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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 5 · Page 422Section

Translation · EN

the beast of prey, then the muhrim is liable for its penalty while wounded. If the one who precedes is the muhrim, he is liable for the penalty of wounding it, according to what has already passed. If they both wound it at the same time, there are two views: the first is that the muhrim is liable for his proportion, just as if his partner were a muhrim, because he only destroyed a part. The second is that he is liable for the penalty of the entirety of it, because it is impossible to impose the penalty on his partner, so it resembles the case where one of them is the guide and the other the guided, or one of them is holding it and the other is killing it; for the penalty is upon the muhrim whichever of them he may be, due to the impossibility of imposing the penalty on the other.

Section: If a haram (someone in ihram) and a halal (someone not in ihram) participate in [killing] a game animal within the sanctuary (haram), the penalty is split between them in two halves, because the destruction is attributed to each of them by half. The obligation on the muhrim does not increase due to the combination of the sanctity of ihram and the sanctuary; thus, the obligation on each of them is half. This participation, which has this ruling, is that in which the act occurs by both of them together. If one precedes his companion, his ruling is what we have mentioned in what has passed.

Section: If a man enters ihram while he owns a game animal, his ownership does not cease, nor does his constructive possession (al-yad al-hukmiyyah), such as if it is in his city, or in the possession of an agent of his in a place other than his location. There is nothing upon him if it dies, and he has the right to dispose of it through sale, gifting, and other means. Whoever usurps it from him is obligated to return it, and he (the muhrim) is obligated to remove his physical possession (al-yad al-mushahadah) from it. Its meaning, if it is in his grip, his riding-pack, his tent, a cage with him, or tied with a rope with him, is that he is obligated to release it. This is the opinion of Malik and the scholars of reason (Ahl al-Ra'y). Al-Thawri said: He is also a guarantor for what is in his house. Something similar was narrated from al-Shafi'i. Abu Thawr said: He is not obligated to release what is in his hand. This is one of the two opinions of al-Shafi'i, because it is in his possession, so it resembles what would be in his constructive possession, and because it is not required that the prohibition of initiating the hunting of game implies the prohibition of continuing its possession, as evidenced by game in the sanctuary. Our argument, that he is not obligated to remove his constructive possession, is that he has not performed any act regarding the game, so nothing is required of him, just as if it were in the property of someone else. The opposite of this is if it is in his physical possession, for he has performed the act of holding the game,

Notes

(11) Omitted from the "Original".

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