•Cafe of a
perfon being
found (lain
in a p u b lic
m ark et.,
or a prifon.
Noinqueft is
inftituted
upon a perfon
I f a perfon be found flain in a Bazdr'*, which is the property
of any one, the oath and fine, according to Aboo Toofaf, are
impofed on the inhabitants o f fuch Bazar ;— whereas, according to
Haneefa, they are impofed on the proprietor.. If, on the contrary,
a perfon be found flain in a Bazar not belonging to any one in parti-
cular, (as where it is fituated in common land,) the fine is difburfed
from the public treafury, as the Bazar in queftion belongs to the com-
munity at large.
If a perfon be found flain in a prifon-j-, the fine for him, according
to Haneefa and Mohammed, is difburfed from the public treafury.
Aboo Toofaf maintains that the oath and fine are impofed on the pri-
foners, becaufe they are the inhabitants of the place, and it is evident
that they flew the perfon. T h e arguments of Haneefa and Mohammed
are twofold.— F i r s t , the people of the place in queftion are in a ftate
of fubjedtion, and therefore cannot be confidered as the coadjutors of
each other;; whence they are not liable to any thing incurred under
the idea o f aid and ajfifiance.— S e c o n d l y , the prifon has been con-
ftrudted with a view to the advantage of the Mujfulman community;
and confequently, where this view is anfwered, the muldts incurred
in it muft be difburfed from the public purfe.
If a perfon be found flain in a defart, at a diftance from any inhabited
place, (that is, fo far removed as that a man’ s voice cannot be
* T h is is a well known term for a ftreet or range o f (hops, which are occafionally
built by the proprietors o f lands, and let to the merchants: it is alfo a term applied to any
piece o f land hired out, or fet apart, for the purpofe o f a market.
t A rab . Saw k-al-M am lm t-, Perf. Bandee-Khana-, literally, “ the houfe (or place)«/
p a v es.” T h e term has a reference to local cuftoms, and fignifies (perhaps) a fquare,
court, or divifion o f a city, fet apart for the reception and accommodation o f prifoners
taken in war. T h e tranflator has not been able to obtain any fatisfadtory explanation
o f it.
heard
heard from it,) his blood is of no account; becaufe, the place being at
fuch a diftance, no negledt is imputable. This proceeds on a fuppo-
fition of the defart not being the property of any individual; for if it
belong to any perfon in particular, the oath and fine are impofed upon
him and his tribe or family.— ( I f the defart be fituated between two
inhabited places, the oath and fine are impofed on the inhabitants of
that which is neareft to the fpot, for the reafons already affigned.)
If a perfon be found flain on a great river, fuch as, the Euphrates,
floating down with the ftream, his blood is of no account, fuch rivers
not being in the hands of, nor particularly belonging to, any perfon.
If, on the contrary, a perfon be found flain on the fhore of a great
river, and not carried down with the ftream, the oath and fine are impofed
upon any village, on that fide, within fuch a diftance as admits
of a man’ s voice being heard from the fpot;— and if there be two or
more villages within that diftance, they are impofed upon the
neareft.
If a perfon be found flain in a fmall river, (that is, fuch as the
right of Sheifa extends over,) the oath and fine are impofed upon the
people who claim a right in fuch river, as it is accounted to be in their
pofeflion. (It is related, in fome law books, that the oath is impofed
on the people, and the fine upon their Akilas.)
If the heirs of the flain impeach any one of the people of the place
in particular, ftill the oath is not remitted with refpedt to the others,
on a favourable conftrudtion of the l a w ; whereas, if the plaint be laid
againft any individual not one of the people of the place, thofe are not
required to fwear. T h e difference between thefe two cafes is that
where any one of the people of a place is accufed in particular, all the
reft are in fome degree implicated in the accufation, becaufe o f their
want of caution in not preventing the bloodftied ; whereas, i f a
Jiranger be accufed, they have no concern in it. Befides, the people
V o l . IV. - L 1 1 of
found flain in
a defart place-;
or floating
down a river,
unlefs fuch
river be p r i v
a t e property.
The heirs ac-
cufing any
perfon not an
inhabitant of
the place,
thofe are not
required to
fwear.