Upon whom does the liability for guaranteeing the fetus fall when Qisas is exacted from a pregnant woman?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
If the Imam (ruler) and the guardian (*wali*) both knew of the pregnancy and the prohibition of exacting Qisas, or if both were ignorant of these matters, or one aspect thereof, or if only the guardian knew while the one executing did not, the liability rests solely upon the executor (*mubashir*). This is because when the direct actor meets the cause (*mutasabbib*), the liability falls upon the direct actor, similar to the digger meeting the pusher. If the ruler knew while the guardian was ignorant, the liability rests solely upon the ruler, as the executor is excused, placing the responsibility on the cause, analogous to a master ordering a slave who does not know the prohibition of killing, or to witnesses in Qisas who retract their testimony after execution.
Supporting text
Al-Qadi stated that if only one party was knowledgeable, the liability falls on that single party. If both were knowledgeable, the liability rests on the ruler because he is the one who understands the rulings, and the guardian defers to his judgment. If both were ignorant, there are two views: one states the liability rests on the Imam, as if they were knowledgeable, and the second states it rests on the guardian. This latter view is the school of Shafi'i. Abu al-Khattab stated the liability rests solely on the ruler without differentiation. Al-Muzani stated the liability rests on the guardian in all circumstances because he is the direct actor, and the cause was not necessitating, thus liability falls on him, similar to the digger meeting the pusher, or when one orders another, knowing the prohibition of killing, who then kills.