Is retribution (Qisas) permissible for an injury that results in death but was not subject to Qisas if the victim had survived?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
Retribution is not permissible for actions such as amputating a limb partially (e.g., above the wrist or ankle) or removing a hand lacking fingers, a paralyzed hand, or an extra hand, even if the victim dies as a result, provided the hand of the perpetrator was whole and sound. The sound opinion in the school is that the injured party cannot retaliate in kind for the injury; retribution is limited only to killing by the sword to the neck. This is supported by Abu Bakr and Al-Qadi. The justification is that if the injury alone did not warrant Qisas, combining it with killing does not permit Qisas for the injury, similar to the case where the right hand is severed, and the perpetrator has no left hand to retaliate with. The act is deemed impermissible because the perpetrator has combined an injury that does not warrant Qisas with an act that does (killing), exceeding what the Lawgiver permitted for fulfillment.
Supporting text
There is another narration stating that retribution is permitted in kind for the injury, as the act became tantamount to killing. Therefore, Qisas by matching the act is allowed, just as crushing the head with a stone resulting in death allows for retaliation by crushing the head.