Lapse of Retaliation (Qiṣāṣ) through Pardon by Some of the Legal Guardians

Document Type : Research Article

Author

• Muḥammad Ḥusayn Sha‘bānī

10.22067/fiqh.v0i0.13048

Abstract

It is stipulated in our Islamic jurisprudence and law that when a person is killed and he or she has several legal guardians, if some of the guardians pardon, the remaining guardians have the right to retaliate in qiṣāṣ provided that they pay the share of the blood money to those demanding blood money.
It is pronounced in the article 264 of Islamic Penal Code that:
“If there are several legal guardians [heirs] of the murdered person, retaliation is enforced by the agreement of all of them. If all of them demand retaliation of the murderer, he will be retaliated in qiṣāṣ; and if some of them demand retaliation and others demand blood money, those who demand retaliation can retaliate the murderer in qiṣāṣ, but they have to pay for the share of blood money of those others who demanded for blood money. If some of the legal guardians pardon for free, others can retaliate the murderer in qiṣāṣ after
having paid the share of the pardoners.”
However, in regard to numerous traditions stating that the right to retaliate is voided with the pardon granted by some of the legal guardian, and in respect to the fact that some jurists and exegetes have stipulated that in case of pardon by some of the legal guardians the right to qiṣāṣ of the remaining guardians turns into blood money; and since it seems that the reasons for the lapse of qiṣāṣ enjoy more certainty, it is necessary that the two parties’ evidences concerning this issue be re-examined.

Keywords

• lapse of qiṣāṣ
• pardon
• blood money
• legal guardians
• murder

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