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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