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Hadith 35455
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 great
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 had been at Khaybar. The
Messenger of Allah, may Allah bless him and grant him peace, said to
him, "The greater first, the greater first," meaning in age. 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, "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."
Muwatta Malik Book 44, Hadith 1
← Previous Hadith
Yahya related to me from Malik from Abu'z-Zinad from Sulayman ibn
Yasar that a slave was set free by one of the people on hajj and his
master had abandoned the right to inherit from him. The ex-slave then
killed a man from the Banu A'idh tribe. An A'idhi, the father of the
slain man came to Umar ibn al-Khattab seeking the blood-money of his
son. Umar said, "He has no blood-money." The A'idhi said, "What would
you think if it had been my son who killed him?" Umar said, "Then you
would pay his blood-money." He said, "He is then like the black and
white Arqam snake. If it is left, it devours and if it is killed, it
takes revenge." Muwatta Malik Book 43, Hadith 45
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Yahya said from Malik from Yahya ibn Said that Bushayr ibn Yasar
informed him that Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Masud
went out to Khaybar, and they separated on their various businesses
and Abdullah ibn Sahl was killed. Muhayyisa, and 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 older first, the older first.
Therefore
Huwayyisa and then 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 fifty oaths?' They said,
"Messenger of Allah, how can we accept the oaths of a people who are
kafirun?"
Yahya ibn Said 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."
Malik said, "The
generally agreed on way of doing things in our community and that
which I heard from whoever I am content with, concerning the oath of
qasama, and 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 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 obliged in these
two situations."
Malik said, "That is the sunna in which
there is no dispute with us and which is still the behaviour of the
people. The people who claim blood begin the swearings, 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 Banu Harith in the case of the killing of their kinsman 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 these 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 draws back who is not permitted to pardon. If
one of the blood-relatives draws back who is permitted to pardon, even
if he is only one, more oaths can not 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 swearing 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. Had there only been swearing in cases where there is a clear
proof and had one acted in it as one acts about one's rights (i.e.
needing witnesses), the right of blood retribution would have been
lost and people would have been swift to take advantage of it when
they learned of the decision on 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 said 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." Muwatta Malik Book 44, Hadith 2