Is the ruling on premeditated murder (ghilah) the same as for other types of murder regarding retribution (qisas) and pardon?
General Chapter
Al-Mughni
Book of Wounds
Primary text
The ruling regarding retribution and pardon for premeditated murder (ghilah) is identical to that of other types of murder. The right to exact retribution or grant pardon belongs exclusively to the heir (wali), not the ruler (sultan). This view is held by Abu Hanifa, Al-Shafi'i, and Ibn al-Mundhir. The evidence for this is the generality of the verse: "Indeed, We have appointed for the heir authority [over the killer]" (Quran 17:33), and the Prophet's saying: "His family has the choice between two matters." Furthermore, since this is a killing that did not occur during warfare (muharabah), the matter is entrusted to the heir, similar to all other homicides. The statement attributed to Umar, "I would have exacted retribution from them," means that he would have enabled the heir to carry out the retribution.
Supporting text
Imam Malik holds that the established ruling is that the killer must be executed for ghilah, and it is not permissible for the heir of the blood to pardon the killer; rather, the matter is delegated to the sultan. Imam Malik defines ghilah as deceiving a person into entering a house or similar place, whereupon the person is killed or their property is seized. He appears to use as evidence the statement attributed to Umar regarding one killed by ghilah, and by analogy with the ruling for a highway robber (muharib).