Hadith 19930

Yahya said from Malik from Yahya ibn Said that Bushayr ibn Yasarinformed him that Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Masudwent out to Khaybar, and they separated on their various businessesand Abdullah ibn Sahl was killed. Muhayyisa, and his brother Huwayyisaand Abd ar-Rahman ibn Sahl went to the Prophet, may Allah bless himand grant him peace, and Abd ar-Rahman began to speak before hisbrother. The Messenger of Allah, may Allah bless him and grant himpeace, said, "The older first, the older first. ThereforeHuwayyisa and then Muhayyisa spoke and mentioned the affair ofAbdullah ibn Sahl. The Messenger of Allah, may Allah bless him andgrant him peace, said to them, "Do you swear with fifty oaths andclaim 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 notpresent." The Messenger of Allah, may Allah bless him and grant himpeace, said, "Will you acquit the jews for fifty oaths?' They said,"Messenger of Allah, how can we accept the oaths of a people who arekafirun?"Yahya ibn Said said, "Bushayr ibn Yasar claimedthat the Messenger of Allah, may Allah bless him and grant him peace,paid the blood-money from his own property."Malik said, "Thegenerally agreed on way of doing things in our community and thatwhich I heard from whoever I am content with, concerning the oath ofqasama, and upon which the past and present imams agree, is that thosewho claim revenge begin with the oaths and swear. The oath for revengeis only obligatory in two situations. Either the slain person says,'My blood is against so-and-so,' or the relatives entitled to theblood bring a partial proof of it that is not irrefutable against theone who is the object of the blood-claim. This obliges taking an oathon the part of those who claim the blood against those who are theobject of the blood-claim. With us, swearing is only obliged in thesetwo situations."Malik said, "That is the sunna in whichthere is no dispute with us and which is still the behaviour of thepeople. The people who claim blood begin the swearings, whether it isan intentional killing or an accident."Malik said, "TheMessenger of Allah, may Allah bless him and grant him peace, beganwith Banu Harith in the case of the killing of their kinsman murderedat Khaybar."Malik said, "If those who make the claim swear,they deserve the blood of their kinsman and whoever they swear againstis slain. Only one man can be killed in the qasama. Two cannot bekilled in it. Fifty men from the blood-relatives must swear fiftyoaths. If their number is less or some of them draw back, they canrepeat their oaths, unless one of the relatives of the murdered manwho deserves blood and who is permitted to pardon it, draws back. Ifone of these draws back, there is no way to revenge."Yahyasaid that Malik said, "The oaths can be made by those of them whoremain if one of them draws back who is not permitted to pardon. Ifone of the blood-relatives draws back who is permitted to pardon, evenif 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 oneagainst whom the claim is made. So fifty of the men of his peopleswear fifty oaths. If there are not fifty men, more oaths can be madeby those of them who already swore. If there is only the defendant, heswears fifty oaths and is acquitted."Yahya said that Maliksaid, "One distinguishes between swearing for blood and oaths forone's rights. When a man has a money-claim against another man, heseeks to verify his due. When a man wants to kill another man, he doesnot kill him in the midst of people. He keeps to a place away frompeople. Had there only been swearing in cases where there is a clearproof and had one acted in it as one acts about one's rights (i.e.needing witnesses), the right of blood retribution would have beenlost and people would have been swift to take advantage of it whenthey learned of the decision on it. However, the relatives of themurdered man were allowed to initiate swearing so that people mightrestrain themselves from blood and the murderer might beware lest hewas put into a situation like that (i.e. qasama) by the statement ofthe murdered man.' "Yahya said, "Malik said about a peopleof whom a certain number are suspected of murder and the relatives ofthe murdered man ask them to take oaths and they are numerous, so theyask that each man swears fifty oaths on his own behalf. The oaths arenot divided out between them according to their number and they arenot acquitted unless each man among them swears fifty oaths on his ownbehalf."Malik said, "This is the best I have heard about thematter."He said, "Swearing goes to the paternal relatives ofthe slain. They are the blood-relatives who swear against the killerand by whose swearing he is killed."