1) The principle of even retaliation is applied exclusively in cases
of culpable homicide when someone has been killed intentionally with a
lethal weapon causing injury and blood-loss.
2) In a homicide of this nature, the killer is killed in even
retaliation - 'free man for a free man, slave for a slave, and female
for a female - and similarly, a man for a woman. The mention of 'free
man for a free man' and 'female for a female' in this verse refers to
a specific event in the background of which it was revealed.
On the authority of Ibn Abi Hatim (ra), Ibn Katheer (ra) has reported
that, just before the advent of Islam, war broke out between two
tribes. Many men and women, free and slaves, belonging to both, were
killed. Their case was still undecided when the Islamic period set in
and the two tribes entered the fold of Islam. Now that they were
Muslims, they started talking about retaliation for those killed on
each side. One of the tribes which was more powerful insisted that
they would not agree to anything less than that a free man for their
slave and a man for their woman be killed from the other side.
It was to refute this barbaric demand on their part that this verse
was revealed. By saying 'free man for a free man, slave for a slave
and female for a female' it is intended to negate their absurd demand
that a free man for a slave and man for a woman should be killed in
retaliation, even though he may not be the killer. The just law that
Islam enforced was that the killer is the one who has to be killed in
Qisas. If a woman is the killer why an innocent man should be killed
in retaliation? Similarly, if the killer is a slave, there is no sense
in retaliating against an innocent free man. This is an injustice
which can never be tolerated in Islam.
This verse means nothing but what has been stated earlier, and we
repeat, that the one who has killed will be the one to be killed in
Qisas. It is not permissible to kill an innocent man or someone free
for a killer, woman or slave. Let us hasten to clarify that the verse
does not mean that Qisas will not be taken from a man who kills a
woman or from a free man who kills a slave. In the very beginning of
this verse the words: "The Qisas has been enjoined upon you in the
case of those murdered" are a clear proof of this universality of
application. There are other verses where this aspect has been stated
more explicitly, for instance, in (the person for the person).
3) If, in a case of intentional killing the murderer is given full
pardon, for instance, should both of the two surviving sons of the
deceased pardon and forego their right of retaliation, the killer is
free of any claim against him. In case the pardon is not that full,
for instance, as illustrated above, one of the two surviving sons does
pardon the killer while the other does not, the result will be that
the killer will stand released right there from the retaliatory
punishment, but the one who has not pardoned the killer will be
entitled to half of the blood-money (diyah). In Shari'ah, this diyah
amounts to one hundred camels or one thousand dinars or ten thousand
dirhams or approximately nineteen pounds of silver according to
current weights and measures.
4) The way an incomplete pardon makes payment of blood-money
necessary, in the same manner, a mutual settlement between parties
concerned on a certain amount makes retaliation inapplicable and
payment of the agreed amount becomes necessary. This, however, is
governed by some conditions which appear in books of Fiqh.
5) Under the Islamic law, the inheritors of the person killed,
whatever their number, will inherit and own the right of retaliation
and blood-money in accordance with their share in the inheritance. If
blood-money is taken, it will be distributed among the inheritors in
accordance with their share in the inheritance.
And should Qisas (even retaliation) become the choice, the right of
Qisas will also be commonly shared by all. Since Qisas is indivisible,
the pardon given by any one of the inheritors will hold good and the
pardon will become inclusive of the right of retaliation held by other
inheritors. However, they shall receive the blood-money amount
according to their share.
6) It is true that the right of even retaliation is vested in the
legal heirs of the persons killed but, in accordance with the
consensus of the Muslim community, they do not have the right to
settle the score all by themselves, in other words, they cannot kill
the killer on their own, instead, they have to seek the help of a
Muslim ruler or his deputy to realize their right. The reason is that
Qisas is an intricate issue when it comes to details which are simply
out of reach for an average person. Therefore, the legal heirs of the
person killed, not knowing the particular circumstances when
retaliation does, or does not become necessary, may commit some sort
of excess under the heat of their anger. So, by a unanimous agreement
of the scholars of the Muslim community, it is necessary that the
right of retaliation be secured and made effective through the agency
of an Islamic government. (Qurtubi) (Ma'ariful Qur'an, Vol.1)