A perfon be»
ing foupd
flain upon an
animal, the
oath is admi-
niftered to the
driver, and
his A k ila s pay
the fine;
or, i f there
be no driver,
the oath is
adminiftered
and the fine
levied upon
the neareft
inhabited
place«
A dead bcdy
being found
in a houfe,
it was born alive. But i f it be not completely formed, nothing whatever
is required, notwithftanding it have marks of violence ; becaufe
it is moft probable that fuch an infant could not have been born alive..
If a perfon be found {lain, upon a quadruped, which another perfon
is driving, the oath is adminiftered to the driver, and his Akilas-
are refponfible for the fine ; becaufe in this the people of the place
have no concern ; for as the body is found in the hands of the driver,,
the cafe is therefore the fame as if it were found in his houfe. The
fame rule alfo holds where the perfon in queftion fits upon the animal
[holding the body] and another leads it. If, alfo there be three per-
fons engaged about the animal, one riding, another leading, and a third
driving it, they are all fwora, and the fine is impofed on their Akilas;
for as the body is found in their hands, the cafe is therefore the lame
as i f it were found in their joint houfe, or tenement,—--in which in-
ftance they would be required to fwear, and their Akilas would be ac-
countable for the fine.
If a perfon be found flain, upon an animal, moving along between
two villages, the oath is adminiftered and the fine impofed upon the
inhabitants of the neareft of thofe villages ; becaufe it is recorded that,
in the time of the prophet, a perfon having been found {lain between
two villages, the prophet direded the diftances to be meafured, and
impofed the oath and fine upon the inhabitants ■ of the neareft; and
he alfo, on a particular occafion, wrote to Omar to the fame eiFccr.
It is to be obferved, however, that if both the villages be fo near the
fpot as to admit of a man’s voice being heard from it, they are both
equally liable to the oath and fine ; becaufe, where fuch is the cafe,
it was in the power of the people of both to have come to the de-
ceafed’s affiftance, which they uegleded to. do.
If a perfon be found {lain in any man’ s dwelling-houfe, the oath
is impofed on the mafter of the houfe, as it is in his pofleffion ,. and
the fine ' is impofed on his Akilas, as they are his aiders and cpad;
jutors H
If a perfon be found flain in any place, the people of which are of
two different defcriptions, fome o f them being the proprietors, and
others merely refidents upon rent or loan, the oath is adminiftered to
the former, not to the latter, according to Hanetfa and Mohammed.
Aboo Toofaf fays that it is adminiftered to all indifcriminately, as all
are alike refponfible ; for do we not fee that the prophet directed the
oath to be adminiftered to the Jews, who were merely rejidents at
Kheebir?— T o this, however, Haneefa and Mohammed reply that the
prefervation of the peace, in any place, refis more immediately upon
the proprietors, not upon thofe who are merely tenants, becaufe the
refidence of the former is continual, and not liable to interruption ;
and hence they in particular are refponfible, as the negleét is attributed
to them. With refpeft to the Jews at Kheebir, they were, ih
reality, proprietors o f the place, as the prophet reftored them to their
pofleflions there, and impofed a tribute upon their, lands..
If there be two defcriptions of refidents in a place, fome being
original proprietors, and others recent proprietors, and a perfon be .
found flain there, the oath is adminiftered to the whole indifcriminately,
but the fine, is impofed folely on the original proprietors, although
this fhould be only a fingle perfon. Aboo Toofaf fays that the
fine, as well as the oath, is impofed on the whole ; for it is impofed
folely on account of a negledt in the prefervation of the peace ; and
all are alike to blame, in this particular, as the power to preferve the
* T h e ftatement o f this cafe, by which the Akilas are exempted from taking the oath,
proceeds upon the fuppofition o f their not being on the fpot at the time ;j-i-for i f they be
prefent the oath- is alfo adminiftered to them,-—as will appear a little farther on. T h e
fame rule applies to the driver o f an animal, upon which a dead body is found, as before
ftated.
K k k z peace
the mafter is
fworn, and
his A k ila s pay
the fine.
The p r o p r ietors
o f a
place are
fworn in fuch
cafes, not the
renters.
Recent refidents
are
fworn, huf
the fine is
levied on the
or ig in a l residents
only.