Is it permissible for guardians (*awliya*) to take the oath concerning homicide even if they were absent from the scene of the killing?
Chapter on Qasamah (Oaths regarding murder)
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
It is permissible for the guardians to swear against the killer if they believe it is most likely that he committed the homicide, even if they were absent from the location of the killing. This is supported by the Prophet's instruction to the Ansar to swear and thus claim the blood of their companion, while they were in Medina and the killing occurred in Khaybar. Furthermore, a person may swear based on their strong presumption, similar to swearing in matters of property sale where the buyer swears they do not own the item because it appears to belong to the seller, or swearing when returning an item sold without knowledge of a defect.
Supporting text
The claimant should only swear after careful investigation and when their strong presumption nears certainty. The judge must urge them to fear God, investigate the matter, admonish them, warn them against false oaths by reciting Quran 3:77, and clarify the gravity of a false oath, injustice to the innocent, and unlawful killing, emphasizing that worldly punishment is lesser than the torment of the Hereafter. This entire practice aligns with the view of Al-Shafi'i.