alone, while the second assailant receives a discretionary punishment (taʿzīr). If, however, the second strikes before the victim has been reduced to that convulsive, slaughter-like state and then finishes him off—for example, by cutting the throat after an earlier wound—he is deemed the killer, and the first is liable only for retaliation with respect to the limb he injured or its monetary equivalent, according to the circumstances. If the second does not finish him off, both are treated as killers and executed. Even one who kills a patient already in the death-throes, whose life is no better than that of a slaughtered animal, is still subject to qiṣāṣ.

Section

If a man kills a Muslim whom he mistakenly takes to be an unbeliever in enemy territory (dār al-ḥarb), no qiṣāṣ is taken, and—according to the stronger view—no diyah is payable either. Should the same happen in Muslim territory (dār al-islām), both qiṣāṣ and diyah are obligatory, though another opinion exempts him from qiṣāṣ. Likewise, if he kills someone he assumes to be an apostate, a dhimmī, a slave, or the murderer of his father and that assumption later proves false, the relied-upon position is that qiṣāṣ is mandatory.

If he beats a sick person—ignorant of the illness—in a manner that would ordinarily kill such a patient, qiṣāṣ is required, although a second opinion says otherwise.

For qiṣāṣ to be enforceable the victim must be either a Muslim or a person under Muslim protection (amān); therefore no retaliation is due for the killing of an enemy combatant, an apostate, or someone already liable to qiṣāṣ. If a dhimmī kills a married adulterer who is legally subject to stoning (muḥṣan), he is executed in retaliation, whereas a Muslim who does so is not, according to the sounder view.

As for the killer, puberty and sanity are required, and the preferred opinion is that qiṣāṣ also applies to the intoxicated. Should he swear that on the day of the killing he was a minor or insane, he is believed upon his oath, provided such minority or insanity is plausible from his age or medical history. If he merely says, “I am a minor,” no retaliation is taken and he is not put to oath.

No qiṣāṣ is taken from a combatant enemy, but it is taken from a legally protected person and from an apostate. Reciprocity (mukāfaʾa) is likewise a condition: a Muslim is not executed for a dhimmī, whereas a dhimmī is executed for killing a Muslim and, according to the stronger view, for killing another dhimmī even if their religions differ. If such a killer embraces Islam, the qiṣāṣ is not waived; the same ruling applies when a dhimmī wounds another dhimmī, converts to Islam, and the victim later dies. In both situations the ruler carries out the retaliation only at the request of the heir.

The preponderant view is that an apostate is executed for killing a dhimmī or another apostate, while a dhimmī is not executed for killing an apostate. A free person is never executed for killing someone who is even partially enslaved.