Is capital punishment (Qisas) required for a competent partner in a joint intentional homicide when the co-perpetrator is immune from Qisas due to a personal status?

General Chapter

Al-Mughni

Book of Wounds

Book 47 · Issue 1 · Bab 1

Open in Qurani

Primary text

If two partners commit intentional homicide, and Qisas cannot be carried out against one partner due to an inherent personal reason (such as being a Muslim or a free man, while the victim was a slave or a Dhimmi), Qisas remains obligatory upon the competent partner. This is because the immunity of the first partner (e.g., Islam or freedom) does not transfer to the act or the co-perpetrator. If a free man and a slave jointly kill a slave intentionally, the free man is not killed for the slave, but the Dhimmi/slave partner must face Qisas if it is held obligatory for the partner of one who enjoys immunity (like a father). Regarding a free man and a slave killing a slave intentionally, Imam Ahmad stated that the free man pays half the value of the slave from his wealth, and the slave is either surrendered by his master or ransomed for half the slave's value, implying Qisas is not executed upon the slave.

Supporting text

This principle applies analogously to all cases where a competent person partners in a killing with someone immune from Qisas due to an inherent quality of that person.