it is faster, in that when a person is struck by this strong electricity, he dies immediately without feeling it; he is dead. So it is easier from one aspect, and the sword is easier from one aspect, from the aspect that it does not strike the person with this strong shock that kills him. And here we should also return to the doctors. If they say that killing him by electrocution is easier and more merciful, we do so. And it is also less terrifying regarding the crucifixion, because if he is slaughtered with a sword, he will be filled with blood and people will be terrified even just from seeing him, unlike if he is killed by electrocution, in which case he will be like a person who died a natural death. All right. And after that, after we kill him and crucify him until it becomes well known, is he to be washed and shrouded and prayed over, or is he to be buried with the Muslims, or what do we do?
The questioner : The first.
Another questioner: Yes.
The Shaykh : The first. Yes. After this, we wash him, shroud him, pray over him, and bury him in the Muslim cemeteries, except according to the opinion of two innovating sects, which are:
The questioner : The Khawarij.
The Shaykh : The Khawarij, who say that the doer of a major sin is a disbeliever unless he repents, and the Mu'tazilah, who say that he is eternal in the Fire. So praying over him is not possible, because the intent of praying over him is to supplicate for him, and with them, it is not permissible to supplicate for such a person because he will not be shown mercy; he is in the Fire. Yes?
The questioner : Shaykh, Allah mentioned in the verse:[Al-Ma'idah 5:33].
The Shaykh : Yes.
The questioner : ... crucifixion without.
The Shaykh : The disagreement in this issue will come to us, if Allah wills: whether it is for enumeration or for choice, and whether these are four, each independent in its part, or whether crucifixion is attached to killing?
The questioner : Shaykh?
The Shaykh : Yes?
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
إِنَّما جَزاءُ الَّذِينَ يُحارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَساداً أَنْ يُقَتَّلُواor crucified
أو يُصلّبواor that their hands and feet be cut off from opposite sides or that they be exiled from the land
أو تقطع أيديهم وأرجلهم من خلاف أو ينفوا من الأرضThe author says: "So whoever among them kills a counterpart or someone else, such as a child, a slave, or a dhimmi, and takes property, is to be killed and then crucified until it becomes well known". If they combine the two things, killing and taking property, the two punishments are combined for them, which are killing and crucifixion. And the author says there is no difference between whether this killing is of the type where retaliation (qisas) applies between the killer and the killed, or of the type where retaliation does not apply. For example, does retaliation apply between a child and his father?
The questioner : No.
The Shaykh : If the father is the killer, there is no retaliation. And for this reason, the author said: "a counterpart or someone else, such as a child". Is the child a counterpart or not?
The questioner : Not a counterpart.
The Shaykh : What? Not a counterpart, meaning that if a child is killed by his father, he is not killed. All right. And in reality, the child is a counterpart, but there is a barrier present, and what is it?
The questioner : ... .
The Shaykh : Birth. Is the slave a counterpart or not?
The questioner : No ... .
The Shaykh : Not a counterpart to a free person. So if the highway robber is a free person and the one robbed is a slave, and he takes his property and kills him, then this free person is to be killed and crucified. Is the dhimmi a counterpart to a Muslim? No. So if a Muslim highway robber kills a dhimmi and takes his property, he must be killed and then crucified, because this is a hadd (fixed punishment) and not from the category of retaliation, so we do not say that the conditions for establishing retaliation are required in it. This is a legal hadd intended to deter people from this act which Allah the Exalted called waging war against Him.
The author said: "He is to be killed and then crucified". He is to be crucified after the killing. After we kill him, we crucify him, meaning we tie him to a wooden cross with two horizontal arms and a vertical pole. We erect it on this and tie him and tie his hands to the two horizontal arms.
The author said, until when? "Until it becomes well known". And his case becomes clear. And something like this becomes well known quickly because it is contrary to the usual. You will find the first person who sees it goes and tells others, and the second tells others, and so on, until it becomes well known quickly.
The questioner : Should it not be... O Shaykh?
The Shaykh : Yes?
The questioner : It is not permissible for it to be...
The Shaykh : No, to the extreme. It must become well known. Yes?
The questioner : It is to be in the shape of a cross...
The Shaykh : Yes, it is to be in the shape of a cross for the sake of necessity. All right. In this case, the apparent, indeed explicit, statement of the author is that he is to be killed before crucifixion. The second opinion is that he is to be crucified before being killed. The benefit of this second opinion is that if he is crucified while alive, it is more severe in his grief, because the dead person does not feel what he receives of disgrace and shame, may Allah protect us. Unlike the living person. Al-Mutanabbi said: "Whoever is humiliated finds humiliation easy for him *** There is no pain in a wound for a dead man"
So this dead person, if he is crucified and people pass by him, it does not concern him. But if he is crucified while alive and people pass by him and look at him while he looks at them, that is more severe in his shame and disgrace, may Allah protect us. And it should be looked at in this regarding the public benefit (maslahah). If the judge sees that the public benefit is that he is crucified before he is killed, he does so. And the author did not mention here what instrument he is to be killed with? He is to be killed by what is easiest, due to the saying of the Prophet (peace and blessings be upon him):
so when you kill, kill in a good way
إذا قتلتم فأحسنوا القتلةThe questioner : With a sword.
The Shaykh : Is the sword preferable? Yes, indeed. And killing by electricity is preferable from one aspect because it is faster, in that when a person is struck by this strong electricity, he dies immediately without feeling it; he is dead. So it is easier from one aspect, and the sword is easier from one aspect, from the aspect that it does not strike the person with this strong shock that kills him. And here we should also return to the doctors. If they say that killing him by electrocution is easier and more merciful, we do so. And it is also less terrifying regarding the crucifixion, because if he is slaughtered with a sword, he will be filled with blood and people will be terrified even just from seeing him, unlike if he is killed by electrocution, in which case he will be like a person who died a natural death. All right. And after that, after we kill him and crucify him until it becomes well known, is he to be washed and shrouded and prayed over, or is he to be buried with the Muslims, or what do we do?
The questioner : The first.
Another questioner: Yes.
The Shaykh : The first. Yes. After this, we wash him, shroud him, pray over him, and bury him in the Muslim cemeteries, except according to the opinion of two innovating sects, which are:
The questioner : The Khawarij.
The Shaykh : The Khawarij, who say that the doer of a major sin is a disbeliever unless he repents, and the Mu'tazilah, who say that he is eternal in the Fire. So praying over him is not possible, because the intent of praying over him is to supplicate for him, and with them, it is not permissible to supplicate for such a person because he will not be shown mercy; he is in the Fire. Yes?
The questioner : Shaykh, Allah mentioned in the verse:
that they be killed or crucified
أن يقتلوا أو يصلبواThe Shaykh : Yes.
The questioner : ... crucifixion without.
The Shaykh : The disagreement in this issue will come to us, if Allah wills: whether it is for enumeration or for choice, and whether these are four, each independent in its part, or whether crucifixion is attached to killing?
The questioner : Shaykh?
The Shaykh : Yes?