this one did not kill him." Umar said: "If he has killed a person, he has also saved a person." He warded off the retaliation (qisas) from him. This is because the claim against the first is a doubt (shubha) in warding off retaliation from the second, and the blood money becomes binding upon him due to his confession of the killing that mandates it. This view is the most correct and the most just, along with the testimony of tradition (athar) for its validity.
The Third Section: When the guardians claim killing against someone between whom and the victim there is 'lawth' (a strong indicium of guilt), the oath is legislated for the claimants first. They shall swear fifty oaths against the one sued that he killed him, and their right against him is established. If they do not swear, the one sued is made to swear fifty oaths, and is acquitted. This is the view of Yahya ibn Sa'id, Rabi'ah, Abu al-Zinad, al-Layth, Malik, and al-Shafi'i. Al-Hasan said: The ones sued are made to swear fifty oaths first, and they are acquitted. If they refuse to swear, fifty of the claimants are made to swear that "our right is against you," and then they are given the blood money, due to the saying of the Prophet, peace and blessings of Allah be upon him: "But the oath is upon the defendant." Narrated by Muslim. In another wording: "The evidence is upon the claimant, and the oath is upon the defendant." Narrated by al-Shafi'i in his Musnad. Abu Dawud narrated, with his chain of transmission from Sulayman ibn Yasar, from men of the Ansar, that the Prophet, peace and blessings of Allah be upon him, said to the Jews—and he started with them—: "Fifty men from you shall swear." They refused, so he said to the Ansar: "Establish your right." They said: "We shall swear to the unseen, O Messenger of Allah?" So the Messenger of Allah, peace and blessings of Allah be upon him, placed it upon the Jews, because it occurred in their midst; and because it is an oath in a claim, so it was binding upon the side of the defendant initially, like all other claims. Al-Sha'bi, al-Nakha'i, al-Thawri, and the People of Reason (Ashab al-Ra'y) said: Fifty men from the inhabitants of the locality where the slain was found are made to swear, by Allah, that we did not kill him, and we did not know
(37) We did not find it in what is before us. (38) Dropped from B and M. (39) Its documentation has been provided previously, in: 6/525. (40) Its documentation has been provided previously, in: 10/530. It is in al-Shafi'i's Musnad. See: Tartib Musnad al-Shafi'i 2/181. (41) In: The Chapter on the Abandonment of Retaliation by Qasama, from the Book of Blood Money (al-Diyat). Sunan Abi Dawud 2/487. (42) In B and M: "li-l-Yahud" (to the Jews).
