Does the presence of an individual legally exempt from Hadd punishment affect the liability of others involved in the same crime?
General Chapter
Al-Mughni
Book of Highway Robbers
Primary text
The punishment (Hadd) is not waived for others in a group crime if one of the participants is a child, insane person, or a relative of the victim who is subject to retaliation (Qisas). This is the position held by the majority of scholars. The basis for this ruling is that the exemption is specific to one individual and does not negate the Hadd for the others, analogous to cases where multiple individuals commit fornication or the crime of aggressive robbery (Hirabah) together. Concerning the child or the insane person who participates in the killing or theft, no Hadd is applied because they are not considered accountable for Hadd punishments. They are liable for restitution (Daman) for any property taken, and their heirs (Aaqilah) must pay the blood money (Diyyah) for the homicide.
Supporting text
Imam Abu Hanifa held that the Hadd is waived for all participants. Instead, the right to retaliation (Qisas) reverts to the victim's heirs, who may choose to execute the retribution or grant pardon. This is based on the reasoning that the legal status (ruling) for all participants is considered singular, meaning the ambiguity surrounding one invalidates the ruling for all, due to the action being perceived as a single event.