On the authority of ibn Masood (may Allah be pleased with him) who said: The Messenger of Allah (peace and blessings of Allah be upon him) said, “It is not legal [to spill] the blood of a Muslim except in one of three cases: the fornicator who has previously experienced legal sexual intercourse, a life for a life and one who forsakes his religion and separates from the community.” : Recorded by al-Bukhari and Muslim.
- “It is not legal [to spill] the blood of a Muslim except in one of three cases”
- “The fornicator who had previously experienced legal sexual intercourse”
- “A life for a life”
- “One who forsakes his religion and separates from the community”
- Other Cases that Call for the Death Penalty
- Other Points Related to this Hadith
- Summary of the Hadith
General Comments about the Hadith: This important hadith discusses the sanctity of Muslim lives according to Islamic law. In general, a Muslim life may not be taken unless he commits a crime so harmful to society that he is deemed no longer deserving to be living. These crimes are described, in a general way, in this hadith. This hadith can be considered a partial explanation of Hadith #8 inwhich a person’s life is declared safe except due to the rights of Islam. lbn Rajah states that the scholars are agreed that if anyone performs and is convicted of any one of these three acts, he is to receive the death penalty.
1. “It is not legal [to spill] the blood of a Muslim except in one of three cases”
It is a must that a Muslim respect the life, honor and wealth of other Muslims, as the Prophet (peace be upon him) stated during his Farewell Pilgrimage. The life of a Muslim is something very honorable in the sight of Allah. One time ibn Umar looked at the Kaaba and said, “You are very great and your sanctity is very great. However, the sanctity of a believer is even greater in the sight of Allah.”1 The rights of a Muslim are protected and cannot be violated. Indeed, the Prophet (peace be upon him) also prohibited the frightening of another Muslim, even in jest. The Prophet (peace be upon him) called the abusing of another Muslim a type ofjisq or grave evil-doing.
However, even though a Muslim is so respected by the law, there are cases in which he may perform an act which is so heinous that he no longer deserves to live. As opposed to today’s Western societies, where individual rights take precedence over the rights and concerns of society, in Islamic Law, the concerns of society as a whole take precedence over the wants and desires of a particular individual who has no respect for the welfare of society and is willing to commit the heinous crimes described in this hadith.
2. “the fornicator who had previously experienced legal sexual intercourse”
2.1 The Definition of al-Thayyib al-Zaani:
In this hadith, the Messenger of Allah (peace be upon him) mentioned al-thayyib al-zaani. A zaani is any person who commits zina. Zina is technically defined as, in the case of the man, “sexual intercourse performed by a man intentionally and knowing that it is forbidden with a woman who is not his wife or slave or whom he had intercourse with not thinking that it was his wife or slave.” In essence, it is illegal sexual intercourse or fornication. Thayyib is defined in the following manner by Lane (note that he defines it with respect to the woman because that is the most common usage of the word),
A woman who has become separated from her husband in any manner; or a woman whose husband has died, or who has been divorced, and has then returned to the marriage state; or one that is not a virgin; or a woman to whom a man has gone in … or a person who has married … The two persons of whom each has previously had carnal intercourse in marriage with one of the other sex shall be stoned if they commit adultery together
Hence, it is enough to be considered thayyib that one had had legal sexual intercourse at one time. In sum, to say that the punishment for the married fornicator is death by stoning while the punishment for the unmarried fornicator is lashing is not quite correct. A man, for example, may be unmarried but he may still be considered thayyib, as in the case of a divorced person or a widower. His punishment will still be death by stoning although he was not married at the present time that he committed the act.
The Punishment for al-Thayyib al-Zaani: Allah has blessed the married person with legal means to satisfy his natural urges. In addition, the shareeah has laid down many laws that prevent one from the avenues that may lead him or her to illegal ways of sexual intercourse. Adultery is an act that is harmful to society as a whole. Allah has warned Muslims about how evil a deed fornication is and how they must not even go near it. Allah has stated,
“And come not near unto unlawful sexual intercourse. Verily, it is a greatly lewd act and an evil way” (al-lsraa 32). After all of that, if a person still commits the act of adultery, he deserves a severe punishment.
The punishment for adultery, when it is proven, is stoning until death. This is something agreed upon by the Muslim scholars. It was something enacted during the time of the Prophet (peace be upon him) and afterwards. There used to be a Quranic verse stating such a punishment but its reading was later abrogated.
This has been referred to in the following narrative from Sahih Muslim: Abdullah ibn Abbaas reported that Umar ibn al-Khattaab sat on the pulpit of the Messenger of Allah (peace · be upon him) and said, “Verily, Allah sent Muhammad (peace be upon him) with truth and He sent down the Book upon him, and the verse of stoning was included in what was sent down to him. We recited it, retained it in our memory and understood it. The Messenger of Allah (peace be upon him) awarded the punishment of stoning to death [to the married adulterer and adulteress] and after him we also awarded the punishment of stoning. I am afraid that, with the lapse of time, the people [may forget it] and say, ‘We do not find the punishment of
stoning in the Book of Allah,’ and thus go astray by abandoning the duty prescribed by Allah. Stoning is a duty laid down in Allah’s Book for married men and women who commit adultery when proof is established or if there is pregnancy’ or a confession.
The Prophet (peace be upon him), also in a narration in Sahih Muslim, mentioned that the non-married fornicator is to be lashed one hundred times and banished for a year. He also stated that the thayyib fornicator is to be lashed one hundred times and then stoned to death. Some of the scholars follow this hadith and state that a thayyib fornicator is both to be lashed and then stoned. This is how Ali enacted this punishment upon a woman, saying, “I lashed her according to the Book of Allah and I stoned her according to the sunnah of the Messenger of Allah (peace be upon him).” This was the view of Ahmad, Ishaaq, Dawood and ibn al-Mundhir. It was also the view of al-Hasan al-Basri and some other early scholars.
There are some who hold the view that both the lashing and stoning is only for older people who commit adultery while younger people who do so are only to be stoned. This is because, they say, the crime of the older person is much more heinous since he does not possess the same drive that a younger person may possess. This view has also been narrated from Ahmad and Ishaaq.
The majority of the scholars state that one does not do both lashing and stoning to the thayyib fornicator. They argue that the above referred to hadith has been abrogated. The abrogation is in the authentic hadith concerning Maaiz who committed adultery and the Prophet (peace be upon him) had him stoned without having him lashed first. This is also true for the other narrations that mention the Prophet (peace be upon him) having someone stoned but never mention him also having them lashed.
This stern punishment for the act of adultery shows how seriously Islam considers family relations. The act of adultery is something that can clearly break apart a family. The family is the foundation for society as a whole. If the family is not safeguarded, then society as a whole will start to crumble. It will not have a strong foundation and, therefore, it itself will not be strong.
2.2 Objections to the Death Penalty in the Case of al-Thayyib al-Zaani:
In the past and unfortunately still from some people today, the following objections had been raised to the death penalty in the case of althayyib al-zaani: The married adulterer should not be killed because the only penalty mentioned in the Quran for the zaani is what is stated in the following verse:
“For the female zaani and the male zaani, flog each one hundred lashes” (alNoor 2). The first objection states that if one stones a person to death for adultery, he is then going from a law that is definitively established in the Quran to one that is lesser so established in the hadith. The second objection is that to accept the law of flogging means that one is allowing the sunnah to abrogate the Quran and this is not acceptable.
As for the first objection, Ibn Qudaama notes that there are many hadith that demonstrate that the Prophet (peace be upon him) stoned al-thayyib al-zaani. These hadith are so numerous and transmitted by so many means that they reach the level of mutawaatir in their meaning. In addition, there was a consensus of the Companions concerning the punishment for al-thayyib alzaani, this further raises the degree of reliability of the evidence for that ruling. Hence, the proofs that the married adulterer is to be stoned are, in fact, as strong as the opposing evidence used to show that he should just be flogged.
As for the second objection, this is not a case of the sunnah abrogating the Quran. This is a case of the sunnah particularizing a general statement of the Quran– and particularization of the Quran by the sunnah is something accepted by all the respected scholars. The Quran has mentioned zaani in a general sense and the sunnah has restricted that zaani to be only the zaani who is not thayyib.
This issue of not allowing the sunnah to explain the Quran has been the cause of straying for many a people, both in the past and the present. One of the earliest groups to stray concerning this matter was the Khawaarij. It is narrated that they debated with the khaleefah Umar ibn Abdul Azeez concerning this issue. They told Umar that the Quran only mentions flogging and does not mention stoning. Umar said to them, “Do you only take what is found in the Quran?” They said, “Yes.” He said to them, “Inform me about the number of the obligatory prayers and the number of its essential acts, rakats and their timings. Where do you find those matters in the Book of Allah? Tell me about the zakat and its amount and on what wealth it is to be paid.” They asked him to give them some time to find those matters. They returned and admitted that they did not find them in the Quran. Umar then asked them, “Why do you do those things then?” They answered, “Because the Messenger (peace be upon him) did them as did the Muslims after them.” Umar then replied, “Such is the case with the stoning.”
3. “A life for a life”
If an adult, rational person intentionally murders another person, male or female, without due right of law, then that murderer is to be put to death. This is clear from the Quran, as Allah has said, “O believers! The Law of Equality in punishment is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the relatives of the killed person forgive to some extent their brother [the killer], then the relatives should demand blood-money in a reasonable manner, and the killer must pay with handsome gratitude. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits, he shall have a painful torment. And there is [saving of] life for you in the Law of Equality in punishment, 0 men of understanding, that you may become pious” (al-Baqara 178-179).
There are some exceptions to this ruling. The first exception is alluded to in the verse itself. The relatives of the deceased have the right to forego the death penalty and accept a blood-money payment instead from the killer. A second exception is where a father kills his son. According to the majority of the scholars, the father is not to be killed for such an act. This opinion has been narrated from Umar ibn al-Khattaab.
In fact, there is even a hadith narrated from the Prophet (peace be upon him) in which he said, “There is no retribution to be done to the father because of the son.” Malik, perhaps unaware of that hadith, was of the opinion that if it was clear that the father intentionally killed his son, with no mistake involved, then he is to be killed. Al-Laith, a scholar close to Malik, was also of the opinion that the generality of the command of the Law of Retribution also applied to the father killing his son.
A third exception is where a free man kills a slave. This is the opinion of the majority of the scholars. Abu Hanifah and his companions say that if a man kills his own slave, he is not to be killed; but if a man kills somebody else’s slave, he is to be killed. Yet others hold the view that a free person is to be killed for killing any slave. This was the opinion of al-Thauri and a number of the scholars of “the school ofhadith”. This view may be based on the hadith, “Whoever kills his slave, we shall kill him. And whoever mutilates his slave, we shall mutilate him.” However, Ahmad, who recorded this hadith, doubted its authenticity.
According to a number of scholars, if a person murders another person’s slave, then, even though the murderer is not to be killed, the murderer may pay the price of that slave to his owner. This price may even exceed the blood-money usually paid, but the murderer must pay it. If a person kills his own slave, he is to be punished in a different way. It is recorded in a hadith in Sunan al-Daaraqutni that a man intentionally killed his slave who was tied up. The Prophet (peace be upon him) had him lashed one hundred times, banished for one year, removed from the list of those who receive portions of the war booty and he ordered him to free a slave. This punishment is the view of the majority of the scholars, including Malik, Ahmad and al-Shafi’ee. However, the narration itself seems not to be authentic.
A fourth exception is where a Muslim kills a non-Muslim. If the nonMuslim was in a state of war or living in a land that is in a state of war against the Muslims, then all scholars agree that the Muslim is not to be killed for that act. There is a difference of opinion over the case of a Muslim killing a non-Muslim citizen of the Islamic State. The majority of the scholars say that the Muslim is not to be killed as retribution in that case. This is based on the hadith in Sahih al-Bukhari, in which the Prophet (peace be upon him) said, “A Muslim is not to be killed for a non-Muslim.”
Abu Hanifah and the scholars of Kufa state that a Muslim who kills a non-Muslim citizen is to be put to death. They base this on a narration in which the Prophet killed a Muslim for killing a non-Muslim citizen. Then the Prophet (peace be upon him) said, “I am the foremost person to fulfill his pact.” However, this hadith, which was recorded by al-Daaraqutni, al-Baihaqi and others, is clearly a weak hadith in the opinion of the scholars of hadith.
4. “One who forsakes his religion 4 and separates from the community”
This is in reference to the apostate. The phrase does not mean one who does both acts. The first characteristic is simply emphasized by the second
characteristic. Indeed, the first characteristic automatically implies the second characteristic. In a hadith in Sahih al-Bukhari, the Prophet (peace be upon him) said, “Whoever changes his religion is to be killed.”
Included in this category is anyone who rejects what the Muslim Nation has agreed upon. He is truly, “separating from the community.” However, on this point one must be careful. There are some aspects that are agreed upon that are well-known to everyone. It would be difficult to imagine anyone not knowing them, especially those who grew up in a Muslim environment. These could include matters like the obligation of praying five times a day, the prohibition of alcohol and so forth. This category cannot be denied by anyone. There is a second category concerning which there is agreement, especially among the early generations, but many people are not aware of such agreement. Obviously, denial of this type of consensus would not lead to being declared a disbeliever and having one’s blood spilled.
If a person commits any of the acts of apostasy, even if he claims to believe in the testimony of faith, he will be killed due to his apostasy- if he persists in his disbelief and refuses to repent. However, if a person apostates from Islam and then repents, he is not to be killed because in that state he is neither forsaking his religion nor separating from the community.
There is agreement among the scholars that the male apostate is to be killed. There is some disagreement concerning the female apostate. The Hanafis argue that she is not to be killed. They say that she should be imprisoned until she repents or dies. Their reasoning is that women and children are not to be killed during jihad, hence, they are not to be killed for, in essence, joining the ranks of the disbelievers. However, the majority of the scholars stick to the general wording of the hadith noted above and say that an apostate woman is also to be killed.
5. Other Cases that Call for the Death Penalty
Upon studying other hadith of the Prophet (peace be upon him), one will note that there are other cases that also call for the death penalty. These cases include the following:
(i) The case of male homosexuality: Ibn Abbaas narrated that the Prophet (peace be upon him) said, “Whoever you find doing the act of the People of Lot, then kill the one doing the act [of sodomy] and the one it is being done to.” There was a general consensus among the Companions that male homosexuals are to be killed. They only differed concerning the exact manner by which their execution is to take place. Furthermore, the male homosexual is to be killed regardless of whether he is married or not.
(ii) The case of one who marries a related woman who is within the prohibited degrees of marriage: A hadith recorded by Abu Dawood, alTirmidhi and others states that the Prophet (peace be upon him) had ordered that the one who married his father’s wife is to be killed.
(iii) The case of the magician: A hadith in Sunan al-Tirmidhi states, “The prescribed punishment for the magician is to strike him with the sword.” However, it seems that this hadith is not authentic. Most likely it was a statement of the Companion Jundub. Even though this hadith is not authentic, to kill the magician is the opinion of the majority of the scholars. In reality, though, scholars such as Malik, Ahmad and others consider the magician to be a disbeliever and that is why he is to be killed.
(iv) The case of animal bestiality: A hadith states, “For whoever you find [committing sodomy] with an animal, you should kill him and kill the animal.”
(v) The case of the one who does not pray: The details concerning such a person were discussed earlier in the commentary to Hadith #3
(vi) The one who drinks alcohol and is already punished three times:
The Prophet (peace be upon him) said, “The one who drinks alcohol is to be flogged. If he repeats it, flog him again. If he repeats it, flog him again. Ifhe [again] repeats it, then kill him.” There is no question that this is an authentic hadith. Most scholars seem to consider this hadith to be abrogated though. This hadith is found in Sunan al-Tirmidhi. AlTirmidhi himself said, All of the hadith in this book [ Sunan al-Tirmidhi] are acted upon and followed by some people of knowledge- except for two hadith: the hadith of ibn Abbaas in which the Prophet (peace be upon him) combined the Dhuhr and Asr Prayers in Madinah and the Maghrib and lsha Prayers, without fear, traveling or rain. And the hadith in which the Prophet (peace be upon him) said, “If he drinks flog him; if he repeats it a fourth time, kill him. ” Ahmad Shaakir has written some thirty pages on this hadith alone. He has tried to prove that the claim that it is abrogated is not a strong claim. In fact, it is an unsupported claim. His arguments seem convincing.
(vii) The case of the thief after being punished four times: There is also a hadith in Sunan Abu Dawood, Sunan al-Nasaai and al-Baihaqi’s Sunan alKubra that states that the thief is to be killed if he has already been punished four times for that crime. 5 This is the opinion of some jurists.
(viii) The case of dividing the Muslims when they are united under the leadership of one caliph: The Prophet (peace be upon him) once said, “When you are all united under one leader and someone comes to undermine your solidarity or disrupt your unity, you should kill him.” (Recorded by Muslim.)
(ix) The case of self-defense or defending one’s wealth: It is clear from many hadith that it is excusable to kill another Muslim in the case of selfdefense. If the person fights in defense of his wealth and is killed, he will be treated by Allah’ as a martyr. The Prophet (peace be upon him) said “The one who is killed while defending his wealth is a martyr.” (Recorded by al-Bukhari.) Another hadith states, “Whoever is killed defending his wealth is a martyr. Whoever is killed defending his family or his blood or his religion is a martyr.”
How to Reconcile These Cases with the Meaning of this Hadith: The hadith under discussion here from ibn Masood definitely gives the impression that it is only under one of those three cases that a person receives the death penalty. How is it then that there are all of these other cases just described? Does this not contradict the hadith of ibn Masood?
Some answer this question by saying, “Yes, there is a clear contradiction” and, therefore, the hadith of ibn Masood abrogates the rulings for all of the other cases mentioned. However, this is an untenable position. To prove abrogation, one would have to demonstrate that the hadith of ibn Masood was stated after all of the other hadith that prescribe the death penalty for the acts stated above. This is something that no one has been able to prove. A better approach is to consider ibn Masood’s statement to be general and a general statement cannot abrogate more particular statements, even if the general statement came later in time.
Ibn Rajab has responded to this question in a different way. He stated that this hadith of ibn Masood makes it clear that the death penalty is in any of three cases: (1) when a person leaves the religion, (2) when a person wrongfully spills the blood of another, (3) and when the person engages in illegal sexual intercourse.
Ibn Rajab then goes on to say that the stated punishment for the married adulterer is simply an example of the type of crime that leads to the death penalty. If a person has legal means to sexual intercourse and then he still insists on committing illegal sexual intercourse, he has committed such a heinous crime that he no longer deserves to live. If that is true, what about those people who indulge in sexual practices that are not allowed under any circumstances, such as homosexuality and animal bestiality. These cases are even worse and more deserving of such punishment than adultery. Hence, the stated punishment for adultery implies that these other cases should also be dealt with in the same way.
The second category is the one who sheds another’s blood unlawfully. Certainly, causing civil commotion and disruption among the Muslim nation also leads to the same result. Hence, the one who does the act that would lead to the same result is to receive the same punishment, as mentioned in the hadith above. The same holds true for the alcoholic. His actions may certainly lead to the wrongful spilling of blood. Hence, he is deserving of that same punishment.
The third category is the one who apostates. This includes all forms of apostasy. In fact, some scholars even say that those who are calling to clear innovations that contradict the basis of Islam are to be killed, based on this hadith. In fact, the Prophet (peace be upon him) even stated that the Khawaarij should be killed. The scholars though differ about whether they should be killed due to their heresy or due to their revolt against the Muslim rulers.
Finally, al-Sindi argues that this hadith from ibn Masood is simply stating the majority of the cases in which a person’s blood may be spilled. It was not intended to mention all cases. Hence, there is no difficulty with there being a death penalty in cases not explicitly mentioned in this hadith. However, ibn Rajab’s discussion is more convincing because the Prophet’s speech is made up of a general negation followed by an exception. This is one of the strongest forms of all-inclusiveness. Therefore, it is hard to accept alSindi’s argument that the Messenger of Allah (peace be upon him) was just mentioning the most common cases.
6. Other Points Related to this Hadith
Those who are to implement the death penalty are the rightful government leaders or rulers. One is not allowed to implement such a penalty without their approval or authority. For example, if a person is murdered, the victim’s brother is not allowed to go and execute his murderer. First, the case must be proven and the government authorities must make the decision to have the person executed. However, al-Bugha and Mistu state, if a person does carry out the death penalty without governmental authority, then that person is also to be punished but he is not to receive the death penalty himself, since he killed someone who legally deserved to be killed.
The above point leads to another very important question: Is the death penalty and other prescribed punishments to be implemented in nonIslamic lands? That is, if a Muslim commits, for example, adultery in a non-Islamic state, are the Muslims there supposed to execute him? On this opinion, there is a difference of opinion among the scholars.
The first opinion to be presented here is that of ibn al-Qayyim. His opinion is somewhat unique but it is strongly rooted in the evidences related to this question. According to ibn al-Qayyim, if a person commits a crime for which there is a prescribed punishment in a non-Islamic state, then he is not to be punished by the Muslims for that crime until he returns to the Islamic state. Furthermore, if that took place during jihad and the person afterwards does acts of bravery against the disbelievers and he shows signs of repentance, then the punishment may be dropped completely from him.
The opinion of Ahmad, Ishaaq, al-Auzaa’ee and others is that the prescribed punishment is not to be carried out in the non-Islamic lands but will be carried out when the people return to the Islamic land. One of the reasons that they give for that is that the prescribed punishment may drive the guilty Muslim to leave the Muslims and join the ranks of the disbelievers. That is, there is more harm than good in enforcing such penalties in non-Islamic lands. Hence, they do not allow such an act in the lands of the non Muslims. One of the proofs for this position is the following hadith from Sunan al-Tirmidhi and elsewhere, in which the Prophet (peace be upon him) said, “Do not cut the hands [of the thieves] in battle.” This hadith is understood by some scholars to imply that in all of the lands of the enemies, the prescribed punishments are not to be implemented. This was the application by the Companions of this hadith. In fact, according to alMaqdisi, there is a consensus on this point.
The Hanafis are of the view that the prescribed punishments are not to be executed in non-Islamic lands unless the caliph is actually present with the Muslims. They argue that without the ability and authority to implement the penalties, they may not be performed. However, if the caliph is actually with them, they will have the ability and authority to do it. Note that they do not consider it sufficient that the caliph’s governor or military ruler is present with them.
The conclusion for today’s world is that the prescribed punishments are not to be carried out in non-Islamic lands– although the acts themselves, obviously, are still not permissible for Muslims. The Muslims neither have the authority, true Islamic leadership or ability to carry them out. Furthermore, the harm of performing such punishments greatly outweighs
the benefit of them. If a person commits such heinous crimes as these described, the Muslim community should make him realize how great the crime he committed is and do their best to guide him to the road of repentance and reform. Allah knows best.
7. Summary of the Hadith
• The life of a Muslim is inviolable and protected by law. No one has the right to take his life unless he commits a crime that calls for the death penalty.
• The committing of adultery, murder and apostasy are such heinous crimes that Islamic Law, which otherwise safeguards life, has deemed that those who commit such crimes no longer deserve to live.
• One of the purposes of the death penalty is to protect the sanctity and lives of all Muslims. As Allah states about the Law of Retribution, quoted above, “And there is [saving of] life for you in the Law of Equality in punishment, O men of understanding, that you may become pious” (alBaqara 178-179).
Books of Muslims 