Must the living and adult heirs wait for the return of an absent heir or the maturation of a minor heir before executing retaliation (qiṣāṣ) for a murder victim?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
If the heirs of a murdered person are multiple, some present, some absent, or some minors/insane, it is not permissible for the present or competent heirs to execute retaliation (qiṣāṣ) independently without the permission of the others. The execution must wait until the absent heir returns and the minor reaches maturity or the insane person regains sanity. This is the apparent position of the Madhhab of Ahmad, and it is the view held by Ibn Shubruma, Ibn Abi Layla, Al-Shafi'i, Abu Yusuf, and Ishaq, and narrated from 'Umar ibn 'Abd al-'Aziz.
Supporting text
There is a secondary narration attributed to Ahmad, supported by Hammad, Malik, Al-Awza'i, Al-Layth, and Abu Hanifa, that the adult, rational heirs may execute the retaliation. This is based on the action of Al-Hasan ibn 'Ali when executing the killer of his father, where minor heirs were present, and the act was not refuted. Furthermore, the right of custody over retaliation belongs only to those possessing legal capacity, which minors lack.