would not, in itself, justify execution—for instance, if each one struck him with a small stone and he died, there would be no retaliation against them, unless they had previously agreed on that action with the intent of killing him. In that case, qiṣāṣ would be imposed, so that people do not turn this into a pretext for escaping retribution.
Shaykh ʿAbd Allah Aba Butayn explained: “The phrase ‘the act of each of them would warrant execution’ means that the deed of each individual is capable of causing the victim’s death, not that death is usually expected from that injury; the jurists illustrate this with a mudihah (a wound that exposes the bone), even though death from such a wound is rare.”
This sound report traced back to the Commander of the Believers ʿUmar ibn al-Khaṭṭāb, Allah be pleased with him, has likewise been used as evidence.
Disagreement among the scholars
The scholars differed regarding murder committed by way of ghīlah.
• The Hanafis, Shāfiʿīs, Hanbalīs, and Ẓāhirīs hold that it necessitates execution by way of qiṣāṣ, like every other form of deliberate and unjust homicide. Therefore, the right to exact the killer’s life lies with the victim’s heirs or agnate kin; if they agree unanimously, the sentence must be carried out, and it is waived if they—or any of them—pardon him.
• Abū al-Zinād, Mālik, Ibn Taymiyyah, Ibn al-Qayyim and others maintain that the offender is executed as a ḥadd, not as qiṣāṣ; the ruler or his deputy enforces it, and no one’s pardon—neither the ruler’s nor anyone else’s—can remit it.
Those who say the killer is put to death by qiṣāṣ cite the Quran, the Sunnah, and analogical reasoning.
As for the Quran, they invoke the general meaning of His words: “And whoever is killed unjustly, We have given his guardian authority; so let him not exceed limits in killing. Indeed, he is supported.” (17:33).
They argue that Allah, exalted is He, has vested the right over the victim’s blood solely in his next of kin—his heirs or agnate relatives—without specifying one type of killing over another, and the default is that such general wording remains in force