Thus, waiving the right to qisas is preferable so long as it does not lead to harm. Shaykh al-Islam Ibn Taymiyyah (d. 728 AH) maintained that pardon is not suitable in cases of treacherous murder (qatl al-ghilah), because it is impossible to take precautions against it; it is like wanton killing. Al-Qadi cited an opinion that whoever assassinates the imams is executed as a ḥadd-punishment, for his corruption is widespread.

Al-ʿAllamah Ibn al-Qayyim, when commenting on the episode of the ʿUrayniyyin, said: “Treacherous murder (qatl al-ghilah) requires that the killer be executed as a ḥadd-punishment; pardon does not cancel it, nor is parity between victim and perpetrator considered. This is the view of the scholars of Madinah, one of the two reports in the school of Ahmad, the position chosen by the Shaykh, and the ruling for which he issued a fatwa …” End quote.

The guardian of the slain is entitled to retribution only when four conditions are fulfilled:

1. The victim must have been inviolable, meaning his blood was not lawfully shed. Qisas was legislated to preserve life, and a person whose blood is lawful is not protected. Accordingly, if a Muslim kills a belligerent disbeliever, an apostate before repentance, or an adulterer, the killer is liable to neither qisas nor blood-money, though he is disciplined for usurping the ruler’s authority.

2. The killer must be an adult of sound mind, for qisas is a severe punishment that cannot be inflicted on a minor or a madman, either because intent is absent or because such persons have no valid intent. The Prophet ﷺ said, “The pen has been lifted from three: the sleeping person until he awakens, the child until he reaches puberty, and the insane person until he regains sanity.”

Imam Muwaffaq al-Din Ibn Qudamah said, “There is no disagreement among the scholars that …”