Is the delegation of executing retribution (Qisas) valid?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
The delegation of executing Qisas is valid. This position is affirmed by Ahmad. If the delegator (Muwakkil) delegates the execution and subsequently pardons the right to Qisas while the agent (Wakeel) proceeds with the execution after having knowledge of the pardon, the execution is void. If the Wakeel killed after knowing of the pardon, he is a transgressor and is subject to Qisas himself, just as if he initiated the killing.
Supporting text
If the Wakeel killed before learning of the Muwakkil's pardon, Abu Bakr holds that the Wakeel bears no liability because there was no negligence on his part; the pardon occurred in a manner that prevented the Wakeel from stopping the action, thus the killing was a right owed. Conversely, another view suggests the Muwakkil bears the liability because the killing occurred upon his command and authorization, even though the direct agent was without fault; liability thus falls upon the one who commanded it.