Lawth (apparent sign of a killing, a condition of qasama)

Lawth, in lexicon, means strength and evil, or weakness; in technical use it is a matter that produces a strong presumption that the claimant is truthful, a semblance of proof on a killing that falls short of full evidence ¹. The jurists make it a condition of qasama. Its basis is the case of Abdullah ibn Sahl at Khaybar, where his people accused the Jews, neither side swore, and the Prophet paid the blood-money from his own side ². Each school has its own forms of lawth: the Shafi'is list five, the Malikis five examples, the Hanbalis open enmity and other signs, and the Hanafis the finding of a corpse in a quarter with signs of killing ³. Lawth falls away when the accused denies it, when some heirs contradict others, or when proof of absence on the day is given ⁴.

Tuhma in lexicon is doubt and suspicion, originally from wahm (imagination). Its technical sense does not go beyond the lexical one: a person is named with an undesired quality ⁵.

The jurists hold that lawth is a condition of qasama. Its basis is the report of Sahl ibn Abi Hathma on the killing of Abdullah ibn Sahl at Khaybar: the body was thrown into a well, his people accused the Jews, who denied it. The Prophet told them either the Jews should pay the blood-money or war would be declared; he asked the claimants whether they would swear and take the blood, they refused; he asked whether the Jews should swear, and they said they were not Muslims, so the Prophet paid the blood-money himself, one hundred camels ².

The Shafi'is say lawth is a sign that stirs suspicion and gives the heart confidence in the claim, and they give forms of it. First, a corpse found in a tribe, a fortress, a small village or a separate quarter, with no known killer and no proof, and clear enmity between the dead man's people and the others, religious or worldly; some add that no outsiders mix with them ². Second, a group disperses from a corpse in a house, mosque, road, well or during circumambulation; no enmity is required, but they must be confined so that gathering around the corpse is conceivable ⁶. Third, two lines fight and a corpse of one side is found; it is lawth against the other side if they came to blows, and against the side of the corpse otherwise ⁶. Fourth, a corpse is found in the desert with a man holding a weapon stained with blood, or with blood on his clothes or body, unless contrary evidence exists, such as a beast nearby or another man fleeing ⁶. Fifth, a just witness testifies that Zayd killed a certain man; this is lawth in the preferred view, whether the testimony came before or after the claim, but only for deliberate homicide that requires retaliation; in error or quasi-deliberate killing one oath is sworn with the witness and money is due ⁷. Witnesses who are not accepted, such as children, sinners or non-Muslims, are discussed as different views, and an injured man's own claim that someone wounded him is not lawth because he is a claimant ⁸.

The Hanafis hold that when a corpse with signs of killing is found in a quarter and its killer is unknown, fifty men of the quarter, chosen by the heir, swear that they did not kill him nor know his killer; they do not require a sign against one particular person ⁸. The Malikis hold that the cause of qasama is the killing of a free Muslim with lawth, and give five examples: first, the adult free Muslim says that a named person killed him, deliberately or by error, and his word is accepted even against the most upright man of his time, provided two just men witness his acknowledgement and there are wounds or signs of blows or poison ⁸. Second, two just witnesses see the blow or wound ⁹. Third, one just witness sees the wound or blow, and the heirs swear one oath to complete the required number ¹⁰. Fourth, one just witness sees the killing without the victim's acknowledgement; two women count as one just witness ¹⁰. Fifth, a just witness sees the victim writhing in his blood while the suspect is near, with the weapon in his hand stained, and no one else is there ¹⁰. Finding a corpse in a people's village or house is not lawth, since otherwise anyone could frame a group, and the killer usually does not leave the body where he can be suspected ¹⁰.

The preferred Hanbali view is that lawth is apparent enmity, like that between the Ansar and the people of Khaybar, or between tribes that seek each other's blood, or any man who bears the dead man a grudge that makes his killing probable ¹¹. Another narration from Ahmad says lawth is whatever makes the claimant's truth probable, such as a group dispersing from a corpse, a corpse found with no one near it but a man holding a bloodied sword or knife, two sides fighting and leaving a corpse, or a group testifying to the killing whose testimony alone would not prove it ¹¹. The Hanbalis hold that with enmity it is not required that no one but the enemy be at the place, nor that the body bear a mark of killing; the victim's own statement that someone killed him is not lawth ¹².

The Malikis hold that if an adult free Muslim says 'X killed me' and then says 'no, Y did', the blood-claim is void; and if the heirs contradict his claim, saying deliberate when others say by error, or refuse the oath, the blood is void ¹². The Shafi'is hold that when the defendant denies lawth against him and says he was absent on the day, the claimant must show proof; if absence is proved, lawth falls, and if the judge had already ruled on qasama, the ruling is annulled and the money returned ¹³. If some heirs contradict others, for instance one says Zayd killed their father and another says Zayd was absent and someone else killed him, the lawth falls in the preferred Shafi'i view ¹³. The Hanbalis hold that when the defendant shows he was in a distant land on the day and could not have come, the claim is void ¹⁴. They also hold that if some heirs contradict others without identifying the killer, qasama is not established; likewise if one heir claims and the other does not know the killer, or one heir is absent and the present one claims, or both claim against one and one refuses the oath ¹³.