وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنْفَ بِالْأَنْفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ ۚ فَمَنْ تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَهُ ۚ وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ
And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers.
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(O Messenger! Let not them grieve thee who vie one with another in the race to disbelief…) [5:41-47]. AbuBakr Ahmad ibn al-Hasan al-Hiri informed us by dictation> Abu Muhammad, the chamberlain of Ibn Ahmadal-Tusi> Muhammad ibn Hammad al-Abiwardi> Abu Mu'awiyah> al-A'mash> 'Abd Allah ibn Murrah> al-Bara'ibn 'Azib who said: “One day, the Messenger of Allah, Allah bless him and give him peace, passed by aJewish man who had just been flogged and had his face darkened with coal. He summoned the Jews andasked them: 'Is this what your Scripture decrees as punishment for the adulterer?' 'Yes!' they replied. Hethen summoned one of their doctors and asked him: 'I implore you by Allah who has sent the Torah toMoses, is this what your Scripture decrees as punishment for the adulterer'. He said: 'No! And if you had notimplored me by Allah, I would not tell you. Our Scripture rules that the punishment of the adulterer isstoning. But it became widespread among our notables. Initially, when one of the notables committedadultery, we left him unpunished while we applied stoning on the communality in cases of adultery. Then wedecided to look for a punishment that was applied on both the notables and communality of people. And sowe agreed on darkening the face with coal and flogging to replace stoning'. The Messenger of Allah, Allahbless him and give him peace, said: 'O Allah! I am the first to reapply your command after they hadsuspended it'. And he ordered that the Jewish man be stoned. Allah, exalted is He, then revealed (OMessenger! Let not them grieve thee who vie one with another in the race to disbelief) up to His words (Ifthis be given unto you, receive it…), they said: 'Go to Muhammad; if he directs you to flog the adulterer anddarken his face with coal and apply flogging, then follow him. But do not follow him if he directs you toapply stoning on him'. Up to His words (Whoso judgeth not by that which Allah hath revealed: such aredisbelievers) [5:44]. He said: 'This relates to the Jews'. Up to His words (Whoso judgeth not by that whichAllah hath revealed: such are wrong-doers) [5:45]. He said: 'This relates to the Christians'. Up to His words(Whoso judgeth not by that which Allah hath revealed: such are evil-livers) [5:47]. He said: 'This relates toall disbelievers'. Narrated by Muslim from Yahya ibn Yahya from Abu Mu'awiyah”. Abu 'Abd Allah ibn AbiIshaq informed us> Abu'l-Haytham Ahmad ibn Muhammad ibn Ghawth al-Kindi> Muhammad ibn 'Abd Allahibn Sulayman al-Hadrami> Abu Bakr ibn Abi Shaybah> Abu Mu'awiyah> al-A'mash> 'Abd Allah ibn Murrah>al-Bara' ibn 'Azib who related that the Prophet, Allah bless him and give him peace, stoned a Jewish manand a Jewish woman and said afterwards: “(Whoso judgeth not by that which Allah hath revealed: such aredisbelievers) [5:44], (Whoso judgeth not by that which Allah hath revealed: such are wrong-doers) [5:45],(Whoso judgeth not by that which Allah hath revealed: such are evil-livers) [5:47]. All these three verseswere revealed about the disbelievers”. This was narrated by Muslim from Abu Bakr ibn Abi Shaybah.
وَكَتَبْنَا عَلَيْهِمْ فِيهَآ أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالاٌّنْفَ بِالاٌّنْفِ وَالاٍّذُنَ بِالاٍّذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ فَمَن تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَّهُ وَمَن لَّمْ يَحْكُم بِمَآ أنزَلَ اللَّهُ فَأُوْلَـئِكَ هُمُ الظَّـلِمُونَ
(45. And We ordained therein for them "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal. " But if anyone remits the retaliation by way of charity, it shall be for him an expiation. And whosoever does not judge by that which Allah has revealed, such are the unjust.)This Ayah also chastises and criticizes the Jews because in the Tawrah, they have the law of a life for a life. Yet, they defied this ruling by transgression and rebellion. They used to apply this ruling when a person from Bani An-Nadir was killed by a Qurayzah person, but this was not the case when the opposite occurred. Rather, they would revert to Diyah in this case. They also defied the ruling in the Tawrah to stone the adulterer and instead came up with their own form of punishment, flogging, humiliation and parading them in public. This is why Allah said in the previous Ayah, t
وَمَن لَّمْ يَحْكُم بِمَآ أَنزَلَ اللَّهُ فَأُوْلَـئِكَ هُمُ الْكَـفِرُونَ
(And whosoever does not judge by what Allah has revealed, such are the disbelievers.) because they rejected Allah's command with full intention and with transgression and rebellion. In this Ayah, Allah said,
فَأُوْلَـئِكَ هُمُ الظَّـلِمُونَ
(such are the unjust.) because they did not exact the oppressed his due rights from the oppressor in a matter which Allah ordered that all be treated equally and fairly. Instead, they defied that command, committed injustice and transgressed against each other.
Imam Abu Nasr bin As-Sabbagh stated in his book, Ash-Shamil, that the scholars agree that this Ayah 5:45 should be implemented, and the Imams agree that the man is killed for a woman whom he kills, according to the general indications of this Ayah. A Hadith that An-Nasa'i recorded states that the Messenger of Allah had this statement written in the book that he gave `Amr bin Hazm,
«أَنَّ الرَّجُلَ يُقْتَلُ بِالْمَرْأَة»
(The man is killed for the woman (whom he kills).) In another Hadith, the Messenger said,
«الْمُسْلِمُونَ تَتَكَافَأُ دِمَاؤُهُم»
(Muslims are equal regarding the sanctity of their blood.) This is also the opinion of the majority of the scholars. What further supports what Ibn As-Sabbagh said is the Hadith that Imam Ahmad recorded that Anas bin Malik said, "Ar-Rabi` (his aunt) broke the tooth of a girl, and the relatives of Ar-Rabi` requested the girl's relatives to forgive (the offender), but they refused. So, they went to the Prophet who ordered them to bring about retaliation. Anas bin An-Nadr, her brother, asked, `O Allah's Messenger! Will the tooth of Ar-Rabi` be broken' The Messenger of Allah said, `O Anas! The Book of Allah prescribes retaliation.' Anas said, `No, by Him Who has sent you with the Truth, her tooth will not be broken. ' Later the relatives of the girl agreed to forgive Ar-Rabi` and forfeit their right to retaliation. The Messenger of Allah said,
«إن من عباد الله من لو أقسم على الله لأبره»
(There are some of Allah's servants who, if they take an oath by Allah, Allah fullfils them.)'' It was recorded in the Two Sahihs.
Allah said,
وَالْجُرُوحَ قِصَاصٌ
(and wounds equal for equal.) `Ali bin Abi Talhah reported that Ibn `Abbas said, "Life for life, an eye for an eye, a nose, if cut off, for a nose, a tooth broken for a tooth and wounds equal for wound.'' The free Muslims, men and women, are equal in this matter. And their slaves, male and female, are equal in this matter. And this ruling is the same regarding intentional murder and lesser offenses, as Ibn Jarir and Ibn Abi Hatim recorded.
The retaliation for wounds should not be implemented until the wounds of the victim heal. If retaliation occurs before the wound heals, and then the wound becomes aggravated, the victim will have no additional rights in this case. The proof for this ruling is what Imam Ahmad narrated from `Amr bin Shu`ayb, from his father, from his grandfather that a man once stabbed another man in his leg using a horn. The victim came to the Prophet asking for retaliation, and the Prophet said,
«حَتَّى تَبْرَأ»
(Not until you heal.) The man again came to the Prophet and asked for equality in retaliation and the Prophet allowed him that. Later on, that man said, "O Messenger of Allah! I limp now.'' The Messenger said,
«قَدْ نَهَيْتُكَ فَعَصَيْتَنِي، فَأَبْعَدكَ اللهُ وَبَطَلَ عَرَجُك»
(I had asked you to wait, but you disobeyed me. Therefore, Allah cast you away and your limp has no compensation.) Afterwards, the Messenger of Allah forbade that the wound be retaliated for until the wound of the victim heals. If the victim is allowed to retaliate for his wound caused by the aggressor and the aggressor dies as a result, there is no compensation in this case, according to the majority of the Companions and their followers.
Allah said,
فَمَن تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَّهُ
(But if anyone remits the retaliation by way of charity, it shall be for him an expiation.) `Ali bin Abi Talhah reported that Ibn `Abbas commented that
فَمَن تَصَدَّقَ بِهِ
(But if anyone remits the retaliation by way of charity) means; "If one pardons by way of charity, it will result in expiation for the aggressor and reward for the victim.'' Sufyan Ath-Thawri said that `Ata' bin As-Sa'ib said that Sa`id bin Jubayr said that Ibn `Abbas said, `He who pardons the retaliation by way of charity, it will be an expiation for the aggressor and a reward for the victim with Allah.'' Ibn Abi Hatim recorded this statement. Jabir bin `Abdullah said that Allah's statement,
فَمَن تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَّهُ
(But if anyone remits the retaliation by way of charity, it shall be for him an expiation,) "For the victim.'' This is also the opinion of Al-Hasan Al-Basri, Ibrahim An-Nakha`i and Abu Ishaq Al-Hamdani. Imam Ahmad recorded that `Ubadah bin As-Samit said, "I heard the Messenger of Allah saying,
«مَا مِنْ رَجُلٍ يُجْرَحُ مِنْ جَسَدِهِ جَرَاحَةً فَيَتَصَدَّقُ بِهَا، إِلَّا كَفَّرَ اللهُ عَنْهُ مِثْلَ مَا تَصَدَّقَ بِه»
(Any man who suffers a wound on his body and forfeits his right of retaliation as way of charity, then Allah will pardon him that which is similar to what he forfeited.) An-Nasa'i and Ibn Jarir recorded this Hadith. Allah's statement,
وَمَن لَّمْ يَحْكُم بِمَآ أنزَلَ اللَّهُ فَأُوْلَـئِكَ هُمُ الظَّـلِمُونَ
(And whosoever does not judge by that which Allah has revealed, such are the unjust.) Earlier we mentioned the statements of `Ata' and Tawus that there is Kufr and lesser Kufr, injustice and lesser injustice and Fisq and lesser Fisq.
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