Introduction to Fiqh-us-Sunnah
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Allah says: "O You Who Believe, kill not game while in the Sacred Precincts or in Pilgrim garb. If any of you doeth so intentionally, the compensation is an offering, brought to the Ka'bah, of a domestic animal equivalent to the one he killed, as adjudged by two just men among you; or by way of atonement, the feeding of the indigent; or its equivalent in fasts; that he may taste of the penalty of his deed. Allah forgives what is past: For repetition, Allah will exact from him the penalty. For Allah is Exalted, and Lord of Retribution." (Qur'an 5.95)
Ibn Kathir said: "The majority holds that as far as the penalty is concerned there is no difference between one who deliberately kills a game and he who does so forgetfully." Az-Zuhri said: "The Qur'an imposed a penalty only on the intentional killer of the game, while the sunnah includes those who kill a game forgetfully." In other words the Qur'an imposes a penalty on an intentional killer for his sin, as is indicated by the words of Allah "...that he may taste the penalty of his deed."
The sunnah of the Prophet (peace be upon him) and the judgments of his Companions show that he who kills a game by mistake must also pay a penalty. Killing a game is a destructive act, and therefore, whether it is inflicted intentionally or forgetfully, makes little difference, though a deliberate killer is guilty of a sin, whereas one who does so by mistake commits no sin.
In Al-Musawwa, it is stated: "In the opinion of Abu Hanifah, the verse: 'If any of you doeth so intentionally, the compensation is an offering, brought to the Ka'bah, of a domestic animal equivalent to the one he killed' means that one who kills a game must compensate it by sacrificing something similar to or equivalent in price to be decided by two just men." It may be a domestic animal that is brought to the Ka'bah for sacrifice, or else one may feed the needy.
In Ash-Shafi'i's opinion it means that, "Anyone who kills a game while in the Hajj garb must pay a penalty for his act by sacrificing an animal similar in shape and form and two just men must make sure that it is equivalent in value to the game killed. Or else, one must make an atonement or fast for an equivalent number of days."Volume 5, Page 60: Some Precedents from 'Umar and Subsequent Generations
Abdul Malik bin Qurair reported from Mohammad bin Sirin that a man came to 'Umar bin Al-Khattab and said: "A friend of mine and I ran after a wild game while we were in pilgrim garb. We killed a deer. What is our atonement?" 'Umar told a man next to him: "Come, you and I must judge together." Then he gave his verdict and told the man to sacrifice a goat in compensation." The man left saying, "This is the Chief of the Faithful, who cannot pass a judgment concerning the killing of a deer!" 'Umar heard the man's remark, and he called him back and asked him: "Have you read Surah Al-Ma'idah (of the Qur'an)?" The man said: "No." 'Umar asked further: "Do you know this man who participated in the judgment with me?" The man said, "No." 'Umar said: 'Had you told me that you have read Surah Al-Ma'idah, I would have made you ache from beating." Then he added: "Allah, the Exalted One, says in His Book: 'If any of you doeth so intentionally, the compensation is an offering, brought to the Ka'bah, of a domestic animal equivalent to the one he killed, as adjudged by two just men among you.' And this man (who judged with me) is Abdur-Rahman bin 'Awf'."
Earlier generations of Muslim scholars gave verdicts that a camel is to be sacrificed for an ostrich, and a cow for a zebra, a stag or a deer, and similarly a sheep for a woodchuck, a pigeon, a turtledove, a mountain quail, and certain other birds. A male sheep is to be sacrificed for a hyena, a goat for a deer, a four month old goat for a rabbit, a baby goat (kid) for a fox, and a four month old goat should be sacrificed for killing a jerboa.Volume 5, Page 60a: When One is Unable to Pay the Penalty
Sa'id bin Mansur reported that commenting on the words of Allah "the compensation is an offering, brought to the Ka'bah, of a domestic animal" Ibn 'Abbas said: "If a muhrim kills an animal, an assessment should be made and then he should make compensation. If he has an animal of an equivalent value for the game, he must slaughter it and give its meat in charity, but if he does not have an animal of an equivalent value, he should assess the value of the game and then give away food for that amount. In case one does not have money for it, then, one must fast one day for each half sa' of food. If a muhrim killed a game, he must slaughter a similar animal according to the judgment of two just men. If one killed a deer or similar animal, one must slaughter a sheep in Makkah. If one cannot buy a sheep, then, one must feed six poor people, and if one cannot afford that, then one must fast three days.
If one killed a male adult deer or similar animal, he must slaughter a cow, otherwise one must feed twenty needy people, or fast for twenty days. If an ostrich or zebra or similar animal is killed, one must fast thirty days. This is reported by Ibn Abi Hatem and Ibn Jarir. They also added to this the words: "The food given to the needy must be sufficient to satisfy their hunger."Volume 5, Page 61: How to Feed and Fast
Malik said: "The best thing that I heard concerning this matter is that the price of the killed game must be assessed, or the food that can be bought with that amount. Then the killer must give to every needy person one mudd of food or else he must fast an identical number of days, one day for each mudd (of food). He must estimate the number of the needy that could be fed with that food. One must fast ten days if the money could feed ten poor people, fast twenty days, if twenty people could be fed for that amount, and so forth whatever their number, even sixty or more."Volume 5, Page 61a: Joint Killing of a Game
If a group of people participated in killing a game intentionally, they are to pay one penalty only, because Allah says "the compensation is an offering of a domestic animal." Ibn 'Umar was asked about a group of people who had jointly killed a hyena while they were in the state of ihram. Ibn 'Umar told them, "Slaugther a ram." They asked, "Should we slaughter a ram for each person of our group?" He said, "No. Slaughter only one ram on behalf of all of you."Volume 5, Page 61b: Killing a Game Within the Sacred Precincts and Cutting Trees
It is forbidden for both a muhrim and a non-muhrim to kill the game in the sacred precincts of Haram, or to frighten it, or to cut its trees that are not planted by the people, or to cut tender plants, including thorns, except for the plants called Izhkher and Sana which may be cut, pulled or weeded out.
Ibn 'Abbas reported that on the day of the conquest of Makkah the Prophet (peace be upon him) said, "Verily, this is a Sacred City, its thorns and its plants must not be cut, its wild game must not be frightened, and none is allowed to pick up lost articles unless one knows its owner (in order to return it to him)."' 'Abbas added, "Except (for the plant) Izhkher" which is used by blacksmiths and burned in households." The Prophet (peace be upon him) excluded this plant, saying, "Except izhkher." (Bukhari)
Ash-Shawkani said: "Qurtubi said: 'Jurists hold that the trees forbidden to be cut are the wild trees or plants that are not planted or grown by people. As to the trees grown by men there is disagreement among scholars. The majority holds it permissible to cut trees grown by men.
Ash-Shafi'i said: "Cutting any tree or plant is punishable." Ibn Qudamah also holds this view. There is also disagreement on punishment for cutting the first kind of trees.
Malik holds there is no penalty for it, although one who does this commits a sin. 'Ata opined: "Such a person should seek Allah's forgiveness." Abu Hanifah is of the opinion that such a person must compensate for it by sacrificing an animal equivalent in value to the damage caused by him. Ash-Shafi'i said: "For cutting a big tree one must slaughter a cow in compensation, and for a smaller tree a sheep."
The scholars, however, make an exception in making use of broken branches, fallen trees, or leaves. It is permissible to use these. Ibn Qudamah said: "There is agreement on the permissibility of using herbs, flowers, grass and tender plants grown by men within the sacred precincts of Haram."
The author of Al Rawdah al-Nadiyyah says: "The dwellers of the Haram, who are not in the state of ihram, incur sin, but no penalty for killing a game or cutting a tree within the Sacred Precincts." As for those who are in the state of ihram, they must pay the penalty prescribed by Allah for killing a game. But for cutting a tree in Makkah they incur no penalty, because the evidence in this regard is not strong enough. The hadith which states "If one cuts a big tree, he must slaughter a cow in compensation" is not a sound hadith. What is related from earlier scholars and their opinions on this issue, cannot be taken as conclusive by themselves.
The author continues: "In short, there is no connection between prohibition of killing game and cutting trees, and the obligation of paying a penalty or giving away an amount of equivalent value in atonement. Prohibition, however, is clear from what is forbidden. The penalty or equivalent value can be applied only when there is clear evidence to establish it. But the only evidence we have in this matter is the words of Allah "...Kill no game while in the Sacred Precincts or in pilgrim garb..." In this verse only penalty is mentioned; nothing else is essential (wajib).
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