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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 12 · Page 488

Translation · EN

the rest of them fall away. This is the opinion of Ibn Mas'ud, 'Ata', al-Sha'bi, al-Nakha'i, al-Awza'i, Hammad, Malik, and Abu Hanifa. Al-Shafi'i said: All of them are to be carried out, because that which is obligatory alongside killing is also obligatory without killing, such as cutting off the hand as qisas (retaliation). Our evidence is the statement of Ibn Mas'ud. Sa'id said: Hassan ibn 'Ali narrated to us, Mujalid narrated to us, from 'Amir, from Masruq, from 'Abd Allah, who said: "If two hadd punishments combine, one of which is killing, the killing encompasses the other." Ibrahim said: "Killing is sufficient for him." He also said: Hushaym narrated to us, Hajjaj informed us from Ibrahim, al-Sha'bi, and 'Ata' that they said the same thing. These are views that spread during the era of the Companions and their successors (al-Tabi'in), and no opponent to them appeared, so it was a consensus (ijma'). Furthermore, these are hadd punishments of Allah the Almighty in which there is killing, so what is less than it falls away, just like the highway robber if he kills and takes property; he is satisfied with being killed and is not cut off. Also, these hadd punishments are intended solely for deterrence (zajr), and with killing, there is no need for deterrence, nor is there any benefit in it, so it is not legislated. This is distinct from qisas, as that involves the objective of healing and vengeance, and it is not intended solely for deterrence.

Once this is established, if there is a cause for stoning and also killing due to highway robbery, or killing due to apostasy, or for abandoning prayer, it is appropriate that he be killed for highway robbery, and the stoning falls away, because in the killing for highway robbery there is the right of a human (adamiyy) in qisas, and highway robbery only had an effect in making it mandatory (tahttum), and the right of the human must be given precedence. The second category is that there is no killing involved in them, in which case all of them are carried out without any disagreement that we know of, starting with the lightest, then the next lightest. If he drinks, commits adultery, and steals, he is punished for the drinking first, then for the adultery, then he is cut off for the theft. If he takes property during highway robbery, he is cut off for that, and the cutting off for theft is included within it, because the site of both cuttings is the same, so they overlap, like two killings. Al-Shafi'i held this view. Abu Hanifa said: One may choose between starting with the hadd for adultery or the cutting for theft, because each of them was established by a text of the Quran, then he is punished for the drinking. Our evidence is that the hadd for drinking is lighter, so it is prioritized, like the hadd for false accusation (qadhf), and we do not concede that

Notes

(23) Its transmission (takhrij) was mentioned previously on page 313. (24) Omitted from: B. (25) In B: "for them". (26) In M: "tahrimihi" (his prohibition). Perhaps the correct reading is: "tahttumihi" (its mandatoriness).

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