when Abū Bakr performed the pilgrimage, a four-month term for those among them who had not embraced Islam; otherwise, he would regard them as belligerents whose blood could lawfully be shed and whose property could lawfully be seized. Had he conquered Mecca by treaty, it would not have been permissible to break that treaty. Moreover, he deemed it lawful to kill a number of people whom he named . . . (1)
Rather, he conquered it by force and granted safe-conduct to those among them who ceased fighting, thereby guaranteeing the safety of their persons and property, apart from a few whom he expressly excluded. He had sent this offer of safe-conduct through Abū Sufyān. Some accepted it, and it became binding in their case; others refused it and either fought or fled. Like a truce, safe-conduct takes effect only when accepted by its intended recipient. As for those who did not cease fighting, he granted them no safe-conduct whatsoever. His declarations of safe-conduct included both specific and general formulations, but their intended meaning was the same.
His words:
“Whoever enters the Mosque is safe; whoever enters his own house is safe; whoever lays down his weapons is safe; and whoever enters the house of Abū Sufyān is safe”
all mean that whoever surrendered and refrained from fighting was safe. This is why he called them “those set free,” as though he had taken them captive and then released them all . . . (2)
The Hanafīs said: Since he conquered Mecca by force but did not divide it, instead leaving it in the hands of its inhabitants, this established a precedent permitting land conquered by force to be left in the hands of its inhabitants.
They, our scholars, and others offered, as one of two explanations, the following: This is why its sale and leasing were impermissible: it had been conquered by force and left undivided, like other land conquered by force. They sometimes say: The accommodation that the people of Mecca provided for others constituted the kharāj levied
(1, 2) A blank of approximately one line in the original.
Shaykh Nāsir ibn Hamad al-Fahd states (p. 223):
Two points arise here:
First, the compiler’s placement of [faqad ammanahu (he has thus granted him safe-conduct)] in square brackets indicates that these words are his addition. They should be omitted: the passage reads coherently without them but becomes confused with them. Allah knows best.
Second, two lacunae are indicated here, each approximately one line long—as the compiler, may Allah have mercy on him, noted. The passage argues that Mecca was conquered by force, and the missing text concerns how two pieces of evidence support that conclusion:
The first is the authorization to kill certain people in the year of the conquest.
The second is the granting of safe-conduct to those who surrendered and refrained from fighting.
Ibn al-Qayyim, may Allah have mercy on him, discusses both pieces of evidence and their significance in *Zād al-Ma‘ād*, 3:108–110. The following passages address these two points and clarify the meaning of the missing text:
1 — “Moreover, he ordered the killing of Maqīs ibn Subāba, Ibn Khatal, and two slave women. Had Mecca been taken by treaty, he would not have ordered the killing of any of its inhabitants, and these individuals would have been expressly excluded from the treaty. Furthermore, *al-Sunan* records, through an authentic chain of transmission, that on the day of the conquest of Mecca, the Prophet, may Allah bless him and grant him peace, said: ‘Grant everyone safe-conduct except two women and four men. Kill them even if you find them clinging to the coverings of the Kaaba.’”
2 — “No one has ever reported that the Prophet, may Allah bless him and grant him peace, concluded a treaty with its inhabitants at the time of the conquest, or that any of them came to him and negotiated a treaty concerning the city. Rather, Abū Sufyān came to him, and he granted him safe-conduct for whoever entered his house, closed his door, entered the Mosque, or laid down his weapons. Had Mecca been taken by treaty, he would not have said, ‘Whoever enters his house, closes his door, or enters the Mosque is safe,’ since a treaty entails general safe-conduct.”