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."
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.
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."
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."
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."
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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