upon him." Narrated by Muslim. And the saying of the Prophet (peace and blessings of Allah be upon him): "The evidence is upon the claimant, and the oath is upon the denier." [And because the basic principle regarding the defendant is] the exoneration of his liability, and his falsehood has not become manifest, so the statement is his statement, as in all other claims. [And because he is a defendant, so neither the oath nor the liability is incumbent upon him, as in all other claims], and the saying of the Prophet (peace and blessings of Allah be upon him) is more worthy than the saying of 'Umar and more entitled to be followed. Furthermore, the case of 'Umar admits the possibility that they confessed to the killing by mistake and denied the intentional act, so they were made to swear regarding the intentional act. Moreover, they do not act according to the report of the Prophet (peace and blessings of Allah be upon him) which contradicts the fundamental principles, yet here they have resorted to the outward meaning of 'Umar's statement which contradicts the fundamental principles, which is the imposing of oaths upon other than the defendant, and holding them liable for damages without there being a claim against them, and combining between making them swear, holding them liable for damages, and imprisoning them for the sake of the oaths. Ibn al-Mundhir said: The Prophet (peace and blessings of Allah be upon him) established that the evidence is upon the claimant, and the oath is upon the defendant, and he established the Qasamah (oath-taking procedure) regarding the slain person who was found in Khaybar, and the statement of the People of Opinion is outside of these Sunan (established traditions).

Section: A claim against someone who is not specified is not heard. If the claim were against the people of a city, a neighborhood, or one who is not specified, or a group of them without their identities, the claim would not be heard. This is the opinion of al-Shafi'i. The People of Opinion said: It is heard, and fifty of them shall be made to swear; because the Ansar claimed the murder against the Jews of Khaybar, and they did not specify the killer, yet the Messenger of Allah (peace and blessings of Allah be upon him) heard their claim. Our evidence is that this is a claim regarding a right, so it is not heard against one who is not specified, as with all other claims. As for the report, the claim of the Ansar which the Messenger of Allah (peace and blessings of Allah be upon him) heard was not the claim between the two disputants that is being disputed here; for among the conditions of that is the presence of the defendant according to them, or the impossibility of his presence according to us. And the Prophet (peace and blessings of Allah be upon him) has clarified that a claim is not valid except against one person, by his saying: "You shall swear regarding a man from among them, and he shall be surrendered to you in his entirety." In this is a clarification that the claim is not valid against one who is not specified.

Section: As for if one claims murder without the existence of a slain person or any enmity, its ruling is the same as the ruling for all other claims, regarding the requirement of specifying the defendant, and that the statement is his statement. We know of no disagreement concerning this.

Second Section: That if he claims murder, and there is no enmity or lawth (circumstantial evidence), there are two narrations from Ahmad. One of them: The defendant does not swear, no judgment is issued against him for anything, and he is released. This is what al-Khiraqi mentioned here, and it is the same whether the claim is regarding a killing by mistake or intentionally; because it is a claim regarding something where giving it is not permitted, so he is not made to swear concerning it, like the Hudud (prescribed punishments), and because in this claim no judgment is passed based on refusal to swear, so he is not made to swear concerning it, like the Hudud. The second: He is made to swear. This is the correct one, and it is the opinion of al-Shafi'i; due to the generality of his saying, peace be upon him: "The oath is upon the defendant." And the saying of the Prophet (peace and blessings of Allah be upon him): "If people were given whatever they claimed, a group would claim the blood of men and their wealth; but the oath is upon the defendant." This is explicit in necessitating the oath [here for two reasons: one of them is the generality of the wording within it. The second is that the Prophet (peace and blessings of Allah be upon him) mentioned it at the beginning of the report by saying: "A group would claim the blood of men and their wealth." Then he followed it up by saying: "But the oath is upon the defendant." Thus, it returns to the defendant mentioned in the hadith, and it is not permissible to exclude him from it except by evidence stronger than it. And because it is a claim regarding a right for a human being, he is made to swear regarding it, like a claim for wealth, and because it is a claim that if he were to confess to it, his retraction would not be accepted, so the oath is obligatory regarding it, like the aforementioned principle. If this is established, then what is legislated is one oath. And from Ahmad, it is that fifty oaths are legislated; because it is a claim regarding murder, so what is legislated therein is fifty oaths, just as if there were lawth between them. Al-Shafi'i has two opinions regarding this, like the two narrations. Our evidence is that his saying, peace be upon him: "But the oath is upon the defendant." is explicit.