They also adduced the report transmitted by Abū Dāwūd from Abū Salamah ibn ʿAbd al-Raḥmān and Sulaymān ibn Yasār, on the authority of several leading men of the Anṣār:

“The Messenger of Allah—may Allah bless him and grant him peace—addressed the Jews first, saying, ‘Will fifty of your men swear fifty oaths?’ They refused. He then turned to the Anṣār and said, ‘Swear!’ They replied, ‘Shall we swear about something we did not witness, O Messenger of Allah?’ Thereupon the Messenger of Allah—peace and blessings be upon him—imposed the diyah upon the Jews, because the slain man had been found in their midst.”

Those who place the oath upon the defendant—and, in the event of refusal, make him liable for payment—hold fast to this narration. Its chain of transmission is sound, for trustworthy transmitters relate it from al-Zuhrī through Abū Salamah. The scholars of Kūfah likewise narrate from ʿUmar—may Allah be pleased with him—that he compelled the defendants both to swear and to pay the blood-money.

A similar narration, in which the Prophet begins by requiring the oaths from the Jews, is also recorded from Rāfiʿ ibn Khadīj. These scholars further argue against Mālik with what Ibn Shihāb al-Zuhrī relates from Sulaymān ibn Yasār and ʿIrāk ibn Mālik:

“ʿUmar ibn al-Khaṭṭāb said to a man of Juhaynah who was claiming the blood of his kinsman from a man of Banū Saʿd—whose galloping horse had stepped on the Juhaynī’s finger, which was amputated, and he later died: ʿUmar said to those accused, ‘Will you swear by Allah fifty oaths that he did not die from that injury?’ They declined, feeling it improper to do so. He then said to the claimants, ‘Swear!’ They too refused, so he obliged the defendants to pay half the diyah.”

They contend: “Our ḥadīths have priority over those that begin with the claimants’ oaths, for the foundational legal maxim supports our view: the oath rests with the defendant.”

Abū ʿUmar comments: “The conflicting ḥadīths on this question are well known.”

Fourth Issue

This concerns what renders qasāmah obligatory according to those who uphold it. The vast majority of such scholars agree that it is invoked only when some suspicion (shubha) exists, though they differ over the exact nature of that suspicion.

Al-Shāfiʿī says: The shubha must resemble the suspicion present in the case for which the Messenger of Allah ﷺ instituted qasāmah—namely, a slain man found in a quarter inhabited solely by one group, between whom and the victim’s people there is enmity, as was the case between the Anṣār and the Jews. Khaybar was territory belonging exclusively to the Jews, and it was there that the murdered Anṣārī was discovered.

He adds: The same applies if a corpse is found in some area and beside it stands a man spattered with blood, or if someone enters a house where a few people are gathered and finds a murdered man among them, or any comparable circumstance that strongly inclines the judge to believe the claimant, owing to the force of the suspicion.

Mālik expresses a similar view—namely, that qasāmah is not due unless there is lūth, a compelling presumption. In his school, the testimony of a single upright witness constitutes such lūth by consensus; they disagree only when the witness lacks uprightness. Mālik likewise concurs with al-Shāfiʿī regarding circumstantial indicators that arouse suspicion, such as a murdered person found bathed in his own blood, and nearby