The scholars also disagreed over the permissibility of killing a person who is liable to execution but who has fled to the Sanctuary.

The majority of the Successors, Imam Abū Ḥanīfah and his companions among the jurists, Imam Aḥmad, and a number of ḥadith scholars considered it impermissible. They said: such a person is to be dealt with in a way that forces him to leave the Sanctuary; once he has left, the death penalty that became due upon him outside it is carried out.

Mālik and al-Shāfiʿī, on the other hand, maintained that the prescribed penalty is to be executed on him while he remains inside the Sanctuary.

Mālik, al-Shāfiʿī, and those who followed them argued from the general texts that require the enforcement of the ḥudūd and qiṣāṣ at every time and in every place. They also cited the Prophet’s order to kill Ibn Khatal while he was clinging to the curtains of the Kaʿbah and drew an analogy with anyone who commits inside the Sanctuary an offence warranting death.

The first group replied with verses such as: “Whoever enters it shall be secure” (Qur’an 3:97) and “Have We not established for them a secure Sanctuary?” (Qur’an 28:57), and others like them; had the specification no benefit, it would not have been mentioned.

They further answered their opponents by saying that the general texts do not apply here, for their wording indicates nothing of the sort, either explicitly or implicitly; relative to those texts, the matter is unrestricted. And even if we assumed that the texts did include this case, they would still be qualified by the proofs that forbid enforcing the ḥadd within the Sanctuary, lest their purport be nullified.

As for the killing of Ibn Khatal, it is no proof, because he was killed during the hour in which the Sanctuary was made lawful for the Prophet ﷺ.

Their analogy with one who commits a capital offence inside the Sanctuary is likewise unsound, because the offender there violates both the sanctity of the place and the sanctity set by Allah—twofold corruption. Were the ḥadd not carried out on such offenders inside it, corruption would spread and evil would become rampant in Allah’s Sanctuary. By contrast, the person who committed the capital offence outside the Sanctuary bears a far lighter sin, and by seeking refuge there he is like one who repents and regrets his action; it is therefore unfitting to execute him within it.

Ibn Ḥajar said in Fatḥ al-Bārī: “With regard to execution, some scholars have reported consensus that the death penalty may be carried out inside the Sanctuary on the one who committed the crime there, and that the disagreement concerns only the person who killed outside the Ḥill then took refuge in the Sanctuary.” Ibn al-Mundhir is among those who transmitted this consensus.

I say: Ibn Ḥazm asserted in al-Muḥallā that qiṣāṣ and all categories of ḥudūd are never to be carried out in the Sanctuary. He held that whoever commits within it an act warranting death or any ḥadd is first to be expelled and then punished. He cited general statements from some Companions whose outward sense supports his view.