The Qadi mentioned that his execution is only mandatory (mutahattim) if he killed [the victim] in order to take wealth. If he killed him for another reason, such as intending to kill him due to enmity between them, then the obligation is qisas (retaliatory killing) that is not mandatory, and if he kills, he is crucified; due to the saying of Allah, the Exalted: "Or they be crucified." The discussion regarding this involves three matters. The first is its time, and its time is after the killing. This is the view of al-Shafi'i. Al-Awza'i, Malik, al-Layth, Abu Hanifah, and Abu Yusuf said: He is to be crucified alive, then killed while crucified, by being struck with a spear; because crucifixion is a punishment, and it is the living who are punished, not the dead. It is also a penalty for the act of muharabah (armed robbery), so it is legislated during life like other penalties. Furthermore, crucifixion after his killing would prevent his shrouding and burial, which is not permissible. Our argument is that Allah, the Exalted, placed killing before crucifixion in the wording, and the order between them is established without disagreement, so the first in the wording must be prioritized, just like His saying, the Exalted: "Indeed, al-Safa and al-Marwah are from the symbols of Allah." Also, when killing is mentioned in the language of the Sharia, it implies killing by the sword. This is why the Prophet (peace and blessings of Allah be upon him) said: "Indeed, Allah has prescribed excellence in everything, so when you kill, kill excellently." The most excellent killing is killing by the sword. Moreover, crucifying him while alive constitutes torture for him, and the Prophet (peace and blessings of Allah be upon him) forbade the torture of animals. Regarding their claim that it is a penalty for muharabah, we say: If it were legislated as a deterrent, it would cease upon his death, just as other hadd punishments cease upon death. Rather, crucifixion was legislated to deter others, so that his state becomes well-known, and this is achieved by crucifying him after his death. Regarding their claim that it prevents shrouding and burial, we say: This is a necessity for them as well, because they leave him crucified after he is killed. The second matter is its extent. There is no specified time for it, except for the extent to which his state becomes well-known. Abu Bakr said: Ahmad did not specify a time for the crucifixion, so I say: He is crucified for the duration that qualifies as such. The correct view is to specify it by the fame (shuhrah) mentioned by al-Khiraqi, because the intended purpose is achieved by it. Al-Shafi'i said: He is crucified for three days. This is the view of Abu Hanifah. This is a specification without a scriptural basis (tawqif), so it is not permissible. Furthermore, it outwardly leads to his decomposition, stench, and the harm of the Muslims through his odor and sight, and it prevents his ritual washing, shrouding, and burial, so it is not permissible without evidence. The third matter is its obligation, and this is a mandatory (hatm) obligation in the case of one who killed and took wealth; it is not dropped by pardon or anything else. The proponents of Ra'y said: If the Imam wishes, he may crucify, and if he wishes, he may not. Our argument is the hadith of Ibn Abbas, [that Jibril] descended [stating] that whoever killed and took wealth is to be crucified. It is also because it was legislated as a hadd, so there is no choice between performing it or leaving it, like killing and other hudud. When this is established, once his state becomes well-known, he is taken down and handed over to his family, and he is then washed, shrouded, prayed over, and buried.

Section: If he dies before he is killed, he is not to be crucified; because crucifixion is part of the completion of the hadd, and the hadd has been missed by his death, so that which is part of its completion is dropped. If he killed during the muharabah with a heavy object, he is to be killed, just as if he had killed with a sharp object; because they are equal in the obligation of qisas by both. If he killed with a tool that does not necessitate qisas when killing with it, such as a whip, a staff, or a small stone, then the manifest meaning of the words of al-Khiraqi is that they are also to be killed, because they entered into the generality. The second situation: They killed but did not take wealth; they are to be killed and not crucified. There is another narration from Ahmad that they are to be crucified; because they are muharibun (armed robbers) for whom killing is obligatory, so they are to be crucified, like those who took wealth. The first view is more correct; because the report narrated regarding them said in it: "And whoever killed and did not take wealth is to be killed," and it did not mention crucifixion. Also, their crime of taking wealth along with killing exceeds the crime of killing alone, so their punishment must be harsher. If crucifixion were legislated here, they would be equal, and the ruling regarding the mandatory nature of the killing and its being a hadd here is like the ruling concerning it when one kills and takes wealth.

Section: If the muharib inflicts a wound for which there is qisas, is the qisas mandatory in it? There are two narrations: One is that it is not mandatory; because the Sharia did not specify the hadd in...