Fiqh-us-Sunnah, Volume 5: Killing a game in the state of Ihram
Allah says: "O You Who Believe, kill not game while in the SacredPrecincts or in Pilgrim garb. If any of you doeth so intentionally, thecompensation is an offering, brought to the Ka'bah, of a domestic animalequivalent to the one he killed, as adjudged by two just men among you; or byway of atonement, the feeding of the indigent; or its equivalent in fasts; thathe may taste of the penalty of his deed. Allah forgives what is past: Forrepetition, Allah will exact from him the penalty. For Allah is Exalted, andLord of Retribution." (Qur'an 5.95)
Ibn Kathir said: "The majority holds that as far as the penalty isconcerned there is no difference between one who deliberately kills a game andhe who does so forgetfully." Az-Zuhri said: "The Qur'an imposed apenalty only on the intentional killer of the game, while the sunnah includesthose who kill a game forgetfully." In other words the Qur'an imposes apenalty on an intentional killer for his sin, as is indicated by the words ofAllah "...that he may taste the penalty of his deed."
The sunnah of the Prophet (peace be upon him) and the judgments of hisCompanions 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 intentionallyor forgetfully, makes little difference, though a deliberate killer is guiltyof 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, broughtto the Ka'bah, of a domestic animal equivalent to the one he killed' means thatone who kills a game must compensate it by sacrificing something similar to orequivalent in price to be decided by two just men." It may be a domesticanimal that is brought to the Ka'bah for sacrifice, or else one may feed theneedy.
In Ash-Shafi'i's opinion it means that, "Anyone who kills a game whilein the Hajj garb must pay a penalty for his act by sacrificing an animal similarin shape and form and two just men must make sure that it is equivalent invalue to the game killed. Or else, one must make an atonement or fast for anequivalent 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 wildgame while we were in pilgrim garb. We killed a deer. What is ouratonement?" 'Umar told a man next to him: "Come, you and I must judgetogether." Then he gave his verdict and told the man to sacrifice a goatin compensation." The man left saying, "This is the Chief of theFaithful, 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: "Haveyou read Surah Al-Ma'idah (of the Qur'an)?" The man said: "No."'Umar asked further: "Do you know this man who participated in thejudgment with me?" The man said, "No." 'Umar said: 'Had you toldme that you have read Surah Al-Ma'idah, I would have made you ache frombeating." Then he added: "Allah, the Exalted One, says in His Book:'If any of you doeth so intentionally, the compensation is an offering, broughtto the Ka'bah, of a domestic animal equivalent to the one he killed, asadjudged by two just men among you.' And this man (who judged with me) isAbdur-Rahman bin 'Awf'."
Earlier generations of Muslim scholars gave verdicts that a camel is to besacrificed for an ostrich, and a cow for a zebra, a stag or a deer, andsimilarly 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 goatfor 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 "thecompensation is an offering, brought to the Ka'bah, of a domestic animal"Ibn 'Abbas said: "If a muhrim kills an animal, an assessment should bemade and then he should make compensation. If he has an animal of an equivalentvalue for the game, he must slaughter it and give its meat in charity, but ifhe does not have an animal of an equivalent value, he should assess the valueof the game and then give away food for that amount. In case one does not havemoney for it, then, one must fast one day for each half sa' of food. If amuhrim killed a game, he must slaughter a similar animal according to thejudgment of two just men. If one killed a deer or similar animal, one mustslaughter a sheep in Makkah. If one cannot buy a sheep, then, one must feed sixpoor 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 anostrich or zebra or similar animal is killed, one must fast thirty days. Thisis 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 theirhunger."
Malik said: "The best thing that I heard concerning this matter is thatthe price of the killed game must be assessed, or the food that can be boughtwith that amount. Then the killer must give to every needy person one mudd offood 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 thatfood. One must fast ten days if the money could feed ten poor people, fasttwenty days, if twenty people could be fed for that amount, and so forthwhatever their number, even sixty or more."
If a group of people participated in killing a game intentionally, they areto pay one penalty only, because Allah says "the compensation is anoffering of a domestic animal." Ibn 'Umar was asked about a group of peoplewho had jointly killed a hyena while they were in the state of ihram. Ibn 'Umartold them, "Slaugther a ram." They asked, "Should we slaughter aram for each person of our group?" He said, "No. Slaughter only oneram on behalf of all of you."
It is forbidden for both a muhrim and a non-muhrim to kill the game in thesacred precincts of Haram, or to frighten it, or to cut its trees that are notplanted by the people, or to cut tender plants, including thorns, except forthe 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 andits plants must not be cut, its wild game must not be frightened, and none isallowed to pick up lost articles unless one knows its owner (in order to returnit to him)."' 'Abbas added, "Except (for the plant) Izhkher"which is used by blacksmiths and burned in households." The Prophet (peacebe upon him) excluded this plant, saying, "Except izhkher." (Bukhari)
Ash-Shawkani said: "Qurtubi said: 'Jurists hold that the treesforbidden to be cut are the wild trees or plants that are not planted or grownby 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." IbnQudamah also holds this view. There is also disagreement on punishment forcutting the first kind of trees.
Malik holds there is no penalty for it, although one who does this commits asin. 'Ata opined: "Such a person should seek Allah's forgiveness."Abu Hanifah is of the opinion that such a person must compensate for it bysacrificing 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 incompensation, 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, grassand 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 gameor cutting a tree within the Sacred Precincts." As for those who are inthe state of ihram, they must pay the penalty prescribed by Allah for killing agame. But for cutting a tree in Makkah they incur no penalty, because theevidence in this regard is not strong enough. The hadith which states "Ifone cuts a big tree, he must slaughter a cow in compensation" is not asound hadith. What is related from earlier scholars and their opinions on thisissue, cannot be taken as conclusive by themselves.
The author continues: "In short, there is no connection betweenprohibition of killing game and cutting trees, and the obligation of paying apenalty or giving away an amount of equivalent value in atonement. Prohibition,however, is clear from what is forbidden. The penalty or equivalent value canbe applied only when there is clear evidence to establish it. But the onlyevidence we have in this matter is the words of Allah "...Kill no gamewhile in the Sacred Precincts or in pilgrim garb..." In this verse onlypenalty is mentioned; nothing else is essential (wajib).